Provisional Legislative Council

PLC Paper No. CB(1)879
(These minutes have been
seen by the Administration)

Ref : CB1/BC/4/97

Bills Committee on Protection of the Harbour (Amendment) Bill 1997
Minutes of the meeting held on Friday, 2 January 1998, at 3:30 pm in Conference Room A of the Legislative Council Building

Members present :

Dr Hon Mrs TSO WONG Man-yin (Chairman)
Hon WONG Siu-yee
Hon HO Sai-chu, JP
Hon Edward HO Sing-tin, JP
Dr Hon Raymond HO Chung-tai, JP
Prof Hon NG Ching-fai
Dr Hon David LI Kwok-po, JP
Hon Mrs Peggy LAM, JP
Hon Henry WU
Hon MA Fung-kwok
Hon MOK Ying-fan
Hon CHAN Choi-hi
Hon IP Kwok-him
Hon Ambrose LAU Hon-chuen, JP
Hon KAN Fook-yee
Dr Hon LAW Cheung-kwok
Hon CHOY So-yuk

Members absent :

Dr Hon LEONG Che-hung, JP
Hon Kennedy WONG Ying-ho

Public officers:
Item II


Mr Wilson W Y FUNG
Principal Assistant Secretary for Planning, Environment and Lands (Planning)

Miss Miranda F H NG
Senior Assistant Law Draftsman
Department of Justice

Mr Raymond T L CHIU
Assistant Director of Planning (Technical Services)
Planning Department
Clerk in attendance:
Miss Odelia LEUNG,
Chief Assistant Secretary (1)1
Staff in attendance :
Mr Jimmy MA,
Legal Adviser

Ms Connie SZE-TO
Senior Assistant Secretary (1)1
I.Election of Chairman

Proposed by Mr IP Kwok-him and seconded by Mr WONG Siu-yee, Dr TSO WONG Man-yin was elected Chairman of the Bills Committee.

II.Meeting with the Administration
(PLC Brief Ref: PELB (CR) L/M81/95 Pt 7 and Pt 8, PLC Paper Nos. LS68 and CB(1)699)

2.The Principal Assistant Secretary for Planning, Environment and Lands (Planning) (PAS/PEL(P)) explained the objects of the Protection of the Harbour (Amendment) Bill 1997 (the Bill) as follows -
  1. To narrow the definition of "reclamation" in the Protection of the Harbour Ordinance (106 of 1997) (the Ordinance) to mean only works that would turn an area of water into an area usable for dry land purposes;

  2. to delete references in the Long Title which related to those parts of the Ordinance that had not been enacted; and

  3. to add the word "central" between "the" and "harbour" in the Long Title when those words second appeared.
3.Members had no objection to the proposed amendments at para 2 (b) and (c) above. Their deliberations on the proposed amendment to the definition of "reclamation" were summarized below.

The need to revise the definition of "reclamation"

4.Some members cast doubt on the need to revise the definition of "reclamation" in the Ordinance since the original definition i.e., "any work over and upon any foreshore and sea-bed", was self-explanatory and understood by the public. They were concerned that the proposed definition would change the spirit of the Ordinance and defeat its purpose of protecting the harbour from excessive reclamation.

5.In response, PAS/PEL(P) said that the definition of "reclamation" under the Ordinance was the same as that in the Foreshore and Sea-bed (Reclamations) Ordinance (Cap. 127) (FSRO). Since the latter Ordinance had a much wider scope of application and the definition of "reclamation" therein was capable of covering works that might not be reclamation in the normal sense of the word, such as repairing cables on the sea-bed and routine maintenance of facilities within the central harbour, the definition in the FSRO was not appropriate for the purpose of the Ordinance. The Administration"s proposed definition would effectively "narrow" the existing definition and exclude non-reclamation projects. He emphasised that the Ordinance provided for a principle of "presumption against reclamation" in the central harbour but did not prohibit reclamation per se. It required that public benefit of the preservation of the central harbour be weighed against the public benefit of the reclamation project before a decision to proceed with the project was taken. To this end, the proposed definition would better reflect the spirit of the Ordinance. He assured members that the Administration was fully committed to protecting the harbour.

6.Some members were of the view that to achieve the Administration's purpose of excluding non-reclamation projects from the Ordinance, rather than providing for a revised definition, a proviso should be added to the existing definition to list out those projects. PAS/PEL(P) said that it would be difficult to compile an exhaustive list for such a purpose.

7.Responding to the Chairman, the Legal Advisor (LA) said that the term "reclamation" had not been defined in other Hong Kong laws. The reference to "reclamation" was either left to the general interpretation or given an inclusive description in other ordinances. In LA's view, any proposed definition would be fluid and could not be exhaustive. In the event of litigations, the court would take into consideration the legislative intent of the ordinance in question in interpreting the meaning of "reclamation".

The scope of the revised definition

8. Some members were concerned if the revised definition would cover such works as public dumping and construction of elevated structures on piles over sea surface. PAS/PEL(P) advised that under the revised definition, any projects which would result in formation of land from the sea-bed or foreshore for use for dry land purposes would be subject to the Ordinance. If the purpose of public dumping was to reclaim land for use for dry land purposes, the works would be caught by the definition. Whether a project to construct elevated structures on piles over the sea would be subject to the Ordinance had to be decided on a case-by-case basis, depending on the circumstances. PAS/PEL(P) clarified that the Ordinance was not intended to cover each and every type of works. Existing ordinances provided for different mechanisms for different types of works in respect of procedures for public consultation, gazettal and objection. Some members opined that while different ordinances applied to different types of works from inception to completion stages, the principle of "presumption against reclamation" was unique to the Ordinance.


9.On the rationale for including the words "or project" in the proposed definition, PAS/PEL(P) explained that it was a deliberate decision to include the words such that not only the physical reclamation works but also the planning process of the reclamation project would be subject to the "presumption against reclamation" principle of the Ordinance. The proposal was fully in accord with the spirit of the Ordinance.

10.Members in general agreed that the "presumption against reclamation" principle should apply to the formulation and planning of a project. LA commented that the drafting of the proposed definition might not achieve this purpose intended by the Administration. The Senior Assistant Law Draftsman responded that the word "project" in dictionaries meant an idea or a plan intended to be carried out in the future and this should cover the process of formulation and preparation of a project. The Administration had considered alternative words such as "undertaking" but decided not to adopt it in view of envisaged difficulties in the Chinese translation.

11.A member opined that the reference to "for dry land purposes" in the proposed definition might cause ambiguity as it connoted the meaning that there would be a works project on the reclaimed land which might not apply in each and every of the case. The inclusion of such words might invite objections from people who were not opposed to a reclamation project itself but the works project to be carried out on the reclaimed land. He also pointed out the inconsistency between the English and the Chinese versions of the proposed definition as the English version did not have the meaning of in the Chinese text. In this connection, LA advised that reclamation did not necessarily mean . The Administration noted members' concerns and undertook to review the drafting.

The role of the Town Planning Board over the control of reclamation projects

12.A member remarked that he was opposed to the Protection of the Harbour Bill when it was introduced in the former LegCo. He considered it a better arrangement to strengthen the role of the Town Planning Board (TPB) to examine reclamation projects affecting the harbour.

13.In response, PAS/PEL(P) said that normally large reclamation projects would be incorporated in draft Outline Zoning Plan (OZP) for consideration by the TPB. The Assistant Director of Planning (Technical Services) supplemented that the role of the TPB had already been strengthened in this aspect. Under the existing arrangement, any proposed reclamation projects gazetted under the FSRO would be made known to the TPB at the same time. Where necessary, the Administration would make a draft OZP for a reclamation project for consideration by the TPB. The TPB had recently reviewed a list of proposed reclamation projects with a view to advising on the need for preparation of relevant OZPs.

14.The Chairman said that since the subject fell outside the scope of the Bill, she advised interested members to pursue the issue at meetings of the Panel on Planning, Lands and Works.

Date of next meeting

15.The Chairman informed members that Society for Protection of the Harbour had requested to meet the Bills Committee on or after 26 January 1998 since its Chairman was away from Hong Kong. Members noted and agreed that the Society should be asked to provide a written submission on the Bill if its representatives were unable to attend the next meeting scheduled for Tuesday, 20 January 1998, at 10:45 am.

(Post-meeting note: On the request of the Administration and taking into account a further request made by the Society to meet the Bills Committee, the next meeting has been deferred to 10 February 1998, at 2:30 pm.)

16.The meeting ended at 4:45 pm.

Provisional Legislative Council Secretariat
4 February 1998