PLC Paper No. CB(1)139
(These minutes have been seen by the Administration
and cleared with the Chairman)
Ref : CB1/BC/7/96/2

Bills Committee on
Railways Bill

Minutes of the Meeting
held on Friday, 28 February 1997,
at 8:30 am in Conference Room A
of the Legislative Council Building

Members present :

    Hon CHAN Kam-lam (Chairman)
    Hon Mrs Miriam LAU Kin-yee, OBE, JP
    Hon Zachary WONG Wai-yin
    Hon Albert HO Chun-yan
    Hon NGAN Kam-chuen

Member attending:

    Hon CHAN Wing-chan

Members absent :

    Hon LAU Wong-fat, OBE, JP
    Hon Edward S T HO, OBE, JP
    Hon Ronald ARCULLI, OBE, JP
    Hon Albert CHAN Wai-yip
    Dr Hon Samuel WONG Ping-wai, OBE, FEng, JP

Public officers attending :

Deputy Secretary for Transport
Mrs Agnes Allcock
Principal Assistant Secretary for Transport
Ms Linda SO
Principal Assistant Secretary for Transport
Mr Trevor Keen
Principal Assistant Secretary for Planning,
Environment and Lands (Lands)
Mr Roger Harding
Government Land Agent
Government Engineer/Railway Development
Mr Anthony Watson-Brown
Senior Assistant Law Draftsman
Mrs Hedy Chu
Assistant Secretary for Transport

Clerk in attendance:

Miss Odelia LEUNG,
Chief Assistant Secretary (1)1

Staff in attendance :

Mr Stephen LAM,
Assistant Legal Adviser 4
Mr Matthew LOO,
Senior Assistant Secretary (1)4 (Atg)

I Matters arising from previous meetings

(Paper No. CB(1) 800/96-97(01) -- Concerns raised by members at the meeting on 21 January 1997
Paper No. CB(1) 800/96-97(02) -- Concerns raised by members at the meeting on 24 January 1997
Paper No. CB(1)800/96-97(03) -- Summary table prepared by the Assistant Legal Adviser
Paper No. CB(1)800/96-97(04) -- Response of the Administration to CB(1) 800/96-97(01)
Paper No. CB(1)911/96-97 -- Response of the Administration to CB(1) 800/96-97(02)
Paper No. CB(1)800/96-97(05) -- Proposal from Hon Albert HO Chun-yan on the establishment of an Independent Assessment Committee)

The Chairman reported to members that the Bills Committee had received submissions from the Mass Transit Railway Corporation (MTRC), the Kowloon-Canton Railway Corporation (KCRC) and the Nomometric Design Partners (NDP). The New Territories Heung Yee Kuk (NTHYK) had indicated that they might make a submission later pending discussion with the Administration. Members agreed to invite MTRC, KCRC, NDP and NTHYK to the next meeting to present their views.

2. Some members were concerned about the lack of compensation for diminution in the value of land that was adjacent to the land to be resumed under the existing legislation and the Bill. They enquired if the owners of buildings next to railway would be entitled to any compensation. In response, the Principal Assistant Secretary for Planning, Environment and Lands (Lands) (PAS for PEL) advised that if the Building Authority (BA) imposed conditions on or required amendments to building works or plans to restrain development because of the railway scheme, the loss incurred and the costs for the additional works would be compensatible. Should the BA reject a development plan, the owners might apply for land resumption. These arrangements had adequately addressed the question of diminution in the value of land. Moreover, since railway projects were subject to environmental impact assessment, the Administration would design a railway scheme or incorporate mitigation measures to minimise the disturbances caused to the adjacent buildings. Should a scheme be considered unacceptable from the environmental point of view, it would not be allowed to proceed. Rather than diminishing the value of adjacent land, a railway scheme would normally help to raise their value due to the improvement in accessibility. The Deputy Secretary for Transport (DS for T) acknowledged members’ concerns and advised that the issue of compensation was not unique to this Bill and should be considered in the broader context. He pointed out that the proposed compensation mechanism was modelled on the Roads Ordinance which had been in operation for more than 20 years. New legislation such as the Sewage Tunnels (Statutory Easements) Ordinance, Cap. 438, and the Water Pollution Control (Sewerage) Regulation, Cap. 358 (Sub-Leg), enacted in 1993 and made in 1994 respectively, adopted the same mechanism. Notwithstanding the Administration’s explanations, some members maintained reservations about the absence of compensation for diminution in the value of land adjacent to a railway scheme.

3. At the Chairman’s invitation, Hon Albert HO Chun-yan briefed members on his proposal for setting up an independent committee for handling objections in relation to the resumption of land. He was of the view that the mechanism set out in the Bill lacked transparency, thus making it difficult to ensure that the objections were handled fairly. To address this inadequacy, he proposed to put in place an independent mechanism similar to the one suggested in the Town Planning White Bill. In essence, the proposed committee would be made up of non-official members, including members from the three-tier councils, professionals and independent members of the community who had no interests in the railway scheme. The committee might decide at its discretion to conduct public hearings for some important or representative cases. In parallel with the committee’s deliberations, the Administration might still liaise with the objectors. The entire process of deliberations was expected to be completed within one year and the results of the consideration and the committee’s recommendations would be reported to the Governor-in-Council. Mr HO emphasised that his proposal would not compromise the power of the Governor-in-Council which had a final say on the objections. Besides, the proposal would only incur insignificant costs as the allowances for the committee members would be nominal. He drew members’ attention to a similar mechanism in operation under the Immigration Tribunal and the Board of Review established under the Immigration Ordinance, Cap. 115, and the Inland Revenue Ordinance, Cap. 112, respectively.

4. In response to some members’ questions about the detailed operation of the committee, Mr HO explained that members of the proposed committee would be appointed by the Governor. Whilst the Governor-in-Council was required to take into account the advice of the committee, the decision would still rest with the Governor-in-Council which should be final. Subcommittees could be formed under the committee to deal with cases of a similar nature to expedite the process. Subcommittees could operate in parallel with the Administration’s mediation work. The committee should be empowered to deal with all kinds of objections including objections to the alignment of the proposed railway scheme. Mr HO emphasised that as compared with the existing mechanism for handling objection, his proposal was more impartial and would be so perceived by the general public. Objectors would therefore have more confidence in the proposed system as their cases would not be handled solely by Government officials.

5. Some members queried the merits and the practicalities of the proposal. They opined that given that the committee was advisory in nature and the final decision would still rest with the Governor-in-Council, the proposal would have the effect of duplicating the work undertaken by the Administration in resolving objections. They were also concerned about the resource implications because the committee would need to have many members and to work intensively in view of the anticipated large number of objections and the complicated and sensitive nature of land resumption, especially for the Western Corridor Railway (WCR) project. In response, Mr HO advised that the proposal was based on the Town Planning White Bill. It aimed at enhancing the protection of objectors’ interests. Whilst the detailed composition of the committee and the estimated manpower resources would need to be worked out, he did not envisage a large number of objections. Hon Zachary WONG Wai-yin agreed with Mr HO’s views and said that based on the information provided by the Administration on the number of objections raised to projects in the past, he did not foresee an onerous burden on the Administration in providing manpower resources for the proposed committee. He reminded members not to confuse the manpower resources required for land resumption with those for handling objections.

6. On the question of manpower resources for handling objections, DS for T and the Government Engineer/Railway Development advised that as far as the Western Corridor Railway was concerned, this was planned with reference to the Route 3 (Country Park) project. Four teams each comprising one Senior Engineer and three Engineers would be in place in 1997 for handling objections. In addition, officers from the Lands Department and the District Offices would also assist in dealing with these cases. The Administration would allocate more resources in dealing with objections whenever the situation warranted. The Administration undertook to provide detailed information on manpower resources in handling objections to the Route 3 project for members’ reference.

7. Commenting on Mr HO’s proposal, DS for T said that the Administration did not consider it necessary to establish another system to handle objections. The mechanism proposed in the Bill was modelled on the Roads Ordinance which had been tried and proven to work well for many years. PAS for PEL then briefed members on the procedures involved. Under the existing procedures, the Administration would contact the objectors to clarify their concerns. If the objections were not withdrawn, their written representations together with the details of the discussions would be submitted to the Governor-in-Council. Before submitting the relevant information to the Governor-in-Council, the Administration would contact the objectors to enquire if they had additional information to supplement. In most cases, small working groups would be formed under the Governor-in-Council to study the objections in detail. Objectors who felt aggrieved by the Governor-in-Council’s decision might apply to the Lands Tribunal for adjudication if the objections related to compensation. In any case, the decision of the Governor-in-Council would be subject to judicial review. Objectors might also seek an administrative review by lodging a complaint to the Ombudsman. Hence, both a judicial avenue and an administrative avenue for appeal were available. PAS for PEL stressed that considerable time had been spent on resolving differences with the objectors in the past and this reflected the Administration’s sincerity in dealing with objections. The fact that the Government rarely lost in judicial review indicated fairness on the part of the Administration in handling objections. The Administration was seriously concerned about the time factor if Mr HO’s proposal was adopted. The proposed mechanism in the Town Planning White Bill for handling objections was designed for certain plans and was not necessarily suitable for railway projects. As a matter of fact, the Administration had received some adverse comments on the proposed mechanism.

8. Mr HO opined that the existing judicial and administrative redress channels available to objectors were not entirely satisfactorily. The jurisdiction of the Lands Tribunal was restrictive and specific. Judicial review related to procedural matters and the merits of the case would not be considered. Complaints to the Ombudsman were post-mortem actions and could not rectify the wrongs which had been done.

9. Hon NGAN Kam-chuen opined that the issue of objections had to be considered not just from the perspective of objectors but that of the general public as well since the construction of railway would be in the public interests. In his views, the existing arrangements were adequate to address objectors’ concerns. Hon Mrs Miriam LAU Kin-yee expressed reservations about Mr HO’s proposal. She was concerned about possible delay in the construction of railway projects if public hearing on objections were to be held. Given that a railway scheme might involve both rural and urban land, there might be many objections. It would be difficult for the committee to arbitrarily decide which objections should or should not be handled by means of public hearing. The possible large number of applications for judicial review on procedural matters was also a cause for concern. Mrs LAU was of the view that the way forward should be to improve the existing mechanism for handling objections. The Administration noted members’ concern and agreed to consider how the existing mechanism could be improved. Members agreed to consider this subject again pending the Administration’s reply.

II Clause-by-clause examination of the Bill

10. Members continued with a clause-by-clause examination of the Bill.

Clause 31 No recovery of money except under this Ordinance

11. In response to a member’s enquiry, PAS for PEL clarified that all compensatible items had been listed out in the Schedule to the Bill. The Senior Assistant Law Draftsman (SALD) also advised that the wordings of the Bill in relation to compensation would be refined.

Clause 32 Compensation

12. Members had no comment on this clause.

Clause 33 Claims out of time

13. SALD clarified that the Lands Tribunal might accept claims out of time on any of the grounds specified in subclause (2). An amendment would be made to add the word "or" after subclause (2)(a) and (b). Members noted that "column 1" in subclause (2)(b) should be "column 4".

Clause 34 Claims procedure

Clause 35 Settlement after reference to Lands Tribunal

Clause 36 Jurisdiction of Lands Tribunal

Clause 37 Payment to mortgages

14. Members had no comment on these clauses.

Clause 38 Interest

15. PAS for PEL advised that the Lands Tribunal was empowered to fix the rate of interest paid on compensation at the highest justified value by referring to the rate payable during the period by members of the Hong Kong Association of Banks and to determine the period for which interest should be paid.

Clause 39 Compensation payable out of general revenue

16. In response to a member’s enquiry about the possibility of reducing the time within which compensation had to be paid to a claimant, PAS for PEL advised that three months were the maximum statutory period and the Administration would make the payment as soon as possible. Nevertheless, he undertook to relay members’ view to the Secretary for Treasury on shortening the statutory time limit. SALD added that in case the compensation was not paid within the statutory time limit, the claimant could institute legal proceedings to order the payment. However, such cases were rare as most compensation payments could be released within three months.

Clause 40 Surrender of title documents

17. Members had no comment on this clause.

Clause 41 Certain statements to be evidence

18. In response to a member, SALD advised that the acceptance of the certificate issued by the Administration as evidence of the facts would help to relieve the Secretary for Transport (S for T) from the need to appear before the court or tribunal whenever there was a case. It was a common practice adopted in legislation. Nevertheless, it was possible for a person to give evidence in rebuttal of the certificate. In these circumstances, the certificate would be escalated from the evidential to the proving level and S for T might be required to give evidence before the court. SALD considered it inadvisable to identify the evidence referred to in this clause as prima facie evidence as it might create some problems, especially in criminal cases. Should members consider it necessary, he would provide an information paper on this issue which had been prepared for another Bills Committee. He agreed to review the drafting of this clause regarding admissibility of evidence.

Clause 42 Disposal of lands and easements

Clause 43 Certain Ordinances not to apply

19. Members had no comment on these clauses.

Clause 44 Services of notices

20. On the merits of servicing notices by registered post, SALD advised that it was a common rule enshrined in other legislation to serve notices by ordinary post. PAS for PEL supplemented that notices issued under the Crown Lands Resumption Ordinance, Cap. 124, were served by ordinary post. It was the responsibility of owners to keep themselves informed of the situation of their land. Where necessary, the Administration would advertise the related information in local and overseas newspapers including those in London and Vancouver. The Administration would follow the provisions in the ordinances for the two Municipal Councils regarding the service of notices for graveyard resumption. A member opined that service of notices by ordinary post was adequate since a registered mail had to be acknowledged receipt by the addressee and it might cause delay.

21. On the reasons as to why a certificate was only required to be purportingly signed by a public officer under subclause (5), SALD explained that this arrangement was to avoid public officers from being called to prove their signatures before the court. He recognised the possibility of making fraudulent certificates but considered that there were no incentives for so doing. Moreover, certificates would be counter-checked by officers of the Legal Department at a senior rank based on the existing records before submitting to the court.

III Any other business

22. The next two meetings were scheduled for 13 and 19 March 1997 at 11:00 a.m. and 8:30 a.m. respectively.

23. The meeting ended at 10:45 a.m.

Provisional Legislative Council Secretariat
13 August 1997

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