HONG KONG LEGISLATIVE COUNCIL ― 12 October 1994 67 OFFICIAL RECORD OF PROCEEDINGS
Wednesday, 12 October 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 MR MICHAEL LEUNG MAN-KIN, 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 JEREMY FELL MATHEWS, C.M.G., J.P.
THE HONOURABLE ALLEN LEE PENG-FEI, C.B.E., J.P.
THE HONOURABLE MRS SELINA CHOW LIANG SHUK-YEE, O.B.E., J.P. THE HONOURABLE HUI YIN-FAT, O.B.E., J.P.
THE HONOURABLE MARTIN LEE CHU-MING, Q.C., J.P.
DR THE HONOURABLE DAVID LI KWOK-PO, O.B.E., LL.D., J.P. THE HONOURABLE NGAI SHIU-KIT, O.B.E., J.P.
THE HONOURABLE PANG CHUN-HOI, M.B.E.
THE HONOURABLE SZETO WAH
THE HONOURABLE TAM YIU-CHUNG
THE HONOURABLE ANDREW WONG WANG-FAT, O.B.E., J.P.
THE HONOURABLE LAU WONG-FAT, O.B.E., J.P.
THE HONOURABLE EDWARD HO SING-TIN, O.B.E., J.P.
HONG KONG LEGISLATIVE COUNCIL ― 12 October 1994 68 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. THE HONOURABLE MRS MIRIAM LAU KIN-YEE, O.B.E., J.P. DR THE HONOURABLE LEONG CHE-HUNG, O.B.E., 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. DR THE HONOURABLE HUANG CHEN-YA
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 MAN SAI-CHEONG
THE HONOURABLE STEVEN POON KWOK-LIM
HONG KONG LEGISLATIVE COUNCIL ― 12 October 1994 69 THE HONOURABLE HENRY TANG YING-YEN, J.P.
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 LAU WAH-SUM, O.B.E., J.P.
THE HONOURABLE JAMES DAVID McGREGOR, O.B.E., I.S.O., J.P. THE HONOURABLE MICHAEL HO MUN-KA
THE HONOURABLE SIMON IP SIK-ON, O.B.E., J.P.
THE HONOURABLE FRED LI WAH-MING
THE HONOURABLE TIK CHI-YUEN
THE HONOURABLE JAMES TO KUN-SUN
IN ATTENDANCE
MR MICHAEL SUEN MING-YEUNG, C.B.E., J.P.
SECRETARY FOR HOME AFFAIRS
MR ALISTAIR PETER ASPREY, C.B.E., A.E., J.P.
SECRETARY FOR SECURITY
HONG KONG LEGISLATIVE COUNCIL ― 12 October 1994 70
MR RONALD JAMES BLAKE, J.P.
SECRETARY FOR WORKS
MR JAMES SO YIU-CHO, O.B.E., J.P.
SECRETARY FOR RECREATION AND CULTURE
MR ANTHONY GORDON EASON, J.P.
SECRETARY FOR PLANNING, ENVIRONMENT AND LANDS
MR HAIDER HATIM TYEBJEE BARMA, I.S.O., J.P.
SECRETARY FOR TRANSPORT
MR DONALD TSANG YAM-KUEN, O.B.E., J.P.
SECRETARY FOR THE TREASURY
MRS KATHERINE FOK LO SHIU-CHING, O.B.E., J.P. SECRETARY FOR HEALTH AND WELFARE
MR NICHOLAS NG WING-FUI, J.P.
SECRETARY FOR CONSTITUTIONAL AFFAIRS
MRS REGINA IP LAU SUK-YEE, J.P.
SECRETARY FOR TRADE AND INDUSTRY
THE DEPUTY SECRETARY GENERAL
MR LAW KAM-SANG
HONG KONG LEGISLATIVE COUNCIL ― 12 October 1994 71 PAPERS
The following papers were laid on the table pursuant to Standing Order 14(2): Subject
Subsidiary Legislation L.N. No.
Occupational Therapists (Registration and
Disciplinary Procedure) (Amendment)
Regulation 1994 ............................................................................. 517/94
Occupational Therapists (Registration and
Disciplinary Procedure) (Amendment)
(No. 2) Regulation 1994................................................................. 518/94
Water Pollution Control (Victoria Harbour (Phase
One) Water Control Zone) Order.................................................... 519/94
Water Pollution Control (Victoria Harbour
(Phase One) Water Control Zone)
(Appointed Days) Order................................................................. 520/94
Statement of Water Quality Objectives (Victoria
Harbour (Phase One) Water Control Zone) .................................... 521/94 Dangerous Drugs (Amendment) Regulation 1994 ..................................... 522/94 Gambling (Amendment) (No. 3) Regulation 1994 ..................................... 523/94
Medical Laboratory Technologists (Registration and
Disciplinary Procedure) (Amendment)
Regulation 1994 ............................................................................. 524/94
Quarantine and Prevention of Disease (Scale of
Charges)(Amendment) Regulation 1994 ........................................ 525/94
Official Languages (Alteration of Text) (Adoption
Ordinance) Order 1994................................................................... 526/94
Practising Certificate (Solicitors)(Amendment) (No.
2) Rules 1994 ................................................................................. 527/94
Solicitors (Professional Indemnity)(Amendment)
(No. 2) Rules 1994 ......................................................................... 528/94 Specification of Public Office .................................................................... 529/94
HONG KONG LEGISLATIVE COUNCIL ― 12 October 1994 72
Official Languages (Authentic Chinese Text)
(Guardianship of Minors Ordinance) Order ................................ (C)17/94
Official Languages (Authentic Chinese Text)
(Foreign Marriage Ordinance) Order .......................................... (C)18/94
Official Languages (Authentic Chinese Text)
(Adoption Ordinance) Order ....................................................... (C)19/94
Sessional Papers 1994-95
No. 1 ― Land Development Corporation
Annual Report 1993-94
No. 2 ― Report by the Commissioner of Police on
Police Welfare Fund for the Period
1 April 1991 - 31 March 1992
No. 3 ― Report by the Commissioner of Police on
Police Welfare Fund for the Period
1 April 1992 - 31 March 1993
No. 4 ― The Government Minute in Response to the
Report No. 21A of the Public Accounts Committee
dated May 1994
No. 5 ― The Government Minute in Response to the
Report No. 22 of the Public Accounts Committee
dated June 1994
No. 6 ― Companies Registry Report for the Period
1 August 1993 to 31 March 1994
No. 7 ― Revisions of the 1994/95 Estimates Approved by the
Urban Council during the First Quarter of the
1994-95 Financial Year
No. 8 ― Regional Council Revised Estimates of
Expenditure 1994-95
No. 9 ― Regional Council Revised Estimates of Revenue and
Expenditure 1994-95
No. 10 ― Report of Changes to the Approved Estimates of
Expenditure Approved during
the First Quarter of 1994-95
Public Finance Ordinance: Section 8
HONG KONG LEGISLATIVE COUNCIL ― 12 October 1994 73
No. 11 ― Report by Commissioner of Correctional Services on the Administration of the Correctional Services Department
Welfare Fund for the Year Ended 31 March 1993
No. 12 ― Report by the Trustee of the Correctional Services
Children's Education Trust for the Period
1 September 1992 to 31 August 1993
No. 13 ― The Land Registry Trading Fund Hong Kong
Annual Report 1993-94
No. 14 ― Hong Kong Tourist Association
Annual Report 93-94
No. 15 ― The Government Minute in Response to
The Sixth Annual Report of The Commissioner for
Administrative Complaints Hong Kong
dated June 1994
Miscellaneous
Report of the Boundary and Election Commission on the Delineation of Geographical Constituencies in Respect of the Ordinary Election of the Legislative Council to be held in September 1995
ADDRESSES
The Government Minute in Response to the Report No. 21A of the Public Accounts Committee dated May 1994
The Government Minute in Response to the Report No. 22 of the Public Accounts Committee dated June 1994
CHIEF SECRETARY: Mr President, laid on the table today are the Government Minutes which respond respectively to Reports No. 21A and No. 22 of the Public Accounts Committee (PAC). The Minutes set out the actions the Government has taken, or is planning to take, on the conclusions and recommendations in the Reports.
The Honourable Peter WONG, Chairman of the Public Accounts Committee, spoke in this Council on 1 June 1994 and 6 July 1994 when tabling the two PAC Reports. I would like to take this opportunity to respond to some of the points he made.
HONG KONG LEGISLATIVE COUNCIL ― 12 October 1994 74
PAC Report No. 21A deals with two outstanding issues, namely, provident fund and superannuation schemes operated by subvented organizations, and the sale of a commercial site in Garden Road.
As regards the first issue, we note that the Committee's concern is focussed primarily on the superannuation schemes of the University and Polytechnic Grants Committee (UPGC)-funded institutions. We welcome the Committee's support of our view that it should be the responsibility of the institutions concerned to ensure that their schemes are well managed. The UPGC accepts the need for active monitoring of the schemes. It requires the institutions to submit annual reports and actuarial advice on the financial performance of their superannuation schemes. This enables the UPGC to consider and, if necessary, advise the institutions on the remedial action to be taken to rectify any doubts over the longer term financial viability of any of the schemes.
The Committee drew attention specifically to the long-term financial position of the superannuation schemes of the University of Hong Kong and the Chinese University of Hong Kong. The two institutions have recently submitted reports to the UPGC on their plans to address the matter. The UPGC will consider these reports at its forthcoming meeting. We will inform the PAC of the steps taken by the institutions in due course.
On the second issue, we have looked very carefully into the way in which the sale of the commercial site in Garden Road was handled. Our conclusion is that there is no evidence to substantiate any act of misconduct which would warrant disciplinary proceedings. The evidence indicates that the officers concerned took account of a number of considerations which they felt justified their decisions and acted in good faith. Their judgement may now be questioned, but that does not constitute misconduct warranting disciplinary action. We would like to reassure Members that the Central Tender Board will continue to discuss and record fully any substantial differences in tender prices in considering whether to accept a tender.
I now turn to PAC Report No. 22 which examines the results of various value for money audits. First, on the question of fees and charges. I wish to assure Members that we are determined to achieve the policy objective that fees charged by the Government should, with certain specific exceptions, be set at a level to recover the full cost of providing the goods or services. We agree with the PAC's observation that the longer the time span between fee increases, the larger the increase would have to be and hence the more difficult it would be to secure public acceptance.
That is why we have refined our system last year for monitoring and implementing fee reviews and adjustments. Fees and charges for goods or services, where clients or users should pay the full costs incurred, are reviewed annually to take account of inflation. They are also subject to a full costing exercise every four years. For both types of exercises, the departments work to
HONG KONG LEGISLATIVE COUNCIL ― 12 October 1994 75
a predetermined schedule. This ensures that increases in government fees and charges are phased during the course of the year to reduce the impact on the public at any one time. I am pleased to report that this system has been working well. There are, however, still instances where full cost recovery cannot yet be achieved. For example, in the case of licensing hotels, guesthouses and clubs, the full cost of operating the licensing schemes will only be recoverable upon full implementation of the schemes.
In his speech, Mr WONG commented on the inadequacies in the planning of a number of government and public projects. I agree that the departments concerned should make every effort to work out their precise requirements at the planning and design stage. The Government Minute sets out in detail the actions we have taken in response to the PAC's advice in this regard, both project-specific and in general terms. I wish to assure Members that the Administration is conscious of the need to ensure that government projects are adequately planned, that they are completed on time and within budget, and that they achieve their intended objectives.
On the utilization of space in the Housing Authority headquarters building, to which Mr WONG referred in particular, the Director of Housing has, in his response in the Government Minute, assured the PAC that he will continue to provide the Housing Authority with all relevant information to facilitate the Authority in its considerations of housing policy and other development proposals. The Housing Authority, like the Government, fully recognizes the importance of the PAC's observations and recommendations. In the light of the PAC's report, the Housing Authority has requested the Housing Department to conduct a comprehensive review of the allocation and utilization of office space at the Housing Authority headquarters building. The Director of Housing will provide to the PAC the results of the review.
Mr President, the Government is committed to working closely with the Audit Department and the PAC in the quest for the more efficient use of public funds. I am confident that the measures we have taken, or are planning to take, will go a long way towards this end.
Hong Kong Tourist Association Annual Report 1993-94
MR MARTIN BARROW: Mr President, I am pleased to table the Annual Report of the Hong Kong Tourist Association for the financial year 1993-94.
Overall, it was a satisfactory year, with the tourism industry enjoying steady expansion. We welcomed 7.2 million "international" visitors last year, compared to 6.9 million in 1992. The increase resulted in part from improved economies in our major long haul markets ― particularly Europe and North America ― which encouraged additional travel and tourism spending. In addition, the bullish economic environment in Asia ensured continued travel growth within the region.
HONG KONG LEGISLATIVE COUNCIL ― 12 October 1994 76
Consequently, Hong Kong maintained its position as Asia's most popular travel destination.
In April last year, we begin including the People's Republic of China (PRC) visitors in our statistics. The tally for the year was 1.7 million visitors, making the PRC our second largest market. As a result, arrivals totalled 8.9 million ― representing, after adjustment, an increase of 11.6% for the year.
Tourism receipts for 1993 also rose and exceeded HK$60 billion for the first time. They totalled HK$48 billion in 1992, but a straight comparison is not possible, because the figure last year included spending by PRC nationals.
We are pleased to note that tourism reaffirmed its new role as the territory's second largest earner of foreign exchange, the expenditure being equivalent to 7.1% of GDP, up from 6.5% in 1992.
It was also a successful year for our hotel sector, which enjoyed an average occupancy rate of 87% ― 5 percentage points higher than in 1992. Some tightness in room availability occurred but there was, nevertheless, adequate room supply for most of the year and it is important that this fact is not obscured by difficulties occurring during only a few days. Hong Kong hotels continue to offer good value for money.
In general, then, the main indicators for 1993 reflected a healthy industry.
Looking long-term to the future, to ensure that we take full advantage of the anticipated boom in travel worldwide, we have for some time been encouraging the development of new hotels, talking to both the Government and private sector. At the same time, of course, sufficient airport capacity will also be critical to meeting the anticipated increases in demand.
In view of these and other opportunities we anticipate, it has become increasingly evident to the Association that a long-term strategy is required. To this end, the Hong Kong Tourist Association (HKTA) commissioned the "Visitor and Tourism Study" together with the Hong Kong Government's Planning Department. The study will address key planning and development questions related to facilities and infrastructure.
During 1993, we also decided to revise our marketing strategies. We have for several years based our activities overseas on the theme of "Stay an extra day". Given changing market forces and infrastructural conditions, we are now concentrating on encouraging the even spread of business throughout the year. We are, therefore, focussing on market segments which are not season-sensitive, as well as those willing to pay for the quality which the territory offers.
In 1993, the Association also undertook a significant marketing initiative with the launch of the Pearl River Delta Tourism Marketing Organizations.
HONG KONG LEGISLATIVE COUNCIL ― 12 October 1994 77
The HKTA played a prominent role in bringing the China National Tourism Administration, the Guangdong Provincial Tourism Bureau and the Macau Government Tourist Office together to formulate the strategy for promoting the Pearl River Delta as a single product.
As well as these new ventures, of course, we stepped up our traditional programme of marketing activities around the world.
For example, in relation to the important business and meeting sector, the Hong Kong Convention and Incentive Travel Bureau again promoted Hong Kong aggressively as an international centre for conventions, exhibitions and incentive travel. Over 270 000 visitors came here for such a purpose last year. This represented growth of 12.5% over the previous year, while the number of events also rose by 21.6%.
Consequently, we are very pleased with the future doubling of space at the Hong Kong Convention and Exhibition Centre, which is due to be completed in 1997. I am happy to report that we have already secured a number of major conventions and events for well after that year.
The Association was also committed to improving service standards in the industry, and raising the public profile of tourism and promoting its interests.
In conclusion, I should just like to make a few general observations on the current state of the industry.
First, we should note that overall visitor arrivals increased by 3.4% in the first eight months of this year. The moderate increase conceals both positive and negative trends. On the negative side, visitor numbers from Southeast Asia have declined, by 5.5%. One reason is that residents of this regional market are travelling further afield as they enjoy greater wealth. This trend should serve to alert us to the absolute necessity of providing a top quality product and formulating a consistent and imaginative long-term development plan for the industry to encourage both first-time and repeat business. The Taiwan market also has had its problems, primarily to do with the ban on group tours to the mainland. On the other hand, it was encouraging to see such other major markets as Japan, the United States and Canada and West Europe showing significant increases.
Second, we can see that average hotel room occupancy for the same period stood at 83%, down two percentage points from last year, so there has been some slight easing of pressure.
In summary, Mr President, while Hong Kong's tourism industry is in a strong position, we are mindful of the necessity for imaginative marketing, product development and long-term visionary planning if growth is to be maintained. In addition, we feel that the contribution of this industry to Hong Kong's socio-economic well-being is still not understood or fully appreciated by
HONG KONG LEGISLATIVE COUNCIL ― 12 October 1994 78
some people within the Government. We should not have to expend our energy constantly trying to get this message across, particularly when it comes to funding. Quite bluntly, we are currently seeing elsewhere the effects of other national tourist offices spending far more on marketing. People from Southeast Asia, for example, are simply being persuaded to visit other travel destinations and not come to Hong Kong.
This is a tough business. The HKTA will certainly do its very best to ensure that the industry continues to make a major contribution to the territory's prosperity but we must have the support of the whole Government and the community in general. This is crucial if Hong Kong is to take advantage of the growth of the industry worldwide. And we have a unique opportunity for growth with the continuing development of China's economy. We have a high quality infrastructure and have accumulated the expertise to take full advantage of opportunities arising. I have every confidence in our tourism industry's ability and determination.
Thank you.
The Government Minute in Response to The Sixth Annual Report of The Commissioner for Administrative Complaints Hong Kong dated June 1994
CHIEF SECRETARY: Mr President, when presenting the Sixth Annual Report to the Council on 6 July, the Chief Secretary said that a Government Minute would be prepared in three months' time, and that this would outline the action that the Government has taken or proposes to take in response to the recommendations made by the Commissioner for Administrative Complaints (COMAC) in relation to the cases listed in his report on which complaints were found to be substantiated or partially substantiated. This Government Minute is tabled today.
In 1993-94, COMAC found 37 complaint cases to be substantiated or partially substantiated. In the majority of these cases, the branches or departments involved have accepted and followed up all of COMAC's recommendations. There are three cases in which one of COMAC's recommended measures has had to be modified because of operational constraints. I am referring to cases Nos.OCAC 24/93 (a complaint against the Buildings Department), OCAC 65/93 (against the Labour Department) and OCAC 5/93 (against the Lands Department). The reasons for the modifications are set out in the Minute.
Should any Member wish to have further clarification on any of the explanations given in the Government Minute, the Administration would be pleased to provide this.
HONG KONG LEGISLATIVE COUNCIL ― 12 October 1994 79 ORAL ANSWERS TO QUESTIONS
Use of Pesticides in Golf Courses
1. DR SAMUEL WONG asked: Mr President, will the Government inform this Council whether:
(a) pesticides or herbicides are being used in excessive quantities in Hong Kong's golf courses to the extent that nearby land or watercourses have become polluted; and
(b) the Government would consider encouraging the management of golf courses to use biological or manual control methods to combat the problems of weeds and pests?
SECRETARY FOR PLANNING, ENVIRONMENT AND LANDS: Mr President,
(a) Pesticides and herbicides are used to control the growth of insects, fungi and weeds on golf courses. The use of these pesticides and herbicides is governed by the Pesticides Ordinance.
There is no evidence to suggest that excessive pesticides or herbicides have been used on golf courses. Nor is there evidence to show that land or watercourses in their vicinity have been polluted by pesticides.
(b) The Administration has been encouraging the use of biological and manual control of weeds and pests (that is, hand-weeding and hand-picking) on golf courses. The Agriculture and Fisheries Department is currently discussing with the Hong Kong Golf Association the preparation of a code of practice on weed and pest control. The code would advocate the use of non-chemical controls wherever this is possible.
DR SAMUEL WONG: Mr President, will the Secretary for Planning, Environment and Lands inform this Council on what basis he is thus able to tell us that the use of pesticides or herbicides is not excessive; and if possible, can we be told of the approximate quantities of these chemicals used on each of the three or four major courses in Hong Kong each year?
HONG KONG LEGISLATIVE COUNCIL ― 12 October 1994 80
SECRETARY FOR PLANNING, ENVIRONMENT AND LANDS: Mr President, to take the last part of that question first, I think that requires, probably, a considerable amount of detail which I will obtain and pass on to the Honourable Member. (Annex I)
As far as the information in the main answer to the question I gave is concerned, the fact is that in all the departments which might have an interest in this subject, there has been no offer of evidence as to pollution caused by herbicides and pesticides. What is happening at the moment on this is that the Environmental Protection Department is conducting a study on inland river and watercourses. Water samples are taken from sites across the territory, including, I must say, not simply areas near golf courses but also areas near farms which I believe are likely to be a more significant contributor to consumption, or a greater consumer, of herbicides and pesticides, than golf courses. The results of this current study will be available in early 1995 and will determine the need for establishing a regular programme for monitoring pesticide contamination in watercourses.
MR PETER WONG: Mr President, I am pleased that the Secretary can inform us that there is going to be some looking at it because unless you look you will not find anything. Will there be independent monitoring of the use of pesticides and herbicides on our golf courses?
SECRETARY FOR PLANNING, ENVIRONMENT AND LANDS: Mr President, I think the answer to that question is two-part. Firstly, as I have said, it is not that we are going to do something, we are doing something ― we are conducting this study. And secondly, I think the question of whether monitoring would be justified, by comparison, for example, with the work that we have to do in relation to livestock waste control and the use of chemical wastes in industry on a much more widespread scale, will depend on the outcome of the current study.
MR MARVIN CHEUNG: Mr President, will the Administration please confirm to this Council that the strict observance of the relevant controls over the use of chemical pesticides provided for under the Pesticides Ordinance would, in the opinion of the experts, ensure that land and water resources would not become polluted by the use of such chemical pesticides?
PRESIDENT: Secretary, are you able to answer that?
HONG KONG LEGISLATIVE COUNCIL ― 12 October 1994 81
SECRETARY FOR PLANNING, ENVIRONMENT AND LANDS: I think, Mr President, I am not in a position to give a detailed answer to that question, I should have to confer with other parts of the Administration and provide an answer in writing. (Annex II)
DR PHILIP WONG: I do not know whether the Secretary is a golfer but like many of my colleagues, I have been playing golf in many places around the world and I notice that the golf courses in Hong Kong do have a particular smell, I wonder if that is not an excessive amount of pesticides, then what causes those smells?
SECRETARY FOR PLANNING, ENVIRONMENT AND LANDS: Mr President, I have to declare an interest as a total non-golfer in these matters, but I hesitatingly suggest that it might be something to do with the "birdies" or the "bogies".
Traffic James at Kwai Chung Container Terminal
2. MR LEE WING-TAT asked (in Cantonese): Mr President, in view of the frequent traffic jams at Kwai Chung Container Terminal, resulting in serious congestion in Tsing Yi, Kwai Chung, Tuen Mun and Western Kowloon, will the Government inform this Council whether there are any effective long-term and short-term measures to solve the problem?
SECRETARY FOR TRANSPORT: Mr President, we keep a very close watch on traffic conditions in the vicinity of the container port. Traffic is invariably heavy but moves. Congestion, blockage and severe delays result when there are major accidents, rainstorms or industrial action, or when there is a surge of container traffic, for example, following the reopening of the port after the passage of a typhoon.
To better manage and improve the road system the Administration has instituted a number of effective traffic management measures. Let me cite a few examples:
- an urban clearway restriction has been imposed along the whole of Container Port Road;
- traffic surveillance cameras have been installed at strategic locations near the port to monitor traffic flow ― this helps speed up the response to congestion;
HONG KONG LEGISLATIVE COUNCIL ― 12 October 1994 82
- the new Texaco Road Interchange will be partially opened in November this year, followed by its full opening early next year;
- a traffic surveillance and information system will be installed in Tuen Mun Road, with the first stage due for completion next year;
- better vehicle recovery services have been introduced to deal with vehicles involved in accidents and breakdowns; and
- the police have stepped up their patrols of the area, and will deploy unmarked cars fitted with video cameras.
In addition we have also established an emergency traffic control centre at the container port. This is activated whenever traffic problems are anticipated. This has helped to keep the traffic moving, for example, during the very difficult weather conditions that prevailed during the summer months.
Separately, we are also exploring with the container terminal operators what more can be done to better manage container port traffic so as to reduce the number of unloaded lorry trips into and out of the port. This should promote greater efficiency and hopefully result in less traffic.
In addition, the 24-hour opening of the Lok Ma Chau border crossing scheduled to come into effect on 3 November should provide scope to spread the flow of container port traffic and reduce congestion during peak hours.
As for longer-term measures, the Tsing Yi Duplicate South Bridge, the opening of Route 3 (Country Park Section), the development of a port rail link and the barging of more containers from the Pearl River estuary should help to contain road congestion.
Mr President, traffic conditions in the vicinity of the container port and in the approach roads are a real concern to the Administration. We have taken and shall continue to take all practical measures to minimize traffic disruption and to better manage and improve the road system.
MR LEE WING-TAT (in Cantonese): Mr President, the Tsing Yi Duplicate South Bridge will have a very important role in relieving the traffic congestion in Tsing Yi and Kwai Chung. Its construction, however, has been delayed for 18 months due to the deferment of the CT9 project. Has the Government ever considered that the construction plan of the Tsing Yi Duplicate South Bridge and the CT9 project be handled separately so that construction of the bridge can commence immediately?
PRESIDENT: Secretary, are you able to answer?
HONG KONG LEGISLATIVE COUNCIL ― 12 October 1994 83
SECRETARY FOR TRANSPORT: Mr President, the Honourable LEE Wing-tat is most persistent on this matter and indeed, he has put similar questions to my colleagues, the Secretary for Works and Secretary for Economic Services, and myself when we met to brief Members on the Policy Commitments. I certainly share Mr LEE Wing-tat's concern. The Tsing Yi Duplicate South Bridge is urgently required on transport grounds. We need to expand the capacity of the bridge to serve not only the container port but also Tsing Yi development and Tsing Yi residents.
The Government's position has always been that the quickest way to build the bridge has been to entrust it to the successful bidder or developer of CT9. Certainly, we can look at the options again, but even if we were to undertake this bridge as a Public Works project we would have to follow the broad scheme designed to serve CT9, otherwise fresh engineering, traffic and environmental studies will have to be conducted. And if we were to build this bridge under the Public Works Programme, we also need to resolve the land and funding implications. But as my colleague, the Secretary for Works, has intimated, the Administration is prepared to examine the feasibility of building this bridge first.
MRS MIRIAM LAU (in Cantonese): Mr President, traffic congestion near Kwai Chung Container Terminal is mainly due to the fact that the container trucks have to queue up and wait on the nearby roads before they can enter the container terminal. Can the Secretary
for Transport inform this Council whether the Government will actively look for a site near Kwai Chung Container Terminal for the container trucks to park when necessary while they are waiting so that traffic congestion in the area can be eased?
SECRETARY FOR TRANSPORT: Mr President, the Honourable Member is right. Because of the substantial heavy traffic leading to the container port there is a lot of traffic. Our figures show that on average, some 25 000 vehicles enter and exit from the port every day. Lorry-parks in Kwai Chung and Kwai Tsing districts will not in themselves solve the traffic problems. One third of the vehicles leaving the district are destined towards the container terminals and the same proportion applies to other vehicles returning to lorry-parks. The majority of the container traffic related activities must be concentrated in the container port area and obviously we will continue to look for other sites to try and reduce traffic on the roads and for parking.
MR JAMES TIEN: Mr President, will the Secretary please inform this Council, other than the new Texaco Road Interchange, the Tsing Yi Duplicate South Bridge and Route 3 (Country Park Section), if there are any other major trunk road by-pass interchanges planned for easing the traffic in and out of the Kwai Chung area, especially towards Kowloon?
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SECRETARY FOR TRANSPORT: Mr President, I have covered the main projects in my main reply but apart from the road projects, of course, we are planning the Northwest Railway Corridor which will provide a major freight line, and I believe that when implemented this will greatly help to alleviate the present position.
MR PETER WONG: Mr President, the Secretary informed us that the 24-hour opening of Lok Ma Chau will help to spread the peak hour congestion, some of which will go into the night-time. Can the Secretary inform us whether full consideration has been given to the noise implications of this, especially in residential areas through which the containers may have to go?
PRESIDENT: Are you able to answer that, Secretary?
SECRETARY FOR TRANSPORT: Yes, Mr President, Yes, indeed, because we have anticipated that there will be noise problems, some noise barriers have already been constructed along some of the roads fronting estates in northeastern part of the New Territories.
Stationing of Chinese Troops
3. MRS SELINA CHOW asked (in Cantonese): Mr President, since the Chinese and British Governments will be making arrangements for the stationing of Chinese troops in Hong Kong after 1997, will the Government inform this Council:
(a) whether members of the People's Liberation Army will be despatched to Hong Kong before 1997 to deal with handing-over matters; if so, what will the size of the first batch of the Chinese Garrison be; what will the nature of their work be; how long they will stay in Hong Kong; and
(b) how the Hong Kong Government will co-ordinate such work with them?
SECRETARY FOR SECURITY: Mr President, there will be a great deal of practical work to be done to prepare for the stationing of the Chinese garrison in Hong Kong as from 1 July 1997. The Chinese will need a small number of personnel here in Hong Kong if this work is to be carried out smoothly and efficiently. But it is too early to say how many or how long they will stay. We will be discussing with the Chinese the work which needs to be done ― and how it should be managed and co-ordinated ― in the Joint Liaison Group in the coming months. As the Governor said in his policy address, the British
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garrison will offer its full co-operation to the Chinese military authorities to ensure a smooth handover of defence responsibilities.
MRS SELINA CHOW (in Cantonese): Mr President, given the poor relationship between China and Britain, and the lack of progress as to the work of the Joint Liaison Group (JLG), is the Government being over-optimistic by expressing in the main reply the expectation that a decision would eventually be made by the JLG? If the JLG fails to arrive at a consensus afterall, will this pose any difficulties to the handing-over in relation to the stationing of the People's Liberation Army in Hong Kong or cause any distress among the people of Hong Kong?
SECRETARY FOR SECURITY: Mr President, I believe not. We did reach agreement with the Chinese on the question of the military estate in July this year, and I believe this proves that both sides are eager to co-operate on this issue. We have had discussions since then with the Chinese authorities and they have asked that we should have further more detailed discussions in November this year relating to the handover of military responsibilities on 1 July 1977, and I am confident that both sides will co-operate to make a success of this.
MR CHEUNG MAN-KWONG (in Cantonese): Mr President, can the Administration inform this Council whether the batch of personnel to be deployed to Hong Kong prior to 1997 to prepare for the handover are all members of the People's Liberation Army? If they break the laws in Hong Kong, will they be repatriated back to China and be dealt with according to Chinese laws, or will they be dealt with according to the laws of Hong Kong?
President: Secretary, are you able to answer that?
SECRETARY FOR SECURITY: Mr President, as I said in my main answer, we do not know at this stage who will be coming, how many will be coming or for how long they will be coming, but I certainly would not expect that we will see any large number of Chinese military personnel in Hong Kong before 1997. I think we will see a small number of experts here from time to time to look at the reprovisioning projects, to look at the fitting-out and equipment of the military sites that they are going to inherit, and generally to prepare for the handover of military responsibilities.
As regards the second part of the question, while they are in Hong Kong they will of course be subject fully to Hong Kong law.
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MR HOWARD YOUNG (in Cantonese): Mr President, as mentioned in the Governor's policy address and quoted by the Secretary, full co-operation will be rendered to the Chinese military authorities to ensure a smooth handover of defence responsibilities. However, as far as I know, apart from defence matters, the British garrison in Hong Kong is also engaged in various social functions. For example, the British garrison has always participated in various social and community activities such as taking part in ceremonial functions and building bridges for country parks. Many social organizations will also seek the British garrison's co-operation when organizing outdoor orienteering activities. These are all done on a voluntary basis. My question is: Does "co-operation" cover this type of activities or is it confined only to defence matters?
PRESIDENT: We are dealing with a question as to events leading up to the handover, Mr Howard YOUNG, Are you concerned with that side of it, or post-handover?
MR HOWARD YOUNG: Well, my point is that we are talking about the handover but to my understanding, the British garrison in Hong Kong is not only concerned with defence matters, I do know they do a lot of worthwhile social and community projects. I was wondering whether this sort of service might continue in future, or whether it was taken into consideration or not?
PRESIDENT: If you are asking about post-handover you are outside the scope of the main question and answer, Mr YOUNG.
MR HOWARD YOUNG: Yes, it is not just to do with the stationing of troops but if there is an intention to have such activities continuing as part of the activities of the garrison or military personnel in the future, then I do not really see how this could be done unless there were discussions or familiarization of such activities before 1997.
SECRETARY FOR SECURITY: Mr President, the Joint Declaration and the Basic Law do of course make it clear that the purpose of the Chinese garrison being here is for defence only and that internal security remains the responsibility of the Special Administration Region Government. But I certainly do not take that as meaning that social, charitable and ceremonial activities on the part of the People's Liberation Army (PLA) are excluded. Whether they actually want to involve themselves in them is something for the PLA to decide. All I think I can say is that I am sure that in the discussions that will be taking place in the next two to three years, the question of those sorts of activities will undoubtedly come up in discussions between ourselves and the Chinese and between the PLA and the British military in Hong Kong.
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MRS SELINA CHOW (in Cantonese): Mr President, when we listened to the Secretary's reply just now, it seems that both Britain and China are of the opinion that it is necessary to begin preparatory works as soon as possible. My question is: If a consensus is reached between Britain and China as regards preparatory work, will the people of Hong Kong be informed in order to avoid unnecessary panic or speculation?
SECRETARY FOR SECURITY: Mr President, yes, I do not think there is anything that is going to be secret about this. Most of it is actually very detailed stuff. It relates to the fitting-out and the equipping of the sites that the Chinese will inherit. It relates to discussions on the progress of the reprovisioning works which we have undertaken to provide for the Chinese garrison. It relates to the logistical arrangements for the handover of sites. And it also relates, probably, to the ceremonial aspects of the final handover. But certainly, as progress is made on these matters, I would be quite happy to brief Members of this Council.
Public Access to Government Advisory Bodies
4. MS EMILY LAU asked (in Cantonese): Mr President, in his reply to a question regarding greater openness of the 350 government advisory boards and committees at the Legislative Council sitting on 8 December 1993, the Secretary for Home Affairs indicated that it was not necessary for those advisory bodies or committees which have not yet conducted open meetings to make their meetings open or provide the public with relevant documents such as agenda, minutes and discussion papers. In order to enable the public to have a deeper understanding of and greater participation in the process of policy formulation, will the Government inform this Council whether it will consider allowing greater public access to the meetings of these advisory bodies and making information and documents more readily available to the public in a gradual manner?
SECRETARY FOR HOME AFFAIRS (in Cantonese): Mr President, at present, a number of advisory boards and committees already routinely conduct their meetings in public and generally make available their papers for public inspection. In the case of another 41 boards and committees, the Chairman and/or members of the committees hold press briefings to explain matters discussed by the board or committee concerned on matters of public interest. Alternatively, press releases are issued from time to time by some boards and committees to keep the media and the public informed. There is therefore a degree of openness being practised by some boards and committees already. According to the latest information, over 180 advisory boards and committees have already adopted one of the above-mentioned two trends to increase transparency and openness. I would like to take this opportunity to inform
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Members that before launching major policy initiatives we always try to consult the public and this is more and more often the case.
In considering whether other boards and committees can be more open, it has to be borne in mind that the business transacted by the 350 advisory boards and committees vary greatly in nature. Some handle confidential or commercially sensitive information on a regular basis while others might just render advice on general issues and deal with routine matters. It would therefore not be appropriate to apply any across-the-board measures to make these boards and committees more open. Indeed it would not be realistic to expect some of these boards can operate publicly.
Having said this, we also recognize the community's aspiration for easier access to information. I intend to ask Policy Secretaries and Heads of Departments to examine the nature and operation of the advisory boards and committees under their purview and to consider which boards or committees can be made more open. In this regard an obvious consideration is an assessment as to whether the release of information would hamper the smooth operation of the board or committee, or prejudice the frank exchange of views among members. Where the Policy Secretary or Head of Department considers that there is a case for a board or committee to be made more accessible to the public, he or she would consult the board or committee concerned and seek agreement to put in place appropriate measures.
In the meantime, we would continue to encourage these boards and committees, wherever possible to keep the public and the media informed of the progress of their work either by way of regular press releases or press briefings.
MISS EMILY LAU (in Cantonese): Mr President, I am glad to hear the Government saying that at present, 180 advisory boards and committees have channels to provide information to the public. But I cannot understand why the Government has said that it was unrealistic to urge the other boards and committees to be more open. The Government should realize that the public wish to understand the Government's decisions through the information provided by these boards and committees so that they can make their own decisions accordingly. Would the Government inform this Council whether it will make a policy decision as soon as possible and ask the remaining boards or committees to provide information to the public or at least to hold a press briefing after each meeting? Also, please explain why it would hamper the smooth operation of the boards or committees should certain information such as times and dates of meetings and agenda be released?
SECRETARY FOR HOME AFFAIRS (in Cantonese): Mr President, I believe the Honourable Emily LAU has somehow misunderstood my answer. I was not saying that apart from the 180 boards or committees which have been made
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open, all the other boards or committees would not let their operation be publicly accessible. Nor was I saying that it would be unrealistic to ask them to be more open. What I meant was that we have certain boards or committees that handle confidential or commercially sensitive information. It would not be realistic to have them operate publicly. As Members know, we are asking Policy Secretaries and Heads of Departments to examine the nature and operation of the advisory boards and committees under their purview. They will be made more open in a gradual manner if it is found necessary and to the extent that their operation will not be hampered. In addition, press releases will be issued if the operation among the boards and committees is not impeded.
As to the question on whether the operation of the boards or committees will be hampered, this is quite obvious because of the nature of some of these boards or committees. For example, if the subject of discussion is regarding the details of negotiations between Hong Kong and an external party and the attitude to be taken, I believe Members will agree that no information should be released until the matter has been finalized.
REV FUNG CHI-WOOD (in Cantonese): Mr President, since all of the members of these boards and committees are appointed, if we still refuse to make public the views that have been discussed in these advisory boards, people will challenge whether there is broad representation and whether it is reasonable. My personal experience is that even the information of the District Fight Crime Committees is not available. You just cannot help wondering why information relating to the meetings of a district fight crime committee is treated in such a confidential way. I would like to ask the Government whether it will consider the practice of the two municipal councils. They try to make public as much as possible the contents of their agenda and only those parts which have to be kept confidential are not made public. (This is because during meetings of the two municipal councils, some of the time will be dedicated to discussion on confidential issues and under such circumstances, that part of the agenda and matters to be discussed will be kept confidential).
PRESIDENT: Yes, was that the question Rev FUNG? I am sorry I missed the actual question.
REV FUNG CHI-WOOD (in Cantonese): Mr President, I would like to ask whether the Government will consider having the advisory boards and committees to hold meetings in a manner just as the two municipal councils do. That is, the agenda is made public as far as is possible and only certain parts of the agenda are kept confidential when the circumstance makes it necessary to be treated confidentially.
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SECRETARY FOR HOME AFFAIRS (in Cantonese): Mr President, I believe we all know very well that over half of the boards and committees are already handling their information in this way. As to the other boards and committees, I have undertaken in my answer that I will ask other Heads of Departments and Policy Secretaries to re-examine the boards or committees under their purview and see if it is possible for these boards and committees to operate in such a way.
MR LAU CHIN-SHEK (in Cantonese): Mr President, in the second last paragraph of his main reply, the Secretary for Home Affairs said that he "intends to ask Policy Secretaries and Heads of Departments to examine the nature and operation of the advisory boards and committees under their purview and to consider which board or committee can be made more open". I would like to ask how long this process will take; and whether the Secretary can promise to explain to this Council if any of these boards or committees cannot be made open?
SECRETARY FOR HOME AFFAIRS (in Cantonese): Mr President, as the boards and committees in questions are not just a few in number (there are over a hundred of them), therefore we believe we may need a few months' time. But I cannot say for sure now as to the exact time required, for example, six or eight months. However, we will proceed as fast as possible.
As to whether or not we will account to this Council why these boards or committees are not able to make available to the public their information, we must take into consideration the nature of these boards or committees, and that their views are very often the starting point in the process of decision-making. Some of them are our main sources of consultation. We ask them for their views, and these views are often the basis on which we work out our policies.
After the formulation of the policies, we still have many opportunities to consult the public in the form of green paper or white bills. And if matters are to be sorted out in the form of bills, such bills will be tabled before the Legislative Council for consideration sooner or later. Therefore, Members and the public need not worry. We will finalize our decisions on the basis of the opinions collected. We have plenty of opportunities for further consultation.
MR MAN SAI-CHEONG (in Cantonese): Mr President, can the Secretary for Home Affairs cite a few names to illustrate which advisory boards of the Government conduct their meetings with public attendance; which boards or committees have their proceedings being kept at public libraries and are available for public inspection? If not, when will they be made available?
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SECRETARY FOR HOME AFFAIRS (in Cantonese): Mr President, I do have such a list on hand but it is a bit lengthy. Since I do not wish to read them out one by one, may I give a written reply? (Annex III)
MR MAN SAI-CHEONG (in Cantonese): Mr President, I only asked the Secretary to cite a few names, not all. Also, I would like to ask him another question. That is, are the proceedings kept in public libraries? If not, when will they be made available?
PRESIDENT: I think we had better let the Secretary hand in a written list, Mr MAN. But do answer the second question please, Secretary?
SECRETARY FOR HOME AFFAIRS (in Cantonese): Mr President, of course they are available at public libraries. For example, there are records of the Committee for the Promotion of Civic Education, Board of Education, district boards and so on.
MS ANNA WU: In view of the statement that there is an increasing trend towards more formal public consultation on major public initiatives, will the Secretary indicate whether the Administration is willing to adopt the principle that all proceedings of advisory bodies and committees should be made open unless there are reasons to the contrary? And will the Secretary also indicate what improvements have been made between 8 December 1993 and now to improve the transparency of these advisory bodies and committees?
SECRETARY FOR HOME AFFAIRS: Mr President, as I said in the main reply, we will continue, where those boards and committees have not opened up their meetings, to explore the possibility of doing that with the Secretaries or Heads of Departments concerned. As regards the second question, I cannot quote exact figures, but we have made improvements since then, because the last time I reported a figure of 41 boards and committees which have opened up. That number has now increased to 63, and so we have made progress during this time. If the Honourable Member wants it, I can supply her with the list of the 63 committees. (Annex IV)
PRESIDENT: Not answered, Ms WU?
MS ANNA WU: Mr President, I wonder if the Secretary can answer specifically if the Administration is willing to adopt the principle of making all meetings open, unless reasons to the contrary are given?
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SECRETARY FOR HOME AFFAIRS: Mr President, as I implied in my main answer, that is in fact our criteria; unless there are other overriding reasons we will make it open. But of course having said that, I have also mentioned some of the restrictions placed on us, which would make it inappropriate for us to open up some of the committees.
MISS EMILY LAU (in Cantonese): Mr President, I hope the Government can let us know the number of boards and committees that are on the list as soon as possible. But during this afternoon, can the Government inform this Council how many of these boards and committees do involve in matters of commercially sensitive nature, and which have been described by the Secretary for Home Affairs as boards and committees that can never be made open? Can the Secretary read out the list?
SECRETARY FOR HOME AFFAIR (in Cantonese): Mr President, I do not have the list on hand. But I can supply a written reply. (Annex V)
Northwest New Territories Railway
5. MR ALFRED TSO asked (in Cantonese): Mr President, a motion debate was held on 9 March 1994 to urge the Government to construct the Northwest New Territories Railway and its extension to Tuen Mun as soon as possible. In his reply, the Secretary for Transport undertook to make a decision in June this year but so far no decision or announcement has been made. In view of this, will the Government inform this Council:
(a) why the Secretary for Transport has still not given any reply and when a decision can be made; and
(b) whether, in relation to the announcement by Zhuhai in Guangdong Province on 25 August this year to construct the "Guang Zhu Railway", the Government has taken any initiative to study the project and communicate with the Chinese side to ensure that the design of the Northwest New Territories Railway is compatible with the transport network in Guangdong Province so as to achieve maximum cost effectiveness?
SECRETARY FOR TRANSPORT: Mr President, in the motion debate held on 9 March this year, I did indeed inform Members that we hoped to finalize the Railway Development Strategy within three months. This forecast has proven to be over optimistic. More time has been required for additional studies, for example on how best to meet the travel needs of Eastern New Territories residents, especially those arising from the findings of the Task Force on Land Supply and Property Prices. Insofar as the Northwest New Territories Railway
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is concerned, which is also known as the Western Corridor Railway, this remains a high priority under our proposed railway strategy. I remain confident that despite the delay in announcing the strategy it can be completed and operational by 2001.
The strategy is now almost finalized and the next step will be to discuss this with the Chinese side, since most of the expenditure on new railways will be post-1997. Thereafter we will announce the strategy publicly. I hope that we can have discussions with the Chinese side very soon.
As regards the second part of the question, we understand that the Guangzhou to Zhuhai railway will run along the west bank of the Pearl River Delta and that it will not have any direct connection to Hong Kong. In the circumstances, it should not directly impact on our proposed Northwest New Territories Railway. But this is precisely the sort of subject and detail we wish to discuss with Chinese officials in the context of improving co operation on infrastructural developments. As the Governor announced in his policy address last week, we will be responding to valuable suggestions from Chinese officials in this regard.
MR ALFRED TSO (in Cantonese): Mr President, in the motion debate held on 9 March this year, I explicitly stated that where the design and planning of the Northwest New Territories Railway were concerned, it was necessary to have communication with China and exchange with it the detailed information as soon as possible. The Secretary for Transport also responded that this railway was given the top priority. But the reply of the Secretary for Transport today reflects that no formal communication with China has been made and no preparation work has been done in the last seven months. Can the Secretary for Transport explain why the Administration has not done that? Are there any problems in making contacts with the Chinese side and when will there be formal communication between the two sides for the purpose of finalizing the planning work so that the development of New Territories West and that between Hong Kong and China will not be hindered as a result of the delay on the completion of the Northwest New Territories Railway?
SECRETARY FOR TRANSPORT: Mr President, I think it would be wrong to say that we have had no discussions with the Chinese side up to now. We do have discussions with the railway authorities in China on professional and technical levels and this of course is to ensure compatibility. And also, for example, when the Railway Development Study (RDS) was in progress our study team did visit Shenzhen and Guangzhou to discuss with their counterparts there technical matters and to find out what their plans were. Indeed a copy of the RDS report has been passed to the Chinese side and we have undertaken to consult them on the strategy when detailed proposals have been finalized. Efforts will be made to ensure that this strategy is compatible with the Chinese side's railway plans. As I have said just now, in the Transport Branch we have
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virtually completed updating and finalizing the strategy. We are ready to consult the Chinese side, and we will have to consult the Chinese side because the expenditure will be post-1997. As soon as we have a response from the Chinese side the Council will be fully briefed.
MR TAM YIU-CHUNG (in Cantonese): Mr President, may I ask how much the construction cost of the Northwest New Territories Railway is in rough terms? Will the Government consider entrusting the Kowloon-Canton Railway Corporation (KCRC) with the construction work and will the new railway be linked up with the Kowloon-Canton Railway line?
SECRETARY FOR TRANSPORT: Mr President, the cost in the RDS was estimated at roughly $28 billion at today's prices. Now obviously these figures will have to be adjusted to reflect MOD prices. Insofar as the question of whether the KCRC will be involved with the railway is concerned, once the strategy is announced the institutional arrangements for implementing the project will have to be decided, and obviously KCRC's interests and their intentions can be ascertained. Finally, in response to Mr TAM, yes, the line will link up to the existing KCRC line at the border, so that there will be a loop both east and west; that is the intention.
MR WONG WAI-YIN (in Cantonese): Mr President, the Northwest New Territories Railway is very important to the 700 000 residents in New Territories West. At the initial stage of planning, it was originally proposed that the terminus of this railway line would be located at Tin Shui Wai. But many Members of this Council and residents called for the extension of the railway line to Tuen Mun Town Centre. The initial response from the Secretary for Transport indicated that the railway would be extended to Tuen Mun North (Siu Hong Court). But it is still the hope of the Democratic Party that the railway can be extended to Tuen Mun Town Centre. According to the Secretary for Transport, an underground alignment was required for the railway to run from Tuen Mun North to the Town Centre and the cost incurred would be exorbitantly high. But the Democratic Party has suggested to lay a cover on the surface of the Tuen Mun River beside Siu Hong Court in order to give a way directly leading to Tuen Mun Town Centre with a view to dovetailing with the development of San Fat Estate. As the Secretary for Transport has been contemplating this suggestion for so many months, may I ask about the progress of the matter? Has there been any calculation on the funds needed to implement the suggestion? Is it far less expensive than the construction of an underground alignment? As for the suggestion to extend the railway to Tuen Mun Town Centre, has the Secretary for Transport come to any decision yet?
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SECRETARY FOR TRANSPORT: Mr President, the Honourable Member is right. During the motion debate in March this year, many Members did argue for the extension of the Northern Railway to Tuen Mun Town Centre. Following initial feedback and discussions with district boards and others the Administration has indicated that we are prepared to extend the Tin Shui Wai loop down to Tuen Mun North. As a result of the debate, of course we have taken on board Members' views, but the difficulties of extending the line to Tuen Mun Town Centre are still very real. I do not think it will be possible in the initial stage to achieve this, but perhaps later on.
PRESIDENT: Not answered, Mr WONG?
MR WONG WAI-YIN (in Cantonese): Mr President, I have a specific suggestion which has been brought to the attention of Mr BARMA before. That is to lay a cover on the surface of the section of Tuen Mun River adjacent to Siu Hong Court. In that case, it will no longer be necessary to dig a tunnel. Mr BARMA said this suggestion would be taken into consideration. As the matter has been considered for several months, I hope that he can disclose whether there is any decision after so much consideration and whether any calculation has been made on the funds required for this suggestion.
SECRETARY FOR TRANSPORT: Mr President, we certainly did consider this proposal. It carries substantial additional financial costs, and there are other land and environmental implications. Within the Government, we do not believe that the case to extend this to Tuen Mun Town Centre is justified given the other constraints.
DR TANG SIU-TONG (in Cantonese): Mr President, we used to say time and again that the Government should consult the Chinese side beforehand if the infrastructure concerns the Chinese side. Regrettably, we now learn that no contact has yet been made as regards the Northwest New Territories Railway. Can the Government advise this Council when the Government will communicate with the Chinese side? When will it be completed? When will the people of Hong Kong be told that the Northwest New Territories Railway is to be constructed?
SECRETARY FOR TRANSPORT: Mr President, as I intimated just now, it is wrong to suggest that there has been no dialogue with the Chinese side yet. We did give them copies of the RDS and our experts have held discussions with them. Regarding the question of when we can consult the Chinese side, as I have said, we have now finalized the strategy and we are ready to consult them, but obviously we need to finalize the arrangements with them first. And as soon as this has been decided, announcements will be made.
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MRS MIRIAM LAU (in Cantonese): Mr President, judging either from the perspective of cross-border cargo transportation or resolving the traffic congestion problem in New Territories West, the Northwest New Territories Railway is vitally important and is urgently needed in Hong Kong. Since the project has been delayed for a long time, can the Secretary for Transport advise this Council precisely how long the construction of the Northwest New Territories Railway will take? And if the Government takes vigorous steps to implement this transportation infrastructure plan, will the Government be able to have an early completion of the Northwest New Territories Railway before the year 2001?
SECRETARY FOR TRANSPORT: Mr President, I certainly agree with the Honourable Member that the Northwest Railway is urgently required. Although there has been a delay of several months regarding finalization of the strategy, I do not believe that this will delay the completion by the year 2001. This is a realistic target date. As to whether or not it can be accelerated ahead of that date, obviously we will be looking at the practicalities of this. I hope so, but as I said, 2001 is from our point of view a fairly realistic date.
PRESIDENT: Not answered, Mrs LAU?
MRS MIRIAM LAU (in Cantonese): Mr President, my question just now is this: Can the Secretary for Transport advise this Council how long the construction of the railway will take? That is, how many years and how many months?
SECRETARY FOR TRANSPORT: Well, we are near the end of 1994, so if you subtract that from 2001, I would say it is about seven years.
Quality Assessment of Public and Private Hospitals
6. DR HUANG CHEN-YA asked (in Cantonese): Mr President, will the Government inform this Council:
(a) what steps are taken by the Government to ensure proper quality assessment in public hospitals managed by the Hospital Authority and private hospitals;
(b) if such steps have already been taken, what are the respective mortality and morbidity rates for major surgical operations such as cholecystectomy, prostatectomy, coronary bypass surgery, thyroidectomy and hysterectomy in each of the public and private hospitals; and
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(c) if such statistics are not available, when will the Government expect these to be available so that the public can be ensured of proper standards being maintained in both public and private hospitals?
SECRETARY FOR HEALTH AND WELFARE: Mr President, all hospitals in Hong Kong are regulated by various ordinances prescribing conditions on accommodation, staffing level and equipment, qualifications of professional staff as well as regulations on drugs, fire safety, storage of dangerous goods and other operational matters.
Since 1993, the quality of service provision and patient care in public hospitals has been strengthened through the establishment of quality assurance mechanisms in all clinical specialties. This has resulted in the adoption of structured approaches including "medical audits" to ensure conformance to established professional practice and standards.
Furthermore, to assist private hospitals in safeguarding the quality of patient care, the Director of Health has issued a set of guidelines endorsed by the former Medical Development Advisory Committee to all their operators covering aspects including organizational structure, personnel and equipment, patients' rights, staff development and education. Supplementary notes on specific issues are also promulgated as and when necessary.
In keeping with the International Classification Coding System, information is collated by the Department of Health and published in its annual report in the form of morbidity and mortality data for various disease conditions rather than according to major surgical operations. These figures are subsequently used as a monitoring tool on the epidemiological pattern of diseases in the community. However, since these statistics are affected by factors such as the pre-operation health condition, demographic structure and case mix, they should not be interpreted as an indicator of the performance of any particular hospital.
DR HUANG CHEN-YA (in Cantonese): Mr President, let us assume that a certain kind of surgical operation is being performed in two hospitals, and in one of these two hospitals, the mortality rate is one in 1 000 patients while there are 10 complications; whereas in the other hospital, the mortality rate is three in 1 000 patients while there are 50 complications. If the public know these figures, they will surely consider which hospital they should go for treatment. And the Hospital Authority will also consider whether these services should be improved. Therefore, the collection of the so-called morbidity rates just mentioned by the Administration simply cannot serve the purpose of a medical quality assessment. Can the Administration inform the Council whether it is able to collect the related information with a view to ensuring that the public can really obtain the due services?
HONG KONG LEGISLATIVE COUNCIL ― 12 October 1994 98
SECRETARY FOR HEALTH AND WELFARE: Mr President, the best approach to safeguard the quality and standard of service is through the establishment of quality assurance mechanism. This will have the effect of ensuring that the whole patient care process will conform to professionally accepted quality standards. There are well over 20 000 different disease categories, the majority of which are not amenable to surgical intervention but to other forms of therapy. Collecting mortality and morbidity rates for major operations as a means to ensuring standards of medical care is therefore of limited value. This is further complicated by the fact that it is difficult to draw comparisons on mortality and morbidity rates for major operations or disease conditions as they tend to vary significantly on account of the case mix, the co-existing disease and the pre-existing health status of the patient.
DR LEONG CHE-HUNG: In the third paragraph of the Secretary's reply she alluded us to a set of guidelines endorsed by the former Medical Development Advisory Committee in 1991. The Secretary might recall from records that that Committee also endorsed that a review of the guidelines be made in two to three years' time. Could the Secretary inform this Council how religiously are these guidelines adhered to, both in private and public hospitals? Could these guidelines be made available to the public? And has the Administration taken active steps to review these guidelines from time to time?
SECRETARY FOR HEALTH AND WELFARE: Mr President, these guidelines were issued by the Director of Health, and endorsed by the former Medical Development Advisory Committee. No doubt these are reviewed from time to time, and as I said in my main reply, we have a system of issuing supplementary notes on specific issues, and also to promulgate these as and when necessary; all these notes are published.
DR CONRAD LAM (in Cantonese): Mr President, I would like to follow up the question raised by Dr LEONG Che-hung. May I ask the Secretary for Health and Welfare whether the guidelines to private hospitals are outdated or not? In the course of work of the Department of Health, what has been done to see that the private hospitals have substantially conformed with the requirements of the guidelines? If the private hospitals do not adhere to the guidelines, what can the Administration do?
SECRETARY FOR HEALTH AND WELFARE: Mr President, under section 3 of the Hospital Nursing Homes and Maternity Homes Registration Ordinance, the Director of Health may refuse the application for registration of a private hospital on grounds that the applicant or any person employed by him is not a fit person to carry on or to be employed at a hospital of such a description as the hospital named in the application. The Director of Health can refuse, for reasons concerned with situation, construction, accommodation, staffing or
HONG KONG LEGISLATIVE COUNCIL ― 12 October 1994 99
equipment, the premises are not fit to be used for, or in connection with a hospital of such description as stated in the application; or that the hospital is used for purposes which are in any way improper or undesirable in the case of such a hospital; or that the hospital is not under the charge of a person who is either a duly qualified medical practitioner or registered nurse and who is resident in the hospital; or 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.
DR CONRAD LAM (in Cantonese): Mr President, the Secretary for Health and Welfare has not answered the second part of my question, namely in the course of work of the Department of Health, what has been done to monitor or supervise the private hospitals and to see whether they have conformed to the requirements of the guidelines?
SECRETARY FOR HEALTH AND WELFARE: The Director of Health has dedicated teams to inspect private hospitals and in the course of her work there are mechanisms for sending various questionnaires to hospitals. I believe these questionnaires number something over 50, and these include various aspects of the operation of the hospital. In the course of their work these inspection teams and specialist teams can call in experts from various clinical specialities outside the Department of Health to assist where such specialists are not available in the Department.
DR LEONG CHE-HUNG: The Secretary has told us that there is an ordinance which can suspend the hospital's or clinic's licence. Since the guidelines have been drawn up, I wonder whether the Administration can inform this Council whether there are any hospitals, be they private or public, which have not met the guidelines and their licences would be considered for suspension?
SECRETARY FOR HEALTH AND WELFARE: I shall need to do some research for that question and reply in writing to the Honourable Member. (Annex VI)
DR HUANG CHEN-YA (in Cantonese): Mr President, the Secretary for Health and Welfare mentioned that the structured approaches such as "medical audit" have been adopted to ensure conformance to established professional practice and standards. Can the Administration inform the Council what kind of data or analytical methods are used in medical audit in order to ensure that the services do conform to the required standards?
HONG KONG LEGISLATIVE COUNCIL ― 12 October 1994 100
SECRETARY FOR HEALTH AND WELFARE: This involves a lot of technical detail which I will assure the Honourable Member I will supply in writing. (Annex VII)
WRITTEN ANSWERS TO QUESTIONS
False Curricula Vitae
7. MR ERIC LI asked (in Chinese): Is the Government aware that some staff of the Hong Kong Polytechnic have provided false information in their curicula vitae? If so, will the Government inform this Council whether it will take investigation and prosecution actions on such cases; if not, what the reasons are?
SECRETARY FOR EDUCATION AND MANPOWER: Mr President, the Administration understands that the Hong Kong Polytechnic has investigated the recent allegations made against some of their staff for fabricating information in their curricula vitae and has established that these allegations are groundless. The Polytechnic has written to the magazine concerned pointing out the inaccuracies of its report.
The internal management and appointment procedures of the University and Polytechnic Grants Committee (UPGC)-funded institutions are matters within their institutional autonomy. All of the UPGC-funded institutions have established procedures for examining the validity of information quoted by their staff in their curricula vitae and for taking appropriate disciplinary action, including the termination of appointment if such information is found to be false or fabricated. It would be inappropriate for the Government to intervene in such matters unless requested to do so by the institution concerned or where a formal complaint is made to the police or the Independent Commission Against Corruption.
Control over Private Medical Practices
8. MR ERIC LI asked: Will the Government inform the Council:
(a) are there any ordinances or regulations specifically prohibiting an investor from incorporating a limited company to own a medical practice which is under the direct supervision of a registered medical practitioner or a group of registered medical practitioners;
HONG KONG LEGISLATIVE COUNCIL ― 12 October 1994 101
(b) will the answer to (a) above be different if the investor himself is a registered medical practitioner supervising the relevant medical practice;
(c) what control does the Director of Health exercise over the operations of private medical practices which are not clinics or polyclinics as defined in the Medical Clinics Ordinance; and
(d) will the answer to (c) above be different if the medical practice is incorporated under the Companies Ordinance in the situations as described in (a) and (b) above?
SECRETARY FOR HEALTH AND WELFARE: Mr President,
(a) The provisions governing the incorporation of companies are contained in Part I of the Companies Ordinance (Cap. 32). Section 4 of this Ordinance provides that any two or more persons, associated for any lawful purpose, may form an incorporated company with limited liability. There are no specific provisions which prohibit an investor from incorporating a limited company to own a medical practice which is under the direct supervision of a registered medical practitioner or a group of registered medical practitioners. If the objects of a company do not appear to be illegal, the Registrar of Companies cannot refuse the incorporation.
(b) There are no specific statutory provisions which prohibit an individual doctor or a group of doctors from incorporating a company to carry on the business of medical practice, or to invest in such a business.
(c) Under the Medical Clinics Ordinance (Cap. 343), private consulting rooms used exclusively by registered medical practitioners in the course of their practice on their own account and not bearing any title or descriptions which include the word clinic or polyclinic in the English language are specifically exempted from the registration requirements of that Ordinance. Nevertheless, all registered medical practitioners are responsible for the standard of their professional practice and are subject to the control of the Medical Registration Ordinance (Cap. 161) and the Professional Code of Conduct issued by the Medical Council.
(d) The answer to (c) above is the same whether or not the medical practice is incorporated under the Companies Ordinance in the situations as described in (a) and (b) above.
HONG KONG LEGISLATIVE COUNCIL ― 12 October 1994 102 Place Shortage in International Schools
9. MR MARTIN BARROW asked: Will the Government inform this Council what steps it is taking to overcome the serious shortage of places in international schools, which is hindering the development of Hong Kong as an international business centre?
SECRETARY FOR EDUCATION AND MANPOWER: Mr President, the Government recognizes the importance of providing enough international school places to maintain and develop Hong Kong as an international business centre.
International school places are provided through:
(a) the 14 schools under the English Schools Foundation (ESF) (Annex A); and (b) another 20 international schools.
The ESF schools come under the public school sector, providing a total of 9 915 places at both primary and secondary levels. The other schools are private schools providing a total of some 14 200 places. Government assistance to these latter private schools take the form of land grant at nominal premium and/or subsidy for secondary students if they meet certain criteria including the provision of an English-stream education and being non-profit making in their operations. A list of these schools so assisted are at Annex B.
As at September 1994, there are a total of some 1 100 vacancies in the ESF and Annex B schools.
To meet the increase in demand for international school places ―
(a) the Government has given approval for ESF to operate nine additional primary classes as from September 1994. So far the Foundation has found it sufficient to operate six classes only;
(b) new international school projects due to be completed in the next three years will provide an additional 873 places (473 at primary and 400 at secondary levels); and
(c) both ESF and several other international schools are planning to provide an additional 1 300 places (1 200 at primary and 100 at secondary levels) in the next two years and are seeking the Government's assistance in providing temporary accommodation to enable them to do so. We are actively considering their requests and will assist as far as possible.
HONG KONG LEGISLATIVE COUNCIL ― 12 October 1994 103
Given the current vacancies in international schools and the additional supply coming on stream, there should be little problem in meeting the demand in the short term. Nevertheless, to ensure an adequate supply of international school places in the longer term and with a view to identifying what additional measures would be required to meet this objective, the Government has commenced a comprehensive review in July 1994. The review is expected to be completed in early 1995.
Annex A
Schools under English Schools Foundation
Primary
1. Beacon Hill School
2. Clearwater Bay School
3. Kowloon Junior School
4. Sha Tin Junior School
5. Bradbury Junior School
6. Glenealy School
7. Kennedy School
8. Peak School
9. Quarry Bay School
Secondary
1. Sha Tin College
2. King George V School
3. Island School
4. South Island School
5. West Island School
Annex B
List of Major Non-profit-making International Schools
1. Canadian International School
2. Chinese International School
3. Discovery Bay International School
4. French International School
5. German-Swiss International School
6. Hong Kong International School
7. Hong Lok Yuen International School
8. Kellett School
9. Singapore International School
10. Korean International School
HONG KONG LEGISLATIVE COUNCIL ― 12 October 1994 104 Software on Violence or Sex
10. MR TIMOTHY HA asked (in Chinese): The juvenile market for computer games has recently been flooded with software featuring mainly violence or sex. Some of the software even carries contents and scenes that are hardly different from those of a banned movie. Will the Government inform this Council whether:
(a) it is concerned about the development of this trend; and
(b) any measures will be taken to control the sale of such computer software to youngsters; if so, what the measures are; if not, why not?
SECRETARY FOR RECEATION AND CULTURE: Mr President, computer games are articles subject to the control of the Control of Obscene and Indecent Articles Ordinance (COIAO). It is therefore an offence to sell or hire an indecent computer game to a person below the age of 18. Obscene ones are banned completely.
The Administration is both aware and concerned that computer games stored in CD ROMs or floppy disks readily found in shopping arcades selling computer products may be of an indecent or obscene nature. Enforcement action has been taken. During the period from July 1993 to June 1994, the police and the Customs and Excise Department have taken out 15 prosecutions, under the COIAO, in respect of objectionable CD-ROMs and floppy disks. In eight of these cases, some of the articles seized were computer games.
More recently the Administration has stepped up enforcement action. In the first seven months of this year, a total of 356 prosecutions have been taken out, representing an increase of 234% over the same period in 1993.
In addition, we have made supplementary publicity efforts to promote public awareness through announcements in public interest broadcast on television and radio. Posters and circular letters have also been issued to schools and youth centres to appeal for parents' and teachers' co-operation in educating young people to be more selective and careful in their choice of reading materials and games. Parental and teachers' guidance is particularly effective in the case of computer games because children who wish to play such games have to use computers at home or in school.
HONG KONG LEGISLATIVE COUNCIL ― 12 October 1994 105 Applied Research and Development Fund
11. MR NGAI SHIU-KIT asked (in Chinese): The response of manufacturers to the Applied Research and Development Fund has not been enthusiastic since it was launched in March last year. Loans amounting to some $20 million have been approved up to August this year, constituting only a mere 10% of the available amount. In view of this, will the Government inform this Council:
(a) of the reasons for the poor response of local manufacturers towards the Fund;
(b) whether the application criteria will be relaxed so as to attract more manufacturers to participate in the scheme;
(c) whether, apart from the existing options of equity participation and loan application, consideration will be given to expanding the modes of subsidization so that grant-in-aid will be made available to successful applicants; and
(d) whether it will consider lowering the rate of return for the Fund, which is now set at 5% per annum?
SECRETARY FOR TRADE AND INDUSTRY: Mr President, the Applied Research and Development Funding Scheme is administered by the Government-owned Applied Research and Development Fund Company Limited, which is required to seek a return of 5% on funds advanced from the Capital Investment Fund. Since the scheme was launched in February 1993, there have been some 300 enquiries, leading to 28 applications, of which nine have been approved and six are being processed. This approval rate compares favourably with private sector venture capital companies.
Nevertheless, as the original expectation was that the scheme would help to fund an average of 20 projects each year, the company is considering changes to the scheme to make it more attractive to potential applicants, including streamlining the application process, expanding both the proportion and the scope of expenditure which may be covered by funding, and by making more of the funding available through equity participation rather than repayable, interest-bearing loans. The company has recommended against making outright grants to applicants, but has suggested that the obligation to achieve a 5% rate of return be lifted, noting that this would enable it to offer soft loans and to assume a higher level of risk.
The Government is giving careful consideration to proposals to increase the proportion of expenditure which may be funded and to remove the requirement to achieve a 5% rate of return, both of which would require the consent of the Finance Committee of this Council.
HONG KONG LEGISLATIVE COUNCIL ― 12 October 1994 106 Applied Research Centre
12. MR NGAI SHUI-KIT asked (in Chinese): As the Government is considering setting up an Applied Research Centre to enhance and promote applied research in China and Hong Kong, will the Government inform this Council:
(a) when a final decision on the establishment of the Applied Research Centre will be made;
(b) whether the industrial sector will be consulted extensively before the scheme is finalised, and
(c) what factors will be taken into account as the basis for consideration when deciding on whether to let an existing industry-support organization take the lead in the promotion of the scheme or set up a new corporation specially for this purpose?
SECRETARY FOR TRADE AND INDUSTRY: Mr President, the Government has asked the Industry and Technology Development Council to advise on the establishment of an applied research centre, and expects to receive its recommendations in the near future. Funding proposals will be made to the Finance Committee of this Council as soon as possible thereafter.
The Council brings together representatives from many industrial sectors and organizations, and is thus well placed to reflect the views of the manufacturing sector.
In considering whether a new or existing organization could best discharge the proposed functions of the applied research centre, factors such as the ability and willingness of existing organizations to do so, and the scope for operational and financial synergies would be taken into account.
Corruption-related Complaints and Prosecutions
13. MRS SELINA CHOW asked (in Chinese): Will the Government inform this Council of the number of complaint cases involving corruption activities in the various government departments as well as the number of successful prosecutions in the past year and how these figures compare with those in the previous three years?
CHIEF SECRETARY: Mr President, the government sector accounted for 42% of the 3 284 complaints of alleged corruption reported to the Independent Commission Against Corruption (ICAC) in 1993. During that year, the ICAC
HONG KONG LEGISLATIVE COUNCIL ― 12 October 1994 107
received 1 365 government sector complaints. In 1990, the figure was 1 125, in 1991, 978 and in 1992, 1 032. So far this year, 1 008 complaints have been received.
Not all allegations were capable of investigation. 834 fell into the investigated category in 1993. Corresponding figures for 1990 to 1992 were 513, 577 and 661. This year, 656 complaints were so far capable of investigation.
In 1993, on the advice of the Attorney General's Chambers, prosecutions were conducted against 44 government servants and a further 18 were officially cautioned on advice that prosecution would not be in the public interest. The figures for prosecution in the three previous years were 29, 33 and 26 and for cautions 19, 18 and 25. In 1994 so far, 31 government servants have been prosecuted and 12 cautioned.
Arising from the prosecutions in 1993, 24 government servants were convicted. In the previous three years, the figures were 15, 18 and 15 and so far in 1994, 19 officers have been convicted.
It should be noted that statistics for each year do not precisely inter-relate. Investigations of reports made in one year may and frequently do run into the next year(s) and prosecutions arising from them will be accordingly carried forward from one year to another. In a time of heavy caseload and increasingly complex crime, investigations take longer to complete and this also makes correlation by years imprecise.
Light Rail Transit Accidents
14. WONG WAI-YIN asked (in Chinese): Mr President, with regard to the occurrence of another serious traffic accident of the Light Transit Railway (LRT) at the junction of Tsing Lun Road, Tuen Mun in August this year, will the Government inform this Council of the following:
(a) the total number of LRT traffic accidents in the past three years with a detailed breakdown of the date, time, location, number of casualties and the period during which service has been interrupted;
(b) the number of LRT trains that have been damaged beyond repair since the operation of the LRT, and the loss incurred to the LRT Corporation for repairing trains and other facilities damaged in accidents; and
(c) what measures are in place to prevent the recurrence of accidents; whether the Government will give consideration to:
HONG KONG LEGISLATIVE COUNCIL ― 12 October 1994 108
(i) building more flyovers or tunnels at busy junctions so as to avoid accidents arising from the shared use of the road surface by LRT trains and other vehicles;
(ii) reviewing the present arrangement of giving the right of way to LRT trains at certain junctions through the automated control of traffic light signals; and
(iii) enhancing territory-wide educational publicity?
SECRETARY FOR TRANSPORT: Mr President, there were 28 traffic accidents involving Light Rail Vehicles (LRVs) in 1992, 21 in 1993 and 10 up to the end of September this year, resulting in a total of 150 casualties. Details are annexed.
No LRV has been written off. About $1.8 million has been spent on repairs and maintenance arising from these accidents. Part of the expenses incurred have been recovered from insurance or damages claimed from the other parties involved in these accidents.
The construction of flyovers or tunnels at junctions to segregate LRVs with other road traffic is not a practical proposition given the vast land implications, financial expenditure and operational constraints involved.
LRVs are given a degree of priority at signal junctions. However, the Transport Department monitors road traffic volumes so as to determine whether such priority needs to be adjusted. There is no evidence that the current arrangements have contributed to accidents.
An inter-departmental committee has recently convened to consider ways of enhancing safety and has recommended that:
(a) the Transport Department should ensure that all traffic signs and signals are in order and the phasing of traffic signals is appropriate;
(b) the police should step up law enforcement to deter motorists from ignoring traffic signals and regulations;
(c) "red light" cameras should be installed at some of the road junctions to deter motorists from jumping lights; and
(d) publicity on TV targeted at motorists to exercise extra caution at LRT junctions should be launched.
In addition, the KCRC will also organize more road safety activities in conjunction with the police in Tuen Mun and Yuen Long.
DISRUPTIPERIOD (m
SERVIC
12 October 1994
1-10
X
X X X
X X X X
ACCIDENTS INVOLVING LIGHT RAIL VEHICLES
0
X
X
X
HONG KONG LEGISLATIVE COUNCIL ―
SEVERITY
ACC
SR SL SR SL SR SR SR FA SL SL SR FA SL SR SR FA SL SR SL SR SL SL SL SR SL SR SL SR
NO. OF
CASUL
1 1 1 1 17 1 1 1 1 2 1 1 1 1 1 1 1 1 1 1 1 1 2 1 1 1 1 1
SECOND STREET/
IDENT FEATURE
Tai Tong Rd Tai Tong Rd Tsing Chung Platform LRV Depot LP AFA 7594-6G LP FA 7678 Ming Kum Rd LP 370 PL 18 Kik Yeung Rd Melody Garden Kuk Ting St Tsing Chuen Wai LP 001CS69 Near Tsing Chuen Wai Tai Tong Rd Tin Ha Rd LP FA 2896-9G Hoi Wong Rd Hung Shui Kiu Main St Shek Pai Tau Rd LPFA9631 Nr Tuen Mun Ferry Pier LPAFA2797 Chung Uk Tsuen Platform Platform of On Ting Est LP290PL42 LPYO/6M/061 Ho Fuk Tong LRT Platform
STREET
FIRST
Castle Peak Rd YL Castle Peak Rd YL Tsing Lun Rd Lung Mun Rd Castle Peak Rd PS Castle Peak Rd YL Tsing Tin Rd Castle Peak Rd HSK Castle Peak Rd YL Wu Chui Rd Castle Peak Rd YL Castle Peak Rd LT Wu Chui Rd Castle Peak Rd LT Castle Peak Rd YL Castle Peak Rd HSK Pui To Rd Wu Shan Rd Castle Peak Rd HSK Ming Kum Rd Kin Shing Lane Wu Chui Rd Ming Kum Rd Castle Peak Rd HSK TM Heung Sze Wui Rd Pui To Rd Yau Oi Rd Castle Peak Rd SH
TIME
19:50 18:45 22:38 11:30 14:21 22:00 19:47 05:31 17:18 17:15 07:17 08:33 11:00 07:33 22:35 08:22 09:40 22:30 22:35 08:20 07:16 10:55 18:30 21:00 17:30 08:00 17:33 13:10
DAY
Sun Sun Sun Sat Fri Sat Mon Wed Sat Thu Mon Fri Fri Tue Sat Wed Sat Fri Tue Wed Tue Fri Sun Tue Tue Thu Sat Tue
DATE
02/02/9209/02/9209/02/9215/02/9221/02/9222/02/9224/02/9226/02/9207/03/9226/03/9206/04/9217/04/9217/04/9228/04/9202/05/9206/05/9216/05/9222/05/9202/06/9229/07/9211/08/9214/08/9220/09/9213/10/9227/10/9229/10/9228/11/9208/12/92
1992
Total No. of accidents 28
SL - slight :
SR - serious
FA - fatal
Note
12 October 1994
ACCIDENTS INVOLVING LIGHT RAIL VEHICLES
SERVIC
DISRUPTIPERIOD (m
1-10 X
0
X
X
X
X X X X X X X X
HONG KONG LEGISLATIVE COUNCIL ― 110
SEVERITY
ACC
SL SR SL SR SR SL SR SL SR SL SL SL SR FA SR FA SL SR SR FA SR
NO. OF
CASUL
2 3 2 1 1 1 1 2 1 3 1 1 1 2 19 1 2 1 1 1 1
SECOND STREET/
IDENT FEATURE
LP AH3043-7 Tsing Lun Rd Yung Yuen Rd LRV Track Melody Garden Melody Garden Nr LRV Platform Traffic LP: Mn31 360/05S Fung Cheung Rd Kuk Ting St Nr Nai Wai LRT Platform LP Blg TM Gov't Pri Sch LP Near LRT Platform Wu Shan Rd LP Nr Tsing Chuen Wai LP LRV P No. 360PL26 Castle Peak Rd YL LP Nr Tin King Est Tai Tong Rd Tin Fuk Rd Tin Ha Rd
STREET
FIRST
Tsing Wun Rd Tsun Wen Rd Castle Peak Rd PS TM Heung Sze Wui Rd Wu Chui Rd Wu Chui Rd Ming Kum Rd Castle Peak Rd LT Castle Peak Rd YL Castle Peak Rd YL Castle Peak Rd LT Castle Peak Rd LT Castle Peak Rd HSK Wu King Rd Castle Peak Rd LT Castle Peak Rd LT Long Yat Rd Tin King Rd Castle Peak Rd YL Tin Yiu Rd Castle Peak Rd HSK
TIME
11:17 05:30 12:58 10:58 16:25 18:15 19:28 16:10 11:20 15:29 07:35 11:05 00:45 21:10 12:25 06:15 08:11 11:10 12:45 22:30 10:33
DAY
Wed Sun Sun Fri Mon Fri Wed Thu Sun Sun Thu Thu Sun Mon Fri Thu Sat Tue Fri Tue Mon
DATE
27/01/9321/02/9321/02/9312/03/9305/04/9309/04/9321/04/9306/05/9316/05/9316/05/9327/05/9310/06/9318/07/9319/07/9310/09/9316/09/9318/09/9312/10/9329/10/9309/11/9306/12/93
1993
Total No. of accidents 21
VIC
PTID (m
12 October 1994 HONG KONG LEGISLATIVE COUNCIL ―
ACCIDENTS INVOLVING LIGHT RAIL VEHICLES
1994
(Jan 1 to Sep 30)
SERDISRUPERIO1-10
X X X
0
X
SEVERITY
ACC
SR SL SL SL SR FA SL SR FA FA
NO. OF
CASUL
1 1 1 2 1 1 1 1 5 42
SECOND STREET/
IDENT FEATURE
LP LRV Track CH22.5 M.S CPK Rd LP Hoh Fuk Tong LP LRT Depot Platform LP Sam Shing Est LP LRV Track LP Siu Hong Court LP Fung Nin LRT Platform Wu King Rd LP Sam Hing Tsuen
STREET
FIRST
Castle Peak Rd PS Castle Peak Rd LT Castle Peak Rd SH Lung Mun Rd TM Heung Sze Wui Rd Pui To Rd Castle Peak Rd SH Castle Peak Rd YL Wu Shan Rd Tsing Lun Rd
TIME
19:50 08:05 17:40 14:47 06:23 07:32 08:30 19:15 10:00 12:45
DAY
Wed Sat Fri Mon Mon Tue Sun Fri Fri Sat
DATE
09/02/9412/03/9415/04/9425/04/9402/05/9428/06/9403/07/9415/07/9429/07/9410/09/94
Total No. of accidents 10
HONG KONG LEGISLATIVE COUNCIL ― 12 October 1994 112 Shenzhen River Training Project
15. DR PHILIP WONG asked (in Chinese): It is reported that since the resumption of negotiation on the training of the Shenzhen River in June 1992, the Hong Kong and Shenzhen authorities have finished the cost-effectiveness analysis and the Environmental Impact Assessment on the river training project. Both parties have also agreed to strengthen co-ordination and work positively towards an early commencement of the project. In view of the tremendous influence the Shenzhen River training project will have on the economic development, environmental protection and daily life of the residents in the northern part of the New Territories, will the Government inform this Council of:
(a) its policy on the Shenzhen River training project; and
(b) the date when the first phase of the project will be implemented in co operation with the Shenzhen authorities?
SECRETARY FOR PLANNING, ENVIRONMENT AND LANDS: Mr President,
(a) The Government fully recognizes the importance of the Shenzhen River training project. Our policy on the project is clear and simple: the first phase of the project should commence as quickly as possible to reduce the risk of flooding in both Shenzhen and the northern New Territories of Hong Kong; and we will do all we can to achieve this objective.
(b) There has been good progress on the preparatory work for the project. The Joint Working Group on Shenzhen River Regulation, which comprises representatives from both sides, held its fourth meeting last month. The meeting endorsed the EIA Report for Stage 1 Works and reached agreement that both sides should seek to begin construction as soon in early 1995 as possible. We expect the first phase to begin immediately after land resumption is completed and the Finance Committee has approved the necessary funding. The first phase is scheduled for completion in mid-1997.
Deputy Judge's Pay
16. MISS EMILY LAU asked: In view of the concern expressed by some lawyers in private practice about the low rate of pay for deputy judges in the High Court and District Court and temporary magistrates, will the Administration inform this Council of the following:
HONG KONG LEGISLATIVE COUNCIL ― 12 October 1994 113 (a) the current rates of pay for deputy judges and temporary magistrates; (b) the last time the rates were revised;
(c) whether there are plans for another revision; and
(d) whether the existing rates are considered adequate to attract legal talent to serve on the bench?
CHIEF SECRETARY: Mr President,
(a) The current daily honoraria for Deputy High Court Judges, Deputy District Court Judges and Temporary Magistrates are $4,600, $3,750 and $2,500 respectively.
(b) The rates were last revised in June 1989.
(c) The Judiciary Administration accepts that there is a case for adjusting these rates, and hopes to be able to put forward proposals to the Finance Committee within the next year.
(d) Although the honoraria are not designed to compensate Deputy Judges and Temporary Magistrates for their loss of earnings, the existing rates have not kept pace with inflation. Some practitioners, particularly the more junior ones, have cited this as a reason for their refusal to serve as Deputy Judges and Temporary Magistrates.
Derivatives Trading
17. DR HUANG CHUN-YA asked: In view of the reported heavy losses suffered by several overseas corporations due to trading in derivatives, will the Government inform this Council:
(a) what is the current exposure to derivative-related risk among banks and insurance companies in Hong Kong;
(b) whether the Securities and Futures Commission will require listed companies to report their exposure to derivative-related risks in their half yearly reports so that investors may know more about the risks involved in their investment; and
(c) whether further precautions will be taken to minimize the risk to the financial sector?
HONG KONG LEGISLATIVE COUNCIL ― 12 October 1994 114 SECRETARY FOR FINANCIAL SERVICES: Mr President,
(a) The current exposure to derivative-related risk among authorized institutions under the Banking Ordinance and authorized insurers under the Insurance Companies Ordinance is minimal. For the banking sector, the risk weighted amount of foreign exchange-and interest rate-related derivatives as at 30 June 1994 were only 0.66% and 0.49% respectively of the total balance sheet of the banking system based on the Basle capital adequacy framework. For insurance companies in Hong Kong, it is uncommon for them to invest in derivatives and their derivative holding is primarily for hedging investment risks or efficient portfolio management.
(b) The Securities and Futures Commission (SFC) recognizes the risks associated with derivative-based activities undertaken by listed companies. It, together with the Stock Exchange of Hong Kong Limited (SEHK) and the Hong Kong Monetary Authority (HKMA), have agreed to lay down appropriate disclosure requirements for listed banks to report to the market in their annual reports the exposure to derivatives. Similar requirements have not yet been imposed on listed companies generally. However, the SFC and the SEHK have taken note of the recommendations of the Group of Thirty (United States investment bankers) in their report on derivatives published in August 1993 and the guideline issued by the International Organization of Securities Commissions (IOSCO) in July 1994 on risk management of over the-counter derivative trading. On the basis of these recommendations and the guideline, the SFC/SEHK aim to devise a suitable package of regulations for the local market, including the aspects of disclosure and management controls.
(c) For investors, the SFC has taken steps to ensure that they understand the nature of derivative trading and the risk likely to be involved. The Code of Conduct for Registered persons, which became effective in February 1994, includes the requirement that registered persons under the purview of the SFC should ensure that their clients understand the nature and risks of derivative products and have sufficient net worth to assume the risks involved. This is to make sure that not only are investors well informed about the nature of derivative products, but also that registered persons understand properly the client's financial needs and credit-worthiness before providing services in relation to such products.
The SFC also requires registered persons to set aside sufficient capital to cover their risk exposure related to derivatives. Where appropriate, the calculation may include the use of acceptable risk management models and stress tests using extreme potential market conditions. The SFC may also call on experts to review and
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confirm the adequacy of a registered person's internal control mechanism and his calculation of financial provisions.
For authorized institutions supervised by HKMA, the existing supervisory framework has already taken into account the typical risks associated with derivative transactions. The risk from the various types of derivatives is included in the calculation of interest rate risk in a new return which will be introduced in February next year.
In July 1994, the IOSCO and Basle Committee issued a guideline which highlights the management control mechanisms effectively to control and reduce risk associated with derivative trading, that is credit risk, market risk, liquidity risk, settlement risk, operation risk and legal risk. The SFC and the HKMA have issued a paper for public consultation and the response from the market so far have been supportive of the measures. It is proposed that the SFC will adopt the guideline as a statement of best practice to be complied with by registered persons. HKMA will also turn the Basle Committee guideline, which focuses on high level controls, into a formal guideline later this year, to be supplemented by a more detailed guideline next year on the operational aspects of risk management of derivative products.
Prevention of Bribery Ordinance
18. MS ANNA WU asked: According to recent public reports, the Legal Department now avoids relying on the presumption provisions of section 25 of the Prevention of Bribery Ordinance (Cap. 201) in its prosecutions under the Ordinance because it believes section 25 may have Bill of Rights implications. Will the Government inform this Council of the following:
(a) the Legal Department's policy concerning section 25 of the Prevention of Bribery Ordinance; and
(b) whether there are any other statutory provisions that the Legal Department, the police or other law enforcement agencies have placed in disuse in their criminal prosecutions because of those provisions' possible inconsistency with the Bill of Rights?
ATTORNEY GENERAL: Mr President, the answers to Ms WU's questions are as follows.
(a) Section 25 of the Prevention of Bribery Ordinance relates to prosecutions for bribery under section 4 or 5 of that Ordinance. It provides that, where it is proved that the accused gave or accepted
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an advantage, the advantage shall be presumed to have been given and accepted for the purposes alleged in the particulars of the offence, unless the contrary is proved. In the light of case law under the Bill of Rights Ordinance concerning presumptions, prosecutors have been instructed to invite the courts not to rely upon section 25. Instead, prosecutors will need to prove that an alleged advantage was given and accepted for the purposes alleged. Should the section be challenged as being inconsistent with the Bill of Rights Ordinance, prosecutors are instructed to inform the court that it is the Crown's view that the section has been repealed by the Bill of Rights Ordinance.
Section 25 of the Prevention of Bribery Ordinance is being considered by the independent ICAC Review Committee in the light of legal advice concerning the Bill of Rights Ordinance.
(b) It is not the policy of the Administration to decline to rely on any provision of the criminal law because it may possibly be inconsistent with the Bill of Rights Ordinance. However, if my department considers that such a provision is inconsistent with the Bill of Rights Ordinance, prosecutors will be instructed not to rely upon the provision and legislative steps will be taken to delete the provision from the Ordinance concerned. Some provisions have already been deleted for this reason. Steps are being taken to delete the following additional provisions:
(i) section 8(d) of the Summary Offences Ordinance (Cap. 228), which makes it an offence for people to assemble in the night-time without reasonable excuse, or for a person to fail to report such an assembly;
(ii) section 30 of the Summary Offences Ordinance which makes it an offence for a person to be in possession of anything reasonably suspected of having been stolen and to fail to give a satisfactory account of how he came by that thing;
(iii) section 4(4) of the Massage Establishments Ordinance (Cap. 266), which provides for an enhanced penalty in certain circumstances, unless the defendant proves certain facts;
(iv) section 29(6)(a)(i) and (ii) of the Theft Ordinance (Cap. 210), under which two presumptions operate against a person accused of certain offences involving the dishonest use of cheques; and
(v) section 40(a) of the Dutiable Commodities Ordinance (Cap. 109) which creates a presumption that any goods to which the Ordinance applies are dutiable goods.
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Provisions to delete items (i), (ii), (iii) and (iv) on this list are contained in the Administration of Justice (Miscellaneous Provisions) Bill 1994, which is now before this Council. It is proposed to introduce into this Council, during the current Session, a provision to delete or amend the other item.
Shared Public Housing Units for the Elderly
19. MR WONG WAI-YIN asked (in Chinese): As elderly people sharing the same public housing unit are frequently in conflict with each other and may even end up in bloodshed, will the Government inform this Council of the following:
(a) the total number of such cases in the past three years;
(b) given that long-standing grudges are believed to exist between both parties before the bloodshed, how the authority concerned would handle such situation and how many such cases have been received in the past three years; and
(c) how similar cases can be prevented from occurring, whether consideration will be given to building more single person hostels to gradually replace the existing mode of providing public housing units to elderly people on a sharing basis?
SECRETARY FOR PLANNING, ENVIRONMENT AND LANDS: Mr President,
(a) In the past three years, there were seven cases of conflict between elderly people in shared flats in public housing estates which resulted in injury or death. Four deaths were caused.
(b) There are 10 790 tenants sharing accommodation in public housing estates. In the past three years, 490 complaints about conflict were received. In such cases Housing Department staff normally interview those concerned to try to resolve the dispute. While many disputes are resolved or defused in this way, others are referred to the Social Welfare Department for counselling and assistance, including medical and psychiatric help and the provision of home care.
Where disputes appear more serious, transfers are arranged by the Housing Department as soon as practicable. In the past three years, a total of 161 transfers have been arranged in such circumstances.
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(c) As well as making units with shared facilities available to elderly tenants for whom such accommodation is suitable, the Housing Department also provides purpose-built self-contained flats for one or two-person households as part of the public housing development programme. A total of 38 000 small flats, new and refurbished, will be available for allocation to one or two-person and mostly elderly households from 1994-95 to 1998-99.
The Housing Department has also adopted other measures to prevent and resolve conflicts among elderly tenants. Under the Housing for Senior Citizens Scheme, hostel accommodation with a warden service to help residents get on together better is provided. There are now 15 Housing for Senior Citizens projects, with another 38 providing 4 900 places coming on stream in the next five years,
In addition, the Housing Department started an Estate Liaison Officers Scheme in 1991 to look after the elderly in public housing estates. This Scheme has been extended to 10 estates.
BILLS
First Reading of Bills
MATRIMONIAL CAUSES (AMENDMENT) BILL 1994
TIMBER STORES BILL
BUILDINGS (AMENDMENT) (NO. 2) BILL 1994
Bills read the First time and ordered to be set down for Second Reading pursuant to Standing Order 41(3).
Second Reading of Bills
MATRIMONIAL CAUSES (AMENDMENT) BILL 1994
THE SECRETARY FOR HOME AFFAIRS moved the Second Reading of: "A Bill to amend the Matrimonial Causes Ordinance."
He said: Mr President, I move that the Matrimonial Causes (Amendment) Bill 1994 be read a Second time.
The law of divorce in Hong Kong has remained essentially unchanged since the early 1970s. Since then, there have been significant changes in community attitudes towards divorce. It is against this background, and with
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due regard to the outcome of wide-ranging consultation and a survey of public opinion, that the Law Reform Commission has recommended a thorough overhaul of this area of the law. The Matrimonial Causes (Amendment) Bill 1994 seeks to implement the Law Reform Commission's recommendations.
Under the present law, divorce proceedings must be conducted on the adversarial basis of petitioner and respondent. The sole ground for divorce is irretrievable breakdown of marriage. To establish this state of affairs, applications for divorce have to be based on one or more of five facts. These include separation for two years where both parties consent to the divorce and separation for five years where one party does not consent. The present law also provides that petitions for divorce cannot normally be made until three years after marriage.
The reforms embodied in the Bill are intended to bring the law of divorce into line with current day community expectations and reduce the hardship, acrimony and distress in divorce proceedings. These aims are to be achieved by reductions in the minimum periods of separation and marriage before divorce proceedings may be commenced, as well as through provision of a new non-adversarial procedure of divorce by mutual consent. Proceedings on this basis may rely on the facts of either one year's separation or one year's prior notice of intention to divorce during which there would be no separation requirement.
The opportunity has also been taken in the Bill to remedy provisions in the principal Ordinance for differential treatment between the sexes with respect to the court's jurisdiction and divorce proceedings citing the fact of adultery, which may not be compatible with the Bill of Rights.
Turning to the main parts of the Bill: clauses 3 to 6 provide for husbands and wives to be subject to the same criteria with respect to the court's jurisdiction in matrimonial proceedings under the Ordinance. Habitual residence in Hong Kong for three years is included as a new basis for jurisdiction.
Clause 7 provides for reductions in the minimum periods of separation in divorce proceedings from two years to one year, where both parties consent, and from five years to two years, where one party does not consent. With the latter reduction, the current fact of desertion for two years will become redundant. Accordingly, this clause provides for its repeal. The clause also provides for the new procedure of joint application for divorce by mutual consent.
With respect to the current three-year prohibition, except in special circumstances, on divorce early in marriage, clause 8 provides for a reduction to one year.
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Clause 9 provides for proceedings for divorce in cases of prior judicial separation to take account of the new procedure of joint applications for divorce. It also provides for husbands and wives to be treated equally in divorce petitions citing adultery.
Clause 16 provides for the abolition of actions for damages for adultery. Bill referred to the House Committee pursuant to Standing Order 42(3A).
TIMBER STORES BILL
THE SECRETARY FOR SECURITY moved the Second Reading of: "A Bill to regulate timber stores."
He said: Mr President, I move that the Timber Stores Bill be read a Second time. This Bill seeks to establish an independent ordinance for the licensing of timber stores.
The licensing of timber stores is at present affected under the Miscellaneous Licences Ordinance, which covers a variety of unrelated establishments, ranging from auctioneers to timber stores, public dance halls and physiotherapy clinics. In 1982, the various licensing functions under the Ordinance were reviewed; it was decided that the Ordinance should in due course be repealed, after each licensing function was provided for elsewhere or abolished.
A licensing system for timber stores is necessary to ensure fire safety. Without a licensing system, the Director of Fire Services would not be able to ensure compliance with the fire safety standards and requirements in timber stores. The most practical way of providing a licensing system is to enact an independent ordinance relating to timber stores, of which there are now about 120 operating in the territory.
The provisions in the Bill generally follow those at present in the Miscellaneous Licences Ordinance. But there is one new provision in clause 10, whereby any person aggrieved by a decision of the Director of Fire Services in a matter relating to a timber store licence may appeal to the recently established Administrative Appeals Board.
The Bill also updates the fees charged for timber store licences, which have not been revised since 1984. The fees will be increased to achieve cost recovery for the processing of applications for the grant, renewal, transfer, amendment and duplication of a licence.
Bill referred to the House Committee pursuant to Standing Order 42(3A).
HONG KONG LEGISLATIVE COUNCIL ― 12 October 1994 121 BUILDINGS (AMENDMENT) (NO. 2) BILL 1994
THE SECRETARY FOR PLANNING, ENVIRONMENT AND LANDS moved the Second Reading of: "A Bill to amend the Buildings Ordinance."
He said: Mr President, I move the Second Reading of the Buildings (Amendment) (No.2) Bill 1994.
The Bill deals with three separate matters, namely, the control of hand-dug caisson operations, compatibility with the Bill of Rights and the control of ground investigation in designated sewage tunnel areas.
Clause 3 of the Bill requires the Building Authority to refuse to approve building plans where the building works concerned involve the construction of hand-dug caissons except under certain circumstances, essentially where this is the only practical method because of site constraints. This is to reduce the risks to the health and safety of those working in such circumstances to an absolute minimum.
Section 40(6) of the Buildings Ordinance provides that where an offence has been committed by a body corporate, partnership or an unincorporated association, any person who was the director, manager, partner, secretary or other similar officer shall also be deemed guilty unless he proves that the offence was committed without his consent or connivance and that he exercised all diligence to prevent the commission of the offence. This provision may be held by the courts to be consistent with the Bill of Rights where the offence is a strict liability one and inconsistent where the offence is not. Clause 5 amends section 40(6) of the Ordinance so that it is consistent with the Bill of Rights.
The Government has proposed the construction of sewage tunnels under the Strategic Sewage Disposal Scheme. A developer or contractor may be unaware of the existence of a sewage tunnel, and employ a drilling rig to take soil samples for analysis or carry out other works nearby. Under existing law, he needs no approval for such ground investigation works. As a result the construction of a tunnel may be affected and a tunnel may be damaged if works of this kind are not controlled. Clause 6 adds sewage tunnel protection areas to the Fifth Schedule to the Ordinance so that ground investigation works to be conducted in such areas require the approval of the Building Authority.
Thank you, Mr President.
Bill referred to the House Committee pursuant to Standing Order 42(3A).
HONG KONG LEGISLATIVE COUNCIL ― 12 October 1994 122 ORGANIZED AND SERIOUS CRIMES BILL
Resumption of debate on Second Reading which was moved on 15 July 1992 Question on Second Reading proposed.
DR PHILIP WONG: Mr President, the Bill was introduced to address the wide public concern about the extent of organized and serious crimes in Hong Kong. The Bill seeks to improve the Administration's ability to investigate and prosecute these crimes by four distinct methods which are explained at the moment.
The Bill was introduced in July 1992. Concern has been expressed now and then as to the time that it has taken the ad hoc group set up to study the Bill to conclude its deliberations. Time apparently does not allow me as convener of the ad hoc group to report on every detail that has been considered. The resulting 29 pages of Committee stage amendments, to be moved by the Secretary for Security will tell for themselves the efforts made by all parties concerned in accommodating the different views and in addressing the most controversial aspects about the Bill.
Indeed, Mr President, the Bill is controversial in a number of aspects. Some provisions are draconian. The objective of the ad hoc group has been to ensure that, between the need to combat organized and serious crime and the need to ensure that any powers go given will be no more than absolutely needed, the right balance is struck.
Definition
The balancing exercise began with the definition.
"Organized crime" is the theme of the Bill. It is hence necessary to ensure that we have the right definition from the outset. The definition in the Bill is however too wide and vague as it refers to "organized crime" as "any Schedule 1 offence committed by two or more persons". In effect, the definition could cover such trivial cases as two school girls stealing a chocolate bar from a supermarket. Apparently, these cases should not be the target of the Bill. It is true that there are a number of checks and balances within the relevant provisions to safeguard against abuses. It is however the ad hoc group's strong belief that the the definition should itself be carefully circumscribed to ensure that the focus is not missed. Amendments will be moved by the Secretary for Security to restrict the definition. On this the Honourable Martin LEE submitted a separate amendment. I will explain the majority's views on this point at the Committee stage.
HONG KONG LEGISLATIVE COUNCIL ― 12 October 1994 123 I now come to the specific measures.
Powers of Investigation
Clauses 3, 4 and 5 provide for additional investigation powers. Clauses 4 and 5, providing for production orders and search warrants, are an expansion of existing provisions in other ordinances. Clause 3 is novel. It may require a person, or persons of a particular description, to provide information or produce material relevant to the investigation of an organized crime. The main feature of a clause 3 order is that no person subjected to an order may claim right to remain silent; right against self-incrimination; right of privacy; or obligation of secrecy.
It is difficult to strike a balance between the public interest in the investigation and prevention of crime and the public interest in upholding civil rights. After very careful and painstaking balancing, in the context of the Hong Kong Bill of Rights Ordinance and with reference to the laws in other common law jurisdictions, the ad hoc group generally accepted that certain rights of an individual may have to be abrogated to a certain extent for a justified and necessary public purpose. On this principle, a series of amendments are however considered necessary. I will leave it to the Secretary for Security to explain details of these amendments. The Honourable Martin LEE has submitted some separate amendments in respect of clause 3. I will explain the majority views on this aspect at the Committee stage. I now turn to two related and important issues.
In order to ensure proper treatment of a person served with a clause 3 order, there will be a new sub-clause to provide for a code of practice to be drawn up and approved by the Legislative Council. The code should prescribe procedures with regard to how interviews should be conducted; how material should be produced and how complaints should be handled. It is expected that the code will be submitted to this Council for approval soon after enactment of the Bill and before implementation of the clause 3 power.
It is also the unanimous view of the ad hoc group that a formalized and effective witness protection system is imperative. On this the Administration has made positive proposals to set up a dedicated unit within the police to take up witness protection matters to provide special arrangements to persons served with a clause 3 order and to set up an appeal board, with lay participation and before implementation of clause 3 to consider refusal of requests for protection. Review will also be conducted regularly on the capacity of the dedicated unit in meeting demands. The Legislative Council Security Panel has been entrusted to follow up on these issues.
Another provision in connection with clause 7 makes it an offence for anyone to prejudice an investigation taking place under clause 3, 4 or 5. The concern is the need to safeguard the investigations and the persons who assist in the investigations as well as freedom of expression. The ad hoc group
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considered that the provision as proposed in the Bill is too wide. It has been eventually agreed to restrict the provision. The Honourable Martion LEE considers that one amendment does not go far enough. I will elaborate on the majority view in this regard when it comes to the Committee stage.
Confiscation
The confiscation provision in clauses 8 to 24 of the Bill are modelled on the Drug Trafficking (Recovery of Proceeds) Ordinance (Cap. 405).
The Bill proposes to enlarge the regime so that it is invokable upon conviction of a specified offence and when the person has benefited from crime. A confiscation order may cover the person's entire proceeds of crime. The focus of the ad hoc group was on whether this enlarged regime is appropriate.
The ad hoc group accepted that confiscation is an effective means to crack down on the economic power of organized crime groups and to uphold the principle that crime should not pay. The enlarged regime is however worrying because it may effectively cover a minor theft and proceeds of that theft.
The Administration has been receptive in accepting the ad hoc group's suggestion of restricting the provisions so that there will be separately a general power and a special power to confiscate. I will entrust the Secretary for Security to give details at the Committee stage.
Money Laundering Offence
Clause 25 proposes a general money laundering offence which is an extension from the current provision in Cap. 405 relating to drug money.
The ad hoc group recognized the merit of a wider provision against money laundering. Yet, the present proposal to enlarge the provision to such an extent as to cover all proceeds of crime will net even trivial cases. It may create unnecessary burden on innocent third parties who routinely handle money on behalf of their clients, for instance, bankers, lawyers, estate agents, and so on. The Administration has assured us that these legitimate trades are not their target. It has been agreed to limit the provision to proceeds of indictable offences; and proceeds of foreign offences which would amount to an indictable offence in Hong Kong. This latter application will help combat the internationalization of crime and prohibit criminals from making Hong Kong a haven of money laundering.
Sentencing in respect of Specified Offences
Clause 27 provides that, where a person is convicted of a specified offence, the prosecution may submit certain information to the court to enable it to impose a more severe sentence within the maximum penalty prescribed for that particular offence. The proposal is intended to address the public concern
HONG KONG LEGISLATIVE COUNCIL ― 12 October 1994 125 that sentences in certain cases are not heavy enough to maintain a deterrent effect.
The ad hoc group generally accepted the object of the proposal and agreed that an appropriate sentence is an essential part of the administration of justice. There are however a number of contentious issues that require amendments. For instance, references will be deleted as to whether a person's previous conviction amount to an organized crime. procedures will be prescribed as to when and how the specified information should be submitted. There will also be specific provision to challenge the information.
Money Lending Offence
I should also like to mention a consequential amendment relating to section 24 of the Money Lenders Ordinance (Cap. 163).
The money lending offence is mostly associated with loansharking which is a prime activity of organized crime group. The current penalty of two years' imprisonment and a fine of $100,000 is drastically inadequate to reflect the seriousness of the offence. The Administration has agreed to raise the maximum of the penalty to 10-year imprisonment and a fine of $5,000,000, in addition to making the offence indictable and so bringing it properly within the scope of the confiscation and sentencing provisions of the Bill.
Conclusion
Mr President, the Bill is important and complex. It has significant legal and social implications. The ad hoc group has made strenuous efforts to accommodate the different concerns that have been expressed. On this, I must thank various public and professional bodies that have submitted their views on the Bill, in particular the Hong Kong Bar Association and the Law Society of Hong Kong, for their professional input. I must also thank the government officials and my honourable colleagues for their time and effort, and in particular the Honourable Simon IP for his valuable assistance as deputy convener of the ad hoc group and his leadership as convener of the technical subgroup.
Mr President, crime is a concern of everybody in the community. The exceptional provisions in this Bill invite as much concern as a monitoring measure, the ad hoc group has requested the Administration to give an annual report to the Legislative Council, and also a comprehensive review after three years, on the operation and effectiveness of the various provisions in the Bill. I await the undertaking of the Secretary for Security on this request.
Mr President, with these remarks, I support the Second Reading of the Bill.
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MRS SELINA CHOW (in Cantonese): Mr President, colleagues from the Liberal Party and I affirm and support the Organized and Serious Crimes Bill and the amendments to be moved by the Secretary for Security. In terms of meeting the needs of society, combating crimes and safeguarding the spirit of the rule of law, this Bill will undoubtedly have positive, beneficial and stabilizing effects on society.
One of the major objectives of the Organized and Serious Crimes Bill is to stamp out triad activities.
In 1993, there were 3 487 criminal cases involving triad societies. Although in comparison with the number of cases in 1992 there was a drop of 13.2%, we would be over-optimistic if we became complacent by looking at the figures alone because these figures only represent the cases reported by the public and crimes detected by the police. The actual figures may rise sharply if cases unreported by the public and crimes undetected by the police are taken into account, let alone the fact that it is the usual practice of triad societies to intimidate the public and deter them from reporting crimes. A more reliable indicator would be an assessment of the actual number of persons victimized or intimidated by way of a statistical survey similar to that conducted in the past by the Government on the various criminal activities. Now there is a need to conduct a similar statistical survey on the activities of large organized criminal syndicates to ascertain the extent of the problem.
Of course, actual statistical data of criminal cases would be useful. Last year alone, the number of blackmail and intimidation cases involving triad societies reached 651. Moreover, criminal activities such as car theft, drug trafficking and illegal gambling are mostly controlled by triad societies or organized criminal syndicates. Today, triad societies have even grown into enterprise-like multinational syndicates. Therefore, it is high time to enact new laws to deal with organized and serious crimes.
Now is the time to declare war on triad societies and organized criminal syndicates. The passage of this Bill will equip the law enforcement body with effective weapons to deal with organized crimes. This complicated Bill has taken the ad hoc group about two years to scrutinize. During this period, the Administration expressed dissatisfaction with the ad hoc group and even criticized it openly. Of course, at a time when organized criminal syndicates were expanding incessantly, we could not blame the Administration for being impatient. However, this is a very complicated Bill. With the foremost consideration of safeguarding the public interest in mind, Members had to reach a compromise over human rights which may affect every citizen. How then could Members afford to act carelessly? Moreover, the Administration has put all the blame on Members without enquiring the reasons. This is not only unfair but also shows that the Administration does not acknowledge and treasure the past co-operation between this Council and the executive arm of government.
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In fact, in the course of scrutiny of the Bill, important issues covered by the original Bill were improved. I firmly believe that after in-depth debates and compromises, we and the Administration have struck a proper and reasonable balance. Issues such as the definition of organized crimes, the substitution of the high court for the district court as the judicial organ to issue an order for production of materials, the time for the prosecution to put up a request of classifying the case as an organized crime for rigorous treatment during the course of trial, arrangements for the protection of witnesses, and even the guideline for the police to handle witnesses have all been debated in detail. I believe that after the several amendments by the Administration, the Bill has struck a proper balance. I also believe that the amendment proposed by the Honourable Martin LEE would seriously weaken the ability to combat triad societies and criminal syndicates. During the Committee stage, the Honourable Miriam LAU from our Liberal Party will speak on and explain these amendments.
As far as crime-fighting is concerned, it can be said that the Bill will be conducive to prevention of crime on the one hand and facilitate investigation of crime on the other. I would like to elaborate on these two aspects.
As regards prevention of crime, the Bill not only provides for offences in respect of the proceeds from crime committed by the convicted, but also offences in respect of assisting others to retain the proceeds from crime. The Bill also provides for imposition of heavier penalties on those involved in organized or serious crimes. All these will greatly reduce the temptation for and the returns derivable from committing crime and increase the deterrent and preventive effects on crime.
As regards investigation, the Bill increases the investigative power of the police in respect of organized and serious crimes. With the power conferred by the courts, the police can require a person who knows the relevant information under investigation to answer questions, or require a person in possession or control of the relevant materials under investigation to produce the materials. This will undoubtedly be a morale booster to police officers and will help them conduct in-depth investigation into complex crimes, obtain information on criminals, and understand the network, connections and economic power in respect of organized crimes and thereby destroy the criminal network.
The expansion of the police force and its powers has, in the meantime, caused much public concern. A choice need to be made and a balance need to be struck between the right to remain silent, that is to say, the right to privacy of the individual and the public interest. Undoubtedly, the Bill allows the expansion of police powers in the public interest and the definition of public interest is of great importance to this Bill. The Bill provides for a restrictive arrangement involving the three powers, that is to say, the three arms of government, to ensure that there will not be abuse of power. First, the ambit of the exercise of power is defined by legislation. The law enforcement body will be subject to certain checks and balances as regards investigation. The
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conferment of power by the Attorney General and the approval by the Judiciary can also function as appropriate checks and balances.
While checks and balances on power are certainly important, it is also equally important to vest the police with sufficient power to conduct effective investigations and combat organized criminal syndicates.
However, effective crime-fighting cannot be achieved through legislation alone. It will also depend on the manpower of the police and more importantly the determination of the Administration. Therefore, in addition to conferment of power by this Council, the Administration should also allocate more resources and manpower to the police force so that it will have the ability to combat criminal activities effectively.
MR MARTIN LEE: Mr President, organized crime has been a long standing problem in Hong Kong. As Honourable Members are aware, triad organizations subject their victims to a wide range of terrible offences. They extort, they steal, they kidnap, and they kill ― to list but a few ― and they profit handsomely from these acts. The triads have become menances not just in Hong Kong ― or even in Asia. Their organizational network, headquartered here, has spread across the globe to reach major cities in Europe and North America. And as their networks grow, they become even more difficult to stamp out.
We are all quite familiar with the problem. Everyone in Hong Kong wants to see an end to the triads and the damage they do to our society and our economy. The Democratic Party and its predecessors have always taken a strong stand against organized crime, and we will continue our efforts to stamp out such crime in our city.
The real question is: how? How do we put an end to organized crime?
The Government has been trying to combat organized crime for years. An entire bureau of the police force is dedicated to anti-triad operations, but despite their very hard and very courageous work, they have made little headway against these organizations.
The problem, the Administration concluded, must be with the law. Officials believe that our criminal legal system does give the police enough punch to fight organizations that may be larger and more developed than many international business operations. They are certainly more tightly knit ― the triads are secret societies bound together by their own cryptic oaths and codes of behaviour ― codes that require absolute silence to the outside world on their cohorts' affairs, much more closely knit than our august body, the Executive Council. They are hierarchical groups, with network upon network of small-time hoodlums carrying out orders from their superiors. Tough nuts to crack indeed.
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And so it was under these circumstances two and a half years ago that we were handed the Organized and Serious Crimes Bill (OSCB) and its companion, the Criminal Procedure (Amendment) Bill 1992. These are intended to be the special tools that will break the unbreakable, namely, triad syndicates.
The OSCB strengthens the Administration's crime-fighting tools by allowing them to pull in people who, in the reasonable opinion of the police, know of or possess something valuable to an investigation. The police can then question them and demand that they produce various materials. This is an investigative power that goes beyond any statute or principle of common law we now have in Hong Kong. It is not a power to approve too quickly in a community which enjoys the rule of law and is protected by a Bill of Rights and the International Covenant on Civil and Political Rights (ICCPR).
Among other provisions, the OSCB also slaps persons convicted of certain listed offences with stiffer penalties and snatches away from them the proceeds of their crimes.
This is all well and good. It is our duty as legislators to ensure that the police have the powers they need to fight crime and preserve public safety, and after our vote this afternoon, they will have at their disposal a new strong law to fight some very tough criminal organizations.
But I need not remind Honourable Members that we have another very serious responsibility as legislators ― to protect the freedoms of Hong Kong people. This is perhaps our most important role as public servants in this Council. We alone stand between the Government and the people, and so we alone can protect the basic liberties of the people from improper government encroachment.
Part of our constitution, the Letters Patent, commands that we take this duty seriously. The second sentence of Article VII(3) reads, "No law of Hong Kong shall be made ..... that restricts the rights and freedoms enjoyed in Hong Kong in a manner which is inconsistent with (the ICCPR) as applied to Hong Kong."
It is when faced with a Bill like the OSCB that these words speak the loudest. We must be ever so careful when granting the Government new powers to investigate and punish crime, not to sacrifice the basic civil liberties that we all cherish so dearly. I am talking about the right to the protection of privacy, the right to liberty and security of person, and the right to a fair and public hearing ― rights which must be respected and which make our city one of the freest in Asia.
Honourable Members will surely see that if in the name of fighting triads we pass legislation that unduly interferes with our basic civil rights, we will be doing our community a disservice.
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So the whole process really comes down to a balancing act. On the one hand, we want to strengthen police powers so the Administration can be effective against organized crime, but on the other hand, we have to safeguard our basic freedoms from improper government interference.
The ad hoc group has worked long and hard with the Government to reach the perfect balance. However, I cannot agree that the OSCB, as revised by the Government's Committee stage amendments, represents the best possible outcome, because I believe that the balance has been weighted too heavily in favour of strong police powers in clauses 2, 3, and 7. I have drafted amendments to them so that a more proper and even balance may be struck ― and in line with the Bill of Rights Ordinance and ICCPR.
I also believe that the abolition of the corroboration of accomplice evidence rule in the Criminal Procedure (Amendment) Bill, the next Bill to be looked at, tips the scale too far in favour of the Government, and I therefore will oppose that Bill. I will give my reasons for this position when the Bill comes up for debate.
My three proposed amendments to the OSCB and my opposition to the Criminal Procedure (Amendment) Bill have been outlined in a paper distributed to Honourable Members on Monday.
Mr President, I would like now to respond to a few of the arguments which the Administration has put forward in opposition to my proposals.
Be Realistic
When the Government prepared the OSCB, it came as a great relief to many in Hong Kong and overseas. We were all looking for a quick and easy solution to what is obviously a complex and difficult problem.
But as legislators, we cannot let our hopes cloud reality. It would be woefully irresponsible for us to pass a law as important and powerful as the OSCB without a hard and realistic look at its likely effects. This means looking beyond the intentions of the government sponsors and to the actual words of the Bill.
If we are honest with ourselves and the people of Hong Kong, we have to admit that the upside of the Bill does not appear to be very great. I am not saying that there is no upside; I am merely pointing out that as much as we would like it to be, the OSCB will not be a miracle cure for the triad disease.
The Administration may well have some success with its new powers, but realistically, organized crime is not going to come to an end just because prosecutors can threaten these hardened criminals with longer prison sentences or because they can drag people in for questioning and threaten them with a maximum sentence of one year of imprisonment and a maximum fine of
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$100,000 if they do not co-operate. Again, I am not saying we should oppose the OSCB, but we should have a realistic picture of how it will affect Hong Kong.
Now look at the downside. The OSCB gives away broad powers, leaving us with little control over how the police use them. Members need only consider recent Legislative Council probing of the Independent Commission Against Corruption to understand this problem. These powers, if abused, could seriously threaten our basic civil liberties and, to be realistic, the risk of abuse is not small.
We need to minimize the downside by narrowing the area of possible abuse as much as possible. In fact, the ICCPR and the Bill of Rights require us to engage in just this exercise as part of our duty to protect the rights of Hong Kong people. The law states that whenever the Government comes to us with a bill that may infringe our most fundamental liberties, we can permit it ― but only if the Government has a specific goal that is clearly important and only if the bill makes just the minimum necessary interference with our rights as is appropriate in a democratic society.
So, as Honourable Members deliberate on the issues, I wish to remind them of their duty under the law to ensure that every power we, the legislature, give the Administration is addressed exclusively to the Bill's intended purpose ― to fight triads as the Honourable Mrs Selina CHOW said ― and that it will only restrict our basic rights to the smallest possible extent.
Mr President, let us look for a moment at the experience in another country with a strong anti-organized crime law. The United States Congress passed the Racketeer Influenced and Corrupt Organizations Act (or RICO as it is known there) in 1970. It was drafted to deal with organized criminal syndicates just like our Bill, although, admittedly by slightly different means. In fact, a member of the Attorney General's Chambers was sent to the United States to examine the American experience with their special law. Now, RICO has in its provisions an extra safeguard on top of what we have in the OSCB; because the prosecution there must first prove the existence of criminal syndicate before it can use the special power of RICO. And still, RICO has been applied beyond its intended targets ― against defendants and for purposes that even RICO's own author did not expect.
That man, Mr G Robert BLAKEY, wrote in a recent issue of the United States magazine the National Review, "Should RICO ..... be applied beyond a John GOTTI (boss of New York's largest mafia family) or a Charles KEATING (kingpin of the United States savings and loan scandal which has cost the United States several billions of dollars) to a Mahatma GANDHI or a Martin Luther KING? I thought not when ..... I drafted the Act ....." But Mr BLAKEY then goes on in his article to describe how shocked he was to see his Act being used to stiffle the free speech rights of anti-abortion demonstrators.
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Like RICO was for the United States, the OSCB is an entirely new step for Hong Kong. We should therefore proceed with extreme caution so that we do not face the same problems that the Americans are dealing with under RICO. If a more balanced OSCB does not meet with success, the Administration can always come back to us, explain the situation, and ask for more power.
Safeguards and Our Role as Legislators
In opposition to my concerns, the Security Branch has argued in a paper that Members should not worry about handing broadly defined powers over to the police. Two points have been made. First, the Administration promises that investigators will only use the OSCB when they are reasonably sure that organized crimes are involved. And second, the Attorney General must apply to the High Court for permission to be given to employ special OSCB powers.
As far as the first comment is concerned, Members will recall that under the rule of law, our Ordinances apply equally to everyone. If a law is of general application and it is clear in its terminology, the words of the Security Branch cannot change that law and narrow its application to only certain people or acts. The comments of policy secretaries have no legislative effect. Only the Bills that we pass in this Council into law have.
And a requirement that the High Court gives the Attorney General permission before he invokes certain powers under the OSCB is not much of a safeguard against police powers if a law clearly confers broad powers to the police. It is the role of judges in our system of government to interpret the law ― it is ours, fellow Members, to legislate. It is our job, then, and not that of the High Court Judge, to set the standards on which judges base their decisions. If we give judges a poorly drafted and ambiguous law that grants the Administration broad powers, the judges' job is made all the more difficult. If, on the other hand, we pass a law that hands clearly defined powers to the police, judges' jobs become easier, and prosecutors can better determine when to press charges in court; and the public is also better informed about the laws that govern them.
As a final safeguard, the Administration may contend that any clause violating the Letters Patent/ICCPR will be removed in litigation under the OSCB. The reality, however, is that any such litigation will reach the top of our judicial system over a very long time, during which our basic rights will continue to suffer. And how foolish all of us will then look not to have amended the law here in Committee when we should have.
As there is no time limit at the Committee stage, I shall give my reasons only at that point, and with these remarks, Mr President, I support this Bill. But I shall be proposing three amendments in due course.
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MRS ELSIE TU: Mr President, as a member of this ad hoc group, I should like to say a few words on the Bill and on Mr Martin LEE's objection to some parts of it.
I have for many years dealt with the less privileged who get on the wrong side of the law, so I fully understand the reasons why these amendments have been proposed by Mr LEE. Fundamentally, the amendments proposed by Mr LEE are aimed at the less principled members of the police who might abuse their wider powers given by this Bill. I fully agree that this is a matter about which we should all be deeply concerned. We do not want to see police powers used against innocent people.
On the other side of the balance we have the much greater possibility that not only some but in fact all criminals will abuse the law whenever they find a weak link. The Bill may be called draconian, but it also aims at removing the weak links used by criminals, and also, unfortunately by smart lawyers whose job it is to find those weak links on behalf of their clients, and I am not referring to any lawyers present in this room. One such weak link was recently found, resulting in the acquittal of an elderly man, originally sentenced to nine years' imprisonment for raping a small girl. The acquittal was not based on the man's innocence, but on a technical error by the judge. This kind of weak link can often be found in the judge's corroboration warning, which this Bill also aims to remove or the second Bill aims to remove.
We have to weigh up today which is better: to protect the innocent victims of crime, or to create loopholes through which violent criminals may escape.
My answer to this is that first and foremost we must protect the innocent victims of criminals, who nowadays do not hesitate to kidnap and murder even small innocent children. I agree, of course, that we need to protect the smaller, though also vulnerable group of persons who are wrongly accused or convicted when police abuse their powers.
If I were asked to choose between protecting the many innocent victims of criminal violence, or the few who fall victim to police abuse, I would have to choose and give priority to the innocent victims of crime, because those victims include small children and women, and even the elderly and the handicapped.
Having said that, I must emphasize that I have always tried, and will continue my efforts, to get justice for possible victims of police abuse. If we pass this Bill today, I wish to state my position that I shall never give up my efforts until we have an independent Complaints Against Police Office, or alternatively until the police are placed under the jurisdiction of the Commissioner for Administrative Complaints along with all other departments and bodies where power may be abused or maladministration may occur. We are increasing police powers. We must also make the police more accountable to avoid abuse.
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With these remarks, Mr President, I would support both Bills as amended by the Committee, but I regret that I must oppose the amendments which Mr LEE will move at the Committee stage on the grounds that they weaken the power to combat organized crime. Thank you.
MR MOSES CHENG (in Cantonese): Mr President, after scrutiny by this Council of the Organized and Serious Crimes Bill and the Criminal Procedure (Amendment) Bill 1992 which lasted more than two years, the debate on the Second Reading of these two Bills resumes today, at last. Today, we will be disseminating to the people of Hong Kong an important message: that the Legislative Council declares war on the unscrupulous criminals; that we are making a significant and correct step in combating serious crimes which are becoming increasingly rampant; that we will make every effort in securing a peaceful and harmonious society for the people of Hong Kong.
I believe every colleague will agree that to legislate in order to protect the safety of the public is our foremost objective which was, is and will be immutable. When scrutinizing the Bill, we have to bear in mind that the Bill should, on the one land, ensure the police be vested with appropriate and reasonable authority so as to effectively combat organized and serious crimes and to safeguard public security, while, on the other hand, it should also ensure that personal freedom of the general public will not be unnecessarily infringed upon due to excessive police powers. It is our responsibility to ensure that the Bill meets both objectives. We aim at striking a right balance between the two objectives and that balance should be appropriate and consistent with the reality of Hong Kong. We uphold the principle that the Bill aims to combat effectively those criminals who manage to get off scot-free under the existing laws and also aims to protect the law-abiding citizens. We will hold fast to this principle and will not yield one inch of ground.
I would like to tell Members that these two years have not been wasted because we have been successful in urging the Government to come up with 70 amendments to the Bill. For example, the definition of "organized crime" in the existing Bill is much clearer and narrower in scope than the Government's originally proposed definition, and a lot of ambiguities have been clarified. A suitable check and balance mechanism is also put in place while expanding the police's authority in gathering evidence; and along the same line, measures to protect witnesses have also been strengthened.
The Governor claimed in his latest policy address that for the third year running, the rate of violent crime had fallen. I am afraid the Governor was only giving us part of the facts. The crime statistics as provided by the police show that the overall number of criminal cases is over 41 000 in the first half of the year, representing a rise of 2.7% over the same period last year, and drug-related crimes record a surge of 45%. We have but to admit that the crimes have become more organized and more complex than those in the past. It is thus essential for the police to be vested with more appropriate authority to
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fight crimes. As regards maintenance of law and order, we shall absolutely not let up, nor shall we adopt a tolerant attitude.
I understand that the Honourable Martin LEE will be moving amendments to clauses 2, 3 and 7 of the Bill during the committee stage. In fact, the issues raised by Mr Martin LEE were, time and again, studied in depth at the meetings of the ad hoc group on this Bill. Before the resumption of the Second Reading debate on this Bill, I carefully went through the amendments once again, but I still hold the view that the Government's amendments have basically incorporated Members' suggestions and have taken into account the reality of Hong Kong by striking a right balance between fighting crimes and protecting human rights. Therefore, I do not think that Mr LEE's amendments should merit our support. The most appropriate thing for the Legislative Council to do now is to pass the Bill as soon as possible, so that the criminals can get the clear message that they will have nowhere to go but to await punishment according to the law. In addition, we should continue to monitor closely the implementation of this Bill after it is enacted as an Ordinance.
I hope that the police, armed with this new weapon, that is, the Organized and Serious Crimes Ordinance, will always remind themselves that they should spearhead their efforts against the criminals committing organized and serious crimes. The police have the full backing of the Legislative Council and the public as far as crime-fighting is concerned.
With these remarks, Mr President, I support the Second Reading of the Bill.
MRS MIRIAM LAU: Mr President, scrutiny of the Organized and Serious Crimes Bill has been a demanding exercise. Throughout this exercise, members of the ad hoc group have frequently been torn between two seemingly conflicting demands. On the one hand, we acknowledge the need to invest our law enforcement agencies with sufficient powers to enable them to effectively combat organized and serious crimes. On the other hand, there is constant concern that such powers which are necessarily extensive, may be abused to the detriment of human rights. Such concerns have just now been expressed by the Honourable Martin LEE. The result was a most rigorous tug of war between the two demands with many provisions of the Bill being refined, many checks and balances being built in and many powers being circumscribed. I believe that the Bill together with the Committee stage amendments which will later on be moved by the Secretary for Security now strikes the right balance between effective law enforcement and protection of human rights.
There may still be some who are still not entirely satisfied with the final product that is now presented to this Council. The Honourable Martin LEE is clearly one of them. He will later on at the Committee stage move amendments to further delimit the powers of the investigating authority and restrict the confines of the Bill. I cannot support his move. As much as I respect Mr LEE's
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efforts to further protect civil liberties, we must be wary not to punch loopholes into this important piece of crime fighting legislation, for to let one and even one criminal off under the cause of human rights, however honourable that may be, we might be jeopardizing the civil rights of many other law-abiding citizens.
Specifically the Honourable Martin LEE seeks to exclude one-off offences from the definition of organized crime albeit they are of an organized and serious nature. He will also seek to exclude the application of a clause 3 order to "persons of a particular description" and to make disclosures about investigations liable to be prosecuted only if such disclosures are both intended to prejudice and are likely to prejudice the investigations.
The definition of "organized crime" has been the subject of lively debate within the ad hoc group for over many months. The proposed definition which the Secretary for Security will move at the Committee stage targets at triad activities and criminal activities of an organized and serious nature. These are the activities which the Bill aim at combatting. Not all one-off offences are included; only those which are serious and involve substantial planning and organization. I do not think that serious and organized one-off offences are less serious than those which are repeatedly committed. Furthermore there are already safeguards in the Bill to ensure that only appropriate offences will be netted in for the application of a clause 3 order since not only must the application be made by the Attorney General but a High Court Judge must be satisfied before authorization to use the powers will be given. If however such one-off offences were excluded from the definition of organized crime, this might create a loophole for clever criminals to escape the grip of the law. I do not believe that the community would wish to see this happen.
In regard to application of a clause 3 order to "persons of a particular description", the Administration has conceded that such an application will only be made where the crime could not otherwise be effectively investigated. Whilst this type of application is not to be encouraged and the investigating authority should use its best endeavours to target specific people, it can be envisaged that operationally there may be cases where it would not be possible to specifically identify the persons in question without compromising the investigation. Rather than to exclude such applications and thus thwart the investigation, I am prepared to allow such applications to be made provided there are safeguards against abuse. I am satisfied that such safeguards are included in the Bill.
On the question of what type of disclosure should attract criminal sanction, I believe that the integrity of investigations into triad organizations and criminal syndicates must be protected. This is necessary both for the reputation of those who are being investigated and for the safety of those who are assisting in the investigation. In my view, the right to know does not prevail over such important considerations. The test of "intent to prejudice" is already a high one and I do not see why a person who deliberately makes a disclosure intending such disclosure to prejudice the investigations should go unpunished. The fact that by chance such disclosure did not result in real harm to the investigations is
HONG KONG LEGISLATIVE COUNCIL ― 12 October 1994 137 not in my view entirely relevant since the criminal intent already existed at inception.
Mr President, if we expect a law enforcement agency to do a good job in tackling organized and serious crimes, we must prepare to equip them with the necessary tools. The Bill with all the safeguards against abuse which the Administration has agreed to put into it remains an effective crime-fighting tool. We must, however, ensure that this effectiveness is not unduly hampered.
Mr President, I support the Bill.
SECRETARY FOR SECURITY: Mr President, I should like to thank Dr Philip WONG, Mr Simon IP, and other Members of the ad hoc group for their thorough and careful study of the Organized and Serious Crimes Bill. The Committee stage amendments which I am going to move later are the agreed outcome of detailed discussions in the ad hoc group.
This Bill, which was introduced into this Council in July 1992, seeks to improve our ability to investigate and prosecute organized and serious crimes. During the discussion of the Bill with the ad hoc group, we took into consideration the concerns of Members about the need to strike a balance between enhanced powers of investigation and civil rights and to ensure that the rights and liberties guaranteed in the Bill of Rights were respected. We have agreed to some 70 Committee stage amendments. I am, however, disappointed that Mr Martin LEE intends to move three further Committee stage amendments to restrict further the powers in the Bill. Their effect would be to emasculate the Bill; the police would not have the powers they need to tackle organized and serious crime effectively, a course of action which has the full support of the community and which has been consistently urged by this Council. The Administration intends to oppose Mr LEE's amendments.
I should like first to make some general points. The Bill aims to combat organized and serious crime in four ways ― enhanced investigative powers, confiscation of the proceeds of crime, criminalization of money laundering, and special procedures for sentencing those convicted of organized and serious crimes.
Turning first to the special powers of investigation, one of the major difficulties which the police and other authorities encounter in tackling organized and serious crimes is the reluctance of people to come forward. To address this, we propose in the Bill that, for the investigation of organized crime, it should be possible to require persons having relevant information to answer questions or to produce the information. We recognize that these powers are intrusive and that the rights of the people in the community must be adequately safeguarded. We have, therefore, built in a number of safeguards in the Bill to prevent possible abuse. The safeguards include: first, that the powers can only be invoked in respect of organized crime, involving the restricted list
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of offences in Schedule 1 to the Bill; second, applications to use such powers must be made by the Attorney General; and third, such powers must be authorized by a High Court Judge, who must be satisfied that a number of stringent conditions have been met.
The definition of organized crime was raised and discussed extensively by the ad hoc group. Members expressed concern that the definition might include offences other than a serious organized crime. An example quoted was that two school children planning and stealing a chocolate bar in a supermarket might be covered by the definition. The Administration is of the view that the definition must be wide enough to cover all types of organized crime and that the safeguards in the Bill, in particular that it would be for a High Court Judge to decide in each case whether the special investigative powers should be invoked, are adequate to prevent abuse. Nonetheless, to address this point, we agree to revise the definition to make it more specific.
The revised definition consists of three components. The first deals with triad societies; the second with ongoing criminal groups; and the third with very serious one-off offences involving substantial planning and organization. I am pleased that the first two components have the support of the ad hoc group. However, I am disappointed that the third component is opposed by Mr Martin LEE. The Administration considers it is essential to retain this because existing powers are inadequate to investigate and prosecute those responsible for planning and carrying out such crimes. To exclude crimes of this sort from the ambit of the Bill would create a loophole which criminal syndicates would learn to exploit by reassociating themselves, thereby making very difficult the detection and investigation of each separate crime. This would significantly limit the effectiveness of the Bill in achieving its stated objective, and undermine the widespread public support for more effective powers against organized and serious crimes. I therefore urge Members to support the three components of our proposed definition and to reject Mr Martin LEE's proposed amendment.
The ad hoc group also considered whether the special investigative powers in clause 3 of the Bill should be applied to persons of a particular description. I understand that Mr Martin LEE is concerned that our proposals are too wide and, accordingly, he proposes to move a Committee stage amendment to exclude the application of the powers to persons of a particular description. The Administration does not accept this amendment. The Bill will be fatally weakened if the coverage of clause 3 is restricted in this way, because in many cases it will not be possible, at an early stage of investigation, to identify precisely the persons who have information relevant to the investigation. Under some circumstances, for example, where urgent action is necessary because lives are endangered, the special investigative powers must be applied to persons of a particular description in order for the investigating authority to gather essential information. We have already built into the Bill a number of statutory safeguards to prevent the abuse of this particular power. Moreover, we have agreed to make an amendment to qualify this provision so that the special investigative powers can be applied to persons of a particular description only
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where the organized crime could not otherwise effectively be investigated. Once again, I urge Members to support our proposal and to reject Mr Martin LEE's amendment.
Another question considered by the ad hoc group is how to safeguard the interests, and ensure the safety, of the persons who are required to answer questions and furnish information. The ad hoc group concluded that proper treatment of these persons by the investigating authority is of paramount importance and, accordingly, that a code of practice guiding the interview procedure should be drafted and approved by the Council, and should be in place before the special investigative powers are to be used. We accept this. A code of practice discussed and agreed by ad hoc group Members will be submitted to this Council for approval by positive resolution.
As regards the safety of witnesses, the police are in the process of establishing a Central Witness Protection Unit to implement improved witness protection measures. Persons who are required to answer questions or to furnish information under the Bill, will be given special arrangements, under which their requests for protection must be referred to the Headquarters Unit of the Police Central Witness Protection Unit and considered by the Director of Criminal Investigation. The ad hoc group has also requested that a Witness Protection Appeal Board, with lay persons as members, should be set up before the special investigative powers are in operation, so as to enhance public confidence and ensure that witnesses are adequately protected. We agree with this proposal, and will establish a Witness Protection Appeal Board.
Effective investigation and witness protection are both underpinned by clause 7(1)(a), which makes it an offence to make a disclosure which is likely to prejudice such an investigation. In brief, the clause provides that a person commits an offence if he makes any disclosure about an investigation under clause 3, 4 or 5 of the Bill, without lawful authority or reasonable excuse, where such disclosure is likely to prejudice the investigation. There has been concern expressed that this offence might restrict freedom of expression and could be used against the press. The offence is not designed to target any particular persons or professions. It is designed to ensure that investigations are not jeopardized, and the reputation and safety of persons involved in the investigations are not put at risk by the premature disclosure of the details of an investigation. Nonetheless, in order to meet Members' concerns, we have agreed to revise this sub-clause to specify that a person commits an offence only if in making the disclosure he intends to prejudice the investigation. Thus, a person who makes a disclosure, not knowing that it may prejudice an investigation, will not commit an offence.
I understand that Mr Martin LEE is not satisfied with this revised proposal and will propose that an offence should only be committed under this sub-clause only if the person intended to prejudice an investigation and the disclosure was likely to prejudice the investigation. The Administration does not agree with this proposal. If a person makes a disclosure, intending it to
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prejudice an investigation, he should not escape liability. I urge Members to support our proposal and to reject Mr Martin LEE's amendment.
As regards the second major proposal in the Bill, confiscation provisions, these empower the court to confiscate all the proceeds of crime of a person who is convicted of a scheduled offence. This proposal is modelled on provisions in the Drug Trafficking (Recovery of Proceeds) Ordinance. I am pleased that the ad hoc group agrees that confiscation is an effective means of attacking the financial strength of organized crime syndicates. However, some ad hoc group Members were concerned that coverage of the provision might be too wide, since the confiscation order could be triggered by a conviction of a minor scheduled offence and would then apply to all the proceeds of crimes committed by the defendant. The Administration feels strongly that crime must not be allowed to pay and that failure to provide for the confiscation of the proceeds of all serious crimes would be a failure to do all that we could to prevent crime. I believe that there is wide public support for the confiscation legislation to cover all serious crimes. Nonetheless, to address Members' concerns, we have agreed to amend the provisions so that the defendant must have received proceeds of at least $100,000 in respect of the specified offence of which he is convicted and the specified offence must be organized crime, before his proceeds from all organized crimes would be liable to confiscation. I am pleased that this revised proposal has the support of the ad hoc group.
Turning now to the money laundering provisions, the third major proposal in the Bill, these create a general money laundering offence to cover the proceeds of all crime, modelled also upon the provisions in the Drug Trafficking (Recovery of Proceeds) Ordinance. Again, I am pleased that the ad hoc group supports the objective of this provision, which will help destroy the financial strength of criminal syndicates. Some ad hoc group Members, however, have pointed out that the money laundering offence was unusually wide. We have therefore agreed to limit the money laundering offence to the proceeds of indictable offences.
The fourth major proposal in the Bill, the special sentencing procedures, will enable the prosecution to provide certain information to the court after a person is convicted of a specified offence under the Bill. The judge would then be required to take that information into account when sentencing and could, within the statutory maximum penalty, impose a heavier sentence than would otherwise be the case. The Administration firmly believes that this provision is necessary. The intention behind it is to permit the prosecution to inform the court of relevant information about the circumstances of a person convicted of a specified organized crime offence and of the circumstances of the offence, so that the court is aware of the full gravity of the offence. This will enable the court to impose an appropriate sentence.
We, of course, recognize that the special sentencing provisions must operate fairly. We have redrafted the provisions and built in additional safeguards in order to meet concerns expressed by Members of the ad hoc
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group. The main amendments are that the information to be furnished must, as a general rule, be admissible in evidence in criminal proceedings; information to establish that the offence was an organized crime must either be adduced at the trial or accepted by the court before the person's conviction following a plea of guilty; the defendant must be given an opportunity to be heard regarding any information so submitted; and no information may be given in respect of previous convictions.
This redrafted provision has the support of the ad hoc group.
Mr President, I would like at this stage to explain the amendments which I will move at the Committee stage. The first amendment relates to clause 1 of the Bill. The Administration will need time to prepare for enforcement of this legislation and some provisions may need more lead time than others. We propose, therefore, that different provisions in the Bill may be brought into operation on different dates.
Clause 2 defines the major terms used in the Bill. As I have mentioned earlier, Members have expressed concern that coverage of the definition of organized crime is too wide. We have agreed to revise it to focus specifically on triad-related offences, on-going criminal groups and one-off, but very serious, organized crimes.
I shall propose other changes to clause 2. The definition of "premises" will be moved to clause 2 to make the Bill more tidy. It is also necessary to move the definition of "society" and "triad society" to clause 2, as a consequence of the new definition of "organized crime". We also propose that the definition of "reward" should include "pecuniary advantage" to accord with the corresponding definition in the United Kingdom Criminal Justice Act 1988.
As a consequence of the limitation of the confiscation provisions to the proceeds of a specified offence or an organized crime, and of the money laundering provisions to the proceeds of an indictable offence, the definition of "criminal activity" and "proceeds of crime" in clause 2 and "benefited from crime" in clause 8 are no longer appropriate, and are replaced by new definitions.
In respect of clause 3, Members were concerned that the powers were too wide and lacked sufficient safeguards. As I have explained earlier, there are already a number of safeguards in the Bill, but we have agreed that this clause should be further refined and additional safeguards built in.
Clause 3(3)(c) will be amended so that any matter on which a person subject to a clause 3 order is required to answer question or to furnish information must "reasonably" appear to the investigating authority to be relevant to the investigation. Clause 3(3)(d) will be amended to put beyond doubt that the court may not order detention of a person without his consent. Clause 3(4)(c) will be amended so that a clause 3 order can be obtained in
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respect of persons of a particular description only where the organized crime could not otherwise be effectively investigated. Clause 3(4) will be amended to require a High Court Judge to have regard also to any obligation of confidentiality or any family relationship in deciding whether to grant a clause 3 order. Clause 3(7) will be amended so that a person will be provided with a copy of the clause 3 order and, in addition, the form of notice issued by the Attorney General requiring the attendance of a person will be specified in the Ordinance. Clause 3(12) will be amended to clarify the exceptions under which information provided by the person pursuant to a clause 3 order may be used against him in a subsequent trial. In particular, it will be made clear that the exception based upon the person's giving inconsistent evidence applies only for the purpose of impeaching his credibility as a witness. Clause 3(17) will be replaced by the new clause 3(18) to ensure that the rules of court will provide for application to vary or discharge a clause 3 order. In addition to these amendments, two new sub-clauses are proposed. The new clause 3(17) will set out the right of a person to apply to vary or discharge a clause 3 order and clause 3(19) will provide that a Code of Practice relating to the exercise of powers and the discharge of duties under clause 3 shall be prepared and shall be subject to approval by the Legislative Council.
As regards production orders provided for under clause 4 and search warrant provided for under clause 5, some Members considered that the application of these two clauses was too wide. In the amendments to be moved, we propose limiting application of clauses 4 and 5 to investigations into an organized crime, the proceeds of an organized crime or the proceeds of a specified offence. Some Members have also suggested that production orders should be made only by the High Court. The amendments will specify this.
I shall propose amending clause 6, which creates a limited right to disclose information obtained from the Inland Revenue Department, under the special powers of investigation. The amendments will, among other things, allow disclosure for the purposes of application for confiscation, restraint and charging orders.
Clause 7(1)(a) will be amended by replacing the dual criteria of likelihood of prejudice and knowledge with a single criterion of intention to prejudice. It will also restrict the application of this sub-clause to the pre-arrest stage.
Questions have been raised in respect of the scope of the confiscation provisions. Some Members were concerned that the entire assets of a person who have been convicted of a minor offence might be liable to confiscation. We intend to address this in the amendments proposed to clauses 8 to 14. The amendments will create a financial threshold of at least $100,000, and provide that only proceeds of a person's specified offence or, where the specified offence is an organized crime, of his organized crime will be liable to confiscation.
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There have been suggestions that the scope of the money laundering offence should also be restricted. The amendments to clause 25 address this concern by limiting the money laundering offence to the proceeds of indictable offences.
The details of clause 27, the special sentencing procedure, have been considered carefully by the ad hoc group. The amendments amount to a redraft of the whole clause. The principle remains unchanged, namely, that the prosecution should be able, as of right, to put before the court at the sentencing stage certain additional relevant information to which the judge may have regard before sentencing. The amendments do however provide additional safeguards to ensure fairness to the convicted person.
The amendment to clause 31 will require that further amendments by the Governor in Council to the Schedule and to the financial threshold for triggering a confiscation order shall be subject to approval by this Council.
As a consequential amendment, we propose making the offence of money lending under section 24 of the Money Lenders Ordinance an indictable offence with a maximum penalty of imprisonment of 10 years and a fine of $5 million, and to increase the maximum fine on summary conviction from $100,000 to $500,000. Loansharking is a growing problem in Hong Kong and is currently dominated by organized crime syndicates. A sufficient penalty is needed both to deter people from committing this crime and to destroy the financial power it gives to organized crime syndicates. The increased penalties will demonstrate our determination to tackle this offence. Also, by making the offence indictable, the provisions in the Bill relating to the confiscation of the proceeds to crimes and money laundering can apply to this offence.
The last amendment relates to Schedule 1. The Import and Export Ordinance has recently been amended. Items 5 to 9 of Schedule 1 have to be amended and renamed to reflect this change. Some Members also expressed concern over the inclusion in Schedule 1 of the offences of "riot" and "unlawful assembly", and we have agreed to exclude these two offences.
Finally, Mr President, the ad hoc group has asked that a yearly report on the review of the implementation and effectiveness of the Bill should be provided to this Council. In addition, a comprehensive report should also be provided to this Council three years after implementation of the Bill. I agree to these requests, and will provide the Council with these reports.
Thank you, Mr President.
Question on the Second Reading of the Bill put and agreed to.
HONG KONG LEGISLATIVE COUNCIL ― 12 October 1994 144 Bill read the Second time.
Bill committed to a Committee of the whole Council pursuant to Standing Order 43(1). CRIMINAL PROCEDURE (AMENDMENT) BILL 1992
Resumption of debate on Second Reading which was moved on 15 July 1992 Question on Second Reading proposed.
DR PHILIP WONG: Mr President, this Bill is simple in form and yet complex in substance. It has a single proposal to abolish the corroboration rule in respect of alleged accomplices. But since it is an issue of legal technicality it has been difficult for non-practitioners to appreciate the implications.
The rule of corroboration warning requires a judge to warn the jury or himself, if sitting without a jury, of the danger of convicting without corroboration, and to identify items of evidence, if any, which may be corroborative. The Administration strongly maintains that the rule is technical, complex and inflexible. It is thus a fruitful source of appeals. It is hoped that with the enactment of the Organized and Serious Crimes Bill, more ringleaders could be brought to trial. In such event the prosecution would be likely to require their accomplices to give evidence, and the abolition of the corroboration warning would properly assist in these prosecutions.
Without the corroboration rule, judges would be able to exercise their discretion to deal with the credibility of accomplice witnesses in the same manner as they deal with credibility generally.
It is stressed that the proposal is not solely a Hong Kong initiative. In the United Kingdom it was a recommendation of the United Kingdom Law Commission, supported by the English Criminal Bar Association, the Law Society and the judiciary. A bill for this purpose is, we understand, currently before Parliament. The rule was abolished in Canada in 1982; New Zealand in 1986; and Western Australia in 1988.
The ad hoc group had divided views on the issue. Some Members agreed to the concern of the Administration. Some felt that the issue is more a matter of law reform. Upon a magnum of the Organized and Serious Crimes Bill more accomplices would be expected to give evidence, either under compulsion or for some private purposes. It is hence more necessary to retain the corroboration warning on accomplice evidence.
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At the suggestion of the ad hoc group, the Administration has sought the views of the Hong Kong Bar Association and the Law Society of Hong Kong. Both bodies agreed that the corroboration rule has a number of defects. They suggested to replace it with a simple form of warning along the lines of the recommendations of the Law Reform Commission of Australia. The Administration disagreed with this counter-proposal and maintained its original view that the corroboration rule should be abolished without any other form of mandatory warning. I will leave it to the Secretary for Security to elaborate on the Administration's position in his speech.
After considering the pros and cons of the proposal and the alternatives available, the ad hoc group remains divided. Some Members considered the Administration's arguments reasonable. Some Members considered that, given the implications of the proposal, it would be desirable to gather the experience of relevant jurisdictions before Hong Kong makes changes or adopts any other form of warning as a replacement. I expect some Members will elaborate on their own considerations in a moment.
Mr President, I would like to particularly thank the Hong Kong Bar Association and the Law Society of Hong Kong for the time and input they gave in the deliberation of this Bill.
Mr President, after balancing the various arguments, I consider the Administration's proposal reasonable. I support the Second Reading of the Bill.
MR MARTIN LEE: Mr President, in this Bill, the Government proposes to abolish the rule regarding corroboration of accomplice evidence in criminal trials. This common law rule basically requires that judges warn juries or themselves, if they sit alone, of the danger of convicting an accused person on the uncorroborated evidence of witnesses who are accomplices. I must stress that this corroboration rule does not prevent a jury or judge from convicting an accused when there is no such supporting evidence from an independent source. It only warns them of the danger of convicting without such evidence, or rather, it only requires them to give such a warning.
The theory behind this rule is that accomplices are untrustworthy and unreliable witnesses. They themselves are facing possible criminal prosecution and may choose to protect themselves by giving false testimony.
The Government's criticism of the rule in effect is that it involves technical details that overwhelm some of our judges and that because some judges have not mastered the rule, they give inadequate warning or wrong warnings to the jury or to themselves if they sit without a jury. That leaves an otherwise good conviction open to appeal ― not something any prosecution-minded prosecutor would like to see.
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In support of its case, the Administration simply argues that the Bill is a "vital part of (its) package" against organized crime because it expects no doubt many accomplice witnesses will be testifying in cases brought under the OSCB or cases resulting from their investigations under the OSCB. The Administration's only other argument is that the United Kingdom Law Commission has recommended removing the rule, and that the parliaments of Canada, New Zealand, and Western Australia have already abolished it.
I urge Members to oppose any change to the corroboration warning rule at this time, as the Administration's arguments are too weak to even begin to make a case for abolishing the rule.
First, the whole matter is better left to the Hong Kong Law Reform Commission, which should carefully study the importance of this rule in the Hong Kong criminal justice system and survey the effects of its recent abolition in the jurisdictions cited by the Administration. We should learn from how their new law is being implemented.
Second, if the OSCB is used to bring organized crime ringleaders to court, there will certainly be tremendous reliance on accomplice evidence, because organized crimes by their very nature involve many people playing many different roles. I believe that nowhere else in the world will there be so much reliance on the words of accomplices to put defendants behind bars and often on their words alone.
Moreover, accomplices who testify in organized crime cases may cut deals, and indeed they often do, with prosecutors. In return for their testimony, they and their families may receive new identities and passports to another country. And nowhere else in the world will we find witnesses so willing to leave their own country than in Hong Kong!
This factor, coupled with the new stiffer prison sentences under the OSCB, will give accomplices more incentive than ever to fabricate testimony which is of use to the prosecution and hence they will get their passports. We cannot abolish a rule of evidence that may be safeguarding the basic right of criminal defendants to a fair trial simply to make prosecutors' jobs easier.
And if the Government's genuine aim is not to help prosecutors win more convictions, but rather to remove ungainly rules from our law of evidence, then why does the Criminal Procedure (Amendment) Bill eliminate only one part of the corroboration warning rule? In addition to accomplice witnesses, the common law rule also applies to witnesses who are complainants in sexual offence case. The United Kingdom Law Commission Report, which the Government has repeatedly cited in support of this Bill, called for the complete abolition of both parts of the rule. Honourable Members, if the corroboration rule is truly bad law, then the Government should have proposed removing the entire problem.