HONG KONG LEGISLATIVE COUNCIL — 21 July 1993 4701 OFFICIAL RECORD OF PROCEEDINGS
Wednesday, 21 July 1993
The Council met at half-past Two o'clock
PRESENT
THE PRESIDENT
THE HONOURABLE JOHN JOSEPH SWAINE, C.B.E., LL.D., Q.C., J.P.
THE CHIEF SECRETARY
THE HONOURABLE SIR DAVID ROBERT FORD, K.B.E., L.V.O., J.P.
THE FINANCIAL SECRETARY
THE HONOURABLE NATHANIEL WILLIAM HAMISH MACLEOD, C.B.E., J.P. THE ATTORNEY GENERAL
THE HONOURABLE JEREMY FELL MATHEWS, C.M.G., J.P.
THE HONOURABLE ALLEN LEE PENG-FEI, C.B.E., J.P.
THE HONOURABLE MRS SELINA CHOW LIANG SHUK-YEE, O.B.E., J.P. THE HONOURABLE HUI YIN-FAT, O.B.E., J.P.
THE HONOURABLE MARTIN LEE CHU-MING, Q.C., J.P.
THE HONOURABLE DAVID LI KWOK-PO, O.B.E., J.P.
THE HONOURABLE NGAI SHIU-KIT, O.B.E., J.P.
THE HONOURABLE PANG CHUN-HOI, M.B.E.
THE HONOURABLE SZETO WAH
THE HONOURABLE TAM YIU-CHUNG
THE HONOURABLE ANDREW WONG WANG-FAT, O.B.E., J.P.
THE HONOURABLE LAU WONG-FAT, O.B.E., J.P.
THE HONOURABLE EDWARD HO SING-TIN, O.B.E., J.P.
THE HONOURABLE RONALD JOSEPH ARCULLI, O.B.E., J.P.
THE HONOURABLE MARTIN GILBERT BARROW, O.B.E., J.P.
HONG KONG LEGISLATIVE COUNCIL — 21 July 1993 4702 THE HONOURABLE MRS PEGGY LAM, O.B.E., J.P.
THE HONOURABLE MRS MIRIAM LAU KIN-YEE, O.B.E., J.P. THE HONOURABLE LAU WAH-SUM, O.B.E., J.P.
DR THE HONOURABLE LEONG CHE-HUNG, O.B.E., J.P. THE HONOURABLE JAMES DAVID McGREGOR, O.B.E., I.S.O., J.P. THE HONOURABLE MRS ELSIE TU, C.B.E.
THE HONOURABLE PETER WONG HONG-YUEN, O.B.E., J.P. THE HONOURABLE ALBERT CHAN WAI-YIP
THE HONOURABLE VINCENT CHENG HOI-CHUEN, J.P. THE HONOURABLE MOSES CHENG MO-CHI
THE HONOURABLE MARVIN CHEUNG KIN-TUNG, J.P. THE HONOURABLE CHEUNG MAN-KWONG
THE HONOURABLE CHIM PUI-CHUNG
REV THE HONOURABLE FUNG CHI-WOOD
THE HONOURABLE FREDERICK FUNG KIN-KEE
THE HONOURABLE TIMOTHY HA WING-HO, M.B.E., J.P. THE HONOURABLE MICHAEL HO MUN-KA
DR THE HONOURABLE HUANG CHEN-YA
THE HONOURABLE SIMON IP SIK-ON, O.B.E., J.P.
DR THE HONOURABLE LAM KUI-CHUN
DR THE HONOURABLE CONRAD LAM KUI-SHING, J.P. THE HONOURABLE LAU CHIN-SHEK
THE HONOURABLE EMILY LAU WAI-HING
THE HONOURABLE LEE WING-TAT
THE HONOURABLE ERIC LI KA-CHEUNG, J.P.
HONG KONG LEGISLATIVE COUNCIL — 21 July 1993 4703 THE HONOURABLE FRED LI WAH-MING
THE HONOURABLE MAN SAI-CHEONG
THE HONOURABLE STEVEN POON KWOK-LIM
THE HONOURABLE HENRY TANG YING-YEN, J.P.
THE HONOURABLE TIK CHI-YUEN
THE HONOURABLE JAMES TO KUN-SUN
DR THE HONOURABLE SAMUEL WONG PING-WAI, M.B.E., J.P.
DR THE HONOURABLE PHILIP WONG YU-HONG
DR THE HONOURABLE YEUNG SUM
THE HONOURABLE HOWARD YOUNG, J.P.
THE HONOURABLE ZACHARY WONG WAI-YIN
DR THE HONOURABLE TANG SIU-TONG, J.P.
THE HONOURABLE CHRISTINE LOH KUNG-WAI
THE HONOURABLE ROGER LUK KOON-HOO
THE HONOURABLE ANNA WU HUNG-YUK
THE HONOURABLE JAMES TIEN PEI-CHUN, O.B.E., J.P.
IN ATTENDANCE
MR MICHAEL LEUNG MAN-KIN, C.B.E., J.P.
SECRETARY FOR EDUCATION AND MANPOWER
MR YEUNG KAI-YIN, C.B.E., J.P.
SECRETARY FOR TRANSPORT
MR MICHAEL SUEN MING-YEUNG, J.P.
SECRETARY FOR HOME AFFAIRS
MR ALISTAIR PETER ASPREY, O.B.E., A.E., J.P.
SECRETARY FOR SECURITY
MR RONALD JAMES BLAKE, J.P.
SECRETARY FOR WORKS
HONG KONG LEGISLATIVE COUNCIL — 21 July 1993 4704
MR JAMES SO YIU-CHO, O.B.E., J.P.
SECRETARY FOR RECREATION AND CULTURE
MR ANTHONY GORDON EASON, J.P.
SECRETARY FOR PLANNING, ENVIRONMENT AND LANDS
MR GORDON SIU KWING-CHUE, J.P.
SECRETARY FOR ECONOMIC SERVICES
MR DONALD TSANG YAM-KUEN, O.B.E., J.P.
SECRETARY FOR THE TREASURY
MR MICHAEL DAVID CARTLAND, J.P.
SECRETARY FOR FINANCIAL SERVICES
MRS REGINA IP LAU SUK-YEE, J.P.
SECRETARY FOR TRADE AND INDUSTRY
THE CLERK TO THE LEGISLATIVE COUNCIL
MR CLETUS LAU KWOK-HONG
THE DEPUTY CLERK TO THE LEGISLATIVE COUNCIL MR PATRICK CHAN NIM-TAK
HONG KONG LEGISLATIVE COUNCIL — 21 July 1993 4705 Papers
The following papers were laid on the table pursuant to Standing Order 14(2): Subject
Subsidiary Legislation L.N. No.
Designation of Libraries (Regional Council Area)
Order 1993...................................................................................... 273/93
Designation of Libraries (Regional Council Area)
(No. 2) Order 1993 ......................................................................... 274/93
Immigration (Places of Detention) (Amendment)
Order 1993...................................................................................... 275/93
Immigration (Places of Detention) (Amendment)
(No. 2) Order 1993 ......................................................................... 276/93
Immigration (Treatment of Detainees) (Amendment)
Order 1993...................................................................................... 277/93
Immigration (Treatment of Detainees) (Amendment)
(No. 2) Order 1993 ......................................................................... 278/93
Protection of Women and Juveniles (Places of
Refuge) (Amendment) Order 1993................................................. 279/93
Employees Retraining Ordinance (Amendment of
Schedule 2) (No. 5) Notice 1993 .................................................... 280/93
Protection of Women and Juveniles (Amendment)
Ordinance 1993 (25 of 1993)
(Commencement) Notice 1993....................................................... 281/93
Sessional Papers 1992-93
No. 94 — J.E. Joseph Trust Fund Report for the period 1 April 1992 to 31 March 1993
No. 95 — Kadoorie Agricultural Aid Loan Fund Report for the period 1 April 1992 to 31 March 1993
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No. 96 — Sir Robert Black Trust Fund Annual Report for the year 1 April 1992 to 31 March 1993
No. 97 — Pneumoconiosis Compensation Fund Board Annual Report 1992
No. 98 — The Fifth Annual Report of The Commissioner for Administrative Complaints Hong Kong June 1993
No. 99 — Report of the Public Accounts Committee on Report No. 20 of the Director of Audit on the Results of Value for Money Audits (PAC Report No. 20)
No. 100— Hong Kong Provisional Airport Authority Annual Report 1992-93
No. 101— The Statement of Accounts for the Customs and Excise Service Welfare Fund for the year 1992-93
No. 102— Report on the Administration of the Immigration Service Welfare Fund from 1 April 1992 to 31 March 1993 prepared by the Director of Immigration
No. 103— Hong Kong Trade Development Council Annual Report and Account 1992-93
No. 104— School Medical Service Board Annual Report for the year ended 31 March 1993
Addresses
Report of the Public Accounts Committee on Report No. 20 of the Director of Audit on the Results of Value for Money Audits (PAC Report No. 20)
MR PETER WONG: Mr President, I table today Report No. 20 of the Public Accounts Committee which has been compiled following the Committee's investigations into matters raised in the Director of Audit's Report No. 20 on the results of value for money audits completed between October 1992 and February 1993.
On behalf of the Committee, I would like to pay tribute to our former Chairman and honourable colleague, the late Mr Stephen CHEONG. Stephen
HONG KONG LEGISLATIVE COUNCIL — 21 July 1993 4707
had served as a member of the Public Accounts Committee since 1981 and he was appointed Chairman of the Committee in the current legislative term in November 1991. Members of our Committee value in particular the guidance and leadership he provided to the Committee as Chairman. His leadership, wisdom and commitment to serve Hong Kong will always be remembered with affection. I am privileged to be appointed his successor, and would like to thank my fellow members for their contribution to the work of the Committee in producing the current PAC Report.
Returning to the Director of Audit's Report No. 20, our Committee has been encouraged by the positive attitude adopted by the Administration towards the Director's recommendations in his Report. We noted that the Controlling Officers responded to the Director's recommendations promptly, and had on the whole been co-operative and open minded towards the suggestions made by the Director. Of course, this is no reason for complacency; rather, we believe that the Committee, the Audit Department and the Administration should continue to work together closely in the quest for further improvements in cost-effectiveness and efficiency of our public services.
The Director of Audit in his Report No. 20 raised a total of seven issues. In considering the Director of Audit's Report, we noted that the Government had already implemented the recommendation of the Director of Audit on the matter concerning the non-charging of interest on loans to profit-making schools in the Bought Place Scheme. Hence, we did not consider it necessary to investigate further into that particular matter. It is therefore the investigation of the other matters raised in the Director's Report which constitutes the bulk of the PAC Report tabled today.
The Director of Audit also raised in his Report the issue concerning the ex gratia compensation for the clearance of the Kowloon Walled City. As at today, our Committee has held two public hearings on the issue, but we have yet to conclude our investigations on it. Hence we have said very little on this subject in the Report tabled today. Instead, we shall report back to this Council our conclusions and recommendations once we have finalized our deliberations on this issue.
Mr President, allow me to emphasize that our function as a Committee is not vindictive or punitive. Our job is to examine with the Administration issues raised in the Director of Audit's Report, to draw lessons from what has been done and to arrive at recommendations for the more efficient use of public funds in future.
Finally, I wish to reiterate that the Committee and the Audit Department will continue to closely monitor the performance of the Government with a view to achieving further improvements in cost-effectiveness and efficiency of our public services. I trust that the recommendations in our Report will be accepted by the Administration.
HONG KONG LEGISLATIVE COUNCIL — 21 July 1993 4708 Hong Kong Provisional Airport Authority Annual Report 1992-93
FINANCIAL SECRETARY: Mr President, in accordance with section 10 of the Provisional Airport Authority Ordinance, the annual report and audited accounts of the Provisional Airport Authority for the year ended 31 March 1993 are tabled today.
The past year has witnessed a period of significant progress in the development of the new airport. I should like to highlight some of the key developments:
— The HK$9 billion site preparation contract to produce the 1 248-hectare airport platform was awarded in late November 1992. This marked an important milestone in the implementation of the airport project. The contract has been awarded on a lump sum fixed price basis and was well within the Authority's budget. So far, some 197 hectares of new land has been formed and progress is well on target;
— To implement its commercial strategy for the main airport support services which are to be privately owned and operated, the Authority has called for, and received, expressions of interest for air cargo, aviation fuel, aircraft maintenance and aircraft catering services;
— Detailed design of the passenger terminal building is well in hand, with the aim of producing a terminal that is both efficient and user-friendly;
— Four consultancies have been awarded for the design of the infrastructure on the platform. These cover the design of utilities, airfield tunnels, drainage and irrigation systems; and
— Detailed project control procedures have been implemented to link engineering and construction activity closely to the Authority's project control budget in order to facilitate close monitoring of costs by the Authority.
This significant progress could not have been achieved without the strenuous efforts of the Board and of the management team. Under the guidance of the Board, this team, with approximately 580 full-time staff, has applied their skill, expertise and ingenuity to the work with commendable dedication.
If all goes well, and agreement is soon reached with China on the airport financing plan, the construction of the terminal building could begin in mid-1994 when sufficient land will have been reclaimed under the site
HONG KONG LEGISLATIVE COUNCIL — 21 July 1993 4709
preparation contract. Meanwhile, planning for the external financing of the Authority will continue.
This report should be the last one issued by this provisional body. The drafting of the Bill to establish a permanent statutory body is now at an advanced stage. We aim to introduce the Bill to this Council in the early part of the next Legislative Session.
Oral answers to questions
Public housing estate management
1. MRS ELSIE TU asked: Will the Administration inform this Council what efforts are being made to improve the management of public housing estates by stamping out malpractices such as using premises for non-residential purposes, unauthorized occupation and subletting in order to make more flats available to really needy families?
SECRETARY FOR PLANNING, ENVIRONMENT AND LANDS: Mr President, the Housing Authority recovers as many rental units as possible where the tenants no longer have a need for them. The tenancy agreements between the Authority and its tenants enable action to be taken against any abuse or malpractice, such as non-residential use, unauthorized occupation and subletting.
In the Housing Department's experience, tenancy abuses are not widespread. In newly completed estates, the problem is almost non-existent since the housing need of the tenants has only just been verified. As regards older estates, some irregularities do exist however. Activities such as private tuition, piano lessons and child care services are tolerated provided the unit continues to be used for residential purposes and no nuisance is caused. Non-occupation or subletting is a more serious matter which can result in the termination of a tenancy.
Irregularities are detected as part of day-to-day estate management work, including regular checks on electricity consumption, daily patrols, random home visits, door-to-door rent collection and routine annual flat inspections. They are also uncovered through reports by tenants and information collected from Mutual Aid Committees, resident associations and various other sources. Defaulting tenants will be asked to restore their flat to its proper use through persuasion or, if necessary, the issue of verbal or written warnings. If all these efforts fail, the tenants will be served a notice-to-quit. And in the past three years, 682 such cases have been processed.
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The Housing Authority has always taken a serious view of tenancy abuses. A detection team has recently been formed to carry out surprise checks on flats, sometimes outside office hours. This approach will be reviewed later this year to see whether the operation should be expanded and if so how. The Authority is mindful of the need to keep a close watch on the situation and has stepped up tenancy enforcement in all estates. It needs however to strike a careful balance between essential enforcement and checking up on its tenants to the point that might be regarded as harassment.
MRS ELSIE TU: Mr President, tenants visiting my ward office repeatedly report that many flats in older estates have for 10 years or more been empty, used for storage or illegally occupied. Does this detection team only conduct an external inspection of the older estates and has any action been taken against managers who tolerate these irregularities on their estates?
SECRETARY FOR PLANNING, ENVIRONMENT AND LANDS: Mr President, the detection team has recently been formed. It is formed centrally in the Housing Authority and it is carrying out checks on estates. Therefore I think it can be regarded as outside the management of the individual estates that we are referring to.
As far as the second part of that question is concerned, I am not at this point in time aware of it having been established that any Housing Manager has been guilty of neglect of his duties in this way. But should such a case be established, then I am sure that he would be subject to some form of disciplinary action.
MR FRED LI (in Cantonese): Mr President, may I know the composition of the recently formed detection team and is it given statutory powers to enter premises for inspection purposes?
SECRETARY FOR PLANNING, ENVIRONMENT AND LANDS: Mr President, I cannot give the Honourable Member exact details as regards the composition of the team, but I will provide it in writing. (Annex I) As far as the question of authority to enter is concerned, I believe that this team would operate on the basis of the statutory authority of the Housing Authority provided under the Ordinance.
DR TANG SIU-TONG (in Cantonese): Mr President, may I ask the Secretary if selling books or organizing tutorial classes or interest groups in a Member's office in public housing estates is in breach of the tenancy provisions?
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SECRETARY FOR PLANNING, ENVIRONMENT AND LANDS: In my main reply, Mr President, I used the word "tolerated". I believe that if one wanted to be absolutely determined to, as it were, wipe out every human activity that is not actually covered under the term "residence or domestic use", then it would be possible for the Housing Authority to close down all such activities. But I believe that a reasonable level of tolerance of one's neighbour's activity is necessary in estates like this.
MR FREDERICK FUNG (in Cantonese): Mr President, I believe sending out such an inspection team is just one of the methods available. But of course the best way is, as mentioned in the third paragraph of the Secretary's reply, reports by tenants. Has the Secretary considered whether it will be more effective if an "informer system" is introduced to encourage tenants to make reports and lodge complaints which will be treated in strict confidence?
SECRETARY FOR PLANNING, ENVIRONMENT AND LANDS: Mr President, I think I have already said in my main reply that irregularities are also uncovered through reports by tenants and information collected from Mutual Aid Committees and resident associations and various other sources. I think it is apparent from that neighbours and tenants are able to report and are indeed prepared to report.
MR FREDERICK FUNG (in Cantonese): Mr President, I believe that due to the problem of translation, the Secretary's answer did not address to what I had asked. I should like to put it again. The "informer system" I referred to is a system rather than informers lodging complaints as they wish. In fact this system will be somewhat like the informer system of the police whereby an informer will be rewarded for making a report.
SECRETARY FOR PLANNING, ENVIRONMENT AND LANDS: Mr President, I do not know whether it is a personal attitude here, but the idea of my neighbour creeping around my flat and reporting to the manager of my estate as to what I am doing fills me with a degree of abhorrence. But I believe that it is the sort of idea which perhaps I should offer to the Housing Authority to consider.
MR LEE WING-TAT (in Cantonese): Mr President, the Secretary said in his reply that the Housing Department had served 682 notices on illegally occupied or vacant flats in the past three years. This figure is very small indeed. In fact there are two reasons for the majority of flats being left vacant. First, some of the tenants have already migrated, and second, some of them have acquired their own flats. Will the Administration consider tracking down the tenants who no longer need these flats through the records of the Immigration Department and
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Buildings and Lands Department, and confirm them by way of correspondence to tenants or inspection?
SECRETARY FOR PLANNING, ENVIRONMENT AND LANDS: Mr President, so long as we are expecting the Housing Authority to lead us gently down the path towards a police state, I am sure that, again, this kind of idea can be considered. But I believe that there will be constraints under the Immigration Ordinance as to what sort of information can be provided to other authorities in this way.
Scaffolding on construction sites
2. MRS SELINA CHOW asked: In view of recent accidents involving collapse of scaffolding on construction sites which have caused serious injuries, will the Government inform this Council whether such accidents are on the increase; and what measures are taken by the Government to ensure that such structures are safe?
SECRETARY FOR EDUCATION AND MANPOWER: Mr President, it is our experience that accidents involving collapse of scaffolding on construction sites which have caused serious injuries or fatalities seldom occurred. From 1990 to end of June 1993, the Labour Department has recorded two fatalities caused by the collapse of bamboo scaffolds. As regards injuries, the statistics are subsumed under different headings in the records of the Labour Department such as "fall of persons" and "fall of objects". No statistics specifically related to collapse of scaffolds are therefore available to indicate the number of such accidents or to determine whether they are on the increase.
The safety of scaffolds is regulated under Part VA "Scaffolds, Working Platforms and Ladders and so on" of the Construction Sites (Safety) Regulations of the Factories and Industrial Undertakings Ordinance (Cap. 59). For example, all scaffolds should be made of strong and sound materials, free from defect, and properly maintained. The Regulations also require the scaffolds to be fixed, secured and regularly inspected to prevent accidents.
The Labour Department is responsible for enforcement action against unsafe scaffolds. In addition to regular inspections, a special inspection and enforcement campaign on scaffolds was conducted during April to June this year. Later in the year, a similar operation will be mounted. Prosecution action will be taken out against those who breach the law.
On the education and publicity front, seminars and training courses to enable employers and employees to identify unsafe acts or conditions working with scaffolding have been and will continue to be organized by the Labour Department and the Occupational Safety and Health Council. An Announcement
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of Public Interest stressing the importance of scaffold safety is under preparation and will be broadcast soon. A press release is normally issued after a typhoon or inclement weather to remind contractors to ensure that their scaffolds are in safe working conditions. In addition, a code of practice on bamboo scaffold is under preparation to assist the industry to comply with the requirements and will be published shortly.
MRS SELINA CHOW: Mr President, what is being done to ensure that new recruits into the construction industry are properly trained in the erection of scaffolding, with particular regard to safety?
SECRETARY FOR EDUCATION AND MANPOWER: Mr President, as I mentioned in the last paragraph of my reply, the education and publicity includes training requirements of the Labour Department and the construction industry. In particular, the Construction Industry Training Authority has organized courses to ensure that training on safety in scaffolding erection work is intensively undertaken by all those who learn the trade.
MRS SELINA CHOW: Mr President, the last paragraph of the answer refers to training courses to enable employers and employees to identify unsafe acts or conditions. My question relates to the training of new recruits into the industry who are actually engaged in the erection of scaffolding.
SECRETARY FOR EDUCATION AND MANPOWER: Mr President, can I defer to the Secretary for Works on this particular question?
SECRETARY FOR WORKS: Mr President, I can give a few statistics. The Construction Industry Training Authority has for many years been running courses. And, of course, while they are training new recruits, they also run top-up courses for existing workers to come back and receive training. In the period between 1978 and 1993 there were 273 such courses for scaffold training purposes. During the year 1991 the number trained was 24; 1991-92 there were 13 persons; 1992-93 there were 33 persons; 1993-94 there are 30 such persons. These courses comprise a one-year full-time course at the Construction Industry Training Authority's School together with two years' on-the-job training.
MR MOSES CHENG: Mr President, would the Administration inform this Council as to how many prosecutions have been taken against parties responsible for unsafe scaffolds in the last three years and how many of these prosecutions have been successful?
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SECRETARY FOR EDUCATION AND MANPOWER: Mr President, over the last three years we have taken out 181 summonses for offences involving scaffolds. I do not have the breakdown on the number of successful prosecutions, but I will find out and give a written answer. (Annex II)
MR EDWARD HO: Mr President, with regard to the third paragraph of the answer, given the large number of construction sites in Hong Kong, how regularly are inspections conducted to ensure scaffolds are safe?
SECRETARY FOR EDUCATION AND MANPOWER: Mr President, under the Regulations, the contractor is responsible for ensuring that an inspection is done every month. And also immediately after a typhoon or bad weather the contractor is required to inspect the scaffolding in question.
MR MARTIN BARROW: Mr President, the Secretary has informed us that a code of practice on bamboo scaffolding is under preparation. Could he tell us about the safety of other forms of scaffolding; are they used much; and is there a significant cost difference for the contractor?
SECRETARY FOR EDUCATION AND MANPOWER: Mr President, could I defer to the Secretary for Works as regards details about the operation of the trade in terms of different scaffolding?
SECRETARY FOR WORKS: Mr President, there is a cost differential between the different types of scaffolding. But I can say that each type of scaffolding is chosen more for its suitability for its intended purpose rather than on purely cost grounds. With regard to the checking of scaffolds and the code of practice for scaffolds, all scaffolds have to meet satisfactory design standards whether they be the proprietary type of scaffolding or otherwise. And also of course there is the normal supervision on site during the erection process of scaffolds. Whereas a bamboo scaffold depends very much on the ability of the individual scaffolder for its erection, the more proprietary based type of scaffold is less dependent upon individual expertise and much more dependent upon the system itself.
MR TAM YIU-CHUNG (in Cantonese): Mr President, the construction association had asked the Government to enact laws to provide for the use of double-row scaffolding and safety mesh on construction sites because double-row scaffolding was safer and that there was already such a provision for construction sites in the mainland. May I ask the Administration when a decision on this can be reached?
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SECRETARY FOR EDUCATION AND MANPOWER: Mr President, the Labour Department is now encouraging contractors to use double-row scaffolding. By and large the construction industry is using double-row bamboo scaffolding more frequently at some stage of building construction. We expect the industry to continue to expand the use of double-row bamboo scaffolding in the months ahead. In reply to the particular question, we are considering the possibility and the feasibility of legislating for the requirement for double-row scaffolding.
MR LAU CHIN-SHEK (in Cantonese): Mr President, the Secretary for Education and Manpower mentioned repeatedly in the second and third paragraphs of his reply that there had been regular inspections and special enforcement actions. May I ask if there are specific requirements in respect of the qualification of scaffold inspectors or the inspection procedures? If so, may I ask what kind of professional qualification is required?
SECRETARY FOR EDUCATION AND MANPOWER: Mr President, the Regulations require that the person has to be a competent person to inspect and make sure that the scaffolding is safe. A competent person in this case means a person in the trade with sufficient experience in the safety and construction of scaffolds. And in practice, these standards are applied fairly consistently throughout the trade both by the practitioners themselves and through the training courses organized by the Construction Industry Training Authority.
Water control zone at Victoria Harbour
3. MR JAMES TIEN asked: The final target date for extending the Water Pollution Control Ordinance to all Hong Kong's territorial waters is expected to be 1995 and the last Water Control Zone to be declared would be Victoria Harbour. This would affect the major industrial areas of San Po Kong, Kwun Tong, Kwai Chung and Tsuen Wan East. In view of the urgent relocation needs for the industries affected, for example, textiles, dyeing and finishing, metal plating, electronics and food industry, will the Government inform this Council:
(a) how the Government would assist in their relocation to enable them to continue their operations in Hong Kong; and
(b) where and when the Government can provide land for their relocation?
SECRETARY FOR PLANNING, ENVIRONMENT AND LANDS: Mr President, Victoria Harbour will be declared a water control zone under the Water Pollution Control Ordinance in phases from late 1994 to 1997. Phase I
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will cover the main industrial areas of Kwun Tong, Tsuen Wan and Kwai Chung. There should not be a general need for factories in these areas to relocate to comply with the Ordinance. The effluent standards included in the Technical Memorandum and issued under the Ordinance in January 1991 were the result of substantial revision after consultation with industry in 1990. In most cases, compliance can be achieved by simply adopting cleaner production practices (which include simple measures such as waste reduction and segregation, chemical substitution and water conservation), replacing obsolete production processes, and in a few cases, building communal treatment facilities.
For the heavy water industries, particularly the bleachers and dyers, the option of relocating to a site with the necessary supporting infrastructure might reduce to some extent the need for measures to be taken to ensure compliance with the Ordinance on their existing sites. With this in view, about 12 hectares of land will be earmarked in the Special Industries Area to be developed in Tuen Mun Area 38. Reclamation and servicing works are scheduled to commence next year for completion in 1998. The site will be reserved for the textile, bleaching, dyeing and finishing industries to serve both new undertakings as well as existing establishments which may wish to move there. The Administration does not intend to initate or organize relocation arrangements, however. It will be for operators to decide whether to relocate themselves.
MR JAMES TIEN: Mr President, for heavy water industries such as bleachers and dyers, the Secretary replied that about 12 hectares of reclaimed land in Tuen Mun Area 38 will be completed by 1998. That time schedule will mean that these relocated industries cannot be in operation until the year 2000 or 2001, assuming in general it takes three to four years to design, build, equip and start up a large-scale factory. Will the Secretary please inform us whether any other piece of land in Hong Kong is available sooner for this purpose, and if not, whether the Government is willing to delay declaring Victoria Harbour a water control zone by 1997 to ensure there is not a time gap for the relocation of these industries?
SECRETARY FOR PLANNING, ENVIRONMENT AND LANDS: Mr President, there are several parts to that question. The first part, Area 38 unfortunately cannot be provided before late 1998. Earlier development of the Special Industries Area is constrained not only by the site formation work but also by the provision of supporting infrastructure including water and sewerage systems and road network, bearing in mind the need to resolve possible objections to the works under the Foreshore and Seabed Reclamation Ordinance and the Roads (Works, Use and Compensation) Ordinance.
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Apart from Tuen Mun Area 38, there are also some 40 hectares of formed but unsold industrial land available in the territory. However, these are not suitable for the heavy water industries since normal industrial use requires only 250-500 cu m of water per hectare per day whereas bleachers and dyers require up to 3 000 cu m per hectare per day, so that the Special Industries Area in Tuen Mun is probably the only option within Hong Kong for the relocation of these industries.
As regards the question of compliance in situ, that is, where industrial operations exist at the moment, I should like to point out that statistics that we have indicate that compliance by upgrading the manufacturing processes is possible. Statistics from the Environmental Protection Department indicate that there has in fact been an increase in the number of bleaching and dyeing factories, as well as food and chemical manufacturers, in established zones with over 90% of them complying with the discharge standards. This indicates that the Water Control Zone Programme has not actually generated a need for industry to relocate. The recent Consultancy on Support to Industry on Environmental Matters also confirms that local industries' relocation out of Hong Kong is largely driven by problems associated with labour shortage, high labour costs and high rents in Hong Kong, rather than by environmental requirements.
As far as delaying the introduction of the water control zones is concerned, I think the answer to this must be that it should be avoided at all costs since the original forecasts were that the water control zones would actually be introduced in 1991, so that industry by and large has already had a lengthy grace period.
MR HENRY TANG: Mr President, I support in principle the cleaning up of our environment. In the last paragraph of his reply, the Secretary mentioned that the Administration will not initiate or organize relocation arrangements for bleachers, dyers and finishers to a Special Industries Area to be developed in Tuen Mun Area 38. I can envisage that there will be some bleachers, dyers and finishers who will not have the financial capabilities to comply with the new effluent standards in situ nor move to Tuen Mun Area 38 due to the very high cost of moving their equipment. How will the Government handle this situation as a large number of workers may have their employment threatened?
SECRETARY FOR PLANNING, ENVIRONMENT AND LANDS: Mr President, I have, I think, said on a number of occasions in this Council that as far as cleaning up the environment goes there are difficult choices for the community to make, and I think the Honourable Member's question has just indicated how difficult some of these choices will be. However, I think that we have already compromised on the timing of the introduction of water control zones long enough. And I think that there may be ways of assisting industry in situations like this, and indeed the recent consultancy, conducted by the
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Director-General of Industry, on measures to assist industries affected by environmental standards and legislation will, I am sure, throw considerable light on questions of this kind.
MR PETER WONG: Mr President, I welcome the firm way the Secretary has resisted any pressure to delay declaring the last water control zones. Will the Secretary confirm that in respect of the Special Industries Area there will be no relaxation of pollution standards for discharges?
SECRETARY FOR PLANNING, ENVIRONMENT AND LANDS: Mr President, I am most happy to confirm.
REV FUNG CHI-WOOD (in Cantonese): Mr President, the Secretary has mentioned at the outset of his reply that Victoria Harbour will be declared a water control zone in phases from 1994 to 1997. But at the meeting of the Environmental Affairs Panel on 1 July this year, the Deputy Secretary for Planning, Environment and Lands Mr COOPER said that Victoria Harbour would be declared a water control zone between 1994 and 1995. Can Mr EASON clarify when, according to the Administration's plan, Victoria Harbour will be declared a water control zone?
SECRETARY FOR PLANNING, ENVIRONMENT AND LANDS: Mr President, as I have said, the last water control zone will be declared in phases. Phase I in late 1994 will include Tsuen Wan East, Kwai Chung and Kwun Tong. Phase II in 1995-96 will cover the remainder of Kowloon. Phase III in 1996-97 will cover the rest of Hong Kong Island.
Objectionable film posters
4. MR ERIC LI asked (in Cantonese): In view of the rampant posting of objectionable film posters which may give young people a wrong idea about violence and sex, will the Government inform this Council:
(a) of the number of cases referred to the Obscene Articles Tribunal for poster classification in the past three years, the number of those posters which had been classified as indecent and obscene; and the number of such cases which were submitted as a result of complaints from the public;
(b) of the number of successful prosecutions in respect of those posters alleged to be in violation of regulations in the past year, and the number of such cases which had been the subject of complaints lodged by the public; and
HONG KONG LEGISLATIVE COUNCIL — 21 July 1993 4719
(c) of the general time span between the lodging of a complaint and the filing of prosecution?
SECRETARY FOR RECREATION AND CULTURE: Mr President, I am confining my answer to film posters only as this is the specific area referred to in the question.
The information sought by the Honourable Eric LI is as follows:
(a) The number of film posters that were submitted to the Obscene Articles Tribunal for classification from January 1991 to June 1993 is 72. Of these, 18 were submitted by the Television Entertainment Licensing Authority, of which five were brought to TELA's notice from public complaints; another five were submitted by the police and 49 by film distributors. One of these 72 posters was classified as obscene, that is Class III, and 56 were classified as indecent, that is Class II. The remainder were classified as Class I. The obscene poster was submitted by a film distributor in relation to a Category III film.
(b) We have taken out five prosecutions against indecent film posters last year. There were three convictions involving two posters, which resulted in one film distributor being fined $20,000, and two theatre operators being fined $10,000 and $20,000 respectively. Another three cases are still pending court hearings. None of these five cases originate from public complaints.
(c) The average time taken between the lodging of a complaint and the filing of a prosecution is roughly about six weeks.
MR ERIC LI (in Cantonese): Mr President, this is a question that would involve the subjective judgement of the community at large. The rampant posting of objectionable film posters is glaring, yet the Administration only received five complaints in the past three years, and the successful prosecution rate as a result was nil. However, the Hong Kong Association for Democracy and People's Livelihood, a district organization, alone received over 60 complaints in three months. Will the Administration inform this Council whether there is any reasonable explanation for such a small number of public complaints? Are there in fact any convenient and effective complaints avenues for the public to express their dissatisfaction to the Administration directly?
SECRETARY FOR RECREATION AND CULTURE: Mr President, I think the avenue for public complaint is generally known. Anyone who would like to lodge a complaint on any film posters or, for that matter, any printed articles can approach the office of TELA. I think the small number of public
HONG KONG LEGISLATIVE COUNCIL — 21 July 1993 4720
complaints that are drawn to TELA's attention in the past years is perhaps mainly due to the feeling the public has that it would not be productive for them to draw the complaints to TELA's attention. But I think we will certainly be doing more publicity to advise the public of their right to draw the complaint to TELA's attention. I would like to emphasize that with or without complaints TELA will continue to maintain vigilance over obscene or indecent film posters appearing in public.
MR ROGER LUK (in Cantonese): Mr President, in order to attract more viewers, some film distributors post indecent posters to promote Class III films irrespective of the fines imposed which they treat them merely as "operating costs". Will the Administration inform this Council whether the maximum fine as a deterrent will be reviewed?
SECRETARY FOR RECREATION AND CULTURE: Mr President, under the existing law the maximum penalty for exhibiting an indecent film poster is $200,000 and 12 months imprisonment, whilst the maximum penalty for exhibiting an obscene film poster is $1 million and imprisonment for three years. I think these penalties are already high enough to maintain a deterrent effect.
MR JAMES TO (in Cantonese): Mr President, the problem of obscene posters is probably one with enforcement rather than penalty. For posters that are likely to offend and which are posted outside banks or shops during weekends and Sundays and where the persons posting them cannot be caught at the scene, may I ask if the Administration will send these posters for classification? Had anyone been arrested for posting posters that were later classified as indecent or obscene? If no, is this a problem with the enforcement procedure?
SECRETARY FOR RECREATION AND CULTURE: Mr President, perhaps it would be relevant for me to give a brief account of the normal enforcement procedure. TELA has a team of inspectors to go round looking at posters that appear in public places. Whenever they notice any posters that are likely to offend they would take pictures of those posters and then refer them to the Obscene Articles Tribunal for classification. On the posters being classified, if they were considered to be either obscene or indecent by the OAT, then the case would be referred to the police for follow-up investigation and prosecution to be taken. So there are clear procedures on which enforcement action is to be taken. Unfortunately, I would like to say that we cannot cover all the public areas 24 hours a day mainly because TELA does not have unlimited resources, and I think this is a question of resources rather than the enforcement procedure itself.
HONG KONG LEGISLATIVE COUNCIL — 21 July 1993 4721
MR HOWARD YOUNG (in Cantonese): Mr President, under the existing system, some film distributors have to send their films to TELA for classification to find out if they are obscene or indecent. The posters in fact come under the films. Can the authorities concerned require the film distributors to submit posters at the same time when films are being submitted for classification? If the posters are not classified as Class III, it can serve as some sort of a protection for the film distributors for they can be assured that no prosecution will be brought against them later.
SECRETARY FOR RECREATION AND CULTURE: Mr President, under the present law there is no power to enable TELA to require film distributors and film owners to submit film posters for pre-censorship. Under existing law the system of submission is a voluntary one. But TELA does write to film distributors regularly to advise them that it would be in their interests to submit film posters at the same time when films are being submitted for classification and censorship, and most of the responsible film distributors do take this advice. But there are always some who feel that because the law does not prescribe compulsory submission they could ignore it.
PRESIDENT: Mr TO, did you have a follow-up question on the basis that your question, you thought, was not answered?
MR JAMES TO (in Cantonese): Mr President, I would like to follow up the answer given by the Secretary just now. He says that there is no problem with the enforcement procedure. If a poster submitted to the Obscene Articles Tribunal by TELA is classified as "indecent" or "obscene", the case will then be referred to the police. In the circumstances, will the Administration expect the police to return to the same spot and wait for someone to put up the poster again? How was enforcement actually carried out? Are there really no ways to arrest the person who posts the poster on the spot, or is there a problem with the whole enforcement procedure?
SECRETARY FOR RECREATION AND CULTURE: Mr President, by the time the case is referred to the police, a copy of the poster will already have been available and passed to the police. So the police would be able to trace the originator or owner of that poster to make investigation and take out prosecution action if warranted.
Pleadings in Chinese
5. MR MARTIN LEE asked: Will the Government inform this Council under what circumstances a court would not accept pleadings in Chinese and what steps would be taken by the Government to rectify such a situation?
HONG KONG LEGISLATIVE COUNCIL — 21 July 1993 4722
ATTORNEY GENERAL: Mr President, section 5 of the Official Languages Ordinance provides that proceedings in the Court of Appeal, the High Court and the District Court shall be conducted in the English Language. There is no definition of the word "proceedings" but it is generally accepted that pleadings are included.
Before the High Court case of Gammon Building Construction Limited v Cho Hing Yiu in September 1988, it had been standard practice for pleadings to be in the English Language. In that case, the judge held that the court had wide powers to permit in appropriate circumstances pleadings to be in Chinese. In delivering his judgment, the judge made it clear that he was not encouraging the departure from the normal use of English. I should also add that in that case once the documents had been filed, they had to be translated into English.
I am not aware of other High Court cases in which pleadings in Chinese have been accepted and it is still the practice for pleadings in the Court of Appeal, the High Court and the District Court to be in English. Any departure from that practice would raise practical difficulties.
Mr President, it would not be appropriate for me to speculate upon the circumstances under which the court would or would not exercise its powers to permit pleadings in the Chinese Language.
The Administration is currently considering in conjunction with the Judiciary how section 5 of the Official Languages Ordinance could be amended to permit greater use of Chinese in the courts. This is a matter requiring careful examination because it raises many practical issues. Questions that need to be addressed include:
(i) would pleadings, indictments and notices need to be in both English and Chinese? Such a requirement, if imposed, may be unnecessarily onerous;
(ii) if the court is to decide which language to use in the proceedings, at what stage of the proceedings should the court make that decision?
(iii) can proceedings be conducted and oral evidence be received in one language whilst documentary evidence be received in another? If not, requiring documentary evidence filed with the court to be translated into the language chosen by the court for the proceedings may pose practical problems, particularly in civil cases in which the documentary evidence can be voluminous;
(iv) should notes of proceedings be required to be kept in the language in which the proceedings are conducted? Should this have a bearing on the language used for stating cases and hearing appeals?
HONG KONG LEGISLATIVE COUNCIL — 21 July 1993 4723
Mr President, getting satisfactory answers to these and other questions would point the way to permitting greater use of Chinese in the courts.
MR MARTIN LEE: Mr President, pending the outcome of the study as to how section 5 of the Official Languages Ordinance could be amended, which may take a long, long time, will the Government inform this Council how litigants in person — who come to legislators by way of complaint very regularly — could file pleadings in Chinese in the Court of Appeal, the High Court or the District Court which do not accept such pleadings and which do not provide any translation service to such litigants? Or should we refer them all to the Attorney General?
ATTORNEY GENERAL: Mr President, as I made clear in my answer, it is a matter for the discretion of the courts to decide whether or not to permit pleadings to be in Chinese. Mr LEE has adverted to a real practical problem and one that we, in the Administration, are very conscious of, and I would like to think that the solution would not be a very, very long time in coming. Could I add, Mr President, that there is currently a working party in the Judiciary looking at the greater use of Chinese in the District Court including the question of whether pleadings should be in Chinese. That working party is due shortly to report to the Chief Justice. Mr LEE has raised a valid concern, one that concerns all of us in the Administration concerned with the administration of justice and practitioners, and I will certainly convey his concerns to the Chief Justice.
MR SIMON IP: Mr President, the Attorney General's reply says that the Administration is discussing with the Judiciary the question of the use of Chinese in the courts. Does the Administration have any long-term policy objectives in relation to the use of Chinese in the courts? If so, what are they and how will they be implemented?
ATTORNEY GENERAL: Mr President, the Administration is fully alive to the need to promote a greater use of Chinese in all our courts. It is a vast subject requiring not only consideration of many practical issues but raising also significant questions concerning resources, human resources as well as other resources. But I repeat that the Administration is fully alive to the need to promote the greater use of Chinese in the courts and we are embarked on, among other things, the consideration with the Judiciary of how we should be looking to amend section 5 of the Official Languages Ordinance.
HONG KONG LEGISLATIVE COUNCIL — 21 July 1993 4724
MS ANNA WU: Mr President, regarding section 5 of the Official Languages Ordinance, can the Attorney General explain if he has reviewed that section as to whether it is in compliance with the Bill of Rights on any grounds stated in the Bill including non discrimination and due process?
ATTORNEY GENERAL: Mr President, I do not want to be drawn into questions of whether or not a particular section of our law is or is not in conformity with the Bill of Rights. I repeat that we are considering with the Judiciary ways of amending section 5 to promote greater use of Chinese in courts. I have heard the concerns that have underlain the questions here this afternoon and repeat that I would certainly not wish to see this process being drawn out for a very long time.
MR MAN SAI-CHEONG (in Cantonese): Mr President, the Basic Law provides that in addition to the Chinese language, English may also be used by the judiciary of the future Hong Kong Special Administrative Region. Since the Basic Law will be effective in less than four years, does the Administration not agree that it is high time that the relevant policy was formulated to accept litigation papers in Chinese in courts? If it is not possible to do it now, could the Administration inform this Council when it can start doing so?
ATTORNEY GENERAL: Mr President, I repeat that I have heard the concerns that have lain behind the questions this afternoon, questions all thus far from practitioners. I repeat that we are embarked on consideration of section 5 of the Official Languages Ordinance and I would not wish that to be a drawn out process.
MISS EMILY LAU: Mr President, may I ask a question as a non-practitioner? Given the slow pace of the development in the use of Chinese in the courts, can I ask the Attorney General to predict, to look into his crystal ball, in four years' time when Hong Kong becomes the SAR of China, whether we will be able to use the Chinese language in courts especially in the High Court?
ATTORNEY GENERAL: Mr President, we are moving steadily in that direction.
MR JAMES TO (in Cantonese): Mr President, if I ask the Attorney General a question on the Court of Appeal, the High Court or the District Court, I believe he will just repeat the answer he has given a while ago. So my question is: apart from the courts mentioned, is the use of Chinese allowed, especially in filing pleadings in courts such as the Lands Tribunal and the tribunal which I am most
HONG KONG LEGISLATIVE COUNCIL — 21 July 1993 4725
concerned about, that is the tribunal to be established in future to handle disputes arising from the management of buildings?
ATTORNEY GENERAL: At present, Mr President, under section 5 of the Official Languages Ordinance either of the official languages, that is English or Chinese, may be used as the court thinks fit in the Magistrate's Court, Coroner's enquiries, the Juvenile Tribunal, the Labour Tribunal, the Small Claims Tribunal and the Immigration Tribunal. In the Small Claims Tribunal and the Labour Tribunal, Chinese is habitually used. It is used before special magistrates when that is appropriate having regard to the parties. Magistrates are increasingly using Chinese in their courts.
MR JAMES TO: Mr President, I was asking about the Lands Tribunal.
ATTORNEY GENERAL: Mr President, that is, I think, not a tribunal listed in section 5 of the Official Languages Ordinance. But could I check that and let Mr TO have a written reply? (Annex III)
Stay of proceedings for alleged delay
6. DR HUANG CHEN-YA asked: In March this year, the Supreme Court ordered a permanent stay of proceedings against a defendant on grounds of delays in the investigation and the preparation of committal proceedings (High Court Criminal Case 122 of 1992). Furthermore, the Court accepted the defendant's claim that he was suffering from serious deterioration of his intellectual functions. Will the Government inform this Council:
(a) why there were delays in handling this case by the department concerned and whether the delays were totally justified; if not, who should be held responsible;
(b) with regard to the defendant's claim of serious intellectual deterioration, whether the expert witnesses called by the Crown were adequately briefed before testifying on the medical condition of the defendant and whether the medical evidence produced by the defendant's experts were thoroughly examined;
(c) what procedures exist within the department concerned to prepare for hearings of complex cases, including the commissioning of expert witnesses, the collection and examination of expert evidence and whether the necessary expertise is available to handle such cases; and
HONG KONG LEGISLATIVE COUNCIL — 21 July 1993 4726
(d) what steps will be taken to strengthen the capability of the department in the handling of similar cases in the future, in order to prevent stays of proceedings being ordered on grounds of delays and lack of expert evidence?
ATTORNEY GENERAL: Mr President, before answering the specific questions, it may be helpful to Members if I were to set out the background to the case to which the Honourable Member refers. However, I must make it clear that charges have been laid against other defendants and the prosecution is continuing against them. Therefore, I am constrained as to what I can say about the case.
The defendant in the case referred to was charged with 13 counts of conspiracy to commit offences against the Theft Ordinance, and one count of conspiracy to defraud the Commissioner of Banking. These charges, which involved a bank, covered the period between December 1983 and November 1985.
In early 1985 problems in the bank came to the attention of the then Commissioner of Banking, who conducted an investigation into irregularities into some of the bank's transactions. The Commissioner referred the case to my Chambers in January 1986. The Independent Commission Against Corruption commenced an investigation that month. However, of paramount and overriding importance was the interests of depositors and shareholders, who would suffer if it became known prematurely that there was an investigation in progress. Thus the investigation was covert and, of necessity, slower than if it had been undertaken openly.
Charges were eventually laid against the defendant in October 1988. A return date was fixed for a committal hearing in January 1990. However, the defendant then made various applications for judicial review in the High Court, which led to appeals to the Court of Appeal and thence to the Privy Council. As a result of the defendant's applications and appeals (all of which were ultimately unsuccessful), the committal for trial was delayed for over two years until April 1992. An indictment was filed later that month and the trial was eventually set for April this year 1993.
In January 1993 the defendant made an application before the trial judge for a stay of proceedings on the basis that a trial would constitute an abuse of process and that there had been a deprivation of his right to a trial without undue delay under the Bill of Rights. The defendant claimed that during the delay he had developed dementia, and as a result he would not be able to make full answer and defence to the charges. This application was vigorously opposed by the prosecution.
HONG KONG LEGISLATIVE COUNCIL — 21 July 1993 4727 I turn now to the specific questions raised, the answers being as follows: In answer to paragraph,
(a) The judge found that there were delays from the time when the irregularities in the bank's transactions came to the attention of the Commissioner of Banking until the date when the trial was scheduled to begin, including the period between the bank's position first coming to the attention of the Commissioner of Banking in early 1985 and his reporting of the possible criminal aspects his subsequent investigation had uncovered to my Chambers in January 1986; a delay due to the slow progress of the initial part of the investigation; and a delay caused by the unsuccessful attempt to extradite a co-defendant. The judge found that the defendant's mental condition had severely deteriorated over the years so that the defendant could not have a fair trial.
Mr President, it is important to bear in mind that the judge ordered a stay of proceedings after looking at the whole case in the round, and not on the ground of delay alone.
As to whether the delays were justified, that was the question at issue before the judge and on which he has made his decision after hearing evidence and arguments from both sides. It would not be proper for me to comment on the judge's decision and his reasons for it.
(b) The expert medical witnesses called by the Crown were fully knowledgeable of the case. The prosecution had a number of experts who examined the defendant before the trial to assess his physical and mental condition. While preparing for the trial, they had full access to the reports of the defendant's medical experts. In the hearing of the defendant's stay of proceedings application, the Crown's experts were examined and cross-examined; they gave their evidence in a professional, objective and competent manner. The defendant's experts were examined and vigorously cross-examined. There was a full airing of the evidence relating to the defendant's condition.
(c) The Commercial Crimes Unit of the Prosecutions Division of my Chambers deals with complex commercial crime cases. In appropriate cases, experts are retained to assist the investigation and prosecution of those cases. Often these experts include experienced forensic accountants. When medical advice is required, the Hospital Authority is asked to recommend suitable experts, either in Hong Kong or overseas. In summary, suitable experts are available to the prosecution and are used when needed.
HONG KONG LEGISLATIVE COUNCIL — 21 July 1993 4728
(d) As I said earlier, the stay of proceedings was ordered in respect of the defendant after the judge had considered the whole case in the round, and not on the ground of delay alone. Nowhere in his judgment has the judge referred to any lack of expert medical evidence called by the Crown.
The Commercial Crimes Unit in the Prosecutions Division was established in response to a need to have experienced and competent lawyers dedicated to prosecute complex commercial cases. The Unit is staffed by lawyers with the necessary experience and competence, and I am satisfied that it is well equipped to deal with major cases that come within its area of responsibility. The Director of Public Prosecutions and I are fully alive to the need to ensure that cases are dealt with expeditiously, to avoid the risk of a prosecution being halted by reason of delay.
DR HUANG CHEN-YA (in Cantonese): Mr President, the defence claimed on the strength of the brain scan and psychological tests conducted that the defendant had developed dementia which was so serious that he could not attend court hearings. However, different conclusions can be drawn from these results, and the tests conducted by the defence are self-contradictory in many respects too. Will the Attorney General inform this Council why the Administration did not call a radiologist with knowledge in brain scan or a neurology expert who is capable of giving advice on different forms of dementia to appear as witness in court? Why did the Administration not arrange its own tests and furthermore why was it incapable of challenging the defence? Does the Administration simply not know how to call such experts or is it deliberate that it got the wrong experts so as to lose the case? Mr President, if someone gets Michael CHANG to play a game of football, he is bound to lose even though he is a sports star?
PRESIDENT: I think the first point to make is that under Standing Orders no question shall reflect on the decision of a court of law, that point having been made, as the Attorney General has already indicated in his reply.
ATTORNEY GENERAL: Mr President, the prosecution called a number of expert medical witnesses, among whom is the medical superintendent of the Castle Peak Hospital who is a psychiatrist, consultant neurosurgeon and senior clinical psychologist. The prosecution also had taken advice from two medical experts in the United Kingdom, one a heart specialist and the other a kidney specialist. In the event, the prosecution did not call these latter two experts because at the hearing the defendant's physical condition was not ultimately an issue. The prosecution had, I am perfectly satisfied, a full range of medical experts and they had full access, as I have said, to the defendant's own medical
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reports. There was a full hearing before the judge lasting some 20 days and it is not, I think, for me to comment further on the judge's finding.
MR SIMON IP: Mr President, since the judge found that there was delay — I presume unjustified delay — has the Administration conducted an enquiry to ascertain which government officials were responsible and whether any disciplinary or other action has been taken against them?
ATTORNEY GENERAL: Mr President, I set out quite extensively the background to explain the chronology and the sequence of events to show why delay occurred. The decisions that were taken at the time were taken properly in the proper execution of duties, and I do not believe that any question of disciplinary proceedings arises.
Written answers to questions
Prevocational schools
7. MR TIK CHI-YUEN asked (in Chinese): Will the Government inform this Council:
(a) whether there are plans for an overall review of the courses and facilities in prevocational schools to meet the actual needs of our society;
(b) the reason for maintaining the ratio of graduate teachers to non-graduate teachers at 1:1 for prevocational schools, when a ratio of 7:3 has generally been adopted for secondary grammar schools; and
(c) of any specific measures taken to resolve the problem of floating classes in prevocational schools as soon as possible?
SECRETARY FOR EDUCATION AND MANPOWER: Mr President,
(a) The Education Department regularly reviews and updates the courses offered in different types of schools, including prevocational schools, to ensure that they can meet the changing needs of our society. Since 1986, the syllabuses of seven practical and technical subjects offered in prevocational schools have been revised, and four new subject syllabuses have been developed. Currently, three subject syllabuses are being reviewed.
HONG KONG LEGISLATIVE COUNCIL — 21 July 1993 4730
In 1991-92, the Curriculum Development Council reviewed the curricula at all levels from kindergarten to the sixth form and produced draft guidelines on the curricula for different types of schools, including prevocational schools, for public consultation. No suggestions were received for changing the existing proportion of practical and technical content in the curriculum offered by prevocational schools.
As regards facilities, prevocational schools are provided with a wide range of special rooms and workshops to meet the needs of their practice-oriented curriculum. In order to ensure that facilities in older schools are, as far as possible, upgraded to the latest standard of provision, as recommended in ECR5, we shall embark in 1994-95 (subject to resources being available) on the first phase of a programme to upgrade older schools; 12 prevocational schools will be included in this first phase.
In view of the above developments, there is no plan for an overall review of the courses and facilities in prevocational schools.
(b) The 1:1 ratio of graduate teachers to non-graduate teachers was proposed in June 1987 by the Working Party on the Restructuring of Prevocational Schools which comprised representatives of the Hong Kong Prevocational Schools Council and staff of the Education Department. The calculation was based on the number of periods in the timetable allocated to subjects taught by non-graduate technical teachers. The proposal was supported by all council members and subsequently approved by the Government.
The Education Department is now reviewing the staffing structure in prevocational schools in the light of the expansion of senior secondary and sixth form places in these schools.
(c) Because of the nature of their curriculum, prevocational schools have more special rooms/workshops than grammar schools, and their students spend much of the school day in these rooms. The operation of floating classes therefore makes efficient use of school space with no loss of educational effectiveness.
Weak water pressure at New Territories villages
8. MR WONG WAI-YIN asked (in Chinese): Will the Government inform this Council of the villages in the New Territories which are experiencing the problem of inadequate hydraulic pressure in their tap water supply and the specific measures being taken to improve such situation?
HONG KONG LEGISLATIVE COUNCIL — 21 July 1993 4731
SECRETARY FOR WORKS: Mr President, at present, a total of some 624 villages have been provided with mains water supply. Over the last six months, complaints about weak hydraulic pressure have been received from 17 New Territories villages, details are summarized in the Appendix. The majority of the 17 villages where weak water pressure has been reported are located at the extremities and the problem is primarily caused by rapid development over the recent years resulting in the existing supply systems being overloaded.
Remedial measures in the form of replacing or duplicating the existing water mains, or switching to a different supply source as appropriate are being or will be carried out to improve the situation.
Appendix
Weak water pressure in NT villages
Nos. of written
District
Villages complaining about weak water pressure
complaints received in the past 6 months
Tsuen Wan and Tuen Mun
1. Sham Tseng San Tsuen 41 2. Sheung Kwai Chung Tsuen 1
Yuen Long 3. Tai Kong Po Tsuen, Kam Tin 2 4. Pak Wai Tsuen, Kam Tin 1
Pat Heung:
5. Yuen Kong San Tsuen a few 6. Yuen Kong Tsuen
7. Ma On Kong
8. Ho Pui
9. Leung Uk Tsuen
10. Wong Toi Shan San Tsuen
11. Lui Kung Tin, Shek Kong
12. Sheung Tsuen, Shek Kong
Tai Po 13. Tai Wo San Wai Tsuen a few
Sha Tin 14. Kwei Tei New Village (part) a few 15. Heung Fan Liu Tsuen a few
Sai Kung 16. Lueng Mei Village (part) 1 17. Luk Mei Village 1
HONG KONG LEGISLATIVE COUNCIL — 21 July 1993 4732 Complaints against Correctional Services Department
9. MR JAMES TO asked (in Chinese): Will the Government inform this Council of the number of complaints against the Correctional Services Department in each of the past five years, including the following details:
(a) the nature of the complaints; and
(b) the results of the investigation into the complaints (for example, the number of cases substantiated which resulted in disciplinary action or conviction, and the number of cases dismissed due to lack of sufficient evidence or other reasons)?
SECRETARY FOR SECURITY: Mr President, the number of complaints received against the Correctional Services Department in each of the past five years was 145 in 1988, 190 in 1989, 197 in 1990, 167 in 1991 and 166 in 1992.
A breakdown of the complaints by type, and the investigation results are given at Appendix A. At Appendix B is a summary of the action taken in the substantiated cases.
Appendix A
Classification of complaints received and results of
investigation during the years 1988-1992
1988 1989 1990 1991 1992
Use of unnecessary force 66(6) 60(5) 75(7) 58(4) 42(4) Victimization/threat 8 29(1) 20(2) 9 19(2) Maltreatment 16 10 8(1) 7(1) 2(1) Mismanagement 15(2) 28(1) 21 23(1) 28(2) Mishandling of staff 10 14(1) 36 21 16(2) Medical treatment 0 3 3 5 2(1) Misconduct of staff 16(3) 25(3) 20(2) 21(2) 36(1) Disciplinary action 2 10 9 14 11
Use of abusive language 11 11(1) 4 9 7
Others 1 0 1 0 3 --------- --------- --------- -------- ---------- Total: 145(13) 190(12) 197(12) 167(8) 166(14)
Note: Figure in ( ) denote cases found substantiated after investigation.
HONG KONG LEGISLATIVE COUNCIL — 21 July 1993 4733 Appendix B
Outcome of disciplinary proceedings against officers in
substantiated cases for the years 1988-1992
(a) Disciplinary action taken against staff in substantiated cases for the years 1988-1992 1988 1989 1990 1991 1992
Warning 7 6 7 6 10
Disciplinary proceedings 6 6 5 2 4 --- --- --- --- ---
Total 13 12 12 8 14
(b) Result of disciplinary proceedings taken against staff in substantiated cases from 1988-1992 1988 1989 1990 1991 1992
Severe reprimand 1 1 3 0 0 Fine 0 0 0 0 0 Severe reprimand and fine 1 1 1 2 1 Case dismissed 4 4 1 0 1 Case not completed 0 0 0 0 1*
Outcome of hearing pending 0 0 0 0 1 * Staff resigned before conclusion of the contemplated disciplinary proceedings.
Chinese Government's understanding of Legislative Council operation
10. DR CONRAD LAM asked (in Chinese): In view of recent criticisms which the Chinese Ministry of Foreign Affairs levelled at the British Government alleging its connivance in allowing the Legislative Council Panel on Constitutional Development to impede the progress of the Sino-British talks by discussing the Governor's political reform proposals, will the Government inform this Council what specific and effective measures can be taken to enhance the Chinese Government's understanding of the operation of the Legislative Council and the political system in Hong Kong so as to promote and improve the relations among China, Britain and Hong Kong?
HONG KONG LEGISLATIVE COUNCIL — 21 July 1993 4734
SECRETARY FOR CONSTITUTIONAL AFFAIRS: Mr President, the Government has and would continue to take every available opportunity, through both formal and informal channels, to explain to Chinese government officials the operation of the Legislative Council and the political system in Hong Kong.
Government fees and charges
11. MR TAM YIU-CHUNG asked (in Chinese): Will the Government inform this Council:
(a) which fees and charges in respect of government and public services have been increased since 1 April this year; and
(b) which fees and charges in respect of government and public services are about to be increased?
SECRETARY FOR THE TREASURY: Mr President,
(a) A list of government fees and charges which have been increased since 1 April 1993 is at Appendix I.
(b) There are more than 5 200 fees currently charged by the Government. These fees are normally set at levels sufficient to cover the costs of the services provided. They are therefore subject to annual revision to ensure that their real value is maintained. Introduction of revised fees is carefully phased during the course of the year in order to reduce the impact on the public.
Appendix I
Government fees and charges which
have been increased since 1 April 1993
Fees charged by
department Description Implementation date
Agriculture and Fisheries Department
Buildings and Lands Department
Rental of temporary
wholesale market
Copying of land records and miscellaneous fees
April 1993
April to June 1993
Civil Engineering Department
Laboratory testing fees June 1993
HONG KONG LEGISLATIVE COUNCIL — 21 July 1993 4735
Fees charged by
department Description Implementation date
Census and Statistics Department
Fees for providing trade statistics and miscellaneous services
June 1993
Education Department Hiring charges for accommodation in schools
April 1993
City and New Territories Administration
Hiring charges for community halls and facilities
July 1993
Immigration Department Re-entry permit, and miscellaneous fees
Industry Department Fees for Hong Kong Laboratory Accreditation
Scheme
Trade Department Textile licences and miscellaneous fees
Contracting out of refuse collection services
June 1993 April 1993
June 1993
12. MR MARTIN BARROW asked: Will the Government inform this Council whether it will consider contracting out garbage and related waste collection and, if not, the reasons?
SECRETARY FOR PLANNING, ENVIRONMENT AND LANDS: Mr President, the collection of refuse is the statutory responsibility of the Regional and Urban Councils.
On 1 May this year, the Regional Council started a pilot scheme in the Tai Po district on the contracting out of waste collection services. The scheme will be evaluated at the end of this year to consider whether it should be extended to other districts. The collection of animal carcasses has been contracted out since July 1991.
The Urban Council is currently studying the feasibility of contracting out refuse collection.
HONG KONG LEGISLATIVE COUNCIL — 21 July 1993 4736 Immigration anchorage off Tuen Mun
13. MR HOWARD YOUNG asked: Will the Government inform this Council of:
(a) the progress of the plan to establish an immigration anchorage off Tuen Mun for small craft;
(b) the resources required to implement the plan; and
(c) the expected reduction in the volume of shipping in the Ma Wan Channel when the anchorage comes into operation?
SECRETARY FOR SECURITY: Mr President,
(a) Plans to establish an immigration anchorage off Tuen Mun are now far advanced. We hope to be able to provide the resources for it to come into operation next year.
(b) The resources required are about $1 million capital expenditure, and $4 million for yearly recurrent expenditure.
(c) We estimate that there will be a 39% reduction in vessel movements in the Ma Wan Channel when the anchorage comes into operation. This approximately equals 220 vessel movements through the channel.
Summer time system
14. MRS PEGGY LAM asked (in Chinese): Will the Government inform this Council:
(a) of the date when Hong Kong ceased to enforce summer time and the reasons therefor; and
(b) as China is still practising summer time, whether the system will be resumed in the territory to facilitate contacts between China and Hong Kong and to save energy; if not, what the reasons are?
SECRETARY FOR HOME AFFAIRS: Mr President, the Hong Kong Time Service has since 1972 been based on Co-ordinated Universal Time which forms the basis for civil time and time signals all over the world. However, common usage and Hong Kong Ordinance still refer to Greenwich Mean Time (GMT). Hong Kong standard time is GMT+8.
HONG KONG LEGISLATIVE COUNCIL — 21 July 1993 4737
The system of summer time, that is, adopting GMT+9 in summer was first introduced in the 1940s. Since then lobbies campaigning for the abolition of summer time had been formed from time to time. The main arguments put forward were that:
(a) it was troublesome to adjust clocks twice per year;
(b) some people preferred the extra hour of daylight in the morning; (c) there would be some difficulties in adjusting airline schedules; and (d) population living in crowded conditions would prefer earlier sunset.
In January 1977, the Executive Council decided that GMT+8 instead of GMT+9 should be adopted in the summer commencing from April 1977 for a trial period to give the public direct experience of it. Towards the end of the summer, the Government carried out a review to find out which time system the public preferred. This showed that the majority preferred GMT+8 throughout the year. A resolution was then passed in the Legislative Council in December 1977 setting GMT+8 as the standard Hong Kong time throughout the year.
GMT+9 was briefly introduced again from May to October 1979 during the oil crisis.
Following China's introduction of summer time in April 1986 as a daylight saving measure, a four-month consultation exercise was conducted in 1988 to see if the public had changed its mind on this matter. Views were widely sought from district boards, government departments, other interested parties and members of the public. Again, the results showed a clear majority for the retention of GMT+8 throughout the year. A decision was, therefore, taken to maintain the status quo.
Since then, there has been no public demand to review this practice.
Qualifications of auditors for listed companies
15. MR CHIM PUI-CHUNG asked (in Chinese): As certain local and small accounting firms are considered by the Securities and Futures Commission (SFC) and the Stock Exchange of Hong Kong (SEHK) as unsuitable or ineligible to act as auditors for listed companies, will the Government inform this Council:
(a) how the SFC and SEHK would appraise the eligibility of accountants and identify those who are qualified to act as auditors for listed companies;
HONG KONG LEGISLATIVE COUNCIL — 21 July 1993 4738
(b) how many accounting firms have been appraised as unsuitable for the task in the past two years and what the reasons are; and
(c) whether there is any mechanism to ensure that the relevant qualifications are assessed in a fair, reasonable and unbiased manner?
SECRETARY FOR FINANCIAL SERVICES: Mr President, provisions governing the qualifications of auditors are set out under section 140 of the Companies Ordinance. The Stock Exchange of Hong Kong Limited (SEHK) does not have any additional provisions under the Listing Rules in respect of the qualifications of auditors of listed companies incorporated in Hong Kong. For listed companies incorporated outside Hong Kong, the Listing Rules provide, inter alia, that the annual accounts must be audited by a person, firm or company either qualified under the Professional Accountants Ordinance or acceptable to the Exchange as having an international name and reputation and which is a member of a recognized body of accountants.
Section 29 of the Professional Accountants Ordinance provides that a professional accountant holding a practising certificate shall be deemed to be eligible for appointment as an auditor of a company within the meaning of the Companies Ordinance or as an auditor of accounts for the purpose of any other Ordinance.
The Government is not aware of any instances in the past two years in which any small and local accounting firms have been considered unsuitable to act as auditors for listed companies. Furthermore, the Hong Kong Society of Accountants has not received any expression of views from the Securities and Futures Commission (SFC) or SEHK concerning its member accountants, nor has it received any complaints from its member accountants for having been so considered by the SFC or SEHK.
The eligibility of accountants to act as auditors for listed companies is provided for under the Companies Ordinance and the Listing Rules. There is no further mechanism of assessing the qualifications of such accountants.
Safety facilities in private homes for the aged
16. DR LEONG CHE-HUNG asked: In view of the fire which broke out in a private home for the aged on 24 June 1993, killing two elderly persons and causing a number of casualties, will the Administration inform this Council whether, and if so what, measures will be taken expeditiously to enhance the safety facilities in these homes prior to the enactment of the legislation for the control of their operation?
HONG KONG LEGISLATIVE COUNCIL — 21 July 1993 4739
SECRETARY FOR HEALTH AND WELFARE: Mr President, the incident quoted in the question was alleged to be a case of arson, now under investigation by the police. It was not, as stated in the question, a case of "fire breaking out". However, the Administration has always been alert to the need for fire safety in residential homes accommodating people with poor mobility.
In May 1993, the Social Welfare Department issued to all operators of residential homes including private care homes for elderly persons a letter reminding them to observe fire prevention measures. This will be re-issued from time to time. Subsequent to the fire bomb attack on a private home on 24 June 1993, staff of the Social Welfare Department have paid special visits to private homes to urge the operators to attend to, among other things, safety measures. So far, about 90% of 392 private homes have been visited. From the preliminary survey, currently carried out, and subsequent visits, the Fire Services Department will advise operators on enhanced fire safety measures, as appropriate.
Environmental impact assessment for construction works on north Lantau 17. MR PETER WONG asked: Will the Administration inform this Council:
(a) whether a research project will be commissioned to assess the environmental impact of construction works on north Lantau on marine ecology, with particular reference to the Chinese white dolphins; and
(b) pending the outcome of any such assessment, whether consideration will be given to introduce any interim measures to protect this particular species from possible damage?
SECRETARY FOR PLANNING, ENVIRONMENT AND LANDS: Mr President, the potential environmental impact on marine ecology of the new airport construction works was assessed in the New Airport Master Plan Environmental Impact Assessment (EIA). This EIA was completed in December 1991 and recommended off-site ecological mitigation measures, such as mangrove replanting and transplanting seagrass.
A supplementary EIA focusing on the proposed removal of the Sha Lo Wan headland has also been carried out which, with particular regard to the Chinese white dolphin, recommended the following mitigation measures:
(a) pressure wave transmissions from blasting should be minimized by containing explosions in the drill holes;
HONG KONG LEGISLATIVE COUNCIL — 21 July 1993 4740
(b) small non-lethal "seal bombs" should be used to drive marine fauna from the construction area prior to blasting; and
(c) blasting operations should cease if dolphins or other mammal species are observed in the area.
Those responsible for other construction works on north Lantau are also required to conduct EIA studies; and any additional mitigation measures recommended by these studies will be implemented as far as practicable. In this connexion, a consultancy study arising from the proposed submarine outfall at Siu Ho Wan at north Lantau has led to a focused study on the potential impact of the outfall on the Chinese white dolphin. The study report recognized that, while the animal is believed to frequent the Pearl River Delta where suspended solids are no less than those recorded off north Lantau, only limited information is available on the particular species. No firm conclusions could therefore be drawn concerning the likely effect of the sewage outfall on the mammal. As a result, a three-year research project to monitor the presence of the Chinese white dolphin and its reaction to construction works in north Lantau more thoroughly is being considered.
Taxi drivers' malpractices
18. MR WONG WAI-YIN asked (in Chinese): Will the Government inform this Council whether it is aware that in Tsim Sha Tsui as well as the hotel areas in Central and Wan Chai, some taxi drivers are reported to be selecting passengers after 11 pm; if so, how serious the situation is and what measures are in place to stop the taxi drivers from doing so?
SECRETARY FOR TRANSPORT: Mr President, the Government is aware of public concern over malpractices committed by taxi drivers, including their refusal to be hired and their soliciting of passengers.
Under the Road Traffic (Public Service Vehicles) Regulations (Cap. 374), it is an offence for a taxi driver to solicit passengers or to refuse to be hired. These offences carry a maximum fine of $5,000 and imprisonment of six months.
Statistics kept by the Transport Complaints Unit to whom most complaints on public transport are directed showed that in 1992 a total of 549 complaints were made against taxi drivers for refusing hire or soliciting passengers. Of these, 138 (about 25%) were related to taxis operating in Tsim Sha Tsui, Central and Wan Chai. For the first six months of 1993, the corresponding figures were 301 and 71 (about 24%) respectively. A further breakdown of these statistics by time of the day is not available.
HONG KONG LEGISLATIVE COUNCIL — 21 July 1993 4741
Complaints about taxi malpractices are vigorously acted upon by the police. In 1992, a total of 321 prosecutions were instituted against taxi drivers for refusing to be hired and/or for soliciting passengers. In the first six months of 1993, the number of prosecutions for these two offences was 433 representing a 130% increase over the last six months of 1992. In addition to intensifying prosecutions, plainclothes police patrols are being deployed, especially in areas where such offences are known to be frequently committed as an added deterrent. The Transport Department, moreover, has been urging taxi associations not to engage in such malpractices at the department's regular conferences with the trade. The department will also be mounting greater publicity to encourage members of the public to report taxi malpractices.
Tin Shui Wai secondary school places
19. DR TANG SIU-TONG asked (in Chinese): Many secondary school students who have recently moved to Tin Shui Wai in Yuen Long are unable to find secondary school places in the district. They have to make long journeys everyday to and from their schools outside the district. Such journeys are tiring, costly and time-consuming. Will the Government inform this Council:
(a) whether there is a shortage of secondary school places in the district to accommodate these students; if so, whether there are plans to meet the shortfall in school places in the district; and
(b) if not, whether there are vacancies in secondary schools that remain unfilled and why there are such vacancies; what kind of assistance can be provided to enable students to find school places in the district as soon as possible?
SECRETARY FOR EDUCATION AND MANPOWER: Mr President,
(a) In Yuen Long district, where Tin Shui Wai is situated, there are already sufficient secondary school places to accommodate students who have recently moved to the district.
(b) Vacancies arise in schools as a result of students moving house, changing schools or emigrating. The Education Department is aware that a small number of secondary school students who have moved to Tin Shui Wai towards the end of the school year have not been able to transfer immediately to a school in the district, because of practical difficulties in transferring students towards the end of the school year.
HONG KONG LEGISLATIVE COUNCIL — 21 July 1993 4742
Parents of students who wish to seek admission to schools in Yuen Long can approach the District Education Office. The office provides detailed information on schools (for example, their facilities and the curriculum offered) in the district to help parents select schools which they would like their children to enter. They can then apply direct to the schools of their choice. In the case of students who have recently moved to Tin Shui Wai, and who have difficulty in finding a school place in Yuen Long, the office can help to arrange interviews for them with schools in the district with a view to securing a transfer by September.
Language streaming policy in secondary schools
20. MR SIMON IP asked: In order to cater for the language streaming policy in secondary schools in September 1994 and its effect on teachers who use English Language as the medium of instruction, will the Administration inform this Council whether it will:
(a) provide training courses for serving teachers to improve their proficiency in English to enable them to teach effectively; and
(b) stipulate minimum English language standard as an entry requirement for new recruits?
SECRETARY FOR EDUCATION AND MANPOWER: Mr President,
(a) The Institute of Language in Education is planning a series of courses for secondary school teachers who are using or will use English as the medium of instruction. The 16-week full-time course will aim to improve teachers' proficiency in English language, and their skills in using English to teach other subjects.
Eighty-one teachers will attend the first such course scheduled for February 1994. Thereafter, two courses will be organized each academic year, with a total target intake of 200 teachers a year.
(b) The Education Regulations already stipulate minimum English Language requirements for teachers, as I stated in my reply to a question on 14 July 1993. Whether more stringent language requirements should be stipulated for new teachers is one of the issues on which advice from the Advisory Committee on Teacher Education and Qualifications is awaited.
HONG KONG LEGISLATIVE COUNCIL — 21 July 1993 4743 Statement
Nationality issues concerning Hong Kong
CHIEF SECRETARY: Mr President, I should like to make a statement on the recent parliamentary debates on nationality matters affecting Hong Kong.
In the last two weeks, Parliament has discussed three nationality matters relating to Hong Kong:
- the Hong Kong (British Nationality) Amendment Order 1993;
- the British Nationality (Hong Kong) (Selection Scheme) (Amendment) Order 1993; and
- the nationality arrangements for non-Chinese ethnic minorities in Hong Kong.
BN(O) Order
The first Order concerned the BN(O) phased registration scheme. Members of this Council had expressed strong concern on behalf of the community about the early phasing out of the BDTC passport. I am pleased that the Home Secretary has taken account of this concern, and the persuasive representations of Members of this Council, by deciding to make what is, I think, a unique exception to longstanding and worldwide British passport practice of not allowing people to hold two passports by allowing Hong Kong BDTC passports to be held in addition to BN(O) passports. BDTC passports will, of course, expire on 30 June 1997 as stipulated under the Joint Declaration.
The draft Hong Kong (British Nationality) (Amendment) Order 1993 was put to the House of Commons on 13 July and the House of Lords on 15 July. Both Houses approved this Order. The phased BN(O) application programme is now underway. The first cut-off date for registration, for 22-26 year olds, will come at the end of October this year.
BN(S) Order
Parliament has also endorsed the draft British Nationality (Hong Kong) (Selection Scheme) (Amendment) Order 1993. This Order provides for applications for British citizenship to be made in a second tranche under the British Nationality Scheme, beginning at the start of the next year.
This Order amends the method for allocating the quota among groups, and provides the Governor with flexibility to reallocate the quota if any particular group is undersubscribed. It also makes some minor amendments to the points system. A copy of the Hansard of the debates on these two Orders will be made available to Members of this Council as soon as possible.
HONG KONG LEGISLATIVE COUNCIL — 21 July 1993 4744
In the last two weeks, both the House of Commons and the House of Lords have also debated whether full British citizenship should be granted to members of the ethnic minorities in Hong Kong. The strong support of this Council and of the Hong Kong Government for the case of the ethnic minorities was cited specifically and repeatedly during the course of these debates. It is, I believe, well known in London that this issue is a matter of widespread concern in Hong Kong, a concern that is shared and endorsed by the Governor and the Administration, by the Executive Council and by Members of this Council.
In replying to these debates, Ministers emphasized that members of the ethnic minorities would not in fact become stateless as their British nationality would continue through BN(O) status or through status as BOCs. And their right of abode in Hong Kong was guaranteed under the Joint Declaration. Ministers did not therefore agree that members of the ethnic minorities should be provided with full British citizenship. Ministers did not consider that more could or should be done. But Ministers did take the opportunity to repeat that if, against all expectations, members of the non-Chinese ethnic minorities in Hong Kong were to come under pressure to leave Hong Kong and had nowhere else to go, the Government of the day would be expected to consider, with considerable and particular sympathy, their case for admission to the United Kingdom.
However, Members will no doubt know that the House of Lords was not in fact satisfied by these assurances provided by Ministers and voted in favour of a motion calling upon Her Majesty's Government to give "full nationality to members of the non-Chinese ethnic minorities in Hong Kong". I should like to pay tribute to the powerful speech made by the Senior Member of the Executive Council during that debate, which doubtless had an important effect.
I am also able to tell Members that in response to the widespread concern in the community, the Executive Council yesterday discussed the question of the ethnic minorities. Following that discussion, the non-government Members of the Executive Council have decided to write to the Home Secretary, urging him to look at the issue once more. The Governor has also once again pressed the case that has previously been put by the Hong Kong Government, the Executive Council and the Legislative Council. He has written again to Ministers saying that the hopes Hong Kong's views will be fully taken into account.
Honourable Members have also equired in recent days whether the assurance given to the ethnic minorities applied to other British nationals in Hong Kong. Ministers have said in recent parliamentary debates that the specific assurance they were repeating — and which I have quoted above — was made in the context of the ethnic minorities. But let me also remind Honourable Members of the assurances given by the then Foreign Secretary, Sir Geoffrey HOWE, to the Foreign Affairs Select Committee in June 1989 in the context of what was referred to as "the worst case scenario". Sir Geoffrey said that if, against all our expectations,"..... the worst were to happen, plainly the special responsibility of the United Kingdom for the people of Hong Kong would be
HONG KONG LEGISLATIVE COUNCIL — 21 July 1993 4745
inescapable and part of that responsibility would be a responsibility to mobilize the widest possible international help." [I am quoting from the Minutes of Evidence to the Foreign Affairs Select Committee, 14 June 1989, Col. 365]. While we do not expect such a scenario to occur, should it do so, that assurance stands and remains the policy of the British Government.
Finally, I would like to mention one further nationality issue of great concern in the community and in particular to the small number of individuals affected; namely the wives and widows of ex-servicemen. We have repeatedly pressed the Home Office to consider exercising flexibility vis-a-vis this group as far as the qualifying period for naturalization or registration is concerned. The numbers are small; and plainly the individuals concerned are getting older and it would not be reasonable to expect them to spend a long period in the United Kingdom in order to qualify for full British citizenship. So we very much hope they can be considered as a very special case. We shall go on pressing for this as hard as we can. This issue was also raised in the Executive Council yesterday and has been taken up by the Governor with London.
All the matters I have outlined above are, I know, of great concern to Members of this Council and to our community. On some of them, the representations of Members of this Council — to which I pay warm tribute — supported by the Administration and by the Executive Council, have been successful in achieving our objectives. On others they have not, thus far, borne fruit. But I want to emphasize to Honourable Members that we do understand their concerns, we understand the concerns of the community and we shall go on representing them as strongly as we can to Her Majesty's Government.
PRESIDENT: Yes, Miss LAU, a short point of elucidation.
MISS EMILY LAU: Thank you, Mr President, Indeed, this is a point of elucidation and I hope the Chief Secretary can help. It is about the assurance that was given to Hong Kong people — first of all in 1985 by the then Foreign Office Minister Baroness YOUNG, which was repeated in January 1986 by the then Home Secretary David WADDINGTON — that in future, mainly after 1997, if any British national should come under pressure to leave Hong Kong and have nowhere else to go the Government of the day would consider sympathetically the business of letting them into Britain on a case by case basis. But now it seems that in the past two weeks Ministers have told the House of Commons that this undertaking is only restricted to 7 000 ethnic minorities. And Baroness DUNN publicly said that the undertaking in 1985 and 1986 was a package together with the BN(O) passport, which, Mr President, I am sure you also remember. But now the Chief Secretary is trying to draw our attention to the undertaking or statement by Sir Geoffrey HOWE in July 1989 which talked about an international community's responsibility. So, Mr President, I am thoroughly confused. I want to know: (a) what is the British Government's
HONG KONG LEGISLATIVE COUNCIL — 21 July 1993 4746
position; and (b) more importantly, what is the Hong Kong Government's understanding of the 1985-86 undertaking?
CHIEF SECRETARY: Mr President, as Miss LAU has pointed out, the British Government has commented that the assurances which were given in 1985 and 1986 were, in their view, given in the context of the assurances to the ethnic minorities. That is the view of the British Government as recently stated. I would, however, draw attention to the wording of the statement made by Sir Geoffrey HOWE, a senior Cabinet Minister, in a formal hearing of the Foreign Affairs Select Committee in which he said, and I repeat the words,
"If the worst were to happen, plainly the special responsibility of the United Kingdom for the people of Hong Kong would be inescapable and part of that responsibility would be the responsibility to mobilize the widest possible international help."
Mr President, there is no doubt about the terms of that assurance. We believe it stands and remains the policy of the British Government.
MR MARTIN BARROW: Mr President, would the Chief Secretary clarify the Hong Kong Government's thinking on proposing a possible amendment to the British Nationality Act 1990, which would include the ethnic minorities through more additional quota, and does he agree that such a minor amendment could hardly be described as a major and complete overhaul of the nationality laws as claimed by the Home Office on 16 July?
CHIEF SECRETARY: Mr President, we have indeed looked into that possibility and have put the suggestion forward. We are told, on the basis of best legal advice, that to make such an amendment would be against the original spirit of the British Nationality Act, that the case of the ethnic minorities would not fit naturally into the conditions which should apply in the case of that Act, and it would require a major amendment to the purpose of the Act in Parliament.
MR MARTIN BARROW: Mr President, could the Chief Secretary advise the nature of the legal opinion and what the source of that legal opinion was?
CHIEF SECRETARY: Mr President, I will let the Honourable Member know the answer to that in writing. (Annex IV)
MR JIMMY McGREGOR: Mr President, I am happy to learn from the Chief Secretary that something may be done for the ex-POW widows and wives. It is long overdue if I may say so. But during these discussions and exchanges can
HONG KONG LEGISLATIVE COUNCIL — 21 July 1993 4747
the Chief Secretary say whether the British Government recognizes that the BDTC and the BN(O) passports, though allegedly passports, are not passports in the true sense conferring nationality and citizenship but are rather travel documents in the context of Hong Kong citizens? Does the British Government recognize and concede to that fact?
CHIEF SECRETARY: Mr President, the fundamental issue that was of course raised when the original BTDC and BN(O) passports were introduced was that they moved away from the concept of linking passports to the right of abode. This point was debated at great length in the House of Commons and indeed in this Council. I think there can be no doubt about the situation in the view of Her Majesty's Government.
MR HOWARD YOUNG: Mr President, in the Chief Secretary's statement, it is mentioned that the Senior Member of the Executive Council is going to write on behalf of the Executive Council and the Governor will also write on behalf of the Hong Kong Government in support of full British nationality for the ethnic minorities. I would like to know whether when the Governor writes he will also include in the submission his personal conviction and support for this despite the fact that he might have had different views before he came to Hong Kong as a member of the British Cabinet when that was discussed some time ago?
PRESIDENT: Are you able to answer that, Chief Secretary?
CHIEF SECRETARY: Mr President, from my personal discussions with the Governor on this subject I can give Mr YOUNG that assurance.
MISS CHRISTINE LOH: Mr President, I am not entirely sure that the Chief Secretary has fully answered Miss LAU's question. I think the second part of her question was: What exactly is the Hong Kong Government's position? In quoting us Sir Geoffrey HOWE's statement to the Foreign Affairs Select Committee, the Chief Secretary only gave us part of the answer to the British obligation. What, in the Hong Kong Government's view, is the other part?
CHIEF SECRETARY: Mr President, it is not for me to put words in the mouths of Ministers of Her Majesty's Government. Our position on the subject is clear. We have expressed it this afternoon. I have repeated the words which have been said in formal proceedings of the House of Commons. I can do no further than to draw Members' attention to those statements.
HONG KONG LEGISLATIVE COUNCIL — 21 July 1993 4748
PRESIDENT: Questions are meant to be the exception rather than the rule in this context. Motions.
Motions:
FACTORIES AND INDUSTRIAL UNDERTAKINGS ORDINANCE THE SECRETARY FOR EDUCATION AND MANPOWER moved the following motion:
"That the Factories and Industrial Undertakings (Lifting Appliances and Lifting Gear) (Amendment) Regulation 1993, made by the Commissioner for Labour on 8 July 1993, be approved."
He said: Mr President, I move the first motion standing in my name on the Order Paper.
Section 7(1) of the Factories and Industrial Undertakings Ordinance empowers the Commissioner for Labour to make regulations to ensure the safety and health of people in industrial undertakings including construction sites. The Factories and Industrial Undertakings (Lifting Appliances and Lifting Gear) (Amendment) Regulation 1993 (Amendment Regulation) was made by the Commissioner for Labour on 8 July 1993. In accordance with section 7(3) of the principal Ordinance, I now move that the Amendment Regulation be approved by this Council.
Lifting appliances and lifting gear used in industrial undertakings are governed by the Factories and Industrial Undertakings (Lifting Appliances and Lifting Gear) Regulation except for those used on construction sites. These are governed by the Construction Sites (Safety) Regulation. The main object of the Amendment Regulation is to impose more stringent regulatory measures over the safe use of lifting appliances and lifting gear. The major requirements are:
(a) lifting appliances must be examined annually by competent examiners; (b) an automatic safe load indicator must be installed on a crane;
(c) persons operating cranes must be 18 years or older and must possess a valid certificate issued by the Construction Industry Training Authority or by any other person specified by the Commissioner for Labour; and
(d) a competent examiner for lifting appliances and lifting gear must be a professional engineer registered under the Engineer Registration Ordinance in a relevant discipline specified by the Commissioner.
HONG KONG LEGISLATIVE COUNCIL — 21 July 1993 4749
Amendments to the Construction Sites (Safety) Regulation of the Factories and Industrial Undertakings Ordinance are required as relevant provisions of the Regulation will be subsumed under the Amendment Regulation of the same Ordinance. This will make the control regulations more straightforward. At the same time, the definition of "competent examiner" in the Construction Sites (Safety) Regulation will be amended to be in line with the Amendment Regulation.
As contractors may need time to comply with the proposed provisions on employment of qualified crane operators and the installation of safe overload indicator, we propose that the amendments should come into effect on three different dates. The requirement of a crane operator to possess a valid certificate issued by the Construction Industry Training Authority under section 11 of the Amendment Regulation should come into effect one year after approval by this Council to allow time to train up sufficient numbers of qualified operators. The requirement of an automatic safe load indicator to be fitted on cranes under section 9 should come into operation six months after approval by this Council. This period should be sufficient for installation. For other provisions, we propose to bring them into effect immediately after this Council has given its approval. We expect that contractors should not encounter difficulties in complying with these provisions.
Mr President, I beg to move.
Question on the motion proposed.
MR TAM YIU-CHUNG (in Cantonese): Mr President, two skilled workers were killed in a tower crane accident on the Tsing Ma Bridge construction site in April this year when they were conducting tests of the machinery. Then another 12 workers were killed in a passenger hoist accident on a North Point construction site in June. Where there are well over a hundred accidents involving lifting appliances and lifting gear each year, the two mentioned above have been the latest and the most serious. The frequency and seriousness of lifting appliances and lifting gear accidents are indeed shocking and saddening.
On the basis of lessons learnt from the incidents above, the regulation tabled to this Council for amendment today will have implication in two areas. Firstly, provisions in relation to lifting appliances and lifting gear under the Construction Sites (Safety) Regulation of the Factories and Industrial Undertakings Ordinance will be subsumed under the Factories and Industrial Undertakings (Lifting Appliances and Lifting Gear) (Amendment) Regulation 1993. Under this arrangement, lifting appliances and lifting gear used by industrial undertakings of the non-construction type must comply with the requirements currently applied on the same machinery in construction sites. This is meant to subject the machinery to stricter and more detailed control. I support these particular requirements.
HONG KONG LEGISLATIVE COUNCIL — 21 July 1993 4750
The second implication is that the use and installation of lifting appliances will be subject to further and stricter regulation. Since the new Factories and Industrial Undertakings (Lifting Appliances and Lifting Gear) (Amendment) Regulation will incorporate provisions relevant to lifting appliances under the Construction Sites (Safety) Regulation, lifting appliances on construction sites will also be subject to stricter control. These requirements include: (1) lifting appliances (for passengers and goods) must be examined annually by competent examiners; (2) any examiner must be a registered professional engineer; (3) an automatic safe load indicator must be installed on a crane (for goods); and (4) persons operating cranes must be 18 years or older and must possess a valid certificate. While these requirements make certain progress to which I must express my welcome, I feel that deficiencies still exist in a number of areas.
Firstly, there is not any requirement on the safe installation and safe use of lifting appliances carrying passengers. Secondly, the new regulation provides only for the qualification requirement of examiners responsible for annual overhaul and post-installation and post-modification examinations, without specifying the qualification of "qualified persons" who must conduct weekly examination of the lifting appliances and lifting gear. I think that stricter requirements should be introduced for "qualified persons", and specific guidelines should be issued for examination of lifting appliances and lifting gear, so that the weekly examinations could be specifically focused to discover defects in time. Thirdly, the new regulation makes no clear definition of the purview of the examiner whose role in safety management is therefore very vague. Therefore, I think that any development of the new regulation in future should aim at further intensification and spelling out of the specifics.
The current amendment to the regulation is no more than a patchwork which is achieved at the exhorbitant price of the lives of many workers. I hope the Administration will relinquish its passive attitude of the past and actively review its existing policy and legislation in relation to industrial safety, with a view to formulating a long-term, comprehensive, specific and effective set of policies and laws. I think that while protection accorded by requirements on the machinery and the other facilities concerned is important, institutionalized protection is equally important. For the former would be an exercise in futility without the latter backing it up. I believe the status of workers in the process of safety management should be raised by allowing them a greater say and more participation in the process. Professionals engaged in safety control should also be given greater powers to prevent the emergence of unsafe working procedures and working environments.
Not long ago, I received a substantial opinion paper on industrial safety which is prepared by a group of factory inspectors. I believe the Government must have known every detail of this paper. I hope that the Government will make positive response to this paper, thus leading to more discussions.
With these remarks, Mr President, I support the amendment.
HONG KONG LEGISLATIVE COUNCIL — 21 July 1993 4751
MR RONALD ARCULLI: Mr President, I beg your indulgence. I was not expecting to be called.
PRESIDENT: You wish to speak, Mr ARCULLI, on the motion?
MR RONALD ARCULLI: Mr President, with your permission, may I decline to comment on the motion.
MR LAU CHIN-SHEK (in Cantonese): Mr President, I had raised several questions with the Government in relation to the present amendment proposal. And now having received the Administration's response, I believe I can put it very clearly that my overall comment on the proposed amendment is that "it has barely scratched the surface"!
As we all know, many serious industrial accidents happened on construction sites and quite many of them involved lifting appliances and lifting gear. Therefore the labour sector has been for many years suggesting that control be introduced on the use of lifting appliances, that operators must sit for qualification examination, that examiners must receive proper training and that cranes must be installed with an overload indicator. Unfortunately, the Government has been denying that legislative control is insufficent and for many years has been reluctant to step up legislation in this respect. The incidence of serious industrial accidents involving lifting appliances has been frequent as a result of such reluctance on the part of the Government. And 35 workers were killed and over a thousand others injured over the last three years. The situation is indeed very very serious.
According to the proposed amendment to the regulation, lifting appliances must be installed with a safe load indicator. Although one can say that this is better than none at all, why do we not require that more effective devices such as "overload alarms" and "automatic overload cut-off systems" be installed? But the Administration's reply to my question above had me caught between tears and laughter. The reply said nothing other than that the Government has set up a working group specifically to examine the safety of heavy machinery on construction sites, including goods cranes and passenger hoists. I have to ask: Why was consideration not given to the abovementioned suggestions already made by the labour sector for a number of years during the drafting of this amendment?
According to the proposal before the Council now, a crane must be installed with an automatic safe load indicator. But it is very probable that the operator will be held liable should an accident happen as a result of overloading
HONG KONG LEGISLATIVE COUNCIL — 21 July 1993 4752
in future. However, similar to the case of overloading of trucks where very often the offence might not have been intended by the operator or driver, it was rather the contractor or foreman, trying to catch up with the work schedule, who coerced the operator into continuing to operate the machinery with the full knowledge that it might overload. The result of requiring compulsory installation of a safe load indicator without a similar requirement for an automatic overload cut-off system is, just as some workers have pointed out, making the operator a scapegoat!
Moreover, I am also disappointed with the proposed amendment which seeks to provide only for the qualification of operators and examiners, without a similar provision as to the qualification of those responsible for the installation, repair and maintenance of such machinery. It is because problems quite often originated from the installation and maintenance processes of such machinery. I hope that the Government will review this issue as soon as possible and then come up with an amendment proposal.
Finally, as regards the ongoing government study of the safe use of heavy machinery on construction sites, including goods cranes and passenger hoists, I hope the Administration will account clearly to this Council and the public the scope of this study (for example, what machinery), its focus and the timetable, and complete the study as quickly as possible to improve safety at work.
With these remarks, Mr President, I urge my colleagues to support this motion albeit the current amendment is still not to my satisfaction. Thank you.
SECRETARY FOR EDUCATION AND MANPOWER: Mr President, may I thank the Members who have spoken for their support. I agree entirely that more needs to be done and we must not be complacent about industrial safety.
I should stress that the regulations to be amended are one of many measures we are taking over the next few months and years to improve industrial safety. We are updating and revising these improvements all the time in the light of technological changes and requirements of the trade. I should like to say that we will be amending regulations later this year to raise the maximum penalties for breach of industrial safety regulations. And, indeed, the working group under the Secretary for Works will be looking into more detailed controls over heavy machinery, starting with industrial machinery as well as passenger hoists.
I agree entirely with Mr TAM's point that the workers' involvement is essential and we are doing our very best to promote safety committees involving workers in all construction sites as a matter of government policy.
HONG KONG LEGISLATIVE COUNCIL — 21 July 1993 4753
I would like to assure Mr LAU that while nothing is perfect we are doing our very best. And we are moving in the right direction and we hope we will go on doing more and reviewing these changes as and when the circumstances require any improvement.
Thank you, Mr President.
Question on the motion put and agreed to.
PNEUMOCONIOSIS (COMPENSATION) ORDINANCE
THE SECRETARY FOR EDUCATION AND MANPOWER moved the following motion:
"That the resolution made and passed by the Legislative Council on 3 December 1980 as amended be further amended in paragraphs (a) and (c) by repealing "0.02 per cent" and substituting "0.3%"."
He said: Mr President, I move the second motion standing in my name on the Order Paper.
Experience in the administration of the Pneumoconiosis (Compensation) Ordinance over the years has revealed a number of inadequacies which require improvement. Members will recall that under the Pneumoconiosis (Compensation) (Amendment) Bill 1993 which this Council passed on 7 July this year, substantial changes have been made to the Ordinance to provide improved benefits to pneumoconiotics. The most significant improvements are to introduce monthly compensation payments payable until a pneumoconiotic's death and to allow pneumoconiotics who have previously received a lump sum compensation to receive monthly payments if they suffer additional incapacity.
It is estimated that some 2 000 pneumoconiotics who were diagnosed during 1981 to 1993 would be able to benefit under the new scheme. Another 150 new cases are expected each year.
The balance of the Pneumoconiosis Compensation Fund stood at $112 million at the end of March this year. However, it is expected that the fund would have an accumulated deficit of about $70 million by 1994 if the current rate of levy of 0.02% on the value of construction works which exceeds $1 million and of quarry products remains unchanged. Therefore, after consultation with the Fund Board, we propose to increase the rate of levy on the construction and quarrying industries by phases, initially to 0.3% in 1993 so that there will be sufficient funds for the Fund Board to meet its long-term commitments. A second phase of increase will be required sometime next year.
HONG KONG LEGISLATIVE COUNCIL — 21 July 1993 4754
Section 36(3) of the Pneumoconiosis (Compensation) Ordinance provides that the resolution to vary the rate of levy shall come into effect 30 days after its publication in the Gazette, which would be on 22 August 1993. The revised rate will apply to all construction contracts the tenders for which are submitted on or after that date.
Mr President, I beg to move.
Question on the motion proposed, put and agreed to.
CROSS-HARBOUR TUNNEL ORDINANCE
THE SECRETARY FOR TRANSPORT moved the following motion:
"That the Cross-Harbour Tunnel (Amendment) Bylaw 1993, made by the Cross Harbour Tunnel Company, Limited on 5 July 1993, be approved."
He said: Mr President, I move the motion standing in my name on the Order Paper, which seeks approval for amendments to the Cross-Harbour Tunnel Bylaws.
The Cross-Harbour Tunnel (Amendment) Ordinance 1993 was enacted on 30 June 1993. This enables the Cross-Harbour Tunnel Company Limited to install automatic toll collection equipment, as approved by the Commissioner for Transport, and to make bylaws to regulate the use of such facilities. The amendments to the bylaws now before this Council are necessary for the day-to-day operation of the autotoll system. They cover such matters as the issue of electronic toll passes, access to and passage through autotoll booths, and signage We have examined the by-laws, and I commend them to Honourable Members for approval in accordance with section 62(2) of the Cross-Harbour Tunnel Ordinance.
Question on the motion proposed, put and agreed to.
IMPORT AND EXPORT ORDINANCE
THE SECRETARY FOR TRADE AND INDUSTRY moved the following motion:
"That the Import and Export (Registration) (Amendment) Regulation 1993, made by the Governor in Council on 29 June 1993, be approved."
She said: Mr President, I move the motion standing in my name on the Order Paper. The purpose of this resolution is to reduce the Ad Valorem Levy, known for short as AVL, on imports specified in the Import and Export (Registration) Regulations under the Import and Export Ordinance.
HONG KONG LEGISLATIVE COUNCIL — 21 July 1993 4755
At present, trade declarations have to be lodged for all imports and exports with the exception of exempted items. A levy at 0.05% of the value of the goods concerned is charged, except for food imports in respect of which a flat rate of $5 per declaration is charged. The revenue generated by the AVL on imports and exports is used to cover the cost of compiling trade statistics and other trade-related activities. With the substantial growth of our external trade in recent years, particularly imports relative to domestic exports, the Government proposes to reduce the AVL on imports from 0.05% of the value of the goods to 0.035%. The AVL on food imports will be kept at the flat rate of $5 per declaration.
The reduction of the AVL on non-food imports, intended to be effective from 1 October 1993, should be welcomed by our traders as well as manufacturers who rely on imported raw materials and components for their production. The savings to importers are estimated to be some $90 million in 1993-94 and in excess of $1 billion over a period of five years.
The proposal would also have the effect of reducing the Government's subvention to the Trade Development Council (TDC), which has historically been calculated by reference to the net AVL collected by the Government. The proposed reduction will not create any difficulties for the TDC given its success in generating its own income. For example, in 1992-93, the TDC's self-generated income accounted for 63% of its recurrent expenditure as compared with 44% in 1989-90. Even with the reduction in government subvention as from 1994-95, the TDC will continue to have enough funds to pursue its key objectives of diversifying markets, further developing existing markets and upgrading the image of Hong Kong products. The proposed reduction of the AVL on imports and the consequential reduction of the subvention to the TDC as from 1994-95 is fully supported by the TDC as a move that will benefit trade and industry.
Mr President, I beg to move.
Question on the motion proposed.
DR HUANG CHEN-YA (in Cantonese): Mr President, the Administration proposes today to reduce the ad valorem levy (AVL) on imports, the main reason being that the Trade Development Council (TDC), with its sound financial standing, no longer needs too much subsidy from the Administration. In the past, the AVL on imports collected by the Administration was used to subsidize the TDC.
We are of course glad to see the TDC getting gradually self-sufficient, but should our Administration therefore give up the $1 billion of revenue in the next five years and incur an annual additional expenditure of $17 million? Does the Administration really have so much money that it is getting disgusted with it and is pushing it away? Indeed, the amount involved is not much. Reducing the
HONG KONG LEGISLATIVE COUNCIL — 21 July 1993 4756
AVL by 0.015% will have only a negligible effect on commodity prices in general. The effect on the general public and the actual advantage to importers will both be very small as well. But if there is no reduction, such an amount of money will be very useful in helping our industries. In the past two years, this Council has been asking the Administration to provide more support to our industries so that they can develop high technology and high value-added products. Such a development will not only help our manufacturing industries to contribute more to our economic growth, it will also create more job opportunities within the industries. If we maintain the original rate of AVL, there will be $1 billion in five years' time for supporting our industries and helping with the work in research and development, experiments in turning technologies into commercially available products, the setting up of sample factories and databank for researchers, and the employment of technological researchers. Without such a sum of money, this Council's proposal of assisting our industries will become "mere words" and we will be unable to put it into action. Therefore, the United Democrats of Hong Kong (UDHK) do not support the reduction of the AVL, and propose instead that the amount of money involved be used to subsidize industrial developments instead of subsidizing the TDC.
We intended to move an amendment motion to the effect of our proposal just mentioned, but have found that the Regulation has not specified the use of the AVL. The relevant policy is not based on the Regulation but a verbal undertaking made by the Administration some 20 years ago. Therefore, we cannot strive for a change in policy by way of moving a motion. But if every Member in this Council makes it clear that they want the Administration to spend this sum of money on supporting our industries, I believe that the Administration will accept our opinion. It has been argued that the money comes from the importers and it will therefore be unfair to spend it on supporting the industries. But this is not true, because many products made in Hong Kong have to depend on imported materials. So assisting our industrial development will give rise to more imports. Besides, to the weaving and garment industries which have paid relatively more AVL than others due to their imported materials, two critical problems are confronting them, namely, environmental pollution and rapid response. So it will be fair if the AVL can be used on these two aspects, because that will be helping the industrial and commercial sectors that need to import the relevant materials. Moreover, maintaining the original AVL rate will bring an additional annual revenue of $210 million. Such a sum can be used to subsidize our industries without any need to lower the expenditure on other welfare items.
For the reasons given above, the UDHK call for Members to oppose the reduction in AVL and to ask the Administration to use such levy on subsidizing and strengthening our industries such that more job opportunities can be created.
HONG KONG LEGISLATIVE COUNCIL — 21 July 1993 4757
SECRETARY FOR TRADE AND INDUSTRY: Mr President, I have listened carefully to Dr HUANG Chen-ya's suggestion that the AVL on imports should remain at 0.05% and that the Government should make use of the savings in expenditure resulting from the difference between the existing and new subventions to the Trade Development Council to provide additional funding for industrial support.
In making this proposal, Dr HUANG has perhaps not fully appreciated the substantial benefits traders and manufacturers will derive from a reduction in the AVL on imports. As I said earlier, this reduction will result in savings of over $90 million to importers in 1993-94. With imports growing at an average annual rate of 20% in the past five years, this reduction is estimated to create savings to importers of over $1 billion over a period of five years. This is no small amount.
I have also had very much in mind the fact that, when the AVL on declarations of imports and exports was introduced in 1966, some concern was expressed by the business community about the burden to the trade imposed by the AVL. The then Director of Commerce and Industry undertook to keep the situation under review, in consultation with the representatives of the business community. This is what the Government has done. The proposed reduction of the AVL on imports is supported by representatives of the business community, as can be seen from statements welcoming the proposed reduction made by the Hong Kong General Chamber of Commerce, the Chinese Manufacturers' Association, the Federation of Hong Kong Industries and the Chinese General Chamber of Commerce. This Council's support of the proposed reduction will help to lighten the burden to the trade.
I should stress also that although additional funding for industrial support will not come directly from the revenue generated by the AVL on imports, reduction in the subvention to the Trade Development Council will create room, within the Government's overall public expenditure guideline, for additional funding, probably rather similar to the difference between the existing and new subventions, to be provided for industrial support. On the basis of the past pattern of subventions to the Trade Development Council, the amount thus becoming available for industrial support is estimated to amount to approximately $180 million in 1994-95. This would represent a substantial increase of government expenditure on industrial support, given that the Industry Department and the Hong Kong Productivity Council, the two major agencies responsible for supporting industry, together received approximately $250 million in 1993-94. We are working out a mechanism to ensure that the funds available will be spent on worthwhile projects for industrial support on the advice of the Industry and Technology Development Council, and will be seeking this Council's approval of the appropriate funding mechanism.
Approval of the reduction of the AVL on imports will therefore serve a multitude of purposes: it will generate substantial savings not only to importers but also to manufacturers who rely on imported raw materials and components
HONG KONG LEGISLATIVE COUNCIL — 21 July 1993 4758
for their manufactured products; it will benefit the re-export trade and the reduction of the subvention to the Trade Development Council, calculated by reference to the net AVL collected by the Government, will enable a substantial additional amount to be made available to the industrial support programme. It would also enable the Trade Development Council's annual subvention to be rationalized, in the light of its sound financial position and its increasing ability to generate its own income. The proposed reduction of the AVL on imports is welcomed by the Trade Development Council, representatives of the business community and our industry leaders. It is indeed in the interests of our business community and our industrial sector, which has been pressing for an additional secure source of funding for industrial support for some time, for the proposed reduction of the AVL on imports to be implemented as soon as possible.
With these words, Mr President, I commend the motion to reduce the AVL on imports to this Council.
Question on the motion put.
Voice vote taken.
PRESIDENT: Council will proceed to a division.
PRESIDENT: Would Members please proceed to vote?
PRESIDENT: Do Members have any queries? if not, the results will now be displayed.
The Chief Secretary, the Attorney General, the Financial Secretary, Mr Allen LEE, Mrs Selina CHOW, Mr HUI Yin-fat, Mr NGAI Shiu-kit, Mr PANG Chun-hoi, Mr TAM Yiu chung, Mr Andrew WONG, Mr LAU Wong-fat, Mr Edward HO, Mr Ronald ARCULLI, Mr Martin BARROW, Mrs Peggy LAM, Mrs Miriam LAU, Mr LAU Wah-sum, Dr LEONG Che-hung, Mr Jimmy McGREGOR, Mrs Elsie TU, Mr Peter WONG, Mr Vincent CHENG, Mr Moses CHENG, Mr Marvin CHEUNG, Mr CHIM Pui-chung, Mr Simon IP, Mr Eric LI, Mr Fred LI, Mr Steven POON, Mr Henry TANG, Mr TIK Chi-yuen, Dr Samuel WONG, Dr Philip WONG, Mr Howard YOUNG, Mr WONG Wai-yin, Dr TANG Siu-tong, Miss Christine LOH and Ms Anna WU voted for the motion.
Mr Martin LEE, Mr SZETO Wah, Mr Albert CHAN, Mr CHEUNG Man-kwong, Rev FUNG Chi-wood, Mr Frederick FUNG, Mr Michael HO, Dr HUANG Chen-ya, Dr Conrad LAM, Mr LAU Chin-shek, Mr LEE Wing-tat,
HONG KONG LEGISLATIVE COUNCIL — 21 July 1993 4759 Mr MAN Sai-cheong, Mr James TO and Dr YEUNG Sum voted against the motion.
Miss Emily LAU abstained.
THE PRESIDENT announced that there were 38 votes in favour of the motion and 14 votes against it. He therefore declared that the motion was carried.
INTERPRETATION AND GENERAL CLAUSES ORDINANCE
THE SECRETARY FOR PLANNING, ENVIRONMENT AND LANDS moved the following motion:
"That -
(1) with effect from 1 August 1993 -
(a) the functions exercisable by the Director of Buildings and Lands by virtue of the enactments specified in column 2 of Schedule 1 in relation to the provisions specified in column 3 of that Schedule be transferred to the Director of Buildings;
(b) the enactments specified in column 2 of Schedule 1 be amended in the provisions specified in column 3 of that Schedule by repealing "Director of Buildings and Lands" wherever it occurs and substituting "Director of Buildings";
(c) the functions exercisable by the Director of Buildings and Lands by virtue of the enactments specified in column 2 of Schedule 2 in relation to the provisions specified in column 3 of that Schedule be transferred to the Director of Lands;
(d) the enactments specified in column 2 of Schedule 2 be amended in the provisions specified in column 3 of that Schedule by repealing "Director of Buildings and Lands" wherever it occurs and substituting "Director of Lands";
(e) the functions exercisable by the Director of Buildings and Lands by virtue of the enactments specified in column 2 of Schedule 3 in relation to the provisions specified in column 3 of that Schedule be transferred to the Director of Buildings and the Director of Lands;
HONG KONG LEGISLATIVE COUNCIL — 21 July 1993 4760
(f) the enactments specified in column 2 of Schedule 3 be amended in the provisions specified in column 3 of that Schedule by repealing
"Director of Buildings and Lands" wherever it occurs and substituting
"Director of Buildings or the Director of Lands";
(g) the functions exercisable by the Director of Buildings and Lands by virtue of the enactment specified in column 2 of Schedule 4 in
relation to the provisions specified in column 3 of that Schedule be
transferred to the Director of Architectural Services;
(h) the enactment specified in column 2 of Schedule 4 be amended in the provisions specified in column 3 of that Schedule by repealing
"Director of Buildings and Lands" wherever it occurs and substituting
"Director of Architectural Services";
(i) the enactments specified in column 2 of Schedule 5 be amended in the provisions specified in column 3 of that Schedule by repealing
"Buildings and Lands Department" and substituting "Buildings
Department";
(j) the enactments specified in column 2 of Schedule 6 be amended in the provisions specified in column 3 of that Schedule by repealing
"Buildings and Lands Department" and substituting "Lands
Department";
(k) the Schedule to the Lands Tribunal Rules (Cap. 17 sub. leg.) be amended -
(i) in Form 7 by repealing "屋宇㆞政署署長" and substituting "
屋宇署署長";
(ii) in Forms 3, 4, 5, 8, 9 and 11 by repealing "屋宇㆞政署署長" wherever it occurs and substituting "㆞政總署署長";
(l) the Schedule to the Legal Officers Ordinance (Cap. 87) be amended by repealing the heading "Buildings and Lands Department" and
substituting "Lands Department";
(m) the Mass Transit Railway (Land Resumption and Related Provisions) Ordinance (Cap. 276) be amended -
HONG KONG LEGISLATIVE COUNCIL — 21 July 1993 4761
(i) in section 2, in the definition of "Director" by repealing ""Director of Buildings and Lands"" and substituting
""Director of Buildings" or "Director of Lands"";
(ii) in sections 6(5)(a), 12(1), (2)(a), (5) and (6) and 14(4) and (5) by repealing "Director" and substituting "Director of
Buildings or the Director of Lands";
(n) section 20(g) of the Hong Kong Airport (Control of Obstructions) Ordinance (Cap. 301) be amended by repealing "either" and substituting "any";
(o) section 6(1) and (2) of the Demolished Buildings (Re-development of Sites) Ordinance (Cap. 337) be amended by repealing "Director" and substituting "Director of Lands or any officer authorized by him";
(p) the Temporary Control of Density of Building Development (Kowloon and New Kowloon) Ordinance (Cap. 404) be amended -
(i) in section 2(1), in the definition of "Building Authority" by repealing "Director of Buildings and Lands" and substituting
"Director of Buildings";
(ii) in section 2(2), by repealing "Buildings and Lands Department" and substituting "Buildings Department";
(2) with retrospective effect from 11 April 1986 -
(a) the functions exercisable by the Director of Buildings and Lands by virtue of the enactment specified in column 2 of Schedule 7 in relation to the provision specified in column 3 of that Schedule be transferred to the Director of Building Development;
(b) the enactment specified in column 2 of Schedule 7 be amended in the provision specified in column 3 of that Schedule by repealing "Director of Buildings and Lands" and substituting "Director of Building Development".
HONG KONG LEGISLATIVE COUNCIL — 21 July 1993 4762 SCHEDULE 1
FUNCTIONS OF DIRECTOR OF BUILDINGS AND LANDS TRANSFERRED TO DIRECTOR OF BUILDINGS
Item Enactment Provision
1. Lands Tribunal Rules (Cap. 17 sub. leg.)
2. Buildings Ordinance (Cap. 123)
Schedule, Form 7.
Section 2(1), definition of "Building Authority".
Section 2(2).
Section 18(1)(ii) and (3).
Second Schedule, section 114(10).
3. Third Schedule, entry relating to section Public Health
and Municipal
Services Ordinance
105.
(Cap. 132) Sixth Schedule, entry relating to section 105.
4. Places of Public Entertainment
Ordinance (Cap. 172)
Section 2 definition of "Building Authority".
5. Regulation 23(1)(b) and (2). Child Care Centres Regulations
(Cap. 243 sub. leg.) Regulation 24(2)(b).
6. Education
Ordinance (Cap. 279)
7. Education Regulations (Cap. 279 sub. leg.)
8. Hong Kong Airport (Control of
Obstructions)
Ordinance
(Cap. 301)
Section 12(3) and (5)(c). Regulation 14.
Section 5.
Section 7(1).
Section 13.
Section 14(1).
HONG KONG LEGISLATIVE COUNCIL — 21 July 1993 4763
Item Enactment Provision
Section 15(1), (2)(c)(ii) and (8).
Section 16(1), (3), (6), (8) and (9).
Section 17.
9. Hong Kong
Airport (Control of
Obstructions)
(Lighting)
(Consolidation) Order
(Cap. 301 sub. leg.)
10. Demolished
Buildings
(Re-development
of Sites) Ordinance
(Cap. 337)
11. Chinese Permanent Cemeteries Ordinance
(Cap. 1112)
Paragraph 2.
Section 2(1), definition of
"Director".
Section 3(2)(a)(ii).
SCHEDULE 2
FUNCTIONS OF DIRECTOR OF BUILDINGS AND LANDS TRANSFERRED TO DIRECTOR OF LANDS
Item Enactment Provision
1. Landlord and Tenant (Consolidation)
Ordinance (Cap. 7)
Section 50(6)(1)(ii).
2. Rule 44(1)(b). Lands Tribunal Rules
(Cap. 17 sub. leg.)
Schedule, Forms 3, 4, 5, 8, 9 and 11.
3. Crown Land
Ordinance (Cap. 28)
4. Crown Land
Regulations
(Cap. 28 sub. leg.)
Schedule.
Regulation 6(1).
HONG KONG LEGISLATIVE COUNCIL — 21 July 1993 4764 Item Enactment Provision
5. Crown Leases
Ordinance (Cap. 40)
6. New Territories Ordinance (Cap. 97)
7. Duplicate
Permits and
Licences (New
Territories) Rules
(Cap. 97 sub. leg.)
8. Telecommunication Ordinance (Cap. 106)
9. Rating Ordinance (Cap. 116)
10. Stamp Duty
Ordinance (Cap. 117)
11. Crown Lease
(Pok Fu Lam)
Ordinance (Cap. 118)
12. Buildings Ordinance (Application to
the New Territories)
Ordinance (Cap. 121)
13. Crown lands
Resumption
Ordinance (Cap. 124)
Section 2, definition of "Director". Section 7(3).
Rule 2.
Section 14(1)(a) and (3)(b).
Section 28(2B).
Section 46.
Section 2, definition of "Director". Section 2(1), definition of "Director".
Section 2, definition of "Authority".
14. Section 2 -
Crown Rent and
Premium
(Apportionment) Ordinance (Cap. 125)
(a) definition of "determined Crown rent";
(b) definition of "determined annual instalment of premium".
Section 4.
HONG KONG LEGISLATIVE COUNCIL — 21 July 1993 4765
Item Enactment Provision
Section 5.
Section 6.
Section 7.
Section 10(1), (2) and (3)(a).
Section 12.
Section 13.
Section 14.
Section 14A(2).
Section 18.
Section 19(1), (2)(a), (3) and (4).
Section 20.
Section 21(1) and (2).
Section 22.
Section 23(1), (2) and (4)(a).
Section 24.
Section 26.
15. Section 2 - Crown Rights
(Re-entry and
Vesting Remedies)
Ordinance (Cap. 126)
16. Foreshore and
Sea-bed (Reclamations) Ordinance (Cap. 127)
(a) definition of "determined annual instalment of premium";
(b) definition of "determined Crown rent".
Section 7(3).
Section 2, definition of "Director".
HONG KONG LEGISLATIVE COUNCIL — 21 July 1993 4766 Item Enactment Provision
17. Land Acquisition (Possessory Title)
Ordinance (Cap. 130)
18. Public Health
and Municipal
Services
Ordinance (Cap. 132)
19. Advertisements By-laws
(Cap. 132 sub. leg.)
20. Sanitation and
Conservancy
(Regional Council)
By-laws
(Cap. 132 sub. leg.)
21. New Territories Leases (Extension)
Ordinance (Cap. 150)
22. Legal Practitioners Ordinance
(Cap. 159)
23. Solicitors'
Practice Rules
(Cap. 159 sub. leg.)
Section 2, definition of "Director". Section 27(6)(b).
Third Schedule, entries relating to - (a) section 104(3);
(b) section 106(3) and (4);
(c) section 111B;
(d) section 111C;
(e) section 114.
Sixth Schedule, entry relating to section 111D.
By-law 1(1).
By-law 2(2).
Section 9(4).
Section 74(1)(c).
Rule 1A, definition of "completed development", paragraph (b).
Rule 5C(2) and (3).
HONG KONG LEGISLATIVE COUNCIL — 21 July 1993 4767 Item Enactment Provision
24. Air Armament Practice Ordinance (Cap. 194)
25. Defences
(Firing Areas)
Ordinance
(Cap. 196)
Second Schedule. Second Schedule.
26. Section 16(7)(a) and (b). Country Parks Ordinance
(Cap. 208) Section 25(b).
27. Eastern Harbour Crossing Ordinance
(Cap. 215)
28. Oil Pollution
(Land Use and
Requisition)
Ordinance (Cap. 247)
Section 19(2).
Section 7(2) and (3).
29. Section 2, definition of "Director" Mass Transit
Railway (Land Resumption and Related Provisions)
(where the expression "Director of Buildings and Lands" first occurs).
Ordinance (Cap. 276) Section 3(1), (2), (3) and (4). Section 4(5).
Section 6(8).
Section 10(2).
30. Mining Ordinance (Cap. 285)
Section 7.
Section 9(a) and (c). Section 22.
Section 23.
Section 24(1) and (2). Section 26.
HONG KONG LEGISLATIVE COUNCIL — 21 July 1993 4768
Item Enactment Provision
Section 31(1) and (3).
Section 65(1).
Section 66(1), (2), (3), (4), (5) and (8).
31. Section 23(1), (2) and (3).
Hong Kong Airport
(Control of
Obstructions) Ordinance
Section 24.
(Cap. 301) Section 25(2).
32. Partition Ordinance (Cap. 352)
33. Road Tunnels
(Government)
Ordinance (Cap. 368) Kowloon-Canton
Section 1A, definition of "Director". Section 2, definition of "Director".
34. Section 2(1), definition of "plan",
Railway Corporation Ordinance
(Cap. 372)
paragraph (a).
Section 7(7).
Fifth Schedule -
(a) paragraph 1;
(b) paragraph 3(c); (c) paragraph 5;
(d) paragraph 11(1); (e) paragraph 15; (f) paragraph 16; (g) paragraph 18(1)(a).
35. Section 123(3) and (4). Road Traffic Ordinance
(Cap. 374) Section 124(1) and (2).
HONG KONG LEGISLATIVE COUNCIL — 21 July 1993 4769 Item Enactment Provision
36. The Chinese University of Hong Kong
Ordinance (Cap. 1109)
37. Registrar General (Establishment)
(Transfer of Functions and Repeal)
Ordinance (8 of 1993)
Schedule 2, Part I, paragraph 2.
Section 32.
SCHEDULE 3
FUNCTIONS OF DIRECTOR OF BUILDINGS AND LANDS TRANSFERRED TO
DIRECTOR OF BUILDINGS AND DIRECTOR OF LANDS Item Enactment Provision
1. Lands Tribunal Rules
(Cap. 17 sub. leg.)
Rule 41(2) and (3).
2. Section 2, definition of "authorized Mass Transit
Railway (Land
Resumption and Related Provisions) Ordinance (Cap. 276)
officer".
Section 29(1).
3. Section 18(2). Hong Kong Airport (Control of
Obstructions)
Ordinance (Cap. 301)
Section 20(g).
SCHEDULE 4
FUNCTIONS OF DIRECTOR OF BUILDINGS AND LANDS TRANSFERRED TO
DIRECTOR OF ARCHITECTURAL SERVICES
Item Enactment Provision
1. Public Market
(Urban Council)
By-laws (Cap. 132 sub. leg.)
By-law 7(2)(a) and (b) and (3).
HONG KONG LEGISLATIVE COUNCIL — 21 July 1993 4770 SCHEDULE 5
"BUILDINGS AND LANDS DEPARTMENT" AMENDED TO "BUILDINGS DEPARTMENT"
Item Enactment Provision
1. Section 18(1)(b)(ii) and (3). Buildings Ordinance
(Cap. 123) Fourth Schedule, item 2.
2. Education
Ordinance (Cap. 279)
3. Hong Kong Airport (Control of
Obstructions)
(Consolidation) Order
(Cap. 301 sub. leg.)
4. Demolished Buildings (Re-development
of Sites)
Ordinance (Cap. 337)
Section 12(3) and (5)(c).
Paragraph 2, definition of "plans
approved by the Building Authority". Section 2(2).
SCHEDULE 6
"BUILDINGS AND LANDS DEPARTMENT" AMENDED TO "LANDS DEPARTMENT"
Item Enactment Provision
1. Crown Land
Regulations
(Cap. 28 sub. leg.)
2. Telecommunication Ordinance (Cap. 106)
3. Legal Practitioners Ordinance (Cap. 159)
Regulation 6(1).
Section 14(1)(a) and (3)(b). Section 20(5)(ii).
4. Rule 9(4)(g)(ii). Trainee Solicitors Rules
(Cap. 159 sub. leg.) Rule 20(1)(b).
HONG KONG LEGISLATIVE COUNCIL — 21 July 1993 4771 SCHEDULE 7
FUNCTIONS OF DIRECTOR OF BUILDINGS AND LANDS
TRANSFERRED TO
DIRECTOR OF BUILDING DEVELOPMENT
Item Enactment Provision
1. Metrication
Amendments
(Places of Public
Entertainment
Regulations) Order
(Cap. 214 sub. leg.)"
Paragraph 6.
He said: Mr President, I move the motion standing in my name on the Order Paper under the Interpretation and General Clauses Ordinance. This motion seeks to effect the reorganization of the Buildings and Lands Department by a resolution of this Council under section 54A of the Ordinance. The resolution proposes to transfer the statutory functions currently vested in the Director of Buildings and Lands to the Director of Buildings or the Director of Lands, and amend references to the Buildings and Lands Department to the Buildings Department or the Lands Department, as appropriate. The reorganization is proposed to take effect from 1 August 1993.
The existing Buildings and Lands Department is made up of four offices, namely, the Buildings Ordinance Office, the Lands Administration Office, the Survey and Mapping Office and the Legal Advisory and Conveyancing Office. Under the reorganization proposal, the Department will be split into a Buildings Department and a Lands Department. The Buildings Department will take over the existing functions of the Buildings Ordinance Office but will place greater emphasis on the problems of safety and maintenance of private buildings. The Lands Department will continue the land administration, land survey and mapping, and government conveyancing functions currently undertaken by the Lands Administration Office, the Survey and Mapping Office and the Legal Advisory and Conveyancing Office respectively. There will be no basic changes in the system of land administration and building control. The two new Departments will be directly under the policy responsibility of the Planning, Environment and Lands Branch.
The reorganization seeks to make the Buildings Ordinance Office a separate and independent Buildings Department, thus enabling it to cope with new demands in the field of private building control. Previously the emphasis of the Buildings Ordinance Office's work was on the processing of building plans and the certification of new buildings. More recently, it has shifted more resources to the inspection of safety of the existing buildings, control and enforcement action against unauthorized building works and building management. The establishment of the Buildings Department will give it a
HONG KONG LEGISLATIVE COUNCIL — 21 July 1993 4772
more distinct separate identity and greater accountability to the public, as well as enhance its performance. The reorganization will also facilitate more direct interaction between the Planning, Environment and Lands Branch and the two new departments on policy and resource allocation matters.
The reorganization will be achieved mainly through redistribution and adjustment of posts. The reorganization and the necessary changes in establishment were approved by the Finance Committee on 16 July 1993.
Thank you, Mr President.
Question on the motion proposed, put and agreed to.
First Reading of Bills
COMMISSIONER FOR ADMINISTRATIVE COMPLAINTS (AMENDMENT) BILL 1993
FOREIGN CORPORATIONS BILL
Bills read the First time and ordered to be set down for Second Reading pursuant to Standing Order 41(3).
Second Reading of Bills
COMMISSIONER FOR ADMINISTRATIVE COMPLAINTS (AMENDMENT) BILL 1993
THE CHIEF SECRETARY moved the Second Reading of: "A Bill to amend the Commissioner for Administrative Complaints Ordinance."
He said: Mr President, I move that the Commissioner for Administrative Complaints (Amendment) Bill 1993 be read for a Second time.
The purpose of the Bill is to give effect to the proposed changes to the COMAC redress system. They include direct access to the Commissioner, extension of COMAC's jurisdiction to major statutory bodies, and allowing COMAC to publicize investigation reports. These proposals have been put forward as a result of a comprehensive review of the COMAC redress system.
Because of COMAC's very important role as a safeguard against maladministration of the Government and public authorities, it had been our intention to review the operation of the COMAC Office, including its jurisdiction, after the system had operated for a reasonable period of time. As Members will be aware COMAC has now been in existence since 1989.
HONG KONG LEGISLATIVE COUNCIL — 21 July 1993 4773
A comprehensive review was thus carried out in mid-1992. A consultative document was made available to solicit public views on the system. A Legislative Council ad hoc group was also set up under the convenorship of the Honourable Fred LI to oversee the review.
The Government has studied very carefully the comments made by members of the public, the ad hoc group and the Commissioner. The Bill, now before Members, reflects the outcome of the review and I would like to discuss the three key recommendations in turn.
(I) Direct access
The first is direct access. At present, a complaint to the Commissioner has to route through and be referred by a non-official Legislative Council Member. During the consultation exercise there was a strong public wish to abolish the referral system so as to simplify the complaints procedures.
In the light of the public view expressed, the Administration has decided to change the system to enable the public to take their complaints directly to the Commissioner. This will make the COMAC Office more convenient to members of the public. Nevertheless, it will not prevent Legislative Council Members from referring cases to COMAC, so long as it is with the consent of the complainant.
(II) Extension of COMAC's jurisdiction to major statutory bodies
On the extension of COMAC's jurisdiction, it is the Government's policy to extend COMAC's remit to major statutory bodies gradually, having regard to the functions of the body and the extent of dealings with the public.
Priority is being given to include under COMAC's jurisdiction those statutory bodies which provide an essential service to the community. Taking into account public views and recommendations by the ad hoc group, we propose to include, at this stage, six public bodies under COMAC's jurisdiction. They are the Mass Transit Railway Corporation, the Kowloon-Canton Railway Corporation, the Securities and Futures Commission, the Urban Council, the Regional Council and the Housing Authority.
All of these bodies except the municipal councils have agreed to the proposed inclusion. The Urban Council and Regional Council have expressed opposition to the proposal. Some Urban Council and Regional Council Councillors are of the view that the municipal councils are primarily concerned with policy issues which fall outside COMAC's remit, that ample appeal channels already exist for the public to take their grievances to the Councils, and that as largely elected bodies, the Councils are already fully accountable to the public who could express their dissatisfaction, should they so wish, at the ballot box.
HONG KONG LEGISLATIVE COUNCIL — 21 July 1993 4774 We do not agree with the municipal councils' views:
Firstly, the Urban Council and the Regional Council provide essential municipal services to the public and their activities have direct and significant impact on the daily livelihood of the public. For them to be exempted from COMAC's independent monitoring would clearly be against the wishes and interests of the public.
Secondly, although the Urban Services Department and the Regional Services Department are subject to COMAC's jurisdiction, it is not logical that the parent bodies should be excluded. To have an effective system, it is important that not only the executive agencies of the Councils are included, but also the principal bodies. This is to ensure that COMAC's recommendations involving the Councils could be effectively pursued.
Thirdly, elected members' accountability to their constituents should not be confused with the provision of an independent redress system.
Voting elected members out of office cannot in itself help the aggrieved individual. COMAC can help the complainant seek proper and immediate redress through his investigations and recommendations made to the Council.
Finally, I would emphasize that there is no question of the independence of the municipal councils being compromised. The functions and autonomy of the municipal councils are provided for and governed by their respective Ordinances.
The Administration strongly believe that the municipal councils should be added to the list of organizations subject to COMAC's monitoring. To do so can only enhance public confidence in the Councils. As regards other major statutory bodies, they will be brought in gradually.
(III) Publication of investigation reports
The third key change to the system is that COMAC will be empowered to publish case reports which he considers may be of public interest. This will help promote public awareness of and confidence in the COMAC system, and will certainly provide a useful check for the departments and public bodies. The proposal is in line with similar practice in other countries such as the United Kingdom and Canada. To protect privacy of the complainants, the names of both the complainants and the officers will be omitted but the names of the departments could be disclosed.
HONG KONG LEGISLATIVE COUNCIL — 21 July 1993 4775
I am sure the public will welcome the above proposals as a positive step taken by the Government to enhance the image and effectiveness of the COMAC redress system.
Mr President, I beg to move.
Bill referred to the house Committee pursuant to Standing Order 42(3A).
FOREIGN CORPORATIONS BILL
THE SECRETARY FOR FINANCIAL SERVICES moved the Second Reading of: "A Bill to provide for the corporate status in Hong Kong of bodies established or formerly established under the laws of certain territories outside Hong Kong."
He said: Mr President, I move the Second Reading of the Foreign Corporations Bill.
The objective of the Bill is to allay concern over the corporate status in Hong Kong of a body established under the laws of a foreign territory which is not recognized by the United Kingdom as a state. This is a short and straightforward Bill, and is modelled closely on the 1991 United Kingdom Foreign Corporations Act.
The United Kingdom Act represented a response to concern in the United Kingdom over the uncertainty of the status of corporations incorporated in territories not recognized by the United Kingdom as states. This issue was one of particular importance to those United Kingdom parties which had entered, or intended to enter, into contractual relationships with these corporations. The Act provided that the question of corporate status would be determined as if the relevant territory were a recognized state. It is a solution to a problem in the field of international commerce, and has nothing to do with recognition of states itself which is a matter of foreign relations.
Until the enactment of the United Kingdom Act, the law was uncertain as to whether the legal personality of a corporation incorporated in a state not recognized by the United Kingdom could be accepted. The Act has enabled the legal capacity of such corporations to be accepted. Under the Act, the question which the courts and others have to consider is whether there is a corporation established by laws which are applied by a settled court system in the territory in question.
In Hong Kong, similar concern about the legal capacity of corporations from territories not recognized by the United Kingdom has also been expressed, particularly by the legal profession. The introduction of the Bill is intended to allay such concern and to give primacy to commercial reality. Given the
HONG KONG LEGISLATIVE COUNCIL — 21 July 1993 4776
unpredictability of the international climate, the Bill will play a useful role of ensuring stability and continuity in Hong Kong's trading and commercial relations with other territories.
Clause 2(1) provides that where a question arises as to whether a body established under the laws of a territory not recognized by the United Kingdom as a state, and it appears that the laws of that territory are at that time applied by a settled court system in that territory, then the question of whether the body should be regarded as having legal personality as a body corporate under Hong Kong law and other material questions shall be determined as if that territory were a recognized state.
Clause 2(3) provides that any act done before the commencement of the Ordinance is regarded as valid if it would have been valid pursuant to the provisions of the Ordinance. This clause validates acts undertaken on the basis that a corporate body from a non-state had legal personality under Hong Kong laws. To that extent, the Bill has retrospective effect. The retrospective element, however, is no more than necessary. It is directed, first, at those corporate bodies which may have entered into or incurred legal obligations and may subsequently seek to maintain that those obligations do not bind them because at the time they had no legal personality as corporations under the laws of Hong Kong. Secondly, it will remove the risk that those who have dealt with such bodies may claim that such bodies had no legal personality in the eyes of our law and that therefore obligations entered into with them need not be honoured.
Mr President, I wish to emphasize that, as in the case of the United Kingdom Act, the Bill does no more than clarify the status of foreign corporations in the light of commercial realities. It does not have any bearing on the recognition of states which is clearly and absolutely a matter of foreign policy for the British Government. What the Bill will do is reassure and encourage companies in the commercial and financial world.
Bill referred to the House Committee pursuant to Standing Order 42(3A).
EMPLOYEES' COMPENSATION (AMENDMENT) BILL 1993
Resumption of debate on Second Reading which was moved on 26 May 1993 Question on Second Reading proposed.
MR RONALD ARCULLI: Mr President, the background and the salient features of the Bill were clearly explained by the Secretary for Education and Manpower at the Second Reading of the Bill on 26 May 1993. In brief, the Bill seeks to raise the maximum level of compensation for permanent total disability and death, improve the schedule for assessment of permanent incapacity,
HONG KONG LEGISLATIVE COUNCIL — 21 July 1993 4777 provide for direct claims to be made against an insurer, and streamline existing procedures.
Before I report on the deliberations of the Bills Committee, let me start by expressing my appreciation of the Administration's co-operation in responding so efficiently to members' requests, as well as members' active involvement in putting forth the various concerns which have facilitated discussions.
Members of the Bills Committee supported unanimously the improvements proposed in the Bill, which should go some way in securing a better compensation package for the employees. Some members however have grave reservations about the estimated consequential increase in insurance premium, which is said to be as high as 40% compared to the 1991 total premium, or 32% compared to the 1992 total premium. We have tried to ascertain whether the increase in premium is justified based on previous compensation claims. Statistics provided by the Administration on the employees' compensation cases in the past two years indicate that there was no significant change in the pattern of claims: 79% of them involved no permanent incapacity, while 19% suffered 1-5% permanent incapacity, with less than 0.3% total incapacity or fatal cases. Members have been informed that premium rates would have to take into account future liabilities, that about 65% of the premium insurance have to be spent on reinsurance, payment of commission, and administrative expenses, and that the insurance industry had operated at a loss in 1991. Members also accept that they should not interfere in the internal operations of the insurance industry, and reckon that the actual premium for each insurance policy would be subject to negotiations between the insurer and the employers. It is nevertheless the sincere wish of members that the insurance industry would exercise restraint and would not set the insurance premium at an unreasonably high level. In this regard, the Administration has undertaken to reflect members' concern to the insurance trade.
The Bills Committee has discussed with the Administration the possibility of under declarations of the number of employees actually employed by some employers in taking out insurance policies. This may have contributed to the estimated high level of premium rates. Members urged the Administration to take steps to ensure that the insurance policies covered the total number of employees, for instance, by checking the number of employees against the insurance policies during factory inspections. In response, the Administration has agreed to look into ways to enforce the provisions requiring all employees to be insured.
Members have sought clarification on why the levels of compensation proposed in the Bill should take effect on 1 January 1994. The Administration advised that, according to established practice, the levels of compensation are adjusted once every two years, with the last revision on 1 January 1992. Besides, the insurance industry had indicated that there would be operational difficulties if the level of compensation were revised in the middle of the year.
HONG KONG LEGISLATIVE COUNCIL — 21 July 1993 4778
Members have considered the suggestion of a phased implementation of the levels of compensation to reduce the cost impact. The suggestion did not gain the support of members as it would affect the benefits of employees and dependants of deceased employees covered by the Bill.
On the provision concerning insurer's liability under the proposed section 42, members have been advised by the Administration that there were cases in the past where injured employees were unable to draw compensation as a result of some exclusion clauses in the insurance policies, and the provision was intended to rectify such situations. Members find it acceptable that there should be greater protection to the injured employees in securing compensation claims. However, members consider it unfair to the insurer if the provision would have retrospective effect. The Administration has now agreed that the provision should only apply to insurance policies issued after the commencement of the section, and that the section would commence on 1 January 1994. Appropriate amendments will be introduced by the Secretary for Education and Manpower at the Committee stage.
With these remarks, Mr President, and subject to the amendments to be moved at the Committee stage, I support the Bill.
MR NGAI SIU-KIT (in Cantonese): Mr President, the present Bill under debate before this Council concerning employees' compensation has an impact that reaches far beyond this Chamber to the millions of employees of Hong Kong. Our economy and the community's concept about industrial safety will also be impacted upon by this proposed amendment.
According to the Administration's proposed amendment, the maximum level of compensation for permanent total incapacity and death in the course and arising out of work will be scrapped and substituted by a computing formula which uses a monthly pay of $15,000 as the uppermost benchmark figure for the calculation of compensation. As a result, the highest compensation awarded, whether it be in the case of permanent total incapacity or even death, will be more than doubled as compared with the maximum amount before.
Such proposed amendment, derived from the review conducted every two years as stipulated by the Ordinance, will enable an employee with a monthly pay of over $6,452 to receive a higher compensation in case of accident. I am supportive of an appropriate increase in compensation, but I must stress that there has to be a limit. Limitless compensation will surely be alluring to employees. Such kind of compensation is poison coated with sweet that will impose an open-ended liability on society, aggravate the conflict between employers and employees and may cast a shadow upon our harmonious labour relations. The reasonable allocation of the resources of our society will also be affected to a certain extent.
HONG KONG LEGISLATIVE COUNCIL — 21 July 1993 4779
According to an assessment by a firm of actuary consultants, the amendment, if passed, will incur an additional compensation commitment of $175 million in 1994. On the basis of this figure, the Accident Insurance Association of Hong Kong has estimated that an increase of $500 million in insurance premium will be required. I have no way of telling whether or not such an amount of increase is reasonable, because only the insurance industry has the information for analyzing and assessing the equilibrium point between the premium and the compensation. But what is sure is that the increase will be shouldered by and will obviously be a burden to employers. Generally speaking, that will also increase indirectly the cost of production.
Mr President, I am not against giving employees the protection that they are entitled to. If increasing the compensation can give employees a reasonable protection that can enable them to work without worries, it will surely be a benefit to employers as well. So why not do something that can benefit others and oneself? But a large increase in insurance premium or even a limitless growth in the amount of compensation will only raise the cost of production, thus setting in motion a vicious cycle that will make inflation even worse and have an adverse effect on our overall economic development. Eventually, it will be disadvantageous to both employers and employees. We must consider seriously before adopting such a change in policy that will only bring difficulties but no advantages.
In fact, raising the employees' compensation is only a remedial measure. I am not saying that an adjustment in compensation is unnecessary, but the problem lies really in prevention of accidents. The Administration should allocate more resources to the promotion of occupational safety, especially industrial safety. This is the proper way to tackle the problem, and not pinpointing who should be held responsible and finding remedies and assistance every time when an accident broke out.
The amendment also proposes that an injured employee may institute proceedings directly against his employer's insurer to claim compensation, and need not sue his employer first. Such an amendment is appropriate because it simplifies the procedure of claiming compensation and clarifies on whom such claims should be filed.
Mr President, I would like to point out incidentally that the Administration has the responsibility to strike a balance between this policy under consideration and the welfare of society, and consider formulating a mechanism which can provide appropriate guidelines to and exercise appropriate monitoring on the insurance industry. Only by so doing can it be ensured that employers are paying a reasonable premium and injured employees will be able to receive the compensation they are entitled to.
Mr President, I so make my submission. With reservations, I support the amendment.
HONG KONG LEGISLATIVE COUNCIL — 21 July 1993 4780
MR TAM YIU-CHUNG (in Cantonese): Mr President, when the Bills Committee on Employees' Compensation (Amendment) Bill 1993 met, most of our discussions were focused not on the Bill itself but rather on the Bill's proposal to raise the maximum level of compensation for permanent disability and death and the consequential increase in insurance premium. It was pointed out by the Hong Kong Federation of Insurers that, if the proposal was accepted, the premium would increase by 40% as compared to that in 1991. And the Government estimated that the increase would be 32% over 1992. The ratio between the premium and labour costs will thus go up from the original 0.9% or so to 1.4%. That is why the employers felt quite strongly during the deliberation of the Bill.
Moreover, during the deliberation of the Bill, we find that the operating expenses of the employees' compensation insurance account for as high as 65% of the premium. The operating expenses include reinsurance cost, payment of commission and administrative expenses. That is to say, only 35% of the premium are left for compensation payment. This reveals the relatively high operating costs of the employees' compensation scheme. In other words, the efficiency of such a compensation mechanism is rather low. In comparison to similar schemes in countries, whose operating expenses account for only 10% of the premium, ours are obviously very high. Nevertheless, the Government said that it is difficult to assess whether the scale of increase in premium and the operating cost is justified whereas the Insurance Officer also expressed the view that it is inappropriate to apply administrative means to intervene the setting of premium by the insurance industry. Under such circumstances, why should we not set up a centralized mechanism for employees' compensation under government control?
Experiences from many nations and regions show that operating cost drops drastically when insurance mechanism turns from privately operated into publicly operated. Take Taiwan for an example, when the labour insurance scheme was first introduced, private insurance companies were the insurers. But nowadays, the government-operated Labour Insurance Bureau has replaced the private insurance companies. This indicates that employees' compensation has become a prevailing trend. From the economic point of view, centralization, institutionalization and standardization can help to save administrative expenses and commission payment. And such a scheme is non-profit making. As a result, the operating cost can be reduced substantially to make the compensation mechanism cost effective. Suffice it to say that a centralized and government-operated employees' compensation mechanism is not only economically justified but also a valid option to both employees and employers. The labour sector has been striving for the establishment of a central employees' compensation scheme for years. Today, we find it more opportune to set up such a mechanism. I, therefore, urge the Government to consider setting up the mechanism expeditiously.
Mr President, I support the amendments to the Bill.