HONG KONG LEGISLATIVE COUNCIL — 28 June 1995 4709 OFFICIAL RECORD OF PROCEEDINGS
Wednesday, 28 June 1995
The Council met at half-past Two o'clock
PRESENT
THE PRESIDENT
THE HONOURABLE SIR JOHN SWAINE, C.B.E., LL.D., Q.C., J.P.
THE CHIEF SECRETARY
THE HONOURABLE MICHAEL SUEN MING-YEUNG, C.B.E., J.P.
THE FINANCIAL SECRETARY
THE HONOURABLE SIR NATHANIEL WILLIAM HAMISH MACLEOD, K.B.E., J.P.
THE ATTORNEY GENERAL
THE HONOURABLE JEREMY FELL MATHEWS, C.M.G., J.P.
THE HONOURABLE ALLEN LEE PENG-FEI, C.B.E., J.P.
THE HONOURABLE MRS SELINA CHOW LIANG SHUK-YEE, O.B.E., J.P. THE HONOURABLE HUI YIN-FAT, O.B.E., J.P.
THE HONOURABLE MARTIN LEE CHU-MING, Q.C., J.P.
DR THE HONOURABLE DAVID LI KWOK-PO, O.B.E., LL.D., J.P. THE HONOURABLE NGAI SHIU-KIT, O.B.E., J.P.
THE HONOURABLE PANG CHUN-HOI, M.B.E.
THE HONOURABLE SZETO WAH
THE HONOURABLE TAM YIU-CHUNG
THE HONOURABLE ANDREW WONG WANG-FAT, O.B.E., J.P.
THE HONOURABLE LAU WONG-FAT, O.B.E., J.P.
THE HONOURABLE EDWARD HO SING-TIN, O.B.E., J.P.
THE HONOURABLE RONALD JOSEPH ARCULLI, O.B.E., J.P.
THE HONOURABLE MARTIN GILBERT BARROW, O.B.E., J.P.
4710 HONG KONG LEGISLATIVE COUNCIL — 28 June 1995 THE HONOURABLE MRS PEGGY LAM, O.B.E., J.P. THE HONOURABLE MRS MIRIAM LAU KIN-YEE, O.B.E., J.P. THE HONOURABLE LAU WAH-SUM, O.B.E., J.P.
DR THE HONOURABLE LEONG CHE-HUNG, O.B.E., J.P. THE HONOURABLE JAMES DAVID MCGREGOR, O.B.E., I.S.O., J.P. THE HONOURABLE MRS ELSIE TU, C.B.E.
THE HONOURABLE PETER WONG HONG-YUEN, O.B.E., J.P. THE HONOURABLE ALBERT CHAN WAI-YIP
THE HONOURABLE VINCENT CHENG HOI-CHUEN, O.B.E., J.P. THE HONOURABLE MOSES CHENG MO-CHI
THE HONOURABLE MARVIN CHEUNG KIN-TUNG, O.B.E., J .P. THE HONOURABLE CHEUNG MAN-KWONG
THE HONOURABLE CHIM PUI-CHUNG
REV THE HONOURABLE FUNG CHI-WOOD
THE HONOURABLE FREDERICK FUNG KIN-KEE
THE HONOURABLE TIMOTHY HA WING-HO, M.B.E., J.P. THE HONOURABLE MICHAEL HO MUN-KA
DR THE HONOURABLE HUANG CHEN-YA
THE HONOURABLE SIMON IP SIK-ON, O.B.E., J.P. DR THE HONOURABLE LAM KUI-CHUN
DR THE HONOURABLE CONRAD LAM KUI-SHING, J.P. THE HONOURABLE EMILY LAU WAI-HING
THE HONOURABLE LEE WING-TAT
THE HONOURABLE ERIC LI KA-CHEUNG, J.P.
THE HONOURABLE FRED LI WAH-MING
THE HONOURABLE MAN SAI-CHEONG
HONG KONG LEGISLATIVE COUNCIL — 28 June 1995 4711 THE HONOURABLE STEVEN POON KWOK-LIM
THE HONOURABLE HENRY TANG YING-YEN, J.P.
THE HONOURABLE TIK CHI-YUEN
THE HONOURABLE JAMES TO KUN-SUN
DR THE HONOURABLE SAMUEL WONG PING-WAI, M.B.E., J.P. DR THE HONOURABLE PHILIP WONG YU-HONG
DR THE HONOURABLE YEUNG SUM
THE HONOURABLE HOWARD YOUNG, J.P.
THE HONOURABLE ZACHARY WONG WAI-YIN
DR THE HONOURABLE TANG SIU-TONG, J.P.
THE HONOURABLE CHRISTINE LOH KUNG-WAI
THE HONOURABLE ROGER LUK KOON-HOO
THE HONOURABLE ANNA WU HUNG-YUK
THE HONOURABLE JAMES TIEN PEI-CHUN, O.B.E., J.P.
THE HONOURABLE ALFRED TSO SHIU-WAI
THE HONOURABLE LEE CHEUK-YAN
IN ATTENDANCE
MR MICHAEL LEUNG MAN-KIN, C.B.E., J.P.
SECRETARY FOR EDUCATION AND MANPOWER
THE HONOURABLE MICHAEL SZE CHO-CHEUNG, I.S.O., J.P.
SECRETARY FOR THE CIVIL SERVICE
MR HAIDER HATIM TYEBJEE BARMA, I.S.O., J.P.
SECRETARY FOR TRANSPORT
MR NICHOLAS NG WING-FUI, J.P.
SECRETARY FOR CONSTITUTIONAL AFFAIRS
MR MICHAEL DAVID CARTLAND, J.P.
SECRETARY FOR FINANCIAL SERVICES
4712 HONG KONG LEGISLATIVE COUNCIL — 28 June 1995
MR DOMINIC WONG SHING-WAH, O.B.E., J.P.
SECRETARY FOR HOUSING
MRS KATHERINE FOK LO SHIU-CHING, O.B.E., J.P. SECRETARY FOR HEALTH AND WELFARE
MR PETER LAI HING-LING, J.P.
SECRETARY FOR SECURITY
MR BOWEN LEUNG PO-WING, J.P.
SECRETARY FOR PLANNING, ENVIRONMENT AND LANDS
MR KWONG KI-CHI, J.P.
SECRETARY FOR THE TREASURY
MRS STELLA HUNG KWOK WAI-CHING, J.P.
SECRETARY FOR HOME AFFAIRS
THE CLERK TO THE LEGISLATIVE COUNCIL
MR RICKY FUNG CHOI-CHEUNG
THE DEPUTY SECRETARY GENERAL
MR LAW KAM-SANG
HONG KONG LEGISLATIVE COUNCIL — 28 June 1995 4713 PAPERS
The following papers were laid on the table pursuant to Standing Order 14(2): Subject
Subsidiary Legislation L.N. No. Emergency (Requisition) (Repeal) Order 1995 ...................................... 251/95
Emergency (Deportation and Detention) (Forms)
(Repeal) Order 1995.................................................................... 252/95
Appointment of Places of Detention
(Consolidation) (Repeal) Notice 1995......................................... 253/95 Emergency Regulations (Repeal) Order 1995 ........................................ 254/95
Emergency (Deportation and Detention) (Advisory
Tribunal) (Repeal) Rules 1995 .................................................... 255/95
Defences (Firing Areas) Ordinance (Amendment of
First Schedule) Order 1995 ......................................................... 256/95
Public Service Commission (Amendment)
Regulation 1995 .......................................................................... 257/95 Security and Guarding Services (Fees) Regulation ................................ 258/95
Grant Schools Provident Fund (Amendment)
Rules 1995 .................................................................................. 259/95
Subsidized Schools Provident Fund (Amendment)
Rules 1995 .................................................................................. 260/95
Boundary and Election Commission (Registration
of Electors) (Geographical Constituencies)
(Amendment) Regulation 1995 ................................................... 266/95
Boundary and Election Commission (Registration
of Electors) (Functional Constituencies and
Election Committee Constituency)
(Amendment) Regulation 1995 ................................................... 267/95 Legislative Council (Electoral Provisions)
(Election Petition) (Amendment) Rules
1995 ............................................................................................
268/95
4714 HONG KONG LEGISLATIVE COUNCIL — 28 June 1995
Building (Administration) (Amendment) (No.2)
Regulation 1995 .......................................................................... 269/95
Merchant Shipping (Fees) (Amendment)
Regulation 1995 .......................................................................... 270/95
Merchant Shipping (Engine Room Watch Ratings)
(Amendment) Regulation 1995 ................................................... 271/95
Merchant Shipping (Navigational Watch Ratings)
(Amendment) Regulation 1995 ................................................... 272/95
Merchant Shipping (Liability and Compensation
for Oil Pollution (Compulsory Insurance)
(Amendment) Regulation 1995 ................................................... 273/95
Merchant Shipping (Registration) (Fees and
Charges) (Amendment) Regulation 1995.................................... 274/95 Pilotage (Amendment) Regulation 1995 ................................................ 275/95
Shipping and Port Control (Amendment) (No.2)
Regulation 1995 .......................................................................... 276/95
Merchant Shipping (Certificates of Competency as
A.B.) (Amendment) Rules 1995.................................................. 277/95
Merchant Shipping (Certificates of Proficiency in
Survival Craft) (Amendment) Rules 1995................................... 278/95
Merchant Shipping (Safety) (Minimum Safe
Manning Certificate) Regulation
(Amendment of Schedule 2) Notice 1995 ................................... 279/95
Merchant Shipping (Safety) (Cargo Ship Safety
Equipment Survey) Regulations (Amendment
of Schedule 3) Notice 1995......................................................... 280/95
Shipping and Port Control Regulations (Amendment
of Third Schedule) Notice 1995 .................................................. 281/95
Securities (Insider Dealing) (Registration of
Orders) Rules .............................................................................. 282/95
Cremation and Gardens of Remembrance (Urban
Council) (Amendment) Bylaw 1995 ........................................... 283/95
HONG KONG LEGISLATIVE COUNCIL — 28 June 1995 4715
Exhumation (Fees) (Urban Council) (Repeal)
Bylaw 1995 ................................................................................. 284/95
Public Cemeteries (Urban Council) (Amendment)
Bylaw 1995 ................................................................................. 285/95
Places of Amusement (Urban Council)
(Amendment) Bylaw 1995 .......................................................... 286/95
Pleasure Grounds (Regional Council) (Amendment)
Bylaw 1995 ................................................................................. 287/95
Road Traffic (Safety Equipment) (Amendment)
Regulation 1995 .......................................................................... 288/95
Sessional Papers 1994-95
No.98 — 1994 Annual Report by the Commissioner of the Independent Commission Against Corruption
No.99 — Report by Commissioner of Correctional Services on the Administration of the Correctional Services Department Welfare Fund for the year ended 31 March 1994
No.100— Report by the Trustee of the Correctional Services Children's Education Trust for the period 1 September 1993 to 31 August 1994
No.101— Report by the Commissioner of Correctional Services on the Administration of the Prisoners' Welfare Fund for the year ended 31
March 1994
ADDRESS
1994 Annual Report by the Commissioner of the Independent Commission Against Corruption
MR RONALD ARCULLI: Mr President, as a member of the Advisory Committee on Corruption, I have pleasure in introducing the 1994 Annual Report by the Commissioner of the Independent Commission Against Corruption (ICAC), which is tabled today in this Council.
Early 1994 saw celebrations of the ICAC's 20th anniversary and many prominent citizens joined in paying tribute to the economic development and social stability of Hong Kong over the past two decades.
4716 HONG KONG LEGISLATIVE COUNCIL — 28 June 1995
Late 1994 saw the submission to the Governor of the report of the Independent Review Committee. The Committee, chaired by Dr Helmut SOHMEN, had been asked by the Governor to review the powers of the Commission and its systems of accountability. The Review Committee's report contained 76 conclusions and recommendations designed to achieve a balance between the ICAC's public accountability and the powers required to fight corruption effectively.
The Commissioner welcomed the review, saying that the ICAC had to meet public expectations of transparency, openness and accountability if it was to continue to enjoy public support. And public support also has been and will continue to be the single most important factor in the success of the Commission. The Commissioner also saw the review as part of a process of obtaining a fresh mandate from the community. The year ended with the Administration giving priority to the implementation of the Committee's recommendations and the ICAC looking forward to 1995 as a year in which it would settle down as quickly as possible to the new way of doing things.
The year 1993 has seen a remarkable 44% increase in the number of corruption reports over 1992. In 1994 the rise continued but was only 10% over 1993. However, this included complaints arising from District Board elections in 1994. Complaints against the police and the private sector rose by 9% and 17% respectively and decreased by 5% against other government departments. The number of pursuable complaints, 1994 over 1993, rose by 14%. The result was that throughout the year the Operations Department carried a very high case load.
Another report in 1994 was that from the Council's Security Panel, which enquired into the circumstances surrounding the dismissal in late 1993 of a Deputy Director of Operations of the ICAC. The report concluded that the Commissioner had good reason to have lost confidence in the officer and that his decision to terminate his service was proper and reasonable.
The Corruption Prevention Department had another productive year in examining the practices and procedures of government departments and public bodies and in providing a confidential and free internal audit service to private sector organizations to prevent fraud and corruption. This work is a vital element of the Commission's three-pronged attack on corruption but does not always attract the attention and plaudits it deserves because of client confidentiality.
In the Community Relations Department, undoubtedly the most important project during the year was the development of the campaign on Business Ethics, a major policy initiative launched by the Governor in his 1993 policy address. The objective is to enhance Hong Kong's good reputation as a major international business centre. The campaign began with a Conference on Business Ethics in May, the first of its kind in Hong Kong. It was organized by the department jointly with six of the major chambers of commerce and was
HONG KONG LEGISLATIVE COUNCIL — 28 June 1995 4717
sponsored by 108 trade and professional organizations and associations. Some 330 business leaders and corporate heads attended the conference. As the year ended, assistance was being given to all listed companies as well as chambers of commerce and trade associations in Hong Kong in drawing up corporate codes of conduct. Plans were also developing to set up an Ethics Development Centre, staffed by Community Relations Department officers, to provide practical assistance and guidance in these matters.
Mr President, in tabling this report I would like to join the Commissioner, ICAC in thanking the members of the various ICAC advisory committees for their valuable work and support during the year and all the staff of the Commission for their loyalty, dedication and efficiency.
PRESIDENT: Mr James TO, for the purpose of elucidation only, a short question.
MR JAMES TO (in Cantonese): Mr President, in the fifth paragraph of the Address, it was reported that the number of pursuable complaints, 1994 over 1993, rose by 14%. Compared with 1993, has the number of pursuable complaints increased or decreased, if complaints arising from District Board Elections in 1994 are deducted from the number?
PRESIDENT: Mr ARCULLI, can you answer?
MR RONALD ARCULLI: Mr President, I do not have the actual figures with me, but I will be happy to give a written reply to the question.
ORAL ANSWERS TO QUESTIONS
Emergency Medical Care in Public Hospitals
1. MR HUANG CHEN-YA asked: Mr President, will the Government inform this Council of:
(a) the number of trauma and blood loss cases handled by the accident and emergency departments of public hospitals in each of the past three years;
(b) of the cases mentioned in (a) above, how many patients arrived in shock and how many patients were dead on arrival; and
4718 HONG KONG LEGISLATIVE COUNCIL — 28 June 1995
(c) of the capability of the emergency ambulance service of providing emergency medical care to the patients during transportation?
SECRETARY FOR SECURITY: Mr President,
(a) I have been advised by the Hospital Authority that the number of trauma patients, including cases of blood loss, received at the accident and emergency (A&E) departments of public hospitals over the last three years are:
Year No. of cases
1992-93 276000
1993-94 308100
1994-95 348800
There are no separate statistics maintained for patients suffering specifically from blood loss.
(b) I have been further advised by the Hospital Authority that these statistics are based on disease diagnoses of trauma cases. Shock is not in itself a disease diagnosis and there are, therefore, no statistics on the number of trauma patients who arrive at A and E departments in a state of shock. Furthermore, these statistics refer only to patients who are alive when they arrive at A&E departments. We do not have specific statistics on the numbers of people who are dead on arrival and whose cause of death is through trauma.
(c) We have a well-trained, well-disciplined ambulance service who are specifically trained to deal with these patients. Such training in first aid includes controlling blood loss, minimizing shock, protecting wounds from infection and establishing scrupulous standards of hygiene. In addition, we have a special group of paramedic ambulancemen who have received further training in more advanced techniques including intravenous infusion, comprehensive patient assessment, cardiac care by defibrillation and the use of selected medication. When an emergency call is known to involve a patient suffering from trauma and serious blood loss, a paramedic ambulance will be despatched to provide the most appropriate emergency medical care to patients.
HONG KONG LEGISLATIVE COUNCIL — 28 June 1995 4719
DR HUANG CHEN-YA (in Cantonese): Mr President, I hope the Government will provide us with information in writing on the equipment, such as fluids and medications, actually carried on emergency ambulances. Despite the extensive training these ambulancemen have received, what can they do in the absence of equipment? While there have been 300000 plus cases of trauma, the Government reported that only 2000 or 20000 patients have been given infusions or injections to treat their blood pressure. My concern is that the fluids used may not be sufficient, or they may not be the most appropriate medications. So, I hope the Government may provide written information to us in this regard to ensure that the patients will not die before arrival at hospitals.
SECRETARY FOR SECURITY: Mr President, I do not have the figures of the quantity of material in each ambulance which the Honourable Member has asked for.
On the question of what we did with some of these medications, I do have one little piece of information or statistic which might help to illustrate the degree of care which paramedical ambulances, for example, provide to people who suffer from the sort of situations where various kinds of injections or infusions are administered. In 1994-95, 357 patients were given intravenous infusions to alleviate acute diabetic conditions and 267 patients were given intravenous infusions of saline to maintain blood pressure.
DR TANG SIU-TONG (in Cantonese): Mr President, in paragraph (c) of the Government's main reply, it was mentioned that there is a special group of paramedic ambulancemen who may carry out intravenous infusion or cardiac care by defibrillation and use selected medication for patients. I wish to know whether this group of paramedic ambulancemen are doctors. If not, would they have committed a criminal offence should the patients die of the treatment given by them?
PRESIDENT: Only the first part of the question; the second part is calling for an opinion.
SECRETARY FOR SECURITY: Mr President, these paramedic ambulancemen are of course not doctors. Our paramedical ambulancemen are trained in particular; they are first of all selected with more than 10 years of operational experience to undertake a paramedical training course. They receive six weeks of training in patient assessment, in medical and environmental emergencies, in intravenous fluid therapy, in automatic external defibrillation and the administration of selected drugs. At the end of this training, the trainees are also required to go through a series of written and practical examinations as well as a hospital attachment, in order to receive a paramedic certification. They are then required to undergo examinations for re-certification every two
4720 HONG KONG LEGISLATIVE COUNCIL — 28 June 1995
years. So, Mr President, as we will see, the training is very very important. The training is very highly professional and I do not believe that with this sort of training they would be in the unfortunate position of administering drugs in the wrong way.
DR HUANG CHEN-YA (in Cantonese): Mr President, I hope the Government could provide us with information in writing on how actually are the ambulances equipped, for instance, what fluids or medications are available? Despite the extensive trainings received by the ambulancemen, can they solve problems empty-handed? Of the 300000-plus cases of trauma, the Government claimed that some 2000, or 20000, such cases have received fluid infusion last year to combat blood pressure problems. What worries me is that the fluids may not be sufficient, or the medications are inappropriate. So I hope that the Government could provide us with the information in writing, assuring that patients would not dead before arrival at the hospital.
SECRETARY FOR SECURITY: Mr President, I will be happy to see what material I could gather in written form for the Honourable Member as regards the quantities of drugs and so on in the paramedic ambulances (Annex I). I have to say that I have no impression or information that those quantities of material are deficient.
DR CONRAD LAM (in Cantonese): Mr President, Members can hardly know about many of the very important data from the Secretary's main reply; for instance, the percentage of patients whose conditions have aggravated or who have died as a result of excessive blood loss while they are in the ambulance. Although there were no data for such cases in the past, will the Secretary for Security in the coming year request the relevant institutions to make brief reports on patients' conditions while they are in the ambulance; so that such data could be made use of in the future administrative improvements to be undertaken by the Hospital Authority or the relevant government departments. Will the Secretary inform us whether or not this can be done? And if not, why not?
SECRETARY FOR SECURITY: The ambulance service do do their best to ensure that as much information as they are able to give is given to hospital A&E departments upon their arrival at the A&E department delivering the patient. Paramedical ambulancemen are, of course, specifically trained to give much better information to the Hospital Authority, hospitals and A&E departments to ensure that as much information is available to the doctor who will be required to treat them.
HONG KONG LEGISLATIVE COUNCIL — 28 June 1995 4721 System of Handling Complaints against the Police
2. DR CONRAD LAM asked: Mr President, it is mentioned in the 1994 Report of the Independent Police Complaints Council that the proposals which are being considered by the Government to improve the system of handling complaints against the Police include the appointment of non-police officers to the Complaints Against the Police Office (CAPO) and the assignment of lay observers to monitor the investigation of complaints. In this regard, will the Government inform this Council:
(a) of the merits and demerits of the two proposals mentioned above; (b) of the outcome of the Government's consideration; and
(c) whether there is any other plan to support and reinforce the work of the Independent Police Complaints Council?
SECRETARY FOR SECURITY: Mr President, as regards the first part of the question, the proposal to appoint non-police officers to the Complaints Against the Police Office (CAPO) might enhance public confidence in our system of handling complaints against the police, since the investigation work would not exclusively be carried out by police officers. However, the non-police investigators, if appointed, would still be under the police command and it will be difficult to recruit non-police investigators of the right calibre, who must have the necessary expertise and knowledge of police procedures. This is because most of the complaints involve allegations of breaches of the law or police discipline or procedures. Without this knowledge, they do not have the professional skills to make a fair judgement as to whether the action of the police officer under investigation is justified in the circumstances of the case.
The merits of appointing lay observers are that they would not be under the command of CAPO, and would thus be "independent". The involvement of lay observers in the investigatory process would enhance the transparency of the present system. The drawbacks of the proposal are that lay observers cannot participate in the investigation work, and they may not be able to follow through the whole investigation process.
As regards the second part of the question, the idea of appointing non-police investigators was first put forward by the (then) Police Complaints Council in 1993. After careful consideration, the Government did not accept the proposal for the reasons I have just mentioned. We are, however, prepared to discuss this further with the Independent Police Complaints Council (IPCC) and to consider any additional arguments which the Council may put forward.
4722 HONG KONG LEGISLATIVE COUNCIL — 28 June 1995
The IPCC did not support the Government's proposal for lay observers, as an alternative to appointing non-police investigators. We do not consider that the lay observers scheme can achieve good results without the support of the Council and have, therefore, decided that the idea should be shelved for the time being.
As regards the third part of the question, the measures that are being planned or implemented to support and reinforce the work of the IPCC include making the Council a statutory body; installing close circuit television and video recording facilities in all CAPO report and interview rooms so as to ensure greater transparency in the handling of cases and to ensure that the investigating officers are not unfair or unbiased in questioning; implementing the Interviewing Witnesses Scheme to enable the Council to clarify matters with witnesses, complainants, complainees and experts directly; conducting a comparative study of police complaints systems in other countries to identify the strengths and weaknesses of our system; enhancing the publicity programme of the Council to strengthen public confidence in, and awareness of, its work; and organizing the Courteous Police Officers Award Scheme to encourage police officers to deal with members of the public more politely and tactfully, in order to reduce the number of complaints.
DR CONRAD LAM (in Cantonese): Mr President, the Secretary mentioned in the fourth paragraph that the Independent Police Complaints Council (IPCC) did not support the Government's proposal for the lay observers scheme and that the Government has therefore decided to shelve the idea for the time being. First, I want to tell the Secretary that his findings are outdated as the IPCC, at a meeting two days ago, discussed this scheme and considered that there were merits in this proposal. The Council is studying how the merits of this proposal can be fully developed. My question now is: As and when the IPCC agrees to this proposal of the Government's, will the Government provide it with adequate resources so that it will have sufficient manpower to participate in this plan? If so, when?
SECRETARY FOR SECURITY: Mr President, I thank the Honourable Member for updating me on the latest thinking of the IPCC, of which of course he is a member and I am not.
As regards the question of the precise way in which, if the IPCC believes that the lay observers scheme should be implemented, how, when and precisely at what time and in what way it should be implemented, these are matters which we will need to discuss with the IPCC in due course. We have not had this opportunity to discuss it, so I am not able to say what resources or what timescale or what procedures will be implemented.
HONG KONG LEGISLATIVE COUNCIL — 28 June 1995 4723
MISS EMILY LAU (in Cantonese): Mr President, will the Government affirm whether the Commissioner for Administrative Complaints has suggested that the Government should allow his Commission to investigate the civilian staff of the police? Does the Government consider this suggestion desirable? Will it consider that it is a step forward? If so, when will this plan be put into effect to allow the Commission for Administrative Complaints to investigate complaints against the civilian staff of the police?
SECRETARY FOR SECURITY: Mr President, all I can say at this stage is that I have heard reports for such remarks being made, although I have not personally seen a formal recommendation to that effect.
I should like just to say a few words about the specific point of whether or not the Commissioner for Administrative Complaints should investigate complaints against civilian staff of the Police Force. Under the Police Force Ordinance, the Commissioner of Police is responsible for the command and management of the Police Force, which includes disciplined and civilian staff. The present complaint handling system is geared to cover both disciplined and civilian staff as they work very closely with each other in carrying out their duties in certain circumstances. Bearing in mind that many civilian members of the force, like traffic wardens, have direct law enforcement authority, the proposal to separate civilians from the present complaint handling arrangements is not really very practicable.
MR WONG WAI-YIN (in Cantonese): Mr President, the Secretary mentioned in the third paragraph of his main reply that the Government did not accept the proposal of the IPCC to appoint non-police investigators to the Complaints Against the Police Office for the reasons he mentioned in the first paragraph, that is, recruitment of these people would be very difficult and so it is unacceptable. I wonder if it will be more difficult to recruit these people than to choose the Chief Executive. Mr President, our request is just to appoint some non-police staff to the Complaints Against the Police Office, not to replace all. After these people have joined the Office, they will gradually familiarize themselves with the relevant procedures and gain experience through their work. I want to ask the Secretary: Does the Government agree to the principle of appointing non-police officers to the Complaints Against the Police Office? If so, we are prepared to remove all the difficulties. If the Government does not even agree to this principle, then the IPCC could have no more comments to make.
PRESIDENT: Secretary, you can ignore the reference to the Chief Executive.
4724 HONG KONG LEGISLATIVE COUNCIL — 28 June 1995
SECRETARY FOR SECURITY: Thank you, Mr President. On the question of the difficulty which I referred to in finding the right type of non-police investigators, of course, as I mentioned in the main reply, non-police investigators if appointed will still be under the police command and in that sense therefore there is also a different issue of whether or not you can recruit them. In effect therefore, even if they are non-policemen, and even if they can be recruited, they will still be under the police command and it is therefore questionable to what extent that would increase public confidence or transparency in these investigations.
I just repeat, Mr President, that our minds are not completely closed on all these issues. We noted, of course, that the IPCC has made its views that they still believe that this is worth pursuing and we would be prepared to discuss these issues further with the IPCC, as indeed we would also wish to conduct the study that I referred to in my main reply about how complaints against police systems in other jurisdictions and other territories and countries work, so as to enable us better to decide what further measures might be taken as regards improving the transparency and the public credibility of our complaints against police system.
MR MAN SAI-CHEONG (in Cantonese): Mr President, as far as I know, the IPCC is not yet a statutory body and the Government has suggested in the IPCC to table a bill to the Legislative Council. But this suggestion was made several years ago. How far have we gone now? Are there any difficulties? Has the bill concerned been tabled to the Council for scrutiny? If there are difficulties, are they involved with the Government's hesitance for fear that Legislative Councillors will insist on having non-police officers handle the complaints?
SECRETARY FOR SECURITY: Mr President, we are still looking at the drafting of the bill. We are not yet at a stage where we can consult the Chairman of the IPCC on a definitive version of the draft bill. I am not able to say precisely when I will he able to introduce the bill into this Council.
PRESIDENT: Mr MAN, not answered?
MR MAN SAI-CHEONG: Can I have a short follow-up. What will be included in the proposed legislation? Will it include the composition and also the powers?
PRESIDENT: Secretary, that is a second supplementary.
HONG KONG LEGISLATIVE COUNCIL — 28 June 1995 4725
SECRETARY FOR SECURITY: The purpose of the IPCC bill is primarily to give statutory status to the existing IPCC system. It will certainly address the functions and the membership of the Independent Police Complaints Council.
MR JAMES TO (in Cantonese): Mr President, at least from the Government's point of view, the IPCC is very familiar with the operation of the police and can handle complaints fairly; it has gained much experience about the work and its members are highly respected people of the society. The IPCC has recommended two levels of reform: first, there should be non police officers participating in the investigations; second, as Dr the Honourable Conrad LAM has suggested just now, there should be someone observing the investigations. Despite the recommendations made by a Council the members of which are all trusted by the Governor and whose chairman having repeatedly asked the Government to consider these recommendations, it seems that up till now, the Secretary for Security has only given two very short reasons in his main reply. He has not given a detailed account of the Government's arguments. Will the public be convinced? In the first paragraph of the reply, it is mentioned that since non-police investigators do not have the knowledge of police procedures or disciplines, they cannot make a fair judgement as to whether the police officer's action is justified. I want to ask then: Can a judge do so? At present, the court hears cases involving breaches of the law every day. The court may even criticize during the hearing that some police procedures are improper. According to the Secretary's reply, is it right that only police officers are eligible to investigate?
SECRETARY FOR SECURITY: Mr President, I have already, in my main reply, explained the Government's reasons for not pursuing at the time the recommendation of the Police Complaints Committee to have a system of non-police investigators. I have also said that given the comments of the IPCC currently we are prepared to have discussions with the IPCC to discuss their views further on the idea of non-police investigators. I have also said that initially we, the Government, were prepared to go down the road of a lay observers scheme. It was at the time not given very strong support by the IPCC, but I am glad to hear today from Dr the Honourable Conrad LAM that the IPCC may have further things to say and we will certainly be prepared to discuss them. I do not believe, Mr President, it is right to make a comparison between judges and police officers.
Importation of Foreign Domestic Helpers
3. DR SAMUEL WONG asked: Regarding the importation of domestic helpers, will the Government inform this Council:
(a) whether it has information to show the differences in salary, terms and conditions of service, between domestic helpers in Hong Kong
4726 HONG KONG LEGISLATIVE COUNCIL — 28 June 1995
and those in Singapore and the difference in retraining charges imposed by the two governments relating to such employment;
(b) of a breakdown, by country of origin, of foreign domestic helpers permitted by the Immigration Department to work in Hong Kong; and
(c) whether the Government will encourage people to employ local domestic helpers?
SECRETARY FOR EDUCATION AND MANPOWER: Mr President,
(a) All foreign domestic helpers (FDHs) in Hong Kong are admitted to work for a specified employer under a standard two-year contract of employment which stipulates the terms and conditions of their employment. This standard contract is governed by all the relevant labour legislation in Hong Kong. Each FDH is also entitled to receive from his/her employer a specified minimum allowable monthly wage. At present, this amounts to HK$3,750. Employers are not required to pay any retraining charges arising from the employment of such helpers.
As regards the FDHs in Singapore, we understand that their employment is not governed by any standard contract of employment. The terms and conditions of employment are subject to negotiations between the employers and the helpers themselves. The helpers are not entitled to any specified minimum monthly wage. Their average monthly wage ranges from S$150 to S$350. However, the employer of each FDH is required to pay to the Government a monthly levy of S$330 and a security bond of S$5,000 as a deposit. The latter amount will be refunded to the employer upon the termination of the service and departure from Singapore of that helper.
(b) The breakdown of FDHs permitted to work in Hong Kong by country of origin as at the end of this year is at Annex, tabled with the reply.
(c) As with the employment of any other types of local workers, the employment of local domestic helpers should be decided by the forces of demand and supply in a freely competitive market. The Government's responsibility is to facilitate such employment through the provision of employment services and suitable training and retraining.
HONG KONG LEGISLATIVE COUNCIL — 28 June 1995 4727
The Local Employment Service (LES) of the Labour Department provides free employment assistance and counselling services to all local job-seekers, including domestic helpers, who register for employment. Anyone who wishes to employ local domestic helpers can also register with any of the LES offices. According to the statistics kept by the LES, the placement cases of local domestic helpers constitute about 4.7% of the total placement figures.
The Employees Retraining Board (ERB) is now running two job-specific retraining courses on domestic work. A total of 199 retrainees have completed the courses and 38 are still attending them. The ERB is liaising with a number of training bodies and other interested organizations with a view to organizing more retraining courses on domestic work.
Annex
Number of Foreign Domestic Helpers in Hong Kong
as at 31 May 1995
(breakdown by nationality)
Countries Number Philippines 126425 India 1168 Thailand 7073 Indonesia 13049 Sri Lanka 808 Myanmar 145 Malaysia 60 Singapore 7 Pakistan 90 Nepal 192 Bangladesh 17
4728 HONG KONG LEGISLATIVE COUNCIL — 28 June 1995 Countries Number
Others* 72
---------
Total 149106
= = = = =
* Note: "Others" column include countries like Austria, France, Germany, Korea, Mexico, the Netherlands and the United States.
DR SAMUEL WONG (in Cantonese): Mr President, at present, in employing foreign workers, employers are required to pay a retraining charge of $400 for every imported worker they have taken on, except for the foreign domestic helpers. Since the Employees Retraining Board (ERB) is currently running retraining courses relating to domestic helpers, may I ask if the Government will consider levying retraining charges on employers of foreign domestic helpers?
SECRETARY FOR EDUCATION AND MANPOWER (in Cantonese): Foreign domestic helpers come under a separate scheme which is different from the labour importation scheme. For this reason, our present approach is based on the policy that has been adopted for the past 20 years and that is, foreign domestic helpers are imported on the basis of the local demand, with no special charges levied or quota set for such employment. Therefore, we consider it inappropriate to levy charges on the employers. Of course, if we deem it is necessary to readjust the demand and supply, it is possible that we will use other methods to readjust the demand and supply of foreign domestic helpers. However, we will certainly give this matter individual consideration because this is a matter different from the labour importation scheme.
MR STEVEN POON (in Cantonese): Mr President, according to the annex provided by the Government, there are 149000 foreign domestic workers in Hong Kong and this is a very huge number. Does the Government know how large the market of domestic helpers is in Hong Kong? What is the percentage of foreign domestic helpers in the entire domestic helper market? What is the highest possible number of foreign domestic helpers in Hong Kong? Does Hong Kong have any plan to deal with such an enormous number of them eventually?
SECRETARY FOR EDUCATION AND MANPOWER (in Cantonese): Mr President, as I said in the main reply, the foreign domestic helper importation scheme is purely a matter of demand and supply. As early as the 1970s, this is some 20 years ago, certain employers were already permitted by the Government to import foreign domestic helpers as the supply of local domestic
HONG KONG LEGISLATIVE COUNCIL — 28 June 1995 4729
helpers had fallen short of the demand. The Government has not carried out a comprehensive survey but foreign domestic helpers are imported on the basis of the applications from local families which have the need. It is a natural matter of demand and supply in the market. We do not have any specific plan to fix the number of imported domestic helpers. This is a matter different from the labour importation scheme.
MRS ELSIE TU: Mr President, in view of the increase in unemployment of local women, would it be possible for the Government to consider scaling down the number of foreign domestic workers permitted to work in Hong Kong?
SECRETARY FOR EDUCATION AND MANPOWER: Mr President, of course we have had this point raised on several occasions in this Council, among other things, in the context of importation of labour. I would just like to make one point and that is that in the review on the importation for labour scheme we will, of course, take into account the needs of local workers for more jobs. If, and I stress the point if, it can be proved that there is a demand for local domestic helpers in Hong Kong which is clearly and demonstrably clear to us that this need is not fulfilled, then of course we would be very happy to look at this scheme again to see whether we ought to give priority to local workers to take up domestic work and accordingly restrict the number of foreign domestic helpers. But we have yet to have the evidence to show this point.
PRESIDENT: We have got time for three more supplementaries, as we have got a very long agenda today.
MRS PEGGY LAM (in Cantonese): Mr President, there are already more than 100000 foreign domestic helpers in Hong Kong and this number is constantly rising. Moreover, according to a survey I have recently conducted, members of the public think that the number of FDHs should not be allowed to go up indefinitely and that a quota system ought to be implemented. In the circumstances, will the Government inform this Council whether it will conform to the wishes of the people by formulating a policy on the quota of foreign domestic helpers in the near future?
SECRETARY FOR EDUCATION AND MANPOWER (in Cantonese): As I have said before, the importation of foreign domestic helpers is purely a matter of demand and supply in a free market and for the time being, the Government has no intention to intervene in this respect. Yet, if it is the view of the community that some local workers being unable to find jobs is the result of these foreign helpers coming to work in Hong Kong, we would certainly review this scheme and see if it is necessary to readjust the importation of foreign domestic helpers. In the meantime, we will also have to consider whether local
4730 HONG KONG LEGISLATIVE COUNCIL — 28 June 1995
domestic helpers can satisfy the demand of the local families. We will adopt an open attitude towards this matter.
MR TAM YIU-CHUNG (in Cantonese): Mr President, in fact, many families in Hong Kong do not necessarily need to take on full-time domestic helpers who can actually be replaced by part-time local domestic helpers instead. May I ask whether the Government will ask the ERB to organize and increase the number of related courses, and to take up the responsibility to provide placement service in an effort to enhance the employment opportunities of local workers?
SECRETARY FOR EDUCATION AND MANPOWER (in Cantonese): Mr President, as I mentioned just now, the ERB is running two training courses on domestic work for these people. We will certainly encourage the ERB to provide more courses of this sort to meet the local demand if necessary. As to how we can help local workers take up domestic work, we will be happy to look into this matter and see if it is necessary to provide additional training courses through the ERB by running this type of courses for local workers to enable them to work as domestic helpers. As regards part-time domestic helpers, we will also give consideration to running training courses for them if there is such a need.
MRS SELINA CHOW (in Cantonese): Mr President, very often we can see foreign domestic helpers engaging in duties other than those specified in their employment contracts. Just take a look at the notice boards in supermarkets and one will know. What measure does the Government have in place to ensure that foreign domestic helpers are genuinely observing the original employment contracts that they made when they first came to work in Hong Kong? What measures will be adopted to stop an enormous pool of these helpers from engaging in part-time domestic work which is not a duty specified in their contracts? Is there any plan to further ensure the strict observance by employers of the terms of the contracts?
SECRETARY FOR EDUCATION AND MANPOWER (in Cantonese): Members may remember that the Secretary for Security has stated in clear terms that we would strengthen our work in this regard particularly and that means, firstly, we will monitor whether foreign helpers are engaging in domestic work in local families; secondly, we will strengthen our enforcement actions; thirdly, we will strengthen the deterrent effect of the penalties. I believe that the Government is certainly determined to spare no effort to combat this kind of activities.
PRESIDENT: Mrs CHOW, not answered?
HONG KONG LEGISLATIVE COUNCIL — 28 June 1995 4731
MRS SELINA CHOW (in Cantonese): The Secretary did not say whether the Government will take further action to ensure the strict observance by the employers of the terms of the contract. This is because there are also problems on the part of the employers now. May I ask the Government if it has any plan to do that?
SECRETARY FOR EDUCATION AND MANPOWER (in Cantonese): Mr President, we will certainly consider this.
Brain Drain Problem
4. MR PETER WONG asked: Will the Administration inform this Council:
(a) of the total number of local residents who have emigrated abroad in the last two years, together with the respective percentages of civil servants and professionals among these emigrants; and
(b) whether it has taken any measures to cope with the brain drain problem; if so, what the measures are?
SECRETARY FOR SECURITY: Mr President, we estimate that about 53400 persons emigrated from Hong Kong in 1993, and about 61600 in the year 1994. Of these numbers, respectively 7.5% in 1993 and 6.5% in 1994 are professionals. Civil servants are not separately identified in our emigration statistics.
As regards the second pan of the Honourable Member's question, let me first of all reiterate that Hong Kong does not, and will not prevent its people from emigrating elsewhere. What we seek to do are:
(1) To maintain Hong Kong's stability and prosperity so that our citizens can continue to live and work in an environment which allows them to apply their talents and expertise, and rewards them for their successes. To this end, we have done a great deal to improve our infrastructure, which is so necessary for our economic development. Our economic and financial policies have also enabled us to enjoy sustained economic growth and sound public finance over the past few years. Hong Kong remains today an attractive place in which to live and work. Indeed, it is at least partly because of the economic opportunities offered by Hong Kong that a fair number of former emigrants, some of them highly educated and professionally trained, have returned here.
4732 HONG KONG LEGISLATIVE COUNCIL — 28 June 1995
(2) We do understand that some of the factors contributing to people's decision to emigrate is their anxieties about the future. The best answer to their worries is the full and faithful implementation of the provisions of the Sino British Joint Declaration on the future of Hong Kong. We have in the past years devoted a great deal of effort to that end. We have had some successes in our endeavours, for example, the Defence Land agreement in 1994 and the Court of Final Appeal agreement this year. Nevertheless, we recognize that a great deal more work needs to be done, and we shall continue to do our best in this regard.
(3) In response to the specific emigration pressures in the late-1980s, we have instituted the British Nationality Selection Scheme, which has as its primary objective the anchoring of well-qualified personnel in Hong Kong at the prime of their career. The Scheme is designed to enable up to 50000 qualified families to obtain British Citizenship without leaving the territory. Progress in implementing the Scheme is good: so far, 43400 heads of families, together with their dependents, have been registered as British citizens under the Scheme. Many of the 43400 principal beneficiaries are well-educated, including professionals, and in the prime of their career.
(4) We seek to replenish our supply of highly educated and trained people whom we lose through emigration. We have, for example, increased the number of first year, first degree (FYFD) places substantially in the past few years, from 7426 places (or 8.64% of the relevant age group) in 1988-89 to no less than 14500 places (or 18% of the relevant age group) in 1994-95. As a result of this expansion of tertiary education, the number of workers with degree or above qualifications is projected to increase from 173000 in 1991 to 235400 in 1996, and further to 320800 in the year 2001. This represents a growth of 6.4% a year during this 10 year period, by the end of which we should be able to match supply with demand.
We have also been providing a comprehensive system of technical education and vocational training through the two Technical Colleges, seven Technical Institutes and 18 Industrial Training Centres of the Vocational Training Council. Together, 43100 full-time and 66600 part-time training places will be provided in 1995-96. As a result of these training facilities, the number of workers with sub-degree qualification are expected to increase from 106800 in 1991 to 143200 in the year 1996, and further to 180200 in the year 2001. The manpower supply at technician and craft levels is projected to increase from 59100 in 1991 to 113500 in the year 2001.
HONG KONG LEGISLATIVE COUNCIL — 28 June 1995 4733
MR PETER WONG: Mr President, as the Secretary for Security is determined not to provide me with statistics on the civil service emigration, can the Secretary for Education and Manpower or the Secretary for the Civil Service, or even the Chief Secretary who is thereby head of the Civil Service, assist?
PRESIDENT: The question is strictly to be answered by the public officer concerned.
SECRETARY FOR SECURITY: Mr President, may I defer to my colleague, the Secretary for the Civil Service, to see whether he has anything more to say. My emigration statistics do not, unfortunately, capture emigration statistics for civil servants.
SECRETARY FOR THE CIVIL SERVICE: Mr President, civil servants normally leave the Government by either resignation or retirement. For those who resign, they are not obliged to provide the reasons for resignation. The only exceptions are those who apply for early retirement under the old pension scheme, between the age of 45 and 49, and the figure that I have for you for 1994-95 is that out of a total of 448 officers retired between that age bracket, 302 officers retired prematurely for the purpose of emigration.
As I mentioned, officers who retire early other than under the scheme that I just mentioned do not have to tell us the reasons, but as good managers we do interview officers to find out the reasons — whether or not they wish to inform us of, for example, whether there are improvements to our management systems they wish to suggest. Since they are leaving, they probably will tell us the truth. So, of the 3489 officers who resigned in 1994- 95, 1620 have voluntarily told us the reasons why they were resigning, of which 371 told us that it is for reasons of emigration.
MR EDWARD HO: Mr President, the Secretary gave us a figure of emigration of professionals in the last two years and a quick calculation shows that that was about 8000 people who left in the last two years. Since this brain drain has already started probably 10 years ago, would the Secretary consider that this sort of brain drain is serious and whether he thinks that there would be a serious impact on our economy, especially the service sector?
SECRETARY FOR SECURITY: Mr President, I am not sure where the figure of 8000 comes from. I will just give an example: from our emigration statistics for the year 1994, 6.5% of them were professionals. That amounts to a figure of about 4000 for the year 1994.
4734 HONG KONG LEGISLATIVE COUNCIL — 28 June 1995
Having said that, as I have mentioned in my main reply, one of the things that the Government has embarked upon is to expand our education facilities in such a way that we would be able to catch up with the balance of supply and demand. That balance of supply and demand must, of course, take account of the fact that we do lose people, we do lose some highly educated people and professionals through emigration. But at the same time, the expansion in our tertiary institutions, which I have just mentioned, should enable us by the target time to replenish the supply of talent which we have lost.
MR MARTIN BARROW: Mr President, could the Secretary tell us what steps are being taken to encourage emigrants to return to Hong Kong as part of the solution to the brain drain problem, and to what extent this has met with success?
SECRETARY FOR SECURITY: Mr President, as far as I understand, we estimate that approximately 12% of the emigrants who have left Hong Kong in the past 10 years have returned to Hong Kong. Now that figure, I must stress, is of course only an estimate. As I mentioned already in the main part of my reply, one of the reasons, no doubt, why emigrants who have left Hong Kong do return to Hong Kong is of course the economic opportunities which are available in Hong Kong and which might not be available in such plentitude in other territories where they are living.
MR ALBERT CHAN (in Cantonese): Mr President, in the reply provided by the Secretary for the Civil Service regarding the emigration of civil servants, it was mentioned that among the 448 civil servants who applied for early retirement, 302 left the Government for the reason of emigration, representing almost 70% of civil servants who retired prematurely. The percentage is really alarming. What are the measures which the Government is going to undertake in an attempt to minimize the drain of the civil servants who might have joined the civil service for 20 or 30 years and are there any measures in place to minimize the impact of the drain of these civil servants on the entire operation of the civil service?
SECRETARY FOR THE CIVIL SERVICE (in Cantonese): Mr President, 448 may well be regarded as a drop in the ocean given the size of the civil service which comprises 180000 officers. Moreover, the ranks of these officers vary from the very low to the very top, therefore it is difficult to put in general terms the impact of their early departure on the stability of the civil service or on the operation of our society as a whole. From my personal point of view, I do not think that the impact is really serious. However, I must stress that our civil service training programmes and recruitment exercise have taken into account the factor that some colleagues will leave the service prematurely.
HONG KONG LEGISLATIVE COUNCIL — 28 June 1995 4735 Tax Liabilities of Chinese Functionaries in Hong Kong
5. MR FREDERICK FUNG asked: Mr President, under the local tax system, incomes earned from employment in the territory as well as net profits derived from a trade, profession or business being carried on in the territory are liable to tax. In this connection, will the Government inform this Council:
(a) whether the following three categories of people are required to pay tax;
(i) functionaries on the payroll of the Chinese Government (non diplomatic personnel);
(ii) functionaries of Chinese enterprises and service institutions who are posted to the territory; and
(iii) personnel of the Hong Kong Branch of Xinhua News Agency posted to the territory, including the director and deputy directors; and
(b) if the answer to (i), (ii) and (iii) of (a) above is in the affirmative, how many of these people have paid tax, and what is the total amount of tax paid by them in the last fiscal year and how many of them are exempted from paying tax and why?
SECRETARY FOR THE TREASURY: Mr President,
The answers to the questions are as follows:
(a)(i) Under the Inland Revenue Ordinance, the official emoluments of consuls, vice-consuls and persons employed on the staff of any consulate, who are subjects or citizens of the state which they represent, are exempt from salaries tax. To conform with international practice, this exemption is extended to officials of another jurisdiction who serve with a department or agency of that jurisdiction, provided that the department or agency is not an undertaking carried on for profit. Accordingly, Chinese officials who are posted to Hong Kong to serve with a department or agency of the Chinese Government that is not an undertaking carried on for profit are exempt from salaries tax in Hong Kong.
(ii) Any person employed by Chinese enterprises and service institutions carrying on business in Hong Kong for profit are liable to salaries tax on income arising in or derived from Hong Kong from an office or employment of profit. We do not draw any distinction between persons posted to Hong Kong and persons engaged locally.
4736 HONG KONG LEGISLATIVE COUNCIL — 28 June 1995
(iii) Chinese officials posted to the Hong Kong Branch of the Xinhua News Agency are exempt from salaries tax in Hong Kong by virtue of (a)(i) above. However, locally engaged personnel are liable to Hong Kong salaries tax.
(b) As a general point, I would like to remind Members that under the secrecy provision of the Inland Revenue Ordinance, we are not at liberty to disclose details of the tax liability of individual taxpayers.
Turning to the specific question, we do not keep detailed statistics on the number of people in the categories referred to in the Member's question and their tax liabilities.
MR FREDERICK FUNG (in Cantonese): Mr President, what I would like to pursue is that, in regard to the functionaries of the Chinese Government who are posted to the territory that I mentioned in paragraph (a)(i) of the main question, as well as the personnel of the Hong Kong Branch of the Xinhua News Agency mentioned in paragraph (a)(iii) of the main question, when the Hong Kong Special Administrative Region has become a local government of the Chinese Government after 1997, will the identities of the above personnel then be changed and will they thus be required to pay tax?
PRESIDENT: Are you able to answer, Secretary?
SECRETARY FOR THE TREASURY: Mr President, I do not think I can speculate on what would happen in 1997.
MR FREDERICK FUNG (in Cantonese): Mr President, is the Secretary for the Treasury not able to tell whether Hong Kong will become a SAR Government under the Chinese Government? This should not be regarded as "speculation".
PRESIDENT: If you have not got the answer to that as a matter of law, I will not call on you to answer, Secretary. Is that the position?
SECRETARY FOR THE TREASURY: Yes, Mr President.
MR LEE WING-TAT (in Cantonese): Mr President, it is mentioned in paragraph (a)(iii) of the main reply that the locally engaged personnel of the Hong Kong Branch of the Xinhua News Agency are liable to Hong Kong salaries tax. I would like the Secretary for the Treasury to clarify the definition of locally engaged personnel. For instance, does Mr MAO Jun-nian,
HONG KONG LEGISLATIVE COUNCIL — 28 June 1995 4737
one of the deputy directors of the Xinhua News Agency, belong to that category? How do you determine whether an employee of the Xinhua News Agency is a local employee?
SECRETARY FOR THE TREASURY: Mr President, as I have said, I am not at liberty to disclose details of the tax liability of individual taxpayers, so I cannot comment on the individual referred to by the Honourable Member. The question of whether an employee of the Xinhua News Agency is a local employee is a matter of fact which will be determined by the Commissioner.
MR JAMES TO (in Cantonese): Mr President, officials like consuls or vice-consuls will not be posted by a state to its own territory. In paragraph (a)(i) of the main reply, the Secretary for the Treasury mentioned the Inland Revenue Ordinance. I have just read through section 8(2)(b) of that Ordinance concerning the consults, vice-consuls and other local citizens employed on the staff of a consulate. However, according to the Consular Relations Ordinance (Cap.259), theoretically speaking, if a government wants to obtain that kind of exemption, it has to notify the local government which staff members are the consuls or the vice-consuls. May I ask the Secretary for the Treasury whether the Xinhua News Agency, as an organization of the Chinese Government, has notified the British Government that the personnel of the Xinhua News Agency are in fact the consuls or vice-consuls, so that they can be exempt from the payment of tax according to section 8(2)(b) of the Inland Revenue Ordinance?
SECRETARY FOR THE TREASURY: Mr President, in fact my answer does not specify that the employees of the Xinhua News Agency are regarded as consuls or vice-consuls and so on. I said: "To conform with international practice, this exemption is extended to officials of another jurisdiction who serve with a department or agency of that jurisdiction, provided that the department or agency is not an undertaking carried on for profit." The officials of the Chinese Government posted to the Hong Kong Branch of the Xinhua News Agency fall into that category.
PRESIDENT: Mr TO, not answered?
MR JAMES TO (in Cantonese): Mr President, the Administration has not answered my question. It is because procedure-wise, no matter it is consuls, vice-consuls or even non profit making department or agency that is concerned, the Chinese Government should fill in some sort of tax returns to indicate which people are its employees, including consuls, vice-consuls and all the officials working in the non-profit making departments or agencies. But finally, under which section of the Inland Revenue Ordinance are they exempt from payment of tax? Is this kind of procedure necessary? Otherwise, the Commissioner of
4738 HONG KONG LEGISLATIVE COUNCIL — 28 June 1995
Inland Revenue is totally ignorant of which people who thinks they can be exempt from payment of tax, or under which section of the Ordinance that they can be accorded such exemption.
SECRETARY FOR THE TREASURY: Mr President, where an individual is exempt from payment of tax there is no requirement on him or her to report the situation to the Commissioner.
MR LEE WING-TAT (in Cantonese): Mr President, on many public occasions, the Hong Kong Branch of the Xinhua News Agency remarked that it is a news agency engaging in news reporting and gathering activities. These activities are, of course, commercial activities. If it is correct in saying so, in other words, the Xinhua News Agency is an organization operating with profits. May I ask the Secretary for the Treasury whether the Hong Kong Branch of the Xinhua News Agency is classified by the Administration as a news agency? Has it ever been involved in the sale of news for reaping profits while engaging in the news reporting and gathering activities?
SECRETARY FOR THE TREASURY: Mr President, as I have said, the Xinhua News Agency is the official news agency of the Chinese Government and we do not regard that as being carried on for profit.
PRESIDENT: Not answered, Mr LEE?
MR LEE WING-TAT (in Cantonese): Mr President, my question is: Has the Administration required the Hong Kong Branch of the Xinhua News Agency to clarify whether it is an agency posted to Hong Kong representing the Chinese Government or whether it is a news agency? After hearing the reply from the Secretary for the Treasury, I find that the Secretary has already confirmed that the Hong Kong Branch of the Xinhua News Agency is not a news agency engaging in news gathering activities and having economic activities. Is that the situation?
SECRETARY FOR THE TREASURY: Mr President, I think the premise on which the Honourable Member asked the question is that a news agency is necessarily a profit-making one. I do not accept that.
PRESIDENT: Mr James TO, this is the last question in view of our long agenda.
HONG KONG LEGISLATIVE COUNCIL — 28 June 1995 4739
MR JAMES TO (in Cantonese): Mr President, I would like to follow up the question just asked. Which section or which subsection of the Inland Revenue Ordinance stipulates that to an individual who is employed but not liable to tax, neither he himself nor his employer is required to report any information in regard to taxation?
SECRETARY FOR THE TREASURY: Mr President, as I understand it, the liability on employers to report is to report on those who are liable to tax.
MR JAMES TO (in Cantonese): May the Administration provide a written reply, for instance, in the form of a piece of legal advice, stating in which section of which chapter does the stipulation concerned appear so that it can clearly be put on record? Or will it be the common law? I believe it is not the common law. It should be the statutory law. Should it be the statutory law, may the Administration point out where the stipulation appears under the statutory law?
SECRETARY FOR THE TREASURY: Mr President, I am happy to refer this to the Commissioner of Inland Revenue and to provide a written answer. (Annex II)
Policy towards Preliminary Working Committee
6. MR LEE WING-TAT asked: Mr President, in the agreement on the Court of Final Appeal issue between the British and Chinese sides, the British side has agreed to amend the Court of Final Appeal Bill on the basis of eight suggestions made by the Preliminary Working Committee of the Preparatory Committee (PWC) of the Hong Kong Special Administrative Region. In view of this, will the Government inform this Council whether there is any change in its policy towards the PWC; if so, what the new policy is; if not, why not?
SECRETARY FOR CONSTITUTIONAL AFFAIRS: Mr President, the Preliminary Working Committee (PWC) is a body established by the Chinese National People's Congress to tender advice to the Chinese Government. As such, there is no formal relationship between the Committee and either the Hong Kong Government or the British Government.
But no formal relationship does not mean no contact. The work of the Committee is related to Hong Kong's future and the transition. We take the view that it would be appropriate to provide them with information to help them understand different aspects of Hong Kong. As Members are aware, we do have contacts with the PWC through a variety of channels. Where they have
4740 HONG KONG LEGISLATIVE COUNCIL — 28 June 1995
sought information from the Hong Kong Government, we have invariably responded, and we will continue to do so.
As for the Court of Final Appeal, the various suggestions of the Political Affairs Sub-group of the PWC were largely consistent with our own proposals. We, therefore, indicated our willingness to pursue these suggestions, in much the same way as we would have considered views from other bodies which commented on the establishment of the Court of Final Appeal in Hong Kong. Also, we understood from the Chinese side that they, too, believed that the PWC suggestions provided a useful basis to take forward the discussion on the question of the Court of Final Appeal. What happened afterwards is, of course, a matter of public record: the agreement we eventually reached with the Chinese side provides, amongst other things, that we would amend the Court of Final Appeal Bill on the basis of the eight suggestions published by the Political Affairs Sub-group of the PWC.
MR LEE WING-TAT (in Cantonese): Mr President, in his Question and Answer sessions, the Governor has said that the proper channel to resolve issues on Hong Kong's transition is the Sino-British Joint Liaison Group, and government officials are prohibited from attending official meetings of the PWC in their capacities as officials. To put it objectively, it means that the status of the PWC is not recognized. Recently, the Government has permitted officials to attend seminars hosted by the PWC, and this time the Government openly adopts the views formally expressed by the PWC. The change is a marked one. However, the Government refuses to admit that there is a change in policy. So the Government is, is it not, either self-deceiving or suffering from split personality and therefore has not realized that there is a significant change in policy resulting in what it was contradicts with what it is?
SECRETARY FOR CONSTITUTIONAL AFFAIRS: Mr President, I think the Hong Kong Government has time and again explained that we adopt a pragmatic approach in dealing with the PWC. We certainly would provide information to the Committee where such information is useful to its work because the Committee is involved in deliberations affecting the future of Hong Kong and the transition of Hong Kong. We certainly maintain contact with that Committee, as we have done individually or as a group, and we have participated in a number of public seminars or public occassions organized by the PWC. So our stand on dealings with the PWC has been consistent, has been pragmatic and has been geared towards the interests of Hong Kong.
MR FREDERICK FUNG (in Cantonese): Mr President, in the past Chinese officials had time and again denied to recognize the Legislative Council of Hong Kong as a legitimate institution or an advisory body. However, with the signing of the agreement on the Final Court of Appeal, there is a change of attitude on the part of Chinese officials towards the Legislative Council, in that they have
HONG KONG LEGISLATIVE COUNCIL — 28 June 1995 4741
become more positive and may even go as far as to accept that the Court of Final Appeal Bill is to be passed by the Legislative Council to become a law of Hong Kong. Could it mean that it is an agreement for Hong Kong to recognize the PWC and for China to recognize the Legislative Council in return?
SECRETARY FOR CONSTITUTIONAL AFFAIRS: Mr President, I explained in my main answer the background leading to our readiness to consider the proposals made by the PWC on the establishment of the Court of Final Appeal. I have nothing to supplement that aspect of the answer.
As regards the involvement of the legislature in the Court of Final Appeal Bill, again that is a necessary step in our legislative process. Before any bill becomes law, obviously the Legislative Council has to be involved and it is our plan that our Bill will be put before this Council, debated and enacted before the end of this Session. That explains the involvement of the Legislative Council.
MR JAMES TO (in Cantonese): Mr President, the Secretary for Constitutional Affairs has mentioned in the second paragraph of his reply that when the PWC sought information from the Hong Kong Government, the Government had invariably responded, and the
Government would continue to do so. Can the Government say for certain that the information obtained by the Legislative Council, other consultative bodies or the people of Hong Kong will not be any less than what the PWC has obtained from the Government?
SECRETARY FOR CONSTITUTIONAL AFFAIRS: Mr President, our general stand on provision of information to members of the public or to anybody who has an interest in a particular public policy is well known. Where that information is available, where that information can be made public, we certainly would not shy away from providing that information and our general objective is to allow the public to have as much information as possible on any public policy that is under debate or under discussion.
MR LEE WING-TAT (in Cantonese): Mr President, 1 would like the Secretary for Constitutional Affairs to confirm whether or not the Sino-British Joint Liaison Group (JLG) is the formal channel to resolve issues concerning Hong Kong's transition? If so, do we have to face such a situation that in future, the discussion, contact or resolution of the numerous issues concerning transition will have to be carried out, first of all, at the PWC, and then rubber-stamped by the JLG? Is it the case or not that the people of Hong Kong will be anticipating to have such a situation?
4742 HONG KONG LEGISLATIVE COUNCIL — 28 June 1995
SECRETARY FOR CONSTITUTIONAL AFFAIRS: Mr President, the establishment and functions of the Joint Liaison Group (JLG) are very clearly set out in the Joint Declaration and we certainly will continue to make use of the JLG as the formal forum to exchange views between the British and the Chinese Governments on matters related to the transition. That position will not change.
DR CONRAD LAM (in Cantonese): Mr President, in the second paragraph of the main reply, the Secretary for Constitutional Affairs mentioned that no formal relationship does not mean no contact. My impression is that he seems to be talking about "a mistress", who has no formal relationship but this does not mean no contact. I do not care whether or not there is a formal relationship. But does the Government recognize the role played by the PWC? The Government admits that there is no formal relationship with the PWC, but does the Government recognize its role?
SECRETARY FOR CONSTITUTIONAL AFFAIRS; Mr President, the PWC, as I mentioned, is an advisory body established by the Chinese Government to tender advice to the Chinese Government on matters related to the transition and the future of Hong Kong. Quite obviously, the official link is between the PWC and the Chinese Government. But on the other hand, where information is required by the PWC, where subject matter discussed by the PWC is of interest to Hong Kong and to Hong Kong people, and where the Hong Kong Government can supply and help in that process, we certainly would take part fully in the provision of such information and in maintaining general contact with the PWC.
WRITTEN ANSWERS TO QUESTIONS
Delegation of Securities and Futures Commission's Powers and Duties
7. MR CHIM PUI-CHUNG asked (in Chinese): Will the Government inform this Council whether the Securities and Futures Commission has laid down any internal guidelines governing the exercising of power and execution of duties by authorized persons under the Securities and Futures Commission Ordinance; if so, what the guidelines are?
SECRETARY FOR FINANCIAL SERVICES: Mr President, the powers and duties of the Securities and Futures Commission contained in the Securities and Futures Commission Ordinance (Cap.24) may, with the exception of the functions of the Commission set out in the Schedule to the Ordinance, be delegated to any directors of the Commission, to any committees established by the Commission, or to any employees of the Commission. Such delegations do
HONG KONG LEGISLATIVE COUNCIL — 28 June 1995 4743
not prevent the Commission itself concurrently performing the functions delegated. In practice, operational staff report to the members of the Commission, and significant matters involving the exercise of the Commission's powers are considered by the senior management of the Commission. Moreover, all directors of the Commission are informed of, or decide on, major initiatives.
The Commission has published guidelines regulating market conduct which contain criteria under which the Commission is bound to act. For example, the Takeovers and Mergers Panel is a committee established under the Securities and Futures Commission Ordinance and comprehensive Codes on Takeovers and Mergers and Share Repurchases have been published which set out the duties of the Panel and make provision, amongst other things, for disciplinary proceedings and decisions. Similarly, guidelines as to how the Commission will exercise its powers have been published in the Code on Unit Trusts and Mutual Funds with regard to the authorization of mutual fund corporations and unit trusts, and in the booklet entitled The Fit and Proper Criteria which sets out the conditions to be met by persons wishing to be registered as intermediaries. A list of the relevant publications is at the Annex. As far as the more routine exercise of powers is concerned, internal Commission guidelines have been stipulated as necessary and these generally follow the published guidelines.
Annex
- The Fit and Proper Criteria
- Code on Investment-Linked Assurance and Pooled Retirement Funds
- Guidelines for the Exemption of Listed Companies from the Securities (Disclosure of Interests) Ordinance
- Code on Unit Trusts and Mutual Funds
- Licensing Information Booklet
- Hong Kong Codes on Takeovers and Mergers and Share Repurchases - Code on Immigration-Linked Investment Schemes
- Notes to Financial Resources Rules
- Code of Conduct for Persons Registered with the Securities and Futures Commission
4744 HONG KONG LEGISLATIVE COUNCIL — 28 June 1995 Annex
- A Simplified Outline of the Leveraged Foreign Exchange Trading Ordinance, Subsidiary Rules and Guidelines
- Core Operational and Financial Risk Management Controls for Over-the Counter Derivatives Activities of Regisered Persons
Karaoke Clubs Showing Category III Film Clips
8. MR ERIC LI asked (in Chinese): Will the Government inform this Council:
(a) of the number of complaints lodged in the past three years against karaokes for showing category III films on videotapes, laser discs or compact discs respectively to persons under the age of 18; together with the number of successful prosecutions and a breakdown of the sentences passed in each of the successful prosecutions; and
(b) what measures the Government will adopt to reduce the showing of category III films to persons under the age of 18 in those establishments?
SECRETARY FOR RECREATION AND CULTURE: Mr President, in the past three years, the Television and Entertainment Licensing Authority (TELA) had received three complaints, of which two related to laser discs and one to videotapes, about the showing of alleged Category III film clips to persons under the age of 18 in karaoke establishments. No prosecution has been taken against the operators of these karaoke establishments as there was insufficient evidence to substantiate the allegations. However, these operators had been warned not to show Category III film clips to persons under the age of 18, which was an offence liable to a maximum fine of $50,000 on first and second conviction and $100,000 on subsequent conviction.
Measures have already been and will continue to be taken to remind the public not to show Category III films to persons under the age of 18 in public places, including karaoke establishments. During the past two years, TELA distributed more than 11000 posters and 105000 leaflets to remind the public of the age restriction imposed on Category III films. There is a similar warning in the certificate of approval for Category III films as well as on the packaging of Category III videotapes and laser discs.
In connection with the planned publicity for the refined film classification system after the enactment of the Film Censorship (Amendment) Bill 1995, TELA will make use of this opportunity to further remind the public as well as
HONG KONG LEGISLATIVE COUNCIL — 28 June 1995 4745
karaoke operators that Category III films are prohibited to be shown to persons under the age of 18.
Private Car Toll for Cross-Harbour Tunnel
9. DR SAMUEL WONG asked: Will the Government inform this Council of the reasons why the toll of $5 for private cars using the Cross-Harbour Tunnel has remained unchanged since the date of its opening in 1972?
SECRETARY FOR TRANSPORT: Mr President, under section 41(1) of the Cross-Harbour Tunnel Ordinance (Cap.203), the Cross-Harbour Tunnel Company Limited may increase toll levels with the agreement of Governor in Council. If such agreement cannot be reached then, under section 41 (2) of the Ordinance, the Company may submit its toll increase proposal to arbitration. In reaching a decision, the arbitrator will have regard to whether the tunnel franchise provides the company with reasonable remuneration.
In accordance with this procedure, the Company sought a toll increase in 1988. The application was rejected by the Governor in Council and the Company sought arbitration. The arbitrator subsequently ruled that a toll increase was not merited. The Company has not submitted any subsequent applications for toll adjustment.
The onus is on the Cross-Harbour Tunnel Company to apply for toll increases if it believes these can be justified under the terms of its franchise, as embodied in the Cross Harbour Tunnel Ordinance.
Blake Notice
10. DR TANG SIU-TONG asked (in Chinese): In the negotiation between the British Government and the Government of the Ching Dynasty, on the lease of the New Territories in 1899, the two governments had signed an agreement which included a provision stating that burial grounds within the leased territory would forever not be subject to removal. The then Governor of the territory, Sir Henry Arthur Blake, promulgated the full text of the agreement in a Government Notice which was published in the Gazette on 7 October 1899, and this notice has since been known among the villagers as the "Blake Notice". In connection with this, will the Government inform this Council whether:
(a) the Government is obliged to abide by the "Blake Notice"; and (b) the "Blake Notice" is legally binding; if not, why not?
4746 HONG KONG LEGISLATIVE COUNCIL — 28 June 1995
SECRETARY FOR PLANNING, ENVIRONMENT AND LANDS: Mr President, the statement that "the graves in the leased territory are never to be removed" appeared in a translation of the "Blake Notice" issued by the Viceroy of the Two Kwong Provinces and Governor of Kwong Tong Province dated 4 April 1899. There is no evidence of a signed agreement between the British and Chinese Governments stating that burial grounds in the New Territories would not be subject to removal.
The Notice was laid before the Legislative Council and gazetted on 7 October 1899. The records show that the reason why the Notice was published in the Gazette was that a Legislative Council Member had asked for it to be tabled at the Legislative Council. In those times, it appears to have been the practice to record proceedings in the Legislative Council in the Gazette.
The then Governor, Sir Henry BLAKE, issued a Proclamation on 9 April 1899. It referred to the lease of the New Territories and contained a statement that "your (the inhabitants') commercial and landed interests will be safeguarded; and that your usages and good customs will not in any way be interfered with". There was no reference to ancestral graves in the Proclamation.
The "Blake Notice" was in fact a proclamation made by an official of the Chinese Government. It does not form part of the law of Hong Kong and does not have legal force in Hong Kong.
Touting and Commission-taking among Solicitors and Paralegals
11. MISS EMILY LAU asked: The Legal Practitioners' Ordinance (LPO) was amended in July last year empowering the Law Society to appoint inspectors to investigate touting and commission-taking among solicitors and paralegals. Will the Administration inform this Council:
(a) what measures are in place to assess whether the amendments to the LPO have been effective in combating touting and commission-taking by lawyers and paralegals;
(b) how many lawyers and paralegals have been formally disciplined for such malpractice, and with what results; and
(c) whether it will consider criminalizing touting and commission-taking in order to stamp out the malpractice?
HONG KONG LEGISLATIVE COUNCIL — 28 June 1995 4747
ATTORNEY GENERAL: Mr President, the answers to the three parts of this question are as follows.
(a) The Legal Practitioners Ordinance was amended in July 1994, but the Inspectors' Powers Rules did not come into force until November of that year. The following measures are in place to assess whether the amendments are effective.
(i) Law Society inspectors are required to submit written reports to the Law Society following each individual inspection, which are under constant review by the Law Society. In this regard, a Standing Committee on Compliance has been specifically tasked to monitor the inspectorate system.
(ii) The Law Society submits quarterly reports on the progress and effectiveness of the inspectorate system to the Administration. The first progress report was submitted at the end of March 1995.
(iii) The Working Party on Touting and Commission-taking in Criminal Defence Work reviews the effectiveness of the inspectorate system on a regular basis. I chair the Working Party which comprises representatives of the Law Society, the Bar Association, the Independent Commission Against Corruption (ICAC) and my Chambers.
(iv) The general public are encouraged by the Law Society as well as by the Administration (for example, through the recently published Consultation Paper on Legal Services) to report cases of touting and commission-taking and any malpractices within the legal profession to the Law Society and the Administration.
(v) At the suggestion of the Administration, the Law Society recently set up a working party to consider the problem of touting and commission-taking in conveyancing matters. The Administration is determined to combat touting and commission-taking in this area. Representatives of the ICAC and my Chambers have been invited to attend meetings of the working party and to participate in the discussion of measures to tackle the problem. It is envisaged that the working party will submit its report to the Law Society's Council for consideration before the end of this year.
These arrangements provide regular and comprehensive monitoring of the effectiveness of the inspectorate system in tackling the problem of touting and commission-taking not only in criminal defence work but also in conveyancing matters. In order to ensure
4748 HONG KONG LEGISLATIVE COUNCIL — 28 June 1995
the success of the inspectorate system, we also need the co-operation of lawyers and consumers of legal services to come forward and report cases of touting and commission-taking and any other malpractices of lawyers and their employees.
(b) Law Society inspectors have so far conducted 15 inspections in court promises and 23 inspections of solicitors' firms. As a result of these inspections, six files have been opened for further investigation. The Investigation Committees of the Law Society are considering disciplinary proceedings in three of these six cases whilst the remaining three are still under investigation.
(c) The Administration has not excluded the option of criminalizing touting and commission-taking if the legal profession fails to solve the problem by self regulation. Public views on this issue have been sought in the Consultation Paper on Legal Services. The matter will be reviewed in early 1996, by which time the inspectorate system will have been in operation for a period of 12 months.
Expatriate Schoolchildren in Hong Kong
12. MR CHEUNG MAN-KWONG asked (in Chinese): At present, some expatriate children who are eligible to receive education locally come from economically developing countries, and their proficiency in Chinese and English is likely to be limited. In view of this, will the Government inform this Council:
(a) of the policies for providing education to these expatriate children; (b) of a breakdown of their nationality and age;
(c) how many of these expatriate children have already enrolled in Government or subsidized schools in the territory, and how many who have not done so and what are the reasons for non-enrolment; and
(d) whether consideration will be given to allowing these expatriate schoolchildren, especially those at primary school age, the choice to study at schools near their homes in the same way as the local schoolchildren, so that they can be completely integrated into the territory's school environment?
SECRETARY FOR EDUCATION AND MANPOWER: Mr President, our policy on free and compulsory education applies to all eligible children within the appropriate school age, irrespective of their country of origin.
HONG KONG LEGISLATIVE COUNCIL — 28 June 1995 4749
We do not have information on the distribution in our schools by nationality and age of children who come from economically developing countries. We believe the number of these children who are eligible for public education service to be very small.
Three government schools offer public school places for non-Chinese students with limited command in English and Chinese. The vast majority of these children are of Indian or Pakistani origin. Their current enrolment in these three schools is 1200. No separate record is kept on those admitted to aided and private schools. We are, therefore, not aware that any such children have been refused enrolment. We offer school placement service to all eligible children who approach us for assistance.
There is no disparity of treatment between the expatriate children in question and their local counterparts. However, because of their limited command in English and Chinese, some of them can only be allocated to the three schools mentioned in (c) above. When their language abilities have improved sufficiently to enable them to benefit from the curriculum in ordinary local schools, the Education Department will allocate them in the same way as their local counterparts in accordance with the established policy, that is, primary pupils will be allocated to schools in their own district and secondary pupils on a territory-wide basis.
Scheduled Training Programmes
13. MISS CHRISTINE LOH asked: As the Immigration Department grants employment visas to both imported workers and foreign workers coming to the territory to participate in "scheduled training programmes", will the Administration inform this Council:
(a) how many foreigners who are currently participating in "scheduled training programmes" with the permission of the Immigration Department have stayed in the territory for more than six months; and
(b) of the reasons why foreign workers participating in "scheduled training programmes" are excluded from the statistics on imported workers under the Government's imported labour scheme?
SECRETARY FOR SECURITY: Mr President,
(a) In 1994, 5726 visas for the purpose of training were issued; in the first five months this year, 1961 visas were issued. We have no breakdown of these numbers by the length of the training period.
4750 HONG KONG LEGISLATIVE COUNCIL — 28 June 1995
(b) Foreign trainees are admitted to stay for a limited period to acquire, through training, skills and knowledge not readily available in their home country. After the training, they will return to their home country to continue employment in their profession or trade. Imported workers are admitted to meet a local demand; they work for a specified employer in a specified post under a standard contract. Since the purpose of entry for foreign trainees and imported workers are different, they are accounted for separately in the statistical data.
Neighbourhood Watch Scheme
14. MR WONG WAI-YIN asked (in Chinese): At the end of last year, the authorities concerned reintroduced the Neighbourhood Watch Scheme on a trial basis in Mongkok, Tuen Mun and Yuen Long for a period of six months. As the trial scheme has now been completed, will the Government inform this Council:
(a) of the respective numbers of related activities organized in the three districts above-mentioned together with the respective numbers of participants;
(b) of the findings of the review of the trial scheme, and whether the trial scheme has been effective; and
(c) whether the Neighbourhood Watch Scheme will continue to be in operation and whether it will be extended to other districts?
SECRETARY FOR SECURITY: Mr President, the Neighbourhood Watch Scheme was reintroduced on a trial basis for a minimum of six months in Mongkok, Tuen Mun and Yuen Long in September 1994, November 1994 and January 1995 respectively. The trial scheme is ongoing and is expected to be completed in around August this year. A review will then be conducted.
The answers to the specific questions are:
(a) The activities organized in relation to the Scheme vary between the three districts. They include visits, seminars, press conferences, concerts, variety shows, essay competitions and the distribution of promotion leaflets. We do not have statistics on the number of participants involved in each of the activities.
In Mongkok, since September 1994, 76 buildings have joined the Scheme (the trial scheme in Mongkok is based on buildings, rather than households). The police, with the assistance of the District Office, have conducted 300 visits to Mutual Aid Committees,
HONG KONG LEGISLATIVE COUNCIL — 28 June 1995 4751
Owners Incorporations and resident associations; organized a press conference; and distributed some 30000 leaflets to residents to promote the Scheme.
In Tuen Mun, since November 1994, 199 households have joined the Scheme; 12 visits have been conducted; six seminars were held; a variety show with some 3000 participants was organized; and some 11500 bulletins and leaflets were distributed.
In Yuen Long, since January this year, 2611 households have joined the Scheme; 900 visits have been conducted, two press conferences were held, an essay competition with over 1000 contestants was organized; two seminars, with 450 participants were arranged; and a concert with 13000 participants was organized.
(b) We have not yet conducted a review on the trial scheme, which has not yet been completed. However, residents in the three districts appear to have responded favourably to the Scheme.
(c) We will review whether the Scheme should continue and be extended to other districts after we have reviewed the trial scheme, which is expected to complete in August this year.
Euthanasia
15. DR CONRAD LAM asked (in Chinese): In view of the aging of the population, the progress made in life-prolonging medical technology and people's changing attitude towards life and death, the concept of euthanasia has aroused concern, discussions and researches on an increasing scale all over the world. Some governments have introduced legislation to legalize the practice of euthanasia and monitor its execution. In the United States, at least 15 states have introduced the Right-to-die Acts, and a Senate Committee On Euthanasia And Assisted Suicide has been set up in Canada. In this regard, will the Government inform this Council:
(a) Whether an in-depth survey will be conducted to solicit the views of the public on euthanasia; if so, when it will be conducted; if not, why not; and
(b) Whether the Government will consider setting up a committee consisting of members holding views for and against euthanasia, as well as representatives of religious organizations and the medical and legal professions, to study thoroughly whether the practice of euthanasia should be promoted in the territory; if so, when the committee will be set up; if not, why not?
4752 HONG KONG LEGISLATIVE COUNCIL — 28 June 1995
SECRETARY FOR HEALTH AND WELFARE: Mr President, when the subject of euthanasia was last raised in this Council in February 1993, we sought views from the Medical Council of Hong Kong, the Joint Hong Kong Medical Association/British Medical Association Medical Ethics Advisory Committee and the Hospital Authority.
While they regarded euthanasia as basically an ethical and professional issue to be addressed by medical bodies and associations, their response also suggested that local doctors did not regard it as a pressing matter of public concern. They were not aware of any cases of euthanasia having taken place in Hong Kong.
However, as Dr LAM has pointed out, many changes have taken place outside Hong Kong since then. Local attitudes may also have changed.
I therefore intend to look further into the matter. As this is an issue with moral, ethical, social and legal implications, there is need to seek views not only within the medical profession, but also from the community at large. I intend to consult the district boards in the near future on their views on the issue before deciding on further action.
Noise Nuisance at Tsui Ping Estate
16. MR TAM YIU-CHUNG asked (in Chinese): Will the Government inform this Council whether any measures have been put in place to abate the noise nuisance caused to residents of Tsui Chung House and Tsui Tung House at Tsui Ping Estate by vehicles entering the Tseung Kwan O Tunnel; if so, what the measures are ?
SECRETARY FOR PLANNING, ENVIRONMENT AND LANDS: Mr President, the section of Tseung Kwan O Road near Tsui Ping Estate has already been paved with a flexible bituminous material which has noise reduction effects.
In addition, the Government is currently studying ways to further reduce traffic noise from existing roads. The study will identify the roads that require mitigation measures, the potential benefits of such measures, their technical feasibility and financial implications. The study will be completed within two years.
HONG KONG LEGISLATIVE COUNCIL — 28 June 1995 4753 Safety of Slope in Kwun Lung Lau
17. DR HUANG CHEN-YA asked (in Chinese): Will the Government inform this Council:
(a) whether the Government is still monitoring the safety of the slope in Kwun Lung Lau; if so, what inspection and studies the consultants have carried out and what the results are;
(b) whether the subsurface drainage has been inspected by closed-curcuit TV; if so, what the results are, and
(c) whether the Government will carry out repair works on the slope; if so, when such works will be completed?
SECRETARY FOR WORKS: Mr President,
(a) Following the fatal landslide below Block D at Kwun Lung Lau on 23 July 1994, a statutory order under section 27A of the Buildings Ordinance was served on the Hong Kong Housing Society (HKHS) on 30 July 1994 by the Building Authority. This order required the investigation and submission of remedial proposals for the existing retaining wall and slopes below Blocks D and E. A similar order was served on 11 January 1995 in respect of the existing slope and retaining wall below Block G. A further similar order was served on 31 May 1995 on both the HKHS and the owners of 71-77 Smithfield, in respect of the existing slope below Block B.
All the above-mentioned statutory orders provide for the appointment of an Authorized Person to supervise the work required by the order, and the appointment of such Authorized Persons includes responsibility for monitoring stability until completion of preventive works and giving warning of impending danger.
The stability of the site including the effect of the improvement works on adjacent buildings and lands are closely monitored. So far, the monitoring records revealed no undue ground movement.
(b) The detailed drainage investigation carried out by the Buildings Department included a closed-circuit TV survey of the foul water and stormwater drains.
4754 HONG KONG LEGISLATIVE COUNCIL — 28 June 1995
The results of the drainage investigation were published in the Report on the Kwun Lung Lau Landslide of 23 July 1994 Volume 2 — Findings of the Landslide Investigation (Appendix J). Parts of the drainage systems were found to be in poor condition with leakage.
A statutory order under section 28(3) of the Buildings Ordinance was served on HKHS on 8 February 1995 requiring the investigation, repair or renewal of the defective drains. Repair work is in hand.
(c) Repair works on the slopes as required by the orders referred to in (a)above will be carried out by the HKHS; in the case of 71-77 Smithfield, by the owners.
About 70% of the remedial works to the failed retaining wall and slope below Block D have been completed. The final completion date for this part of the works will be the end of July 1995.
Noise Generated by Port Operations
18. MR LEE WING-TAT asked (in Chinese): The development of the port has resulted in offshore operation activities (such as public cargo working areas and mid-stream operation berths) being located closer to residential areas. In this regard, will the Government inform this Council:
(a) what measures have been put in place to prevent the noise generated by these offshore operations (including the noise caused by machines operation and the use of loud-hailers)from disturbing the nearby residents;
(b) whether restrictions will be imposed on these offshore operations near residential areas between 11 pm and 7 am;
(c) how the relevant legislation will be enforced to prohibit offshore operators from using loud-hailers between 11 pm and 7 am; and
(d) whether the Government has received complaints from residents about noise nuisance generated from the public cargo working areas and mid-stream operation berths in Tsing Yi and Tsuen Wan in the past year; if so, whether prosecutions have been instituted against them?
HONG KONG LEGISLATIVE COUNCIL — 28 June 1995 4755 SECRETARY FOR PLANNING, ENVIRONMENT AND LANDS: Mr President,
(a) Noise generated by the operations of the port in the vicinity of residential areas is most effectively mitigated by careful planning to provide an adequate buffer between the noise sources and sensitive receivers — the Environmental Protection Department works closely with other government departments to this end. In addition, noise generated by machines and by loud-hailers is controlled under the Noise Control Ordinance (NCO) (Cap.400). The Marine Department also meets regularly with barge operators to seek their assistance to restrict the use of loud-hailers at night.
(b) Between 11.00 pm and 7.00 am, public cargo working areas are closed. As for cargo-handling operations outside public cargo working areas and apart from the measures outlined in (a) above, the Administration is considering legislative provisions to control the use of loud-hailers and public address systems on vessels at night.
(c) Noise from port activities, including machinery and the use of loud-hailers inside designated public cargo working areas is controlled under section 13 of the NCO. Noise from activities outside these designated areas is controlled under sections 4 and 5 of the NCO. The former is enforced by the Environmental Protection Department, while the latter is enforced by the police. As noted in (b) above, the Administration is also considering legislative provisions to restrict the use of loud-hailers and public address systems on vessels at night in order to further minimize the disturbance caused by their possible mis-use.
(d) In the past year, the Environmental Protection Department and the police have received nine complaints related to noise from public cargo working areas and mid-stream operation berths in Tsing Yi and Tsuen Wan. Five cases were not actionable because the noise did not exceed the statutory limit; in three cases warnings were given and one case is still under investigation. There have been no prosecutions.
Cooling Towers
19. MR FREDERICK FUNG asked (in Chinese): Will the Government inform this Council of the following:
(a) what is total number of cooling towers in the territory; how many of them have been abandoned;
4756 HONG KONG LEGISLATIVE COUNCIL — 28 June 1995
(b) which legislation regulates the installation of cooling towers; and what are the particular points to which attention should be paid during installation in order to avoid violating the relevant legislation;
(c) which department is responsible for demolishing cooling towers abandoned by companies which have ceased operation; whether action will be taken to recover the costs of demolition from the owners of such companies; and
(d) whether the Government has demolished any abandoned cooling towers in the past three years; if so, how many were demolished each year ?
SECRETARY FOR PLANNING, ENVIRONMENT AND LANDS: Mr President,
(a) The total number of cooling towers in the territory is not available, since no territory-wide survey on the subject has ever been conducted.
Since the installation of cooling towers is not considered as a separate type of building work in the Administration's record system, it is also not practicable to extract the number of applications and approvals for cooling tower installation.
(b) Water tanks or water cooling towers are not themselves building works. However, the supporting frameworks are considered as building works and therefore subject to the control of the Buildings Ordinance.
Any person who wants to install a cooling tower should appoint a building professional to prepare a building plan describing details of the works to be done. The plan should be submitted to the Building Authority for approval prior to the commencement of works.
During installation, all works should strictly follow the sequences, procedures and requirements mentioned in the building plan approved by the Building Authority.
(c) The Buildings Department regularly removes dangerous or potentially dangerous cooling towers, whether they are abandoned or not, through patrols by its staff or investigation into complaints by the public.
HONG KONG LEGISLATIVE COUNCIL — 28 June 1995 4757
Under the Buildings Ordinance and current policy, the Government will recover any cost incurred in the demolition action from the owners.
(d) The Administration does not keep data on the number of abandoned cooling towers. The numbers of dangerous/abandoned cooling towers demolished by the Buildings Department in the past three years are as follows:
Year No. of dangerous/abandoned cooling towers removed
1992 470
1993 480
1994 500
Clinical Training Supervisors
20. MR MICHAEL HO asked (in Chinese): According to a letter issued on 15 September 1980 by the Chairman of the former University and Polytechnic Grants Committee, the former Medical and Health Department was responsible for creating clinical training instructor posts to provide clinical training in degree or higher diploma courses in Medical Laboratory Science, Radiography, Physiotherapy, Occupational Therapy and Nursing offered by the Hong Kong Polytechnic, as well as the degree courses in Nursing offered by the Chinese University of Hong Kong. In this regard, will the Government inform this Council:
(a) of the ratio of clinical training instructors to students in each of the courses mentioned above; and
(b) whether the University Grants Committee or the Hospital Authority is responsible for setting aside funds for paying the remunerations of clinical training instructors of the above mentioned courses ?
SECRETARY FOR EDUCATION AND MANPOWER: Mr President,
(a) In 1980, the then Hong Kong Polytechnic (HKP) and the Medical and Health Department (MHD) agreed that clinical supervision of HKP's courses in Occupational Therapy, Physiotherapy, Radiotherapy and Medical Laboratory Science would be provided by the MHD through the creation of clinical supervisor posts. Following the establishment of the Hospital Authority in 1990, however, provision of clinical supervision for these courses in
4758 HONG KONG LEGISLATIVE COUNCIL — 28 June 1995
hospitals is arranged between the individual hospitals concerned and the Hong Kong Polytechnic University (PolyU). Different hospitals and courses may, therefore, have different arrangements.
The overall ratio of clinical supervisors to students for the courses in Medical Laboratory Science, Physiotherapy and Occupational Therapy offered by the PolyU ranges from 1:4 to 1:10 per placement. Details of the respective ratios are as follows:
Higher Diploma in Medical average 1:8 per placement Laboratory Science
Bachelor of Science in average 1:6 per placement Occupational Therapy
Bachelor of Science in average 1:6 per placement Physiotherapy
As regards the ratio of clinical supervisors to students for the Bachelor of Science programme in Radiography, it ranges from 1:4 to 1:7 per placement.
Lastly, for the degree courses in Nursing, only students of the pre registration nursing degree programmes require designated clinical supervisors for clinical training. In the case of PolyU, the ratio of clinical supervisors to students is one staff to five students in years one and two of the programme, one staff to six students in year three and one staff to 10 students in year four. For the Chinese University of Hong Kong (CUHK), the pre-registration nursing degree programme will be introduced in the academic year 1995-96 and the ratio of clinical instructors to students is planned to be approximately one staff to 20 students.
(b) At present, designated clinical supervisors for the courses in Medical Laboratory Science, Physiotherapy and Occupational Therapy offered by the PolyU are provided by the hospitals concerned. They are hospital staff remunerated by the Hospital Authority, except for some supervisors of the Higher Diploma programme in Medical Laboratory Science who are remunerated by the Department of Health as some students are placed in laboratories run by the Department of Health for clinical training. For the Bachelor of Science programme in Radiography, clinical supervision is provided by both the hospitals concerned and the PolyU. As regards the degree courses in Nursing, clinical supervisors of PolyU are remunerated from the recurrent grants allocated to the University whereas those of CUHK will be remunerated from the Earmarked Grants provided by the
HONG KONG LEGISLATIVE COUNCIL — 28 June 1995 4759
University Grants Committee (UGC) for the programme during the 1995-98 triennium.
MOTIONS
TATE'S CAIRN TUNNEL ORDINANCE
THE SECRETARY FOR TRANSPORT moved the following motion:
"That the Tate's Cairn Tunnel (Amendment) Bylaw 1995, made by the Tate's Cairn Tunnel Company Limited on 30 May 1995, be approved."
He said: Mr President, I move the motion standing in my name in the Order Paper.
The Tate's Cairn Tunnel Ordinance empowers the Tate's Cairn Tunnel Company Limited to make bylaws but these are subject to the approval of the Legislative Council before they can take effect. The amendments to the Bylaws now before this Council are necessary for the day-to-day operation of an autotoll system, which will be introduced at the tunnel later this year. They cover such matters as the issue of electronic toll passes, signage as well as access to and passage through the autotoll booths. The opportunity has also been taken to make a minor amendment to facilitate the entry of non-articulated vehicles into the tunnel area without a special permit. This conforms with provisions in the Road Traffic Ordinance.
The Administration has examined the revised Bylaws, and I commend them to this Council for approval in accordance with section 35(3) of the Tate's Cairn Tunnel Ordinance.
Mr President, I beg to move.
Question on the motion proposed, put and agreed to.
EASTERN HARBOUR CROSSING ORDINANCE
THE SECRETARY FOR TRANSPORT moved the following motion:
"That the Eastern Harbour Crossing Road Tunnel (Amendment) Bylaw 1995, made by the New Hong Kong Tunnel Company Limited on 7 June 1995, be approved."
He said: Mr President, I move the motion standing in my name in the Order Paper concerning amendments to the Eastern Harbour Crossing Bylaws.
4760 HONG KONG LEGISLATIVE COUNCIL — 28 June 1995
Similar to the previous motion, this seeks to facilitate the introduction of an autotoll system at the Eastern Harbour Crossing.
Mr President, I beg to move.
Question on the motion proposed, put and agreed to.
HOUSING ORDINANCE
THE SECRETARY FOR HOUSING moved the following motion:
"That the Housing (Traffic Contraventions) (Fixed Penalty) (Amendment) Bylaw 1995, made by the Housing Authority on 29 May 1995, be approved."
He said: Mr President, I move the motion standing in my name in the Order Paper, which seeks approval for amendments to the Housing (Traffic Contraventions) (Fixed Penalty) Bylaw.
Section 18 of the Bylaw allows a defendant against whom proceedings have been instituted for a traffic contravention inside a public housing estate to terminate the proceedings against him by paying the required penalty and court costs not less than 72 hours before the time specified in the summons for his appearance before a magistrate. The time limit is modelled on section 20B of the Fixed Penalty (Traffic Contraventions) Ordinance (Cap.237). However, this time limit was amended by this Council on 6 July last year to allow a defendant to pay the penalty and court costs not later than two clear working days before the day of his appearance in court. The purpose was to provide a more specific method of computing the time limit where Sunday and public holdiays were involved, and to enable the magistracy administration to have sufficient time to cancel the proceedings after receipt of payment.
In order to ensure that a consistent approach is also adopted for traffic contraventions inside public housing estates, the Housing Authority made the Housing (Traffic Contraventions) (Fixed Penalty) (Amendment) Bylaw 1995 on 29 May 1995, amending section 18 of the Bylaw accordingly.
We have examined the amendments, and commend them to this Council for approval in accordance with section 30(2) of the Housing Ordinance.
Mr President, I beg to move.
Question on the motion proposed, put and agreed to.
HONG KONG LEGISLATIVE COUNCIL — 28 June 1995 4761 INTERPRETATION AND GENERAL CLAUSES ORDINANCE
THE SECRETARY FOR PLANNING, ENVIRONMENT AND LANDS moved the following motion:
"That the Town Planning Ordinance (Cap.131) be amended -
(a) by repealing section 20(8) and substituting -
"(8) A person who contravenes subsection (7) commits an
offence and is liable, in the case of a first conviction, to a fine of $500,000 and, in the case of a second or subsequent conviction, to a fine of $1,000,000.";
(b) by repealing section 21(2) ad substituting -
"(2) A person who contravenes subsection (1) commits an
offence and is liable, in the case of a first conviction, to a fine of $500,000 and, in the case of a second or subsequent conviction, to a fine of $1,000,000.";
(c) in section 23(6) by repealing everything after "is liable" and substituting - "-
(i) in the case of a first conviction, to a fine of $500,000;
and in addition, to a fine of $50,000 for each day
during which the offence is proved to have continued;
and
(ii) in the case of a second or subsequent conviction, to a
fine of $1,000,000 for each day during which the
offence is proved to have continued.".
He said: Mr President, I move the motion standing in my name in the Order Paper.
The Town Planning Ordinance (Cap.131) was amended in 1991 to empower the Planning Authority to take actions against unauthorized developments in the New Territories. Such actions could generally be grouped as enforcement and prosecution actions. Enforcement Notices, Stop Notices or Reinstatement Notices could be issued to landowners, occupiers and persons responsible for an alleged unauthorized development, as appropriate. Persons who fail to comply with the Enforcement Notices or Stop Notices are then liable
4762 HONG KONG LEGISLATIVE COUNCIL — 28 June 1995
to prosecution. Alternatively, any person responsible for an unauthorized development could be prosecuted directly under the Ordinance.
As at March 1995, the Planning Department was handling about 640 cases of suspected unauthorized developments covering about 260 hectares of land. The majority of the unauthorized developments were located in the north- western and the north-eastern New Territories. The most common types of unauthorized developments are open storages, vehicle repairing yards and land filling/site formation works. Open storages alone accounts for about 150 hectares of the unauthorized developments.
So far, a total of 1081 warning letters, 806 Enforcement Notices, 22 Stop Notices and 13 Reinstatement Notices have been issued. A total of 192 persons responsible for unauthorized developments in respect of 75 cases have been or are being prosecuted. And 105 defendants involved in 67 cases have been convicted.
As a result of enforcement and prosecution actions, unauthorized developments covering a total of 58 hectares of land and involving 138 cases, have been discontinued. In addition, unauthorized developments covering 41 hectares of land and involving a total of 63 cases, have been regularized by the Town Planning Board through granting of planning permission with planning conditions imposed in order to minimize their adverse effects on the local environment. Up to now, about 0.7 hectares of land had been reinstated.
Experience, however, has shown that the present level of fines under the Ordinance is too low to serve as a sufficient deterrent against unauthorized development. Only about 38% of the convicted unauthorized development cases have been discontinued. Even among the discontinued unauthorized developments, some of them have revived a few months later. For those unauthorized developments which have not ceased operation, many of the occupiers have removed their signboards on site so that further enforcement action and prosecution actions against them have become more difficult and time-consuming. This is not altogether surprising as the profits generated from unauthorized developments can be very substantial, as compared with the rather low fines on the convicted persons responsible for the unauthorized developments. For a typical 10000 sq m container yard in the New Territories, montly profit can be in the region of $90,000. This level of profit can be maintained for periods up to two years after enforcement action has commenced and before the person responsible is convicted.
As a result, the effectiveness of the Administrations' enforcement actions have been considerably affected. This could also render the vast amount of resources devoted to tackling the problem nugatory. The Administration is determined to contain unauthorized developments in the New Territories and thus considers it necessary to seek to provide as quickly as possible a more effective deterrent by raising substantially the penalties for convicted offenders.
HONG KONG LEGISLATIVE COUNCIL — 28 June 1995 4763
This resolution provides for the increase in the maximum fine for which convicted persons will be liable under the Town Planning Ordinance. Specifically, we propose that the penalty under sections 20(8), 21(2) and 23(6) of the Ordinance be increased to a fine of $500,000 on first conviction, and to $1,000,000 on each of second and subsequent convictions, whilst the daily fine under section 23(6) for a continuing offence be increased to $50,000 for first conviction, and $100,000 for each of second and subsequent convictions. These proposed levels of fines are the maximum the court can impose on unauthorized developments. They also take into account the montly turnover and profit margin of a typical container yard in the New Territories.
While taking enforcement action against unauthorized open storage of containers, the Administration is aware of the need to make available sufficient sites for open storage in the territory. In this connection, a total of about 333 hectares of land have been zoned open storage and other specified uses open storage on Rural Outline Zoning Plans to provide a planning framework for such uses. Apart from being able to accommodate the 150 hectares of unauthorized open storage uses, these sites could also help absorb a large part of the 360 hectares open storage uses which were identified to have existed before the amendment to the Ordinance in 1991 for which enforcement action is not taken under the Ordinance.
Mr President, I beg to move.
Question on the motion proposed, put and agreed to.
BILLS
First Reading of Bill
INTERPRETATION AND GENERAL CLAUSES (AMENDMENT) BILL 1995
Bill read the First time and ordered to be set down for Second Reading pursuant to Standing Order 41(3).
Second Reading of Bills
INTERPRETATION AND GENERAL CLAUSES (AMENDMENT) BILL 1995
THE SECRETARY FOR SECURITY moved the Second Reading of: "A Bill to amend the Interpretation and General Clauses Ordinance."
4764 HONG KONG LEGISLATIVE COUNCIL — 28 June 1995
He said: Mr President, I move the Second Reading of the Interpretation and General Clauses (Amendment) Bill 1995.
The purpose of the Bill is to tighten existing legislative provisions which provide for powers of entry and search or seizure to more fully protect journalistic material.
We are aware of the community concerns, particularly those expressed by Members of this Council and members of the media, that the powers of search and seizure of the police are too wide, and that such powers, if abused in relation to journalistic material, may threaten press freedom. Although we were asked only to amend the Police Force Ordinance, we discovered that similar provisions are contained in a number of other Ordinances. Therefore, we propose to deal with them all, by amending the Interpretation and General Clauses Ordinance.
The amendments contained in the Bill now before this Council addresses the concerns about the search for, and seizure of, journalistic material.
We propose to restrict the statutory powers to enter premises for the purpose of searching for, or seizing, journalistic material. This general restriction applies not only to the police, but also to all other law enforcement agencies and government departments.
To ensure that the grounds for entry and search for journalistic material are thoroughly considered and fully justified, the Bill specifies that an officer must apply for a warrant before he can be authorized to exercise such powers. The application has to be approved by a directorate officer before it can be made to a judge of the District Court or the High Court. This ensures that such applications are made and determined at a high level.
The Bill also requires a judge to be satisfied that a number of conditions are met before the warrant can be issued. These conditions are:
- that an arrestable offence has been committed;
- that the journalistic material to be searched for is likely to be of substantial value to the investigation or relevant to the proceedings for the arrestable offence;
- that other method of obtaining the material may compromise the investigation; and
- that it is in the public interest that a search warrant should be granted.
HONG KONG LEGISLATIVE COUNCIL — 28 June 1995 4765
The threshold, or burden of proof, required in the proposed warrant application procedure is substantially higher than in similar provisions in many other Ordinances. However, Members should rest assured that the ability of our law enforcement agencies to conduct criminal investigations will not be impaired. The proposals in the Bill also have the support of our law enforcement agencies.
The Bill demonstrates the Government's strong commitment to encourage a free and vigorous press, which is one of the most important aspects of our way of life that makes Hong Kong so successful. It seeks to achieve a balance between the protection of press freedom and the need to maintain law and order. It also meets the Governor's undertaking, given in his 1994 policy address, to take action on provisions which impose legal restrictions on press freedom.
Mr President, I beg to move.
Bill referred to the House Committee pursuant to Standing Order 42(3A).
INLAND REVENUE (AMENDMENT) (NO.2) BILL 1995
Resumption of debate on Second Reading which was moved on 3 May 1995 Question on Second Reading proposed.
DR LEONG CHE-HUNG: Mr President, in the Budget speech of the Honourable Financial Secretary, he has intimated that clear guidelines will be given to specify the minimum records which a business must keep for tax purpose. This was met with jubilation by my constituents in that they will now be able to produce record to satisfy the unsatiable appetite of the Inland Revenue Department and hopefully avoid the "next to harassment" attitude of their investigating officers.
It therefore came as a dismay that whilst the current section 51C of the Inland Revenue Ordinance requires "sufficient records" to be kept to enable the assessable profits of the trades, professions or businesses concerned to be readily ascertained, the amendment to this section however merely specifies the type of records that will be regarded as "records" for the purpose of the section. However, which and how much of these now specified type of records are required to be kept will, it would appear, continue to depend on what records would be regarded as "sufficient" by the Inland Revenue assessors.
4766 HONG KONG LEGISLATIVE COUNCIL — 28 June 1995
There is thus not only a lack of any expressed guidance in the legislation and the problem is actually left unaddressed, but it may also accentuate by the said amendment in that in future the records actually kept may be regarded as "insufficient" unless they include all the applicable types of records.
Mr President, whilst the Honourable Financial Secretary in his Budget speech stressed on the importance of receipts, yet the new provision makes no necessity of such. On the other hand, the Secretary for the Treasury in reply to my query on the need of receipts has this to say: "but sound business practice dictates that receipts should be issued, and that missing receipts should be accounted for. It is therefore desirable, for both accounting and control reasons, that receipts be serial numbered".
Mr President, the medical and dental professions are day in and day out involved in the honourable duty of keeping people healthy, sometimes even to maintain life. The least they like to do is to make a second guess of double talks.
In supporting this Bill, Mr President, we therefore look forward to the Administration coming up with clear guidelines in the explanatory pamphlets so that we can live happily ever after away from the shadow cast by the Inland Revenue Department.
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).
SEX DISCRIMINATION BILL
Resumption of debate on Second Reading which was moved on 26 October 1994 Question on Second Reading proposed.
DR LEONG CHE-HUNG: Mr President, I rise to speak on behalf of the Bills Committee which was entrusted to study three bills — this Sex Discrimination Bill(SDB), the Equal Opportunities Bill (EOB) and the Disability Discrimination Bill (DDB). Today I will be speaking on our deliberation on the SDB and shall be speaking on the other two Bills in later sessions when they are ready for resumption of Second Reading debate.
The course of study of these three Bills is unprecedented. The Bills Committee commenced study of the EOB, a Private Member's Bill introduced by the Honourable Ms Anna WU, in July 1994. This EOB covers nine different
HONG KONG LEGISLATIVE COUNCIL — 28 June 1995 4767
grounds of discrimination including, inter alia, sex and disability. In October 1994, the Government introduced the SDB and the Bills Committee was reconstructed to study this Bill as well. In the same way, the Bills Committee was again reconstructed in July 1995 to study the DDB also introduced by the Administration.
It would have been most difficult to study the three Bills, let alone voting on the different parts, if not for the kind indulgence of the Honourable Ms Anna WU who proposed and initiated the dropping of the portions on sex discrimination and disability discrimination from her EOB to facilitate Members of this Council in considering their preference when voting. To this we are most grateful and I would like to put it on record the thanks this Committee owes her for this pragmatic gesture. Similarly, she has reorganized the remaining different grounds of discrimination into three separate Bills. I understand that approval have been given for these three Bills to be gazetted and we look forward to their resumption of Second Reading debate at a later date.
Mr President, in presenting this SDB to Members, I would like to address three areas:
(a) the work of the Bills Committee;
(b) the mood of anti-discrimination; and
(c) my own views on the Bill.
The work of the Bills Committee
Let me first turn to the work of the Bills Committee. It has held a total of 34 meetings to study the EOB and SDB, including 16 with the Administration and two rounds of meetings with 34 deputations. Views from 10 written submissions have also been considered.
Mr President, whilst Members of the Bills Committee, the Administration and the deputations all support, in principle, the spirit of anti-discrimination legislation, there are diversified views on the approach and timetable for introducing and implementing a total anti-discrimination legislation. The Administration prefers a step-by-step approach by introducing the SDB first, followed by the DDB only; so that the social, economic and legal implications of adopting the legislative approach can be closely examined after the enactment of these two Bills. Although some Members agree to this approach or rather this progressive approach, yet they urge the Administration to set out a concrete timetable for legislation on other aspects of discrimination. Others, of course, consider that the EOB is a more comprehensive package of anti-discrimination legislation and should be enacted early. The Government remains disappointedly undeterred.
4768 HONG KONG LEGISLATIVE COUNCIL — 28 June 1995
It was until some other Members indicate support for the EOB, but not the SDB unless the Administration puts forward legislation against age discrimination in this Legislative Session that the Administration indicated that it also planned to conduct a study on the need for action to tackle discrimination relating to age, family status and sexuality no later than the end of 1995. This study was anticipated to be completed in 12 months.
The Bills Committee note that the subject matter of the SDB overlaps, in substance, Part II of the EOB. They both cover similar scope of grounds of discrimination, namely sex, martial status and pregnancy. However, the application of the scope of grounds of discrimination between the two Bills is different. Under the SDB, sex discrimination is relevant for the purposes of any provisions of the Bill; while discrimination on the ground of marital status or pregnancy is only relevant for the purposes of any provisions of Part III (discrimination and sexual harassment in employment field). Under the EOB, the scope of ground of discrimination, namely sex, marital status and pregnancy, is applicable to a wider range of discriminating activities.
To oversee the implementation of the sex discrimination legislation, the SDB provides for the establishment of a statutory body, the Equal Opportunities Commission (EOC). This Commission is empowered to issue codes of practice, and investigate complaints filed by the public and required parties concerned to attend conferences to resolve the matter by conciliation. Public reports would be issued for any formal investigations. The Commission is further empowered to issue enforcement notices, which are not legally binding, against anyone deemed to have committed discriminatory acts of sexual harassment. When a person has persistently committed such acts, the Commission could apply to the District Court for an injunction. When conciliation fails, it may provide assistance in respect of proceedings before the District Court. The EOB does not make provision for the establishment of any similar body (principally because of the difficulties faced by a Private Member under Standing Order 23).
The SDB proposes the setting up of a special court at the District Court level to hear all sex discrimination and sex harassment cases under the Bill. The public can put cases directly to the court in the form of civil litigation to seek equal compensation. However, it is to be noted that proceedings under the SDB in respect of "discriminatory practices" under clause 35 may only be brought by the Commission in accordance with clauses 69 to 71 (issue of enforcement notices by the Commission). The SDB further proposes to relax the requirements relating to legal representation and costs. The EOB proposes to make discriminatory acts or practices, in general, civil wrongs, triable in the District Court. The EOB proposes that the court may disregard the ordinary rules of evidence to inform itself on any matter as it sees fit. The Equal Opportunity Bill also proposes that each party to litigation will ordinarily bear that party's own costs. The court may, however, award costs as it thinks fit in exceptional circumstances.
HONG KONG LEGISLATIVE COUNCIL — 28 June 1995 4769
Having thoroughly studied the provisions of the SDB and Part II of the EOB, and taking into account views expressed by deputations and written submissions, the majority of Members of the Bills Committee accept the wider scope of Part II of the EOB. On this basis, the Bills Committee proposes to amend the SDB of the Government to bring in some provisions along the lines of Part II of the EOB.
After extensive discussion, the Administration agreed to some of the proposed amendments to be moved during the Committee stage. I am sure the Secretary for Home Affairs will elaborate on these amendments which she will move in her speech.
Three sets of amendments
There will thus, Mr President, be three sets of amendments:
(1) Amendments which have been agreed between the Administration and the Bills Committee. These will be moved by the Secretary for Home Affairs.
(2) Amendments which are supported by the Bills Committee but repealed by the Administration. Mr President, I, as Chairman of the Bills Committee, will be moving these on behalf of the Bills Committee. I would like to stress here that these amendments were agreed by the majority of the Bills Committee Members present at the Bills Committee sessions.
(3) I understand that the Honourable Mrs Peggy LAM has also indicated her intention to move some amendments. I will leave it to her to explain the rationale in the course of time.
Mr President, whilst I will assure Members that I will explain to them the reasons behind each amendment, but with your permission, I would like to take this opportunity to highlight a few points.
Date of commencement
The Bill, Mr President, before us in its original form gives no specific date for commencement of legislation. An EOC must first be set up, then approves a code of practice for employment, and only when such operational set-ups are in place will the Secretary for Home Affairs appoint a date for the legislation to come into operation. The Bills Committee is concerned that this will amount to delaying tactics and thus seeks to amend the Bill by bringing provisions of the ordinance into operation on 1 January 1996 or any earlier date to be appointed by the Secretary for Home Affairs.
4770 HONG KONG LEGISLATIVE COUNCIL — 28 June 1995 Grace period for small business establishment
Mr President, the current Bill allows small business establishment a grace period of five years to come in line with the Ordinance. This was considered by the Bills Committee to be too long and in support of objections from most of the deputations, the Bills Committee will seek to amend it to one year, subject to an extension of another year by resolution of the Legislative Council.
'Small House Policy' exemption
The current Bill before us provides exemption for the small house policy. The Bills Committee is of the view that the small house policy is entirely against the spirit of the SDB. Moreover, this policy may already be unlawful under the Bill of Rights and its legality should not be revived by the SDB. The Administration responded by stating that a review of the policy is on the way although it cannot provide a concrete timetable. Members of the Bills Committee feel that all in all this is a delaying tactic and as the policy is outright sex discriminating, no exception should be given to it in the Bill.
Discrimination relating to marital status
Mr President, the Administration has brought up the worry that the marital status amendment may lead to double benefits for married couples if both of them work in the Civil Service. This is not the case, and has been well discussed in great length at the Bills Committee with the Administration. I am sure my honourable colleague, Ms Anna WU, will have more to say in this area, suffice it to say that there appear to be a lack of co ordination and communication between the different government departments.
Mr President, I now like to turn to say a few words of what I call the "mood of anti discrimination" which I have observed during the 12 months as Chairman of the Bills Committee to study the EOB.
Lukewarm response of legislators
Whist it is in the lips of all to push for anti-discrimination, the commitment in the deliberation of the Bills Committee amongst the Members and the Administration leave a lot of question marks! Mr President, some 23 Honourable Members joined this Bills Committee, but in most meetings, there were hardly enough attendees to form a quorum. In fact in a few sessions where decisions were not deemed forthcoming, such as receiving deputations, the meeting went ahead with no official quorum. Regrettably, Honourable Members will have to cast their votes today on the Bill and the amendments without being properly armed with the complete understanding of the very complicated issue of this substantive Bill.
HONG KONG LEGISLATIVE COUNCIL — 28 June 1995 4771 Anti-discrimination discussion becomes employer-employee debating table
Mr President, through most parts of the Bills Committee, the deliberation on equity of the sexes was concentrated on employment. The meetings became the debating table between employers and employees. The discussion therefore in equality of the sexes became lopsided, leaving a lot to be desired.
Government's lip service and delaying tactic
Mr President, regrettably, and with due respect, the commitment of the Administration to equal opportunities gives an impression that it is very much of a lip service. Yes, the Administration has come up with the SDB and the DDB, but on other aspects we are facing a stone wall. Embarrassingly, the Administration even fails to send representatives to attend the Bills Committee meetings when other issue than sex discrimination was being discussed. On the odd occasion when they were there, no intelligent answers could be extracted from them anyway.
Hypocritical tactic of the Administration
Mr President, the pinnacle of hypocrisy condescended at the eleventh hour when the Administration, having fully understood the policy and the deliberation behind the Committee stage amendments to be moved by the Bills Committee which the Administration could not approve, turned round to scuttle some of the amendments by claiming that they have a charging effect for purpose of Royal Instructions XXIV(2). I am not here, Mr President, to debate the merit of the allegations, but such last-minute sabotage leaves no time for the Bills Committee to arrange further deliberations or to amend them further. It is also extremely unfair for you, Mr President, to have to make a difficult ruling without sufficient time. The end result is that in spite of your generosity, a few amendments from the Bills Committee could not, with pity, go forward.
Having said all that, the Bills Committee is most grateful to Ms Susie HO from the Home Affairs Branch who has spent a lot of time deliberating with us. This she did with poise, patience and understanding. We also owe our sincere thanks to the industrious staff members of the Legislative Council Secretariat.
Effects of the full set of amendments
Finally, Mr President, I would like to take this opportunity to say something on this Bill before us today. This Bill, the first of its kind, will turn a new page in Hong Kong history. Its impact on society will be tremendous but Will no doubt be the right step for equal opportunities. Should the Bill be passed, with any luck, with the full set of amendments, it will have the following effects:
(1) the small house policy will not be discriminatory to the indigenous female;
4772 HONG KONG LEGISLATIVE COUNCIL — 28 June 1995 (2) a law on anti-discrimination on sex will take effect as on 1 January 1996;
(3) the court will have the right to issue an order for reinstatement for loss of employment due to sex discrimination; and
(4) all business establishments will have to provide equal opportunities for employment after one year of this law's enactment extendable for another year.
PRESIDENT: Dr LEONG, you have overrun the time under Standing Orders.
DR LEONG CHE-HUNG: Oh, do I? I thought I do not have a time limit. Mr President, I will finish in about two seconds if you may allow me.
PRESIDENT: Under exceptional circumstances, I can allow more time. If you are going to take two seconds, that is alright. (Laughter)
DR LEONG CHE-HUNG: Thank you for your indulgence, Mr President.
DR LEONG CHE-HUNG: Yet, Mr President, this Bill alone, incomplete for providing equal opportunities for the sexes and yet not taking into consideration discrimination of age, sexuality and family status, does not bring us too far. I urge the Government to quickly look at these areas and I look forward for the other equal opportunities bills that my honourable colleague, Ms Anna WU, will be introducing to this Council soon.
With these remarks, Mr President, thank you for your indulgence, I recommend Members to support this Bill with the full set of amendments.
MISS CHRISTINE LOH: Mr President, as Vice-Chairman of the Bills Committee on the Equal Opportunities Bill which was also asked to look at the Sex Discrimination Bill before us today, I would like to support what the Chairman of the Bills Committee, Dr LEONG Che-hung, has just said. I do feel this is a historic moment for this Council. First of all, I believe this is the first time a Private Member has proposed a full area of policy for the Government to adopt, and also a full area of law. This is no small feat. We know what time and effort has to go into sex discrimination for Hong Kong. Of course, Ms WU has gone further by coming up with the Equal Opportunities Bill, which I hope in July we will be able to debate. But for the moment, on the Sex Discrimination Bill.
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Mr President, you will remember that only about two years ago the Government was quite adamant that Hong Kong does not need a law for sex discrimination. The Government was adamant that we had no problems with "equal work, equal pay". So the Government has moved quickly in the right direction, but how has this been achieved? Basically because of the commitment of this Council and small groups of community people who have pushed very hard continuously. In a way the Government has had to eat their words, but I think today we would not have this Bill on the table if it was not for Ms WU's effort in putting forward to us the Equal Opportunities Bill. It does show up the weakness of the Government, for a Private Member with a few very committed supporters, to be able to put together a whole area of policy and law.
There are many occasions, as Dr LEONG Che-hung said earlier, that the Government were simply unable to come up with any answers. But it also occurred to me that the Government had done as much research as it should have. During the debate of the Bill, the Government has said to us as a committee and also privately to us, that they do not like Private Member's Bills. Well, I am not surprised, because although somewhat blunted, it is proving to be a powerful instrument. It can be effective as we can see today with the efforts of Ms WU and others.
For myself there is also the Access to Information Bill, of course, which at least it was only to push the Government to come up with a code earlier rather than later. So, of course, the Government finds Private Member's Bills annoying. Right now we have to pass the hurdles of having no financial charge, Mr President, before you will allow it to be tabled into this Council. I would like to remind Members that after 1997 it will be virtually impossible to push forward Private Member's Bills. But look what it can do. It can push the Government forward quickly and in the right direction. Well, of course, civil servants are going to bleat about it. They seem to have two reasons for being very upset. One is that they say, well, if you do not give us enough time, Private Members, despite all their efforts, you may not be able to envisage all the various consequences. Well, that is utter nonsense because in the Mandatory Provident Fund Bill, well, what about that? Has the Government thought through that very well before they presented the Bill? During the Bills Committee on the Provident Fund Schemes Bill a number of Members asked a whole series of questions which the Administration could not answer. So the Administration selectively applies this criteria.
Secondly, the Government says it upsets the executive agenda. Well, that is the whole point about representative government. The executive is unelected and will remain unelected in future. Yes, they will have their timetable. So how will the representatives of the people of Hong Kong be able to push anything through if we did not have any ability at all to push through Private Member's Bills, and I see this as a grave, grave problem of the Basic Law, which basically takes this very limited right away. Perhaps we might see a challenge from the Government after the September election. Maybe they will even propose to this Council that we should stop pushing forward Private
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Member's Bills that they cannot accept because it upsets the agenda. I hope Members, those of us who might return to this Council, will remember that we should not bargain with the devil. This is a very, very useful tool, that we still have. What we should be pushing for in future is to amend the Basic Law to at least not chop down this little right that we have because, Mr President, I see that in future as this Council becomes more representative, that it has more and more directly-elected Members that we would, of course, end up having to challenge the legitimacy of the executive.
I hope the executive will learn to power share with us, and will willingly allow this Council to participate at the early stage of policy-making by power sharing, by consultation, not by chopping down the rights that we have today. So I hope, Mr President, that this Bill has taught us a tremendous lesson. If anyone is in doubt about the usefulness of Private Member's Bill, I think today is a good example that we need it and we want it.
MRS PEGGY LAM (in Cantonese): Mr President, on 8 December 1993, I moved a motion in this Council urging the Government to make an effort to promote equality between the sexes in Hong Kong. It should include the establishment of a Women's Commission to monitor the enactment and enforcement of law against sex discrimination and the introduction of the United Nation's Convention on the Elimination of All Forms of Discrimination Against Women as soon as possible.
Today, I am very glad to see that the Government has finally worked out a Bill based on my motion and presented it to the Legislative Council. Although it has been delayed for 18 months, and while it is the Equal Opportunities Commission (EOC) instead of the Women's Commission that is going to be established, the scope of equal opportunities is obviously wide enough to include the problems of women for sure. Therefore, it is still acceptable to me. In regard to the United Nation's Convention on the Elimination of All Forms of Discrimination Against Women, I express my regret over the Government's tardiness in introducing it to the territory. Nevertheless, the United Nations has reminded the signatories that when carrying out legal reforms, they have to take note of, first of all, where the flaws of the system are, whether the reforms will cause any impact, whether the reforms are acceptable to society and whether they can be sustained. All these are very pragmatic suggestions. If it is based on this reason that the Government is not introducing the Convention into Hong Kong for the moment, I can certainly understand. We are not seeking to reach the sky in a single step, nor are we seeking to change everything instantly. But we must have a right goal and we have to consider the acceptability of the community and the continuity of the reforms, so that we can progress steadily. I therefore hope that the Government can work out a timetable in order that all those issues which cannot be incorporated into the Sex Discrimination Bill may be included phase by phase into the scope of the Bill for the deliberation of this Council at a later stage.
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Sex discrimination has developed by the interaction of traditional culture and social factors over thousands of years. These traditional ideas cannot be changed overnight. This new Bill in front of us is to classify sex discrimination and sexual harassment as unlawful acts, for the purpose of attaining equality between the sexes. This will thus give rise to new grounds for legal proceedings.
However, the Bill is rather vague in regard to the aspect of compensation. It merely states that compensation will be sought in tort but does not spell out the method of computation. According to the laws of the United Kingdom and Hong Kong, when a new ground for legal proceedings is set up, it will usually be followed by an upper limit written into the law. This can serve as a guidance for compensation and through which the public will be aware of the consequence of breaking the law. If there is no upper limit as a guidance, the judgement in regard to the amount of compensation awarded may deviate so greatly in different cases that there is bound to be a lot of appeal cases. It is because different kinds of torts will have different methods of calculating compensation. For example, for cases like casualties due to negligence, libel, illegal occupation of land, causing personal injuries and so on, they have their respective methods of calculating the compensation. These cases have a lot of precedents for reference. Since legislation on sex discrimination and sexual harassment is newly introduced in Hong Kong, we therefore have no precedents for reference.
Recently a famous law firm in the United States, convicted of sexual harassment, was sentenced by the court to pay a compensation of US $7.1 million. Although the amount of compensation was reduced after an appeal, the firm still had to pay over US $3 million. Recently, there was also a case of sexual harassment in the United States pertaining to a Hong Kong businessman. The plaintiff claimed nearly US $4 million as compensation. Some people think that these astronomical figures could only occur in the United States because the amount of compensation is decided by the jury. However, if we do not have any yardstick or precedents to follow in Hong Kong, it will be difficult to predict the result of adjudication.
In 1975, when the United Kingdom passed the Sex Discrimination Act, it was also stipulated that the amount of compensation should not exceed £5,200. In 1989, the upper limit was increased to £8,925 and later further increased to £11,000. In 1993, the average monthly salary of manufacturing workers in the United Kingdom was US $1,615. The highest level of compensation was thus about 11 times the average monthly salary. After 20 years of application, this upper limit was only abolished recently by the United Kingdom in compliance with the decision of the European Common Market.
The enactment of this new legislation in Hong Kong is not to create new economic interests so as to benefit certain people, but to transform social habits. It is because when the defendants are condemned by the court for committing sexual harassment or acts of sex discrimination, the victims should have the
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greatest satisfaction. Compensation in money terms should come second. I therefore suggest that at the early stage when the Bill is passed, we should set an upper limit. In 1994, the median monthly income of the workers in Hong Kong was around $8,000. I therefore suggest that the maximum compensation should be set at $150,000, which is approximately 18.75 times the median monthly income of the local workers last year. After a certain period of time, when the operation becomes stable while the court has accumulated a certain number of precedents, we can then reconsider whether to legislate to remove the upper limit. Of course, we do not want to follow the example of the United Kingdom in abolishing the upper limit only after nearly 20 years. Mr President, when we come to the Committee stage later on, I will move an amendment to the Bill which I hope will have the support of Members.
There are many ways to eliminate sex discrimination. A change in people's mentality depends on education, which includes the influence of schools, society and the mass media. The opening of opportunities depends on sufficient support services, formal and informal training as well as women's improvement of their own quality. Legislation is a form of full recognition of women's status, condemnation towards discriminatory acts and regulation on public behaviours.
Another function of legislation is to educate the public and to lay down the rules and regulations on their behaviours. Therefore, the investigation, consultation, mediation and education functions of the EOC are all very important. According to the experience in Australia, among the more than 10000 cases, only half of them fall within the jurisdiction of the EOC, and only about 10% of the cases have to be decided in the courts. Therefore, this EOC has to educate the public, and assist the public in understanding what are sex discrimination and sexual harassment so that we will not make the same mistakes as Australia. I hope that the EOC can take a more active work attitude to assist in formulating the code of practice, in mediating labour relations, in improving the work environment and the like so as to prevent sex discrimination and sexual harassment and thus to eliminate sex discrimination in a positive way.
Apart from the above, members of the public and I are very much concerned about the question of age discrimination. It is to my deepest regret that this issue has not been touched upon in this Bill. In Hong Kong, this situation indeed exists and is actually getting worse and worse. A lot of middle- aged women are unable to find jobs due to their age. I mentioned this during the previous motion debate concerning women's employment and I shall not repeat it here. I just want to call upon the Government to implement positive measures as soon as possible to solve this problem.
Finally, I hope that in the near future, sex discrimination and sexual harassment will cease to exist. As a matter of fact, the elimination of sex discrimination depends not only on legislation but also on our constant supervision, constant improvement of legislation and law enforcement. All these will require the joint efforts of women. However, legislation serves to
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demonstrate the determination of this society in eliminating sex discrimination, and is only the very first step taken on an extremely long road.
MR JIMMY McGREGOR: I rise to speak briefly on the subject because I was one of the Members of Dr LEONG's Committee which sat for the past year or more in many, many sessions. During all of that time, I tried very hard to indicate my opposition to some of the clauses which were being examined and some of the amendments which were being suggested which would, in my view, take these matters forward at too great a speed. And I refer specifically to the problem facing tens of thousands of small companies which may face a problem in regard to the application of the law to present practices, by which I mean small companies which are very often simply three- or four-member companies. I am worried that some of the clauses of this Bill and the application of these clauses through the courts, providing an opportunity to complainants to take small businesses through the courts for these reasons, would in fact disrupt very seriously the capability of small businesses to employ.
I feel I have made these views clear repeatedly throughout the last year. I want to say again and ask those Members who are businessmen and who understand business well, that is, most of the people in this Council, to be very wary and to look very carefully at some of the amendments we are now going to examine in order to ensure that, in their own hearts, in their own minds and with their own knowledge of business, that they well understand the effect that these amendments may provide for small businesses.
Mr President, I ask that the amendments be looked at very carefully also by the Government, and that the government representative, where he or she disagrees with the amendment proposed, that the reason should be given very clearly because I think these reasons will parallel very largely the feelings of many Members of this Council in terms of the operation of business in Hong Kong.
Mr President, I do not want to say any more than that. I am not opposed by any means to the principle. I think business generally agrees with the principle of no discrimination on sex basis. I think, if I may say so, the long track record of business in Hong Kong has shown a consistent improvement. I realize that women's organisations, some of them present here today, may not agree with me about the speed of development, but in fact taken in regard to most other countries in Asia and many other countries around the world, I think that the track record of Hong Kong business in terms of sex discrimination is relatively good, and that the relationship between employers and employees, therefore, is also good in terms of examination against most other countries in Asia.
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On that basis, I do not think that we should trammel the operation of business in Hong Kong by introducing legislation and by introducing legislative restrictions and bars which will bring employers into court on sometimes very frivolous charges. At the same time, business has got to understand — and I am sure they support the concept that we are facing today — what it is exactly that they are required to do. There are some very woolly notions in my view that have been discussed throughout the last year about the problems in the street that may face the businessman if these legislative proposals are put into effect today. So, I ask the business Members of this Council to look very carefully at the amendments proposed to see whether they can accept them.
Thank you, Mr President.
DR YEUNG SUM (in Cantonese): Mr President, after a year's deliberation, this Bill on equal opportunities is formally tabled before Members today. I urge Members to support the amendments to be proposed later by the Chairman of the Bills Committee, Dr the Honourable LEONG Che-hung, on behalf of the Bills Committee.
This Bill symbolized one small step taken by the community of Hong Kong towards equal opportunities. Why is it just one small step? This is because many laws pertaining to equal opportunities have yet to be formulated and I think we still have to work in concert in the future.
I call for the early establishment of the Equal Opportunities Commission and the early implementation of this piece of legislation, particularly with regard to the part concerning employment. This is because employment constitutes a major part of the lives of the people of Hong Kong. If their employment is not safeguarded, the protection in respect of equal opportunities will be greatly undermined. Now, I would like to criticize the attitude of the Government on two points.
First, all along, the Government has been hesitant about equal opportunities. It was always been reluctant to eliminate sex discrimination and safeguard equality between men and women by legislative means. It was not until the Honourable Ms Anna WU had set her mind to dedicate a considerable amount of time, manpower and other resources and prepared a private member's bill that the Government hastily submitted this Sex Discrimination Bill and another bill, namely the Disability Discrimination Bill, to the Legislative Council. In this connection, I think the Government is not expressly determined to make its way for Hong Kong to go for equal opportunities.
Besides, I feel rather aggrieved at the stalling tactics that the Government used to deal with the amendments proposed by Ms Anna WU. It was only shortly before the tabling of this Bill for the deliberation of this Council that the Government indicated that some of the amendments carried a charging effect. However, Ms WU had in fact presented the amendments concerned to the
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Government long time ago. It is my hope that these two points will be put on record in order to state my views in clear terms and that is, the Government is not handling this matter in a manner that is open and above-board.
I also hope that this piece of legislation, like the Bill of Rights Ordinance, can provide for the waiving of the income requirements by the Legal Aid Department for those who have been subjected to sex discrimination. If such exemption is not granted, some of those who have been discriminated against because of their sex will be unable to do themselves justice through a court of law for they will be unable to lodge an appeal because of financial constraints. I very much hope that the Government can handle this matter seriously and see whether changes can be made in respect of the legal aid service so that persons who have been discriminated against because of their sex will not be denied a fair treatment because of financial reasons.
Let me stress again that since the Government has undertaken to conduct a study on age discrimination, I hope that the Government will cease such a procrastination approach as saying after a round of study that there is no age discrimination in Hong Kong and so it is not going to legislate. I hope that the Government will handle the problem of age discrimination seriously. From our observations of various aspects, age discrimination in Hong Kong is in fact rather obvious and serious.
Finally, it is my hope that the Government will direct more efforts to education in areas such as sex discrimination, equal opportunities, protection for the disabled and so on as we still have to work hard to make improvements in these areas. On behalf of the Democratic Party, I would like to pay tribute to Ms WU because with her endeavours, a piece of legislation which can safeguard women's rights and equality between men and women will become part of the laws of Hong Kong and will enable the Hong Kong society to become more open, equitable and civilized.
MR FREDERICK FUNG (in Cantonese): Mr President, in a prosperous and advanced society, it is duty-bound for the Government to ensure that human rights are properly protected and that everyone enjoys equal opportunities to develop one's aptitude and realize one's potential. It is clear that the enactment of laws is one of the ideal and essential means to uphold the principle of equality. The Government of Hong Kong introduced into this Council the Sex Discrimination Bill on 14 October last year, in the hope that, through legislative means, discrimination between the two sexes can be eliminated and the two sexes would neither be unfairly treated nor be discriminated against in the areas of employment, education, accommodation and in the provision of goods, services and facilities and so on, so that everyone in the society enjoys the right of being respected. The legislative initiatives of the Government are welcomed by the public but some of the clauses in the Bill proposed by the Government are plagued with deficiencies if it were to fully protect Hong Kong women from
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discrimination. To perfect the Bill, these clauses would have to be either amended or deleted.
In the first place, the government-proposed Bill does not specify a commencement date for the Bill. I am concerned that if the Bill will only come into operation after the establishment of the Equal Opportunities Commission (EOC) and the issue of guidelines by EOC, it will take a considerably long period and the commencement of the Bill will be indefinitely procrastinated. I hold that the Bill must specify a definite commencement date so as to avoid the indefinite stalling of the coming into operation of the Bill (clause 1 (2) refers.) I would regard the transition period of five years for small firms as provided for in the Bill as prolonged. Although the Secretary for Home Affairs will move an amendment to shorten the grace period to three years, the Bill in itself does not require the companies to undergo drastic changes, nor does it require the companies to institute specific arrangements or install specific facilities to cope with the enactment of the Bill. On the contrary, the Bill only requires the person-in-charge or the management of the company not to exercise discrimination against candidates and staff. In view of this, a grace period lasting three years is considered to be excessively long. I agree with the Bills Committee that the grace period should be shortened to one year (clauses 10(3), 10(6), 10(8) refer).
Apart from questioning the time lag between the enactment and the commencement of the Bill and the grace period provided for small firms, I find that, on the premise of upholding the principle of equity, some other clauses of the Bill also have to be amended or deleted. The most obvious case would be the small house policy. The upholding of human rights and the safeguarding of the principle of equality should be regarded as the two leading principles in a society. These two principles should override social customs and the policy pursued by the Government. When a society is continuously progressing, the Ordinances that have been implemented should also be appropriately and reasonably amended to tie in with the changes as time passes. Now in Hong Kong, the aspirations and the demand of the public are no longer confined to being satisfied in terms of basic livelihood, we also look for equal treatment and social respect. However, small house policy actually runs against the spirit of equality and violates the Bill of Rights (BOR) Ordinance. I hold that the Government should not put small house policy in the list of exceptions (item 2 to Schedule 4) on the ground that "the Government has not completed its review on small house policy" or that traditional virtues have to be upheld. By so doing, the Government is sweeping the long-drawn-out problem under the carpet. If the Government insists that small house policy should come under exceptions, that mirrors its lack of sincerity in enhancing sex equality. It is, to me, unacceptable. In addition, the provisions in respect of public appointments and elections could not offer adequate protection for the elections of Village Representatives and office-bearers of the Heung Yee Kuk. It is imperative that new clauses should be added to prohibit discrimination in respect of public elections and appointments (clauses 30 and 80(I) to be added refer).
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The Sex Discrimination Bill of course does not protect only women from discrimination, the protection is also extended to men. In view of this, it is necessary to amend or delete clauses governing the unreasonable and outdated discriminatory exemptions for women, in the particular areas of employment and the provision of services. In that way, some of the regulations would be applicable to both men and women and the two sexes can be assured that they will enjoy equal treatment. Therefore, the Government should give a deadline regarding the conduct of a review on the relevant clauses, so that amendments could then be suggested. The deadline may be set at one year after the commencement of the Bill as suggested by the Bills Committee (clause 11 (2)(g) and 49 and Schedule 2 refer).
Last but not least, there is room for improvement insofar as the functions and powers of the prospective EOC are concerned. Since the Government's present proposal does not provide for arrangement for the Sex Discrimination Bill to override other legislations, BOR is the best to play that role. If the existing legislations are, in any way, inconsistent with BOR, the court should declare the relevant legislations void or rule that amendments should be made to the relevant legislations. I believe that EOC should enjoy the right to invoke the BOR Ordinance and put the legality of discriminatory legislations in question.
As to the functions of EOC, I believe that EOC should be equipped with the power to bring proceedings in its own name against unlawful behaviour or cases under this Bill (new clause 68A refers). At the same time, since the cases involved in these proceedings thus brought are discriminatory in nature and the court may have no precedent cases of this nature to refer to, I therefore also agree that EOC should be empowered to intervene proceedings and to comment on the cases, thereby providing a reference point for the future. The court may judge the extent to which EOC may intervene (new clause 68B refers).
I hope that the Members and the government officials, under the principle that equal opportunities in the society should be safeguarded, can throw your heart into caring the plight and situation of those people who have been discriminated against, so that, through legislative means, all uncivilized and discriminatory acts in the society may be eliminated and appropriate assistance and remedy could be offered to those who are being discriminated.
With these remarks, I support all amendments to the Sex Discrimination Bill to be moved by the Bills Committee.
MRS SELINA CHOW (in Cantonese): Mr President, it is an ideal that human beings are born equal, but there are many factors in the real world that reduce this ideal into a somewhat amorphous concept. As some scientific literature suggests, women compare favourably with men in observation, while men excel in brain development and so in logical thinking than women. All these have resulted in the differences between the two sexes in so much as the physical differences between men and women.
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I quote these examples not for the purpose of proving that men are stronger than women or vice versa because down the ages, it has always been the case that men and women are different, having different weaknesses and different strong points. With the changes in terms of social environment and culture underway, the relationship between the two sexes also transforms. In a matriarchal society, women are superior to men; in some religious countries, it is upheld that women are only subordinate to men.
Undeniably, in Hong Kong, men take on a more significant role but individual women, albeit rare, have taken up weighty positions in our society. This phenomenon can be partly attributed to sex discrimination. That is why we do contemplate legislation to eradicate sex discrimination. To a limited degree, I agree with the Honourable Jimmy McGREGOR that we must be extremely prudent and cautious when assessing the impacts.
As a woman, I naturally would not be happy to see that women are being discriminated against. However, if we seek to rectify these misconceptions through legislative means alone, it may not be a thorough solution to the problem.
There are religious, cultural or unique social factors behind sex discrimination, and that relates to moral obligations. We should not tolerate the existence of sex discrimination, but moral issues should always be dealt with from the perspective of education in an attempt to change people's sense of value in essence. We should not expect that the problem can be eradicated merely through the enactment of law. The law is only a tool to help, but not a standard solution to a problem.
If we rely too much on fossilized words of law to contain problems relating to human nature, that may derive other problems or produce counter- effects. For example, we do not want to see that women suffer from sexual harassment or other forms of discrimination in the office but under some exceptional cases, over-sensitive responses may lead to deterioration of relationship among the colleagues, and mutual respect and accommodation between colleagues may suffer setbacks. A hypocritical net of relationship supported merely by legislation will not be lasting. Even the link between colleagues will be weakened while the working environment will not be harmonious. This is not alarmist talk because these phenomena have been gradually emerging in the United States and the working relationship between men and women can no longer be amicable. This is what Hong Kong should try its best to avoid.
Regarding the relationship between employees and employers, that problem also cannot be mitigated merely through legislation. It is necessary to combat discrimination but employers and employees should enjoy certain degree of freedom when recruiting staff or choosing jobs. I would like to reiterate that I support the enactment of the Sex Discrimination Bill; however, I want to warn that if the Government seeks to eradicate the problem in one go through the
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enactment of this legislation but not through the launching of civic education, the result would be that discrimination will only be removed on the surface but not in substance. In that case, the people would not be convinced at heart that this legislation should be respected and no substantial upgrading of moral standard would ever be observed. As a matter of fact, the social atmosphere is largely influenced by the attitude of the large organizations and bodies. As the biggest employer, the Government should take the lead and set an example for the other organizations by eradicating discrimination. This is the best way to prevent discrimination.
Mr President, I believe that we all remember too well the sex harassment incident that involved the Independent Commission Against Corruption. In fact, these incidents not only happen in government departments or public organizations, these are also frequent in the private sector. In the past, these events would end up in nothing because no one bothered to report the case. Although now that we have clear legislation to protect the victims and this is undeniably an improvement, we hope that the Government and the employers can assist and do justice to the victims when handling these cases.
Thank you, Mr President.
REV FUNG CHI-WOOD (in Cantonese): Mr President, the Sex Discrimination Bill was presented by the Government to this Council for deliberation last October. This piece of news should be welcomed by non-governmental organizations which have been constantly striving for equality between the sexes and for the protection of women's rights. However, when the Government proposed this Bill, the conservative position of the Government was long surpassed by social development and the public's expectation at the time. Consequently, the Government's lack of vision and determination to stamp out sex discrimination is laid bare in many aspects.
After some nine months' discussions, the Legislative Council Bills Committees on the Equal Opportunities Bill, Sex Discrimination Bill and Disability Discrimination Bill proposed a number of amendments to the Sex Discrimination Bill. Positive suggestions were made on provisions With regard to the interpretation of the amendments, the Interpretation and Exceptions of the Bill, the terms of reference of the Equal Opportunities Commission and so on. Yet, the Government's response to these suggestions has been very disappointing. While the Government has made certain amendments to the Bill, it remains apathetic towards the appeals from the public and those from members of the Bills Committees over many important issues. This shows that the Government on the one hand claims that sex discrimination legislation will be formulated to meet the requirements of the United Nations' Convention on the Elimination of All Forms of Discrimination against Women, but on the other hand opens up every opportunity for sex discrimination to continue to occur.
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In fact, the Sex Discrimination Bill is found wanting in many aspects and concern is particularly warranted in three of these aspects.
Firstly, the Government has refused to adopt standards set out in international conventions in respect of sex discrimination but has just rigidly extended to the territory the provisions of the United Kingdom's Sex Discrimination Act. This shows that the Government lacks the foresight to improve the sex discrimination legislation in Hong Kong by adopting international standards.
Secondly, the Government has provided a good many exceptions for many existing ordinances, enabling the continuation of many existing ordinances or policies in which sex discrimination is embedded. The small house policy is a case in point. In addition, a large number of provisions involving the disciplinary forces are also exempted. This approach which is like "inviting a wolf to enter through the back door while fighting off a tiger at the front gate" cannot, by any standard, eliminate sex discrimination in the territory.
Thirdly, the terms of reference of the Equal Opportunities Commission are far from well-established. This has subjected this important body which is responsible for the enforcement of sex discrimination law to a myriad of limitations, thus weakening the powers of the Commission. For instance, the Commission can, in fact, file a litigation in its own name, conduct investigation on certain people or organizations for purposes pertaining to its functions, institute proceedings in its own name and so on. All these suggestions which aim at strengthening the powers of the Commission are rejected by the Government.
The Government, being short-sighted, always fears that the Commission will be vested with excessive powers, thus posing considerable threats to the commercial sector, employers, companies and so on. It is also fearful of a surge in proceedings pertaining to sex discrimination. That the Government should behave so cowardly shows that the Government is not substantially determined to root out sex discrimination. In view of these inadequacies on the part of the Government, the Bills Committee will propose some amendments, to be moved by Dr the Honourable LEONG Che-hung on behalf of the Bills Committee. These amendments have the support of the Democratic Party and we hope that Members can support these amendments.
In fact, the community and members of the public have long yearned for this Sex Discrimination Bill, which will have a far-reaching and significant bearing on the territory. What we and members of the public are asking for is a comprehensive piece of legislation, not one which is defective or full of loopholes. Therefore, I hope Members can support the amendments proposed by the Bills Committee.
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MISS EMILY LAU (in Cantonese): Mr President, I speak to support the Sex Discrimination Bill and all the amendments to be moved later by Dr the Honourable LEONG Che-hung.
In fact, the spirit of this Bill is to give effect to the principle of gender equality. I trust that nobody in this Council or in the territory would oppose this. The issue, however, has given rise to many problems and a lot of twists and turns, which Honourable Members have just mentioned a moment ago. I regret very much the way in which the Government has handled the case. I have talked to the Honourable Ms Anna WU just now that I personally have some worries because a number of our colleagues, including the Honourable Jimmy McGREGOR and some of our more conservative Members, may not support the amendments to be moved later by Dr LEONG Che-hung. But no matter what the results of the amendments turn out to be, and whether those voting results will bring good or bad effects, I trust that Honourable Members as well as Hong Kong people know that Ms WU has done a great deal towards gender equality. Therefore, I hope that Ms WU will not feel disappointed later whatever the results will be.
Mr President, I am sure that Ms WU is not going to cry. In fact, she should laugh because she has forced the Government to do something very significant. It is just that the Government is such a huge organization that it is impossible to force it to do things in a short time frame. I believe, however, that Ms WU and other colleagues all know that the Government has taken a giant step and I myself will continue to give full support to the other private member's bills moved by Ms WU.
Mr President, in fact, the Bill now under deliberation should have been moved by the Government a lot earlier. When the Bill of Rights was adopted in 1991, the Government already said that it would consider bringing in the United Nations' Women Convention. The matter has been mentioned by many of our colleagues a moment ago. It is only now in 1995 that the Government is forced by Ms Anna WU's private member's bill to introduce this Bill and I regret very much the Government's approach to this matter. The Government's approach and attitude give Honourable Members and the general public the impression that the Government is very reluctant to pursue the Sex Discrimination Bill, which is in quite a contrast with the bill regarding disability now also under consideration because the latter was put forth by the former Secretary for Health and Welfare. As to this Bill, I consider that rather cruel because it is like going to the dentist for extraction but the tooth is taken out bit by bit. Since the Government does not want to pursue this issue, it has imposed in the Bill lots of restrictions and exemptions. Mr President, I really cannot support the Government's proposal and I will give my full support to the amendments to be moved later by Dr LEONG. Meanwhile, I would like to talk briefly about my view on those amendments.
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First, it is in relation to the commencement date for the part of the Bill with regard to employees. The Government's proposal is to set up the Equal Opportunity Commission first and draw up a code of practice for employment before setting the commencement date of the Bill. This is unacceptable. Dr LEONG Che-hung's amendment will set out clearly that the commencement date is not later than 1 January 1996. This seems to be very reasonable to me. I hope that all Honourable Members will support this amendment later.
Secondly, Mr McGREGOR has just vividly spelled out the worries of the business sector, saying that the business sector may not be able to adapt themselves to the Bill. In fact, I have a little concern too whether there really are so many cases of discrimination against women in the business sector. If there are, they should be rectified quickly; if not, then it will be all right. I believe that Mr McGREGOR knows as well that, in fact, there is exemption provided in the Bill in which a grace period will be allowed especially for firms with fewer than five staff. Although the grace period is only five or three years, it somehow takes care of the business sector. I hope that Mr McGREGOR and other Members who represent the employers will tell us later that the business sector in Hong Kong in fact very much object to discrimination against women. Therefore, I hope that they will fully support these amendments and understand that nobody intends to use these amendments to stop the business sector from earning money or to make things difficult for them. If discrimination has existed for years, then we should take this opportunity to have it eliminated.
This Bill has yet another purpose, and that is to give effect to the United Nations' International Convention that I mentioned a moment ago. The amendment to be moved later by Dr LEONG Che-hung is to set out clearly that the interpretation of this Bill should follow that of the International Convention. This is quite reasonable and logical and I do not understand why the Government should put up an objection even on this matter. The Government's behaviour gives a direct impression that it lacks the sincerity in performing the obligations under the Convention. I hope that the Government will explain to us in its address later about their views on the Convention and let us know when that Convention will be introduced. Honourable Members have spoken on this matter time after time, let alone the several debates held here. I hope that the Government can take this opportunity to clarify its position later.
Moreover, this Bill has a very significant drawback, and that is it renders insufficient protection for women in the New Territories. Many people consider that gender inequality in Hong Kong is particularly prominent with regard to women in the New Territories. But it is exactly in this area of the Bill that the Government has proposed lots of exemptions. For instance, some Members mentioned just now that women in the New Territories do not have fair voting right and this is unacceptable to me. The Government always said that we should explain things to villagers by way of lobbying. However, if the principle is right, then it should be written into the law, why still linger on making explanations? For even by way of lobbying, there are bound to be some
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people who will not be convinced after all and I therefore hope that the Government can accept that it is time for legislation.
Another unfair policy is the Small House Policy. This policy is not only unfair to women in the New Territories but also not fair at all to other Hong Kong people. Since none of us has small houses, I therefore really do not understand. Mistakes made in the past should not be allowed to continue. Some may say that for the sake of gender equality, perhaps we should let women have small houses too. This really is ridiculous. For people in the New Territories. men have small houses, and women also have small houses, then, what about those men and women living in the city? Therefore, to deduce the matter with logic, the only conclusion should be either there are small houses for all or small houses for none. In reality, I believe that it is impossible to provide small houses for all men and women in Hong Kong and the Government should also know what conclusion to be drawn. I hope that the Government will show its courage in pursuing the matter. Although certain matters may not gain universal support and the pursuance of which may even lead to fighting in the Council, things ought to be done are to be done after all and we absolutely have no reasons to allocate our limited resources by an unfair method. If certain people are in need of housing, we have the Public Housing Scheme to take care of them. I do not hope that some people should be taken care of by two sets of policies whereas some are cared by only one. I hope that the Government will explain clearly in its response later and tell all the Hong Kong people why the majority of them enjoy no such privilege whereas a few of them do?
Mr President, in fact, everyone understands that if there is the law but without an effective mechanism to enforce it, then the public can only rely on legal proceedings to get their fair deal. In that way, protection given to them by the law is limited. It is not possible for many people to go through legal proceedings for everything because it costs huge sum of money. The Government is not going to support the amendment to enable applications for legal aid in relation to this Bill to be exempted from a means test. I regret deeply for that because the amount of money involved is believed to be small. If the Government can allow applications in relation to the Bill of Rights to be exempted from a means test, why is the Government so stingy regarding this Bill? I hope that the Government can exempt the applicants from a means text when the bill regarding disability is presented later.
Meanwhile, as the Government does not exempt applicants from a means test when they apply for legal aid, therefore, a powerful Equal Opportunity Commission becomes even more important. For this reason, I will support Dr LEONG Che-hung's amendments so that the Equal Opportunity Commission will be empowered to conduct investigations, to make charges in its own name and even to continue legal proceedings on behalf of the plaintiff. Up till now, since the implementation of the Bill of Rights, the Government is still reluctant to set up the Human Rights Commission. This Equal Opportunity Commission Should specifically enforce this Bill now under deliberation, but the Government
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just wants to turn it into a "toothless tiger". Many people may then ask, what does the Government really want?
Mr President, I will also support the amendments to be moved later by Dr LEONG Che-hung such that if the Commission finds that the existing legislation is in contravention of the provisions under the Bill of Rights in relation to the protection of gender, marital status as well as pregnancy, it can apply to the court for a repudiation of those legislation. In fact, the Government should have done this work a lot earlier and should have done it when the Bill of Rights was promulgated in 1991. Now this task is taken up by others but the Government refuses to give the green light. As such, what really is the Government's intention and determination towards human rights? I hope that the Government will explain to us in details with regard to those basic elements when they address the matter later. Otherwise, we might feel that the Government's respect for human rights is just lip service and it imposes all sorts of restrictions when the principle of human rights is put into effect.
Lastly, Mr President, I will not support the amendment moved by the Honourable Mrs Peggy LAM because she proposed that damages awarded by the court to a claimant should not exceed $150,000. I believe that the court should have the authority to decide on the amount of damages in respect of such cases and be subject to no restriction. For example, if a very big enterprise dismissed a very senior staff out of sex discrimination, what deterrent effect would $150,000 have on that company? What protection can $150,000 provide for that staff?. And I would like to ask Mrs Peggy LAM how that $170,000; why not set a150,000 limit is derived. Why not set at 170,000; why not set at $280,000, $390,000 or why not set at $130,000?
Mr President, I believe that Hong Kong people have waited too long for this Sex Discrimination Bill. The representatives from women organizations as well as other bodies present in the Public Gallery today earnestly hope that Members of this Council will show their courage as well as conscience. In fact, we also care for the business sector and I do not want anyone to be misled. Therefore, I hope that we all have the courage to show our support to all the amendments to be moved by Dr LEONG Che-hung on behalf of the Bills Committee. Finally, I reiterate that I have to pay my tribute to Ms Anna WU because she has made great efforts and lot of contributions towards gender equality in Hong Kong.
With these remarks, I support the Bill.
MRS MIRIAM LAU (in Cantonese): Mr President, it is an undisputed fact that in Hong Kong "women can heave half of the heaven".
Women of these days are having far better opportunities than their counterparts of the past in whatever domains like family, education, employment, or socio-political participation. Government statistics show that in
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