1 HONG KONG LEGISLATIVE COUNCIL -- 27 June1990 HONG KONG LEGISLATIVE COUNCIL -- 27 June 1990 1
OFFICIAL REPORT OF PROCEEDINGS
Wednesday, 27 June 1990
The Council met at half-past Two o'clock
PRESENT
HIS HONOUR THE DEPUTY TO THE GOVERNOR (PRESIDENT) THE CHIEF SECRETARY
THE HONOURABLE SIR DAVID ROBERT FORD, K.B.E., L.V.O., J.P.
THE FINANCIAL SECRETARY
THE HONOURABLE DAVID ALAN CHALLONER NENDICK, 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 STEPHEN CHEONG KAM-CHUEN, C.B.E., J.P. THE HONOURABLE CHEUNG YAN-LUNG, O.B.E., J.P.
THE HONOURABLE MRS. SELINA CHOW LIANG SHUK-YEE, O.B.E., J.P. THE HONOURABLE MARIA TAM WAI-CHU, C.B.E., J.P. DR. THE HONOURABLE HENRIETTA IP MAN-HING, O.B.E., J.P.
THE HONOURABLE CHAN YING-LUN, O.B.E., J.P.
THE HONOURABLE MRS. RITA FAN HSU LAI-TAI, O.B.E., J.P. THE HONOURABLE PETER POON WING-CHEUNG, O.B.E., J.P. THE HONOURABLE CHENG HON-KWAN, O.B.E., J.P.
THE HONOURABLE CHUNG PUI-LAM, J.P.
THE HONOURABLE HO SAI-CHU, O.B.E., J.P.
THE HONOURABLE DAVID LI KWOK-PO, J.P.
THE HONOURABLE MARTIN LEE CHU-MING, Q.C., J.P. THE HONOURABLE NGAI SHIU-KIT, O.B.E., J.P.
THE HONOURABLE PANG CHUN-HOI, M.B.E.
PROF. THE HONOURABLE POON CHUNG-KWONG, J.P.
THE HONOURABLE SZETO WAH
THE HONOURABLE TAI CHIN-WAH, J.P.
THE HONOURABLE MRS. ROSANNA TAM WONG YICK-MING, O.B.E., J.P. THE HONOURABLE TAM YIU-CHUNG
DR. THE HONOURABLE DANIEL TSE, O.B.E., J.P.
THE HONOURABLE ANDREW WONG WANG-FAT, J.P.
THE HONOURABLE LAU WONG-FAT, O.B.E., J.P.
THE HONOURABLE MICHAEL LEUNG MAN-KIN, J.P.
SECRETARY FOR TRANSPORT
THE HONOURABLE EDWARD HO SING-TIN, J.P.
THE HONOURABLE RONALD JOSEPH ARCULLI, J.P.
THE HONOURABLE MARTIN GILBERT BARROW, O.B.E. THE HONOURABLE PAUL CHENG MING-FUN
THE HONOURABLE MICHAEL CHENG TAK-KIN, J.P.
THE HONOURABLE DAVID CHEUNG CHI-KONG, J.P.
THE HONOURABLE MRS. NELLIE FONG WONG KUT-MAN, J.P. THE HONOURABLE MRS. PEGGY LAM, M.B.E., J.P. THE HONOURABLE DANIEL LAM WAI-KEUNG, J.P.
THE HONOURABLE MRS. MIRIAM LAU KIN-YEE
THE HONOURABLE LAU WAH-SUM, J.P.
DR. THE HONOURABLE LEONG CHE-HUNG
THE HONOURABLE LEUNG WAI-TUNG, J.P.
THE HONOURABLE JAMES DAVID McGREGOR, O.B.E., I.S.O., J.P. THE HONOURABLE KINGSLEY SIT HO-YIN
THE HONOURABLE MRS. SO CHAU YIM-PING, J.P.
THE HONOURABLE JAMES TIEN PEI-CHUN, J.P.
THE HONOURABLE MRS. ELSIE TU, C.B.E.
THE HONOURABLE PETER WONG HONG-YUEN, J.P.
THE HONOURABLE YEUNG KAI-YIN, J.P.
SECRETARY FOR EDUCATION AND MANPOWER
THE HONOURABLE PETER TSAO KWANG-YUNG, C.B.E., C.P.M., J.P. SECRETARY FOR HOME AFFAIRS
THE HONOURABLE ALISTAIR PETER ASPREY, O.B.E., A.E., J.P. SECRETARY FOR SECURITY
THE HONOURABLE RAFAEL HUI SI-YAN, J.P.
SECRETARY FOR ECONOMIC SERVICES
THE HONOURABLE CLIVE WILLIAM BAKER OXLEY, E.D., J.P. SECRETARY FOR PLANNING, ENVIRONMENT AND LANDS
THE HONOURABLE NIGEL CHRISTOPHER LESLIE SHIPMAN, J.P. SECRETARY FOR HEALTH AND WELFARE
ABSENT
THE HONOURABLE HUI YIN-FAT, O.B.E., J.P.
THE HONOURABLE POON CHI-FAI, J.P.
THE HONOURABLE RONALD CHOW MEI-TAK
IN ATTENDANCE
THE CLERK TO THE LEGISLATIVE COUNCIL
MR. LAW KAM-SANG
Papers
The following papers were laid on the table pursuant to Standing Order 14(2): Subject
Subsidiary Legislation L.N. No.
Commodities Trading Ordinance
Commodities Trading (Offence and Penalty)
Regulations 1990................................................... 171/90
Commodities Trading Ordinance
Commodities Trading (Dealers, Commodity
Trading Advisers and Representatives)
Rules 1990............................................................ 172/90
Securities Ordinance
Securities (Offence and Penalty)
Regulations 1990................................................... 173/90
Securities Ordinance
Securities (Dealers, Investment Advisers,
Partnerships and Representatives)
Rules 1990............................................................ 174/90
Securities Ordinance
Securities (Miscellaneous) Rules 1990..................... 175/90
Securities and Futures Commission Ordinance 1989
Securities and Futures Commission (Fees)
Rules 1990........................................................... 176/90
Import and Export Ordinance
Export (Television Sets and Video Cassette
Recorders) Regulations 1990.................................. 177/90
Road Traffic Ordinance
Road Traffic (Driving Licences) (Amendment)
Regulations 1990.................................................. 178/90
Road Traffic Ordinance
Road Traffic (Registration and Licensing
of Vehicles) (Amendment) Regulations 1990........... 179/90
Employees' Compensation Insurance Levies Ordinance 1990
Employees' Compensation Insurance Levy
(Rate of Levy) Order 1990.................................... 180/90 Registrar General (Establishment) Ordinance
Registrar General (Establishment) (Amendment
of Schedules) Order 1990...................................... 181/90
Interpretation and General Clauses Ordinance
Specification of Public Office................................. 182/90
Pharmacy and Poisons (Amendment)
Regulations 1990
Pharmacy and Poisons (Amendment) Regulations
1990 (Commencement) Notice 1990....................... 183/90
Poisons List (Amendment) Regulations 1990
Poisons List (Amendment) Regulations 1990
(Commencement) Notice 1990................................ 184/90
Public Health and Municipal Services Ordinance
Library (Regional Council) (Amendment)
By-Laws 1990.......................................................
186/90
Public Health and Municipal Services Ordinance
Pleasure Grounds (Regional Council)
(Amendment) By-Laws 1990.................................. 187/90
Library (Regional Council) By-Laws
Library (Regional Council) (Listening Areas
and Viewing Areas) Fees (Repeal) Notice 1990........ 188/90
Director of Intellectual Property
(Establishment) Ordinance 1990
Director of Intellectual Property
(Establishment) Ordinance 1990 (Commencement)
Notice 1990.......................................................... 189/90
Dangerous Goods Ordinance
Dangerous Goods (Shipping) (Amendment)
Regulations 1990................................................... 190/90
Detention Centres Ordinance
Detention Centres (Amendment)
Regulations 1990................................................... 191/90
Training Centres Ordinance
Training Centres (Amendment)
Regulations 1990................................................... 192/90
Reformatory Schools Ordinance
Reformatory School (Amendment) Rules 1990......... 193/90 Road Traffic Ordinance
Road Traffic (Public Service Vehicles)
(Amendment) (No. 3) Regulations 1990.................. 194/90
Road Traffic Ordinance
Road Traffic (Driving Licences) (Amendment)
(No. 2) Regulations 1990....................................... 195/90
Coroners Ordinance
Places for Post-Mortem Examination
(Amendment) Order 1990...................................... 196/90
Public Health and Municipal Services Ordinance
Public Health and Municipal Services (Public
Pleasure Grounds) (Amendment of Fourth
Schedule) (No. 4) Order 1990................................ 197/90
Registration of Persons Ordinance
Registration of Persons (Application for
New Identity Cards) (No. 10) Order 1990............... 198/90
Public Health and Municipal Services Ordinance
Library (Urban Council) (Amendment)
By-Laws 1990....................................................... 199/90
Library (Urban Council) By-Laws
Library (Listening Areas and Viewing Areas)
(Urban Council) Fees (Repeal) Notice 1990............ 200/90
Oral answers to questions
Yau Ma Tei Fruit Market
1. MR. SIT asked (in Cantonese): Will Government inform this Council whether consideration has been given to taking practical measures to contain the environmental problems and nuisance caused by the Yau Ma Tei Market to the neighbouring areas and whether where are plans to relocate the market?
SECRETARY FOR ECONOMIC SERVICES (in Cantonese): Sir, the Yau Ma Tei Fruit Market is
a privately operated wholesale market which has been in existence for over 60 years. At present, some 250 fruit traders are operating at that market.
In the longer term, the intention is to reprovision this facility on the West Kowloon Reclamation, along with other wholesale market now temporarily located at Cheung Sha Wan. The new permanent site for the market is expected to be available in 1993 and subject to the availability of funds, the project should be completed towards the end of 1996.
In the meantime, the District Office of Yau Tsim is co-ordinating efforts in controlling the environmental nuisance caused by the existing facility. I have been informed that refuse is collected four times daily and that, twice a month, a major clean-up exercise is conducted by staff of the Urban Services Department. Regular enforcement exercises are carried out by the police in order to contain illegal
parking and complaints of noise and other nuisance are followed up by the police and the Environmental Protection Department.
MR. SIT (in Cantonese): Sir, will the Government inform this Council whether the lease of the Yau Ma Tei Fruit Market is a private lease? If so, are there any rules or regulations that the operators of the fruit market have to observe?
SECRETARY FOR ECONOMIC SERVICES (in Cantonese): I have already explained that Yau Ma Tei Fruit Market is a privately operated market. As far as I know, some of the operators are with Crown Land Licences; others are on short term tenancies. The conditions of lease in regard to such licence and tenancy are similar to those of the Crown Land Licence and short term tenancy in general.
Records of land boundaries
2. MR. CHENG HON-KWAN asked: In answer to my question in this Council on 17 June 1987, the Administration indicated that a Boundary Rectification Bill and a Land Survey Bill were being drafted to remedy the situation in respect of land boundaries and the record system. Will Government inform this Council what progress has been made in addressing these problems so far; and what positive steps will be taken to expedite the introduction of these Bills?
SECRETARY FOR PLANNING, ENVIRONMENT AND LANDS: Sir, since June 1987, the Administration has re-examined the proposals for a Land Survey Bill and a separate Boundary Rectification Bill. We have come to the conclusion that a single piece of legislation incorporating the objectives of the two proposed Bills would ensure firstly, that all land surveying work is conducted according to prescribed standards and secondly, that defective plans could be rectified so that reliable records of land boundaries could be made available to the public.
Draft Drafting Instructions for a composite Land Survey Bill have now been prepared after thorough examination of relevant overseas legislation to ensure the introduction of a system which is most appropriate to Hong Kong's circumstances. We are carefully assessing the staffing and other resource implications. I expect to be able to pass the Drafting Instructions to the Law Draftsman shortly, with a view to introducing the Bill into this Council during the next Session. MR. CHENG HON-KWAN: Sir, what will be the impact of the proposed legislation on land owners in the New Territories?
SECRETARY FOR PLANNING, ENVIRONMENT AND LANDS: Sir, the proposed legislation would provide a mechanism through which the standard of official records of lot boundaries in the New Territories could be upgraded. This would also mean that possible disputes over the definition of lot boundaries arising from inconsistencies and errors in boundary plans could be more readily resolved, thus hopefully expediting the
processing of land transactions.
MR. HO SAI-CHU (in Cantonese): In paragraph 2 of his reply, the Secretary mentions that relevant overseas legislation will be examined. Will the Secretary inform this Council which countries he is referring to and why they are selected and not others?
SECRETARY FOR PLANNING, ENVIRONMENT AND LANDS: Yes, Sir. We have examined legislation from eight jurisdictions. I will very briefly mention these: they are Kenya, Singapore, Zambia, New Zealand and a number from the West Indies -- Trinidad and Tobago, Barbados, Jamaica and the Virgin Islands. These were picked because they had problems which were broadly similar to those that we experience here.
MR. CHENG HON-KWAN: Sir, is there any relationship between the proposed legislation and the proposed conversion to a system of title registration in Hong Kong?
SECRETARY FOR PLANNING, ENVIRONMENT AND LANDS: Yes, Sir, and no, Sir. The advantage of the proposed conversion to a system of title registration is that it will provide a means whereby the title to real property may be easily ascertained. The proposed land surveying legislation will produce properly surveyed boundary plans to show the location and boundaries of these properties. So, in a sense, the two go hand in hand. However, I should emphasize that the proposed legislation regarding land surveying and boundary plans is not, I repeat, not a prerequisite for conversion to a system of title registration. They can proceed independently.
Parcel delivery service
3. MRS. LAM asked (in Cantonese): Will Government inform this Council whether there is any plan to contract out the parcel delivery service of the Post Office to private companies and whether consideration has been given to privatizing the other services of the Post Office?
SECRETARY FOR ECONOMIC SERVICES: Sir, in accordance with government policy to restrain the growth of the Civil Service, the Post Office, like other government departments, is seeking to maximize the utilization of staff resources through a variety of measures. The possibility of contracting out the parcel delivery service is one measure in this vein, which the Post Office is considering at the present time. In the first instance, the Department is exploring the possibility of introducing an experimental trial in two areas, Kowloon East and Hong Kong East. The Postmaster General is currently consulting with his staff before making a final decision on whether or not to proceed.
With regard to the second part of the question, as the Financial Secretary informed this Council on 25 October last year in response to a question from Mr. Martin BARROW on the general issue of the privatization of public services, controlling officers are encouraged as a general practice to review periodically the cost-
effectiveness of their existing methods of providing services to the public, including the possibility of contracting out some of the services where appropriate. In the case of the Post Office, however, apart from the parcel delivery service, there are no plans at present to contract out any other postal services.
MRS. LAM (in Cantonese): Sir, will the Secretary inform this Council of the present backlog situation of parcels in Kowloon East and Hong Kong East? If the parcel delivery service is contracted out to private companies, what will the manpower thus saved be redeployed to do?
SECRETARY FOR ECONOMIC SERVICES: Sir, I do not have the detailed figures with regard to these particular two areas that I have referred to in my principal reply. These figures, I suggest, can be furnished to Mrs. LAM in writing. (Annex I) One particular purpose for consideration of privatization of postal services is to redeploy staff for other activities undertaken by the Post Office. These activities include:
additional delivery services required in the new towns as well as the general increase in postal traffic, locally and internationally.
MR. MICHAEL CHENG (in Cantonese): Can I ask the Government what impact it will have on the postal staff and the general public if the Post Office contracts out the parcel delivery service to private companies?
SECRETARY FOR ECONOMIC SERVICES: Sir, let me repeat once again that the Postmaster General is at the moment still exploring and examining the feasibility of whether to proceed. If it is to proceed, it will proceed on the basis of an experiment. The detailed balancing of advantages and trade-offs are still being examined and the factors mentioned by Members will be taken into account.
MR. McGREGOR: Sir, in considering the issue of privatization, will the Secretary bear in mind that a privately controlled parcel delivery service could be very vulnerable to the activities of the triads? Security would in fact be very important indeed.
SECRETARY FOR ECONOMIC SERVICES: Yes, Sir.
Written answers to questions
Chlorine hazards associated with water treatment works
4. MR. POON CHI-FAI asked: According to a discussion paper recently prepared by the Government on "Improvement to chlorine facilities at Shatin and other treatment works", seven major water treatment works at Sha Tin, Tsuen Wan, Tuen Mun, Sheung Shui, Yau Kom Tau, Tai Po Tau and Silvermine Bay and one chlorination house at Tai Lam Chung have been identified as potentially hazardous installations, the societal risks associated with which have been considered unacceptable. Will the Government inform this Council:
(a) of the levels of risks relating to this "unacceptable" rating; (b) of the districts and number of residents likely to be affected;
(c) of the details of the recommendations for improvements for each of the works as proposed by the consultants in their studies and the dates of completion of those improvement projects; and
(d) whether the findings of the studies will be disclosed so that members of the public may take precautionary measures?
SECRETARY FOR PLANNING, ENVIRONMENT AND LANDS: Sir, I will answer the questions seriatim:
(a) the Government assesses the risks of potentially hazardous installations against a set of risk guidelines. These guidelines express the acceptable risk for an installation in terms which relate the probability of occurrence of accidents and other hazardous events to their consequences in terms of the number of fatalities. It should be emphasized that events which may cause these fatalities have an extremely low, but real, probability of occurring. In addition, the Government requires the elimination of unnecessary risks by taking all practicable measures to reduce risk. Risk levels of water treatment works located in densely populated areas (for example
Sha Tin, Tsuen Wan and Tuen Mun) are generally higher than for those located elsewhere;
(b) only people living and working within 1 km of the water treatment works in question will be subject to measurable risk. In the unlikely event of an incident, the number of people affected in each district is as set out below:
Number of people likely to be
affected in the event of an
Treatment works incident
Sha Tin 4 300.
Tsuen Wan 2 000.
Tuen Mun 300.
Sheung Shui 100.
Yau Kom Tau 300.
Tai Po Tau 50.
Silvermine Bay 50.
Tai Lam Chung 500.
(Chlorination house)
It should be emphasized that the risks associated with these water treatment works are extremely low, that is, the probability of an incident happening at any of the above water treatment works affecting the respective number of people as set out above is once in one million years. Even these small risks will be drastically reduced upon completion of the improvement works recommended by the consultants;
(c) certain recommendations for improvements proposed by the consultants apply to all the water treatment works; these include:
(i) improved staff training and safety management at water treatment works;
(ii) traffic management of chlorine vehicles whilst on-site to reduce the probability of accidents;
(iii) improved building integrity to contain chlorine in the unlikely event of a leakage; and
(iv) installation of chlorine absorbers to neutralize any chlorine that is
released.
Site specific improvements were also recommended for Sha Tin, Tsuen Wan and Tuen Mun because of the high population densities in these areas. The Sha Tin Water Treatment Works will decommission all bulk liquid chlorine tanks and convert to the use of one-tonne chlorine drums. Smaller chlorine containers were also recommended for Tsuen Wan and Tuen Mun Water Treatment Works because of the relatively high population densities of these areas.
The improvement package for all the eight water treatment works is scheduled to be completed in 1993. Priority will be given to implementing modifications at the Sha Tin, Tsuen Wan and Tuen Mun Water Treatment Works. Upon completion of the improvement measures, all water treatment works will comply with the risk guidelines stipulated for potentially hazardous installations; and
(d) the Sha Tin District Board has been informed of the recommendations for improving the Sha Tin Water Treatment Works. The findings of the hazard assessment studies for all the other water treatment works and Government's actions arising from each study will be disclosed to the public through the relevant district boards.
Precautionary measures and contingency plans in the event of an incident are being drawn up and these will be announced as and when they are ready.
Bursting of water mains
5. MR. POON CHI-FAI asked: In view of the frequent occurrence of bursting of water mains which may, in acute situations, paralyse the traffic and affect the business of the shops nearby, and the fact that these incidents often occur at the same location such as at the junction of Lei Yue Mun Road and Tsui Ping Road, and at various spots along Ting On Street in the proximity of Kwun Tong Road and Ting Fu Street and so on, will Government inform this Council of the measures to be taken to prevent the frequent recurrence of similar incidents so that residents and shopowners in the vicinity will not be unduly affected?
SECRETARY FOR PLANNING, ENVIRONMENT AND LANDS: Sir, the water mains used by Water Supplies Department are required to comply with British standards. They are tested at the manufacturers' works to twice the designed working pressure and are tested
after they are laid in position to 1.5 times the designed working pressure. Mainlaying works are carried out under close supervision and if undisturbed after they have been laid, water mains will have a long serviceable life, probably of several decades.
Most mains bursts, including those which recently occurred at Lei Yue Mun Road, are caused by a variety of external factors, including activities such as road construction or reconstruction where heavy plant may be used, trench works for other utilities and drainage services, and deep foundation excavations for building development and flyovers in the vicinity of the water mains. Some of these activities may damage the water mains directly or disturb their foundations. It would be prohibitively expensive to design water mains strong enough to resist such external effects. Sometimes instantaneous bursts may occur while in other cases the damage or disturbance may be less severe such that failure will take time to develop and will not show up until months after the completion of the construction activities. It is often impossible to establish the cause and liability after a water main burst as water gushing out under pressure removes all the evidence and naturally priority has to be given to repair work to restore the water supply and traffic flow.
Since the water mains are buried and their condition cannot be easily and thoroughly checked, it is very difficult in practice to prevent failures from occurring. To reduce the number of such failures the Water Supplies Department regularly carries out waste detection tests on water mains and these assist in locating leakages, so that they may be repaired before they develop into serious bursts. Damage or disturbance to water mains caused by other construction activities can be prevented or minimized by stepping up vigilance on works carried out by others. Where responsibility can be established, the offending contractor is charged with the cost of repairs. The matter is kept under review by the Water Supplies Department in conjunction with the Highways Department, the utility companies and relevant government departments with a view to alleviating the problem.
Autistic children
6. MR. HUI asked: Will Government inform this Council of the number of autistic children in Hong Kong, the services available to these children, and whether there are plans to enhance these services?
SECRETARY FOR HEALTH AND WELFARE: The total number of children diagnosed as suffering from childhood autism or having autistic features and known to the Education and Social Welfare Departments is 827.
This figure can be subdivided into three categories:
Children aged 0-5 years 11 months 238
Children aged 6 years and above 372
with childhood autism
Children aged 6 years and above 217
with autistic features
-----
827
Identification, assessment and treatment
Autistic children are covered by the Comprehensive Observation Scheme. Should autism be suspected, they may be referred for assessment and training at:
(a) South Kwai Chung Psychiatric Centre
or (b) Hong Kong Psychiatric Centre
or (c) Tuen Mun Psychiatric Centre
The first two centres have child units with occupational therapists and nursing staff under the supervision of clinical psychologists and psychiatrists. The third centre does not have a child unit but children may attend similar sessions as out-patients. Speech therapy and training is provided.
Pre-school services
Since 1989-90, a three-year pilot project to meet the needs of autistic children or children with autistic features has been introduced in 11 special child care centres (SCCC). One additional special child care worker (SCCCW) has been allocated to a SCCC with six autistic children or children with autistic features, plus additional professional input from a clinical psychologist. It is anticipated that
most children in the programme should show enough improvement to be discharged after six months, thus enabling new cases to be admitted. As at the end of March 1990, out of the 86 autistic children/children with autistic features certified to be in need of SCCC special provision, 64 have been enrolled in SCCCs, and only 22 are on the waiting list.
Pre-school children with autism or autistic features who are assessed as not being in need of the special provision described above are admitted to early education and training centres, special child care centres or integrated child care centres in the usual way.
School services
As the majority of autistic children are mentally handicapped, they will be provided special schools places according to their diagnosed level of intellectual functioning at the age of six. These schools already have a reduced class size (20 for mildly mentally handicapped, 10 for moderately mentally handicapped and eight for severely mentally handicapped) and also have the support of additional specialist staff (such as educational psychologist, speech therapy personnel, and so on).
A special school for mentally handicapped children may appoint one additional resource teacher for every eight children with childhood autism who are assessed to have a need for more intensive remedial support in a resource teaching programme. An initial grant is also provided for the school to purchase additional furniture, equipment and resource materials for the programme. If necessary, children can be referred back to psychiatric centres for follow-up services.
Professional support is also given by the Special Education Section of the Education Department to special schools in developing programmes for autistic children. The section runs intensive pre-service and school-based workshops for teachers and specialist staff of the schools concerned.
Other support services
Casework and counselling services are available to autistic children and children with autistic features through Social Welfare Department's Medical Social Service Units and Family Service Centres. Other support services are available to them, and their families, in the same way as they are to other members of the community.
Plans to enhance these services
The Social Welfare Department is monitoring closely the special provision programme for autistic children and children with autistic features and the service demand for normal provision in pre-school centres. It would be possible to extend the special programme to planned special child care centres if this was justified by demand. (At the end of March 1990, 64 out of the 86 pre-school autistic children or children with autistic features certified to be in need of the special provision had been enrolled, and the remainder were on the waiting list). While the provision of special child care and early education and training centre places is generally satisfactory, there remains a shortfall in integrated child care centre places. The Social Welfare Department is planning to reduce the waiting time for these places by making use of surplus EETC and SCCC places for children on the ICCC waiting list.
To ensure that all school pupils with childhood autism will receive intensive remedial support, all schools for mentally handicapped children will be actively encouraged to operate resource teaching programmes for such pupils where a demand exists.
The existing shortage of school places for mentally handicapped children, which also affects the placement of autistic children, is being closely monitored. This shortfall should be met by 1992-93 when planned projects are completed. Until these projects are ready, interim measures will continue, for example, using temporary accommodation for schools and providing placement in home based classes.
Protection against passive smoking
7. MISS LEUNG asked: Will Government inform this Council whether consideration would be given to protecting the non-smoking population, particularly those who have a dislike of smoking, against exposure to passive smoking by taking measures, such as introducing legislation to prohibit smoking in public places, areas in buildings belonging to the Government and statutory bodies where the public have access and the conference rooms of government buildings and statutory bodies?
SECRETARY FOR HEALTH AND WELFARE: Under present provisions in the Smoking (Public Health) Ordinance, smoking is prohibited in not less than 50% of all seats in ferries, trains, theatres, concert halls and cinemas and is totally banned in all lifts and single decker public transport except taxis and hired vehicles, and on the lower decks of double decker buses and trams. Both the Mass Transit Railway Corporation and the Kowloon-Canton Railway have also taken action under their by-laws to prohibit smoking in all their trains.
In March this year, it was announced that the Government intended to extend no-smoking areas in public places by amending the Smoking (Public Health) Ordinance to ban smoking throughout all public transport, including taxis, and in cinemas, theatres, concert halls and video-game centres. An amendment Bill will be presented to this Council later this year.
In addition to legislative regulation, the Government has adopted administrative measures to prohibit smoking in schools, hospitals, clinics and public areas in government offices such as corridors, lift lobbies and pantries. Government will continue to play an exemplary role in banning smoking in public areas in its premises including conference rooms. In this regard, the Director of Administration has recently sought the co-operation of staff in the Central Government Offices to refrain from smoking whilst in the office. We encourage other statutory bodies and private corporations to take similar action.
Foreign exchange and gold margin dealings by fringe operators
8. MR. TAI asked: In view of the increased public complaints about the activities of fringe operators in foreign exchange and gold margin dealings, will Government inform this Council of the progress on Government's study of the feasibility of subjecting these activities to control by the relevant authorities?
FINANCIAL SECRETARY: Sir, while it is true that the number of public complaints relating to leveraged foreign exchange dealings by fringe investment companies has increased over the past few months, the number of complaints relating to leveraged gold dealings by such companies has been very small.
A working group has recently been set up under the Monetary Affairs Branch to consider whether there is any need to impose controls on leveraged dealings in foreign exchange by such companies. The working group is chaired by the Deputy Secretary for Monetary Affairs and includes representation from the Office of the Commissioner of Banking and the Securities and Futures Commission.
Although the working group is newly formed, the Monetary Affairs Branch has been looking at the subject for some time in consultation with the Commercial Crime Bureau and the Attorney General's Chambers. We think that the major problem arising from the activities of these fringe companies lies with non-professional investors. Many of them are unable to assess properly the risks involved in leveraged contracts in foreign exchange and so invest more than they can easily afford to lose. Many of them also give these companies more discretion to deal on their behalf than is perhaps prudent. In some cases, fraud may be involved but that is then a matter for the Commercial Crime Bureau.
The Monetary Affairs Branch issued a press release on 7 June inviting submissions in confidence on the subject from those who have an interest in it. The submissions are to be made by the end of next month. The working group will examine the submissions made and consider whether there is any need to impose controls on leveraged dealings in foreign currencies by these companies.
If we are to introduce new measures that go beyond our existing regulations in relation to trading in the financial sector, then we need to ensure that we do not impede the development of the reputable end of the market. In trying to swat the irritating fly in the kitchen we must be careful not to knock over the stove!
In the meantime, we will continue to issue "health warnings" through the media about the importance of taking great care when considering investing in leveraged foreign exchange contracts through unregulated companies.
As regards dealings in gold, a question on the subject was asked by Dr. the Honourable Daniel TSE in this Council on 25.3.87 and a copy of my reply is attached. It was the less reputable fringe operators and bucket shops that gave rise to concern and publicity has been played up to educate the public about the risks of trading through the bucket shops and the possibility of such dealings being caught by the provisions of the Gambling Ordinance in certain circumstances. I am glad to say that
the number of complaints against such operators has since subsided. We will continue to monitor the situation and remind the public from time to time of the risks of trading with the fringe operators.
Lastly, I would add that high returns are usually associated with high risks. If investors wish to trade in foreign currencies or gold, they are best advised to approach a large and reputable dealer such as a bank or deposit-taking company authorized under the Banking Ordinance which is subject to the supervision of the Office of the Commissioner of Banking. There is, I believe, also a need for investors to exercise prudence and caution and a degree of common sense before deciding whether they should participate in complex and often volatile markets, which tend to be more for the professionals.
Financial assistance to mutual aid committees
9. MR. CHAN asked: Will Government inform this Council when the next review of the financial assistance to mutual aid committees will take place and whether the review will consider raising the ceiling for expenditure on photocopying?
SECRETARY FOR HOME AFFAIRS: Sir, the City and New Territories Administration last completed a review of the Financial Assistance Scheme to Mutual Aid Committees in April this year and its findings have been forwarded to the Finance Branch for consideration. One of the recommendations is to raise the ceiling for expenditure on photocopying.
Unconditional stay for foreign residents
10. MR. BARROW asked: With the recent reduction of the residential requirement from nine years to seven years for a foreign resident in Hong Kong to apply for unconditional stay, will the Government inform this Council:
(a) what are the criteria for the grant of unconditional stay to foreign residents; and
(b) under what circumstances an extension of stay instead of an unconditional stay will be granted to foreign residents?
SECRETARY FOR SECURITY: Sir, a foreign resident will normally be granted unconditional stay after he has completed seven years' ordinary residence in Hong Kong, and provided that:
(a) he is not in breach of his conditions of stay;
(b) he does not have an adverse criminal record; and
(c) he is able to support himself, and is not likely to become a burden on the community.
These are normal immigration requirements. Where they are not met in full, a foreign resident may nevertheless be granted an extension of stay for a fixed period if he is not in serious breach of the requirements, and he otherwise meets the criteria for entry for employment and residence.
First Reading of Bills
LAWS (LOOSE-LEAF PUBLICATION) BILL 1990
EMPLOYMENT (AMENDMENT) (NO. 2) BILL 1990
BUILDINGS (AMENDMENT) BILL 1990
Bills read the First time and ordered to be set down for Second Reading pursuant to Standing Order 41(3).
Second Reading of Bills
LAWS (LOOSE-LEAF PUBLICATION) BILL 1990
THE ATTORNEY GENERAL moved the Second Reading of: "A Bill to provide for the publication of an edition in loose-leaf form of the Laws of Hong Kong."
He said: Sir, I move that the Laws (Loose-Leaf Publication) Bill 1990 be read a Second time.
The Ordinances of Hong Kong and their subsidiary legislation, when they are first enacted, are published in the Government Gazette. For the last 25 years or so they have also been published in consolidated form in what is known as the Revised Edition. The Revised Edition is the authoritative version of all laws included in it. It now runs to some 20 000 pages in 32 volumes and it is updated every year by an edition of new booklets and amendments.
There are approximately 1 800 sets of the Revised Edition in existence. Of those about two-thirds can be found in government departments, in the courts, in judges' chambers and in police stations throughout Hong Kong. Most of the remainder, of about 600 sets, are to be found in lawyers' offices.
A set of the Revised Edition is an indispensable tool for anyone practising the law of Hong Kong or for anyone else who is directly concerned with Hong Kong's legislation. It is imperative in our rapidly developing and changing society that the community in general, and the legal community in particular, have access to the most up-to-date, consolidated version of our legislation which practicality and economy permit.
The Revised Edition has served us well for the past 25 years, but new and proposed changes in enactment and publication mean that it cannot continue to do so.
New Ordinances are now enacted and published in both the English and Chinese languages. There is also a programme under way to translate existing laws into Chinese. Bilingual texts of new Ordinances are presented and published together. The Chinese text of the existing Ordinances will also be published in due course. These developments alone mean that there will be a doubling in size of the Revised Edition over the next few years.
Additionally, the amount of law enacted each year is steadily increasing. The Revised Edition began in 1965 with 14 volumes. There are now 32 volumes, and within the next few years there could well be 80 volumes of text in bilingual form. The present format of the Revised Edition does not readily lend itself to accommodating this vast expansion.
Sir, after extensive consultation with a great many interested parties, and after receiving many helpful suggestions including, I should add, many of a very practical nature from the Government Printer, we have concluded that there should be a complete change in the format of our consolidated laws and that it should be of a loose-leaf type.
With this new loose-leaf format, our present amendment system can be greatly improved. At present we publish a noter-up which is of some help in bringing the Revised Edition up to date during the year, but because the proper use of the noter-up involves a "cut and paste" system it is both tedious and time consuming for users. Because of the data storage and processing power of modern computers, we now believe that we can make substantial improvements to our updating practices. Experience in other jurisdictions has shown that, with the help of computer-assisted printing
technology, it is possible to publish and maintain an edition of laws in loose-leaf form that is constantly (and not just annually) brought up to date by the insertion of new individual pages in place of the old.
One consequence of the change in format will be that anyone who uses a set of the laws will need to buy new binders. This is because the pages will be of a different size to accommodate both the English and Chinese texts side by side. It is however estimated that the new loose-leaf format will bring about considerable savings in production and maintenance costs.
Once the existing edition of laws has been reprinted in loose-leaf form, production costs are expected to be lower than those incurred under the current system. Maintenance costs for users will also be far lower under the loose-leaf system. It is estimated that the manpower required to maintain the new replacement system will be a fraction that needed to maintain the existing cut and paste noter-up service.
Sir, I now turn to the Bill. Clause 2 authorizes the Attorney General to publish the new loose-leaf edition. It will permit the Attorney General to exercise certain limited editing powers and to publish any Ordinance as a separate booklet.
Clause 3 of the Bill provides for the legal status of Ordinances published in the loose-leaf edition. Its effect is that Ordinances published in the loose-leaf edition will be deemed to be correct unless the contrary is proved.
The last annual edition of the laws published under the Revised Edition of the
Laws Ordinance 1965 will be the 1989 edition and will state the law as it was on 31 December 1989. Provision for this is to be found in clause 7 of the Bill.
It is proposed to publish the first volumes of the loose-leaf edition in the second half of 1991, and the remainder over the ensuing three years. In the meantime the noter-up service for the Revised Edition will be continued, but it will be phased out as the loose-leaf edition takes over.
The loose-leaf edition will be easier for users to maintain and update and, apart from some initial extra expense for new binders, it will be the most economical and efficient way to publish our bilingual laws and to keep them in up-to-date form.
Sir, I move the debate on this motion be now adjourned.
Question on the adjournment proposed, put and agreed to.
EMPLOYMENT (AMENDMENT) (NO. 2) BILL 1990
THE SECRETARY FOR EDUCATION AND MANPOWER moved the Second Reading of: "A Bill to amend the Employment Ordinance."
He said: Sir, I move that the Employment (Amendment) (No. 2) Bill 1990 be read a Second time.
At the present time, under the Employment Ordinance an employee is entitled to seven days' paid annual leave following completion of 12 months' continuous employment. This benefit was first introduced 12 years ago in 1978, and there has been mounting criticism that it does not adequately reflect the substantial economic growth Hong Kong has enjoyed over the past decade or so. The current level of benefit also compares unfavourably with other countries in the Asia Pacific Region, many of which give their workers 14 days' paid annual leave.
Sir, the aim of the Government's labour policies is to achieve a level of statutory protection for our workforce broadly comparable to the best prevailing in the region. Given an 84% growth in real per capita GDP between 1978 and 1989, and having regard to the levels of paid annual leave prevailing in the region, the time has now come for us to improve this benefit. Accordingly, the Bill seeks to increase the number
of days of paid annual leave from seven to 14, over a period of five years.
On the Bill becoming law, an employee with up to two years' service would continue to enjoy only seven days' paid annual leave. Employees with three to five years of service, however, would have their paid annual leave increased to eight, nine and ten days respectively. Employees with over five years of service would have their paid annual leave fixed at 10 days. All these entitlements would be increased at the rate of one day for each additional year of service, until the maximum of 14 days is reached. Thus an employee with five or more years of service would see his
entitlement reaching the maximum of 14 days in the fifth year of the Bill becoming law. I should like to emphasize that the proposal to phase in the maximum level of benefit over a period of five years was the outcome of careful deliberation by the Labour Advisory Board.
To provide flexibility for both employers and employees, the Bill further proposes that an employer may make a payment in lieu of annual leave foregone, but only where the employee's annual leave entitlement exceeds ten days and he elects to forego part or all of the entitlement in excess of 10 days. For example, if an employee is entitled to 13 days and elects to forego three days, the employer may make a payment to him in respect of those three days. As a safeguard against abuse, it would be necessary to make it an offence for an employer to include in a contract of employment any provision that would commit the employee to forego all or any of his annual leave entitlement. The proposed penalty for this offence is a maximum fine of $10,000.
Sir, I move that the debate on this motion be adjourned.
Question on the adjournment proposed, put and agreed to.
BUILDINGS (AMENDMENT) BILL 1990
THE SECRETARY FOR PLANNING, ENVIRONMENT AND LANDS moved the Second Reading of: "A Bill to amend the Buildings Ordinance."
He said: Sir, I move that the Buildings (Amendment) Bill 1990 be read a Second time.
Serious difficulties have been encountered in the design and construction of foundations for, and the development of, certain sites in an area of the north-western New Territories which is underlain by karstic marble bedrock, which is essentially marble rock containing dissolution cavities. The karst occurs in isolated patches beneath an approximately triangular area of land extending from Tai Tong and Ha Tsuen to the Mai Po Nature Reserve. In this area, the marble stratum contains significant cavities in some locations and the geology of the area is highly complex. In order to ensure that approved developments in this area proceed safely and expeditiously, it is important that adequate geotechnical control measures be implemented as soon as possible.
The Buildings (Amendment) Bill 1990 therefore empowers the Building Authority to tighten geotechnical control over building works in the karst area of the north-western New Territories. Clause 2 redefines the scheduled areas and refers to the revised Fifth Schedule at clause 9 of the Bill which sets out as "Area Number 2" the area of the north-western New Territories I have previously described.
To ensure safe development of a site in such a geologically complex area, a good understanding of the geological features underlying the site and how these affect the engineering behaviour of the foundations is essential. Properly designed, high quality and reliable ground investigation, followed by careful interpretation of the ground investigation results will help achieve these ends. It is also necessary to ensure that important geological features underlying the site are carefully
considered at the design stage of the building foundations so as to avoid the choice of an inappropriate foundation layout or foundation type.
Clauses 2 and 10 of the Bill seek to amend the Buildings Ordinance and Building (Administration) Regulations to require submission of ground investigation plans for the approval of the Building Authority prior to commencement of ground investigation works in the area and to require that the submission of a foundation plan should be accompanied by a geotechnical report containing a detailed description of the geology of the site together with a discussion of the anticipated geological problems and geotechnical requirements for the design and construction of foundation works.
For foundations in karst areas, there is always a risk that despite conservative design, problems will arise during construction of the foundations. To ensure minimum risk to the completed foundations, it is necessary for the authorized person or the
registered structural engineer to maintain detailed construction records and to review these at close intervals during foundation construction. Clause 4 of the Bill seeks to empower the Building Authority to require the submission of performance reviews of foundation works within Area Number 2 prior to commencement of superstructural works.
This amendment Bill, if enacted, will strengthen the Building Authority's control over the geotechnical aspects of building works in the karst area of the north-western New Territories.
Sir, I move that the debate on this motion be now adjourned.
Question on the adjournment proposed, put and agreed to.
BANKING (AMENDMENT) (NO. 2) BILL 1990
Resumption of debate on Second Reading which was moved on 21 March 1990 Question on Second Reading proposed.
MR. ARCULLI: Sir, the Bill before us today seeks to relieve an auditor of an authorized institution of his duty of confidentiality to the client institution where he communicates in good faith to the Commissioner of Banking information or opinion on a matter which he becomes aware in his capacity as an auditor and which is relevant to the functions of the Commissioner. It provides protection to an auditor especially in situations where bilateral discussions on a client institution between him and the Commissioner is called for.
In the course of our work, the ad hoc group set up to look at the Bill has received representations from the Hong Kong Association of Banks (HKAB), the Hong Kong Deposit-taking Companies Association (DTCA) and the Hong Kong Society of Accountants (HKSA) respectively. We have also met representatives from each of the three organizations to hear their concerns on the Bill.
In short, the financial sector's major concern relates to the proposed extension of the scope of the existing section 61 of the Ordinance to allow bilateral discussions between the Commissioner and the auditor to take place in the absence of the authorized
institution. While the HKAB and the DTCA do not dispute the principle of direct communication between the auditors and the Commissioner in appropriate circumstances, they are concerned that unless such circumstances are spelt out clearly in the legislation there may be instances where such communications are unwarranted.
The two Associations also consider that the Bill should, in accordance with the 1987 United Kingdom Banking Act, provide the Commissioner with the reserve power to make guidelines as to circumstances under which it is permissible and proper that direct communication may take place should the Society of Accountants fail to produce satisfactory guidelines for the purpose.
After extensive discussion on the subject with various parties concerned, including the Administration, we have come to the conclusion that the non-statutory route as envisaged by the Bill should be supported, and that an explicit provision for a reserve power is not necessary.
Non-statutory guidelines will have a flexibility in its application and interpretation, and will allow more room for manoeuvering in case of unforeseen circumstances. Furthermore, certain concepts like "integrity" and "competence" of the director or senior management of an authorized institution would be difficult to define.
On the question of reserve power, the Administration has pointed out that the HKSA has since 1988 adopted a set of guidelines setting out the circumstances under which auditors may initiate discussion with the Commissioner direct. The guidelines are apparently working to the satisfaction of all parties concerned, including the Administration and the financial sector. The Administration is convinced that this kind of approach should continue: a reserve power is not necessary since it is always possible for the law to be amended to provide the Administration with appropriate power to rectify the situation should the HKSA fail to produce satisfactory
guidelines.
The HKSA has also firmly stated that they could be relied upon and trusted as a responsible body to produce guidelines to the satisfaction of all parties concerned. Furthermore, they have given their undertaking to the Administration and the ad hoc group that they would consult the relevant bodies in the financial sector before finalizing their guidelines. To this effect, we note that they are in fact working on a set of draft guidelines and should be able to consult the relevant bodies soon
after the enactment of this Bill.
The Administration, like the financial sector and the accounting profession, believes that the bilateral discussions between the auditor and the Commissioner should take place only in exceptional circumstances. These circumstances would, apart from being provided for in the HKSA guidelines, be contained in a statement to be issued by the Commissioner of Banking upon the enactment of this Bill. The Financial Secretary may, perhaps, wish to confirm this point.
My colleague, the Honourable David LI, has asked me to reflect in this Council again the concern of the HKAB over the non-statutory nature of the HKSA's guidelines. May I take this opportunity to assure the Association that their view has been fully considered by the ad hoc group, and for the reasons I have stated earlier on, we believe that the Association may rest assured that their views would be considered by the HKSA in drawing up the guidelines, as they so closely affect them. It would be useful, however, if the Financial Secretary could confirm that consultation on the HKSA draft guidelines would proceed as soon as possible once the Bill has become law to allay the concern of the Association.
In conclusion, I would like to stress that a trusting working relationship between our financial sector and the professions has been, and will continue to be, an important ingredient for the success of Hong Kong. I have no doubt that the authorized institutions and the accounting profession would be prepared to work together to find a solution which is acceptable to all parties.
With these remarks, Sir, I support the motion.
FINANCIAL SECRETARY: Sir, I am grateful to Mr. ARCULLI and members of the ad hoc group for their careful consideration of the Bill.
As Mr. ARCULLI has indicated, both the Hong Kong Association of Banks and the Hong Kong Deposit-taking Companies Association made submissions to the ad hoc group expressing concern about the provision in clause 5. Whilst supporting the principle of direct communication between auditors of authorized institutions and the
Commissioner of Banking, the two associations felt that auditors should only do so in exceptional circumstances so as not to undermine the frank and confidential relationship between auditors and management. They suggested that such
circumstances should be spelt out in legislation. Alternatively, the Government should, as in the United Kingdom, have the "reserve power" to make regulations specifying the particular circumstances for such dialogues, if no satisfactory
professional guideline were to be issued. The associations also stressed the need for the Hong Kong Society of Accountants to consult interested parties before finalizing its guideline relating to the new section 61.
We fully accept that direct communication between auditors and the Commissioner of Banking should be confined to exceptional circumstances. Following the enactment of this Bill, the Commissioner of Banking will issue a statement setting out the circumstances where he would expect an auditor to seek a tripartite or a bipartite meeting with him. In essence, direct communication will only be expected to take place in exceptional cases, for instance where there are indications of serious
fraudulent activity. This may result in the auditors no longer having confidence in either the integrity or the competence of the directors and senior management, and lead them to the view that direct reporting to the Commissioner would be in the best interests of depositors.
The Hong Kong Society of Accountants also agrees that direct reporting should be an exceptional occurrence. Its current guideline on tripartite meetings already sets out the very limited circumstances in which an auditor should feel compelled to report directly to the Commissioner. We understand that the new guideline,
following on the Commissioner's statement, will be along similar lines.
The Hong Kong Society of Accountants has also undertaken to consult the interested parties, including the Hong Kong Association of Banks and the Deposit-taking Companies Association, on the new guideline as soon as possible after the enactment of this Bill. I can thus give the assurance sought by Mr. ARCULLI.
In the event, we see no need to specify the circumstances for direct communication in legislation, or to provide for the "reserve power" as suggested. I am glad that this view is shared by the ad hoc group and that no amendment is therefore required.
I shall be moving during the Committee stage a few technical amendments to the Bill. These amendments have been examined by the ad hoc group who have lent their support.
Sir, I beg to move.
Question on the Second Reading of the Bill put and agreed to. Bill read the Second time.
Bill committed to a Committee of the whole Council pursuant to Standing Order 43(1).
INSURANCE COMPANIES (AMENDMENT) BILL 1990
Resumption of debate on Second Reading which was moved on 6 June 1990 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).
SECURITIES (DISCLOSURE OF INTERESTS) (AMENDMENT) BILL 1990
Resumption of debate on Second Reading which was moved on 2 May 1990 Question on Second Reading proposed.
MR. CHEONG: Sir, two issues have been of particular concern to the ad hoc group set up to study the Bill.
The first one relates to the proposed immunity for the Stock Exchange.
Under the proposed new section 51A, no liability would be incurred by the Stock Exchange and its employees in respect of the performance of duties under the Securities (Disclosure of Interests) Ordinance if they have acted in good faith. The ad hoc group is concerned that under such circumstances a person suffering from damages because of incorrect information published by the Exchange or its employees would have no redress at all and has therefore asked the Administration to consider whether the immunity should be restricted to the employee of the Exchange only.
The Administration considers that the proposed immunity is justified for the following reasons. First, an equivalent immunity is enjoyed by the Securities and Futures Commission (SFC), the Commissioner of Banking and the Insurance Authority in the bona fide performance of their duties, and the duty to be undertaken by the Exchange is similar in nature to functions carried out by the regulatory authority. The Exchange would otherwise be exposed to a liability which could be enormous and quite beyond its resources.
Secondly, the underlying purpose of the system, which is to ensure the prompt release of price-sensitive information to the market, would be defeated if the Stock Exchange were not to be protected in the way proposed since the Exchange would have to put in place the most exhaustive checks to minimize the risk of being sued for damages. Such arrangements would be costly and time-consuming and would inevitably delay the publication of information received.
Apart from having to act in good faith to qualify for the protection under the new section, the Stock Exchange is also required under the Ordinance to publish the information in such manner as the SFC may approve. The ad hoc group has been assured that the SFC, having examined the arrangements for publication proposed by the
Exchange, is satisfied that the necessary checks are in place; the Commission will also continue to monitor the operation of these arrangements.
In the case of false information notified to the Exchange, there is a possibility of seeking redress from the person who provides the false information.
Having considered the points made by the Administration, the ad hoc group agreed that the provision should be left as it is.
The second issue of concern to us relates to the timing of notification. We feel that with the advancement of modern communication technology, a period of five days for the disclosure of notifiable interests appear to be rather long. As a matter of fact, the Administration has initiated an amendment to clause 14 of the Bill to allow notification to be made by fax. Nonetheless, the Administration has, at the request of the ad hoc group, agreed to review the timing for notification in the light of practical application of the Bill in the future. I hope that the Financial
Secretary will confirm this intention today.
Sir, the ad hoc group has also raised two other points with the Administration
which have resulted in further amendments to the Ordinance.
First, the age of a child under sections 8 and 31 of the principal Ordinance will be reduced from "21 years" to "18 years" having regard to the recent enactment of the Age of Majority (Related Provisions) Ordinance.
The second point relates to the definition of "child" under section 2 of the Ordinance. When the Ordinance was passed in July 1988, Members of this Council considered that it would be unreasonable to hold a person responsible for interests held by a step-child who might not even have close contacts with that person. The reference to the "child of his spouse" under sections 8 and 31 was therefore deleted. The definition of "child" in section 2, however, provides that ""child" includes a step-child" which appears to make the amendment superfluous. The Administration has now agreed to delete this definition to rectify the situation.
Sir, the Bill, if passed today, will enable the bringing into force of the main Ordinance which was enacted about two years ago. The provisions of the Ordinance will ensure the prompt release of certain price-sensitive information to the public and will therefore reduce the opportunity for insider information to be taken
advantage of. The continuous effort of the Administration to safeguard a fair market is to be congratulated.
With these remarks, Sir, I support the motion.
FINANCIAL SECRETARY: Sir, I am grateful to Mr. Stephen CHEONG and members of the ad hoc group for their careful consideration and support of this Bill.
As Mr. CHEONG has identified in his speech, there were some issues of particular concern to the ad hoc group. One related to the time limit for notification of interests under sections 7, 28 and 31. The relevant period is currently five days next following the day on which the duty arises. This appeared to be rather long to the ad hoc group given the advancement of modern communications technology and relevant provisions elsewhere.
In the course of the debate during the passage of the Securities (Disclosure of Interests) Bill in July 1988, the Financial Secretary stated that the present provisions were considered an appropriate starting point for Hong Kong. I can,
however, assure Members that these provisions will be reviewed in the light of experience of the Ordinance in operation, and having regard to the practice of other jurisdictions.
Another issue of concern to the ad hoc group related to the proposed immunity for the Stock Exchange. We are proposing that no liability should be incurred by the Stock Exchange or its employees in their performance in good faith of duties under the Securities (Disclosure of Interests) Ordinance.
We consider that the proposed immunity is justified for the following reasons. First, as mentioned by Mr. CHEONG, an equivalent immunity is granted to the Securities and Futures Commission, the Commissioner of Banking and the Insurance Authority in the bona fide performance of their duties. The duty imposed upon the Stock Exchange is unremunerated and similar in nature to functions carried out by those regulatory bodies.
Secondly, the underlying purpose of the notification system is to ensure the prompt release of price-sensitive information to the market. Again Mr. CHEONG has identified the importance of this objective and that it would be defeated if the Stock Exchange were not protected in the way proposed. The Stock Exchange would be obliged to carry out the most careful checks to minimize the risk of being sued for damages. This would be very time-consuming and lead to delays in the publication of information received.
Under the terms of the proposed immunity, the Stock Exchange is, however, required to act in good faith. Accordingly, it must take all reasonable steps to verify the information received and to ensure that it is correctly published. The Stock Exchange is required under the Ordinance to publish the information in such manner as the Securities and Futures Commission may approve. The Commission is satisfied that necessary checks are in place and will be monitoring the operation of these arrangements.
I shall be moving amendments at the Committee stage in respect of the other points raised by Mr. CHEONG.
Sir, when this Bill was introduced into the Council on 2 May, it was stated that it was our intention to bring the principal Ordinance into force on 1 July 1990. Having further considered the issue, it is now our intention to delay bringing the
Ordinance into force until later in the year when appropriate measures are in place to ensure that the disclosure requirements will also be applicable to overseas incorporated companies listed on the Stock Exchange.
Sir, I beg to move.
Question on the Second Reading of the Bill put and agreed to. Bill read the Second time.
Bill committed to a Committee of the whole Council pursuant to Standing Order 43(1).
RADIATION (AMENDMENT) BILL 1990
Resumption of debate on Second Reading which was moved on 14 March 1990 Question on Second Reading proposed.
PROF. POON: Sir, the Radiation Ordinance (Cap. 303) and its subsidiary legislation imposes controls on the import, export, possession and use of radioactive substances and irradiating apparatuses. The Ordinance has been amended previously on several occasions. This Bill, which is based on the recommendations made by the Radiation Board established under the Ordinance, seeks to further amend the Ordinance to
facilitate its enforcement and to rationalize certain provisions to meet current needs.
The more significant amendments proposed by the Bill are :
(1) redefining the definition of "irradiating apparatus" to clarify that any apparatus intended to produce or emit ionizing radiation comes within the scope of the Ordinance;
(2) providing that the Radiation Board may exempt from control radioactive substances or irradiating apparatuses which, though radioactive, are not harmful to health;
(3) increasing the level of fines for various offences to maintain their deterrent values;
(4) making a licensee liable for an offence unless he proves lack of knowledge and that he has exercised all due diligence to prevent an offence; and
(5) extending to an aircraft the exemption from the requirement of obtaining a licence when carrying radioactive substances in transit through Hong Kong.
In view of the importance of radiation matters to the public, Members of this Council has formed an ad hoc group to study this Bill. Having carefully looked into all aspects of the Bill, the ad hoc group has recommended support for it. I am pleased to say that the recommendation of the ad hoc group has been endorsed by Members of this Council.
A number of amendments to the Bill have been agreed between Members and the Administration. First, clause 5 creates a new section 7(3) to exempt from licensing control radioactive substances or irradiating apparatuses in transit through Hong Kong in or on vessels or aircraft so long as they remain in or on such vessels or aircraft. However, no provision is made to enable a Radiation Board inspector to enter and inspect these vessels or aircraft even when such entry or inspection is highly essential to protect the public. The group therefore recommends that clause 8 should be amended so that under section 16(2) of the Ordinance, the Radiation Board inspectors are specifically empowered to enter and inspect aircraft and vessels in transit. This has been agreed by the Administration.
Second, new section 22(2) under clause 14 provides that a licensee should not be sentenced to imprisonment for an offence for which he is held to be liable. The group considers that if a licensee has had knowledge of the offence and has failed to exercise due diligence to prevent the offence, there should be provision for him to become liable to be sentenced to imprisonment where this is proved for in the offence. This point has also been agreed by the Administration.
Third, minor technical amendments have been proposed by the Administration to streamline the Bill.
Sir, I should also mention clause 7 which empowers the Radiation Board to exempt certain radioactive substances or irradiating apparatuses from licensing control. These are those not intended to produce ionizing radiation, for example, television sets, visual display units, luminous watches and smoke detectors which are considered to be not harmful to health. The group has been concerned about whether such items
stored in bulk during the manufacturing process are safe to human health and whether monitoring work should be undertaken to safeguard the public. On the assurance by the Administration that any exemption to be granted will have regard to the public interest to be served and the degree of risk which must be negligible, the group decided not to labour the point.
Sir, following enactment of this Bill, the Administration will also shortly introduce amendments to the Radiation (Control of Radioactive Substances) Regulations and the Radiation (Control of Irradiating Apparatus) Regulations to increase the level of fines for offences under these regulations, to update the terminology and definitions in accordance with the internationally accepted standards and to provide for more appropriate control on the conveyance of radioactive substances on vehicles and vessels.
With these remarks, Sir, and subject to the amendments mentioned above, I support the Bill.
SECRETARY FOR HEALTH AND WELFARE: Sir, I would like to thank Prof. POON and his colleagues on the ad hoc group for their examination of this Bill.
I agree that we should take every reasonable measure to minimize health hazards arising from any inappropriate use of radioactive substances or irradiating apparatus. In this regard, the Radiation Board, being the licensing and control authority, will closely monitor the situation and through its inspectors, ensure that the provisions in the Radiation Ordinance are rigorously enforced.
The proposed amendments that Prof. POON will move at the Committee stage are improvements to the Bill and have my full support.
Sir, I beg to move.
Question on the Second Reading of the Bill put and agreed to. Bill read the Second time.
Bill committed to a Committee of the whole Council pursuant to Standing Order 43(1).
Committee stage of Bills
Council went into Committee.
BANKING (AMENDMENT) (NO. 2) BILL 1990
Clauses 2, 3, 5 to 8 and 10 to 13 were agreed to.
Clauses 1, 4 and 9
FINANCIAL SECRETARY: Sir, I move the amendments as set out in the paper circulated to Members.
This Bill has to be re-numbered as the Banking (Amendment) (No. 3) Ordinance on enactment because the original Banking (Amendment) (No. 3) Bill, owing to its earlier enactment, has become the Banking (Amendment) (No. 2) Ordinance.
It is proposed to amend clause 4 by deleting the word "special" because "special notice" in the Companies Ordinance relates to notice by shareholders to the company, and not vice versa.
The amendment to clause 9 is necessary because section 120(5)(g) of the Ordinance refers to meetings under section 61. As section 61 is to be amended and the reference to meetings is removed, section 120(5)(g) has to be amended accordingly.
The other amendments are to repeal all remaining references to unincorporated banks because there are no longer any such banks.
Sir, I beg to move.
Proposed amendments
Clause 1
That clause 1 be amended, by deleting "(No. 2)" and substituting "(No. 3)". Clause 4
That clause 4 be amended, in proposed section 59A(1)(a)(i) by deleting "special".
Clause 9
That clause 9 be amended --
(a) by re-numbering clause 9 as subclause (1);
(b) by adding after subclause (1) --
"(2) Section 120(5)(g) is repealed and the following
substituted -
"(g) to the disclosure of information by the Commissioner to an auditor of an authorized institution or former authorized institution, or to a former auditor, for the purpose of enabling or assisting the Commissioner to discharge his functions under this Ordinance, and, any information disclosed under this paragraph shall not be further disclosed by the auditor or former auditor without the Commissioner's
consent.".".
Question on the amendments proposed, put and agreed to.
Question on clauses 1, 4 and 9, as amended, proposed, put and agreed to.
New clause 11A Recovery of fees, expenses, etc.
New clause 11B Former licences, etc. deemed to be licences, etc. under this Ordinance.
New clause 14 The Hong Kong Association of Banks Ordinance.
Clauses read the First time and ordered to be set down for Second Reading pursuant to Standing Order 46(6).
Question on the Second Reading of the new clauses proposed, put and agreed to.
Clauses read the Second time.
Proposed additions
New clauses 11A and 11B
That the Bill be amended, by adding after clause 11 --
"11A. Recovery of fees, expenses, etc.
Section 131(1) is amended by repealing ", or in the case of an unincorporated bank, from the directors jointly and severally thereof".
11B. Former licences, etc. deemed to be licences, etc.
under this Ordinance
Section 143(1) is amended -
(a) in paragraph (a), by repealing "and"; and
(b) by repealing paragraph (b).".
New clause 14
That the Bill be amended, by adding after clause 13 --
"Consequential Amendments
14. The Hong Kong Association of Banks Ordinance
The Hong Kong Association of Banks Ordinance (Cap. 364) and The Hong Kong Association of Banks By-laws (Cap. 364 sub. leg.) are amended as set out in the Schedule.
Question on the addition of the new clauses proposed, put and agreed to. New schedule
New schedule read the First time and ordered to be set down for Second Reading pursuant to Standing Order 46(7).
Question on the Second Reading of the new schedule proposed, put and agreed to. New schedule read the Second time.
Proposed addition
New schedule
SCHEDULE [s. 14]
CONSEQUENTIAL AMENDMENTS
Item Enactment Amendment
1. The Hong Kong (a) In section 2, in the
Association of definition of "licensed
Banks Ordinance bank", by repealing "or
(Cap. 364) section 107";
(b) in section 8(1)(b)(i) by
repealing "or which are
licensed under section
107 of the Banking
Ordinance";
(c) in section 16(a)(ii) by
repealing "or which is
licensed under section
107 of the Banking
Ordinance".
2. The Hong Kong (a) In by-law 2(2) by
Association of repealing "or which are
Banks By-laws licensed under section
(Cap. 364 107 of the Banking
sub. leg.) Ordinance";
(b) in by-law 16(1)(a) by
repealing ", or, in the
case of an unincoporated
member, its principal
place of business";
(c) in by-law 16(3) by
repealing "or principal
place of business".".
Question on the addition of the new schedule proposed, put and agreed to.
INSURANCE COMPANIES (AMENDMENT) BILL 1990
Clauses 1 to 11 were agreed to.
SECURITIES (DISCLOSURE OF INTERESTS) (AMENDMENT) BILL 1990
Clauses 1, 3, 4, 6 to 11, 13 and 16 were agreed to.
Clauses 2, 5, 12, 14 and 15
FINANCIAL SECRETARY: Sir, I move the amendments as set out in the paper circulated to Members.
The main purpose of the Bill is to improve the notification procedures under the principal Ordinance. To recognize modern information technology and to ease the burden of reporting upon persons, especially overseas residents, clause 14 is amended to add facsimile transmission as an accepted method of notification. At the same time, clause 15(b) is amended to give the necessary flexibility if, in future,
practical experience of the operation of the Ordinance reveals that supplementary provisions in respect of the methods of notification are needed. Clauses 5 and 12 are amended to reduce the maximum age of a child from 21 years to 18 years to bring the provisions of the Ordinance into line with the recently
enacted Law Reform (Legal Effects of Age) Ordinance 1990.
Clause 2 is amended to delete the definition of "child" in section 2 which provides that "child includes a step-child." We agree with the ad hoc group that it would be unreasonable to hold the person responsible for interests held by a child of his spouse's former marriages who may not have close contacts with him.
Sir, I beg to move.
Proposed amendments
Clause 2
That clause 2 be amended, by deleting paragraph (a) and substituting -- "(a) in subsection (1) --
(i) by repealing the definition of "child"; and
(ii) by adding after the definition of "document" --
""Exchange Company" means the Exchange Company as defined in section 2(1) of the Stock Exchanges Unification Ordinance (Cap. 361);"; and".
Clause 5
That clause 5 be amended, by deleting "21" where it secondly occurs and substituting "18".
Clause 12
That clause 12 be amended, by adding before paragraph (a) --
"(aa) in subsections (1), (2) and (3) by repealing "21" wherever it occurs and substituting "18";".
Clause 14
That clause 14 be amended, in the proposed section 51(a) and (b) by adding "or facsimile transmission" after "by post".
Clause 15
That clause 15(b) be amended, by deleting the proposed subsection (2) and substituting --
"(2) Without limiting the generality of regulations which may be made under subsection (1), such regulations may --
(a) impose requirements in relation to any of the methods of giving notification to a listed company or the Exchange Company specified or referred to in section 51; and
(b) provide for such incidental, consequential, evidential and supplemental provisions as are necessary or expedient for the purpose of giving full effect to those requirements.".
Question on the amendments proposed, put and agreed to.
Question on clauses 2, 5, 12, 14 and 15, as amended, proposed, put and agreed to.
RADIATION (AMENDMENT) BILL 1990
Clauses 1 to 7, 9 to 13 and 15 were agreed to.
Clauses 8 and 14
PROF. POON: Sir, I move that clauses 8 and 14 be amended as set out in the paper circulated to Members.
Proposed amendments
Clause 8
That clause 8 be amended, by adding before paragraph (a) --
"(aa) in subsection (2) by adding "section 7(3) or" after "by virtue of";".
Clause 14
That clause 14 be amended, by deleting the proposed section 22(2). Question on the amendments proposed, put and agreed to.
Question on clauses 8 and 14, as amended, proposed, put and agreed to.
New clause 6A Regulations
Clause read the First time and ordered to be set down for Second Reading pursuant to Standing Order 46(6).
Question on the Second Reading of the new clause proposed, put and agreed to. Clause read the Second time.
Proposed addition
New clause 6A
That the Bill be amended, by adding after clause 6 --
"6A. Regulations
Section 13(1)(r) and (u) is amended by repealing "or regulations made thereunder".". Question on the addition of the new clause proposed, put and agreed to. Council then resumed.
Third Reading of Bills
THE ATTORNEY GENERAL reported that the
BANKING (AMENDMENT) (NO. 3) BILL 1990 the original short title of which was BANKING (AMENDMENT) (NO. 2) BILL 1990
SECURITIES (DISCLOSURE OF INTERESTS) (AMENDMENT) BILL 1990 and RADIATION (AMENDMENT) BILL 1990
had passed through Committee with amendments and that the
INSURANCE COMPANIES (AMENDMENT) BILL 1990
had passed through Committee without amendment. He moved the Third Reading of the Bills.
Question on the Third Reading of the Bills proposed, put and agreed to. Bills read the Third time and passed.
Member's motion
BILL OF RIGHTS
MRS. SELINA CHOW moved the following motion:
"That this Council supports the enactment of a Bill of Rights and urges the Government in drafting the blue bill to take into account the views expressed by this Council."
MRS. CHOW: Sir, I move the motion standing in my name on the Order Paper.
On behalf of the Legislative Council ad hoc group formed in October of last year in anticipation of the publication of the draft Bill of Rights, of which I am convenor, I would like to extend our appreciation to all those who have helped to make our job
easier. These include the officials responsible for the Bill who have kept us up-to-date with the thinking of the Administration, the experts, legal and academic, who have educated us and the public with their knowledge and insight into a rather complex and difficult issue, and all members of the public who have come forward with their views, or published them in the media, to facilitate our discussions. I would like also to thank the members of my ad hoc group, who have been most patient and industrious in the course of our work, and have never lost sight, even in the most heated moments of debate, of the common objective -- that is, to tender the best advice that we as a group can agree upon to the Administration. Such advice has taken into account as far as we could the wishes of the community, the political reality of our future, and the consequences and implications of the passage of the Bill: such as the extent to which existing powers of the executive could be preserved, the practical implementation of the Bill and its effect on our legal and judicial systems, the accommodation and resolution of conflicting rights, and the effect of its existence on our everyday life.
The task of the group was far from simple, for we were required to consider the issue over a wide span of perspectives. There is the general philosophical question of whether a Bill of Rights, at this point in time, is necessary or desirable, and if it is, whether it should be regarded as absolute safeguard of rights covered by the Bill, so that all other rights and powers which are incompatible with them should be abolished. Whereas the group found little difficulty in arriving at the consensus that a Bill of Rights justiciable in the courts would certainly be seen as desirable protection for the ordinary man, there was considerable argument throughout the many meetings of the group over the question of balance. This became such a contentious issue that it had to be finally resolved in the whole Legislative Council In-House Meeting. While some Members feel that the absolute status of rights protected under the Bill should override other rights and powers found to be in conflict, an
overwhelming majority of Members share the concern voiced by many quarters of the community that ways should be found to accommodate both these rights and necessary powers within the law for the effective protection of the community, particularly in matters related to maintenance of law and order, effective immigration control, and anti-corruption measures.
Then there is the constitutional aspect to consider. How can this Bill of Rights be entrenched, and how can it achieve supremacy over other legislation? And how can we be sure that this Bill of Rights will continue to exist beyond 30 June 1997?
Given the supremacy of the Basic Law as Hong Kong's constitution at the change of sovereignty, a status which no one disputes and which China makes sure repeatedly that no one forgets, there does not seem to be any other option open to us except the one presently proposed, that is, a form of so-called indirect entrenchment by mirroring Article 39 of Chapter 3 of the Basic Law with an amendment in the Letters Patent.
The group therefore accepts this as a realistic way to proceed, but is unable to comment on the amendment itself, the wording of which has not been made known to us.
The group accepted that while the Bill does not technically enjoy supremacy, clauses 3 and 4 of the Bill together ensure a special status for the Bill over existing and all future legislation by requiring the courts to interpret all legislation consistently with the Bill. The declared policy to adopt the administrative practice to include a clause in every future Bill making it subject to the Bill of Rights will also help, although it must be recognized that there is no legal requirement to obligate any future administration or any future legislature to do so. With supremacy beyond reach, this so called "special status" of the Bill is the best we can achieve under present circumstances.
The technical aspect of the Bill presented considerable difficulty to Members, especially Members with no legal background. Apart from the assessment of the full legal implication of the Bill, complication resulted from the need to relate this Bill to the Basic Law, the Letters Patent, the International Covenant of Civil and Political Rights, and other existing laws which have been identified to be possibly in conflict with the Bill.
There has been certain criticism on the drafting of the Bill. Some have found the almost word for word adoption of the Covenant into domestic law, with reservation and all, leave a lot to be desired. Some regard statements of principles agreed to by states party in an international treaty too broad as legislation. Others want the International Covenant of Social, Economic and Cultural Rights to be included as well. In the interest of time, and given the need to relate the Bill as closely to Article 39 as possible, Members feel the present form is acceptable. The inclusion of the other Covenant would give rise to further debate, and delay the Bill.
The group did not conduct a clause by clause comparison between the Bill and the
Basic Law, although Mr. Andrew WONG's presence in the group helped to provide the necessary links and advice at the right moments, since Mr. WONG was the convenor of the OMELCO Panel that produced the comments on the Draft Basic Law.
In order that the Bill be given the most thorough legal scrutiny, a working group was formed under Mr. Ronald ARCULLI to conduct this task. They identified about 50 existing Ordinances which may be questionable should the Bill be passed, and also posed questions on drafting to the Administration, some with suggested alternatives for improvement. The ad hoc group vetted and endorsed the findings of the working group, and hoped the Administration would find them useful.
The relationship between the Bill and existing legislation is one of the most controversial areas to be examined by the group. This mainly concerns the question of what should be done if powers of the executive, in particular law enforcement agencies, are considered to be in conflict with the Bill. On the one hand there is genuine fear that the Bill would render law enforcement totally ineffective by
repealing those powers that the relevant agencies require to fight crime. On the other hand, human rights supporters are concerned that such a line of argument would compromise the Bill to such an extent that it would be ineffective as a safeguard for human rights.
After intensive research, study and debate, Members are generally satisfied that the situation may not be as problematic as it first appeared. Eventually we were able to arrive at the common ground that powers which are considered reasonable in the context of a democratic society could probably be provided by law and accommodated under the Bill of Rights. For one thing, we have received different legal advice as to whether some key sections are in contravention to the Bill. Section 10 of the Prevention of Bribery Ordinance is one such example. However even in the face of such controversy, we have been given to understand that the problem may be resolved through an amendment to the section. On the other hand, Members cannot see why the Independent Commission Against Corruption should be given special powers of search and seizure without being subjected to judicial supervision as other law enforcement agencies. In view of the concern voiced by many on the maintenance of law and order, in particular on the fight against corruption, we are glad to learn of a special working group which has been formed to study how we can preserve the effectiveness of the ICAC, and we look forward to solution proposed by this working group.
But of course the problem of incompatability involves quite a number of Ordinances
other than those in the ambit of law and order. Members see this as the most urgent task that the Administration must undertake so as to allow tradition and precedence to be established according to the Bill in the courts as soon as possible. So far all the representations regarding the length of the freeze period that we received have not supported two years but have ranged from no freeze period at all to a maximum of one year. Members however recognize that there may be a need for flexibility, and are prepared to accept one year with one renewal of a further year if necessary. Members would also request the Administration to adopt the approach of partial freeze of only those laws which, if not frozen before amendment or replacement, may create legislative vacuums causing instability or chaos to the system.
The question of conflicting rights needs also to be addressed. The best known example is Heung Yee Kuk's rights of the male heir safeguarded under customary law which is quite evidently in conflict with equality of the sexes. Another possible conflict exists between the right to privacy and the right to freedom of expression, both rights protected by the Bill. If the Administration's intention is to leave such conflicts to the courts, then this makes strong justification for partial freeze, allowing the courts to deal with these conflicts as soon as possible.
While the principle of the Covenant to be applicable between individuals as well as individuals and government is well supported, the group has received many representations against the immediate application of the Bill to disputes between individuals. Members are persuaded that a step-by-step approach, leaving inter citizen rights to be incorporated at a later stage, is probably a more sensible and practical way to proceed.
Above, I have attempted to highlight the key points on the Bill in the group's report. Emerging from the discussion on the Bill is the clear call for the setting up of a Human Rights Commission. The group concludes that the proposal deserves detailed study, and hopes that Government will investigate its practicability. In our view the Commission, if formed, should:
-- assume an educational role;
-- assume the role of arbitrator in rights of action between individuals; -- review legislation and recommend changes to those laws that may conflict the Bill;
-- receive and investigate complaints; and
-- issue guidelines on definition of human rights.
Members feel the Commission should make its decision public. It should also maintain independence.
Sir, before I close, permit me to take off my convenor's hat, and state very briefly my own view on the Bill.
I am convinced a Bill of Rights, however imperfect, will boost the confidence of our people. It should be seen as an integral part of our democratic evolution. I cannot agree with the thinking that we should let well alone. Is that not a familiar tune that is re-sung from time to time whenever there is call for changes in our system? The fundamental flaw in the "Don't rock the boat" school of thought is a failure to recognize that the boat is rocking. We wish it to be clear of rough waters, but in order to do so we have to steer it, not to let go at the helm. We cannot ignore the fact that we are in a time of change, and it is our job to see to it that Hong Kong be given the right system of checks and balances to handle that change. At the same time, we must heed the calls from our community to progress cautiously, taking a step-by-step approach, and explaining our case to China, who has repeatedly assured us that she is prepared to respect our autonomy. But progress we must. This Bill is a component of that progress.
Sir, there is much to be done and we have lost much time. I appeal to Government to do all it can to promote the concept of human rights within a free and responsible society in anticipation of the Bill which clearly enjoys the support of our people. Sir, I so move.
Question on the motion proposed.
MR. ARCULLI: Sir, I am sure that a number of important aspects on the proposed Bill of Rights ("the White Bill") will be discussed during today's debate. I propose to deal with one aspect, and that is, inter-citizen or third party rights. By this I mean such rights as one person may have against another as is provided in the
International Covenant on Civil and Political Rights ("the ICCPR" or "the Covenant"). The relevant clause in the white Bill, Sir, is clause 7 which provides and I quote:
"7(1) This Ordinance binds the Government and all authorities and persons whether acting in a private or public capacity.
(2) In this section, "person" includes any body of persons corporate or incorporate."
When referring to clause 7, paragraph 20 of the Commentary on the White Bill states and I quote:
"The Ordinance will apply to everyone, including the government. When the government has dealings with people in Hong Kong, or when one person in Hong Kong has dealings with another, they are prohibited by law from breaching the Bill of Rights."
Sir, the intention and scope of the White Bill is quite plain: if enacted it will bind everyone.
In the course of the ad hoc group receiving representations, I understand a minority has suggested that inter-citizen rights should either be excluded, deferred or perhaps frozen for a period. Let me say at once that I have not yet been persuaded to this view nor is it shared by the great majority of all the representations received by the ad hoc group. Indeed some have stressed the importance that no organization or person should be exempted from compliance with a Bill of Rights. Those advancing such views have also suggested that the Administration should give a commitment on the speedy introduction of legislation or other unspecified measures in order to give effect to the relevant articles of the Covenant. Another suggestion is that rights of action in respect of inter-citizen rights should be handled by a Human Rights Commission. Neither the scope nor mandate of such a Commission has been elaborated and if this were to be a viable option a detailed study and proposal will have to be put forward.
Sir, I believe we should examine the reasons put forward in support of the suggestion to exclude, defer, freeze for a period or provide in some other way inter-citizen rights which I understand to be as follows:
(a) That inter-citizen rights are not included in Bills of Rights in some other countries but are provided for in specific human rights legislation.
(b) That the language of the Covenant is that of a treaty which is not the same as the language used in domestic laws and that such language is generally loose with many terms undefined leading to uncertainty and confusion as well as encourage litigation between private citizens.
The examples referred to in point (a) are not entirely appropriate because in some instances the Bill of Rights referred to was in the form of draft legislation rather than enacted law. Secondly, reference was not made to the European Convention of Human Rights which contains inter-citizen rights and which incidentally binds the United Kingdom. Lastly, if some countries choose to implement the ICCPR in part and not the whole of it that is a matter for them. The concerns referred to in point (b) should be considered with the following three points in mind: Firstly, if the language of the ICCPR is too loose or uncertain for the protection or enforcement of
inter-citizen rights can it be regarded as sufficiently clear and certain when it comes to the enforcement of rights by an individual against the Government? Secondly, we must not forget that international case law will undoubtedly help in the interpretation of the Bill of Rights in Hong Kong. Thirdly, if inter-citizen rights are to be the subject of separate legislation would we be creating human rights that have two different status? Will we use words in such separate legislation that will be materially different? If so, what will be the effect? How do we perform this surgery of separating rights against the Government as opposed to an individual? Surely it cannot be right that there should be a difference between the violation of a right whether by the Government or by an individual! Lastly, the concern of too much litigation is the wrong approach to take as well as being unsound. I say this because the suggestion is not to exclude inter-citizen rights altogether but simply to introduce such rights by separate legislation rather than in the proposed Bill of Rights. If someone is bent on litigation he is unlikely to be deterred simply because there is separate legislation.
Sir, if we were to limit the proposed Bill of Rights to a citizen/government relationship how is it proposed to distinguish the act of a civil servant as an act in such a capacity as opposed to such civil servant acting on a frolic of his own? In the former case the Government will be responsible for such action whilst in the latter it may not. I have myself witnessed the permit holder of a human rights
exhibition being queried by no less than three police officers within half an hour as to who he was, whether there was a permit and so on. Was this a coincidence or were those officers acting on a frolic of their own?
Sir, so far those who have advocated that inter-citizen rights be excluded, deferred or frozen for a period have perhaps concentrated too much on the areas concerning privacy and discrimination. There are other human rights that are equally important and not necessarily less complicated. Some examples are as follows:
(a) Article 3 which refers to cruel, inhuman or degrading treatment. Surely, we are not saying that only governments are capable of handing out such treatment.
(b) Article 7 which provides that no one shall be imprisoned merely on the ground of inability to fulfil a contractual obligation. Can we be referring only to government contracts?
(c) Article 8 which includes the freedom to choose one's own residence.
(d) Article 13 which provides that everyone shall have the right to recognition everywhere as a person before the law. Does this mean that such recognition is only to come from the Government?
(e) Article 15 which deals with the right to freedom of thought, conscience and religion and includes the liberty of parents to ensure the religious and moral education of their children in conformity with their own convictions are respected. Is it suggested that these freedoms should only be observed by the Government and no one else or by no other organization?
Sir, in this context I would like to remind the Administration of what is said in paragraph 6 of the Commentary and I quote:
"For some time there has been growing support in the community for the idea of a single piece of legislation, a Bill of Rights, which would bring together in domestic law all the relevant rights included in the Covenants. This idea was raised in a number of contexts, notably during local discussion of the first draft Basic Law in 1987; and later, in 1988, at a meeting of the United Nation Human Rights Committee in Geneva. During 1989, public support for such Bill increased......"
Sir, may I emphasize that the purpose of a Bill of Rights was succinctly embraced by the words in paragraph 6 and again I quote: "the idea of a single piece of legislation, a Bill of Rights, which would bring together in domestic law all the relevant rights." Have we been given cogent reasons to depart from this objective? Clearly not! Sir, if the Administration is minded to consider excluding, deferring or freezing inter-citizen rights I believe we owe the community a duty to raise this issue in clear and unequivocal terms. This coupled with the prospect of the formation of a Human Rights Commission is good reason for there to be a further public
consultation so that we will all know where we stand.
Sir, in conclusion I re-iterate that inter-citizen rights is but an inseparable part of any effective human rights legislation and that clause 7 of the draft Bill of Rights should not be amended. With these remarks, Sir, I support the motion.
MR. CHEUNG YAN-LUNG (in Cantonese): I welcome the introduction of the Hong Kong Bill of Rights. This year Hong Kong will be joining some over 100 countries in the world to have a Bill of Rights as part of their laws. It is part of an emerging trend in the second half of the twentieth century. But more importantly it is what Hong Kong vitally needs at this time of its history.
Hong Kong has lately undergone a series of confidence crises. A substantial number of our population are making applications to emigrate to foreign countries, people packing and leaving Hong Kong every day in significant numbers. They have all contributed to Hong Kong's success in the past. The United Kingdom nationality package hopefully is a step in the right direction to halt this trend. But this package is only for the chosen few. What about the majority of people in Hong Kong who are not qualified under the nationality package and do not have the means and qualifications to leave Hong Kong for other countries?
To them, Hong Kong is their only home and for them, it is our duty to make this place livable and workable up till 30 June 1997 and beyond.
The Bill of Rights guarantees a framework within which a fair and egalitarian society works. Given the good tradition of a dependable legal system with justice being done, the Hong Kong people is assured of this protection up till 30 June 1997.
On 1 July 1997, the Basic Law will come into operation. In Article 39 of the Basic Law, it is provided that "The provisions of the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, and international labour covenants as applied to Hong Kong shall remain in force and shall be implemented through the laws of the Hong Kong Special
Administrative Region". What we are gathered here today for is to build that bridge so that the Bill of Rights will as from the date of its enactment have a through road to 30 June 1997 and beyond.
Sir, as a member of the Heung Yee Kuk, I would like to draw Members' attention to the implications of this Bill on the indigenous population of the New Territories.
I would like to point out the implications of Article 23 of the Bill on the customary rights and tradition of land ownership in the New Territories. The Bill, once enacted, will undermine the traditional practice of land ownership in the New Territories, turning it into a complex and confusing problem which is difficult to be handled satisfactorily.
Annex III to the Sino-British Joint Declaration expressly recognizes the ownership of various types of rural holdings and properties of the indigenous villagers in the New Territories, but Article 23 of the Bill of Rights attempts to make such rights unlawful. This is in violation of the Sino-British Joint Declaration. Moreover, Article 40 of the Basic Law of the Hong Kong Special Administrative Region which was promulgated by the Chinese Government early this year also clearly states that the lawful traditional rights and interests of the indigenous inhabitants of the New Territories shall be protected by the Hong Kong Special Administrative Region.
In view of the foregoing I therefore submit that the Bill must avoid any violation of or conflict with the Sino-British Joint Declaration and the Basic Law. In respect of the traditional practice of land ownership in the New Territories, the Government should work out as soon as possible a viable solution such as making the traditional practice an exemption, so that existing practice already recognized by the Sino British Joint Declaration and the Basic Law may remain unchanged.
While supporting the passing of this Bill of Rights, I have my own reservations. One has to balance the rights of each individual against the collective rights of society as a whole. I mean the safety and security of its members. The special powers given to the Independent Commission Against Corruption have proved to be
beneficial in combating corruption in Hong Kong in the past. I would like to see them retained. The right of the police to stop citizens to check their identity is an effective way to combat crimes and I would like to see this power retained but with a more formulated and publicized procedure to be worked out by the police without infringing the Bill of Rights.
For these, I agree with the freezing of the operation of the Bill of Rights for a period of two years so as to give people time to iron out the differences between
this Bill and other pieces of legislation.
It is good of us here to talk about the inauguration of the Bill of Rights. But it is an effective piece of legislation only if the Hong Kong people are aware of and make good use of it. I understand that in countries like Canada, New Zealand and Australia, there exist a Human Rights Commission with the following four main objectives:
(1) to educate the public about human rights;
(2) to devise codes on conducts as the set standards against which behaviour is to be judged;
(3) to identify any piece of legislation that conflicts with the Bill of Rights; and
(4) to conduct an ombudsman-like investigation and resolve the dispute of different parties.
I believe that the role and functions of the Human Rights Commissions are worth considering and I would urge the Government to look into the possibility of setting up such a commission in Hong Kong in the next two years.
A piece of good legislation like the Bill of Rights needs proper guidance and implementation to be effective.
Sir, with these remarks, I support the motion.
MR. CHUNG (in Cantonese): Sir, just like many members of the public, I am looking forward to an early enactment of the Hong Kong Bill of Rights Bill 1990 after it has undergone the process of consultation and debate.
At the present moment, Hong Kong is developing its own system of representative government with the target of establishing a democratic legislature. On the other hand, China has already promulgated the Basic Law which will provide a high degree of autonomy for the territory. Under such circumstances, it appears opportune at this time to enact a Bill of Rights which will serve as a legal safeguard of both
civil and political rights for the people of Hong Kong.
In essence, the Hong Kong Bill of Rights Bill, or in short "the Bill", seeks to implement the provisions contained in Paragraph 4 of Section XIII of Annex I to the Sino-British Joint Declaration by laying them down in clear and concrete terms in the domestic law. This Council should therefore help proceed with the enactment. It is certain that the passage of this Bill will boost the confidence of the local people as well as the international community in the future of the territory.
In my view, the problem of "overriding status" between the Bill and the Basic Law will not exist, because as far as the basic requirement of the protection of human rights is concerned, these two pieces of legislation have their roots in the Sino-British Joint Declaration and the public opinion of the Hong Kong people. Furthermore, if these two pieces of legislation go hand in hand on a common basis having regard to the practical situation and the legal aspect, they should be "complementary" and not "contradictory" to each other in terms of legal protection of human rights for the people of Hong Kong.
It is quite natural that the extent of human rights available in a society cannot be unlimited. Hence we have to make legislation to govern it. For the same reason, the more freedom we get, the greater the extent of check and balance by law is required. As Hong Kong is in midway of the transitional period, I believe "safety first" is the utmost concern of the general public. In order to ensure peace and order in the community as well as to protect the interest of the public, I am of the opinion that reservations should be made in the Bill regarding provisions in relation to the
prevention or fighting of crimes.
The most important thing is we should not let the lawbreakers take advantage of the Bill under the pretext of protecting human rights. Take for instance, police power to stop any pedestrian for identity check and to question any suspected person loitering in the street should not be affected by the Bill at this particular time and under the present circumstances. If it is necessary, attempts can be made to step up measures to monitor the carrying out of police duties and the behaviour of police officers, and to conduct review at any time on issues involving the abuse of police power. All in all, it is not advisable to let the carrying out of police duties in maintaining law and order be hampered for the sake of protecting human rights.
It should be noted that the Bill of Rights should not impinge upon the law
enforcement work of the Independent Commission Against Corruption (ICAC) and its effective power in the prevention of briberies. Although privacy and private ownership have to be protected under the law, however, "human rights" should not be used as a kind of refuge for those engaged in corrupt and illegal activities. It is absolutely inappropriate to relax those legislations which are essential for anti-corruption, particularly in the run-up to 1997. A clean administration does not entail privilege but is itself the feature of a good government. Apart from preventing the resurrection of corrupt practices, it also sets a good example of natural justice in the community, thus providing fair protection for free competition under the basis of human rights.
As we all know, "equality between men and women" is a conceded basic human right. However, in enacting the Bill of Rights for Hong Kong, we should properly preserve the lawful traditional rights of the indigenous residents in the New Territories which have been mainly passed through the male line. There is one point that this Council has to take note of: if the Bill in its present form brings changes to the customary rights of the New Territories, it will not be consistent with Annex III to the Joint Declaration and the relevant provisions in the Basic Law. The question is whether there is a need for us to do that or can we do that unilaterally? In my view, the answer is: there is no need to do so and it is impossible to take such a step.
In 1976, when the United Kingdom became a signatory to the International Covenant on Civil and Political Rights, a statement concerning some "reservation clauses" in respect of Hong Kong was issued stating that rights such as national self determination and universal franchise as set out in the covenant would not be applicable to Hong Kong. The Bill of Rights drawn up according to the provisions concerning the Covenants as related to in the Sino-British Joint Declaration may incorporate certain necessary reservations on some legal provisions on human rights to take account of the actual circumstances in the territory including security and traditional needs. These reservations should be subject to review in the future. In this way, it will not undermine the strength of law in the protection of human rights; on the other hand, it will step up the effect of the rule of law.
Under the present constitutional framework and according to the provisions in Paragraph 2 of Section XI of Annex I to the Joint Declaration, the Hong Kong Government should be able to join the International Human Rights Organization directly through the appropriate channel after the official passage of the Bill. If with public
support the Bill of Rights is able to secure a three-fold safeguard, namely from local enactment, from the Sino-British agreement and from the international covenant, we
will have gone one step further in securing the well-being of our people. Sir, with these remarks, I support the motion.
MISS TAM: Sir, the individual rights and freedoms of those of us who live in Hong Kong are safeguarded in the Joint Declaration on the future of Hong Kong as follows:
"The provisions of the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR) as applied to Hong Kong shall remain in force".
Thereafter, the Chinese Government conducted a five-year exercise in the drafting of the Basic Law and after many sessions of argument, Article 39 of the Basic Law now reads:
"The provisions of the ICCPR, the ICESCR and international labour conventions as applied to Hong Kong shall remain in force and shall be implemented through the laws of the Hong Kong Special Administrative Region."
The Bill of Rights which we now seek to introduce in Hong Kong closely follows the wording of the ICCPR. In my own mind, I have no doubt whatsoever that this is a continuation of the work to protect our rights and freedoms which started on 19 December 1985 when we signed the Joint Declaration. The fact that the Basic Law saw fit to say that such rights shall be implemented through the laws of Hong Kong is, to me, an indication of support that we should, other than having the general common law, think of other ways to fully implement the provisions of that International Covenant. In fact, in Hong Kong our protection of the individual under the common law is insufficient or else we would not find such a gap between our local legislation and the requirements of the Covenant that the ad hoc group has pointed out and
thoroughly analysed.
Sir, I am not very sure whether I am in the majority or minority of those who have participated in the drafting of the Basic Law to see things the way I have described. Searching through the provisions of the Basic Law and through some newspaper reporting, one of the points of argument that has been put forth concerns laws that are to be maintained in Hong Kong as provided in Article 8 of the Basic Law which does not include statute which enjoys a status of supremacy or entrenchment.
Article 8 of the Basic Law states: "The laws previously in force in Hong Kong, that is, the common law, rules of equity, ordinances, subordinate legislation and customary law shall be maintained except for any that contravene this Law, and subject to any amendment by the legislature of the HKSAR." The common law that is to be maintained, I hope, is not in a frozen state, that is to say the common law is a body of law which evolves through the needs of society and we are always persuaded by authorities from other common law countries as to how it should develop. I think those who wrote Article 8 must have appreciated that the common law is always a developing body of law which actually could be applied even if we have a statutory Bill of Rights because the interpretation by the court will still be according to common law precedents available in other common law jurisdictions, which are relevant and could be taken into consideration by the courts in Hong Kong in reaching their decisions. So my reading of Article 8 of the Basic Law does not amount in any way to saying that if we should introduce a statutory Bill of Rights, the common law will be excluded from its application to Hong Kong. In fact, my thinking is that they should complement each other.
Having established that point, I would like further to point out that there has been worry expressed as to the method of entrenchment and the question of supremacy. The convener of the ad hoc group had already explained how the group dealt with the Administration's proposal of indirect entrenchment through amendment of the Letters Patent and the administrative measure that could be taken in later days to ensure that future legislation would not conflict with the Bill of Rights. This I regard as the best way to answer any worries that either the Bill of Rights will be superior to the Basic Law or override the interpretation of the Basic Law under Article 159.
Having established these two points, I think it is important that at this point of time the people of Hong Kong are assured of the fact that the Government cares enough about their rights and freedoms to take a positive step, albeit the implications may be far-reaching, albeit there may be controversies as to how exactly we should balance the rights of an individual against the rights of the community in terms of protection and of law and order. But it is still very timely that we should take a brave step to do so.
Sir, I have tried, through my private contacts, to put forth the Hong Kong case. But I am finding that at times it is difficult because there are forces pulling the other way. In the remaining period of time between the enactment of the Bill of Rights and the debate, Sir, I do not think it would be a bad idea for the Hong Kong Government
to continue to assure the Chinese Government that not only is the Bill of Rights not in contravention of the Basic Law, but it actually makes sure that there will be better compliance with the terms that are included in the ICCPR which is exactly what the Joint Declaration wanted and exactly what Article 39 aimed at.
There has been discussion, Sir, if I may so point out, in respect of the rights of the indigenous New Territories inhabitants in the Basic Law and there were in fact discussion papers being put forth by the Hong Kong members of the Basic Law Drafting Committee. This may lead to some arguments in the future as to the kind of
understanding that has been reached in the discussion of Article 39 and as to the scope of the rights of those indigenous residents. And I do not know whether this will effectively create some more obstacles to the acceptance by the Chinese Government of the Bill of Rights.
But, Sir, I think it is very important that whereas there are conflicts between the Hong Kong law and the Covenant, such conflicts are to be resolved only by changing the Hong Kong law because the Covenant itself is already accepted as the yardstick for measurement. The second point of concern that has been expressed, as I looked through the press reports or from some third-hand or fourth-hand information, relates to the balance of individual rights and the rights of the community and to whether this Bill of Rights, if enacted, will substantially affect the power or effectiveness of the Independent Commission Against Corruption and the police force. Sir, I do not think this is a Chinese concern. This is a concern of the Hong Kong community. Whilst in principle I am in full support of the Bill of Rights, I would be reluctant to support any legislation that would unnecessarily erode the police power in the enforcement of law and order and the effective measures that could be taken against corruption.
With these reservations, I support the motion before Council.
MR. HO SAI-CHU (in Cantonese): Sir, the enactment of the Bill of Rights to enshrine the provisions of the International Covenant on Civil and Political Rights as applied to Hong Kong as a means to safeguard the basic rights of Hong Kong people should have been a good move by itself. It should be supported in principle.
However, I think it is worth the while to note that the Bill should take into account the special circumstances of Hong Kong if it is to remain effective in days
to come. Unlike other countries and territories, Hong Kong will have its sovereignty reverted to China in 1997. The Basic Law of the Special Administrative Region will become the supreme law of Hong Kong. This is a fact generally conceded by the Chinese and British Governments as well as the local community. The Basic Law of the Hong Kong Special Administrative Region was approved by the National People's Congress and was promulgated in April this year. Article 8 of the Basic Law stipulates that the laws previously in force in Hong Kong ..... shall be maintained. The phrase "the laws previously in force" of course refers to the laws in force in 1984 when the Sino-British Joint Declaration was signed. All these laws are already known to the Chinese Government. Any important legislation enacted by the Hong Kong Government at a later stage and intended to be effective after 1997 should be brought up for discussion by the Sino-British Joint Liaison Group in order to ensure that the
contents of the legislation will be accepted by both Governments. Of course, Britain is responsible for the administration of Hong Kong and the legislative power is vested in the Hong Kong Government before 1997. Discussion is by no means intervention. Instead, it helps secure the continuity of our legislation after 1997. We often say that efforts should be made to maintain the stability and prosperity of Hong Kong. Undoubtedly it will be a heavy blow to confidence if an important piece of legislation having been implemented in Hong Kong for some years is struck down and replaced after 1997. To maintain the long-term stability of Hong Kong and in the interests of those who take Hong Kong as their home, I agree to the point mentioned from time to time by His Excellency the Governor, Sir David WILSON, that co-operation among China, Britain and Hong Kong should be strengthened and that consultation on important issues is necessary. Certainly, this approach should also apply to the introduction of the Hong Kong Bill of Rights Bill. Article 39 of the Basic Law recognizes the legal status of the International Covenant on Civil and Political Rights in Hong Kong. This
provides a common basis for friendly consultation and discussion between China and Britain.
As regards the legal status of the Bill, it is provided in the Hong Kong Bill of Rights Bill 1990 that "this Ordinance will override existing law". Such formulation cannot precisely define the superior status of this Bill. It can even be taken to mean that the Bill will be the supreme law. To date, no country or territory in the world have ever adopted an international covenant as its highest law unless it is a trusted territory governed by the international community. As the Basic Law will have supremacy over all other legislation after 1997, the Bill should be consistent with the Basic Law or else it will definitely be amended after 1997. As an example, Article 40 of the existing provisions of the Basic Law
stipulates that "The lawful traditional rights and interests of the indigenous inhabitants of the 'New Territories' shall be protected by the Hong Kong Special Administrative Region." Hence, in implementing the entitlement to equal rights as provided in Article 1 of the Bill of Rights, consideration should be given to this kind of special circumstances. Given the principle of "one country, two systems" as stated in the Basic Law, the people of Hong Kong in exercising their rights and freedoms should not in effect create conflicts between Hong Kong and the mainland. Apart from this, we should have a comprehensive and thorough understanding of the trend of public opinion in Hong Kong. The strength of public clamour should not be taken as the prevailing opinion of our community. For instance, questions like whether the police and Independent Commission Against Corruption have been given too much power, whether death penalty should be abolished and whether homosexuality should be decriminalized and so on are issues relating to human rights and are highly controversial. Regarding the powers of the police, I have read a report on the findings of a survey conducted in a certain district, which revealed that most of the respondents did not think the present powers of the police are too extensive. On the issue of stop and check of identity by police officers, as it has been found that many crimes were detected in the course of such action, members of the public would normally co-operate if the manners of the policeman concerned were good. It should be noted that many members of the public are not ignorant of human rights but they are mature enough to accommodate such police action. Should some of the law enforcement powers which have been working well and accepted by the public be scrapped or severely restricted before there is any thorough understanding of the full extent of public opinion, the work of our law enforcement officers will be hampered. It will deal a blow to their morale, resulting in a further wastage of manpower. Lawbreakers will not be deterred in time and sentence will not be duly meted out. Law and order in our society will become a cause for concern if righteousness is overshadowed by evil deeds.
Sir, the Bill of Rights is a new and very important piece of legislation. The issue involved are wide-ranging and complicated. A careful study into many of the problems needs to be carried out to weigh the pros and cons before a decision can be made. The Bill should not be introduced hastily. All in all, I support the
enactment of a piece of legislation to protect human rights in Hong Kong and endorse the view that it should be formulated in a fully adequate way to ensure the protection of human rights to the general public as well as to maintain peace and order in our society. I suggest that in formulating the legislation the Government should listen to the views of various sectors, including of course the views expressed in this debate
today! However, as the first part of today's motion reads "that this Council supports the enactment of a Bill of Rights" and according to the interpretation clause of the Hong Kong Bill of Rights Bill 1990, "Bill of Rights" is a proper term referring to the Hong Kong Bill of Rights set out in Part II of the Bill, and I have mentioned earlier that I cannot agree to quite a number of problematic provisions in Part II of the Bill which cannot be applied to Hong Kong and which cannot be resolved, I therefore object to the motion.
4.27 pm
HIS HONOUR THE PRESIDENT: Members might care to take a short break at this moment.
4.51 pm
HIS HONOUR THE PRESIDENT: Council will resume.
MR. MARTIN LEE: Sir, it gives me great pleasure to see so many of my honourable colleagues speaking on this motion and displaying such an interest in human rights issues. This debate and the large number of lengthy written submissions that the ad hoc group has received testify to the considerable interest in Hong Kong in the Bill of Rights. The fact that not a single one of the submissions argued against implementing a Bill of Rights demonstrates the overwhelming support in the community for the Bill, and I urge the Administration to come forward with a blue Bill within the shortest possible time.
But there still remains a number of misconceptions as to the nature of a Bill of Rights. First of all the Bill is not some novel device that conflicts with the Joint Declaration or the Basic Law. To the contrary, the Joint Declaration specifically decrees that the International Covenant on Civil and Political Rights (ICCPR), from which the Bill of Rights is copied almost word for word, shall remain in force after 1997.
The Basic Law goes even farther, for Article 39 requires that the ICCPR "shall be implemented through the laws of the Hong Kong Special Administrative Region." It is only if Hong Kong does not enact the provisions of the ICCPR into Hong
Kong law that the Hong Kong Special Administrative Region (HKSAR) will be in violation of the Basic Law, and certainly a Bill of Rights represents the most comprehensive and convenient way of fulfilling the obligations under Article 39. Given China's promises in the Joint Declaration and its insistence in the Basic Law that the ICCPR shall be implemented in the HKSAR, I am confident that any negative statements
currently coming from China regarding the Bill of Rights are only the result of misunderstanding and misinformation. Once the Chinese Government fully understands that the Bill of Rights merely obeys its own imperative language in the Basic Law, they will cease objecting to Hong Kong being given a Bill of Rights.
The second misconception centres around the fear of some of my colleagues in the ad hoc group that "a Bill of Rights might severely hinder the effective enforcement of law and order, and, in particular, the anti-corruption activities of the Independent Commission Against Corruption." This fear, Sir, has no foundation in fact, and indeed the experience of the many countries with both a Bill of Rights and strong anti-crime and anti-corruption laws demonstrates that human rights protection is in no way incompatible with effective law enforcement. The position paper of the Hong Kong Bar Association says: "We have no reason to believe that the application of the ICCPR will undermine the efficacy of law enforcement agencies."
The people of Hong Kong must understand that the Bill of Rights is not a sword that threatens effective law enforcement; rather the Bill provides for a shield against violations of human rights that have been internationally accepted as fundamental by over 80 countries worldwide which are signatories to the Covenant. As the Hong Kong Bar Association stresses, "It must not be forgotten that the ICCPR standards are minimum standards." Hence, I applaud the recommendation of the ad hoc group that no government department or law enforcement agency be exempted from the Bill of Rights.
The third and most widespread misconception is that once the Bill of Rights is enacted, then all our rights will be effectively protected. For the Bill is merely a piece of paper. If the present or future Government of Hong Kong is not fully committed to upholding the Bill, or if the people of Hong Kong do not know or are not eager to protect their own rights, then the rights in the Bill will burn and float away like a traditional Chinese offering to a deceased relative.
Sir, the people of Hong Kong will suffer gravely if their Government chooses to treat the Bill of Rights as contemptuously as it has treated the ICCPR on which the
Bill of Rights is based. For, in 1976, 14 years ago, the British Government extended the ICCPR to Hong Kong, and for 14 years it has studiously maintained to the United Nations that all laws in Hong Kong are in conformity with the Covenant. Now, however, the Government demands a two-year freeze period on the operation of the Bill so that it can have time to amend all the laws that clearly contravene the ICCPR-derived Bill of Rights!
Included among such laws are the Film Censorship Ordinance and the Public Order Ordinance that the Government drafted and proposed long after it had pledged to abide by the provisions of the ICCPR. It is particularly ironic that the Government is now considering amending the Film Censorship Ordinance. For just two years ago, the Government rejected my proposed amendment, which would have forced the film censor to comply with Article 19 of the ICCPR, instead of merely taking it "into account". Then, the Attorney General strenuously protested that the Ordinance without my
amendment would already accord with the ICCPR.
A critical test, Sir, of whether the Government is now willing to protect human rights is whether it will make the Bill of Rights effective by amending both the Letters Patent and the Crown Proceedings Ordinance. Over three months ago, when the draft Bill was released, the Government told the people of Hong Kong that the Letters Patent would be amended to provide the supremacy and entrenchment elements lacking in the draft Bill of Rights. Yet, we now find ourselves debating the draft Bill without knowing when and, more important, how the Letters Patent will actually be amended. The Government has also recognized that the availability of effective
relief to citizens for violations of the Bill will be sharply limited if the present Crown Proceedings Ordinance shall remain unchanged, and yet the Government has been evasive as to when and how that Ordinance will be amended.
Sir, I cannot over-emphasize that the Bill of Rights, amendment to the Letters Patent, and changes in the Crown Proceedings Ordinance are an inseparable package. If the Government refuses to come forward with the entire package, it will effectively gut the purpose of the Bill of Rights and demonstrate that the Government is not genuinely committed to upholding human rights.
Though it is not particularly worthwhile to discuss supremacy and entrenchment of the Bill of Rights before we see the long-awaited amendment to the Letters Patent, I would like to correct any misconception that the Basic Law does not already have these two key attributes. There is no question that Article 39 of the Basic Law ought
to be improved upon. Nevertheless, the first paragraph of Article 39 does provide for entrenchment by requiring that the provisions of the ICCPR as applied to Hong Kong shall be implemented through the laws of the HKSAR. Hence, all the provisions of the ICCPR which were extended to Hong Kong in 1976 -- such as freedom of association or expression -- must be put into the domestic laws of HKSAR and the Bill of Rights will do just that. Any amendment to the Bill of Rights that is inconsistent with the ICCPR would be struck down by the courts.
While the first paragraph of Article 39 entrenches the Bill, the second paragraph provides for supremacy. Specifically, it says that no restrictions on the rights and freedoms of Hong Kong residents shall "contravene the provisions of the preceding paragraph of this Article" (that is, the provisions of the ICCPR that will have been implemented through the Bill of Rights). The whole point of the second paragraph of Article 39 is to give the provisions of the ICCPR supremacy over any laws that the HKSAR legislature should enact.
But we must bear in mind that the Bill of Rights is still subordinate to the constitutional documents, that is, the Letters Patent before 1997, and the Basic Law after 1997. Hence, the Bill of Rights will have no problem continuing beyond 1997 as a piece of Hong Kong legislation.
A final point about the relationship between the ICCPR, the Joint Declaration, and the Basic Law is the question of whether Hong Kong will become a signatory to the Covenant. Section XIII of Annex I of the Joint Declaration clearly states that the Covenant shall remain in force after 1997. Article 39 of the Basic Law repeats this promise. Yet, currently, there is no indication that after 1997 Hong Kong will be able to be a signatory to the Covenant either through China or on its own.
As Amnesty International in London and the International Human Rights Law Group in Washington, D.C. have pointed out, Hong Kong is fully entitled to sign the Covenant on its own because of its membership in certain specialized multi-lateral organizations of the United Nations. The HKSAR's participation in these international organizations after 1997 is explicitly permitted by both the Joint Declaration and the Basic Law. If the promise that the Covenant shall remain in force after 1997 is to be fulfilled, Great Britain should allow Hong Kong to become a signatory on its own to the ICCPR before 1997, and it should seek either to persuade China to sign the Covenant herself or to allow the HKSAR to sign the Covenant on its own.
Now, Sir, I would like to turn to five areas that have received extensive attention in the report of the ad hoc group: the freeze period, remedies available under the Bill, the extension of the Bill to inter-citizen rights, the Reservations contained in Part III of the Bill, and the traditional rights of the indigenous inhabitants of the New Territories.
1. The two-year freeze period:
The ad hoc group is correct in firmly rejecting the Administration's unprecedented proposal of a blanket two-year freeze on the Bill of Rights over all existing legislation. Many people do not seem to realize, Sir, that we have already been denied some of the rights guaranteed in the ICCPR for 14 years. It is totally wrong to allow statutes that infringe upon basic rights such as freedom of expression to remain in full force for another two years -- and to put people in jail for violation of those statutes.
The Government has responded to this concern of the ad hoc group by stating that during the two-year freeze period, "law enforcement agencies will have to operate within the limits established by the ICCPR as applied to Hong Kong." Given that the Government has itself recognized that dozens of its laws contravene the ICCPR ever so long -- and that such laws would continue in full force during the freeze period -- such a response is not credible, if not downright deceitful.
As the ad hoc group rightly points out, only the courts will be able to determine authoritatively which statutes contravene the Bill of Rights. That process must begin as soon as possible if the flesh of case law is to be put onto the skeleton of the Bill of Rights in the short time before 1997. A Bill of Rights, moreover, that proves effective in practice is critical to confidence before 1997. For to continue to enforce laws that infringe upon internationally accepted human rights standards will only damage the confidence of the people of Hong Kong and the image of Hong Kong in the international community.
The Government has already had one year since they proposed to enact a Bill of Rights, and it is likely that they will have at least several more months before the actual Bill is passed by this Council. Given such a lengthy period of time in which the Government could have amended offending legislation, I see absolutely no need for a further freeze period. It is imperative that the Bill of Rights operate as
soon as it is passed.
Nevertheless, if my honourable colleagues insist on accepting a freeze period, I would limit any such period to six months. And in such an event I would support the ad hoc group's recommendation that the freeze should only apply to a schedule of statutes. I emphasize that the Government must specify precisely which sections of statutes they intend to freeze and include that schedule in the blue Bill.
Moreover, the Government must show this Council that a freeze on all these sections is absolutely necessary.
For example, section 10(2)(c) of the Film Censorship Ordinance, which gives the film censor the power to ban a film or excise a portion of it for political reasons, can easily be amended by adopting my proposed amendment to it of two years ago, that is, by requiring the censor "to comply with Article 19 of the ICCPR" rather than merely to take that article into account, and the Government does not need two years to do that.
Finally, the Attorney General must undertake not to prosecute anyone under a statute that is frozen, for such a prosecution would be a grievous violation of the Government's undoubted obligations under the Covenant, which have never been frozen.
2. Remedies available to those whose rights under the Bill are violated:
The question of legal remedies -- that is, what kinds of relief the courts can grant someone whose rights have been violated -- has not been sufficiently dealt with in the ad hoc group's report. Nevertheless, the question of remedies is of critical importance, for legal remedies often determine the actual effectiveness of the law in question. Remedies, in short, are the teeth of any law.
Yet, unfortunately, the remedial teeth in the draft Bill of Rights appear all too much like the dentures of an 80-year-old woman. As every submission from legal experts has emphasized, the reliance on the law of tort and the failure of the Government to amend the Crown Proceedings Ordinance mean that adequate relief will not be available to many of our citizens whose rights under the Bill have been infringed.
The law of tort often does not provide an adequate remedy for those whose rights are violated. For example, what kind of damages can a court award to a person who
is unable to see a film banned by a censor for political reasons or who is denied the right to march in a rally commemorating the democratic movement in China?
Sir, while one object of the Bill of Rights is to provide financial compensation for violations of human rights, the major purpose is to prevent those violations from occurring in the first place.
As all the legal experts have recommended, the Crown Proceedings Ordinance must be amended to allow for interim declarations to lie against the Crown. Such an amendment would be entirely consistent with Article 35 of the Basic Law, which guarantees that "Hong Kong residents shall have the right to institute legal proceedings in the courts against the acts of the executive authorities and their personnel."
I thus support the Law Society's suggestion that clause 6 be amended to follow the wording of Article 24 of Canadian Charter of Rights and Freedoms: "Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances."
3. The protection of inter-citizen rights:
Article 23 of the ICCPR provides that "the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination" on several specified grounds. Yet, in the 14 years since the Covenant had been extended to Hong Kong, the Hong Kong Government has made absolutely no effort to fulfil its obligations under Article 23. If there is any "legislative vacuum" (borrowing expression from the Government) connected with the Bill of Rights, surely it stems from the utter failure of the Government to enact any anti-discrimination law.
Because of the importance of preventing discrimination and arbitrary invasions of privacy, I agree with the Honourable Ronald ARCULLI, the chairman of the working group of the ad hoc group, in his conclusion that the Government is correct in applying the Bill of Rights to individuals as well as public authorities. For Article 30 of the Basic Law specifically prevents individuals from interfering with other
individuals' privacy of communication. Thus the inclusion of inter-citizen rights of action provides for consistency with the Basic Law.
In addition, Article 23 of the Bill does not on its own guarantee inter-citizen rights; rather it directs the Government to pass anti-discrimination legislation. Given all the above factors, I would advocate that inter-citizen rights under the Bill be frozen for one year in order to allow the Government enough time to draft legislation to protect citizens from unlawful discrimination and from invasions of their privacy. I also believe that a Human Rights Commission, which can play a very necessary educational, advisory, and investigatory role, might also assume primary responsibility for mediating inter-citizen disputes, though this point will need substantial further study.
4. The Reservations in Part III of the Bill of Rights:
Many submissions to the ad hoc group have been strongly critical of the Reservations contained in the Bill, yet the ad hoc group considers these reservations to be acceptable. When examining the Reservations, one must always bear in mind that they are exceptions to what the consensus of nations has accepted to be the very minimum of human rights protection. Any Reservation by its very nature therefore represents a denial of what the international community considers to be a fundamental human right. Since the present Reservations are not meant to be a permanent licence to allow for the violation of basic rights, I urge Britain and China to agree to remove all Reservations from the application of the ICCPR to Hong Kong as soon as possible.
The Reservation in clause 12 is an example of an unnecessary restriction on the basic rights of Hong Kong residents. Under this Reservation, the Government denies those Hong Kong residents who do not have the right of abode in Hong Kong the right to be represented by a lawyer even at their own expense in deportation proceedings or have a deportation order reviewed by the courts. Such a reservation directly conflicts with Article 35 of the Basic Law, which decrees that all Hong Kong residents -- irrespective of whether they have the right of abode in Hong Kong -- "shall have the right to...choice of lawyers for timely protection of their lawful rights and interests or for representation in the courts, and to judicial remedies." I see
absolutely no point in the Government preserving a restrictive law that will be nullified in 1997 by the Basic Law.
5. Traditional rights in the New Territories:
In relation to the demands made by the Heung Yee Kuk, the ad hoc group has stated firmly that "the principle of equality between the sexes should be upheld." I fully
agree with this statement. No one in Hong Kong wishes to interfere with the lawful traditions of the indigenous people of the New Territories; yet I must emphasize again that the Bill of Rights establishes the baseline of human rights. Just as no law enforcement agency should be exempted from the Bill, neither should any particular group of people, no matter how eminent.
It is possible as a result of the Bill and subsequent anti-discriminatory legislation that certain discriminatory practices may have to end. Yet, just as it would have been untenable to support the continuation of concubinage on the basis of tradition, so too this Council must not support the continuation of other forms of discrimination against women. It is only those traditions that do not violate basic human rights that should be allowed to continue.
Before I close, I would also like to touch upon two matters briefly to which the ad hoc group report did not give adequate attention. The first is the problems resulting from the failure to adapt certain parts of the ICCPR in order to make them effective in the context of a domestic law. A clear example is Article 5 of the Bill of Rights, which states that "No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law." This Article might be interpreted to mean that so long as the deprivations of liberty are in accordance with the law -- no matter how unjust it may be -- they would not constitute a breach of the Bill of Rights. In place of this sentence, as pointed out by Dr. JAYAWICKRAMA of the University of Hong Kong, the Bill of Rights should spell out the exact circumstances under which a person could be deprived of his liberty, just as in the Bills of Rights of Montserrat and the Falkland Islands.
The second matter relates to the implementation of the International Covenant on Economic, Social and Cultural Rights (ICESCR). Although I have concentrated exclusively in this debate on the ICCPR and its implementation through the Bill of Rights, some of the rights in the ICESCR should also be included in the Bill of Rights. The arguments as to why the rights in the ICCPR should be implemented through a comprehensive Bill of Rights apply with equal force to the rights in the ICESCR.
The Government has failed to support its contention that all the rights guaranteed by this second Covenant -- such as the right to form independent trade unions, the right to academic freedom, and the right to education -- "in general are not rights that can be easily enforced in the courts." Many of the rights in the ICESCR, however, are already found in the Basic Law -- for example, Articles 33 and 34. Since these
rights will become justiciable after 1997 under the Basic Law, the Government must give serious consideration to including these rights in the Bill so that a body of case law and experience can be developed around them just as in the case of the rights under the ICCPR.
In conclusion, I call upon all of us -- legislators, lawyers, judges and ordinary citizens -- to wake to the fact that the rights covered in this draft Bill have not been bestowed upon us by the Government; to the contrary, every human being is born with them. We must protect these rights jealously and not allow our Government to take away any right from anyone. For, if one right is taken away today, then tomorrow no right is safe. And if the least of my brethren loses his rights today, then
tomorrow I will lose mine.
Sir, before I end my speech, I wish to say that I have read well in advance a copy of the draft speech of my honourable colleague, Mr. Martin BARROW, on capital punishment, and agree with the sentiment and logic. Sir, I support the motion.
MR. SZETO (in Cantonese): Sir, human rights are our inherent rights; give us back our rights. They are the rights which every creature is entitled to by birth, save and except animals like pigs, dogs or pandas and so on . The enactment of the Bill of Rights is only a means to restore our legitimate rights. It is not a kind of grant or largesse. Owing to restraints in historical development, the Bill of Rights
proposed at present can only restore our rights in part, instead of in full. Nevertheless, it is better than none. I believe the people of Hong Kong, like people in other parts of the world, will certainly persist in their strife for the remaining part of our rights which have been withheld, be it a struggle for 50 or 100 years.
It has been said that the Bill of Rights tries to override the Basic Law. However, it should be noted that Article 39 of the Basic Law provides:
"The provisions of the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights and international labour conventions as applied to Hong Kong shall remain in force and shall be implemented through the laws of the Hong Kong Special Administrative Region.
"The rights and freedoms enjoyed by Hong Kong residents shall not be restricted unless prescribed by law. Such restrictions shall not contravene the provisions of the
preceding paragraph of this Article."
The enactment of the Bill is entirely in line with this article, that is, "the provisions" "as applied" "shall remain in force" and "shall be implemented through the laws". If the Bill is said to be overriding the Basic Law, it is just like alleging that Article 39 of the Basic Law is overriding the Basic Law itself, or is self contradicting or undoing the Basic Law.
It has also been argued that Chapter 3 of the Basic Law on Fundamental Rights and Duties of the Residents covers an area larger than that of the Bill and for this reason, the Bill need not be introduced. In this case, enactment will not be allowed if the Bill covers more. Why then should it be disapproved of if the Bill covers less and offers less protection? If I am allowed to take three bowls of rice, why should I be prohibited from taking the first bowl? How can I proceed on with the second and the third bowl if there is not the first one? Maybe I am not even allowed to take any bowl of rice; or the promise of three bowls of rice is meant to be broken.
It has also been predicted that the Bill of Rights will enjoy only "a brief life" and will be ineffective after 1997. The point is the Bill of Rights to be enacted now is in line with the Basic Law. Article 8 of the Basic Law stipulates that "the laws previously in force in Hong Kong, that is, the common law, rules of equity, ordinances, subordinate legislation and customary law shall be maintained, except for those that are inconsistent with this Law (that is, the Basic Law) or have been amended by the Legislature of Hong Kong Special Administrative Region." What is the rationale for the Bill of Rights to become ineffective after 1997 if it does not contravene the Basic Law? Are those who predict "a brief life" of the Bill already in the knowledge that a plot has been set to "end the life" of the Bill?
I support the supremacy of the Bill. Such a status is in line with the provision of the Basic Law. It has already been laid down in Article 39 of the Basic Law quoted earlier that restrictions to be imposed by other laws on our rights and freedoms shall not contravene the provisions of the international covenants which will continue to be effective and applicable to Hong Kong. The phrase "shall not contravene" is an indication of the superior status of these rights. All countries which have enacted their Bill of Rights have given their Bill of Rights a superior status. A Bill of Rights stripped of such a status will soon or later be struck down by other laws to become a Bill of Rights in name only.
I support the entrenchment of the Bill. It is entrenched primarily by Article 39 of the Basic Law, because it is stipulated that any amendment to the Bill that contravenes the provisions of the international covenants continuing to be applicable to Hong Kong will be considered a breach of the Basic Law. For further entrenchment, I am in favour of adopting certain administrative measures and legislative practices that will require future enactments to include a clause subjecting the new legislation to the Bill.
I support the idea of allowing a freeze period for the Bill of Rights provided that it is a partial freeze not exceeding one year and the affected legislations should be specifically listed in a schedule to the Bill. I am opposed to a one-year freeze which at the same time may be extended to two years. From a teacher's point of view, this "half-hearted" approach encourages students to go lazy. Human rights education is an integral part of civil education, and in education, practice is most essential and effective in the learning process. As a matter of fact, Hong Kong is in an urgent need to introduce human rights education through practice.
I am in favour of the establishment of a Human Rights Commission. This institution should be vested with the powers to monitor, review, educate and mediate, and arbitrate on cases concerning inter-citizen rights. While functioning as an institution as effective as the judiciary in implementing the Bill of Rights, it should also serve the purpose of providing checks and balances against the judiciary.
I am against the idea that the Independent Commission Against Corruption or any other agencies, organizations or individuals should enjoy exemption under the Bill of Rights. It is wrong of some people to think that human rights and the elements of clean administration and stability are mutually exclusive. Please take a look at the real life tragic example all over the world: Countries where human rights are most relentlessly ignored are often the most corrupt and unstable; and countries where human rights have been given greater protection are always better in maintaining stability and a clean administration. Human rights, clean administration and
stability are consistent with each other. Intrinsically, the spirit of human rights is to relieve people of corruption and turmoil. Stability achieved through repression is no real stability. To suppress human rights is actually to sow the seed of instability.
In our concerted efforts to create a bright future for Hong Kong, the enactment of the Bill of Rights is an extremely crucial move at the moment.
Sir, with these remarks, I support the motion.
MR. TAI: Sir, the Bill of Rights is an extremely complicated Bill which would have far-reaching effect on Hong Kong. Although I support the general principle and spirit underlying the Bill of Rights which, in general, carries the international covenants on economic, social and cultural rights as well as international covenants on civil and political rights, nevertheless I have some reservations regarding some of the clauses. Due to the complexity of the Bill, and the controversy it has aroused, I shall speak on only three areas:
(1) The effect of the Bill on the rights of succession and the rippling consequences it would have on beneficial interests relating to the customary laws and practices of the Tso's and Tong's in the New Territories.
(2) The effect that it would have on our legislation relating to our existing criminal laws and practices.
(3) The political effect on the amendment of the Bill in view of the provisions of the Sino-British Joint Declaration and the Basic Law.
May I first refer you, Sir, to clause 3, sub-paragraph 5 of the Joint Declaration whereby Her Majesty's Government and the Government of the People's Republic of China both agree that: "The current social and economic systems in Hong Kong will remain unchanged, and so will the life-style. Rights and freedoms, including those of the person, of speech, of the press, of assembly, of association, of travel, of movement, of correspondence, of strike, of choice of occupation, of academic research and of religious belief will be ensured by the laws in the Hong Kong Special Administrative Region. Private property, ownership of enterprises, legitimate right of inheritance and foreign investment will be protected by law."
Furthermore, Article 40 of the Basic Law provides that: "The legitimate traditional rights and interests of the indigenous inhabitants of 'New Territories' shall be protected by the Hong Kong Special Administrative Region."
In the New Territories there exists a long traditional and customary law of succession, as well as a long-established association called Tso and Tong whereby,
in the former case, in the absence of a will it will provide that the estate of a deceased indigenous villager will generally devolve to the deceased's male descendant.
In the case of the Tso and Tong being an association of people belonging to a common ancestor, properties are being held by the Tso or Tong in question in trust for the male descendants of that particular Tso or Tong. This sort of settlement or trust is not recognized by British Law because it infringes the rule of perpetuity. However, due to the historical and traditional background, the customary practices involving the law of succession as to the rights of the inhabitants to inherit property for the beneficial interest of the Tso's and Tong's are recognized currently by the laws of Hong Kong.
These exceptions are enshrined in our New Territories Ordinance with positive administrative recognition of these traditional rights and practices by proclamation since the first Governor of Hong Kong, which stated clearly that the rights and traditions previously enjoyed by the inhabitants of Hong Kong would be respected.
Article 1 of the Bill of Rights provides that the rights recognized in this Bill are enjoyed without distinction of any kind, such as, race, colour, sex, language, religion, political or other opinions, property, birth or other status. Also that men and women have an equal right to the enjoyment of all civil and political rights as set forth in this Bill of Rights.
The rationale and the historical background of these traditional rights and practices in the New Territories ensure that there is a differential between males and females under the law of succession, as well as beneficial entitlement to an interest in properties held under Tso's and Tong's as follows:
(a) Properties held under the Tso's and Tong's usually provide expenses for the descendants of the Tong's to defray the cost of ancestral worship, as well as for the upkeeping of ancestral graves.
(b) This traditional practice ensures the unity of landholding, whereby land is held by persons who descend from a common ancestor.
(c) Provision is made for education needs.
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