government-and-administration-of-hong-kong-by-ss-hsueh — Page 1

Government and Administration
of
Hong Kong
S. S. Hsueh
UNIVERSITY BOOK STORE Hong Kong
Local distributors: Swindon Book Co. and Hongkong Book Centre
S. S. Hsueh 1962
Printed in Hong Kong
by Winsome Printing Press, Ltd.
To the Public Servants of Hong Kong
f
PREFACE
This study is an introduction to present-day government and administration of Hong Kong. It aims to provide a quick reference for those who wish to grasp a general picture of the govern- ment of the Colony without having to search in official documents, regulations or reports.
The
To acquire a knowledge about the constitu- tion and administration of one's government is no longer the special preserve of the expert. complexity of modern life brings us into constant contact with one department or another of our government. Therefore, it is essential for every member of the community, irrespective of his calling, to have a basic knowledge of the govern- ment under which he lives.
This study has been largely based on Hong Kong Government and other official sources, especially constitutional documents, administra- tive reports, colonial despatches, Hong Kong Annual Reports, government departmental reports, ordinances, colonial regulations, standing orders and rules, and publications of the Central Office of Information of the United Kingdom Government.
The author hopes that this work will help to fulfil the long felt need for a general study of
V
the government and administration of Hong Kong.
He wishes to record his thanks to the Research Grants Committee of the University of Hong Kong for a book grant and to members of Government departments for their assistance in the preparation of this book. Acknowledge- ments are also due to Mr. Rupert S. C. Li for his kind co-operation and Mr. Henry L. Lethbridge, who read the manuscript and made valuable suggestions.
S. S. Hsueh
Preface
I.
II.
•
CONTENTS
Introduction
Constitutional Sources
III. The Governor
IV.
·
The Executive Council
V. The Legislative Council
University of Hong Kong October 1962
vi
V
1
6
11
•
19
•
28
51
56
69
VI.
The Urban Council
VII.
Government Departments
VIII.
The Public Service
.
IX.
Administration of the New Terri-
tories
X. The Judiciary
XI.
Conclusion
Selected Bibliography
79
88
94
. 96
I. INTRODUCTION
The United Kingdom has the ultimate responsibility for the government and administra- tion of her overseas dependent territories scattered in different parts of the world. The Colonial Office is the Department of the British Govern- ment which normally deals with the affairs of these non-self-governing territories. Funda- mental policies on major issues of the colonies are decided for them by the Colonial Office. Methods of government are adapted to local needs and the actual administration is carried out by the colonial governments under the authority of their respective governors. The role of the
Colonial Office in relation to British Crown Colonies is, therefore, to advise and guide rather than directly to administer their affairs.
In brief, the main functions of the Colonial Office may be summarized as follows:
i. to convey to colonial governments the views and wishes of the British Govern- ment on broad matters of policy;
ii.
to see that the interests of colonial governments and peoples are safe- guarded and promoted;
་མ-ས་ -་
1
2
GOVERNMENT AND ADMINISTRATION OF HONG KONG
iii. to provide guidance to colonial govern- ments on a wide range of matters through its staff of professional advisers and with the help of advisory com- mittees composed of men and women eminent in many fields; and
iv. to undertake expert services of many kinds, including the allocation of moneys for development purposes under the Colonial Development and Welfare Acts and the provision of administra- tive and professional staff for the Overseas Civil Service.1
At the head of the Colonial Office, the Secretary of State for the Colonies is primarily responsible for the work of this Office. He is a member of the British Cabinet and bears political responsibility to Parliament for the satisfactory administration of the Crown Colonies.
British Crown Colonies vary greatly in terri- torial size, racial composition, and degree of advancement of their inhabitants. Yet for all of them the central purpose of the British colonial policy is the same, that is, to help them to attain self-government within the Commonwealth.2 The moral foundation of British colonial policy
1
Government and Administration of the United Kingdom, Central Office of Information, London, 1957, p. 25.
2 Constitutional Development in the Commonwealth, Part II,
Central Office of Information, London, 1955, p. 1.
INTRODUCTION
3
is that "all political power which is set over men
•
•
ought to be in some way or another exer- cised ultimately for their benefit".1
The broad lines of United Kingdom colonial policy were defined in a speech of the Secretary of State for the Colonies, Oliver Lyttelton, on November 14, 1951 in the following terms: "First, we all aim at helping the colonial terri- tories to attain self-government within the British Commonwealth. To that end we are seeking as rapidly as possible to build up in each territory the institutions which its circumstances require. Secondly, we are all determined to pursue the economic and social development of the colonial territories so that it keeps pace with their political development.
We desire to see successful constitutional development both in those terri- tories which are less advanced towards self- government and in those with more advanced constitutions".
•
On their part, the opposition party have asserted, among other things, that "every colony, including the smallest, should have the right of self-determination" and expressed the hope that "a full and timely recognition of the right of self- determination will encourage the peoples of the colonies to achieve their full democratic rights
1 Burke's speech in United Kingdom House of Commons,
debate on India, December 1, 1783.
4
GOVERNMENT AND ADMINISTRATION OF HONG KONG
within the Commonwealth".1
Hong Kong is a dependent territory. Many constitutional features common to the sovereign state are absent in the case of the Colony. Neither, for instance, the theory of the separation of powers nor the question of universal suffrage will have much relevance to this study. The Government of Hong Kong, owing to the peculiar status of its territory, must be placed in a special constitutional category, and the government structure and administration necessarily carry with them many characteristic features of their
own.
The chart on the following page shows the basic structure of the Government of Hong Kong as it stands to-day.2
1 Labour Colonial Policy, published by the Labour Party,
London, 1957.
2 October, 1962.
GOVERNMENT OF HONG KONG
Governor
Legislative Council
Executive Council
Supreme Court
T
Colonial Secretariat
District Magis-
Courts
tracies
(government departments)
Agriculture and Forestry Audit Census
Marine
Civil Aviation Commerce and Industry Co-operative Development
and Fisheries Education
Immigration
Information Services Inland Revenue
Legal Labour
Jrban Council
Medical and Health Mines Printing Public Works Rating and Valuation Registrar-General
Registry of Trade Unions Resettlement
Secretariat
for Chinese Affairs Social Welfare
Treasury
Urban Services
District Commissioner
of the New Territories
[assisted by Heung Yee Kuk (Rural Consultative Council)]
Magistracy
District
Officer
(Tai Po)
District Officer (Yuen Long) (Tsuen Wan) (Sai Kung)
[assisted by Rural Committees]
District Officer
District Officer
District
Officer
(Islands)
II. CONSTITUTIONAL SOURCES
Hong Kong is a Crown Colony of the United Kingdom, which may be defined as an overseas possession of the British Crown that does not enjoy full powers of self-government and is normally subject to the control of the Colonial Office of the United Kingdom Government in the administration of its affairs.
The origins of the Colony go back to the middle of the 19th century when the Island of Hong Kong was ceded to Great Britain by China in the Treaty of Peace, Friendship, Commerce, Indemnity, &c., signed between the two countries on August 29, 1842, at Nanking.
A Chartered Letters Patent of April 5, 1843, officially created Hong Kong a British Crown Colony, and by a Royal Commission bearing the same date Sir Henry Pottinger was appointed the first Governor and Commander-in-Chief of the Colony.
The Colony of Hong Kong was extended in 1860 by an Anglo-Chinese Convention of Peace and Friendship signed on October 24 of that year at Peking, whereby the Emperor of China ceded to the British Crown the Kowloon Peninsula up
CONSTITUTIONAL SOURCES
7
to present-day Boundary Street, together with Stonecutters Island.1
By the Convention respecting an Extension of Hong Kong Territory signed on June 9, 1898, China leased to Great Britain, for a period of 99 years, the New Territories, which includes a substantial portion of the Chinese mainland north of Kowloon and a group of islands in the neigh- bourhood of Hong Kong Island.
The structure and the functions of the gov- ernment departments in Hong Kong are not all defined in a single document. The constitutional laws of the Colony are derived from various
sources.
The basic constitutional source of the administration is the Letters Patent passed under the Great Seal of the United Kingdom on February 14, 1917, creating the present office of Governor and Commander-in-Chief of the Colony. Subsequently amended, this document also envisaged the establishment of an Executive Council for the Governor to consult with in the execution of his powers and authorities and of a Legislative Council, with the advice and consent of which he was to make law for the peace, order, and good government of the Colony. However, the Letters Patent was couched in very general
1 This area had been leased to Great Britain since March 20,
1860.
8 GOVERNMENT AND ADMINISTRATION OF HONG KONG
terms. Many important aspects of the govern- ment system were left unmentioned. The powers and authorities of the Governor were not clearly defined. Nor were the functions of the Executive Council anywhere specified. Nothing was said about the legislative process, and the document was equally silent on the judicial system except that the Governor was given the general power to "constitute and appoint all such Judges, Commissioners, (and) Justices of the Peace" as he might deem necessary.1 In other words, the legal bases of a large number of government departments must be sought in other constitu- tional sources.
Another constitutional source of the govern- ment of Hong Kong is in a set of Royal Instruc- tions to the Governor passed under the Royal Signal Manual and Signet on February 14, 1917. Several constitutional "gaps" in the Letters Patent are now filled. Although technically called Instructions, its provisions constitute in fact another important documentary source of the Colony's fundamental law, which should therefore be studied as part of the constitution of Hong Kong.
The Royal Instructions contain 37 clauses of which the provisions on the Executive Council and the Legislative Council have the lion's share.
1 Letters Patent, Article XIV.
CONSTITUTIONAL SOURCES
9
Among other things, the composition of the Executive Council is defined, and the law-making process of the Legislative Council is stipulated. These provisions will be studied in their appro- priate contexts.
All laws are styled "ordinances" in Hong Kong. Those which affect directly or indirectly the organization or functioning of the Colonial Government form a supplementary constitutional source. The basic documents the Letters Patent and the Royal Instructions-fail to provide for all the ramifications of government depart- ments. Neither, for instance, the Education Department nor the Urban Services Department has its constitutional basis in either of the two documents mentioned above. Like many other government bodies, they have been constituted by ordinances enacted by the Governor with the consent of the Legislative Council.
The standing orders or rules of government organs form a subsidiary source of the Colony's constitutional law. For instance, the Standing Orders of the Legislative Council define the structure and working procedure of the colonial legislature, one of the most important branches of the Government. These Standing Orders are
of particular importance because laws passed by the Legislative Council which create government departments are per se constitutional sources.
Peculiar to its status, Hong Kong has an
i
10 GOVERNMENT AND ADMINISTRATION OF HONG KONG
additional constitutional source in a body of so- called Orders in Council. That is to say, the Governor may issue orders and regulations in the Executive Council for the good government of Hong Kong. As a form of subsidiary legislation these orders possess the same binding force as the legislative ordinances. Every now and then, these Orders in Council may affect the function- ing of the Government, and as such they form another constitutional source of the Colony.
For
The provisions of constitutional law do not all take a documentary form. The Government of Hong Kong tends, wherever practicable, to follow the British government system1. instance, the Standing Orders of the Legislative Council provide that "in case of doubt the Standing Orders of this Council shall be inter- preted in the light of the relevant practice of the Commons House of Great Britain and Northern Ireland". As a number of these practices is based on convention, the Government of Hong Kong also has its conventional rules.
1 The English government system is based on an unwritten
constitution.
2 Standing Orders, Article 36(1).
III. THE GOVERNOR
The Colony of Hong Kong is governed in the name of the Crown of the United Kingdom. All official acts are carried out by its authority. Government papers bear the expression "On Her Majesty's Service". In brief, every constitutional act has its ultimate source in the Crown of the United Kingdom.
As the heavy duties of the Monarch tend to keep the Queen within the United Kingdom, consequently a Crown representative is sent to Hong Kong to rule the Colony on Her Majesty's behalf. The representative so appointed is styled "the Governor and Commander-in-Chief in and over the Colony of Hong Kong and its Dependencies", briefly referred to as the Governor of Hong Kong.
The Governor is constitutionally responsible for the good government of Hong Kong to the Crown, by whose authority he is appointed and retained in office during Her Majesty's pleasure. However, the Governor does not, in most cases, deal with the Crown directly. There is a popular saying that the Crown reigns but does not govern. This applies to Her Majesty's rule over the Crown Colonies as well. The Secretary of State for the
12 GOVERNMENT AND ADMINISTRATION OF HONG KONG
Colonies, who is the head of the Office dealing with the affairs of the Crown Colonies, serves as a link between the Crown and Her Majesty's colonial governors.
As the Crown's chief adviser on colonial matters and a member of the Cabinet, the Secretary of State for the Colonies does not only have the duty to keep the Crown well informed of up-to-date developments in the colonies, but is also held politically responsible to the British Parliament for colonial policy and administration. He has to follow closely the events in the colonies, about which he may be questioned at any time by the Crown, the Cabinet or Parliament.
The Governor has been called the "king- pin" in the system of relationships between the United Kingdom and her dependent territories.' He receives instructions from the Secretary of State for the Colonies and reports to him on the developments in the Colony which he administers. The Royal Instructions of 1917 require of the Governor of Hong Kong to forward to the British Crown, through the Secretary of State concerned, the annual book of returns for the Colony, commonly called the Blue Book, relating to the revenue and expenditure, defence, public works, legislation, civil establishments, pensions, popula- tion, schools, imports and exports, agriculture,
1 Charles Jeffries, The Colonial Office, London, 1956, p. 35.
THE GOVERNOR
13
produce, manufactures, and other matters in the said Blue Book more particularly specified, with reference to the state and condition of the Colony.1 These annual reports contain full information on the developments of Hong Kong. However, communications in other forms and personal contacts between the Secretary of State for the Colonies and the Governor take place whenever necessary. For it is imperative that the Secretary of State for the Colonies should be kept constantly advised of general conditions in the Colony and that he sees that the Governor performs his duties within his terms of reference and in accordance with the colonial policy of the United Kingdom Government.
a
The power to appoint the Governor is prerogative of the Crown and is exercised under the Sign Manual and Signet. In practice, the candidate to the Governor's office is recommend- ed by the Secretary of State for the Colonies and officially appointed by the Crown. There is no rigid regulation governing the qualifications which the candidate must satisfy. Clearly, the appointment is largely dependent upon his general suitability, personal integrity, and experience in colonial administration.
The Governor's term of office is, as a rule, confined to a period of five years from his
1 Royal Instructions, Clause XXXV.
I
14 GOVERNMENT AND ADMINISTRATION OF HONG KONG
assumption of the administration
although,
theoretically speaking, he serves during the plea- sure of the Crown. However, the rule is not always followed. The recent history of Hong Kong shows that Sir Alexander Grantham, who retired at the end of 1957, had served as Governor for ten and a half years, whereas his predecessor, Sir Mark Young, was Governor for about six years. In actual fact, therefore, many factors such as the Governor's general ability to govern, his popularity with the people in the Colony as well as with the Colonial Office in London, and his adaptability to the political climate of the Colony, are necessarily taken into consideration in determining the length of his term of office.
Once appointed, the incumbent proceeds to the Colony to assume his post as Governor. Some ceremonial matters have to be performed before he officially assumes office. Immediately after his arrival, it is the Governor-appointee's duty to cause the Commission which appoints him to be read and published in the presence of the Chief Justice or other Judge of the Supreme Court and of members of the Executive Council. Members of the Legislative Council may be and were, in the case of the present Governor, Sir Robert Black, also invited to attend the ceremony. On the same occasion, the Governor is required
1 Colonial Regulations, Part I, Chapter II, Article 3.
THE GOVERNOR
15
to take the Oath of Allegiance in the prescribed form and the usual oath for the due execution of the office of Governor and for the impartial administration of justice. The Governor com- mences his duties when all these ceremonies are
over.
Concurrent Offices of the Governor
By law or by custom, the Governor of Hong Kong holds a number of offices ex officio. The following concurrent offices held by the Governor should be noted.
A. Commander-in-Chief in and over the Colony
of Hong Kong and its Dependencies
By virtue of the Letters Patent, the office of the Governor of Hong Kong is combined with that of Commander-in-Chief. Although he is
primarily considered as a senior civil officer in the British Colonial Service, the Governor is, at the same time, nominally the Commander-in- Chief of the armed forces. However, the actual defence of the Colony is the chief responsibility of a senior British military officer, called the Commander of British Forces in the Colony.
B.
Presiding Officer of the Executive Council
The Letters Patent creates an Executive Council for the Governor to consult with in the performance of his duties. He presides at its meetings, submits questions to its members, and
16 GOVERNMENT AND ADMINISTRATION OF HONG KONG
from it seeks advice whenever the need arises.
C.
President of the Legislative Council
With the advice and consent of the Legisla- tive Council the Governor makes laws for the government of the Colony. He presides at the Council meetings and is in fact the central figure in legislation without whose assent no law can come into force in Hong Kong.1
Of the above and other offices which the Governor holds ex officio, his roles in the Execu- tive Council and the Legislative Council are of special importance and will be discussed in the appropriate contexts.
Functions and Powers
The functions and powers of the Governor are primarily derived from the Letters Patent, Royal Commissions and Instructions, and laws of the Colony. It is not feasible to enumerate here every function and power that the Governor may wield as the chief executive of the Colony. In principle the Governor of Hong Kong exer- cises all the necessary functions and powers for the peace, order and good government of the Colony, provided of course that none of his courses of action be exercised ultra vires or contradict the colonial policy of the United
THE GOVERNOR
17
Kingdom Government. It is indeed undesirable to lay down in detail the functions and powers of the Governor for he needs much latitude in the administration of the Government. Many of the day-to-day public affairs need to be tackled with tact and flexibility which no hard-and-fast rules, no matter how perfect, could successfully govern. This is especially true in the case of the colonial administration of Hong Kong, which has been described as "the most remarkable exception to the ordinary rules applicable to all Colonies"." Therefore, there would be no wisdom in tying the hands of the Governor when his integrity and ability can be safely relied upon or when reason- able assurance can be had from him to respect the fundamental law of Hong Kong and the basic colonial policy of the United Kingdom Govern-
ment.
The Governor enjoys great authority in appointing government officers including his own deputy or deputies in the event of absence from the Colony.
The Governor may, in case of absence from Hong Kong after securing leave from the Crown the Secretary of State for the Colonies, appoint his deputy or deputies to exercise, per- form, and execute the Governor's functions for
or
1 Except in those cases referred to below, see infra pp. 47
et seq.
1
C. Collins, Public Administration in Hong Kong, London, 1952, p. 47.
18
GOVERNMENT AND ADMINISTRATION OF HONG KONG
and on behalf of him during such absence. However, the power to appoint his own deputy or deputies applies only in cases where he is "temporarily" absent "for a short period" or away from the Colony for a definite period in the exercise or discharge of some official duties. In either case, he is free to appoint any person or persons of his choice to administer the Govern- ment during his absence. It should be noted, however, that as a rule the Colonial Secretary or, in the absence of such a person, the senior official member of the Executive Council present in the Colony administers the Government in the follow- ing circumstances: i. if the office of Governor falls vacant; ii. if the Governor is absent from the Colony not for reasons mentioned earlier in this paragraph; or iii. if the Governor is prevented from, or incapable of, performing the duties of his office. Such a person temporarily in charge of the Government is styled the Officer Adminis- tering the Government (O.A.G.). Under any of the above circumstances, the Officer Administer- ing the Government is subjected to the provisions of the fundamental law of Hong Kong in the same manner as the Governor himself, whether they originate from the Letters Patent, the Royal Instructions or any other instrument of a similar
nature.
IV. THE EXECUTIVE COUNCIL
The Letters Patent creates an Executive Council for the Governor of Hong Kong to consult with in the exercise of his powers and authorities. Although it is entitled the Execu- tive Council, which is prima facie an official or government decision-making body, half of its members are neither government executives nor even officials in the strict sense of the term. In actual fact this small group of people acts as the Governor's consultant on government
government policy
measures.
Membership
The Royal Instructions of 1917, in supple- ment to the Letters Patent, provide for the following membership of the Executive Council under the chairmanship of the Governor.
A. Official Members
a. Ex officio members
i. the Commander of the British
Forces in the Colony;
ii. the Colonial Secretary;
iii. the Attorney-General;
20
GOVERNMENT AND ADMINISTRATION OF HONG KONG
iv.
the Secretary for Chinese Affairs;
and
V. the Financial Secretary.
b. Nominated member
a
The Executive Council includes
nominated official member, who, at pre- sent, is the Commissioner of Labour.
B. Unofficial Members
There are in all six unofficial members appointed by the Governor from among the members of the public in the Colony.1
All members of the Executive Council are, directly or indirectly, appointed by the Governor. The ex officio members sit on the Executive Council by virtue of the specified government offices to which they have been appointed. The other official member and all the unofficial members are directly appointed by the Governor.
In theory all members of the Executive Council hold office during the pleasure of the Crown but in practice it is the Governor whom they serve. An ex officio member remains so long as he holds the public office which entitles him an ex officio seat of the Council. The nominated official member serves for a definite
THE EXECUTIVE COUNCIL
21
length of time.' The unofficial members serve, as a rule, for a period of five years and are eligible for re-appointment for an additional period or periods, each period not exceeding five
years.
Any member of the Executive Council may vacate his seat before his term of office expires as a result of resignation, death, incapability to exercise necessary functions, absence from the Colony or by his becoming an ex officio member. Whenever a vacancy occurs in the Executive Council the Governor is authorized, pending the approval by the Crown, to make a provisional appointment. A person so appointed becomes a Unless the Crown dis- provisional member. allows the appointment or, as is the case, the reason for the vacation of his predecessor's seat is removed, the provisional appointment is gen- erally followed by a definitive appointment.
1
Of the unofficial members at the present moment three are Chinese, two English, and one Portuguese.
1
The Governor may, upon sufficient reason, suspend any member of the Executive Council from the exercise of his functions, in which case the Governor is obliged at once to report this to the Crown through the Secretary of State for the Colonies. If the suspension is confirmed, the Governor shall revoke the appointment of such member, whereupon his seat becomes vacant. Any member of the Council, official or
He is normally appointed on a year-to-year basis.
22 GOVERNMENT AND ADMINISTRATION OF HONG KONG
otherwise, may be subject to this disciplinary action if he fails in the duties required of him as a member.
Functions
The Governor is required by law to consult with the Executive Council in the discharge of his duties. Nevertheless, he enjoys a fair amount of discretion in determining what matters should be referred to the Council for advice. Matters of certain categories are exempt from the applica- tion of this rule. Specifically, the Governor does not have the obligation to consult with the Execu- tive Council i. if, in his judgment, consultation with the Council on such matters would be materially prejudicial to the service of the Crown; ii. if such matters are too unimportant to require an advice from the Council; or iii. if such matters are too urgent to ask for an advice from the Council. In cases falling within any of the above categories, the Governor is free to decide the course of action except that for matters in the last category he is required immediately to inform the Executive Council of the measures taken by him together with the reasons for such action.
The Governor's consultation with the Execu- tive Council takes the form of submission of questions to its members for advice.
In prin- ciple, he is alone entitled to submit questions to the Council. Although members may request
THE EXECUTIVE COUNCIL
23
the Governor, in writing, to submit any question to the Council their role is largely passive in that they are generally confined to giving views or advice on such questions as may have been submitted to them by the Governor. It has been clear from the beginning that the Executive Council is intended for the Governor to consult with in the exercise of his duties, and it is there- fore purely an advisory body.
In view of the consultative character of the Executive Council, the Governor is not obliged always to respect or act according to its advice. In fact he may act in opposition to the advice given if he considers this necessary. In such cases, however, he has to send to the Crown a full report with the grounds and reasons for his action. It is difficult to tell how often the Gov- ernor acts in this manner as the proceedings of the Executive Council are conducted behind closed doors, and its minutes are not accessible to members of the public. Although it is con- stitutionally permissible for the Governor to act contrary to the advice of the Council, yet it would not be politically desirable if he should do this too often. Frequent uses of this power would only reveal constant conflicts of opinion between the Governor and his colleagues, and would reflect upon his administration. Therefore, it is safe to assert that, generally speaking, the Gov- ernor will not without justification dismiss an
24 GOVERNMENT AND ADMINISTRATION OF HONG KONG
advice from the Council, especially if it is con- cerned with a matter of importance or if it is offered by the majority of the members of the Council. The principle remains, however, that the Governor alone decides on important matters of policy for which he has responsibility. It should be remembered that as it is the Governor, more than anyone else in the Colony, who is responsible to the Crown for the government of Hong Kong, he should be, and is, the highest authority to take whatever action appears to him wise for the honest performance of his duties. The essence of the Crown Colony system is that power and responsibility are concentrated in the sole person of the Governor.1
Meetings
The Executive Council meets at the sum- mons of the Governor. As a general practice, it meets once a week in the Council chamber of the Government premises on the Island. Three members, including the presiding officer, form a
quorum.
The Governor is required by the Royal Instructions to preside at the meetings of the Council as far as practicable. In his absence the following persons take his chair in this order: i. a Council member appointed by the Governor;
1 L. A. Mills, British Rule in Eastern Asia, London, 1942,
p. 392.
THE EXECUTIVE COUNCIL
25
ii. the senior ex officio member of the Council;1 or iii. the senior official member. In practice, the Colonial Secretary, who is normally appointed to act as the Governor's deputy during his absence, presides at the meetings of the Executive Council while the Governor is away.
Meetings of the Executive Council are conducted in closed sessions. As no one else but the members and the officers is admitted it is impossible to know what happens within the walls of the Council. There are no standing orders nor rigid regulations governing the order of business of the Council. Minutes are kept by the Clerk or Deputy Clerk of the Council, and a full and exact copy of these minutes must be sent to London twice in each year.
The Role of the Unofficial Members
To begin with, it is rather unusual for the Executive Council, which is obviously an official, though consultative, organ, to include among its members persons who are neither government executives nor even officials.
The primary function of the members of the Executive Council is for the Governor to consult with in the discharge of his duties. As far as can be judged, there is no apparent distinction in
1 The Senior Military Officer, although an ex officio member,
may not take the chair.
I
THE EXECUTIVE COUNCIL
27
26 GOVERNMENT AND ADMINISTRATION OF HONG KONG
status between an official member and an unofficial member in the course of the proceed- ings in the Executive Council. Like the official members, therefore, the unofficial members may express their points of view regarding executive policy or measures affecting the interests of the Colony. Since the Governor is apparently occupied with all kinds of official duties and business, it may not always be easy for him to follow closely the feelings and needs of the people. The obvious advantage of including unofficial members is that the Governor may benefit by their views as prominent members of the public. Needless to say, it is extremely desirable and important that government policy should, as far as practicable, follow the needs of the people for whose welfare the Governor and his Government have responsibility.
Like
Although, as he has been seen, the Governor is alone entitled to submit questions to the Execu- tive Council for its opinion, yet Council members may, under exceptional circumstances, request in writing that certain questions be submitted to the Council by the Governor for consultation. the official members, the unofficial members can avail themselves of this privilege which, if used in full and in good faith, may produce consider- able results to the benefit of the community. The Governor is of course entirely free to decide whether or not he should entertain these requests,
but he may find it desirable to give them his due and careful consideration in the public interest.
THE LEGISLATIVE COUNCIL
29
V. THE LEGISLATIVE COUNCIL
The Legislative Council is the colonial legislature. With its advice and consent the Governor makes laws for Hong Kong. Theore- tically speaking, the Legislative Council is not the only organ to make laws for the Colony, for the Crown reserves the right, with the advice of the Privy Council in the United Kingdom, to make such laws as may appear necessary for the govern- ment of the Colony. Moreover, the Governor in Council (the Executive Council) and the Urban Council are also given power under numerous ordinances to make subsidiary legislation.
Membership
Like those of the Executive Council, the members of the Legislative Council are either official or unofficial. The Governor is the President of the Council.
A. Official Members
The official members are again classified as ex officio or nominated, according to the specified public offices that they concurrently hold.
a.
Ex officio members
The ex officio members are the same
B.
as those of the Executive Council who are as follows:
i. the Commander of the British Forces
in the Colony;
ii. the Colonial Secretary;
iii.
the Attorney-General;
iv. the Secretary for Chinese Affairs; and
the Financial Secretary.
V.
b.
Nominated members
The number of nominated members does not exceed four at any one time. At present the following officials are the nominated members.
i. the Director of Public Works.1
ii. the Director of Medical and Health
Services;
iii. the Director of Urban Services; and
iv. the Director of Education.
Unofficial Members
The unofficial members, whose number must
1 The Director of Public Works is in fact an ex officio member because, under the Standing Orders 4 of the Legislative Council, he is invariably the Chairman of the Public Works Committee and a member of the Finance Committee, both being the Council's standing committees.
30
GOVERNMENT AND ADMINISTRATION OF HONG KONG
not exceed eight at any one time, are appointed by the Governor.1
Tenure
The official members and the unofficial members of the Legislative Council differ in their terms of office. The tenure for an ex officio member depends upon that of the public office which entitles him to a seat on the Council. A nominated official member is appointed by the Governor for a definite period of time.2 The term of office for an unofficial member is as a rule four years, and he is eligible for re-appoint- ment for any further period.
The seat of an official member of the Legislative Council becomes vacant when the incumbent ceases to hold the specified public office. The seat of an unofficial member may be declared vacant by the Governor i. if the in- cumbent becomes bankrupt or insolvent; ii. if he is convicted by any criminal offence; or iii. if he is absent from the Colony for more than three months without leave of absence from the Gov- ernor. The Governor is authorized to make a provisional appointment whenever the seat of any member other than an ex officio member becomes
1
Of the unofficial members at present five are Chinese, two English, and one Indian.
2 The nominated official members are appointed by the Governor
on a yearly basis.
THE LEGISLATIVE COUNCIL
31
vacant for any of the following reasons: death, resignation, suspension of membership, incap- ability to exercise his functions, absence from the Colony, or acting in an office the holder of which is an ex officio member of the Legislative Council. However, a provisional member ceases to be one if his appointment is disallowed by the Crown, revoked by the Governor, suspended by the definitive appointment of a member of the Council, or if, as is the case, the reasons which caused the vacancy of such a seat are now re- moved.
Except in the case of an ex officio member whose office is governed by separate regulations, any member may resign from the Legislative Council subject to the acceptance of such resigna- tion by the Governor or by the Crown through the Secretary of State for the Colonies.
By a decision of the Legislative Council, any member may be suspended from the service of the Council if he shows disregard for the authority of the chairman or abuse of the rules of the Council by persistently and wilfully obstructing the business of the Council. The Governor may, upon sufficient cause, also suspend the service of any member of the Council pending the decision of the Crown. If the suspension is confirmed by the Crown, the Governor is required to revoke immediately the appointment of such member, whereupon his seat becomes vacant.
32 GOVERNMENT AND ADMINISTRATION OF HONG KONG
As a result, the Governor has virtual control over all members of the Legislative Council in dis- ciplinary matters.
Meetings
The meetings of the Legislative Council are convened, adjourned and suspended by the Governor who, as its President, is alone to decide upon their frequency and times. In practice the Council meets every other week. Five members including the President are sufficient to form a
quorum.
Officers
The Governor presides at the meetings of the Legislative Council. In his absence, a Council member of his choice or else the senior official member, with the exception of the Com- mander of British Forces, takes the chair. All powers and authorities belonging to the Governor as President of the Legislative Council are exer- cised by his deputy at its meetings during the former's absence. The Colonial Secretary, who, in such cases, generally acts as the Governor's deputy-the Officer Administering the Govern- ment also serves as the President of the Legisla- tive Council.
The President assumes a great measure of authority in the Legislative Council. He may address the Council at any time of the meeting
THE LEGISLATIVE COUNCIL
33
or during the debate. A message from the Governor may be presented to the Council by an official member at any time before the com- mencement or at the close of public business. The message may be considered at once or at a future date as the official member concerned may appoint. The President is responsible for the observance of the rules of order in the Council, and his decision upon any point of order is final. He directs the attention of the Council to any incident where a member shows disregard for the authority of the chairman or abuses the rules of the Council, and may move that such member be suspended from the service of the Council.
Much of the routine work of the Council is carried out by the Clerk, who assumes respon- sibility for a variety of secretarial functions including the preparation of agenda and custody of documents. He may also be asked by the chairman of a committee to attend its meetings and render the necessary services. The Clerk is assisted by a Deputy Clerk in the discharge of these functions. The Deputy Clerk keeps the minutes of the proceedings, an exact and full copy of which is sent to the Crown through the Secretary of State for the Colonies after every meeting.
Committees
The primary function of the Legislative
34 GOVERNMENT AND ADMINISTRATION OF HONG KONG
Council is to make laws. Experience shows that owing to their technical nature legislative matters can be more effectively dealt with by smaller bodies of persons with expert knowledge in the fields. Following the practice of the British Parliament, the Legislative Council of Hong Kong adopts a committee system, whereby two types of committees are established under the authority of the Legislative Council to assist in the exercise of its functions.
A. Standing Committees
There are at present three standing com- mittees which carry out their respective functions as subsidiary organs of the Legislative Council. Each of the committees has a fixed membership, and the appointment of its chairman is regulated by the Standing Orders. A member of the Council, not a member of the committee, is allowed to attend its meetings but may not parti- cipate in its proceedings, therefore without the right to debate or vote. Three members form a quorum at the meetings, and decisions are made by a majority of votes.
The Legislative Council has the following standing committees.
a. The Finance Committee
The Finance Committee consists of the following persons:
i. the Colonial Secretary as Chairman;
THE LEGISLATIVE COUNCIL
ii. the Treasurer;
iii.
35
the Director of Public Works; and
iv. the unofficial members of the Council.
The Finance Committee deals with all finan- cial matters referred to it by the Legislative Council, especially the study of annual budgetary estimates and of final accounts submitted by the Financial Secretary. The Governor may, at any time, refer to the Committee any proposal con- cerning additional expenditure not covered by the annual estimates.
b. The Public Works Committee
The Public Works Committee is composed of the following:
i. the Director of Public Works as Chair-
man;
ii. the Treasurer; and
iii. the unofficial members of the Council.
As the name speaks for itself, all matters concerning the Colony's public works on which legislation is necessary are referred to it by the Council for study and report.
C. The Law Committee
The Attorney-General is the ex officio Chairman of the Committee. The President of the Council appoints four other members at the first meeting of the year and fills vacancies arising
36 GOVERNMENT AND ADMINISTRATION OF HONG KONG
in the Committee in the course of the year.
The Law Committee is a body of legal experts, and membership is comparatively res- trictive owing to the technical nature of business it is called upon to examine and report on. Only those members of the Council who are well known for their legal knowledge or experience are chosen to serve on the Committee.
B. Select Committees
A different type of committee known as "select committees" may be established from time to time to deal with matters not covered by the work of the standing committees. The number of select committees varies according to the needs of the time. These committees are set up for the fulfilment of certain specific objects, and are dissolved as soon as their work is done. Any matter before the Legislative Council may be referred to a select committee by the President of the Council or upon a motion duly passed by the Council. A select committee has at least three members, who are nominated as a rule by the President of the Council. However, the Governor's power to nominate such members is not absolute. Any member of the Council may move that the Governor's nominee be substituted by another member. If this motion is seconded, the question is decided by a vote. The chair- man of a select committee is invariably appointed
THE LEGISLATIVE COUNCIL
37
by the President without challenge. Three members form a quorum except where a com- mittee has only three members, then two will suffice to form a quorum.
Business
The business of each sitting of the Legisla- tive Council is transacted in the usual manner unless the Council directs otherwise. The normal order of business is as follows:
i.
Confirmation of minutes of last pre- ceding meeting.
ii. Oath or affirmation of allegiance of a
new member.
Announcements.
iii.
iv. Papers, including any reports of stand- ing or select committees which are laid upon the table by order of the Governor and which are not the subject of any motion.
V.
Petitions.
vi.
Questions.
vii.
Government business.
viii.
Unofficial members' motions.
Voting
All questions before the Legislative Council are decided by a majority of votes including the
38
GOVERNMENT AND ADMINISTRATION OF HONG KONG
one of the President in the Council or of the chairman in a committee. The President of the Council and the chairman of a committee have, in addition to the ordinary vote, a casting vote whenever the votes are equal. A member, official or unofficial, may abstain from voting if, for one reason or another, he does not wish to express his opinion on a particular measure. Abstentions are not counted in a decision reached. The Clerk records the votes as well as the names of those members who have abstained from voting. Any member who dissents from the majority opinion, if he gives immediate notice of his intention to do so, may lay upon the table a statement of the grounds for his dissent, either at the same or a subsequent meeting of the Council. No member is allowed to vote on any subject in which he has a direct personal pecuniary interest. If, however, the measure under discussion is of common interest, his vote cannot be challenged.
The votes in the Council and in a committee are voiced "ayes" and "noes", and the result is declared by the President of the Council or the chairman of a committee as the case may be. Any member may request a division to be taken if, in his opinion, the vote by voices has not been satisfactory. The votes are then taken by the Clerk, who calls on each member to declare his vote separately, which is recorded accordingly.
THE LEGISLATIVE COUNCIL
39
The President or the chairman declares the result as soon as the votes are collected by the Clerk. Whenever the "ayes" and the "noes" are equal, the President or the chairman, as has been seen, gives his casting vote.
Questions
Questions may be put to a member by another in accordance with the Standing Orders of the Council. As a result, official members may be asked questions relative to the public affairs with which thy are officially connected or concerning any matter of public administration for which they have responsibilities. Questions may, however, also be put to unofficial members on business of the Council for which they are primarily responsible. All questions must be asked with a written notice, but if it is of an urgent character, a member may, with the per- mission of the President, ask a question without such notice.
Questions are asked for the purpose of explaining any public matter, administration, bill or motion. No question may be asked with the intention of obtaining an expression of personal opinion or of creating a pretext for a debate. A question which has been fully answered must not be asked again unless with the permission of the President. A supplementary question for further elucidating any matter of fact is permitted pro-
!
I
40 GOVERNMENT AND ADMINISTRATION OF HONG KONG
vided that it does not introduce matters not included in the original question.
Debate
No drastic means of restricting debating are employed by the Legislative Council. As has been seen, the President of the Council has the authority to take disciplinary action against any member who abuses the Standing Orders or per- sistently and wilfully obstructs the business of the Council.
A member may propose any question for debate in the Legislative Council except for questions involving the revenue of the Colony. The Governor is alone competent to raise any question of a financial character, and he may of course allow or direct any member of the Council to propose such question for debate.
In the progress of a debate, a member may address his observations to the President in the Council or the chairman in a committee, provided that all such observations are confined and made relevant to the subject under discussion.
No member is allowed to speak more than once on any proposition before the Council except when it sits as a committee of the whole Council. But he may, without introducing a new matter, offer additional explanations of any material part of his speech which has been misunderstood, or he may, in the case of the mover of a substantive
f
THE LEGISLATIVE COUNCIL
41
motion, speak in reply to any relevant questions raised by another member. A member may put any question to another member relating to a bill or motion connected with the business for which such member is responsible. A member who has spoken may do so again when a new question is introduced such as a proposed amendment. However, a matter appointed in the order of business or a motion or amendment of which notice has been given cannot be anticipated in any other debate. A debate is deemed to have been closed as soon as a vote is taken, after which no member is allowed to speak further on the subject.
Working
The primary function of the Legislative Council is to make laws, which are styled "ordinances".
The legislative process of Hong Kong follows closely the British parliamentary system. The Council has its own Standing Orders, which are based on the practice of the House of Commons of the British Parliament. Article 36(1) clearly provides that in case of doubt as to the meaning of any of the Standing Orders of the Legislative Council they are to be interpreted in the light of relevant practice of the House of Commons in the United Kingdom.
Bills may be classified as public or private
42 GOVERNMENT AND ADMINISTRATION OF HONG KONG
according to whether they affect the interests of the Colony as a whole or of private persons, associations or corporate bodies in particular. Owing to their nature, public bills are, as a rule, introduced by official members of the Council, and private bills are generally promoted by unofficial members.
Public bills are again divided into money and non-money bills depending upon whether they involve any revenue arising within the Colony. The Governor is alone authorized to propose money bills, and unless allowed or directed by him no member is permitted to introduce a money bill. The Legislative Council cannot entertain any petition requesting a grant of public money or the release of a debt to public funds unless so recommended by the Governor.
Private bills, which are not government measures, are generally promoted by unofficial members of the Council or members of the public. The introduction of a private bill takes the form of a petition. According to the rules of the Legislative Council, notice of such bill must be given by the promoters by two advertisements in a local English daily newspaper and, if a Chinese person is involved, by two additional advertise- ments in some local Chinese paper. Notice of such bill must be given by two successive publica- tions in the Gazette of the Hong Kong Govern- ment.
THE LEGISLATIVE COUNCIL
43
Public and private bills are passed in a like manner. In the case of a private bill, however, any person may petition to be heard if he con- siders that his rights or interests are threatened by such bill. The President of the Council decides whether the petitioner should be heard in person or be represented by his counsel. He may be heard before the Legislative Council or before the committee of the whole. As a general practice, he is heard either before a standing committee or a select committee. The evidence taken before any committee of the Legislative Council and any documents presented to such committee which have not been reported to the Legislative Council must not be published by any member of such committee or any other person except with the permission of the President of the Council.
Like the British House of Commons, the Legislative Council of Hong Kong adopts the three reading system, a procedure whereby a bill must pass three readings in the Legislative Coun- cil to become, after securing the Governor's assent, a law of the Colony.
The first reading is a comparatively simple step, by which the Clerk reads out the title of the bill. No discussion or debate is allowed at this stage. The President may, however, address the Legislative Council if he so wishes. After the first reading is over, the bill is published in the
44 GOVERNMENT AND ADMINISTRATION OF HONG KONG
Government Gazette, and a date is set for the second reading.
When a motion for the second reading is made and adopted, debate takes place in the Council chamber. The merits and general prin- ciple of the bill are carefully examined and debated on. No discussion of the details is permitted. The second reading is a critical stage at which a number of bills, especially private bills, may be killed. Public bills generally pass this stage quite safely as all decisions of the Legisla- tive Council are made by a majority of votes which can be ensured by the support of the official members.
When the bill passes the second reading, it is said to be "committed". It may then be referred to a committee. As a rule, matters of great importance are referred to the committee of the whole, and other bills are sent to standing committees if they are concerned with finance or public works, or else they will be sent to select committees especially constituted to examine such bills.
The committee of the whole Council is a temporary body comprising all members, official and unofficial, of the Council. Whenever a bill is too important to pass out of the hand of the Legislative Council, the Council may then resolve to sit as a committee. The Standing Orders of
1
THE LEGISLATIVE COUNCIL
45
the Council may be suspended so that discussion can be carried out in the absence of rigid rules. The matter referred to it is generally of such an important character that it is deemed desirable to receive the widest possible support within the Legislative Council. In the absence of any hard and fast rules the atmosphere is generally friend- lier and differences of opinion may be reconciled with less difficulty. This has proved to be a useful means of ironing out differences which might otherwise be difficult to solve under rigid rules and regulations.
When a bill is considered either by the Council or by a committee, an amendment may be proposed provided that in the opinion of the chairman it is relevant to that bill. Amend- ments are generally sent to the Clerk of the Council who has them printed and circulated among the members. Debate on such amend- ment is allowed on the condition that it must be confined to that amendment alone.
In either a standing or a select committee, discussion is usually concentrated on the details of a bill, for its merits and principles have already been examined at the second reading. Any member may propose such amendments as are consistent with the agreements or decisions already reached. The committee chairman is authorized to withdraw any amendment from consideration if, in his opinion, it contravenes
46 GOVERNMENT AND ADMINISTRATION OF HONG KONG
the order of the Council. A new clause may be introduced to a bill at any time during the deli- berations of the committee if the chairman thinks
it desirable.
When a bill is sent back to the Council by the committee, the member in charge of the bill may move that it be read a third time. If, however, any material amendment has been in- troduced to the bill in the committee, the bill must be printed in its amended form and publish- ed once again in the Government Gazette.
With
the permission of the Council, this amended bill may be substituted for the bill as read a second time. The bill is then to be reconsidered by the committee of the whole.
The third reading of the bill marks the final stage of the legislative process in the Council. For a bill to be read for the third time, a motion must be made and adopted. Any member of the Council may propose a final change in the bill before its passage for the third time. The amendment may either take the form of deleting or amending certain provisions or introducing fresh provisions. The bill, in this case, is said to be "re-committed", and is referred to the committee of the whole. After deliberations the committee of the whole reports it back to the Council for final adoption. A bill which has passed the third reading is deemed to have been passed by the Legislative Council, and no further
THE LEGISLATIVE COUNCIL
amendment is allowed.
47
The three readings of a bill usually take place at different dates. If an emergency exists, the President may move in the interest of the public that the Standing Orders of the Council be suspended to enable the bill to pass through all its stages, or all its remaining stages, at that very meeting. If the motion is adopted, the bill may be passed in a much shorter space of time than it would otherwise have to take under nor- mal circumstances.
No bill may become an "ordinance" without the assent by the Governor or by the Crown. The Governor is authorized, with the exception of the reserved bills, to assent to any bill, to refuse to do so or to reserve it for assent by the Crown. For bills the assent to which is not reserved for the Crown, the Governor must, if he wishes to do so, assent to it during the year in which the bill is passed by the Legislative Council. All ordinances take effect as soon as they are pro- claimed by the Governor.1
Certain categories of bills are called "reserv- ed bills", the assent to which can only be given by the Crown. The following are referred to as reserved bills:
i. any bill for the divorce of persons joined together in holy matrimony;
1 In 1961, fifty-seven ordinances were enacted in Hong Kong.

48
GOVERNMENT AND ADMINISTRATION OF HONG KONG
ii. any bill whereby any grant of land or money, or other donation or gratuity, may be made to the Governor himself;
iii. any bill affecting the currency of the Colony or relating to the issue of bank notes;
iv.
V.
any bill establishing any banking asso- ciation, or amending or altering the constitution, powers, or privileges of any banking association;
any bill imposing differential duties;
vi. any bill the provisions of which shall appear inconsistent with obligations imposed upon the Untied Kingdom by treaty;
vii. any bill interfering with the discipline or control of British forces by land, sea, or air;
viii.
any bill of an extraordinary nature and importance, whereby the prerogative of the Crown, or the rights and property of Her Majesty's subjects not residing in the Colony, or the trade and ship- ping of the United Kingdom and its dependencies, may be prejudiced; ix. any bill whereby persons not of Euro- pean birth or descent may be subjected or made liable to any disabilities or
X.
THE LEGISLATIVE COUNCIL
49
restrictions to which persons of Euro- pean birth or descent are not also subjected or made liable; and
any bill containing provisions to which the assent of the Crown has been once refused, or which have been disallowed by the Crown.
No bill of the above kind can become law without the assent of the Crown. The normal procedure is that the Crown, through the Secret- ary of State for the Colonies, informs the Governor of its decision on such reserved bills. When the assent is obtained, the Governor either signifies the decision by message to the Legisla- tive Council or by proclamation. However, no such message is issued after two years from the day on which the bill was presented to the Governor for assent. Whether an ordinance is passed on the authority of the Governor or reserved for the assent of the Crown the Governor has to forward a full and exact copy of such ordinance or bill to the Crown for final approval, disallowance or other direction. In each case, such copy must be accompanied by the explana- tory observations necessary for indicating the reasons and occasion for passing such ordinance or bill.
The Governor is not absolutely forbidden to assent to reserved bills. Under the following
50 GOVERNMENT AND ADMINISTRATION OF HONG KONG
circumstances he is permitted to assent to such bills: i. if he has previously obtained instruc- tions to do so; ii. if such bill contains a clause suspending its operation until the approval by the Crown; or iii. if, in his opinion, the immediate operation of such bill is required as a result of an urgent necessity. It is clear, however, that such bill must not be repugnant to the law of England or inconsistent with any obligations imposed on the United Kingdom by any inter- national treaty to which she is a party. In the circumstances, the Governor is required at once to send the bill to the Crown with the reasons for his assent.
Any law of the Colony may be disallowed at any time by the Monarch, who reserves "full power and authority" to do so through the Secretary of State for the Colonies.
A complete collection of ordinances enacted during the preceding year is published at the beginning of each year.
VI. THE URBAN COUNCIL
One of the difficulties facing the early British administration in Hong Kong was the problem of sanitation and hygiene. In one instance, the British officer in command of the troops ordered his men to live aboard hired water transports because, in his opinion, the Island of Hong Kong was too unhealthy for them to live ashore. There was some indication that even the Governor appeared to worry about the unhealthy months of the summer.1 As an immediate remedy, a Committee of Public Health and Clean- liness was formed in August, 1843, to enforce necessary rules to improve the sanitary conditions of the Colony. The constitution of this Com- mittee marked the beginning of municipal administration in Hong Kong.
In 1880, further complaints about the bad sanitary conditions were made by the military authorities and other quarters. Two years later, a special commissioner was sent from London by the Secretary of State for the Colonies to look into the matter. As a result of his report a
1 Collins, op. cit., p. 57.
52 GOVERNMENT AND ADMINISTRATION OF HONG KONG
Sanitary Board was established to take immediate steps to improve the sanitary conditions. The Board was composed of four official members and six unofficial members, of whom four were appointed by the Government and two were elected by ratepayers for a term of office of three years. For more than half a century this Board assumed primary responsibility for matters of public sanitation in Hong Kong.
In 1935, the Sanitary Board was converted into the Urban Council by legislative enactment. The Urban Council Ordinance increased the number of unofficial members, but it did not give the Council much more power. When the new Council assumed office in 1936 it consisted of five official members and eight unofficial mem- bers, of whom six were government appointees and two were elected on a franchise of the jury lists.
The membership of the Urban Council has undergone several changes since its creation, and its present number is 22. The members are as follows:
A. Ex officio members
i.
the Director of Urban Services;1
ii.
the Deputy Director of Medical and Health Services;
1
He is the ex officio Chairman of the Urban Council.
1
THE URBAN COUNCIL
iii. the Director of Public Works;
53
iv. the Secretary for Chinese Affairs; and
V.
the Director of Social Welfare.
The Commissioner for Resettlement is a temporary additional ex officio member of the Urban Council appointed by the Governor on a year-to-year basis.
B. Ordinary members
There are 16 ordinary members, eight of whom are appointed by the Governor and eight elected. The ordinary members, including the elective members, serve for a tenure of four
years.
The eight elective members of the Urban Council are elected on a limited franchise by persons on the current jurors' lists and male persons of defined status whose applications have been approved. Among the persons of the latter group are unofficial members of the Executive Council and the Legislative Council, barristers and solicitors in actual practice, and professors and other academic officers of the University of Hong Kong.
The Urban Council performs a limited num- ber of functions within the urban area of the Colony, which consists of the Island of Hong Kong, Kowloon and New Kowloon, with an estimated population of nearly three million.
54
GOVERNMENT AND ADMINISTRATION OF HONG KONG
The principal work of the Urban Council centres on public health and hygiene, and the Council makes bye-laws under the provisions of various legislative ordinances such as the Public Health (Sanitation) Ordinance or the Public Health (Food) Ordinance for the control or regulation of these matters. Such subsidiary legislation is, however, subject to the approval of the Legislative Council, which has an over- riding authority in matters relating to public health in Hong Kong. Moreover, the Urban Council proposes amendments to ordinances on matters for which it has responsibility, and through the Urban Services Department it is also responsible for environmental sanitation and hygiene, for the public health control of food, and for the maintenance of certain places of public recreation such as bathing beaches, parks and playgrounds. The Urban Council also exercises general direction and supervision over the work of the Resettlement Department in the clearance and resettlement of squatters.
The Urban Council meets once a month, and oftener if need be, to transact official business and make policy decisions. Four members form a quorum. All questions are decided by a majority of the members present and voting.
The Urban Council appoints select commit- tees, which may include persons who are not
THE URBAN COUNCIL
55
Council members provided that two-thirds of the committee are members of the Council.
The Urban Council maintains close co- operation with the Urban Services Department, through which the Council gives effect to its statutory and other duties. Responsible pro- fessional and technical officers of this Department are frequently invited to attend meetings of select committees of the Urban Council and to express views on matters within their interest. In doing so, the Urban Services Department associates most closely with the Urban Council in the for- mulation of policies and assists it in overcoming practical difficulties in their implementation. The Council also keeps effective liaison with the Labour Department in matters of industrial health and with the Medical and Health Services Depart- ment, whose Deputy Director is the Vice-Chair- man of the Urban Council.
VII. GOVERNMENT DEPARTMENTS
Owing to the rapid increase in the Colony's population and activities there has been consider- able expansion in the Government, which now has more than twenty administrative depart- ments. It is not intended here to expatiate on the structure and the functions of all depart- ments, for which the reader may be referred to the government publications recommended in the appended bibliography. Nevertheless, the Colonial Secretariat and the Secretariat for Chinese Affairs will be examined separately because of their special features of interest.
Every department has its own specific functions and establishment. As a rule, there is always a departmental head called Director, Registrar or Commissioner, who is generally assisted by Deputy or Assistant Directors, Officers or Assistant Secretaries. The departments are normally organized into sections, divisions or branches for the convenience and efficiency of their administration. The structure of each department depends upon the specific nature of its functions and requirements.
General and important policy decisions are
GOVERNMENT DEPARTMENTS
57
made by the Governor in the Executive Council, and matters of routine and internal regulations of the department may be decided by the heads of department in accordance with their general terms of reference.
The Colonial Secretary has responsibility for the overall direction and supervision of the actvities of the administrative departments. As the Governor's right-hand man, the Colonial Secretary assists him in a variety of ways. Un- like a department head who exercises only such functions as fall within his own department, the Colonial Secretary looks after the general welfare and administration of the entire Colony. Next to the Governor, he is the key figure in the Executive Council and the Legislative Council, and proposes important government measures. The Governor, who is usually busy with a great variety of duties, often consults with the Colonial Secretary on matters of general interest. Al- though the Governor alone makes all important policy decisions in the Colony, the opinion of the Colonial Secretary is carefully weighed before such decisions are reached. Whereas the Gov- ernor personifies the Crown in the Colony, the Colonial Secretary acts as its "Prime Minister". However, he and his colleagues of the "Cabinet" are not directly responsible to the Colonial "Parliament", but to the Governor, who is answerable to the Crown for the colonial adminis-
}
58
GOVERNMENT AND ADMINISTRATION OF HONG KONG
tration as a whole.
The vast and important duties of the Colonial Secretariat are carried out by members of the Civil Service under the general administra- tive supervision of the Deputy Colonial Secretary, whose primary responsibilities are to co-ordinate the work of the departments and to transmit to them decisions from the Governor or the Colonial Secretary.
The Colonial Secretariat
The Colonial Secretariat is the centre of public administration in Hong Kong. Its im- mense duties are carried out by four main brances.
I. The General Branch
The Branch has the following sections.
A. The General Section
Under the direction of the Principal Assistant Colonial Secretary, the General Section exercises a considerable range of duties including those relating to Chinese affairs, social welfare, education, the New Territories administration, public utilities, television, telecommunications, film censor- ship, press, and public relations.
B. The Councils Section
Under the Clerk of Councils who is an Assistant Colonial Secretary, the Councils
II.
GOVERNMENT DEPARTMENTS
59
Section has responsibility for clerical duties in connection with the meetings of the Executive Council and the Legislative Coun- cil. In addition, the Section is concerned with a variety of other functions relating to policy matters of deportation, detention, naturalization and nationality; immigration; extradition, and constitutional matters.
C. The Lands and Building Section
The administrative charge of the Lands and Buildings Section is the responsibility of an Assistant Colonial Secretary assisted by Assistant Secretaries and Land Assistants. The main duties of this Section are connected with development schemes, housing, resettle- ment, and town planning in the Colony.
D. The Political Section
The General Branch includes a Political Section under the direction of a Political Adviser. Seconded from the Foreign Office of the United Kingdom Government, this officer is the chief adviser of the Colonial Government on matters involving Hong Kong's political interest.
The Defence Branch
At the head of this Branch, the Defence Secretary advises on matters of colonial defence, co-ordinates the work of the local forces and acts as the main channel of communication between
60
GOVERNMENT AND ADMINISTRATION OF HONG KONG
the Colonial Government and British Forces stationed in Hong Kong. This Branch also con- cerns itself with police and security.
III. The Economic and Financial Branch
This Branch, which functions under the general direction of the Financial Secretary, is responsible for the economic and financial policy of the Government and prepares annual budget- ary estimates and the final accounts. It is the branch of the Colonial Secretariat looking after the revenue and expenditure of the Government.
The Branch has an Economic Section and a Financial Section.
The Economic Section has responsibility for matters regarding agriculture, fisheries and fores- try; exchange control; banking; import and export control; and financial aspects of public utilities.
The Financial Section exercises general financial control of the Government. Its other functions include matters of taxation and fees, financial aspects of public works; and policy matters of government purchases.
VI. The Establishment Branch
At the head of the Branch, the Establish- ment Officer has responsibility for various matters involving public servants. The Branch is divided
into three sections.
A. The Appointments and Training Section
GOVERNMENT DEPARTMENTS
61
The Section exercises functions in relation to entry qualifications, appointments, probation, classification of officers, promotion, transfer and seniority.
B.
The General Grades Section
This Section concerns itself with the grading
of government officers.
C.
The Conditions of Service Section
The Section consists of two units. The Salaries Unit has to do with salary scales and revision; departmental establishment; allowances and honoraria. The Conditions of Service Unit is responsible for matters regarding uniforms, quarters and rents; staff welfare; and anti- corruption.
The Colonial Secretariat has a library con- taining government publications and other useful reading materials relating to the Colony of Hong Kong.
The Secretariat for Chinese Affairs
More than 98 per cent of the civilian population of Hong Kong are Chinese. For obvious reasons, the general welfare of the Chinese communities claims the greatest attention of the Government. During the early days of the Colony, a permanent post of Registrar General was created with a view to promoting co-operation with the Chinese population. Since
62 GOVERNMENT AND ADMINISTRATION OF HONG KONG
1912, this officer has been known as the Secre- tary for Chinese Affairs,' who is the chief adviser of the Government on questions involving Chinese law, customs or opinion.
"The
The importance attached to the Secretary for Chinese Affairs by the Colonial Administra- tion as its principal link with the Chinese com- munities may well be seen in the Governor's own words expressed in August, 1958, when he re- viewed the responsibilities of this officer. Secretary for Chinese Affairs is, except in regard to the special responsibilities of the Public Rela- tions Officer,2 the Governor's main channel of direct communication with the Chinese people in Hong Kong. In this capacity he is also respon- sible to Government for helping to assess trends in Chinese public opinion, for advising on Chinese customs or beliefs, and for assisting in the presentation of official policy to the Chinese public. Generally, the Secretary for Chinese Affairs should also advise on any aspect of rela- tionships between government departments and Chinese residents. For the better discharge of his responsibilities the Secretary for Chinese Affairs is required to maintain and as far as may be practicable improve his relationships and direct
1 The present Registrar General is a separate office.
2 This officer is now known as the Director of Information
Services.
GOVERNMENT DEPARTMENTS
63
contacts with lawful Chinese societies and tradi- tional organization in Hong Kong".1
In brief, the chief responsibilities of the Secretary for Chinese Affairs are to act as a bridge between the Government and the Chinese population of Hong Kong and to perform general executive functions, apart from administering his Secretariat as a government department.
The Secretary for Chinese Affairs is one of the most senior officers of the Colonial Govern- ment, and has the right of direct access to the Governor. The Secretary for Chinese Affairs is an ex officio member of the Executive Council, the Legislative Council, and the Urban Council. He is also the ex officio chairman or president of a number of official committees and boards including the Aberdeen Trade School Executive Committee, the Board of Licensing Justices, the Chinese Temples Committee, the Grantham Scholarship Fund Committee, the Po Leung Kuk Board of Directors and the Tung Wah Hospitals Advisory Board. Most of these bodies are con- cerned with Chinese interests and needs.
The General Orders describe the Secretary for Chinese Affairs as the medium of communica- tion between the Hong Kong Government and the Chinese population of the Colony. In other
1 Departmental Report 1958-59, Secretariat for Chinese Affairs.
I
64 GOVERNMENT AND ADMINISTRATION OF HONG KONG
words, all communications of a general charac- ter for and from Chinese individuals and bodies should be addressed to the Secretary for Chinese Affairs and forwarded by him to the Government, which in return replies through him.1 This does not, however, mean to forbid other channels of communication through other government depart- ments on matters falling within their respective provinces. On the contrary, Chinese organiza- tions and societies are constantly encouraged to make direct contacts with government depart- ments other than the Secretariat for Chinese Affairs on such problems as education, health, land and social welfare. Contacts of this kind are in fact being made in increasing numbers although the Secretariat for Chinese Affairs con- tinues to be regarded by Chinese people in Hong Kong as the department to which they habitually bring grievances by way of appeal when their interests are affected by policies of the Govern- ment or any of its departments.
Before the Pacific War, many of the con- tacts of the Secretary for Chinese Affairs with the Chinese people of Hong Kong were made on a personal basis. This practice has no longer been found effective in recent years because of the rapid increase in the size of the Chinese
1 The General Orders, second edition, 1954, Vol. II, Article
2530.
GOVERNMENT DEPARTMENTS
65
population, in the number of their organizations and of the complexity of present-day administra- tion within the Secretariat itself. More than ever before, local leaders of Chinese organizations are playing an important role as bridge builders between the Secretary for Chinese Affairs and the Chinese communities. Such contacts are somehow less direct but much wider in scale than the pre-war pattern. Among the Chinese or- ganizations and societies with which the Secre- tary for Chinese Affairs maintains varying degrees of liaison the principal groups are Chinese commercial, industrial, professional and philanthropic organizations; religious bodies; clansmen's and district associations; Rural Com- mittees, women's associations and Kaifong (or neighbourhood) associations. In principle, con- tacts with local Chinese organizations are main- tained only when their leaders are interested and when such liaison does not involve the exercise of any control over non-governmental organiza- tions by the Secretary for Chinese Affairs.
The Secretary for Chinese Affairs strengthens his tie with the Chinese communities by holding informal meetings at frequent intervals with Chinese members of the Executive Council and the Legislative Council of both of which he is an ex officio member. Though less frequent- ly, meetings are also held with Chinese executive heads of the Po Leung Kuk, the Board of Direc-
66 GOVERNMENT AND ADMINISTRATION OF HONG KONG
tors of the Tung Wah Hospitals and other or- ganizations of a similar nature.
The Secretary for Chinese Affairs looks after the welfare of the Chinese living in urban districts as well as in semi-rural areas. Terri- torially, his general executive and other duties are confined to Hong Kong Island, Kowloon and New Kowloon, but his advisory service may, as needs arise, be made available in matters of direct concern to Chinese residing in any part of the Colony.
Few government departments can be com- pared with the Secretariat for Chinese Affairs in the miscellaneousness and diversity of their func- tions. There is scarcely an aspect of Chinese life in Hong Kong with which the Secretariat for Chinese Affairs is not concerned in a greater or lesser degree. The Secretary for Chinese Affairs is the licensing authority of Chinese hotels and boarding houses, acts as the registrar of Chinese newspapers and news agencies, bears responsibility for the accurate translation of official documents into Chinese, issues permits relating to Chinese celebrations, assumes author- ity for the registration of all Chinese books printed in the Colony, exercises wide statutory powers under the Protection of Women and Juveniles Ordinance, and administers the District Watch Force.
Furthermore, the Secretariat for Chinese
GOVERNMENT DEPARTMENTS
Affairs performs some quasi-judicial functions.
67
Firstly, it operates two Tenancy Inquiry Bureaux. Established in 1953, they function under the general direction of an Assistant to the Secretary for Chinese Affairs.
The prin- cipal duties of these Bureaux are to advise the members of the public on their rights and obliga- tions arising out of the Landlord and Tenant Ordinance; to enforce as far as practicable the penal sections of that Ordinance; and wherever possible to settle minor disputes between land- lords and tenants or between principal tenants and sub-tenants.
Secondly, the Secretariat for Chinese Affairs continues to play its traditional role of arbiter in helping to settle disputes between Chinese people for which the parties may not wish to go to court or to which existing law provides no satisfactory remedy.
Lastly, the Secretariat for Chinese Affairs has statutory powers under the Deportation of Aliens Ordinance to hold quasi-judicial inquiry at which the persons concerned may plead their
causes.
The Secretariat for Chinese Affairs must needs co-operate with other government depart- ments in view of the great variety of its functions. In fact some of the departments are sharing the functions of the Secretariat for Chinese Affairs.
68 GOVERNMENT AND ADMINISTRATION OF HONG KONG
Moreover, two full-fledged government depart- ments, the Labour Department and the Social Welfare Department, became independent depart- ments in 1947 and 1958 respectively by separat- ing from the Secretariat for Chinese Affairs within whose framework they had once functioned as sub-departments. In spite of all this, the Secre- tariat for Chinese Affairs continues to enjoy its prestige and position as a leading department of the Government in its relation with the Chinese communities. In certain fields of its activities such as arbitration of disputes among the Chinese, the Secretariat for Chinese Affairs is playing even a greater role, judging by the number of disputes brought to it for arbitration. With the assistance
of the Kaifong associations which have set up district conciliation panels, the Secretariat for Chinese Affairs is now able to clear away the cases more expeditiously.
VIII. THE PUBLIC SERVICE
Theoretically speaking, an officer of the Government of Hong Kong is a civil servant of the Governor, but in practice he serves the Head of the Department in which he works. The Department Head may change from time to time. However, the public servant normally continues to serve his successor, for it is of the utmost importance to ensure administrative stability by maintaining the continuity of the rank and file of the Public Service in government departments.
The public servant is employed in a civil capacity not holding a political or judicial office in the Government, and draws remuneration for his services from the annual appropriations voted by the Legislative Council.1
For the purpose of appointments, offices in the Public Service are divided into the following categories:
Class I and II
administrative and pro-
fessional officers or officers of similar
status;
1 The number of public servants under this definition exceeded 53,000 in April, 1962, compared with 17,500 in April, 1949.
70 GOVERNMENT AND ADMINISTRATION OF HONG KONG
Class III - junior officers including the
members of the Clerical Service;
Class IV
disciplined staff below the rank of Police Sub-Inspector or equivalent rank in other departments; and
Class V non-pensionable officers.
—
Government offices are either pensionable or non-pensionable.
Appointments to public offices are made by authority of the Governor, and such offices are held during his pleasure. Except for the judges who are appointed in the name of the Crown by Letters Patent, appointments to public offices are normally made either by letters signed by the Governor or written by his direction, or by a formal agreement between the officer and the Colonial Government or its appointed agent. The Governor selects qualified candidates for appointment to vacant offices in the Public Ser- vice with the advice of the Public Services Com-
mission.
The selection of a candidate for any appoint- ment the initial salary of which is not less than £1,000 a year, or such lesser sum as the Secre- tary of State for the Colonies may determine, is subject to his approval. When a vacancy occurs in such a post, the Governor may recommend a candidate to fill it, but the Secretary of State may select another candidate. If the Governor is
THE PUBLIC SERVICE
71
of the opinion that there is no suitable local candidates for any vacant office the initial salary of which is less than £1,000 a year or that it is in the public interest that persons other than local candidates be considered for such vacancy he may either request the Secretary of State for the Colonies to select a candidate or instruct the Crown Agents for Overseas Governments and Administration to recruit a suitable person.
1
The claims of meritorious officers in the Public Service generally take precedence over those of persons not already in the Service. Unless otherwise provided in the conditions of employment, the appointment of an officer not already in the Service is subject to a period of probation in accordance with regulations approv- ed by the Secretary of State for the Colonies. The Governor may terminate the officer's pro- bationary appointment, without assigning any reason, during the period of probation. At the end of that period the officer will, unless his pro- bationary appointment is terminated or extended, be confirmed in his appointment. The termina- tion or extension of the probationary appointment of an officer selected by the Secretary of State is subject to his approval.
Before 1950, government servants were, in
1 The number of expatriate members constituted 3.39% of the
Public Service in February, 1962.
72
GOVERNMENT AND ADMINISTRATION OF HONG KONG
most cases, recruited by individual departments. However, it had become increasingly clear that in the interest of both the community and the Government a special body should be created to assist the Governor in the discharge of his functions in respect of the Public Service. In a recommendation made in a White Paper (Colonial 197) it was stressed that a Public Services Commission should be established to advise the Governor on the selection and ap- pointment of candidates to offices in the Public Service with a view to ensuring increased con- fidence both in the Service and among the public. The recommendation was supported in the Salaries Commission Report in 1947, and three years later the Legislative Council passed the Public Services Commission Ordinance, which came into force on June 30, 1950.
The Public Services Commission consists of a chairman and two members appointed by the Governor. The tenure of office is three years for the chairman and two for the members. Both the chairman and the members are eligible for re-appointment.
The responsibility of the Public Services Commission is to advise the Governor on the following questions:
i. the filling of vacancies in the Public
Service;
THE PUBLIC SERVICE
73
ii. the promotion of an officer from one grade and class of the Public Service to another grade and class; iii. such representations from an officer or officers concerning conditions of service
as may be referred to it by the Gov- ernor; and
iv. any matter affecting the Public Service which may be prescribed by the regula- tions or which the Governor may refer
to the Commission.
However, the following officers, classes of office or appointments are outside the province of the Public Services Commission: i. the Governor of the Colony or any member of his personal staff; ii. any office of which the holder is ex officio a member of the Executive Council or the Legislative Council; iii. the Chief Justice; iv. Judges of the Supreme Court; v. any office or rank in the armed forces constituted by or raised under any enactment or in the police force; vi. Cadet Officers, Class I; vii. the Director of Medical and Health Services; viii. the Director of Public Works; ix. the Chairman of the Urban Council; x. the Director of Education; xi. the Director of Marine; and xii. the Director of Audit.
The Public Services Commission has a special status, which has been described as a
74 GOVERNMENT AND ADMINISTRATION OF HONG KONG
"statutory non-Government" body. The Com- mission derives its constitutional basis from a statutory law, that is, the Public Services Com- mission Ordinance, although it is not regarded as an administrative department of the Govern- ment because its functions are purely advisory. As a non-Government body the Commission enjoys a large measure of independence in the discharge of its duties. According to the Public Services Commission Ordinance, whoever influ- ences or attempts to influence the work of the Commission will be guilty of an offence whose penalty is a fine of HK$4,000 and imprisonment for two years.
Public servants in Hong Kong may be expatriate or local according to their places of recruitment. The distinction is not merely a formal one because government officers recruited outside Hong Kong are entitled to certain privi- leges which locally recruited officers do not enjoy. Much has been said for and against the main- tenance of this kind of differentiation within the Public Service. The Government, however, has found it necessary to offer more favourable conditions of service to overseas staff in order to attract them to Hong Kong and keep them in appointments for which suitable candidates are not locally available. To maintain the required
1 Hong Kong Annual Report, 1959, p. 348.
THE PUBLIC SERVICE
75
standards of the Public Service the Government is not yet able to abolish the distinction in status between expatriate and local officers until qualified candidates to government offices can all be recruited within the Colony.
As revealed by various reports of the Public Services Commission it has not always been easy to secure in Hong Kong suitable candidates for government posts requiring high qualifications partly because local training facilities are limited in scope with the result that few local candidates are well trained for senior posts.
The importance of training public servants as a means of improving the quality and efficiency of the Civil Service is recognized by most countries of the world. In Hong Kong the need for training public servants has not been over- looked. The Establishment Branch of the Colonial Secretariat completed in 1958 a survey of government servants' training, which revealed that between 1952 and 1958 sixty-eight local training schemes and 53 overseas courses of instruction had been organized. In particular the training of teachers, doctors, engineers, archi- tects and other technical and scientific officers had developed quickly.
There is no central training agency in the Colony.1 The Colonial Secretariat allocates
1 The nucleus of a Training Unit has been established within
the Colonial Secretariat.
76 GOVERNMENT AND ADMINISTRATION OF HONG KONG
between various departments such funds as are made available for training purposes, arranges overseas courses of instruction and supervises training programmes. Otherwise, training of government servants is largely the responsibility of individual departments, which organize train- ing schemes according to their specific needs and facilities.
Local schemes are generally designed to train fresh recruits and junior staff of the Public Service. The number and nature of training schemes vary from department to department, being chiefly dependent upon the policy of the department concerned and the availability of funds and facilities. Apart from individual departmental training programmes, the Colonial Secretariat organizes general schemes for the Clerical Service. For instance, a series of even- ing classes was introduced in 1953 consisting of classes in the English language, commercial bookkeeping, government accounting and office procedure. A large number of clerks attended these courses, and the result was considered satisfactory.
Government departments have not only organized local training programmes but have also, in increasing numbers, sent officers of more senior grades to attend overseas courses of in- struction. As has been seen, 53 such courses were organized between 1952 and 1958, mostly
THE PUBLIC SERVICE
77
in the United Kingdom, and 417 officers attended these courses in diverse subjects and for various durations, some lasting a few weeks and others one or even two years.
Overseas courses of instruction generally cover the fields for which training facilities are either not available or insufficient in Hong Kong. These schemes include courses in radar, law, psychological medicine, radio interference, and the like. Some other courses are designed to help senior officers of some experience to broaden their views. For instance, the Overseas Services Course B is to provide such officers with the opportunities, among other things, to criticize and clarify the experience they have gained by further study of subjects relevant to their work and to see the affairs of their territory in relation to their region, the Commonwealth, foreign colonial administration and world opinion. The course consists of a preliminary summer school followed by three terms at the University of Cambridge, London or Oxford.
Every year a number of government officers, especially of senior grades, has to be recruited outside Hong Kong because, inter alia, few trained candidates are available locally for senior offices. The Salaries Commission declared in its report in 1947 that "if the people of the Colony are to man their own services, it is a matter of first importance that they should be trained to
78 GOVERNMENT AND ADMINISTRATION OF HONG KONG
do this with sufficient competence". The Chair- man of the Public Services Commission has equally stressed the point by describing the train- ing of local officers as "absolutely essential if the dependence on overseas recruiting is to be further reduced".1 The need for local officers to acquire through training the necessary qualifications required by senior posts is obvious and should therefore be met as far as practicable.
1 Chairman's Report 1956-57, Public Services Commission.
IX. ADMINISTRATION OF THE
NEW TERRITORIES
The New Territories, comprising 3651⁄2 square miles of land adjacent to Kowloon on the mainland, was leased to the British Crown for 99 years by the Chinese Government in the Convention respecting an Extension of Hong Kong Territory signed at Peking on June 9, 1898. The Convention took effect on the first day of the following month, and on October 20 of that year an order was issued by the Queen in Council (Privy Council) declaring the newly leased territories to be part and parcel of the Colony of Hong Kong.
With the advice and consent of the Legisla- tive Council of Hong Kong the Governor was authorized to make laws for the peace, order and good government of the New Territories. Except for a number of ordinances from whose operation those territories were made exempt by a special statute,1 all laws and ordinances which were in force in the Colony on April 17, 1899, extended their application to the New Territories as from
1 Ordinance No. 10 of 1899.
80
GOVERNMENT AND ADMINISTRATION OF HONG KONG
that date and remained in effect until they were altered or repealed by legislative enactment to meet the local conditions.
The following ordinances were passed by the Legislative Council in 1899 to provide a legal basis for the early administration of the New Territories.
First, an Ordinance relating to Local Com- munities and Tribunals was enacted on April 18, 1899, which, among other things, gave the Governor the power to constitute regional divi- sions of the New Territories for the purpose of administration.1 The whole territory had 597 villages, which were divided into eight districts and 48 sub-districts in accordance as far as pos- sible with the divisions traditionally recognized by its Chinese inhabitants.
The second law, an Ordinance to provide for the Better Regulation of the New Territories dated April 18, 1899, entrusted the Governor in Council (the Executive Council) with the author- ity to make rules for the levying, the collection, and the custody of all revenues obtained from the New Territories.2
The third enactment, an Ordinance to pro- vide for the Summoning of Chinese before the
ADMINISTRATION OF THE NEW TERRITORIES
81
Registrar-General dated December 28, 1899, had as its object to secure the attendance of the Chinese inhabitants, so that the Administration might learn their views or objections regarding Government measures.1
Since the early British administration of the New Territories, a number of changes has been introduced in its government. The ultimate res- ponsibility for the administration, however, remains with the Governor, although its actual administrative duties rest with the District Com- missioner appointed by the Governor and assisted by such District Officers and other staff members as the Governor may consider necessary.
The District Administration maintains close co-operation with the Colonial Secretariat and other government departments, and in particular with the Police, the Agriculture and Forestry Department, the Co-operative Development and Fisheries Department, and the Education, Medical, Public Works, Social Welfare, Labour and Mines Departments. A District Officer is appointed specifically to assume responsibility for liaison with central government departments, and their representatives are frequently invited to attend meetings of Rural Committees to discuss matters of common interest. In the
1 Ordinance No. 11 of 1899.
2 Ordinance No. 12 of 1899.
1 Ordinance No. 40 of 1899.
82 GOVERNMENT AND ADMINISTRATION OF HONG KONG
Public Works Department, for instance, a Deputy Director has been appointed to act as the chief link between his Department and the District Administration and to advise the latter on matters of development in the New Territories.
The District Commissioner has a variety of functions to perform as the executive head of the local government. With the assistance of his staff, the Commissioner co-ordinates the New Territories administration, issues numerous permits for the purpose of revenue, acts as the licensing authority under the New Territories Ordinance, and assumes responsibility for much of the work which is normally done in the city by the Urban Council.
The New Territories is now divided into five districts: Tai Po, Yuen Long, Tsuen Wan, Sai Kung and Islands. Each district is placed under the immediate administrative charge of a District Officer. This Officer is concerned with every aspect of district life and looks after the general welfare of the inhabitants. He performs a wide range of functions in addition to his duties of general administration. The District Officer looks after Crown land and building development, registers documents and deeds relating to private land, assesses and collects stamp duty, and settles family disputes and, in some cases, even personal troubles. The New Territories has its own Resident Magistrate, who
ADMINISTRATION OF THE NEW TERRITORIES
83
is a legal adviser to its administration and who divides his time between districts.
In the execution of their duties, the District Officers have the assistance of the Rural Com- mittees, which exercise such functions as the District Officers see fit to delegate. The mem- bers of Rural Committees are elected annually under the supervision of their District Officers by an electoral college composed of the village representatives, who are themselves elected or chosen according to local clan custom on the basis of one representative for each village of from 50 to 100 inhabitants.1
In September, 1955, the District Officer at Tai Po introduced the practice of holding in- formal monthly meetings with the Chairmen of Rural Committees in his district to discuss matters affecting their general interest. Those meetings provided a convenient channel whereby the District Officer and leaders of Tai Po could exchange views regarding government policy measures. This practice was found to be so useful that it has now been followed in the other districts of the Territories.
If the establishment of British administra- tion in the New Territories had opened a new chapter in the history of the government of
1 By village in Chinese is meant an organized community
usually of the same clan.
84
GOVERNMENT AND ADMINISTRATION OF HONG KONG
Hong Kong,' the passage of the Ordinance of the Heung Yee Kuk2 lent a fresh look to the New Territories administration. The Heung Yee Kuk is, however, not a new thing for it has been in existence since 1926. It has been recognized as a valuable advisory body to the Government on New Territories affairs and a forum where lead- ers of opinion in the Territories have been able to exchange views. For the first time, however, the Heung Yee Kuk was given statutory recogni- tion and a constitution "so framed that it will as far as possible be truly representative of formed and responsible opinion in the New Territories".3
The objectives of the Heung Yee Kuk are as follows:
i.
ii.
iii.
to promote and develop mutual co- operation and understanding among the people of the New Territories;
to promote and develop co-operation and understanding between the Gov- ernment and the people of the New Territories;
to advise the Government on social and economic developments in the interests
iv.
ADMINISTRATION OF THE NEW TERRITORIES
85
of the welfare and prosperity of the people of the New Territories;
to encourage the observance of all such customs and traditional usages of the people of the New Territories as are conducive to their welfare and to the preservation of public morality; and
V. to exercise such functions as they may be invited to from time to time by the Governor.
For the purpose of furthering these objec- tives, the Heung Yee Kuk is given wide powers to appoint such staff as it may require; to set up sub-committees and delegate functions to them; and to appoint such advisers as may be approved by the District Commissioner.
Described as "the apex in the representative pyramid" in the New Territories,1 the Heung Yee Kuk has a fairly elaborate structure: one Chair- man, two Vice-Chairmen, one Full Council and one Executive Committee of the Full Council.
The Chairmen and the Vice-Chairmen of the Heung Yee Kuk are elected by the Full Council composed of ex officio councillors and special councillors. The ex officio councillors are the Chairmen and the Vice-Chairmen of
1
2
3
Collins, op. cit., p. 135.
This term may be translated as the Rural Consultative Council. The Ordinance was passed on December 9, 1959. See the Heung Yee Kuk Ordinance.
1 Hong Kong Annual Report, 1959, p. 210.
+
86
GOVERNMENT AND ADMINISTRATION OF HONG KONG
Rural Committees and Unofficial Justices of the Peace of the New Territories; the special coun- cillors, not exceeding 21 in number, are elected from among village representatives1or such other persons as may be approved by the District Commissioner. No one is eligible for election to the Full Council who is under the age of 21 years or who is disqualified under the Ordinance of the Heung Yee Kuk as, for instance, being of unsound mind or
or an undischarged bankrupt. Voting in all elections is by secret ballot. Full Council meets every six months, and also at the request of not fewer than 10 councillors or of the District Commissioner, or by order of its Executive Committee. One-third of the coun- cillors form a quorum.
The
The Executive Committee consists of ex officio members and ordinary members. The former are the Chairmen of Rural Committees and Unofficial Justices of the Peace of the New Territories; the latter, not more than 15 in number, are elected by the Full Council from among its councillors not already ex officio members of the Committee. The Executive Committee, which meets once a month, may authorize the expenditure of the funds of the Heung Yee Kuk and perform such other func-
1 The term "village representative" means a person elected or otherwise selected to represent a village with the approval of the District Commissioner.
1
ADMINISTRATION OF THE NEW TERRITORIES
87
tions as the Full Council may consider necessary to delegate for the furtherance of its objectives.
All decisions of the Full Council and of its Executive Committee are taken by a majority of votes. The Chairmen of the Full Council and of the Executive Committee have ordinary votes in common with other members and, where there is a tie, casting votes.
X. THE JUDICIARY
The practice of the English courts is follow- ed in the Colony. Such laws as existed in England when the legislature of Hong Kong was established1 have been in force in the Colony, except in so far as they were inapplicable to the local conditions or modified by laws passed by the Legislative Council.
The Supreme Court of Judicature, which was created by a legislative enactment, consists of a Chief Justice, a Senior Puisne Judge, and several Puisne Judges. All Judges of the Supreme Court are appointed by Letters Patent under the Public Seal by the Governor in accord- ance with such instructions as he may receive from the Secretary of State for the Colonies. The Judges hold office during Her Majesty's pleasure, subject to the conditions contained in any regulation made by or under the authority of the Queen for Her Majesty's Colonial Service.
No person may be appointed to be Chief Justice, or Puisne Judge or a temporary Judge
1 April 5, 1843.
THE JUDICIARY
89
unless he fulfils the following conditions: i. that he is qualified to practise as an advocate in a court in England, Scotland, Northern Ireland or some other part of the Commonwealth having unlimited jurisdiction in civil or criminal matters, and ii. that he has been qualified for not less than five years to practise as an advocate or solicitor in such a court.
The Supreme Court, which is the highest judicial authority within the Colony, has original and appellate jurisdiction and conducts proceed- ings with a jury. The Court has original jurisdiction in civil claims above the sum of HK$5,000 and in cases involving estates, appointment of trustees, and company matters. Moreover, it has original jurisdiction in criminal cases, which it hears once a month in the criminal session. The Judges of the Supreme Court also exercise jurisdiction in Probate, Divorce, Admiralty and Bankruptcy.
The Supreme Court normally holds its sit- tings in the Supreme Court Building on the Island of Hong Kong, but it may meet in such other place as the Governor may direct. Attached to the Supreme Court are a Registrar and such Deputy Registrars, bailiffs, clerks of the Court, and other officers as the Governor may deem to be necessary. The Chief Justice regulates the
distribution of business in the Court.
The Supreme Court has the following vaca-
t
90
GOVERNMENT AND ADMINISTRATION OF HONG KONG
tions: the long vacation (from April 1 until September 11); the Christmas vacation (from December 24 until the third week-day in January of the next year), and the Easter vacation (from Good Friday until Thursday in Easter Week). Except on general holidays the Supreme Court is open during vacation for the purpose of hold- ing the ordinary criminal sessions and any special criminal sessions, and also for the purpose of issuing writs. However, no pleading may be filed during vacation except, in special circum- stances, by order of a Judge.
A District Court is a court of record and has such jurisdiction as is conferred upon it by the District Court Ordinance. District Judges are appointed by instrument under the Public Seal by the Governor.
There are five District Courts in the Colony of which two sit on the Island of Hong Kong, two in Kowloon and one in the New Territories. All civil claims up to the amount of HK$5,000 are heard in the District Court, which also has a special jurisdiction in workmen's compensation.
Every proceeding in the District Court and all business arising out of such proceeding are heard and disposed of by a District Judge sitting alone. When an action commenced in a District Court involves matters beyond the jurisdiction of that court, any defendant may, within such time
THE JUDICIARY
91
as may be prescribed by the District Court Civil Procedure Rules, give notice to the District Court that he objects to the action being tried in that court, and where such notice is given, the District Judge is required to order that the action be transferred to the Supreme Court. On the other hand, the Supreme Court may, under certain circumstances, order that proceedings commenced in that court be transferred to the District Court, and consequently the District Court exercises jurisdiction and authority to continue in such proceedings. The Chief Justice may give such directions as he sees fit regarding the distribution and disposal of the business of the court, subject to any rules made under the District Court Or- dinance.
The District Court Judges have a criminal jurisdiction, which enables them to try certain cases that would otherwise have to be committed to the Supreme Court session. In addition to the powers conferred by the District Court Ordinance, a District Court Judge has all the jurisdiction and powers of a Permanent Magis- trate, but such jurisdiction and powers are exer- cised separately from his jurisdiction and powers as a Judge.
Magistracies or magistrate's courts are located on the Island of Hong Kong, in Kowloon and in the New Territories. Both the Hong Kong and Kowloon Magistracies, which hear
92 GOVERNMENT AND ADMINISTRATION OF HONG KONG
cases within their respective areas, consist of a First Magistrate and several Magistrates. The Magistracy in the New Territories has only one Magistrate, who divides his time between dis- tricts.
All Magistrates are appointed by the Governor. A distinction is made between a Permanent and a Special Magistrate. A Per- manent Magistrate exercises all the jurisdiction and powers conferred upon him by any enact- ment in force in the Colony and also such other jurisdiction and powers as may be conferred upon him from time to time. On the other hand, a Special Magistrate exercises his powers subject to the provisions of his warrant of appointment. Moreover, the power of a Special Magistrate to impose imprisonment and fine is subjected to limitations as to the maximum term or terms of imprisonment and the maximum fine.
When sitting together, any two Justices of the Peace1 may exercise all the powers and jurisdiction conferred upon a Special Magistrate by the Magistrates Ordinance, if they are willing and, in the opinion of the Governor, suitable to do so.
In the discharge of such duties, however, the Justices of the Peace have to act in accord- ance with any direction given by the Chief Justice
THE JUDICIARY
and under his general supervision.
93
Magistrates have power to hold preliminary inquiries into indictable offences. If a prima facie case is established, the accused are com- mitted for trial at the criminal sessions, which are held once a month. Under the Magistrates Ordinance, any person aggrieved in a judicial decision made by a Magistrate may appeal to a Judge of the Supreme Court who hears it. The Judge may, if he so wishes, refer the appeal, in whole or in part, to the Full Court for delibera- tion and decision. The Full Court consists of two or more Judges as the Chief Justice may direct. As a rule the decision of the Full Court
is final.1
1 The Judicial Committee of the Privy Council in the United Kingdom is the final court of appeal on certain legal issues arising in her dependent territories, including Hong Kong.
1
One of the Justices of the Peace is usually a solicitor.
1
XI. CONCLUSION
Hong Kong has witnessed considerable changes in its administration. These changes, especially rapid since the Second World War, have taken place in various directions: chiefly towards increase in government activities, enlargement of administrative organization, and expansion of the Public Service.
Constitutionally, however, no significant changes have been recorded for decades. Al- though some adjustments have been made in membership and the tenure of office in the Executive Council and the Legislative Council, yet the underlying principle remains largely the
same.
The Executive Council continues to function as an advisory body for the Governor to consult with in the performance of his duties. It includes both official and unofficial members. Generally speaking, the unofficial members play a limited role; in principle the Governor alone decides whether to consult with the Executive Council on certain matters and whether to follow its advice.
There have been no important changes in
CONCLUSION
95
the Legislative Council. Despite several in-
creases in the number of unofficial members who are appointed by the Governor, the official members of the Legislative Council continue to command a voting majority, and therefore vir- tually all decisions relating to legislation. The views of the unofficial members are not decisive on the course of legislation but are beneficial to it. The unofficial members should not be regarded as forming something of an "opposition party" but rather as being there to present unofficial views on Government-sponsored bills.
Several proposals have been made in the past by certain groups of people to introduce elective representation on the Legislative Council and to develop the Urban Council into a full Municipal Council. None of these or other proposals has ever gone beyond the paper stage, primarily because of insufficient popular support. Similar proposals may be repeated in the future, but they will probably be again of none but academic interest unless they are supported by a substantial majority of the population with a more lively awareness of local affairs.
SELECTED BIBLIOGRAPHY
General
Balfour, S. F., Hong Kong Before the British, Shanghai,
1941.
Bowen, G. F., Thirty Years of Colonial Government,
London, 1889.
Carrington, C. E., The British Overseas, Cambridge,
1950.
Clementi, C., The Future of Hong Kong, London, 1936. Collins, C., Public Administration in Hong Kong, London,
1952.
Costin, W. C., Great Britain and China 1833-1860,
London, 1937.
Davis, S. G., Hong Kong in its Geographical Setting,
London, 1949.
Des Voeux, G. W., My Colonial Service, London, 1903.
Eitel, E. J., Europe in China, London, 1895.
Endacott, G. B., A History of Hong Kong, London, 1958. Greenberg, M., British Trade and the Opening of China
1800-1842, Cambridge, 1951.
Ingrams, H., Hong Kong, London, 1952.
Jeffries, C., The Colonial Office, London, 1956.
Mills, L. A., British Rule in Eastern Asia, London, 1942. Northcote, G., Hong Kong: The Story of A Century,
London, 1941.
SELECTED BIBLIOGRAPHY
97
Norton-Kyshe, J. W., The History of the Laws and Courts
of Hong Kong, London, 1898.
Sayer, G. R., Hong Kong: Birth, Adolescence and Coming
of Age, London, 1937.
Szczepanik, E. F., Economic Growth of Hong Kong,
London, 1958.
Wood, W. A., A Brief History of Hong Kong, Hong Kong,
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Administrative Reports
Chinese Law and Custom Committee Reports
District Court Law Reports General Orders Hansard Reports
Hong Kong Annual Reports
Hong Kong Government Gazette (Weekly) Hong Kong Law Reports Laws of Hong Kong Letters Patent Ordinances
Royal Instructions Regulations Sessional Papers
!
Departmental Reports
Accountant General
Agriculture and Forestry Audit
Broadcasting
Civil Aviation
Commerce and Industry
Co-operative Development and Fisheries
Custodian of Property
District Commissioner of the New Territories Education
Fire Brigade
Government Printer
Hong Kong Government Office in London Housing Authority
Inland Revenue
Kowloon Canton Railway
Labour
Marine
Medical and Health Services
Mines
Police
Postmaster General
Prisons
Government Information Services
Public Services Commission
Public Works
Quartering Authority
Rating and Valuation
Registrar General
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1957.
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II: United Kingdom Dependencies, 1955. Economic Development in the United Kingdom Depen-
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Health in the United Kingdom Dependencies, 1955.
Industrial Development in the United Kingdom Depen-
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Acts, 1956.
The United Kingdom Dependencies 1954-1955, 1955.
99