HONG KONG LEGISLATIVE COUNCIL — 14 July 1993 4515
OFFICIAL RECORD OF PROCEEDINGS
Wednesday, 14 July 1993
The Council met at half-past Two o'clock
PRESENT
THE PRESIDENT
THE HONOURABLE JOHN JOSEPH SWAINE, C.B.E., LL.D., Q.C., J.P.
THE CHIEF SECRETARY
THE HONOURABLE SIR DAVID ROBERT FORD, K.B.E., L.V.O., J.P.
THE FINANCIAL SECRETARY
THE HONOURABLE NATHANIEL WILLIAM HAMISH MACLEOD, C.B.E., J.P.
THE ATTORNEY GENERAL
THE HONOURABLE JEREMY FELL MATHEWS, C.M.G., J.P.
THE HONOURABLE ALLEN LEE PENG-FEI, C.B.E., J.P.
THE HONOURABLE MRS SELINA CHOW LIANG SHUK-YEE, O.B.E., J.P. THE HONOURABLE HUI YIN-FAT, O.B.E., J.P.
THE HONOURABLE MARTIN LEE CHU-MING, Q.C., J.P.
THE HONOURABLE DAVID LI KWOK-PO, O.B.E., J.P.
THE HONOURABLE NGAI SHIU-KIT, O.B.E., J.P.
THE HONOURABLE SZETO WAH
THE HONOURABLE TAM YIU-CHUNG
THE HONOURABLE ANDREW WONG WANG-FAT, O.B.E., J.P.
THE HONOURABLE EDWARD HO SING-TIN, O.B.E., J.P.
THE HONOURABLE RONALD JOSEPH ARCULLI, O.B.E., J.P.
THE HONOURABLE MARTIN GILBERT BARROW, O.B.E., J.P.
THE HONOURABLE MRS PEGGY LAM, O.B.E., J.P.
THE HONOURABLE MRS MIRIAM LAU KIN-YEE, O.B.E., J.P.
HONG KONG LEGISLATIVE COUNCIL — 14 July 1993 4516 THE HONOURABLE LAU WAH-SUM, O.B.E., J.P.
DR THE HONOURABLE LEONG CHE-HUNG, O.B.E., J.P. THE HONOURABLE JAMES DAVID McGREGOR, O.B.E., I.S.O., J.P. THE HONOURABLE MRS ELSIE TU, C.B.E.
THE HONOURABLE PETER WONG HONG-YUEN, O.B.E., J.P. THE HONOURABLE ALBERT CHAN WAI-YIP
THE HONOURABLE VINCENT CHENG HOI-CHUEN, J.P. 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, O.B.E., J.P. DR THE HONOURABLE LAM KUI-CHUN
DR THE HONOURABLE CONRAD LAM KUI-SHING, J.P. THE HONOURABLE LAU CHIN-SHEK
THE HONOURABLE EMILY LAU WAI-HING
THE HONOURABLE LEE WING-TAT
THE HONOURABLE ERIC LI KA-CHEUNG, J.P.
THE HONOURABLE FRED LI WAH-MING
THE HONOURABLE MAN SAI-CHEONG
HONG KONG LEGISLATIVE COUNCIL — 14 July 1993 4517
THE HONOURABLE HENRY TANG YING-YEN, J.P.
THE HONOURABLE TIK CHI-YUEN
THE HONOURABLE JAMES TO KUN-SUN
DR THE HONOURABLE SAMUEL WONG PING-WAI, M.B.E., J.P. DR THE HONOURABLE PHILIP WONG YU-HONG
DR THE HONOURABLE YEUNG SUM
THE HONOURABLE HOWARD YOUNG, J.P.
THE HONOURABLE ZACHARY WONG WAI-YIN
DR THE HONOURABLE TANG SIU-TONG, J.P.
THE HONOURABLE CHRISTINE LOH KUNG-WAI
THE HONOURABLE ROGER LUK KOON-HOO
THE HONOURABLE ANNA WU HUNG-YUK
THE HONOURABLE JAMES TIEN PEI-CHUN, O.B.E., J.P.
ABSENT
THE HONOURABLE PANG CHUN-HOI, M.B.E.
THE HONOURABLE LAU WONG-FAT, O.B.E., J.P.
THE HONOURABLE STEVEN POON KWOK-LIM
IN ATTENDANCE
MR MICHAEL LEUNG MAN-KIN, C.B.E., J.P.
SECRETARY FOR EDUCATION AND MANPOWER
MR YEUNG KAI-YIN, C.B.E., J.P.
SECRETARY FOR TRANSPORT
MR MICHAEL SUEN MING-YEUNG, J.P.
SECRETARY FOR HOME AFFAIRS
MR ALISTAIR PETER ASPREY, O.B.E., A.E., J.P.
SECRETARY FOR SECURITY
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MRS ELIZABETH WONG CHIEN CHI-LIEN, I.S.O., J.P. SECRETARY FOR HEALTH AND WELFARE
MR CHAU TAK-HAY, J.P.
SECRETARY FOR TRADE AND INDUSTRY
MR JAMES SO YIU-CHO, O.B.E., J.P.
SECRETARY FOR RECREATION AND CULTURE
THE HONOURABLE MICHAEL SZE CHO-CHEUNG, I.S.O., J.P. SECRETARY FOR CONSTITUTIONAL AFFAIRS
MR ANTHONY GORDON EASON, J.P.
SECRETARY FOR PLANNING, ENVIRONMENT AND LANDS
MR MICHAEL DAVID CARTLAND, J.P.
SECRETARY FOR FINANCIAL SERVICES
THE CLERK TO THE LEGISLATIVE COUNCIL
MR CLETUS LAU KWOK-HONG
THE DEPUTY CLERK TO THE LEGISLATIVE COUNCIL MR PATRICK CHAN NIM-TA
HONG KONG LEGISLATIVE COUNCIL — 14 July 1993 4519
Papers
The following papers were laid on the table pursuant to Standing Order 14(2): Subject
Subsidiary Legislation L.N. No. Pilotage (Amendment) Regulation 1993 .................................................. 252/93
Pilotage (Disciplinary Procedure) (Amendment)
Regulation 1993 ............................................................................... 253/93
Hong Kong Airport (Restricted Areas and Tenant
Restricted Areas) Order.................................................................... 262/93
Immigration (Vietnamese Migrants) (Detention
Centres) (Designation) (Amendment)
Order 1993 ....................................................................................... 263/93
Public Health and Municipal Services (Public
Pleasure Grounds) (Amendment of
Fourth Schedule) (No. 4) Order 1993............................................... 264/93
Immigration (Vietnamese Migrants) (Detention
Centres) (Amendment) Rule 1993.................................................... 265/93
Pleasure Grounds (Regional Council) (Amendment)
(No. 2) Bylaw 1993 .......................................................................... 266/93
Statutes of the Chinese University of Hong Kong
(Amendment) (No. 2) Statutes 1993................................................. 267/93
Sessional Papers 1992-93
No. 88 — Hong Kong Sports Development Board
Annual Report 1992-93
No. 89 — Report by the Commissioner of Police on
Police Welfare Fund for the period
1 April 1990 - 31 March 1991
No. 90 — Traffic Accident Victims Assistance Fund
Annual Report by the Director of Social Welfare
Incorporated for the year
from 1 April 1991 to 31 March 1992
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No. 91 — Sir David Trench Fund for Recreation
Trustee's Report 1992-93
No. 92 — Audited Statement of Accounts for the Sing Tao
Foundation Students' Loan Fund
for the year ending 31 August 1992
No. 93 — Audited Statement of Accounts of the
Hong Kong Rotary Club Students' Loan Fund
for the year ending 31 August 1992
Miscellaneous
Towards Better Health A Consultation Document
Addresses
Hong Kong Sports Development Board Annual Report 1992-93
MR HOWARD YOUNG: Mr President, I am very pleased to be able to present the Annual Report of the Hong Kong Sports Development Board for the year 1992-93. At the beginning of its third year of life, the Board had some changes in its membership. However, the direction laid down in the Board's four-year Strategic Plan for the period 1991-95 continues to be pursued.
One of the major aims of the Board is to raise the standard of sporting performance and increase levels of participation. Through its Block Grant Scheme, the Board allocated $27.5 million to 52 National Sports Associations and the Amateur Sports Federation and Olympic Committee of Hong Kong to provide the major funding sources for staffing, office expenses, training and competition programme costs. Encouraging results have been achieved by local athletes in certain major international competitions. Badminton, Rowing, Rugby, Squash, Swimming and Table Tennis are some of the outstanding examples. It is also pleasing to recall that disabled athletes also achieved impressive performances during the Paralympic Games in Barcelona 1992. Disabled athletes are now treated by the Board on a par with their able-bodied counterparts with regard to funding.
The performance of athletes relies to a great extent on the quality of coaches. Together with the Amateur Sports Federation and Olympic Committee of Hong Kong, and the Hong Kong Sports Institute, the Board introduced the Hong Kong Coach Education Programme in 1991, of which the Hong Kong Coach Accreditation Programme was a major component. Up to March 1993, 23 National Sports Associations and one coaches' association have joined the Coach Accreditation Programme.
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To strengthen the administration side of sport, the Board has developed a Code of Practice for National Sports Associations in receipt of its funds. The aim is to ensure the transparency and fairness of administration linked to accountability for the use of public funds. The Board has also introduced a professional administrative structure amongst the National Sports Associations. This provides an obvious improvement in the status, recognition and rewards for those who work for these associations.
Lifting the profile of sport and physical education in the lives of the community, and reinforcing the link between exercise, physical fitness and a healthy lifestyle is another important mission of the Board. It believes that the provision of an extensive network of community sports clubs throughout Hong Kong will be essential in providing opportunities for participation in organized sports activities. With the support of municipal councils, National Sports Associations and District Sports Associations, the Board has established 24 new community sports clubs in the territory.
The Board continues to recognize the important role which the school system plays in providing the encouragement and means by which young people can develop a sustainable interest in sport. A seminar was held to exchange views with school principals on how sport was developed in different types of schools and to focus on sport as a vital factor in the overall quality of students' lives.
The Government continues to support the Board with an inflation adjusted annual subvention. The subvention in the year 1992-93 amounted to $55 million. To increase the resources available for sports development, the Board launched a sponsorship drive and managed to raise during the year $9 million through its own initiative from the corporate sector, making a total of $20 million in the past 18 months.
A special reference must be made to the generous donation of $265 million from the Royal Hong Kong Jockey Club to support the Board's activities. As a result, the Sports Aid Foundation Fund and the Sports Aid for the Disabled Fund have been increased with $25 million to help support the training programmes of the best athletes in Hong Kong. An amount of $40 million has been set aside for the fitting out of the new Sports House when it opens next year in 1994. A trust fund has been set up with the remaining $200 million to support the Board's overall development programme.
The Sports House next to the redeveloped Hong Kong Stadium will be a two-storey office building to accommodate the Board, the great majority of National Sports Associations and other sporting organizations. The Government as landlord has entrusted the Board with the responsibility of managing the Sports House at a nominal rent. It is hoped that the Sports House will create a new prestigious identity for sport in the community.
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Mr President, the year 1992-93 has laid the foundation stone for the integration of the Board and the Hong Kong Sports Institute, as expressed in the Hong Kong Sports Development Board (Amendment) Bill 1993. It is aimed that the integration will provide a simpler, stronger and more efficient delivery system to sport. Hopefully, the Legislative Council next year will be presented with a combined report.
Towards Better Health A Consultation Document
SECRETARY FOR HEALTH AND WELFARE: Mr President, the document Towards Better Health is published today for public consultation.
Government's commitment towards better healthcare
Hong Kong enjoys one of the longest life expectancies (average 77.6 years) and the lowest infant mortality rates (6.4 per 1 000 live births) in the world. Our public healthcare system provides a high standard of service at a low cost to the user.
To ensure that government commitment towards public health services remains paramount, the Governor in his address to this Council last October pledged "to increase recurrent spending on healthcare by 22% in real terms by 1997". Access to affordable healthcare is a public right. This right is protected in section 4(d) of the Hospital Authority Ordinance. This right remains the cornerstone of our policy. The common perception is that our public healthcare system is inexpensive and viable. We do have a good system, but we need to make it better. Whereas the accent in the past has been on quantitative care, we must now move on to ensure quality of care in the provision of services, particularly in the light of medical and demographic changes.
Calls for change
As far back as 1990, 1991, 1992 and more recently in April 1993, there have been repeated calls for review and rationalization. In the words of Dr the Honourable LEONG Che-hung, we should not be "hiding behind the skirt" of anyone but should have the "courage" to look into the complex issue of healthcare reform. We hide behind no one, Mr President, and I am also confident that Honourable Members will support change.
The present system
Our healthcare system has often been described as a "dual monopoly" in that the public system is perceived to be cheap but the consumer has to wait, whilst service in the private sector is immediately available but expensive. The public perception is that you either wait or pay. This parallel system has very little interface and hardly any convergence. Indeed, only last week I received another letter clamouring for better service and more choice, and separately,
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yet another call for "a fundamental reassessment of our healthcare policy" before the budgets "of the Hospital Authority reach astronomical figures".
Where do we go from here and how do we get there?
The healthcare system in Hong Kong is coming under some stress due to escalating medical costs, an ageing population and rising public expectations for improved services. We are not unique in this respect and many other countries have experienced similar problems.
Mr President, out of the 24 Organization for Economic Co-operation and Development countries, 18 are in the process of healthcare reform. It is high on the agenda of the United States Administration. Whilst it would be folly to assume that the road to reform is smooth, the destination is well worth reaching. We have identified the current problems and drawn up practicable options to address them. This includes desirable features of other countries' healthcare systems, where they are applicable to the local context.
Focus on primary healthcare
The title of the Consultation Document is Towards Better Health. These three simple words highlight a very fundamental shift in the focus of our health policy. We recognize that healthcare extends far beyond curative treatment in hospitals. Our future emphasis, therefore, should be on the prevention of disease and the promotion of good health. For with good health comes quality of life; with good health comes productivity; with good health comes stability and prosperity. In all this, the private sector has a significant role to play. In the matter of primary healthcare which is participatory care, we all have a role to play. As Izaak WALTON wrote, "Look to your health; health is a blessing that money cannot buy."
Fees and charges
This consultation document offers the community an opportunity to debate and decide on the best way forward. This is not a document about fee levels but structural change.
However, already there are fearful speculative reports, disguised as facts, about dramatic fee increases. The misunderstanding created by erroneous reports, if perpetuated, could torpedo the entire process of consultation. For we must be sensitive to and address the legitimate concerns of the public. A special explanation on hospital fees is therefore necessary.
Fees charged by our public hospital system have their origins in the post-war years when they were originally based on the cost of catering, whilst the fees charged by public out-patient clinics were based on operating cost. Fees levied in all public hospitals — acute general, infirmary and psychiatric — are the same irrespective of the different levels of service, operating cost and
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patient's ability to pay. All fees are updated every year, based on average operating cost and in line with the movement of Government Consumption Expenditure Deflator.
Prior to the setting up of the Hospital Authority, different hospitals had different charging policies. Whereas ex-government hospitals imposed an all-inclusive flat rate, that is to say, "standard charge" for the occupation of a general ward bed, some ex-subvented hospitals, however, imposed "itemized charges" in addition to the basic rate. These historical methods of charging still apply today in some circumstances. For example, as gazetted, some hospitals, in addition to the daily charge of $43 a day for a general ward bed, charge separately for admission, surgical operations and drugs. Furthermore, in some cases, consumables related to special procedures are also subject to separate levies. Thus the current system of fees charged in the public sector is neither rational, consistent nor clearly understood. Unless new options are adopted the existing system will continue.
These historical anomalies in fee structure create confusion and need to be rationalized.
The current fee charging system does not carry with it a clear-cut waiver system except for recipients of public assistance. This causes unnecessary anxieties for the less well off, the elderly people and long-stay patients. This imperfection in our current waiver system needs to be addressed.
Safety net
Our health and welfare policy has always focused on the philosophy of helping the vulnerable and those with special needs. And yet, under the existing healthcare system, the less well-off, the elderly and long-stay patients do not have certainty of access to waiver. We must protect their interest so they are not left in the dark; so they know what society can do to help them; so they are comforted in this knowledge when they need health and medical care.
With the imperfections of the existing system, can we rest on the laurels of our good health indices? Can we stand still and not move forward? Are those in need really looked after? Dare we become complacent?
The consultation document offers options on possible approaches to give people a safety net with certainty, more choice at affordable prices, whilst maintaining the Government's commitment in subsidizing healthcare services and poising ourselves to meet the medical and demographic challenges of tomorrow.
By way of an example, at present, an elderly patient has to pay $43 a day plus various in-patient charges still imposed in some hospitals under the Hospital Authority. There is no automatic waiver system in place. After rationalization, he will know with certainty, and in advance, his entitlement, that is to say what
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will be charged and what will be waived. And people will have more choice at an affordable price.
Mr President, this document is not about the maintenance of the status quo which we believe would be the worst-case scenario. We do not need to write a consultation document for that. This document is about possible options for change for the better. If we move forward to cater to the aspirations of the community and anticipate the needs of the future, we should, from a wide spectrum of options, select those most appropriate to Hong Kong and most acceptable to our community.
The objects spelt out in the consultation document are: to ensure that the existing policy that no one should be denied adequate medical treatment through lack of means remains paramount; to ensure increased accessibility, that is to say, reducing waiting time, better services and more choice, simpler administration and improved efficiency; and above all, to ensure that a balance is struck between the provision of services and the level of subsidy for these services.
Out of the many healthcare models, we have identified five options as the possible way forward. We have in reader-friendly language, I hope, crystallized the arguments for and against each option. The consultation document was written with the benefit of advice from two committees and other experts in the healthcare field. We must do them justice. In the consultation process, we hope that members of the public will openly and frankly put forward their views. We need to see your needs through your eyes.
I commend this carefully-drafted document for your objective analysis and advice. We must find a way forward towards a healthcare system that is accessible, affordable and acceptable to the community. The choice is yours.
Thank you, Mr President.
Oral answers to questions
Police public relations
1. DR CONRAD LAM asked (in Cantonese): Will the Government inform this Council what specific mechanism the police have in hand to maintain good relations with the general public and whether regular reviews are conducted on the ways to promote police relations in various districts?
SECRETARY FOR SECURITY: Mr President, the police attach much importance to good public relations. They are well aware that co-operation and assistance from the public are essential if they are to fight crime effectively.
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The Police Public Relations Bureau is charged with the specific role of promoting good public relations. Its responsibilities include the co-ordination of community relations activities, the maintenance of good relations with the media, publicity, and the planning and implementation of campaigns such as the police recruitment campaign.
At district level, District Commanders attend meetings of district boards and District Fight Crime Committees to listen to their views on law and order issues and to explain policing policies and measures to tackle crime. Staff in police districts, organized by the District Police Community Relations Officer, are involved in a number of schemes designed to enhance police/public relations, such as the Junior Police Call, the Neighbourhood Police Scheme and the School Liaison Scheme. They also maintain close contact with area committees, mutual aid committees, owners' corporations and similar organizations.
All police officers are given training in public relations at recruitment and in subsequent years of service.
Regular reviews are conducted on the ways of promoting good public relations. The Police Public Relations Bureau itself is currently under study as part of the overall police management review.
DR CONRAD LAM (in Cantonese): Mr President, the rough manners of some duty police officers and the rude way they talk very often would damage good police public relations. An example would be unreasonable assaults by the police which generated a number of public complaints. In this connection, what specific steps has the Administration taken to improve police public relations?
SECRETARY FOR SECURITY: Mr President, the Commissioner's directive to all police officers highlights and reinforces the importance of co-operation and understanding from the public and the benefits which will accrue to the police from good police public relations. The training for police officers at all levels and at various stages throughout their career does emphasize the importance of police behaviour and attitude to the public and of police public relations.
DR TANG SIU-TONG (in Cantonese): Mr President, referring to the "Neighbourhood Police Scheme" mentioned in the third paragraph of the reply, can the Administration inform this Council of the reasons for not implementing the scheme in recent years? It was learnt that the scheme would be implemented in Tuen Mun this September. May I ask the Administration whether the scheme will be implemented again in other districts?
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SECRETARY FOR SECURITY: Mr President, the Neighbourhood Police Scheme remains active and in existence. It was introduced first in 1984 to improve police community relations on a local basis. Generally, junior police officers, probably of the rank of sergeant, or inspector, are assigned to specific localities, often in neighbourhood police posts, and their task is to foster relationships with the local communities through, for example, mutual aid committees and other local community organizations. There is no intention to close down the scheme.
MR HENRY TANG (in Cantonese): Mr President, if for some reasons, a person is intimidated or has been attacked on a number of occasions and he has sought police assistance, and the police upon investingation also accepts that the person is in danger, can the Administration inform this Council, in the interest of police public relations, of the circumstances under which the victim can be offered protection in one way or another?
PRESIDENT: Secretary, do you have the answer to that?
SECRETARY FOR SECURITY: I think all I would say is it would depend upon the circumstances, Mr President. I do not think I can answer a hypothetical question like that. The police would always be willing to offer protection where they considered that was necessary.
REV FUNG CHI-WOOD (in Cantonese): Mr President, it has been mentioned in the third paragraph of the reply that the Police Community Relations Office would maintain close contact with local communities. But according to my experience with local communities, they were just general contacts. May I ask the Secretary whether he would consider asking the Police Community Relations Office to hold regular meetings (about once in a couple of months) with representatives of various committees? And as I am not familiar with the functions of the Police Community Relations Office, may I know if it has any duty list, and if yes, can it be made public?
SECRETARY FOR SECURITY: Mr President, I do not quite know what the question is based on. I do not think I did say in my main answer that the Police Public Relations Bureau has regular liaison meetings with local organizations. In fact I do not believe that that is the case. The Police Public Relations Bureau is a headquarters unit charged with overall responsibility for community relations activities and relations with the media and with the planning and implementation of campaigns and other publicity. The regular liaison with local organizations, whether at the district level, for example, district boards and District Fight Crime Committees, or at the more local neighbourhood level, is
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normally undertaken by the district police, not by the headquarters unit. And I think that that system will remain.
On the second part of the question, I think I have, in the second paragraph of my main answer, tried to set out the main responsibilities of the Police Public Relations Bureau, but I will try to give a more detailed reply on that in writing. (Annex I)
MR CHIM PUI-CHUNG (in Cantonese): Mr President, with the advance of time, police public relations have no doubt improved a great deal. Does the Administration have any statistics on the amount of money spent annually on publicity and promotion of police public relations? Has the Administration assessed and reviewed whether the money spent represents good value and how does the Administration ensure that it is really "value for money"?
SECRETARY FOR SECURITY: Mr President, there is, as I said in my main answer, regular reviews of the work of the Police Public Relations Bureau and of the police public relations effort generally throughout the police force and throughout districts. And certainly this is something that very often comes up and is looked at, for example, by the Fight Crime Committee. New initiatives are often considered and injected into the programme of police public relations. And, as I also said in my main answer, the Police Public Relations Bureau, as all other formations in the Police Force, is also currently under review as part of an overall police management review.
Plot ratio
2. MRS PEGGY LAM asked (in Cantonese): According to the Building (Planning) Regulations (Cap. 123 sub. leg.) the maximum plot ratios for domestic and non-domestic buildings are 10 and 15 respectively. Will the Government inform this Council:
(a) of the basis on which the existing plot ratios are determined;
(b) of the rationale for permitting a higher plot ratio for non-domestic buildings;
(c) whether the higher plot ratio for non-domestic buildings has discouraged investment in domestic building projects; if so, the measures in hand or to be formulated to address the situation and if not, what the reasons are; and
(d) whether the existing plot ratios would be reviewed; if so, the timeframe of the review and if not, the reasons thereof?
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SECRETARY FOR PLANNING, ENVIRONMENT AND LANDS: Mr President, the present system of using plot ratios to control building density was first introduced in 1962 and was modelled at the time on building legislation then applicable in the United Kingdom and United States.
The answer to part (a) of the question is that plot ratios are determined under the Building (Planning) Regulations by reference to the height of the building and the class of the site. Class is decided having regard to the streets abutting the site. Plot ratio increases on a sliding scale with the height of the building and the numbers of streets abutting it.
The answer to part (b) of the question is that because domestic buildings are for human habitation they need to meet certain criteria relating to natural light and ventilation. However, non-domestic buildings such as those used for commercial and godown purposes may rely on artificial lighting and ventilation to a greater extent and have higher development densities. A higher plot ratio is therefore permitted for non-domestic buildings.
The answer to part (c) of the question is that there are no indications that differences in plot ratio potential have discouraged investment in domestic building projects. The choice of development type for a particular site is restricted in most cases by statutory zoning and lease conditions. Development decisions are also heavily influenced by market conditions and the economic outlook.
The answer to part (d) of the question is that the plot ratio system has not given rise to significant problems since it was introduced. It is well understood and effective. There are no immediate plans to review it. Plot ratios stipulated under particular statutory town plans may be reviewed from time to time to meet changing circumstances on a case by case basis however.
MRS PEGGY LAM (in Cantonese): Mr President, for a system that was introduced in 1962 and modelled at the time on building legislation then applicable in the United Kingdom and the United States, does it still apply and fit Hong Kong setting today? The Secretary says that the system has not given rise to significant problems. But I think this is the cause of problems that have affected many districts, because once demolished, residential buildings will give way to commercial ones and occupants are unhappy with this for they have to move elsewhere. Will the Administration explain why it thinks there is no problem and why there is no need to review the law that was formulated 30 years ago?
SECRETARY FOR PLANNING, ENVIRONMENT AND LANDS: Mr President, I think in the nature of the building and development industry one thing that is required — because the planning and development and use of projects occupies a long period of time — is a great degree of certainty that the
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rules and regulations which apply will apply continuously into the foreseeable future. The changing of rules of this kind, even in the simplest way, can throw up considerable complexity, the results of which are not always easily foreseen and forecastable without the most far-reaching, intricate and costly studies. I do not believe that in this particular planning and policy application there is a great pressure to reinvent the wheel.
As far as the change of use of buildings to which the Honourable Member has referred in certain districts is concerned, I think that the suggestion that there is a massive changeover from use of buildings for domestic purposes to use of buildings for commercial purposes would probably not be borne out by a statistical study. The point about changing use of buildings is that we do need domestic buildings and we do need commercial buildings and we must try to respond to the requirements of the market in a flexible way and I believe this is what the Town Planning Board seeks to do. The failure on the part of the Administration and the Town Planning Board to operate in this flexible way would undoubtedly be met with a response that we were not providing sufficient commercial space to meet market demands and with complaints that rentals in the commercial sector were rising too steeply.
I should also like to repeat — perhaps not in an exact way but in a simple way — the answer to part of a question asked previously in this Session and that is that over the recent years the redevelopment of buildings in the urban areas has produced up to 40 000 residential flats and the loss of living units as a result of this redevelopment was 8 000, so that the gain of domestic units upon redevelopment, I think, is at a very satisfactory ratio as things stand.
MR JAMES TIEN: Mr President, in the fifth paragraph of his reply, the Secretary stated that the current plot ratio system has not given rise to significant problems since it was introduced, that it was well understood and effective and that there are no immediate plans to review it. If that is the case, could the Secretary please inform this Council why the plot ratio for industrial land was down-zoned from 15 to 9.5 thus creating a huge price increase for industrial premises, and whether that plot ratio will be revised upwards back to 15 in the near future?
SECRETARY FOR PLANNING, ENVIRONMENT AND LANDS: Mr President, I think the Honourable Member is referring to specific circumstances rather than the general application of the Building (Planning) Regulations. The plot ratios applied under the Building (Planning) Regulations have not changed and are unlikely to change. I did, however, refer at the very end of my initial reply to the fact that plot ratios stipulated under particular statutory town plans may need to be reviewed from time to time to meet changing circumstances. And the sort of circumstances which applied in the cases to which I believe the Honourable Member refers are in industrial areas where manufacturers are finding it extremely difficult to reach their factory
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buildings through the existing street system, and where other infrastructural services show very clear signs of becoming overloaded and strained and therefore in danger of producing even worse conditions than exist at the moment. It is under those circumstances that the Town Planning Board — not the Building Authority — may take a decision to lower plot ratios in order to enable the infrastructure to continue to serve.
MR EDWARD HO: Mr President, in view of the shortage of land for domestic development and in order to maximize the development potential of land, will the Secretary please inform this Council whether the Administration would consider increasing domestic plot ratios in the new towns to Zone One standard?
SECRETARY FOR PLANNING, ENVIRONMENT AND LANDS: Mr President, the objective of setting the plot ratios which apply in the new towns at the level they apply is so that we do not produce in the new towns another generation of Mong Koks and Wan Chais. I do not believe therefore that we will be contemplating a general revision upward of the plot ratios which apply in the new towns. We may, however — and we have done so in the past — consider on a case by case basis whether on certain sites a relaxation of plot ratios would be appropriate.
Infirmary services
3. MR FREDERICK FUNG asked (in Cantonese): Further to the written reply given by the Secretary for Health and Welfare on medical infirmary services at the Legislative Council sitting held on 24 March 1993, will the Government inform this Council:
(a) regarding the 4 352 elderly persons classified as in need of medical infirmary services and who are currently staying in private homes for the aged and residential care institutions subvented by SWD, what plans are in place to meet their needs;
(b) what measures will be taken to handle the 5 361 applications in the central waiting list for medical infirmary services; and
(c) what long-term plans are in place to solve the problem of inadequate infirmary beds, for example, whether consideration will be given to improving the existing planning standards with a view to speeding up the construction of more infirmaries?
SECRETARY FOR HEALTH AND WELFARE: Mr President, in order to meet the increasing needs of elderly persons requiring medical services there is a need to provide not only residential care but also care in the community.
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Additional to infirmary places, we are now focussing also on the provision of outreach care. This will be done through the setting up of community-based geriatric service to provide pre-registration assessment and medical care for elderly people outside the hospital environment, with special attention on specialist support to subvented care-and-attention homes. Community nursing service and domiciliary occupational therapy are also in place to provide professional care and support to elderly people in the community as well as to those who care for them.
In addition, district-based co-ordinating committees are being formed in collaboration with the Social Welfare Department, non-government organizations and the Department of Health to co-ordinate service requirements.
There will be 1 114 new infirmary beds coming on stream in the years to come between here and 1998-99. Plans are being formulated by the Hospital Authority to redesignate about 500 general beds and to convert some hospital facilities as an additional supply of infirmary beds.
MR FREDERICK FUNG (in Cantonese): Mr President, the Secretary's reply seems to suggest that she has only thought of two ways to tackle the problem, namely the provision of outreach care and the provision of 1 600 infirmary beds in the near future. According to the written reply she gave at the Legislative Council sitting on 24 March 1993, 4 352 elderly persons had been classified as in need of medical infirmary services. So despite the 1 600 beds to be provided, there is still a shortfall of 2 700 beds. What is the Administration's plan for these 2 700 elderly persons? Secondly referring to the 5 000 or so elderly persons in the central waiting list as mentioned in part (b) of my question, does the Administration have plans to provide them with outreach care? If so, have they been informed that there is no need to wait any further for infirmary places? Besides, when will this so-called "Community Outreach Service" be provided, and how does it operate?
SECRETARY FOR HEALTH AND WELFARE: Mr President, as regards the infirmary places, I would like to refer first of all to the planning standards for infirmary places in hospitals. The planning standards for general hospital beds is five beds per 1 000 population aged 65 and over. Based on the current population ratio we are short of over 1 000 bed places in infirmary. With the setting up of the Community Outreach Service it is expected that the perceived demand will drop or the demand will be met sooner. I did refer in the main reply to the setting up of outreaching teams for elderly patients. We plan to set up eight geriatric teams to focus on the rehabilitation needs of elderly persons who may suffer from various disabilities. The objective is to provide timely assessment of those people who are on the waiting list because not all people on the waiting list are medically assessed as requiring medical services. But with the setting up of the geriatric teams, that assessment work will be carried out earlier and rehabilitative care for elderly people in either homes or other areas
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will assure that appropriate placement of elderly persons in need of residential care takes place earlier rather than later.
DR HUANG CHEN-YA (in Cantonese): Mr President, despite these plans mentioned by the Secretary, it is in fact very difficult for the Administration to cope with the existing problems. We know that we have an aging population and chronic diseases are on the increase, so the demand for imfirmaries and community health care naturally will rise. Can the Administration inform this Council whether it has any statistics on the level of increase of these patients and the rising demand for hospital beds and community health care in order to know whether there is a real chance of improvement in the future?
SECRETARY FOR HEALTH AND WELFARE: Mr President, based on the actual demand figures as supplied to us — not based on the planning standards but in fact additional to the planning standards — we know there will be a total provision of 1 532 beds with a perceived demand for 3 730 beds by the end of this year. The figures will increase to 2 980 and 4 450 by the year 2000. This means the perceived shortfall of beds will decrease from 2 198 in 1993 to 1 470 in the year 2000. However, with the setting up of community-based geriatric service and the focusing on the provision of outreach care, it is expected that the perceived demand will drop considerably or the demand will be met earlier.
I would like also to highlight another provision which does not involve the public sector. Members will recall that some months earlier in this Council, in response to a question, I did say that the Residential Care Homes (Elderly Persons) Bill will be introduced into the Legislative Council early in the 1993-94 Session, in other words in a couple of months' time. The Bill is aimed at ensuring that private homes, in their significant contribution to the care for the elderly, will deliver quality service of a reasonable standard acceptable to the community of Hong Kong. The proposed control scheme will include a licensing system, an appeal system and proper inspection of homes with minimum standards of care. Through this scheme and through the enactment of the law, we hope that more private homes of various kinds will be encouraged to continue their contribution to care for those elderly people who are in need of many types of either social or medical services.
MR TIK CHI-YUEN (in Cantonese): Mr President, many of the elderly persons living in care-and-attention homes are in need of infirmary care. Will the Administration allocate more resources and manpower to these homes so that more infirmary places can be provided? By so doing, it can increase the number of infirmary places and reduce the need for referrals which are often the case now. Does the Administration have any specific plans in this respect and can it provide this Council with the relevant data?
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SECRETARY FOR HEALTH AND WELFARE: Mr President, there are 18 infirmary units in 13 care-and-attention homes; each unit caters to some 20 people. We intend to increase, on an average, by about three additional units in a year but I must stress that this is only a temporary provision; this is an interim measure accepted only on an interim basis. I think the ultimate answer must be to have proper infirmary places in medical settings rather than temporary units in care-and-attention homes. Members will recall that the subvented places, bought places and non-profit-making home places are increasing year by year. Today, there are 3 789 places in subvented organizations, 500 bought places and 618 places in non profit-making organizations. Over the next four years, we plan to increase the number of places by 5 972. The breakdown is: this year the total additional is 1 607; 1994-95 is 1 568; 1995-96 is 1 134; 1996-97 is 1 663. These figures are traceable back to the $2.3 billion additional injection under the Lotteries Fund.
DR TANG SIU-TONG (in Cantonese): Mr President, as regards the control of private homes, I am not as optimistic as the Secretary. I think that the enactment of the Ordinance on residential care homes will lead to the closure of some of these homes or an increase in charges. Does the Administration have any plan to expand the service of care-and-attention homes, and how will it deal with the situation that I have just mentioned?
SECRETARY FOR HEALTH AND WELFARE: Mr President, may I suggest that the problem be debated and considered in detail when the Bill is put to this Council for deliberation.
Demand for doctors and nurses
4. MR TIK CHI-YUEN asked (in Cantonese): Will the Government inform this Council of:
(a) the forecast supply and demand of doctors and nurses for each of the next five years;
(b) the criteria adopted by the Hospital Authority in determining the establishment of doctors and nurses for various hospitals; and
(c) the plan in place for recruiting sufficient doctors and nurses to cope with the increase in the number of hospital beds?
SECRETARY FOR HEALTH AND WELFARE: Mr President, taking into consideration current annual wastage rate at 7.4% for doctors and 9.6% for nurses respectively, we estimate that on average about 255 doctors and 1 223 registered nurses will be required in each of the next five years to meet
HONG KONG LEGISLATIVE COUNCIL — 14 July 1993 4535
the demand arising from new service areas. Against this demand, there will be an annual supply from local tertiary institutions and from our nurses training schools of about 250 doctors and 1 200 registered nurses for employment in the public sector.
In order to meet the projected requirement of nursing staff for new hospital projects, plans are being made to expand the nurses training school at the United Christian Hospital and the Tai Po Nethersole Hospital to provide an additional 130 registered nurses each year. Other sources of supply include direct recruitment and nursing degree graduates from the tertiary institutions.
Apart from ratios drawn up by the former Medical Development Advisory Committee (MDAC), the Hospital Authority also takes reference from the actual operational requirements and staffing provision in public hospitals having regard to the advancements in medical technology and the advent of new treatment procedures.
With the integration of all public hospitals under one management by the Hospital Authority, the manpower planning process first involves business planning by individual hospitals to identify the actual demand and operational requirements in relation to their objectives and targets. This is followed by central assessment by the Hospital Authority on the overall demand and supply of manpower and the setting of annual recruitment targets.
This planning process has been applied in the case of Pamela Youde Nethersole Eastern Hospital and the Tai Po Nethersole Hospital. As regards the planned new North District Hospital, a committee under my chairmanship, comprising representatives from Finance Branch, Hospital Authority and Department of Health has been set up to plan the manpower requirements and to ensure that training programmes are in place to meet them.
MR TIK CHI-YUEN (in Cantonese): Mr President, the former Medical Development Advisory Committee had drawn up manning ratios as a planning guide. Is the Administration following these ratios when planning its staffing provision? If not, what are the reasons and are there other objective guides to follow in this respect?
SECRETARY FOR HEALTH AND WELFARE: Mr President, the manpower planning ratios under the former MDAC were used as reference points for planning purposes; they were centrally prescribed. In the words indeed of the MDAC at the meeting in November in the year when they devised the manning ratio, it was stated that, "Planning ratios are intended as a basis for forecasting future manpower requirements and training needs. It may or may not coincide with the approved manning scales. The latter will have to take into consideration not only the planning ratios but also such considerations as technology, clinical care, complexity of the development of medical services and
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also various conditions such as bed occupancy or attendance rates, usage changes and the population profile of a particular area". In other words, planning ratios are used as a planning guide, as reference points. But reference points being reference points, actual consideration will take into account operational requirements.
MR MAN SAI-CHEONG (in Cantonese): Mr President, in the fifth paragraph of her reply, the Secretary said that the Pamela Youde Nethersole Eastern Hospital, in setting its recruitment targets, took reference from the central assessment of manpower requirements. I understand that the Eastern District Hospital will be operational this October, but it will not be able to provide a comprehensive 24-hour service as scheduled, particularly the provision of accident and emergency service after midnight. May I ask if this is due to the inadequate number of doctors and nurses to meet the demand? If yes, does that indicate that the existing training programmes cannot meet the manpower requirements of new hospitals?
SECRETARY FOR HEALTH AND WELFARE: Mr President, I think the question is specifically on the Eastern District Hospital where we know that the building was completed in December last year and the keys were handed over to the Hospital Authority in April this year. There will be a commissioning period. It will be opened in October this year with 450 beds, including surgery beds, medicine beds, obstetrics, gynaecology, orthopaedics, paediatrics, with 16-hour accident and emergency (A & E) service. And in April next year, there will be 850 beds comprising geriatrics, radiology, oncology, ENT, intensive care, plus 24-hour A & E. I think Members will have reference to the previous answers I gave on the commissioning of new hospitals. The opening of a new hospital is not like the opening of a theatre where all the seats are full on Day One. We have got to make sure the hospitals are opened and in function at the level which the patients would require care for. In other words, we feel that the commissioning of the Eastern District Hospital, to be called Pamela Youde Nethersole Eastern Hospital, is on time and within schedule.
MR MICHAEL HO (in Cantonese): Mr President, in her reply to Mr TIK Chi-yuen's question, the Secretary said that the ratios drawn up by the former Medical Development Advisory Committee were a planning guide. May I point out that there is a wide gap between these planning ratios and the actual staffing provision. So what is the point of adhering to these ratios? Furthermore, the Secretary said in the fourth paragraph of her reply that manpower planning would be in the hands of the Hospital Authority. As it stands, the Authority is merely holding the funds and there is no such thing as a formula for calculating manning ratios. The number of staff recruited depends much on the size of the funds allocated. In this connection, will the Administration require the Hospital Authority to set the formula for calculating manpower requirements within a specified period of time?
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PRESIDENT: You have got two independent questions there, Mr HO. I think you had better opt for one of them because there is a long list of people wanting to ask questions.
MR MICHAEL HO (in Cantonese): Mr President, I will try to rephrase my question. Referring to the fourth paragraph of the reply in which it said that manpower planning was in the hands of the Hospital Authority, will the Administration inform this Council if it would require the Hospital Authority to set the formula for calculating manpower requirements within a specified period of time?
SECRETARY FOR HEALTH AND WELFARE: Mr President, both the Hospital Authority and the Department of Health are completing their review on future manpower requirements. The outcome of these reviews will be shortly discussed by the Health and Medical Development Advisory Committee and separately I myself will chair a co ordinating committee specifically to address the problem of nursing manpower requirements and the direction for the future.
DR TANG SIU-TONG (in Cantonese): Mr President, in the first paragraph of her reply, the Secretary said that at present, local institutions could supply 1 200 registered nurses for employment every year. What is the annual wastage rate of student nurses in Hong Kong? If the wastage rate is high, does that mean that the supply of registered nurses for employment cannot reach the level of 1 200 a year?
SECRETARY FOR HEALTH AND WELFARE: Mr President, may I offer some figures for Members' consideration. In respect of doctors the strength at the moment is 2 372; in respect of the nurses in the public hospitals, at the moment the strength is 16 373. The intake in the first quarter in 1993 is 79 for doctors and 695 for nurses. We are indeed fast catching up with the recruitment of nurses. We have three intakes in a year in the nine hospitals providing some 3 835 places, but of course training for nurses is a three-year system. Particularly this year, I am happy to report that the recruitment in the nursing school has been very vibrant and young people are now coming forward wanting to be nurses. We are "full house" in other words. But we do have a shortage still in particular areas of nursing, for instance, psychiatric nursing which is going to be a problem area we need to address, and there are several measures,for example, using special training courses for general nurses for psychiatric training purposes which will require 18 months' training. We had in the past a global problem of nursing in the sense that a couple of years ago there was a serious loss of nurses from Hong Kong to other parts of the world. Therefore the lead time is shortened, and though it could be said that the acuteness of the problem has heightened because there is less time available to
HONG KONG LEGISLATIVE COUNCIL — 14 July 1993 4538 deal with it, I think we are certainly beginning to see the light at the end of the tunnel.
MR PETER WONG: Mr President, is it part of the plan to include overseas trained professionals to help ensure that our medical staff have an international outlook which is vital to maintaining world standards?
SECRETARY FOR HEALTH AND WELFARE: Mr President, I hope the question itself does not imply that our standards are not terribly good. Our standards are in fact of world standard; so I have no answer to that question, Mr President.
Jury verdict
5. MR SIMON IP asked: In relation to a recently reported criminal trial in the High Court in which the foreman of the jury reportedly returned a verdict not discussed by the jury, has the Administration considered:
(a) how similar incidents can be avoided in the future, in particular how to ensure that the jury knows all the charges against the defendants, and how to rectify a verdict wrongly pronounced by the foreman; and
(b) how to ensure that jurors have a thorough understanding of their rights and duties, especially what they should do when they do not understand matters in the proceedings?
ATTORNEY GENERAL: Mr President, following the case referred to in the question, the Judiciary has carefully considered what steps should be taken to avoid a similar incident occurring in the future. The Acting Chief Justice has this week sent to all Judges of the High Court a specimen direction and a form which the Judges are invited to use in all future jury trials. The specimen direction is to be given before the jury retires to consider its verdict. It explains that each juror will be given a piece of paper setting out the questions that the foreman of the jury will later be asked. It then suggests that, after the collective decision is reached, each juror should note on his or her piece of paper the agreed answers, and should return to court with that piece of paper. If any mistake arises when the foreman answers the questions put to him or her, the jurors are instructed in the specimen direction to draw it to the judge's immediate attention.
The piece of paper is to be based on the form sent out by the Acting Chief Justice. That may have to be modified to meet particular circumstances. It sets out a series of questions in respect of each count and each accused, and in
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respect of each alternative verdict open to the jury if the verdict on the main count is not guilty.
The Acting Chief Justice has asked High Court Judges, at the end of three months, to supply the Chief Justice with any comments they may have on how this scheme is working.
As for the second part of the question, the primary responsibility for ensuring that jurors understand their rights and duties lies with the trial judge. The new specimen direction and form that I have just referred to are designed to help jurors to understand what they are being asked to decide and what they should do if the foreman makes a mistake. Jurors are also assisted before the trial begins by being given a pamphlet that explains their role. That pamphlet is now being revised and the Judiciary has proposed that, in addition, an instructional video should be prepared for the information of jurors.
MR SIMON IP: Mr President, although the common jury is a hallowed institution of the common law and one that should be retained, does the Administration agree that the system under which a jury performs its functions requires an overhaul to avoid as far as humanly possible miscarriages of justice? If so, what initiatives does the Administration intend to take? If not, why not?
ATTORNEY GENERAL: Mr President, the question of jury trials was examined some years ago by a Select Committee of this Council. That of course was in the context of complex commercial crime but it raised fundamental issues and the recommendation of the Select Committee was that the jury system should be retained. I believe that that was the right decision. I think that the jury system is a fundamental bulwark of the liberties of the individual. I have no present plans to review the jury system. We will have to see how the proposed specimen direction put forward by the Acting Chief Justice works in practice and see whether there are any future incidents. We rather hope that there will not be.
MISS EMILY LAU (in Cantonese): Mr President, may I ask the Administration if similar incidents had occurred in the past? Does the Attorney General have details on them? If there were such incidents, will he inform this Council of the number of these cases and the details?
ATTORNEY GENERAL: Mr President, a few weeks ago a District Judge wrote to me and to one or two others listing three cases that had occurred to her knowledge. She also wrote to the Acting Chief Justice. I am not aware of any other cases, certainly no other cases have been brought to my attention, and I believe that no other cases have been brought to the attention of the Judiciary. But the Acting Chief Justice has written to the chairman of the Bar Association
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asking her to canvass among her members to see if they know of any other cases where this has occurred.
MISS EMILY LAU (in Cantonese): Mr President, may I ask a further question: As we heard that some jurors did not have a good command of English, can the Attorney General provide any detailed information on this, and do the cases referred to have any relation with the English standard of the jurors (some of them have very poor standard indeed)?
ATTORNEY GENERAL: There was no suggestion of that at all in this case, Mr President.
Kwai Chung container port traffic
6. MR WONG WAI-YIN asked (in Cantonese): In view of recent occasions when traffic in Kowloon West and New Territories West came to a standstill as a result of container trucks going at the same time to the Kwai Chung Container Terminal for loading/ unloading, will the Government inform this Council what effective measures will be implemented to prevent the recurrence of similar incidents?
SECRETARY FOR TRANSPORT: Mr President, traffic congestion in the vicinity of the Kwai Chung container port is caused mainly by the fact that the terminals and their back up areas are reaching saturation. While the road system in the area is capable of meeting normal traffic demands, problems can arise when there is a sudden surge of traffic, for example when the terminals reopen after the passage of a typhoon. The incident on 28 June, in which traffic came to a standstill, was caused by a greatly increased flow of container vehicles when the terminals reopened after the lowering of the No. 8 typhoon signal.
Much has already been done to improve traffic flows in Kwai Chung in the last few years. Kwai Chung Road has been widened, Container Port Road realigned, and more lorry parks and emergency vehicle holding areas have been provided. In addition, a contingency plan has been adopted by the terminal operators and the relevant government departments to help deal with periods of exceptional traffic demand. This provides for a co-ordinated and phased response when traffic is heavier than normal. For example, at such times vehicles may be diverted to emergency holding areas to reduce the volume of traffic on the roads.
A number of new measures will also be introduced shortly. These include:
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(a) firstly, the allocation of about 30 hectares of land in the next six months to be used as additional back up areas for the port;
(b) secondly, the provision of a second emergency holding area, capable of accommodating about 150 container vehicles;
(c) thirdly, the adoption by two terminal operators of an appointment system for vehicles, which should facilitate a more orderly flow to and from the port; and
(d) fourthly, strengthening the police district traffic team at times of expected congestion, so as to improve traffic regulation in the area.
A number of other proposals are under consideration. These include:
(a) a review of access points to the terminals to see whether these can be improved so as to provide for a smoother traffic flow; and
(b) establishing an Emergency Control Centre in Kwai Chung, comprising representatives of government departments, the terminal operators and the trucking industry, which would be manned at times of particularly heavy traffic demand.
Mr President, I am confident that these measures will help to ease the traffic situation in Kwai Chung in the short term at times of peak demand. I will not deny that they are short-term expedients and, like all short-term expedients, have their limitations. Given the fact that the congestion we have seen is due to the terminals reaching saturation, the real, long-term solution lies in the opening of Container Terminals 8 and 9, with their very substantial back up areas totalling 76 hectares and associated access road improvements.
MR WONG WAI-YIN (in Cantonese): Mr President, the Secretary mentioned a number of improvement measures in his main reply, but I wonder if they are effective in easing traffic congestion. When these new measures are implemented, to what extent can they improve traffic flows if serious congestion similar to the one on 28 June occurs again? Would the Secretary care to elaborate?
SECRETARY FOR TRANSPORT: Mr President, I think these short-term measures in combination should not, if they are properly acted upon, result in a repetition of the traffic jam we saw on 28 June. It was unfortunate that on that particular day the contingency arrangements we had in place were not working very well. We are talking to all parties concerned to make sure that when these contingency plans are triggered they will work properly in future.
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MRS MIRIAM LAU: Mr President, one of the new measures which will be introduced is the strengthening of the police district traffic team. Can the Secretary inform this Council specifically how this particular police district traffic team will be strengthened?
SECRETARY FOR TRANSPORT: Mr President, I do not have specific details of how the dedicated police team will be strengthened, but I am assured by the Transport Department and the Police Commander of the district that we have normal police patrols in Kwai Chung in addition to the dedicated team. This dedicated team is used to regulate traffic at normal times, but it can be increased at short notice if necessary.
MR FREDERICK FUNG (in Cantonese): Mr President, in the last paragraph of his reply, the Secretary said that the opening of Container Terminals 8 and 9 would further improve the traffic situation. But is the real situation the other way round? With the opening of two more container terminals, traffic congestion will be more serious a problem. I hope the Secretary would pay attention to the fact that traffic congestion is not confined to Kwai Chung only. In fact, the whole West Kowloon including Sham Shui Po is also affected. May I ask the Secretary whether the Administration would, in formulating long-term improvement measures, consider adopting an alternative site on Lantau Island for the construction of Container Terminal 9?
PRESIDENT: Some of this is getting rather remote, Secretary. Have you got an answer to the first question?
SECRETARY FOR TRANSPORT: Mr President, the answer to the first question is that, as I mentioned in my main reply, the creation of more holding space and more space for container operations, that is to say, the stuffing and stacking of containers, should reduce the number of wasted trips on the part of container lorries. If more space is provided, if container lorries can wait before they can get into the terminals, there will be fewer trips and therefore it should have the immediate impact of reducing the number of trips in and around Kwai Chung itself. Similarly if enough space is provided within the container port with the opening of Container Terminals 8 and 9, the total volume of container lorry trips within the wider area of the west New Territories should be reduced.
MR LEE WING-TAT (in Cantonese): Mr President, in reply to Mr WONG Wai-yin's question just now, Mr YEUNG Kai-yin expressed confidence in the effectiveness of these short-term measures in reducing traffic congestion. But I would say I am all the more worried because as I see it, there was serious traffic congestion at Kwai Chung Container Terminal following typhoons or heavy
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rains and one of the factors was whether there was adequate co-ordination and co operation between terminal operators and government departments. Since in law, the Administration has no power to interfere with the internal management of terminal operators, what will the Administration do in the face of such difficulty? Will the Administration follow the examples of other international ports and consider adopting the long-term measure of establishing a container terminal authority with statutory powers?
SECRETARY FOR TRANSPORT: Mr President, I am afraid the question goes even further than the immediate problem of congestion in the Kwai Chung area. The question of a maritime or port authority falls outside my remit. But I will convey the question to my colleague, the Secretary for Economic Services, and I will ask him if he would wish to give a reply.
Written answers to questions
Right of abode
7. MR CHIM PUI-CHUNG asked (in Chinese): In relation to the Government's reply to a question at the Legislative Council Sitting on 2 June 1993 pointing out that a person with at least one parent who was a permanent resident of Hong Kong at the time of his or her birth would automatically acquire the right of abode in Hong Kong on 1 July 1997, will the Government inform this Council:
(a) how the identity of those persons would be verified;
(b) how it would prevent and stop acquisition of the right of abode in Hong Kong on 1 July 1997 by way of producing false information and illegal documents; and
(c) what charges would be instituted against the offenders and what penalty would be imposed?
SECRETARY FOR SECURITY: Mr President, we will need to work out detailed administrative arrangements with the Chinese authorities. We will suggest that the Chinese authorities should:
(a) verify the parent-child relationship claimed in each application; and
(b) provide details of the parent(s) for us to check whether he/she/they had permanent resident status at the time of the child's birth.
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We will no doubt conduct a further check by interviewing the children when they enter Hong Kong to confirm that they are indeed the children in the application.
We believe that these checks will be adequate to expose any attempt to obtain right of abode in Hong Kong by fraudulent means.
Strict penalties for such fraud already exist. Under section 42 of the Immigration Ordinance, a person who makes a false statement or representation to an immigration officer shall be guilty of an offence, for which he or she is liable to imprisonment for up to 14 years.
Water supply charges
8. MR FRED LI asked (in Chinese): Will the Government inform this Council of the following:
(a) the operating cost, charges and rates of return of supplying water for domestic and industrial consumption respectively in the past five years; their respective anticipated changes in the coming year following the imposition of new charges in August this year;
(b) the rationale for setting a target return of 7% for supplying water; whether such target applies to both domestic and industrial consumers; and
(c) the specific plans in place and the time frame for achieving the above target return?
SECRETARY FOR WORKS: Mr President,
(a) The details of the operating costs, charges for domestic and industrial consumption, and the actual rate of return in the past five years and their anticipated changes in the coming year following the imposition of the new charges are set out in the Appendix.
(b) The target return of 7% is a notional figure to reflect the financing charges and opportunity cost of the capital employed. This is applicable to both domestic and industrial consumers.
The appendix shows that the actual rates of return are lower than the target return of 7%.
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(c) Target rate of return is only one of the factors in considering the appropriate level of water charges. Other factors such as public acceptability and inflation would be carefully assessed. Time frame and specific plans for achievement are currently under general review.
Appendix
1988-89
$M
Chargeable supplies
Forecast 1993-94 $M
Estimate 1992-93 $M
1991-92 $M
1990-91 $M
1989-90 $M
Domestic 848.8 730.0 669.3 566.6 435.9 365.9 Non-domestic 1,391.6 1,227.6 1,139.1 1,038.4 921.9 752.7 --------- --------- ---------- --------- --------- ---------
2,240.4 1,957.6 1,808.4 1,605.0 1,357.8 1,118.6
--------- --------- ---------- --------- --------- ---------
Total operating cost 3,667.8 3,286.0 3,065.4 2,727.1 2,158.9 1,902.8 Actual rate of return 5.3% 5.9% 4.5% 5.8% 4.7% 4.2% Note: 1. In addition to chargeable supplies, revenue of the department also includes the following:
- Contribution from rates
- Subsidy from the Government
- Fees, licences and reimbursable work
- Interest from deposits
2. The projected rate of return for 1993-94 is based on the assumption that the proposed increase for 1993-94 as set out in the Workworks (Amendment) Regulation 1993 would be adopted.
Siting of chemical plants
9. MR PETER WONG asked: Will the Administration inform this Council of the present position for developing the site at northwest Tuen Mun for the accommodation of chemical plants and related facilities, and whether it intends to relocate all such existing facilities to this site?
SECRETARY FOR PLANNING, ENVIRONMENT AND LANDS: Mr President, a Special Industrial Area covering 55 hectares of land will be developed in Tuen Mun Area 38. Reclamation and servicing works are scheduled to commence in the middle of 1994 for completion in phases by 1999. About 25 hectares of land will be reserved for the chemical industry to serve both new developments as well as existing facilities which may wish to move there. The Administration does not intend to initiate or organize relocation arrangements. It will be for operators to decide whether to relocate themselves.
HONG KONG LEGISLATIVE COUNCIL — 14 July 1993 4546 Export procedures
10. DR HUANG CHEN-YA asked (in Chinese): In view of the growing demand for prompt delivery of goods ordered by overseas buyers (especially from the United States), will the Government inform this Council what assistance is now provided to local manufacturers to enhance efficiency in the production, stock control and consigning of exported goods; will the Government expedite the processing of export documents?
SECRETARY FOR TRADE AND INDUSTRY: Mr President, it is the Government's long standing policy to promote efficiency on the part of our manufacturers in production, management (including inventory control) and delivery of manufactured goods.
A wide range of support services are provided by the Industry Department and other industrial support organizations such as the Hong Kong Productivity Council, including consultancy services provided by the latter on production technology as well as management systems to improve stock control.
The Industry Department operates an Industrial Extension Service whereby staff of the department visit factories, especially small to medium-sized ones, to emphasize the importance of production efficiency. Where problems relating to management systems and production technology are identified, they would give advice or refer the manufacturers to appropriate agencies, such as the Hong Kong Productivity Council.
The Industry Department also commissions techno-economic and market research consultancy studies on major manufacturing sectors on a regular basis to identify measures which could be introduced to further improve productivity.
As regards the processing of export documents, the Trade Department is committed to processing export licence applications and other export documents as expeditiously as possible without compromising the integrity of our trade control systems. Our commitment towards this objective is reflected in the performance pledges made by the Trade Department to adhere to target processing time of one to three working days for various types of export documents.
With a view to further assisting textiles traders, the Trade Department has, with effect from 1 July 1993, introduced a voluntary Textiles Traders Registration Scheme whereby textiles traders registered under the scheme may import textiles products, export such products to non-restrained markets and re-export them to all markets without a licence.
In the long run, the processing of export documents would be further facilitated through implementation of an electronic data interchange (EDI) system whereby traders will be able to complete export documentation
HONG KONG LEGISLATIVE COUNCIL — 14 July 1993 4547
procedures through the transmission of electronic messages. EDI would obviate the need for traders to apply for export documents in person, thus saving time and costs, and would substantially reduce the paperwork involved. The current plan is to have this service available to traders in stages starting from 1995.
Protection for residents in the vicinity of Ma Wan Channel
11. MR JIMMY McGREGOR asked: Will the Government inform this Council what measures it will take to protect the residents in the coastal areas bordering Ma Wan Channel against the possible risks posed by the large number of vessels passing through the Channel, bearing in mind that some of these vessels may carry dangerous goods?
SECRETARY FOR SECURITY: Mr President, the Ma Wan Channel is a major waterway for ocean-going vessels passing through Hong Kong. To minimize any possible risks, the Marine Department maintains a traffic management system. To enhance this system, the building of a control station for the area is due to start later this year.
In addition, pilotage is compulsory for all vessels over 5 000 gross registered tons; and the Marine Department provides dedicated launches for escorting large vessels in transit around Ma Wan.
All local craft, and ocean-going vessels loading and unloading in Hong Kong, are subject to control under local legislation. Specifically, the carriage of dangerous goods on vessels is regulated by the Dangerous Goods (Shipping) Regulations. Other vessels in transit through Hong Kong are not subject to this legislation, but they must comply with all the safety standards laid down under international maritime conventions.
Extension of stay
12. MR TAM YIU-CHUNG asked (in Chinese): Will the Government inform this Council:
(a) of the approximate number of tourists from Australia, New Zealand, North American, Western and Northern European countries, who have stayed in Hong Kong for more than a year through successful application for extension of stay over the past three years; and
(b) whether the Administration is aware that some of these tourists have taken up employment and self-employment in Hong Kong, for example, street hawking, during their stay in the territory; whether appropriate measures have been taken to stop these activities; and
HONG KONG LEGISLATIVE COUNCIL — 14 July 1993 4548
whether consideration will be given to tightening up the criteria for granting extension of stay to tourists?
SECRETARY FOR SECURITY: Mr President, the answer to the first part of the question is none. It is not our policy to grant visitors extensions of stay beyond one year.
Visitors who are found in non-approved employment in Hong Kong are in breach of their conditions of stay. Under section 41 of the Immigration Ordinance, they are liable to prosecution and, if convicted, to a fine of $5,000 and to imprisonment for two years. Action is taken both by the Immigration Department and by the Urban Services and Regional Services Departments in respect of the kind of activities mentioned. Immigration Officers conduct surprise visits to locations where foreign workers are suspected to be illegally employed. Urban and Regional Services Department staff take action against all unlicensed hawkers. The Urban Services Department in particular deploys General Duties Teams on Sundays and Public Holidays to patrol certain areas where foreign hawkers tend to congregate. Between 1990 and May 1993, a total of about 1 000 arrests of foreign hawkers were made.
If tourists are prosecuted and convicted of hawking without a licence, the Immigration Department is unlikely to grant them any further extension of stay. The Immigration Department grants extensions of stay to visitors only if satisfied that they have a genuine reason to stay longer and that they have the means to support themselves legally in Hong Kong. These criteria are adequate.
Visa policy
13. MR PANG CHUN-HOI asked (in Chinese): As holders of passports issued by the People's Republic of China are allowed to stay in Hong Kong in transit for seven days without visas, will the Government inform this Council of the following:
(a) the basis on which this policy is formulated;
(b) as it may be easier for these visitors, as compared with tourists from other countries, to overstay or illegally reside in Hong Kong, whether monitoring measures are in place to prevent such incidents; if so, what the details are; and
(c) whether consideration will be given to relaxing this policy so that Taiwanese visitors in transit in Hong Kong will also be exempted from visa requirement; if not, what the reasons are?
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SECRETARY FOR SECURITY: Mr President, PRC nationals transiting Hong Kong have created few problems in recent years. In 1992, for example, only 0.02% overstayed. This prompted the change in policy, which will also result in the release of staff from visa processing work to much-needed counter duties at Lo Wu.
We will maintain effective pre-entry and post-entry controls to prevent overstaying. PRC transitees are required to prove that they have valid passports, visas and onward air tickets for their destination countries before they are admitted into Hong Kong. The Immigration Department's computerized passenger movement record exposes any transitee who has overstayed. Overstayers are liable to prosecution and removal from Hong Kong.
There is no plan to waive visa requirements for Taiwanese visitors in transit. We require visas or permits from all visitors from administrations not recognized by the British Government, including Taiwan. However, the requirements for Taiwanese visitors are not onerous. They can obtain Multiple Visit Permits, and during the validity of their permits, they can visit Hong Kong as they wish.
English language teaching
14. MR ERIC LI asked (in Chinese): With regard to the Secretary for Education and Manpower's reply of 26 May 1993 to the Legislative Council Question on English language teachers, will the Government inform this Council:
(a) of the circumstances and criteria under which the Education Department would permit a university graduate not majoring in English Language or English Literature to teach the English subject; and
(b) of the induction course(s) that the Education Department has provided for the English Language teachers who are not graduates in English Language or English Literature, so as to enhance their language ability in English Language teaching?
SECRETARY FOR EDUCATION AND MANPOWER: Mr President,
(a) Under the Education Regulations, a university graduate not majoring in English Language or English Literature may teach English if he is a registered teacher, or if he is a permitted teacher meeting the following requirements:
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(i) Grade E or higher grade in English Language (Syllabus B) in the Hong Kong Certificate of Education Examination; or
(ii) Grade E or higher grade in English Language in the Hong Kong Certificate of Education (English) Examination; or
(iii) a pass in English Language in the Hong Kong English School Certificate, the Hong Kong Chinese School Certificate, or the Hong Kong School Certificate; or
(iv) a knowledge of English of a standard which in the opinion of the Director of Education is equivalent to Grade E in English Language (Syllabus B) in the Hong Kong Certificate of Education Examination.
(b) The Advisory Inspectorate and the Institute of Language in Education of the Education Department provide regular training courses open to all English teachers, whether they are graduates of English or graduates of other disciplines, to enhance their knowledge and skills in teaching English. The Advisory Inspectorate also organizes special training courses and workshops each year for non-English major teachers to enhance their proficiency in English and competence in teaching the subject. In the 1992-93 school year, four training courses were conducted for 131 non-subject-trained English teachers from 119 secondary schools. Similar courses will be organized in September and October 1993. Other advisory services, including consultation sessions, are also provided by subject inspectors for English teachers who need assistance.
Immigration clearance at Lo Wu
15. REV FUNG CHI-WOOD asked (in Chinese): In view of the large number of complaints lodged by members of the public about the long waiting time for going through immigration clearance at Lo Wu Terminal especially during weekends or holidays, will the Government inform this Council:
(a) what interim measures and long-term plan will be made by the Immigration Department to provide better service, such as through the increase of manpower or the installation of additional facilities; and
(b) whether the Administration will make greater use of the facilities at Lok Ma Chau or other passages to alleviate the congestion at Lo Wu Terminal?
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SECRETARY FOR SECURITY: Mr President, the Lo Wu crossing point is under increasing pressure. It is now probably the world's busiest single crossing point, with passenger traffic averaging nearly 9 000 people an hour. Passenger traffic has increased nearly 40% since 1989, a result largely of southern China's economic growth. The Immigration Department has managed very well in the circumstances. 90% of travellers are still being cleared within the 30-minute target waiting time. Only on busy weekends and public holidays are Immigration Department failing significantly to reach the target. Out of 84 million people crossing the border in the last two and a half years, only 52 formal complaints have been received.
We accept, however, that, improvements need to be made to deal with the situation. A major extension to the Lo Wu terminal is due to be completed in 1995. This will provide an additional 72 immigration counters, an increase of 82%. The introduction of optical readers in the same year will also speed up significantly the clearance of Hong Kong Identity Card holders, who are the vast majority of border-crossers.
Pending these major improvements, staff have been deployed by Immigration Department so as to provide maximum coverage at the worst times, that is, over busy weekends and public holidays. A number of other initiatives have been taken to ease congestion and to speed up clearance times:
(a) separate immigration counters were introduced last year for residents and visitors;
(b) the Easy Travel Scheme has enabled permanent identity card holders to clear immigration much more easily;
(c) the opening hours of Lu Wu Terminal were extended by one and half hours last year. The Terminal now operates 16 hours a day from 7.00 am to 11.00 pm; and
(d) starting from 1 August 1993, PRC transitees will be allowed to stay for seven days without a visa. This will enable manpower at Lo Wu now employed on paper work for issuing visas to be deployed to direct counter duty, thus reducing queues.
We shall also be providing additional immigration staff for Lo Wu later this year by redeploying staff as the screening of Vietnamese migrants is completed.
Two-way permit holders from China are already permitted to use entry points other than Lo Wu. A large proportion of organized tours from Hong Kong also use other entry points. With effect from 1 August, PRC nationals transiting through Hong Kong will be permitted to use any of the other land and sea control points. This will relieve Lo Wu further, as suggested.
HONG KONG LEGISLATIVE COUNCIL — 14 July 1993 4552 Visa requirements for PRC visitors
16. MR MARTIN BARROW asked: In view of the arrangement announced on 17 June 1993 for PRC transients to be allowed to stay in Hong Kong for seven days without visa, will the Government inform this Council whether PRC visitors who return to the PRC within seven days can also be granted the same arrangements?
SECRETARY FOR SECURITY: Mr President, apart from those transiting Hong Kong to other destinations, nearly all short-term PRC visitors come to Hong Kong on two-way permits. They do not need to apply separately for a visa.
Extra charges on patients for costs of certain surgical equipment
17. MISS EMILY LAU asked (in Chinese): In view of the complaints that patients undergoing surgical operations in public hospitals have to make additional payment for therapeutic appliances used for them in these operations, will the Government inform this Council:
(a) of the criteria under which patients have to pay for such appliances; what kind of therapeutic appliances are to be paid by patients;
(b) whether all public hospitals follow the same criteria in charging patients for these appliances; and
(c) whether the Government will provide financial assistance to those patients who cannot afford such appliances and if so, what criteria are adopted to determine eligibility and what the maximum amount of financial assistance being offered is?
SECRETARY FOR HEALTH AND WELFARE: Mr President, under the Hospital Authority, the fees charged are set out in Gazette Notices No 13/1992 (former government hospitals) and 22/1992 (former subvented hospitals) respectively.
In former government hospitals, most patients staying in public wards are charged a daily maintenance fee at $43. The maintenance fee covers clinical, biochemical and pathological investigations, vaccines, general nursing and medicine. Other charges, for example, for certain surgical implants and special equipment, are determined by the medical officer attending the patient as provided under section 2.0(d) in SS No 4 to Gazette No 13/1992. If patients cannot afford the special equipment or surgical implants, they may apply for waiver through the medical social workers, upon whose recommendation grants
HONG KONG LEGISLATIVE COUNCIL — 14 July 1993 4553
could be released from the Samaritan Fund to cover whole or part of the cost involved.
Some public hospitals, that is, former subvented hospitals, have historically applied their own fee structure in respect of medical treatment not covered by the daily maintenance fee. These include itemized charges for admission, surgical operations and drugs. With the setting up of the Hospital Authority and the bringing of all 39 public hospitals under one management, it is necessary to standardize the fee structure so that patients know beforehand with certainty how much they would have to pay for hospital services. The need for rationalizing and standardizing the fee structure in public hospitals is spelt out in the Consultation Document Towards Better Health tabled before Honourable Members at the sitting of this Council on 14 July 1993.
Rule 29 of Criminal Appeal (Cap. 221)
18. MR HENRY TANG asked (in Chinese): Will the Government review the application of Rule 29 of the Criminal Appeal Rules Cap. 221 (relating to suspension of disqualifications) to convictions of Members of the Legislative Council/municipal councils/district boards for corrupt and illegal electoral practices, bearing in mind that a prison sentence in excess of three months for any offence whatsoever will immediately disqualify such members from holding office regardless of whether the conviction giving rise to the sentence is subsequently quashed on appeal?
SECRETARY FOR CONSTITUTIONAL AFFAIRS: Mr President, under current electoral laws, an incumbent member of the Legislative Council/municipal councils/district boards who has been sentenced to imprisonment for three months or more will immediately be disqualified from holding office. The Administration does not have any plans to change the trigger point for disqualification from one based on sentence to one based on conviction. This is because allowing an incumbent member serving a sentence of imprisonment to retain his seat pending the outcome of his appeal would create considerable uncertainties which would be against the interests of both his constituency as well as the general public. The existing disqualification provisions ensure that such uncertainties will not arise, and is not a pre-judgement of any appeal which the incumbent member may lodge.
Reports on causes of death of patients
19. MR MICHAEL HO asked (in Chinese): Regarding the incident in which a patient died after undergoing an operation involving implantation of Baruah heart valves at Prince of Wales Hospital in April last year, will the Government inform this Council:
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(a) whether investigations into the cause of his death have been completed; if so, what the findings are; if not, what the reasons are; and
(b) of the policy on the publication of such reports on causes of death; and whether the findings of the above investigations will be made public?
SECRETARY FOR HEALTH AND WELFARE: Mr President, the Hospital Authority has commissioned an independent inquiry by a visiting cardiologist on all Baruah valve replacements performed at Prince of Wales Hospital. This inquiry concluded that the patients had been provided with proper care and medical treatment, that their consent had been obtained before the operations, and that they had been given a full explanation of the potential risks involved.
As regards the specific incident in question, the family of the deceased patient have been provided with full reasons on the cause of death and a post-mortem report. However, it would not be appropriate to make public these details in the interest of safeguarding the right and privacy of patients.
Operation of clinics
20. MR LAU WAH-SUM asked (in Chinese): Will the Government inform this Council:
(a) of the respective numbers of clinics exempted under section 8 of the Medical Clinics Ordinance (that is, those already in existence on 5 September 1963), and persons permitted to practise in these clinics;
(b) of the daily average of patients seeking medical treatment in these clinics over the past three years;
(c) of the average charges of these clinics (for each patient seeking medical treatment) over the past three years;
(d) of the legislation and measures in place to monitor the operation of these clinics; and the number of their practitioners who were prosecuted for the breach of the legislation over the past three years; and
(e) whether reviews are regularly conducted on the role of these clinics and practitioners in the medical and health services of Hong Kong, particularly in the delivery of medical services for the lower-income group; if so, what the findings of the reviews are?
HONG KONG LEGISLATIVE COUNCIL — 14 July 1993 4555
SECRETARY FOR HEALTH AND WELFARE: Mr President,
(a) At present, there are 149 unregistrable medical practitioners practising in 137 clinics exempted under section 8 of the Medical Clinic Ordinance (Cap 343).
(b) The average number of attendances per year in these clinics over the past three years is about 1 235 000.
(c) Over the past three years, the average charge per consultation in the exempted clinics, including a two-day supply of drugs, was about $35.
(d) The Medical Clinics Ordinance (Cap 343) empowers the Registrar of Clinics (the Director of Health) to exempt clinics established before 1963 from the statutory requirement to employ registered doctors. This allows unregistrable medical practitioners to continue to be employed, but, at the same time, this mechanism brings them under the control of the Authority in order to protect the interests of patients. Practitioners in exempted clinics are subject to a Code of Practice issued by the Registrar regarding mode of practice, scope of functions and standard of conduct. Each exempted clinic is inspected at least twice a year by staff of the Department of Health. No exempted clinic practitioner has been prosecuted in the past three years.
(e) A review of unregistrable medical practitioners was carried out annually after 1963. However, in December 1984 Members of this Council enacted the Medical Clinics (Amendment) Bill to recognize the role of these practitioners in granting them exemption. In reviewing whether this exemption should be renewed, the Registrar's primary concern is to protect the consumer by ensuring compliance with the Code of Practice.
Statement
Exchange Fund
FINANCIAL SECRETARY: Mr President, on 15 July last year, I broke with the tradition of confidentiality and announced in this Council for the first time the overall size of the Exchange Fund, the amount of foreign currency reserves held and the accumulated earnings. I made it clear that this transparency would continue and that I intended to publish a balance sheet of the Exchange Fund every year.
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The audit of the Exchange Fund's 1992 accounts has now been completed, and I am tabling today a balance sheet statement covering the six years from 1987 to 1992, together with supporting explanatory notes.
I am pleased to say that at the end of 1992, the Exchange Fund stood at HK$287 billion, compared with HK$236 billion at the end of 1991 — up roughly 22%. Over the same period, accumulated earnings rose from HK$99 billion to HK$107 billion, while total foreign currency assets increased from US$29 billion to US$35 billion.
I am sure Members will agree that these are very impressive figures. At US$35 billion, our foreign currency holdings were the 10th highest in the world, compared with a ranking of 12th at the end of 1991. Our per capita foreign currency holdings stood at US$6,000, compared with US$5,000 at the end of 1991. The corresponding average for the OECD countries has, as a matter of interest, fallen from US$740 at the end of 1991 to US$700 at the end of 1992.
Let me stress for the avoidance of doubt, as I did last year, that only the fiscal reserves element of the Exchange Fund is available to be drawn upon, prudently, to meet public expenditure. Members will be interested to know that at the end of 1992, our fiscal reserves stood at HK$104 billion, of which HK$96 billion had been placed with the Exchange Fund.
I should also say that the primary role of the Exchange Fund has always been to safeguard our exchange rate stability. It will remain so in the future.
Henceforth, the year-end balance sheet of the Fund will be included, as a matter of course, in the annual report of the Hong Kong Monetary Authority which was established on 1 April this year. The Authority's annual reports will be tabled in this Council.
Motions
COMPANIES ORDINANCE
THE SECRETARY FOR FINANCIAL SERVICES moved the following motion:
"That the Companies (Fees and Percentages) (Amendment) Order 1993, made by the Chief Justice on 28 May 1993, be approved."
He said: Mr President, I move the first motion standing in my name on the Order Paper.
The Companies (Fees and Percentages) (Amendment) Order 1993, which was made by the Chief Justice on 28 May, increases certain minor fees payable
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to the Registrar of Companies in relation to the inspection and photocopying of liquidators' statements sent to the Registrar under the Companies Ordinance. These fees were last reviewed in 1988. We are proposing to revise them by an average of 30% having regard to the increase in the cost of providing these services since that date. The fees will come into operation on 1 August 1993.
Mr President, I beg to move.
Question on the motion proposed, put and agreed to.
REGISTERED TRUSTEES INCORPORATION ORDINANCE
THE SECRETARY FOR FINANCIAL SERVICES moved the following motion:
"That the Registered Trustees Incorporation (Amendment of Second Schedule) Order 1993, made by the Governor in Council on 22 June 1993, be approved."
He said: Mr President, I move the second motion standing in my name on the Order Paper.
The Registered Trustees Incorporation (Amendment of Second Schedule) Order 1993, which was made by the Governor in Council on 22 June, increases certain fees payable to the Registrar of Companies in relation to the incorporation of trustees under the Registered Trustees Incorporation Ordinance. The current fee revision takes account of the increase in the cost of providing these services since they were last reviewed in 1988. We propose to increase these fees by around 30% which is consistent with the proposed increase for comparable fees under the Companies Ordinance which were tabled in this Council on 30 June 1993. The revised fees will be implemented with effect from 1 August 1993.
Mr President, I beg to move.
Question on the motion proposed, put and agreed to.
First Reading of Bills
CRIMINAL PROCEDURE (AMENDMENT) BILL 1993
LEVERAGED FOREIGN EXCHANGE TRADING BILL
Bills read the First time and ordered to be set down for Second Reading pursuant to Standing Order 41(3).
HONG KONG LEGISLATIVE COUNCIL — 14 July 1993 4558 Second Reading of Bills
CRIMINAL PROCEDURE (AMENDMENT) BILL 1993
THE ATTORNEY GENERAL moved the Second Reading of: "A Bill to amend the Criminal Procedure Ordinance."
He said: Mr President, I move that the Criminal Procedure (Amendment) Bill 1993 be read a Second time.
The purpose of the Bill is to implement the recommendations made by the Law Reform Commission in its Report on Bail in Criminal Proceedings. The Law Reform Commission recommended the creation of a statutory right to bail.
It has been the practice of the courts for many years to grant bail pending trial, except where there is good reason not to do so. A good reason to deny bail exists where there are grounds to fear that the defendant will fail to appear at future court hearings, or will commit offences while on bail, or will interfere with the course of justice; and also where the defendant should be remanded in custody for his own protection.
The Bill proposes to give statutory effect to the practice of the courts, and for the first time will create a positive presumption in favour of bail. This will in no way detract from the powers of the court to refuse bail in appropriate circumstances. It will, however, prohibit the arbitrary or unreasonable refusal of bail, and will impose a duty upon the courts to explain the basis on which bail is refused.
The Bill emphasizes the need for the court to consider properly the alleged facts on which objections to bail are based, and provides that conditions of bail may be imposed only where the court considers them to be necessary.
In the vast majority of cases, the issue for the court to determine will be whether the defendant will fail to surrender to custody, commit an offence on bail or interfere with the course of justice. In defining the standard of proof for prosecution objections, the Bill states that the court must grant bail unless it appears to the court that there is an unacceptable risk the defendant will do one or more of those three things.
The proposed presumption in favour of bail will arise only prior to conviction. It will not apply to bail pending appeal, although courts will retain their present discretionary powers to grant bail.
The Bill proposes to abolish the power of courts to take recognizances from bailed persons as guarantees for their future surrender to custody. Instead, a specific offence of failing to surrender to custody is proposed. Existing powers for courts to require cash deposits from defendants, and to require sureties, are retained.
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In any case where a person is refused unconditional bail by a magistrate or a District Court judge, the Bill provides that he or she will have the right to apply to a High Court judge who will consider the matter afresh. The Bill in substance repeats the effect of existing law.
The Bill preserves existing powers of arrest without warrant by a police officer where there are reasonable grounds to believe a person has breached or is likely to breach his bail, and also preserves the Attorney General's right to seek a review of bail granted by a magistrate or District Court judge.
For the most part, the courts' jurisdiction to grant bail is not altered. The Bill seeks only to regulate the manner in which courts exercise their discretion. There is one exception. The Bill proposes that the Court of Appeal should be empowered to grant bail or detain a person in custody pending a prosecution or defence appeal to the Privy Council. At present there is no such power.
As I mentioned at the outset, the Bill implements the proposals of the Law Reform Commission. I should explain, however, that although the Commission's recommendations related to bail both by the police and bail by the courts, the Bill relates only to the latter. The reason for this is that a further Law Reform Commission Report on Arrest, Detention, Search and Seizure, published in November 1992 is under active consideration. This deals with police powers generally, and the question of bail by the police is more appropriately considered in that wider context.
Mr President, I commend this Bill to the Council as balancing the individual's right to freedom with the need to protect society against criminals.
Bill referred to the House Committee pursuant to Standing Order 42(3A).
LEVERAGED FOREIGN EXCHANGE TRADING BILL
THE SECRETARY FOR FINANCIAL SERVICES moved the Second Reading of: "A Bill to regulate leveraged foreign exchange trading."
He said: Mr President, I move that the Leveraged Foreign Exchange Trading Bill be read a second time. The Bill aims to introduce a legal framework for the regulation of dealings in leveraged foreign exchange contracts in Hong Kong.
The past few years have witnessed an upsurge in the number of companies offering leveraged foreign exchange contracts to retail investors. It is estimated that no less than 200 companies are at present engaged in the business. These companies are not subject to any form of government regulation apart from having to fulfill the initial registration requirements applicable to all companies under the Companies Ordinance. The contracts offered are often highly "leveraged" in nature, which means that investors make only a margin payment
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with the potential for very substantial profit or loss when the contract is liquidated. In offering such contracts, a company usually acts as the counter-party taking the opposite position to its clients rather than acting as an agent or broker, although commission and handling charges are also levied. If the price of a currency goes in favour of an investor, a client may liquidate the contract at a profit while the company would suffer a corresponding loss if the contract had neither been hedged nor offset. Malpractices, coupled with bad management, have led to the collapse of some of these companies. In certain cases, it appeared that the companies concerned may have been run with the intention to defraud clients from the outset.
There have been frequent complaints from investors about malpractices by these companies. Most cases are related to a situation under which a client would have to sign an authorization giving discretion to the company to trade on his behalf. A common malpractice is that the company will carry out many more transactions than warranted in a bid to maximize commission charges. Some companies have been reported to have put clients into positions against the market trend so that the companies would make a profit at the expense of the client.
Despite the complaints received, it is difficult to secure sufficient evidence to prove that these companies have dishonestly or recklessly traded their clients' accounts. Some have even routed their deals to overseas sister companies, making it virtually impossible to obtain sufficient evidence to support a prosecution or civil suit.
In the light of this situation, it is considered necessary to introduce a framework to regulate leveraged foreign exchange trading in Hong Kong. There should be stringent requirements in order to provide adequate protection to investors.
The system proposed is basically modelled on that for regulating the stock and futures markets. Companies involved in the leveraged foreign exchange business and their representatives will be required in future to obtain a licence from the Securities and Futures Commission (the SFC). Except for certain exemptions given to authorized institutions and deals conducted under specified circumstances, it will be a criminal offence for anyone to carry on such business without being so registered. The penalty for a breach of this requirement involves a maximum fine of $10 million and maximum imprisonment of seven years.
In considering applications for licences, the SFC will take into account such considerations as an applicant's financial status, education, other qualifications, ability to act honestly and fairly as well as his reputation, character, financial integrity and reliability. The SFC can suspend or revoke a licence, supervise and investigate licence holders and intervene in the business of a licensed trader where necessary.
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The SFC will be able to stipulate stringent requirements on the conduct of market practitioners in the form of rules or guidelines. A minimum share capital requirement will be imposed, at a level envisaged to be slightly higher than that for a deposit-taking company, which is $25 million at present, so that only larger operators with reasonable financial backing will be eligible for registration.
Since companies offering leveraged foreign exchange contracts already exist, there will be a grace period for them to apply for licences. Those which apply for licences within the period, which will be set for 30 days after the enacted Bill takes effect, may carry on business while their applications are processed. Companies with their licence applications refused should cease operation immediately but will have 14 days to close client positions.
The provisions that I have described represent the major features of the proposed framework, on top of which the Bill also incorporates other investor protection measures including the requirement for traders to pay clients' money into segregated trust accounts, the prohibition of hawking of business and the ability of the SFC to appoint auditors to inspect the books and records of licensed traders.
The Bill imposes comprehensive and stringent requirements on how leveraged foreign exchange trading should be conducted so as to reflect the risk faced by investors. While leveraged foreign exchange contracts can be a legitimate investment vehicle, the nature of these contracts and the volatility of the foreign exchange market together call for tight regulation so as to provide a safer and more orderly environment in which the investing public can have confidence.
Bill referred to the House Committee pursuant to Standing Order 42(3A).
SUPPLEMENTARY APPROPRIATION (1992-93) BILL 1993
Resumption of debate on Second Reading which was moved on 30 June 1993 Question on the Second Reading of the Bill proposed, put and agreed to. Bill read the Second time.
Bill committed to a Committee of the whole Council pursuant to Standing Order 43(1).
HONG KONG LEGISLATIVE COUNCIL — 14 July 1993 4562 EMPLOYMENT (AMENDMENT) BILL 1993
Resumption of debate on Second Reading which was moved on 2 June 1993 Question on Second Reading proposed.
MR LAU CHIN-SHEK (in Cantonese): Mr President, I welcome the proposals for strengthening the protection of employees' rights and interests as set out in the Employment (Amendment) Bill 1993. Yet, I think the protection is still grossly inadequate and it is necessary to review the Bill again promptly and make exhaustive amendments.
No protection for the right of reinstatement
Firstly, the proposed amendments will confer power upon the Court to rule that employees may be given compensation if they are dismissed after giving evidence against their employees in proceedings. Apparently this will give a greater degree of protection to employees, who give evidence in court, by enabling them to receive compensation. However, employees who are dauntless enough in giving evidence in the Court against their employers, in fact, will not get any compensation if they lose their job as a result. As the Administration's original intention of formulating the Bill is to provide employees who give evidence with job protection, the law should vest the Court with power to rule that such employees may resume duty or receive compensation at their own choice if and when they are dismissed unfairly.
The protection scope should be enlarged
In addition, I would like to point out that the protection for employees who give evidence as proposed in the Bill will only safeguard employees from being sacked but not from being "racked". Racking takes the form of, among others, transfer of duties, assignment of difficult tasks and freeze of wage adjustments. These methods can invariably force employees to resign voluntarily while the employers need not have to make any severance payment at all. The so-called protection is, after all, obviously inadequate.
Apart from inadequate protection, I think the Government should also make a review of the Bill and explain why it is only proposed in the Bill that protection be given to employees who give evidence in Court proceedings but not to employees who are on the rack as a result of their taking part in trade union activities. This is extremely unreasonable to employees who have joined trade unions.
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The enactment of unfair dismissal law
In order to effectively give real protection to employees against any unreasonable racking or dismissal (no matter whether it has to do with an employee who has given evidence or who has taken part in trade union activities), the Administration should expeditiously enact a piece of foolproof law governing unfair dismissal to ensure employees' right to resume duty or receive compensation.
By the way, the Government has, in response to the industrial action staged by the Cathay Pacific staff early this year, undertaken to review labour legislation, Ordinances found to be discriminatory against trade unions, the law on unfair dismissal and so forth. I hope the Government could complete the review as soon as practicable and put forward further proposals on the protection of employees' rights and interests.
Amendment to the definition of underemployment
Another amendment to the Bill is about the definition of "lay off". The purpose is to prevent an employer from forcing his employees to take annual leave when the business is dull and thus to ensure that employees will not lose their right to take annual leave and will be able to ask for severance pay on the grounds of underemployment. The proposed amendment will do away with the grey area in the definition of "lay off" and I think it deserves this Council's support. However, in order to further safeguard workers' rights and interests, I think the Government should consider changing the minimum number of days for which employers must provide work for employees from 12 days to at least 16 days in a period of four weeks, so as to enhance the protection for workers in respect of this minimum number of days to provide work and provide more effective safeguard to employees' well-being.
Mr President, with these remarks, I hope the Government would earnestly consider my proposals. Thank you.
SECRETARY FOR EDUCATION AND MANPOWER: Mr President, I am grateful to Members for their support of this Bill.
I have noted the points raised by Mr LAU Chin-shek on further measures to protect the interests of workers. Mr LAU asked that further protection be given to dismissed workers who have given evidence against their employers such as inclusion of a provision on reinstatement, and that similar protection of awarding compensation and allowing reinstatement should be given to employees who are dismissed for taking part in union activities.
We have taken careful note of these points and will include them in our current review.
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As regards the suggestion of stipulating a minimum number of normal working days provided by employers in order to safeguard the interests of workers, this is a separate issue which would require careful consideration. I will ensure that this matter is taken further by the Administration.
Thank you.
Question on the Second Reading of the Bill put and agreed to.
Bill read the Second time.
Bill committed to a Committee of the whole Council pursuant to Standing Order 43(1).
AMUSEMENT GAME CENTRES BILL
Resumption of debate on Second Reading which was moved on 14 October 1992 Question on Second Reading proposed.
REV FUNG CHI-WOOD (in Cantonese): Mr President, the Amusement Game Centres Bill seeks to establish a new scheme for licensing amusement game centres. At present, the operation of amusement game centres is controlled by provisions set out under the Miscellaneous Licences Ordinance and the Miscellaneous Licences Regulations. The Commissioner for Television and Entertainment Licensing is the licensing authority for the issue of amusement game centre licences.
Under section 3 of the Ordinance, the Governor in Council may by regulation provide for the form and conditions of any licence granted under the Ordinance. In 1990, the Court of Appeal held that a licence condition was ultra vires and thus invalid because it was not made by way of regulation. In the light of that judgement, it was found that the majority of the licence conditions are tainted with the vires problem and are unenforceable. It is therefore necessary to establish a new scheme to regulate amusement game centres.
The Bill was introduced into this Council on 14 October 1992. A Bills Committee of 11 Members was formed and commenced scrutiny of the Bill on 23 April 1993. Altogether we held six meetings, including four with the Administration. We met representatives from the Licensed Amusement Game Centres Trade Association Limited. We also visited three amusement game centres and considered submissions from the Association and the Kwai Tsing Branch of the United Democrats of Hong Kong. As Chairman of the Committee, I would like to take this opportunity to thank my colleagues in the Committee for the time and effort they put in the discussion, the Administration
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for their co-operation and the interested organizations for submitting their views and taking part in our deliberation.
Mr President, I now come to the main issues considered by the Committee.
The Committee has doubts as to whether vending machines would come within the scope of control of the Bill. The Administration explains that it is not intended to control vending machines which are designed for sale of articles rather than for entertainment and do not involve the element of chance or lucky draw. However, in view of the rapid evolution of amusement game machines, flexibility has to be provided in the Bill to encompass all forms of new machines. The Committee has accepted this explanation.
On the other hand, the Committee considers that shops selling computer software and offering customers the opportunity to play computer games should be controlled. The Administration confirms that such shops would be required to obtain a licence under the Bill but this is not likely to be approved.
Another point raised by the Committee is the Commissioner for Television and Entertainment Licensing's power to suspend, revoke or refuse to renew a licence. To address this concern, the Administration has drawn up guidelines to this effect. The Administration also explains that any person aggrieved by the Commissioner's decision may lodge an appeal with an independent Appeal Board.
The Committee has also discussed the proposed licensing policy and licensing conditions, including the location criteria, hours of operation, spacing requirement and the maximum number of persons that should be allowed in an amusement game centre. However as they do not form part of the Bill, it is recommended that the appropriate Legislative Council panel will follow up on the matter.
On the question of liability of employee and licensee, the Committee considers to be unreasonable the provision which renders any employee liable to prosecution in the same way as the operators are liable. The Administration explains that one of the major objectives of the Bill is to ensure that genuine offenders can be brought to prosecution and assures the Committee that prosecution action would only be taken against an employee when it is reasonable and within legal limits. Despite this assurance, the Committee is of the view that the provision is too broad and may cause unnecessary disturbance to innocent employees. After discussion, it is agreed that the relevant provision will be deleted. The Administration will move the necessary amendment at the Committee stage.
Another point of concern expressed is that the offence for contravening the age restriction in respect of children centres appears to be draconian since "lack of knowledge" would not be a defence. After discussion, the
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Administration agrees to amend the provision to provide for reasonable defence for the inadvertent intrusion into children centres. Moreover, guidelines on the enforcement of the provision have been drafted to require the law enforcement officer to provide advice and warning to the persons concerned before possible prosecution against them can be considered. This amendment will also be moved by the Administration at the Committee stage.
Another major point which has been raised is whether the cut-off age for children and adult centres should be set at 18 instead of 16 to maintain consistency with the Film Censorship Ordinance and to enable a more relaxed vetting criteria for games played at these centres. The Administration explains that the age limit of 16 has been in use for over 10 years. Feedback from the public, including the Central Committee on Youth, the Hong Kong Council of Social Service and district boards, indicates that there is a need to protect those aged under 16 from violent and indecent games, as well as harassment by the older youths and adults and that the retention of the existing age limit is widely supported.
Moreover, amusement games are a unique form of entertainment. Being highly interactive in nature and coupled with the physical environment in which they are played, amusement games have a strong effect on the players. The film classification system is not applicable to this form of entertainment.
The Administration further explains that the policy is to ban excessively violent games and those containing graphic sexual or gambling activities. This view is strongly supported by the public and the district boards. In this connection, vetting criteria for games played in adult and children centres have been drafted to tighten up the standards.
After detailed discussion, the Committee agrees that 16 should be used as the cut-off age.
Concern has also been expressed over the power of forfeiture in relation to minor offences. Subsequently, the Administration agrees to amend the provision by replacing "court shall" by "court may" to clarify that the court has the discretion to order forfeiture based on the circumstances of each case. Guidelines have been drawn up to the effect that forfeiture will not be automatic but has to be applied for by the prosecution and the circumstances under which an application will be considered are limited to the operation of unauthorized machines or devices. The Committee agrees with the amendment. It will be moved by the Administration at the Committee stage.
Mr President, after enactment of the present Bill by this Council, I believe that order as needed will be restored to the amusement game centres, that greater safety protection will be accorded to those playing amusement games within the centres, that children under 16 will be shielded from the adverse effects of violence and sex, that the nuisance caused to the neighbourhood by
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children's amusement games will be mitigated and that the unlicensed operation of amusement games in certain shops will be stopped.
With these remarks, I support the Bill.
MR SIMON IP: Mr President, I wish to speak against clauses 4(4) of this Bill.
The clause provides that a first-time offender for operating an amusement game centre without a licence shall be liable to be punished as if he is offending for a second time if another person had been convicted of the same offence in relation to the same premises within three years prior to his conviction, unless he proves that he did not know and had no reason to suspect that another person had been so convicted.
The clause as it stands raises obvious Bill of Rights questions. The Government justifies the clause by reference to the policy objective of prohibiting the operation of amusement game centres without a licence and to prevent illegal operations through the use of different persons as operators.
However, if this is the evil that the Government seeks to remove, then clause 4(4) is in my opinion misconceived. The proper way to combat the problem is to devise ways to strike at those masterminds behind the illegal enterprises. To impose heavy penalties on the "pawns" who are merely put up as "front-men" will not solve the problem.
For these reasons, I consider the proposed clause a disproportionate and irrational response to the policy objective of prohibiting the operation of amusement game centres without a licence. It is illogical, unfair and unjustified. I will, therefore, support the Committee stage amendment to be moved by the Honourable James TO that clause 4(4) be deleted.
MR JAMES TO (in Cantonese): Mr President, I have a few points to make in respect of the Amusement Game Centres Bill. First of all, as Mr Simon IP has just pointed out, clause 4(4) provides that a first-time offender for operating an amusement game centre without a licence shall be liable to a heavier penalty as if he is offending for a second time if another person had been convicted of the same offence in relation to the same premises within three years prior to his conviction. The problem is that a person is liable to a heavier penalty not because he has committed the same offence again but because somebody else has committed the offence in the same place. I think such a policy is unfair.
Secondly, the spirit behind clause 4(4) comes close to presuming that the person concerned committed an offence before, and he is now a second offender. The Administration has explained that the clause seeks to strike at those masterminding the operations behind the scenes. But I wish to point out that if the Administration can step up its efforts in prosecution and intelligence
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gathering, and make use of pardoned witnesses, that will encourage those who have committed the offence of operating an amusement game centre without a licence to testify against those masterminding behind the scenes, or testify in relation to the offence of conspiracy or abetting or counselling. The result will be even better. Besides, this proposed clause may be in breach of the principle of the presumption of innocence.
Thirdly, to require a first-time offender for operating an amusement game centre without a licence to prove that he did not know and had no reason to suspect that another person had committed the same offence in the same premises within three years prior to the commission of the present offence places a heavy burden of proof on the defendant. The main point is that we do not have a record system that records all the premises where the offence of operating an amusement game centre without a licence has been committed. Anyone who has infringed the law or has done something wrong should be punished accordingly. But as there is no way to know or verify the situation, then how can any particular person concerned prove that he did not know and had no reason to suspect that another person had committed that same offence in the premises concerned?
For these three reasons, I think that this clause 4(4) should be removed. I will move an amendment to this effect at the Committee stage.
As far as punishment is concerned, the Administration's intention may be based on the presumption that a heavier punishment can be meted out to those masterminding behind the scenes. I wish to analyze this point in more detail. Firstly, assuming there is a boss behind the scenes ordering different persons to operate an amusement game centre without any licence, then even if one of his people is committing the offence concerned for a second time, the maximum penalty will only be $200,000. But according to subclause (4)(c) of the same clause 4, even a first-time offender is already liable to a fine of $20,000 for each day during which the offence continues. In other words, if he is caught by the police after operating in certain premises for 10 days, he is already liable to the maximum fine of $200,000, and there will be no need to consider this assumption. Besides, the boss behind the scenes will surely be disgruntled at the heavier fine, but the one who is exploited will have to serve a longer sentence of imprisonment just because someone else committed the same offence before in the same premises. As far as a system is concerned, this is unfair, because the boss will not go to prison to take the place of the small fry.
Another point I would like to talk about is the difference in punishment between clauses 4 and 20. Clause 4 provides against operation without a licence and clause 20 against breach of the provisions or conditions of a licence. I think the two are different offences with a difference in seriousness. In terms of maximum penalty, clause 4 provides for a fine of $200,000 for operation without a licence while clause 20 provides for a fine of $100,000 for breach of the conditions of a licence. However, we find that the two clauses provide for the same maximum of imprisonment terms as both provide for a maximum of
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six months' imprisonment for first-time offenders and one year for second offenders. I think that if different punishments are to be set for offences of different seriousness, then it should not be just a difference in fines, the maximum terms of imprisonment should also be different. I hope that the Administration can seriously review the situation after having enforced the provisions concerned to see whether appropriate amendment is required as regards the maximum terms of imprisonment provided under these two clauses.
Finally, I must say that I am happy to see the passage of the Amusement Game Centres Bill, and I believe that Members would all hope that the Administration would do its best in enforcing the Ordinance. However, I am a little bit worried and hope that the Administration can give us an assurance as far as resources are concerned. The reason is that the offences in relation to pornographic articles, amusement game centres and the like, which used to be handled by the Television and Entertainment Licensing Authority with the aid of divisional police forces, have always caused me worries. In respect of pornographic articles, many district police commanders do not give any priority to taking actions against these articles. I do not understand why, but I have actually learned through an indirect channel and from two police commanders that this is in fact the case. As the Television and Entertainment Licensing Authority is the department responsible for enforcing the Obscene and Indecent Articles Ordinance and the Amusement Game Centres Ordinance, I hope that the Authority can do its best to ensure that the newly passed Ordinance is fully enforced in order to protect our social order, especially where problems concerning law and order and adolescents exist.
Thank you.
SECRETARY FOR HOME AFFAIRS: Mr President, I am most grateful to the Honourable FUNG Chi-wood and his colleagues on the Bills Committee to Study the Amusement Game Centres Bill for their wise counsel and the considerable time they have spent in examining this Bill.
The Amusement Game Centres Bill seeks to establish an effective regulatory regime for licensing amusement game centres.
In the course of their deliberation, members of the Bills Committee sought assurance that its scope is wide enough to control peripheral activities, such as the operation of vending machines and computer software sales.
As we have explained to the Bills Committee, the primary purpose of a vending machine is for the sale of merchandise rather than for providing entertainment. Furthermore, the element of chance is absent. It is therefore not our intention to control vending machines under this legislation.
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With regard to computer software vendors, if they provide amusement games on their premises at a charge, they will be required to obtain an Amusement Game Centre Licence. However, those computer software vendors who sell software for private use would not be required to do so.
The Licensed Amusement Game Centres Trade Association Limited objected to the proposal to establish 16, instead of 18, as the cut-off age for the purpose of admission into adults' and children's centres. They argued for the adoption of a system similar to that used for the classification of films, which provides for a cut-off age at 18.
Amusement games and film viewing are two different forms of entertainment. The physical environment in which amusement games are played, the degree of participation by players and the interactive nature of modern games have made them a unique form of entertainment which should not be compared with film viewing or other forms of entertainment. For the same reason, the grounds for providing extra protection to those admitted to children's centres and to free them from harassment by others who are older are that much stronger. We have taken public sounding on what the cut-off age should be. I am pleased to confirm that the age of 16 stipulated in the Bill is a popular choice, both with the members of the Bills Committee and also with members of the public.
Some Members have raised concern over possible abuse of enforcement provisions. I would like to reassure members that the Licensing Authority will take a number of administrative measures including advisory letters and warning letters before prosecution actions are resorted to. Prior to the suspension or revocation of licences, operators will be invited to make representations. In addition, enforcement guidelines will be drawn up between the Television and Entertainment Licensing Authority and the police. The trade and any other interested parties will be fully informed of the details of the guidelines before they are brought into operation.
Mr President, with these remarks, I recommend to Honourable Members the Amusement Game Centres Bill subject to the amendments to be moved at the Committee stage.
Question on the Second Reading of the Bill put and agreed to.
Bill read the Second time.
Bill committed to a Committee of the whole Council pursuant to Standing Order 43(1).
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IMPORT AND EXPORT (AMENDMENT) BILL 1992
Resumption of debate on Second Reading which was moved on 25 November 1992 Question on the Second Reading of the Bill proposed, put and agreed to. Bill read the Second time.
Bill committed to a Committee of the whole Council pursuant to Standing Order 43(1).
FILM CENSORSHIP (AMENDMENT) BILL 1993
Resumption of debate on Second Reading which was moved on 24 February 1993 Question on Second Reading proposed.
MR TIMOTHY HA: Mr President, this Bill has a history which is well known to members of the former Legislative Council ad hoc group to study the Control of Obscene and Indecent Articles (Amendment) Bill 1991. At that time, the Administration attempted to plug an existing loophole in the law by proposing to place films, which were classified under the Film Censorship Ordinance (FCO) under the regulation of the Control of Obscene and Indecent Articles Ordinance (COIAO) when they were released as videotapes and laserdiscs. Members of the previous ad hoc group considered that the Administration's proposal might lead to a system of double standards and suggested that videotapes and laserdiscs made from a classified film should also be subject to the FCO so that one set of standards would be adopted in classifying the same film, whether for exhibition or for publication.
The Film Censorship (Amendment) Bill 1993 seeks to achieve the above purpose. The Bill proposes that a film be deemed to be approved for publication as a videotape or laserdisc if there is a certificate under the FCO regarding its exhibition in cinemas. The Bill also proposes to increase the maximum cash penalty for various offences.
A Bills Committee was set up to study the proposed provisions of the Bill. Four meetings had been held and the Administration had participated in all of them. Members had received a representation from the Hong Kong Theatres Association who objected to the increase in the maximum cash penalty for exhibiting Category III films to persons under the age of 18 and the existing provision in section 20 of the Ordinance which imposes the offence and penalty one-sidedly on cinema operators but not the underaged watchers.
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The Bills Committee deliberated in great detail on the appropriate level of the maximum cash penalty and had taken into consideration the effectiveness of the penalty's deterrence at its current level, the views received, the inflationary considerations since the penalty was first introduced in 1988 and the relativity among the different levels of penalties for offences of a similar nature and so forth. The Bills Committee also received views from the Attorney General's Chambers. It was pointed out that there had been no sign of decline in the number of breaches and prosecutions. The number of Category III films being shown in Hong Kong was in fact increasing. If the penalty was not to be increased, a wrong message might have been sent not only to the film industry but also to the public. Some members supported the proposed increase of fines but some others were of the view that the increase should be deferred until a comprehensive review was completed. After lengthy discussion, members of the Bills Committee finally agreed with the Administration's proposal to increase the maximum cash penalty from $10,000 to $50,000.
On the question of taking apropriate measures to deter deliberate underaged Category III filmgoers and to impose criminal liabilities on those who aided and abetted underaged persons to watch Category III films, the Administration explained that one of the main objectives of the legislation was to protect young people from having access to Category III films. Therefore, criminal responsibilities should not be imposed on them. The possibility of being summoned as a witness to appear in court would be, in itself, a deterrent to the underaged. A publicity campaign would be launched to coincide with the enactment of the amending legislation to cover all aspects of the responsibility of adults. Members shared the views of the Administration that the taking of any deterrent measures on the underaged should be handled with extreme care. Due regard should be given to the possible adverse psychological impact on the young people if it became mandatory to issue warning letters to their parents. They also appreciated the practical difficulty of creating an offence in the law against the purchase of Category III film tickets by an adult for the use of an underaged person.
Members were concerned about the views expressed by the cinema operators that the law, as now written, created a lot of enforcement difficulties on theatre and cinema operators in order to comply with the law, despite the fact that they had taken all reasonable precautions to prevent the exhibition of a Category III film to persons under the age of 18. The Administration, therefore, was of the view that the operators should have sufficient ability to distinguish an underaged person. Although prosecution action could theoretically be initiated whenever a cinema was found exhibiting a Category III film to a minor, in actual practice, the Television and Entertainment Licensing Authority would only consider initiating prosecution after issuing two warning letters to the same cinema. If no further contravention was detected during the two years after the issue of the two warning letters, the warning letters would be regarded as invalidated. I am glad that at the suggestion of members, the Administration has agreed to formalize the existing warning system.
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The issue of political censorship as provided in existing section 10(2)(c) of the Ordinance was raised by some members of the Bills Committee. They felt that such provision was incompatible with the Bill of Rights and the opportunity should be taken to remove it from the law. The Administration explained that a series of in-depth legal consultations had been conducted and it was concluded that such provision was not incompatible with both the International Covenant on Civil and Political Rights and the Bill of Rights Ordinance. Most members of the Bills Committee agreed that further discussion of the issue should be pursued in the Recreation and Culture Panel as well as the Constitutional Development Panel.
We look forward to a comprehensive review to be conducted by the Administration to study the feasibility of industry self-regulation to replace the existing censorship system, the enforcement problems faced by the cinema operators and so forth. With the enactment of this Bill, we sincerely hope that our young people would be better protected from the questionable influence of videotapes and laserdiscs made from Category III movies.
Mr President, with these remarks, I support the Bill.
MRS SELINA CHOW (in Cantonese): Mr President, I believe that nobody will be against the spirit of the law in respect of introducting the three-tier classification system for film censorship to protect the young and immature from undesirable influence of films. The existing legislation was passed in 1988 and I pointed out in this Council at that time the unfair situations that might arise in the course of enforcement of the law. Unfortunately, the enforcement problems now reported are precisely those I pinpointed then. At that time, the Secretary for Home Affairs said repeatedly that if the cinema operators feared that the regulation of the exhibition of Category III films would give them troubles, they might simply stop exhibiting Category III films. When the Bills Committee met to discuss the Bill recently, some members still were found to hold some misconceptions about the present situation. There is a common view among them that Category III films are invariably pornographic pictures. This is not the case. As a matter of fact, none of the cinemas solely exhibiting sex films has ever been prosecuted or warned under the law. It is the ordinary cinemas exhibiting Category III films containing foul language or violence, which run into trouble. In view of today's keen competition due to limited supply of films and many cinemas in the market, cinema operators often have no alternative but to exhibit such kind of Category III films.
This piece of legislation is basically not equitable in the sense that young people under 18 are not legally liable when they are found viewing a Category III film and the legal liability lies in the cinema operator. Nevertheless, I admit that it is sensible that criminal proceedings should not be instituted against young people involved, in particular when the existing legislation aims at protecting these young people.
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Meanwhile, the common practices of censor inspectors at present are open to question. Firstly, the inspectors do not take action when the underaged go inside a cinema to view a Category III film but choose to intercept them when they leave the cinema after viewing. Such a practice is in breach of the spirit of the law. Secondly, the inspectors usually take statements from the young people on an one-to-one basis. It will, on the one hand, make one doubt whether the statements are taken in an unbiased and fair manner. On the other, one cannot help wondering whether such a practice could achieve any educational or cautionary purposes, and whether these young people know that they should take some of the blame. Thirdly, the inspectors record the cinema managers' statement by means of a statement form with questions arranged in a leading manner. I wonder if such a practice has any legal basis. Anyway the statement may be admitted as evidence in court. These practices aside, there are some practical difficulties, for instance, when the audience rush in all at a time, it will make ticket inspection difficult to carry out. Furthermore, some underaged youth would make deliberate attempts to violate the law. They are generally rather rebellious in nature and are hostile towards the ticket inspection staff. This is a real headache to cinema operators. Cinema operators have approached the Government many times in a bid to work out positive measures to bar the young people from entering a cinema to view a Category III film. Measures taken include: cinema operators have taken the initiative to produce a new warning filmlet to replace the existing one which is a less effective API produced by the Government; posters have been designed to discourage young people from viewing such films. It is also proposed to deter the young people from viewing such films by installing cardboard censor inspectors. However, the Government has yet to give a response to the proposal of the display of such cardboard censor inspectors. Some colleagues may find such a proposal ineffective. But it seems that the Government shows an interest in this idea. At any rate, the Government has failed to give a reply.
I hold that it is an important principle that in the course of law enforcement, efforts must be made to ensure that young offenders realize that although not legally liable, they are, in a certain extent, responsible for their action because they elect to view that sort of films. Besides, the offender's parents or guardians must be present when an inspector takes the statement. This will certainly produce some deterrent effects and prevent them from committing the same.
In view of the circumstances mentioned just now, the Recreation and Culture Panel of this Council is going to carry out an in-depth study to see what improvements could be made. I did not agree to a raise of the fine by five-folds before the completion of the in depth study. But since the fine imposed on the relevant offences in the context of videotape will amount to $200,000, which is much higher than the original $10,000 fine applicable to similar offences in the context of cinema operators, I support the decision of the majority in the panel because the $10,000 fine is indeed too low. However, while accepting the decision, I strongly urge the Government to carry out a review and make rectification to eliminate such discrepancy.
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MISS EMILY LAU: Mr President, as a member of the International Board of Article 19, let me declare my opposition to censorship. In section 10 of the Film Censorship Ordinance, we see a perfect example of the Administration taking upon itself a task, which, in a free and liberal society and one which proclaims itself to be laissez-faire, it has no business to perform.
Censorship of films as practised in Hong Kong prevents adults from exercising their free choice and is based on the notion that they are unfit or cannot be trusted and have not the right to make that choice for themselves. As legislators, Mr President, are we not insulting those whom we represent by saying they are not capable? And if we consider that they are so incapable what does that make us, their chosen representatives — the voluble elected by the irresponsible? Mr President, we deprive the adults of the right to take responsibility for their own actions in a matter which should be one of personal choice. Upon what grounds? The only grounds permitted as restrictions upon the right of every person to receive information and ideas of all kinds through the medium of his or her choice under Article 16 of the Bill of Rights Ordinance which is Article 19 of the International Covenant on Civil and Political Rights should be that such restrictions must be, Mr President, provided by law and are necessary for respect of the rights or reputations of others or for the protection of national security, public order, and public health or morals.
Instead of provisions laying down clearly and objectively what may or may not be seen as the Bill of Rights requires and as should be the case in a society which claims to value the rule of law, we have a system which rest on the subjective views of persons dignified with the title "Censor". A censor assigned to view a film is required to form an opinion whether it is or is not suitable for exhibition, and on his opinion rests the decision whether approval will or will not be granted for the exhibition of that film. The censors decide what we may see and what we may not see. We even have to pay them to wield the scissors on our behalf. This is not the rule of law, Mr President, but rule by man.
The Bill of Rights Ordinance only permits restrictions which are necessary for the protection of those matters which I have already mentioned. It is intended to have primacy over all laws passed in Hong Kong. Yet all that the censor is required to do under section 10 is to take into account Article 19 of the International Covenant on Civil and Political Rights. In deciding whether to permit or refuse the exhibition of a film or in deciding what to cut, the censor is not even required to base a decision on what is necessary for the protection of those matters.
Mr President, the Administration would have us believe that the provisions of section 10 of the Film Censorship Ordinance are in conformity with the requirements of the Bill of Rights Ordinance. Hence the Government has refused to use this occasion to amend section 10, particularly subsection (2)(c) which provides for political censorship. I deplore the Government's decision, Mr President. Under this subsection a film could be
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banned if there is a likelihood that its exhibition would seriously damage good relations with other territories. As we all know, this mainly refers to the People's Republic of China. Mr President, how can such an arbitrary system of censorship, which is based on the subjective view of one or two persons, possibly conform with the Bill of Rights Ordinance. The absurdity of the task which the censor is called upon to perform is plain for all to see in subsections (2) and (3) of section 10. Is he a sociologist, a psychologist, a teacher, an artist, a writer, a scientist, a legal expert specializing in human rights law and diplomat all rolled into one? I am willing to bet not; yet that is what section 10 requires him to be. To be fair, Mr President, the censor is not obliged to carry this heavy load all on his own. Section 10 subsection (6) requires him to consult with another group of people culled from the great and the good, or possibly those who are hard put to know what to do with themselves on a wet weekday afternoon but only if they have been assigned to see the film! However, it does not require the censor to take the least bit of notice of what they say, and there is a special provision enabling consultation with the New China News Agency when the censor has difficulty in deciding whether the exhibition of a film could seriously damage good relations with other territories. But the censor, of course, can disregard New China News Agency's views as well, at least in theory.
So, Mr President, what kind of film is it that the exhibition of which is likely to seriously damage good relations with other territories? If the reaction of the Thai Government to the association made in an English language dictionary between Bangkok and prostitution is anything to go by, the answer, Mr President, is probably that which contains at least an element of truth. When a censor has to come to the conclusion that the film contains one or all of the nasty or naughty bits referred to in subsection (2), there is nothing which requires the censor to have regard to whether what is portrayed in it is true. Truth, it seems, is not a redeeming feature unless it is masquerading under another name such as "artistic", "educational", "literary", or "scientific merit" or the accumulation of "likelies" under subsection (3)(a). Section 10, Mr President, is the hallmark of a society that is afraid of ideas, of diversity and difference and, most of all, afraid of truth. If that is what we wish to be, let us leave that section in the law. But I have one small suggestion, Mr President, that should appeal to the Financial Secretary. Since we appear to be paying good money to people who have no qualifications or expertise to perform the role of censors, why does the Administration not consider the great potential which exists for raising revenue by offering the post of Censor of the Week to the highest bidders? I am sure there will be members of the public who would pay to do the job; the job would be done, no doubt, just as efficiently and with financial benefit to the community. Thank you, Mr President.
MR JAMES TO (in Cantonese): Mr President, the arguments Miss Emily LAU made just now are very exhaustive and persuasive. I totally agree with her. It is hoped that the Government will give these views serious consideration and make a reply to the Recreation and Culture Panel.
HONG KONG LEGISLATIVE COUNCIL — 14 July 1993 4577
I had made a point of consulting the legal adviser to see if an amendment can be made to the provisions on political censorship. However, the answer was that the amendment did not fall within the scope of this Bill. And it was, therefore, impossible to do so, technically speaking.
I would also like to respond to some of Mrs Selina CHOW's views. She mentioned just now that some inspectors should intercept the minors at the backdoor of the cinema exhibiting Category III movie, took their statements and then prosecuted the cinema operator. I take exception to her view. Firstly, the spirit of the existing law requires cinema operators to inspect and refuse the entry of minors whereas inspectors of the Television and Entertainment Licensing Authority (TELA) are responsible for law enforcement to see if cinema operators have fulfilled their duty to inspect and refuse the minors' entry. In other words, cinema staff and TELA inspectors have different duties. We cannot ask the inspectors to apprehend the offenders at the backdoors of the cinemas. It is because such action involves prosecution and evidence gathering. And it is impractical to assign an inspector to each cinema to assist the cinema operator in turning away minors or carrying out inspections. Such an arrangement is putting the cart before the horse, as it were. I do not find it necessary to mobilize so many TELA inspectors to assist cinema operators in fulfilling their legal obligation. I must say that Mrs Selina CHOW and I do not see eye to eye on that point as a result of a different interpretation of the spirit of the law.
I am looking forward to participating in the review on the effectiveness of the Ordinance so that I may expound my views on this aspect again.
Thank you, Mr President.
SECRETARY FOR RECREATION AND CULTURE: Mr President, I would like first to thank the Honourable Timothy HA and members of his Bills Committee for the thoroughness and hard work they have put into the examination of the Film Censorship (Amendment) Bill 1993. As pointed out when I moved the Second Reading of this Bill on 24 February, this Bill was drawn up to meet Members' wishes that in the interest of maintaining uniformity of treatment and standard, the censorship of films, and videotapes and laserdiscs made from such films, should be placed in the hands of one single authority, namely the Film Censorship Authority. I am pleased to note that the Bills Committee after careful and thorough examination, is now satisfied that the Bill will achieve this objective.
In the course of examining this Bill, both the Bills Committee and the Administration have raised a number of related issues which I now wish to address.
HONG KONG LEGISLATIVE COUNCIL — 14 July 1993 4578
The first issue concerns the proposal in clause 11 of the Bill to increase the fines for exhibiting a Category III film to a person below 18 years of age from $10,000 to $50,000. Members have generally agreed that the penalties for this offence must be set at a realistic level to achieve the desired deterrent effect. Having regard to a number of factors, including inflation, the warning system introduced by the Film Censorship Authority before taking prosecution action, and the past trend on offences committed, I consider that this proposed increase is fair and reasonable to achieve the deterrent effect desired. The Hong Kong Theatre Association, however, raised strong objections, arguing that it is difficult for them to enforce this provision and that the young persons themselves should bear some of the responsibilities.
In response to the Association's objections, I would say that the Authority fully appreciates the enforcement problems faced by cinema operators. In recognition of this, the Authority has adopted a warning system whereby it will not initiate prosecution when an offence is first detected. Instead, a warning letter is issued to remind cinema operators of their legal responsibilites. The Authority will only prosecute when an offence is detected on a third and subsequent occasion. To ensure that such warning letters will not hang over the heads of a cinema operator forever, such letters will be invalidated after two years if during that period the cinema operator has not been found to have committed a further breach. The Authority will be formalizing this arrangement to give cinema operators clarity and certainty.
On the second point raised by the Hong Kong Theatre Association, I am against holding underaged persons viewing Category III films liable for prosecution. One of the fundamental principles of introducing the three-tier classification system for film censorship in 1988 is to allow adults the freedom to access a wider choice of films while protecting young persons under the age of 18 from being corrupted by such films. The spirit of the law is to protect the young and immature from undesirable influence. It is therefore inappropriate to punish the very persons for whose protection the law is designed. I consider that the present practice of giving verbal warnings to minors when found viewing a Category III movie, and the possibility of requiring them to appear as witnesses in court should serve as adequate deterrents to the youngsters.
This matter has been very thoroughly considered by the Bills Committee and I am grateful for the Committee's support.
Another issue raised by members of the Committee and which has been strongly voiced by the Honourable Emily LAU concerned section 10(2)(c) of the Film Censorship Ordinance. They have asked for this provision to be repealed on grounds that it is incompatible with the Bill of Rights Ordinance. Section 10(2)(c) sets out that a film might be censored if it seriously damages good relations with other territories. Let me say that this issue was thoroughly debated when the Film Censorship Ordinance was first enacted in 1988. Since then, the provision has been kept under constant review. The legal advice given during such reviews is that the provision is not incompatible with the
HONG KONG LEGISLATIVE COUNCIL — 14 July 1993 4579
International Covenant on Civil and Political Rights or with the Hong Kong Bill of Rights Ordinance. There is therefore no need, in the Administration's view, to repeal this provision on Bill of Rights grounds. Nevertheless, I accept that the issue should be kept under review and I would be happy to discuss this matter further with the Recreation and Culture Panel of this Council in future.
A third issue raised by some members of the Bills Committee concerns the feasibility of replacing the present film censorship system by a system whereby the film industry exercises self-regulation. Personally, I do not consider that Hong Kong is ready to adopt a system of industry self-regulation as practised in the United States and Japan. The film industry in Hong Kong, although booming, still lacks cohesion and a strong organization for it to be charged with this very sensitive, onerous and at times highly controversial task. Furthermore, the Hong Kong public still looks to the Government as the proper guardian of public morals. However, I shall be happy to examine this idea further in consultation with the Recreation and Culture Panel of this Council and the film industry.
Finally, some members have expressed concern over the corrupting influence of the rather explicit pictures and wordings appearing on the package of videotapes and laserdiscs. I share this concern and shall be proposing a Committee stage amendment to tackle this problem. I propose to include a new section 15AA requiring the packaging of videotapes and laserdiscs made from all Category III films to be submitted to the Film Censorship Authority for scrutiny. After considering the content and nature of the packaging, the Authority may require the videotape or laserdisc to be enclosed in an opaque wrapper. A certificate will be issued regarding the packaging submitted and any person who publishes or displays such packaging without a valid certificate commits an offence and is liable to a fine of $50,000 or imprisonment of six months. A statutory defence will be created for the defendant if he has reasonable grounds to believe that a valid certificate is in force when he displays or publishes the packaging.
Mr President, with these words, I recommend the Bill to Members subject to the amendments I shall move at Committee stage.
Question on the Second Reading of the Bill put and agreed to.
Bill read the Second time.
Bill committed to a Committee of the whole Council pursuant to Standing Order 43(1).
HONG KONG LEGISLATIVE COUNCIL — 14 July 1993 4580 Committee stage of Bills
Council went into Committee.
EMPLOYMENT (AMENDMENT) BILL 1993
Clauses 1 to 9 were agreed to.
AMUSEMENT GAME CENTRES BILL
Clauses 1 to 3, 7, 8, 10 to 15, 17, 18, 22 and 24 to 26 were agreed to.
Clause 4
MR JAMES TO (in Cantonese): I move that clause 4 be amended as set out in the paper circulated to Members. I have already given the reasons for my amendment during the Second Reading. And I was informed by the Administration that there was no objection to my amendment.
Proposed amendment
Clause 4
That clause 4 be amended —
(a) in subclause (3), by deleting ", subject to subsection (4),".
(b) by deleting subclause (4).
Question on the amendment proposed, put and agreed to.
Question on clause 4, as amended, proposed, put and agreed to.
Clauses 5, 6, 9, 16, 19 to 21 and 23
SECRETARY FOR HOME AFFAIRS: Mr Chairman, I move that the clauses specified be amended as set out in the paper circulated to Members.
Clause 16 deals with the liability of the licensee and his employees for the operation of amusement game centres. As the objectives of the Bill and the enforcement action can be achieved without this clause because similar provisions have been made in clauses 4(1) and 20(1), clause 16 can be deleted.
HONG KONG LEGISLATIVE COUNCIL — 14 July 1993 4581
Under clauses 20(2) and 20(3) of the Bill the expression "adduces evidence which" may be interpreted as being in conflict with Article 11 of the Bill of Rights in respect of the presumption of innocence. It is, therefore, proposed to delete this expression in order to put the matter beyond doubt.
Clause 21(3) is amended to provide for a reasonable defence for the inadvertent intrusion into children centres by people above the age of 16.
The amendment to clause (23) is mainly a technical refinement by deleting "court shall" and substituting "court may".
The Chinese versions of clauses 5(4), 5(5), 5(6), 6(2), 9(2), 19(3) and 20(3)(b) are amended to bring the amended Chinese terms used to be fully consistent with those used in other legislations.
Mr Chairman, I beg to move.
Proposed amendments
Clause 5
That clause 5(4) be amended, by deleting "確信" and substituting "信納".
That clause 5(5) be amended, by deleting "原則性的前提㆘" and substituting "概括性的原 則㆘".
That clause 5(6) be amended, by deleting "確信" and substituting "信納".
Clause 6
That clause 6(2) be amended, by deleting "滿意" and substituting "信納".
Clause 9
That clause 9(2)(b)-(f) be amended, by deleting "確信" and substituting "信納".
Clause 16
That clause 16 be amended, by deleting the clause.
HONG KONG LEGISLATIVE COUNCIL — 14 July 1993 4582
Clause 19
That clause 19(3) be amended, by deleting "原則性的前提㆘" and substituting "概括性的 原則㆘".
Clause 20
That clause 20 be amended —
(a) by deleting subclause (2) and substituting -
"(2) Where an offence under subsection (1)(a) is alleged to
have been committed, any evidence which proves that a defendant did
any act in connection with the operation, keeping, management or other
control of a licensed amusement game centre is, in the absence of any
evidence which proves that the defendant did not operate, keep, manage
or otherwise have control of a licensed amusement game centre, proof
that the defendant operated, kept, managed or otherwise had control of
a licensed amusement game centre.".
(b) in subclause (3), by deleting "adduces evidence which".
That clause 20(3)(b) be amended, by deleting "應盡的努力" and substituting "在合理範圍 內盡了力".
Clause 21
That clause 21 be amended, by deleting subclause (3) and substituting —
"(3) In a prosecution for an offence under subsection (1) it shall be a defence for the person charged to show that -
(a) he did not know that the licensed amusement game centre was
authorized under section 5(7)(c)(ii)(A), for the playing of any
game by persons under the age of 16 years; and
(b) he could not, with the exercise of reasonable diligence, have
known that the licensed amusement game centre was so
authorized.".
HONG KONG LEGISLATIVE COUNCIL — 14 July 1993 4583
Clause 23
That clause 23 be amended, by deleting "court shall" and substituting "court may". Question on the amendments proposed, put and agreed to.
Question on clauses 5, 6, 9, 16, 19 to 21 and 23, as amended, proposed, put and agreed to. Schedules 1 to 3 were agreed to.
IMPORT AND EXPORT (AMENDMENT) BILL 1992
Clauses 1 to 17 were agreed to.
FILM CENSORSHIP (AMENDMENT) BILL 1993
Clauses 1, 2, 4 to 9, 11, 13, 15, 17, 19 to 21 and 23 were agreed to.
Clauses 3, 10, 12, 14, 16, 18 and 22
SECRETARY FOR RECREATION AND CULTURE: Mr Chairman, I move that the clauses specified be amended as set out in the paper circulated to Members.
A new section 15AA is proposed in clause 10(b). This new section deals with the requirement to submit packaging of videotapes and laserdiscs made from Category III films to the Film Censorship Authority. The purpose and nature of this new section have been clearly explained in my earlier speech on the resumption of the Second Reading of this Bill.
Clause 10(d) proposes to amend section 15(G)(2) of the Bill, by deleting the words "a fee of $500" and substituting the words "the appropriate fee prescribed by regulations made under section 29(1A)". This is to allow flexibility to revise such a fee by the Governor in Council through regulation. This practice is in line with normal drafting convention.
Clause 14(a) is amended to extend the power of seizure to the packaging of videotapes and laserdiscs in addition to the tapes and discs themselves. This is to facilitate enforcement of the new provision referred to above in the new section 15AA.
HONG KONG LEGISLATIVE COUNCIL — 14 July 1993 4584
Clause 18(d) is amended to clarify that only the Governor in Council has the power to create and amend the fees and penalty levels of this piece of legislation.
Finally, the other clauses involve textual and minor consequential amendments necessary to clarify and tidy up this piece of legislation.
Mr Chairman, I beg to move
Proposed amendments
Clause 3
That clause 3(2) be amended, in the proposed section 2(2B) by adding "a" before "society".
Clause 10
That clause 10 be amended —
(a) in the proposed section 15A(3)(a) by adding "or 13(4)" after "12". (b) by deleting the proposed section 15A(4).
(c) by adding -
"15AA. Submission of and conditions
on packaging
(1) Where, pursuant to section 15A(1), there is approval
for publication of a videotape or laserdisc in respect of which the classification described in section 12(1)(c) applies, any packaging to which this subsection applies and which is intended to be used in relation to the publication of such videotape or laserdisc shall be submitted to the Authority.
(2) Subsection (1) applies, in the case of a videotape or
laserdisc -
(a) first published on or after the commencement
of the amending Ordinance, to any packaging
thereof; and
HONG KONG LEGISLATIVE COUNCIL — 14 July 1993 4585
(b) which has been published before such
commencement, to packaging intended to be
first used in respect thereof on or after such
commencement,
but does not apply to any other packaging.
(3) Any packaging submitted under subsection (1) shall be submitted -
(a) in such manner and at such place; and
(b) together with such information and particulars,
as prescribed by regulations made under section 29(1).
(4) Where any packaging is submitted under subsection (1) the Authority -
(a) may, within 4 working days of such submission,
require, in any case where he considers it
appropriate, that if the videotape or laserdisc
concerned is published in that packaging or
where the packaging is displayed with or
without the videotape or laserdisc, the part of
such packaging constituting the cover of the
videotape or laserdisc shall be enclosed in an
opaque wrapper;
(b) shall, on the payment of the prescribed fee,
issue a certificate as regards such packaging,
which shall -
(i) be in the prescribed form;
(ii) certify that the packaging has been
submitted; and
(iii) where a requirement is made under
paragraph (a), have that requirement
endorsed on it.
HONG KONG LEGISLATIVE COUNCIL — 14 July 1993 4586 (5) Any person who -
(a) publishes a videotape or laserdisc -
(i) in relation to which subsection (1)
applies pursuant to subsection (2);
(ii) to which the classification described in
section 12(1)(c) applies; and
(iii) in respect of which there is approval for
publication,
in packaging in respect of which a certificate
under subsection (4) has not been issued; or
(b) displays (with or without a videotape or
laserdisc) that part of the packaging
constituting the cover of such a videotape or
laserdisc and in respect of which such a
certificate has not been issued,
commits an offence and is liable to a fine of $50,000 and imprisonment for 6 months.
(6) The Authority may, as regards any packaging -
(a) not being packaging to which subsection (1)
applies; and
(b) relating to a videotape or laserdisc which is
published or intended to be published pursuant
to approval under section 15A(1),
require that if the videotape or laserdisc concerned is published in that packaging or the packaging is displayed with or without the videotape or laserdisc, the part of such packaging constituting the cover of the videotape or laserdisc shall be enclosed in an opaque wrapper.
HONG KONG LEGISLATIVE COUNCIL — 14 July 1993 4587
(7) It shall be a defence to a charge under subsection (5)
for a defendant to prove that, at the time the offence is alleged to have been committed, he had reasonable grounds for believing that there was in force a certificate issued under subsection (4) in respect of the packaging which is the subject of the charge.
(8) For the avoidance of doubt it is declared that where
there is packaging of more than one description in respect of a videotape or laserdisc which is approved for publication pursuant to section 15A(1), the provisions of this section shall apply in respect of each such packaging.".
(d) in the proposed section 15E by deleting subclause (3).
(e) in the proposed section 15G(2) by deleting "a fee of $500" and substituting "the appropriate fee prescribed by regulations made under section 29(1A)".
(f) in the proposed section 15I by adding -
""amending Ordinance" means the Film Censorship (Amendment) Ordinance 1993 ( of 1993);".
Clause 12
That clause 12(a) be amended —
(a) by deleting subparagraph (i) and substituting -
"(i) by repealing "a condition" and substituting -
", as regards the exhibition of a film or the publication of
a videotape or laserdisc, a condition or a requirement, as
the case may be,";".
(b) by adding -
"(ia) in paragraph (a) by repealing "or" at the end;
(ib) in paragraph (b) by repealing the comma and substituting"; or";
HONG KONG LEGISLATIVE COUNCIL — 14 July 1993 4588 (ic) by adding -
"(c) a certificate issued under section 15AA(4)(b),";
and".
That clause 12 be amended, by adding —
"(aa) in subsection (2) -
(i) by adding "or (4)" after "subsection (1)";
(ii) by repealing "or (4)(b)(iii)(C)" and substituting ", (4)(b)(iii)(C) or (4A) or a requirement made under section 15AA(4) or (6) as the case may be";
(iii) in paragraph (a) by adding "or packaging, as the case may be," after "film"; and
(iv) in paragraph (b) by adding "or packaging, as the case may be," after "film";".
That clause 12(c) be amended, in the proposed section 21(4) by deleting "15A(4)" and substituting "15AA(6)".
Clause 14
That clause 14(a) be amended —
(a) in subparagraph (ii) by deleting "and" at the end.
(b) by adding -
"(iia) in paragraph (c)(i) by adding "or advertising material" after "film"; and".
(c) by deleting subparagraph (iii) and substituting -
"(iii) in paragraph (c)(ii) by adding "or a copy or a purported copy of a certificate issued under section 15AA(4)(b) relating to
any packaging which appears to him to be evidence of such
an offence" after "identity";".
That clause 14(c) be amended, in subparagraph (i) by adding "or the certificate issued under section 15AA(4)(b)" after "exemption".
HONG KONG LEGISLATIVE COUNCIL — 14 July 1993 4589
Clause 16
That clause 16 be amended, by deleting the clause and substituting —
"16. Risk and expense relating to
submission of film
Section 27(1) is amended -
(a) by adding "or the submission of packaging under section 15AA(1) and the possession by the Authority of a film or
packaging, as the case may be, resulting from such
submission or production," after "19(4)(c)(i)"; and
(b) by adding "or packaging, as the case may be" after "such film".".
Clause 18
That clause 18(a) be amended, by adding —
"(ia) in paragraph (b) by adding "or packaging is to be submitted under section 15AA(1)" after "8";".
That clause 18(a) be amended, by deleting subparagraph (ii) and substituting —
"(ii) in paragraph (c) by repealing everything after "information" and substituting", particulars and declaration (including its form) to be submitted together with a film under section 8 or the particulars and information to be submitted with packaging under section 15AA(3);";".
That clause 18(a)(iv) be amended, by adding after the proposed section 29(1)(ha) — "(hb) the form of a certificate issued under section 15AA(4)(b);".
That clause 18(b) be amended, in the proposed section 29(1A) by adding - "(aa) any fee for the purposes of section 15AA(4)(b);
(ab) any fee for the purposes of section 15G(2);".
HONG KONG LEGISLATIVE COUNCIL — 14 July 1993 4590 That clause 18(d) be amended, in the proposed section 29(3) —
(a) by deleting "Any regulation made under subsection (1) or (2) may provide" and substituting "The Governor in Council may by regulation provide";
(b) in paragraph (a) by deleting "that subsection" and substituting "subsection (1) or (2)".
Clause 22
That clause 22(b) be amended, by adding after the proposed section 3(aa) —
"(ab) packaging in respect of which a certificate has been issued under section 15AA of the Film Censorship Ordinance (Cap. 392);".
Question on the amendments proposed, put and agreed to.
Question on clauses 3, 10, 12, 14, 16, 18 and 22, as amended, proposed, put and agreed to. Council then resumed.
Third Reading of Bills
THE ATTORNEY GENERAL reported that the
EMPLOYMENT (AMENDMENT) BILL 1993 and
IMPORT AND EXPORT (AMENDMENT) BILL 1992
had passed through Committee without amendment and the
AMUSEMENT GAME CENTRES BILL and
FILM CENSORSHIP (AMENDMENT) BILL 1993
had passed through Committee with amendments, and the
SUPPLEMENTARY APPROPRIATION (1992-93) BILL 1993
having been read the Second time, was not subject to Committee stage proceedings in accordance with Standing Order 59. He moved the Third Reading of the Bills.
HONG KONG LEGISLATIVE COUNCIL — 14 July 1993 4591
Question on the Third Reading of the Bills proposed, put and agreed to. Bills read the Third time and passed.
Members' motions
PRESIDENT: I have accepted the recommendations of the House Committee as to time limits on speeches for the two motion debates and Members were informed by circular on 10 July. The mover of the motion will have 15 minutes for his speech including his reply; other Members will have seven minutes for their speeches. Under Standing Order 27A, I am required to direct any Member speaking in excess of the specified time to discontinue his speech.
HUMAN RIGHTS COMMISSION
MS ANNA WU moved the following motion:
"That this Council urges the Government to establish an independent Human Rights Commission to help promote and protect human rights by various measures, including public education, evaluation of laws and policies, monitoring of government actions and practices as well as resolving disputes through conciliation or adjudication."
MS ANNA WU: Mr President, I rise to move the motion standing in my name in the Order Paper.
What are human rights
Mr President, I would not be doing justice to this motion without first examining what human rights are and why they are so important. Human rights are matters close to the hearts of everyone. This Chamber has looked at human rights before in 1990 and 1991 and undoubtedly we will be looking at the subject again in future.
We have to ask ourselves every now and then "who are we and what do we aspire to be". Human rights relate to the most fundamental aspects of the individual in his or her civil, political, economic, social and cultural life. These rights are regarded as universal because they represent rights that all people should enjoy all over the world.
Human rights prescribe what is desirable and achievable. Unlike other legal norms, which address the negative, human rights are positive, purposive and proactive. To mete out punishment to the wrongdoer to deter future wrongdoing is negative. To propel ourselves forward towards a more just society is the opposite of that.
HONG KONG LEGISLATIVE COUNCIL — 14 July 1993 4592
Human rights are different from the minimalist theory of survival of the fittest. They are enjoyed by the weak as well as the strong, the disadvantaged as well as the privileged, the minority groups as well as the dominant majority. They are human, that is to say, they are common to all people. Respect for human rights serves to protect the most vulnerable members of society. Proper respect for human rights on the part of a government would mean the elimination of political excesses and other abuses of power.
Human rights are fundamental rights. They must be enforced even if this means inconvenience to the majority. Inclusion of human rights principles in our statutes without enforcing them or empowering others to enforce them brings them into disrepute and demeans them. Human rights should be living laws and not merely exist in our statute books. If we take human rights seriously, we must make the collective and political commitment to take action to promote and to protect human rights.
History
The International Covenant on Economic, Social and Cultural Rights (ICESCR) and the International Covenant on Civil and Political Rights (ICCPR) were extended to Hong Kong in 1976. Both Covenants oblige the parties to take necessary steps to give effect to the rights recognized in the Covenants.
As this Chamber knows only too well, the Hong Kong Government took no action after the two Covenants were extended to Hong Kong to either promote or protect human rights. In fact, the Government never told the people of Hong Kong that the two Covenants had been extended to cover them, and that they were supposed to enjoy those rights. It was not until the Joint Declaration was signed in 1984 that the Hong Kong public became aware that these two Covenants, theoretically at least, had been extended to Hong Kong.
And in 1988, when the ICCPR had been in theoretical effect in Hong Kong for 12 years, the United Nations Human Rights Committee asked the British delegation what had been done to make people in Hong Kong aware of their rights. The British had to respond, "no publicity has been launched on the Covenant".
Moreover, even reports to the Human Rights Committee have been marked by a distinct lack of candour. The British Government did not tell the Human Rights Committee of such controversial events in Hong Kong as the criminalization of the publication of "false news," or the political censorship of films, both of which had obvious — and serious — human rights implications. If it were not for non-governmental organizations in Hong Kong, the Human Rights Committee may never have known about such issues.
It took a tragedy of massive proportions in June 1989 to convince the Hong Kong Government to finally enact a Bill of Rights Ordinance. Given this promoting and record, it is quite clear that the Hong Kong Government's
HONG KONG LEGISLATIVE COUNCIL — 14 July 1993 4593
commitment to promoting and protecting human rights is suspect. Hence, it is important that the responsibility should be placed in the hands of an independent commission. This is true even in countries where the government's commitment to human rights causes is far more progressive than that of Hong Kong.
Article 2 of the ICCPR specifically requires the parties:
- to provide effective remedies for violations of human rights;
- to provide for the determination of claims of human rights violations by a competent authority, whether judicial, administrative or legislative;
- to develop the possibilities of judicial remedy; and
- to enforce such remedies when granted.
As we all know, both the Joint Declaration and the Basic Law state that the two Covenants shall continue to apply to Hong Kong.
It took the British and Hong Kong Governments 14 years after the application of the Covenants, six years after signing of the Joint Declaration and one year after the promulgation of the Basic Law to introduce the Bill of Rights (BOR) to the Legislative Council. This Bill was enacted in 1991.
The Legislative Council in 1990 and 1991 and the Legislative Council ad hoc group under the Honourable Mrs Selina CHOW held extensive deliberations on the BOR and related issues, such as the setting up of a Human Rights Commission. The ad hoc group recommended the setting up of a Human Rights Commission.
The Honourable Mrs Selina CHOW, chairman of the ad hoc group on the Bill of Rights, said in the debate on 27 June 1990, that, "emerging from the discussion on the Bill is the clear call for the setting up of a Human Rights Commission". The group concluded then that the Commission, if formed, should:
- assume an educational role;
- assume the role of an arbitrator in rights of action between individuals;
- review legislation and recommend changes to those laws that may conflict with the BOR;
- receive and investigate complaints; and
HONG KONG LEGISLATIVE COUNCIL — 14 July 1993 4594 - issue guidelines on definitions of human rights.
I am in general agreement with the proposed functions but would add that the Commission's jurisdiction should be expanded to include the following:
- to advise and to make recommendations on any inadequacies relating to human rights protection in Hong Kong;
- to provide dispute settlement through conciliation or adjudication in the private as well as the public sectors; and
- to commence action before a court or tribunal or to intervene in ongoing proceedings when an important human rights issue arises.
I must make it clear that I do not propose that the Human Rights Commission, when exercising its adjudication role, should enjoy exclusive jurisdiction. Its jurisdiction is concurrent to those of the courts and tribunals and its decisions may be subject to review by the courts on specified grounds.
If it were not for the fear that the BOR would be delayed, the Legislative Council at the time no doubt would have persisted with the fight for the establishment of a Human Rights Commission.
The Administration, on its part, was always lukewarm towards the idea of setting up a full-fledged Human Rights Commission, preferring a body with no enforcement powers. Hopefully, if this motion is carried today, it would force the Administration to take the issue more seriously.
The original BOR was intended to cover both the public and the private sectors. However, the right of action in the private sector was removed with the intention that this would be addressed through separate legislation. The Honourable Ronald ARCULLI in his Legislative Council speech of 5 June 1991 indicated clearly his opposition to the removal and said he was voting in favour of the Bill only because of the Administration's "promise that specific legislation would be introduced to give private individuals protection of their rights."
Two years down the road, we are nowhere close to carrying out satisfactorily the follow-up actions required. Laws which may violate the BOR remain unamended. There has been no visible initiative taken to extend the principles of the Bill appropriately to the private sector. The suggestion made both in and out of the Chamber for the establishment of a Human Rights Commission in whatever form remains unpursued.
Conclusion
Mr President, the Chief Secretary in his response to the Legislative Council debate on 5 June 1991 has this to say,
No comments yet.
Private notes are available after approval.