Provisional Legislative Council
PLC Paper No. CB(2) 1429
(These minutes have been
seen by the Administration)
Bills Committee on
Adaptation of Laws (Nationality
Related Matters) Bill
Minutes of the held on Friday, 20 March 1998 at 8:30 am
in Conference Room B of the Legislative Council Building
Members present :
Hon Ambrose LAU Hon-chuen, JP (Chairman)
Dr Hon LEONG Che-hung, JP
Hon CHENG Kai-nam
Hon Howard YOUNG, JP
Member absent :
|Hon Henry WU ||]
|Hon MA Fung-kwok ||
|Dr Hon Philip WONG Yu-hong||] other commitments
|Hon Kennedy WONG Ying-ho||]
|Hon YEUNG Yiu-chung||]
|Hon IP Kwok-him||]
Public Officers attending :
Clerk in attendance :
- Mr Raymond FAN
- Principal Assistant Secretary (Security)
- Ms Eva YAM
- Assistant Secretary (Security)
- Mr H W NG
- Principal Assistant Secretary (Home Affairs)
- Mr Daniel CHENG
- Principal Assistant Secretary (Trade and Industry)
- Mr Brian LO
- Principal Assistant Secretary (Transport)
- Mr Joe WONG
- Principal Assistant Secretary (Economic Services)
- Mr Roger TUPPER
- Principal Assistant Secretary (Economic Services)
- Mr Geoffrey WOODHEAD
- Principal Assistant Secretary (Economic Services)
- Ms Vivian SUM
- Assistant Secretary (Treasury)
- Mr Gilbert MO
- Deputy Law Draftsman
- Mr R J ADCOCK
- Assistant Director of Civil Aviation (Air Services)
- Civil Aviation Department
- Mr Stephen KWOK
- Chief Operations Officer (Air Services)
- Civil Aviation Department
- Mr K K NG
- General Manager (Services)
- Marine Department
Staff in attendance :
- Mrs Sharon TONG
- Chief Assistant Secretary (2) 1
- Mr Jimmy MA
- Legal Adviser
- Mr Paul WOO
- Senior Assistant Secretary (2) 5
I.Meeting with the Administration
(PLC Papers No. CB(2) 1258(01) and 1271(01) - Explanatory Notes on Schedule 1 items;
PLC Paper No. CB(2) 1271(02) - Proposed draft Committee stage amendments tabled by the Administration;
Continued discussion on Schedule 1 to the Bill
Item 1 - Pilotage Ordinance (Cap. 84)
1. The Administration advised that in respect of the application for a pilot licence under section 6(1) of the Pilotage Ordinance, the proposed adaptation to limit the eligibility criteria to permanent residents of the Hong Kong Special Administrative Region (HKSAR) by repealing "Commonwealth citizen" and substituting "permanent resident of the Hong Kong Special Administrative Region" reflected the fact that Hong Kong was no longer part of the Commonwealth after the reunification. The proposed adaptation involved no policy change. Members agreed to the proposed amendment.
Item 2 - Ferry Services Ordinance (Cap. 104)
2. The Administration pointed out that section 9 of the Ordinance provided that a majority of the directors of a grantee company should be Commonwealth citizens ordinarily resident in Hong Kong. Under section 2A(2)(b) of the Interpretation and General Clauses Ordinance (Cap. 1), 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. As a persons nationality should have no relevant bearing on his/her capability as a director in managing the company and in view of Article 25 of the Basic Law (BL), which stated that all Hong Kong residents should be equal before the law, it was proposed that section 9 be adapted to apply to all individuals ordinarily resident in Hong Kong.
3. Legal Adviser (LA) enquired about whether it was valid to invoke Article 25 of the BL to justify the proposed adaptation. He said that to adopt this argument might create problems as similar adaptation proposals in the Bill concerning other ordinances should be viewed in the same spirit of Article 25 of the BL, and consequentially such other provisions might have to be similarly adapted to apply to all individuals ordinarily resident in Hong Kong. He opined that Article 25 of BL was an umbrella provision which set out the basic principle that all residents in the HKSAR should have equal rights when it came to implementation and enforcement of the law. Article 25 should be read in conjunction with the general provisions in Article 39 as regards the rights and freedoms enjoyed by Hong Kong residents.
4. Deputy Law Draftsman (DLD) took a similar view. He said that subject to policy and other considerations, the law could impose restrictions and differential treatment on different categories of people without infringing the principle of equal rights. For example, some political rights, such as the right to vote and the right to stand for election, were not available to non-permanent residents. Also, under the Registration of Persons Ordinance, residents in Hong Kong were issued different types of identity cards, depending on their status as permanent or non-permanent residents.
5. DLD explained that in view of the urgency to respond to the matters raised at the last meeting, the views given in the explanatory notes were put together by the various Policy Bureaux within a very limited time-frame. It was therefore not possible to incorporate a consolidated legal advice on the issues involved. DLD said that the Department of Justice would further examine whether Article 25 of the BL would apply in the context of this Bill.
6. The Chairman expressed the view that rather than different Policy Bureaux making their own interpretation or individually seeking legal advice on certain legal issues, there should be an officer within the Administration tasked with a co-ordinating role to ensure that collective and consistent legal advice could be given. DLD replied that this had been the normal practice.
7. Members held the view that irrespective of whether Article 25 of the BL would operate in this adaptation of laws exercise, the proposal to adapt section 9 of the Ferry Services Ordinance to apply to all individuals ordinarily resident in Hong Kong was agreeable.
8. At the request of Mr Howard Young, the Administration agreed to provide information on whether there were any nationality requirements of the members of the Board of Directors of the Kowloon-Canton Railway Corporation and the Mass Transit Railway Corporation.
(Post-meeting note: The Administration advises that under the Kowloon-Canton Railway Corporation Ordinance and the Mass Transit Railway Corporation Ordinance, there is no such provision specifying any nationality requirements of the members of the Board of Directors of the two Corporations.)
Item 3 - Air Passenger Departure Tax Ordinance (Cap. 140)
Paragraph 8(a) of the Second Schedule
9. The Administration said that under paragraph 8(a) of Second Schedule to the Ordinance, passengers who were consuls or consular staff and members of their families were exempted from air passenger departure tax. However, British citizens and Hong Kong residents were not entitled to privileges in this regard as they were on home ground. The proposed adaptation amendment served to apply the same to Chinese citizens, permanent residents of the HKSAR and other residents in China after 1 July 1997, by excluding them from air passenger departure tax exemption.
10. In response to members enquiries, the Administration said that "other residents in China" covered people with substantial connection with China, including residents in China who were not Chinese citizens.
11. Members opined that it was difficult to understand the meaning of "other residents in China" and how the term would apply in this context, given that "China" was defined in the Interpretation and General Clauses Ordinance to include the HKSAR, Taiwan and Macau. Members requested the Administration to review and define in clear terms the meaning of "other residents in China" in the light of policy considerations. On this point, members were of the opinion that such reference to "other residents in China" was not necessary and that the expression could be deleted from the drafting.
(Post-meeting note: Having considered members views and further legal advice, the Administration agrees that the references to "Chinese citizens" and "permanent residents of the Hong Kong Special Administrative Region" are already sufficient in adapting the restriction on the granting of tax exemption under paragraph 8(a) of the Second Schedule to the Air Passenger Departure Tax Ordinance. As such, the reference to "other residents in China" is no longer necessary. The Administration is prepared to move a Committee stage amendment to delete the reference from the Item.)
12. In reply to Mr Howard Youngs question, the Administration advised that consular staff and their family members, irrespective of their period of stay in the HKSAR, would not become permanent residents of the HKSAR.
Item 6 - Matrimonial Causes Ordinance (Cap. 179)
13. The Administration advised that section 49 of the Ordinance was modelled on section 39 of the repealed UK Matrimonial Causes Act 1965. Under existing legislation, provisions conferring rights and privileges on persons based on their status as legitimate children had already been abolished.
14. Members agreed to the proposed adaptation of section 49 to apply to all individuals who were domiciled in Hong Kong irrespective of his/her nationality.
|15. The Chairman suggested that as section 49 was no longer applicable to Hong Kong, consideration should be given to repeal the whole section in the next phase of the adaptation of laws exercise.
Item 8 - Crimes Ordinance (Cap. 200)
Sections 20(1)(a), 23B(3) and 23C
16. Referring to the proposed adaptations to substitute "Commonwealth citizen" and "British national" in section 20(1)(a) and section 23B(3) respectively with "resident of the Hong Kong Special Administrative Region", the Administration clarified that "residents of the Hong Kong Special Administration Region", as defined in proposed section 19A of the Crimes Ordinance, included both permanent residents as well as non-permanent residents who were qualified to obtain Hong Kong identity cards but had no right of abode in the HKSAR. The Administration added that the next phase of the comprehensive adaptation of law exercise would examine the need to incorporate a definition in other ordinances.
17. The Chairman said that the proposed amendments might involve extra-territorial implications as, for example, a piratical act under section 20(1)(a) might be committed in the high seas. LA responded that the relevant sections were already in existence before 1 July 1997. By virtue of Article 8 of the BL, the laws previously in force in Hong Kong, including the common law, should be maintained. In other ordinances such as the Prevention of Bribery Ordinance, there were provisions which had extra-territorial applications. LA advised that according to a Privy Council judgment, the test to justify the extraterritoriality of an enactment was whether the enactment in question was necessary for the order and good government of the territory concerned. This principle should also apply to the HKSAR. Members agreed to the proposed adaptations in Item 8.
18. LA drew the Administrations attention to the Chinese version of the proposed amendment to section 20(1)(a) and pointed out that the word should be replaced by .
|19. Mr Howard Young suggested that "being on board any British ship" in section 20(1)(b) should be suitably adapted at a later stage.
Item 9 - section 6(1) of Cross-Harbour Tunnel Ordinance (Cap. 203)
Item 10 - section 8(1) of Public Bus Services Ordinance (Cap. 230)
20. Members agreed to the proposed adaptations in Items 9 and 10 respectively, which were similar to those in Item 2 as regards the Ferry Services Ordinance.
Item 11 - Merchant Shipping (Prevention and Control of Pollution) Ordinance (Cap.413)
21. Dr Leong Che-hung asked whether the adapted reference to "permanent resident of the Hong Kong Special Administrative Region" should be replaced by "individuals ordinarily resident in Hong Kong". The Administration explained that section 5(2)(i) applied to activities done outside Hong Kong by people having a sufficient connection in Hong Kong. Legal advice was that the appropriate equivalent in the context of such references to "British citizen", "British Dependent Territories citizen", "British Overseas citizen", and "British National (Overseas)" should be "permanent resident of the Hong Kong Special Administrative Region", which referred to people with a substantial connection in Hong Kong. To adopt a broader reference to "individuals ordinarily resident in Hong Kong" would deviate from the original legislative intent and the position before the reunification. Members agreed to the proposed amendment.
Item 12 - Civil Aviation Ordinance (Cap. 448)
Sections 6(1) and 11(1)(b)
22. In response to members enquiries, the Administration advised that section 11(1)(b) provided for the extra-territorial application of a regulation made under the Ordinance or an enactment specified in section 13(6) to deal with malicious acts done to aircraft registered in Hong Kong by persons being Hong Kong permanent residents or "British nationals" wherever they might be. Extra-territorial application of a legislative provision was normally justified where the subject-matter had a sufficient connection, e.g. a nationality or residence link with Hong Kong. Members agreed to the proposed adaptations in Item 12.
Item 13 - Protection of Trading Interests Ordinance (Cap. 471)
Sections 5(2) and 8(1)(a)
23. The Administration advised that for similar reasons as in the adaptation proposed under Item 11, and having regard to Hong Kongs jurisdiction outside the HKSAR, it was proposed to replace "British national" with "permanent resident of the Hong Kong Special Administrative Region". Members agreed to the proposed amendment.
Item 14 - Section 6(b) of Submarine Telegraph Ordinance (78 of 1996)
Item 15 - Sections 14(4) and (6) of Outer Space Ordinance (65 of 1997)
24. Members agreed to the proposed adaptation amendment to repeal "British national" and substitute "permanent resident of the Hong Kong Special Administrative Region".
Item 16 - Air Navigation (Hong Kong) Order 1995
Articles 4(3) and 92
25. Referring to Article 4(3) where the reference to "the Crown in right of Her Majestys Government in the United Kingdom or in right of the Government of Hong Kong" was proposed to be replaced by "the Central Peoples Government or the Government of the Hong Kong Special Administrative Region", LA informed members of a corresponding adaptation to repeal the reference to "Crown" and substitute "State" in the Interpretation and General Clauses Ordinance, as proposed in the Adaptation of Laws (Interpretative Provisions) Bill. He pointed out that in deliberating the definition of the term "State" under that Bill, it had been recommended that "State" should include the President of the Peoples Republic of China (PRC), the Central Peoples Government (CPG), the Central Authorities of the PRC, the Government of the HKSAR as well as the subordinate organs of the CPG and of the Central Authorities of the PRC acting within the scope of the delegated authority and delegated functions of the subordinate organ concerned. Such definition of "State" had a broader meaning than that of the adaptation proposed under this Bill.
26. The Administration noted the point raised by LA and replied that the difference in the two adapted references was necessary to facilitate the purposes of different legislation. The Administration added that as far as the proposed adaptations in this part of the Bill were concerned, they had been agreed by the Sino-British Joint Liaison Group.
27. In response to Dr Leong Che-hungs enquiry, the Administration undertook to clarify the meaning of "British protected person" after the meeting.
(Post-meeting note: The Administration advises that "British protected person" is defined in the British Nationality Act 1981 as "a person who is a member of any class of persons declared to be British protected persons by an Order in Council for the time being in force under Section 38 or is a British protected person by virtue of the Solomon Islands Act 1978".)
28. LA enquired why there was no Chinese version in the Bill as regards the proposed adaptation in Item 16. The Administration explained that as the Air Navigation (Hong Kong) Order 1995 was among the last batch of UK-modelled legislation applied to Hong Kong which was just localised before the reunification, a Chinese version was not available. Yet, a bilingual version of the Order in both Chinese and English was being drafted.
Proposed draft Committee stage amendments (CSAs)
29. The Administration took members through the proposed CSAs in PLC Paper No. CB(2) 1271(02). Members agreed to the proposed CSAs.
30. Members agreed that another meeting of the Bills Committee would not be necessary if the Administration agreed to delete the proposed adapted reference to "other residents in China" from Item 3 in Schedule 1 to the Bill. Pending the Administrations decision on this matter, a meeting was tentatively scheduled for 24 March 1998 at 8:30 am.
(Post-meeting note: As the Administration agrees to delete the reference to "other residents in China" from Item 3, the meeting scheduled for 24 March 1998 is subsequently cancelled.)
31. The Chairman advised that if another meeting was not necessary, a report of the Bills Committee would be made to the House Committee on 27 March 1998 for consultation and to recommend the resumption of the Second Reading debate to take place on 7 April 1998. The deadline for giving notice of CSAs was 27 March 1998.
IV.Close of meeting
32. The meeting closed at 10:25 am.
Provisional Legislative Council Secretariat
15 April 1998