LegCo Paper No. CB(2)711/96-97
Ref : CB2/PL/CA

LegCo Panel on Constitutional Affairs

Minutes of the Special Meeting
held on Monday, 11 November 1996 at 10:45 a.m.
in Conference Room A of the LegCo Building

Members Present :

    Dr. Hon YEUNG Sum (Chairman of the special meeting)
    Hon SZETO Wah (Chairman of the Panel)
    Hon CHEUNG Man-kwong
    Hon LEE Wing-tat
    Hon Bruce LIU Sing-lee

Members Absent :

    Hon Ambrose LAU Hon-chuen, JP (Deputy Chairman of the Panel #
    Hon Ronald ARCULLI, OBE, JP *
    Hon Emily LAU Wai-hing *
    Hon James TO Kun-sun *
    Hon David CHU Yu-lin *
    Hon IP Kwok-him *

Member attending :

    Hon Howard YOUNG

Clerk in attendance :

Mrs Betty LEUNG
Chief Assistant Secretary (2)3

Staff in attendance :

Mr Jimmy MA
Legal Adviser
Mr LAW Kam-sang
Deputy Secretary General
Miss Erin TSANG
Senior Assistant Secretary (2)7

Discussion on Member’s Bill : "Prevention of corrupt and illegal practices at the election of the first Chief Executive of Hong Kong Special Administrative Region"

I. Election of chairman

Since Mr SZETO Wah, chairman of the LegCo Panel, had to take members through the Bill and Mr Ambrose LAU, deputy chairman, was out of town, members present elected Dr YEUNG Sum to be the chairman of the special meeting.

II. Presentation of the Bill

2. Mr SZETO Wah briefed the meeting on the Bill (issued to members vide LegCo Paper No. CB(2) 372/96-97). The Bill, substantially modelled on the Corrupt and Illegal Practices Ordinance, was to provide for the prevention of corrupt and illegal practices that might occur in the election of the first Chief Executive(CE) of the Hong Kong Special Administrative Region (SAR). If enacted, it would be enforceable even though the election was organised by China, because the election, according to the Basic Law, was to be held in Hong Kong. The Legal Department had confirmed that the Bill, if enacted, would be enforceable in Hong Kong. Irregularities observed could be reported to the Police or the Independent Commission Against Corruption for investigation and it would be for the courts to adjudicate. Mr SZETO Wah hoped that the Bill could be enacted before the election of the first CE to be held on 11 December 1996, in order to serve its purpose of regulating the election proceedings.

III. Discussion on the Bill

3. In response to Mr Bruce LIU, Legal Adviser explained that the local legislature, which meant the Governor acting by and with the advice and consent of the LegCo, could make laws that had sufficient nexus with the peace, order and good government of Hong Kong. Unless exemptions were provided for, the local legislation should apply to all persons and activities within the territory. However, there might be difficulties to enforce the relevant laws if the activities in question took place outside the territory. The latest position relating to Mr SZETO Wah’s Bill was that the Law Draftsman had issued a certificate stating that the Bill conformed to the requirements of the Standing Orders of the LegCo and the general form of Hong Kong legislation.

4. Mr CHEUNG Man-kwong said that the Prevention of Bribery Ordinance (PBO) provided that any civil servant who, without the Governor’s general or specific permission, solicited or accepted any advantage, would be guilty of an offence. Since some Selection Committee members were civil servants, he asked whether the PBO would apply to them as Selection Committee members. Legal Adviser said that section 3 of the PBO had a broad coverage and was not specific that a civil servant had to solicit or accept advantage in the capacity of a civil servant before he/she could be found guilty. However, it would have to depend on the actual circumstances in order to determine whether the said provision could apply.

5. In reply to Mr LEE Wing-tat, Legal Adviser referred to section 4 of the PBO as an example and said that local legislation could apply to activities which took place outside Hong Kong. LegCo members should take into account whether a bill was for the peace, order and good government of Hong Kong whether considering its passage. According to a Privy Council decision, legislative competence of a subordinate legislature was a justiciable issue.

6. Mr Bruce LIU noted that some provisions in the Bill, such as that on publishing of a false statement on the withdrawal of a person’s candidature, would clearly take retrospective effect. He sought Legal Adviser’s view as to whether all the provisions in the Bill could be interpreted as having retrospective effect. Legal Adviser said that unless it was clearly stipulated, the provisions would not be taken as having retrospective effect. Yet, he informed members that some provisions would cover activities that had happened before the election.

7. Mr Bruce LIU was concerned whether the Bill could be enacted in time for the election of the CE in December. The Deputy Secretary General, upon the chairman’ invitation, described the procedure for processing the Bill and said that the President of the LegCo was considering whether the Bill would have any "charging effect" on public revenue. In response to the chairman, the Deputy Secretary General clarified that if the President advised that the Bill had "charging effect" on public revenue, Mr SZETO Wah could still introduce the Bill to the LegCo after he had obtained a certificate signed by the Chief Secretary, stating that the Governor’s express authorisation or permission would be signified at the second reading.

8. In reply to Mr Howard YOUNG, the Deputy Secretary General said that all LegCo Members except the President could propose amendments to any bills. It was for the House Committee to decide whether it was necessary to set up a Bills Committee to examine the general merits, principles and detailed provisions of the bill. As to whether Committee Stage amendments covering the election to the Provisional Legislature could be moved to the Bill, Legal Adviser drew members’ attention to the requirement that all amendments to a bill must be within the scope of the Bill and be relevant to its subject matter and to the subject matter of the clause to which it related. He pointed out that since the preamble of the Bill had specifically spelt out that the Bill was to cover the election of the first CE of the Hong Kong SAR, it would be difficult for members to amend the Bill to include the election to the Provisional Legislature. The chairman then thanked Legal Adviser and the Deputy Secretary General for their advice.

9. There being no other business, the meeting ended at 11:45 a.m.

LegCo Secretariat
13 November 1996

* -- Other Commitments
# -- Out of Town

Last Updated on 13 August 1998