LegCo Paper No. CB(2) 1673/96-97
(The minutes have been seen
by the Administration)
Ref : CB2/PL/SE/1
LegCo Panel on Security
Minutes of meeting
held on Monday, 16 December 1996 at 2:30 pm
in the Chamber of the Legislative Council Building
Members present :
Hon James TO Kun-sun (Chairman)
Hon Mrs Selina CHOW, OBE, JP (Deputy Chairman)
Hon CHEUNG Man-kwong
Hon Emily LAU Wai-hing
Hon Fred LI Wah-ming
Hon Howard YOUNG, JP
Hon Zachary WONG Wai-yin
Hon Andrew CHENG Kar-foo
Hon Albert HO Chun-yan
Hon IP Kwok-him
Hon LAW Chi-kwong
Hon LEE Kai-ming
Members absent :
Dr Hon Philip WONG Yu-hong
Hon CHEUNG Hon-chung
Dr Hon LAW Cheung-kwok
Hon Bruce LIU Sing-lee
Hon LO Suk-ching
Hon Margaret NG
Hon TSANG Kin-shing
Hon Lawrence YUM Sin-ling
Public Officers attending :
- Item I
- Mr B J BRESNIHAN
- Refugee Coordinator
- Item II
- Mr Raymond WONG
- Commissioner for Narcotics
- Miss Cathy CHU
- Principal Assistant Secretary for Security
- Mr Richard TANG
- Acting Chief Superintendent of Police
(Narcotics Bureau), Royal Hong Kong Police Force
- Item III(b)
- Ms Ingrid HO
- Principal Assistant Secretary for Security
- Mr Ambrose LEE Siu-kwong
- Assistant Director of Immigration
(Control and Investigation)
Attendance by invitation :
- Item III(a)
- Society for Community Organization
- Mr HO Hei-wah
- Ms SZE Lai-shan
Clerk in attendance :
- Mrs Sharon TONG
- Chief Assistant Secretary (2) 1
Staff in attendance :
- Miss Salumi CHAN
- Senior Assistant Secretary (2) 1
I. Follow-up on issues of Vietnamese migrants
[LegCo Paper No. CB(2) 690/96-97(01)]
Clearance of names
Members noted that there were 3,000 Vietnamese migrants in the territory awaiting clearance for return to Vietnam. They were gravely concerned about whether repatriation could be completed within the next 6 months before the change of sovereignty. They raised the following questions :
- What were the actions taken by the British Government to expedite the clearance process?
- Were there new measures introduced to expedite the clearance process?
- What was the lead time for clearing a name? and
- What were the ideas that the Vietnamese Government was working on in regard to non-nationals as mentioned in paragraph 5 of the paper?
2. In response, the Administration made the following points :
- The British Government was committed to resolving the Vietnamese migrants problem as soon as possible. During his visit to Vietnam at the beginning of November 1996, the British Foreign Secretary urged the Vietnamese Government to redouble its effort in expediting the clearance process. The response of the Vietnamese Government had been positive;
- A Vietnamese delegation, comprising immigration officers, were in Hong Kong interviewing cases which had yet to be cleared for return to Vietnam. It was expected that the delegation would hand down the decision at the end of the year. The Administration was confident that progress would be made with this new arrangement;
- The Vietnamese authorities had agreed to a proposal whereby Southern Vietnamese repatriated under the voluntary repatriation programme were arranged with flights direct to Ho Chi Ming City, which was a departure from the normal practice of exclusive flights to Hanoi irrespective of migrants place of origin. The Vietnamese Government had further extended the arrangement to cover Vietnamese migrants from the central part. In November, the new arrangement had encouraged many voluntary returns;
- The time required for clearance of names varied from case to case, ranging from months to years. The pace of clearance depended on the following: authenticity and completeness of the data given by the Vietnamese migrants; the speed of local authorities in verifying the data; and whether further information was required. The problem appeared to be on the matching of bio-data; and
- The Vietnamese Government had not disclosed the ideas it was working on in regard to non-nationals. Out of the 3,000 uncleared cases, about one-third were ethnic Chinese on which the problem of non-national was centred. As regards the remaining two-third, the Administration would continue securing co-operation of the Vietnamese Government to expedite the processing of uncleared cases.
Resettlement of Vietnamese refuges
3. Members were concerned about the remaining 1,300 Vietnamese refugees in Hong Kong who had yet to find resettlement in the third countries. They raised the following concerns :
- What were the resettlement opportunities of the 1,300 refugees of whom many had drug problems and had criminal records, and what was their status after 30 June 1997?
- Would Britain accept the remaining refugees in Hong Kong?
- What action had the Union Nations taken to honour its obligation to Hong Kong?
4. The Administration reassured members that the British Government was according the matter top priority and had kept China informed of the situation. It made the following comments :
- Refugees who had drug problems and committed serious crimes would have difficulty to be accepted by third countries because they could not satisfy the entry criteria. They would be treated as non-Chinese nationals under the Basic Law and had no right of obtaining permanent residency in the territory. However, it did not mean that they could not continue to reside in Hong Kong;
- It would be unrealistic to assume that the British Government would accept the remaining refugees after 30 June 1997. Since April 1994, 17 countries had been taking part in the resettlement of refugees and Britain had taken more refugees than any other countries;
- Both the Union Nations and the British Government had been seeking resettlement opportunities and appealed to the international community. The international community fully apprised of the difficulties and was aware of its moral obligation. They felt that in resolving the difficulties, reliance on large resettlement countries exclusively was inadequate. As a result, smaller countries such as Luxembourg and Spain had also undertaken to share part of the burden.
5. Members noted that about 1,000 Vietnamese had arrived in the territory so far this year. They asked whether they were asylum seekers and how these cases were handled.
6. The Administration informed members that only ten out of the 1006 new arrivals so far this years had put forward a case for refugees status. The ten cases would go through the normal screening procedure. As regards the remaining illegal immigrants, they would be repatriated as soon as their names were cleared.
7. The response of the Administration on members queries regarding the arrangement relating to new arrivals is summarized below :
- Since mid 1995, new arrivals were processed under the bilateral agreement between the Hong Kong Government and Vietnam. For example, those arriving now were not eligible for voluntary repatriation program. They would be detained in detention centres. About half of the new arrivals had now been cleared for return to Vietnam;
- The detention of new arrivals in detention centres pending repatriation was consistent with the Administrations policy and the requirements set out in the Immigration Ordinance. To change the law to detain them in prisons like other illegal immigrants would exacerbate the already over-crowded penal system; and
- During technical talks in Hanoi in October, the Vietnamese Government had undertaken to co-operate on stemming the exodus and to accelerate the pace of clearance of the new arrivals in the territory. It had issued instructions to ministries and local authorities to take measures to stem the flow of departures from Vietnam. The number of arrivals in November had dropped significantly.
Ex-China Vietnamese illegal immigrants (ECVIIs)
8. Referring to the Privy Council case in the paper, Ms Emily LAU Wai-hing asked about the action taken by the Administration towards the ECVIIs. The Administration replied that pursuant to the judgment handed down by the Privy Council, the 289 ECVIIs could not be repatriated to China. The Administration was still examining the implications of the judgment and how best the matter should be taken forward. The Administration had to take into account the consequence that any favourable arrangement to ECVIIs would lead to further exodus from China. The Administration added that the judgment was extremely complicated. The Administration was currently inundated with litigation on the Vietnamese migrant front. There were 27 cases in courts, not to mention there were last minute injunctions and applications for stay.
9. With only six months left before the change of sovereignty, members were gravely concerned about the large number of Vietnamese migrants and refugees remaining in Hong Kong. Members agreed that the matter should be followed up at a future meeting. The Chairman requested the Administration to provide the following :
- a copy of the judgment given by the Privy Council in regard to ECVIIs;
- implications of the judgment at (a) above and how the Administration would take the matter forward;
- a progress report on the repatriation of Vietnamese migrants in March 1997; and
- whether there was any legal basis for Vietnamese refugees at the First Port of Call, i.e. Hong Kong, to seek political asylum in the United Kingdom.
II. Proposed amendments to Dangerous Drugs Ordinance
[LegCo Paper No. CB(2) 690/96-96(02)]
10. Referring members to the paper, the Commissioner for Narcotics said that drug traffickers had increasingly exploited young persons in the illegal drug trade. In view of the increasing seriousness of the problem, the Administration considered it an urgent need to introduce legislation imposing heavier sentences as a deterrent.
11. In the course of deliberations, members raised the following concerns :
- whether the Administration had considered introducing a separate offence for the crime, the mechanism of which might be seen by the public as fairer in comparison with imposing severe sentences;
- for consistency in law, whether the same concept in respect of passing severe sentences for adults exploiting young persons would be extended to other illegal activities involving young persons;
- why it was necessary to empower a court, through legislative means, to pass a more severe sentence when judges at present had similar discretionary power; and
- how to prevent medical practitioners from improperly supplying dangerous drugs to young persons who in turn used them for trafficking.
12. In response, the Administration made the following points :
- Members suggestion to introduce a separate offence for the crime and the Administrations proposal of imposing harsher sentences would achieve the same effect of deterring adult drug traffickers from exploiting young persons. The latter approach was adopted because this sentencing power was similar to that provided in the Organised and Serious Crime Ordinance to which the Administration could made reference in future application.
- Under the legislative proposal, a person convicted of a specified drug offence was allowed an opportunity to object to the reception of the information on the involvement of minors in the commission of the offence. The information to be furnished to the court would be served on the defence in advance so that the defence would be able to meet the material and address the court. It was a fair system without prejudicing the existing rights of the defendant to present mitigating circumstances to the court.
- The reason for putting the mechanism into statute was to convey a strong and clear message to the public and drug traffickers that the exploitation of young persons in the illegal drug trade was not accepted by the community and that it should be punished with a heavier sentence. The message was much clearer than seeking instructions from judges;
- The problem of improper supply of dangerous drugs by medical practitioners had been addressed by the Dangerous Drugs (Amendment) Regulation 1996 introduced in the last LegCo session. Under the Regulation, medical practitioners were required to enter in the Dangerous Drugs Register of the identity card number of the patient to whom dangerous drugs were supplied. This provided a more reliable means of identifying the true identity of the patient to who dangerous drugs had been supplied, so as to facilitate investigation and law enforcement actions. The maximum fine for contravening this record keeping requirement was increased from $50,000 to $450,000. The Director of Health, in accordance with the Dangerous Drugs Ordinance, could also withdraw the right of a medical practitioner to supply, manufacture and prescribe dangerous drugs on the ground of public interest. Apart from these legislative measures, the Hong Kong Medical Council had issued a set of guidelines for medical practitioners to follow on the proper prescription and dispensing of dangerous drugs. The Medical Council could also initiate disciplinary action against medical practitioners for malpractice. As regards investigation and prosecution of medical practitioners who engaged in illicit supply of dangerous drugs, the Administration agreed with members views that further ways should be looked into to strengthen the existing approach to target enforcement actions against suspected medical practitioners; and
- The proposed legislation would also apply to medical practitioners if there was evidence indicating that they were conspiring, inciting, attempting, aiding, abetting, counselling or procuring young persons the commission of a specified drug offence.
13. The Chairman remarked that members generally supported the spirit of the proposed legislation. He requested the Administration to introduce it as early as possible.
III. New policy on entry of immigrants from China
Meeting with representatives from the Society for Community Organization
[LegCo Paper No. CB(2) 714/96-97(01)]
14. Mr HO Hei-wah of the Society for Community Organisation expressed that the existing one-way permit (OWP) system, which failed to resolve the problem of split families, had given rise to social problems. After presenting the paper, he made the following suggestions :
- The Government should set up a system to provide pertinent data on the number of split families awaiting entry to Hong Kong. The information would be useful for formulating immigration policy;
- OWP system should be operated under a centralized co-ordinated body in which the Hong Kong Government should play an active role in examining and approving applications; and
- The Director of Immigration should be more lenient in exercising the discretionary power in order to avoid family tragedy that might have arisen otherwise.
15. Mr CHEUNG Man-kwong commented that discretionary power had to be exercised with great care so that it would not undermine immigration policy on one hand and create family tragedy on the other hand. It was not easy to strike a right balance between the two. In order for members to understand more about the situation, the Chairman suggested Mr HO to provide information of adverse cases to which favourable discretion was not granted.
Discussion with the Administration
[LegCo Paper Nos. CB(2) 690/96-97(03), CB(2) 690/96-97(04), CB(2) 690/96-97(05), CB(2) 690/96-97(06), CB(2) 690/96-97(07) and CB(2) 722/96-97(01)]
16. Members shared Mr HOs view that the existing OWP system had not been successful in speeding up family reunification between borders. They noted that the examination and approval of OWP were determined solely by the Chinese Government and that its quota was spread geographically across province, counties and cities. Members expressed concern about improper issuance of OWP and improper allocation of quotas that might exist in the course of application. They unanimously felt that the arrangement of receiving OWP holders from China indiscriminately and without examination would give rise to social problems. They expressed that Hong Kong should be involved in the examination and approval process and that a fair and open approval mechanism operated under a centralized body, say China or Hong Kong, should be established to facilitate rapid family reunion. They raised the following concerns :
- whether the government would consider playing a more active role in the assessment and approval of applications by Chinese residents for settlement in Hong Kong after the change of sovereignty, when relationship was enhanced;
- whether the Government would consider changing the allocation of quota by issuing OWP on the basis of family so that children and their mothers were not be separated; and
- whether the Government would check the personal particulars of OWP holders to ensure that they were entering Hong Kong for family reunion.
17. The Administration briefed members on the background on the OWP policy. Historically, China exercised exit control on mainland residents and the decision to grant exit permits rested with Chinese authorities. The eligibility criteria for applying to settle in Hong Kong were set out in published Chinese Laws which classified the following groups to be eligible for application: reunion of spouses; reunion of dependent children; reunion of dependent elderlies; descendants to receive estates of deceased; and children who had the right of abode in Hong Kong after 30 June 1997 under Article 24(2)(3) of the Basic Law (eligible children). As regarded members concerns, the Administration made the following comments :
- The Hong Kong Governments involvement went as far as discussing and agreeing with the Chinese Government on quotas and sub-quotas. It would be ideal for the Government to play an active role or a centralized co-ordinating role in the examination and approval of OWP applications. However, it should be noted that the Sino British Joint Declaration stipulated clearly that the present arrangement would continue after 30 June 1997. The change of sovereignty would have little effect on the policy;
- The Administration had put forward suggestions to the Chinese authorities from time to time regarding the criteria for the issue of OWP. For example, specific sub-quota for eligible children and sub-quota for persons separated from their spouses in Hong Kong for ten years or more were adopted at the suggestion of the Hong Kong Government. Thus it could be seen that the Hong Kong Government had progressive involvement on the matter;
- The Administration had reflected to the Chinese Government about the problem of split families and had urged that the OWP should be issued to nuclear family members to facilitate reunion in Hong Kong. The Administration had reservations to change the allocation of OWP quota solely on the basis of family unit with mothers and young children. Given the limited available places, according priority to one group would have to be at the expense of the other groups, e.g. if priority was given to families with young children in Hong Kong, wives separated from their husbands for long periods but did not have young children in Hong Kong would be disadvantaged;
- The Chinese authorities were also making effort to improve fairness of the system through the consideration of a point system. If the system was implemented, it would be a step forward in establishing a more transparent system in allocating OWP. In some cities and countries, names of successful applicants were already published so that it would be clear to other applicants who had been allocated quotas and how long had these successful applicants waited. The Administration would keep members informed of the development; and
- The Administration was to some extend, involved in the allocation of quota procedure through involvement in the verification of the status of eligible children. The Chinese authorities provided the Immigration Department with details of those applying as eligible children and those of their parents for verification. As for other categories of immigrants, the Immigration Department would check the authenticity of the permit and collect personal particulars upon their arrival. It would analyse the data to compare the numbers of entrants against the agreed quota and sub-quota. The Department would also enquire into the purpose of entry, but would not verify the claims of OWP entrants. If the Immigration Department had reason to doubt the authenticity of any permit, or believed that the OWP was improperly obtained, it would request the Chinese authorities to examine the case.
Statistics on One-way Permit
18. On the question of distribution of quota and related matters, the Administrations reply was as follows :
- Agreement was reached with Chinese authorities to increase the OWP quota to 150 per day in July 1995, of which 30 and 45 were allocated to long-separated spouses and eligible children respectively. China also agreed that 21 out of the remaining 75 places should also be allocated to eligible children, hence making a total of 66 places for these children;
- According to statistics, about 93% to 94% OWPs were issued to nuclear family members and the remaining to non-nuclear family members. The percentage of the former was on the increase; and
- The actual number of OWP holders entering Hong Kong might not be equivalent to the quota, i.e. 150 x 360 a year, because the permit had a validity for a few months. The deviation was usually a few hundred a year. From mid-1995 to mid-1996, the actual number of OWP holders entering Hong Kong fell below the quota.
Discretionary power on compassionate ground
19. Dr LAW Chi-kwong expressed that the discretionary power to allow extension of stay for two-way permit holders and illegal immigrants was hardly exercised by the Director of Immigration. He questioned the basis for exercising the power and suggested to establish a system whereby adverse cases could be investigated by Social Welfare Department for recommendation to the Director of Immigration for extension of stay on humanitarian ground. He pointed out that Hong Kong was obliged under the Convention on the Rights of the Child to facilitate family reunion.
20. The Administration responded that it was against the immigration policy of Hong Kong to grant special treatment to those who broke the law. Two-way permit holders were required by law to return to China before expiry of the permit and that illegal entry to Hong Kong was strictly prohibited. The immigration policy of Hong Kong would be in jeopardy if discretion was exercised leniently. The Director of Immigration had approved extension of stay for 74 two-way holders in the first eleven months of 1996, mainly on humanitarian ground. The Director of Immigration would take the following into consideration when exercising discretion :
- whether the case warranted special consideration; and
- whether the case would become a precedent and hence undermine the immigration policy of Hong Kong.
21. The Administration undertook to provide the following for members reference :
- profile analysis of immigrants arriving on OWP for the last five years; and
- statistics on overstay by two-way permit holders.
22. The meeting ended at 4:45 pm.
26 March 1997
Last Updated on 21 August 1998