HONG KONG LEGISLATIVE COUNCIL — 4 December 1991 865 OFFICIAL RECORD OF PROCEEDINGS
Wednesday, 4 December 1991
The Council met at half-past Two o'clock
PRESENT
THE DEPUTY PRESIDENT
THE HONOURABLE JOHN JOSEPH SWAINE, C.B.E., Q.C., J.P.
THE CHIEF SECRETARY
THE HONOURABLE SIR DAVID ROBERT FORD, K.B.E., L.V.O., J.P.
THE FINANCIAL SECRETARY
THE HONOURABLE NATHANIEL WILLIAM HAMISH MACLEOD, 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 MRS SELINA CHOW LIANG SHUK-YEE, O.B.E., J.P. THE HONOURABLE MRS RITA FAN HSU LAI-TAI, O.B.E., J.P.
THE HONOURABLE HUI YIN-FAT, O.B.E., J.P.
THE HONOURABLE MARTIN LEE CHU-MING, Q.C., J.P.
THE HONOURABLE DAVID LI KWOK-PO, O.B.E., J.P.
THE HONOURABLE NGAI SHIU-KIT, O.B.E., J.P.
THE HONOURABLE PANG CHUN-HOI, M.B.E.
THE HONOURABLE SZETO WAH
THE HONOURABLE TAM YIU-CHUNG
THE HONOURABLE ANDREW WONG WANG-FAT, O.B.E., J.P.
THE HONOURABLE LAU WONG-FAT, O.B.E., J.P.
THE HONOURABLE EDWARD HO SING-TIN, J.P.
866 HONG KONG LEGISLATIVE COUNCIL — 4 December 1991 THE HONOURABLE RONALD JOSEPH ARCULLI, J.P.
THE HONOURABLE MRS PEGGY LAM, M.B.E., J.P.
THE HONOURABLE MRS MIRIAM LAU KIN-YEE, J.P.
THE HONOURABLE LAU WAH-SUM, O.B.E., J.P.
DR THE HONOURABLE LEONG CHE-HUNG
THE HONOURABLE JAMES DAVID McGREGOR, O.B.E., I.S.O., J.P. THE HONOURABLE MRS ELSIE TU, C.B.E.
THE HONOURABLE ALBERT CHAN WAI-YIP
PROF THE HONOURABLE EDWARD CHEN KWAN-YIU THE HONOURABLE VINCENT CHENG HOI-CHUEN
THE HONOURABLE MOSES CHENG MO-CHI
THE HONOURABLE MARVIN CHEUNG KIN-TUNG, J.P. THE HONOURABLE CHEUNG MAN-KWONG
THE HONOURABLE CHIM PUI-CHUNG
REV THE HONOURABLE FUNG CHI-WOOD
THE HONOURABLE FREDERICK FUNG KIN-KEE
THE HONOURABLE TIMOTHY HA WING-HO, M.B.E., J.P. THE HONOURABLE MICHAEL HO MUN-KA
DR THE HONOURABLE HUANG CHEN-YA
THE HONOURABLE SIMON IP SIK-ON, J.P.
DR THE HONOURABLE LAM KUI-CHUN
DR THE HONOURABLE CONRAD LAM KUI-SHING
THE HONOURABLE LAU CHIN-SHEK
THE HONOURABLE MISS EMILY LAU WAI-HING
THE HONOURABLE LEE WING-TAT
THE HONOURABLE GILBERT LEUNG KAM-HO
HONG KONG LEGISLATIVE COUNCIL — 4 December 1991 867 THE HONOURABLE ERIC LI KA-CHEUNG, J.P.
THE HONOURABLE FRED LI WAH-MING
PROF THE HONOURABLE FELICE LIEH MAK, O.B.E., J.P.
THE HONOURABLE MAN SAI-CHEONG
THE HONOURABLE NG MING-YUM
THE HONOURABLE STEVEN POON KWOK-LIM
THE HONOURABLE HENRY TANG YING-YEN, J.P.
THE HONOURABLE TIK CHI-YUEN
THE HONOURABLE JAMES TO KUN-SUN
DR THE HONOURABLE SAMUEL WONG PING-WAI, M.B.E., J.P. DR THE HONOURABLE PHILIP WONG YU-HONG
DR THE HONOURABLE YEUNG SUM
THE HONOURABLE HOWARD YOUNG
ABSENT
THE HONOURABLE MARTIN GILBERT BARROW, O.B.E., J.P.
THE HONOURABLE PETER WONG HONG-YUEN, J.P.
IN ATTENDANCE
MR DAVID ALAN CHALLONER NENDICK, C.B.E., J.P.
SECRETARY FOR MONETARY AFFAIRS
THE HONOURABLE EDWARD BARRIE WIGGHAM, C.B.E., J.P. SECRETARY FOR THE CIVIL SERVICE
MR YEUNG KAI-YIN, J.P.
SECRETARY FOR THE TREASURY
MR ALISTAIR PETER ASPREY, O.B.E., A.E., J.P.
SECRETARY FOR SECURITY
MR JAMES SO YIU-CHO, O.B.E., J.P.
SECRETARY FOR RECREATION AND CULTURE
868 HONG KONG LEGISLATIVE COUNCIL — 4 December 1991
MR MICHAEL SZE CHO-CHEUNG, I.S.O., J.P.
SECRETARY FOR CONSTITUTIONAL AFFAIRS
THE CLERK TO THE LEGISLATIVE COUNCIL
MR LAW KAM-SANG
HONG KONG LEGISLATIVE COUNCIL — 4 December 1991 869 Papers
The following papers were laid on the table pursuant to Standing Order 14(2): Subject
Subsidiary Legislation L.N. No.
Commissioner for Administrative Complaints
Ordinance (Amendment of Schedule 1)
(No. 2) Order 1991 .................................................................................. 420/91
Medical Laboratory Technologists (Registration
and Disciplinary Procedure) (Amendment)
Regulations 1991..................................................................................... 421/91
Midwives (Registration and Disciplinary
Procedure) (Amendment) Regulations 1991 ........................................... 422/91 Noise Control (Air Compressors) Regulations................................................ 423/91
Noise Control (Appeal Board) (Amendment)
Regulations 1991..................................................................................... 424/91
Noise Control (General) (Amendment)
Regulations 1991..................................................................................... 425/91
Noise Control (Hand Held Percussive Breakers)
Regulations.............................................................................................. 426/91
Hospital Authority Ordinance 1990 (Amendment
of Schedules) Order 1991........................................................................ 428/91
Hospital Authority Ordinance 1990
(Commencement) Notice 1991................................................................ 429/91
Telecommunication (Hong Kong Telephone Company)
(Exemption from Licensing) (Fees) (Amendment)
(No. 2) Order 1991 .................................................................................. 430/91 Hawker (Permitted Place) Declaration 1991 ................................................... 431/91
Oral answers to questions
DEPUTY PRESIDENT: In view of the queries raised at last Friday's In-House meeting and the media reporting which resulted, I would like to read from my
870 HONG KONG LEGISLATIVE COUNCIL — 4 December 1991
letter to Mr Allen LEE as Senior Member on 18 October 1991 on the subject of supplementary questions. The text of my letter reads:
For the orderly and more equitable distribution of supplementary questions I propose to be guided by the members' interest (subject or constituency) in a particular question, and by the number of times a member has asked supplementary questions both at the sitting itself and cumulatively.
If members wish, they are free to indicate to the Clerk of Legislative Council whether they have a particular interest in any of the questions. I suggest this should be done by the close of business on the day preceding the sitting so that their views may be taken into account.
I should be grateful if you could bring these points to the attention of members."
That is the complete text of my letter. A copy of it was sent to all Members on 21 October 1991. Since then I have been guided by the principles set out in that letter, in my conduct of Question Time.
MR ALLEN LEE: Mr Deputy President, in view of what you have already said and of the fact that I was the Senior Member then, could I clarify how the matter was discussed at the In-House meeting; that is to say, with your permission could I clarify that we discussed your letter at the In-House and Members felt that supplementary questions should be free for all to ask, not to be restricted by the content of members' interests.
DEPUTY PRESIDENT: I do not think I can permit a discussion on this. I have read the text of my letter which sets out the principles by which I said I would be guided. I would be happy to discuss further arrangements with Members of the Legislative Council if they wish, but I don't think we can have a discussion in Legislative Council this afternoon.
Funding for the new airport
1. PROF FELICE LIEH MAK asked: In view of the very high cost related to the construction of the new airport, and the public perception that this project is responsible for the proposed cuts in public expenditure which may deprive the community of adequate essential services, will the Government inform this Council of the precise nature of the funding of the new airport?
FINANCIAL SECRETARY: Mr Deputy President, the estimated costs and the funding arrangements for the Airport Core Programme were given to Members of Finance Committee in July this year. These project estimates totalling $98.6
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billion at March 1991 prices remain our best estimates at this stage, and for convenience I have annexed to my reply a table showing the breakdown. The funding split between Government and the private sector shown in the table is our best estimate of the attainable level of private sector funding.
Our general aim has been to attract private investment wherever this makes sense. Usually this means that a project would generate a sufficient return on investment. This means in essence the Western Harbour Crossing, which will be a build, operate and transfer (BOT) franchise arrangement. And the airport itself, and the airport railway, which will be implemented by statutory corporations. Thus the latter two will be funded partly with government equity and partly with funds from the private sector. The amounts of government equity required for the airport will be refined once the Airport Financial Advisor's recommendation and the Provisional Airport Authority's (PAA) Business Plan are finalized. The funding arrangement for the airport railway is still under discussion with the Mass Transit Railway Corporation. The remaining Airport Core Programme projects will be treated in the same way as other public works items, that is, they will be funded by way of government capital expenditure. However, it is intended at some later stage to wholly or partly privatize the Lantau Fixed Crossing through the award of an operating franchise.
We expect to be in a position to go back to Finance Committee with a more detailed picture in around March next year. By then much will have happened — a view taken on the airport railway project; the PAA's Airport Master Plan, the Airport Financial Advisor's recommended funding strategy and the PAA's own Business Plan will have been studied; tenders for some major Airport Core Programme projects will have been received; and design for the other projects will have further progressed.
That completes my answer to the main question, but I cannot let go without comment the reference in the preface to the question to a perception that the airport core projects are responsible for proposed cuts in public expenditure which may deprive the community of adequate essential services.
The reality is quite different. We are planning overall for real growth in public expenditure, not "cuts". The prime constraint on how much more can be spent on new services is in fact the relatively low economic growth we are currently experiencing. Where the confusion arises is that, given bids for new services always exceed available new money, we are requiring departments to find modest savings in what they spend on existing services, so that more can be spent on new services.
Whilst the cost of the airport projects is substantial, it needs to be kept in perspective. That part of it which will be funded as government capital expenditure will take up only about one quarter of our total capital expenditure in the six years of construction. And of this amount, over half is attributable to projects such as West Kowloon Reclamation and Route 3 which would have to
872 HONG KONG LEGISLATIVE COUNCIL — 4 December 1991
be implemented even without the new airport. Moreover, the airport projects are a vital engine of future economic growth.
Annex
Figures in $ million at March 1991 prices
Project Government Private sector Total
Capital Works Borrowing by Private
(note 1) Reserve Fund Equity Airport Authority investment (note 2)
WKR 9,000 9,000 WKE 1,700 1,700 WHC 3,900 3,900 Rt 3 5,600 5,600 CLK 3,100 13,800 16,500 10,200 43,600 TCI 2,600 2,600 NLE 4,300 4,300 LFC 12,100 12,100 Utilities 1,500 1,500
-------------------------------------------------------------------------------------------------------------- Total 39,900 13,800 16,500 14,100 84,300
53,700 30,600 84,300
(64%) (36%) (100%)
Plus
Figures in $ million at March 1991 prices
Project Government Private sector Total
Capital Works Borrowing by Private
(note 1) Reserve Fund Equity Airport Authority investment (note 2)
CWR 1,800 1,800 AR 12,500 12,500 (Note 3)
-------------------------------------------------------------------------------------------------------------- Grand Total 98,600 (Note 4)
HONG KONG LEGISLATIVE COUNCIL — 4 December 1991 873
Note 1: WKR: West Kowloon Reclamation
WKE: West Kowloon Expressway
WHC: Western Harbour Crossing
Rt 3: Route 3
CLK: Chek Lap Kok Airport
TCI: Tung Chung development, phase 1
NLE: North Lantau Expressway
LFC: Lantau Fixed Crossing
CWR: Central and Wanchai Reclamation
AR: Airport Railway
Note 2: The figure under this column excludes financing and interest charges.
Note 3: This figure excludes the cost of the rail reserve in the LFC and NLE which has been included in the rough order of cost of these two projects above. The cost of the rail reserve will be recovered from the operator of the Airport Railway in due course. The bulk of the cost of the Airport Railway will be met by the MTRC from borrowings.
Note 4: This figure excludes contingency provision for any acceleration of works that may become necessary to ensure the proper interfacing and integrity of programming of works under the Airport Core Programme.
Source: Note for the Finance Committee on the Financial Aspects of the Airport Core Programme (Ref: FCRI (91-92)6)
DEPUTY PRESIDENT: Before I proceed to supplementary questions, I would urge Members to make these as short and simple as possible. In particular, I would draw attention again to Standing Order 18(1)(d) which states that: A question shall not be so complex that it cannot reasonably be answered as a single question.
DR SAMUEL WONG: Mr Deputy President, if the Lantau Fixed Crossing could be partly privatized through the award of an operating franchise, would it not then be possible to, say, construct it under the BOT system?
FINANCIAL SECRETARY: Mr Deputy President, the two stages are entirely separate. At the time that we construct it our judgment is that it would not be an attractive project for BOT; it is quite a long time forward to forecast the likely revenue and there are a number of decisions to be taken which would affect that revenue. Hence, we get a much better result if we sell the franchise, wholly or partly, at a later stage, much nearer the actual revenue being forthcoming.
874 HONG KONG LEGISLATIVE COUNCIL — 4 December 1991
MR ALBERT CHAN (in Cantonese): Mr Deputy President, by the end of this month, the financial assessment report on the infrastructural and airport projects will have been completed and the Provisional Airport Authority will have submitted its recommendations of financial arrangements to the Government. Will the Administration release the above information to this Council by the end of December or in early January next year?
FINANCIAL SECRETARY: Mr Deputy President, I have already said in my main reply that we expect to come back to Finance Committee in around March next year with refinements of the costs of a number of these projects. Although it is true that we may receive some reports earlier than that, it will take time to assess them and we would rather come back with a more complete picture.
MR FREDERICK FUNG (in Cantonese): Mr Deputy President, before I proceed with my question, I would like to cite a few examples....
DEPUTY PRESIDENT: Would you please keep it simple, Mr FUNG?
MR FEDERICK FUNG (in Cantonese): The Secretary just now mentioned that there were no cuts in public expenditure. But I would like to draw his attention to the fact that housing projects at Rennie's Mill and Tung Chung, and the building of schools and community centres need to be funded by the Housing Department; the Kowloon Hospital project and part of the project of the Tuen Mun-Yuen Long Section of Route 3 are to be put off and current social welfare expenditure reduced. On the other hand, large-scale infrastructural projects are underway along the routes to the airport. How could the Secretary convince this Council and the public that large-scale airport-related projects are not related to cuts in public expenditure when what we see is corresponding cuts in other areas?
FINANCIAL SECRETARY: Mr Deputy President, I think I have already attempted in my main answer to explain the difference between the cuts, which are savings in our ongoing expenditure, and the position of our total expenditure. Our total expenditure will continue to increase in real terms. That is not to say, of course, that some particular projects may be delayed or whatever for whatever reason. The cuts are quite separate from the overall situation which is that we will be spending more in real terms.
DEPUTY PRESIDENT: I am sorry, Mr FUNG, please sit down.
HONG KONG LEGISLATIVE COUNCIL — 4 December 1991 875
MR LEE WING-TAT (in Cantonese): Mr Deputy President, the Secretary mentioned in the fourth and fifth paragraphs of his answer that the airport project would not lead to cuts in public expenditure. But we know that expenditure on social welfare services will be cut by 0.5% next year. Does this cut differ in any way with what the Secretary mentioned in his reply?
FINANCIAL SECRETARY: Mr Deputy President, it does not. Social welfare expenditure has been growing very rapidly in recent years and the intention is that it will continue to grow in real terms. Again I must distinguish savings on ongoing activities and services to fund, among other things, new services.
REV FUNG CHI-WOOD (in Cantonese): Mr Deputy President, I am glad to hear the Secretary say in the fourth and fifth paragraphs of his reply that there are in fact no cuts in public expenditure. Can the Secretary inform us whether the Administration has ever given any instructions to some or even all departments that expenditure needs to be cut for certain reasons?
FINANCIAL SECRETARY: Mr Deputy President, the aim has been — and this has been communicated to Policy Secretaries and departments — that they should find savings in their ongoing activities. The reason is that this year, as in every year, the bids for new expenditure exceed the resources available; so we are trying to better meet those bids by introducing economies, efficiency savings and so on in our ongoing programme. So the instruction has been that they must find some such savings; but I repeat that, overall, we will still be increasing our expenditure in real terms.
Supply of gas for medical use
2. MR MOSES CHENG asked: Will the Administration inform this Council:
(a) whether there are any measures imposed by the Government on the supplier of gas in the manufacture, storage and transportation of gas intended for medical use to ensure that the incidents of supplying the wrong gas in labelled containers would not occur again, and if so, what the measures are and how the Government monitors their compliance;
(b) whether such measures are based upon internationally accepted standards, and if so, what these standards are; and
(c) how many companies in Hong Kong are licensed to supply gas for medical use?
876 HONG KONG LEGISLATIVE COUNCIL — 4 December 1991
SECRETARY FOR SECURITY: Mr Deputy President, the Government does impose controls on the manufacture, storage and transportation of gas intended for medical use. The Director of Fire Services is the authority for compressed gases under the Dangerous Goods Ordinance. Through the powers granted under that Ordinance, he exercises control over such gases through the issue of licences to which conditions may be attached.
As a result of the incidents which occurred in 1989 and 1990 at the Canossa Hospital and Caritas Medical Centre respectively, working parties were appointed to investigate the incidents and to make recommendations on improvements aimed at preventing similar incidents from occurring in future. The report of the first working party has already been made public; the Fire Services Department will tomorrow make public the report of the second working party. The first report contained 12 recommendations, and the second a further 15. Nearly all of these recommendations, relating to improved working practices, safety and security measures and training have already been fully implemented by the Hong Kong Oxygen and Acetylene Company. The remainder are in the process of implementation, and should be fully implemented by the middle of next year.
In addition to these improvements, the Administration has decided to commission a consultant who will commence in the next few weeks a two-month study on other safety and quality measures, requiring expertise not available within the Government.
In order to ensure compliance with the various measures recommended in the reports, the Fire Services Department has since last year had an inspection team based permanently at the Hong Kong Oxygen production plant. In addition, spot checks are made on the distribution, delivery and storage of medical gases. The Fire Services Department has also imposed additional conditions in the licence granted to Hong Kong Oxygen under the Dangerous Goods Ordinance.
As regards the second part of the question, the improvement measures so far introduced have been based on accepted international standards such as the British Standards and Guide to Good Pharmaceutical Manufacturing Practice for medical gases. One of the tasks of our consultants will be to advise on whether and if so how our standards can and should be further improved.
As regards the final part of the question, at present, the Hong Kong Oxygen is the only company licensed to supply medical gas to hospitals in Hong Kong. However, other gas suppliers may also apply for the grant of licences to manufacture, store and transport medical gases under the Dangerous Goods Ordinance and to supply such gases to hospitals, subject to their complying with the required standards.
HONG KONG LEGISLATIVE COUNCIL — 4 December 1991 877
MR MOSES CHENG: Mr Deputy President, in view of the importance of maintaining a regular supply of correct gases for medical use in Hong Kong, would the Administration be prepared to provide incentives to other gas suppliers to encourage them to go into business?
SECRETARY FOR SECURITY: Mr Deputy President, I think this is an area where we would certainly not wish to interfere with the normal market.
DR LAM KUI-CHUN: Mr Deputy President, in the incident in Canossa Hospital as quoted in the answer by the Secretary for Security, there was a possible human element which was not covered in the answer supplied. Could the Secretary for Security inform this Council whether any clarification on this matter has been made so far?
SECRETARY FOR SECURITY: Could I ask for clarification, Mr Deputy President. Is the question asking what the cause of the accident at the Canossa Hospital was?
DR LAM KUI-CHUN: Yes.
SECRETARY FOR SECURITY: Mr Deputy President, there was an inquest held into the incident at the Canossa Hospital but the cause was not conclusively determined. Clearly, human error was one possibility, as it was indeed in the case of the second incident at the Caritas Medical Centre.
DR LEONG CHE-HUNG: Mr Deputy President, will the Administration continue to find out the cause of the incidents? If not, then how could the public and the medical profession be assured that such mix-ups would not happen again?
SECRETARY FOR SECURITY: Mr Deputy President, the working party did investigate the causes of the incidents but I do not think it was able, in the end, to come to any certain conclusion. There was the possibility, in the case of the accident at the Caritas Medical Centre, of a malicious act, though the police investigation did not produce any evidence of this. There was also the possibility of negligence in a series of events involving the repainting of the cylinder, the use of improper filling equipment, and wrong operating procedures. Again, the cause could not be conclusively shown but this was certainly suggested as a possibility.
878 HONG KONG LEGISLATIVE COUNCIL — 4 December 1991
MR JIMMY McGREGOR: Mr Deputy President, would the Secretary say whether there was any question of possible sabotage or malicious act in the first case, at the Canossa Hospital?
SECRETARY FOR SECURITY: Mr Deputy President, as I said, this was investigated and there was no evidence of this.
DR LEONG CHE-HUNG: Mr Deputy President, I am happy to see that the Administration is considering commissioning a consultant to look into the details of gas safety. But in order to have more stringent control of the use of medical gases, would the Administration consider exercising control of such gases under the Pharmacy and Poisons Ordinance?
SECRETARY FOR SECURITY: Mr Deputy President, I think clearly the manufacture, storage, transportation and distribution of compressed gases have to be dealt with by the Director of Fire Services as the authority under the Dangerous Goods Ordinance because these gases are dangerous goods and he has to be the authority that guards against fire and explosion. I think that the question though is really asking whether they should also be licensed under the Pharmacy and Poisons Ordinance. I am afraid I cannot answer that question; I shall have to ask the Secretary for Health and Welfare to give Dr LEONG a written reply. (Annex I)
DR CONRAD LAM (in Cantonese): Mr Deputy President, the Secretary mentioned in his reply that the Fire Services Department had an inspection team based at the Hong Kong Oxygen production plant. May I ask the Secretary of the strength and the scope of work of the team and whether the work they undertake should be the duties of Hong Kong Oxygen? If yes, should the cost of the services they provide be recovered from the company?
SECRETARY FOR SECURITY: Mr Deputy President, there are two officers of the Fire Services Department deployed to monitor the operation of Hong Kong Oxygen. The cost of the services they provide is fully reimbursed by the company.
Incursions by Chinese armed uniformed personnel into Hong Kong waters
3. MR HENRY TANG asked: With reference to the recent incident in which Hong Kong Marine Police Officers were threatened by armed uniformed mainland security officials in Hong Kong waters, will the Government inform this Council:
HONG KONG LEGISLATIVE COUNCIL — 4 December 1991 879
(a) whether any guidelines will be given to Hong Kong Marine Police Officers to handle similar circumstances when their personal safety is threatened;
(b) whether it is aware of the frequency of patrol in our waters by the Royal Navy to ensure the integrity of the Hong Kong territorial boundaries; and
(c) what actions will be taken to ensure that such incidents will not happen again?
SECRETARY FOR SECURITY: Mr Deputy President, I should like to preface my reply with a statement on the incident to which Mr TANG refers, which took place on 19 November.
That evening three police vessels and a number of police on land were involved in an anti-smuggling operation at the ash lagoon at Nim Wan in Deep Bay. At about 10.30 pm a wooden vessel was seen to leave the ash lagoon. When the police went to intercept it, a sampan interposed itself between the police vessels and the wooden vessel. All three crew on the sampan were wearing green uniform, two with gold stripes on the sleeves. One pointed a Type 56 rifle at the police. Another pointed a pistol. The police observed that one of the two crew on the wooden vessel was also a man in uniform carrying a Type 56 rifle. The sampan and the wooden vessel headed in the direction of She Hau. The police followed. At this point a white speedboat with a red stripe appeared. It had four crew, all in uniform, three carrying Type 56 rifles which they pointed at the police. The three boats then passed into Chinese waters and were seen to dock at the She Hau hydrofoil pier at about 10.40 pm.
We have raised this incident with both the New China News Agency and the Guangdong Foreign Affairs Bureau, and also with the Chinese Ministry of Foreign Affairs through the British Embassy in Peking. We have expressed our concern that people who appeared to be Chinese security personnel had been operating well inside Hong Kong waters. The Chinese authorities have not yet replied, and we await the outcome of their investigations.
Turning now to the question, the Marine Police have comprehensive orders on how to handle such situations. All officers are trained in the use of force where personal safety is threatened. Operational commanders are fully aware of the potential dangers posed and take precautions to ensure that risks are minimized. The problem of incursions by armed intruders is not new to the Marine Police, and they are experienced in handling such incidents.
The Royal Navy conducts regular patrols of the 50 mile square boundary to demonstrate sovereignty and to ensure the integrity of Hong Kong's territorial boundaries.
880 HONG KONG LEGISLATIVE COUNCIL — 4 December 1991
It is impossible to ensure that incursions will not take place in future. But we have made our concerns known very clearly to the Chinese authorities. The Chinese have assured us that they do not seek to exercise jurisdiction in Hong Kong waters and that they are firmly opposed to all smuggling activity.
MR HENRY TANG: Mr Deputy President, as the problem of incursion by armed intruders wearing uniform is not new to the Marine Police, would the Administration inform this Council how the Marine Police can, if their orders are to abandon their pursuit when their personal safety is threatened, be reasonably expected to carry out their duties; and whether the Royal Navy will step up their patrols to aid the Marine Police in carrying out their duties in view of the $1.7 billion that we will be paying to the British Forces for their services in the coming year?
DEPUTY PRESIDENT: Secretary for Security, the last part of that question is one you need not address.
SECRETARY FOR SECURITY: Very well, Mr Deputy President. I think I should say first that I did not say, in my answer, that the orders or the practice of the Marine Police is to withdraw in the case of any such incident. That is not the case. But the Marine Police do have to be conscious of the need not to escalate a minor incident into a major incident which threatens lives. Where possible, if people are engaged in criminal activity in Hong Kong, they would attempt to make an arrest, but in some cases discretion is the better course of action, as it was in this case. I think I have indicated in my answer that the Royal Navy is indeed involved very closely in anti-smuggling activities; it has regular patrols. I think I can say that the Navy has of course taken note of the area in which this and a number of other recent incidents have occurred and its patrolling activity and its deployment have been adjusted accordingly.
MR HENRY TANG: Mr Deputy President, if I may clarify one of the answers, please? DEPUTY PRESIDENT: Yes, Mr TANG.
MR HENRY TANG: It appears to me that the Secretary for Security is happy with the services that we are getting from the Royal Navy. Is that what he is saying?
SECRETARY FOR SECURITY: Yes, Mr Deputy President, we believe that the Royal Navy is doing a great deal to assist us in anti-smuggling operations.
HONG KONG LEGISLATIVE COUNCIL — 4 December 1991 881
MR CHEUNG MAN-KWONG (in Cantonese): Mr Deputy President, from a historical point of view, the sovereignty of Hong Kong belongs to China, not the United Kingdom which has only the right of administration over Hong Kong. The Secretary has mentioned in his answer to the Honourable Henry TANG that the Royal Navy conducts regular patrols in the territorial waters to demonstrate sovereignty over Hong Kong. But could I ask whether "sovereignty" is the appropriate word; if not, would the Secretary agree to change it to "the right of administration"?
DEPUTY PRESIDENT: The question is out of order, Mr CHEUNG.
MRS RITA FAN: Mr Deputy President, is the Secretary for Security aware that on 28 November 1991, the police officer responsible for briefing the OMELCO Security Panel on this incident said that it was too dark to identify the number of people on the boats involved, and that he could not confirm that guns were pointed at our Marine Police? Can the Secretary explain why in less than one week's time, the whole incident can be described in such clarity? In other words, Mr Deputy President, where has the light come from that things which were too dark to see then can now be seen?
SECRETARY FOR SECURITY: Mr Deputy President, I regret that the police officer who attended OMELCO was actually attending for a different item and was not very familiar with this, as I think he explained at the time. He simply did not have the full facts with him. But on a point of clarification, what the officer told the panel — and where there may possibly be some misunderstanding — was that it was too dark for the officers to see whether there was a number painted on the side of the boat. That may have, perhaps, been expressed in a way that was ambigious and has given people to understand that he said it was too dark to identify the number of people on board; but that is not what he intended to say.
MISS EMILY LAU (in Cantonese): Mr Deputy President, could the Secretary inform this Council of the number of incursions by mainland security officials into Hong Kong waters during the last three years? Has the Hong Kong or the United Kingdom Government ever complained about this with the Chinese Government and informed it of the grave concern of the people of Hong Kong with regard to these incursions? What explanations have been given by the Chinese Government as to these repeated incursions by their security officials?
SECRETARY FOR SECURITY: Mr Deputy President, I cannot, I am afraid, give figures for the whole of the last three years but I can perhaps answer for a more recent period. Between June 1990 and October this year, we had six similar incidents of marine incursions; we raised them all with the Chinese.
882 HONG KONG LEGISLATIVE COUNCIL — 4 December 1991
Since October this year, that is, in the last six or seven weeks, we have had to raise seven incidents with the Chinese. In two of these incidents, one on 8 November and the other on 19 November which I gave an account of, guns were pointed at the police. But I am afraid I do not have with me further details of these incidents.
MR LAU CHIN-SHEK (in Cantonese): Mr Deputy President, the Secretary told us in the fourth paragraph of his main reply that "the problem of incursions by armed intruders is not new to the Marine Police". Could I ask who these intruders are?
SECRETARY FOR SECURITY: Mr Deputy President, I was simply referring to intrusions by Chinese security vessels on which there were armed personnel.
MR MAN SAI-CHEONG (in Cantonese): Mr Deputy President, given that Hong Kong has entered the latter half of the transition period, would the Secretary inform this Council whether there are frequent communications and contacts between the Royal Navy or the Police Force and the Chinese security authorities; and if so, what levels of contacts are made with particular regard to those relating to Hong Kong territorial waters?
SECRETARY FOR SECURITY: Yes, Mr Deputy President, there are well established channels for the police to liaise with their counterparts on the other side of the border. These cross-border liaison arrangements take place at various levels, from the Commissioner of Police downwards. These incidents have also been raised with the Chinese security authorities through the normal cross-border arrangements as well as, as I said, through the NCNA and through the British Embassy in Peking.
Written answers to questions
Secondary school places in Yuen Long
4. MR NG MING-YUM asked: Will the Government inform this Council:
(a) of the provision of and demand for secondary school places in Yuen Long in the past decade;
(b) of the number of government and subsidized secondary schools in Yuen Long at present; the number of schools with floating classes and the manner in which these floating classes are distributed;
HONG KONG LEGISLATIVE COUNCIL — 4 December 1991 883
(c) of the estimated demand for secondary school places in Yuen Long in the next decade;
(d) of the number of new secondary school premises to be built in Yuen Long in each of the next 10 years and the total number of school places to be provided by these schools;
(e) of the measures that will be taken to ensure that there will not be an imbalance in the provision of and demand for secondary school places in Yuen Long in the next decade;
(f) of the way in which surplus school places may be put to better use; and
(g) of the remedial measures that will be taken to ensure an adequate provision of school places?
SECRETARY FOR EDUCATION AND MANPOWER: Mr Deputy President, the answers are as follows:
(a) The provision of secondary school places and the demand for Secondary I (S1) places in Yuen Long are given below. The demand figures are actual Secondary School Places Allocation figures.
Provision of
Year
Demand for S1 places
Provision of S1 places
sec sch places (S1-S7)
1982 3 817 2 458 13 118 1983 3 726 2 540 12 986 1984 3 779 3 008 13 733 1985 3 668 3 248 14 947 1986 3 707 3 784 16 311 1987 3 644 3 976 17 076 1988 3 568 3 806 17 293 1989 3 497 4 043 17 555 1990 3 471 4 554 18 530 1991 3 557 4 565 20 174
(b) At present there are four government secondary schools and 13 aided secondary schools in Yuen Long. In spite of the apparent over-supply of places at S1 level, all of these schools have or will have floating classes. These help to make up for the shortfall of places in Tuen Mun. The existing practice is that an old standard design secondary school (with 24 classrooms and 12 special rooms) can operate a maximum of 30 classes (including up to six floating classes) while a new standard-design secondary school (with 26
884 HONG KONG LEGISLATIVE COUNCIL — 4 December 1991
classrooms and 14 special rooms) can operate a maximum of 30 classes (including up to four floating classes), if the need arises.
(c) It is not possible to give the estimated demand for secondary school places in Yuen Long in the next decade, since demand figures are calculated for the territory as a whole and not for individual districts. The Government's policy is to provide secondary school places up to the approved targets on a territory-wide basis.
(d) At present, the government plans to build nine secondary schools and one prevocational school in Yuen Long, almost all in Tin Shui Wai, in the next decade. The total number of places provided by these schools will be 11 600. The details are as follows:
Public Works
Programme Project No. Area
Expected year of completion
School places provided
96 ES Area 5,
Tin Shui Wai
96 ES Area 5,
Tin Shui Wai
97 ES Area 8,
Tin Shui Wai
124 ES Area 16,
Tin Shui Wai
124 ES Area 16,
Tin Shui Wai
(Priv Arch) Area 6,
Yuen Long
(Priv Arch)* Area 2,
Tin Shui Wai
NO8 ES Area 11,
Tin Shui Wai
61 ES Area 27,
Tin Shui Wai
111 ES Area 24,
Tin Shui Wai
* Prevocational school
1992-93 1 160 1992-93 1 160 1992-93 1 160 1992-93 1 160 1992-93 1 160 1992-93 1 160 1993-94 1 160 1994-95 1 160 1995-96 1 160 1995-96 1 160
HONG KONG LEGISLATIVE COUNCIL — 4 December 1991 885
(e) The school building programme is closely monitored to ensure that the total number of school places in the territory as a whole is adequate to meet the demand of all districts at all times. Every effort is made to minimize district imbalances by siting new schools in areas where they are needed or by adjusting the school nets for the allocation of secondary school places. However, it is not possible to achieve a complete balance of supply and demand in each individual district due to frequent demographic changes.
(f) Floating classes will be reduced.
(g) In addition to the above, one of the measures being taken by the Education Department to cope with high demand is to advise schools to operate more lower form classes at the initial stage by adopting the 8-8-8-4-4 class structure. Other measures may include advanced opening of new schools in borrowed or shared premises.
Corruption in schools
5. MR TIK CHI-YUEN asked: Will the Government inform this Council:
(a) whether the Education Department has completed its study on the elimination of possible opportunities for corruption in schools;
(b) if so, what recommendations have been made; and when and how the concerned authorities will implement those recommendations; and
(c) if not, when the study will be completed?
SECRETARY FOR EDUCATION AND MANPOWER: Mr Deputy President, I believe Mr TIK is referring to the review carried out by the Independent Commission Against Corruption (ICAC) on how schools select textbooks. The review has been completed. It also covers the acceptance of donations from publishers and other schools' suppliers.
The ICAC has made the following recommendations aimed at tightening control on the selection of textbooks and acceptance of donations:
(a) The Education Department (ED) should issue guidelines to schools, which should be promulgated to all teachers as well, to formalize the textbook selection procedures that involve subject teachers;
(b) ED should advise sponsoring bodies that they should discontinue the practice of using the same set of textbooks for all their schools, and that individual schools should adopt formal procedures for selecting
886 HONG KONG LEGISLATIVE COUNCIL — 4 December 1991
textbooks which best suit their pupils' interests, with the individual school management committees assuming a monitoring role;
(c) ED should advise school management committees that they should themselves decide whether or not to accept donations from publishers or school's suppliers, rather than delegate that authority to the school head;
(d) ED should take steps actively to enforce the requirement under the Codes of Aid for schools to report donations to the Department on a quarterly basis; and
(e) ED should actively encourage schools to lay down in writing their anti-corruption policy, setting out the types of advantages and the circumstances under which staff may or may not accept them.
The Director of Education has accepted these recommendations and a school circular will be issued in January to advise schools of their implementation.
Independent members on the Kowloon Walled City Clearance Assessment Review Board
6. MR ERIC LI asked: In 1988, Hong Kong Society of Accountants nominated 14 senior members from its members, upon the invitation from Housing Authority, to assist the Assessment Review Board of the Special Committee on Clearance of Kowloon Walled City in the capacity of independent professionals by reviewing controversial cases relating to removal compensation. May the Government inform the Council:
(1) Whether the Government has referred the controversial cases relating to compensation amount to these independent professionals for their assessment?
(2) If yes, how many referred cases and what is the outcome?
(3) How does the Government inform the residents of this fair review service? (4) Is the Government prepared to give wider publicity to this service?
SECRETARY FOR HOME AFFAIRS: Mr Deputy President, before I answer the Honourable Member's question, I feel that I should explain the background to the Assessment Review Board.
HONG KONG LEGISLATIVE COUNCIL — 4 December 1991 887
The Assessment Review Board was set up by the Special Committee on Clearance of Kowloon Walled City in 1987 as an administrative body to consider matters relating to compensation offers. The Board may be convened at the request of either the Government Land Agent/Special Duties or a Kowloon Walled City resident, having regard to the Rules of Assessment. In particular the Review Board may consider:
(a) whether the offer made by the Government Land Agent/Special Duties to the resident is fair; and
(b) should the Board consider the offer not to be fair to determine the amount regarded as fair by the Board, and to give reasons for that decision.
The Hong Kong Society of Accountants, the Royal Institution of Chartered Surveyors (Hong Kong Branch) and the Hong Kong Institute of Surveyors were all invited to nominate members to sit on the Board. These professional organizations nominated a number of members; Hong Kong Society of Accountants 13, the Royal Institute of Chartered Surveyors (Hong Kong Branch) and the Hong Kong Institute of Surveyors together nominated 20. The Board comprises a non-official chairman who is also a member of the Special Committee and at least two members drawn from the list of people nominated by the organizations.
Compensation offers are made by the Government Land Agent/Special Duties. He has not so far applied for any outstanding compensation cases to be heard by the Board. All Walled City residents have been informed of the availability of the Board and they are aware that they can make an application to the Board if they wish.
Since the inception of the Assessment Review Board, one case of appeal against the adequacy of Government's compensation offer has been heard at the request of a Walled City resident. The Board decided that the compensation offered by the Government was reasonable. Two appeal cases have recently been submitted to the Board by residents. Arrangements for the Board to meet to consider the appeals are being finalized.
The establishment of the Assessment Review Board was widely publicized through the media in 1987. Its terms of reference were set out in a special pamphlet on compensation and rehousing arrangements distributed to Walled City residents. Residents were further reminded of the availability of this avenue of appeal in the compensation offer letters and during meetings with officers of the Buildings and Lands Department.
More recently, letters were issued to Phase I residents who had not accepted Government's compensation and/or rehousing offers to urge them to submit appeals to the Assessment Review Board and to advise them to do so by 28 January 1992.
888 HONG KONG LEGISLATIVE COUNCIL — 4 December 1991
The Special Duties Office will continue to take every opportunity in future, through direct contact and the media, to remind Walled City residents of the availability of the Assessment Review Board as an avenue of appeal.
Law Reform Commission reviews
7. MISS EMILY LAU asked: Will the Government inform this Council:
(a) how many topics in law the Law Reform Commission (LRC) has reviewed in the past five years and what the length of time the LRC took to review each topic was;
(b) how many topics are waiting to be reviewed by the LRC; and
(c) if the Administration has plans to speed up the work of the LRC or even adopt a different method of law reform?
ATTORNEY GENERAL: (a) Since 1986 the Law Reform Commission has completed the review of 11 topics. The average length of time taken to complete a review was three years eight months per topic.
(b) Eight topics are currently being reviewed by the Commission. The review of two further topics which have been referred to the Commission will receive attention as soon as manpower resources permit.
(c) The average length of time taken to review a topic of three years eight months is considered acceptable. The Commission, with the aim of producing reports in a shorter time, has recently initiated a fast track" procedure for shorter and less complex topics which do not require the assistance of an expert sub-committee. It is anticipated that this new procedure will further enhance the Commission's average review time.
Social welfare commitments
8. MR FRED LI asked: Will the Government inform this Council:
(a) What commitments have been made in the past 10 years to improve social welfare services and what the financial resources required for each are;
(b) what progress has been made in implementing each of those services; and
HONG KONG LEGISLATIVE COUNCIL — 4 December 1991 889
(c) what concrete plans and time-frames there are in the next five years to meet the commitments set out in the White Paper on Social Welfare into the 1990s and Beyond?
SECRETARY FOR HEALTH AND WELFARE: The development of social welfare services in the past 10 years was guided by the 1979 White Paper on Social Welfare into the 1980s which set out broad principles and priorities.
Annual provision targets during the past 10 years were set out in the Social Welfare Five-Year Development Plans which dealt with specific programmes of development.
The 1979 White Paper made certain financial projections for the period from 1981-82 to 1986-87. However, meaningful comparison of actual developments against these figures is not possible because of the considerable changes in the nature, scope and delivery of services during these years. Consequently, achievements over the last decade could only be measured by a comparison of actual expenditure for 1981-82 with the estimated expenditure for 1991-92.
The principal objectives for each broad service area, the progress achieved during the period from 1981-82 to 1991-92 in terms of places/clients/centres and the relevant financial comparisons are set out in the paragraphs below. The main service areas described below are:
(a) family and child care services;
(b) probation and correctional services;
(c) services for children and youth;
(d) services for the elderly;
(e) social security; and
(f) services for the disabled.
Family and child care services
The policy commitments for family and child care services as set out in the 1979 White Paper were:
(a) to provide a comprehensive Family Life Education programme;
(b) to formulate policy guidelines on home help;
(c) to review the Child Care Centres Ordinance (Cap 243) and Regulations; (d) to review the overall relationship between child care centres and kindergartens;
890 HONG KONG LEGISLATIVE COUNCIL — 4 December 1991 (e) to review the adequacy of residential care for children; and
(f) to review the procedures for adoption cases.
The progress made during the period is summarized below:
(a) Family life education
The number of Family Life Education Officers have increased from 17 in 1981 to 59 in 1991.
(b) Home help service
In 1982, a unified home help policy was introduced, which included services for the elderly, the disabled, and social need cases. In order to improve management and co-ordination of service, home helpers have been deployed to districts and operated on a team basis since 1983. The number of home help teams have increased from 23 in 1983 to 60 in 1991. Following a review in 1988, a flexible caseload of 60-70 cases for each home help team was introduced in 1990. Home help service during holidays and a family aide service were implemented in 1991. A demand study was completed in 1989.
(c) Child Care Centres Ordinance and Regulations
A number of reviews of the legislation were made. The Child Care Centres Ordinance and Regulations were amended in 1980, 1982, 1983 and 1986 respectively to establish improved standards in respect of staff to children ratios, space requirements and minimum academic qualifications and experience of child care staff. Another major review of the Ordinance and Regulations has recently been completed by the Social Welfare Department in consultation with non governmental organizations. Amendments to the legislation will be introduced to control child-minders, and to increase the level of penalties as a deterrent on the advice of the Social Welfare Advisory Committee.
(d) Child Care Centres and kindergartens
A Working Party was formed to study primary education and pre-primary services. A White Paper on Primary Education and Pre-primary Services was published in July 1981. Following the recommendations of the White Paper, a Fee Assistance Scheme has been implemented since September 1982 for low-income families who have a social need to place their children in day nurseries for whole day care. An assessment of the demand for child care and kindergarten services was made. A Working Party on
HONG KONG LEGISLATIVE COUNCIL — 4 December 1991 891
Kindergarten Education has been formed and will advise Government on the practicability of unifying all pre-primary services.
(e) Residential care for children
Reviews on the adequacy of residential care services for children were carried in the past 10 years by three Working Groups. The principles of residential care, staffing standards for various residential facilities and the expansion of non institutional facilities in the form of small group homes and foster care were confirmed. The Residential Child Care Services Development Committee, which was reconvened in July 1991, will review service provision and recommend ways to improve the service.
(f) Adoption
A review of the adoption service was carried out, and significant improvements were made. Improvements included amendments to the Adoption Ordinance (Cap. 290), the streamlining of adoption procedures, the establishment of a monitoring system, the centralization of pre-adoption services, increased publicity and the arrangement of foster care placements for special needs children awaiting overseas adoption. These measures have enhanced the efficiency of the services provided and reduced processing time significantly.
A comparison of the provisions in this service area between 1981-82 and 1991-92 is as follows:
Programme Unit Family and child care
I. Family services
1981-82 Provision
1991-92
Provision Increase
1. Caseworkers Social worker
251 428 177
2. Family life Education
workers
3. Clinical
psychologists
Social
worker
Clinical
psychologist
19 59 42 7 13 6
(1984-85 figure)
892 HONG KONG LEGISLATIVE COUNCIL — 4 December 1991
Programme Unit
1981-82 Provision
1991-92
Provision Increase
4. Home help teams Worker 30 512 482
5. Family aide
services
6. Temporary shelter/urban hostels/day
relief facilities
for street
sleepers
Worker 0 4 4 Centre 0 2 2
7. Medical social work units
II. Day Care Services
Unit *86
*This is the
figure for 1983-
84, the year in
which units were
taken over by
SWD.
105 19
1. Aided day
nursery places
2. Day creche
places
III. Residential Care Services
Place 10 093 21 249 11 156 Place 913 1 000 83
1. Forster care Place 70 240 170
2. Small group homes
3. Children homes, homes/hostels
for boys/girls
and half-way
houses
Home 3 17 14 Place 1 516 1 608 92
Financial provision $123M $571M $448M (+364%)
HONG KONG LEGISLATIVE COUNCIL — 4 December 1991 893 Probation and correctional services
The policy commitments for probation and correctional services as set out in the 1979 White Paper were:
(a) to strengthen the probation service;
(b) to establish more institutional facilities; and
(c) to expand aftercare service, the Volunteer Scheme for Probationers, and probation reporting centres.
The following measures have been made to improve probation and correctional services:
(a) Probation service
(i) A new community-based probation service, the Community Service Order Scheme, was established in 1987. The Scheme has proved to be very effective.
(ii) The probation service was strengthened with 20 additional probation officers.
(iii) Services for the courts have been improved by the establishment of the High Court probation office, with an improved manning scale.
(iv) Two new probation offices were established at Shatin and Tuen Mun. Eight of the 11 probation offices are now located at district/regional social welfare offices or multi-service premises, which provide a stigma-free environment. One reporting centre and 11 sub-offices are available for easy access by clients.
(v) The Volunteer Scheme for Probationers was extended to serve residents in institutions.
(b) Institutional facilities
(i) Three new homes have been established after a study of the use of the institutions by an overseas consultant in 1981.
(ii) The residential training programme was improved by the introduction of qualified teachers into the homes to strengthen the quality of education.
(iii) Aftercare service has been streamlined for dischargees of reformatory schools. For ex-prisoners, two half-way houses for those with mental illness (one newly established and one converted
894 HONG KONG LEGISLATIVE COUNCIL — 4 December 1991
from an existing hostel) were established in the 1980s. The manning scale for counselling services for ex-prisoners was improved in the 1980s bringing the caseload per worker to 1:90.
(iv) To ensure that the most appropriate rehabilitation programme could be provided to young offenders, a Young Offender Assessment Panel was established in 1987 jointly by the Social Welfare Department and the Correctional Services Department to advise magistrates before sentencing.
A comparison of the provisions in this service area between 1981-82 and 1991-92 is as follows:
Programme Unit Offenders
1981-82 Provision
1991-92
Provision Increase
1. Probation Officers
Social worker
80 100 20
2. Residential institutions for
juvenile
delinquents
Homes 5 8 3
3. Aftercare
services for
ex-prisoners
4. Support services for offenders
Social
worker
Hostels/ half-way Houses
19 23 4 12 15 3
Financial provision $26M $108M $82M (+315%)
Services for children and youth
The policy commitments for services for children and youth as set out in the 1979 White Paper were:
(a) to provide centres for children and young people at the rate of 11 children centres and 11 youth centres each year;
(b) to expand school social work to cover all secondary schools; and
HONG KONG LEGISLATIVE COUNCIL — 4 December 1991 895 (c) to expand outreaching social work to help youths at risk.
These commitments have on the whole been achieved. A comparison of the provisions in this service area between 1981-82 to 1991-92 is as follows:
Programme Unit Services for young people
1981-82 Provision
1991-92
Provision Increase
Single and combined Children and Youth Centres
Centre 247 416 169
School social work Social worker
120 150 30
Outreaching social work
Team 20 24 4
Financial provision $26M $422M $396M (+1523%)
Services for the elderly
The policy commitments for elderly services as set out in the 1979 White Paper were:
(a) to provide support services for elderly persons to enable them to remain in the community for as long as possible; and
(b) to the extent necessary, to provide residential care suited to their varying needs. The specific areas of expansion in community support and residential services were: (a) to provide 1 600 additional home for the aged places by 1982-83;
(b) to provide four care-and-attention home places for every 1 000 population aged 60 and over;
(c) to provide multi-service centres on a district basis with a view to providing a minimum of 17 such centres over the whole territory;
(d) to provide day care centres on an experimental basis with a view to further developing such facilities; and
896 HONG KONG LEGISLATIVE COUNCIL — 4 December 1991
(e) to provide an additional 117 social centres and to achieve a target of one centre for every 20 000 of the population.
Satisfactory progress has been made in the past 10 years in achieving these targets.
A comparison of the provisions in this service area between 1981-82 and 1991-92 is as follows:
Programme Unit Elderly services
1981-82 Provision
1991-92
Provision Increase
Homes for the aged Place 3 760 7 490 3 730
Care and attention Homes
Place 375 3 702 3 327
Bought Place Scheme Place - 500 500
Infirmary units in care and attention homes
Place - 360 360
Multi-service centres Centre 7 17 10 Day care centres Centre 2 11 9 Social centres Centre 68 165 97
Financial provision $20M $353M $333M (+1665%)
Social security
In the 1979 White Paper, it was stated that help should be concentrated on those least able to help themselves. While the overall public assistance framework remained appropriate, it was considered that improvements should be made. Significant progress has been made in the past 10 years to improve the social security system. In addition to the old age supplement, a disability supplement was introduced in April 1980 under the Public Assistance Scheme.
The Special Needs Allowance Scheme (including Old Age Allowance and Disability Allowance) has continued to be based on need established by reference to the circumstances of the individual and not by reference to low income.
HONG KONG LEGISLATIVE COUNCIL — 4 December 1991 897
Accident compensation (Emergency Relief Fund and Criminal and Law Enforcement Injuries Compensation Scheme) has been developed to help those who suffer from natural disasters or accidents. It is designed to tide a family over a serious and unforeseen setback, and is not intended to provide long-term support. In May 1979, a Traffic Accident Victims Assistance Scheme was added to the Accident Compensation Schemes.
To improve the social security system, the following major items were introduced during this period:
Item Implementation Date
(a) Public Assistance Scheme
(i) Revision of payment
rates
(ii) Meal allowance for
full-day students
(iii) Special one-off grant
for new born babies
(iv) Special one-off grant
for young persons
taking up a first job
after leaving school
(b) Special Needs Allowance Scheme
(i) Revision of payment
rates
seven times since 1981 1 January 1988
August 1988
1 August 1989
seven times since 1981
(ii) A higher rate of DA 1 April 1988 for those aged 60+ 1 April 1989 for those aged 16+
1 April 1990 for all ages
(iii) A higher rate of OAA for those aged 70+
(iv) Extension of OAA to the 65-69 age groups
1 April 1988
1 September 1988 for those aged 68-69
1 April 1989 for those aged 67+ 1 April 1990 for those aged 66+ 1 April 1991 for those aged 65+
898 HONG KONG LEGISLATIVE COUNCIL — 4 December 1991
A comparison of the provisions in this service area between 1981-82 and 1991-92 is as follows:
Programme Unit Social security
1981-82 Provision
1991-92
Provision Increase
Public assistance Case 46 600 70 400 23 800
Public Assistance (child supplement introduced in
November 1991)
Person - 22 700 22 700
Old Age Allowance Case 159 300 416 100 256 800 Disability Allowance Case 28 900 69 100 40 200
Criminal and Law Enforcment Injury Compensation
Traffic Accident Victim Assistance
Case 450 830 380 Case 4 720 5 900 1 180
Financial provision $798M $3,554M $2,756M (+345%)
Services for the disabled
In respect of social welfare services for the disabled, the Social Welfare Department is guided by the 1977 White Paper on Rehabilitation, "Integrating the Disabled into the Community: A United Effort".
The White Paper encourages the integration of children with minor disabilities in ordinary nurseries and the provision of special pre-school training facilities to disabled children. At the same time, both day and residential facilities for the disabled are to be expanded.
The objectives of the Rehabilitation White Paper include:
(a) to increase the number of sheltered workshop places to 2 600;
(b) to increase the number of half-way house places to 386 by 1984; and
HONG KONG LEGISLATIVE COUNCIL — 4 December 1991 899
(c) to increase the number of different types of residential facilities for disabled persons from 1 260 to 3 400 by 1985-86.
Satisfactory progress has been made in the past ten years in achieving these targets.
A comparison of the provisions in this service area between 1981-82 and 1991-92 is as follows:
Programme
1981-82 Provision (Places)
1991-92 Provision (Places)
Increase (Places)
(a) Intergrated programme in Child Care Centres
(b) Special Child Care Centres
(c) Early Education and Training Centres
180 676 496 291 987 696 60 845 785
(d) Day Activity Centres 248 1 773 1 525 (e) Sheltered Workshops 995 4 095 3 100
(f) Hostels for the
moderately mentally
handicapped
(g) Hostels for the severely mentally handicapped
(h) Hostels for the
physically handicapped
(i) Half-way houses for discharged mentally ill persons
208 896 688
120 796 676 84 257 173 80 809 729
(j) Long stay care home - 200 200
Financial provision for rehabilitation services
$43M $398M $355M (+826%)
Appendix F in the 1991 White Paper on Social Welfare into the 1990s and Beyond sets out the target provision by 1995-96 of the various major commitments. Government has already introduced the Child Supplement under
900 HONG KONG LEGISLATIVE COUNCIL — 4 December 1991
the Public Assistance Scheme in 1991-92. Implementation of other items will be carried out as and when manpower and financial resources permit. The information is shown below:
Family and child care services
Item
I. Family services
1. Additional caseworkers to meet increase in demand
(1:70 cases)
2. Creating the posts of senior
Provision
In
1991-92
(428)
social workers
Additional Provision by 1995-96
+160
(588)
+31
practitioners (0)
social workers
3. Additional family life
(31) +15
education workers to meet an improved planning ratio of 1:50 000 target population
4. Additional clinical
psychologists to meet
increase in demand
5. Additional home help teams
6. Expansion of family aide services
7. Extending temporary shelter/urban hostels/day
relief facilities for street
sleepers
8. Additional medical social workers to meet increase in demand
(59)
social workers
(13)
clinical psychologists
(64)
teams
(4)
workers
(2)
centres
(235)
social workers
(74)
+16
(29)
+44
(108)
+31
(35)
+4
(6)
+201 (436)
Note: Figures in brackets denote the total provision in that year.
HONG KONG LEGISLATIVE COUNCIL — 4 December 1991 901
Item
II. Day care services
1. Expansion of aided day
Provision In
1991-92
Additional Provision by 1995-96
+5 600
nursery places (21 249)
aided places
2. Expansion of day creche
places (1 000)
subvented places
III. Residential care services
1. Expansion of foster care
places (220)
places
2. Additional small group
homes (17)
homes
3. Additional places in
(26 849)
+1 000 (2 000)
+280
(500)
+42
(59)
+170
children's homes,
homes/hostels for boys/girls
and half-way houses
Probation and correctional services
Item
1. Additional social workers for aftercare services for ex-prisoners to meet increase in demand
2. Additional probation officers to
(1 608)
places
Provision
In
1991-92
(23)
social workers
(1 778)
Additional Provision by 1995-96
+16
(39)
+36
meet increase in demand (100) social workers
(136)
902 HONG KONG LEGISLATIVE COUNCIL — 4 December 1991 Services for children and youth
Item
I. School Social Work
Improvement of manning ratio (one school social worker to 2 000 student population)
II. Children and Youth Centres
Additional children and youth centres (Note 1)
(1) Children and youth centres (2) Children centres (Note 2) (3) Youth centres (Note 2)
III. Outreaching Social Work Additional outreaching teams
Provision
In
1991-92
(150)
social workers
(154)
centres
(52)
centres
(56)
centres
(24)
teams
Additional Provision by 1995-96
+78
(228)
+36
(190)
-12
(40)
-9
(47)
+4
(30)
Note 1: A combined children and youth centre is counted as two centre units. The number of children and youth centre units in 1991-92 will be 416 (154x2+52+56).
Note 2: The number of single children centres and youth centres show a decrease as some of these centres have been and will continue to be reprovisioned and turned into combined children and youth centres which are a preferred mode of service delivery.
HONG KONG LEGISLATIVE COUNCIL — 4 December 1991 903 Services for the elderly
Item
I. Residential services
1. Additional places in homes for the aged (10 places per 1
000 elderly people)
2. Additional places in care and attention homes (revised
planning ratio of 11 places
per 1 000 elderly people)
Provision In
1991-92
(7 490)
places
(3 702)
places
Additional Provision by 1995-96
+968
(8 458)
+4 095
(7 797)
3. Bought Place Scheme (500) places
4. Additional infirmary units in
(500) +12
care and attention homes
(one unit=20 places)
II. Community support services
1. Additional multi-service centres
(revised planning ratio of
one centre per 25 000
elderly people)
2. Additional day care
centres (revised planning
ratio of one centre per 25
000 elderly people)
3. Additional social centres (revised planning ratio of
one centre per 3 000
elderly people)
(18)
units
(17)
centres
(11)
centres (165)
(30)
+12
(29)
+19
(30)
+91
(256)
904 HONG KONG LEGISLATIVE COUNCIL — 4 December 1991
Remarks 1. The number of places required under items I1 and I2 may be reduced following the likely expansion of licensed private homes and self-financing homes.
2. There is correlation between items I2 and I3 — an increase in places under the Bought Place Scheme would mean a reduction in the demand for care and attention places.
Social security
Item
I. Public assistance
1. Projected increase in caseload 2. Introduction of a Child
Provision In
1991-92
(70 400) cases
Additional Provision by 1995-96
+7 800
(78 200)
+2 300
Supplement (22 700) persons
II. Old Age Allowances
1. Projected increase in caseload
(416 100)
persons
III. Disability Allowances
1. Projected increase in caseload
(69 100)
persons
IV. Accident Compensation Schemes
Meeting demand of new paid cases
1. CLEIC (Note 1) (830) cases
2. TAVA (Note 2) (5 900) cases
(25 000)
+85 100 (501 200)
+16 500 (85 600)
(830)
(5 900)
3. ERF (Note 3) - -
HONG KONG LEGISLATIVE COUNCIL — 4 December 1991 905
Note 1: CLEIC (Criminal and Law Enforcement Injuries Compensation Scheme) — the average number of new paid cases per year was 830 from 1986-87 to 1989-90. It is assumed it will remain constant.
Note 2: TAVA (Traffic Accident Victims Assistance Scheme) — the number of new paid cases per year is estimated to be constant at the 1989-90 level.
Note 3: ERF (Emergency Relief Fund) — it is difficult to make an accurate estimate of the number of cases for emergency relief payments, as the frequency of disasters and the number of victims involved will vary from year to year.
Support services
Item
Extension of standard cost subvention to services (excluding services under the community development and rehabilitation programmes)
Services for the disabled
Provision In
1991-92
(22)
services
Additional Provision by 1995-96
+6
(28)
A Working Party is reviewing rehabilitation policies and services and will produce a Green Paper shortly for public consultation. Plans for services for the disabled in the next five years are therefore not yet available.
Train noise assessment report
9. REV FUNG CHI-WOOD asked: Since public consultation on the Consultancy Report of Train Noise Assessment has yet to take place though the Report was finalized by the Kowloon-Canton Railway Corporation (KCRC) in July 1991, will the Government inform this Council:
(a) whether the KCRC will be asked to release the report; if not, what is the rationale; and
(b) what kind of consultation will be carried out to seek the views of the public towards the Report as well as the Corporation?
906 HONG KONG LEGISLATIVE COUNCIL — 4 December 1991
SECRETARY FOR TRANSPORT: Mr Deputy President, the first draft of the consultancy report was available in July 1991 but further studies of noise abatement measures are required. The final report is expected to be ready by the end of this year. When the report is available, the Administration will ask the Corporation to release it publicly.
As regards public consultation, after the Environmental Protection Department and the Corporation have worked out a programme to implement the noise mitigation measures, district boards will be consulted on their implementation.
CLP's Black Point project consultancy report
10. REV FUNG CHI-WOOD asked: Since the consultancy report on China Light and Power Company's new power plant project at Black Point has been submitted to the Administration and yet the contents of the report have never been made known to the public, will the Government inform this Council:
(a) why the report has not yet been released for public consultation; and
(b) when it will be available for public consultation and how the consultation will be conducted?
SECRETARY FOR ECONOMIC SERVICES: Mr Deputy President, in October this year, the Executive Council approved in principle reservation of a site of approximately 120 hectares (of which 86 hectares will be reclaimed from the sea) at Black Point, Tuen Mun for construction of a new large thermal power station. This decision was taken in the light of the recommendations in two studies.
The first study: a technical assessment of the proposals contained in China Light and Power's Generation Development Plan for the period 1990-1999 (undertaken with the assistance of overseas expert consultants) examined the Company's forecast of growth in demand for electricity during this period and the best development strategy for meeting this demand. On the basis of this study the Government is satisfied that in order to safeguard a reliable supply, it is necessary for CLP to construct a new large thermal power station some time in the latter half of this decade.
A second study was carried out to identify the most suitable site for the new power station. An initial list of 12 potential locations was short-listed based on the following considerations:
- engineering feasibility
- security of marine fuel supply
HONG KONG LEGISLATIVE COUNCIL — 4 December 1991 907
- security of the transmission system
- operational requirements
- environmental impact
- compatibility with Government planning; and
- costs.
Eventually, Black Point was chosen as the preferred site because it offers the lowest level of overall environmental impact, taking account of both the power station itself and the associated transmission links. The consultants recommended, however, that the cumulative air quality impact of the proposed station and the existing Castle Peak Power Station should be subject to further detailed assessment in a full environmental impact assessment.
As far as public consultation is concerned, it is not intended to publish the first study report as it contains commercially sensitive information supplied to Government by the Company on a confidential basis. Regarding the site search report, the Tuen Mun District Board and the Heung Yee Kuk have been consulted on the results of the study. Briefing documents on the principal findings of the site search study were also circulated to members of the New Territories district boards and Heung Yee Kuk for reference. These organizations will be consulted further in the course of the environmental impact assessment study which is currently in progress. A final decision on the construction of the power station will be taken when the environmental impact has been fully assessed.
Infrastructural facilities for Tseung Kwan O
11. MISS EMILY LAU asked: In view of complaints from residents of Tseung Kwan O that the Government appears to have gone back on its undertaking to provide key infrastructural facilities for the area, will the Government inform this Council:
(a) whether the plan to extend the Mass Transit Railway to Tseung Kwan O has been indefinitely shelved; if not, when construction will commence; and
(b) whether there are plans to build a regional hospital in the area and when construction will begin; in the meantime, what plans are in hand to upgrade existing medical services?
SECRETARY FOR PLANNING, ENVIRONMENT AND LANDS: Mr Deputy President, the plan to extend the Mass Transit Railway to Tseung Kwan O has not been shelved. Construction of the extension is likely to be justified on transport grounds when the population of the area reaches about 270 000, which will occur in 1999 according to the latest population projections. The timing and priority for the extension will be considered in the Railway Development
908 HONG KONG LEGISLATIVE COUNCIL — 4 December 1991
Study, along with other proposals for expanding the rail network. This study has just started and the results will be available by the end of 1992.
As regards the provision of a regional hospital in the area, a site has been reserved for a 60-bed district hospital in Area 32, Tseung Kwan O. Actual provision will, however, depend on the population growth in the district and their changing needs. Meanwhile, plans are in hand to redevelop the Haven of Hope Hospital into a 316-bed hospital providing services in acute, rehabilitation, tuberculosis, chest, hospice and convalescent care. The project is scheduled to start in 1992-93.
Air pollutants in Kwai Chung
12. MR LEE WING-TAT asked: In view of the high level of total suspended particulates and nitrogen dioxide among the air pollutants in Kwai Chung as indicated in the air pollution statistics for October recently published by the Administration, will the Government inform this Council of the following:
(i) the monthly variations in the above two types of pollutants in Kwai Chung District during the past year;
(ii) the main sources of these pollutants; and
(iii) the short-term and long-term measures adopted by the Government to lower the density of these pollutants?
SECRETARY FOR PLANNING, ENVIRONMENT AND LANDS: Mr Deputy President, with regard to question (i), the position is that, over the past two years, both Total Suspended Particulates (TSP) and Nitrogen Dioxide (NO2), as measured at the Kwai Chung Air Pollution Monitoring Station, have shown higher levels in the cooler winter months than in the hotter summer months, because of the higher capacity of the atmosphere in summer to disperse air pollutants. This is a territory-wide phenomenon, and the pattern found at Kwai Chung is entirely in line with what is seen elsewhere. Therefore, the increase in air pollutants noted in Kwai Chung in October is in line with past experience, and not a matter for grave concern.
A chart showing the monthly average concentrations of TSP and NO2 at Kwai Chung from January 1990 to October 1991 is on page 912.
Based on the results of monitoring so far this year, there is no danger that the annual average for NO2 will exceed the relevant Air Quality Objective (AQO). It is possible that the hourly AQO (300 (E017)g/m3 not to be exceeded more than three times in a year) may be exceeded, since the limit has already been exceeded twice this year (both occasions on 1 October, when it seems likely that some special factor was in operation). While we cannot be
HONG KONG LEGISLATIVE COUNCIL — 4 December 1991 909
complacent about this pollutant in Kwai Chung, the levels of NO2 in Kwai Chung are not a matter of grave concern. Proposals for improving controls over NO2 emissions discussed below should see the position with regard to NO2 emissions in Kwai Chung improve further over the next few years.
It is, however, likely that the AQO for TSP (80 (E017)g/m3) will be exceeded this year in Kwai Chung, by perhaps as much as 10%. This would reflect a pattern which has been common over the last four or five years, where the TSP rate has been steadily close to, or slightly above, the AQO. This is a problem which is common throughout the developed areas of Hong Kong. This TSP problem is a more serious concern than the NO2 rate.
The figures given in the table and in the published statistics are ambient figures, that is, they show the general background situation at an average down-town site. There are "blackspots" where levels of pollution are higher than those stated. A second table on page 911 shows the levels of NO2 and TSP at the worst of these blackspot areas in Kwai Chung. In these areas the incidence of TSP has dropped sharply, from far above the ambient levels, to levels similar to the general ambient figures during these last two years.
In response to question (ii), the predominant source of NO2 is the combustion of fuel oils in industrial plants, and motor vehicles of all types. TSP are predominantly emitted by:
(1) diesel vehicles, especially large diesel vehicles such as buses, container trucks, and lorries;
(2) construction activities, earth-moving, demolition, and so on;
(3) some manufacturing processes, especially those involving textiles.
Kwai Chung is a district which has a very high concentration of TSP-producing polluters — a heavy concentration of textile factories, the heaviest concentration of container trucks within Hong Kong, and a great deal of construction, particularly, in recent years, earthworks, cutting, and reclamation. As a major industrial area, it also has a high concentration of industrial fuel-oil plant.
In response to question (iii), the basic policy on control of these and other air pollutants is set out in the Government's White Paper on Pollution in Hong Kong, issued in June 1989, and reviewed in May 1991. This lists out the AQOs which represent what the Government considers to be the minimum level of acceptable air quality. Basic policy on air pollution is to bring the quality of the air within these parameters: where the air is within them, it is, by definition, acceptable.
910 HONG KONG LEGISLATIVE COUNCIL — 4 December 1991
Detailed policies on how to bring those areas of Hong Kong where the AQOs are not currently being met to an acceptable level, and to improve the situation elsewhere to ensure that those areas do not subsequently slip into an unacceptable state include:
(1) Implementation of the Air Pollution Control (Fuel Restrictions) Regulations in July 1990. These regulations not only restrict the permitted levels of sulphur in fuel, but also the viscosity of the fuel, resulting in a drop in emissions, not only of SO2, but also of NO2 and TSP. The improvements these Regulations have made are predominantly to blackspots. Following the implementation of the regulations, the quality of the air at the blackspots has improved very sharply, until, at present, there is little difference between the ambient and blackspot levels of these pollutants.
(2) Implementation of the smoky vehicle control programme. This allows smoky vehicles to be checked and action taken against. You will be aware that the Administration has already announced a significant improvement to this programme, with more testing centres operational, and a more stringent licence cancellation system for persistent offenders. This improved programme should start to show effects from early 1992.
(3) Implementation of the new Air Pollution Control (Vehicle Design Standards) (Emission) Regulations (from 1 January 1992). These will prohibit the licensing in Hong Kong of motor vehicles which do not meet the most advanced international standards of emission design. Newly licensed vehicles after 1 January 1992 will be built to designs which permit far fewer pollutants to be emitted than were possible with the less restrictive regulations previously in force.
(4) Consideration is being given to further statutory controls on motor vehicles, to improve yet further control on the maintenance and use of motor vehicles.
(5) Consideration is also being given to the development of measures to control dust from construction sites.
(6) Arising from experience over recent years, and partly in the context of the re writing of the Town Planning Ordinance, currently in hand, steps are being taken to ensure that, in the future, significant polluters (for example, factory buildings, or heavy generators of movements by heavy diesel vehicles such as bus depots or container parks) are not permitted to be built close to
HONG KONG LEGISLATIVE COUNCIL — 4 December 1991 911
sensitive receivers such as residential blocks, and that sensitive uses are not permitted to be built close to existing polluters. Many of our problems in Kwai Chung are due to relaxed procedures in the past allowing polluters and sensitive receivers to be built closer together than is desirable.
Kwai Chung is not dissimilar in its pollution characteristics from other developed areas such as Kwun Tong, Sham Shui Po or Cheung Sha Wan. The position with regard to NO2 and TSP in Kwai Chung is not considered to be any more — or any less — a matter for concern than the closely similar position in other major industrialized areas of Hong Kong. It will continue to be a matter of concern to the Administration, but it is not, and should not be, regarded as a problem of crisis proportions.
Po Sing Centre A Q Data
Pollutant
Ave. before (1) implementation of LSF regulations
Ave. after (2) implementation LSF regulations
Improvement %
TSP 180 96 46 NO 118 93 21 NO2(3) 39 44 (13)
Notes:
(1) Available monthly data of Oct 89 - June 90
(2) Available monthly data of Oct 90 - June 91
(3) The NO2 level fluctuates. There was marginal increase.
912 HONG KONG LEGISLATIVE COUNCIL — 4 December 1991
HONG KONG LEGISLATIVE COUNCIL — 4 December 1991 913 Deportation rule for foreign domestic helpers
13. MRS ELSIE TU asked: Will the Government inform this Council:
(a) whether the two-week rule for deportation of foreign domestic helpers is departmental policy or law; and
(b) whether the rule has been challenged in court for contravening Article 9 of the Bill of Rights; and if so, on how many occasions and what was the outcome of the cases?
SECRETARY FOR SECURITY: A foreign domestic helper is allowed to work in Hong Kong for a specific employer under an approved contract of employment. On arrival, she is permitted to stay in Hong Kong for 12 months or for two weeks after her contract is terminated, whichever is the earlier. At the end of the first year, she may apply for and be granted an extension of stay for another 12 months on the same conditions. The "two-week rule" is a condition of stay limiting the period during which a person may remain in Hong Kong after termination of her contract of employment. It was introduced in 1987 to control the movement of foreign domestic helpers between employers.
In practice, if a foreign domestic helper has a genuine reason for needing to remain in Hong Kong beyond the two weeks permitted, for example, if she is unfairly treated and her contract terminated prematurely, she may apply for an extension of stay in order to pursue a claim against her former employer. In such cases extensions of stay will normally be granted. The present rule has not been challenged in court for contravening the Bill of Rights. The rule was challenged in court in 1987 on the grounds that it was ultra vires the Immigration Ordinance; but the challenge was dismissed.
Crimes in Tuen Mun and Yuen Long
14. MR NG MING-YUM asked: Will the Government inform this Council of:
(1) the population of Tuen Mun and Yuen Long in the past nine years with a breakdown showing the age distribution;
(2) the annual figures of each category of crime for these two districts for the same period, and how do these figures compare with other districts in the territory;
914 HONG KONG LEGISLATIVE COUNCIL — 4 December 1991
(3) the measures that have been taken and the amount of manpower, support and financial resources that have been deployed to combat crime in Tuen Mun and Yuen Long in the past nine years; and
(4) the measures that will be introduced and the amount of manpower, support and financial resources that will be deployed in the foreseeable future to further improve the law and order situation in Tuen Mun and Yuen Long; and, if possible, what the details are?
SECRETARY FOR SECURITY: Mr Deputy President, the populations of Tuen Mun and Yuen Long Districts in 1981, 1986 and 1991, based on the census conducted by the Census and Statistics Department in each of those years are shown at Annex A. Accurate estimates for the intervening years are not available.
Crime statistics for the Tuen Mun and Yuen Long Districts, and for the territory as a whole, from 1982 to 1990 are shown at Annex B.
It is not possible to provide detailed costings of resources committed to combating crime in Tuen Mun and Yuen Long Districts in the past nine years. However, the numbers of police deployed in these two districts each year since 1983 are shown at Annex C.
The police are deploying as many police officers as possible in all districts to combat crime and maintain law and order. Since September this year, an additional Police Tactical Unit company of 160 men has been deployed to the New Territories to increase police presence on the streets. The police will continue to make every effort to ensure that adequate resources are provided in all districts, including Tuen Mun and Yuen Long, to maintain law and order.
Annex A
Population in Tuen Mun
Age 1981 1986 1991
0-4 16 732 33 642 29 749 5-9 15 958 43 519 40 635 10-14 9 501 27 146 44 540 15-19 10 285 15 624 28 903 20-24 10 279 18 452 20 194 25-29 12 641 30 534 34 253 30-34 12 275 36 519 45 205
HONG KONG LEGISLATIVE COUNCIL — 4 December 1991 915 Population in Tuen Mun (continued)
Age 1981 1986 1991
35-39 6 034 26 782 41 912 40-44 5 105 11 774 29 390 45-49 4 339 9 100 13 340 50-54 4 041 7 217 10 518 55-59 3 350 6 454 8 955 60-64 2 928 5 768 8 078 65-69 2 303 4 480 6 607 70-74 1 592 3 710 4 974 75+ 1 765 3 808 6 113
Total 119 128 284 529 373 366 Population in Yuen Long
Age 1981 1986 1991
0-4 18 290 20 013 18 736 5-9 17 365 17 437 21 607 10-14 19 561 17 577 17 290 15-19 24 360 18 949 16 574 20-24 21 614 23 464 17 596 25-29 15 990 23 296 24 937 30-34 11 603 16 800 25 201 35-39 6 901 11 627 17 892 40-44 7 470 7 539 12 260 45-49 8 279 8 484 7 681 50-54 8 996 9 534 8 101 55-59 7 683 9 569 8 811 60-64 6 166 8 232 8 713 65-69 4 968 6 069 7 261 70-74 3 463 4 543 5 114 75+ 3 902 6 258 7 504
Total 186 611 209 391 225 278
916 HONG KONG LEGISLATIVE COUNCIL — 4 December 1991
Annex B
Crimes for Tuen Mun District for 1982-1990
Selected Crimes 1982 1983 1984 1985 1986 1987 1988 1989 1990
Wounding and Serious Assault
129 173 194 220 279 297 314 334 362
Robbery 160 250 166 135 115 129 256 365 484 Burglary 302 472 544 465 389 503 534 633 655 Snatching 28 48 38 48 29 32 41 104 182 Pickpocketing 5 8 16 17 6 16 14 7 21 Shop Theft 73 115 117 230 232 396 399 410 436 Theft from Vehicle 332 350 304 230 242 307 319 348 343
Taking Conveyance without Authority
264 296 275 174 154 183 221 238 298
Miscellaneous Theft 440 525 403 453 412 414 418 551 655
Drug Trafficking Offence
Unlawful Society Offence
Possession of
Offensive Weapon and Arms
11 11 24 44 57 53 66 73 106 43 56 45 87 26 35 27 41 96 5 14 17 15 9 20 22 24 91
Others 334 622 643 580 684 824 812 1069 1430 Total Crimes 2126 2940 2786 2698 2634 3209 3443 4197 5159 Crimes for Yuen Long District for 1982-1990
Selected Crimes 1982 1983 1984 1985 1986 1987 1988 1989 1990
Wounding and Serious Assault
257 270 336 253 202 276 342 426 371
Robbery 238 303 212 109 145 153 255 337 273 Burglary 503 538 627 527 445 615 686 681 769 Snatching 54 104 67 48 45 28 62 58 65 Pickpocketing 9 22 20 9 10 12 21 6 10 Shop Theft 56 150 151 249 188 314 215 159 203 Theft from Vehicle 400 416 387 285 289 335 402 400 323
Taking Conveyance without Authority
301 351 260 141 149 225 305 333 398
Miscellaneous Theft 437 461 505 533 505 512 560 618 601
Drug Trafficking Offence
Unlawful Society Offence
Possession of
Offensive Weapon and Arms
126 108 112 201 168 236 206 298 161 48 24 50 123 32 50 60 218 129 29 31 39 36 24 28 34 67 60
Others 818 1312 869 1161 712 876 1180 1227 1235 Total Crimes 3276 3605 3635 3675 2914 3660 4328 4828 4598
HONG KONG LEGISLATIVE COUNCIL — 4 December 1991 917 Crimes for Whole Hong Kong for 1982-1990
Selected Crimes 1982 1983 1984 1985 1986 1987 1988 1989 1990
Wounding and Serious Assault
5762 5910 6112 5759 5678 6302 6206 6986 6695
Robbery 8548 8308 7245 6745 5372 5461 5705 6452 8029 Burglary 11526 11308 12663 13922 11942 10601 10749 10913 12701 Snatching 2177 2844 2447 2357 1843 1644 1364 1478 2024 Pickpocketing 2692 2902 2880 3036 3073 3329 1595 972 932 Shop Theft 2800 3985 3897 6382 6170 7077 5611 5140 5847
Theft from
Vehicle
Taking
Conveyance
without Authority
6426 6339 5048 4988 5028 5392 5216 5151 4607 6013 5542 4121 3149 2967 2980 3605 4476 6434
Miscellaneous Theft 14395 13841 13560 13612 13140 12326 12255 12397 12164
Drug Trafficking Offence
Unlawful Society Offence
Possession of
Offensive Weapon and Arms
2238 2790 2531 3549 4118 4143 5527 5040 3604 940 695 1058 1392 1055 963 908 1041 1084 449 706 596 569 580 588 638 857 1146
Others 20271 20830 21374 21384 20445 21122 19805 20905 23033 Total Crimes 84237 86000 83532 86944 81411 81928 79184 81808 88300
HONG KONG LEGISLATIVE COUNCIL — 4 December 1991
Establishment and Strength of Disciplined Staff
918
in the Tuen Mun Police District since 1983
1988 1987 1986 1985 19841983
S
E
S
E
S
E
S
E
S
E
S
E
Rank
1
1
1
1
1
1
1
1
1
1
1
1
Chief Super intendent of Police
1
1
1
1
1
1
1
1
1
1
1
1
Senior Super intendent of Police
4
4
4
3
3
3
3
3
3
3
2
3
Superintendent of
Police
7
7
7
7
6
6
6
6
6
6
3
6
Chief Inspector of
Police
2
25 23 26
20 20 20 20 16
15 14 1515
Senior Inspector/
Inspector of Police
2
21 25 19 28 18 23 14 16
12 15 12 14
Station Sergeant
7
66
70 71 75 67 64 53 61 53 63 51 63
Sergeant
38 385 363 380 385 322 316 337 316 329 314 282 297
Police Constable
52 510 494 509 520 438 434 435 420 420 417 367 400
Total
Legend
Establishment :
E
Strength :
S
HONG KONG LEGISLATIVE COUNCIL — 4 December 1991 Establishment and Strength of Disciplined Staff in the Yuen Long Police District since 1983
1988 1987 1986 1985 19841983
S
E
S
E
S
E
S
E
S
E
S
E
Rank
1
1
1
1
1
1
1
1
1
1
0
1
Chief Super intendent of Police
0
1
1
1
1
1
1
1
0
1
2
1
Senior Super intendent of Police
3
3
3
3
3
3
3
3
3
3
1
3
Superintendent of
Police
7
7
7
7
7
7
7
7
6
7
3
7
Chief Inspector of
Police
2
30 26
26
26
24 26
19 20 18 17
2018
Senior Inspector/
Inspector of Police
2
17
21 15 22 17
22 16
17
14 16
13 15
Station Sergeant
8
81 82 83 84 78 84 78 83 75 87 74 87
Sergeant
40 416 402 429 404 423 404 420 404 395 408 419 407
Police Constable
54 555 543 565 548 554 548 545 536 512 540 532 539
Total
Legend
Establishment :
E
Strength :
S
920 HONG KONG LEGISLATIVE COUNCIL — 4 December 1991 First Reading of Bills
SECURITIES AND FUTURES COMMISSION (AMENDMENT) (NO. 2) BILL 1991
COMMODITIES TRADING (AMENDMENT) (NO. 2) BILL 1991 SECURITIES (AMENDMENT) (NO. 3) BILL 1991
PENSIONS (SPECIAL PROVISIONS) (HOSPITAL AUTHORITY) BILL STAMP DUTY (AMENDMENT) (NO. 4) BILL 1991
CONTROL OF OBSCENE AND INDECENT ARTICLES (AMENDMENT) BILL 1991
Bills read the First time and ordered to be set down for Second Reading pursuant to Standing Order 41(3).
Second Reading of Bills
SECURITIES AND FUTURES COMMISSION (AMENDMENT) (NO. 2) BILL 1991
THE SECRETARY FOR MONETARY AFFAIRS moved the Second Reading of: "A Bill to amend the Securities and Futures Commission Ordinance."
He said: Mr Deputy President, I move that the Securities and Futures Commission (Amendment) (No. 2) Bill 1991 be read the Second time. The purpose of this Bill together with the Commodities Trading (Amendment) (No. 2) Bill 1991 and the Securities (Amendment) (No. 3) Bill 1991 is to facilitate the reporting of fraud detected by auditors.
At present, under the Securities and Commodities Trading Ordinances, the scope of the reporting requirements of auditors is very limited and does not cover, for instance, circumstances where fraud or illegal dealings have been detected.
The Administration believes that auditors should be able to report to the Securities and Futures Commission (SFC) matters of material concern so as to protect the interests of investors and preserve the integrity of the markets. In return, auditors should be afforded statutory protection against any possible liability they may incur in respect of breach of duty of confidentiality to clients when communicating in good faith to the SFC. Similar protection is already available under the Banking Ordinance.
HONG KONG LEGISLATIVE COUNCIL — 4 December 1991 921
Given that a change or prospective change of an auditor may signify possible irregularities in the operation of a dealer's affairs which could give rise to prudential concerns, I am also proposing that dealers should be required to notify the SFC of any such change. For similar reasons, the SFC ought also be informed by auditors of their intention to resign or to qualify accounts.
The proposed amendments to the Securities and Futures Commission Ordinance will also enable SFC to disclose information relating to an auditor to the Hong Kong Society of Accountants for the purpose of any disciplinary proceedings.
Under the existing provisions, the Securities and Futures Commission can routinely suspend or revoke registration on grounds of cessation of business. But because of the wordings of the existing provision, while the Commission can revoke licence of dealers who have ceased business, it is unable to revoke licence of dealers who have never commenced business. The Bills seek to redress this shortcoming by extending the grounds for revocation to cover any individual or corporation which does not carry on the business for which they were registered. This will make it immaterial whether the person concerned has ceased to carry on business or has never started.
Mr Deputy President, I move that the debate on this motion be now adjourned. Question on the adjournment proposed, put and agreed to.
COMMODITIES TRADING (AMENDMENT) (NO. 2) BILL 1991
THE SECRETARY FOR MONETARY AFFAIRS moved the Second Reading of: "A Bill to amend the Commodities Trading Ordinance."
He said: Mr Deputy President, I move that the Commodities Trading (Amendment) (No. 2) Bill 1991 be read the Second time. I have already identified the purpose of this Bill and the amendments proposed in my speech moving the Second Reading of the Securities and Futures Commission (Amendment) (No. 2) Bill 1991.
As regards the question of revoking the licences of dealers who have never traded, under the existing provisions, the Securities and Futures Commission can routinely suspend or revoke registration on grounds of cessation of business. But because of the wordings of the existing provision, while the Commission can revoke licences of dealers who have ceased business, it is unable to revoke licences of dealers who have never commenced business. This Bill seeks to redress this shortcoming in the Commodities Trading Ordinance by extending the grounds for revocation to cover any individual or corporation which does not carry on the business for which they were registered. This will make it immaterial whether the person concerned has
922 HONG KONG LEGISLATIVE COUNCIL — 4 December 1991
ceased to carry on business or has never started. Similar amendments are necessary to the Securities Ordinance and I shall be moving the Second Reading of the Securities (Amendment) (No. 3) Bill 1991 shortly.
Mr Deputy President, I move that the debate on this motion be now adjourned. Question on the adjournment proposed, put and agreed to.
SECURITIES (AMENDMENT) (NO. 3) BILL 1991
THE SECRETARY FOR MONETARY AFFAIRS moved the Second Reading of: "A Bill to amend the Securities Ordinance."
He said: Mr Deputy President, I move that the Securities (Amendment) (No. 3) Bill 1991 be read the Second time. I have already outlined the purpose of this Bill and the amendments proposed in my speech moving the Second Reading of the Securities and Futures Commission (Amendment) (No. 2) Bill and the Commodities Trading (Amendment) (No. 2) Bill.
Mr Deputy President, I move that the debate on this motion be now adjourned. Question on the adjournment proposed, put and agreed to.
PENSIONS (SPECIAL PROVISIONS) (HOSPITAL AUTHORITY) BILL
THE SECRETARY FOR THE CIVIL SERVICE moved the Second Reading of: A Bill to make provision as regards the pensions, allowances, gratuities and pension benefits of certain officers transferred from service under the Government to service under the Hospital Authority".
He said: Mr Deputy President, I move that the Pensions (Special Provisions) (Hospital Authority) Bill 1991 be read the Second time.
The purpose of this Bill is to provide for two pension arrangements for civil servants transferred to the employment of the Hospital Authority. One is the "mixed service pension" arrangement which would enable civil servants to preserve their pension rights after transferring to the Authority. Their total length of service for the purpose of pension calculation would be the sum of their service with the Government and the Authority.
The other is the "frozen pension" arrangement which would give civil servants the alternative of joining the Authority's provident fund after transfer.
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The pension earned during their service with the Government would be frozen and would be payable when they retire from the Authority.
The Hospital Authority took over the management and control of all public hospital services on 1 December 1991. By clause 1, the provisions of this Bill are deemed to have come into operation on that date to cover those officers who transferred to the Authority before enactment of the Bill.
Clause 6 provides for retirement benefits under the frozen pension arrangement to be based on the last substantive salary point, except in circumstances of resignation and death, and for the counting of service with the Authority as qualifying service for pension purposes.
Mr Deputy President, I move that the debate on this motion be now adjourned. Question on the adjournment proposed, put and agreed to.
STAMP DUTY (AMENDMENT) (NO. 4) BILL 1991
THE SECRETARY FOR THE TREASURY moved the Second Reading of: "A Bill to amend the Stamp Duty Ordinance."
He said: Mr Deputy President, I move that the Stamp Duty (Amendment) (No. 4) Bill 1991 be read the second time.
At present, stamp duty is payable only on the assignment of property, that is, on the document by which title is legally transferred. It is not payable on a sale and purchase agreement entered into before the assignment takes place. Stamp duty therefore does not act as a disincentive against speculators buying and selling a property several times before assignment. This type of speculation has been the target of much public criticism. It has contributed to a sharp increase in the price of residential flats. The principal aim of the Bill before Members is to curb speculative activity in the residential property market, by making stamp duty payable on sale and purchase agreements.
With some exceptions, vendors and purchasers would be required to pay stamp duty, on an ad valorem sliding scale, on all sale and purchase agreements in respect of residential property. This means that, in the case of a series of agreements in respect of the same property, the amount of duty payable would multiply. This would provide a substantial disincentive for speculators. The Commissioner of Inland Revenue may refuse to stamp an agreement that has not been properly executed.
We considered the possibility of extending the requirement to pay stamp duty to commercial and industrial property. Speculative activity and public concern over the effect of speculation on inflation have been largely confined,
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however, to the residential property market. Non-residential property is therefore exempted from the new provisions. But to the extent that there are indications of speculative activity in the commercial office sector, we will need to keep this situation under review.
We have also given considerable thought to an effective and practical definition of "non-residential property". Evidence which would be accepted as establishing non residential status include the conditions of a Crown Lease, a deed of mutual covenant, or an occupation permit issued under the Buildings Ordinance. In other cases, the Commissioner of Inland Revenue would exercise his discretion. For example, he would take into account a certificate issued by an Authorized Person or by the solicitors of the parties to a sale and purchase agreement.
The Bill would require both the vendor and the purchaser of any land or buildings to execute a written agreement for sale and purchase. The agreement would have to include a statement as to whether the property was residential or non-residential. Only where the property was stated to be entirely for non-residential use, and the Commissioner of Inland Revenue had no doubts, would the parties to the agreement not have to pay stamp duty.
As the intention of the new measures is to reduce the number of speculative transactions, and not to discourage genuine home-buyers, the Bill would limit the stamp duty payable on the actual conveyance of a property to a nominal $100, provided that the full amount of stamp duty had been paid on the agreement for sale and purchase.
It has been suggested that the scope of the Bill could be further limited, so that the new measures would apply only to uncompleted residential flats. To try to do so could give further scope for avoidance. More important, speculation is not confined to the uncompleted flat market. So far this year, about 70% of residential flat transactions have been in respect of completed properties. We are therefore strongly of the view that the Bill should cover the entire residential property market.
To make the intention and effect of these measures more readily understandable, the Bill groups them together in a new Part of the Ordinance, and in a new head of stamp duty to the First Schedule. The measures would lapse on 31 December 1993, unless renewed by resolution of this Council. We would review the efficiency and the continued need or otherwise for the measures about six months before the expiry date, taking into account developments in the economy in general and the property market in particular.
Finally, we have taken the opportunity to close an existing tax avoidance loophole. The loophole is exploited where a person sets up a company, the main or only asset of which is immovable property, and then transfers part or all of his interest in that property by selling his company's shares. These transactions now attract stamp duty at the contract note rate, which is much lower than that
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payable on property conveyance. The imposition of stamp duty on agreements for sale and purchase may encourage even greater exploitation of this loophole. To discourage this form of tax avoidance, the Bill would fix the stamp duty to be paid on the sale or purchase of such shares at the higher conveyancing rate. This means that parties using this "land-holding company" device would be liable to pay $27.50 for every $1,000 of the consideration involved in the transaction, as opposed to the present contract note level of $5 per thousand.
It has been suggested to me that speculators would be able to set up off-shore companies to circumvent this new rule. But this is a fairly complex device beyond the aspirations of most individual speculators. It has also been suggested that bona fide unlisted property companies could be penalized. But there is no reason why the sale of shares in a property company should be subject to less tax than the sale of the property itself, any more than there is reason to believe that speculative activity is confined to individuals. Without this provision, the scope for avoidance of the new measures would seriously weaken the Bill's ability to combat speculative activities.
Mr Deputy President, I move that the debate on this motion be now adjourned. Question on the adjournment proposed, put and agreed to.
CONTROL OF OBSCENE AND INDECENT ARTICLES (AMENDMENT) BILL 1991
THE SECRETARY FOR RECREATION AND CULTURE moved the Second Reading of: "A Bill to amend the Control of Obscene and Indecent Articles Ordinance."
He said: Mr Deputy President, I move that the Control of Obscene and Indecent Articles (Amendment) Bill 1991 be read the Second time. This Bill has two purposes. Firstly, it seeks to plug an existing loophole in the law where films which have been dealt with under the Film Censorship Ordinance, Chapter 392, are not subject to the provisions of the Control of Obscene and Indecent Articles Ordinance, when they are being distributed in the form of videotapes or laser discs. Secondly it seeks to amend the wording of the warning notice displayed on an indecent article or on a wrapper enclosing that article to ensure that in addition to sale, the distribution, circulation or hire of that article to a person under the age of 18 is also prohibited.
The Control of Obscene and Indecent Articles Ordinance enacted in 1987 controls the publication of articles which consist of or contain material that is obscene or indecent. According to the Ordinance, "articles" include films, videotapes and laser discs. It is stipulated in section 3 that the Ordinance will not apply to films which have been dealt with under the Film Censorship Ordinance. As a result, some films which have been approved by the Film
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Censorship Authority for exhibition only to persons over the age of 18 years become available to young people in the form of videotapes or laser discs. This defeats the purpose of the existing legislation which aims to protect young people against the corrupting influence of indecent articles whilst still allowing adults the right to obtain them.
The rationale behind the exemption of films that have been classified under the Film Censorship Ordinance from the controls under this legislation is that the Film Censorship Authority, in making decisions regarding the suitability of a film for exhibition, has already taken into account the entry restrictions imposed on cinemas. There is thus no need to subject the film to controls under another piece of legislation. However, it is obvious that the decision of the Film Censorship Authority is only good for as long as the film is intended for public showing in cinemas. The different circumstances in which videotapes or laser discs are viewed justify their being separately considered and classified. This practice is common in many countries including the United Kingdom.
The Administration proposes that section 3 of the Ordinance be amended so that films which have been dealt with under the Film Censorship Ordinance will be subject to the provisions of the Control of Obscene and Indecent Articles Ordinance if they are published other than by way of public exhibition in a cinema. This means that in future, a film being published in the form of a videotape or a laser disc, once classified by the Obscene Articles Tribunal as indecent can only be sold or hired to a person over the age of 18 years and a warning notice to that effect must be displayed on the article in question. The Obscene Articles Tribunal may also impose conditions such as removing certain scenes from the film. A film classified as obscene will be prohibited from publication.
The second amendment proposes to amend the wording of the warning notice as stipulated in section 24(1) of the Ordinance.
The present wording of the notice reads,
"Warning: This article contains material which may offend and may not be sold to a person under the age of 18 years."
“警告：本物品內容可能有不良成份；本物品不可售給年齡未滿十八歲㆟ 士。”
The purpose of the warning notice is to inform and remind both the vendors and the buyers not to "publish" indecent articles to persons under the age of 18 years. The Ordinance itself makes it clear that the work "publish" includes "distribute, circulate, rent, hire, give, lend, show, play or project". The present wording of the warning notice, however, gives the misleading impression that only the sale of indecent articles to persons under the age of 18 is prohibited, but not the distribution, circulation, renting, hiring, giving, lending, showing, playing or projecting of that article.
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It is therefore proposed that the wording of the warning notice be amended to read as follows:
"Warning: This article contains material which may offend and may not be distributed, circulated, sold, hired, given, lent, shown, played or projected to a person under the age of 18 years."
“警告：本物品內容可能令㆟反感；不可將本物品派發，傳閱，出售，出 租，交給或出借予年齡未滿十八歲的㆟士，或將本物品向該等㆟士出示， 播放或放映。”
The Chinese translation is also amended in order to make the meaning clearer.
Finally I would like to say a few words on the timing of implementing this Bill. It is estimated that there are around 400 films which have been classified by the Film Censorship Authority as Category III and are in circulation in the form of videotapes or laser discs on the market at present. We would urge the publishers or distributors of these tapes or discs to submit them to the Obscene Articles Tribunal for classification. Since the Tribunal is under a statutory requirement to make a classification within a maximum of 10 days from the day of submission, it is necessary to provide a grace period for submissions to be made and for the Tribunal to clear the backlog. We consider that a grace period of three months would be sufficient and reasonable. I therefore recommend that this particular amendment does not come into effect until three months after its enactment.
As regards the proposed amendment to the warning notice, I suggest that this should come into effect immediately upon enactment.
Mr Deputy President, I move that the debate on this Bill be adjourned.
Question on the adjournment proposed, put and agreed to.
Member's motion
Court of Final Appeal
DEPUTY PRESIDENT: Mr Simon IP has given notice of a motion as set out on the Order Paper. After Mr IP has spoken I will call on the Secretary for Constitutional Affairs. This will enable the Government to put its points early in the debate and it will also enable Members to deal with those points, if they wish, in their speeches.
928 HONG KONG LEGISLATIVE COUNCIL — 4 December 1991 MR SIMON IP moved the following motion:
"That when the Court of Final Appeal in Hong Kong is set up, it should have more flexibility to invite overseas judges to sit on it than has been agreed by the British and Chinese Governments, and such flexibility should be in accordance with the Joint Declaration and the Basic Law."
MR SIMON IP: Mr Deputy President, in his address to the opening session of the Legislative Council on 9 Ocotber, the Governor pointed out that this Council and the Administration should "share the responsibility of ensuring that the Government's policies and programmes reflect the public's best interests and enjoy the community's support." It is to reflect the public's best interests that I rise to move the motion standing in my name.
The legal profession, supported by other professions, has voiced strong opposition to the Joint Liaison Group (JLG) agreement on the Court of Final Appeal, and I, as its representative, would be failing in my duty if I did not raise the issue in this Council.
Some have questioned the timing and purpose of this debate, saying that it may be regarded as confrontational. If expressing disagreement with the JLG agreement amounts to confrontation, then there will never be a good time for a debate. The other option would be for us to say nothing and to do nothing, but that would be wrong. The Joint Declaration and the Basic Law were meant to instill confidence in the future. How, may I ask, can those documents instill confidence if they cannot be invoked? And if they are invoked, how can that be confrontational?
The Administration will, I am sure, argue that it would be better to keep this agreement because it would continue after 1997. However, I consider the composition of the Court of Final Appeal and the Court's unrestricted power to invite overseas judges to sit on it more important than setting up the Court early. Hong Kong should not pay the price of restricted flexibility for setting up the Court in 1993. Of course, if the Court can be established with a proper and acceptable composition in 1993, all the better. If not, we should not be coerced into accepting the agreement. Until such time as the Court is set up properly, we can continue to enjoy the right of appeal to the Privy Council.
The Administration will also argue that if we do not accept this agreement, there will be uncertainty in 1997. But what is that uncertainty? The situation now is different from 1984, when Britain told us that our choice was either to accept the Joint Declaration or to have no agreement. This time, we know that we will have a Court of Final Appeal, come 1997 because the Basic Law provides for it. It is difficult to imagine a court structure that is consistent with the Basic Law that is less flexible than what we are faced with today.
The Governor has told us that the Administration wanted "a co-operative partnership" with this Council. That partnership must be one in which
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Legislative Councillors have a voice. It cannot be a partnership where the Administration makes decisions and then expects us to endorse them automatically.
Even more so, Legislative Council cannot be a rubber stamp when the decision is not made by the Hong Kong Administration but by the JLG without consultation with this Council. The issue of the Court of Final Appeal is a case in point. The issue is important not only as a legal and commercial issue; it also has far-reaching implications for Hong Kong's present and future autonomy.
Unfortunately, these implications have not been fully appreciated by the British and Hong Kong Governments, resulting in a highly unsatisfactory agreement. They dealt with the issue as a numbers game. They proposed a composition of three Hong Kong judges and two overseas judges and contented themselves with a ratio of 4:1. This approach was fundamentally flawed. They failed to see the significance of the clear and unambiguous language of the Joint Declaration and the Basic Law. When you start off in the wrong direction, it is not surprising that you end up at the wrong destination.
The Joint Declaration provided that one of the features of a largely autonomous Hong Kong was an independent judiciary. It provided that "judges may be recruited from other common law jurisdictions" and that "the Court of Final Appeal..... may as required invite judges from other common law jurisdictions to sit on the Court of Final Appeal." The Chinese Government repeated those exact words of the Joint Declaration in the Basic Law promulgated last year. However, the agreement reached by the JLG now seeks to limit the Court's power to invite at most one overseas judge, a limitation not found anywhere in the Joint Declaration or the Basic Law. The agreement has altered the clear wording of those documents. This cannot be done without amending the treaty itself and without ratification of the amended treaty by Parliament.
The integrity of the judiciary is one of the pillars that underpins our economic success. It is true that countries such as China, Vietnam or Thailand, can also attract overseas investors. But what they offer is cheap labour. Hong Kong on the other hand no longer offers cheap labour. Instead, what attracts investors are our high-quality legal, banking, insurance, securities and other services, none of which can thrive without a sophisticated legal system. If we lower the quality of our judiciary, if our judiciary is no longer considered independent, if our judiciary's powers can no longer be exercised without interference then we will be putting at risk our own economic well-being.
Moreover, if the JLG can curtail one right given to Hong Kong by the Joint Declaration, what can prevent it from making similar decisions in future? Once we agree that Britain and China can limit what was agreed in the Joint Declaration, we will have created a most dangerous precedent for ourselves.
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The suggestion has been made by Mr WU Jianfan, a mainland member of the Basic Law Drafting Committee, that if we do not endorse the JLG formula, then after 1997 China could enact a law to set up a Court of Final Appeal for Hong Kong.
Mr WU referred to Article 83 of the Basic Law which says, and I read it out "The structure, powers and functions of the courts of the Hong Kong Special Administrative Region (HKSAR) at all levels shall be prescribed by law." Mr WU said that the word "law" there refers not only to the laws of the HKSAR but also to law enacted by the National People Congress (NPC) and applied to Hong Kong through Annex III of the Basic Law.
If Mr WU's reasoning is right, China could enact legislation regarding many other spheres of activity in which Hong Kong has been granted autonomy. For example, this would mean that the NPC could enact legislation regarding Hong Kong's status as a free port and decide what tariffs may be imposed and then apply that law to Hong Kong; it would mean that the NPC could enact legislation regarding our monetary and financial systems and apply that law to Hong Kong; it would mean that the NPC could enact legislation regarding the issuing of currency in Hong Kong and apply that law to Hong Kong.
If you think I am exaggerating, let me refer you to other articles of the Basic Law where the words "prescribed by law" appear. Article 110 says "The monetary and financial systems of the Hong Kong Special Administrative Region shall be prescribed by law." Article 111 says "The system regarding the issue of Hong Kong currency and the reserve fund system shall be prescribed by law." Article 114 says "The Hong Kong Special Administrative Region shall maintain the status of a free port and shall not impose any tariff unless otherwise prescribed by law." These few examples, and there are more, show how dangerous it would be for Hong Kong and its autonomy to accept Mr WU's line of reasoning. If we give way on the Court of Final Appeal, many other aspects of Hong Kong's autonomy will be in jeopardy.
It has also been suggested that allowing the Court greater flexibility to invite judges from other common law jurisdictions is contrary to the principle of "Hong Kong people ruling Hong Kong." With respect, I cannot agree. Such flexibility is, in fact, a clear manifestation of that very principle because the decision whether to invite, when to invite and whom to invite will lie in the hands of the Court alone. Nor do I believe greater flexibility is an infringement of China's sovereignty. The Joint Declaration was signed having regard to Hong Kong's unique situation and in recognition of "one country, two systems." Having overseas judges on our courts at all levels was clearly provided for in the Joint Declaration and the Basic Law and has unreservedly been accepted by China.
Mr Deputy President, the importance of a high quality Court of Final Appeal to the business community is very clear. Figures made available by the Administration for the years 1985 to 1989 show that when Hong Kong Court of
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Appeal decisions were appealed to the Privy Council, more than 46% succeeded. In other words, more than 46% of the judgments of the Court of Appeal were overturned. Of the 41 cases heard by the Privy Council during that period, 23 were civil cases while only 16 were criminal cases. Thus, the business community has benefitted greatly from the right of appeal to the Privy Council. Termination of that right should, therefore, be of the gravest concern to them. Updated figures for the years 1990 and 1991 show that 18 cases from Hong Kong were heard by the Privy Council and six were overturned. In other words, one appeal out of three was successful.
After the link to the Privy Council is severed, where will these businessmen go for final adjudication? To secure investors' confidence, I believe there must be a body of distinguished jurists of a comparable stature to replace the Privy Council. We need the flexibility to invite judges of international renown to sit on our Court. Otherwise, the replacement for the Privy Council is likely to be the Hong Kong Court of Appeal in a different guise. This makes the whole exercise almost meaningless.
Let us look at the situation in other countries. Singapore has preserved a right of appeal to the Privy Council despite having been independent since 1957 although the scope of appeals has been gradually reduced. Malaysia only abolished appeals to the Privy Council in 1984. Australia, which won independence in 1901, continued to have a right of appeal to the Privy Council until 1986. Canada became independent in 1931 but continued to have appeals to the Privy Council until 1949. New Zealand, which became independent in 1931, continues to have unrestricted right of appeal to the Privy Council to this very day.
If, therefore, Hong Kong is to establish a court to replace the Privy Council in or before 1997, there must be flexibility to invite the most respected and reputable overseas judges here. As time goes on and our Court of Final Appeal gains recognition and stature, the need for overseas judges will diminish. Until we can produce sufficient jurists of a comparable stature, we should not tie the hands of the Court by curtailing its power to invite overseas judges to sit on it.
My purpose today is not to criticize, embarrass or to assign blame. I wish only to make an appeal.
I appeal to the Hong Kong Administration to do everything possible to impress upon officials in London and in Beijing the need for confidence in our system of justice, and the important role that jurists of the highest calibre with an international reputation must play in maintaining that confidence.
I appeal to the British and Chinese Governments to do what is best for Hong Kong. In the long run, what is good for Hong Kong will also be good for Britain and for China.
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Most of all, I appeal to the Members of this Council, as sincere and honourable men and women who bear special responsibility for safeguarding the rights and intersts of the Hong Kong people to support this motion. There is no difference between this motion and the one passed at our In-House meeting on 25 October except that, in this motion, I leave open the date for setting up the Court. As I said earlier, we should not sacrifice composition and flexibility for speed. Whenever it is set up, in or before 1997, it must be in accordance with the letter and spirit of the Joint Declaration and the Basic Law.
I appeal to my fellow Legislative Councillors to ensure that the Court of Final Appeal is given the flexibility that it needs, a flexibility promised by both the Joint Declaration and the Basic Law.
With these words, Mr Deputy President, I move the motion.
Question on the motion proposed.
SECRETARY FOR CONSTITUTIONAL AFFAIRS: Mr Deputy President, I should first like to set out the Government's case for the agreement reached in the Joint Liaison Group on the establishment of a court of final appeal in Hong Kong before 1997. I should then explain the considerations which the Administration takes into account in opposing the motion moved by Mr Simon IP.
Let me begin by making one thing clear, that the Hong Kong Government was fully consulted on the agreement reached between the British and Chinese Governments on the court of final appeal. It has sometimes been alleged that somehow the British Government has reached this agreement with the Chinese Government behind our backs, that we have been sold down the river. This cannot be further from the truth. Specifically, the Hong Kong Government, and the Executive Council and the Judiciary, were fully consulted on the so-called four-one" composition of the court. We have concluded that such a composition, though not ideal, was workable and consistent with the Joint Declaration and the Basic Law. It was certainly not something imposed on us by the United Kingdom Government, least of all without our consent.
I believe it is no secret that our starting point in these negotiations was somewhat different from the eventually agreed formula. So why did we think it right to settle for the terms we did?
It is because we firmly believe that the overall interest of Hong Kong is best served by establishing, well before 1997, a court of final appeal capable of continuing unaltered beyond 1997. The agreement reached in the JLG secured for us the key objective of preserving the continuity of our judicial system. We must remember that the vesting of the power of final judgment in the courts of a non-sovereign territory is, to say the least, untried. The Joint Declaration and the Basic Law promise the vesting of that power in the Hong Kong Special
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Administrative Region after 1997, not before. But we believe that it will do an immense amount of good to the confidence of the community, and in particular to the confidence of the business community, for such a power to be exercised successfully, and seen to be so, by a court in Hong Kong before the change of sovereignty takes place. Establishing a court of final appeal in good time before 1997 would enable that court to gain the experience, and build up its reputation over a number of years. It will above all be highly important that there should not be a break in the judicial system in 1997, either because the power of final judgment is then and only then exercised by a court in Hong Kong, or because such a court established in Hong Kong before 1 July 1997 has to be reconstituted on that date. In either case, there would be no certainty as regards its structure, its personnel, its mode of operation, and no means of satisfying anyone beforehand that such a court would operate successfully and independently. This cannot be in the interest of a smooth transition.
Thus, it is for the sake of certainty and continuity that some moderation of our aspirations for "greater flexibility" becomes necessary. To those who accuse us of knuckling under Chinese pressure, let them reflect carefully on the prospect of a court of final appeal of unknown quality, established only on 1 July 1997. Will that be better for Hong Kong? It is in the nature of negotiations, and I have been a negotiator for some years, that more often than not you will not achieve everything that you desire. We must be clear in our own minds what our overriding objective is, and on what issue it makes sense to compromise. I believe the agreement on the court of final appeal struck the right balance.
The so-called "four-one" composition of the court of final appeal is an entirely workable formula. It would in no way prejudice the independence of the court in the exercise of its judicial powers. Indeed any suggestion that judges in Hong Kong, some of whom have and will no doubt continue to come from other common law jurisdictions, are any less independent in the discharge of their judicial functions than judges anywhere else is a totally unsupportable and invidious assertion. Furthermore, I do not believe that we have compromised on any matter of fundamental principle. It was very clear to us, even at the start, that a court of final appeal in Hong Kong being composed of a majority of visiting judges would not be a viable proposition. The provisions of the Joint Declaration, which is a binding international treaty, cannot and should not be interpreted as giving the court of final appeal an unlimited power to invite as many visiting judges to sit on it as it wishes. To argue otherwise is to put a gloss on the Joint Declaration which cannot be supported by a proper interpretation of the relevant provisions of the Joint Declaration in accordance with the canons of international law. My colleague the Attorney General will elaborate on this point later. So we are really down to a difference between two visiting judges and one visiting judge. That cannot be a matter of fundamental principle.
I now turn to the considerations which we have regard to, and which I urge Members to bear in mind also in this debate. The wording of Mr IP's
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motion is deceptively mild: it expresses a desire for the court of final appeal to have more flexibility, and such flexibility should be in accordance with the Joint Declaration and the Basic Law.
But let us not fool ourselves. The motion calls for a greater degree of flexibility when it is eminently clear that such an objective is unachievable without sacrificing the even greater, and indeed in my view paramount, objective of continuity and certainty. We have not come lightly to that conclusion. We reached that view after three years of hard slogging negotiation. The motion in effect amounts to a call for renegotiation of the agreement when it has been made absolutely clear to us by the Chinese Government, both privately and publicly, formally as well as informally, that such a course of action will not be contemplated. Indeed I have just come from a meeting of the Joint Liaison Group, at which the Chinese side have made it absolutely clear that there would be no question of re-negotiation. So we must face the question squarely: do we wish to have an agreement which enables us to have a court of final appeal capable of continuing unaltered beyound 1997? Or no agreement, in which case maximum continuity of a judicial system across 1997 cannot be achieved?
I believe that it is right for us to stand firm on matters of fundamental principle. But the issue of "more flexibility" is not an issue of fundamental principle. Would it really be right to sacrifice the key objective of maximum continuity of our judicial system for something which is merely desirable, but not essential? Would it really be in the overall interest of Hong Kong to put at risk our efforts in the Joint Liaison Group to seek agreements with the Chinese Government in many other areas which are vital to the continued stability and prosperity of Hong Kong and a smooth transition? I do not believe that we should let the best be the enemy of the good.
The motion also focusses narrowly, and to my mind regrettably, on the number of judges from other common law jurisdictions who may be invited to sit on the court of final appeal. But that is only one aspect of a comprehensive set of measures which we intend to propose to this Council. These measures will include provisions to safeguard the independence and integrity of the court, so that judges of final appeal will be able to exercise their judicial functions free from executive interference. They will be set out very clearly in the Bill providing for the court which we are now drafting. As I have mentioned in an earlier debate in this Council, we will be sharing our ideas with Members, and the legal profession. When we introduce the Bill into this Council, that would be the right moment to pass your judgment on whether or not the arrangements which we propose are satisfactory.
Mr Deputy President, many Members will no doubt speak in this debate and express their preference for more flexibility for the court of final appeal. But I do hope Members will consider very carefully what they think is right in the light of the real situation. It is not just a question of more, or less, flexibility. Members should ask themselves whether it is right to put at risk the
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key objective, secured by the JLG agreement, of setting up a court of final appeal well before 1997 which is guaranteed to continue unaltered beyond that date; or whether Members are willing to suspend their judgment for the time being until they have a chance to examine thoroughly the whole package of arrangements for the establishment of that court. I believe the latter course is the prudent course to take.
Thank you, Mr Deputy President.
MR ALLEN LEE (in Cantonese): Mr Deputy President, the replacement of the British Privy Council by a Court of Final Appeal in Hong Kong after 1997 is an issue of great importance. At the In-House meeting on 25 October, this Council has discussed the composition of judges in the future Court of Final Appeal and commented on the Sino British agreement. The meeting requested me, as Senior Member of this Council at that time, to reflect to the authorities the majority views of this Council that the arrangement for inviting overseas judges to sit on the Court lacked flexibility and they hoped that a Court of Final Appeal would be set up by 1993. I have conveyed these two points to the authorities.
Today, I take part in this debate on Mr Simon IP's motion because I want to explain to this Council and the people of Hong Kong why I support the Sino-British agreement. Negotiations over the Court of Final Appeal issue went on for as long as three years before an agreement was reached. It was not reached within a short spell. As a matter of fact, the setting up of a Court of Final Appeal in Hong Kong is a matter of fact, the setting up of a Court of Final believed that the Court of Final Appeal was of paramount importance in maintaining Hong Kong's judicial independence. It, therefore, hoped that an agreement could be made with China so that a Court of Final Appeal would be set up before 1997 which would operate smoothly beyond 1997.
Also, the composition of overseas judges is finally agreed after repeated negotiations. The Hong Kong Government also intends to abide by the agreement to set up a Court of Final Appeal by the end of 1993 through legislation to be enacted by this Council. It is understandable that presently the majority of our Members share the view that the composition of overseas judges lacks flexibility. However, 1 hope that Members of this Council would think clearly whether there are really any problems in the operation of a Court in this form. Do we want to see that a Court of Final Appeal be set up in Hong Kong by 1993? Are Mr Simon IP, who moves the motion, the legal profession and some Members of this Council saying that if the composition is unsatisfactory, they would rather wait until 1997 and let China decide on the arrangement than accept the setting up of a Court of Final Appeal by 1993? We should not forget that China will be in the position to do that. I hope that Members of this Council will give careful consideration to this matter. This debate, I believe, will not be the final one. In the near future, when the Bill is presented to this Council, we will have to decide whether we would like to see a Hong Kong Court of Final Appeal being set up by 1993, which tallies with the agreed
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composition of overseas judges, or to choose not to have a Court of Final Appeal and to make a decision until 1997. I personally believe that the earlier the Court of Final Appeal is established, the better for Hong Kong. I therefore support the existing Sino-British agreement and object to Mr Simon IP's motion.
MR STEPHEN CHEONG (in Cantonese): Mr Deputy President, I have a lot of doubts about the content and background of what is being debated today.
It is true that the motion does not say explicitly that the Sino-British Joint Liaison Group should reopen talks on the issue of the composition of the Court of Final Appeal. But to carry this motion would as good as put forth such a request. Representatives of the Chinese and British Governments sitting on the Joint Liaison Group have indicated that they would not reopen talks to amend the agreement and that the agreement does not conflict with the Sino-British Joint Declaration and the Basic Law. I am bewildered that today's motion should have been raised in the face of these two facts. I suppose all my colleagues understand what would happen if the Council should pass the motion today, which was proposed when the Chinese and British Governments had made known their stands and which would as good as reject the original agreement. Just think what would happen if one of our colleagues were to move that the Government should act according to today's motion during next week's regular meeting or when the draft legislation on the Court of Final Appeal is submitted to the Council for passage. Does the Hong Kong Government have any authority to overrule an agreement reached between two sovereign states? I really dare not imagine what would happen.
However, what would the main purpose of today's motion be if it were not to be adhered to when passed? If the motion had been intended to allow us to voice our opinions, would it have been so worded?
A high-ranking official of the Hong Kong Government is reported by the press to have said in late October that the Hong Kong Government wanted more flexibility regarding the ratio of local judges to overseas judges making up the Court of Final Appeal. Was such a remark the major driving force that triggered off this debate? I do not know the answer either. I only know that the Hong Kong Government and the Secretary for Constitutional Affairs, Mr Michael SZE, have stressed again and again for more than two months, even as recently as this Monday, that the agreement is acceptable and is not to be changed and that draft legislation will be submitted to the Council for examination shortly.
So what would happen if we should pass the motion today and also reject the Bill submitted by the Government later? Or let us imagine another scenario: Suppose we pass the motion today. Though China and Britain cannot reopen talks on the Court of Final Appeal, the Hong Kong Government amends its Bill according to our motion so that Hong Kong will immediately have a Court of
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Final Appeal inconsistent with what has been agreed by the Chinese and British Governments. What a shock it would be to Hong Kong if after 1997 China were to insist on the validity of the agreement and thus change the composition of the Court of Final Appeal! What is more, problems will not wait until 1997 before they crop up, for the moment we pass this motion, China and Hong Kong will fall foul of each other and a period of mutual distrust and confrontation will begin. Smooth transition, which we have envisaged, will become an empty talk.
We have to weigh whether the decision made by Legislative Councillors today may sacrifice a smooth transition and a stable society which Hong Kong is otherwise able to enjoy during the transfer of sovereignty in 1997. I may be worrying too much, but we cannot simply ignore the consequences which may be brought about by the passing of today's motion. I absolutely believe that most of my colleagues are sincere since they have sworn to serve the people of Hong Kong. We shall definitely work for the future of the people of Hong Kong and minimize any shocks they may encounter in the future. I think whether they can enjoy a stable life should be our prime concern, since those who will not leave Hong Kong do not count their lives in spans of four years as do the terms of service at the Legislative Council. They want to live in a secure and stable environment for the rest of their lives.
Since its signing, the Sino-British Joint Declaration has often been quoted and mentioned. As a matter of fact, the Joint Declaration was the result of closed-door negotiations between the Chinese and British Governments. Since then, however, for reasons unknown, almost every agreement reached by the Chinese and British Governments has drawn criticisms from some people who invariably put up a negative attitude. The United Kingdom is the present sovereign state of Hong Kong and China is the future sovereign state of Hong Kong. The arrangements made by these two governments in a bid to maintain the stability and prosperity of Hong Kong during the transitional period, however, have been under constant attack. I do not know what it will lead to, but we can see that this trend of arguing has generated an atmosphere of uneasiness in society. Whether this atmosphere will dampen the spirit of Hong Kong people remains to be seen, but it definitely will affect Hong Kong's potential in its economic development.
Mr Deputy President, I am not a legal expert, and thus I can only try to analyze the situation from the point of view of an ordinary citizen. Following the announcement of the agreement by the Sino-British Joint Liaison Group, the Honourable Sir T L YANG, Chief Justice of Hong Kong and a world-renowned legal expert, has expressed that the composition of the Court of Final Appeal is acceptable and that there are definitely sufficient legal experts in Hong Kong to become judges of the Court of Final Appeal. Nevertheless, people in the legal profession hold opposite views. They say that to have the majority of Hong Kong's existing judges sit on the Court of Final Appeal is not in keeping with their expectations.
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Where does the problem lie? Does it mean that people in the legal profession doubt the capabilities of the incumbent High Court judges and consider them incapable of making proper judgements according to the law? Sticking to one's own arguments is not the best way to solve the problem. The positive attitude should be to look further ahead, to consider future aspects and to begin tacking the practical issues.
The present arguments and criticisms in fact originate from a long-existing problem. It is the problem of not trusting each other, not in the least trusting China. In a society where the atmosphere of uneasiness looms, it is only natural that one develops a suspicious mind for self protection. If we, however, tackle every issue with this attitude, we shall easily drive ourselves to isolation where nothing can be done. To get rid of this psychological barrier, we should try hard to consider practical ways which can ensure the efficient operation of the future Court of Final Appeal. I consider that the most important and practical work for Hong Kong at the moment are: to do our best to ensure judicial independence, to draft a list of judges who may be invited to sit on the Court of Final Appeal as soon as possible, and to set up the Court of Final Appeal at the earliest time so that experience of its operation can be gained.
Last week I had a talk with a group of professionals and I would like to take this opportunity to relate to you some of their opinions. Many of my friends said that if Hong Kong's judiciary relied protractedly on inviting judges from overseas to sit on the bench, little headway could be made in training local talents in the field. A banker friend said that she used to impress upon her clients how independent, creditable and comprehensive Hong Kong's judicial system is, saying that it was better than those of some large cities; but harsh "criticism made by Hong Kong's legal professionals on the low standard of local judges had directly undermined the confidence of many local and overseas traders with respect to the signing of legal documents for their business transactions. Since those who have said all these are not celebrities, their opinions are not known to the public, but I do hope my colleagues here can consider carefully what have been said and the worry behind the words.
Mr Deputy President, now more than a month has lapsed since Legislative Council's In-House meeting held on 25 October. During this period the press has been covering quite a lot of the issue, relating clarification made by the Chinese and British Governments that the agreement reached is in no way a breach of the Joint Declaration and the Basic Law. Given such supplementary information, we should have a better understanding of the legitimacy and far-reaching impact of the agreement. It should also help us considerably when we are to decide how we would vote on the motion today.
Recently the press has often used the phrase "change stands" to describe Members' reaction to certain issues. This I cannot agree for it is not fair to take a handful for the whole sack. Moreover, very often before people make comments, they have not studied carefully all the points raised by the Members.
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To categorize a Member merely by the way he casts his vote is indeed not fair to one who is not a star on the political stage. In my opinion Legislative Council Members should be primarily responsible to the public. They should have the public's long-term interest in mind whenever they utter a word, take an action or make a resolution. Members should not, for fear of being criticized for "changing stands", refrain from changing their viewpoints after having probed into, or gathered more information, on the issue. To maintain one's image at the expense of public interest is not a responsible attitude.
Like the Honourable Simon IP, I wish to appeal to my colleagues not to be afraid to "change stands". Even though you said you supported a certain motion on 25 October, after obtaining a full picture of the whole situation now, you do not need to stick to what you said earlier on.
With these remarks and wishing that my colleagues can carefully consider my arguments, I vote against the motion.
MRS SELINA CHOW: Mr Deputy President, Section III of Annex I of the Joint Declaration and Article 82 of the Basic Law provide for the Court of Final Appeal under the Hong Kong Special Administration Region Government in 1997.
In anticipation and preparation of that arrangement, the Chinese and the British Governments have accepted the merits of early set-up of the Court before 1997 in order that the judicial system here can benefit from a smoother transition regarding the transfer of the hearing of final appeal cases by the Privy Council to the Hong Kong Court. This intended objective was generally accepted to be in the interest of Hong Kong, and both Governments have acted accordingly reaching an agreement to enable an early set-up.
A decision was taken by the Executive Council to accept the agreement in its present form. As I was not a member of that Council when the decision was taken, I am not party to the collective responsibility which applies to that decision. I would therefore like to put forth my own views on the agreement in this debate.
Having considered all the information and views presented, I believe the agreement as it stands could be improved upon if more flexibility could be built into it to allow for more overseas judges, as this strengthens the guarantee for impartiality and expertise. This Court of Final Appeal is after all to replace existing arrangements under the Privy Council, which has historically commanded not only local but international confidence. The principle of the independence of the Judiciary is clearly recognized and supported in the Joint Declaration and the Basic Law. It is crucial that the integrity of the Court of Final Adjudication of our judicial system is adequately ensured as far as possible.
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For this reason I support Mr Simon IP's motion, which puts forward the request for more flexibility.
However this support is qualified.
When the issue was first discussed at the Legislative Council In-House meeting, the resolution passed by that meeting asked for two things — more flexibility as well as a deadline for the setting up of the Court by 1993. Mr IP has chosen to leave out any mention of timing in his motion, but has made it plain that he is against the setting up of the Court before 1997 if his call for flexibility is not addressed.
I hold a different view, which I understand is shared by some of my "colleagues in this Council as well as some interested and informed individuals of our community.
If Mr IP's motion is carried today, then our hope for more flexibility should be put by the Hong Kong Government to both the British and the Chinese Governments for consideration. After all what is so wrong to ask to be heard by the two Governments which are committed to the betterment of our future?
However, if our request is not taken on board, then the choice should be presented to this Council again as to whether we should proceed with the setting up of the Court in 1993, albeit with limited flexibility, or to leave existing arrangements alone until 1997 thus running the risk of uncertainty and unknown change.
For the sake of Hong Kong, we will of course wish that our voice would be heard.
Equally for the sake of Hong Kong, we will have to satisfy ourselves and the people we serve that the choice we are able to make for them is the best available one.
Mr Deputy President, I support the motion.
MRS RITA FAN (in Cantonese): Mr Deputy President, the basic policies of China regarding Hong Kong are set out in paragraph 3 of the Joint Declaration. Section (3) of this paragraph states that the Hong Kong Special Administrative Region will be vested with the power of final adjudication. At present the Hong Kong Government does not have the power of final judgement which is exercised by the Privy Council. In Annex I of the Joint Declaration entitled Elaboration by the Government of the People's Republic of China of its basic policies regarding Hong Kong", reference is made to the power of final judgement and the Court of Final Appeal. It reads, "the power of final judgement of the Hong Kong Special Administrative Region shall be vested in the Court of Final Appeal in the Hong Kong Special Administrative Region,
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which may as required invite judges from other common law jurisdictions to sit on the court of Final Appeal." As discussions on the Court of Final Appeal have sustained for several years, the abovesaid wordings are not unfamiliar to us. I quote them simply to explain that the Court of Final Appeal promised by China is part of the judicial system of the Hong Kong Special Administrative Region to be established on 1 July 1997.
Hong Kong will now progress from not having the power of final adjudication to enjoying such power by 1997, and from depending on the Privy Council to establishing its own Court of Final Appeal. Moreover, the Court of Final Appeal will be set up in Hong Kong instead of in Beijing. All these are significant achievements in the embodiment of the spirit of judicial independence of Hong Kong. With a view to substantially and effectively strengthening the confidence in Hong Kong through such arrangement, the British side took the initiative to put forward the proposal for the early establishment of the Court of Final Appeal before 1997.
In order to strengthen the confidence in the territory, it has to ensure that the Court of Final Appeal set up before 1997 can still operate beyond 1997. In other words, there should be a "through train" arrangement. To solicit full support and agreement of the Chinese side, the British side should accept the requests by the former regarding the Court of Final Appeal established ahead of 1997 as long as they are workable and in line with the Joint Declaration. On this major premise and after lengthy negotiations, a consensus has been reached in principle as to the composition of the Court of Final Appeal, that is, at most one judge from other common law jurisdictions will be invited to sit on the Court of Final Appeal.
Today's motion requests greater flexibility in the appointment of overseas Judges. Of course, it will be ideal to have more flexibility, the "through train" arrangement as well as the power of discretion fully conferred to the Chief Justice of the Court of Final Appeal. Unfortunately, we cannot have all we wish.
We now have several options:
(1) To set up a Court of Final Appeal by the British and Hong Kong Governments alone and to invite more than one overseas judges to sit in each case to supplement the work of local judges.
(2) To seek a re-negotiation with the Chinese side.
(3) To shelve the issue of the Court of Final Appeal until the Sino-Hong Kong relation is improved.
(4) To accept the present proposal and implement it as soon as possible, hoping that the Court of Final Appeal can, through practice, acquire international recognition and build up confidence in our judicial system.
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I believe that the first option, that is, to set up a court of Final Appeal all by ourselves, entails risks. If we go for this option, it is doubtful whether the Court of Final Appeal can still operate beyond 1997. Some people even say that there will not be a through train arrangement if this is to be the case. And whether a Court of Final Appeal without continuity can invite respectable and prestigious overseas judges to sit on it is also open to question. Moreover, as the Chinese side may think that the Hong Kong Government is using public opinion to confront with it, the Sino-Hong Kong relationship will perhaps further deteriorate to the detriment of the confidence in Hong Kong.
The second option, that is, to seek a renegotiation, is a one-sided wish as the Chinese Government has made it clear that re-negotiation is out of the question.
The third option, that is, to shelve the issue of the Court of Final Appeal, means no progress at all and the proposal of setting up the Court of Final Appeal before 1997 will be shelved indefinitely.
The fourth option, that is, to accept the present proposal and implement it as soon as possible, is to accept the constraints of reality and to achieve the best result under these constraints. This option ensures the continuity of the Court of Final Appeal. The price is not to invite more than one overseas judge while the prize is that the Court of Final Appeal can start operation in 1993. As regards the criticism that the proposal is in breach of the Joint Declaration, I think it is a matter of perspectives. It is just common that the understanding of a statement of members of the legal profession is totally different from that of others. I am not in the legal field and simply exercise common sense in reading the relevant parts of the Joint Declaration. I go for the fourth option because I believe that it does not contravene the Joint Declaration and is a feasible proposal.
What makes me uneasy is the uncertainty concerning the quality of performance of the Court of Final Appeal. When the issue of the Court of Final Appeal was discussed at the Legislative Council In-House meeting, I learned for the first time that 30% to 40%, or even up to 50%, of the sentences passed by the Court of Appeal in Hong Kong over the past several years have been overruled by the Privy Council. Being a layman rather than a legal expert, I instantly feel that the percentage is surprisingly high. Does it imply that there is room for improvement in the quality and knowledge of judges of the Court of Appeal in Hong Kong? According to the present proposal, three local judges other than the justice who will act as the Chief Justice are to be appointed from among justices of the Court of Appeal. I wonder if this will have impacts on the quality of the Court of Appeal in Hong Kong as well as its status in the international and judiciary scenes. Mr Deputy President, I have high regards for and trust the judiciary in Hong Kong. Yet, the figures I heard and the discussion and views made at the In-House meeting the other day made me worried. Before I had further understanding of the actual situation in respect of the British Privy Council's overruling of the sentences passed by the Hong Kong
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Court of Appeal, I could only abstain from voting when a decision on the "subject of the Court of Final Appeal was made at the In-House meeting.
I obtained some latest information yesterday. In 1990, only two out of nine cases were overruled by the Privy Council. In other words, nearly 80% of the ruling of the Court of Appeal in Hong Kong were supported by the Privy Council. In the same year, the figure for New Zealand was 75% compared with 55% for the United Kingdom. Judging from the figures for the previous year alone, we can see that the performance of the Court of Appeal in Hong Kong is far better than the United Kingdom. In respect of the figures for the last five years, it can be seen that 40% of the sentences passed by the Hong Kong Court of Appeal is overruled by the Privy Council compared to 39% for the United Kingdom, 37% for Singapore and 30% for New Zealand. In fact, it is common that 30% to 40% of the sentences passed were overruled. Though figures alone cannot give us the whole picture, I no longer worry about the quality of the judges of the Court of Appeal in Hong Kong. And I need not abstain from voting again.
Mr Deputy President, in a world of reality, we sometimes have to pay a price for accomplishing a job under practical constraints. Today's motion aims to remove these practical constraints and reopen negotiation, failing which it prefers not to have a Court of Final Appeal before 1997. I think the former is unrealistic at this stage. As regards the latter, I regret to say that "it is difficult to have a job done but easy to spoil it."
Mr Deputy President, I oppose the motion.
MR HUI YIN-FAT (in Cantonese): Mr Deputy President, the Sino-British Joint Liaison Group's agreement on the Court of Final Appeal in Hong Kong has immediately sparked off an outcry from the public, especially among the legal sector, not so much because of the ratio of overseas and local judges sitting on the court being 1:4 or 2:3, but because of the fact that any provision or restriction to this effect will go against the original spirit of the Joint Declaration and the Basic Law. What is more striking is the fact that the Chinese and British Governments, without being made fully aware of the practical situation in Hong Kong and the prerequisites for setting up the Court of Final Appeal, have made the choice for Hong Kong people between hastily setting up a Court of Final Appeal in 1993 and allowing flexibility in the composition of its judges. No wonder the agreement reached is nothing like what it should be.
I believe the Government should bear the blame for plunging Hong Kong into the present awkward predicament because it has treated public consultation "a bit too lightly at the outset. As a matter of fact, the two legal bodies have already made known to the Administration their stance on the Court of Final Appeal as far back as early 1988. However, their views on the composition of the Court had been interpreted out of context and taken to mean the baseline for
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a political compromise insofar as the legal profession is concerned. Since then, JLG talks have got tied down by quibbling over the early setting up of the court and the ratio of overseas and local judges. But in fact, there is no either-or situation between the two and we cannot exchange one for the other. The Government also failed to consult the two legal bodies on the British Government's baseline shortly before the agreement was reached. And after the JLG's announcement, the Hong Kong Government again underestimated the strong public reactions, especially among the legal sector, as well as China's firm stance that the agreement cannot be altered.
As far as negotiation tactics are concerned, since the Hong Kong Government has treated this issue too lightly and put some misleading messages across, it has undoubtedly given the Chinese side a chance to take advantage of this weakness and to emerge victorious in the negotiations. However, practically speaking, the hard-line stance which the Chinese side has taken to obtain the agreement will only increase the difficulty in establishing the independence and authority of the future Court of Final Appeal. In the end, Hong Kong will have to suffer what adverse effects it may have. Therefore, I sincerely hope that the Chinese side will allow more flexibility in the appointment of judges, taking into account the unique circumstances for setting up a Court of Final Appeal in Hong Kong and the backlash the agreement has created among Hong Kong people, especially the legal profession and overseas investors. In fact, the Joint Declaration and the Basic Law have vested in Hong Kong the power of final adjudication, which has reflected the flexibility already taken by the Chinese side in recognition of our needs. Why is it that what could be done before the June 4 event in 1989 cannot be done now?
Mr Deputy President, though I consider that today's motion debate has come at a time most unfavourable to us, I am duty-bound, as a Member of this Council, to reflect the views of the general public as well as members of the legal profession. Therefore, with these remarks, I support the motion.
MR MARTIN LEE: Mr Deputy President, at the outset, I would like to make clear that I fully support the points made by the Honourable Simon IP as to the need both to preserve the integrity of the Hong Kong judiciary and to establish a Court of Final Appeal that will be of the highest quality and be able to command the unquestioned confidence of the community, and I will not reiterate his points. Rather, I will focus today on the vital constitutional questions at stake on this issue.
The agreement between the British and Chinese Government on the structure of the Hong Kong Court of Final Appeal represents in striking terms the degree to which the two governments have departed from the Joint Declaration: in letter, in spirit, and in process. Rather than seek to establish the promised system of Hong Kong people ruling Hong Kong with a high degree of autonomy, the two governments are now making decisions on Hong Kong's internal matters without even consulting us and then trying to ram those
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