PLC Paper No. CB(2) 1417Chief Assistant Secretary (2)4
(These minutes have been
seen by the Administration)
Staff in attendance :
- Mr Jimmy MA
- Legal Adviser
- Mr Stephen LAM
- Assistant Legal Adviser 4
- Ms Joanne MAK
- Senior Assistant Secretary (2)4
I. Election of Chairman
Mr Kennedy WONG Ying-ho was elected Chairman of the Bills Committee.
II. Meeting with representatives of the Administration
( PLC Papers Nos. CB(2) 1207 (01), (02) and 1229 (01) )
Briefing by the Administration
2. The Deputy Director of Administration (DD(A)) briefed members that the Bill sought to make adaptations to the provisions with regard to the construction, application and interpretation of laws, in particular by amending the Interpretation and General Clauses Ordinance (Cap 1) (the Ordinance). The purpose of adapting these provisions was to ensure conformity with the Basic Law of the Hong Kong Special Administrative Region (HKSAR) of the People's Republic of China (PRC) and with the status of Hong Kong as a Special Administrative Region of PRC. He said that the Ordinance was one of the laws previously in force in Hong Kong which had been adopted as a law of HKSAR. However, it contained a number of provisions which required adaptation. He pointed out that adaptation of these provisions would assist in the rest of the adaptation of laws programme and remove uncertainties which might arise in interpreting laws notwithstanding the Hong Kong Reunification Ordinance (110 of 1997).
3. DD(A) said that the principal adaptation matters to be dealt with by the Bill were as follows -
DD(A) said that the Bill mainly involved technical amendments and it had no implication at policy level.
- The amendments to be made by the Bill would have retrospective effect to cover the interim period between 1 July 1997 and the Bill's enactment. The reason for this was to ensure consistency of interpretation of all laws on and after 1 July. The retrospectivity would not apply to criminality.
- The Bill sought to remove outdated and colonial terminology from the provisions and replace them by alternative expressions bearing almost the same meaning.
- The Bill sought to stipulate that any references to Government property in various Ordinances should be construed in accordance with Article 7 of the Basic Law.
- Article 17 of the Basic Law provided that the Standing Committee of the National People's Congress might, if two conditions were satisfied, return any law enacted by the legislature of HKSAR. Any law so returned was immediately invalidated. The Bill sought to stipulate that the Chief Executive should as soon as possible notify such invalidation by notice in the Gazette and the invalidation should have the same legal effect as a repeal.
- Article 160 of the Basic Law provided that an Ordinance would not be adopted or would cease to have force if it was found inconsistent with the Basic Law. The Bill sought to stipulate that any such Ordinance would be deemed as repealed.
- The Bill sought to replace the reference to "the Crown" with "the State" in the context that legislation which was expressed to be binding on the "Crown" was to be construed as binding on the "State". The presumption that, in the absence of express words or necessary implication, Ordinances did not bind the "Crown" was to be adapted by replacing the "Crown" by the "State". The term "State" was defined to correspond to what was previously covered by the "Crown". The effect was to reflect the reunification, and to maintain the legal position as it was immediately before, and after, the reunification.
- The Bill sought to define the boundaries of HKSAR by reference to the Order of the State Council of the People's Republic of China No. 221 dated 1 July 1997.
Points highlighted by the Legal Adviser (LA)
|4. LA pointed out that the Bill was only part of the adaptation of laws programme and it did not mean to resolve all problems relating to law adaptation. He said that outstanding issues on the subject of adaptation could be further dealt with in the next session so long as they would not cause substantive legal problems. In particular, he suggested members to examine the new and revised definition of "State" set out in clause 4(b) and decide whether it was acceptable to the legislature. For the rest of the Bill, LA said that the amendments to be made were of a rather technical nature. Members agreed that LA should sort out with the Administration any problems related to the technical amendments to be made by the Bill, and to report to the Bills Committee afterwards.
5. DD(A) agreed with LA that the adaptation of laws programme would be a long process and pointed out that some Adaptation Bills would be introduced in the next session. He explained that the present Bill was essential and therefore had to be submitted early for scrutiny by the Provisional Legislative Council.
6. DD(A) said that "Crown" was a term based on common law. It had no statutory definition but in his understanding, "Crown" referred to the Queen acting in an executive capacity. This in effect meant the British Government, the Hong Kong Government, excluded the Judiciary and the legislature, but included the British armed forces. Regional organisations engaged in commercial activities did not form part of "the Crown". Based on this understanding, the term "State" had been defined to correspond to what was previously covered by "the Crown". The effect was to reflect reunification. DD(A) said that "the Crown" referred to the UK Government which was previously the sovereign state of Hong Kong, as well as the Hong Kong Government. In the same way, the definition of "State" was made to include the Central People's Government (CPG) of PRC, which was now the sovereign state of Hong Kong, the executive government of HKSAR together with certain subordinate organs of the Central Authorities of PRC in HKSAR.
7. The Deputy Law Officer (DLO) said that the Administration had studied the Chinese Constitution and English law in a bid to find a definition as close as possible to the definition of "Crown". For example, it was noted that nationalized industries and statutory bodies with commercial functions in the United Kingdom (UK) as a general rule were not regarded as part of "the Crown" unless there was a specific express provision to that effect. Therefore, the Administration had introduced a similar restriction in the definition of "State". DLO said that "the Crown" itself was a strange concept which was regarded as a single indivisible entity throughout the Commonwealth; but there was no such equivalent entity in the PRC Constitution. Therefore, the Administration had to adopt a functional approach and set out only the definition in paragraph (c) for subordinate organs of the Central Authorities.
8. Mr IP Kwok-him referred to paragraph (c) and enquired whether agencies like the Xinhua News Agency, Office of the Commissioner of the Ministry of Foreign Affairs of PRC in HKSAR and the Garrison fell within the definition of "State". In reply, DD(A) explained that papagraph (c) did not mean to set out an exhaustive list of these agencies. Instead, it set out only the definition which included subordinate organs only if they exercised any of those functions as set out in paragraph (b) on behalf of the Central Authorities and did not exercise commercial functions, and only when acting within the scope of the delegated authority, and the delegated functions of the subordinate organ concerned. DD(A) confirmed that Office of the Commissioner of the Ministry of Foreign Affairs of PRC in HKSAR was a subordinate organ as defined in paragraph (c)(i). He added that a subordinate organ should be able to prove that that it had the delegated authority and was exercising the delegated functions with the support of written documents and/or official statements.
9. As regards the Xinhua News Agency, DLO said that as it was established by the State Council, it was a subordinate organ. The rest would depend on what the official functions were and in any particular case, whether or not a particular organ was exercising those official functions. He said that the legal status and functions of a particular body being exercised at the relevant time would depend upon the facts established in Court. However, Mr IP Kwok-him expressed doubt as to whether or not the legal status and functions of a particular organ should be determined by the Court. DD(A) replied that disputes over the interpretation of laws were properly judged by the Court.
10. Mrs Sophie LEUNG considered that the judicial system of Hong Kong was different before 1 July 1997 under which Privy Council was the final court of appeal for Hong Kong and there was a distinctive role played by "the Crown" then. She had doubt as to whether or not it was appropriate now to correlate the definition of "State" with that of "the Crown". In reply, DD(A) clarified that the definition of "the Crown" under discussion did not involve the Judiciary as "the Crown" only referred to the executive government. He said that the Administration considered that the proposed term "State" and its definition were appropriate and were in conformity with the Basic Law and the new constitutional status conferred on Hong Kong. Mrs LEUNG requested the Administration to provide concrete examples to illustrate the application of the definition of "State" in the law.
11. Mr Bruce LIU enquired whether the Administration considered that the definition of "State" was in order in the light of the definition of "the Crown" given by an academic as detailed in paragraph 6 of the report provided by the Legal Services Division. He also enquired under what circumstances subordinate organs like the Xinhua News Agency were not bound by Hong Kong laws. For example, he seemed to remember that the Personal Data (Privacy) Ordinance contained an express provision that it was binding on the Crown. He enquired whether this particular Ordinance was binding on the Xinhua News Agency after the proposed substitution of "the Crown" by "the State" in the context discussed. In response, DD(A) explained that any subordinate organs within the meaning of "State" would be bound by ordinances where express provisions were made to provide that the ordinances were binding on "the State". He said that the legal position of section 66 of Cap 1 remained intact before and after 1 July 1997 except that the reference of "the Crown" would be changed to "the State". He reiterated that if an ordinance provided that it bound "the Crown", the effect of the Bill was that the ordinance now bound the relevant PRC organs.
12. Mr Bruce LIU further enquired whether there were situations in which even if an ordinance stated that "the State was bound", the activities of the State organs in Hong Kong would still fall outside the ordinance. DLO replied that the answer was affirmative in so far as the legislative competence of Hong Kong was limited under the Basic Law such as in defence and foreign affairs. So if the Hong Kong SAR legislature purported to legislate for the defence actions of the Garrison, for example, it might be outside this competence. However, he said that this was unlikely as all legislation would be prepared in the light of the Basic Law and the competence of the legislature. Apart from that, he did not see any reason why State organs could not be bound by an express provision to that effect.
13. Mr Bruce LIU doubted whether or not it was appropriate that the "State" meant both PRC and the Government of HKSAR (HKSARG) as the two were very different entities. He asked whether the Administration would consider separating it into "State" and "HKSARG" and listing the respective term in provisions where appropriate. In response, DD(A) explained that as HKSARG was an integral part of PRC, he did not see the need to separate it into "State" and "HKSARG". He considered that the most important thing was to set out clearly the definition of the term "State" and this had been done in clause 4(b). DLO added that this definition had to be read in the context in which it was going to be used in relation to the binding effect of ordinances and in that respect there would be no difference between the HKSARG and the Central Authorities. The expression "State" could appropriately cover both entities. There might be another situation in which it would be inappropriate to use that definition and in which case the Draftsman could adopt a different definition. However, for the purposes of this adaptation exercise, he considered that this definition was the best one the Administration could come up with.
14. The Chairman enquired whether the Administration had consulted the Central Authorities as regards the practicability of exercising binding effect of Hong Kong ordinances on State organs. DLO said that there was a general principle that ordinances enacted in Hong Kong did not have application outside the area of Hong Kong. The provisions of this Ordinance, for all practical purposes, were dealing with acts which took place in Hong Kong. Thus in so far as an ordinance might say that "the State" was bound, it really meant "the State" in so far as it carried out acts in Hong Kong was bound. In the same way that before the reunification, if an ordinance stipulated that "the Crown was bound", the clause did not mean that it was purporting to bind the British Government in UK. It only referred to activities which took place in Hong Kong within the jurisdiction of the Hong Kong Courts.
15. Mr IP Kwok-him requested the Administration to provide examples of ordinances which bound "the Crown". DLO referred to the laws relating to the Courts in Hong Kong which provided that "the Crown" was bound by the legislation. It meant that the Court as a general rule could make the same orders in relation to "the Crown" as it could apply to individual. So it could make orders for "the Crown" to do something, to pay money and so on. DLO quoted that pollution laws and the Bill of Rights which also bound the Crown so that any Crown activities in Hong Kong were also subject to these laws.
16. Mr IP Kwok-him said that in Chinese, was very different from . He said that covered a broader meaning which could include the Central Authorities, HKSAR, government departments and so on. However, could not mean HKSAR or a government department and was more superior in status. He expressed preference for the use of
which was more appropriate to be used than
in the context under discussion. He also considered that was not a colonial term. Mr Bruce LIU agreed that
was not a colonial terminology, but it was not the case for "the Crown" which implied the Queen.
17. DLO said that he understood that members' comments were addressed not so much to the content of the definition but the use of the word "State" to sum up the concept. He explained that in English, "State" sometimes meant "Country" and in the context under discussion, it meant the executive organs which had the sovereign power over Hong Kong. The word "Crown" summed up the concept of sovereignty. He reiterated that "the Crown" had sovereignty over UK and thus it was appropriate to use the term "State" which carried the same idea of the Sovereign State of the PRC and HKSARG as part of PRC or part of the State.
18. DLO said that the meaning of "the Crown" was a very complex one at law. Literally, it meant what sovereign wore on the head. Over the years, "Crown" had been used metaphorically to convey the much broader meaning of the executive government and that was of course a very specialized and legal use of the word. Since there was no equivalent institution in the PRC, it would be most unlikely that there would be a concept in the Chinese language which in one or two words could encapsulate what "the Crown" meant.
19. In response to Mr Bruce LIU's enquiry, DD(A) said that Offices of Mainland provinces/cities in Hong Kong did not fall within the meaning of "State".
|20. LA invited members' attention to the letter tabled which was provided by the Administration setting out some examples of "State". He requested the Administration to provide additional information on the following -
21. In response to (a), DD(A) supplemented that he understood at this point of time that the Central Authorities included the Central People's Govenment, State Council and Central Military Commission of PRC.
- more examples of subordinate organs included under the Central Authorities of PRC; and
- whether the Administration would consider establishing a certification system in determining whether an organization was exercising the administrative functions within the meaning of the Central Authorities.
Consultation with the Bar Association and Law Society
22. In response to the Chairman's enquiries, DD(A) said that the Hong Kong Bar Association and the Law Society of Hong Kong had been consulted on an earlier draft of the Bill, in which it was proposed to substitute "the Crown" by "HKSARG". He said that no comment regarding the replacement of "the Crown" by "HKSARG" had been received. The Bar Association had nonetheless commented that it was time for consideration to be taken as to the reversal of the presumption in section 66. The Administration had subsequently come to the view that replacing "the Crown" by "HKSARG" would not reflect reunification. The Administration had not consulted the Bar Association and the Law Society again on the replacement term.
|23. Members generally considered that the Administration should inform the Law Society and the Bar Association of this proposed replacement of "the Crown" by "the State" in the context discussed above. In addition, Mr Bruce LIU suggested inviting academics specializing in Chinese Law to attend the next meeting and to give their views. However, Mr WONG Siu-yee considered the time constraint precluded further consultation on the matter. Moreover, he did not see that the replacement of "the Crown" by "the State" as defined in the Bill would cause any problems in application. DD(A) said that the Administration did not intend to consult the Bar Association and Law Society again on this proposed amendment. However, he agreed to consider further the term "State" in the light of the comments made by members.
|24. As members had no other specific comments on the definition of "State" in clause 4(b) but were more concerned about appropriateness of the term "State", members agreed not to consult the Law Society and Bar Association on clause 4(b) and leave it to the Administration to review the term "State". Mr Bruce LIU also withdrew his request for inviting academics to attend the next meeting to give their opinions. At the Chairman's enquiry, DD(A) said that he would revert to the Bills Committee in the middle of next week.
Clause 4(b) - "Crown lease"
25. In response to Mr Bruce LIU's enquiry, DLO said that the concept of "Crown lease" was retained in the Bill because "Crown lease" would continue in existence for many years to come. He said that in future any lease of land granted by or on behalf of the Government would be called a "Government lease" under the Bill, but the definition of "Government lease" would include "Crown lease".
Clause 4(b) - "Financial Secretary"
26. DLO explained that the existing definition of the "Financial Secretary" also meant the Financial Secretary of Hong Kong and the Secretary for the Treasury. Therefore, the only change proposed to be made to the definition was changing "Hong Kong" into "HKSAR". LA supplemented that the definition of Financial Secretary previously meant the Financial Secretary of Hong Kong and the Deputy Financial Secretary. It was revised in the early 90s and Deputy Financial Secretary had since been changed to be the Secretary for the Treasury.
Clause 24 - Saving of rights
27. DD(A) said that the Bar Association had commented that it was time for consideration to be taken as to the reversal of the presumption in section 66 so that an Ordinance would be binding on the Government if there was not an express provision in the Ordinance to the contrary. DD(A) said that the Administration did not take on board this comment as it would involve making substantive change to the law and would be a matter of law reform. This was not the purpose of this adaptation exercise.
Chinese expression of "Central Authorities"
|28. Mr IP Kwok-him requested the Administration to review the term
as he noted that and
were more commonly used in the official documents of CPG. DD(A) explained that would be mistaken as "CPG"in English. However, he noted that "Central Authorities" was rendered as in the Basic Law. The Senior Assistant Solicitor General supplemented that from the drafting point of view, it was considered that was a more appropriate term in the context of the Chinese text in respect of the "Central Authorities". Mr IP considered that was more appropriate as it was commonly used in the official documents of CPG while was seldom used. In response, DD(A) agreed to give thought to this point and revert to the Bills Committee later.
29. Members agreed to conduct clause-by-clause examination of the Bill at the next meeting to be held at 9 am on 21 March 1998.
30. The meeting ended at 5:10 pm.
Provisional Legislative Council Secretariat
23 April 1998