HONG KONG LEGISLATIVE COUNCIL — 14 June 1995 4389 OFFICIAL RECORD OF PROCEEDINGS
Wednesday, 14 June 1995
The Council met at half-past Two o'clock
PRESENT
THE PRESIDENT
THE HONOURABLE SIR JOHN SWAINE, C.B.E., LL.D., Q.C., J.P.
THE CHIEF SECRETARY
THE HONOURABLE MICHAEL SUEN MING-YEUNG, C.B.E., J.P.
THE FINANCIAL SECRETARY
THE HONOURABLE CHAU TAK-HAY, C.B.E., J.P.
THE ATTORNEY GENERAL
THE HONOURABLE JEREMY FELL MATHEWS, C.M.G., J.P.
THE HONOURABLE ALLEN LEE PENG-FEI, C.B.E., J.P.
THE HONOURABLE MRS SELINA CHOW LIANG SHUK-YEE, O.B.E., J.P. THE HONOURABLE HUI YIN-FAT, O.B.E., J.P.
THE HONOURABLE MARTIN LEE CHU-MING, Q.C., J.P.
DR THE HONOURABLE DAVID LI KWOK-PO, O.B.E., LL.D., J.P. THE HONOURABLE NGAI SHIU-KIT, O.B.E., J.P.
THE HONOURABLE PANG CHUN-HOI, M.B.E.
THE HONOURABLE SZETO WAH
THE HONOURABLE TAM YIU-CHUNG
THE HONOURABLE ANDREW WONG WANG-FAT, O.B.E., J.P.
THE HONOURABLE EDWARD HO SING-TIN, O.B.E., J.P.
THE HONOURABLE RONALD JOSEPH ARCULLI, O.B.E., J.P.
THE HONOURABLE MARTIN GILBERT BARROW, O.B.E., J.P.
THE HONOURABLE MRS PEGGY LAM, O.B.E., J.P.
4390 HONG KONG LEGISLATIVE COUNCIL — 14 June 1995 THE HONOURABLE MRS MIRIAM LAU KIN-YEE, O.B.E., J.P. THE HONOURABLE LAU WAH-SUM, O.B.E., J.P.
DR THE HONOURABLE LEONG CHE-HUNG, O.B.E., J.P. THE HONOURABLE JAMES DAVID McGREGOR, O.B.E., I.S.O., J.P. THE HONOURABLE MRS ELSIE TU, C.B.E.
THE HONOURABLE ALBERT CHAN WAI-YIP
THE HONOURABLE VINCENT CHENG HOI-CHUEN, O.B.E., J.P. THE HONOURABLE MARVIN CHEUNG KIN-TUNG, O.B.E., J.P. THE HONOURABLE CHEUNG MAN-KWONG
THE HONOURABLE CHIM PUI-CHUNG
REV THE HONOURABLE FUNG CHI-WOOD
THE HONOURABLE FREDERICK FUNG KIN-KEE
THE HONOURABLE TIMOTHY HA WING-HO, M.B.E., J.P. THE HONOURABLE MICHAEL HO MUN-KA
DR THE HONOURABLE HUANG CHEN-YA
THE HONOURABLE SIMON IP SIK-ON, O.B.E., J.P. DR THE HONOURABLE LAM KUI-CHUN
DR THE HONOURABLE CONRAD LAM KUI-SHING, J.P. THE HONOURABLE EMILY LAU WAI-HING
THE HONOURABLE LEE WING-TAT
THE HONOURABLE ERIC LI KA-CHEUNG, J.P.
THE HONOURABLE FRED LI WAH-MING
THE HONOURABLE MAN SAI-CHEONG
THE HONOURABLE STEVEN POON KWOK-LIM
THE HONOURABLE HENRY TANG YING-YEN, J.P.
HONG KONG LEGISLATIVE COUNCIL — 14 June 1995 4391 THE HONOURABLE TIK CHI-YUEN
THE HONOURABLE JAMES TO KUN-SUN
DR THE HONOURABLE SAMUEL WONG PING-WAI, M.B.E., J.P. DR THE HONOURABLE PHILIP WONG YU-HONG
DRTHEHONOURABLEYEUNGSUM
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 WUHUNG-YUK
THE HONOURABLE JAMES TIEN PEI-CHUN, O.B.E., J.P.
THE HONOURABLE ALFRED TSO SHIU-WAI
THE HONOURABLE LEE CHEUK-YAN
ABSENT
THE HONOURABLE LAU WONG-FAT, O.B.E., J.P.
THE HONOURABLE PETER WONG HONG-YUEN, O.B.E., J.P.
THE HONOURABLE MOSES CHENG MO-CHI
IN ATTENDANCE
MR HAIDER HATIM TYEBJEE BARMA, I.S.O., J.P.
SECRETARY FOR TRANSPORT
MR MICHAEL DAVID CARTLAND, J.P.
SECRETARY FOR FINANCIAL SERVICES
MRS ELIZABETH MARGARET BOSHER, J.P.
SECRETARY FOR ECONOMIC SERVICES
4392 HONG KONG LEGISLATIVE COUNCIL — 14 June 1995
MISS JACQUELINE ANN WILLIS, J.P.
SECRETARY FOR EDUCATION AND MANPOWER
MR KENNETH JOSEPH WOODHOUSE, J.P.
SECRETARY FOR SECURITY
THE CLERK TO THE LEGISLATIVE COUNCIL
MR RICKY FUNG CHOI-CHEUNG
THE DEPUTY SECRETARY GENERAL
MR LAW KAM-SANG
HONG KONG LEGISLATIVE COUNCIL — 14 June 1995 4393 PAPERS
The following papers were laid on the table pursuant to Standing Order 14(2): Subject
Subsidiary Legislation L.N. No.
Road Traffic (Public Service Vehicles) (Amendment)
(No.2) Regulation 1995............................................................... 225/95 Schedule of Routes (Citybus Limited) Order 1995................................. 226/95
Schedule of Routes (Kowloon Motor Bus Company)
Order 1995 .................................................................................. 227/95
Schedule of Routes (New Lantao Bus Company)
Order 1995 .................................................................................. 228/95
Road Traffic (Construction and Maintenance of
Vehicles) (Amendment) Regulation 1995 ................................... 231/95
Protection of Children and Juveniles (Places of
Refuge) (Amendment) Order 1995.............................................. 232/95
Hospital Authority Ordinance (Amendment of
Schedule 1) Order 1995............................................................... 233/95
Immigration (Amendment) (No.2) Regulation 1995
(L.N.217 of 1995) (Commencement) Notice
1995 ............................................................................................ 234/95 Specification of Public Office ................................................................ 235/95
Official Languages (Authentic Chinese Text)
(Sale of Land by Auction Ordinance)
Order ........................................................................................... (C)43/95
Official Languages (Authentic Chinese Text)
(Privileges and Immunities (Joint Liaison
Group and Land Commission) Ordinance)
Order ........................................................................................... (C)44/95
Official Languages (Authentic Chinese Text)
(Drug Addiction Treatment Centres
Ordinance) Order ........................................................................ (C)45/95
Official Languages (Authentic Chinese Text)
(Motor Vehicles (First Registration Tax)
Ordinance) Order ........................................................................ (C)46/95
4394 HONG KONG LEGISLATIVE COUNCIL — 14 June 1995 ORAL ANSWERS TO QUESTIONS
Witnesses Claiming to Have Lapse of Memory
1. MR JAMES TO asked (in Cantonese): Mr President, will the Government inform this Council:
(a) of the annual breakdown, by types of offences, of cases in the past three years which have resulted in the discontinuance of prosecution on account of the witnesses claiming to have forgotten details of the events or contradicting their testimony made previously; and
(b) what measures the Government will take to prevent cases as described in (a) above so as to ensure justice and safeguard the rule of law in the territory?
ATTORNEY GENERAL: Mr President, in the past three years, there have been three cases in the High Court where defendants were acquitted because key prosecution witnesses gave evidence at the trial which was contradictory to their earlier statements. All three were murder cases.
During the same period, there were 27 District Court cases where the defendants were acquitted because key witnesses for the prosecution either suffered a lapse of memory or gave evidence in court contradictory to their earlier statements and damaging to the Prosecution's case. A breakdown of such cases by reference to the type of offences is shown at the table attached to this reply. We do not have statistics of such cases in the Magistrate's Courts. To put these figures into context, during the past three years, there have been 2299 cases in the High Court and 4481 cases in the District Court.
As regards the second part of the question, the following arrangements are already in place:
(a) It is a civic duty of every citizen to give true and full evidence in legal proceedings. The Government has published posters and leaflets to assure the public of their rights as a witness and to give sensible and useful guidance to witnesses as to what is expected of them when giving evidence in court. There are also Announcements of Public Interest and television programmes like "Crime Watch" and "Police Magazine" to encourage witnesses to come forward to testify in court;
(b) The Government is making every effort to ensure that witnesses will be given adequate protection and assurance where necessary. The police have in place a wide range of witness protection
HONG KONG LEGISLATIVE COUNCIL — 14 June 1995 4395
arrangements. A Police Central Witness Protection Unit has been set up to implement and co-ordinate these arrangements;
(c) Those who try to intimidate witnesses or interfere with witnesses are liable to be prosecuted, subject to the availability of evidence, with the offence of attempting to pervert the course of public justice which carries a maximum penalty of seven years' imprisonment; and
(d) The courts are equipped with the power to punish those who refuse to given evidence. Under section 21(4) of the Magistrates Ordinance, if a person comes before a magistrate as a witness but refuses to be sworn, or, having been sworn, refuses to answer questions put to him, he is liable to be imprisoned for a period of 12 months. Section 36 of the Criminal Procedure Ordinance confers a similar power on the High Court and District Court to punish such witnesses for contempt of court up to a maximum period of two years' imprisonment.
Mr President, in addition, the Criminal Procedure (Amendment) Bill 1995 now being studied by this Council contains proposals which will enable witnesses in fear to give evidence in all levels of court through live television link. This will add to the existing arrangements I have just mentioned.
These arrangements provide a comprehensive range of measures designed to ensure that criminal cases are heard on their merits with witnesses willing and contident to give full testimony in court. In order to support the rule of law, we also need the co-operation of the community to come forward, report offences and give evidence in court.
District Court Cases
Types of Failure of offences prosecution due to
Contradictory evidence Lapse of memory
Attempt to pervert the 1
course of public justice
Blackmail 2 1 Causing grievous bodily harm 1
Counselling and 1 procuring blackmail
4396 HONG KONG LEGISLATIVE COUNCIL — 14 June 1995
Types of Failure of offences prosecution due to
Contradictory evidence Lapse of memory
Criminal intimidation 1 False imprisonment 1
Lending money at an 2
excessive rate
Possession of identity card 1
relating to another person
Robbery 2
Trafficking in dangerous drugs 1
Unlawful sexual intercourse 1
with girls under 13
Wounding with intent 10 2 --- ---
22 5
= = = =
MR JAMES TO (in Cantonese): Mr President, if a witness intentionally forgets details of events or contradicts his or her testimony made earlier due to threats and inducements, resulting in the discontinuance of prosecution and acquittal of the accused, that will largely affect the rule of law. If we look at the figures, there were three so-called "lapse of memory" cases in the District Court relating to charges of blackmail, attempted blackmail or criminal intimidation. Will the Government please inform this Council of the three High Court cases and the 27 District Court cases over the past three years, how many were followed with subsequent prosecution against the persons involved after investigations; and how many were believed to have involved threats, inducements or bribery despite a lack of evidence for bringing about prosecution in the criminal court?
ATTORNEY GENERAL: Mr President, I will check and let Mr TO know in writing, but I believe it to be the case that there was no prosecution following any of those cases. (Annex I)
HONG KONG LEGISLATIVE COUNCIL — 14 June 1995 4397
MR LEE WING-TAT (in Cantonese): Mr President, it is mentioned in paragraph (c) of the main reply that subject to the availability of evidence, those who try to intimidate witnesses or interfere with witnesses are liable to be prosecuted. Mr President, since it is very important for witnesses or victims to give evidence entirely free from pressure and threats, we are very concerned about a recent case in which several witnesses said repeatedly that they were not able to testify due to loss of memory. With regard to many of such past cases, did the police ever bring prosecution against those who were suspected to have administered threats or other forms of pressure to the victims or witnesses?
ATTORNEY GENERAL: Mr President, as I have said in my main answer, subject to the availability of evidence, it is an offence to attempt to intimidate a witness or to interfere with a witness. If the evidence is available, we will not hesitate to prosecute for the serious offence of attempting to pervert the course of public justice and there have been several successful prosecutions for that offence in recent years.
MR SIMON IP: Mr President, in paragraph (b) of the Attorney General's answer, he says that the Government is making every effort to ensure that witnesses will be given adequate protection and assurance where necessary. Will the Administration please tell this Council when it will be possible for identities of witnesses to be changed and for witnesses to be relocated overseas as part of the witness protection programme?
ATTORNEY GENERAL: Mr President, if I can take the second part of the question first, the Central Witness Protection Unit, was set up in April of this year. Members will know that that Unit is responsible for co-ordinating all arrangements over witness protection. Witness protection programmes can take many forms, ranging from advice and counselling through to 24-hour protection and in suitable cases relocation.
As regards the first part of the question, that is a matter that is still being discussed between the police, my Chambers and the Judiciary. But as soon as a conclusion has been reached, I will let the Council know.
DR CONRAD LAM (in Cantonese): Mr President, I would like to ask about the issue of witnesses losing their memory which affected prosecution work as a result. As far as I know, there may be two reasons for a person to lose his or her memory, one is morbid amnesia caused by disease leading to tissue problems; the second is functional amnesia, of which one of the cause is pretending to be suffering from amnesia. With regard to those cases involving "witnesses claiming to have lost their memory", did the Government take any actions to ascertain the kind of amnesia those witnesses had claimed to be
4398 HONG KONG LEGISLATIVE COUNCIL — 14 June 1995
suffering from? In the event that the amnesia suffered by a witness is proved fictitious, should the Government take some proper actions?
ATTORNEY GENERAL: Mr President, when a witness for the prosecution claims to have lost his memory or cannot recall events, it is open to the court to permit him or her to refresh his memory by referring to his earlier written statement — a statement that would have been taken from him or her at the time of the investigation of the offence by the police, and that is a matter which happens from time to time and it is with the permission of the court. If, despite that, the witness claims that he cannot remember the contents of his statement, or claims to have lost his memory, it is open to the prosecution then to declare that witness as a hostile witness and that enables the prosecution to cross- examine the witness as to his statement. But that is only likely to assist the prosecution case if the witness, having been declared hostile, under cross- examination admits the truth of his earlier written statement. Failing that, then it is seldom the case that having declared a witness hostile, that his evidence, his testimony will be beneficial to the prosecution.
Mr President, Members will understand that it is improper for Prosecuting Counsel to attempt to interview witnesses except under very limited circumstances. It would not be proper for Prosecuting Counsel to attempt to interview a witness as to his loss of memory.
MR CHIM PUI-CHUNG (in Cantonese): Mr President, a witness, when testifying in court, shall only give evidence which is favourable to the prosecution or the defence. In case the witness suffering from a loss of memory recovers within a certain period of time, does the Government have the power to request to re-open the case; or does it have the power to prosecute the accused under a different charge?
ATTORNEY GENERAL: Mr President, if a key prosecution witness suffers from a loss of memory and as a result the trial is aborted leading to an acquittal, it is not open to the prosecution or anybody else to start again. An acquittal is an acquittal and that ends the matters.
Sit-ins at the Entrance to New China News Agency
2. MR FREDERICK FUNG asked (in Cantonese): Mr President, on the evening of 23 May, a political group petitioned the Xinhua News Agency (NCNA) for the release of a political dissident in China, but the police did not allow the group consisting of ten people to stage a sit-in at the entrance to the NCNA. In view of this, will the Government inform this Council of:
HONG KONG LEGISLATIVE COUNCIL — 14 June 1995 4399
(a) the number of organizations allowed to stage sit-ins at the entrance to the NCNA, as well as the number of those prohibited from doing so, in the past year; and
(b) the criteria adopted by the police in determining whether sit-ins should be allowed to take place at the entrance to the NCNA?
SECRETARY FOR SECURITY: Mr President, as regards the first part of the question, during the past 12 months, the police have had to deal with 191 public gatherings outside the New China News Agency (NCNA). None of the organizations which took part in these gatherings were allowed to stage sit-ins at the entrance to the NCNA. However, on two occasions in the past year, demonstrators acted contrary to police advice and staged sit-ins at the entrance to the NCNA. After repeated police advice and warnings, the demonstrators subsequently moved away from the main entrance to less obstructive locations, where they continued their demonstrations.
As regards the second part of the question, as a general rule, the police do not allow petitioners to stage sit-ins at the entrance to the NCNA, because they would cause obstruction and inconvenience to other members of the public.
MR FREDERICK FUNG (in Cantonese): Mr President, as far as I know, and as reported in the press, there was another group which staged a sit-in with the approval or acceptance of the police at the entrance to the New China News Agency (NCNA) from 2 to 4 June. They then proceeded to the Victoria Park and joined the candlelight vigil in memory of the June Fourth Incident. Was it because of the June Fourth Incident that the Secretary for Security permitted that group to stage the sit-in?
SECRETARY FOR SECURITY: Mr President, no. On both the occasions referred to by the honourable gentleman, there were small groups of people who initially sought to sit-in at the NCNA but, after, as I explained in my main answer, advice and warnings from the police, they subsequently moved away and continued the demonstration in a less obstructive location.
MR LEE CHEUK-YAN (in Cantonese): Mr President, as far as I know, apart from refusing to let petitioners to stage sit-ins at the entrance to the NCNA, the police also refused to let any group of more than 20 people to petition there. Why does the Government refuse to let any group of more than 20 people to petition at the entrance to the NCNA? Is there any "under-the-counter deal" between the Hong Kong Government and the NCNA to restrain the people of Hong Kong from petitioning the NCNA ?
4400 HONG KONG LEGISLATIVE COUNCIL — 14 June 1995
SECRETARY FOR SECURITY: Mr President, I cannot give a definite answer on what is permitted and what is not permitted under certain circumstances. The police consider each case on its merits. Factors such as the size and the mood of the demonstrators, the prevailing circumstances of the surrounding area and other public safety and public order considerations will be taken into account before a decision is made. There is certainly no under-the-counter deal.
MR JAMES TO (in Cantonese): Mr President, in the second paragraph of the Secretary's reply concerning the criteria for allowing the staging of sit-ins or not, he had only one sentence to say, and that is: they would cause obstruction. I hope the Secretary will understand that peaceful sit-ins is one of our rights. If causing obstruction is used as a reason for not allowing petitioners to exercise their right of staging a peaceful sit-in at a particular site, I think the Secretary must give us some objective criteria. Examples are first, the flow and size of the crowd; second, the width of the road in question; and third, the number of people involved in the sit-in. Should the Government lay down objective criteria like these? Even if there are no statutory provisions, perhaps there should be some internal rules? If the answer is in the affirmative, then what is the width of that part of the road in front of the NCNA; what was the flow and the size of the crowd at that time, that is, on the evening of 23 May; and what was the number of people participating in the sit-in? Did the above factors constitute a sufficiently objective reason for disallowing the sit-in? If the Secretary could not give an answer, would it not cause suspicion that there is an "under the-counter deal" which deliberately marks the area outside the entrance to the NCNA as a forbidden place?
SECRETARY FOR SECURITY: Mr President, police tactics vary according to the circumstances of each case, depending on the size and the mood of the crowds. Sometimes Mills Barriers are used for the purpose of protecting property and ensuring the safety of the demonstrators. When large crowds gather outside the NCNA, the police field commander may restrict access to the immediate vicinity to small groups. This is to allow the police to prevent any possible breach of the peace while at the same time allowing the public to express their views freely.
I would like to stress again that there is no single crowd control strategy or operational policy and that each occasion is a separate case. The police consider each case on its merits and their only objective is to preserve public order and safety.
PRESIDENT: Not answered, Mr TO?
HONG KONG LEGISLATIVE COUNCIL — 14 June 1995 4401
MR JAMES TO (in Cantonese): Mr President, will the Secretary for Security inform this Council of the number of people participating in the sit-in on the evening of 23 May; whether there was any road construction project going on in front of the entrance to the NCNA; the width of the road at that time; and the flow and size of the crowd on that evening? Were those factors causing obstruction? Could we please have these objective facts recorded in the Hansard?
SECRETARY FOR SECURITY: Mr President, the Honourable Member has asked for a little more than I have. I can give him some of the information that he requires.
On the day in question, seven people gathered on the pavement outside the Queen Elizabeth Stadium. They brought with them banners and placards. At about 8.30 pm that evening, they arrived at the main entrance of the NCNA through the pedestrian subway. After discussion with the police authorities, the group then returned to the pavement outside the Queen Elizabeth Stadium where they staged a sit-in. The demonstration was peaceful throughout. The group did not at any stage attempt, or even indicate their intention, to stage a sit-in at the entrance to the NCNA. At its peak, the number of people involved was less than 20 persons. I am afraid I do not have with me the width of the pavement, but I can certainly provide that in writing. (Annex II)
DR CONRAD LAM (in Cantonese): Mr President, the Secretary for Security pointed out in the second paragraph of his reply that as a general rule, the police would not allow petitioners to stage sit-ins at the entrance to the NCNA, because they would cause obstruction. He said it as a general rule but not according to law. Can I ask the Secretary for Security, while as a general rule sit-ins are not allowed because the participants might cause obstruction, then if they just walk around or just stand in front of the entrance, and the organizers can guarantee that they would not cause obstruction, will the Secretary for Security give his approval under such circumstances?
SECRETARY FOR SECURITY: Mr President, the police are acting within the law. Under section 17 of the Public Order Ordinance, any police officer of or above the rank of inspector may prevent the holding of, stop, disperse or vary the place or route of any public gathering if he reasonably believes that the public gathering is likely to cause or to lead to a breach of the peace. The police also have a duty under section 10 of the Police Force Ordinance to take lawful measures for preserving public peace, for regulating processions and assemblies in public places and for controlling traffic and removing obstructions. Throughout this, as I have referred to in two of my previous supplementary answers, they try and strike a balance between the rights of the individual to demonstrate and to preserve peace and order in the vicinity of the demonstration.
MR FREDERICK FUNG (in Cantonese): Mr President, in his replies to Members' follow up questions, the Secretary for Security was saying every now and then that it depended on the actual circumstances and the merits of each case. But that seems contradictory to his answer in the main reply, because it was noted in the first paragraph of the main reply that no approval had ever been given. It does not depend on the merits of an individual case, for
4402 HONG KONG LEGISLATIVE COUNCIL — 14 June 1995
approval is basically not given. The second paragraph of the main reply mentioned that the reason for not giving approval was because as a general rule, sit-ins would cause obstruction. I was there that evening at about 8 pm to 10 pm. I recall that at that time apart from the 10 petitioners participating in the sit-in on the opposite side of the road, basically only the police were present. So how could they have caused any obstruction? You said in the main reply that no approval had ever been given, and that seems to be in contradiction with what you have just said that each individual case will be considered on its merits. I do not believe that you will make your decision on the merits of each individual case.
PRESIDENT: Try to refrain from asking or putting questions directly to the public officer. Put them through me please, Mr FUNG.
MR FREDERICK FUNG (in Cantonese): Thank you, Mr President. I will rephrase my question. On that evening I was at the scene too, from 8 pm to 10 pm. As far as I can remember, at that time there were basically no other passers-by at the entrance to the NCNA, apart from the police. But in the second paragraph of his main reply the Secretary for Security used causing obstruction as a reason for refusing to grant approval. Secondly, the Secretary for Security has just said that it depended on the merits of each case, but in the main reply he said that no approval had ever been given. Evidently there is a contradiction here. How would the Secretary for Security explain this contradiction?
SECRETARY FOR SECURITY: Mr President, I apologize to the Honourable Member. I may have misunderstood his question. I do not, frankly, understand it too well, but I think he is suggesting that perhaps the police were causing an obstruction. If that is the case, then I can suggest that that is not true. The police were not causing an obstruction there.
As regards each case being judged on its merits, that is simply the facts of the matter. There is no general rule; but, if an obstruction is caused or if there is a threat to public order or safety, then the police will ensure that the type of demonstration concerned is not permitted because, as I have said, they have to balance the rights of the individual to demonstrate in the way that they wish, with the rights of the community to be protected against threats to public order and safety.
HONG KONG LEGISLATIVE COUNCIL — 14 June 1995 4403 PRESIDENT: Yes, Mr FUNG?
MR FREDERICK FUNG (in Cantonese): Mr President, allow me to put the same question again, please. According to the main reply of the Secretary for Security, petitioners were not allowed to sit-in at the entrance to the NCNA because that would cause obstruction. But I personally saw that no other people but the police were passing by the NCNA. If the Secretary for Security really was considering the merits of each case in deciding whether an approval would be given, then the reason given in the second paragraph of his main reply could not be established. Furthermore, the Secretary for Security mentioned that in the past no approval had been given to stage a sit-in at the entrance to the NCNA, but on the other hand he said he would consider the merits of each individual case. Unless the Secretary for Security could tell us that it was all a coincidence and no sit-in was ever allowed because it so happened that all factors leading to a disapproval of a sit-in occurred at the same time every time. But could there be such a coincidence that not even one single case could have obtained the approval of the Secretary for Security? Under what conditions would the Secretary for Security actually approve a sit-in at the entrance to the NCNA, may I ask?
SECRETARY FOR SECURITY: Mr President, as I have explained in reply to an earlier supplementary, the people involved in the demonstration on the day in question first gathered on the Queen Elizabeth Stadium side of Queen's Road East. They then went across to the NCNA side. As a result of discussions with the police, they then ceased to cause the obstruction and moved away. If I understand the Honourable Member's question correctly, the reason why only the police were left was because the obstruction had been removed by the agreement of the group in question to move over to the other side of the road.
As regards the fact that no sit-ins are allowed immediately outside the entrance to the NCNA, I think that that falls completely within the spirit of what I have said several times. The fact remains that, at that particular location, both traffic and pedestrian flow is particularly heavy and a congregation of even a small number of people can result in obstruction.
British Nationality Selection Scheme
3. DR LEONG CHE-HUNG asked: In the light of the recent media report that some persons who have been successful with their applications for a British passport under the British Nationality Selection Scheme (BNSS) have given up their British passports and instead applied for the British National (Overseas) passports, will the Administration inform this Council:
(a) of the actual number of such persons;
4404 HONG KONG LEGISLATIVE COUNCIL — 14 June 1995
(b) of the actual number of those who have given up their certificates of registration as a British Citizen; and
(c) whether the Government will ensure that the quota of the Scheme thus released will be re-allocated to those still on the waiting list until the total quota of 50000 families have been exhausted?
SECRETARY FOR SECURITY: Mr President, as regards the first part of the question, as the British passports issued to successful applicants under the BNSS are the same as those issued to all other British citizens, we cannot distinguish scheme beneficiaries from other British citizens who give up their British citizen passports. Therefore, we do not have statistics on the number of beneficiaries who have given up their British passports. However, we believe the number to be low.
As regards the second part of the question, so far, six successful applicants under the BNSS have renounced British citizenship. However, the places taken up by them cannot be re-allocated to other applicants, because, under the law, these persons are entitled to revoke their renunciation and to resume their British citizenship, provided they apply before 1997.
As regards the third part of the question, subject to the caveat concerning the small number of renunciations I have just mentioned, every step possible will be taken to ensure that all 50000 places available under the Scheme are taken up.
DR LEONG CHE-HUNG: Will the Administration inform this Council whether the Secretary of State has actually defined a final date for those who have acquired a certificate of registration as British Citizens to take up their British passports? In other words, if they do not take up on that particular date, they will not have a chance and be revoked before July 1997, so that the total number of vacancies by that time would be known for re allocation to those who are still on the waiting list.
SECRETARY FOR SECURITY: Mr President, the answer is no. There is no final date. Once the certificate has been issued, it is up to the successful beneficiary to choose any time, both before and after 1997, to take up the passport.
MISS EMILY LAU: Mr President, I want to follow up on Dr LEONG's question. I am sure the Administration recognizes that 50000 places on this Scheme is woefully inadequate and it would be a crying shame if they are not all taken up because press reports, Mr President, recently showed that some people, for one reason or another, are not too keen to take it up. So will the
HONG KONG LEGISLATIVE COUNCIL — 14 June 1995 4405
Administration negotiate with the British Government to find a mechanism whereby if some people decide to renounce and do not take it up by 1997, that these places would be allocated to people on the waiting list? After all, in the second phase it was seriously over subscribed. So will the Administration please go and talk to the British Government to find a way? I know it is provided for in the law but if there is a will, there is a way. So will the Administration make sure that all the 50000 places will be fully taken up?
SECRETARY FOR SECURITY: Mr President, I have already given Honourable Members the assurance that all of the 50000 places will be taken up. I think I would like to very gently correct the premise on which the Honourable Member's question is based, which is that there is a reluctance of people to apply. As I pointed out in my main answer, out of the very large number of the 50000 which have already been processed, we have only six people who have renounced their British citizenship. I think that suggests that the take-up rate is very high and, as the Honourable Member herself has pointed out, there has been a significant over-subscription of places in each of the two phases of the BNSS.
DR LEONG CHE-HUNG: Mr President, while I agree with the Secretary that there is no way to differentiate the British passport issued under the BNSS or otherwise, I wonder whether there is any figure of the number of British passport holders who have given up their British passports in exchange for BNO status, since the BNSS has come into effect? It is because through that we might be able to know at least the possible number of people who do not want a British passport and maybe we can go into some details to see whether we can re- allocate those to somebody else.
SECRETARY FOR SECURITY: Mr President, I regret that the answer is no. As I pointed out, it is impossible for us to differentiate between the BNSS beneficiaries and those who apply for a British Citizen passport in the normal way.
But Mr President, if I may, I hope it will be helpful — it is intended to be helpful — if I clarify the citizenship status of BNSS beneficiaries. These people gain British citizenship but they do not lose their status as British National Overseas. Under both the United Kingdom and Hong Kong law, it is possible to hold both categories of British Nationality at the same time. However, only one British passport can be held at any one time. Beneficiaries under the Scheme must, therefore, decide whether to take out a British Citizen passport or to continue to travel on their BNO passports. It may be of help to the Honourable Member if I say that about 40% of the beneficiaries in fact have elected to continue to use their BNO passports. But, can I be quite clear, that does not mean that they have renounced or refused; it is just that they have not chosen to exercise their options.
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MR HOWARD YOUNG: Mr President, can the Secretary clarify the meaning of the last bit of the penultimate paragraph in his reply which reads "these persons are entitled to revoke their renunciation and to resume their British citizenship, provided they apply before 1997"? Does that mean that for people who, have revoked it, they can only reapply provided they do so before 1997? Or does it mean that after 1997 they cannot revoke the citizenship any more?
SECRETARY FOR SECURITY: Mr President, what is intended by that phrase is that it is not a once and for all act. A beneficiary who takes out a British Citizen passport, but subsequently feels that a BNO passport better fits his or her needs, is quite free to do so. Such a beneficiary can again, later on, take out another British Citizen passport, so long as the appropriate tees are paid. This will remain the position until 1997. Thereafter, no new BNO passports will be issued.
PRESIDENT: Mr YOUNG, not answered?
MR HOWARD YOUNG: Yes, but I was wondering what would the position be if someone, after 1997, revoked their citizenship and then of course did not take up a BNO passport. Would that person then be allowed to revoke after 1997? If he did that, then would he be subsequently allowed to reinstate it even though it was after 1997?
PRESIDENT: Do you have the answer, Secretary?
SECRETARY FOR SECURITY: Yes, Mr President. The answer is yes. The renunciation can take place. It is a matter of filling out a form and the revocation of the renunciation can take place as well. It is a matter of filling out another form.
MISS EMILY LAU: Mr President, regarding the six applicants who have renounced their British citizenship, could the Secretary please inform this Council whether they have to give reasons; and if so, what those reasons were?
SECRETARY FOR SECURITY: Mr President, no, they are not required, to give reasons and I feel that I am unable therefore to inform the Council. We do not know the reasons.
HONG KONG LEGISLATIVE COUNCIL — 14 June 1995 4407 Powers of the Stock Exchange of Hong Kong
4. MR CHIM PUI-CHUNG asked (in Cantonese): Mr President, the recent incidents of non-compliance with the regulations of the Stock Exchange of Hong Kong Limited (SEHK) by the chairmen and directors of certain listed companies concerning non-declaration of their criminal offence records have aroused public concern. In this connection, will the Government inform this Council:
(a) what kind of an organization is the SEHK;
(b) whether SEHK is empowered to formulate regulations which have a legally binding effect; and
(c) whether persons who do not comply with the regulations of SEHK are legally responsible for such non-compliance?
SECRETARY FOR FINANCIAL SERVICES: Mr President,
(a) The Stock Exchange of Hong Kong Limited (SEHK) is a company incorporated in Hong Kong which has the right to establish, operate and maintain a stock market in Hong Kong pursuant to section 27(1) of the Stock Exchanges Unification Ordinance (Cap.361). Due to its unique role in our financial markets, the Stock Exchange has a duty to perform in the public interest. This is stipulated in section 27A of the Ordinance which requires the Exchange to ensure an orderly and fair market in securities trading through its facilities. In performing this duty, the Stock Exchange shall act in the interests of the public, in particular the investing public, and must ensure that such interests prevail where they are in conflict with any other interests that the Exchange is required to perform under any other law.
In the regulatory framework for securities trading, the Stock Exchange is a front line regulator responsible for the day-to-day monitoring of the operation of the Hong Kong stock market. The Securities and Futures Commission has a statutory function to be responsible for supervising and monitoring the activities of the Exchange and to promote and develop self regulation by the Exchange and other relevant bodies.
(b) The Listing Agreement between an issuer and the Stock Exchange of Hong Kong Limited setting out the continuing obligations which the issuer undertakes to comply with as a condition of listing is a legally binding contract. Section 34(1)(a) of the Stock Exchange Unification Ordinance empowers the Exchange to make rules in respect of listing requirements. However, the regulations are not subsidiary legislation of the Ordinance and there are no penalties
4408 HONG KONG LEGISLATIVE COUNCIL — 14 June 1995
under the Ordinance for contravention of the regulations. The regulations are enforced under the Listing Agreement which is a commercial contract.
(c) Finally, Mr President, persons who do not comply with the regulations of the Stock Exchange may be sanctioned under the rules and regulations of the Exchange. However, contravention of such regulations is a civil matter and not a criminal offence.
MR CHIM PUI-CHUNG (in Cantonese): Mr President, from the Secretary's main reply, we can see why the whole matter has become so complicated. Firstly, almost at the outset, the Secretary confirms the function of the Stock Exchange as a public institution. The Secretary has specifically mentioned that in the Stock Exchange, public interests will prevail. In paragraph (b) of his reply, the Secretary has indicated that the Listing Agreement is a legally binding contract. But it must be remembered that the contract has a civil effect rather than a criminal one. So, will the Administration and the Secretary state unequivocally whether the Administration will conduct a comprehensive review of the matter to enact laws which according to paragraph (a) of his reply shall be in the interests of the public? I very much hope that the position of the entire matter can be made clearer. The reply, as it is, is not satisfactory as it says in paragraph (a) that the interests of the public must prevail but then in paragraphs (b) and (c) it is noted that the matters are only of a civil nature.
SECRETARY FOR FINANCIAL SERVICES: Mr President, the listing division of the Stock Exchange and the Securities and Futures Commission have jointly established a working party which is considering all issues relevant to this subject. And they are focusing on, in particular, the scope of the offences that have to be disclosed which currently relates only to fraud and dishonesty, the appropriateness of existing due diligence requirements on sponsors and underwriters, and the appropriateness and sufficiency of the disclosure requirements for prospectus under the Companies Ordinance. Those are some of the items, but they are actually looking at all the relevant issues. So to that extent a comprehensive review is already underway. When that working party has completed its deliberations, which will be quite soon, it will produce a document for public consultation.
As regards possible legislation, I think I should make clear that the civil nature of the activity of the listing committee nevertheless has a legal effect. The distinction I was making was between civil and criminal. There is now a criminal aspect to this because since 1993, it has been a requirement that the declarations made to the listing committee in respect of previous convictions should be made under oath and making a false declaration under oath might constitute a criminal offence. Indeed one of the recent cases has been referred to the Commercial Crimes Bureau of the police for consideration for that type of prosecution.
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DR HUANG CHEN-YA (in Cantonese): Mr President, whether or not the Stock Exchange is operating properly has a direct bearing on the interests of Hong Kong investors and the status and reputation of Hong Kong as an international financial centre. I am glad the Secretary would still recall that since 1993, it has been a requirement that the declarations made to the listing committee in respect of previous convictions must be made under oath and making a false declaration under oath might constitute a criminal offence. The problem is that there are at the moment about 3000 directors who have not given their oaths or have never made any declarations in respect of previous convictions at all. Does the Administration think that this is fair to those directors who have made their declarations on oath? Will this undermine the status and reputation of Hong Kong as an international financial centre? How will the Administration deal with the matter?
PRESIDENT: Some of this is seeking an opinion, Secretary. Answer as to the factual side.
SECRETARY FOR FINANCIAL SERVICES: Mr President, it is true that there is an impact on reputation here, but the reputation that is at stake is the reputation of the individual directors involved, the reputation of the companies to which they belong and the reputation of the sponsors whose duty it was to verify the contents of the declarations. It is unfortunate that there has been an effect on the reputation of Hong Kong itself, but again this is a matter of opinion. If there is such an effect, it is more likely to result from the way in which this whole subject has been presented and sensationalized rather than from the nature of the cases themselves. Hong Kong's reputation as a financial centre depends on having a credible regulatory system. There is a regulatory system in place. It is because of the requirements of these rules that these cases have come to light and it is unfortunate therefore that there has been a degree of public concern arising from the way that these cases have been presented. It was in response to that public concern that the working party I mentioned previously was established.
Mr President, as for the other part of the question that relates to the numbers of directors that have made declarations, I think the important point here is what was the state of the listing rules at the time of the listing concerned. There have been three different periods. Up until 1989, there was no requirement for a declaration at all and listings were quite properly made at that time without any declaration as to previous convictions. In 1989, the requirement for a declaration was introduced and again in 1993 the requirement that it be made under oath was introduced. Those requirements had no retrospective effect. They were to change the situation with regard to new listings from that point in time onwards.
4410 HONG KONG LEGISLATIVE COUNCIL — 14 June 1995
Now I think it is also necessary to look at the reason as to why these declarations are required. It is to enable the listing committee to form a view as to the fitness and properness of the director to be a director of a listed company. That is a decision that is made at a particular point in time, at the time of the listing. So it has already been taken for those that were listed prior to 1989 and the question of equity therefore is as to what set of rules you should be looked at with regard to the listing. And as I say, the present situation is that there are three sets of rules and it depends at what point in time the listing took place. Of course, some of those older listings might be affected by the newer requirements because if there is a change among the directors, then the new incoming director would have to make a fresh declaration under the new procedure. Similarly, if a director of one of those older listings was to accept a position on a board of another company, he would again have to make a declaration.
For these sorts of reasons, actually the situation is changing a lot faster than the figure quoted by Dr HUANG really illustrates. In fact, 80% of the 5000 or so directors involved have already made declarations. 40% of them have done so on oath and only 20% are from the pre-1989 period who have made no declaration. Now those percentages are changing all the time. So before too long, we will arrive at a situation where everyone has made a declaration and has done so under oath.
So, I think it is important to have that background and to understand the situation rather than to simply look at this as something which has to be dealt with on a blanket approach with everyone making fresh declarations.
MR JAMES TO (in Cantonese): Mr President, just now the Secretary has been trying to convince us that only a small fraction of the directors have not made any declarations on oath. I would like to tell the Secretary what I think. In a system in which legal sanction may result and in which good reputation is valued, even only 10% or 20% of the directors have not made the declarations on oath is unacceptable. I am at a loss as to why the Secretary can say that the "fitness and confidence" of the directors would be considered by the listing committee only at the time of listing. Is this "fitness and confidence" not meant to be continuous? Do we not need a continuous system of regulation? If the Secretary thinks we do not need such a system, I would like him to state clearly his position. Does it mean that a director who is fit and proper at the time of listing will automatically continue to be okay so long as he has made a declaration on oath? I find it hard to believe. So, I hope the Administration can review and consider the matter carefully.
SECRETARY FOR FINANCIAL SERVICES: Mr President, yes, this question is indeed under consideration by the working party that I mentioned. But the reason I went into some lengthy explanation on it is to point out that it is not so straightforward a question as it might seem. The question of fitness and
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properness is one that has to be determined at the time of the listing, but after that time there is a continuous period and I think this addresses what Mr TO is saying. There is a continuous period in which the director establishes a track record as a director of a listed company and if he can demonstrate over a lengthy period that he can be trusted to comply with the listing rules and not to behave dishonestly in that capacity, then that is in itself a prima facie case for him being a fit and proper person.
Of course, it may well emerge that he has had previous convictions and that may well be a factor that the listing committee would wish to take into consideration in determining whether he is still a fit and proper person to continue. But as I say, I think it is an issue which is not entirely clear cut as to whether it is fair to require retrospectively declarations from those who quite properly were not required to make declarations at the time of the original listing and who have over a lengthy period demonstrated fitness and properness to be directors of listed companies.
Renewal of CMB's Franchise
5. MR LEE WING-TAT asked (in Cantonese): Mr President, it is learnt that the China Motor Bus Company Limited (CMB) has refused to negotiate with the Government its franchise and that the company has purchased expensive fuel oil from an oil company, both of which are to the detriment of the interests of passengers. In this connection, will the Government inform this Council:
(a) of the present progress of the negotiation on the renewal of CMB's franchise,
(b) of the criteria adopted in determining whether CMB's franchise should be renewed, and
(c) whether the Government will consider introducing measures to make the CMB management accountable to both this Council and the public; if so, what the details are?
SECRETARY FOR TRANSPORT: Mr President, the China Motor Bus (CMB) Company Limited's franchise will expire on 31 August 1995. The Administration is prepared to award CMi3 a new franchise. This has been supported by the Transport Advisory Committee in principle. We have been negotiating the terms and conditions with CMB for several months and have now reached the final stages of this exercise. I expect to be able to put a recommendation to the Executive Council within the next few weeks.
Let me provide some basic facts: CMB now operates about 1000 buses on 133 routes and carries some 540000 passengers per day. The Administration's prime consideration is to ensure that this level of demand can be satisfied
4412 HONG KONG LEGISLATIVE COUNCIL — 14 June 1995
through the provision of an efficient bus service. In this respect, the main criterion in determining whether or not CMB should be awarded a new franchise is whether CMB can provide a standard of service which is acceptable.
Admittedly, there have been many complaints about CMB and its service. It is not for the Administration to defend the company, but it is our responsibility to assess CMB's performance in a dispassionate manner.
The Administration's conclusion is that, whilst there is certainly room for CMB to further improve its overall performance there have, nonetheless, been improvements since its current franchise was granted in September 1993 when 26 routes were excised. The Transport Department's surveys show that CMB has been able to meet the scheduled requirement. In short, CMB at least deserves a pass mark and for that reason, we are prepared to offer a new three- year franchise to CMB which will comprise a reduced network of routes which we believe CMB can effectively manage.
Regarding accountability on the part of the CMB management, the measures now in place will be retained and further steps taken. At present, the Transport Department closely monitors CMB's daily services and where deficiencies are found warning letters will be issued to require CMB to rectify the situation. Failure to comply will result in the imposition of severe financial penalties which will have to be borne by their shareholders. These procedures follow the provisions laid down in the Public Bus Services Ordinance. As part of the new franchise conditions, we shall also make it a mandatory requirement for CMB to disclose certain financial and operational information. At present, the provision of such information is only on a voluntary basis.
Mr President, the Administration is satisfied that, all factors taken into account, the award of a new franchise to CMB is in the interests of the travelling public.
MR LEE WING-TAT (in Cantonese): Mr President, please allow me to ask a rather long follow-up question. Mr President, and Honourable colleagues, what sort of a company is the China Motor Bus Company Limited (CMB)? The CMB:
(1) has not implemented the system of concessionary fares for senior citizens to its fullest extent;
(2) has refused to join the Smart Card Scheme which serves to link up various transport companies;
(3) has been the subject of a consistently large number of complaints;
HONG KONG LEGISLATIVE COUNCIL — 14 June 1995 4413
(4) has refused to co-operate since the Economic Services Branch announced its policy last year requiring public utility companies to disclose information;
(5) has jumped the gun and signed a contract of property development with another company in order to avoid statutory regulation;
(6) has had incidents in which fares have been stolen from its collection boxes; (7) has purchased fuel oil at a price higher than the market price; and (8) had experienced a strike in 1991.
Mr President, I can go on and list dozens more substantial blunders and faults committed by the management of CMB. Therefore, I object to the Government's renewal of CMB's franchise. If renewal of franchise could be granted even to a company which is so poorly managed, will the Secretary for Transport tell us how much further should a company be poorly managed before the Government would actually refuse to renew its franchise? Are the franchise negotiations between the Government and these companies held at a few year intervals merely a rubber-stamping procedure or acts of pretence? Mr President, will the Secretary for Transport tell us frankly whether renewal of franchise would be granted to any other company whose performance is even poorer than CMB ?
SECRETARY FOR TRANSPORT: Mr President, can I first say that I believe some of the views expressed by the Honourable Member of course are personal views and I respect those views. But may I also remind Honourable Members that when the Legislative Council debated a motion on bus franchises and increases in fares, part of the motion debated was that "this Council urges the Government in the best interests of the public to cancel some of CMB's franchised bus routes when its franchise expires in August this year". Mr President, this motion was carried and indeed in our approach in dealing with franchise negotiations, this is precisely what we are doing.
I know, Mr President, that the Honourable Mr LEE Wing-tat has advocated the non renewal of CMB's franchise and that some Members of this Council support his view. But Mr President, as I have referred to in my response, CMB operates some 1000 buses. They are the second largest bus operator in Hong Kong and we have got to be realistic. If, for argument's sake, a bus company is told that their franchise will not be renewed way in advance, it is inevitable that they will begin to run down their services.
Secondly, as far as the Administration is concerned, the Company has demonstrated certain improvements in the services, perhaps not to the level acceptable to the Honourable Member but nonetheless there has been some
4414 HONG KONG LEGISLATIVE COUNCIL — 14 June 1995
improvement. It is for this reason that the Government believes that the offer of a new franchise to CMB is in the widest public interest. But as part of this exercise, because we recognize that there are deficiencies which can be improved, we will be reducing the network of services.
DR YEUNG SUM (in Cantonese): Mr President, the Government is going to recommend the renewal of CMB's franchise to the Executive Council despite the very poor services provided by CMB, particularly regarding the routes which it has been running in Island South and Chai Wan. If there is sufficient evidence, will the Secretary for Transport tell us, whether the Government will withdraw those routes which CMB has been running poorly from the franchise, find a replacement operator for these routes by open tender and induce competition in order to improve the services?
SECRETARY FOR TRANSPORT: Mr President, because the negotiations are still ongoing, I am not at liberty today to disclose the routes which the Government proposes should be excised from CMB's present network.
Insofar as competition is concerned, in principle, the Administration of course accepts that franchises should be let by open tender, but in Practical terms when it comes to bus services, there is a lead time and it is not practical to replace an operator by tendering. So I think in this case, the Government will have to decide how best to find a replacement operator for the routes which are to be excised from CMB's franchise.
MR LEE CHEUK-YAN (in Cantonese): Mr President, the Secretary for Transport has mentioned in his reply that the Transport Department has been monitoring the services and the operations of CMB and the Honourable LEE Wing-tat has noted in his question the purchase of expensive fuel oil by CMB from an oil company. If CMB has purchased expensive fuel oil, it will obviously shift the costs to the passengers in the end. What kind of monitoring work has the Government been doing in this regard? Can the Government also confirm whether the expensive fuel oil will have any effect on the fares?
SECRETARY FOR TRANSPORT: Mr President, the allegation that CMB has purchased expensive fuel is now under investigation by the Independant Commission Against Corruption and for that reason, of course, I cannot go into full details. But I can say that when the current franchise granted to CMB in September 1993 was executed, part of the franchise conditions required the bus company to submit to the Government information on fuel prices and indeed we have got this information. I think the only other point I can add today is that when we compare the fuel costs, for example, of CMB and Kowloon Motor Bus, in both companies they constitute about 5% to 8% of the overall operating costs.
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So, Mr President, whilst perhaps in years gone by the discrepancy has been higher, I am satisfied that today the current contracts on fuel, which have been let by CMB and this is a commercial decision, are competitive.
MRS MIRIAM LAU (in Cantonese): Mr President, just as the Honourable LEE Cheuk-yan has indicated earlier on, the costs and expenditure of public transport companies would have a direct bearing on fare increases. The companies concerned are, however, often unwilling to disclose such details on the grounds of trade secret. The Government has told us not to fear and not to worry because the Transport Department and the Finance Branch would monitor the situation closely. Will the Secretary for Transport inform this Council, how is it possible for the company concerned to purchase expensive fuel oil under such a system of close monitoring? In fact, does the Government have any means to ensure that the company concerned is operating in a cost-effective way?
SECRETARY FOR TRANSPORT: Mr President, the purchase of fuel by the bus companies is purely a commercial matter for the bus companies concerned. But obviously as the Honourable Member has pointed out, fuel costs are an important component of overall operating costs and for this reason, when we look at the annual accounts, we do monitor this.
But as I have said, because the case is under investigation, I am not able today to provide Members with further details.
REV FUNG CHI-WOOD (in Cantonese): Mr President, one of the main reasons for the present poor services of CMB is that it is a monopoly and faces little competition. If the Government does not adopt some punitive measures towards CMB in order to make it improve, the punishment would be on the public. Does the Secretary for Transport consider the simple punitive measure of cutting certain routes to be sufficient?
SECRETARY FOR TRANSPORT: Mr President, as Honourable Members will recall, the Public Bus Services Ordinance was in fact amended in July last year to provide for financial penalties and the fines which can be levied are as follows: $10,000 per route for the first offence; $20,000 for the second offence and $50,000 for any subsequent offence. Now this obviously is a deterrent and the Transport Department has been monitoring this very closely.
Insofar as financial penalties are concerned, obviously because they will have to be borne by the shareholders, they will be punitive. But more important than that, and perhaps a more punitive measure, is to cut routes and this is precisely what we are going to do when we complete the franchise negotiations as part of the package.
4416 HONG KONG LEGISLATIVE COUNCIL — 14 June 1995 On-the-job Training Scheme
6. MR JAMES TIEN asked: Regarding the On-the-Job Training Scheme, will the Government inform this Council of the following:
(a) whether it will promote the Scheme to a larger number of establishments in the private sector so as to reduce the number of unemployed in the territory;
(b) the current number of corporate participants in the Scheme; the respective percentages of participants from the service sector and the manufacturing sector out of the total number of participants, as well as the respective numbers of trainees involved; and
(c) the number of trainees who will stay on their jobs after completing the three month on-the-job training; and whether the three-month training period is sufficient; if not, whether the training period will be extended?
SECRETARY FOR EDUCATION AND MANPOWER: Mr President,
(a) The Employees Retraining Board (ERB) and the Labour Department have been actively promoting the On-the-Job Training (OJT) Scheme through their liaison networks with major employers associations and individual employers. Over 20000 OJT pamphlets have been sent by the ERB to employers informing them of the Scheme. The ERB training bodies also contact employers in their locality to promote the OJT Scheme and to assist in the placements of retrainees. The ERB reviews such promotion efforts regularly and will step up publicity where necessary. In the coming months, the Government will conduct a more detailed survey on job vacancies. The information will help the ERB to target retraining at the occupational groups with high vacancy rates and those jobs that would benefit more through OJT rather than the more traditional classroom studies.
(b) By the end of May 1995, 1314 firms have joined the OJT Scheme. Of this total, 64% are from the service sector and 22% are from the manufacturing sector. The number of retrainees currently undergoing OJT is 1803 in the service sector and 363 in the manufacturing sector.
(c) Although we do not keep statistics on the number of OJT participants who remain in employment after completing three months' training, the feedback from individual employers indicated that the majority of participants have stayed on their jobs. Furthermore, the findings of an independent study commissioned by
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ERB indicated that the turnover rate of ERB retrainees has been relatively lower than that of other employees.
A large proportion of the jobs under this Scheme are general clerical jobs which do not require a high level of skill. The duration of three months for the OJT Scheme is therefore considered adequate. However, if there are other job types suitable for the OJT Scheme which require longer training, the ERB will consider whether the duration should be extended in order to enhance the effectiveness of the Scheme.
MR JAMES TIEN: Mr President, I am delighted to hear that the turnover rate of ERB trainees has been relatively lower than that of other employees and that the majority of the participants have stayed in their jobs. If that is the case, and in view of the fact that we have about 80000 people out of job right now, will the Government, under ERB, divert more funds to OJT because right now they have only roughly about 2000 trainees, instead of other institutions like the Vocational Training Council or industry specific training boards and authorities?
SECRETARY FOR EDUCATION AND MANPOWER: Mr President, the ERB is in a very healthy financial situation. It does not require funds to be diverted for this purpose. The OJT Scheme in fact only requires, since its inception, $1.7 million to be paid as reimbursement to employers who have participated in the Scheme. It is different from the other types of training provided by the ERB which is classroom type training. For the OJT Scheme, we reimburse up to one-third of the wages of the OJT who are in the first three months of their job training with employers. As I said, the ERB does not require funds specifically to be diverted for this particular Scheme.
PRESIDENT: Not answered, Mr TIEN?
MR JAMES TIEN: Would the Secretary answer whether they will increase the places for OJT?
SECRETARY FOR EDUCATION AND MANPOWER: Mr President, the places for the OJT Scheme is determined by the types of job which are suitable for this type of scheme. These are jobs which require more hands-on experience through direct job experience rather than classroom type training. I mentioned earlier that the ERB will be reviewing the types of OJT jobs and if there are new types of jobs which employers would wish to have OJT trainees. then we would certainly consider extending the types of jobs under the Scheme.
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MRS ELSIE TU: Mr President, I think it is rather confusing to have the two Schemes going, so I may be out of order in asking this question. We have heard about 2000 were trained and back on their jobs. Is it correct that we have 38000 on the waiting list wanting training?
SECRETARY FOR EDUCATION AND MANPOWER: Mr President, could I ask for clarification, waiting for what jobs? Waiting for training?
PRESIDENT: Mrs TU?
MRS ELSIE TU: Mr President, training.
SECRETARY FOR EDUCATION AND MANPOWER: The ERB has already trained well over 60000-odd people and those who are unemployed have first priority for receiving training under ERB training courses. The waiting time for training depends on the nature of the jobs, for example, the job search skill training classes only require a waiting time of about one to two weeks.
MR MARTIN BARROW: Mr President, regarding part (a) of the answer, would the Secretary inform this Council about the nature of the new vacancy survey? In particular, can steps be taken to obtain vacancy figures as promptly as unemployment figures to help reduce the mismatch? And if not, why not?
SECRETARY FOR EDUCATION AND MANPOWER: Mr President, the Census and Statistics Department carries out a quarterly survey of vacancies and they have a very large sample size already of between 60000 to 70000 employers. What we intend to do is to increase the number of questions that we cover in the survey, so that we get more information on what these vacancies are and we are already in discussion with the Census and Statistics Department to enhance these surveys.
PRESIDENT: Not answered, Mr BARROW?
MR MARTIN BARROW: Mr President, I think my question was: Can the survey be done more promptly so that we can see unemployment figures at the same time as we see vacancy figures, because I believe at the moment there is about a three-month gap between the two?
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SECRETARY FOR EDUCATION AND MANPOWER: Mr President, both the vacancy survey and the survey of unemployment are carried out very regularly. We announce our unemployment figures regularly and the next set will be announced tomorrow. I will certainly enquire from the Census and Statistics Department whether we can synchronize the two surveys in a better manner.
MR LEE CHEUK-YAN (in Cantonese): Mr President, I have received a complaint from a worker that at an employment plaza organized by the Labour Department to promote on the-job training, he was told that certain establishments made it plain that no worker over 35 would be employed. In part (b) of the main reply, it was mentioned that 1803 and 363 workers were respectively in the service sector and the manufacturing sector. Is there any information regarding the age groups of these workers so that we can see whether or not there is age discrimination on the part of the establishments participating in the On-the-Job Training Scheme?
SECRETARY FOR EDUCATION AND MANPOWER: Mr President, the OJT Scheme, when it was started, was initially intended for those who were aged 30 and above. Following a review, the age limit was raised to 40. This was because the OJT Scheme was intended to provide an incentive to employers to take on trainees under their employment. During the review, it was found that those aged below 40 did not require any incentive for employers to take them on under the Scheme. This is the reason why the OJT Scheme is now restricted to those aged 40 and above.
MRS SELINA CHOW: As is disclosed in the last paragraph of the reply, a large proportion of the OJT are general clerical jobs. Yet we all know that the shortage of labour is most acute in the service industry sector, particularly in retailing and catering. How proactive is the ERB in designing the necessary courses to meet the demand of sectors where the shortage of labour is most acute, as was mentioned? And is the responsibility of course design left to initiatives of non-government agencies which would have to apply for funds, allocations, with detailed submissions of schemes to the ERB before they are decided on and conducted?
SECRETARY FOR EDUCATION AND MANPOWER: The ERB and its training bodies are in regular discussions with employers to ascertain the type of job training that needs to be provided. There is already a tripartite committee under the ERB of employers as well as training bodies and the ERB itself which look at the curriculum proposed by the training bodies. There are many types of training courses. The OJT is just one aspect of the services provided through the ERB. Other courses provided — and these are classroom teaching as opposed to the OJT — are job search skill courses, job specific skill courses, general skill courses, and skills upgrading courses. And in the context of these
4420 HONG KONG LEGISLATIVE COUNCIL — 14 June 1995
classroom type training, there are courses which are geared towards those in service industries.
PRESIDENT: Not answered, Mrs CHOW?
MRS SELINA CHOW: I do not think my question was answered. I asked the Secretary to confirm whether the initiative lies with the ERB in terms of course design or whether they lie with the training agencies, in which case the ERB in fact does not take on the responsibility of designing courses to meet the demand of employers. Can that be confirmed?
SECRETARY FOR EDUCATION AND MANPOWER: The ERB and the training bodies work together. There is, as I mentioned earlier, a tripartite committee looking at curriculum. Both the ERB and the training bodies take initiatives, but they work together to determine the type of training which should be provided.
MR TAM YIU-CHUNG (in Cantonese): Mr President, in part (a) of the Administration's main reply, it was mentioned that in the coming months, the Government would conduct a more detailed survey on job vacancies. Many vacancies arise due to harsh conditions imposed by employers, or long working hours and low pay. Can I ask how problems in this respect can be solved by on- the-job training ?
SECRETARY FOR EDUCATION AND MANPOWER: Mr President, the OJT is intended to provide on-the-job training for trainees. This will enable them to understand the environment in which they work. This would include the hours of work which is offered by that particular company providing the OJT places. I do not think we should automatically assume that vacancies are due to harsh long hours of work. Vacancies which are not taken up may be due to many many masons, including the fact that those looking for jobs may wish to choose the locality closer to their homes, and other reasons.
WRITTEN ANSWERS TO QUESTIONS
Sewage Charges for Restaurants and Hotels
7. MR HOWARD YOUNG asked: In view of the concern expressed by restaurants and hotels regarding the substantial increase in their water bills because of the recently introduced sewage charges, will the Government inform this Council of the following:
HONG KONG LEGISLATIVE COUNCIL — 14 June 1995 4421 (a) What measures restaurants and hotels can take to reduce such charges;
(b) What the Government has done to publicize the measures mentioned in (a) above to the establishments concerned; and
(c) What assistance and advice can such establishments expect from the relevant departments on water conservation or sewage treatment?
SECRETARY FOR PLANNING, ENVIRONMENT AND LANDS: Mr President, it may be useful to first clear up some degree of confusion regarding water charges and sewage charges which are different utility charges. Water is charged at $4.58 per cum whilst the general sewage charge is $1.20 per cum. The general sewage charge, which is paid by those who discharge effluent into the public sewerage system, is billed together with the water charge by the Water Supplies Department. In addition, a Trade Effluent Surcharge, which is paid by those trades and industries whose strength of effluent is higher than that for domestic discharges, is billed separately by the Drainage Services Department. The trades and industries which are subject to this surcharge, and the respective rates of the surcharge, are specified by the Sewage Services (Trade Effluent Surcharge) Regulation. The Sewage Charge and Trade Effluent Surcharge are based on the "polluter pays principle" whereby the more one pollutes, the more one pays for its treatment.
(a) The following measures will help reduce sewage charges:
(i) install on-site treatment facilities to reduce the strength of effluent — a less polluted discharge as measured by its COD (Chemical Oxygen Demand) would reduce sewage charges;
(ii) reduce the volume of discharge by good housekeeping methods to conserve water; and
(iii) proper installation and maintenance of grease traps.
(b) The Government has publicized the measures mentioned in (a) above via a booklet on the proper design, installation and maintenance of grease traps (published and distributed by the Environmental Protection Department in 1993, shortly to be reprinted), the provision of materials and briefings by the Drainage Services Department to all their customers to explore measures to take to reduce the pollution level of restaurant and hotel effluent, and through municipal council health inspectors when they visit restaurants and hotels.
4422 HONG KONG LEGISLATIVE COUNCIL — 14 June 1995
(c) Apart from disseminating the information described above, assistance are provided by the Trading Fund Branch of the Drainage Services Department on information regarding in-house measures for waste water treatment; by the Environmental Protection Department's Local Control Offices on advice on sewage treatment measures; and by the Water Supplies Department on water conservation measures. In addition, the Planning, Environment and Lands Branch has set up a liaison group with representatives of restaurateurs to discuss their concerns.
KMB's Depot Redevelopment Plan
8. MR FRED LI asked (in Chinese): It is learnt that the Kowloon Motor Bus Company Limited (KMB) is negotiating with the Government the redevelopment plan of its depot in How Ming Street, Kwun Tong, and that the KMB intends to rent the vacant site in the neighbourhood of Shun Lee Estate for use as its temporary depot during the redevelopment period. In this connection, will the Government inform this Council:
(a) of the number of bus parking spaces the KMB plans to provide in the redeveloped How Ming Street depot, and what is the number of parking spaces which the Government requires the KMB to provide;
(b) whether the Government intends to carry out an environmental impact assessment to examine if the site near Shun Lee Estate is suitable for constructing a temporary depot before deciding whether the site should be leased; if not, why not; and
(c) whether the Government will consult the Kwun Tong District Board and local residents about leasing the site near Shun Lee Estate to the KMB for use as a temporary depot; if so, when such consultation will take place; if not, why not?
SECRETARY FOR PLANNING, ENVIRONMENT AND LANDS: Mr President,
(a) Kowloon Motor Bus's (KMB) proposed re-development is still being considered by the Government. In this connection, KMB has also applied for a short-term tenancy near Shun Lee Estate to facilitate its redevelopment project. However, the release of this temporary site to KMB will be considered in conjunction with the redevelopment proposal. The existing depot provides 159 bus parking spaces, mainly for parking two-axle double deck buses. According to the proposal, the new development will provide 215 bus parking spaces, including 146 for three-axle double deck buses, 63 for medium coaches and six for small coaches. The proposed
HONG KONG LEGISLATIVE COUNCIL — 14 June 1995 4423
provision will meet the Government's requirement for KMB's overnight bus parking in East Kowloon.
(b) The Government does not intend to carry out a full Environmental Impact Assessment covering the proposed temporary site near Shun Lee Estate because the site is quite far away (about 180 m) from residential areas. The two adjoining users are a playground, and a temporary housing area which will shortly be cleared for the proposed Fire Service Recreational Club. The Environmental Protection Department has however been consulted, and in the event that the tenancy to KMB does proceed, adequate environmental safeguards will be included into the tenancy conditions.
(c) The Kwun Tong District Office has sought the preliminary views of individual district board members and the Area Committee. They have raised no objection to the proposed tenancy subject to the provision of a physical partition to protect users of the adjoining playground.
Security Services in Public Housing Blocks
9. DR TANG SIU-TONG asked (in Chinese): The Housing Authority has decided to provide entrance grilles, closed-circuit TVs and 24-hour security services in most public housing estates. In this connection, will the Government inform this Council whether:
(a) the Housing Authority will provide round-the-clock security services in public housing blocks where iron grilles have not yet been installed at the entrances; and
(b) the Housing Authority has any plan to provide entrance grilles, closed circuit TVs and round-the-clock security services in all public housing blocks; if so, when the work is expected to be completed?
SECRETARY FOR HOUSING: Mr President, the Housing Authority has a security improvement programme for different types of public rental housing blocks. All new and existing Harmony and Trident blocks will be provided with security devices including gates at all entrances, doorphones and closed circuit television (CCTV) inside lifts and at the main entrance. A guard will also be provided at the main entrance of each block round the clock. For blocks of other designs, CCTV will be installed inside lifts, with link-up to a control room for central monitoring by security guards.
4424 HONG KONG LEGISLATIVE COUNCIL — 14 June 1995
Under the programme, about 1000 rental blocks, other than blocks to be redeveloped shortly or without lifts, will be provided with security devices by the end of 1997 in phases. Installation work is now in progress.
Given the open environment in public housing blocks where gates have not yet been installed at the entrances, the Housing Authority will not provide round-the-clock security service as it will involve several thousand security guards and will not be cost-effective. Meanwhile, the Housing Authority has deployed additional security guards to patrol in estates where crime rates are relatively high.
Control of Foreign Exchange Investment Companies
10. MR FREDERICK FUNG asked (in Chinese): Will the Government inform this Council:
(a) what measures are currently adopted by the Securities and Futures Commission to control foreign exchange investment companies which have not been issued with licences in the territory; and
(b) what protection is provided to investors in the event of the closure of such companies due to operational problems?
SECRETARY FOR FINANCIAL SERVICES: Mr President,
(a) Under the Leveraged Foreign Exchange Trading Ordinance (Cap.451) (LFETO), it is an offence for any person to carry on a business of leveraged foreign exchange trading without a licence. The maximum penalty on conviction for such an offence is $10 million and seven years' imprisonment.
Since the coming into force of the LFETO on 1 October 1994, there have been no complaints from the public of unlicensed leveraged foreign exchange trading. Nevertheless, the Securities and Futures Commission (SFC) has committed substantial resources to preventing unlicensed activity. Twenty-three addresses which were identified as possible locations where unlicensed activity might be occurring were visited by SFC staff but no unlicensed activity has been detected.
Separately, there has been one successful prosecution of a company which held itself out as carrying on a business of leveraged foreign exchange trading whilst unlicensed. The company was fined $60,000 and ordered to pay the SFC's costs of $30,495.
HONG KONG LEGISLATIVE COUNCIL — 14 June 1995 4425
In two other cases, search warrants were executed. The first case involved a securities dealer who was suspected to have offered facilities to his clients to trade foreign exchange on a leveraged basis. The other case involved the issue of a pamphlet to a solicitor which offered a scheme involving investment in foreign exchange in a manner which could infringe the LFETO. Enquiries into both these cases are continuing.
The SFC will continue to take vigorous action against unlicensed leveraged foreign exchange traders to protect investors. However, a distinction should be drawn between unlicensed companies operating illegally and those which have applied for a licence under the transitional provisions of the LFETO. These latter companies, although legally unlicensed, are allowed to continue trading until their applications have been determined. In order to apply for a licence, these companies are required to have a minimum $30 million capital, ab initio, but they do not have to comply with the Financial Resources Rules, the Conduct of Business Rules and the Accounts and Audit Rules until they are licensed.
In actual practice, however, such companies by and large tend to respect the regulatory requirements pending approval of their licences, as they are not in a position to forecast when a licence may be issued but will have to meet these rules once a licence is approved.
For this reason, since the introduction of the Ordinance, the number of complaints against the industry has fallen dramatically. The nature of the complaints has also changed — from essentially fraud related complaints prior to the introduction of the legislation to essentially trade dispute related complaints since the introduction.
In the event of an application being rejected, the LFETO obliges the company to cease trading within 14 days and provides the SFC with the necessary powers to ensure that investors' positions are closed out in an orderly manner and that their assets are protected.
(b) Apart from the normal civil remedies, there is no protection for clients of an unlicensed leveraged foreign exchange trader in the event of a closure.
While the legal position is largely the same in respect of licensed leveraged foreign exchange companies, the combination of the capital requirements under the financial resources rules and the segregation of client assets requirements under the conduct rules which licensed companies are required to respect, is likely to afford an appropriate level of protection of client assets should a licensed company go into liquidation.
4426 HONG KONG LEGISLATIVE COUNCIL — 14 June 1995
For this reason, in addition to its enforcement efforts, the SFC has repeatedly urged investors to ensure that they deal only with leveraged foreign exchange companies which are authorized to conduct such activities. To assist investors, the SFC has established a hotline service to advise whether the companies they are dealing with are indeed authorized.
Prisoners' Wages and Prices of Canteen Items
11. MR TAM YIU-CHUNG asked (in Chinese): Will the Government inform this Council of the mechanism adopted by the Government to adjust the wages received by the prisoners for their work and the prices of the canteen items they are permitted to purchase during their terms of imprisonment; and whether the Government would consider adjusting the wages of the prisoners and the prices of the canteen items simultaneously; if not, why not?
SECRETARY FOR SECURITY: Mr President, the tender for the supply of canteen items is renewed once a year, in October. When the result of the tender is known, the prices of canteen items can be fixed; prison wages are then adjusted correspondingly in order to maintain prisoners' purchasing power.
Prisoners' wages may also be adjusted in line with increases in the prices of some canteen items which are dutiable items. This typically happens in March each year, at the time of the Budget, but may exceptionally happen at other times of the year.
All adjustments in prisoners' wages are made at the same time as increases in canteen prices.
Land Use in Industrial Estates
12. DR HUANG CHEN-YA asked (in Chinese): Regarding the land use in industrial estates, will the Government inform this Council:
(a) how many hectares of land in the industrial estates at Tai Po, Yuen Long and Tseung Kwan 0 are now available for leasing respectively;
(b) how many hectares of land were leased, and at what prices, in each of the industrial estates last year and in the first quarter of this year;
(c) whether the joint applications made recently by a number of pharmaceutical factories, as well as a number of electroplating factories, for the grant of land in the industrial estates reflect that
HONG KONG LEGISLATIVE COUNCIL — 14 June 1995 4427
there is demand for industrial land among the medium-sized and small enterprises; if so, whether the Hong Kong Industrial Estates Corporation will review its existing policy on the leasing of land in industrial estates with a view to meeting the growing demand of the medium-sized and small enterprises; and
(d) when the Hong Kong Industrial Estates Corporation will decide on the joint applications for the grant of land made by the pharmaceutical and electroplating factories; what factors will be taken into consideration in making the decision and whether the size of the factories is a decisive one?
SECRETARY FOR TRADE AND INDUSTRY: Mr President,
(a) The Hong Kong Industrial Estates Corporation (HKIEC) presently has 4.3 hectares available for leasing at its estate in Tai Po, 7.5 hectares in Yuen Long, and 5.8 hectares in Tseung Kwan O.
(b) The HKIEC's figures are collated on the basis of the financial, rather than the calendar year. During the year ended 31 March 1994, 1.34 hectares was granted at Tai Po, 4.75 hectares at Yuen Long, and 3.37 hectares at Tseung Kwan O. Since 1 April 1995, no land has been leased at Tai Po or Yuen Long, but 1.1 hectares has been leased at Tseung Kwan O, and a further 4.08 hectares has been offered to applicants. The land premiums per sq m are as follows: $2,500 at Tai Po ($2,200 up to 31 March 1994), $2,000 at Yuen Long ($1,800), and $2,400 and $3,000 respectively for inland and waterfront sites at Tseung Kwan O ($2,100 and $2,650).
(c) As only two groups of small and medium-sized enterprises have expressed interest in leasing land from the HKIEC, it is not possible to say whether this reflects a more general demand for industrial land from such enterprises. It is likely that only enterprises which cannot operate in conventional industrial buildings would seek land, because of the additional financial commitment which development entails.
The HKIEC's existing policy already allows it to consider joint applications from multiple users, including small and medium-sized enterprises.
(d) A group of pharmaceutical companies has submitted a joint application, and detailed discussions are taking place. It is not possible to say when these will be concluded. Preliminary discussions have also taken place with a group of electroplating companies, although no application has been received to date.
4428 HONG KONG LEGISLATIVE COUNCIL — 14 June 1995
All applicants must show that they meet the HKIEC's basic criteria, which are that applicants' activities must be of a nature which cannot effectively be carried out in an ordinary multi-storey building, they must not be classified as an offensive trade, and the primary activity must not be storage or warehousing. Practical considerations, such as the financial ability of joint applicants to complete the project, and how they would replace occupants of a multi-user building who vacate their premises, will also be taken into account.
District Officers' Attendance at Functions
13. MR WONG WAI-YIN asked (in Chinese): Regarding the attendance of District Officers at various kinds of ceremonies, will the Government inform this Council:
(a) of the respective number of ceremonies attended by each of the District Officers last year, together with a breakdown by month of the number of attendances and the time spent;
(b) of the criteria adopted by the District Officers in deciding whether to attend such ceremonies or not; and
(c) how the District Officers can avoid causing disruption to other areas of their work caused by their frequent attendance at ceremonial functions?
SECRETARY FOR HOME AFFAIRS: Mr President,
(a) No statistics pertaining to attendance of District Officers at various kinds of functions have been kept. As a rough indication, District Officers attend an average of four to five functions each month and spend between one to two hours at each function.
(b) Attendance by District Officers at functions is an indication of government support. In deciding whether or not to attend a particular function, District Officers generally take into account factors such as the purpose of the occasion, the status of the organization, and whether their attendance would contribute positively to the Government's community building efforts.
(c) As invitations to functions are received well in advance, District Officers are able to plan their work schedule around these functions. Also, many of the functions are held outside office hours.
HONG KONG LEGISLATIVE COUNCIL — 14 June 1995 4429 Polluted Sewer near Kingswood Villas
14. MR TANG SIU-TONG asked (in Chinese): Residents of Kingswood Villas in Tin Shui Wai, especially those living in Tin Oi Court, have been suffering from the stench emitted from the nearby stormwater sewer. In this connection, will the Government inform this Council of:
(a) the reasons for the emission of stench from the stormwater sewer despite the closing down of the pig rearing industry; and
(b) the measures and the time frame for cleaning up the polluted sewer so that residents will no longer have to suffer from the stench?
SECRETARY FOR PLANNING, ENVIRONMENT AND LANDS: Mr President,
(a) The odour in the stormwater channel near Tin Oi Court is the result of water pollution from the indiscriminate dumping of waste, particularly livestock waste, upstream. There is also a minor problem with domestic sewage discharges.
(b) A number of measures are being implemented to alleviate the problem. Eighteen Low Flow Interceptors (LFI), commissioned in 1994, intercept the polluted base flow during the dry season and divert it to the public sewerage system for proper treatment and disposal. An inflatable dam assists in the downstream dispersal of the pollutants in the channel. A full scale desilting of the channel, completed in January 1995, removed polluting material deposited, thus removing odour and improving flows. The Deep Bay area, which covers the Tin Shui Wai catchments, was declared a Water Control Zone in December 1991; factories in Kiu Tau Wai are now required to connect their industrial effluents into the public sewers newly completed. This has resulted in diverting a total flow of over 2000 cum per day and a pollution load equivalent to about 10000 people away from the channel. The small number of domestic sewage discharges into the channel will also be removed when new sewers are provided under Stage 2 of the Yuen Long and Karm Tin Sewage Master Plan in mid-1999. Finally, livestock waste, the main cause of odour problem in the channel, will be controlled under the Livestock Waste Control Scheme when controls for the Tin Shui Wai catchments are implemented in mid-1996.
4430 HONG KONG LEGISLATIVE COUNCIL — 14 June 1995 Employment Situation of Retrained Workers
15. DR DAVID LI asked: The unemployment rate has increased in the recent months against the background of a faster than expected growth in the territory's labour force. The growth rate of the labour force in 1994 was 3.5%, which was the highest recorded in the last three years. It has been suggested that one of the reasons for this rapid growth in labour force is that most retrained workers take a long time to find a job. In this connection, will the Government inform this Council how long retrained workers take on average to find a job after they have received retraining under the Employees Retraining Scheme?
SECRETARY FOR EDUCATION AND MANPOWER: Mr President, most of the participants of the retraining programmes who wish to acquire new skills with a view to taking up employment are already unemployed persons. They are by statistical definition already part of our labour force. The length of time they need to find a job after retraining has therefore no impact on both the growth rate of our labour force and the overall unemployment figure.
According to the statistics gathered by the Employees Retraining Board, the average time for a retrainee who is an active job seeker to secure a job after retraining ranges from one to four weeks. As far as those retrainees who seek employment assistance at the Local Employment Service of the Labour Department are concerned, about 60% are able to find jobs within one month after registration.
Hospital Authority's Management of Donations
16. MR MICHAEL HO asked (in Chinese): Will the Government inform this Council of:
(a) the system adopted by various hospitals under the management of the Hospital Authority (HA) in determining the use of funds raised in fund raising activities; and
(b) a detailed breakdown showing how each HA hospital allocated and spent the funds raised in last year's fund-raising activities?
SECRETARY FOR HEALTH AND WELFARE: Mr President, the use of donations generated from fund-raising activities organized by individual hospitals is determined by the Hospital Governing Committees or charitable trusts set up for this purpose. A breakdown showing the donations received by different public hospitals in 1994-95 and their way of disbursement is at Annex.
HONG KONG LEGISLATIVE COUNCIL — 14 June 1995 4431
Some charitable organizations are engaged in a wide spectrum of community services not confined to those provided by public hospitals. As a historical practice, the governing boards of these organizations including the Tung Wah Group of Hospitals, Yan Chai Hospital and Pok Oi Hospital may determine and allocate the use of donations obtained from fund-rasing activities. The Government has no intention to interfere with this established arrangement.
The Hospital Authority Board will review on a regular basis the philosophies, directions and parameters for fund-raising activities as part of its overall strategy on community involvement.
Annex
Disbursement of Funds Generated
From Fund Raising Activities in 1994-95
Pamela Youde
Queen Nethersole Queen Princess Prince of Kwai Tuen
Mary Eastern Elizabeth Margaret Wales Chung Mun
Hospital Hospital Hospital Hospital Hospital Hospital Hospital
Amount of donations $7.5 million $2.7 million $12,000 $207,480 $6.675 million $256,000 $300,000 obtained from
fund-raising activities
Use of donations Patient Patien Staff Patient Pending Patient Hospital obtained from education Resource Welfare Service formation of Resource Open Day fund-raising and screening Centre Fund Centre a charity Centre activities for high- trust
risk cancer
patients
Job Security for Local Drivers
17. MR TAM YIU-CHUNG asked (in Chinese): Will the Government review the Immigration Ordinance and other related ordinances with a view to clearly stipulating that foreign domestic helpers are prohibited from taking up employment as drivers, so that the employment opportunities of local drivers will not be affected?
SECRETARY FOR SECURITY: Mr President, foreign domestic helpers are admitted for employment with specific employers under a standard employment contract. Domestic duties are defined in the Explanatory Notes of the employment contract to include domestic cooking, household chores, baby- sitting and child minding, but this is not an exclusive definition.
Under the present arrangements, whether foreign domestic helpers are allowed to perform driving duties depends on whether the driving duty is incidental to, or forms part of, the foreign domestic helper's domestic duties. In other words, it has to depend on the context and circumstances in which the duties are performed. Therefore, each case is considered on its merits. At present, we have no plans to review the Immigration Ordinance, or other ordinances, in relation to this matter.
4432 HONG KONG LEGISLATIVE COUNCIL — 14 June 1995 Suspension of Works on Land Development Corporation Sites
18. MR CHIM PUI-CHUNG asked (in Chinese): Regarding the suspension of building works on some Land Development Corporation sites, will the Government inform this Council:
(a) whether the relevant development projects which have been approved by the Town Planning Board will be cancelled due to the suspension of building works on those sites;
(b) whether it will consider allowing the owners to redevelop their own properties; and
(c) if the answer to (b) is in the negative, whether those owners can demand compensation on the ground that their properties cannot be redeveloped; if not, why not?
SECRETARY FOR PLANNING, ENVIRONMENT AND LANDS: Mr President, the Land Development Corporation is currently redeveloping five sites. Works have not been suspended on any of these sites. The Corporation has re-confirmed its intention to complete the developments as early as possible.
In the light of the above, we have no comment on parts (a), (b) and (c) of this question.
Economic Restructuring
19. MR HUI YIN-FAT asked (in Chinese): Regarding the unemployment problem caused by the structural transformation of the territory's economy, will the Government inform this Council of the following:
(a) whether, taking into account the economic restructuring and the ups and downs of different industries, the Government has formulated development strategies to deal with problems arising in the course of such restructuring; and whether the Government has come to grips with the present situation; and if so, why the Government has not yet adopted appropriate preventive and remedial measures;
(b) whether the concept and mode of training under the Employees Retraining Scheme as well as the source of income of the Employees Retraining Fund will be reviewed, so that the Scheme may be changed to one which will enhance community education for adults, provide occupational training to employees in various industries and help employees to become more flexible and adaptive in changing over to other occupations in future; and
HONG KONG LEGISLATIVE COUNCIL — 14 June 1995 4433
(c) whether it has any plan to encourage employers in the manufacturing sector to place more emphasis on human resources investment locally, so as to remove the mentality of short-term investment and solve the problem in recruiting skilled labour?
FINANCIAL SECRETARY: Mr President,
(a) The Government's economic policy is to allow market forces to determine the pace and direction of economic development, while providing an environment that is as friendly and as supportive to business as possible. This policy has enabled rapid and large-scale restructuring of the economy to take place with remarkably little impact upon employment. During restructuring, some impact upon employment is inevitable, given the mismatch between the skills demanded by employers, and those offered by employees. Since the scale and speed of the process depends upon market forces, it is not possible to predict in advance precisely what the impact will be. To mitigate the effects of unemployment upon those displaced from their jobs, the Government operates the Employees Retraining Scheme, to enable displaced workers to retrain for other jobs.
(b) The primary objective of the Employees Retraining Scheme is to provide retraining courses to help those displaced by the economic restructuring process to re-enter the workforce. To this end, the Employees Retraining Board (ERB) provides training in both job- related technical skills and general techniques for adapting to new job requirements. On the other hand, the adult education programme, which is co-ordinated by the Education Department, provides general educational opportunities for adults who may have missed the opportunity to receive formal education.
The ERB is funded by a specific levy imposed on employers of imported workers, which is solely designated to finance the Scheme set up in accordance with the Employees Retraining Ordinance. It is not appropriate to expand the role of the ERB and the ambit of this levy to cover adult education and other purposes which are already provided for and funded separately.
(c) The Government already operates a number of schemes which are intended to encourage manufacturers to upgrade the skills of their workforce. These include the New Technology Training Scheme, which offers matching grants to employers training staff in new technologies, the Engineering Graduate Training Scheme which subsidizes employers who provide graduate engineers with the training needed to meet the requirements of the Hong Kong institution of Engineers or similar professional bodies, and the Employees Retraining Programme, under which employers are
4434 HONG KONG LEGISLATIVE COUNCIL — 14 June 1995
offered subsidies to retrain people in skills for which there is unfulfilled demand.
Bilingualism in Government Forms and Documents
20. MR CHEUNG MAN-KWONG asked (in Chinese): Regarding section 3(2) of the Official Languages Ordinance which stipulates that both English and Chinese possess equal status and enjoy equality of use, will the Government inform this Council:
(a) of the number of ordinances requiring that documents should beset out or submitted to the authorities concerned in English, together with the titles and summaries of the contents of such ordinances, excluding those ordinances listed in the Chief Secretary's reply to. a question regarding the measures to implement the provisions in section 3(2) of the Official Languages Ordinance at the Council sitting on 16 November 1994; and
(b) whether a schedule will be drawn up for all the ordinances stated in (a)above to be amended in stages before 1 July 1997, so that their provisions will accord with the spirit of section 3(2) of the Official Languages Ordinance; if so, what the details are; if not, why not; and whether the Government has considered the effect of non- compliance with Article 9 of the Basic Law of the Hong Kong Special Administrative Region in respect of
those ordinances which have not been amended?
CHIEF SECRETARY: Mr President,
(a) The ordinances listed in the Chief Secretary's reply on 16 November 1994 related to documents which were required to be submitted in English only. There are also a number of ordinances which require documents to be set out or submitted to the authorities concerned in English as well as Chinese. These are listed in the Annex.
(b) A review of all ordinances is being undertaken by a unit in the Legal Department to ascertain whether amendments to these ordinances could be introduced to provide for bilingualism in the preparation of the documents involved. The Government is fully aware of the need for consistency between Hong Kong Laws and the Basic Law, and the Chinese side is being consulted on proposed amendments to the laws where necessary.
HONG KONG LEGISLATIVE COUNCIL — 14 June 1995 4435 Annex
Landlord and Tenant (Consolidation) Ordinance (Cap.7)
Section 47(1) The forms in the Second Schedule are prescribed for use under this Part and shall in each case be accompanied by a translation thereof in the Chinese language.
Boilers and Pressure Vessels Ordinance (Cap.56)
Section 15(2) Where a copy of a document referred to in subsection (1) is not written in the English or Chinese language, it shall be accompanied by an English translation.
Births and Deaths Registration Ordinance (Cap.174)
Section 4(3) ..... Entries of births and deaths shall, in the case of non- Chinese, be in the English language and, in the case of Chinese shall be both in the English and the Chinese languages.
Matrimonial Causes Rules (Cap.179) sub. leg. A
Rule 40(2) Where a document produced by virtue of paragraph (1) is not in English it shall, unless otherwise directed, be accompanied by a translation certified by a notary public or authenticated by affidavit or affirmation.
Rule 109(3)(b) .....if the petition is to be served ..... and there is reasonable ground for believing that the person to be served does not understand English, the petition shall be accompanied by a translation ..... in the official language of the country in which service is to be effected .....
Commodities Trading Ordinance (Cap.250)
Section 45(2) The records referred to in subsection (1) shall be kept - (a) in writing in the English language; or
(b) in such a manner as to enable them to be readily accessible and readily converted into written form in the English
language.
4436 HONG KONG LEGISLATIVE COUNCIL — 14 June 1995
[The records referred to in subsection (1) are those records to be kept by a dealer which will sufficiently explain the transactions, and reflect the financial position, of the business of trading in commodity futures contracts carried on toy the dealer and will enable true and fair profit and loss accounts and balance sheets to be prepared from time to time. ]
Housing Ordinance (Cap.283)
Section 35 If any dispute arises in respect of any difference between the English version and the Chinese version of any lease, assignment, agreement, deed of mutual covenant, letter, notice or other documents required, granted, issued or made by, under or for the purposes of this Ordinance, the English version shall prevail.
Adoption Rules (Cap.290) sub. leg. A
Rule 2(3) In any discrepancy between the English and the Chinese version of any matter or in any form, the English version shall prevail.
Securities Ordinance (Cap.333)
Section 83 The records referred to in subsection (1) shall be kept - (a) in writing in the English language; or
(b) in such a manner as to enable them to be readily accessible and readily converted into written form in the English
language.
[The records referred to in subsection (1) are those records to be kept by a dealer which will sufficiently explain the transactions, and reflect the financial position, of the business of trading in securities carried on by the dealer and will enable true and fair profit and loss accounts and balance sheets to be prepared from time to time. ]
Demolished Buildings (Re-development of Sites) Ordinance (Cap.337)
Section 7(1) Where a re-development notice has been served in respect of any property, there shall be published in the Gazette and (with a translation in Chinese) affixed to the property
HONG KONG LEGISLATIVE COUNCIL — 14 June 1995 4437 MOTIONS
ROAD TRAFFIC ORDINANCE
THE SECRETARY FOR TRANSPORT moved the following motion:
"That the period for which there remains in force the limit on the number of vehicles which may be registered as public light buses specified in the Public Light Buses (Limitation on Number) Notice published as Legal Notice No.146 of 1986 and extended to 20 June 1989 by Legal Notice No.155 of 1987 and to 20 June 1991 by Legal Notice No.152 of 1989 and to 20 June 1993 by Legal Notice No.222 of 1991 and to 20 June 1995 by Legal Notice No.216 of 1993, be further extended to 20 June 1997."
He said: Mr President, I move the motion standing in my name in the Order Paper.
Section 23(1) of the Road Traffic Ordinance provides for the Governor in Council to specify a limit on the number on any class of vehicles, whilst section 23(3) provides for the Legislative Council to extend the period such a limit remains in force. In exercise of these powers, the number of public light buses (PLBs) has been limited to 4350.
PLBs play an important supplementary role in our transport network, particularly in providing essential feeder services. That is why the Administration continues to convert non-scheduled red minibus services to green minibus services which operate on specified schedules along fixed routes at approved fares.
But the fact remains that PLBs are less efficient road users that high capacity franchised buses. They also cause traffic and other problems. That is why it has been our policy to limit their numbers.
The last major review of the policy on the role of PLBs was conducted in 1988. It is now time to undertake another comprehensive review and I intend to put this in train. In the meantime we need to maintain the status quo on the number of PLBs. Mr President, the motion before Honourable Members provides for this.
Mr President, I beg to move.
Question on the motion proposed.
MRS MIRIAM LAU (in Cantonese): The number of public light buses (PLBs) has been frozen since 1976 and currently it is still maintained at the level of 4350. Previously they were not under any form of control and the number of
4438 HONG KONG LEGISLATIVE COUNCIL — 14 June 1995
PLBs had increased so rapidly that they not only posed a serious threat to toad traffic but also affected the co-ordination among various modes of public transport. Under such circumstances, one could not really criticize the Administration for imposing regulatory control over them. Although the concerns then are still valid today and it may still be necessary to maintain a control over the number of PLBs, the community's demand for public transport has changed after 19 years. The Government should now conduct a general review on the role of PLBs and also its policy towards PLBs so that it can step up its regulation to allow PLBs to play a more important role in their capacity as a mode of public transport. I am very glad to hear the Secretary for Transport saying just now that he is going to review the situation in this respect and I hope that the Government will speed up the process.
Many have criticized that the Government does not have a policy towards PLBs. Although PLBs have served as a supplementary mass transit carrier, the Government seems to lack a sense of direction as to how PLBs should perform their function in this aspect. The Government has imposed many restrictions on PLBs. For example, PLBs are not allowed to enter public housing estates or run on certain roads. These restrictions have caused a lot of inconvenience to many people and also made it difficult for PLBs to compete with those large buses and other modes of public transport.
The Government has little control over the fares and service quality of red PLBs. Although the Government once said that it would en courage the operators of red PLBs to convert their vehicles into green PLBs and it started to launch this conversion scheme in the 1970s, it is disappointing that up till 1994, out of the 4350 PLBs in operation, only 1700 were green PLBs with scheduled services. Only a hundred or so red PLBs are converted to green PLBs every year. There is certainly a need for improvement in this snail-like efficiency in doing things. As a matter of fact, the Government has the absolute dominating power as regards whether to open more green minibus routes, and so it can completely control the speed of red PLBs converting into green ones. Some operators of red PLBs once told me that they had actually been running on certain scheduled routes for a long time. They wished to be able to change and operate scheduled service PLBs but the Government did not approve. It seems that the operators want to be regulated, only that the Government is not willing to regulate. I think that the Government should do its best to speed up the process of converting red PLBs into green ones and put this conversion scheme into effect systematically so that more PLBs are included in the scope or regulated scheduled services. In this way, the overall service quality of PLBs can be improved and their efficiency can be heightened.
The number of PLBs is limited and so is Hong Kong's road surface. Under these circumstances, we need to fully utilize our limited resources of transport. At present, the Government has deliberately limited the number of seats on a PLB to only 16 when in fact 20 seats can be installed. I feel that it is a waste. I have repeatedly advocated over the past that the Government should consider whether it is possible to allow PLBs to carry more passengers on
HONG KONG LEGISLATIVE COUNCIL — 14 June 1995 4439
condition that this would not affect other modes of public transport. This should allow PLBs to operate in a more cost-effective way and be able to provide a cheaper and better service to the public. Actually, if the competitiveness of PLBs is strengthened so that they can play a more active role in public transport, it will help to stimulate other modes of public transport to provide services of better quality at the lowest possible cost. In the end, it is the public who will reap the benefits. I hope that the Government can include this recommendation in its review.
Mr President, these are my remarks.
MR LEE WING-TAT (in Cantonese): Mr President, I support this resolution, but I also welcome the Administration's review of the policy on public light buses (PLBs).
There is one point which I cannot fully agree with the Secretary for Transport and that is when talking about the role of PLBs, he said that PLBs are the main cause of traffic congestion. While we talked about controlling the growth of private cars, the Transport Branch said that private cars were the main cause of traffic congestion. However, when we discuss the policy on PLBs, the Government put the blame on PLBs. As a matter of fact, there are only some 4000 PLBs in Hong Kong. PLBs occupy a definite position in public transport, but they are hardly the main cause of traffic congestion.
Apart from the above, there is another point which I do not quite agree with and that is the Administration has, over the years, never reviewed the number of PLBs. Although the passenger capacity of a PLB is smaller than that of a bus, I am sure the Secretary for Transport cannot deny that, after all, the passenger capacity of a PLB is larger than that of a taxi. While there is a steady growth in the number of taxi licences issued every year, how come the number of PLBs has never been reviewed after so many years? Mr President, although I may not be able to decide immediately whether to support the Administration in increasing the number of PLBs, it is indeed astonishing to note this absence of any review in that respect for more than 10 years.
Mr President, in my opinion, this review should be based on a clear principle and that is, the best interests of commuters should be taken as the basis for consideration. I do not wish to find in the review such arguments like increasing the number of PLBs will take away the passengers from the bus companies, or increasing the number of PLBs will render the operation of the existing franchised bus companies even more difficult. These arguments are in fact unfounded. If PLB services are to be regarded as an option somewhere between private transport (that is, private cars) at one end and mass transit carriers (that is, buses and the Mass Transit Railway) at the other, this option is necessary. I hope that the Secretary for Transport, when doing the review, will pay attention to the following questions. The first question is whether the
4440 HONG KONG LEGISLATIVE COUNCIL — 14 June 1995
Government should continue to freeze the number of PLBs or allow the number to increase moderately?
Secondly, when the Government continues the policy aiming at controlling the ownership and use of private cars, how is it going to encourage those who normally use their private car to take instead the medium-sized buses, that is, PLBs, which are more acceptable to them? As we all know, many private car owners do not wish and are not willing to take the bus. In this regard, the situation in the new towns is particularly obvious. In areas like Tuen Mun, Yuen Long, Sha Tin and Tai Po, if there are more comfortable and directly accessible PLB services available, I believe that the private car owners in these areas will be quite willing to consider giving up their own cars. As a matter of fact, when considering restricting the growth in the number of private cars, the Government should also take into account other modes of transport available to these private car owners as a replacement. But it is regrettable that the Secretary for Transport has not yet adopted this policy at this stage. I hope that the Secretary will cover this point in the review.
Thirdly, under the existing legislation on public transport, large public transport operators such as the bus companies are entitled to price discounts on fuel and tax concessions. However, PLB operators and owners are treated the same way as any ordinary business concern whether in the licence fees paid when purchasing PLBs or in the cost of fuel. We think that this should be reviewed.
Fourthly, although PLBs are smaller in size and they do sometimes cause traffic congestion, we think that the many unnecessary restrictions currently imposed on PLBs are open to question. Therefore, I hope that the Secretary for Transport will cover this point in the review.
SECRETARY FOR TRANSPORT: Mr President, may I first say I am grateful to the Honourable Miriam LAU and the Honourable LEE Wing-tat for their comments. As I said, I intend to put into train a review of the role and other aspects of PLB and the policy and I shall certainly take into account the various suggestions that they have raised.
Thank you, Mr President.
Question on the motion put and agreed to.
BIRTHS AND DEATHS REGISTRATION ORDINANCE
THE SECRETARY FOR SECURITY moved the following motion:
"That with effect from 1 July 1995 the Births and Deaths Registration Ordinance be amended -
HONG KONG LEGISLATIVE COUNCIL — 14 June 1995 4441 (a) in section 9(2) by repealing "$80" and substituting "$110";
(b) in section 9(3) by repealing "$400" and substituting "$540";
(c) in section 13(2) by repealing "$80" and substituting "$110";
(d) in section 13(3) by repealing "$250" and substituting "$340";
(e) in section 22(1) by repealing "$80" and "$160" and substituting "$110" and "$220" respectively;
(f) in section 22(2) by repealing "$80" and substituting "$110";
(g) in section 22(3) by repealing "$400" and substituting "$540";
(h) in section 23 by repealing "$40" and substituting "$55";
(i) in section 27(c) by repealing "$250" and substituting "$340"."
He said: Mr President, I move the first motion standing in my name in the Order Paper. This proposes increases in the fees specified in the Births and Deaths Registration Ordinance for the registration of births and deaths and related matters.
A recent review of fees and charges collected by the Immigration Department has indicated that in various areas, the Department is not recovering its costs: these are, the registration of persons, when the average shortfall is about 16%; the registration of births, deaths and marriages, where the average shortfall is about 26%; and the issue of travel documents, where the average shortfall is about 16%.
It is government policy to provide services to the public on a cost- recovery basis, unless there are good reasons for doing otherwise. We are, therefore, proposing to revise the fees in the three areas I have mentioned. Full details of the increases proposed are contained in the Annex which I have tabled for the information of Members.
The fees to be revised were last revised in July 1994. If approved, the new fees will be introduced on 1 July this year.
Mr President, I beg to move.
Question on the motion proposed, put and agreed to.
4442 HONG KONG LEGISLATIVE COUNCIL — 14 June 1995 FOREIGN MARRIAGE ORDINANCE
THE SECRETARY FOR SECURITY moved the following motion:
"That with effect from 1 July 1995 the Foreign Marriage Ordinance be amended - (a) in section 5 by repealing "$40" and substituting "$55";
(b) in section 6 by repealing "$400" and substituting "$540"."
He said: Mr President, I move the second motion standing in my name in the Order Paper. It seeks to increase the fees specified in the Foreign Marriage Ordinance.
The Foreign Marriage Ordinance provides a means whereby Commonwealth citizens can given a notice of marriage in Hong Kong, even though the marriage has taken place at the British Embassy abroad. Fees are payable for the issue of a certificate by the Registrar of Marriage. The fees were last revised in July 1994 and it is now proposed to increase them from $40 to $55, for a certificate by the Registrar of Marriages, given under section 5, and from $400 to $540, for a Governor's licence, given under section 6 of this Ordinance.
Mr President, I beg to move.
Question on the motion proposed, put and agreed to.
LEGITIMACY ORDINANCE
THE SECRETARY FOR SECURITY moved the following motion:
"That with effect from 1 July 1995 the Schedule to the Legitimacy Ordinance be amended -
(a) in paragraph 5 by repealing "$200" and substituting "$270";
(b) in paragraph 6(1) by repealing "$80" and substituting "$110"."
He said: Mr President, I move the third motion in my name in the Order Paper. It seeks to increase the fees specified in the Schedule to the Legitimacy Ordinance.
The Legitimacy Ordinance provides for the re-registration of the births of legitimated persons. Fees collected relate to the re-registration of births and the issue of certified copies of entires of the birth of legitimated persons. The
HONG KONG LEGISLATIVE COUNCIL — 14 June 1995 4443
fees were last revised in July 1994. It is now proposed to revise the fees from $200 to $270, for re-registration of births, and from $80 to $110, for a certified copy of an entry of the birth.
Mr President, I beg to move.
Question on the motion proposed, put and agreed to.
BILLS
First Reading of Bills
HONG KONG COURT OF FINAL APPEAL BILL
MANDATORY PROVIDENT FUND SCHEMES BILL
Bills read the First time and ordered to be set down for Second Reading pursuant to Standing Order 41(3).
Second Reading of Bills
HONG KONG COURT OF FINAL APPEAL BILL
THE ATTORNEY GENERAL moved the Second Reading of: "A Bill to establish a Court of Final Appeal for Hong Kong, and for matters incidental thereto and connected therewith."
He said: Mr President, I move that the Hong Kong Court of Final Appeal Bill be read the Second time. This Bill provides the legislative framework for setting up the Court of Final Appeal in Hong Kong.
The Sino-British agreement
Last Friday (9 June), Members of this Council were briefed by the Governor about the agreement we had reached with the Chinese side on the question of the Court of Final Appeal, immediately after the agreement had formally been signed by the Senior Representatives of the Joint Liaison Group. The Governor commended the agreement to this Council as an agreement which serves the best interests of Hong Kong. Our objective has always been to find an acceptable way of ensuring the continuity of the rule of law in Hong Kong through the transition in 1997. Our major aim in this process was to safeguard two key principles — that the Court of Final Appeal should be a proper Court of Final Appeal and that there should not be a damaging judicial vacuum in 1997. The agreement we have now concluded safeguards both these two points.
4444 HONG KONG LEGISLATIVE COUNCIL — 14 June 1995
Point 4 of the agreement sets out the Chinese side's agreement to the Court of Final Appeal Bill and also their agreement that the legislative procedures for the Bill should be taken forward immediately to enable them to be completed as soon as possible before the end of July 1995. This guarantees that the Court of Final Appeal to be set up on 1 July 1997 will be in accordance with the Bill now before this Council. This Bill is based on the principles and practices of the Judicial Committee of the Privy Council. Its early enactment will end the uncertainty about the form of the Court of Final Appeal to be set up in Hong Kong, which has had a damaging effect on public and international confidence in the judicial system. It will help maintain public and international confidence in the Court of Final Appeal and in our judicial system as a whole.
I am pleased that some Members of this Council have already expressed their support for the agreement we reached with the Chinese side, including the early enactment of the Bill within the current Session. However, a few Members have queried some aspects of the agreement. I wish to respond to these queries, with particular reference to the relevant provisions in the Court of Final Appeal Bill.
Jurisdiction of the CFA
First I would like to discuss the proposed jurisdiction of the court and to refute the suggestion that we are restricting the jurisdiction of the Court of Final Appeal by including in the Bill the formulation of "acts of state" in Article 19 of the Basic Law. Frankly, I do not understand the logic of this argument, which is devoid of any legal merit. It is, as the Governor has said, a red herring.
Clause 4 of the Bill reflects Article 19 of the Basic Law by providing that the court shall have no jurisdiction over acts of state such as defence and foreign affairs. It has been alleged that the provision is the result of a concession by the British side of the Joint Liaison Group. This allegation has no foundation whatsoever. Indeed, Mr President, it is strange that when we propose to align the Court of Final Appeal Bill on this point with the Basic Law, we are accused of "kow-towing"; but when others propose to amend the Bill to align it with the Joint Declaration in the Basic Law then that becomes a matter of principle.
As a matter of law, Article 19 of the Basic Law will operate as from 1 July 1997. Article 19 provides that the Courts of the Hong Kong Special Administrative Region shall have no jurisdiction over acts of state such as defence and foreign affairs. The Hong Kong Court of Final Appeal Ordinance will come into operation on the same day and cannot, of course, override the Basic Law. So as a matter of law, the jurisdiction of Hong Kong Courts will be subject to Article 19. The recognition of this inescapable fact is not a concession, nor does it restrict the jurisdiction of the courts further than is provided in the Basic Law.
HONG KONG LEGISLATIVE COUNCIL — 14 June 1995 4445
Before I leave the jurisdiction of the Court of Final Appeal, I should point out that the Chinese side have agreed that there is no need for any further legislative or other provisions in relation to the power of the courts to enquire into the constitutionality of laws or to provide for post-verdict remedial mechanisms. All Members of this Council will, I am sure, agree that this is an important point, as it will ensure that the jurisdiction of Hong Kong's Court of Final Appeal will, subject to the provisions of the Basic Law, be the same as that of the Judicial Committee of the Privy Council.
Setting up the court on 1 July 1997
I now turn to the commencement provision in the Bill. It has been all along our objective to introduce the Court of Final Appeal Bill into this Council with the agreement of the Chinese side, because only that would guarantee that the Court of Final Appeal will endure after 1 July 1997. We have now agreed with the Chinese side that the Court of Final Appeal should be established on 1 July 1997. It is no secret that we would have preferred to establish the Court of Final Appeal by July 1996 to give it about a year to build up experience before the transfer of sovereignty. But we would have had to pay a very big price to achieve that. Introducing the Court of Final Appeal Bill into this Council without Chinese agreement and with no guarantee that any court set up as a result would survive 1997 would have meant a loss of public and international confidence in the form of the Court of Final Appeal after 30 June 1997.
Thus, as stated in the agreement, the Court of Final Appeal will be established on 1 July 1997 in accordance with the Court of Final Appeal Bill after it has been passed by this Council. Clause 1(2) of the Bill makes it clear that that will be the case. The Court of Final Appeal Ordinance will come into operation on the day after 30 June 1997, that is, 1 July 1997, and it will be amended to the extent necessary to ensure that it conforms with the Basic Law.
The provision for this legislation to come into operation on 1 July 1997 has given rise to some legal controversy. Some have argued that it is unconstitutional because of Article 18 of the Basic Law. I wish to reject that suggestion in no uncertain terms. Article 18 of the Basic Law provides that the laws in force in the Hong Kong Special Administrative Region shall include "the laws previously in force in Hong Kong as provided for in Article 8" of the Basic Law. Some have argued that as the legislation will not be in operation before 1 July 1997, it will not be a "law previously in force" and will not therefore be a law in force in the Hong Kong Special Administrative Region.
This argument overlooks two vital points. First, the Chinese text of Article 18 does not refer to "laws previously in force in Hong Kong", but (in effect) to "laws which Hong Kong originally had." The Court of Final Appeal Ordinance would clearly be such a law. Secondly, the English text of Article 18 refers to the laws previously in force in Hong Kong "as provided for in Article 8". Article 8, in referring to "the laws previously in force in Hong Kong" says
4446 HONG KONG LEGISLATIVE COUNCIL — 14 June 1995
(and I quote) "that is, the common law, rules of equity, ordinances, subordinate legislation and customary law". Once the Court of Final Appeal Bill is enacted it will clearly be an Ordinance, and will therefore be a law previously in force in Hong Kong within the meaning of Article 8, even though it is not brought into operation before 1 July 1997. There is therefore no merit whatsoever in the argument that this legislation cannot be brought into operation on 1 July 1997.
The commencement provision, combined with other arrangements I shall refer to shortly, will ensure that there is no judicial vacuum as a result of the establishment of the Court of Final Appeal. Nobody will be deprived of his or her right of appeal because of the inevitable and short gap between the ending of appeals to the Privy Council and the establishment of the court. As I mentioned earlier, this has been one of our key objectives.
According to the agreement reached in the Joint Liaison Group last week, the preparatory work for the establishment of the court will be done before the transfer of sovereignty. On 1 July 1997, therefore, the judges can be appointed, the rules of court made, and the court can commence work immediately. With regard to appeals lodged before the transfer of sovereignty, the Judicial Committee of the Privy Council will keep its jurisdiction to hear appeals from Hong Kong until 30 June 1997. We have received the British Government's assurance that the Privy Council will continue to retain its jurisdiction over cases from Hong Kong up to 30 June 1997, and will give priority to Hong Kong appeals in the months immediately prior to July that year.
There are other provisions in the Bill which will help to ensure a smooth transition. First, clause 49 of the Bill provides that any appeal to the Privy Council in respect of which leave to appeal has been granted but which has not been finally disposed of before 1 July 1997 shall proceed in the Court of Final Appeal. That court is empowered to give such directions as to the continuation of the appeal as it thinks fit. We will discuss with the Judicial Committee and the term designate of the Special Administrative Region the implementation of this transitional provision to ensure the orderly transfer of any business unfinished by 30 June 1997. In addition to clause 49, clauses 24 and 33 make it possible for appeals to the Court of Final Appeal to be made outside the normal period of 28 days if leave is obtained. This will enable the court to hear appeals from decisions made in the period shortly before the transfer of sovereignty.
Composition of the CFA
I turn now to the composition of the Court of Final Appeal which, as Members will know, is based on the four plus one formula. This formula was agreed by the British and Chinese Governments in the Joint Liaison Group in September 1991. According to this agreement, the Court of Final Appeal, in every sitting, will consist of the Chief Justice, three permanent Hong Kong judges and one non-permanent judge, who could be either from Hong Kong or
HONG KONG LEGISLATIVE COUNCIL — 14 June 1995 4447
from another common law jurisdiction. The permanent and non-permanent Hong Kong judges could be either local or expatriate.
It has been argued that the four plus one formula breaches the Joint Declaration and the Basic Law. This assertion is not correct, and has been rejected by both British and Chinese Governments. Our view that the four plus one composition is consistent with the Joint Declaration and the Basic Law is supported by a number of authoritative independent legal opinions.
I spoke at length on this subject during the motion debate in this Council on 3 May, and I will not repeat now what I said then. Suffice it to say that we have not the slightest doubt that the four plus one composition is a perfectly acceptable way of implementing the provisions in the Joint Declaration and the Basic Law that provide for judges from other common law jurisdictions to sit on the Court of Final Appeal. Indeed the Bill itself reflects this consistency. In clause 5, which provides for the Constitution of the Court, subclause (3) includes the wording of the Joint Declaration and Article 82 of the Basic Law that "the Court may as required invite judges from other common law jurisdictions to sit on the Court". The four plus one composition is reflected in clause 16(1) of the Bill, which specifies the composition of the court when it hears a particular appeal.
Other provisions
Mr President, I have dealt so far with those provisions in the Court of Final Appeal Bill which concern the three main questions that have been raised on the agreement reached with the Chinese side on 9 June. I would now like to take Members through the other principal provisions of the Bill.
Part I of the Bill sets out the provisions for the establishment of the court. The appointments of the Chief Justice and of the other Court of Final Appeal judges are provided for in clauses 6 to 9, which provide that those appointments shall be made by the Governor (the Chief Executive as from 1 July 1997) in accordance with the recommendation of an independent commission. This commission will be known as the Judicial Officers Recommendation Commission.
Clause 12 prescribes the qualifications of the Chief Justice and the other judges of the Court of Final Appeal. These are based on the existing qualifications for appointment to the Supreme Court, and incorporate additional qualifications suggested by both the legal profession and the Preliminary Working Committee.
The tenure of office of the Chief Justice and other judges of the Court of Final Appeal is provided for in clause 14. The term of office of a permanent judge, including the Chief Justice, may be extended beyond retirement age for a maximum of two terms of three years each; and each term of office of a non- permanent judge is to be for three years. The term of office of a Chief Justice
4448 HONG KONG LEGISLATIVE COUNCIL — 14 June 1995
may be extended by the Governor (the Chief Executive as from 1 July 1997) in accordance with the recommendation of the Judicial Officers Recommendation Commission. The term of office of any other judge may be extended by the Governor (the Chief Executive as from 1 July 1997) in accordance with the recommendation of the Chief Justice.
Parts II and III of the Bill set out the provisions in respect of civil appeals and criminal appeals, respectively. These are based on the established principles and practices of the Judicial Committee of the Privy Council. Some of these provisions have been amended to take into account the comments of the Law Society and Bar Association when the draft Bill was sent to them at the end of last year. I would like to express my appreciation to those two bodies for their helpful comments on many technical aspects of the Bill.
Part IV contains miscellaneous provisions, including the transitional provisions under clause 49 to which I referred earlier. Clauses 38 to 48 provide for the making of rules, the setting up of the Registry, the appointment of the Registrar and the regulation of the sittings and business of the Court of Final Appeal. These provisions are in line with current court practices in Hong Kong.
Clause 50 provides for consequential amendments to other legislation as set out in the Schedule. These are mainly related to the statutory powers of the Chief Justice. They transfer most of the current Chief Justice's statutory powers to the Chief Justice of the Court of Final Appeal, to reflect the fact that the latter will be the head of the Judiciary. However, the current Chief Justice's powers in relation to the operation and jurisdiction of the High Court and Court of Appeal are preserved for the Chief Justice of the Supreme Court. We have also included in the Schedule an amendment to section 83P of the Criminal Procedure Ordinance. The amendment makes it clear that the Governor's power to refer certain cases to the Court of Appeal under that section will apply to appeals heard and determined by the Court of Final Appeal.
Conclusion
Mr President, Members of this Council now have a clear choice. Passage of the Hong Kong Court of Final Appeal Bill will guarantee the establishment of a proper Court of Final Appeal on 1 July 1997 with Sino-British co-operation and in accordance with this Bill, which is based on the established practices and procedures of the Judicial Committee of the Privy Council; the alternative of rejecting this Bill will leave the establishment of the Court of Final Appeal to the Hong Kong Special Administrative Region after 1 July 1997, creating damaging and unnecessary uncertainty about the eventual form of the Court of Final Appeal. I very much hope that Members will agree with the Administration that the interests of the people of Hong Kong are clearly best served by passing this Bill.
HONG KONG LEGISLATIVE COUNCIL — 14 June 1995 4449
The agreement that we have reached with the Chinese side has received a warm welcome from the business community, both in Hong Kong and overseas. Hong Kong's major partners have firmly endorsed it. An independent survey commissioned by Ming Pao has shown that it also has the wide support of the Hong Kong public. It is clear that both the local and international communities wish to see the early enactment of the Court of Final Appeal Bill to provide certainty about the form of the Court of Final Appeal to be set up in Hong Kong on 1 July 1997. I hope that we can count on the support of all Members for the Court of Final Appeal Bill.
Bill referred to the House Committee pursuant to Standing Order 42(3A).
MANDATORY PROVIDENT FUND SCHEMES BILL
THE SECRETARY FOR EDUCATION AND MANPOWER moved the Second Reading of: "A Bill to provide for the establishment of non-governmental mandatory provident fund schemes for the purpose of funding benefits on retirement, to provide for contributions to such schemes, to provide for the registration of such schemes, to provide for a regulatory regime in respect thereof, to provide for the creation of a Mandatory Provident Fund Schemes Authority to oversee the administration and management of registered schemes, to exempt certain classes of persons from contributing to registered schemes, to provide for the approval of persons (other than public officers or statutory corporations) as trustees of registered schemes, to provide for the control and regulation of approved trustees, and to make consequential amendments to other Ordinances including pension related Ordinances, and for connected purposes."
She said: Mr President, I move the Second Reading of the Mandatory Provident Fund Schemes Bill.
The object of this Bill is to provide for the mandatory establishment of non governmental provident fund schemes for the purpose of funding benefits on retirement. It will be beneficial for those in the workforce. There is then the separate question of social security: this is being reviewed elsewhere.
The Bill itself constitutes a framework for the mandatory provident fund schemes system. Certain matters are provided for substantively in the Bill, while other important matters will be provided for in future subsidiary legislation. The subsidiary legislation will, of course, be the subject of full and detailed discussion with all the parties concerned.
The Bill is divided into six parts, and nine schedules, covering the main features of the Mandatory Provident Fund (MPF) Schemes system, which I believe Members will be familiar with, so I shall concentrate on specific clauses.
4450 HONG KONG LEGISLATIVE COUNCIL — 14 June 1995 Part I
Clause 4 provides for exemptions from the mandatory provisions of the Bill for persons listed in Part I of Schedule 1. Exempt persons include civil servants who are governed by pensions legislation, teachers to whom the Subsidized Schools Provident Fund Rules and Grants School Provident Fund Rules apply and persons who are already 64 years of age by the time the Schedule comes into operation. There is also provision for exemption for persons coming from overseas to work in Hong Kong who are already covered by a retirement scheme outside Hong Kong; persons, regardless of coverage, who come here from overseas to work for a period of less than 180 days; and also those persons who have been employed for a continuous period of less than 30 days. The employers of such persons are also exempted.
Part II
Clause 5 of the Bill provides for the establishment of the MPF Schemes Authority. The functions of the Authority include ensuring compliance with the provisions of the legislation, the approval, regulation and prudential supervision of trustees, and the registration of provident fund schemes.
Part III
The heart of the Bill is in clauses 6(1), 6(2) and 6(3). Under clause 6(1), the employer must arrange for a registered provident fund scheme to receive contributions in respect of his relevant employees. Clause 6(2) requires the employer to contribute to the registered scheme the employer's contribution of 5% of relevant income of each relevant employee, to deduct from the relevant income of each relevant employee the employee's contribution of 5% of that income, and to remit the whole contribution to the trustee of the registered scheme no later than seven working days following payday. Clause 6(3) imposes a relevant requirement on self-employed persons to contribute 5% of their income.
Clause 8 of the Bill allows employees or self-employed persons whose relevant income is less than the minimum level specified in Schedule 3 to elect whether or not they wish to contribute to a provident fund scheme. On the advice of the Labour Advisory Board, employers of such persons will still have to contribute, irrespective of the employee's election. The provision will benefit the 240000 members of our workforce whose income is below the current prescribed level of $4,000 a month.
Clause 10 of the Bill provides that contributions made in excess of the percentage level specified in Schedule 4, or after retirement age when an employee remains in employment or a self employed person in business, shall be voluntary.
HONG KONG LEGISLATIVE COUNCIL — 14 June 1995 4451
An important feature of a mandatory system of provident fund schemes is the preservation of benefits until retirement age, that is, under normal circumstances benefits are not paid out upon each change of job, but are preserved until retirement. Benefits may be transferred from one scheme to another upon change of job. Under clause 12, scheme trustees are prohibited from paying out accrued retirement benefits to any scheme member other than in accordance with clause 14. Clause 14 allows preserved benefits to be withdrawn as of right, in a lump sum, once a scheme member reaches the age of 65. It also provides for the early withdrawal of benefits by a scheme member who has reached the age of 60 and who has left the workforce permanently, as well as for the early withdrawal under such circumstances as total disability or incapacity, or permanent departure from Hong Kong. Clause 13 deals with the transferability of benefits from scheme to scheme.
A major area of public concern has been the safety of accrued retirement benefits, and the provision for compensation in the event of losses. This is provided for under clause 16(1), which enables the Authority to establish a compensation fund to deal with benefit losses brought about by misfeasance or illegal conduct. Clauses 16(2) and 16(3) provide for a compensation fund to be financed by a levy on the assets of registered schemes, to be paid by approved trustees. Clause 16(5) allows the Financial Secretary to provide grants or loans, payable from General Revenue, to the compensation fund. There will be no guarantee against losses arising from poor investment performance as this would only encourage unscrupulous investment managers to take the kind of undue risks which we would all wish to avoid.
Part IV
Clause 19 deals with scheme administration. A registered scheme, other than a master trust scheme, must be administered by an approved trustee, who could be an individual or a corporate trustee, while a master trust scheme must be administered by a corporate trustee. Trustees or corporate trustees may apply to the Authority for approval as an approved trustee of a registered scheme. Clause 20 enables approved trustees to apply to the Authority for the registration of a provident fund scheme as a registered scheme.
Clause 22 of the Bill allows the Authority to authorize a corporate trustee to be the approved trustee of a residual provident fund scheme. This would allow access to a scheme for those persons whose employers were unable to find one on the open market, serve as a receptacle for unclaimed benefits from other schemes, and facilitate the portability of benefits between schemes.
Clause 27 allows the Authority, after consultation with the Financial Secretary, to make guidelines in respect of forbidden investment practices, which, if undertaken by approved trustees, might prejudice the financial soundness of these schemes. Clause 28 requires trustees to comply with limitations or prohibitions in respect of restricted investments, that is, loans or to investments in the employers of scheme members. Clauses 29, 30 and 31
4452 HONG KONG LEGISLATIVE COUNCIL — 14 June 1995
confer power of regulation of trustees by the Authority. The Authority may require special audit reports, disclosure of information and production of documents (clause 29), appoint inspectors to investigate the affairs of a scheme (clause 30) and in appropriate circumstances, remove trustees (clause 31).
Part V
Clauses 33 to 38 deal with the establishment of the Mandatory Provident Fund Schemes Appeal Board, and matters relating to appeals.
Part VI
Clauses 39 and 40 deal with the disclosure of information acquired while carrying out any function under the Bill.
Clause 41 provides for offences which may be committed by employers, self employed persons and scheme trustees. We believe that offences in respect of mandatory contributory provident fund schemes are serious, especially where an employer may deduct the relevant employee contribution, for example, but fails to remit it to the scheme trustee within the stipulated time, and therefore the penalties provided for in clause 43 are commensurate with the gravity of the offences.
Clauses 44 and 45 enable the Governor in Council and the Authority respectively to make regulations and rules regarding a wide range of issues, for the effectual carrying out of the provisions and objects of the Ordinance, including provision for the early withdrawal of benefits, the operation of the compensation fund, the management of registered schemes and the maintenance of employees' accounts.
Thank you.
Bill referred to the House Committee pursuant to Standing Order 42(3A).
LEGAL AID (AMENDMENT) BILL 1995
Resumption of debate on Second Reading which was moved on 25 January 1995 Question on Second Reading proposed.
MR RONALD ARCULLI: Mr President, the Legal Aid (Amendment) Bill 1995 was introduced into the Legislative Council on 25 January 1995. The Bill seeks to implement miscellaneous amendments relating to the scope and the operation of the legal aid scheme as recommended in the report of the working group set up to undertake a comprehensive review of the law, policy and practice governing the provisions of legal aid services in Hong Kong.
HONG KONG LEGISLATIVE COUNCIL — 14 June 1995 4453
A Bills Committee, of which I am the Chairman, was set up to study the Bill. The Bills Committee held five meetings with the Administration and met a deputation from the legal profession, which had made a joint submission to the Bills Committee, at the third meeting.
Let me briefly go into the main areas of concern to Members and the legal profession.
The first concern is whether the monthly personal allowance adopted in the Standard Legal Aid Scheme is appropriate. A Member considers that the present monthly personal allowance of $1,045 per family member is unrealistic and that it should be adjusted to a level which can reflect the normal expenditure of an individual. The Administration points out that the allowance is in fact the standard for an able-bodied person under the Comprehensive Social Security Assistance Scheme but it undertakes to consider the proposal in the next comprehensive review of the overall approach towards assessing the financial eligibility of applicants in 1997.
The second issue of concern is the proposal to give the Director of Legal Aid the discretion to waive the means test in any civil case where the applicant has a meritorious Bill of Rights claim. In determining whether such a case is "meritorious", the Director would, in accordance with section 10(3) of the Ordinance, consider the merits of the case, including whether there are reasonable grounds for the court proceedings and the chance of success.
The legal profession is concerned over the use of the phrase "meritorious case" which appears to be yet another form of the merits test. Its representatives point out that if the intention is to apply a merits test, the tried and tested formula of "reasonable grounds" in section 10(3) should be sufficient. They also point out that the present wording "a breach of the Hong Kong Bill of Rights (BOR) Ordinance (Cap.383)" is much too narrow in scope and propose that it be expanded to cover other equally deserving cases. For example, proceedings where a declaration of rights is asserted as opposed to alleging a breach or where a challenge to legislation is based on the Letters Patent/Basic Law.
The Administration has reviewed the wording of the clause and will move an amendment to substitute a re-worded section 5AA which incorporates the legal profession's suggestions.
The third concern is over clause 9, in particular the proposed new section 24(7), which imposes a criminal sanction on those who disclose the personal information of an applicant for legal aid. The Bills Committee and the legal profession share the view that there appears to be no reason why criminal sanction should be attached to a breach of confidentiality of the type of information in question.
4454 HONG KONG LEGISLATIVE COUNCIL — 14 June 1995
The Administration explains that the intention of the new subsection is to encourage an applicant for legal aid to disclose his personal information fully and frankly. On review, the Administration agrees that the disclosure of such information should not amount to a criminal offence and will delete the proposed subsection (7) under clause 9.
Another concern is over the excepted proceedings proposed in clause 13. Members consider that there are some election petition cases, other than those based on BOR grounds, which also merit the provision of legal aid. In response to Members' request, the Administration has provided a list of all past election petitions since 1988. Members note that there has only been one election petition arising from procedural errors made by public officers. Since this is an isolated incident and as the Registration and Electoral Office has introduced improved guidelines for polling staff, the Administration considers that legal aid should not be further extended to cover election petitions based on non-BOR grounds, lest it would encourage frivolous and vexatious petitions. However, it will review in due course the need to extend legal aid to cover election petitions based on non-BOR grounds if more cases of this nature are received in the future.
Members suggest that the list of excepted proceedings in Part II of Schedule 2 to the Ordinance should be made more comprehensive by adding stocks and options and by providing definitions for commercial loans and derivatives of securities. The legal profession considers that the list should include trading in gold and silver commodities. It also points out that all taxation of cost cases should be excluded from the grant of legal aid. Members consider that as taxation of cost cases are normally complicated and require much time and effort to conduct the merits test, it would not be cost effective to include this category of cases in the scope of legal aid.
On review, the Administration has provided a more comprehensive list of excepted proceedings which includes, inter alia, all proceedings relating to taxation of costs, to replace the present list in clause 13 of the Bill.
A further issue of concern to the legal profession is the proposal in clause 14 to expand the scope of the Supplementary Legal Aid Scheme (SLAS) to include claims involving professional negligence on the part of lawyers, doctors and dentists. The Administration explains that doctors, dentists and lawyers are included because these professions have more frequent contacts with individual members of the public. The legal profession considers the Administration's explanation unacceptable as other professions also have frequent contact with the public.
The Administration explains that SLAS is a self-financing scheme aimed at providing legal assistance for the sandwich class. In view of the limited funds available, as a start, only negligence claims against three professions are included. The Administration will review in due course the result of this
HONG KONG LEGISLATIVE COUNCIL — 14 June 1995 4455
expanded scheme and assess the need to further expand the scope of SLAS to cover negligence of other professions.
A majority of Members accept the Administration's explanations. However, they suggest that the Chief Secretary should, in her speech on the resumption of Second Reading debate of the Bill, highlight this particular issue and explain why some professionals have been singled out and the way ahead. I trust that the Chief Secretary will in her speech later elaborate on the proposal.
Apart from the various amendments mentioned earlier in my speech, the Administration will move a number of other amendments incorporating suggestions made by the legal profession.
Mr President, the provisions in the Bill are aimed at expanding the scope and improving the operation of the legal aid scheme and will directly benefit the public.
With these remarks, Mr President, I commend the Legal Aid (Amendment) Bill 1995 to Honourable Members.
MR SIMON IP: Mr President, the two branches of the legal profession are united in their support for an expansion of legal aid.
Clause 14 of this Bill seeks to expand the Supplementary Legal Aid Scheme which was originally designed to meet the needs of the sandwich class who would otherwise be refused legal aid on means grounds. the financial resources of applicants under the Supplementary Legal Aid Scheme will be raised from HK$280,000 to HK$400,000 and the scope of the Scheme will be broadened to include claims in negligence against doctors, dentists and lawyers. While supporting this expansion, the legal profession does not think it goes far enough.
As currently proposed, the expansion is unfair to the sandwich class and unfair to the three professions which are to be specifically included in the expanded scheme. It is unfair to the sandwich class because as the size of that class grows with Hong Kong's increasing affluence, members of that class would naturally increasingly require the services of other professionals such as accountants, stock brokers and real estate agents. Indeed, before seeing a lawyer, a client will frequently have seen an estate agent. There is no reason for depriving the sandwich class of legal aid to pursue their legal rights and remedies against other providers of professional services if the standard of those services should prove wanting. Equally, the expanded scheme is unfair to the medical, dental and legal professions as they have been singled out as potential targets of legal proceedings.
4456 HONG KONG LEGISLATIVE COUNCIL — 14 June 1995
The justifications given by the Administration for limiting expansion of the Scheme to those three professions are unconvincing. Two reasons have been advanced. First, it is claimed that those three professions have more contact with the population than other professions. I question the accuracy of that statement. As I have said earlier, the sandwich class will have sufficient resources to make investments and thus require the services of other professionals such as estate agents, stock borkers and accountants. Even if the Administration's claim is accurate, it still does not provide the justification for denying the sandwich class legal aid to pursue its lawful remedies against others.
The second reason advanced is that the Administration proposes to inject a sum of $27 million into the Supplementary Legal Aid Scheme Fund in order to support claims against doctors, dentists and lawyers and that if the scope was further broadened to cover other professions, the Scheme might become non- viable given the limitation of financial resources. Mr President, this argument in my view is fallacious for these reasons.
First, the Supplementary Legal Aid Scheme is self-financing. The self- financing policy is officially confirmed in paragraph 5 of the 1994-95 Estimates for the Legal Aid Department. Successful claimants are required to pay back to the Fund the costs and expenses of litigation incurred plus 15% of any damages recovered. Further, section 30 of the Legal Aid Ordinance empowers the Director of Legal Aid to borrow funds in the private market. Thus, the Fund is self-generating and if properly managed and invested, will increase in size. Under section 27 of the Legal Aid Ordinance, it is provided that the expenses incurred under the Supplementary Legal Aid Scheme shall not be paid out of the general funds provided to the Director by the Legislative Council except insofar as those expenses cannot be paid out of the Fund. In other words, there should be no effect on public revenue. Consequently, the effect of the statutory provisions in the Legal Aid Ordinance is that the Director is required to have regard to the financial health of the Fund when deciding whether or not to grant legal aid under the Supplementary Legal Aid Scheme and to prioritize applications by, for example, accelerating cases which are likely to produce a cash return to the Fund more quickly. In the circumstances, given the self- funding quality of the Scheme and the power of the Director to borrow monies in the private market, it should be viable notwithstanding a further expansion of the scope to include other professions.
Mr President, I therefore support clause 14 of this Bill under protest that its scope is too restrictive. That apart, I support the Bill. Given your ruling, Mr President, I shall not be moving my amendment.
DR LEONG CHE-HUNG: Mr President, everybody would welcome the expansion of the legal aid system to include a wider sector of the public. Similarly, it should also be welcome to extend the legal aid system to issues concerning professional negligence because this would help those who have in such a way been victimized and at the same time, ensure that the professionals
HONG KONG LEGISLATIVE COUNCIL — 14 June 1995 4457
can be kept on their toes as it were and provide the best possible professional service within their own limits. The spirit and principle therefore is commendable. It came therefore as a surprise that the Bill only provides legal aid assistance to possibly professional negligence of lawyers, doctors and dentists. It remains unfair for the sandwich class who feels victimized by professional negligence of other professions. In short, as my honourable colleague, Mr Simon IP, put it, the Bill does not go far enough. Furthermore, it has, with regret, not reflected the whole spirit of the Bill. Furthermore, it is also regrettable, as I was put to understand, that the Honourable Simon IP was not given the permission to introduce an amendment to clause 14 to bring it in line with the spirit of the Bill on the possible financial implication. In such a case, the least the Government can do will be to assure this Council and the people of Hong Kong that in the course of time, given the necessary experience, the Scheme should be reviewed to include other professions to ensure that the spirit of this Bill is put into good effect. I therefore support this Bill with reservation.
CHIEF SECRETARY: Mr President, on 25 January this year, the Legal Aid (Amendment) Bill 1995 was introduced into this Council. This Bill seeks to implement the recommendations made by an interdepartmental working group set up to undertake a comprehensive review of the law, policy and practice governing the provision of legal aid services, taking into account the comments on a consultation paper published in April 1993. The objective of the Bill is to improve the scope and the operation of legal aid services in Hong Kong.
I would first like to thank Members of the Bills Committee, especially its Chairman, the Honourable Ronald ARCULLI, for their hard work and thorough examination of the Bill. We have responded positively to most of the ideas put forward by Members of the Bills Committee and these are reflected in the Committee stage amendments which I will move later. I believe the Bill has the support of most Members of the Committee, and I hope it will now receive the full support of this Council.
Mr President, I would now like to continue by outlining briefly the three major elements of the Bill.
First, the Bill will raise the financial eligibility limit for the standard legal aid scheme from $120,000 to $144,000. This proposed increase has taken into account the level of inflation since the current limit was set in 1992. The Administration will in future revise the limit every two years in the light of inflation. We will also conduct a comprehensive review of the overall approach that we take to assessing the financial eligibility of applicants every five years.
Secondly, the Bill seeks to expand the scope of the standard civil legal aid scheme. It gives the Director of Legal Aid the discretion to waive the financial eligibility limit in any civil cases where an applicant has a meritorious Bill of Rights (BOR) claim. This will include individuals making election petitions
4458 HONG KONG LEGISLATIVE COUNCIL — 14 June 1995
based on meritorious BOR claims. As a matter of human rights policy, legal aid will also be extended to persons making applications to the Mental Health Review Tribunal against detention in a mental hospital or the Correctional Services Department Psychiatric Centre.
Thirdly, the Bill introduces improvements to the Supplementary Legal Aid Scheme which provides assistance to the "sandwich class" whose financial resources are in excess of the amount prescribed for the standard legal aid scheme, but may not be sufficient to meet the high costs of conducting litigation on a private basis. The first improvement is to increase the upper financial limit under this supplementary scheme from $280,000 to $400,000, taking into account inflation since the introduction of the Scheme in 1984. This limit will also be revised in future on a biennial basis to take inflation into account.
At present, legal aid under the supplementary scheme is restricted to a number of civil proceedings, including certain claims in the District Court for damages and compensation for personal injuries. The Bill now expands the scope of the supplementary scheme to cover claims involving professional negligence on the part of medical doctors, dentists and lawyers, the three professions which have most frequent contacts with individual members of the public.
We have heard just now that both the Honourable Simon IP and Dr the Honourable LEONG Che-hung are in favour of expanding the Supplementary Legal Aid Scheme to cover professional negligence against all professions. We are concerned, however, that any further expansion at this stage to cover more new types of cases would jeopardize the financial viability of the Scheme. Furthermore, we have a practical problem in defining "all professions" for this purpose. However, let me say for the record and let me reassure Members that we will keep the operation of the Scheme under review and negligence claims against members of other specific professions will be considered for inclusion at a later date when we consider that the Scheme is financially capable of further expansion.
Finally, in the light of the operational experience of the Legal Aid Department, the Bill includes a number of detailed amendments to formalize or to improve the practices relating to the provision of legal aid in both civil and criminal cases. For example, it recognizes the present practice whereby the Director of Legal Aid does not impose a first charge on maintenance payments to children.
Mr President, with these remarks, and subject to the Committee stage amendments proposed by the Administration, I commend the Legal Aid (Amendment) Bill 1995 to Honourable Members for approval.
Question on the Second Reading of the Bill put and agreed to.
HONG KONG LEGISLATIVE COUNCIL — 14 June 1995 4459 Bill read the Second time.
Bill committed to a Committee of the whole Council pursuant to Standing Order 43(1).
MERCHANT SHIPPING (SEAFARERS) BILL
Resumption of debate on Second Reading which was moved on 30 November 1994 Question on the Second Reading of the Bill proposed, put and agreed to. Bill read the Second time.
Bill committed to a Committee of the whole Council pursuant to Standing Order 43(1).
NUCLEAR MATERIAL (LIABILITY FOR CARRIAGE) BILL
Resumption of debate on Second Reading which was moved on 15 February 1995 Question on the Second Reading of the Bill proposed, put and agreed to. Bill read the Second time.
Bill committed to a Committee of the whole Council pursuant to Standing Order 43(1).
Committee Stage of Bills
Council went into Committee.
LEGAL AID (AMENDMENT) BILL 1995
Clauses 1, 3, 5, 7 and 11 were agreed to.
Clause 14 was agreed to.
4460 HONG KONG LEGISLATIVE COUNCIL — 14 June 1995 Clauses 2, 4, 6, 8, 9, 10, 12 and 13
CHIEF SECRETARY: Mr Chairman, I move that the clauses specified be amended as set out in the paper circulated to Members.
The amendment to clause 2 seeks to expand the definition of "domestic proceedings", to include cases under the Matrimonial Causes Ordinance (Cap.179) and the Guardianship of Minors Ordinance (Cap.13).
The amendment to clause 4 seeks to give the Director of Legal Aid the discretion to waive the financial eligibility limit in any civil case where an applicant has been granted a legal aid certificate in proceedings in which a breach of the Hong Kong Bill of Rights Ordinance (Cap.383) or an inconsistency with the International Covenant on Civil and Political Rights as applied to Hong Kong is an issue.
The amendment to clause 6 is mainly technical in nature.
The amendment to clause 8 seeks to clarify some technical concerns expressed by the legal profession.
The amendment to clause 9 to remove the potential criminality for people who breach confientialty.
The amendment to clause 12 seeks to clarify how the Director of Legal Aid will apportion the contribution payable by a person aided under both the standard legal aid scheme and the Supplementary Legal Aid Scheme.
The amendment to clause 13(2)(a) is related to the amendment to clause 4. This also clarifies that applicants will not subject to double merits tests.
The amendment to clause 13(2)(d) better defines the expected proceedings and clarifies the term "derivatives of securities".
Mr President, I beg to move.
Proposed amendments
Clause 2
That clause 2 be amended, in the definition of "domestic proceedings" by adding ", the Matrimonial Causes Ordinance (Cap.179), the Guardianship of Minor Ordinance (Cap.13)" after "(Cap.192)".
HONG KONG LEGISLATIVE COUNCIL — 14 June 1995 4461 Clause 4
That clause 4 be amended, by deleting the proposed section 5AA and substituting —
"5AA. Director may waive upper
limit of means test
The Director may waive the limit of financial resources imposed under section 5(1) where the Director is satisfied that, having regard to the matters set out in section 10(3), a person would be granted a legal aid certificate in proceedings in which a breach of the Hong Kong Bill of Rights Ordinance (Cap.383) or an inconsistency with the International Covenant on Civil and Political Rights as applied to Hong Kong is an issue.".
Clause 6
That clause 6 be amended, by deleting paragraph (b) and substituting — "(b) in subsection (3) -
(i) in paragraph (d) by repealing "or" at the end;
(ii) by adding -
"(f) the applicant has allowed an offer of legal aid to lapse
or has indicated that he wishes to withdraw his
application; or
(g) there are other persons concerned jointly with, or
having the same interest as, the applicant in seeking a
substantially similar outcome of the proceedings
unless the applicant would be prejudiced by not being
able to take his own or joint proceedings.".
Clause 8
That clause 8 be amended, in the proposed subsection (5)(e), by deleting "for the unpaid contribution, if any, or".
4462 HONG KONG LEGISLATIVE COUNCIL — 14 June 1995 Clause 9
That clause 9 be amended, by deleting the proposed subsection (7).
Clause 10
That clause 10(1) be amended, by deleting everything after "amended" and before "by repealing".
Clause 12
That clause 12 be amended, in the proposed section 32A —
(a) by renumbering it as section 32A(1);
(b) by adding-
"(2) The Director shall apportion the contribution payable
having regard to the time for which the person was aided under the Supplementary Legal Aid Scheme and the period taken to resolve the claim.".
Clause 13
That clause 13(2)(a) be amended, in the proposed paragraph 4 —
(a) by adding "or an inconsistency with the International Covenant on Civil and Political Rights as applied to Hong Kong" after "(Cap.383)";
(b) by deleting "the petitioner has a meritorious case";
(c) by adding ", the petitioner would be granted a legal aid certificate" after "section 10(3)".
That clause 13(2)(d) be amended, in the proposed paragraph 1 l, by deleting subparagraphs (a), (b) (c) and (d) and substituting-
"(a) involving money claims in derivatives of securities, currency futures or other futures contracts;
(b) for the recovery of a loan made in the ordinary course of a business conducted by the person seeking legal aid;
HONG KONG LEGISLATIVE COUNCIL — 14 June 1995 4463
(c) involving disputes between limited companies or their shareholders regarding the respective rights of the company
and the shareholders;
(d) arising out of disputes over partnerships;
(e) for the taxation of costs, unless the person was previously aided in the action for which an order for costs was made.
For the purposes of this paragraph -
"derivatives of securities" （證券衍生工具） means options to buy or sell interests in, certificates of interest of participation in, warrants to subscribe to or rights (other than shares) in, the capital of, or an instrument issued by, a company, government authority or other body.".
Question on the amendments proposed, put and agreed to.
Question on clauses 2, 4, 6, 8, 9, 10, 12 and 13, as amended, proposed, put and agreed to.
MERCHANT SHIPPING (SEAFARERS) BILL
Clauses 1, 2, 4 to 33, 35 to 39, 41 to 47, 49, 51, 52, 53, 55, 58 to 67, 71 to 81, 83 to 95, 98 to 103, 105 to 114, 116 to 122, 125 to 133 and 135 to 143 were agreed to.
Clauses 3, 34, 40, 48, 50, 54, 56, 57, 68, 69, 70, 82, 96, 97, 104, 115, 123, 124 and 134
SECRETARY FOR ECONOMIC SERVICES: Mr Chairman, I move that the clauses specified be amended as set out in the paper circulated to Members.
Members will recall that the Merchant Shipping (Seafarers) Bill is part of our ongoing exercise to localize United Kingdom legislation applying to Hong Kong so that the existing system of laws will continue after 1997. The Bill will also consolidate existing Hong Kong legislation which regulates the employment and conditions of work of seafarers.
All but one of the proposed amendments are changes to the Chinese text, which would remove possible discrepancies in meaning between the two texts of the Bill.
4464 HONG KONG LEGISLATIVE COUNCIL — 14 June 1995
The other is in respect of clause 124 of the Bill which empowers the Seafarers' Authority, meaning the Director of Marine, to prescribe various forms. These forms, which wil be prescribed to replace the current sets in use, are routine, administrative documents which enable the Seafarers' Authority to discharge his functions effectively. The existing forms are not subsidiary legislation. We intend to maintain this system in the Bill and the proposed amendment will make this clear.
Mr Chairman, I beg to move.
Proposed amendments
Clause 3
That clause 3(2) be amended, by deleting "不影響" and substituting "不損害".
Clause 34
That clause 34(2)(e) be amended, by adding "如他作證的話" after "作證的海員".
Clause 40
That clause 40(5) be amended, by deleting "不影響" and substituting "不損害".
Clause 48
That clause 48(5) be amended, by deleting "顯示" where it twice appears and substituting " 證明".
Clause 50
That clause 50(2) be amended, by adding "所基於的" before "理由".
Clause 54
That clause 54(1)(d) be amended —
(a) in subparagraph (iv), by deleting the semicolon at the end and substituting a comma.
HONG KONG LEGISLATIVE COUNCIL — 14 June 1995 4465 (b) by adding at the end -
"但如他並非不信納以㆖事宜，則不可拒絕發給許證；"
Clause 56
That clause 56(3) be amended, by deleting "不影響" and substituting "不損害".
Clause 57
That clause 57(2) be amended, by deleting "不影響" and substituting "不損害".
Clause 68
That clause 68(1) be amended, by deleting "不影響" and substituting "不損害".
Clause 69
That clause 69(1) be amended, by deleting "本㆟".
Clause 70
That clause 70(2) be amended, by deleting "不影響" and substituting "不損害".
Clause 82
That clause 82(2) be amended, by deleting "不影響" and substituting "不損害".
Clause 96
That clause 96(2) be amended, by deleting "不影響" and substituting "不損害".
Clause 97
That clause 97(2) be amended, by deleting "不影響" and substituting "不損害".
4466 HONG KONG LEGISLATIVE COUNCIL — 14 June 1995 Clause 104
That clause 104(2) be amended, by deleting "不影響" and substituting "不損害".
Clause 115
That clause 115(2) be amended, by deleting "不影響" and substituting "不損害".
Clause 123
That clause 123(3)(b)(ii) be amended, by deleting "不" and substituting "非合理㆞".
Clause 124
That clause 124 be amended —
(a) by renumbering it as clause 124(1).
(b) by adding-
"(2) For the avoidance of doubt, it is hereby declared that a
form prescribed under this section is not subsidiary legislation.".
Clause 134
That clause 134(5) be amended by deleting "不影響" and substituting "不損害". Question on the amendments proposed, put and agreed to.
Question on clauses 3, 34, 40, 48, 50, 54, 56, 57, 68, 69, 70, 82, 96, 97, 104, 115, 123, 124 and 134, as amended, proposed, put and agreed to.
Schedule 1 was agreed to.
Schedule 2
SECRETARY FOR ECONOMIC SERVICES: Mr Chairman, I move that the Schedule specified be amended as set out in the paper circulated to Members.
HONG KONG LEGISLATIVE COUNCIL — 14 June 1995 4467
Schedule 2 to the Merchant Shipping (Seafarers) Bill sets out the consequential amendments to various enactments required by the Bill. Since the Bill's introduction, we have identified additional provisions which also require minor consequential amendments to make them consistent with the Bill. Some of the consequential amendments have to be replaced because the authentic Chinese texts of the affected ordinances have been declared since the publication of the Bill.
Mr Chairman, I beg to move.
Proposed amendment
Schedule 2, Part 1
That Schedule 2, part 1 be amended —
(a) in item 4, in column 3, by deleting paragraph (a) and substituting - "(a) Repeal section 4(2)(d) and substitute -
"(d) to a person who is serving under a crew
agreement within the meaning of the Merchant
Shipping (Seafarers) Ordinance ( of 1995),
or on board a ship which is not registered in
Hong Kong.".".
(b) by adding -
"4A. Pilotage Ordinance
(Cap.84)
In section 4(3)(i)(i), (ii) and (iii), repeal "under the
Merchant Shipping
(Certification of Officers) Regulations (Cap.281 sub. leg.) or a certificate which is under regulation 5 of those
Regulations" and substitute "or deemed to be issued under the relevant regulation made under the Merchant Shipping
(Seafarers) Ordinance ( of 1995) or a certificate which is under that regulation".".
4468 HONG KONG LEGISLATIVE COUNCIL — 14 June 1995 (c) by adding -
"17A. Merchant
Shipping (Safety)
(Fire Protection)
(Ships Built
Before 25 May
1980) Regulations
(Cap.369
sub. leg.)
17B. Merchant
Shipping (Safety)
(Fire Appliances)
(Ships Built On
or After 25 May
1980 but Before
1 September 1984)
Regulations
(Cap.369
sub. leg.)
17C. Merchant
Shipping (Safety)
(Passenger Ship
Construction)
(Ships Built before
1 September 1984)
Regulations
(Cap.369
sub. leg.)
17D. Merchant
Shipping (Safety)
(Minimum Safe
Manning
Certificate)
Regulation
(Cap.369
sub. leg.)
Schedule 2, Part 1, item 4
In regulation 1(2), in the definition of "crew space", repeal "2 of the Merchant Shipping Ordinance (Cap.281)" and substitute "97(7) of the Merchant Shipping (Seafarers) Ordinance ( of 1995)".
In regulation 1(3), in the definition of "crew space", repeal "2 of the Merchant Shipping Ordinance
(Cap.281)" and substitute "97(7) of the Merchant
Shipping (Seafarers)
Ordinance ( of 1995)".
In regulation 1(2), in the definition of "crew space", repeal "2 of the Merchant Shipping Ordinance
(Cap.281)" and substitute "97(7) of the Merchant
Shipping (Seafarers)
Ordinance ( of 1995)".
In section 4(2), repeal "5(1)(a) and (c) of the Merchant
Shipping Ordinance (Cap.281)" and substitute "72(1)(a) and (c) of the Merchant Shipping (Seafarers) Ordinance
( of 1995)".".
That Schedule 2, Part 1, item 4 be amended, in the Chinese text, in column 3, by deleting paragraph (b) and substituting —