HONG KONG LEGISLATIVE COUNCIL — 10 November 1993 733 OFFICIAL RECORD OF PROCEEDINGS
Wednesday, 10 November 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 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.
DR THE HONOURABLE DAVID LI KWOK-PO, O.B.E., LL.D., 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.
THE HONOURABLE MRS MIRIAM LAU KIN-YEE, O.B.E., J.P.
HONG KONG LEGISLATIVE COUNCIL — 10 November 1993 734 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 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 FRED LI WAH-MING
THE HONOURABLE MAN SAI-CHEONG
THE HONOURABLE STEVEN POON KWOK-LIM
THE HONOURABLE HENRY TANG YING-YEN, J.P.
HONG KONG LEGISLATIVE COUNCIL — 10 November 1993 735 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.
THE HONOURABLE ALFRED TSO SHIU-WAI
ABSENT
THE CHIEF SECRETARY
THE HONOURABLE SIR DAVID ROBERT FORD, K.B.E., L.V.O., J.P. THE HONOURABLE MRS PEGGY LAM, O.B.E., J.P.
THE HONOURABLE MARVIN CHEUNG KIN-TUNG, J.P.
THE HONOURABLE ERIC LI KA-CHEUNG, J.P.
IN ATTENDANCE
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
MRS ELIZABETH WONG CHIEN CHI-LIEN, I.S.O., J.P.
SECRETARY FOR HEALTH AND WELFARE
HONG KONG LEGISLATIVE COUNCIL — 10 November 1993 736
MR ANTHONY GORDON EASON, J.P.
SECRETARY FOR PLANNING, ENVIRONMENT AND LANDS
MR HAIDER HATIM TYEBJEE BARMA, I.S.O., J.P.
SECRETARY FOR TRANSPORT
MR DONALD TSANG YAM-KUEN, O.B.E., J.P.
SECRETARY FOR THE TREASURY
MR MICHAEL DAVID CARTLAND, J.P.
SECRETARY FOR FINANCIAL SERVICES
MR STUART WREFORD HARBINSON, J.P.
SECRETARY FOR THE CIVIL SERVICE
MR LAM WOON-KWONG, J.P.
SECRETARY FOR EDUCATION AND MANPOWER
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 — 10 November 1993 737 Papers
The following papers were laid on the table pursuant to Standing Order 14(2): Subject
Subsidiary Legislation L.N. No.
Amusement Game Centres (Appeal Board)
Regulation ............................................................................................... 435/93 Amusement Game Centres (Fees) Regulation................................................. 436/93 Travel Agents (Amendment) Regulation 1993................................................ 437/93
Statutes of the Chinese University of Hong Kong
(Amendment) (No. 3) Statute 1993 ......................................................... 438/93
Sessional Papers 1993-94
No. 23 — Revisions of the 1993-94 Estimates
Approved by the Urban Council
During the Second Quarter of the 1993-94 Financial Year
No. 24 — The Prince Philip Dental Hospital Hong Kong Report by the Board of Governors
for the Period 1 April 1992 - 31 March 1993
No. 25 — Regional Council Revised Estimates of
Revenue and Expenditure 1993-94
No. 26 — Regional Council Annual Report 1992-93
No. 27 — Regional Council, Hong Kong
Accounts for the Year ended 31 March 1993
with Report and Certificate of the Director of Audit
Oral answers to questions
Domestic violence
1. MRS SELINA CHOW asked: Will the Government inform this Council what interdepartmental strategy has been adopted for handling of cases of domestic violence?
HONG KONG LEGISLATIVE COUNCIL — 10 November 1993 738
SECRETARY FOR HEALTH AND WELFARE: Mr President, domestic violence can take many forms, including spouse battering, child abuse and fights between family members. We have now in place a well-established system of co-operation and referrals between government departments and hospitals for handling cases of domestic violence. The police, the Hospital Authority, the Department of Health and the Social Welfare Department have standard procedures for dealing with spouse battering and child abuse cases.
When a case of domestic violence is reported to the police, they will liaise with the Social Welfare Department to provide counselling for the victim and will immediately make arrangements for him or her to be sent to a hospital for medical examination and treatment. Upon referral, the Social Welfare Department will provide counselling and assistance. Financial assistance, child care service, temporary refuge or accommodation, referrals for legal aid and compassionate rehousing are provided to the victims. Where necessary, court proceedings will be initiated for the care of the abused child. Similarly, the hospitals and the Social Welfare Department will liaise with the police and each other if they come across cases of domestic violence.
Through close co-operation and well-defined referral procedures, the relevant departments and the hospitals have a clear understanding of their respective responsibilities and prompt action is taken to help victims of domestic violence and their families.
MRS SELINA CHOW (in Cantonese): Mr President, we all know wife abuse cases are on the increase now and an interdepartmental working group has been set up to tackle effectively, especially in preventive and remedial work, the problem of child abuse. Then why has there been no similar working group on wife abuse to deal with this mounting social problem?
SECRETARY FOR HEALTH AND WELFARE: Mr President, our strategy has always been to establish close integrated co-operation between departments and to put in place a well-defined and streamlined referral system, so that victims of domestic violence will be assisted immediately.
MRS SELINA CHOW (in Cantonese): Mr President, I think the Secretary has not answered my question. My question is: Why has the Administration not set up an interdepartmental working group on wife abuse similar to the one on child abuse?
SECRETARY FOR HEALTH AND WELFARE: Mr President, abuse of any kind is a serious matter in that it endangers or impairs one's physical and mental well-being. Any abuse — be it child abuse or wife abuse or, indeed, husband abuse — causes tremendous pain and suffering not only to those abused but also
HONG KONG LEGISLATIVE COUNCIL — 10 November 1993 739
to others around them. Our strategy has always been to concentrate on prevention rather than cure because prevention is always better than cure, as I explained in the adjournment debate on wife abuse on 10 March this year. I have also explained the reason why we feel that in any system to help victims of domestic violence the actual procedure adopted should have much more effect in terms of help to the individuals concerned than would any committees which talk about policy in the vacuum.
MRS MIRIAM LAU (in Cantonese): Mr President, I understand that the Administration is not willing to fund a hotline for wife abuse cases. May I ask the Secretary why the Administration is unwilling to do so? Does the Administration have any effective measures to prevent or minimize wife abuse cases?
PRESIDENT: There are two questions, Secretary.
SECRETARY FOR HEALTH AND WELFARE: Mr President, on the first question regarding a hotline for wife abuse cases, we would certainly welcome calls to the Social Welfare Department's hotline which is manned by staff who handle all types of abuses and respond immediately to questions. The hotline is of course for cases which involve, among others, spouse abuse. So I would suggest that people who want assistance should call the Social Welfare Department's well understood hotline. If there is a case for a separate hotline, then, certainly, I am sure the Social Welfare Department will consider it.
As regards the second question, could I ask Mrs Miriam LAU to repeat it because I have quite forgotten it?
PRESIDENT: I think we had better go to another question and see if there is time for your long supplementary, Mrs LAU.
MR FREDERICK FUNG (in Cantonese): Mr President, recently the Complaints Division of the Legislative Council received a number of complaints and requests for help from women who were victims of abuse. They had applied to the Social Welfare Department for "compassionate housing" so that they could be given temporary accommodation in public housing estates in the interim, and pending court order on their divorce, they could then decide whether they would stay on or move out. Their complaints were that when they made their enquiries with the Social Welfare Department, the staff there were blunt or did not understand their problem, and normally it was very unlikely that they got the so-called "compassionate housing". Will the Secretary review the whole
HONG KONG LEGISLATIVE COUNCIL — 10 November 1993 740
administrative procedure for "compassionate housing" to see if there were women who were victims of abuse but did not get this benefit?
SECRETARY FOR HEALTH AND WELFARE: Mr President, as I said earlier, there has already been close co-operation between departments — the Social Welfare Department and the Housing Department — and various other organizations to handle spouse abuse cases. Close departmental co-ordination is already reflected in the introduction of the Public Housing Conditional Tenancy Scheme in 1991. The scheme was worked out by the Social Welfare Department, the Housing Department and the Legal Aid Department to provide conditional tenancy on compassionate grounds for eligible spouses who are undergoing divorce proceedings. And indeed, as at 30 October, a total of 318 cases had been recommended by the Social Welfare Department to the Housing Department for consideration for compassionate housing, and of those, 238 have already been successful and have been duly advised. I feel that if there are areas of complaint, obviously we have to look into the procedure to see if we can expedite things or to see if we can better help the individual.
MS ANNA WU: Mr President, can the Government inform us what resources have been employed to specifically train policewomen and policemen to handle domestic violence cases? And do we have a specific number regarding those who are so trained and currently working in the Police Force?
SECRETARY FOR HEALTH AND WELFARE: Mr President, may I defer to the Secretary for Security on police matters?
SECRETARY FOR SECURITY: Mr President, I do not know. I will give an answer in writing. (Annex I)
PRESIDENT: An answer in writing, Ms WU.
MS ANNA WU: Thank you, Mr President.
MR TIK CHI-YUEN (in Cantonese): Mr President, the Secretary attached great importance to prevention when she talked about the handling of domestic violence cases just now. The existing family services, however, only focus on remedial services such as the setting up of family services centres and the provision of counselling services. Does the Administration have any plans to introduce, or subvent other voluntary agencies to provide, more services in this respect, especially more on the side of prevention and with a more pro-active approach than merely providing remedial services?
HONG KONG LEGISLATIVE COUNCIL — 10 November 1993 741
SECRETARY FOR HEALTH AND WELFARE: Mr President, I think it is necessary to improve family services generally — not only the services provided by the Social Welfare Department but also services provided by the subvented sector — in order to enable caseworkers to spend more time with their clients and also to devote more resources to preventive work. We intend to enhance this in the 1994-95 financial year.
MR EDWARD HO: Mr President, I refer to the response the Secretary gave to Mrs Selina CHOW. It is all very well for her to say prevention is better than cure, but if the incidence of wife abuse has continued to go up in number, will the Secretary not agree that something more has to be done and that a cross-department working group to look into the problem is not, as she says, "talking in a vacuum"?
SECRETARY FOR HEALTH AND WELFARE: Mr President, when we talk about spouse abuse we are talking not only about wife abuse but also husband abuse; any form of abuse is a tragedy. I would appeal, first of all, to those who abuse their wives to stop abusing their wives. I think prevention should start with society through education first, before we talk about interdepartment working groups.
MR HENRY TANG: Mr President, domestic violence, including, say, spouse battering, child abuse and severe fights between family members, many times go unreported by the family members for fear of embarrassment to the family. In those cases where they are not reported to the police — as mentioned in the second paragraph of the Secretary's main reply — it seems to me that no action can be taken. So as regards those cases which are not reported, how will the Secretary address, shall we say, this "vacuum"?
SECRETARY FOR HEALTH AND WELFARE: Mr President, I think it is true to say that domestic violence tends to be a much under-reported crime and that it can happen to wives, husbands and children — and particularly children because, being unable to protect themselves, they are the primary object of protection by the Director of Social Welfare. In the case of fights between husbands and wives which are not reported, I think the best way to prevent the rising incidence of abuse is still through family life education, because that would encourage people to come forward to seek help, as was done with child abuse cases. I think Members will recall that 10 years ago even child abuse cases were not readily reported because people were very reluctant to expose what they called "family business" in public. But I think family life education can encourage many more people to come forward to use the hotline of the Social Welfare Department to report cases, and through that we can encourage more people to seek help. And other than that, I think we would probably rely very much on the common sense of society and also on preventive work.
HONG KONG LEGISLATIVE COUNCIL — 10 November 1993 742 Deposits in dormant accounts
2. MR CHIM PUI-CHUNG asked (in Cantonese): Will the Government inform this Council:
(a) whether it is aware of the amount of money involving deposits in dormant accounts in the banking system of Hong Kong which has been treated as "unclaimed"; and
(b) of the policy to deal with those deposits and whether consideration will be given to requiring the banks to hand over the deposits concerned to the Government for disposal?
SECRETARY FOR FINANCIAL SERVICES: Mr President
(a) In the absence of industry-wide or international definitions, classification of dormant accounts and unclaimed deposits varies from bank to bank. It is not possible therefore to have an accurate figure for unclaimed deposits in the banking system.
(b) Individual banks have their own internal guidelines and policies for the classification of dormant accounts and for the treatment of unclaimed deposits. According to a survey of the leading local banks, while many of the institutions do classify some of their deposits as unclaimed if the accounts concerned have been inactive for a certain period, it is a general practice that they do not discharge their obligations on such deposits. In other words, if and when the deposits in question are eventually claimed, the banks will still repay the amount in full, save for any charges which may be applicable to the transaction.
The Government does not intend to require banks to hand over unclaimed deposits for disposal. We are not aware that the present situation causes any major practical difficulties and we believe that this is a matter best handled in the context of the normal banker-customer relationship.
MR CHIM PUI-CHUNG (in Cantonese): Mr President, the Administration's reply indicated that there was no past record, and seemed to show no concern in this respect and also no intention to amend the relevant policy in future. In fact, there were indications that a very large amount of money was involved before and after the Japanese occupation period, but the Administration simply showed no concern. Nowadays, many people of Hong Kong have emigrated to other countries. Some of them do not want to let their family know how much money they have, nor do they want other people to use their money after they die. So the Administration should consider following the practice of other countries and
HONG KONG LEGISLATIVE COUNCIL — 10 November 1993 743
introduce legislation so that for deposits which have not been used for over seven years and where the depositor cannot be found, the Government can put them into a fund for practical use. Moreover, the Administration should require the existing banks to provide a service that the banks have to notify a depositor's family or his trustee if he cannot be found and has not been in touch with the bank for a period of time. Will the Administration consider introducing legislation in these two respects?
SECRETARY FOR FINANCIAL SERVICES: Yes, Mr President. First of all, I did not say there was no record. The banks of course do keep records and they do have their own classifications of what they mean, for their own internal administrative purposes, by dormant or unclaimed deposits. But because these records are different from one bank to another there is no meaningful figure that can be derived for the whole banking sector. That is very different from saying that there is no record.
Secondly, I did not say that the Government was not concerned about this issue. Of course the Government is concerned. What we are concerned about is to ensure that there is an adequate system and we believe that there is. There are perfectly reasonable legal principles and banking practice principles that apply in this area which cover the points made by Mr CHIM. Let me just recount what those principles are because I think it would be helpful to the understanding of the subject if I were to just run over what I am advised are the legal principles applying here.
First of all, Mr President, a bank deposit has the legal character of a loan; money paid in becomes a part of the general assets of the bank and the relationship of the banker and customer is that of a debtor and creditor, together with the super-added obligation arising out of the custom of bankers to honour the customers' cheques. However, the ordinary rule that a debtor must seek out his creditor, which is the point to which Mr CHIM was referring, does not apply in the case of banks. Rather, the banker's duty is to repay money or any part of it upon demand being made by the customer. The customer would have a right of action at law only after a demand has been made. There is of course a six-year statutory limitation on bringing an action founded on simple contract but that only starts to run after a demand has been made, and, in any event, bankers have not been in the habit, as a matter of business, of setting up the statute of limitation against their customers.
Mr President, against that background, it does seem to us that the important point is that debts will be honoured despite the lapse of time; they can be claimed either by the depositor or by his estate and it is simply a matter of establishing the bona fides of the claim. And therefore there would be no difference in that situation if the Government were to take it over, since the money would still have to be held on trust for payment at the end of the day. As long as the banking system is secure, as long as these well established
HONG KONG LEGISLATIVE COUNCIL — 10 November 1993 744
principles of law and practice are followed, there seems to be no justification for the Government to be involved.
MR PETER WONG: Mr President, will the Secretary inform us whether he is aware of any other jurisdiction which does require banks to hand over unclaimed or dormant accounts?
SECRETARY FOR FINANCIAL SERVICES: Yes, Mr President. In Hong Kong we generally follow the British system and the system in the United Kingdom is the same as that which I have outlined here. Japan also follows the same system. I am aware, though, that the United States has a system where the Federal Reserve will take over unclaimed bank deposits after a certain lapse of time. That may well be because of different legal provisions applying — different from those which I have outlined. It may also be relevant to note that the American banking sector is comparatively unstable. The bank failures during the 1980s reached over 200 per annum in 1988 and 1989, and were still running at over 100 per annum last year. That is very far from being the case here in Hong Kong.
DR PHILIP WONG (in Cantonese): Mr President, many banknotes were lost over the years. Some were burned, some were dropped into the sea, and some became collectors' items. They therefore were out of circulation. Did the Administration have any estimate on the situation and how will it handle the problem?
SECRETARY FOR FINANCIAL SERVICES: No, Mr President, we have no record of that. And, obviously from the nature of the subject as described, I would have thought it unlikely that such records would exist. It seems to be somewhat removed from the broad subject of the question which asks of the normal policy for dealing with unclaimed deposits inside the banking system.
PRESIDENT: Is your question directed to unclaimed accounts, Dr Philip WONG?
DR PHILIP WONG (in Cantonese): Mr President, my question concerns mainly the banknotes that were out of circulation. I believe the people of Hong Kong do not know how much that will amount to, but I guess the amount will be enormous. Does the Administration have any means to estimate the sum concerned and how will it handle these monies?
HONG KONG LEGISLATIVE COUNCIL — 10 November 1993 745 PRESIDENT: That does not really come under the answer as regards unclaimed accounts.
DR HUANG CHEN-YA (in Cantonese): Mr President, we do not know indeed how serious the problem is, so it seems that the Administration should collect more information in this regard for our reference. Will the Administration consider requiring banks to submit data on these dormant accounts such that the Administration can know what the current position is? Besides, we know that the holders of some of these accounts may have passed away and their relatives may not know of the deposits and will have no way of finding out these deposits. But if the Administration has kept a clear record of such deposits, the relatives will then be able to recover these deposits. In a recent court case, an American found that some Hong Kong stocks of his grandfather were missing. After some inquiries, it has been found that the stocks are now worth some $5 million. So if the relatives can discover these accounts, they will be able to recover a large sum of money which will be very helpful to them. Will the Administration consider requiring banks to provide this kind of record?
SECRETARY FOR FINANCIAL SERVICES: Mr President, the Administration does not follow the habit of requiring banks to report information that the Administration itself does not feel that it needs to know about. And the reason I say that is because we take the view that, if the principles applying and the system applying is satisfactory, then that in itself should be sufficient. There is no indication that there is indeed any problem at all here. It is not a question of how serious the problem is. There is no indication that there is a problem at all. The system does seem to be operating. And for the reasons I explained when I outlined the legal principles, the normal practice that a debtor should seek out the creditor does not apply in the case of the relationship between a banker and a customer. If indeed it did apply, it could well result in a situation where monies might be repaid to the creditor and then outstanding cheques would not be honoured and that would be a very serious situation because the honouring of cheques is one of the most important duties of a banker. We have no indication, as I say, Mr President, that there is a problem. But if Dr HUANG or any other Members interested in this subject have information that would help, we would be happy to consider it.
Safety standards of homes for the aged
3. MR HUI YIN-FAT asked (in Cantonese): After a recent inspection of homes for the aged throughout the territory, the Fire Services Department pointed out that the safety standards of five of these institutions were so worrying that the joint efforts of the government departments concerned were urgently needed to tackle the situation. Furthermore, 305 homes for the aged have not installed automatic sprinklers and smoke detectors as required by the relevant Codes of Practice. In view of the above situation, will the Government
HONG KONG LEGISLATIVE COUNCIL — 10 November 1993 746
inform this Council, pending the completion of the legislative process to impose regulatory control on private homes for the aged, what measures are in place to ensure that operators will comply with the existing Codes of Practice and what arrangements will be made to cope with the likely effects which the proposed legislation will have on services to be provided by homes for the aged?
SECRETARY FOR HEALTH AND WELFARE: Mr President, the Administration attaches great importance to the safety and quality of service of residential care homes for the elderly people. Subvented homes run by non-governmental organizations are generally providing a high standard of service for elderly persons. The quality of service in some private homes has, however, been a cause of concern.
To help private homes maintain a high standard of service, a Code of Practice for Private Homes for the Elderly has been published to provide service guidelines for home operators. One chapter of the Code is devoted entirely to safety and fire precautions. At present, we have no legislative powers to require private homes to provide a sprinkler system or an automatic fire detection system as recommended in the Code.
Homes are referred to the Fire Services Department for inspections on fire safety by the Social Welfare Department. Subsequent to the fire bomb attack in June this year on a home at Boundary Street, the Fire Services Department has indeed stepped up visits to these homes. Since then, a total of 530 visits have been conducted. All homes have been visited at least once. Staff of the Social Welfare Department also pay regular visits to private homes to urge home operators to comply with the Code. After each visit, a letter will be issued to the operator to point out areas for improvement, including safety measures if these are found not to be adequate. The department also issues letters from time to time to all home operators to remind them of the importance to observe safety precautions.
The most effective means to control the standards of residential care homes is by legislative control. The Residential Care Homes (Elderly Persons) Bill was introduced into this Council last week. The main purpose of the Bill is to ensure that residential care homes for the elderly are of a standard acceptable to the community of Hong Kong. I wish to take this opportunity to urge Honourable Members to accord priority to the examination of this Bill. We hope that the legislation can be enacted early to ensure that homes will be able to improve their service according to the conditions imposed under the Bill.
MR HUI YIN-FAT (in Cantonese): Mr President, I am grateful to the Secretary for informing this Council that after each visit to a private home, a letter will be issued to the operator to point out areas for improvement if inadequacies are found. But our concern is that should these operators refuse or fail to make any improvement, and there are in reality high potential risks, what measures will
HONG KONG LEGISLATIVE COUNCIL — 10 November 1993 747
the Administration take, especially in the interim pending the completion of the legislative process, to prevent these homes from posing any threats to the lives of the residents?
SECRETARY FOR HEALTH AND WELFARE: Mr President, according to the current code of practice for minimum fire service installations and equipment, the fire safety requirements for the homes for the aged and residential homes are the same as those for other institutional buildings. The major fire service installations required include the sprinkler system. Operators of existing homes should find no major difficulty in complying with the requirements, except for those homes situated in buildings without fire service water tanks. Homes in this latter group may find it more difficult to install the sprinkler system. In that case, we will do our best to arrange with the Water Supplies Department to obtain sprinkler water directly from the town mains to overcome the water supply problem.
In respect of the five homes referred to in the main question, the major problem with these five homes is that they are situated in premises considered unsuitable for use as homes for the aged. Additional fire safety requirements would not help because they would not be sufficient to mitigate the inherent risk of these premises. Of these five homes, two have closed and two are actively looking for suitable premises to relocate; and as regards the remaining one which occupies the basement and the ground floor of one building, the operator has closed the basement portion which is considered unsuitable for the purpose.
MR FRED LI (in Cantonese): Mr President, once the legislation to bring residential care homes under control is put into operation, a considerable number of private homes may have to close down owing to failure to comply with the requirements (some may not be able to reach certain standard even after a grace period). Does the Administration have any contingency measures to deal with those old people currently residing in private homes who need rehousing?
SECRETARY FOR HEALTH AND WELFARE: Mr President, we do not consider that the enactment of the Bill will give rise to problems as described in the supplementary question. However, we do have plans for alternative arrangements to meet such a situation should such a situation arise.
DR YEUNG SUM (in Cantonese): Mr President, the Residential Care Homes (Elderly Persons) Bill will go before this Council for discussion, and upon the enactment of the Bill, I believe that the fees of these private homes will definitely increase. Will the Administration do its best to help out those old people who need residential care but are in financial hardship?
HONG KONG LEGISLATIVE COUNCIL — 10 November 1993 748
SECRETARY FOR HEALTH AND WELFARE: Mr President, should such cases arise, we would help out those eligible who require help.
MR WONG WAI-YIN (in Cantonese): Mr President, the Secretary said in the second paragraph of her reply that the Administration had at present no legislative powers to require private homes to provide a sprinkler system or an automatic fire detection system. But it is learned that among 305 homes without such facilities, more than 10 are subvented ones. Will the Secretary explain why there is a lack of such facilities in government subvented homes and will she also inform this Council whether the Administration has any plans for early installation of these facilities?
SECRETARY FOR HEALTH AND WELFARE: Mr President, I need to look at the details of the cases referred to in the question. Indeed, where it is necessary to install sprinklers and fire service facilities, we will do it immediately.
MR LAU CHIN-SHEK (in Cantonese): Mr President, will the Administration, in conformity with the spirit of this legislation, ensure that there is an adequate supply of manpower, including qualified nurses and social workers? If the staff needed are not readily available, will the Administration delay bringing the Ordinance into operation or extend the grace period so as to give private homes more time to make adequate preparation?
PRESIDENT: Secretary, two questions there.
SECRETARY FOR HEALTH AND WELFARE: Mr President, on the second part of the question, I really cannot tell because the Bill has yet to be enacted. As regards the first part of the question whether we are going to adopt procedures which will make it better to accommodate both the staff of the homes and the people in the homes, the answer is yes.
DR TANG SIU-TONG (in Cantonese): Mr President, will the Administration inform this Council whether there is, apart from fire prevention, any control over hygiene and accommodation of these residential homes? Is there any legislative control in this respect? If no, what action will the Administration take?
PRESIDENT: I think you are going beyond elucidation of the main answer, Dr TANG.
HONG KONG LEGISLATIVE COUNCIL — 10 November 1993 749 Potentially hazardous installations (PHI)
4. MR MAN SAI-CHEONG asked (in Cantonese): With regard to the potentially hazardous installations (PHI) in Hong Kong, will the Government inform this Council:
(a) of the current number of PHI;
(b) of the policy and strategy in handling PHI and the contingency plans, if any, to deal with emergency situations;
(c) whether the Administration, in response to increasing public awareness and concern on the matter, will release the risk assessment reports on PHI and their contingency plans to the members of the public for information; and
(d) whether the Administration would consult public views and involve community participation such as through district boards in the planning of PHI and contingency measures?
SECRETARY FOR PLANNING, ENVIRONMENT AND LANDS: Mr President, it may help if I define the term potentially hazardous installation first. A PHI is an installation at which hazardous materials are stored in quantities equal to or greater than a specified quantity. The specified quantity varies with different substances but generally follows the specification in the United Kingdom Notification of Installations Handling Hazardous Substances Regulations 1982, but with some variation to take into account local circumstances. In addition, explosives factories and depots are classified as PHIs.
On point (a) of the question, there are only 34 PHIs in Hong Kong. They include the larger LPG storage facilities, gas works, chlorine stores at water treatment works and explosives factories and depots.
On point (b), the policy is to reduce the risks associated with a PHI to levels which are as low as is reasonably practicable. This is done by controlling the siting of PHIs and land use in their vicinity, and by requiring the installation to be constructed and operated to specified standards. Since December 1986, an interdepartmental committee, the Co ordinating Committee on the Land Use Planning and Control Relating to Potentially Hazardous Installations, or CCPHI for short, has co-ordinated action on PHIs.
For each PHI the surrounding population is established by a planning study and the risk levels are evaluated by a hazard assessment of the plant. The overall risk levels posed are then judged against a set of guidelines formulated by CCPHI taking into consideration international practice. New PHIs will not normally be approved unless they comply with the risk guidelines. For existing
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PHIs which do not initially meet the risk guidelines, CCPHI will determine what risk mitigation measures are necessary to bring the risk levels down. Such measures may include the provision of improved safety systems and the reduction in the amounts of hazardous materials at the plant. If necessary, relocation will be considered. Other measures can include withholding the granting of a licence or formal design approval for an increased inventory level at the PHI.
As regards contingency plans, emergency response procedures are drawn up in respect of each PHI by the Fire Services Department in consultation with other departments and agencies concerned, including the police, the Environmental Protection Department, the Electrical and Mechanical Services Department, the Government Laboratory and the Government Flying Services. These emergency procedures take full account of the nature and location of the installation and are set out in the form of an emergency plan. The plan is distributed to all government departments and agencies involved in emergency operations, and will be activated when required. I should stress, however, that the whole concept of risk management is to minimize the chance of incidents occurring from the outset.
As regards points (c) and (d), the local district board is normally informed of the main hazard assessment findings, proposed risk mitigation measures and contingency plans in respect of individual PHIs. We will continue to follow this practice. In addition, we intend to incorporate the risk guidelines in the Hong Kong Planning Standards and Guidelines early next year. This will make the relevant information more readily available to the professionals concerned and the general public alike.
MR MAN SAI-CHEONG (in Cantonese): Mr President, as potentially hazardous installations may cause fire, explosion and poisonous chemical leakage and very often are located near densely populated areas, will the Administration introduce legislation to provide for early submission of risk assessment reports and public consultation during the planning stage instead of after the plan has been finalized and made public and which already has the blessing of the Government?
SECRETARY FOR PLANNING, ENVIRONMENT AND LANDS: Mr President, I think what I tried to say in my main answer — which unfortunately seems to have been lost between that and the first supplementary question — is that PHIs are not likely to cause explosions or the release of toxic gases. The whole emphasis of the process of laying down standards for the planning of and the mitigation measures for PHIs is to reduce to the absolute minimum the possibility of explosion or the release of toxic gases or other similar occurrences. It would, of course, be quite possible to introduce legislation for the control of PHIs. But given that there are so far only 34 of them and very few additional ones appearing, given also that for the most part
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they are subject to control under other legislation, for example the Fire Services Ordinance and other regulations governing the use of hazardous materials, and given that we have now very, very thoroughly codified under the Hong Kong Planning Standards and Guidelines the means of controlling the establishment and the planning around PHIs, I myself doubt whether this is worth the exercise of legislation.
REV FUNG CHI-WOOD (in Cantonese): Mr President, the Secretary mentioned in the fourth paragraph of his reply that some existing PHIs did not meet the risk guidelines. Will the Secretary point out what these PHIs are that fail to meet the guidelines? Furthermore, it was said that the Co-ordinating Committee on the Land Use Planning and Control Relating to Potentially Hazardous Installations would take action to mitigate risks; when will it complete its work?
SECRETARY FOR PLANNING, ENVIRONMENT AND LANDS: Mr President, of the 34 PHIs that I have referred to, the information I have is that action on hazard assessment, planning study and mitigation measures is complete on 24. The action in relation to the other 10 involves, in some cases, relocation which of course can take some time in terms of finding alternative sites. But I can assure Members that great importance and urgency is attached to completing the implementation of measures to mitigate all risks as far as is reasonably practicable. As regards the details on individual items, I should be prepared to provide that in writing. (Annex II)
MR LEE WING-TAT (in Cantonese): Mr President, it was mentioned in the first paragraph of the reply that the specification regarding potentially hazardous installations generally followed the specification in the United Kingdom Notification of Installations Handling Hazardous Substances Regulations 1982, with some variation to take into account local circumstances. My question is: Has the United Kingdom Government ever made amendments to the specification between 1982 and 1993? If so, did Hong Kong make amendments accordingly? Furthermore, when referring to the specification, it was said that some variation was made to take into account local circumstances. By "variation", does it mean that control has been relaxed to the point that water treatment works and oil depots are not classified as PHIs though they may be located near densely populated areas?
SECRETARY FOR PLANNING, ENVIRONMENT AND LANDS: Mr President, as far as the first part of the question is concerned, I cannot give Mr LEE an immediate answer on that but I will provide an answer in writing. (Annex III) I think it is true to say that regulations of this kind are subject to fairly regular updating given changes in technology and scientific standards. But as I say, I will provide that part of the answer in writing.
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As regards the second part of the question, I believe that the effect of what we are doing in Hong Kong to take account of local circumstances is in fact to apply more stringent standards.
PRESIDENT: Has your question not been answered, Mr LEE?
MR LEE WING-TAT (in Cantonese): Mr President, Mr EASON says that the standards must be more stringent when it is said that standards are updated with regard to local circumstances. Will Mr EASON be able to answer whether an LPG installation with explosion risk is defined as a "potentially hazardous" or a "hazardous" installation under the British system?
PRESIDENT: That, I think, goes beyond the follow-up, Mr LEE.
DR SAMUEL WONG (in Cantonese): Mr President, referring to the 10 installations which had not met the risk guidelines, as mentioned by the Secretary in answer to Rev FUNG's question, will the information be made public in the near future and a time limit be set for their relocation?
SECRETARY FOR PLANNING, ENVIRONMENT AND LANDS: Mr President, to answer the second part first, the intention is that some of these installations should be relocated. As far as the information on the 10 installations is concerned, I will be glad to provide the information in writing.
Post-retirement or post-resignation employment of civil servants
5. MISS CHRISTINE LOH asked: With regard to the policy governing private sector employment by senior civil servants after their resignation or retirement from service, will the Government inform this Council of:
(a) the reason for the difference in the policy governing post-retirement and post resignation private sector employment;
(b) the longest sanitization period advised by the Advisory Committee on individual applications for post-retirement employment;
(c) the number of cases where a retired officer's pension was suspended on account of his employment in the private sector; and
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(d) the criteria adopted by the Secretary for the Civil Service in exercising discretion in granting approval for a resigned officer to take up private sector employment?
SECRETARY FOR THE CIVIL SERVICE: Mr President, the answers to these questions are as follows:
(a) In general terms, we do not believe that it would be considered reasonable, or would be very practicable, to attempt to control the future employment of those who have resigned and severed their links with the Government. I would add however that we can and do exert control, if appropriate, during any period of final leave (which can be a matter of months). Furthermore all former civil servants, whether retired or resigned, remain subject to the provisions of the Official Secrets Act (1989), as extended to Hong Kong.
(b) The longest sanitization period advised by the Advisory Committee on an individual application for post-retirement employment is two years.
(c) The short answer is none. This is because those officers whose applications were turned down did not take up the post-retirement employment concerned. If they had, their pensions would have been suspended.
(d) The criteria adopted with respect to an officer who resigns and wishes to take up private sector employment during pre-resignation leave are the same as those for officers seeking post-retirement employment. Essentially these concern whether there is a conflict with the public interest.
MISS CHRISTINE LOH: Mr President, I do not feel either question (a) or question (d) has been answered. In question (a) I simply wanted to ask what is the reason for the difference in the policy governing post-retirement and post-resignation. I am then told that it is not practical or reasonable to attempt to control future employment of those who have resigned. Would one not say therefore that those who have retired have nevertheless severed their links with the Government? And in answer to (d), the Government says that in fact the criteria for the exercise of the discretion are the same as those for post-retirement. So can the Government confirm that there is a difference in policy and try not to evade the question?
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SECRETARY FOR THE CIVIL SERVICE: Mr President, there is a difference in policy. I think the difference arises from the fact that in the case of someone who resigns he is taking a unilateral act, if I may so put it, to sever his links with the Government. He gives up his benefits of course and he gets no pension or any of the other post-retirement benefits. And so, we feel that it would be unreasonable to stipulate any general restrictions on such a person. After all, he has to make a living, he has something to offer to the community and provided he does not infringe the Official Secrets Act, then I think it is reasonable that he should be able to take up post-resignation employment.
MS ANNA WU: Mr President, will the Government indicate the number of applications made and the approvals given in the last 10 years with regard to resigned or retired officers in the senior civil service taking up private sector employment in Hong Kong?
SECRETARY FOR THE CIVIL SERVICE: Mr President, it follows, I think, from what we have said that we do not maintain statistics on people who have resigned because we are not maintaining control in that respect. As regards those who have retired, I do have some statistics relating to the last six years, which is the period since the Advisory Committee which advises the Governor on this matter was established. In those six years, a total of 163 applications from ex-directorate officers were submitted for post-retirement employment. Three of those were rejected, 37 were approved with various conditions, usually relating to a sanitization period, and 123 were approved without conditions. I would add, perhaps, that the majority of the applications relate to those involved in the professional field, such as doctors, lawyers, engineers, accountants and others.
PRESIDENT: Has your question not been answered, Ms WU?
MS ANNA WU: I wonder if I am entitled to follow up on the matter, Mr President?
PRESIDENT: Well, strictly, because there is a queue, only if your question has not been answered.
MS ANNA WU: It has been answered. Thank you, Mr President.
MR STEVEN POON (in Cantonese): Mr President, a number of statutory bodies like the Hospital Authority and the Securities and Futures Commission have wide powers, and their officials, strictly speaking, are not public officers.
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Can the Administration inform this Council if "the Official Secrets Acts" and the "the sanitization period of not more than two years" are applicable to senior officials of these statutory bodies, taking into account that many of them are employed on contract terms?
PRESIDENT: Do you have the answer, Secretary?
SECRETARY FOR THE CIVIL SERVICE: I think, Mr President, the answer to that is that they should not be covered by the Official Secrets Act. But I think it would be wise if I were to check that and inform the Member directly. (Annex IV)
MR JAMES TIEN: Mr President, in paragraph (d) of his reply, the Secretary mentioned a criterion based mainly on whether there is a conflict with the public interest. Could the Secretary please inform us whether this broad statement of conflict with the public interest covers also a retired civil servant having information which, if released, would be embarrassing to the Government and would have nothing to do with the public interest?
SECRETARY FOR THE CIVIL SERVICE: Mr President, the basic question that is considered is whether there is any conflict with the public interest. But in this respect account is taken of a number of factors, for example, whether the officer had been involved in policy formulation or policy decisions the effects of which could have benefited a prospective employer, that is to say, whether the prospective employer might gain an unfair advantage over competitors because of the officer's previous knowledge and experience, and also the public perception of the officer taking up the proposed appointment. These are the main factors which are considered under the heading of public interest.
MR CHEUNG MAN-KWONG (in Cantonese): Mr President, the Advisory Committee, as referred to by the Secretary, that deals with post-retirement employment applications only rejected three of the 163 applications. Does this indicate that the Committee is, in fact, just a rubber stamp which endorses virtually any application? Will the Administration review this screening mechanism to make it accountable to the public, and require that staff at directorate levels or above seeking to take up immediately post-retirement employment in the private sector must have their applications considered and approved by the Legislative Council?
SECRETARY FOR THE CIVIL SERVICE: Mr President, I think it could certainly not be said that there is any rubber stamp procedure here. The general guidelines for post retirement employment are set out very clearly in
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civil service circulars and they are well known to civil servants. And I think civil servants who have retired, being responsible people, are careful to try to avoid conflicts with the public interest and that is the reason for the low number of rejections. I think it would be quite wrong to draw the conclusion that there is any form of rubber stamp mechanism here. The mechanism involved is that for directorate officers there is an Advisory Committee. The Advisory Committee considers applications individually and it makes a recommendation to the Governor or to the Secretary for the Civil Service, depending upon the seniority of the person concerned, and then either the Governor or the Secretary for the Civil Service will make a decision. I think this is a perfectly acceptable mechanism and I do not believe it would be at all appropriate for the Members of the Legislative Council to decide on these matters.
MR MICHAEL HO (in Cantonese): Mr President, at present, applications for post retirement private sector employment are examined by a Committee and approved by the Governor. But according to the statistics provided by the Secretary just now, it is obvious that the vast majority of applications were approved. Many of these officers were joining the professional field in the private sector, but the percentage of approved applications nevertheless was high and only three applications were rejected so far. In the light of these, is it that the control within the Civil Service over private sector employment exists in name only and does not have any real meaning at all? Will the Administration review and tighten the existing screening mechanism and how will it deal with the matter? If no review is contemplated, what are the reasons?
SECRETARY FOR THE CIVIL SERVICE: Mr President, I would say the figures that I gave were actually remarkably low. I think I mentioned 163 cases in six years. This is really not a great number and I think it indicates that there is quite a lot of restraint being exercised in this area. Furthermore, I think I would have to add that civil servants who retire have a great deal of experience, skill and dedication to the community. They have got something to offer, and I see no reason why we should take too austere a line in this respect although of course we must be very careful about safeguarding the public interest. So I think the answer to the question, Mr President, is that we feel that we are imposing enough restrictions and we do not propose to further review our procedures.
Localization of the Civil Service
6. MR FRED LI asked (in Cantonese): Regarding the localization of the civil service hitherto pursued by the Government, will the Administration inform this Council:
(a) what "localization" means, and
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(b) whether this is in conflict with the recently introduced policy allowing contract officers appointed on overseas terms to apply for transfer to local terms of employment; if so, where the conflict lies; if not, why the original policy is not continued?
SECRETARY FOR THE CIVIL SERVICE: Mr President,
(a) In the context of civil service employment, "localization" means the policy under which an overseas person is appointed only if a fully qualified and suitable local person is unavailable and the qualifications for appointment cannot be modified to enable a local, in preference to an overseas, appointment. An "overseas person" is simply someone who meets the relevant criteria for appointment on overseas conditions of service. A "local person" means someone who does not qualify for overseas conditions of service.
(b) There is no inherent conflict between the localization policy — as defined — and the recently introduced measure to which the Honourable Member refers. However it used to be the practice that we would not entertain an application from a contract officer already serving on overseas conditions for a new contract on local conditions. We will now consider such an application, but only in respect of a permanent resident of Hong Kong, subject to certain conditions being met, and on an interim basis of one contract only. With this one change, which is expected to involve limited numbers, the localization policy continues to be implemented firmly and fairly.
As Honourable Members may know, we have recently announced that we wish to move towards abolishing overseas and local conditions of service for future appointments. We envisage that "localization" would still be a key feature of our future employment policy. But with the phasing out of differential conditions of service we would need to devise a new and positive definition of who is "local". This is a very important aspect of a wide-ranging consultative exercise on which we have now embarked.
MR FRED LI (in Cantonese): Mr President, the Administration has stated clearly in the reply just now that an overseas person is appointed only if a fully qualified and suitable local person is unavailable. But obviously the Police Force has been recruiting junior police officers from the United Kingdom to fill the posts of inspectors in Hong Kong on overseas terms. Is it very difficult to recruit inspectors from among locals, and why is recruitment confined to the United Kingdom and not the United States, Canada or Australia?
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SECRETARY FOR THE CIVIL SERVICE: Mr President, perhaps I should have made it clear in my main reply that there is an exception to the localization policy. The policy which I have outlined in my reply is the overall policy but there is an exception in the Police Force. The Commissioner of Police considers that it is desirable to continue with the traditional practice of recruiting a small number of inspectors from overseas and this is done as a matter of policy. But apart from that exception, the policy which I have outlined applies across the board.
PRESIDENT: Was your question not answered?
MR FRED LI (in Cantonese): Elucidation, Mr President. The Secretary has not answered the second part of my question. That being the exceptional case, why is recruitment confined to the United Kingdom and not the United States?
SECRETARY FOR THE CIVIL SERVICE: Mr President, I think this really is a matter for the Commissioner of Police. There is no policy reason as to why these particular officers should be recruited from a particular place, as far as I am concerned. The traditional source of recruitment has been the United Kingdom. And the Commissioner clearly feels that it is advantageous to continue with that on a small scale.
MR ALBERT CHAN (in Cantonese): Mr President, the Administration has a well-defined "localization policy" for the Civil Service, but not quite so for statutory bodies wholly owned by the Government. While there is no distinction between local and expatriate officers for some of these bodies, others like the Provisional Airport Authority, the Mass Transit Railway Corporation and the Kowloon-Canton Railway Corporation have marked difference in the conditions of service between locals and expatriates. This has seriously affected the morale of locals in these statutory bodies because they may feel being racially discriminated against. Will the Administration formulate, in the near future, a clear and well-defined localization policy for statutory bodies wholly-owned by the Government?
PRESIDENT: Your question, Mr CHAN, should go towards elucidation of the answer. You are really asking a different question, I am afraid.
MR NGAI SHIU-KIT (in Cantonese): Mr President, the issue of localization of the Civil Service and transfer to local terms touched upon the question of applicants' proficiency in the Chinese language. Will the Secretary inform this Council whether there were, and if so how many, local officers being assessed by their expatriate superiors for their Chinese language proficiency; whether
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Cantonese or Putonghua was used when making these assessments; and what criteria were used to assess their results?
SECRETARY FOR THE CIVIL SERVICE: Mr President, I must admit I am not too clear as to the exact question. I think the question could be that we are requiring a certain degree of language proficiency for applicants who seek to transfer to local terms and the Member would like to ask who is assessing that proficiency.
MR NGAI SHIU-KIT: May I repeat the question?
PRESIDENT: Yes.
MR NGAI SHIU-KIT (in Cantonese): Mr President, what I was saying was: There is a Chinese language assessment test in the Civil Service, and promotion, to a large extent, is dependent on the result of this test. In other words, it is an important aspect as far as the "localization policy" is concerned. But the assessment is normally conducted by the superiors of the officer. If the superior happened to be an expatriate, how was the assessment being carried out, and whether Cantonese, Putonghua or English was used when making the assessment, and what were the criteria used to assess their results?
PRESIDENT: Is your question, Mr NGAI, directed towards an officer on overseas terms seeking to transfer to local terms? Because that really is the answer which, if you want to elucidate that side of it, you may seek to elucidate. But you seem to be going beyond the scope of the question and answer.
MR NGAI SHIU-KIT: It is up to you to rule one way or the other, Mr President.
MR SIMON IP: Mr President, it would seem that the Government has been pursuing a localization policy for years without a satisfactory definition of a "local" and is now searching for a definition. What are the Government's suggestions for a satisfactory definition of a "local"?
SECRETARY FOR THE CIVIL SERVICE: Mr President, essentially I could say that the Government took a position on this issue in July when it announced an interim measure allowing certain contract officers on overseas terms who are permanent residents to apply for local terms. The position we took was that if the applicant is a permanent resident of Hong Kong then we would consider his
HONG KONG LEGISLATIVE COUNCIL — 10 November 1993 760
or her application for a contract on local terms. So we have started the ball rolling in this respect by equating local with permanent resident. We have also invited other views and indeed we would welcome other views on this rather tricky issue.
MR TAM YIU-CHUNG (in Cantonese): Mr President, according to the Administration, allowing overseas contract officers to transfer to local terms is an interim arrangement and for one contract only. If their contracts happen to expire in 1997, how will the Administration ensure that there are experienced locals to fill these vacancies?
SECRETARY FOR THE CIVIL SERVICE: Mr President, it is an integral part of the process of localization that we should be trying constantly to identify local people to fill vacancies available. But I think the Honourable Member's question really rather tends to jump to a conclusion. It is because, according to the interim arrangement, these former overseas officers ought to be considered as locals themselves as they are permanent residents. Therefore I am not quite sure, if that interim arrangement were to be put into practice on a long-term basis, how one would replace a local with a local. It does not seem to make sense.
MRS ELSIE TU: Mr President, in paragraph (b) of the Secretary's main reply, the expression "permanent resident of Hong Kong" is used. Could we have the term "permanent resident" defined because, for example, I have been living here for 42 years and I only have the "right to land"? Would that be tantamount to a "permanent resident"?
SECRETARY FOR THE CIVIL SERVICE: Mr President, I think I might ask my colleague, the Secretary for Security, to say a few words on this. But I will say that in the context of the subject under discussion here, that is to say, the interim arrangements under which overseas contract officers who are permanent residents could apply for a local contract, we have simply adopted the definition of "permanent resident" in the current Immigration Ordinance. We do not wish to muddy the waters at this stage by bringing forward a completely new definition of "permanent resident". Yet we have said that we will align our policy in this respect with whatever new definition of "permanent resident" that might be agreed as a result of the discussions which are taking place, I believe, in the Joint Liaison Group, to bring the Immigration Ordinance into line with the Basic Law. I am sure my colleague, the Secretary for Security, can add a few words of elucidation.
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SECRETARY FOR SECURITY: Mr President, the term "permanent resident" is, I think, clearly defined in one of the schedules to the Immigration Ordinance. The essential thing about those who have permanent resident status is that they do have the right of abode in Hong Kong. And the categories of persons who are permanent residents are clearly defined in the schedule to the Immigration Ordinance.
Written answers to questions
Visa requirements for BDTC passport holders
7. MR JAMES TIEN asked (in Chinese): In view of the change in visa requirements imposed by some European countries on the Hong Kong British Dependent Territories Citizen (BDTC) Passport, many Hong Kong people were unable to gain smooth entry into those countries, particularly Spain. The time consuming process of visa application has also caused much trouble and inconvenience to those Hong Kong people in the commercial, industrial and professional sectors who have to make frequent business trips abroad. Will the Government inform this Council:
(a) whether the Hong Kong or British Government has any plan and measures to secure a shorter visa processing time or even visa exemption for Hong Kong citizens travelling to those European countries; and whether consulates of European or other countries in Hong Kong will be urged to issue a visa within 24 hours of receiving an application, so as to facilitate people going abroad on urgent business trips;
(b) has the Administration any, and if so what, facilities to assess the opinion of Hong Kong people on these visa difficulties;
(c) given its inability to ensure that the BDTC passport is a convenient travel document, how the Administration would convince the people of Hong Kong that they will have a reliable travel document both during the transition period and beyond 1997?
SECRETARY FOR SECURITY: Mr President,
(a) There has been only one recent change in visa requirements affecting BDTCs and BN(O)s. One country, Spain, introduced changes, with effect from 1 October 1993, which affected a number of countries and territories, including Hong Kong. As with all visa requirements, there is an element of inconvenience. The Hong Kong and the British Governments lobbied hard but unsuccessfully against the recent Spanish move. Our emphasis will now be to encourage
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the Spanish Consulate General here to make the processing time for the issue of visas as quick and as simple as possible.
(b) We have not heard of any unusual difficulties with this, but we will be monitoring the situation closely. In this respect, the Administration assesses public opinion on this matter, as on others, in many different ways. We gather views expressed through and by the media; we take into account also views and experiences passed to us directly by members of the public through letters. The Nationality Subcommittee of this Council is another important source through which we learn of the views and experiences of the public in this area.
(c) As a result of the efforts of the Hong Kong and British Governments, the BN(O) passport, which is valid both before and after 30 June 1997, is recognized world wide; its holders are able to enter 71 countries and territories visa free. The BDTC passport is equally well accepted. We will continue to work for the continuation of visa-free privileges for all those with Hong Kong travel documents. We have put proposals to this end to the Chinese Government through the Joint Liaison Group.
Transport arrangements in airport during typhoon
8. MR VINCENT CHENG asked: Will the Government inform this Council what arrangements there are to ensure that sufficient land transport is available to passengers during the time when the airport remains open while typhoon signal No. 8 is hoisted?
SECRETARY FOR TRANSPORT: Mr President, direct public transport services to and from the airport are provided by airport buses and taxis.
Airport buses
At present, the Kowloon Motor Bus Company Limited operates four airport routes to and from Central, Causeway Bay, Taikoo Shing and Tsim Sha Tsui. Past records show that KMB has been able to maintain its airport bus services during Typhoon Signal No. 8. Under a longstanding arrangement, the Civil Aviation Department keeps the bus company informed of the number of passengers waiting at the airport and, when necessary, extra buses are deployed to meet demand.
Taxis
Taxi availability, whilst the No. 8 signal is hosited, may well be reduced since it is up to individual drivers to decide whether or not they wish to
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continue to operate. Nevertheless, the Civil Aviation Department directly contacts taxi associations and taxi radio service centres to inform them of passenger demand at the airport.
Property dealing files for the purpose of tax assessment
9. MR LEE WING-TAT asked (in Chinese): In response to the Public Accounts Committee's enquiry in July 1993 regarding the assessment of tax on profits from property dealing transactions, the Commissioner of Inland Revenue said that the existing criteria in selecting cases for the opening of property dealing files would be reviewed. Will the Government inform this Council:
(a) what the progress of the review is;
(b) whether the Administration will consider tightening the existing criteria for the opening of property dealing files (that is, the same person who effects four or more property transactions within six years, or the sale consideration is more than $1.5 million and the holding period of the property concerned is less than two years) with a view to curbing property speculative activities; and
(c) whether different sets of criteria would be introduced with a view to bringing in more potential taxpayers?
SECRETARY FOR THE TREASURY: Mr President, the Commissioner of Inland Revenue completed the review on the selection criteria for the opening of property dealing files in July 1993. As a result of the review, Inland Revenue Department has adopted new selection criteria, whereby a property dealing file is opened and a questionnaire issued if a person, other than a "confirmor" (that is, a person who enters into a sale and purchase agreement to acquire a property and then re-sells prior to assignment), has had:
(a) three or more property transactions within a six-year period from 1 April 1987; or
(b) a single sale of property held for less than two years with gross profit arising from the sale exceeding $200,000.
Under the new criteria, a property dealing file will be opened after three transactions in a six-year period instead of four transactions as under the old criteria. This means that more potential taxpayers will be subject to examination. The previous practice of examining all cases involving confirmors to ascertain their tax liability will continue.
HONG KONG LEGISLATIVE COUNCIL — 10 November 1993 764 Construction site accidents
10. MR LAU CHIN-SHEK asked (in Chinese): Will the Government inform this Council of the following:
(a) the respective numbers of construction site accidents, classified by their causes, in each of the past three year; of these, how many took place on construction sites engaged in government projects; and
(b) whether construction sites engaged in government projects are now subject to more stringent industrial safety requirements than those engaged in private sector projects? Please give details.
SECRETARY FOR EDUCATION AND MANPOWER: Mr President,
(a) The breakdown of the construction accidents by their causes is at Annex. The number of construction accidents which took place on construction sites engaged in Government projects in 1990, 1991 and 1992 were 4 943 (19.7%), 4 169 (18%) and 3 221 (17.1%) respectively.
(b) Both government and private sector construction projects are subject to the same industrial safety standards under the law. Government departments do, however, impose stringent safety requirements on their contractors. For example, the Works Group of Departments monitor the safety performance of their contractors as part of their assessment on whether government contracts should be awarded to them in future. A set of compliance standards is being developed and will be introduced next year. The Housing Department already has a compliance schedule against which their contractors' performance on safety is monitored. For Airport Core Projects (ACP) contracts, an ACP Safety Manual which requires contractors to produce and comply with comprehensive safety plans has been introduced. All ACP contracts tendered since July 1992 have to comply with the main requirements of the Manual. Under the terms of the contract, the engineer of an ACP contract awarded after July 1992 has the power to stop work if the safety plan is not being implemented properly. For the rest of the Public Works Programme, similar requirements are being introduced incrementally starting with the largest and most complex contracts.
HONG KONG LEGISLATIVE COUNCIL — 10 November 1993 765 Annex
Industrial Accidents in Construction Industry
in the Years 1990 to 1992 analysed by cause
Cause of accident 1990 1991 1992 Machinery 1 604 (13) 1 160 (9) 805 (5) Transport 196 (1) 132 (3) 74 (1) Explosion or fire 105 70 (6) 88 (3)
Hot or corrosive substance
Gassing, poisoning and other toxic substances
373 333 250 21 (1) 12 13 (3)
Electricity 81 (6) 59 (3) 35 (3) Fall of person 3 571 (25) 3 362 (24) 3 036 (24)
Stepping on, striking against or struck by objects
10 319 (2) 10 760 (2) 7 702 (4)
Falling objects 1 740 (8) 1 352 (6) 1 109 (3) Fall of ground 21 (1) 14 (1) 15
Handling without machinery
4 468 3 895 3 694
Hand tools 1 181 842 818 Miscellaneous 1 458 (1) 1 124 1 176 (2) TOTAL 25 138 (58) 23 115 (54) 18 815 (48)
Figures in brackets give the number of fatalities, and figures not in brackets give the total number of industrial accidents.
HONG KONG LEGISLATIVE COUNCIL — 10 November 1993 766 Building conversions for the purpose of user change
11. DR CONRAD LAM asked (in Chinese): Will the Government inform this Council:
(a) what criteria are being used by the Government in considering and approving applications by developers for modifications in the use of certain parts of a building, such as converting car parks into entertainment centres and restaurants into shopping centres; and
(b) what measures are in place to protect individual flat owners of the buildings from being disturbed by nusiance caused as a result of such conversions?
SECRETARY FOR PLANNING, ENVIRONMENT AND LANDS: Mr President,
(a) It may be possible to control changes in the use of a building under the lease conditions, the Town Planning Ordinance or the Buildings Ordinance. But because of the wide variety of situations that exist, it is impossible to generalize as regards the likelihood of the change being permissible, the criteria to be applied in considering applications and the possibility of conditions being imposed to control or prevent different uses. Each case therefore has to be considered on its merits.
Where a proposed change of use does not comply with the lease conditions of the lot in question but can be permitted, a modification will be required. Under the planning legislation, a section 16 application may or may not be required depending on the statutory zoning. In either case, when applications are considered, regard will be had to compatibility with the planning intention for the area and surrounding uses, adequacy of infrastructural support and other local factors, and conditions may be imposed upon approval.
Any material change in the use of a building or any part of a building is subject to control under the Buildings Ordinance, which is principally concerned with the health and safety of the users. The criteria for considering an application for a change of use under the Ordinance include, for example, whether the structural loading and the means of escape provisions of the building are suitable for the proposed change of use. Any proposed building works relating to a change of use will have to comply with the provisions of the Ordinance and its regulations.
HONG KONG LEGISLATIVE COUNCIL — 10 November 1993 767
Some uses require licensing, for example, restaurants and games centres, and will therefore have to comply with licensing conditions.
(b) Depending on the individual circumstances, it may be possible for flat owners and residents to be protected from nuisances caused by the conversion of buildings by the controls available under the various means described in (a) above. For example, lease modifications to enable car parks to be converted into entertainment centres are not normally granted.
Noise, health and other nuisances may be referred to the police, the municipal councils or the relevant licensing authority for possible enforcement action.
Apart from the controls referred to above, a flat owner affected by a nuisance may be able to take action against the person causing the nuisance, either by himself or through the Owners Corporation, under the terms of the Deed of Mutual Covenant governing the use and management of the building. Legal advice may be needed to establish whether this is possible in the particular case.
Air freight services
12. DR HUANG CHEN-YA asked (in Chinese): In view of the increase in the amount of cargoes being transported by air between Hong Kong and other countries, will the Government inform this Council:
(a) what measures are being taken to ensure that Hong Kong's air freight services are able to cope with existing and future demands; and
(b) whether air freight services and air passenger services are dealt with separately in Air Services Agreements made with other countries; if not, whether there are plans to ensure that air freight services have a fair chance to develop in the face of competition with air passenger services?
SECRETARY FOR ECONOMIC SERVICES: Mr President, air freight services to and from Hong Kong's major trading partners are provided, on both a scheduled and a non-scheduled basis, by Hong Kong-based and foreign airlines. The capacity and frequency of scheduled operations are regulated under Hong Kong's various Air Services Agreements (ASAs) and arrangements. Non-scheduled operations are subject to the Director of Civil Aviation's approval. Although a number of airlines operate all-cargo services using aircraft configured exclusively for freight, a significant proportion of Hong Kong's cargo traffic is shipped in the belly-hold of aircraft on passenger services, and is
HONG KONG LEGISLATIVE COUNCIL — 10 November 1993 768
an important component of such operations. In periods of peak demand, approval is given for additional non-scheduled all-cargo services to operate.
Current load factors indicate that there is adequate capacity in the market to meet foreseeable year round demand. During the five-year period from 1987-88 to 1992-93, the total volume of commercial air cargo loaded and unloaded at Hong Kong increased by 58.5%. Of the volume handled in 1992-93, all but 2% of total cargo unloaded and 5% of total cargo loaded was carried by scheduled carriers. This indicates that the cargo capacity provided for under Hong Kong's air services agreements and arrangement is adequate to cater for market demand and growth.
At the same time, non-scheduled services play an important role in coping with seasonal peaks in demand, such as pre-Christmas shipments to Europe and the United States. Nevertheless, the situation is kept under constant review; should circumstances change, we would seek to negotiate additional capacity and frequency provisions with the partners concerned.
Given the large amount of cargo carried aboard passenger aircraft, it is impractical to distinguish between provisions for the carriage of passengers and cargo in air services agreements. However, where a need has been identified for all-cargo services to be operated to a particular destination, in addition to combined passenger and cargo services, we will normally seek to obtain the agreement of the partner concerned either to a separate provision for all-cargo services, or to a formula that will permit a proportion of capacity on passenger services to be converted to all-cargo services.
Employee retraining
13. MR PANG CHUN-HOI asked (in Chinese): Will the Government inform this Council of the following:
(a) the number of employees who have attended and completed employees retraining courses; and the respective numbers of those who have received training on job skills and attended the On-the-Job Training Induction Course, as well as their employment situation;
(b) the number of those who have participated in the On-the-Job Training Scheme and the progress of the scheme made so far; and
(c) a breakdown of the Employees Retraining Board's expenditure items, such as course fees, publicity and administrative expenses and so on?
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SECRETARY FOR EDUCATION AND MANPOWER: Mr President, the answers to Mr PANG's three-part question in the order they are asked are:
(a) As at the end of October 1993, the Employees Retraining Scheme has enrolled 5 945 persons, including 4 638 who had completed retraining and 1 307 undergoing retraining. Of the 4 638 retrainees who had completed retraining, 1 581 had received training on specific vocational skills and 3 057 on job search skills and orientation to work in new environment.
We do not have comprehensive information on the employment situation of individual retrainees because there is no obligation on the part of retrainees to report back to the Employees Retraining Board and Labour Department on their employment situation. However, the general feedback indicates that in general retrainees have had no difficulty in finding jobs. For example, in the case of the 1 581 retrainees who had received vocational skills training, only about 10% require the assistance of the Labour Department's Local Employment Service to find jobs.
(b) Since its inception in June 1993,320 firms have joined the On-the-Job Training Scheme and 589 employees have been placed with some of these employers.
(c) For the financial year 1993-94, the Employees Retraining Board's budgeted expenditure is $146 million. Of this, $3.3 million has been earmarked for publicity purposes, $14 million for administrative expenses (including capital items for setting up a new office) and the remaining $128.7 million for the various retraining programmes. The breakdown of the actual expenditure will be available when the Board submits its first annual report, together with the audited statement of accounts, to the Governor. The report will be tabled at the Legislative Council in accordance with the Employees Retraining Ordinance.
Stolen vehicles
14. MR ALLEN LEE asked: Will the Government inform this Council of the respective numbers of vehicles reported to be stolen during the past two years, compared to the number of such vehicles returned by China in the same period?
SECRETARY FOR SECURITY: Mr President, in 1991, 6 354 vehicles were reported stolen; in 1992, 6 916; and in the first nine months of this year, 3 649.
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In 1991, 4 309 vehicles which had been reported stolen were recovered; this included 34 vehicles returned to Hong Kong from China. In 1992, 3 771 vehicles were recovered, including six returned from China. And so far this year, 1 722 vehicles have been recovered, including 24 returned from China.
Repatriation of Vietnamese migrants
15. MR ALLEN LEE asked: Will the Government inform this Council of the plans to repatriate all the Vietnamese migrants stranded in Hong Kong?
SECRETARY FOR SECURITY: Mr President, we are proceeding with the repatriation and resettlement of Vietnamese migrants in Hong Kong in accordance with the Comprehensive Plan of Action (CPA), an agreement endorsed by the international community in 1989.
The CPA provided that all Vietnamese migrants arriving in first asylum countries should be screened to determine whether or not they are refugees; the CPA also provided that those determined not to be refugees should return home.
Since 1989, almost 35 000 Vietnamese migrants have returned to Vietnam from Hong Kong; during the same period 24 500 Vietnamese refugees have also left Hong Kong. The remaining population now stands at 35 000, including about 2 000 refugees.
Only 12 Vietnamese migrants arrived in 1992; and 55 so far this year. If the current arrival and departure trends are maintained, it should be possible to empty all our camps by early 1996.
Subsidence of foundation at airport
16. MR CHIM PUI-CHUNG asked (in Chinese): As subsidence of foundation detected at some airports built on reclaimed land in other places has resulted in repeated delays in their dates of commissioning, will the Government inform this Council:
(a) whether reference has been made to such experience in assessing the conditions of the Chek Lap Kok Airport in Hong Kong;
(b) if so, what the findings are and whether additional engineering works, time and expenditure will be involved; and
(c) if not, what the reasons are?
HONG KONG LEGISLATIVE COUNCIL — 10 November 1993 771 SECRETARY FOR WORKS: Mr President,
(a) Yes, in the design of the reclamation work for the replacement airport at Chek Lap Kok, reference has been made to experience on major reclamation works both in Hong Kong and overseas countries. To evaluate the characteristics of the soils at the site of the future airport, a test embankment was also constructed at Chek Lap Kok as long ago as 1982. From close observation of the test embankment between 1982 and 1990 soil design parameters were obtained. This information together with the results of site investigations have been used for the evaluation of the behaviour of the airport reclamation when completed. The unique experience at the new Kansai Airport in Japan is not applicable to Chek Lap Kok. Many international airports have been built on reclaimed land, for example Schipol, San Francisco and of course Kai Tak. There is also the accumulated experience in Hong Kong of reclamation for new towns, container terminals and urban redevelopment.
(b) Based on the studies of other major reclamation works and observations on the test embankment, we decided to adopt for the reclamation work in Chek Lap Kok the technique which involves the removal of the upper layers of soft marine mud. With marine mud removed, it is estimated that the average settlement of the reclamation areas at the replacement airport site will be 40-50 cm over a long period. To provide sufficient material to allow for this settlement, the site will be filled to half a metre above the formation level and civil works designed to allow for these conditions. Provision has been made to accelerate settlement by mechanical means or surcharge which is normal practice in Hong Kong. Instrumentation has been installed to monitor settlement.
Because of these measures, soil settlement at the new airport will be controlled and any related engineering works, time or expenditure have been provided for within the estimates. Up to date, there is no evidence of any major problem in regard to settlement which is likely to incur significant increase in funding.
Nursing staff on duty during typhoons
17. MR MICHAEL HO asked (in Chinese): When some nurses of the United Christian Hospital in Kwun Tong reported for duty at the hospital while typhoon signal No. 8 was hoisted, they were told to leave their place of work as they need not report for duty. As such a practice might affect the operation of the hospital and the safety of the staff, will the Government inform this Council whether it is aware of:
HONG KONG LEGISLATIVE COUNCIL — 10 November 1993 772
(a) the Hospital Authority's policy and guidelines on the discharge of duty by nursing staff upon the hoisting of typhoon signal No. 8;
(b) why the above-mentioned situation occurred; and
(c) what measures are to be adopted by the Hospital Authority to ensure that such a situation will not recur?
SECRETARY FOR HEALTH AND WELFARE: Mr President, in accordance with the general guidelines of the Hospital Authority, essential services such as inpatient and accident and emergency services are maintained at all times. Other services such as out patient clinics are normally closed when typhoon signal No. 8 is hoisted. Based on this principle, each hospital is responsible for drawing up its own staffing requirements during a typhoon situation. Core staff, including nursing staff are required to report for duty according to the scheduled roster.
During the time when the said typhoon signal was hoisted, some nurses were advised that they could go off duty because the staff remaining would be adequate to meet operational requirements. It should be noted that all these nurses lived in nurse quarters which were within the hospital compound. This arrangement affected neither the operation of the hospital nor the safety of the staff concerned.
Meanwhile, the hospital management has held liaison meetings with staff to improve communication particularly during emergency situation.
Bus shelters containing asbestos material
18. DR LAM KUI-CHUN asked: Will the Government inform this Council?
(a) among the existing bus shelters, how many are constructed with materials containing asbestos;
(b) whether these shelters would cause a health hazard to the public; and (c) what measures will be taken by the Government to expedite their replacement?
SECRETARY FOR TRANSPORT: Mr President,
(a) The four franchised bus companies provide and maintain a total of 1 543 bus shelters. Of this number 374 contain asbestos. Details are given in the Appendix;
HONG KONG LEGISLATIVE COUNCIL — 10 November 1993 773
(b) In all these 374 cases, asbestos is only found in the corrugated roof sheets. The Environmental Protection Department has advised that under normal daily conditions, these bus shelters do not pose any health hazard because the asbestos content is locked in a matrix of cement. Asbestos fibres would only be released if the sheets are damaged.
(c) At the behest of the Government, bus shelters constructed since 1987 contain no asbestos. As for those older bus shelters which still contain asbestos, Kowloon Motor Bus and Citybus each have a two-year replacement programme whilst China Motor Bus and New Lantao Bus's approach is to replace shelters, when damaged, with non asbestos material. In all cases, the bus companies will seek advice from the Environmental Protection Department on the safeguards that are necessary when replacing these shelters. The Administration will liaise with the four franchised bus operators to see whether this process can be expedited.
Appendix
Provision of Passenger Shelters by Franchised Bus Companies
(Position as at 1.11.93)
Kowloon Motor Bus
China
Motor CMB Citybus
New
Lantao Bus Total
Number provided 1 221 218 25 79 1 543
Number containing asbestos material
Metered water supply
200 146 13 15 374
19. MR FREDERICK FUNG asked (in Chinese): Will the Government inform this Council of the following in respect of each of the past three years:
(a) the respective number of non-domestic and domestic consumers provided with metered water supply; and
(b) the total amount of water charges (excluding the deposits) collected from each of these two categories of consumers?
SECRETARY FOR WORKS: Mr President,
(a) In the past three years, the number of non-domestic and domestic consumers with metered water supply are:
HONG KONG LEGISLATIVE COUNCIL — 10 November 1993 774
Domestic Non-domestic
1992-93 1 727 000 219 000
1991-92 1 695 000 214 000
1990-91 1 641 000 208 000
(b) The total amount of water charges (excluding the deposits) collected from these consumers are:
Domestic Non-domestic
1992-93 748 434 000 1 193 487 000
1991-92 663 939 000 1 144 526 000
1990-91 566 570 000 1 038 469 000
Misuse of fire hoses
20. MR WONG WAI-YIN asked (in Chinese): As the fire hoses installed in public housing estates (including their car parks) are subject to misuse for floor cleaning and car washing, will the Government inform this Council:
(a) whether prosecutions have been instituted against persons misusing the fire hoses; if so, what the number of prosecutions during the past year was and what the penalties generally imposed upon conviction were; if not, what the reasons are;
(b) what effective measures are being taken to prevent fire hoses from being misused?
SECRETARY FOR WORKS: Mr President,
(a) In the year from October 1992 to September 1993, the number of prosecutions instituted by Water Supplies Department and Housing Department against persons misusing the fire hoses were six and one respectively. All these persons were convicted. The penalty imposed upon conviction ranged from $700 to $5000.
(b) To prevent unauthorized uses, fire hoses in housing estates are normally installed in glass-fronted cabinet under lock and key. However, to ensure that the fire hoses can be used in the first instance in the event of the fire, it would be inappropriate to institute any measure which may make access to the fire hose difficult.
HONG KONG LEGISLATIVE COUNCIL — 10 November 1993 775
In the circumstances, the most practical way of dealing with this problem is through public education. Warning notices are put up near the installations and widely publicized in estate newsletters and so on to remind tenants of proper use of fire hoses. Any misuse detected will be stopped and appropriate actions, including warnings and prosecutions will be taken. As part of the on going publicity campaign, the Fire Services Department has included educating the public not to misuse fire hoses and other fire service installations.
In addition, the government has also encouraged developers to install more convenient draw-off taps to provide metered water for floor cleansing or car washing, thus discouraging people from abusing fire hoses for these purposes.
First Reading of Bills
SECURITY AND GUARDING SERVICES BILL
QUARANTINE AND PREVENTION OF DISEASE (AMENDMENT) BILL 1993
FIXED PENALTY (TRAFFIC CONTRAVENTIONS) (AMENDMENT) (NO. 2) BILL 1993
FIXED PENALTY (CRIMINAL PROCEEDINGS) (AMENDMENT) BILL 1993 INDUSTRIAL TRAINING (CLOTHING INDUSTRY) (AMENDMENT) BILL 1993
Bills read the First time and ordered to be set down for Second Reading pursuant to Standing Order 41(3).
Second Reading of Bills
SECURITY AND GUARDING SERVICES BILL
THE SECRETARY FOR SECURITY moved the Second Reading of: "A Bill to provide for the establishment of a Security and Guarding Services Industry Authority, the issuing of permits to individuals doing security work, the licensing of security companies, and for connected matters."
He said: Mr President, I move that the Security and Guarding Services Bill be read a Second time. This Bill seeks to improve the standard of service provided by the security and guarding services industry.
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Security and guarding services have now developed into a large and sophisticated industry, offering a wide range of services. The only existing legislation on the subject, the Watchmen Ordinance, which was enacted in 1956 to deal with the problem of protection rackets, is now obsolete and there is a need to provide a better means of regulating the industry.
At present, only companies and individuals engaged in guarding and security transport activities are regulated. They are required, under the Watchmen Ordinance, to apply to the Commissioner of Police for permission to supply watchmen and for watchmen's permits. This requirement does not apply to companies or employees providing other security services.
Companies engaged in the supply and installation of security equipment and, in particular, companies and employees engaged in the installation of alarm systems may become privy to sensitive information. There is a need to ensure that these people are of good character and are fit and proper persons to be entrusted with this information. Companies and employees engaged in designing systems which incorporate security devices for premises are also privy to detailed security information and should be similarly regulated.
To ensure that the public receives reasonable and reliable standards of service, control of the industry in a wider sense is also necessary. We propose to regulate the industry by means of a licensing system, which will govern the type of person who can undertake security work for others, and the companies who can supply individuals to undertake security work for others. The licensing system will be run on two levels, the granting of permits to security personnel and the licensing of security companies. These proposals have the support of the Security Association, which represents more than 75% of all companies engaging in guarding and security transport activities in Hong Kong.
Under the Bill, activities classified as security work will include guarding any property; preventing or detecting the occurrence of any offence; installing, maintaining or repairing a security device; and designing for any particular premises or place a system incorporating a security device.
We propose that it will be an offence for a company to undertake security work without a valid licence or to supply security personnel who do not have valid permits. It will also be an offence for a person to engage in security work without a valid permit.
At present, applications for permits by watchmen are made to the Commissioner of Police. We propose that applications for permits and renewal of permits by security personnel should continue to be made to the Commissioner of Police. Applications for licences by security companies should be made to a Security and Guarding Services Industry Authority to be established under the Bill.
HONG KONG LEGISLATIVE COUNCIL — 10 November 1993 777
The Authority will consist of a Chairman, appointed by the Governor, a representative of the Secretary for Security, and three other persons appointed by the Governor.
To enable a smooth transition from the Watchmen Ordinance, it is proposed that existing watchmen's permits will initially be regarded as valid. The Security and Guarding Services Industry Authority will, over a period, notify permit holders to apply for a new permit under the Bill. Existing security companies will be given 12 months in which to apply for licences.
An Appeal Board will also be established to consider and determine appeals against the decisions arising from the provisions of the Bill. The Appeal Board will consist of a Chairman and a panel of persons appointed by the Governor.
Mr President, I believe that the proposals I have outlined will improve the control over the security and guarding services industry and improve the standards of service of the industry.
Bill referred to the House Committee pursuant to Standing Order 42(3A).
QUARANTINE AND PREVENTION OF DISEASE (AMENDMENT) BILL 1993
THE SECRETARY FOR HEALTH AND WELFARE moved the Second Reading of: "A Bill to amend the Quarantine and Prevention of Disease Ordinance."
She said: Mr President, I move the Second Reading of the Quarantine and Prevention of Disease (Amendment) Bill 1993.
The proposals in this Bill seek to update the main Ordinance in the light of the changing pattern of communicable diseases and to bring it into line with the International Health Regulations promulgated by the World Health Organization, which are adopted worldwide.
In particular, with the success in international control of relapsing fever and typhus and the global eradication of smallpox, it is no longer realistic or necessary to retain these diseases within the definition of quarantinable diseases. It is therefore proposed to remove references to these diseases wherever they appear in the Ordinance. It is further proposed to update the list of infectious diseases prescribed in the First Schedule of the Ordinance in accordance with the international regulations and worldwide practice.
HONG KONG LEGISLATIVE COUNCIL — 10 November 1993 778
The Bill also proposes to update the maximum level of fines for various offences under the Ordinance. The existing provision for fines were made in 1955 and has not been amended since. It is necessary to increase the level of penalty in order to maintain an effective deterrent against offences.
Opportunity is also taken to transfer certain powers presently vested with the Governor in Council to either the Director of Health or the Secretary for Health and Welfare. These relate, respectively, to the power for amending the statutory forms for notification of diseases and to the power for adjusting the prescribed fees in line with changes in operating cost. The intention of this transfer is to streamline procedures and to make for more efficient administration.
Bill referred to the House Committee pursuant to Standing order 42(3A).
FIXED PENALTY (TRAFFIC CONTRAVENTIONS) (AMENDMENT) (NO. 2) BILL 1993
THE SECRETARY FOR TRANSPORT moved the Second Reading of: "A Bill to amend the Fixed Penalty (Traffic Contraventions) Ordinance."
He said: Mr President, I move that the Fixed Penalty (Traffic Contraventions) (Amendment) (No. 2) Bill be read the Second time.
Under section 25 of the Fixed Penalty (Traffic Contraventions) Ordinance, the Governor in Council may make regulations on a variety of technical and operational matters, for example, pertaining to fixed penalty forms and payment procedures. To relieve the Executive Council of such routine functions, this Bill seeks to transfer these powers to the Secretary for Transport.
The proposed amendment does not impinge on the Legislative Council's powers since Honourable Members will continue to have the opportunity to vet and, if necessary, amend any subsidiary legislation that is made under this Ordinance, when it is tabled in Council.
Bill referred to the House Committee pursuant to Standing Order 42(3A).
FIXED PENALTY (CRIMINAL PROCEEDINGS) (AMENDMENT) BILL 1993
THE SECRETARY FOR TRANSPORT moved the Second Reading of: "A Bill to amend the Fixed Penalty (Criminal Proceedings) Ordinance."
He said: Mr President, I move that the Fixed Penalty (Criminal Proceedings) (Amendment) Bill 1993 be read the Second time.
HONG KONG LEGISLATIVE COUNCIL — 10 November 1993 779
This Bill provides that regulation making powers presently vested in the Governor in Council under section 11 of the principal Ordinance be transferred to the Secretary for Transport. The reasons for the transfer, and the safeguards, are identical to those for the Fixed Penalty (Traffic Contraventions) (Amendment) (No. 2) Bill 1993 which I have just introduced.
Bill referred to the House Committee pursuant to Standing Order 42(3A).
INDUSTRIAL TRAINING (CLOTHING INDUSTRY) (AMENDMENT) BILL 1993
THE SECRETARY FOR EDUCATION AND MANPOWER moved the Second Reading of: "A Bill to amend the Industrial Training (Clothing Industry) Ordinance."
He said: Mr President, I move the Second Reading of the Industrial Training (Clothing Industry) (Amendment) Bill 1993.
The Bill seeks to increase the membership of the Clothing Industry Training Authority by including one representative each from the Labour Department and the Hong Kong Knitwear Exporters and Manufacturers Association Limited. The purpose is to enable the Authority to have more direct input from the Labour Department on the Government's labour policy, and to benefit from expert opinions on the knitwear industry. Consequential increase to the quorum for the meetings of the Authority is necessary.
To facilitate future amendments, we also propose that the provisions of the Ordinance specifying the membership and quorum for meetings of the Authority be transferred to a new Schedule, and that the Governor be empowered to amend this Schedule. This proposal would enable swift updating of the membership of the Authority in response to changing needs.
Bill referred to the House Committee pursuant to Standing Order 42(3A).
INLAND REVENUE (AMENDMENT) (NO. 4) BILL 1993
Resumption of debate on Second Reading which was moved on 2 June 1993 Question on Second Reading proposed.
MR PETER WONG: Mr President, the Inland Revenue (Amendment) (No. 4) Bill 1993, introduced into the Legislative Council on 2 June 1993, provides for deductions in relation to tax liabilities as regards employers' contributions made to an occupational retirement scheme registered or exempted from registration under the Occupational Retirement Scheme Ordinance (ORSO).
HONG KONG LEGISLATIVE COUNCIL — 10 November 1993 780
Presently, to be entitled to claim any such deduction an employer operating a retirement scheme has to obtain the approval of the Commissioner of Inland Revenue to the scheme. The Bill proposes to replace this approval mechanism with a registration or exemption mechanism under the ORSO.
A Bills Committee of which the Honourable Marvin CHEUNG is the chairman was set up in June to study the Bill. The Bills Committee had held four meetings, three of which were attended by the Administration. The Bills Committee deliberated at some length the definition of a recognized occupational retirement scheme under the ORSO and occupational retirement schemes recognized for the purpose of the Ordinance, inter alia, when the scheme is contained or otherwise established under any Ordinance. In this regard the Inland Revenue Ordinance (IRO) definition, as drafted, specifically covers only the Subsidized Schools Provident Fund and the Grant Schools Provident Fund which were established under subsidiary legislation to the Education Ordinance (Cap. 279).
Whilst, taken as a whole, the legislation on retirement schemes is comprehensive, if at some future date a new retirement scheme is established under an Ordinance, amendment to the IRO by way of consequential amendment through the Ordinance establishing the new scheme would be needed. To avoid this necessity the Administration has agreed to add an amendment to the Bill to echo the same definition as that contained in the ORSO. It was, however, pointed out by members that the phrase contained in section 3 of the ORSO, that is, "new schemes established under any Ordinance" would have a much wider ambit than "new schemes established by any Ordinance", this latter phrase reflecting the original legislative intention. The Administration agreed with the views of the members to adopt the word "by" and will introduce a similar consequential amendment to the ORSO.
For the purpose of the definition of "recognized occupational retirement scheme", the effective date would be the date of application for registration. Members were concerned that in setting up a new scheme the employer would need a few months to finalize the preparation of the necessary documents for registration. If backdating was not allowed, it would deprive the scheme of the tax deduction benefits for the few months when the scheme had started but not yet registered. The Administration noted the concern of members and agreed to put in a provision in the Bill so that the effective date can also be an earlier date on which the terms of the scheme came into effect.
Members accepted the Administration's proposal to introduce a new provision to the Bill to include similar conditions as those listed in the Inland Revenue Rules governing retirement and termination of service such as the minimum number of years of service and old age attained at retirement and so on. In order to plug a possible tax avoidance loophole, members also agreed to the introduction of similar provisions as those contained in the existing Inland Revenue Rules on proportionate or reduced benefits. Such provisions will ensure that any benefit paid from the scheme exceeding that permitted will be
HONG KONG LEGISLATIVE COUNCIL — 10 November 1993 781
subject to salaries tax. For payments on termination of service, salaries tax will only be charged on that part of the sum in excess of the proportionate benefit as represents the employer's contributions. Salaries tax will not be imposed on any part of the payment attributable to the employee's contribution to the scheme.
As an employee's accrued rights are his rights as reduced by any applicable vesting scale and, from a tax perspective, this will work to the disadvantage of the employee, on the advice of the Commissioner of Insurance the reference to accrued rights in the new section 8(4)(b) had been changed to accrued benefit and the new definition of "accrued benefit" was introduced in the Bill. The practical effect of the change is that the proportion of the termination of service payment to be received free of salaries tax will be calculated by reference to the employee's gross entitlement in the scheme which is more advantageous to salaries taxpayers.
The most obvious change that members of the public might notice after the enactment of this Ordinance is the substitution of service of notices of assessment by registered post with service by ordinary post. Members were concerned that if that notice of assessment was not received after having been served by ordinary mail the taxpayer would not be able to lodge an objection against an assessment in time. The Administration explained that personal delivery of a registered item to a taxpayer's postal address was not always possible and the taxpayer was unable or unwilling to call at the post office to collect it. This resulted in a very substantial number of notices of assessment being returned to the Inland Revenue Department (IRD) as unclaimed. The proposal was necessary for IRD's efficiency of operations and for taxpayers who had to call at the post office; an inconvenience would be saved.
The Administration also drew comparison with practices from other countries, such as the United Kingdom, Singapore and Australia and also the District Court Rules adopted in Hong Kong when notices and writs were served by the ordinary post to the addressee's usual or last known address. Such notices were deemed to have been delivered unless the contrary is proved or shown. After lengthy discussion and reconsideration the Administration proposed, and the Committee agreed to support, a Committee stage amendment to section 58(3) to allow notices to be sent by ordinary post and such notices would be deemed, unless the contrary is shown, to have been served.
Members further suggested, and the Administration agreed, to make a public statement on this change in the Administration's speech on the resumption of the Second Reading debate.
The last area which the Bills Committee had deliberated in detail was the transitional arrangement provided for under schedule 8 of the Bill. Twenty-four months is provided for applications for registration or exemption under the ORSO to be made. During the transitional period, the retirement schemes can retain their approved status, and the approval will be deemed to have been withdrawn as applications are dealt with under the ORSO. Members were
HONG KONG LEGISLATIVE COUNCIL — 10 November 1993 782
concerned that the transitional arrangement did not cover cases where applications were put in before the relevant section of the Inland Revenue Ordinance or section 87A, was repealed and the Commissioner's power to approve replaced, but the cases had not been fully disposed of at the time when section 87A was repealed.
The Administration agreed to introduce a Committee stage amendment to allow the Commissioner to approve such applications, notwithstanding the repealing of section 87A, and such approval, if given, would be deemed to have been approved by the Commissioner under the section immediately prior to its repeal by the amending Ordinance. The transitional provisions were also silent on the status of an existing approved retirement scheme that was refused registration or exemption under the ORSO under the transitional period.
An amendment would be introduced where the Commissioner's approval would be deemed to be withdrawn on the expiry of the transitional period. The ORSO which provides a legislative framework for the prudential regulation of private sector retirement schemes in Hong Kong came into operation on 15 October 1993. The Bill now being debated is to make consequential amendments to the IRO which are necessary to ensure that recognized occupational retirement schemes will continue to enjoy the same tax benefits and exemptions to which they are currently entitled.
Mr President, with these remarks, I support the Bill.
SECRETARY FOR THE TREASURY: Mr President, as the Honourable Peter WONG clearly points out, the Inland Revenue (Amendment) (No. 4) Bill 1993 deals with the consequences of the Occupational Retirement Schemes Ordinance which came into force on 15 October 1993. This is a technical piece of legislation. The Administration's work has been made much less onerous by the fact that it has received valuable and constructive advice and suggestions from the Bills Committee and interested parties. I would like to thank, in particular, the Honourable Marvin CHEUNG and other Members of the Bills Committee for their meticulous scrutiny of the Bill. Their detailed comments on the Bill have helped us to refine it for greater clarity.
The Committee stage amendments which I am going to move are the agreed outcome of detailed discussions at the Bills Committee. I would like to highlight two main points. First, the amendments will clarify the conditions under which benefits paid by recognized retirement schemes may be received by the beneficiaries free of salaries tax. These conditions were previously embodied in the Inland Revenue (Retirement Scheme) Rules.
The second point, which is unrelated to occupational retirement schemes, deals with the postal delivery of notices of tax assessments under the Inland Revenue Ordinance. At present, such notices, except for those for property tax, are sent by registered mail, whereby delivery is acknowledged by receipts. But
HONG KONG LEGISLATIVE COUNCIL — 10 November 1993 783
nowadays, with members of most households away from home either in fulltime employment or attending school during the day, registered letters often cannot be delivered at the taxpayers' postal address and they have to be collected from the post office instead. Higher postal costs apart, this causes inconvenience to taxpayers. With the reliable and efficient postal service in Hong Kong, ordinary mail is now commonly regarded as an acceptable and reliable mode of delivery. The Bill therefore seeks to enable the Commissioner of Inland Revenue to issue notices of assessments in respect of salaries tax, profits tax and personal assessments by ordinary mail.
Following the advice of the Bills Committee, the amendments now provide that a taxpayer who has not received the notice will have the opportunity to prove this is so to the Commissioner of Inland Revenue. The amendments would thus preserve the taxpayer's legitimate right of objection against the assessment within the statutory time limit. This has been achieved by adding the phrase "unless the contrary is shown" to section 58 of the Inland Revenue Ordinance.
Mr President, I commend this Bill to the Council, subject to the amendments which I shall move in Committee.
Question on the Second Reading of the Bill put and agreed to.
Bill read the Second time.
Bill committed to a Committee of the whole Council pursuant to Standing Order 43(1).
PROTECTION OF INVESTORS (AMENDMENT) BILL 1993
Resumption of debate on Second Reading which was moved on 30 June 1993 Question on the Second Reading of the Bill proposed, put and agreed to. Bill read the Second time.
Bill committed to a Committee of the whole Council pursuant to Standing Order 43(1).
Committee stage of Bills
Council went into Committee.
HONG KONG LEGISLATIVE COUNCIL — 10 November 1993 784 INLAND REVENUE (AMENDMENT) (NO. 4) BILL 1993
Clauses 1 to 4, 8 to 10, 12 and 13
SECRETARY FOR THE TREASURY: Mr Chairman, I move that clauses 1, 2, 3, 4, 9, 12 and 13 be amended, and clauses 8 and 10 be deleted as set out in the paper circulated to Members.
The proposed amendments to clauses 1 and 2 clarify the commencement of the amending Ordinance, the definition of "recognized occupational retirement schemes" and the date on which such schemes are excepted for profits tax purpose. Clause 3 incorporates requirements previously contained in the Inland Revenue (Retirement Scheme) Rules into the Ordinance, thus making it clear the conditions under which benefits paid by recognized schemes may be received by the beneficiaries free of salaries tax. Clause 4 provides that any amounts received by employees from recognized schemes in respect of their own contributions are not chargeable to salaries tax.
Clause 8 has been deleted on the advice of the Bills Committee. Clause 9 provides that, unless the contrary is shown, a notice of assessment is deemed to have been served on the day after it would have been received in the ordinary course of the post. The deletion of clause 10 is consequential to the deletion of clause 8. Clause 13 provides that the approval given by the Commissioner of Inland Revenue to any retirement scheme under the repealed section 87A will be deemed to have been withdrawn once section 3 of the Occupational Retirement Schemes Ordinance comes into force, if by that date an application for registration or an exemption certificate in respect of such scheme under the Occupational Retirement Schemes Ordinance is rejected and an appeal (if any) dismissed.
Mr Chairman, I beg to move.
Proposed amendments
Clause 1
That clause 1 be amended, by deleting subclause (2) and substituting —
"(2) This Ordinance shall, subject to subsection (3), come into operation on a day to be appointed by the Governor by notice in the Gazette and shall apply to the year of assessment in which this Ordinance comes into operation and all subsequent years of assessment.".
That clause 1(3) be amended, by deleting "(88 of 1992)" wherever it appears and substituting" (Cap. 426)".
HONG KONG LEGISLATIVE COUNCIL — 10 November 1993 785 Clause 2
That clause 2(a)(ii) be amended, in the proposed definition of "recognized occupational retirement scheme" —
(a) in paragraph (d) by deleting the comma at the end and substituting "; and"; and (b) by deleting everything after paragraph (d) and substituting -
"(e) contained in or otherwise established by any Ordinance;".
That clause 2(b) be amended, in the proposed section 2(2A) —
(a) in paragraph (a) by deleting everything after "scheme as" and substituting - "from -
(i) the date on which the application for such registration was made; or
(ii) the date on which the terms of the scheme came into effect,
whichever is the earlier; and"; and
(b) in paragraph (b) by deleting everything after "scheme as" and substituting - "from -
(i) the date on which the application for the certificate was
made; or
(ii) the date on which the terms of the scheme came into
effect,
whichever is the earlier:
Provided that if such date is earlier than the first commencement date of the Occupational Retirement Schemes Ordinance (Cap. 426), the scheme shall be regarded as a recognized occupational retirement scheme as from such commencement date.".
HONG KONG LEGISLATIVE COUNCIL — 10 November 1993 786
That clause 2 be amended, by deleting "(88 of 1992)" wherever it appears and substituting "(Cap. 426)".
Clause 3
That clause 3 be amended —
(a) by deleting "8(2)" and substituting "8".
(b) in paragraph (a) by deleting "paragraph (c)" and substituting "subsection (2)(c)".
(c) in paragraph (a), in the proposed section 8(2)(c), by adding "subject to subsection (4)" before "any sum".
(d) by deleting paragraph (b) and substituting -
"(b) in subsection (2)(cb) -
(i) by adding "subject to subsection (4)" before "any sum"; and
(ii) by repealing "an approved retirement scheme, but, if the approved retirement" and substituting -
"a recognized occupational retirement scheme upon
termination of service, death, incapacity or retirement, but, if
the"; and
(c) by adding -
"(3) For the purposes of subsection (2)(c) and (cb) -
"retirement" means -
(a) a retirement from the service of the employer at
some specified age of not less than 45 years; or
(b) a retirement after some specified period of service
with the employer of not less than 10 years; or
HONG KONG LEGISLATIVE COUNCIL — 10 November 1993 787
(c) the attainment of the age of 60 years or some
specified age of retirement, whichever is the later;
"termination of service" means a termination of employment with the employer other than upon retirement, death or incapacity.
(4) (a) Any amount received on termination of service from a recognized occupational retirement scheme
as represents the employer's contributions under the
scheme may only be excluded under subsection
(2)(c) and (cb), as the case may be, to the extent
that the amount does not exceed the proportionate
benefit calculated in accordance with paragraph (b).
(b) The proportionate benefit is the sum not exceeding
the amount bearing the same ratio to the accrued
benefit of the relevant person as represents the
employer's contributions under the scheme as the
number of completed months of service with the
employer bears to 120 months:
Provided that in the case of a recognized
occupational retirement scheme approved by the
Commissioner under section 87A at any time prior
to its repeal by the Inland Revenue (Amendment)
(No. 5) Ordinance 1993 ( of 1993), where any
amount payable upon termination of service in
accordance with the rules of the scheme, as
approved by the Commissioner prior to the
HONG KONG LEGISLATIVE COUNCIL — 10 November 1993 788
repeal of the section, exceeds the proportionate
benefit calculated in accordance with this paragraph,
that amount shall be taken to be the proportionate
benefit.
(c) For the purpose of paragraph (b) -
"accrued benefit" means the maximum benefit a
person would have been entitled to receive
under an occupational retirement scheme in
respect of his service recognized for the
purposes of the scheme if, at the date of
termination of the person's employment,
retirement (as defined in subsection (3)) has
instead taken place.".".
Clause 4
That clause 4 be amended —
(a) by renumbering it as clause 4(1).
(b) by deleting subclause (1)(a) and substituting -
"(a) in paragraph (aa) by repealing "an approved retirement scheme, as represents his" and substituting "a recognized occupational retirement scheme, as represents the"; and".
(c) in subclause (1)(b), in the proposed section 9(1)(ab) by repealing everything after "occupational retirement" and substituting -
"scheme -
HONG KONG LEGISLATIVE COUNCIL — 10 November 1993 789
(i) by reason other than termination of service, death, incapacity or retirement of the employee as represents the employer's
contributions under the scheme in respect of the employee;
(ii) by reason of termination of service as represents such part of the employer's contributions under the scheme in respect of the
employee that exceeds the proportionate benefit calculated in
accordance with section 8(4)(b),.".
(d) in subclause (1)(b), in the proposed section 9(1)(ac) -
(i) by adding "by an employee" after "received"; and
(ii) by deleting "(88 of 1992)" and substituting "(Cap. 426) that is attributable to his employer's contributions to the occupational retirement scheme in respect of which the judgment was given".
(e) by adding -
"(2) Section 9(6) is amended -
(a) in the definition of "place of residence" by repealing the full stop and substituting a semicolon; and
(b) by adding -
""retirement" and "termination of service" have the same
meaning as in section 8(3).".".
Clause 8
That clause 8 be amended, by deleting the clause.
Clause 9
That clause 9 be amended, by deleting the clause and substituting —
"9. Signature and service of notices
Section 58 is amended -
HONG KONG LEGISLATIVE COUNCIL — 10 November 1993 790 (a) in subsection (2) by repealing the proviso; and
(b) in subsection (3) by adding ", unless the contrary is shown," after "deemed".".
Clause 10
That clause 10 be amended, by deleting the clause.
Clause 12
That clause 12 be amended, in the proposed section 89(3) by deleting "Schedule 8" and substituting "Schedule 9".
Clause 13
That clause 13 be amended, in the proposed Schedule 8 —
(a) by deleting "SCHEDULE 8" and substituting "SCHEDULE 9";
(b) by adding -
"1A. Notwithstanding the repeal of section 87A by the amending Ordinance, where an application for approval of a retirement scheme under that section was received by the Commissioner before such repeal, the Commissioner may approve the scheme as if that section has not been repealed, and where such approval has been given the scheme shall be deemed to have been approved by the Commissioner under that section immediately prior to its repeal by the amending Ordinance.";
(c) in paragraph 2(b)(ii), by deleting "or" at the end; and
(d) in paragraph 2(b), by adding -
"(iiA) where an application made under section 7 or 15 of the Occupational Retirement Schemes Ordinance (Cap. 426) in respect of the scheme is rejected and an appeal (if any) against such rejection is dismissed before the commencement of section 3 of that Ordinance, on that date of commencement; or".
HONG KONG LEGISLATIVE COUNCIL — 10 November 1993 791
That clause 13 be amended, by deleting "(88 of 1992)" wherever it appears and substituting "(Cap. 426)".
Question on the amendments proposed, put and agreed to.
Question on clauses 1 to 4, 8 to 10, 12 and 13, as amended, proposed, put and agreed to.
Clauses 5 to 7, 11 and 14 were agreed to.
New clause 13A Exceptions for transactions for
money consideration, property
situate outside Hong Kong, shares
on local registers and certain land
in the New Territories
New clause 15 Restriction on operation of
occupational retirement schemes
Clauses read the First time and ordered to be set down for Second Reading pursuant to Standing Order 46(6).
SECRETARY FOR THE TREASURY: Mr Chairman, I move that new clauses 13A and 15 be added as set out in the paper circulated to Members.
The new clause 13A aligns the terminology in the present Estate Duty Ordinance with that in the Inland Revenue Ordinance. Clause 15 implements a recommendation of the Bills Committee to make a minor amendment to the Occupational Retirement Schemes Ordinance.
Mr Chairman, I beg to move.
Question on the Second Reading of the clauses proposed, put and agreed to. Clauses read the Second time.
SECRETARY FOR THE TREASURY: Mr Chairman, I move that new clauses 13A and 15 be added to the Bill.
HONG KONG LEGISLATIVE COUNCIL — 10 November 1993 792 Proposed additions
New clause 13A
That the Bill be amended, by adding before clause 14 —
"Estate Duty Ordinance
13A. Exceptions for transactions for
money consideration, property
situate outside Hong Kong,
shares on local registers
and certain land in the
New Territories
Section 10(h) of the Estate Duty Ordinance (Cap. 111) is amended by repealing "an approved" and substituting "a recognized occupational".".
New clause 15
That the Bill be amended, by adding —
"Occupational Retirement Schemes Ordinance
15. Restriction on operation of
occupational retirement schemes
Section 3(1)(b) of the Occupational Retirement Schemes Ordinance (Cap. 426) is amended -
(a) by repealing "under" and substituting "by"; and
(b) in the Chinese text by repealing "根據" and substituting "由".".
Question on the addition of the new clauses proposed, put and agreed to.
PROTECTION OF INVESTORS (AMENDMENT) BILL 1993
Clauses 1 to 9 were agreed to.
Council then resumed.
HONG KONG LEGISLATIVE COUNCIL — 10 November 1993 793 Third Reading of Bills
THE ATTORNEY GENERAL reported that the
INLAND REVENUE (AMENDMENT) (NO. 4) BILL 1993
had passed through Committee with amendments and the
PROTECTION OF INVESTORS (AMENDMENT) BILL 1993
had passed through Committee without amendment. He moved the Third Reading of the Bills.
Question on the Third Reading of the Bills proposed, put and agreed to. Bills read the Third time and passed.
Member's motions
PRESIDENT: I have accepted the recommendations of the House Committee as to time limits on speeches for the motion debates and Members were informed by circular on 5 November. The mover of the motion will have 15 minutes for his speech including his reply and another five minutes to reply to proposed amendments. Other Members, including movers of amendments, will have seven minutes for their speeches. Under Standing Order 27A, I am required to direct any Member speaking in excess of the specified time to discontinue his speech.
FREEDOM OF MOVEMENT
MISS EMILY LAU moved the following motion:
"That this Council urges the British Government -
(a) to secure a firm undertaking from the People's Republic of China on Hong Kong people's freedom of movement after 30 June 1997, in particular that Hong Kong people will neither be denied the right to re-enter the Special Administrative Region nor have their passports cancelled; and
(b) to confirm that if holders of British National (Overseas) passports are expelled from Hong Kong after 30 June 1997 they will be accepted for settlement in the United Kingdom."
HONG KONG LEGISLATIVE COUNCIL — 10 November 1993 794
MISS EMILY LAU (in Cantonese): Mr President, I move the motion standing in my name in the Order Paper. Under British rule, the people of Hong Kong enjoy many freedoms. Some even say that Hong Kong is one of the freest places in Asia. Our freedom to enter and leave the territory makes Hong Kong an international metropolis. Such freedom of movement for the people of Hong Kong in the future is expressly provided for in the Sino British Joint Declaration and the Basic Law. Why then am I moving this motion?
Mr President, in August this year, China's labour movement leader HAN Dongfang was expelled from China by the Chinese Government, which also cancelled his passport. He is now stranded in Hong Kong. In Hong Kong, the HAN Dongfang case has caused general concern. In a public opinion survey conducted by the University of Hong Kong in August, nearly half of the respondents said that they were worried because, after 30 June 1997, people might be denied the right to re-enter Hong Kong for criticizing the Chinese Government. True, Article 31 of the Basic Law provides for Hong Kong people's freedom to enter and leave the territory. But this, I feel, is not enough. There are grey areas in the text that must be clarified. This is why I am moving this motion today to urge the British Government to secure a firm undertaking from the People's Republic of China on Hong Kong people's freedom to enter and leave the SAR after 30 June 1997. The same motion also urges the British Government to confirm that, if holders of British National (Overseas) passports are expelled from Hong Kong after 30 June 1997, they will be accepted for settlement in the United Kingdom.
Mr President, Article 31 of the Basic Law provides that Hong Kong residents shall have freedom of movement within the Special Administrative Region and freedom of emigration to other countries and regions; they shall have freedom to travel and to enter or leave the SAR; unless restrained by law, holders of valid travel documents shall be free to leave the SAR without special authorization. Article 154 of the same Basic Law provides that the Central Government shall authorize the SAR Government to issue SAR passports to Chinese citizens who are permanent residents of Hong Kong and to issue travel documents to all other persons lawfully residing in the SAR and that such passports and documents shall specify the holder's right to return to the SAR. However, the Basic Law fails to specify whether it is the Central Government or the SAR Government that shall have the power to cancel a passport issued to a Hong Kong person. Should the cancellation of a passport be an act under Hong Kong law or under national law? What avenues of appeal will be open to the holder of the cancelled passport? More importantly, will Hong Kong people's freedom to enter and leave the SAR be subject to restrictions under Chinese law? Article 31 of the Basic Law provides that any holder of a valid travel document shall be free to leave the territory without special authorization. However, the Basic Law fails to specify whether it is the SAR Government or the Central Government that shall be responsible for giving the authorization where such is required. When the Chinese Government expelled HAN Dongfang and cancelled his passport, this was done allegedly under the terms of China's National Security Law and Citizens' Departure and Re-entry
HONG KONG LEGISLATIVE COUNCIL — 10 November 1993 795
Control Law. So the question is: Will these laws apply to Hong Kong after 1997? I hope that the British Government will find for us the answers to all of the above questions.
Mr President, Annex III to the Basic Law enumerates six national laws that shall apply to SAR. However, Article 18 of the Basic Law provides that the Standing Committee of the Chinese National People's Congress shall have the power to add to or delete from the list of laws in Annex III. The laws named in the list supposedly deal with national defence and foreign policy matters and matters not within the scope of SAR's autonomy. But, because the Basic Law fails to define the scope of SAR's autonomy, we feel compelled to ask: Will the issuance and cancellation of passports and the control of Hong Kong people's exit from and entry to the SAR fall within the scope of the SAR's autonomy? The Basic Law vests in the SAR Government various powers to control the entry into Hong Kong of persons who are residents of other parts of China. Article 22 of the Basic Law provides that a resident of another part of China wishing to enter Hong Kong shall be required to apply for approval. However, the Basic Law fails to specify whether such application shall be processed by the Central Government or the SAR Government. The number of people from other parts of China entering the SAR to live there permanently shall be determined by the Central Government after consultation with the SAR Government. But Article 154 of the Basic Law provides that the SAR Government may apply immigration controls on persons from countries or regions other than China. Mr President, closely related to the freedom of movement is the concept of a permanent resident with the right of abode. Article 24 of the Basic Law provides that Chinese citizens born in Hong Kong or have ordinarily resided in Hong Kong for not less than seven years shall, together with their children, be eligible to become permanent residents with the right of abode. If a non-Chinese person has ordinarily resided in Hong Kong for a continuous period of not less than seven years and has taken Hong Kong as his place of permanent residence, he, too, may become a permanent resident with the right of abode. My colleague, Mrs Elsie TU, asked a moment ago: How come that, after living in Hong Kong for so many years, she is still not a permanent resident and still does not have the right of abode? We know that the Chinese and the British Governments have been discussing this question for many years and still have not found the answer. Until an answer is found, one will worry a great deal about these non-Chinese persons' right of abode and freedom of exit from and entry to the territory.
Mr President, the Chinese constitution contains no article that protects Chinese citizens' freedom to enter and leave China. Hong Kong's Basic Law contains articles protecting Hong Kong people's freedom to enter and leave the territory. Some may point to these articles and say that the Basic Law represents an improvement. However, because the particular articles are not clearly written and because the powers are but amorphously defined, there may be confusion over implementation and this, again, may impact on people's confidence.
HONG KONG LEGISLATIVE COUNCIL — 10 November 1993 796
Mr President, also of concern to the people of Hong Kong is the fact that the spirit of the rule of law is missing from the Chinese Government. Some therefore doubt that the Chinese Government will abide by the Basic Law and respect the spirit of the rule of law such as now exists in Hong Kong. The HAN Dongfang affair is a case in point. In July last year, HAN received approval from the Chinese Government to go abroad for medical treatment. In August this year, he returned to China via Hong Kong. On 14 August, he was expelled by the public security authorities of Guangzhou. At Lo Wu, he made another attempt to enter China. The border guards said to him, "You are not qualified to say that China is your country. This country does not welcome you." After two weeks of approaches to various other authorities by HAN, the Chinese Ministry of Public Security finally announced that HAN had violated China's National Security Law and Citizens' Departure and Re-entry Control Law. It was further announced that HAN, since leaving China, had done deeds detrimental to the motherland's security, good name and interests and that therefore his passport was cancelled. Yet, Mr President, according to Rule 22 of China's Citizens' Departure and Re-entry Control Law, the authorities can cancel a citizen's passport only under two sets of circumstances: Firstly, the passport holder has illegally entered another country to establish unlawful abode and has been deported back to China; secondly, the passport holder is a trickster. HAN is guilty of neither. Therefore, we want to ask: Under what law did the Chinese Government cancel HAN's passport and forbid him to return to China? Of course, HAN is not the only Chinese citizen whom Beijing has kept out of China in recent years. In June last year, former Guangming Ribao reporter DAI Qing passed through Hong Kong on her way back to Beijing from the United States, holding a Chinese passport. In Hong Kong, Chinese officials forbade her to board her plane. A few days later, Chinese Premier LI Peng personally intervened in her behalf. This enabled her to re-enter China. Another Chinese citizen, student GONG Xiaoxia, was returning to China at the same time as DAI. She did not have DAI's good luck. After arriving at Guangzhou, she was expelled back to Hong Kong. She failed to receive help from Premier LI, and so in the end she had to go back to the United States. In the course of these two incidents, the Chinese Government never explained why DAI and GONG were refused entry into China. We are especially puzzled as to why DAI could re-enter China upon Premier LI's intervention. Was it because a leader could overturn a lawful decision, assuming that it was a lawful decision, just because it pleased him to do so? If such was the case, where would this leave the spirit of the rule of law?
Mr President, some have pointed out that HAN, DAI and GONG are all Chinese citizens; that Hong Kong after 30 June 1997 will be part of "one country with two systems"; and that the Chinese Government will not treat Hong Kong people in the same way. We are now less than four years away from 30 June 1997, but we have already seen Hong Kong people refused entry into China by the Chinese Government. Some Hong Kong people holding Home Visit Permits issued to them as compatriots in Hong Kong/Macau, have had these permits cancelled in like manner without lawful justification. One of them is CHOY Yiu-cheong. In August, he accompanied HAN Dongfang back to
HONG KONG LEGISLATIVE COUNCIL — 10 November 1993 797
China. His permit was suspended for three years by the border check-point, on the ground that that CHOY had allegedly engaged in activities against the Chinese Government. The Chinese public security authorities said that, if he behaved himself well after returning to Hong Kong, he might be able to get his permit back in less than three years. The public security authorities said to him, "After you go back to Hong Kong, don't say unruly words and don't do deeds harmful to the Chinese Government. Do more of such deeds as are good for the Chinese Government." They then warned him that there would be people in Hong Kong watching his activities. Mr President, under section 25 of China's Provisional Regulations on Private Travels of Chinese Citizens between China and Hong Kong/Macau, the authorities can revoke a Home Visit Permit only under three sets of circumstances. Firstly, it is thought the holder may commit robbery, theft or narcotics trafficking; secondly, the holder uses forged papers; thirdly, the holder is mentally ill. Clearly, none of these sets of circumstances existed in the CHOY case. We therefore feel compelled to ask one more question: On what legal ground did the Chinese Government cancel CHOY's Home Visit Permit? Some time ago, Express correspondent LEUNG Wai-man got into trouble in Beijing and was then released. She, too, was warned not to return to China within two years. More recently, TSANG Kin-shing and TO Kwan-hang, members of the Hong Kong Alliance in support of the Pro-Democracy Movement in China, were refused entry into China when they tried to visit the Daya Bay Nuclear Power Plant by joining a visiting group of district board members. This series of incidents compel us to ask: Under what circumstances will the Chinese Government refuse Hong Kong people entry into China?
Mr President, some people wanted to enter China but were denied approval. Some people wanted to leave China but were also denied approval. At a recent seminar in Princeton University in the United States, which I attended, I learnt that three Chinese scholars — TONG Dalin, WU Mingyu and ZHENG Zhongbing — could not be present because they failed to receive approval from the Chinese Government. Under China's Citizens' Departure and Re-entry Control Law, the Chinese Government can in fact refuse to let a person leave the country if it thinks that, after leaving the country, he will do harm to national security or cause serious damage to national interests. The question is: After 30 June 1997, will the Chinese Government use the same clauses to curtail Hong Kong people's freedom to enter and leave the territory?
Mr President, if it should really happen after 30 June 1997 that a Hong Kong person is unreasonably expelled or deported by the Chinese Government from the territory, what would the British Government do in such a case? For years, I have been strongly critical of the British Government's nationality policy, which will turn Hong Kong people into second class citizens. In 1985, when the British Government started issuing the British National (Overseas) Passport, it promised that it would be sympathetic to British Nationals (Overseas) if, after 30 June 1997, they should be forced to leave Hong Kong and unable to find settlement anywhere else. It said that it would consider accepting such people on a case by case basis. However, after the
HONG KONG LEGISLATIVE COUNCIL — 10 November 1993 798
4 June 1989 Beijing massacre, the British Government changed its tone. The changed message was that, should a catastrophic tragedy befall Hong Kong, the British Government would mobilize the international community to help the people of Hong Kong. As to the 1985 promise, the officials concerned said that it was a promise made to the several thousand non-Chinese residents of Hong Kong and not to the several million BN(O)s. I am ashamed of, and outraged by, such British irresponsibility.
Judging by the current trend of events, we are worried that there will very probably be problems affecting Hong Kong people's freedom to leave and enter the territory. Therefore, the British Government has the obligation to seek a clarification and a firm undertaking from the Chinese Government. I also urge the British Government to give an undertaking that it will accept those Hong Kong people — especially those with British passports — who will be expelled from the territory. I hope that the British Government will also be sympathetic to, and take care of, those without such passports.
Mr President, with these remarks, I move the motion.
Question on the motion proposed.
MRS SELINA CHOW (in Cantonese): Mr President, with regard to the motion moved by Miss Emily LAU, the Liberal Party has stated in our party platform that we shall strive for the continuation of the freedoms that Hong Kong now enjoys in all areas. So we support the spirit of the motion. However, there are matters that we must study and analyze more deeply, so as to determine what we specifically strive for and in whose favour.
As we all know, the expulsion of HAN Dongfang and the subsequent cancellation of his passport by the Chinese Government have produced major repercussions among the public in Hong Kong. HAN, a Chinese citizen, was expelled from China. Insofar as the "one country, two systems" principle will apply to Hong Kong after 30 June 1997, his case is really not relevant to Hong Kong residents' freedom of movement, including their right to leave and enter the territory freely, under the Special Administrative Region Government. Such freedom, according to the explicit text of the Joint Declaration and the Basic Law, will be protected. Still, the case has made Hong Kong people wonder if their freedom of movement will really be protected after 30 June 1997. HAN is a Chinese citizen; yet he was refused entry into China, his own country. One really has to wonder if the future Hong Kong SAR Government will not treat SAR residents similarly.
Section XIV of the Joint Declaration and Article 31 of the Basic Law provide that "Hong Kong residents shall have the freedom of movement within the Hong Kong Special Administrative Region and freedom of emigration to other countries and regions. They shall have freedom to travel and to enter or leave the Region. Unless restrained by law, holders of valid travel documents
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shall be free to leave the Hong Kong Special Administrative Region without special authorization." These words make it clear that the residents of Hong Kong will have the freedom of movement and will be free to leave and enter the territory. However, up to now, no policy or law says specifically how these words should be put into effect. Nor has any general direction been set.
Firstly, we need to have a clear definition for the term "Hong Kong people" in the context of the motion. Article 24 of the Basic Law divides "residents of Hong Kong" into two kinds: "permanent residents" with the right of abode and "non-permanent residents" with Hong Kong identity cards but without the right of abode. As far as I know, the term "Hong Kong people" in the context of the motion refers to "permanent residents" with the right of abode and with passports. However, even though permanent residents have the right of abode, some of them will be holding passports or travel documents not necessarily issued by the future Hong Kong SAR Government or the present Hong Kong Government. They will probably be holding passports issued by other countries, passports which say that their holders have the right of abode in the passport-issuing countries and the right to leave and enter those countries. In other words, the freedom of movement of these "permanent residents" with foreign passports, including their right to leave and enter Hong Kong freely, will be guaranteed by the Joint Declaration and the Basic Law. Even supposing that some of them will be refused entry into Hong Kong by the future SAR Government, they will still be able to return to their passport-issuing countries in exercise of their right of abode and right of entry. However, there are "permanent residents of Hong Kong" who do not hold foreign passports. They are the ones who worry greatly about whether their freedom of movement, including their right to leave and enter the territory freely, will be protected after 30 June 1997. To put it simply, we need to urge the British Government to secure a firm undertaking from its Chinese counterpart that the latter will make practical arrangements for the protection of these people's freedom of movement, including their right to leave and enter the territory freely.
Article 154 of the Basic Law already provides specifically that holders of passports or valid travel documents issued by the SAR Government shall have the right to return to Hong Kong. Since the Basic Law already provides specifically that passport holders shall have the right to return to Hong Kong, it is all the more necessary for the British Government to secure a undertaking from its Chinese counterpart before 30 June 1997 that the freedom of movement of Hong Kong residents, including their right to leave and enter the territory freely, will be protected and that neither the Chinese Government nor the SAR Government will haphazardly cancel their passports and refuse to let their holders enter the territory.
From the above provisions of the Basic Law, there emerges another question that deserves our attention. It is the question of whether the definition of "permanent residents of Hong Kong" as defined by the present British administration in Hong Kong is consistent with the definition of the same term as defined in the Basic Law. This question involves the issues of nationalities
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and rights that will arise with the transfer of sovereignty. Therefore, both definitions must be specific and capable of consistent interpretation.
Lastly, we agree that, if a holder of a BN(O) passport is expelled from Hong Kong by the SAR Government after 30 June 1997, the British Government should accept him lest he should become a "human ball" that is kicked back and forth. Since Britain has ruled Hong Kong for over a hundred years and the BN(O) passports are issued by the present British administration in Hong Kong, the British Government must assume moral responsibility for their holders and accept those who may one day be refused entry into Hong Kong, lest they would become stateless and have nowhere to go.
Mr President, with these remarks, I support the motion.
MR SZETO WAH (in Cantonese): Mr President, Article 31 of the Basic Law provides that "Hong Kong residents shall have freedom of movement within the Hong Kong Special Administrative Region and freedom of emigration to other countries or regions. They shall have freedom to travel and to enter or leave the Region. Unless restrained by law, holders of valid travel documents shall be free to leave the Region without special authorization."
Some may ask: Since the text is so clear, why need any "undertaking"? Is the present motion not superfluous? If it indeed is, then we must thank Heaven because everything will be all right. But let us see how the Basic Law is being interpreted.
Somebody said: Suppose that the Sino-British talks on Hong Kong's political system fail to reach an agreement, then not only will the Legislative Councillors elected in 1995 have to get off the train, but so will the members of the two municipal councils and district boards. A reporter asked: The Basic Law does not say that the members of the two municipal councils and district boards will need approval to remain on the through train. Why must they, too, get off? The answer is: While the Basic Law does not say that approval will be needed, neither does it say that approval will not be required.
By the same logic, the Basic Law does not say that Hong Kong people will need approval to eat rice after 30 June 1997, but neither does it say that approval will not be needed. So, when the time comes, approval to eat rice may be withheld.
The above answer is given by a person in authority. (He was so disappointed with the Chinese Government that) he amended the wording of his comment from "I have nothing to say" to "I am anguished and bitter" Now, his authoritative answer really makes us want to say, "We have nothing to say" and "We are anguished and bitter".
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Such has been the inconsistent record of interpretation of the Basic Law. How can Hong Kong people not have doubts and worries? How can they thank Heaven because everything will be all right? How can they say that the present motion is superfluous?
Recently, district board members TSANG Kin-shing and TO Kwan-hang wanted to join a visiting group to the Daya Bay Nuclear Power Plant. Their applications were rejected. I understand that this was not because the Plant did not welcome them but rather the Chinese authorities refused to let them enter China. Both of them had valid Chinese travel documents — Home Visiting Permits. Nor were these Permits declared invalid. Why, then, were they denied entry into China?
After 30 June 1997, Hong Kong will be part of China upon China's resumption of the exercise of sovereignty over the territory. With the exception of those who will be holding foreign passports, all Hong Kong people, including those holding BN(O) passports, will become Chinese citizens. When the time comes, will they suddenly find that they have become HAN Donfangs upon their return to Hong Kong from abroad? Will their SAR passports be cancelled? Will they be deprived of their citizenship and become stateless "human balls" kicked back and forth between nations?
I do not know if there is any Member who wants to oppose the motion. If there is, I want him to answer the above questions.
The second part of the motion is: If holders of BN(O) passports are expelled from Hong Kong after 30 June 1997, they should be guaranteed acceptance by Britain. This part of the motion is enough to sadden every Chinese with a feeling for his nation. Why must a citizen of China ask for acceptance by a foreign country? Many Hong Kong people were born and have grown up here. It is the place where they enjoy their pleasures and suffer their sorrows. Why can they not remain here until they die?
Please do not blame the person who moved the motion. More to blame is the cause, the reason why the motion had to be moved.
Mr President, despite my own sadness, I can understand the doubts and worries of many, many people. So I support the motion.
MR VINCENT CHENG: Mr President, I do not think anyone in this Council would argue against freedom of movement, nor would we disagree with the principle that no government should deny the right of its citizens to re-enter the country where they have the right to reside permanently. These are universal principles and basic human rights which no civilized government should violate. Sadly, throughout history, and even today, there are people exiled by their political opponents because of different political convictions. While this may actually be better than getting locked up in prison, nonetheless, such act is a
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violation of basic human rights which should be condemned. I certainly hope that no one in Hong Kong would face any such threat in the years to come.
The right of Hong Kong people to leave and re-enter Hong Kong is guaranteed in the Basic Law. As mentioned before Article 31 states categorically that Hong Kong residents shall have freedom of movement within the Hong Kong Special Administrative Region and freedom of emigration to other countries and regions. They shall have freedom to travel and to enter or leave the Region. Unless restrained by law, holders of valid travel documents shall be free to leave the Region without special authorization. This right is also clearly stated in the Sino-British Joint Declaration. I, as a permanent resident of Hong Kong, expect the future SAR Government to uphold the Basic Law and that I will continue to have the right to obtain a valid travel document which is a document to exercise such right. The travel document, if lawfully obtained, cannot be revoked by the SAR Government because this would be tantamount to depriving the holder of the right of freedom of travel, a violation of the Basic Law.
Since the freedom of travel is already guaranteed by the Basic Law and the Sino British Joint Declaration, I do not see the need to urge the British Government to secure an undertaking from the Chinese Government to affirm what they have jointly accepted and written into law. I accept that there are many technical details yet to be worked out. The details should not contradict the provisions of the Basic Law.
In view of the difficulties in the Sino-British negotiation on the 1994-95 electoral arrangements, and the lack of progress in the JLG meetings, I would think it unwise to put one more item, which is already signed and sealed, on the already crowded agenda in a charged atmosphere.
Nevertheless, since there are people in Hong Kong who feel they need the comfort of reaffirmation of the relevant clauses in the Basic Law, the Chinese and British Governments should consider this request favourably. I personally feel it unnecessary. If we do not accept the Basic Law in good faith, no amount of reaffirmation would erase the skepticism.
I support the motion's second part. Britain has the constitutional and moral obligation to accept BN(O) passport holders who, for political reasons, could not live in Hong Kong after 1997. I hope this will never happen. History will judge the United Kingdom harshly on the subject of British nationality for Hong Kong people. I do not want to waste Members' time on this sickening subject by repeating what have been said many times in this Chamber.
Mr President, I support the motion.
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MR CHEUNG MAN-KWONG (in Cantonese): Mr President, I suppose I have to declare interests before participating in this debate. Since the stripping of HAN Dongfang, the democratic movement activist, the right to return to China, those of us who are staunch supporter of the pro-democracy movement feel particularly sorry for him. However, on second thought, I am all the more upset and feel absurd when I have to declare interests in a debate on Chinese national's legal right to return to China.
Someone may say: Has Article 31 of the Basic Law not specified that Hong Kong residents have freedom to enter or leave the territory? Mr President, I am not sure whether the Basic Law, like the Chinese constitution, would not be as grand as its wording when it is put into practice. Yet, I would like to cite Article 14 of the Basic Law which provides that the Central People's Government shall be responsible for the defence of the Hong Kong Special Administrative Region as an example to refute this argument. Will it occur one day that the Chinese Government may prohibit the re-entry of anyone to Hong Kong whom it regards as posing threat to China's national security on the grounds of national defence? Likewise, Article 23 of the Basic Law which is modelled on Article 4 of the Chinese National Security Law may be invoked to prohibit any Hong Kong residents from their re entry to Hong Kong for any act of treason, sedition, subversion and so on. Mr President, I am not an alarmist. This is the fact. HAN Dongfang was refused entry for allegedly having violated Article 4 of the National Security Law. Mr President, when is the long list of names such as HAN Dongfang, DAI Qing, GONG Xiaoxia, CHOY Yiu-cheong, TSANG Kin-shing, TO Kwan-hang, going to end? Is it before or after 1997? Are we going to meet the same destiny?
Mr President, Hong Kong people's major concern about 1997 is that the Chinese Government may deliberately misinterpret the law or even circumvent the law in order to achieve its political aims. What further worries Hong Kong people is that the Chinese Government's rule of man tradition and totalitarian culture will invade Hong Kong after 1997 and undermine our foundation of the rule of law. Our debate today on the freedom of movement as promised in the Basic Law is not at all expendable. We have a definite objective in mind and the debate deals with something out of the deepest concern from our hearts.
As a matter of fact, the real reason behind HAN Dongfang's denial of entry is due to his having said something when he was on overseas trip, which irritated the Chinese Government. Put it another way, HAN Dongfang loses his freedom of entry because he has exercised his freedom of speech. Mr President, in my view, there are things we treasure only after we have lost them. Freedom is one and economic and political systems with freedom as their underlying force are another. Freedom is one of the factors contributing to Hong Kong's success. The Chinese Government, on the one hand, wishes that Hong Kong will practise free economy but on the other, fears that Hong Kong to would uphold freedom of speech. It is in fact very self-contradictory. Freedom is as indivisible as one's head and limbs. It is impossible to allow Hong Kong to enjoy economic freedom but not freedom of speech while
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expecting that Hong Kong will continue with its success and prosperity. A democratic system is exactly what we need to ensure that Hong Kong can enjoy freedom and prosperity in the many years to come.
However, Mr President, I already have the feeling that the freedom we have long cherished is fading away and dwindling day by day. Take the recent talk of the town, "subversion", as an example. What is subversion? It seems that the speeches we made before or after the June 4 incident and today at rallies and demonstrations that we are against the Chinese Government's massacre of its people precisely amount to subversion. What we have said are all facts and our remarks which reflect the true picture can stand the test of history. However, even if — I must repeat — even if it is a matter of different interpretations of the incident, one must not lose sight of the fact that we have freedom of speech. It is most unfortunate that such legitimate acts in a free society have already been regarded as subversive activities. In the days when the Chinese Government reigns over Hong Kong after 1997 and Article 23 of the Basic Law is put into effect, our freedoms may be curtailed substantially, including certainly what we are debating today, that is, the freedom of movement as induced by the freedom of speech.
Mr President, there were many cities in the past which had once prospered and then declined gradually. Their decline may be due to natural disasters or man-made calamities. Shanghai half a century ago is a case in point. It had declined from a glittering international metropolitan to a drab bygone city. What triggered the decline, natural or man-made calamities? I believe that everyone should know the answer well. Should the same happen to Hong Kong, we cannot expect to enjoy never-ending prosperity. If we do not fully safeguard the freedom that makes Hong Kong so successful, the territory's future will be like a lacklustre Pearl of the Orient which declines and vanishes in history, maybe in 50 years' time.
Mr President, in view of the reason mentioned just now, I support Miss Emily LAU's motion.
MR CHIM PUI-CHUNG (in Cantonese): Mr President, today's debate looks like more an accusation rally against the Chinese Government without the presence of any Chinese representative. I thought I must have entered the conference room of the Hong Kong alliance in support of Patriotic Democratic Movement of China. Of course, we enjoy the freedom of speech in this Council. Yet, everyone's speech can only represent his own view.
Before anything else, I have to say that I vehemently oppose this motion. The first reason is that Hong Kong people's rights are all stated very clearly in the Basic Law and the Sino-British Joint Declaration. Miss Emily LAU raised a good deal of queries in this respect. We have to realize who has the power to interpret the Basic Law. After the implementation of the Basic Law in 1997, anyone who has queries about any provision in the Basic Law and wishes or asks
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for any amendments to it shall have their proposed amendments confirmed by the Standing Committee of the National People's Congress of the People's Republic of China. If anyone attacks such stipulation or arrangement, I venture to point out that he has already breached the Basic Law. It is also doubtful whether he is eligible to ride on the "through train", if any, in 1997. Many people are certainly not afraid of such uncertainty because they know pretty well what they are doing. Let me say clearly once again. With regard to the power of interpretation, it has been stated very explicitly in the Basic Law.
Here is my second reason. I have in fact made it clear in the Motion of Thanks on the Governor's policy address. I pointed out then that if one had no confidence in the Sino British Joint Declaration, the Basic Law and indeed everything about Hong Kong, one had better ask the British Government to offer him a full British passport. This debate will not do the public any good except making available a forum for some people to express groundless fears.
We have to make a coolheaded analysis of the situation to see whether it will serve any purpose for us to do so. In respect of the existing law of Hong Kong, we sometimes can, of course, make different interpretations. With full confidence, one would think that it would be advantageous to one no matter how the law is interpreted at the end of the day. If one has done something wrong and feels misgivings, one will naturally find that the reasons put forward by others and the interests they represent are not on one's side. This is certainly the case. In this connection, when many Members mentioned some particular events, they are actually making different interpretations on different grounds from different viewpoints. As a matter of fact, the Chinese Government also has its own right to solve problems and handle matters in its own way. How far do we, in fact, understand the Chinese Government? I think, until knowing all the facts, Members of the Hong Kong Legislative Council, especially in the face of the transfer of sovereignty in 1997, should be more sensible and reasonable, and should look at matters from different perspectives.
As for the HAN Dongfang incident, I believe that people are aware of his reasons for going overseas as well as his deeds and behaviour on such trips. If he was sick, how could he attend so many conferences? And what are the objectives of these conferences? As legislators, we should not take a one-sided approach to an issue but try to get the whole picture. We should ask ourselves whether we will run the risk of being exploited by some foreign political bodies or countries. In this respect, we should also get the picture. I am not the Chinese Government's spokesman, nor am I in a position to speak on behalf of the Chinese Government. However, I have the obligation to let some Hong Kong people know the truth of the whole matter and part of the true picture. For this reason, I think Hong Kong people may, before knowing the whole truth, show their care and concern. But they should not become emotional, nor should they play up the issue and look at it with prejudice. Personally I firmly believe that Hong Kong people who want to understand the truth will forget the whole thing in the near future.
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We have to understand what "one country, two systems" means. It does not mean that Hong Kong is one country with two systems. We firmly believe that Hong Kong has put into practice the principle of "one country, one system" at all times. Where "one country" is concerned, Hong Kong is under British rule before 1997 and its sovereignty will be reverted to China after 1997. With regard to "one system", Hong Kong has been all along practising capitalism. "One country, two systems" refers to the two systems to be concurrently operating in China. We have to understand that up to now China's ruling party is still the Communist Party. How far do we understand the policies of the Communist Party?
The Chinese Communist Party introduced the concept of "one country, two systems" because they think that the majority of Hong Kong people will have difficulty to adapt themselves to the life style under communist rule and cannot get accustomed to the other relevant changes after Hong Kong's sovereignty is reverted to China in 1997. By introducing the "one country, two system" concept, China hopes that Hong Kong people will be able to retain their own life style and institutions. As legislators, we should promote this idea among those who are willing to stay in Hong Kong instead of expressing alarmist views or spreading the 1997 doomsday message. As China has its own system, why should we interfere with its system? We cannot do anything about it, can we? Are we in a position to do so? I earnestly hope that responsible Members will ponder these points. To the representatives of the Hong Kong Alliance in support of Patriotic Democratic Movement of China or Members with certain political persuasion, this debate is merely an opportunity for them to publicize their views. We should indeed give full play to the "one country, two systems" concept.
Mr President, with these remarks, I oppose the motion.
MR FREDERICK FUNG (in Cantonese): Mr President, Miss Emily LAU's motion today is very clearly occasioned by the Chinese Government's handling of the HAN Dongfang case. The wording of the motion reflects what have been on the minds of Hong Kong people for years with regard to China and Britain: The Chinese Government is untrustworthy while the British Government is unreliable. Such thoughts have not been formed overnight. I quite understand the rationale behind the motion. Based on distrust for both China and Britain, the motion yet expresses a hope that China will give a new undertaking about Hong Kong people's right to leave and enter the territory freely, and makes a request to Britain to give the right of abode to those people who are expelled from Hong Kong. However, some parts of the motion are, in my opinion, not entirely comprehensible, in particular, the first half of the motion which urges the British Government to secure a firm undertaking from the People's Republic of China on Hong Kong people's freedom of movement after 30 June 1997.
Actually, such an undertaking has already been given by the Chinese Government in Section XIV of Annex I to the Sino-British Joint Declaration. Annex I is about the basic policy of the Government of the People's Republic of
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China towards Hong Kong. Section XIV is very important and I quote:"... and issue travel documents of the Hong Kong Special Administrative Region of the People's Republic of China to all other persons lawfully residing in the Hong Kong Special Administrative Region. The above passports and documents shall be valid for all states and regions and shall record the holder's right to return to the Hong Kong Special Administrative Region." The last words "shall record the holder's right to return to the Hong Kong Special Administrative Region" are very important. They amount to an undertaking. Article 31 of the Basic Law, too, provides that "Hong Kong residents shall have the freedom of movement within the Hong Kong Special Administrative Region and freedom of emigration to other countries and regions. They shall have freedom to travel and to enter or leave the Region. Unless restrained by law, holders of valid travel documents shall be free to leave the Hong Kong Special Administrative Region without special authorization." I feel that this is already an undertaking. For the British Government to urge its Chinese counterpart to give a new undertaking on Hong Kong people's freedom of movement will signify that it does not trust the undertakings previously given by the Chinese Government and therefore needs a new undertaking.
I would like to ask Miss LAU: Since she does not trust an undertaking that has been given by the Chinese Government in two constitutional documents (the mini-constitution for the Hong Kong SAR Government and the internationally recognized Joint Declaration), will she trust a similar undertaking if given anew? Since she thinks that the two constitutional documents cannot be trusted, what good will it do for the British Government to talk to China and secure a new undertaking? Therefore, my feeling is that a new undertaking under the circumstances will do some good just for her own peace of mind. There are still a lot of issues to be discussed between China and Britain concerning Hong Kong's transition to 1997. Urging the British Government to talk to China about this additional issue at this time will, I am afraid, further complicate things instead of doing any good for our peace of mind. I feel that the Joint Declaration is an undertaking in itself. The task in front of us is to study ways to give practical effect to this undertaking. So I have reservations about the first half of Miss LAU's motion.
The second half of the motion says in effect that, if Hong Kong people holding BN(O) passports are expelled from Hong Kong, they should be accepted by Britain. I feel that this is necessary. The British Government has a moral and legal obligation to accept such people. Insofar as nationality issue is concerned, the British Government has more than once pushed Hong Kong's British citizens outside the scope of so-called "first class" British citizens and deprived Hong Kong people of their right of abode in Britain. The issuance of BN(O) passports to Hong Kong people now will only turn them into "third class" residents. The Association for Democracy and People's Livelihood and I think that the British Government should stop being evasive about this issue. It should give an undertaking, an undertaking unqualified by technicalities. It is because up till now, no legal constraint exists in Britain to make such an undertaking difficult to give if the British Government wishes to give it.
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Lastly, I would like to make use of this opportunity to talk about the HAN Dongfang case. Today's motion is occasioned entirely by the Chinese Government's mishandling of the case of a Chinese citizen who wished to return to China. The mishandled case has given Hong Kong people cause to worry that, if they want to be free to leave and enter Hong Kong after 30 June 1997, they must then "behave properly." China's refusal to accept even a single dissident, who is kept out of the country, is indeed a cause for concern to us. True, China has said repeatedly that Hong Kong people's freedom of movement has been set out clearly in black and white in the documents. Still, how can its undertaking reassure us if China continues to handle things in the same old way?
I feel that, as usual, China's handling of the HAN Dongfang case was secretive and lacking in transparency and exemplified the rule of man more than the rule of law. As far as I know, the public security authorities in China have never signed any paper ordering the cancellation of HAN's passport. I therefore feel that an administrative body cancelled HAN's passport and did so on no legally justifiable ground. The impression one gets is that, when China at first refused to let HAN return to China, its consideration was a political one more than anything else; it was only later that China found some explanations to rationalize HAN's expulsion. I hope that China will learn a lesson from the case and conduct a full review of the legal basis of the case and allow HAN to return to China. If HAN has indeed violated Chinese law, he should be taken to court and given a fair and open hearing and a chance to defend himself. This will restore in Hong Kong people some of their confidence in the Chinese legal system.
These are my remarks. I have some reservations about the first half of the motion, but I support the motion in principle.
MR SIMON IP: Mr President, there was a time when a passport meant something. It meant that you were entitled to live in the country which issued it, that that country would come to your aid if you should find yourself in trouble abroad. It also meant that you belonged somewhere and that you had a nationality.
But that was then, and this is now. Now, a passport seems to be no more than a travel document. It grants a nationality that cannot be enjoyed. For to enjoy the benefits of belonging to a nation, one must be able to enjoy the rights and protections given under that nation's laws. But those obtaining BN(O) and BOC passports will find that their nationality is a mere shadow of what it was formerly. And that shadow is none other than that left by the setting of the sun on Britain's last important colonial outpost. And after the sun sets and we wake up the next morning in the Hong Kong Special Administrative Region of the People's Republic of China, what will it mean to be a British national who carries the tag "overseas" on his passport?
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We might find the answer to this question by first asking another one. If for some reason a BN(O) passport holder were no longer welcome in Hong Kong after 1997, where would he or she go? It is considered a violation of international law for a state to refuse admission to its own nationals who are not welcome by the state which is hosting them. Britain would, thus, be violating the territorial supremacy of China by refusing to grant entry to British nationals who are stripped of their right of abode in the SAR. But a BN(O) passport holder will be given no right of abode in the United Kingdom and no diplomatic protection in the SAR.
I submit that the nationality offered by Britain to the majority of the citizens of Hong Kong does not truly fulfill her obligations under the Convention on the Reduction of Statelessness. What has been created, rather, is a paradoxical category of people whom we might call "stateless nationals", to whom Britain cannot offer any of the rights which nationality ought to confer.
To prevent this purely formal nationality from being utterly illusive, there is one assurance Britain must offer — an assurance given by the modern concept of the passport. According to that concept, the issuing country agrees to accept the bearer if he is repatriated by another state. So, if Chinese authorities revoke a BN(O) or a BOC's right of abode in the SAR, Britain ought to grant him entry to the United Kingdom.
Unfortunately, though, promises are not forthcoming. Indeed, we have seen mostly backtracking by the British Government on nationality issues, evidenced by their refusal to admit BN(O) passport holders of Chinese origin a refuge should they come under pressure to leave the SAR.
Then again, perhaps we might dismiss the possibility of Hong Kong people losing their Chinese national status and their right of abode in the SAR. Before we make such a bold assumption, we should take a look at Chinese nationality laws. The Chinese Memorandum to the Joint Declaration stipulates that "under the Nationality Law of the People's Republic of China, all Hong Kong Chinese compatriots, whether they are holders of the British Dependent Territories Citizens' passport or not are Chinese nationals." So, Hong Kong people of Chinese ancestry remain Chinese nationals, no matter what other nationality they may adopt.
Chinese "compatriots" holding BN(O) passports or BOC passports are effectively dual nationals, even if they do not obtain any kind of Chinese or SAR travel document. Yet China, as we know, does not recognize dual nationality. Under current Chinese law, one must both settle abroad and freely choose a foreign nationality in order to automatically lose one's Chinese nationality. In consequence, Hong Kong holders of BN(O) passports and BOC passports who stay in Hong Kong will remain Chinese nationals.
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Then again, Chinese nationality may turn out to be somewhat more selective. Indeed, several legal commentators have noted that the vague definition of a Chinese national as a "compatriot" might give Chinese authorities power to exclude dissidents. Article 23 of the Basic Law would conceivably grant the SAR Government broad powers with regard to punishing subversion, possibly including the denial of the right of abode in Hong Kong.
If the SAR Government is given powers to strip people of their nationality and right of abode, while Chinese nationality laws refuse to recognize their second nationality, we must wonder what, then, will become of the BN(O) passport holder.
China must take account of the fact that Hong Kong people are hanging on her every word in deciding whether their future lies here in the territory or in a new homeland. Every provision or statement on nationality, right of abode, or right of participation in the SAR Government serves either to give hope or to cast doubt on the desirability of remaining here. Bewildering contradictions and ill-defined policies serve only to stifle confidence in the future of Hong Kong.
What is needed is clarity and commitment. Clarity will generate understanding while commitment will bring faith in the future. These will, in turn, promote the continued stability and viability of Hong Kong both before and after 1997. Negotiations between Britain and China are largely carried out by people with only indirect stakes in the future of the territory. Hong Kong people, however, are the ones who risk getting caught in the nationality trap that awaits them, unless both sides review their own laws and come to the negotiating table ready to set up special provisions for the special case that is Hong Kong. Firm undertakings are indeed required so that we might avoid the situation of "stateless nationals", who technically possess two nationalities, but who may stand to enjoy the rights and privileges of neither.
With that, Mr President, I support the motion.
MR FRED LI (in Cantonese): Mr President, we appreciate and admire Miss LAU's motion. The spirit of the motion is commendable as it addresses the worry of the people of Hong Kong about the future. From the results of the opinion polls conducted by the City and New Territories Administration, we can see that the future prospects of the territory has always been foremost among the subjects of concern to the people of Hong Kong.
The recent incident of HAN Dongfang, the cancellation of the home visit permit of a Hong Kong citizen CHOY Yiu-cheong, and the refusal to let certain district board members to visit Daya Bay have made the people of Hong Kong lose much of their confidence in their future sovereign state China. Many Members before me also mentioned these points.
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Meeting Point has in fact expressed. discontent with the way the Chinese Government handled the incidents of HAN Dongfang and the cancellation of CHOY Yiu-cheong's home visit permit. When I listened to Mr CHIM Pui-chung's speech just now, I thought we would soon get the lowdown on these incidents, but what he was telling us was in fact to forget these incidents. I hope that the Chinese Government can deal with the dissidents through due process of law on the basis of the spirit of the rule of law.
If we examine the wording of this motion, we will find that there are certain problems. The permanent resident's right to leave and enter the Special Administrative Region in the future has been clearly provided for in the Sino-British Joint Declaration and the Basic Law. The Joint Declaration is an international treaty that is binding on the two sovereign signatory states under international law, and the Basic Law is the future constitution of Hong Kong. So I cannot see how the Chinese and British Governments can give any further guarantee. What is more important is that the controls and legislation as to entry into and exit from the Region are matters within the jurisdictional autonomy of the future SAR. Neither the Hong Kong Government, which is currently responsible for Hong Kong, nor the future sovereign state China should transgress the SAR's turf by laying down substantive laws or administrative measures for the future SAR Government. That will only affect the future SAR's ability or right to regulate the entry to and exit from the Region. It will not be conducive to the realization of "Hong Kong people ruling Hong Kong" and "one country, two systems" if we look to the British Government for assistance on every matter, or seek Beijing's guarantee on every matter without first examining whether the matter concerned is within the scope of our autonomy.
Recently, certain publishers have gone so far as to consult the Chinese Government on whether Chinese characters should in the future be printed in horizontal or vertical order and whether the simplified or the original complex characters should be used. And some professional bodies have visited Beijing to see whether their status will be acknowledged and whether they will be able to represent Hong Kong at an international level. All these are in fact unnecessary. Such practices will only go towards curtailing the extent of our autonomy in the future.
Basically, Miss LAU's motion does not have any substantive effect, because the Chinese and British Governments have already given the guarantee in the Joint Declaration and the Basic Law. We really cannot see what further guarantee the British Government can ask the Chinese Government to give. If we were to repudiate the Basic Law, it would be very difficult to ask the Chinese Government to give any further guarantee.
Concerning the problem of travel document, one should not be deprived of one's right of entry simply because one has lost one's travel document or passport. This is the current position of Hong Kong. Given that the person concerned is a permanent resident of Hong Kong, he will have the right to
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return to Hong Kong even if he has lost his passport or certificate of identity abroad, though he has to complete all the necessary procedures afterwards which will take quite some time. But the important point is, I think, that he will not lose his right to return to Hong Kong.
The second part of the motion urges the British Government to confirm that if holders of British National (Overseas) passports are expelled from Hong Kong after 30 June 1997 they will be accepted for settlement in the United Kingdom. We will of course not oppose such a proposal, but how about the citizens of Hong Kong who are holders of Certificate of Identity (CI)? There are still quite a vast number of Hong Kong people who are CI holders. In the future they will be holders of SAR passport. If they are then expelled from Hong Kong, should the British Government accept them for settlement? I think that if the British Government is to fulfil its moral obligation, it should accept these Hong Kong people who are CI holders.
We cannot find in the motion the points raised above but we do not want to oppose the motion. So we will abstain from voting.
THE PRESIDENT'S DEPUTY, MRS ELSIE TU, took the Chair.
MR HENRY TANG (in Cantonese): Madam deputy, I very much approve of the spirit of today's motion moved by Miss Emily LAU, because freedom to enter and leave the territory is truly very important to the people of Hong Kong. Nevertheless, Article 31 of the Basic Law has provided unequivocally in the following terms: "Hong Kong residents shall have the freedom of movement within the Hong Kong Special Administrative Region and the freedom of emigration to other countries and regions. They shall have the freedom to travel and the freedom of entry and exit. Unless restrained by law, Hong Kong residents who hold valid travel documents shall be free to leave the Region without special authorization." As the Chinese Government has already given an undertaking on "freedom of entry and exit" by way of legislation, there is not much sense in demanding of the British Government again to seek a "firm undertaking" from China. The fresh undertaking, if given, will be no more than repeating the provisions that have long since been laid down in law.
In paragraph (a) of the motion, Miss LAU mentioned about "passport" but did not specify which country it is who issued the passport. In the first place, "British National (Overseas) passports" ("BN(O)" passports in short) are issued by the British Government. China has no right at all to cancel these passports. It is therefore illogical to demand an undertaking from China in respect of something which does not fall within its jurisdiction. As for the "Hong Kong Special Administrative Region passports" issued to Chinese nationals in Hong Kong by the SAR Government on the authorization of the Central People's Government, Article 153 of the Basic Law has similarly provided in the following terms: "The above passports and documents shall be valid for all