Provisional Legislative Council
PLC Paper No. CB(2) 1422
(These minutes have been
seen by the Administration)
Bills Committee on
Adaptation of Laws (Nationality
Related Matters) Bill
Minutes of the held on Monday, 16 March 1998 at 10:45 am in Conference Room B of the Legislative Council Building
Members present :
Hon Ambrose LAU Hon-chuen, JP (Chairman)
Hon Henry WU
Dr Hon LEONG Che-hung, JP
Hon Kennedy WONG Ying-ho
Hon Howard YOUNG, JP
Hon IP Kwok-him
Member absent :
Public Officers attending :
|Hon MA Fung-kwok||]
|Hon CHENG Kai-nam|| ] other commitments
|Dr Hon Philip WONG Yu-hong||]
|Hon YEUNG Yiu-chung||]
- Mr Raymond FAN
- Principal Assistant Secretary (Security)
- Mr Gilbert MO
- Deputy Law Draftsman
- Mr T P WONG
- Assistant Director, Immigration
- Mr K H YIM
- Principal Immigration Officer
Clerk in attendance:
- Mrs Sharon TONG
- Chief Assistant Secretary (2) 1
Staff in attendance :
- Mr Jimmy MA
- Legal Adviser
- Mr Paul WOO
- Senior Assistant Secretary (2) 5
I.Election of Chairman
1. Mr Ambrose LAU Hon-chuen was elected Chairman of the Bills Committee.
II.Meeting with the Administration
(Legislative Council Brief issued by the Security Bureau;
PLC Paper No. LS 109;
The Bill; and
PLC Paper No. CB(2) 1237(01) - Draft Committee stage amendments tabled by the Administration)
2. Principal Assistant Secretary (Security) (PAS(S)) briefed members on the Adaptation of Laws (Nationality Related Matters) Bill (the Bill). He said that the Bill provided for the adaptation of the numerous references to "British national", "British citizen", "Commonwealth citizen" and similar expressions in the laws of Hong Kong which had not been dealt with in the Hong Kong Reunification Ordinance, to bring them into conformity with the Basic Law and the status of Hong Kong as a Special Administrative Region of the Peoples Republic of China (HKSAR). It also made supplementary provisions for right to land in HKSAR enjoyed by former permanent residents of Hong Kong (former HKPRs).
3. Substantive amendments were contained in the two Schedules to the Bill. Schedule 1 contained the proposed amendments to adapt references to "British citizenship" and "Commonwealth citizenship" and similar expressions which appeared in 16 Ordinances. The majority of these references would be replaced by "permanent resident of the Hong Kong Special Administrative Region" or "Chinese national". Separately, Schedule 2 contained the proposed amendments to the Immigration Ordinance (IO). Under section 7A of the Ordinance, a person who had the right of abode in Hong Kong before or after the establishment of the HKSAR but lost the right after the establishment of the HKSAR was given the right to land. The proposed amendments in Schedule 2 to the Bill were to provide in more detailed form the nature of "right to land" and reflect which existing provisions in the IO would apply to persons with right to land status.
4. With regard to commencement, PAS(S) advised that clause 1(2) of the Bill provided that the Bill would have retrospective effect to 1 July 1997. However, it would not impose retrospective criminal liability. Clause 1(3) on the other hand provided that the Secretary for Security could appoint a different commencement date for amendments to the Registration of Persons Ordinance (items 4 and 5 of Schedule 1 to the Bill). This was necessary in order to enable the Immigration Department to complete processing outstanding cases of application for permanent identity cards by British National (Overseas) (BN(O)) Passports applicants.
Right of abode and right to land
5. In response to members enquiries, the Administration clarified that under the IO, a person who was of Chinese nationality and had a right of abode in Hong Kong before the establishment of the HKSAR continued to enjoy the right of abode as long as he remained a Chinese citizen. A person other than of Chinese nationality who was a HKPR before 1 July 1997 and who ceased to be settled in Hong Kong before 1 July 1997 could retain the permanent resident (and the right of abode) status provided that he fulfilled one of the requirements laid down in the transitional provisions in paragraph 6(1) of Schedule 1 to the IO. Former HKPRs who ceased to enjoy the right of abode upon the commencement of the Immigration (Amendment) (No. 2) Ordinance 1997 (122 of 1997) were conferred the right to land as provided under section 7A of the IO. The right to land would be safeguarded by the proposed section 2AAA, which sought to replace section 7A for better presentation and technical refinement. The Administration confirmed that the Bill would not result in any deprivation of rights of any person having the right to land status.
6. On further questions raised by members concerning returning emigrants, the Administration advised that ethnic Chinese Hong Kong residents who had settled abroad and acquired a foreign nationality could apply to change their nationality by making a declaration of change of nationality to the Immigration Department. Those who had made that declaration would be treated as foreign nationals and they could retain their right of abode if they returned to settle in Hong Kong within 18 months from 1 July 1997. They could also retain their right of abode if they returned to settle after 30 June 1997 and had not been continuously absent from Hong Kong beyond a period of 36 months immediately before the date when they returned to settle in Hong Kong. Those who chose not to make that declaration would be treated as Chinese citizens irrespective of whatever travel documents they used on entering Hong Kong. To substantiate a claim for right of abode, a person might be required to produce evidence such as evidence that he was born in Hong Kong or that he had ordinarily resided in Hong Kong for a continuous period of not less than seven years etc. Those who had lost their right of abode would be given the right to land in Hong Kong.
7. On human rights implications of the Bill, the Administration said that the Bill was consistent with the human rights provisions of Article 15 of the International Covenant on Civil and Political Rights. Section 12 of the Bill of Rights Ordinance reflected such provisions.
Clause-by-clause examination of the Bill
Clause 1 - commencement and retrospectivity
8. Referring to clause 1(3), the Administration advised that the proposed amendments to the Registration of Persons Ordinance would become operational within a few months. The Administration explained that applications for BN(O) Passports both in Hong Kong and overseas had ceased to be accepted after 30 September 1997 and all local applications had been processed by the end of December 1997. The purpose of clause 1(3) was to ensure that any applications which experienced despatch delays at the British overseas accepting offices could be processed by the Immigration Department before the relevant amendments to the Registration of Persons Ordinance came into effect.
9. In response to members enquiries, the Administration said that section 3A of the Registration of Persons Ordinance dealt with the application for permanent identity cards by persons having the right of abode in Hong Kong at the time when such persons applied for a BN(O) Passport. This arrangement would cease when the amendments proposed under items 4 and 5 of Schedule 1 to the Bill became effective. The Administration clarified that a person who came back to settle in Hong Kong at a later date and holding a BN(O) Passport could still apply for a permanent identity card in Hong Kong.
Schedule 1, items 1 and 2 - Pilotage Ordinance and Ferry Services Ordinance
10. The Administration informed members that adaptation of references to "Governor" and "Governor in Council" would be done at a later stage. Given that the Provisional Legislative Council (PLC) should only enact laws which were essential to the normal operation of the HKSAR, the Administration had decided that only those adaptation of laws items that were considered to be essential to the normal operation of the HKSAR should be introduced into the PLC. This Bill dealt with such essential adaptation issues to which priority should be accorded. The Administration pointed out that the Hong Kong Reunification Ordinance which was enacted and came into force on 1 July 1997 and the amendments made to the Interpretation and General Clauses Ordinance gave effect to the principles adopted by the Standing Committee of the National Peoples Congress (SCNPC) on 23 February 1997 for interpreting the laws previously in force in Hong Kong and which were maintained as the laws of the HKSAR. By virtue of the Interpretation and General Clauses Ordinance, references to "Governor" and "Governor in Council" had already been adapted to "Chief Executive" and "Chief Executive in Council" respectively. The Administration added that technically speaking, piece-meal adaptations of certain provisions might cause difficulty in co-ordinating an overall review at a later stage. In this regard, the Administration informed members that a comprehensive adaptation of laws exercise to identify provisions in other ordinances that needed to be adapted would be carried out, and the necessary adaptation proposals would be submitted to the Legislature within the next legislative session.
11. Members pointed out that references to "Commonwealth citizen" and "Commonwealth citizens" in section 6(1) and (2) of the Pilotage Ordinance and section 9 of the Ferry Services Ordinance were replaced by "permanent resident of the Hong Kong Special Administrative Region" and "individuals" respectively. Members queried about the reason for the difference.
12. In response, the Administration said that in the case of application for a pilot licence under section 6 of the Pilotage Ordinance, the proposed adapted eligibility criteria to apply to permanent residents of the HKSAR reflected the fact that Hong Kong was no longer part of the Commonwealth after 30 June 1997. As to section 9 of the Ferry Services Ordinance, on the other hand, the proposed adaptation provided flexibility in that a majority of the directors of a grantee company could be composed of any individuals, irrespective of whether they were Commonwealth citizens ordinarily resident in Hong Kong. The Administration advised that the purpose of the proposed amendments was to reflect the policy intent and satisfy the need to suit present day circumstances. The Administration added that in the initial phase of the adaptation of law exercise, some, but not all, of the adaptation proposals had been discussed and agreed by the Sino-British Joint Liaison Group before the reunification. It was now a matter for the Legislature of the HKSAR to decide whether the proposed amendments should be accepted.
|13. Members were of the opinion that the Bill might involve policy implications apart from purely technical adaptation amendments. As agreed, the Administration undertook to clarify with the relevant Policy Bureaux on any policy matters relating to items 1 and 2 and revert to members at the next meeting.
Items 4 and 5 - Registration of Persons Ordinance
14. Members agreed to the proposed amendments in items 4 and 5 of Schedule1 to the Bill.
Item 6 - Matrimonial Causes Ordinance
15. The Administration advised that section 49 of the Matrimonial Causes Ordinance was modelled on section 39 of the repealed UK Matrimonial Causes Act 1965. Under Section 2A(2)(b) of the Interpretation and General Clauses Ordinance, provisions conferring privileges on the United Kingdom or other Commonwealth countries, other than provisions giving effect to reciprocal arrangements between Hong Kong and the United Kingdom or other Commonwealth countries, should have no further effect after 1 July 1997. It was therefore proposed that section 49 of the Matrimonial Causes Ordinance be adapted to apply to all individuals who were domiciled in Hong Kong irrespective of his or her nationality.
Item 7 - Marriage Ordinance
16. Members agreed to the proposed amendment to repeal section 41 of the Marriage Ordinance to reflect the fact that Hong Kong was no longer part of the Commonwealth after 30 June 1997.
Item 8 - Crimes Ordinance
|17. The Chairman suggested that the Administration should consider whether it would be more appropriate to substitute the proposed "residents of the Hong Kong Special Administrative Region" with "permanent residents of the Hong Kong Special Administrative Region".
Other items in Schedule 1 to the Bill
|18. For the same reason as stated in paragraph 13 above, members requested the Administration to conduct an overall review on the items listed in proposed Schedule 1, except items 4, 5 and 7 which had been agreed by the Bills Committee, to see if the adaptation proposals brought about policy changes, and provide an explanatory paper for discussion at the next meeting. Members agreed that representatives from the relevant Policy Bureaux should be invited to the next meeting to answer members queries on related matters.
Schedule 2, item 1 - Part IA of Immigration Ordinance
19. The Administration explained that the proposed section 2AAA of IO which sought to replace section 7A was intended to clarify, among other things, the meaning of "former permanent residents" and "right to land" as well as the situations under which a person ceased to exercise such right.
20. In reply to the Legal Advisers question on the operation of the avoidance of doubt clause in proposed section 2AAA(3), the Administration said that the provision was to deal with situations where the permanent identity card held by a person could have been declared invalid on the ground that the person had never had the right of abode in Hong Kong, e.g. where the person was an illegal immigrant in possession of the permanent identity card of another person. In such cases, the person should not have the right to land in Hong Kong.
21. Referring to a members enquiry, Legal Adviser said that
being the Chinese equivalent of "made against" in section 2AAA(1)(iii) was in order. The same term also appeared in the Chinese version of section 7A(2).
Items 2 to 13
22. Members agreed to the proposed adaptations in items 2 to 13, which were technical amendments to reflect a persons right to land by virtue of proposed section 2AAA.
23. On item 5, the Administration advised that references to "serviceman" in section 10 of IO would be adapted in the next phase of the adaptation of laws exercise.
Item 14 - Schedule 1 to the IO
24. On paragraph 1(1) of Schedule 1 to the IO, the Administration pointed out that the English version of the definition of "Chinese citizen" in the IO varied slightly with that in the Hong Kong Special Administrative Region Passports Ordinance. The proposed amendment aimed at bringing the definitions into uniformity in accordance with the interpretation of the Nationality Law of the Peoples Republic of China adopted by the SCNPC.
25. Regarding the proposed amendments to paragraph 6(2) and 7 of Schedule 1 to the IO, the Administration explained that as the right of abode in Hong Kong necessarily followed from the status as a permanent resident of the HKSAR, it was considered more appropriate to substitute references to the former with the latter in the relevant provisions. The proposed change was also in conformity with the Basic Law, which made references to "permanent resident" instead of "right of abode".
26. Members agreed to the proposed amendments in Schedule 2 to the Bill.
Proposed draft Committee stage amendments (CSAs)
27. The Administration advised that it intended to propose CSAs regarding Schedules 1 and 2 to the Bill. Firstly, in respect of the Adoption Ordinance, in column 9 of the Form of Entry in Adopted Children Register in the Schedule, "Hong Kong permanent resident status under paragraph 2(a) of the First Schedule to" would be repealed and substituted with "status of permanent resident of the Hong Kong Special Administrative Region under". Secondly, the definition of "Hong Kong permanent resident" in the IO would be repealed and replaced by a definition of "permanent resident of the Hong Kong Special Administrative Region". Similarly, references to "Hong Kong permanent resident" in the relevant provisions would be substituted with "permanent resident of the Hong Kong Special Administrative Region". Members agreed to the proposed CSAs.
III.Date of next meeting
28. The next meeting was scheduled to be held on 20 March 1998 at 8:30 am.
IV.Close of meeting
29. The meeting ended at 12:20 pm.
Provisional Legislative Council Secretariat
3 April 1998