Hong Kong Special Administrative Region Passports Bill (Minutes) 18 Jul 97

PLC Paper No. CB(2) 367
(These minutes have been seen
by the Administration)

Ref. : CB2/BC/1/97

Bills Committee on Hong Kong Special Administrative Region Passports Bill

Minutes of the meeting held on Friday, 18 July 1997 at 8:30 am in Conference Room A of the Legislative Council Building

Members present :

Hon Howard YOUNG, JP (Chairman)
Hon WONG Siu-yee
Hon Mrs Peggy LAM, JP
Hon Henry WU
Hon CHAN Yuen-han
Hon CHAN Kam-lam
Hon Mrs Miriam LAU Kin-yee, JP
Hon Ambrose LAU Hon-chuen, JP
Dr Hon TANG Siu-tong, JP

Members absent :

Hon Edward HO Sing-tin, JP
Hon Mrs Elsie TU, GBM
Dr Hon LEONG Che-hung, JP
Hon Mrs Sophie LEUNG LAU Yau-fun
Hon Andrew WONG Wang-fat, JP
Dr Hon Philip WONG Yu-hong
Hon Kennedy WONG Ying-ho
Hon Charles YEUNG Chun-kam
Hon LAU Kong-wah
Hon Timothy FOK Tsun-ting
Dr Hon LAW Cheung-kwok

Public officers attending :

Ms Ingrid HO: Principal Assistant Secretary for Secretary
Mr T K LAI: Assistant Director of Immigration
Mr T P WONG: Assistant Director of Immigration
Mr T P CHOY: Principal Immigration Officer
Mr K F CHENG: Senior Law Draftsman

Clerk in attendance :

Mrs Sharon TONG: Chief Assistant Secretary (2) 1

Staff in attendance :

Miss Connie FUNG: Assistant Legal Adviser 3
Mr Paul WOO: Senior Assistant Secretary (2) 5

I.Meeting with the Administration

(Administration's response on practices in dealing with appeal matters in relation to the issue, cancellation of British passports and the number of complaint cases made to the Ombudsman;
Administration's legal advice on Article 154 of the Basic Law;
Revised draft Committee stage amendments;
The Bill)

Outstanding issues

Appeal mechanism

Principal Assistant Secretary for Security (PAS(S)) informed members that subsequent to deliberations at the last meeting of the Bills Committee, the Administration agreed that an appeal mechanism should be provided to deal with appeals from persons aggrieved by the decisions of the Director of Immigration (the Director). Owing to the length of time required to formulate details of the proposed appeal mechanism, the Administration suggested that details of the mechanism be made by way of subsidiary legislation, after the enactment of the Bill. To address members' concerns, PAS(S) said that an enabling clause would be added to the principal legislation to specify the intention to set up an appeal mechanism. At the resumption of the Second Reading debate of the Bill, the Secretary for Security would give an undertaking that the subsidiary legislation would be laid before the legislature by the end of the year. It was intended that the proposed appeal mechanism could cover appeal matters arising from applications made between 1 July 1997 and the date when the appeal mechanism came into effect.

As regards the format of the proposed appeal mechanism, PAS(S) said that reference would be made to the existing appeal channels applicable to the issue of Documents of Identity and permanent identity cards. In respect of the former cases, appeals would be channelled to the Chief Executive in Council, while in the latter cases, appeals would be handled by the Registration Of Persons Tribunal. PAS(S) supplemented that there was no provision of any mechanism for appeal under the UK system regarding the issue of British passports. The British Nationals (Overseas) passports (BN(O) passports) were issued by the then Governor of Hong Kong in exercising the Royal Prerogative. She said that a committee had previously been set up to advise the Governor on non-statutory appeals from late applicants of BN(O) passports. However, no appeals or complaints had ever been received. PAS(S) said that the existing appeal channels had their merits and demerits and they would be separately considered in detail before a final proposal would be made.

2.On the question of refusal cases relating to the issue of BN(O) passports, the Administration replied that the majority of such cases concerned failure of the applicants to prove that they were born in Hong Kong, or provide evidence that they were the genuine holders of the birth certificates being produced. Regarding cases of judicial review, the Administration advised that there was only one case in UK, back in 1988, where the court overturned the executive's decision and the executive subsequently issued administrative guidelines to give effect to the court's ruling. In the mainland of China, a person could make representations to a higher Public Security authority against a refusal to approve an application to travel abroad. There was also no appeal mechanism to deal with refusal to issue travel documents.

3.In reply to further questions by members, PAS(S) said that urgent cases, for example cases of persons urgently in need of a travel document or applications from persons whose travel documents would expire within 12 months, would be treated with priority. The most urgent requests could be dealt with within one day. Persons lawfully residing in Hong Kong without any valid travel document and who were not eligible for a Hong Kong Special Administration Region (HKSAR) passport could apply for a Document of Identity as travel document under the Immigration Ordinance (Cap. 115).

4.The Chairman enquired whether the issue of HKSAR passports would be implemented with the same degree of flexibility and sensitivity as with the issue of BN(O) passports, so that the needs of most of the applicants could be accommodated. PAS(S) replied that in view of the straight-forward criteria laid down in the Bill, it was difficult to envisage any possibility of an eligible application being turned down. Cases of appeal or complaint should be rare. On a further question by the Chairman, PAS(S) said that except with a court order, the Director had no authority to take possession of a valid travel document for security or other reasons.

5.At members' request, the Administration undertook to consult the Panel on Security in due course when details concerning the proposed appeal mechanism were in place.	Adm

Article 154 of the Basic Law (BL)

6.On the interpretation of the wordings "in accordance with law" in Article 154 of BL, PAS(S) informed members that the Administration's legal advice was that such English expression, which also appeared in a number of other provisions in the BL, was used to render the particular activity or function to be subject to such law including the Common Law, which applied generally or specifically, and there was no obligation to enact specific legislation in that particular context. As for the issue of HKSAR passports set out in Article 154 of BL, therefore, it did not require express legislation to be enacted in the HKSAR. In contrast, there were express obligations to "prescribe by law" or to "enact law" in order to fulfil the requirements of the BL, such as in Articles 98 and 108 respectively.

7.Assistant Legal Adviser 3 said that the expression "in accordance with law" in Article 154 of BL carried a different meaning from expressions such as "enact laws on its own" in Article 23, which clearly imposed an express obligation of law-enactment by the SAR Government. She further advised that the meaning of "laws in force in the HKSAR" was given in Article 18 of BL. By virtue of Article 18, "in accordance with law" in Article 154 could be interpreted to mean "in accordance with the Basic Law". Article 154 therefore did not seem to require any enactment of domestic legislation before applications for HKSAR passports could be received and passports issued. The purpose of the Bill was to provide for matters for the better carrying out of the provision of the BL.

8.Members pointed out that in certain provisions of the BL, for example Articles 21, 110 and 154 where the English expression "in accordance with law" appeared, different expressions in Chinese such as were used respectively. On the other hand, the use of similar terminology was totally absent in some other Articles in the BL. Members were concerned that the adoption of different wordings in the BL, or the absence of such expressions, would lead to different legal implications. Citing Article 105 as an example, Mrs Miriam LAU Kin-yee opined that the present legal interpretation of "in accordance with law" might carry undesirable implications in that it could be taken to mean that acts like deprivation of a person's property could lawfully be made by the SAR Government solely on the basis of the BL, without corresponding local enactment in the HKSAR. On discussion, the meeting agreed that these issues should more appropriately be followed up by the Panel on Administration of Justice and Legal Services.

Clerk

9.On the related issue of retrospectivity of the Bill, PAS(S) said that pursuant to Article 154 of BL, there was no question as to the validity of the HKSAR passports issued after 1 July 1997 and before the enactment of the Bill. As the Bill would bring into force an appeal mechanism, the retroactive effect of the Bill would extend the right of appeal to all applicants alike, regardless of whether their applications were made before the enactment of the Bill. Mrs Miriam LAU said that she accepted the retroactive effect of the Bill on the basis of safeguarding the applicants' right of appeal.

Clause 4(2)

10.Senior Law Draftsman (SLD) advised that a technical amendment had been proposed by way of a draft Committee stage amendment (CSA) to give effect to members' view that the Director's power to issue a passport which was valid for a period other than that stated in subsection (1) should only be exercised under justifiable circumstances. The proposed CSA was accepted by the Bills Committee.

Clause 8

11.Mrs Miriam LAU Kin-yee said that as the additional fee under clause 8 would only be imposed for passports collected outside Hong Kong, the wordings "at the place where he makes the application or" in the proposed new clause 8(2) in the draft CSA were redundant and could be deleted. The Administration agreed to her suggestion and undertook to further revise the drafting.	Adm

12.In reply to members' questions, the Administration confirmed that a person could make an application in Hong Kong and choose to collect the passport at a place outside Hong Kong and accordingly the applicant would have to pay an additional fee to cover the necessary expenses for delivering the passport to that place. To reflect more fully the operation of clause 8, the Administration agreed to propose a draft CSA to change the heading of clause 8 to "Application or collection of passports outside Hong Kong".

Adm

Clause 9(1)

13.SLD explained that a technical amendment to this subclause had been proposed to provide that the Director might, subject to being satisfied on reasonable grounds that the situations cited in the subclause existed, cancel a passport and take possession thereof. The proposed CSA was accepted.

Clause-by-clause examination of the Bill

Clause 5(5)

14.In response to Mr CHAN Kam-lam's suggestion, the Administration undertook to revise the drafting of the Chinese version of clause 5(5) for clarity.	Adm

Clause 9

15.PAS(S) confirmed that the proposed appeal mechanism would cover all appeal matters arising from the decisions made by the Director in exercising the discretionary powers provided under the Ordinance, including decisions to refuse issue of passports and cancellation of passports. A person whose passport had been cancelled could not continue to use it during the appeal process. Yet under normal circumstances the person could apply for a travel document such as a Document of Identity if he was not in possession of other valid travel documents.

New clause 11A under the heading "Consequential Amendments"

16.Members noted the proposed amendment in the definition of "HKSAR passport" in section 2(1) of the Immigration Ordinance (Cap. 115).

Schedule

17.In reply to Mrs Miriam LAU Kin-yee's enquiry, PAS(S) said that the production costs of all HKSAR passports were the same, regardless of the validity periods. A lower fee would not be charged for passports which were valid for a period of less than five years

II.Legislative timetable

18.The Chairman advised that consultation with the House Committee would take place at the House Committee meeting in the same afternoon. The Bills Committee agreed to the Administration's proposal to resume the Second Reading debate of the Bill on 23 July 1997.

III.Close of meeting

19.There being no other business, the meeting closed at 10:30 am.

Provisional Legislative Council Secretariat
18 September 1997