HONG KONG LEGISLATIVE COUNCIL ― 6 July 1994 5051
OFFICIAL RECORD OF PROCEEDINGS
Wednesday, 6 July 1994
The Council met at half-past Two o’clock
PRESENT
THE PRESIDENT
THE HONOURABLE JOHN JOSEPH SWAINE, C.B.E., LL.D., Q.C., J.P.
THE CHIEF SECRETARY
THE HONOURABLE MRS ANSON CHAN, C.B.E., J.P.
THE FINANCIAL SECRETARY
THE HONOURABLE SIR NATHANIEL WILLIAM HAMISH MACLEOD, K.B.E., J.P.
THE ATTORNEY GENERAL
THE HONOURABLE JAMES KERR FINDLAY, O.B.E., Q.C., 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 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 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 PEGGY LAM, O.B.E., J.P.
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THE HONOURABLE MRS MIRIAM LAU KIN-YEE, O.B.E., J.P. THE HONOURABLE LAU WAH-SUM, O.B.E., J.P.
DR THE HONOURABLE LEONG CHE-HUNG, O.B.E., J.P. THE HONOURABLE JAMES DAVID McGREGOR, O.B.E., I.S.O., J.P. THE HONOURABLE MRS ELSIE TU, C.B.E.
THE HONOURABLE PETER WONG HONG-YUEN, O.B.E., J.P. THE HONOURABLE ALBERT CHAN WAI-YIP
THE HONOURABLE VINCENT CHENG HOI-CHUEN, O.B.E., J.P. THE HONOURABLE MOSES CHENG MO-CHI
THE HONOURABLE MARVIN CHEUNG KIN-TUNG, O.B.E., J.P. THE HONOURABLE CHEUNG MAN-KWONG
THE HONOURABLE CHIM PUI-CHUNG
REV THE HONOURABLE FUNG CHI-WOOD
THE HONOURABLE FREDERICK FUNG KIN-KEE
THE HONOURABLE TIMOTHY HA WING-HO, M.B.E., J.P. THE HONOURABLE MICHAEL HO MUN-KA
DR THE HONOURABLE HUANG CHEN-YA
THE HONOURABLE SIMON IP SIK-ON, O.B.E., J.P. DR THE HONOURABLE LAM KUI-CHUN
DR THE HONOURABLE CONRAD LAM KUI-SHING, J.P. THE HONOURABLE LAU CHIN-SHEK
THE HONOURABLE EMILY LAU WAI-HING
THE HONOURABLE LEE WING-TAT
THE HONOURABLE ERIC LI KA-CHEUNG, J.P.
THE HONOURABLE FRED LI WAH-MING
THE HONOURABLE MAN SAI-CHEONG
HONG KONG LEGISLATIVE COUNCIL ― 6 July 1994 5053
THE HONOURABLE STEVEN POON KWOK-LIM
THE HONOURABLE HENRY TANG YING-YEN, J.P.
THE HONOURABLE TIK CHI-YUEN
THE HONOURABLE JAMES TO KUN-SUN
DR THE HONOURABLE SAMUEL WONG PING-WAI, M.B.E., J.P. DR THE HONOURABLE PHILIP WONG YU-HONG
DR THE HONOURABLE YEUNG SUM
THE HONOURABLE HOWARD YOUNG, J.P.
THE HONOURABLE ZACHARY WONG WAI-YIN
DR THE HONOURABLE TANG SIU-TONG, J.P.
THE HONOURABLE CHRISTINE LOH KUNG-WAI
THE HONOURABLE ROGER LUK KOON-HOO
THE HONOURABLE ANNA WU HUNG-YUK
THE HONOURABLE JAMES TIEN PEI-CHUN, O.B.E., J.P.
THE HONOURABLE ALFRED TSO SHIU-WAI
ABSENT
THE HONOURABLE HUI YIN-FAT, O.B.E., J.P.
THE HONOURABLE LAU WONG-FAT, O.B.E., J.P.
IN ATTENDANCE
MR ALISTAIR PETER ASPREY, C.B.E., A.E., J.P.
SECRETARY FOR SECURITY
MR CHAU TAK-HAY, J.P.
SECRETARY FOR TRADE AND INDUSTRY
MR ANTHONY GORDON EASON, J.P.
SECRETARY FOR PLANNING, ENVIRONMENT AND LANDS
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MR GORDON SIU KWING-CHUE, J.P.
SECRETARY FOR ECONOMIC SERVICES
MR DONALD TSANG YAM-KUEN, O.B.E., J.P.
SECRETARY FOR THE TREASURY
MR LAM WOON-KWONG, J.P.
SECRETARY FOR EDUCATION AND MANPOWER
MISS CHRISTINE CHOW KWAN-TAI, J.P.
SECRETARY FOR HOME AFFAIRS
MRS SHELLEY LAU LEE LAI-KUEN, J.P.
SECRETARY FOR HEALTH AND WELFARE
MRS RACHEL MARY BEDFORD CARTLAND, J.P. SECRETARY FOR RECREATION AND CULTURE
MR JOHN TELFORD, J.P.
SECRETARY FOR TRANSPORT
MR TAM WING-PONG, J.P.
SECRETARY FOR FINANCIAL SERVICES
THE CLERK TO THE LEGISLATIVE COUNCIL
MR RICKY FUNG CHOI-CHEUNG
THE DEPUTY SECRETARY GENERAL
MR LAW KAM-SANG
HONG KONG LEGISLATIVE COUNCIL ― 6 July 1994 5055
Papers
The following papers were laid on the table pursuant to Standing Order 14(2): Subject
Subsidiary Legislation L.N. No.
Boundary and Election Commission (Electoral Procedure)
(Geographical Constituencies) (Amendment)
Regulation 1994...................................................................................... 396/94 Film Censorship (Amendment) (No. 2) Regulation 1994............................... 397/94
Insurance Companies Ordinance (Amendment of First
Schedule) Regulation 1994..................................................................... 398/94
Hospital Authority Ordinance (Amendment of Schedule
2) Order 1994 ......................................................................................... 399/94
Companies (Amendment) Ordinance 1994 (30 of 1994)
(Commencement) (No. 2) Notice 1994................................................... 400/94
Corrupt and Illegal Practices (Amendment) Ordinance
1994 (54 of 1994) (Commencement) Notice 1994 ................................. 401/94
Declaration of Change of Title (Commissioner for
Administrative Complaints) Notice 1994 ............................................... 402/94
Insurance Companies (Amendment) Ordinance 1994 (25
of 1994) (Commencement) Notice 1994................................................. 403/94
Sessional Papers 1993-94
No. 94 ― Report of the Public Accounts Committee on Report No. 22 of the Director of Audit on the Results of Value for Money
Audits June 1994 PAC Report No. 22
No. 95 ― Hong Kong Export Credit Insurance Corporation Annual Report for 1993-94
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No. 96 ― Pneumoconiosis Compensation Fund Board 1993 Annual Report
No. 97 ― Director of Social Welfare Incorporated Statement of Accounts for the Year Ended 31 March 1993
No. 98 ― Hospital Authority Annual Report 1992-93
No. 99 ― Statement of Accounts of the Samaritan Fund
No.100 ― Construction Industry Training Authority 1993 Annual Report
No.101 ― J.E. Joseph Trust Fund Report for the Period 1 April 1993 to 31 March 1994
No.102 ― Kadoorie Agricultural Aid Loan Fund Report for the Period 1 April 1993 to 31 March 1994
No.103 ― Sir Robert Black Trust Fund Annual Report for the Year 1 April 1993 to 31 March 1994
No.104 ― Clothing Industry Training Authority Annual Report 1993
No.105 ― Hong Kong Trade Development Council Annual Report 1993- 94
No.106 ― Sir David Trench Fund for Recreation Trustee’s Report 1993- 94
No.107 ― School Medical Service Board Annual Report for the Year Ended 31 March 1994
No.108 ― The Statement of Accounts for the Customs and Excise Service Welfare Fund for the Year 1993-94
No.109 ― Report on the Administration of the Fire Services Welfare Fund for the Year Ended 31 March 1993
No.110 ― Sixth Annual Report of the Commissioner for Administrative Complaints
HONG KONG LEGISLATIVE COUNCIL ― 6 July 1994 5057
Addresses
Report of the Public Accounts Committee on Report No. 22 of the Director of Audit on the Results of Value for Money Audits June 1994 PAC Report No. 22
MR PETER WONG: Mr President, on behalf of the Public Accounts Committee, I have the honour to table the Committee’s Report No. 22 today.
This report covers the conclusions reached by the Committee in considering the Director of Audit’s Report No. 22 on the results of value for money audits completed between October 1993 and February 1994. The Director of Audit in his report raised a total of 10 issues. We held a public hearing to hear evidence from the witnesses concerned, and subsequently three meetings to consider the evidence taken and the further information provided by the witnesses. The conclusions reached and the recommendations made by the Committee are fully set out in the report tabled.
I would however like to take the opportunity to highlight a few issues of a general nature which are of particular concern to the Committee. First, the failure of the authorities concerned to achieve the policy objective of full cost recovery of their activities, namely the licensing of hotels, guesthouses and clubs, the vehicle examination scheme and the ticketing system operated by the Urban Council. The Committee note that although these services have been introduced for considerable periods of time, they are still operating at a deficit. We hope that the Administration would not only pay lip service to the policy objective but take more proactive action to achieve this quickly.
Another general issue concerns the inadequacies in planning as occurred in the computerization of property maintenance, the provision of an additional drop-off zone to relieve congestion at the Hong Kong International Airport and the utilization of space in the Housing Authority Headquarters Building. The problem has resulted either in the delay of implementation of the projects or in the failure to achieve the intended project objective. The Committee have been advised that the problem has now been remedied in that before upgrading a project to Category B, a feasibility study will have to be carried out to identify the scope and the requirements involved. The Administration has further assured that the need to conduct feasibility study would not affect the overall processing time and delay the implementation of public works projects.
On the subject of utilization of the Housing Authority Headquarters Building, we are also concerned that the Establishment and Finance Committee of the Housing Authority, when considering a request of the Housing Department in May 1993 for additional office space required at its headquarters, has apparently not been informed of the designed capacity of the Headquarters Building or given an explanation as to why the designed capacity could not now be realized. The Committee consider it important that the
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Housing Authority should have been provided with such information. We also recommend that the Housing Authority should closely monitor the utilization of office space in the Headquarters Building particularly in respect of the space to be vacated following the removal of some facilities to other premises. We have been advised that the Director of Housing is conducting a review on the allocation and utilization of space at the Housing Authority Headquarters Building. We look forward to the outcome of the review.
I trust that the Committee’s recommendations will be accepted by the Administration.
Hospital Authority Annual Report 1992-93
SECRETARY FOR HEALTH AND WELFARE: Mr President, it is my pleasure to present to this Council the Hospital Authority Annual Report covering the period from 1 April 1992 to 31 March 1993.
The reporting period covered another year of progress in the implementation of the Authority’s management reforms, continual improvements in patient services, and development of partnership with the community.
By the end of 1992-93, new management reforms have been introduced in eight candidate hospitals. A total of 21 Hospital Chief Executives were appointed to spearhead these reforms with emphasis placed on participatory management, multi-disciplinary team approach and, most important of all, a patient-centred culture. “Putting the Patients First” has been the cardinal principle of this exercise and I am pleased to witness the positive response from hospital staff. This owes much to the efforts of the Hospital Authority (HA) to enhance communication with staff, to help them realize their potential contribution towards the corporate mission, and to provide them with supporting services and opportunities to participate in decision making.
Steady progress has been made in building up an information technology infrastructure for network communications, data capture and storage, patient administration, medical records management, clinical decision support, financial control and human resources management. The concept of networking and clustering has delineated a clear role for individual hospitals and developed a link among them to improve overall co-ordination. Efforts made by the HA to rationalize existing services have already resulted in less overcrowding in wards, improved hospital environment and shortened waiting time for medical treatment.
With the support of dedicated and motivated staff, we hope that the new approach in reaching out to specific target groups will encourage active participation by patients in their curative process and achieve better interface between medical and welfare service providers.
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To develop a closer partnership with the community, three Regional Advisory Committees have been formed. They provide public forums for discussion on hospital services. At the district level, 28 Hospital Governing Committees also provide a direct venue for the local community to take part in service planning and management.
In order to improve the transparency and accountability of the HA, we intend to cover additional details on the financial position, actual performance and manpower provision in next year’s Draft Estimates to provide a better basis for public monitoring of activities conducted by the Authority. Furthermore, considerable efforts are being put into developing a set of manpower indicators for all healthcare professionals. This will assist hospital managers in the planning and deployment of frontline staff, as well as to provide a direct linkage between resource input and clinical output.
Mr President, I congratulate Sir S Y CHUNG and the Hospital Authority Board for their leadership and vision, and all the dedicated staff for their good work. My gratitude also goes to Honourable Members of this Council, and the public for their continued support in our endeavour to provide “Quality Healthcare, Quality Hospital Services” for the people of Hong Kong.
Sixth Annual Report of the Commissioner for Administrative Complaints
CHIEF SECRETARY: Mr President, section 22 of the Commissioner for Administrative Complaints (COMAC) Ordinance requires COMAC to present an annual report on his work on or before 30 June, to the Governor who will cause his report to be laid before the Legislative Council.
I have much pleasure in presenting to the Council COMAC’s Sixth Annual Report which is tabled today.
There is growing public confidence in the COMAC scheme as reflected in the gradual increase in the number of enquiries and complaints received by the office. For the 12-month period ending June 1994, COMAC’s office have received 1 054 enquiries and 173 complaints. A 7% to 8% increase over the respective figures for 1992-93. The number of enquiries received is record high. We are likely to see a bigger increase in the number of enquiries and complaints received by COMAC’s office in the coming year since COMAC’s remit has been widened and the public can now have direct access to COMAC.
The number of substantiated and partially substantiated complaints remained fairly stable, 37 in 1993-94 as compared to 36 in 1992-93. COMAC has commented that, and I quote, “the fact that more than half of the complaints investigated so far were unsubstantiated is good evidence of the general administrative standard in Hong Kong”. We welcome the statement but we are not complacent. We must remain ever vigilant against maladministration. In
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this regard the very good progress we have made in publishing and implementing performance pledges provide a very good yardstick against which both clients and the servicing department can measure the standard of service. We will continue our efforts in this regard.
In response to Members’ suggestion that a Government Minute should be prepared in response to COMAC’s Annual Report, the Administration has considered the coverage of such a Minute. We propose that the Minute should cover the action the Government has taken or proposes to take in response to COMAC’s recommendations in relation to complaints which are found to be substantiated or partially substantiated in the report. The first Government Minute will be available in three months’ time.
Thank you Mr President.
Oral Answers to Questions
Hong Kong residents detained as a result of commercial disputes in China
1. DR HUANG CHEN-YA asked (in Cantonese): Concerning detention of Hong Kong residents as a result of commercial disputes in China, will the Government inform this Council:
(a) whether it has any knowledge of the number of Hong Kong residents detained by the Chinese authorities in the past three years who have subsequently been released without formal charges being laid against them and of the respective duration of their detention; how many have been charged; how many of those charged have been found guilty; and for how long they had been detained before formal charges were laid against them;
(b) how many of the cases concerned were related to disputes between private companies and corporations; and how many involved state enterprises in China;
(c) what concrete steps have been taken by the Government to ensure that the detainees have legitimate access to legal advice, medical service, and correspondence and visits by family members; and
(d) according to the liaison which the Government has initiated with the Chinese authorities over such cases, what practical steps will be taken by the latter to avoid illegal detention as far as possible?
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SECRETARY FOR SECURITY: Mr President, in the past three years, assistance has been sought from the Government in 10 cases involving 12 Hong Kong residents who were reportedly detained as a result of commercial disputes in China. Only two cases, involving three detainees, are outstanding; all other detainees have been released. The Chinese authorities have responded to our representations in only one case; therefore, we do not have information on how many were formally charged or their length of detention before formal charges were laid against them.
We do know that most of the cases were related to state or collective enterprises. However, due to the lack of details provided by the Chinese authorities or the families, we cannot be sure of the numbers involving private companies and state enterprises.
We have made repeated requests to the Chinese authorities for clarification of the legal basis for the detentions and for access for the detainees’ families, legal representatives and colleagues. All these approaches have been made in accordance with the wishes of the families. In some cases our representations have been made through the Foreign and Commonwealth Office in London and in others through the British Embassy in Peking.
We have pressed hard for clarification of the legal basis for the detentions and for assurances that they are consistent with Chinese law. I am afraid that we have not yet received a satisfactory response, even though many of the detainees have now been released.
DR HUANG CHEN-YA (in Cantonese): Mr President, in his reply to parts (a) and (b) of my question, the Secretary is actually saying that he has no idea whatsoever and his reply to parts (c) and (d) is mere perfunctory official rhetoric. If the Administration has tried hard enough to follow the cases closely, how could it be so ignorant about them? Was the Administration not aware that they could at least approach the detainees for information upon their arrival in Hong Kong? Is the Secretary satisfied with his own performance and does he think he has performed his duties competently? How is the Administration going to make the local residents feel confident that they will not be illegally detained while conducting normal business activities in China and without any legal protection from the Hong Kong Government?
SECRETARY FOR SECURITY: Mr President, I think I have explained why we do not have all the details which are asked for in the question. I am quite confident that we have pursued all these cases as far and as hard as we can through all available channels.
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MR CHEUNG MAN-KWONG (in Cantonese): Mr President, the Administration has admitted in its reply that there were cases of illegal detention which did not have any legal basis according to the law of China. As far as these cases of illegal detention without legal basis are concerned, has the Hong Kong Government taken any initiative to assist the detained Hong Kong residents to seek compensation from the Chinese authorities, if it were dissatisfied with the reply given by the Chinese side? If so, what are the results? If not, why not?
SECRETARY FOR SECURITY: Mr President, I did not say anything about illegal detention. What I said was that we had not received clarification as to the basis for the detentions. No, we do not intend to approach the Chinese authorities for compensation.
MR JIMMY McGREGOR: Mr President, this is a matter which I think many businessmen worry about with regard to doing business in and with China and with Chinese organizations. Has the problem been taken up in the Joint Liaison Group (JLG) as a policy issue and if so, what has been the Chinese response?
SECRETARY FOR SECURITY: Mr President, I agree that this is a matter which many businessmen worry about. We have taken it up with the Chinese authorities, as I said, in Hong Kong, in Peking and in London. We have not taken it up through the JLG. It is not a matter which relates to the transfer of sovereignty.
MR LAU CHIN-SHEK (in Cantonese): Mr President, will the Secretary inform this Council whether the Administration has tried to approach the 12 Hong Kong residents who had been reportedly detained as a result of commercial disputes in China upon their arrival in Hong Kong so as to investigate the reasons for their detention and to inquire whether they have been given fair legal treatment? As far as the two outstanding cases involving three detainees are concerned, does the Administration know whether they have access to legal advice and medical service, and allowed communication with and visits by family members?
SECRETARY FOR SECURITY: Mr President, yes, we will approach persons once they are released if they wish to give us those details. I think we have already done so in many cases, but I am afraid I do not have the details with me.
As regards the second part of the question, I think as I said in my main answer, we have repeatedly requested for access for lawyers, family, colleagues and for other assistance that any of the detainees may want. We have not received a reply. We simply do not have details of what assistance they have asked for or been given.
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MR JAMES TO (in Cantonese): Mr President, the Secretary said in his reply that the Chinese authorities had only responded to one of the representations. I would like to ask the Secretary, bearing in mind that Sino-British relations are now at a low ebb, if the Administration has any means which can make the Chinese Government (or governments of other countries or places) adopt a more positive attitude in responding to cases like these? Is there any way to enhance the dialogue so that the Chinese authorities will be more enthusiastic in helping the Hong Kong residents who are detained in China out of their predicament?
SECRETARY FOR SECURITY: Mr President, I think all I can say is that the Chinese Government has generally refused to grant visits by families or legal representatives on the grounds that under Chinese law no access to a detainee can be allowed while he is still under investigation. That obviously is not the position in many or most other countries.
DR CONRAD LAM (in Cantonese): Mr President, in the third paragraph of his reply, the Secretary said that some of the representations were made to the Chinese authorities through the Foreign and Commonwealth Office in London and some were made through the British Embassy in Peking. Does the Hong Kong Government not have any legal status to make direct representations to China? If so, who will make representation on behalf of the people of Hong Kong after 1997?
PRESIDENT: Secretary, are you able to answer the second part?
SECRETARY FOR SECURITY: Mr President, no, it does not mean that we do not make representations in Hong Kong. What I meant to indicate in my main answer, which I think I have said before, is that in all cases involving Hong Kong residents, we do make representations in Hong Kong through the Political Adviser’s Office to the New China News Agency, and in many cases these are followed up by further representations in Peking and sometimes also representations in London. I am afraid I simply cannot say how this will be dealt with after 1997 in Hong Kong. Clearly there will still be a British Consulate General in Hong Kong which will be able to take cases up, and there will still be the means of taking them up through the British Embassy in Peking and also through the Foreign and Commonwealth Office in London.
5064 HONG KONG LEGISLATIVE COUNCIL ― 6 July 1994 Britain’s reception of Vietnamese refugees on family reunion basis
2. MR MARTIN BARROW asked: In view of the grim and uncertain future facing the 1 800 so-called “hard-core” Vietnamese refugees languishing in Hong Kong and claims by government officials that they might be repatriated to Vietnam, will the Administration inform this Council whether:
(a) it will urge the British Government to take the lead in accepting these refugees by abandoning the policy of only accepting refugees on a family reunion basis; and
(b) it is seriously contemplating repatriating such refugees to Vietnam; and if so, what are the justifications for such a drastic move, and what implications such action will have on other refugees in Hong Kong?
SECRETARY FOR SECURITY: Mr President, at a recent Comprehensive Plan of Action (CPA) technical meeting in Bangkok, it was agreed that the resettlement countries should re-examine the Vietnamese refugee caseload in Hong Kong. In that context, emphasis was placed on the principle of burden sharing by all the resettlement countries.
In the wake of this meeting, the Administration asked Her Majesty’s Government (HMG) to consider taking some of the refugees in Hong Kong who do not have family links in the United Kingdom. In reply, we have been advised that the United Kingdom has resettled more than 2 000 refugees from Hong Kong since June 1989, and in doing so has exceeded its quota agreed at the Second International Conference on Indo-Chinese Refugees. The United Kingdom will continue to accept refugees for resettlement on a family reunion basis, but because its Vietnamese refugee resettlement programme has formally ended, it cannot accept refugees who would require reception facilities on arrival in the United Kingdom. HMG has pressed other resettlement countries to accept those Vietnamese refugees remaining in Hong Kong.
Our efforts are now directed at securing the resettlement of the remaining refugees. We have no plans to repatriate them to Vietnam. Nevertheless, this is an option which we may have to explore in the future if resettlement proves fruitless.
MR MARTIN BARROW: Mr President, while Vietnamese migrants must accept that their future lies back in Vietnam, the position of those few classified as refugees is different. Would the Secretary not agree that the United Kingdom’s lack of support for Hong Kong at this time is both disgraceful and unacceptable; and would he advise what steps he will take to persuade the United Kingdom to restart its Vietnamese refugee programme in order to take the lead in persuading other countries to do likewise?
HONG KONG LEGISLATIVE COUNCIL ― 6 July 1994 5065
SECRETARY FOR SECURITY: Mr President, we will continue to press all countries, including the United Kingdom, to take the remaining Vietnamese refugee caseload from Hong Kong and certainly we will continue to press the United Kingdom to take more refugees excluding family reunion cases. I believe that that would have the beneficial effect of encouraging the other resettlement countries to take others of the refugees in Hong Kong.
MISS EMILY LAU: Mr President, I am appalled to hear that the Government may consider repatriating refugees back to Vietnam. May I ask the Government to explain clearly to this Council if that option is being considered, on what basis is that being done? Have we in Hong Kong ever repatriated refugees back to their homeland? And does the Government have a plan to send back all the Vietnamese whether they are refugees or migrants before the transfer of sovereignty in 1997?
SECRETARY FOR SECURITY: Mr President, the answer to the first question is yes. We have sent refugees back to Vietnam. In the last few years, at least 24 refugees have returned voluntarily from Hong Kong to Vietnam. I do not think that there is anything wrong with this. The answer to most refugee problems in most parts of the world is repatriation and while we must, of course, take steps to ensure that those repatriated have guarantees of non-persecution, I do not see anything at all wrong or unusual about resettlement in Vietnam.
PRESIDENT: Yes, not answered, Miss LAU?
MISS EMILY LAU: Yes, Mr President. I asked the Secretary to tell us whether we have, I guess, forcibly repatriated refugees back to their home countries and the Secretary gave us the answer of 24 and he said they voluntarily returned. That would not fit into my definition of repatriating refugees. Can he please tell this Council whether the Hong Kong Government has actually forcibly repatriated refugees back to their homeland, whether it is to Vietnam, to China or to other countries?
SECRETARY FOR SECURITY: Mr President, I do not think Miss LAU mentioned the word forcible in her initial question and I think I answered the question.
But since this is a separate question, no, we have not forcibly repatriated any Vietnamese refugees back to Vietnam.
PRESIDENT: I think we will have to leave it.
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MR JAMES TO (in Cantonese): Mr President, fortunately, the Secretary said just now that Hong Kong has never repatriated any Vietnamese refugees who might face political persecution, otherwise the matter would be very serious. May I ask the Secretary under what circumstances that repatriating refugees “is an option which we may have to explore”; and whether this practice is regarded as extremely inhumane? Should this matter be studied with the Chinese Government or considered by the future SAR Government first; or no action whatsoever, in this respect, can be taken under any circumstances?
SECRETARY FOR SECURITY: Mr President, I think as I said in my main answer, we do not have any firm plans at the moment, so I obviously cannot announce what they are. But what I would say is that there are circumstances even recognized in the UNHCR Charter and the conventions in which refugees can be repatriated to their home country and I do not see, as I said earlier, that resettlement in Vietnam should necessarily be excluded for refugees in Hong Kong.
MR JAMES TIEN: Mr President, I think we all have our own views on this. I am not optimistic that we will be able to secure a resettlement area for these remaining refugees and I do not support the view of repatriating them to Vietnam. If this drags on for three years, has the Hong Kong Government had any discussions with the Chinese Government that by 1997, these 1 800 refugees would be allowed to stay in Hong Kong or they would go back to Britain with the end of British rule in Hong Kong?
SECRETARY FOR SECURITY: Mr President, no, we have had no such discussions.
MR MARTIN BARROW: Mr President, would the Secretary confirm that the need for the United Kingdom support will be raised during the forthcoming visit of the Minister of State, Mr Alastair GOODLAD, and also by the Governor when he visits the United Kingdom at the end of the month?
SECRETARY FOR SECURITY: Mr President, no, I cannot confirm that. PRESIDENT: Not answered, Mr BARROW?
MR MARTIN BARROW: Could I ask if the Secretary will arrange for these points to be raised during Mr GOODLAD’s visit and the Governor’s visit to the United Kingdom?
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SECRETARY FOR SECURITY: Mr President, all I can say is I note the request.
DR YEUNG SUM (in Cantonese): Mr President, will the Secretary inform this Council whether the Administration believes that it is contrary to the International Covenant on Human Rights to repatriate political refugees to their homeland?
SECRETARY FOR SECURITY: Mr President, no. As I have said, there are provisions in the convention relating to refugees which do permit repatriation in certain circumstances.
MR JAMES TO (in Cantonese): Mr President, will the Secretary inform this Council whether the Administration supports the British Government to reinstate the policy of accepting the remaining Vietnamese refugees in Hong Kong on a “non-family reunion” basis? What is the Administration’s stance in this respect?
SECRETARY FOR SECURITY: Mr President, could I ask for clarification? I did not catch the question. I do not know what we are being asked to support or not to support.
MR JAMES TO (in Cantonese): Mr President, will the Secretary inform this Council whether the Administration will support or urge Britain to accept those Vietnamese refugees remaining in Hong Kong on “non-family reunion” basis?
SECRETARY FOR SECURITY: Yes, Mr President, as I said earlier, we will certainly continue to press for this.
Delayed occupation of a PSPS estate
3. MR WONG WAI-YIN asked (in Cantonese): As the occupation of Yuet Wu Villa, a Private Sector Participation Scheme (PSPS) estate, has been delayed, thus causing discontent and anxiety among the flat owners, will the Government inform this Council:
(a) of the reasons for the delay, whether it is related to the building structure or construction work and what improvement works have been carried out; and
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(b) what monitoring role the Housing Department plays in the construction of PSPS estate and how it guarantees the quality of such buildings?
SECRETARY FOR PLANNING, ENVIRONMENT AND LANDS: Mr President, I think first of all I should question whether the use of the word “delayed” and “delay” in the question is appropriate. The answers to parts (a) and (b) of the question are as follows:
(a) Normally the completion of a building project is followed by an inspection period during which any defects are found and made good before occupation. In most Private Sector Participation scheme (PSPS) projects the period is three to four months; but with the Yuet Wu Villa it was about six months because, with nearly 4 000 flats, it is one of the largest PSPS projects to date. The defects were minor ones commonly found in newly completed building projects. They have all been made good by the developer.
(b) The Director of Housing appoints a private sector surveyor to monitor and oversee PSPS projects and report on progress and the developer’s performance. The surveyor also checks, on behalf of the Director, that design and construction proposals in tender submissions comply with the conditions of sale. On the basis of the surveyor’s advice, the Director of Housing will advise the Director of Lands whether the flats are complete in accordance with the conditions of sale.
Some purchasers of Yuet Wu Villa premises expressed concern over the time taken to reach completion and were worried that this might have something to do with the quality of the building works. Housing Department staff and the developer have met the purchasers and explained the situation to them. The purchasers are now generally satisfied since taking over their flats from 20 June 1994 onwards.
MR WONG WAI-YIN (in Cantonese): Mr President, the quality of PSPS flats has all along been criticized by the public. Yuet Wu Villa is not the first estate the quality of which is questionable, many PSPS estates sold are of poor quality, including the Affluence Garden in Tuen Mun completed years ago. Although the quality of PSPS flats is undesirable, the defects liability period still remains unchanged, that is, one year. Generally speaking, it may not be possible to test adequately, in just one year, the quality of flats; in particular, problems which involve water leakage or seepage. The keys for Yuet Wu Villa flats are now being distributed. When the flats are ready for occupation after the completion of home decoration works, the rainy season has already gone. It would not be possible to check for water leakage or seepage problems then. Will the
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Secretary inform this Council whether the Administration will require the developers to extend the defects liability period from the current one year to at least three years? If not, what are the reasons?
SECRETARY FOR PLANNING, ENVIRONMENT AND LANDS: Mr President, I think the position in respect of building projects generally is that there is a one-year maintenance period after completion during which the purchasers or those who are taking over a project have a contractual recourse as regards maintenance matters. As far as more major matters are concerned ― these are usually described as latent defects, there is a much longer period during which a contractor can be held responsible or asked to rectify latent defects. So the period that the Honourable Member is suggesting of three years is, in fact, covered by a much longer period than three years, and as far as the maintenance period is concerned, I believe that in respect of PSPS projects which have been started from the beginning of this year, a longer period has been provided for in the contract.
MR TAM YIU-CHUNG (in Cantonese): Mr President, many people purchase PSPS flats because they trust the Housing Department. However, after they have purchased the flats, many of them discover that the quality of PSPS flats is really questionable. In this respect, the Housing Department would shrug off its responsibility as the monitoring authority, especially when the flats concerned are occupied. Typical examples are the On Ling Garden and the Fu Ling Garden in Tseung Kwan O. Will the Housing Department review its monitoring role, so that the purchasers of PSPS flats could have more confidence?
SECRETARY FOR PLANNING, ENVIRONMENT AND LANDS: Mr President, I think general condemnation of the PSPS arrangements is really not necessary. By and large, the bulk of PSPS projects are completed satisfactorily and found to be satisfactory by those who purchase them. For those who are not satisfied either during the maintenance period or the longer period for discovery of latent defects, there is recourse available to them. They are, after all, private owners of private property. Nevertheless, I am quite prepared to ask the Housing Department if there is anything they believe they can do further to improve their monitoring arrangements.
MR FREDERICK FUNG (in Cantonese): Mr President, as the brochure of Yuet Wu Villa mentioned that occupation permits would be available six months before now, many flat owners thought that they could then move in and made a lot of arrangements. For tenants of private housing, their rented flats should have been returned to the owners six months ago, but the delay of the occupation date forced them to sign new tenancy agreements and pay higher rents. As for others, since some of them presupposed that they should start residing in Yuet Wu Villa six months before today, they already transferred
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their children to schools in Tuen Mun. However, as the flats were not available by then, they still had to live in urban districts and suffer all the troubles everyday to take their children to and from schools in Tuen Mun. Will the Government inform this Council whether it is going to compensate for the nuisance created as a result of the six-month lapse between the actual occupation date and the date declared by the Government?
SECRETARY FOR PLANNING, ENVIRONMENT AND LANDS: Mr President, I do not think there is any question of making compensation available to the purchasers of private properties. The Yuet Wu Villa is a PSPS under which flats were sold in two phases, in December 1992 and April 1993, respectively. The sale and purchase agreement executed by the purchasers mentions that the development will be completed in January 1994, which refers to the date of the issue of the occupation permit under the Buildings Ordinance. Now there is a general misunderstanding by the purchasers, probably due to the misinterpretation by staff of the appointed solicitors firm that the flats would be handed over to them in or around January 1994. The occupation permit for Yuet Wu Villa was issued on 15 December, 1993. The Housing Department’s appointed surveyor then started the flat-by-flat inspection, and remember there were 4 000 of these flats, in January 1994 to ensure that all the requirements laid down in the conditions of sale were complied with. The flats had been checked by the developer’s appointed authorized person and then handed over to the surveyor for the flat-by-flat inspection. The surveyor carried out three rounds of inspections. The Housing Department also conducted several informal inspections to ensure that all the concerned parties understood what standard was required and that it was met. The surveyors completed their inspections in early May 1994, and carried out the final inspections with the Housing Department at the end of May 1994. There were some further rectification works required at that point and once everything had been completed in early June, the certificate of compliance which enables owners to occupy was issued, and as I say, the handing over of the flats began on 20 June 1994.
MR LEE WING-TAT (in Cantonese): Mr President, I joined the Home Ownership Committee under the Housing Authority in 1989, and only two ad hoc meetings had been convened so far, both of which are concerned with the quality of PSPS flats ― the Carado Garden in Sha Tin and the On Ling Garden in Tseung Kwan O. In view of such, Mr EASON was wrong when he said that the PSPS flats were generally satisfactory. PSPS is basically a response to the Long Term Housing Strategy published in 1987, that is to make full use of private developers’ potential, lest they might not have enough development projects. In reality, the PSPS projects, which supply flats at the same rate as HOS projects do, could not contribute considerably to our housing supply. Bearing in mind that many problems are surfacing, will Mr EASON inform this Council whether there is any special purpose for retaining the PSPS? As PSPS flats could not contribute significantly to housing supply but, on the contrary,
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brought about confusion over the monitoring roles of the Government and the Housing Authority, why does the Government not abandon this scheme and construct only HOS flats?
SECRETARY FOR PLANNING, ENVIRONMENT AND LANDS: Mr President, I think the Honourable Member is in a much better position to put that suggestion to the Housing Authority than I am. I believe that the PSPS still plays a useful role in our long-term housing strategy and that several thousand recipients of the benefits of PSPS schemes are added to the list every year.
MRS PEGGY LAM (in Cantonese): Mr President, it is mentioned in paragraph (a) of the Secretary’s reply that “the defects were minor ones commonly found in newly completed projects”. Will the Government inform this Council what exactly are the “minor” defects and how many blocks are found to have these minor defects?
SECRETARY FOR PLANNING, ENVIRONMENT AND LANDS: I think, Mr President, if a great deal of detail is required on exactly what the defects were in these 4 000 flats, I am prepared to try and provide an answer to that in writing. (Annex I)
Demonstration en masse in the Victoria Harbour
4. MRS MIRIAM LAU asked (in Cantonese): In the light of the massive demonstration by fishermen in the Victoria Harbour on 14 June 1994, will the Government inform this Council:
(a) how it can ensure that:
(i) normal marine traffic will not be disrupted by such activities; and (ii) the safety of others using the Harbour will not be jeopardized; and (b) whether the Administration will consider making rules to regulate such activities?
SECRETARY FOR ECONOMIC SERVICES: Mr President, the demonstration by fishermen in the Victoria Harbour on 14 June 1994 was conducted in an orderly and responsible manner. Although the presence of such a large number of vessels at one time in the harbour had caused delay to regular traffic, the
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delay was temporary, did not lead to any collision of vessels, and caused no more problems to traffic control than, say, the New Year fireworks display.
However, given the busy marine traffic in the harbour, the Administration is concerned that any parade of vessels would inevitably cause inconvenience to normal marine activities and pose risks to the movement of vessels. Against this background, the Director of Marine implemented measures to minimize disruption to normal marine traffic and ensure that the safety of others using the harbour will not be jeopardized. The measures include:
(a) notifying in advance all port users, including ferry and other ship operators of the protest in the harbour;
(b) deploying patrol launches together with the marine police to escort the procession of vessels; and
(c) maintaining close monitoring and surveillance of the harbour through the Vessel Traffic Centre.
The Administration fully recognizes and upholds the right of individuals to freedom of expression, but it must be balanced against the interests of all those who use our very busy harbour. In this connection, the Administration is reviewing existing legislation to ensure that adequate provisions are in place for the proper regulation of demonstration conducted by vessels in our harbour.
MRS MIRIAM LAU (in Cantonese): Mr President, will the Secretary inform this Council whether the Administration would, when reviewing the existing legislation, consider requiring prior approval be sought from the Marine Department before any similar demonstration in the harbour is conducted, so that advance planning of the procession route would be possible, and prior notification could also be given to the ferry company or the organizations concerned to enable them to take proper contingency measures and to guarantee that the demonstration can proceed more smoothly? In addition, will the Administration require such activities be forbidden in poor weather conditions, such as heavy fog or strong waves in order to avoid danger?
SECRETARY FOR ECONOMIC SERVICES (in Cantonese): Mr President, the new rules that the Administration is now considering to introduce actually cover the various points suggested by Mrs Miriam LAU just now. According to the existing legislation, the Director of Marine has the authority to give instructions to individual vessels operating in the harbour, as well as the authority to instruct vessels in order to avoid collision which may result in loss of lives or property. However, existing legislation allows the Director to give similar instructions to individual vessels only but not to fleets. Therefore, the Administration in the consideration of new regulations at present, has covered the issue raised by Mrs LAU a moment ago, that is, whether the legislation will vest the Director of
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Marine with the power to issue general instructions to vessels in a procession as a whole, so that (regardless of the weather condition or circumstances) no activities of the procession will cause any inconvenience to other port users.
DR LAM KUI-CHUN (in Cantonese): Mr President, will the Government inform this Council whether the present criteria for granting approval to and the measures for monitoring processions on land and at sea are different? If so, why are they different? Will the Government consider equating or standardizing the criteria and measures pertaining to these two kinds of processions?
SECRETARY FOR ECONOMIC SERVICES (in Cantonese): Mr President, I am not too familiar with the legislation governing processions on land. However, while studying this case, it seems apparent to me that the Director of Marine, unlike the Governor or the Commissioner of Police, does not possess the part of authority given under the Public Order Ordinance. Perhaps I should answer that question in writing after an analysis of the two kinds of authority. (Annex II)
MR ANDREW WONG (in Cantonese): Mr President, just now the Secretary mentioned in his replies to the questions asked by Mrs Miriam LAU and Dr LAM Kui-chun that consideration might be given to a licensing system. Does the Secretary know that the Council is now considering an amendent to the Public Order Ordinance, so that processions on land will only need to give prior notification to the Commissioner of Police? As such, I suggest that the Government, when considering the new rules, should not overcorrect the situation by making it compulsory to apply for a licence. Will the Government take this into account?
SECRETARY FOR ECONOMIC SERVICES (in Cantonese): Mr President, perhaps Mr Andrew WONG did not hear very clearly when I made my reply just now. I have not mentioned “licensing”, I just said that those interested in participating in such processions should notify the authorities concerned.
MR TAM YIU-CHUNG (in Cantonese): Mr President, does the Government believe that the most thorough-going method to minimize massive demonstrations by fishermen at sea is to pay more attention to and solve the problems affecting the livelihood of the fishermen,
for example, the problems of dredging compensation and the importation of fishery workers?
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SECRETARY FOR ECONOMIC SERVICES (in Cantonese): Mr President, to solve the problems faced by the fishermen is one of the major duties of the Government, and that includes the two points mentioned by Mr TAM. My other colleagues and I will try our best to tackle these two and all other problems faced by the fishermen.
MR EDWARD HO (in Cantonese): Mr President, according to the press, the Marine Department, Agriculture and Fisheries Department, Marine Police and the District Office concerned had been informed of the action of the fishermen in advance. Will the Secretary inform this Council of the measures taken on that day to reduce the impact, and whether such measures were effective?
SECRETARY FOR ECONOMIC SERVICES (in Cantonese): Mr President, in the second paragraph of my reply, I have already reported to this Council some of the actions taken by the Government, such as deploying patrol launches of the Marine Department and the Police Force to control marine traffic; notifying all port users, including ferry and other ship operators, of the event; and keeping under close surveillance the harbour traffic through the Vessel Traffic Centre. It was fortunate that there was no property loss or personal injury on that day. However, since there were too many vessels in the procession, some delay was caused to the docking or departing ferries and other port users. We will consider ways to better deal with similar situations in the future, such as reserving part of the fairway for the ferries to go on with their normal operation. There are one of the practicable measures that we are now studying.
MR HOWARD YOUNG (in Cantonese): Mr President, the Secretary stated, in the first paragraph of his reply to the question raised by Mrs Miriam LAU, that some delay was caused to regular traffic on that day. Will the Government inform this Council if there is any data indicating the seriousness of the delay caused on that day; and whether the Government has received any complaints (from the ferry company or the public) concerning the delay?
SECRETARY FOR ECONOMIC SERVICES (in Cantonese): Mr President, according to our record, 31 ferry trips had to be cancelled on 14 June, while another 30 ferry trips were delayed. Certainly some passengers were affected. However, since prior notification of the demonstration in the harbour had already been made, we reckon that some of the passengers had used other means of transport instead.
Aircraft noise control
5. MR JAMES TO asked (in Cantonese): Under the Civil Aviation (Aircraft Noise) Ordinance (Cap. 312) section 6(1), the Director of Civil Aviation may
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by notice in the Gazette prohibit aircraft from taking off and landing at the aerodrome during any specified period for the purpose of avoiding, limiting or mitigating the effect of noise. In view of the great concern of the public over noise nuisance caused by aircraft taking off and landing at the Hong Kong (Kai Tak) Airport, will the Government inform this Council of the following:
(a) has the Director in the past ever prohibited any aircraft of specified description from taking off and landing at the Hong Kong (Kai Tak) Airport during any specified period under section 6(1)(a) of the said Ordinance; if not, why not;
(b) has the Director in the past ever specified the maximum number of times aircraft of specified description may be permitted to take off or land at the Hong Kong (Kai Tak) Airport under section 6(1)(b) of the said Ordinance; if not, why not; and
(c) has the Director ever made any plan to reduce noise nuisance caused by aircraft taking off and landing at the Hong Kong (Kai Tak) Airport?
SECRETARY FOR ECONOMIC SERVICES (in Cantonese): Mr President, under the Civil Aviation (Aircraft Noise) Ordinance, unless aircraft operators possess a recognized noise certificate or evidence of compliance with the standards of noise emission prescribed in Chapter 2 of Annex 16 to the Convention on International Civil Aviation, the aircraft of those operators will not be allowed to land or take off at the Hong Kong International Airport.
In addition, the Civil Aviation (Aircraft Noise) (Limitation on Landing or Taking Off of Aircraft) Notice made under section 6 of the Ordinance except in certain defined circumstances, all aircraft are prohibited from landing or taking off at Kai Tak between the hours of 11.30 pm and 6.30 am. Given these broadly cast restrictions, it has not been necessary for the Department of Civil Aviation to exercise any additional powers under sections 6(1)(a) and (b) of the Ordinance to prohibit aircraft of specified description from taking off and landing at the Hong Kong International Airport, or to specify the maximum number of times aircraft of specified description may be permitted to take off or land.
With a view to cutting down further the disturbance caused by aircraft noise, the Director has, over the years, implemented a number of other measures. Honourable Members may recall that until recently, unless wind, weather or other operating conditions make it necessary, aircraft were prohibited from landing and taking off over Kowloon between 6.30 and 7.00 in the morning and between 9.00 and 11.30 at night. However, in the interests of aviation safety under which this mode of operation had to be suspended in October 1993 the previous limitation on the number of aircraft movements programmed between 9.00 and 11.30 pm has been maintained.
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In addition, the Director has, with the co-operation of airlines, brought forward to before 10.30 pm all but one of the landings over Kowloon previously programmed to arrive after that time. The coming winter schedule will see all landings programmed for before 10.30 pm including the existing exception.
Mr President, I would like to assure Members that the Administration is very conscious of the nuisance which is caused by aircraft noise in the remaining period up to the closure of Kai Tak. In order to strengthen the powers available to the Director to reduce aircraft noise I very much hope that this Council will, later this afternoon, pass the Civil Aviation (Aircraft Noise) (Amendment) Bill. Enactment of the Bill will pave the way for a requirement that aircraft using our airport must meet the more stringent noise controls on aircraft noise laid down in Chapter 3 of Annex 16 of the Convention on International Civil Aviation.
In addition, a number of other measures are being studied to reduce noise disturbance. One such measure is to require aircraft operators without detriment to aviation safety to adopt landing and take-off procedures which reduce noise, to the extent that such procedures can be implemented. I can assure Members that we will continue to pursue every opportunity for reducing disturbance to residents living near the airport.
MR JAMES TO (in Cantonese): Mr President, the Secretary’s reply did not explain why the authority, instead of exercising the power vested by the legislation to restrict the maximum number of flights, only prohibited all aircraft from landing or taking off between 11.30 pm and 6.30 am, with the exception of aircraft possessing a recognized noise certificate. I would like to ask the Secretary whether he is aware that when an aircraft flies over Kowloon, even if it complies with the standards of noise emission prescribed in Chapter 2 of Annex 16 to the Convention on International Civil Aviation, the noise level can be as high as 110 dB. This figure was recorded by an observation station. 11.30 pm is a time very late at night, if the power under Sections 6(1)(a) or (b) to restrict the maximum number of fights is not exercised, it might imply that part of the legislation enacted by the Legislative Council in 1986 is not being applied, and that the then Members of the Legislative Council have been deceived?
PRESIDENT: I am sorry, is that a question, Mr TO?
MR JAMES TO (in Cantonese): Mr President, at a Legislative Council sitting held in 1986, the then Chief Secretary, by pointing out the importance of the Ordinance concerned in further restricting the number of aircraft taking off and landing, successfully persuaded the
Members to pass the Bill. Bearing such in mind and in view of the fact that instead of applying the relevant Ordinance,
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aircraft are still allowed to take off and land late at night and give out noise at a level as high as 110 dB, will the Secretary inform this Council whether he thinks that the then Chief Secretary has deceived the Members of the Legislative Council by leading them to believe that it pays to pass the Bill?
PRESIDENT: That is unparliamentary language. Please rephrase your question.
MR JAMES TO (in Cantonese): Mr President, I will use the word “misled” instead of “deceived”.
SECRETARY FOR ECONOMIC SERVICES (in Cantonese): Mr President, it has been the Administration’s practice to measure the noise caused by aircraft over Kowloon City and Hong Kong East. Under certain circumstances, when an aircraft flies low, the noise produced would reach the level described by Mr TO just now. However, please bear in mind that what was passed in 1986 is a series of legal provisions which comprises various types of clauses. In fact, the Administration has been applying quite a number of such clauses except the two mentioned by Mr TO since 1986, and the purpose of mitigating the effect of noise has also been achieved to a certain extent.
Besides, in 1986 when law was being drafted, the Administration had no idea to what extent aircraft manufacturers were able to mitigate noise. Over the past eight years, the result attained by aircraft manufacturers was rather dramatic, that is why we now propose to pass Chapter 3 of Annex 16, so as to put restrictions on new types of aircraft. As long as the Administration applies the other provisions under the legislation (including the new Bill that Members are going to pass this afternoon), I think the Director of Civil Aviation should have sufficient authority to minimize the noise level. Therefore, under these circumstances, it would not be necessary for the Administration to apply the two provisions mentioned by Mr TO just now.
REV FUNG CHI-WOOD (in Cantonese): Mr President, I think the residents on Kowloon side are the ones most seriously affected by aircraft noise, since the noise level is over 100 dB whenever an aircraft flies over the area. Although the number of flights at night has been prescribed by law, the Director of Civil Aviation could still exercise his discretion. Will the Secretary inform this Council of the actual number of flights which have flown over Kowloon each night between 9.30 pm and 11.30 pm since October 1993? Has there been any increase or decrease in number? What is the plan for the future?
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SECRETARY FOR ECONOMIC SERVICES (in Cantonese): Mr President, may I provide in writing the requested information in detail. The Director of Civil Aviation has encouraged, as far as possible, all flights flying from the Kowloon direction for landing to land before 10.30 pm, so as to minimize the nuisance caused to the residents of Kowloon by flights landing after 10.30 pm. As to takeoffs, airlines are encouraged to use any time slots before 9.00 pm as far as possible, though the time slots available are limited in number. What we can do is to encourage, as far as possible, aircraft to take off and land during the peak time before 9.00 pm. (Annex III)
MR HOWARD YOUNG (in Cantonese): Mr President, will the Secretary inform this Council, in the light of the existing plan, whether the Bill concerning aircraft control will take effect immediately after it has been enacted as legislation this afternoon; or will it become effective slowly after airline companies have dealt with those substandard aircraft?
SECRETARY FOR ECONOMIC SERVICES (in Cantonese): Mr President, it is the intention of the Administration to apply step by step the legislation to all aircraft registered in Hong Kong within the few months immediately after the legislation has been enacted. At present, most of the aircraft registered in Hong Kong have met the standard stipulated in Chapter 3, only a small number of them have yet to be replaced or to fly with a reduced load so as to mitigate noise. Therefore, it is estimated that all the aircraft registered in Hong Kong should be able to meet the requirements of this provision within a year’s time. As to aircraft registered overseas that are landing and taking off in Hong Kong, it is the practice of the Hong Kong Government to follow the guidelines set by international aviation organizations and enforce the provisions in the same way as other countries.
MR MAN SAI-CHEONG (in Cantonese): Mr President, since the practice of opposite runway operation has been abolished, the noise level above Kowloon City still stands at approximately 80 dB every night between 9 and 10 o’clock (that is, before 10.30 pm) according to a test conducted by the Environmental Protection Department (EPD). Is there any specific solution being worked out by the Civil Aviation Department (CAD) to alleviate the suffering of Kowloon City residents?
SECRETARY FOR ECONOMIC SERVICES (in Cantonese): Mr President, as I have mentioned in my reply, provided that aviation safety would not be affected or jeopardized, the Administration is still considering other measures such as altitude of incoming flights, angle of aircraft entering the sky over Kowloon as well as the climbing speed and angle of departing aircraft, hoping that the nuisance could be reduced to a certain extent.
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PRESIDENT: Not answered, Mr MAN?
MR MAN SAI-CHEONG (in Cantonese): Mr President, in the study conducted by the CAD and the EPD, apart from noise nuisance, cost-effectiveness as well as the feasibility of aviation implementation, would any consideration be given to the setting of upper limits for the different time slots for the landing and taking off of aircraft? Will the Administration inform this Council whether the study is now underway?
SECRETARY FOR ECONOMIC SERVICES (in Cantonese): Mr President, under the Director of Civil Aviation is a working group which comprises experts from various departments and the EPD. These experts will certainly contribute their best to the project. However, to set an upper limit for noise level at a certain location would involve a lot of other factors, including not only flight under normal conditions but also the effects of weather and the altitude of flying. Therefore, it might not be easy to set an upper limit for a certain location. However, a series of measures is now being examined by the CAD and the EPD.
MR LAU CHIN-SHEK (in Cantonese): Mr President, in paragraph 4 of his reply the Secretary pointed out that there is still one arriving flight after 10.30 pm and this flight will be adjusted to arriving before 10.30 pm when winter comes. I am very dissatisfied with this arrangement. Last year I discussed this issue with the CAD and the reply was that by about April this year, this particular flight which is operated by Cathay Pacific Airways would arrive before 10.30 pm. That means residents of Kowloon City would still be exposed to noise nuisance of over 100 dB, under which people would easily be roused from sleep while infants would be scared into tears. Will the Secretary inform this Council whether the existing legislation could effectively urge Cathay Pacific Airways to arrange an earlier arrival time for that flight; whether he would continue to discuss with Cathay Pacific Airways to advance the landing time as soon as possible; and whether there is any plan to further advance the landing time from before 10.30 pm to before 10.00 pm?
SECRETARY FOR ECONOMIC SERVICES (in Cantonese): Mr President, I have mentioned in my reply that we would certainly advance as well the landing time of this particular flight to before 10.30 pm within this year, I am sure we can do this. However, Mr LAU might have noted that flight arrangement is not simply a local matter, it depends not only on the availability of time slots in Hong Kong for landing and taking off, but also on the origin of the flight as the landing and taking off time there may not be completely in our control.
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As to the question of advancing the arrival time to before 10 pm, I am afraid I could not promise Mr LAU this, for we might have to cram all the landings and taking-offs into the peak hours; this could lead to other problems such as the safety problem caused by too many aircraft landing and taking off. As such, I cannot make any promise, I can only reiterate what I have just said, which is, we will try our best to do what we can.
PRESIDENT: Mr LAU, not answered?
MR LAU CHIN-SHEK (in Cantonese): Mr President, I hope the Secretary would inform this Council clearly whether the existing legislation has sufficient authority to urge Cathay Pacific Airways to advance the landing time of that flight; whether the Administration would continue to discuss with Cathay Pacific Airways so as to advance the landing time even further, for example, to advance the landing time of the flight to before 10.30 pm in one or two months instead of waiting until winter?
SECRETARY FOR ECONOMIC SERVICES (in Cantonese): Mr President, the Administration is vested with such authority by the law, but it should be reasonable and should take into consideration other factors when exercising the authority. I do understand Mr LAU’s concern and I will discuss it with the Director of Civil Aviation to see if an early arrangement could be made to achieve Mr LAU’s goal.
MR JAMES TO (in Cantonese): Mr President, just now the Secretary said that the Administration has applied every part of this Ordinance except sections 6(1)(a) and 6(1)(b). Will the Secretary inform this Council whether it is true to say that if sections 6(1)(a) and 6(1)(b) are not applied, only the problem of the maximum noise level created by each flight can be solved but not the overall noise problem caused by other quiter yet more frequent
flights and that the problem cannot be solved at all if sections 6(1)(a) and 6(1)(b) are not applied to limit the number of flights?
SECRETARY FOR ECONIMIC SERVICES (in Cantonese): Mr President, if we can lower the overall noise level created by flying aircraft, the nuisance caused to residents would generally be reduced in certain period of time and to a certain extent. The question is how much it should be lowered. I remember that last year this Council had a debate on whether the power of the legislation could be employed to specify the maximum number of landings and take-offs. Should the power of the law be employed, noise nuisance may be mitiaged mitigated, but adverse effects would also be brought about, especially to the staff working at the control tower of the CAD; if the maximum number is stipulated by law instead of agreed to by both parties, these staff members
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would be subject to huge pressure. Since the number of aircraft landing and taking off at the Kai Tak Airport has been increasing tremendously in recent years, staff members of the CAD have been facing enormous pressure, as such we do not wish to solve the problem by law.
Written Answers to Questions
Smoking in public places
6. DR TANG SIU-TONG asked (in Chinese): It has been some time since the Government introduced legislation to prohibit smoking on all modes of public transport and in certain public places. Will the Government inform this Council:
(a) whether prosecution has been instituted against any violators of this legislation since it came into force; if so, what is the number of such cases; how many of such cases have resulted in convictions by the court and what penalties have been imposed on the convicted offenders;
(b) whether the staff members of public transport and of the public places concerned are authorized to take action against such offenders; if not, what course of action they should take when they encounter an offender who is in the act of violating this legislation; and
(c) whether the Government is aware of any difficulties in enforcing this legislation; if so, what remedial measures are in place and how it can be ensured that this legislation will achieve its intended purpose when its application is extended to cover a wider range of public places?
SECRETARY FOR HEALTH AND WELFARE: Mr President, under the Smoking (Public Health) Ordinance (Cap. 371), smoking has been prohibited in all public transport carriers and designated public places such as cinemas, theatres, concert halls, public lifts and amusement game centres since August 1992.
Any person who smokes or carries a lighted cigarette, cigar or pipe in a no-smoking area commits an offence and is liable on summary conviction to a fine of $5,000. The Administration is committed to enforce the law. From August 1992 to March 1994, we have prosecuted 549 persons for smoking in statutory no-smoking areas. Of the 549 cases, 326 offenders were convicted and an average fine of HK$500 was imposed. Statistics are attached.
5082 HONG KONG LEGISLATIVE COUNCIL ― 6 July 1994
Public transport operators and managers of designated no-smoking areas are responsible for enforcing compliance with the law in places under their control. Operators/managers may:
(a) after indicating to a smoker that he is contravening the law, require him to extinguish his lighted cigarette, cigar or pipe;
(b) where the smoker fails to extinguish his lighted cigarette, cigar or pipe, operators/managers may require him:
(i) to give his name and address and to produce proof of identity; and (ii) to leave the no-smoking area;
(c) where the smoker fails:
(i) to give his name and address and to produce proof of identity; or (ii) to leave the no-smoking area,
operators/managers may remove him from the no-smoking area by the use of reasonable force if necessary and detain him and call for the assistance of a police officer to assist in the enforcement of the law.
The law provides sufficient powers for prohibition for operators/managers to enforce smoking in designated no-smoking areas. So far, members of the public have generally been co-operative and most observe the law voluntarily. Enforcement is not a major problem.
The promulgation of statutory no-smoking areas is a statement of the Government’s commitment to discourage smoking in society. It also has an educative purpose to teach smokers to have consideration for others and respect the choice of the majority of the public in choosing where and when to smoke. This relies on the development of a smoke-free culture among smokers and non-smokers alike. Legislative measures alone cannot achieve this. Suitable publicity measures are essential to complement enforcement of legislation, and we are organizing a series of public education events to convey the message.
The Administration will continue to review measures to prevent or discourage smoking in public places and seek advice from the Hong Kong Council on Smoking and Health on anti-smoking publicity.
HONG KONG LEGISLATIVE COUNCIL ― 6 July 1994 5083
Prosecution and conviction statistics for
violation of anti-smoking in
public transport and public places
(August 1992 to March 1994)
No of prosecutions No of convictions
1992 (Aug-Dec) 8 0 1993 (Jan-Dec) 158 107
1994 (Jan-Mar) 383 236 ----- ----- Total 549
===343
===
The average fine for an adult offender is HK$500 whilst that for juvenile and elderly offenders is HK$300 or conviction and discharge without fine.
Discoloration of tap water in Sha Tin
7. MISS EMILY LAU asked (in Chinese): In view of the recent complaints by many Sha Tin residents about the discoloration of tap water, and the press reports that similar problems have been identified in other districts, will the Government inform this Council:
(a) why “yellowish” tap water is found in various parts of the territory; and whether such discoloured water may cause any harm to human health;
(b) how many complaints about discoloured tap water were received between May and June this year and how these complaints have been dealt with; and
(c) what precautionary and remedial measures are in force to tackle this problem?
SECRETARY FOR WORKS: Mr President,
(a) From our investigation, the “yellowish” tap water was found to be caused by slightly high iron and manganese content in the water.
Corroded pipes in the consumers’ premises could be a source for the iron content. Normal treated water also contains small quantity of iron and manganese at acceptable levels as laid down by the
5084 HONG KONG LEGISLATIVE COUNCIL ― 6 July 1994
World Health Organization (WHO). Such iron and manganese may, in the course of time, deposit in the distribution system as well as the pipes within consumers’ premises. The discolouration could be caused by dislodgement of such deposits, which may have been induced by changes in velocity, pressure or direction of flow of water in the water mains. As long as the levels of iron and manganese fall within acceptable limits, adverse effects to health are unlikely.
(b) Complaints about discoloured tap water were mostly received in May. During this period a total of 1 219 complaints were received, of which 162 complaints were from the residents of Sha Tin and Ma On Shan.
Upon receipt of these complaints, the Water Supplies Department (WSD) immediately took water samples from the complainants’ premises and the nearby supply system for analysis. The results of the analysis indicated that for most of the cases, the iron and manganese content in these samples were within acceptable limits. After slight running of the tap, the water at these locations turned clear and became satisfactory. In a few isolated cases of relatively high turbidity due to corrosion of the internal plumbing systems, the water quality also became acceptable after running the tap for a longer period.
(c) With manganese concentration close to 0.1mg/l, a level far below the acceptable limit, a very pale yellow colour can be detected by some people under close examination. Although this has no adverse effect to health, in view of the public’s concerns, WSD has taken measures to as far as practicable further reduce the manganese content in the final treated water.
As regards the iron content from the corroded piping in the consumers’ premises, WSD is taking action to amend the Waterworks Regulations to ban the use of unlined galvanized iron pipes which are prone to rusting and corrosion. There are other types of pipe materials available for use in potable water plumbing system under the current Waterworks Regulations that are not prone to corrosion.
Crown land auction system
8. MISS EMILY LAU asked (in Chinese): Despite the Government’s assertion that the Crown land auction system is based on “the principle of fair and genuine competition”, there is good reason to believe that in practice only a dozen or so major real estate developers have the financial strength to bid for the auctioned sites which, in most cases, are very large in area and involve
HONG KONG LEGISLATIVE COUNCIL ― 6 July 1994 5085
enormous capital investment. Given the situation, it is doubtful whether “the principle of fair and genuine competition” mentioned by the Government does really exist. In view of this, will the Government inform this Council of the following:
(a) the areas, prices and names of successful bidders in respect of sites sold by auction over the past two years; and
(b) whether consideration will be given to putting up smaller sites for auction so as to make it possible for more developers to participate in the bidding, thus truly realizing “the principle of fair and genuine competition”?
SECRETARY FOR PLANNING, ENVIRONMENT AND LANDS: Mr President,
(a) A list of sites sold by public auction since April 1992 is attached which shows the location, site area, use, date of sale, premium paid and purchaser for each site. The list indicates that a good range of sites by location, size, type of use and premium amount has been sold and that the negative assumptions contained in the preamble to the question are probably not well-founded.
(b) However, consideration can be given to the scope for putting up more small sites for auction in regard to planning and other considerations. This is among the issues being looked at by the three member panel which has been invited to review the auction system.
Land Sales Result 1992-93
(AUCTION ONLY)
Area Premium Sale
Lot No. Location User (sq m) ($ M) Date Purchaser
APIL 124 Ap Lei Chau West I 5538 220.00 28/04/92 Tendo Limited STTL 374 J/O On Lai & Kwan St I 2869 175.00 28/04/92 Realty Kingdom Ltd TPTL 115 Area 30 (Site 2) R2 24630 930.00 28/04/92 Samover Company Ltd. FSSTL 99 On Lok Tsuen I 472 8.65 18/05/92 V-Day Limited TPTL 116 Area 30 (Site 3) R2 14540 533.00 18/05/92 Time Rank Limited NKIL 6175 Berwick Street R1 114 15.00 19/08/92 Sunking Development Ltd.
717-DD4 Mui Wo, Lantau CR 741 54.00 19/08/92 Ever Champion Development Ltd.
YLTL 492 Tung Tau Industrial Area I 3778 44.00 19/08/92 Keenford Realty Ltd. 237-D.D.331 Cheung Sha, Lantau R4 855 4.60 18/09/92 Oriental Best Property Ltd.
TMTL 370 Kin On Street I 2464 32.00 18/09/92 Famous Palace Properties Ltd.
5086 HONG KONG LEGISLATIVE COUNCIL ― 6 July 1994
Area Premium Sale
Lot No. Location User (sq m) ($ M) Date Purchaser
SIL 830 Shau Kei Wan CR 1685 475.00 18/09/92 Zebrine Investment Ltd. FSSTL 80 Fanling Area 29B R3 6900 97.00 08/10/92 Madigan Co. Ltd. STTL 251 Mei Wo Circuit R4 884 13.60 08/10/92 Chan Suk Ping STTL 415 On Sum St Sha Tin I 8100 280.00 08/10/92 Topsail Estate Ltd. NKIL 4932 35-42 Rose St R2 1312 98.00 27/11/92 Sandsprings Ltd. 716-DD4 Mui Wo, Lantau CR 741 45.00 27/11/92 New Grow Deyelopment Ltd.
FSSTL 149 Area 30A Sheung Shui I 5871 109.00 15/12/92 Shell Fair Realty Ltd. FSSTL 163 On Lok Tsuen I 2935 39.00 15/12/92 Starise Ltd. NKIL 6157 Shung Ling St CR 3093 705.00 12/01/93 Bright Success Investment Ltd.
KIL 11035 Cox’s road R2 1395 360.00 12/01/93 Amazing Wave Investment
YLTL 456 Town Park Road North R2 10500 345.00 12/01/93 Goodfaith Ltd. KCTL 442 Tai Lin Pai Road I 916 100.00 12/01/93 Chinabest Pacific Ltd. NKIL 6160 Lunk Cheung Road CR 26060 3530.00 03/02/93 Mullein/Bright Smark Ltd. & Others.
FSSTL 147 Area 30A Sheung Shui I 12020 164.00 03/02/93 Strathgeath Investment Ltd.
NKIL 6181 Tat Chee Avenue Extension COU 20660 2850.00 30/03/93 Benbecula Ltd. FSSTL 148 Area 30A Sheung Shui I 2631 65.00 30/03/93 Forever Glory Ltd. STTL 393 Ma On Shan Town Centre R1 6450 990.00 30/03/93 Famous Empire Properties Ltd.
LOT 4284 DD Hung Shui Kiu CR 1844 155.00 30/03/93 Rayhay Co. Ltd. Total 169998 12436.85
User
I : Industrial
R1 : Residential (density zone 1)
R2 : Residential (density zone 2)
R3 : Residential (density zone 3)
R4 : Residential (density zone 4)
CR : Commercial/Residential
COU : Commercial (other uses)
Land Sales Result 1993-94
(AUCTION ONLY)
Area Premium Sale
Lot No. Location User (sq m) ($ M) Date Purchaser
STTL 98 Ma Ling Path R3 15320 505.00 22/06/93 Perfect Paradise International Ltd.
STTL 419 J/O On Sum St & On Lai St IG 4000 385.00 22/06/93 Sea Dragon Ltd YLTL 489 Tung Tau Industrial Area G 3030 46.00 22/06/93 Reddiwood Co. Ltd. TMTL 368 Gastle Peak Road R1 2783 266.00 09/07/93 Far Gain Ltd. YLTL 486 Town Park Road North R2 10320 600.00 09/07/93 Mount City Ltd. STTL 420 J/O On Sum St & On Yiu St IG 4200 395.00 13/10/93 Jaco Ltd. YLTL 494 Tung Tau Industrial Area IG 3555 50.00 13/10/93 Betterise Co. Ltd. 723-DD4 Mui Wo, Lantau C 840 18.00 29/11/93 Hortig International (HK) Ltd.
YLTL 419 Ma Tin Road Yuen Long R2 4350 297.00 29/11/93 Ever Lead Ltd. Lot 661 P.C. Peng Chau CR 1945 82.00 15/12/93 Active Benefit Ltd. NKIL 5924 Off Lung Ping Road R2 43520 3940.00 15/12/93 Victory World Ltd. 1107-DD215 Tui Min Hoi, Sai Kung IG 1681 32.00 15/12/93 Hung King Development Ltd.
APIL 125 Ap Lei Chau West IG 5756 415.00 31/01/94 Best Liaison Ltd. TMTL 379 Area 16, Tuen Mun, N.T. G 3804 76.00 31/01/94 Marnay Holdings Ltd.
KIL 11044 J/O Ma Tau Wai Rd & Farm Rd
R2 7059 2260.00 01/03/94 Lead Bright Ltd.
TPTL 137 Area 7, Tai Po R2 18490 2140.00 01/03/94 Credit World Ltd. TMTL 263 Area 4C R2 7877 650.00 01/03/94 Great Cheer Development Ltd.
HONG KONG LEGISLATIVE COUNCIL ― 6 July 1994 5087
Area Premium Sale
Lot No. Location User (sq m) ($ M) Date Purchaser
STTL 422 On Yiu Street IG 6515 650.00 31/03/94 Marbrad Co. Ltd. TMTL 380 Area 11, Tuen Mun CMCP 3781 850.00 31/03/94 Enrich Investment Ltd. IL 8868 665 King’s Road C 2661 2200.00 31/03/94 Randash Investment Ltd.
Total 151487 15857.00
User
R1 : Residential (density zone 1)
R2 : Residential (density zone 2)
R3 : Residential (density zone 3)
IG : Industrial/Godown
G : Godown
C : Commercial
CR : Commercial/Residential
GMCP : Commercial (Multi-storey Carpark)
Land Sales Result 1994-95
(AUCTION HELD IN MAY/94 ONLY)
Area Premium Sale
Lot No. Location User (sq m) ($ M) Date Purchaser
FSSTL 126 Fanling N.T. R1 20780 2040.00 26/05/94 Direct Profit Development Ltd.
YLTL 463 Fung Cheung/Fung Kam St R1 5889 510.00 26/05/94 Moricrown Ltd. Total 26669 2550.00
User
R1 : Residential (density zone 1)
MTRC to operate the Airport Railway
9. MR STEVEN POON asked: Section 3(2) of the Mass Transit Railway Corporation Ordinance states that the purposes of the Mass Transit Railway Corporation (MTRC) are to construct and to operate the Mass Transit Railway. The Airport Railway is clearly not part of the Mass Transit Railway. Will the Government inform this Council:
(a) whether it is necessary or appropriate to amend the MTRC Ordinance so as to enable the MTRC to construct and to operate the Airport Railway;
(b) if the answer to (a) is “yes”, whether there is a legal problem for the Government to inject funds into the MTRC for the Airport Railway and to ask it to construct the cross-harbour immersed tube; and if so, how would the Government resolve such a problem; and
(c) if amendments to the MTRC Ordinance are necessary, when will the Government effect them?
5088 HONG KONG LEGISLATIVE COUNCIL ― 6 July 1994
SECRETARY FOR TRANSPORT: Mr President, the premise on which the question is based, that the Airport Railway is not part of the Mass Transit Railway is incorrect. Indeed, legal advice has confirmed that the MTRC has the statutory power to construct and operate the new railway.
In the circumstances, there is no need to amend the MTRC Ordinance.
Short sales market of securities
10. DR HUANG CHEN-YA asked (in Chinese): Will the Government inform this Council of the following:
(a) the total transaction volume recorded in the local short sales market of securities since its establishment in January this year;
(b) whether there is a lack of transparency and information with regard to the activities concerning short sales of securities; and
(c) what measures are in place to prevent the lack of transparency and fairness in the local short sales market of securities from damaging the market activity?
SECRETARY FOR FINANCIAL SERVICES: Mr President,
(a) Regulated short selling on the Stock Exchange of Hong Kong Limited (SEHK) commenced on 3 January 1994. Due to certain impediments including the absence of a viable stock borrowing and lending market, short selling activity has been low. The accumulated data on short selling as reported to the SEHK from 3 January to 14 June 1994 is as follows:
Number of transactions Shares sold short Total value 23 2 831 000 HK$76,540,800
The Administration has introduced into the Legislative Council on 15 June 1994 two bills seeking to relax the stamp duty concession on stock borrowing and lending activities which, when enacted, will encourage the development of a stock borrowing and lending market in Hong Kong and in turn enable short selling to take place more effectively. The Second Reading debate for the two bills is scheduled to be resumed on 6 July 1994.
(b) There is no lack of transparency or open information on the short selling of securities. The availability in the Hong Kong market of real time regulatory data regarding short selling, as well as the
HONG KONG LEGISLATIVE COUNCIL ― 6 July 1994 5089
routine dissemination of meaningful information on such activity to the public, are comparable to other developed international markets. The paragraphs below provide more detail on the measures in place in Hong Kong.
(c) The regulatory structure established by the SEHK and approved by the Securities and Futures Commission (SFC) prior to the introduction of short selling is largely based on the systems in other developed markets such as the United States, the United Kingdom, Japan, Canada and Australia. It was designed to address various recommendations contained in the Securities Review Committee Report issued in 1988. The salient features include:
- limiting the availability of short selling to only those securities which are highly capitalized and which have a significant public float;
- permitting only SEHK members who are registered as short sellers to execute short sale transactions;
- requiring SEHK members to file a semi-monthly return detailing all of its proprietary and customers short selling activity during the reporting period;
- requiring SEHK members to designate short sales as such;
- prohibiting SEHK members from effecting short sale into a declining market for the particular security;
- requiring customers to lodge adequate initial margin with SEHK members to cover short sales and further requiring SEHK members to mark all positions to the market daily and to make and collect subsequent margin calls on open short position due to adverse market price changes;
- requiring all short sale orders to be entered into and effected through the SEHK’s Automated Order Matching and Execution System;
- requiring the SEHK regularly to publish marketwide open short interest data to the public.
This structure ensures that short selling is properly monitored, appropriate information relating thereto is adequately disseminated to the market, and the use of short selling will not precipitate severe market declines. It is comparable to the frameworks in other markets and, in certain areas, our requirements are more stringent than elsewhere, for example, section 80 of the Securities Ordinance
5090 HONG KONG LEGISLATIVE COUNCIL ― 6 July 1994
(Cap. 333) prohibits “naked” or “uncovered” short selling whereas this practice is common in the United States and other major markets.
Interpretation of the Royal Instructions
11. MR JAMES TIEN asked (in Chinese): Will the Government inform this Council who has the authority to interpret the term “dispose of or charge any part of our revenue arising within the Colony” in clause XXIV(2) of the Royal Instructions, and whether there is any final authority to whom appeals on the interpretation of the Royal Instructions can be lodged?
SECRETARY FOR CONSTITUTIONAL AFFAIRS: Mr President, the Royal Instructions form part of the law of the territory. Only the courts are capable of delivering authoritative interpretations on questions of law. This principle applies as much to the Royal Instructions, and acts done under them, as to any other law in force in Hong Kong.
Contamination of seafood by mud dumping
12. MRS PEGGY LAM asked (in Chinese): In view of recent reports that seafood from locations such as East Sha Chau has been seriously contaminated with excessive levels of bacteria and heavy metals and so on as a result of mud dumping in the vicinity, will the Government inform this Council:
(a) whether the seafood from such areas is safe for consumption; and
(b) how it can ensure that mud dumping will not lead to the contamination of seafood in those areas?
SECRETARY FOR HEALTH AND WELFARE: Mr President, mud dumping at East Sha Chau commenced in late December 1992 and no significant contamination trend had been detected during the first three quarters of 1993, though there were isolated incidents of high metal concentrations in marine organism tissue.
Dumping activities are controlled by licences under the Dumping at Sea Act (Overseas Territories) Order, for which the Director of Environmental Protection is the licensing authority. Strict dumping licence conditions are enforced, such as requirements for tamper proof automatic self-monitoring devices, to ensure that disposals are safely restricted to within the confines of the pit.
HONG KONG LEGISLATIVE COUNCIL ― 6 July 1994 5091
A comprehensive programme of water quality, sediment quality and marine biota monitoring has been adopted. This programme embraces compliance monitoring of individual pits to enforce contract conditions on operational practice as well as a wider scale assessment of impact on the surrounding environment.
Responsibility for this monitoring lies with the site operator, the Director of Civil Engineering, who has employed independent consultants to carry out the work. The consultants produce relevant reports and the Environmental Protection Department independently audits the data to ensure compliance with standards.
Operations at the pit are supervised by staff of the Civil Engineering Department. In addition, the department is currently carrying out a thorough investigation into the integrity of the first pit cap to be laid to give assurance of the system’s efficacy and performance. If the results do not give adequate confidence that the capped pits provide the necessary degree of containment, the Director of Environmental Protection will cease to issue licences giving permission to dump contaminated mud into the pits.
To monitor that food and food products for sale are hygienic, safe and fit for human consumption, the Department of Health conducts a food surveillance programme throughout Hong Kong. Seafood at wholesale and retail markets are regularly sampled for examination. In the first quarter of 1994, about 1.1% and 10% of seafood samples were found to be unsatisfactory when subjected to chemical and bacteriological analysis, respectively. The bacteriological contamination may be avoided by proper cleaning and thorough cooking before consumption. Given the dietary intake of the population, the level of heavy metal contamination is not likely to pose a hazard.
In addition, the Department of Health conducts regular health education. The public is informed of the results of the food surveillance programme through quarterly press conferences. Health messages are disseminated during these conferences and the general public are reminded throughout the year of the importance of food sanitation and hygiene.
Traffic congestion in Queen’s Road East eastbound
13. MRS PEGGY LAM asked (in Chinese): In view of the recent frequent traffic congestion of eastbound traffic in Queen’s Road East, which is particularly serious during rush hours in the evening, with the result that a journey which took five minutes previously now takes half to one hour to complete, will the Government inform this Council:
5092 HONG KONG LEGISLATIVE COUNCIL ― 6 July 1994 (a) of the reasons for the traffic congestion; and
(b) whether there are any short-term and long-term measures to solve the problem?
SECRETARY FOR TRANSPORT: Mr President, traffic in Queen’s Road East eastbound is frequently congested on weekdays during the evening peak hours. The main cause is the blockage of the junction with Wong Nei Chong Road, due to the tailback of vehicles waiting to enter the up-ramp leading to the Canal Road Flyover. Most of the traffic on this ramp is headed for the Cross Harbour Tunnel (CHT).
The CHT has been operating beyond its design capacity for some time, resulting in traffic queues in its approach roads particularly during peak hours. Relief will be provided with the opening of the Western Harbour Crossing in 1997.
In the meantime, a number of measures are being taken to ease congestion in Queen’s Road East, as follows:
(a) Inclusion of Canal Road Flyover signal junction in the Area Traffic Control System
The traffic signal system on Canal Road Flyover allocates green times for traffic using the two approaches from Aberdeen Tunnel and the up-ramp from Morrison Hill Road. This signal system was incorporated into the Area Traffic Control System in April this year. As a result, the operator of the system can monitor the traffic situation visually with a view to balancing the vehicle flows from Queen’s Road East, Wong Nei Chung Road and Aberdeen Tunnel northern exit.
(b) Road widening in Queen’s Road East outside Tang Chi Ngong Clinic
A road widening project was completed on 26 June, extending the exclusive lane in Queen’s Road East which leads to Morrison Hill Road. This reduces the effect of the queue of CHT bound traffic on vehicles headed towards Causeway Bay.
(c) Proposed extension of the existing bus only lane in the approach to Canal Road Flyover
Due to inadequate space in the existing bus lane on Canal Road Flyover, buses wishing to merge with traffic heading towards the CHT often cause obstruction to traffic heading towards North Point. This has worsened the already congested conditions on Canal Road Flyover and the up-ramp from Morrison Hill Road.
HONG KONG LEGISLATIVE COUNCIL ― 6 July 1994 5093
The proposed extension of the bus lane will provide more space for buses waiting to merge with tunnel bound traffic without causing obstruction. Urban Council approval for land alienation needed for the improvement work will be sought in July 1994, and the tentative completion date for this project is November 1994.
(d) Adjustments to lane markings at the junction of Queen’s Road East and Wong Nei Chung Road
Adjustments will be made to lane markings at this junction to suit the prevailing traffic conditions, with a view to improving the efficiency of the signal system.
These schemes will not solve the congestion problem in Queen’s Road East eastbound, but they will improve traffic management and reduce queue lengths to some extent. Further traffic management schemes will be considered.
Acute labour shortage in the fishing industry
14. MR HENRY TANG asked: In view of the acute labour shortage in the fishing industry, will the Government inform this Council of the following:
(a) whether there are any plans for the importation of more Chinese fishermen to work in Hong Kong and whether any negotiation with China is taking place on this subject, if so, what the progress is;
(b) what impact the above proposed arrangement would have on the present policy of importation of labour;
(c) what are the implementation details in respect of wages, quota, system of management and so on; and
(d) whether the proposed arrangement would be implemented on a long-term basis?
SECRETARY FOR EDUCATION AND MANPOWER: Mr President,
(a) The Government is liaising with Chinese authorities on the implementation of a special scheme to allow People’s Republic of China fisherman deckhands to enter Hong Kong for the purpose of helping to unload the catch at fish markets. Our aim is to finalize the arrangements as soon as possible.
5094 HONG KONG LEGISLATIVE COUNCIL ― 6 July 1994
(b) This scheme is meant to meet the special needs of the fishing industry. It has no effect on the General Scheme on Labour Importation.
(c) The special scheme will allow up to 3 500 deckhands with valid travel documents to enter Hong Kong to help unload the catch. Eligible vessel operators can apply for quota from the Immigration Department. The deckhands cannot stay for more than seven days on each entry.
The deckhands are not classified as “imported labour” as the bulk of their duties are to help with fishing outside Hong Kong waters and their contracts of employment are entered into outside Hong Kong. It is not considered necessary to set a minimum wage level as their duties are largely carried outside Hong Kong.
(d) The scheme is to meet the special needs of the fishing industry. The Administration will monitor the scheme closely and review the arrangements regularly to see whether changes would be necessary.
Positive non-intervention policy for the property market
15. DR DAVID LI asked: Given the tightening measures aimed at stabilizing the property market, will the Government inform this Council whether the “positive non-intervention policy” is still the prime policy to maintain stability in the financial markets, particularly in the property market?
FINANCIAL SECRETARY: Mr President, as I commented to this Council on 17 February 1993, answering a question by the Honourable NGAI Shiu-kit, the term “positive non intervention” is used by different people to mean different things.
One thing is clear, however ― it never meant “a free-for-all” or “do-nothing”. Stability in Hong Kong’s financial markets could not have been fostered through a total lack of regulation. The same holds true for the property market. Of course, the more satisfactorily a market is working, the less inclined we are to intervene.
The Secretary for Planning, Environment and Lands has put forward measures aimed at stabilizing the property market. Some of these are aimed at increasing the supply, others at reducing speculation. They include measures which are simply an adjustment of a form of regulation which has been in place for years.
HONG KONG LEGISLATIVE COUNCIL ― 6 July 1994 5095
The Consent Scheme, for example, which allows flats to be put on the market before they have been completed, has always been administered so as to try to balance the interests of home-buyers and property developers. The changes to it aim to shorten the time between putting flats on the market and actual occupation, and so to reduce the time available for speculative sales and re-sales to push up the cost of flats.
The most important element in the Secretary for Planning, Environment and Land’s strategy to stabilize flat prices is to facilitate a simple increase in supply. That is a piece of intervention in the market with which, I think, our business community would be quite at ease.
What we have not done is to seek to introduce any measures to regulate flat prices directly: there is to be no price control.
Thus if “positive non-interventionism” means a policy of not interfering unnecessarily in the free operation of the market, and not putting red tape in the way of commercial enterprise, this is still a prime policy. But stability in the financial and property markets cannot be achieved unless investors see that commercial activities in Hong Kong are reasonably and prudently managed and regulated.
Non-emergency ambulance services
16. MR MICHAEL HO asked (in Chinese): In the past when non-emergency ambulance services were provided by the Fire Services Department, the ambulance crew conveyed patients from door to door. Recently there have been complaints from the public that, since the Hospital Authority took over the provision of non-emergency ambulance services, the ambulance crew no longer convey patients from door to door. This has rendered many elderly people with mobility difficulties unable to receive geriatric service in day hospitals. Will the Government informed this Council:
(a) whether the situation is actually so; and
(b) how is the Government going to cater to the need for non-emergency ambulance services of patients who have mobility difficulties but who also require rehabilitation services of day hospitals?
SECRETARY FOR HEALTH AND WELFARE: Mr President, since it took over the management responsibility of non-emergency ambulance services in Hong Kong and Kowloon, the Hospital Authority has provided the same scope and level of activities offered previously by the Fire Services Department.
5096 HONG KONG LEGISLATIVE COUNCIL ― 6 July 1994
Currently about 475 elderly patients, including those with mobility problems, are making use of the non-emergency ambulance service each week to attend treatment at geriatric day hospitals. The Hospital Authority will monitor the situation closely and consider further improvements to the existing service as necessary.
Registration of hospitals, nursing homes and maternity homes
17. MR MICHAEL HO asked: According to section 3(4)(c) of the Hospitals, Nursing Homes and Maternity Homes Registration Ordinance (Cap. 165), the Director of Health may refuse to register an applicant if he is satisfied that “there is not a proper proportion of registered nurses among the persons having the superintendence of or employed in the nursing of the patients in the hospital”. Will the Government inform this Council:
(a) whether there is a standard for “proper proportion of registered nurses”; if not, what factors would the Director of Health take into consideration in refusing an application for registration of a hospital, nursing home or maternity home on the ground that “there is not a proper proportion of registered nurses”; and
(b) how many applications for registration were rejected by the Director of Health in the past 10 years and what the reasons for refusal were?
SECRETARY FOR HEALTH AND WELFARE: Mr President,
(a) In determining the appropriateness of nursing levels in private hospitals, nursing homes and maternity homes, the Director of Health will take into consideration the nature and scope of the services provided, the dependency level of the patients, the case mix and the number of patients served. Private hospitals, nursing homes and maternity homes applying for registration will be advised on the optimal level of nursing staff required for providing services to an acceptable professional standard and may be required to rectify their nursing manpower levels. Only when the institution does not comply would the Director of Health consider refusing its application for registration.
(b) No application for registration under Cap 165 has been refused by the Director of Health since assuming responsibility for the registration of private hospitals, nursing homes and maternity homes in December 1991.
HONG KONG LEGISLATIVE COUNCIL ― 6 July 1994 5097
Visit by Refugee Co-ordinator to Vietnamese camps
18. MISS CHRISTINE LOH asked: Will the Administration inform this Council of:
(a) the number of times in the past 12 months that the Refugee Co-ordinator has visited the Vietnamese Boat People (VBP) Detention Camps and talked directly to the VBPs; and
(b) the dates of such visits, the specific camps covered in each visit, and the approximate number of VBPs he has talked to in each visit?
SECRETARY FOR SECURITY: Mr President, the Refugee Co-ordinator has visited the detention centres on eight occasions over the last 12 months. Apart from some brief exchanges with individual detainees, he did not speak directly to the Vietnamese migrants.
The dates of the visits were as follows:
Detention Centre Date
Whitehead 6 December 1993
6 January 1994
10 March 1994
10 May 1994
Tai A Chau 7 January 1994
High Island 18 October 1993
Kai Tak 8 April 1994
Victoria Prison 8 April 1994
Vietnamese refugees to be sent back to Hong Kong
19. DR TANG SIU-TONG asked (in Chinese): According to a report in a Chinese paper of 15 June 1994, about 1 000 Vietnamese refugees are expected to be sent back to Hong Kong upon the closing down of a Vietnamese refugee transit centre in the Philippines in late September this year. Will the Government inform this Council:
5098 HONG KONG LEGISLATIVE COUNCIL ― 6 July 1994
(a) whether it is aware of the above press report; if so, whether it has done any lobbying work to persuade other countries to accept these refugees in order to prevent them from being sent back to Hong Kong;
(b) if these refugees are to be sent back to Hong Kong, what arrangements it will make to enable the refugees to resettle in overseas countries as soon as possible; and
(c) whether the incident would in any way affect the scheduled progress of the resettlement programme for Vietnamese refugees or that of the repatriation scheme for Vietnamese boat people?
SECRETARY FOR SECURITY: Mr President, since 1990, Vietnamese asylum-seekers in Hong Kong who are granted refugee status have been transferred to a regional transit centre (RTC) in the Philippines to await resettlement.
The Administration is currently negotiating with the Philippines authorities for an extension of the use of the RTC facilities beyond 30 September this year. At this juncture, it would be premature to assume that these negotiations will be unsuccessful.
Motions
COMPANIES ORDINANCE
THE SECRETARY FOR FINANCIAL SERVICES moved the following motion:
“That the Companies (Fees and Percentages) (Amendment) (No. 2) Order 1994, made by the Chief Justice on 10 June 1994, be approved.”
He said: Mr President, I move the first motion standing in my name on the Order Paper.
The Companies (Fees and Percentages) (Amendment) Order 1994 was made by the Chief Justice on 10 June. It increases certain fees payable to the Registrar of Companies in relation to the inspection and photocopying of liquidators’ statements sent to the Registrar under the Companies Ordinance.
It is government policy that fees should in general be set at levels sufficient to recover the full cost of providing the services. As the Companies Registry is now operating as a trading fund it is also necessary for it to be able to recover cost in order to achieve its performance targets. These fees were last reviewed in August 1993. We are proposing to increase the fees by about 10% in line with the increase in cost based on the movement of the Government
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Expenditure Consumption Deflator for this year. The revised fees, if approved, will come into operation upon gazettal of the amendment Order on 8 July 1994.
Mr President, I beg to move.
Question on the motion proposed, put and agreed to.
REGISTERED TRUSTEES INCORPORATION ORDINANCE
THE SECRETARY FOR FINANCIAL SERVICES moved the following motion:
“That the Registered Trustees Incorporation Ordinance (Amendment of Second Schedule) Order 1994, made by the Secretary for the Treasury on 16 June 1994, be approved.”
He said: Mr President, I move the second motion standing in my name on the Order Paper.
The Registered Trustees Incorporation (Amendment of Second Schedule) Order 1994 was made by the Secretary for the Treasury on 16 June. It increases certain fees payable to the Registrar of Companies in relation to the incorporation of trustees under the Registered Trustees Incorporation Ordinance.
It is government policy that fees should in general be set at levels sufficient to recover the full cost of providing the services. This is particularly important for the Companies Registry trading fund which is required to meet financial and service level performance targets. These fees were last reviewed in August 1993. We are proposing to increase the fees by about 10% in line with the increase in cost based on the movement of the Government Expenditure Consumption Deflator. The revised fees, if approved, will come into operation when the amendment Order is gazetted on 8 July 1994.
Mr President, I beg to move.
Question on the motion proposed, put and agreed to.
TRAFFIC ACCIDENT VICTIMS (ASSISTANCE FUND) ORDINANCE THE SECRETARY FOR HEALTH AND WELFARE moved the following:
“That, with effect from 15 July 1994, the Schedule to the Traffic Accident Victims (Assistance Fund) Ordinance be amended -
5100 HONG KONG LEGISLATIVE COUNCIL ― 6 July 1994 (a) in Part I -
(i) in the column headed “Annual Levy in respect of a levy paid in 1994” by repealing “$66” wherever it appears and substituting “$84”;
(ii) in the column headed “Annual Levy in respect of a levy paid after 1994” by repealing “$87” wherever it appears and substituting “$114”;
(b) in Part II -
(i) in the column headed “Annual Levy in respect of a levy paid in 1994” by repealing “$22” wherever it appears and substituting “$28”;
(ii) in the column headed “Annual Levy in respect of a levy paid after 1994” by repealing “$29” wherever it appears and substituting “$38”.
She said: Mr President, I rise to move the motion standing in my name in the Order Paper. Its purpose is to seek the Council’s approval for increasing the levies on vehicle and driving licences in order to make continued disbursements to traffic accident victims who need assistance under the Traffic Accident Victims (Assistance Fund) Ordinance.
The Traffic Accident Victims Assistance Scheme
The Traffic Accident Victims Assistance (TAVA) Scheme has been in operation for 15 years. It provides speedy financial assistance to traffic accident victims, or their dependent family members, regardless of the financial means of the applicant or fault in causing the accident. The Ordinance provides for the establishment of the TAVA Fund to finance the Scheme.
The income of the TAVA Fund is drawn from four sources:
(a) levies on vehicle licences;
(b) levies on driving licences;
(c) contribution from General Revenue; and
(d) refund from those applicants who received compensation from other parties in respect of the accident.
The contribution from General Revenue is intended to cover the pedestrians’ part in causing traffic accidents. It was originally set at one-third of the total cost of the TAVA Scheme. This was based on statistics provided by the police
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that 30% to 35% of traffic accidents from 1973 to 1977 had been caused by pedestrian negligence. This percentage dropped to just over 20% by 1990. On this basis the level of contribution from General Revenue was reduced to one-fifth of the total cost of the Scheme in October 1992. Honourable Members may wish to note that the percentage has continued to decline, 19.6% in 1991, 17.9% in 1992 and 17.7% in 1993. However, despite this downward trend, the Administration does not intend to reduce further the current level of contribution from General Revenue.
Review of the TAVA Scheme
On 12 January 1994, this Council approved an increase in the levies on vehicle and driving licences by 35% with effect from 15 January 1994 and by another 30% with effect from 1 January 1995. The approved increases were lower than what were proposed to this Council. During the debate in this Council, Honourable Members asked the Administration to conduct an overall review of the TAVA Scheme.
We have since reviewed the need for the Scheme, its funding principles and operational aspects including how to reduce the administrative costs, how to improve the refund rate, and how to formulate a basis for future adjustment of levies. The review has taken into account comments made by Honourable Members. We have also explored a number of approaches for tackling the funding problem of the Scheme and presented the findings of the review to the joint meeting of the Transport and Welfare Services Panels held on 10 June 1994.
Administrative costs of the Scheme
As regards administrative costs, we have identified in our review measures to achieve savings of about $1 million per annum or 12% of Social Welfare Department’s staff cost incurred for the Scheme. The measures involved development of a computer system for the TAVA Scheme and a corresponding reduction in staffing in the Department’s TAVA section. We will continue to explore other possible ways to further reduce the administrative costs.
Refund of payments
As regards refund of payments, under section 10 of the Ordinance, a TAVA beneficiary is obliged to refund the amount of assistance if compensation from other parties is awarded. To enhance the refund rate, some Members suggested on previous occasions that a beneficiary’s right of claiming damages from other parties be assigned to the Government. We have looked into the suggestion in consultation with the Attorney General’s Chambers. In view of the practical difficulties in obtaining co-operation from potential claimants, subrogation is not considered feasible. It would also not be cost effective because of the high administrative costs involved. According to our estimates,
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the administrative costs involved would amount to some $22 million for establishing a legal team to handle about 3 000 cases a year. This will double the existing total administrative costs of the TAVA Scheme, and it is uncertain what amount could be recovered.
But as a safeguard to the refund system and to facilitate recovery of payments, the Social Welfare Department has standing arrangements for the Legal Aid Department, the Judiciary, the Labour Department, solicitors in the private sector, employers and insurance companies to obtain information on claims paid to TAVA beneficiaries and to effect direct repayment.
Proposed contribution from insurance companies
Honourable Members also suggested that insurance companies be required to make contribution to the TAVA Fund from motor insurance premiums. We have examined this suggestion very carefully in consultation with the Commissioner for Insurance. But our conclusion is that we have reservations about its effectiveness. Insurance companies are liable for claims only if such liability is covered in the insurance policies, and if fault can be established. It would be difficult to prevent insurance companies from passing the burden to all clients through higher premiums. However, we will continue to explore other practicable ways by which the insurance industry could contribute to the Fund.
In response to the comments made by Honourable Members during the joint panel meeting, we will keep the TAVA Scheme under review and we will continue to explore all possible ways to improve the financial position of the Fund. But in the meantime, Mr President, we do need to address the problem of the Fund’s imminent depletion.
At present, the rates of payment under the Scheme are adjusted in line with inflation and the average increase in wages, but the income of the TAVA Fund is not inflation-proof. Thus the expenditure of the Fund has outgrown its income over time. We consider the levies in question appropriate and legitimate sources of income to ensure that the TAVA Fund remains solvent. To maintain a balance of the income and the expenditure of the Fund in the long run, we intend to seek adjustments of levies on vehicle and driving licences in line with inflation, the average increase in wages and the projected percentage increase in TAVA payments.
To enable the Fund to continue making disbursements to traffic accident victims, I propose that the annual levy on vehicle licences be increased from $66 to $84 with effect from 15 July 1994 and then from $87 to $114 with effect from 1 January 1995. Similarly, I propose that the annual levy on driving licences be raised respectively first from $22 to $28 and then from $29 to $38
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from the same effective dates. According to the latest projections of the TAVA Fund, the proposed increases will restore and maintain the Fund in a balanced state until 1997-98.
The law ahows advance renewal of vehicle and driving licences four months before their expiry date. To minimize operational difficulties, the revised rates, if approved, will not apply to advance licence renewals made before the respective effective dates.
Mr President, I beg to move.
Question on the motion proposed.
PRESIDENT: Mrs Miriam LAU has given notice to move an amendment to the motion. Her amendment has been printed in the Order Paper and circulated to Members. I propose to call on her to speak and to move her amendment now so that Members may debate the motion and the amendment together.
MRS MIRIAM LAU moved the following amendment to the Secretary for Health and Welfare’s motion:
“In paragraph (a), to delete everything after “in Part I” and substitute”, in the column headed “Annual Levy in respect of a levy paid in 1994” by repealing “$66” wherever it appears and substituting “84”;”; and in paragraph (b), to delete everything after “in Part II” and substitute”, in the column headed “Annual Levy in respect of a levy paid in 1994” by repealing “$22” wherever it appears and substituting “$28”.”
MRS MIRIAM LAU (in Cantonese): Mr President, I move that the Secretary for Health and Welfare’s motion be amended as set out in the Order Paper.
Last year, the Government tabled its original proposal of increasing the Traffic Accident Victims Assistance (TAVA) Fund levies on vehicle owners and motorists by 60% in 1994 and by another 60% in 1995. After the debate held in January this year in this Council, it was approved by an overwhelming majority that the levies would only be increased by 35%, or more accurately, by 37.5% in 1994, and by another 30% with effect from 1995. Now the Government comes back to us by proposing to increase the levies for the current year by a further 27% with effect from 15 July and to add a further 31% on top of the increase scheduled for early next year. The rationale as put forward by the Government is that the Fund is already on the verge of insolvency and the Fund will become inoperative if no replenishment is available. My amendment today is very simple. It aims at approving the proposed increase for 1994 only.
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Mr President, I am not moving the amendment to embarrass the Government. I feel most discontented with the ossified attitude of the Government when it comes to the basis for determining the rate of contribution to the Fund and the operation mechanism of the Fund. The Government refuses to consider the objective situation and ignores all comments from the Members. To be bent on having its own way is absolutely not the hallmark of an open government.
The rationale for the Secretary for Health and Welfare to move this motion is basically the same as that presented to us half a year ago. In the debate held in January, many Members of this Council pointed out the incongruities of this government policy and requested the Government to conduct a comprehensive review. In the same debate, the Honourable Andrew WONG (he is still here today) sided with the Government by saying that the increase would not actually be a burdensome amount for car owners and motorists and that the increase of levies would obviate the need to increase the commitment from public funds and hence the expenditure on other welfare programmes would not have to be cut. I would like to take this opportunity to respond to the arguments of Mr WONG. Has Mr WONG ever thought carefully to see if it is a long-term solution to increase the levies incessantly? Information reveals that even if the motion is passed today, the Fund will be in the red again in 1997. Are we to increase the levies again in 1997 to replenish the Fund? Furthermore, the Government may have underestimated the disbursements payable out of the Fund in the coming years since, in the past three years, the expenditure of the Fund went up at an annual rate of over 23%. It is therefore puzzling for the Government to estimate that the expenditure of the Fund will rise by an annual rate of a mere 9% to 10% in the next few years. If the expenditure of the Fund increases at a rate similar to the rate in the previous year, then the Government may have to propose another levy increase well before 1997 (probably at the end of 1995 or in 1996). In fact, the entire TAVA Fund is riddled with operational and management problems and that entails a lot of unnecessary waste. I will elaborate on that point later on. In view of this, the crux of the matter, I believe, is not the rate of increase because increasing the TAVA levies alone can never root the problem out but will only subject the Fund to a vicious circle in which the motorists and the vehicle owners are not being fairly treated. I have pointed out in many previous debates that even a slightly high rate of increase is acceptable so long as the increase is reasonable and justifiable. However, if there is no justifiable ground, then we, the Councillors, should oppose even the most trivial increase. This is the approach which should be upheld by every Councillor.
The following is a recapitulation of the problems currently faced by the Fund. I use the word “recapitulation” because these problems were discussed in detail in the debate held in January.
The first problem is the inefficient operation of the Fund. Information reveals that the administrative cost necessary for the operation of the Fund accounts for about 15% of the disbursements. It is incredible that an
HONG KONG LEGISLATIVE COUNCIL ― 6 July 1994 5105
administrative cost to the tune of over $10 million is required to administer an assistance fund which pays out just over $70 million of assistance. It is said that even with the installation of a computer system, only a minute $1 million can be saved. As an emergency assistance fund whose main function is to pay out from the fund, is it necessary to have such a giant administrative structure, or to incur so many unnecessary expenditure items, for example, the entire Fund is administered by the Social Welfare Department while the income is collected by the Transport Department? The cumbersome administrative structure is the very possible cause for waste of resources. The Government should conduct even more insightful studies with a view to minimizing the administrative expenditure and improving the efficiency of the operation of the Fund. Nevertheless, the Government turns a deaf ear to the requests and opinions made by Members and not even the slighest progress has ever been made in the operation of the Fund for more than six months.
The second problem is the exceptionally low refund rate of the Fund. The information provided by the Government indicates that the refund rate stands at about 16%. If the Government holds the view that motorists and vehicles owners should be responsible for over 80% of traffic accidents, why is the recovery rate as low as 16%? The Government points out that more than $20 million is required if a legal team is to be set up to enquire into the refund cases and to sue for recovery. It is therefore concluded that this arrangement is not cost effective. The fund is set up to provide speedy financial assistance to traffic accident victims. It is just irrational for the Government to, on the one hand, deny the scheme as a kind of social welfare while, on the other hand, make disbursements indiscriminately without bothering to recover some from the involved parties or the insurance companies, because all vehicle owners have taken out third party insurance. The Government even intimidates us by saying that the premium will have to go up if it has to claim for recovery from the insurers. Can the Government provide evidence to prove that the insurance companies are earning more money because they are not being sued for compensation? I really have no idea as to whether the Government is protecting the interests of the public or the interests of the insurance companies! In fact, if the refund rate can be pushed up, the income derivable from this source cannot be underrated. If a major portion of the disbursements can be recovered from the insurance companies, the Fund can be maintained at a healthy state without further injection of funds or further levies on car owners and motorists. The Government’s claim that an administrative cost to the tune of $20 million will be required to recover the disbursements is open to question since it is not the case that every claim has to be brought before the court. Why can the Government not adopt a more proactive approach? As to the analysis for determining cases which are worth taking action on to claim for recovery, has the Government ever considered the possibility of seeking assistance from the Legal Aid Department?
The third problem lies in the rate of contribution to the Fund by vehicle owners and motorists. During the last debate on this issue, many Members levelled strong criticizm against the Government for its unilateral and unfair
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move of slashing its contribution from one-third to one-fifth, and requested the Government to review its contribution. But the Government seemed to have disregarded the opinions of Honouable Members.
Members of this Council have on a number of occasions objected to the Government’s views and proposals in this respect, but it is a pity that the Government does not pay any regard to the opinions of Members but insists on its proposal of raising levies. The Government claims to have conducted a review but, in reality, the Government is only harping on the same old string it played half a year ago, with nothing new in its arguments. It is therefore very disappointing that we are not seeing any positive steps taken by the Government on this issue.
Mr President, the Liberal Party supports the operation of the Fund and does not want to see the Fund run into financial hardship, which may render the victims of traffic accidents unable to obtain compensation. Therefore we reluctantly accept the proposed increase for July 1994, so as to facilitate the continued operation of the Fund in 1994. However, we would stand adamantly by our principle and strongly request the Government to review in full and in a serious manner the basis for determining the rate of contribution to and the operation of the Fund and to remove all unfair and unreasonable elements from the scheme, so as to enhance the healthy development of the Fund. Therefore, I move to freeze the further increase proposed for 1995 for the time being, in order to press the Government into taking a more practical approach to identify the long-term solutions in the next few months. I do not expect that my amendment today will be passed because I have just heard that many Members of this Council, including those from the United Democrats of Hong Kong and the Meeting Point (except Dr the Honourable LEONG Che-hung) will change tack to support the Government. Notwithstanding this, the Liberal Party will still insist that the Government conduct a full-scale review in this regard and refrain from laying all the responsibility on vehicle owners and motorists.
With these remarks, Mr President, I move the amendment.
Question on the amendment proposed.
DR LEONG CHE-HUNG: Mr President, I rise to support the amendment to the resolution as proposed by my honourable colleague, Mrs Miriam LAU.
In doing so, I am expressing my reservations on the attitude of the Administration on this scheme and the way the scheme has been handled. Furthermore, by adopting Mrs LAU’s amendment we will be able to keep the scheme temporarily afloat for an adequate period of time for the Government to come up with a more workable solution.
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So let me stress that in supporting Mrs LAU’s amendment, I am expressing my own position and, as Mrs LAU has mentioned, not necessarily that of the Meeting Point.
Some in this Chamber, in particular Mr Andrew WONG, have argued, and no doubt will continue to argue, that the increase in levy on each motorist is a very small amount. But Mr President, it is not the actual amount, but rather the principle behind that matters. Although, Mr President, I have no statistics, but I am confident that I am speaking for the feelings of many, many motorists in Hong Kong, of whom I have to declare my interest as one.
My reasons for objecting to the proposed resolution by the Government are as follows:
Firstly, in January this year, some Members of this Council already expressed their reservations about this proposal and the Administration was requested to reconsider and to make necessary alterations. Yet, Mr President, six months down the line the proposal remains basically unchanged.
Secondly, in all the papers presented to this Council by the Government concerning the TAVA Scheme, the Administration have stressed that the income for TAVA Fund is drawn principally from three sources, namely, levies on vehicle licensing, levies on driving licences and contributions from General Revenue. Ironically, repeatedly the Government refuses to address that income should legitimately also come from another source, which is recovery from compulsory third party insurance for each motor vehicle.
The fact remains that although, for example, in 1993 the total premium collected for third party insurance was more than $300 million, the amount claimed by TAVA applicants was just around $5 million. It was actually most disappointing to hear the Secretary again making excuses for not taking into effect the recovery from insurance policies.
So hiding behind excuses of the fact that claiming from the insurance company would entail high legal costs and that the insurance company may retaliate by increasing the third party premium the Government is, in essence, telling the public that the Government will not or has no ability to stand up to the insurance giants who could get away with anything and at the same time holding the Government and the motorists at ransom. The only way, as it would imply, that the Government would do, would be to plough deeper into the purse of each defenceless motorist.
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Mr President, this anti-Robin Hood attitude leaves a lot to be desired and makes a mockery of the principle behind the third party insurance policy. The Government must show the people of Hong Kong its care and concern through proper leadership and direction, and not just imposes a high levy on the silent majority whenever it faces a financial crisis.
With these words, I support Mrs LAU’s amendment.
MRS ELSIE TU: Mr President, just a few words.
I am not a motorist so I have no interest to declare, but I was a prime mover in this scheme and the scheme was set up for the sake of those who had accidents and no fault could be shown. It is a no-fault accident scheme. I can see the scheme gradually moving towards all-fault on the motorists and therefore I am going to support the amendment because I do not think it is fair to them.
MR WONG WAI-YIN (in Cantonese): Mr President, I believe that no Hong Kong person, or no one for that matter, would like to see the occurrence of any traffic accident because someone may get injured in the traffic accident no matter who is right or who is wrong and no matter whether the vehicle owners or the pedestrians have been at fault. The injured person may be slightly or seriously hurt or he may lose his working ability or have to be hospitalized for a long period, thus making his family suffer from financial difficulties.
The greatest advantage of the Traffic Accident Victims Assistance (TAVA) Fund is the provision of immediate assistance regardless of where the fault lies so that the injured, especially those coming from the low-income families, can receive some immediate financial assistance. If the injured person is the bread winner of his family, the financial assistance will help them enormously. Therefore, the United Democrats of Hong Kong (UDHK) and the Meeting Point are definitely reluctant to see the cessation of assistance provided by the Fund for any particular reason because this will be very unfavourable to some of the injured persons, especially those from the low income stratum.
In fact, a debate on the same subject was held early this year. At that time the Government proposed double-phased increases in the levies, with a 60% rise in each phase. Since this Council considered the increases too high and unreasonable, it was agreed that the increases in the two phases should be adjusted to 35% and 30% respectively. At that time both the UDHK and Meeting Point supported this amendment because the increases originally proposed were indeed too high. In addition, we also asked the Government to conduct a comprehensive review, the findings of which have already been circulated to Members for reference. Although the UDHK and Meeting Point do not fully support some particular points in the review, we still offer our support precisely because we endorse the importance of the Fund and the
HONG KONG LEGISLATIVE COUNCIL ― 6 July 1994 5109
principle of its establishment and would not like to see that some families might be affected due to the delay (probably short of complete cessation of operation) in payouts from the Fund because of a lack of financial resources. For this reason, the Meeting Point and the UDHK will support the Government’s proposal.
The Government has proposed a total of five options. The first, second and third options include revising the coverage of the assistance scheme, lowering the level of financial assistance provided by the scheme and requiring applicants to make income declaration. The Meeting Point and the UDHK definitely will not support these three options because the amount of financial assistance payable to the victims will be restricted and their families will be directly affected. I learned that Mrs Miraim LAU had proposed a means test when she first drew up her amendment. Yet, she did not mention this proposal in her speech today. I do not know whether the Liberal Party will insist on holding a means test. If the Liberal Party does so, the UDHK and the Meeting Point will definitely oppose it. We will not support the idea of a means test.
Why do the UDHK and the Meeting Point support the Government’s motion this time? I have to stress that this is not a question of changing stance. As I said just now, we are not fully satisfied with the Government’s review. On different occasions, such as at meetings held by the Transport Panel, we did talk with the officials involved about several issues of our concern, in particular on the question whether the Government will increase the contribution to the Fund from General Revenue. This is a point we can discuss further. Some colleagues have, in fact, mentioned the alleviation of drivers’ and vehicle owners’ burden by raising the level of government contribution from General Revenue. However, this will mean, in other words, subsidizing vehicle owners and drivers out of the taxpayers’ pocket (According to statistics provided by the department concerned, the percentage of traffic accidents caused by negligence on the part of the pedestrian is declining. We have to trust the findings of the police that there has been a downward trend of traffic accidents where pedestrians are at fault). Of course, if we totally regard the Fund as a kind of welfare instead of looking at it according to an objective standard, it is feasible for the Government to contribute more to the Fund, which should, in turn, depend on whether our colleagues in this Council will support raising the level of contribution from General Revenue (taxpayer’s money) to the Fund. In doing so, we are, to a certain extent, subsidizing drivers or vehicle owners.
Furthermore, the point arousing our greatest concern is the excessive administrative costs of the assistance scheme. We are glad to see that the Government has tried hard to keep the costs down but it seems that the decrease does not meet our expectation. I hope very much the Government will keep on conducting specific studies and should not rest on its oars once it has won our colleagues’ support this time. I hope the Government will spend some more time on studying the feasibility of further lowering the administrative costs.
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Further still, quite a number of colleagues have also shown their concern about lodging claims for compensation against insurance companies. To a certain extent, this scheme will discourage some people from lodging claims against insurance companies. There are, of course, many other objective factors which discourage these people from doing so because their premia may increase after they have lodged their claims. They will do the calculation to see whether it is worthwhile. I hope the Government will later provide a guarantee in respect of this issue. I know that the Government has all along been discussing this issue with the insurance industry but they, maybe due to insufficient time, have not yet come to any specific conclusion. For this reason, we support the original motion, hoping that the Government can be given more time. In this connection, the Government can have sufficient time to hold further discussions on insurance compensation with the insurance industry or may introduce some measures to improve performance in this area. The UDHK and Meeting Point support the proposed increased in July this year and January next year mainly for the sake of allowing the Government more time. If it be otherwise, after the present increase in levies, it will be just four to five months before November will be upon us. I am worried that another dispute will arise if the Government does not have sufficient time to discuss with the insurance industry.
I hope the Government will later give a specific guarantee in its reply that the it will not procrastinate over the issue once this Council has allocated sufficient funds to the scheme because in 1997 the Government may use the same excuse again to claim that there is a lack of financial resources. This is not what we would like to see.
To lodge claims for compensation against insurance companies is a very hard task. We all know that it may take a very long time for the people concerned to recover compensation from an insurance company. We do hope that the insurance industry can sincerely co-operate with the Government by compensating the insured so that there will be an indirect increase in the operational fund of the scheme.
Mr President, I would not spend too much time speaking on the TAVA Fund. I would like to reiterate the stance of the UDHK and Meeting Point. We would not hope that the operation of the Fund would be hindered and the issue of compensation be delayed owing to other problems. In addition, we look forward to hearing the Government giving a guarantee in its reply later that a further review to make up for the deficiencies in the present review will take place as soon as possible. I hope the Government will not delay the submission of the review report until the very last moment when further adjustment of the levies will be necessary. We would like to have a detailed and comprehensive review report within one year for our examination and discussion. Only be doing so can Members put forward more views on the long-term development of the Fund and the necessity of modifying the scheme. As a result, we will enable the Fund to be operated more effectively and, unlike what happened this year, we need not hold as many as two to three debates on the TAVA Fund.
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PRESIDENT: Elucidation, yes.
MRS MIRIAM LAU (in Cantonese): Will Mr WONG elucidate his point, was he saying that the amendment which I moved to the motion would create obstacles or hindrance to the Fund? I think he said “hindrance”.
PRESIDENT: It is up to you whether you elucidate, Mr WONG.
MR WONG WAI-YIN (in Cantonese): Mr President, I did not say that the Liberal Party’s amendment will mean a hindrance to the Fund, but Mrs LAU’s amendment will be of no significant help to the operation of the Fund. We, the Meeting Point and the UDHK, hold the view that the Fund must go on. We hope very much that more time can be given to the Government to have further negotiations with the parties concerned and strive for greater improvements.
MR ERIC LI (in Cantonese): Mr President, I rise to support the Government’s original motion and hope that my colleagues will vote against Mrs Miriam LAU’s proposed amendment. When the Government first introduced the proposal to this Council, I already showed my support for it. So I have not changed my stance. At that time my argument was that the major precondition should be protection for the innocent traffic accident victims and, as to where the money should come from, we could take time to talk it over. Now I still insist that this is the most important point for consideration. I believe that Members who have risen or will rise to speak on this motion today have not objected to the argument that one must protect the victims.
Mrs Miriam LAU has said that the Government is harping on the same old string after a lapse of six months. Such an argument may not be absolutely fair to the Government because it has done a great deal within these six months. It has furnished Members with many figures and put forward a number of options. I also made an appointment with the Secretary for Health and Welfare to discuss with her in detail all the options. After discussion, I found that it was not easy to change their view.
There is a certain reason in the comment made by Mrs Miriam LAU just now but she did not put forward other feasible solutions. Furthermore, I think the figures she cited may not be enough. We, of course, hope that the Government will cut down its expenditure and we agree that the administrative costs are too high. However, I think this should be a long term job to be given to the Director of Audit. I believe today’s debate has already aroused the attention of the Director of Audit.
The most controversial point in this debate is where the money should come from. At present the Government depends on vehicle owners, drivers and
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taxpayers for the financial support. Members may have diverse opinions on the proportion of contributions. However, just now Mrs Miriam LAU raised the question as to whether insurance companies should make some contributions. Of course, it may be easy for insurance companies to look on with folded arms. My understanding is that the compensation normally involves merely a small sum of money but, in case a lawyer has to be hired to institute legal proceedings or a considerable number of administrative staff are needed to handle the case, the administrative costs required may far exceed the compensation recovered from the insurance company.
In addition, it seems that many Members did not mention one issue, that is, insurance companies are commercial firms. After all, one will pay for whatever one is given. If we ask insurance companies to shoulder some costs, it may eventually lead to a rise in insurance premiums. Who should pay the premiums? Vehicle owners or drivers? We have apparently taken a 360-degree turn back to where we started but the one to shoulder the cost remains unchanged.
My argument six months ago is the same as my argument today. I still hope that we should regard protection for the innocent accident victims as the major precondition.
I support the Government’s original motion.
MR ANDREW WONG (in Cantonese): Mr President, I did not intend to speak today. However, I am honoured that my name has been mentioned together with the United Democrats of Hong Kong, and thus naturally I have to make a brief response.
Same as Mr Eric LI, I have not changed my stand. In fact, if I find that I am wrong after review, then it is not wrong to change stand. However, after review, I find that I am not in the wrong. It is not my argument that the sum concerned is trivial. My argument is actually against the overall arrangement. I think that the Fund should not be regarded as a kind of welfare, but as the pedestrians’ responsibility. Thus it should not be contributed to out of general revenue. I always agree with that arrangement. At present, most income of the Fund comes from vehicle owners the motorists, which I think is generally correct. If there is not a better approach, I think it should continue.
When the question first arose, I already asked Members not to argue during the Transport Panel meeting. In the January debate this year, once again I asked Members not to waste time arguing over that issue. But eventually, the Government was required to conduct a review. And now, Mr WONG Wai-yin is even asking for another review. If the amendment of Mrs Miriam LAU is endorsed, then in addition to reviews in January and July this year, we will have yet another review in January next year. Have we got a lot of time to waste?
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Let me once again remind Members. The existing levy is $66. Even if the levy is increased to $114 by January 1995, it will only be $48. At present, the cheapest car parking fee is $8 per hour. Thus one can only park a vehicle for six hours with $48. $48 is only enough for watching a movie or a soccer match. I have with me here my driving licence of which the three-year period of validity will expire on 30 July. I could have renewed my licence four months before the expiry date, but I did not do so. I will renew the licence when the expiry date is drawing near. I hope that Members will not waste so much time. It is a good thing seriously reviewing the overall policy. But if the review has been completed by the Government, then in the absence of better recommendations from Members, it would indeed be unnecessary to review the matter once again thus wasting our time every six months. I deem it totally not worthwhile.
Mr President, I support the original motion of the Government. I express my support not because I belong to the “Government Party”. Similarly, I oppose the amendment moved by Mrs Miriam LAU not because I am against the Liberal Party.
SECRETARY FOR HEALTH AND WELFARE: Mr President, I do appreciate the comments and suggestions offered by Honourable Members in this debate and would like to make a further response. It appears that some of the comments made just now have not taken into account the points which I have just highlighted in my earlier speech, nor my undertaking to keep the Scheme under review. The Honourable WONG Wai-yin’s suggestions in this regard would be helpful towards that end. If the amendment to my motion now proposed by the Honourable Mrs Miriam LAU were carried, I would have to, as the Honourable Andrew WONG pointed out, come before this Council again in but a few months’ time for the same purpose, because without the proposed increase in levies in January 1995, the TAVA Fund could only last until next February/March.
Contribution from General Revenue
It has been argued that the Government should make a greater contribution to the TAVA Fund and that it is unfair to ask vehicle owners and drivers to pay higher levies on their licences. We have considered this point very carefully in our review.
When the TAVA Scheme was set up in 1979, it was considered that as the presence of vehicles gave rise to traffic accidents in the first place, vehicle owners and their drivers should bear the brunt of the cost of the Scheme through levies on vehicle and driving licences. However, it was also accepted that pedestrians were responsible in some cases and that the Scheme had a welfare element. Thus a contribution from General Revenue to reflect the percentage of traffic accidents caused by pedestrian negligence was also considered appropriate. As I mentioned earlier, the contribution was originally
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set at one-third of the total cost of the Scheme. It was based on statistics provided by the police that 30% to 35% of traffic accidents from 1973 to 1977 had been caused by pedestrian negligence. The review conducted in January 1992 showed that the percentage of traffic accidents caused by pedestrian negligence had by 1990 dropped to just over 20%. It was on this basis that the contribution was reduced to one-fifth of the total cost of the Scheme.
Revision of levies
Since the TAVA Fund was first set up in 1979, the levies have only been revised three times. The annual levies for vehicle and driving licences were first set respectively at $75 and $25 in 1979 and were reduced to $30 and $10 in 1982, thanks to the then healthy financial position of the Fund. The annual levies were increased to $48 and $16 in 1991 and then to $66 and $22 in January 1994.
For some 15 years of its operation, the TAVA Scheme has provided much needed relief to traffic accident victims and their families. The amount that vehicle owners and drivers have to pay for this Scheme is considered small and manageable.
In any case, the levies proposed in my motion amount to only an additional $18 and $6 a year for this year and a further $27 and $9 a year for next year. It is really quite a small contribution to make to help comfort those suffering from the trauma of traffic accidents, especially those from low-income families.
The proposed increases provide a viable and practical solution to the funding problem of the TAVA Scheme. They will maintain the TAVA Fund in a balanced state until 1997-98 before further adjustment of levies is required. Meanwhile, as I undertook just now, we will continue to keep the Scheme under review and to explore all possible ways to improve the financial position of the Fund, to reduce the administrative cost, and to vigorously consider how in practical ways the insurance industry could contribute to the Fund.
Mr President, it is my public duty to seek appropriate funding from appropriate and legitimate sources for the continued operation of a good scheme, and TAVA is a good scheme. I look forward to Honourable Members’ support.
Thank you, Mr President.
Question on the amendment put.
Voice vote taken.
MRS MIRIAM LAU: I claim a division.
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PRESIDENT: Council will proceed to a division.
DR CONRAD LAM (in Cantonese): Mr President, I would like to declare interest before the voting. I am a salaried director of a motor vehicle insurance company. Therefore, I will abstain from voting.
MR ANDREW WONG: Mr President, I do not think Dr Conrad LAM needs to abstain from voting. Would you rule if that is direct pecuniary interest? If he wishes to abstain, that is his choice.
PRESIDENT: Strictly, I do not think your directorship amounts to a direct pecuniary interest, so you are not obliged to abstain, Dr Conrad LAM. It is entirely up to you.
PRESIDENT: Will Members please proceed to vote.
PRESIDENT: Are there any queries? If not, the results will now be displayed.
Mr Edward HO, Mr Ronald ARCULLI, Mrs Peggy LAM, Mrs Miriam LAU, Mr LAU Wah-sum, Dr LEONG Che-hung, Mrs Elsie TU, Mr Peter WONG, Mr Moses CHENG, Dr LAM Kui-chun, Mr Steven POON, Mr Henry TANG, Mr Howard YOUNG, Mr James TIEN and Mr Alfred TSO voted for the amendment.
The Chief Secretary, the Attorney General, the Financial Secretary, Mr PANG Chun-hoi, Mr SZETO Wah, Mr TAM Yiu-chung, Mr Andrew WONG, Mr Martin BARROW, Mr Jimmy McGREGOR, Mr Albert CHAN, Mr CHEUNG Man-kwong, Rev FUNG Chi-wood, Mr Frederick FUNG, Mr Timothy HA, Mr Michael HO, Dr HUANG Chen-ya, Mr Simon IP, Mr LAU Chin-shek, Miss Emily LAU, Mr LEE Wing-tat, Mr Eric LI, Mr Fred LI, Mr MAN Sai-cheong, Mr TIK Chi-yuen, Mr James TO, Dr Samuel WONG, Dr YEUNG Sum, Mr WONG Wai-yin, Miss Christine LOH, Mr Roger LUK and Ms Anna WU voted against the amendment.
Dr Conrad LAM and Dr Philip WONG abstained.
THE PRESIDENT announced that there were 15 votes in favour of the amendment and 31 votes against it. He therefore declared that the amendment was negatived.
5116 HONG KONG LEGISLATIVE COUNCIL ― 6 July 1994
Question on the original motion put.
Voice vote taken.
MRS MIRIAM LAU: Mr President, I claim a division.
PRESIDENT: Council will proceed to a division.
PRESIDENT: Would Members please proceed to vote?
PRESIDENT: Are there any queries? If not, the results will now be displayed.
The Chief Secretary, the Attorney General, the Financial Secretary, Mr PANG Chun-hoi, Mr SZETO Wah, Mr TAM Yiu-chung, Mr Andrew WONG, Mr Martin BARROW, Mrs Peggy LAM, Mr Jimmy McGREGOR, Mrs Elsie TU, Mr Albert CHAN, Mr CHEUNG Man-kwong, Rev FUNG Chi-wood, Mr Frederick FUNG, Mr Timothy HA, Mr Michael HO, Dr HUANG Chen-ya, Mr Simon IP, Mr LAU Chin-shek, Miss Emily LAU, Mr LEE Wing-tat, Mr Eric LI, Mr Fred LI, Mr MAN Sai-cheong, Mr TIK Chi-yuen, Mr James TO, Dr Samuel WONG, Dr Philip WONG, Dr YEUNG Sum, Mr WONG Wai-yin, Miss Christine LOH, Mr Roger LUK and Ms Anna WU voted for the motion.
Mr Edward HO, Mr Ronald ARCULLI, Mrs Miriam LAU, Mr LAU Wah-sum, Dr LEONG Che-hung, Mr Peter WONG, Mr Moses CHENG, Dr LAM Kui-chun, Dr Conrad LAM, Mr Steven POON, Mr Henry TANG, Mr Howard YOUNG, Mr James TIEN and Mr Alfred TSO abstained.
THE PRESIDENT announced that there were 34 votes in favour of the motion and no vote against it. He therefore declared that the motion was carried.
First Reading of Bills
WILLS (AMENDMENT) BILL 1994
INTESTATES’ ESTATES (AMENDMENT) BILL 1994
INHERITANCE (PROVISION FOR FAMILY AND DEPENDANTS) BILL CARRIAGE OF GOODS BY SEA BILL
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SEWAGE SERVICES BILL
Bills read the First time and ordered to be set down for Second Reading pursuant to Standing Order 41(3).
Second Reading of Bills
WILLS (AMENDMENT) BILL 1994
THE SECRETARY FOR HOME AFFAIRS moved the Second Reading of: “A Bill to amend the Wills Ordinance.”
She said: Mr President, I move that the Wills (Amendment) Bill 1994 be read a Second time.
This Bill is the first of three related Bills I am introducing into this Council today. The others are the Intestates’ Estates (Amendment) Bill 1994 and the Inheritance (Provision for Family and Dependants) Bill. Taken together, these three Bills amount to the first comprehensive overhaul of Hong Kong’s law of inheritance in over 20 years. They seek to bring the law in this area up to date and remove legal anomalies that have emerged over the years. The three Bills are based on recommendations of the Law Reform Commission in its Report on the Law of Wills, Intestate Succession and Provision for Deceased Persons’ Families and Dependants. The recommendations of the Law Reform Commission are based on a thorough examination of the principal Ordinances concerned and wide-ranging consultation with interested parties.
The main aim of the Wills (Amendment) Bill 1994 is to relax the formalities for making wills and to give the court new powers to validate, interpret and rectify wills. It also provides for the relevant part of the International Convention on Wills to be incorporated into the Wills Ordinance to enable wills made in accordance with the Convention to be executed and have validity in Hong Kong.
Clause 3 of the Bill repeals and replaces sections 3 to 6 of the principal Ordinance. It provides that a married person may validly make and revoke a will even though he or she has not attained full age. It also relaxes the current formalities required for the valid execution of a will and provides for the court to have a general dispensing power to admit to probate a will that expresses the testamentary intentions of the deceased, even though it is not executed in accordance with the required formalities.
Clause 5 repeals and replaces sections 13 to 15 of the principal Ordinance. The new section 14 relaxes current stringent provisions on the revocation of a will by a subsequent marriage.
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Clause 9 adds five new sections to the principal Ordinance. The new sections provide the court with new powers to correct a will that fails to carry out the testator’s intentions because of either a clerical error or a failure to understand his or her instructions, and to admit extrinsic evidence to facilitate the interpretation of a will.
Clause 10 adds two subsections to section 30 of the principal Ordinance. They provide for the validity of wills made before the commencement of this Bill to be unaffected and, subject to this, for the amendments introduced by this Bill to apply only to wills of testators that die after its commencement.
Clause 11 creates a new Schedule to the Wills Ordinance containing the Annex to the Convention on International Wills, which provides for a uniform law on the form of an international will.
Bill referred to the House Committee pursuant to Standing Order 42(3A).
INTESTATES’ ESTATES (AMENDMENT) BILL 1994
THE SECRETARY FOR HOME AFFAIRS moved the Second Reading of: “A Bill to amend the Intestates’ Estates Ordinance.”
She said: Mr President, I move that the Intestates’ Estates (Amendment) Bill 1994 be read a Second time.
As I indicated in moving the Second Reading of the Wills (Amendment) Bill 1994, this Bill is based on recommendations of the Law Reform Commission on reform of the law of inheritance in Hong Kong.
The Intestates’ Estates Ordinance provides for the distribution of the estate of an intestate, that is, someone who dies without a will or whose will deals with only part of his or her estate. The assumption behind the Ordinance is that people who die intestate would wish their estate to be inherited by their close relatives, with preference given to their surviving spouse and children, if any.
The main effect of the Bill is to improve the inheritance position of a surviving spouse.
Clause 2 of the Bill repeals two discriminatory provisions of the principal Ordinance. These are that a child of a female includes a child of a valid marriage to which her last husband and another female were parties and that references to a brother or a sister of a person mean a brother or sister who is a child of the same father as that person.
Clause 3 amends section 4 of the principal Ordinance. The amendments provide for the surviving spouse of an intestate to receive the couple’s personal
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possessions automatically. They also provide that where there are surviving children, a surviving spouse will be entitled to a statutory legacy of $500,000, instead of $50,000 as at present, plus half of any remaining estate. The children will receive the other half as at present. Where there are no surviving children, but there are other surviving relatives, the entitlement of the surviving spouse is set at $1 million, instead of the current figure of $200,000, plus half of any remaining estate. These amounts were last amended in 1983 and have been considerably eroded by inflation.
Clause 5 repeals and replaces sections 6 and 7 of the principal Ordinance. The new section 7 gives the surviving spouse of an intestate the right to acquire the matrimonial home. The manner in which a surviving spouse may purchase the matrimonial home is covered by clause 11.
Clause 7 adds a new section 8A to the principal Ordinance. This provides that where a surviving spouse or any other person acquires under a foreign law of intestacy any interest in the intestate’s estate, the interest shall be taken into account when determining the shares of the estate that the persons should receive.
Clause 8 repeals section 11 of the principal Ordinance, which provides for the principal Ordinance not to apply to land in the New Territories that has not been exempted from Part II of the New Territories Ordinance. This section has been rendered redundant with the enactment of the New Territories Land (Exemption) Ordinance 1994. For the same reason, clause 13 provides for the repeal of sections 75(1)(a) and 75(3) of the Probate and Administration Ordinance.
Clause 9 repeals and replaces section 13 of the principal Ordinance. The new section provides for a presumption that the female partner of a legally entered union of concubinage has, during the lifetime of the male partner, been so accepted and recognized by his family.
Bill referred to the House Committee pursuant to Standing Order 42(3A).
INHERITANCE (PROVISION FOR FAMILY AND DEPENDANTS) BILL
THE SECRETARY FOR HOME AFFAIRS moved the Second Reading of: “A Bill to make provision for empowering the court to make orders for the making out of the estate of a deceased person of provision for certain members of that person’s family and dependants of that person, and for connected matters.”
She said: Mr President, I move that the Inheritance (Provision for Family and Dependants) Bill be read a Second time.
5120 HONG KONG LEGISLATIVE COUNCIL ― 6 July 1994
This is the last of the three Bills I am introducing into this Council today to effect a general reform of the law of inheritance based on recommendations of the Law Reform Commission. The other two Bills are amending legislation. The Inheritance (Provision for Family and Dependants) Bill is a stand alone Bill to replace the Deceased’s Family Maintenance Ordinance. Like the Ordinance it seeks to replace, the Bill provides for the court to order reasonable financial provision from the estate of a deceased for certain classes of person on application. In effect, it provides a safety net for deserving persons who may have been overlooked in a will or have not been properly catered for under the law of intestacy.
The main effects of the Bill are to widen the scope of persons eligible to apply for financial provision from a deceased’s estate and to give the court greater power to facilitate the making of such financial provision.
Clause 3 of the Bill defines the scope of persons eligible to apply to the court for financial provision from a deceased’s estate. The main change compared with the Deceased’s Family Maintenance Ordinance is the inclusion of a new class of persons who were dependent, either wholly or partially, on the deceased immediately prior to his or her death.
Clause 4 lists the types of order that a court may make in favour of an applicant, including certain new types of order, such as the transfer to the applicant of properties comprised in the estate.
Clause 5 sets out the matters to which the court is to have regard in exercising its powers under clause 4. These include the financial needs of an applicant under the Ordinance and any beneficiary of the estate, and the size and nature of the net estate. In relation to an applicant from the new category of eligible persons who were dependent on the deceased, the court is required to have regard to the extent to which and the basis upon which the deceased assumed responsibility for the maintenance of the applicant. The court is also required to take into account the closeness of the relationship between such an applicant and the deceased.
Clause 6 provides that applications for financial provision from a deceased’s estate shall not, except with the permission of the court, be made later than six months after the date of the grant of the probate or letters of administration in respect of the deceased’s estate.
Clauses 12 to 15 are anti-avoidance provisions. They give the court certain powers to override financial arrangements by the deceased intended to defeat applications under this Bill.
Clauses 16 to 20 give the court powers to deal with financial arrangements in cases of divorce, annulment of marriage or judicial separation where an applicant under the Ordinance is the surviving spouse or former spouse of the deceased.
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Bill referred to the House Committee pursuant to Standing Order 42(3A).
CARRIAGE OF GOODS BY SEA BILL
THE SECRETARY FOR ECONOMIC SERVICES moved the Second Reading of: “A Bill to regulate liability in respect of the carriage of goods by sea.”
He said: Mr President, I move that the Carriage of Goods by Sea Bill be read a Second time.
The purpose of the Bill is to implement in Hong Kong the International Convention for the Unification of Certain Rules of Law Relating to Bills of Lading, also known as the Brussels Convention. This Convention sets out the conditions applicable to contracts for the carriage of goods by sea.
The Brussels Convention is now implemented in Hong Kong by applying the relevant United Kingdom legislation to Hong Kong. It is, however, necessary to enact local legislation to replace the United Kingdom enactments so that their legal effect will continue after 1997. This systematic localization of merchant shipping legislation has been underway for some years and has involved the enactment of primary and subsidiary legislation addressing such issues as marine pollution, shipping safety and the establishment of the Hong Kong shipping register.
The Bill before Members replicates the provisions of the United Kingdom legislation, with modifications only where necessary to conform to the circumstances of Hong Kong. It also includes provisions clarifying liability for loss due to unseaworthiness and the convertibility of units of account into Hong Kong dollars.
Mr President, the continued application to Hong Kong of the Brussels Convention will ensure that contracts relating to the carriage of goods by sea are governed by rules drawn up in accordance with international standards. The Bill, which ensures continuity of existing shipping practices and provides legal certainty for the shipping industry, will help enhance Hong Kong’s position as a trading and shipping centre.
Thank you, Mr President.
Bill referred to the House Committee pursuant to Standing Order 42(3A).
SEWAGE SERVICES BILL
THE SECRETARY FOR PLANNING, ENVIRONMENT AND LANDS moved the Second Reading of: “A Bill to provide for the imposition of sewage charges and trade effluent surcharges and other related matters.”
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He said: Mr President, I move the Second Reading of the Sewage Services Bill. The purpose of the Bill is to enable the introduction of a charging scheme to recover the operating costs of sewage services.
The seriousness of water pollution is a constantly recurring theme of public discussion in Hong Kong and once again a highly topical one now. Given the size of the problem, we have proposed a major new sewage services programme to deal with the two million cubic metres of wastewater which is presently discharged, most of it untreated, into the harbour every day. Members will recall that I set out the details of this programme and the sewage charging scheme during the motion debate in this Council on 1 December 1993.
Even for a carefully designed programme such as ours, new sewerage does not come cheap. In the coming four years, more than $12 billion will be spent on sewerage projects, including $8 billion on the principal sewage collection and treatment system which will curtail harbour pollution by 70%. It is appropriate that users of these essential services contribute something to the cost of the system, as residents in most modern cities do.
Members will recall that, during public consultations on the proposed sewage charges last year, there was encouraging support from the community and in this Council for the principle of charging. Moreover, and to keep charges at a modest level, the Government has made a commitment to meet the capital costs in full. Sewage charges are therefore intended to recover only the operating costs of the services and will, as a result, be modest by any reckoning.
The charging scheme proposed under the Sewage Services Bill seeks to reflect the polluter pays principle. Clause 3 of the Bill provides for the imposition of sewage charges on consumers whose premises are connected to public sewers. To enable an equitable distribution of service costs among users, we propose two charging elements ― a fixed charge and a variable charge. The fixed charge is to recover the cost of the operation and maintenance of the sewerage system. It will be determined by the consumer’s category and water meter size. The variable charge, which is to recover the sewage treatment cost, will be based on water consumption.
Clause 3 of the Bill also proposes to exempt low-user households ― those who use 13 cubic metres of water or less in a four-month billing period ― from sewage charges as under the present water tariff. About 17% of households will benefit from this exemption.
To keep the administrative costs of the proposed charging scheme down, under clause 3 of the Bill sewage charges will be incorporated in the water bills issued by the Director of Water Supplies. The existing billing system and consumer service unit for water services will be expanded for this purpose.
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Clause 4 of the Bill provides for the imposition of a trade effluent surcharge. The surcharge will reflect the additional cost of providing treatment for the more polluting trade effluents. It is a common feature of similar charging schemes elsewhere and industry has agreed in principle to such a surcharge.
If a sewage charge is not paid within a period specified in the payment notice, the Director of Water Supplies may, under clause 3 of the Bill, impose a penalty on the unpaid charges as if it were a charge under the Waterworks Ordinance. For an unpaid trade effluent surcharge, under clause 6 of the Bill, a penalty may be levied in accordance with the regulations to be made under the Ordinance. If the charges remain unpaid, the Director of Water Supplies may, at the request of the Drainage Authority, cut off water supply under clauses 3 and 4 of the Bill.
A sewage service user is required to notify the Drainage Authority of any change in the use of the premises for the purpose of calculating the sewage charge or the trade effluent surcharge. Failure to do so will be an offence and subject to a fine of $100,000 under clauses 3 and 4 of the Bill. Clause 7 of the Bill proposes that any unpaid charges as a result of information withheld or false statements submitted by a user may be recovered as a debt due to the Government.
Clause 9 of the Bill empowers the Drainage Authority to adjust a sewage charge or trade effluent surcharge. A service user may apply to the Drainage Authority for a review of any factor which may affect the charging level. Such factors may include an error in the water consumption or meter size record or a change in the user category, the strength of trade effluent or the volume of discharge used in determining the charge. Under clauses 14 and 15 of the Bill, a service user who is dissatisfied with the decision of the Drainage Authority may appeal to the Administrative Appeals Board.
To verify the information provided by a service user and to measure the volume of discharge or collect samples of trade effluent, the Drainage Authority may enter premises and install equipment. Clause 10 of the Bill provides that anyone who tampers with equipment installed by the Drainage Authority will be liable to a fine of $10,000.
Clause 12 of the Bill enables the Governor in Council to make regulations to prescribe the charging rates and to establish the detailed arrangements for the charging scheme. A Technical Memorandum may be issued under clause 13 of the Bill to set out the procedures and methods for obtaining samples and other matters relating to the testing and analysis of trade effluent.
Mr President, the Bill aims to establish a public charging scheme to help recover the operating costs of sewage services. With wider public acceptance of the polluter pays principle, it should also help increase the environmental
5124 HONG KONG LEGISLATIVE COUNCIL ― 6 July 1994 awareness of the public. I commend the Bill to Members for their favourable consideration. Thank you, Mr President.
Bill referred to the House Committee pursuant to Standing Order 42(3A).
CRIMINAL PROCEDURE (AMENDMENT) BILL 1994
Resumption of debate on Second Reading which was moved on 4 May 1994 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).
MINOR EMPLOYMENT CLAIMS ADJUDICATION BOARD BILL Resumption of debate on Second Reading which was moved on 9 March 1994 Question on Second Reading proposed.
MR TAM YIU-CHUNG (in Cantonese): Mr President, statistics show that the Labour Tribunal has a backlog of nearly 3 000 cases, and it will take nine months on the average for a case listed to be heard to come before the Tribunal. This has caused resentment among the labour sector. The Government’s proposal for the Minor Employment Claims Adjudication Board to be set up is meant to alleviate the pressure on the Labour Tribunal by taking claims below $5,000 away from the Tribunal for adjudication before a different forum. This will shorten the waiting time for the hearing of the claims. I am in support of this in principle. However, I am somewhat worried that the Adjudication Board might not be truely able to improve protection for the employees if the Government does not improve the mode of operation of the Labour Tribunal and the Adjudication Board.
Mr President, both myself and the trade unions have come across numerous complaints against unscrupulous employers who did not comply with the requirements of the Employment Ordinance. These employers, availing themselves of the loophole brought about by a huge backlog of cases and long listing delays, challenged the employees to institute claims. In doing do, a vicious circle of producing a bigger and bigger backlog of cases has thus been
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generated. Even when the Labour Tribunal awards judgement to the employee a year or so after the case was listed, it does not mean that the employee can actually receive the sum claimed. This is because the Labour Tribunal has done its job after the judgement. It will not follow up on whether the employee has received the amount claimed. The result is that many unscrupulous employers delay payment deliberately, and that is unfair to employees who have been successful in their claims.
Also, under the existing Employment Ordinance, the Labour Department is responsible for prosecuting employers who do not abide by the law. However, the Labour Department has not been keen on this. Moreover, the average fine for each summons is very small; in 1992 the average was $819; in 1993 it even dropped to $776, almost a 5% fall. Such fines are totally unable to deter people. Therefore, I think that in order to really improve protection for employees, the Labour Department must act more positively and step up prosecution action against employers who are clearly in breach of the Employment Ordinance. Otherwise, even with the setting up of the Minor Employment Claims Adjudication Board the problem cannot be completely solved. It would only be wasting taxpayers’ money.
Besides, under the Ordinance, the Adjudication Board can only deal with claims of not more than $5,000. I think that the median wage of Hong Kong workers is $7,000 already. Therefore, the upper limit for claims should be adjusted to $7,000 or above.
Mr President, with these remarks, I support the Bill.
MR LAU CHIN-SHEK (in Cantonese): Mr President, during the past few years, the efficiency of the Labour Tribunal which is responsible for the arbitration of labour disputes has been declining. Most of the cases to come before the tribunal experience a delay of nearly a year and a half before they are dealt with. This is unacceptable.
The establishment of the Minor Employment Claims Adjudication Board will certainly help to lighten the workload of the Labour Tribunal, and will also help the affected workers. It is a highly recommendable proposal worthy of unreserved support. Of course, it remains to be seen whether the Adjudication Board will live up to the expectations of the workers.
Whilst I support the Bill, I also propose, in respect to the operation mode of the Adjudication Board, three points for the Administration’s implementation.
First, the aim of the Adjudication Board should be similar to that of the Labour Tribunal when it was set up, which is to arbitrate labour disputes in a way that is “fast, inexpensive and simple”. Therefore, strict criteria should be set for the Adjudication Board to hear contested cases as soon as possible. The
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current criterion of having cases dealt with within 60 days should be shortened, for example, to within one month. This is vital to workers who are owed their wages.
Second, the Adjudication Board should establish its image as an impartial arbiter so that both employers and workers will recognize and accept the verdicts of the Board. In fact, as the proposed Adjudication Board is to be set up under the Labour Department, and at the same time the Labour Department is also responsible for the mediation of labour disputes, this may render the independence and impartiality of the Adjudication Board questionable. And this will affect the confidence of workers in the verdicts.
Third, the Bill is not clear enough in respect of the provisions on the representation of workers by trade unions in attending before the Adjudication Board. Disputes may arise therefrom in the future. The provisions only give the right to the employees to apply for representation by trade unions. But it is only limited to the making of an application, and it would be up to the adjudicator to give approval. There is no provision as to how the adjudicator shall exercise his discretion to approve. Therefore, I propose that this should be amended as soon as possible along with amendment to similar provisions relating to the Labour Tribunal in order to establish representation by trade unions. I urge the Administration to monitor closely the operation of the Adjudication Board and conduct a review six months to one year after the establishment of the Adjudication Board, in order to improve on the operation of the Adjudication Board and to make the system even better.
In fact, the most effective way to solve the problem of backlog cases before the Labour Tribunal would be to increase the number of temporary presiding officers to clear the backlog within a specified period.
Mr President, with those remarks, I support the motion.
SECRETARY FOR EDUCATION AND MANPOWER (in Cantonese): Mr President, I am grateful to Members for their support of this Bill. I am also grateful to the two Members who have just spoken on this Bill.
The purpose of establishing the Minor Employment Claims Adjudication Board is to help relieve the heavy backlog and caseload of the Labour Tribunal, and in doing so to shorten the time for adjudication and expedite the conclusion of these cases. We agree with Mr LAU Chin-shek that the adjudication of these case should be done in a “fast, inexpensive and simple” way. We also agree that a review should be conducted some time after the Adjudication Board has come into operation, and see whether any further improvement can be made. We shall try our best to uphold the just and impartial image of the Adjudication Board.
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As to whether the ceiling of $5,000, as mentioned by Mr TAM Yiu-chung, is too low or not, we can undertake to review the ceiling from time to time. We shall make adjustments to this ceiling accordingly should the operation prove that there is the need to do so.
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).
SUPREME COURT (AMENDMENT) BILL 1994
Resumption of debate on Second Reading which was moved on 30 March 1994 Question on Second Reading proposed.
MR ANDREW WONG: Mr President, the Supreme Court (Amendment) Bill 1994 seeks to amend the principal Ordinance to provide for the appointment and qualification of recorders of the High Court, that is, High Court judges who would be part-time but appointed on a regular basis, with a view to alleviating the problem of long waiting time for hearing of cases in the High Court.
Over the past few years, the waiting time for the hearing of cases in the High Court has increased considerably. In 1993, the average waiting times for criminal and civil cases were 210 and 218 days respectively. To assist in reducing the court waiting time in the High Court, and to encourage members of the local Bar to apply for appointment to the Bench, the Chief Justice has, from time to time, selected experienced barristers, normally Queen’s Counsel, for appointment as deputy judges (temporary judges) of the High Court for periods ranging from a few weeks to a year. However, this ad hoc arrangement has not proved very effective in attracting members of the local Bar to apply to join the Bench. Moreover, as most senior barristers are unable to commit themselves to judicial work for more than a few weeks, the ad hoc nature of the appointments has made it difficult for the Chief Justice to plan in a systematic way for the establishment of an additional court.
In an effort to make more extensive use of the expertise available in the private sector, the Hong Kong Bar Association put forward a proposal to establish a formal system of recordership, along the lines of the scheme currently operating in the United Kingdom, whereby barristers in private practice are appointed as part-time judges (recorders) to sit regularly in the High Court. This proposal was referred by the Chief Justice to a working group which was entrusted with the duty to consider the proposal. After carefully examining the proposal, the working group endorsed the Bar
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Association’s proposal and put forward certain recommendations concerning the qualifications, terms and method of appointment of recorders. The Supreme Court (Amendment) Bill 1994 seeks to incorporate the recommendations of the working group in recognizing in law a recordership system in the High Court.
A Bills Committee of which I was elected Chairman was set up to study the Bill. The Bills Committee held three meetings with the Administration and met with representatives of the Hong Kong Bar Association and the Law Society of Hong Kong.
The Bar Association welcomes the earliest possible start to the scheme given that it was first mooted in 1991 as a method of encouraging practitioners at the Bar to join the Bench and as a means of addressing the backlog of High Court cases. The Association also considers that there will be sufficient senior barristers who are willing to accept immediate appointment to the High Court Bench. Many who are not prepared to commit themselves to a permanent appointment are nonetheless prepared to sacrifice four to six weeks a year to sit as recorders.
The Law Society supports the “recordership” scheme in principle but is of the view that there is no valid reason why a solicitor who is employed by the Government is deemed to be eligible for appointment whilst a solicitor in private practice who has 10 years in litigation and practice as advocate in courts is not. The Law Society feels that the discrimination against experienced private practitioners is an artificial constraint which Hong Kong can ill afford to perpetuate. The Law Society also points out that there are nearly 3 000 solicitors in private practice and the number increases by approximately 250 per annum. However, under the provisions of section 9 of the Supreme Court Ordinance, none of them is eligible for appointment as a High Court judge or, under the Bill, as a recorder.
The Administration is of the view that the Law Society’s proposal to make solicitors eligible for appointment as recorders of the High Court should be considered in the context of the Law Society’s broader proposal on solicitors’ eligibility for appointment to the High Court. This broader proposal is being considered by the Attorney General’s Chambers in the context of the Bar Association’s and the Law Society’s submissions on the future of the two branches of the legal profession. As the matter has significant implications for the legal and judicial systems, the Attorney General intends to issue a public consultation paper later this year. The paper will address, among other things, the role of each branch of the profession which will definitely have implications on the question of eligibility for appointment to the High Court.
As recorders will perform the same duties as High Court judges, the Administration considers it logical for their qualifications for appointment to be the same as for permanent appointment to the High Court. The qualifications of Judges of the High Court are prescribed in section 9 of the Supreme Court Ordinance and no amendment thereto is proposed in the Bill.
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The Bar Association shares the views of the Administration that the Bill should be passed in its present form so that the recordership scheme can get under way. The Association feels strongly that any proposal for reform of the provisions of section 9 of the Supreme Court Ordinance concerning eligibility of other persons for High Court appointments who are not currently within section 9 should be separately considered in the context of amendment of section 9 generally and after all consultation with the Judiciary, with the Bar and with members of the public. The issue is a contentious one and views of all concerned parties should be taken into consideration. Moreover, amendment of section 9 will be necessary as, in its present form, it cannot survive the transfer of sovereignty to the People’s Republic of China in 1997 and is clearly inappropriate for the Hong Kong Special Administrative Region. The question of such amendments should not be considered or dealt with in a piece-meal fashion.
Members of the Bills Committee had split views as to whether the Bill should be allowed to resume its Second Reading debate today without any amendment, or to be deferred until the beginning of the next Legislative Council Session in October 1994 in order to allow more time for all parties to consider the desirability of amending clause 5, the part to which we can propose amendment, by adding a new section 6AA to enable a person who has at least 10 years’ practice as an advocate or solicitor to be eligible for appointment as a recorder. This would be a separate exercise, not a consideration of eligibility for appointment to the High Court as permanent judges.
The Bills Committee finally agreed that if the Administration could give an undertaking to initiate action to review, in consultation with the two branches of the legal profession, the appointment qualifications for recorders within the next three months with a view to giving a recommendation for the consideration of the Panel on the Administration of Justice and Legal Services in October 1994, the Bills Committee would support the passage of the Bill in its present form. The Administration agreed with the proposal of the Bills Committee and my understanding is that the Attorney General will confirm such an undertaking later when he speaks.
The Bills Committee also agrees to the moving of amendments by the Administration relating to the deletion of clauses bearing reference to the qualification of Registrar, deputy registrar and assistant registrars of the Supreme Court and the appointment of temporary deputy registrars. The Administration considers that these provisions, which are not directly related to the appointment of recorders, should more appropriately be considered in a separate amendment exercise which will take into account the Judiciary’s current review of the duties of the Registrar and his supporting team upon the transfer of their administrative duties to the newly created Judiciary Administrator’s office.
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Mr President, this Bill, once enacted, will enable the early launching of the recordership scheme. Though the scheme will be tried out only on a modest scale initially, the eventual expansion of the scheme may in the long run contribute to reducing the waiting time for hearing cases in the High Court.
Mr President, with these remarks, I commend the Supreme Court (Amendment) Bill 1994 to Honourable Members.
MR SIMON IP: Mr President, this Bill seeks to provide for a system of recordership in the High Court with a view to alleviating the problem of congested waiting lists. It will not be a panacea for all the Judiciary’s ills; it is but a small element in a much larger package of reforms which the Judiciary will have to introduce to promote greater efficiency and user friendliness.
The Bills Committee invited submissions from both branches of the profession. The Law Society put forward forcefully and persuasively the case that solicitors should be eligible to be appointed recorders. It argued that eligibility of solicitors in government service for appointment to the High Court Bench under section 9 of the Supreme Court Ordinance discriminates against solicitors of equal standing in private practice who are not so eligible. There is no valid reason why a solicitor who is employed by the Government is deemed to be eligible for appointment while a solicitor in private practice of similar experience and expertise is not. The discrimination against experienced private practitioners is an artificial constraint which Hong Kong can ill afford to perpetuate, especially when strengthening the Judiciary through the appointment of the best local legal talent should be a top priority.
One of the reasons given in the past for opposing solicitors even being considered for appointment to the High Court Bench was that there has been no opportunity for them to be observed in the High Court as advocates. The appointment of a solicitor as a recorder would enable an assessment to be made of the solicitor’s abilities as a High Court judge which is much more relevant than his talents as an advocate. The quality of legal analysis and the ability to listen and to summarize a case concisely and cogently are of far greater importance.
In England and Wales, solicitors have been eligible for appointment as recorders for many years and indeed many of the posts of recorder are held by solicitors. The law there has been amended to enable solicitors to be directly appointed from the profession to the High Court Bench and already one solicitor has been appointed.
The Law Society does not suggest that every solicitor is suitable for appointment as a recorder. It is, however, a shortsighted policy to prohibit the Judicial Service Commission from considering solicitors in private practice no matter how suitable they might be. To do so is contrary to the interests of the