Urban Council (Amendment) Bill 1997
A Bill
To
Amend the Urban Council Ordinance.
Enacted by the Provisional Legislative Council.
1.Short title and commencement
(1) This Ordinance may be cited as the Urban Council (Amendment)
Ordinance 1997.
(2) This Ordinance comes into operation on 1 July 1997.
2. Long title amended
The long title to the Urban Council Ordinance (Cap. 101) is amended
by adding "Provisional" before "Urban".
3. Short title amended
The short title is amended by adding "Provisional" before "Urban".
4. Interpretation
(1) Section 2(1) is amended -
(a) in the definition of "Chairman" by repealing "under section
20";
(b) in the definition of "Council" by adding "Provisional" before
"Urban";
(c) in the definition of "District" by adding "Provisional"
before "District" where it appears the second time;
(d) in the definition of "District Board" by adding "Provisional"
before "District" where it appears the second and third times;
(e) by repealing the definition of "elected member";
(f) by repealing the definition of "member" and substituting
- ""member" (議員) means a member of the Council appointed by the Chief
Executive under section 6;";
(g) by repealing the definition of "ordinary election";
(h) by repealing the definition of "representative member";
(i) in the definition of "Vice-Chairman", by repealing "under
section 20";
(j) by adding -
"established office" (設定職位) means an office within the
meaning of paragraph (a) of the definition of "established office" under
the Pension Benefits Ordinance (Cap. 99);
"judicial office" (司法職位) has the meaning in the Public
Service Commission Ordinance (Cap. 93);
"non-established office" (非設定職位) means an office in the
public service that is not an established office;"
"office of emolument" (受薪職位) does not include the office
of Chairman, Vice-Chairman or the Chairman of a committee of the Provisional
Urban Council or the Provisional Regional Council or the Chairman or the
Chairman of a committee of a Provisional District Board;".
(2) Section 2(2) is repealed.
5. Incorporation
Section 3 is repealed and the following substituted -
"3. Incorporation and assumption of responsibilities
(1) The Provisional Urban Council is a body corporate with perpetual
succession and may sue and be sued in the corporate name of the Provisional
Urban Council.
(2) Notwithstanding the repeal of the incorporation of the Urban
Council, the rights, duties and obligations existing immediately before
1 July 1997 in the Urban Council are not affected by the repeal and vest
in the Provisional Urban Council. A power exercised by the Urban Council
under an Ordinance before 1 July 1997 is taken to be a power duly exercised
by the Provisional Urban Council on 1 July 1997 under the Ordinance.
(3) The property of the Urban Council (including choses in action)
immediately before 1 July 1997 is transferred to and vests in the Provisional
Urban Council by operation of this section subject to any existing claim
or liability.
(4) To avoid any doubt, the subsidiary legislation, delegations,
authorizations and appointments made by the Urban Council before 1 July
1997 continue to subsist as if they had been duly made by the Provisional
Urban Council. The Provisional Urban Council has the power to make, amend,
repeal and replace any subsidiary legislation, delegation, authorization
or appointment that the Urban Council had the power to make, amend, repeal
or replace.
(5) The liabilities of the Urban Council immediately before
1 July 1997 become and are the liabilities of the Provisional Urban Council.
The Provisional Urban Council is liable to pay or discharge the liabilities
and may be sued for and recovered from for the liabilities.
(6) The Provisional Urban Council may sue on, recover or enforce
a chose in action transferred by this section without having to give notice
of the transfer to a person bound by the chose in action.
(7) A contract entered into by the Urban Council and in force
immediately before 1 July 1997 continues in force and is construed as if
the Provisional Urban Council is substituted for the Urban Council. The
contract may be enforced by or against the Provisional Urban Council.
(8) The record of property of the Urban Council immediately
before 1 July 1997 that is in the form of an entry in the books of a bank,
company or other corporation is to be transferred in those books by the
bank, company or other corporation to the Provisional Urban Council on
the request of the Provisional Urban Council.
(9) The legal claims including present, future, actual and contingent
claims by or against the Urban Council and judicial and administrative
proceedings instituted by or against the Urban Council that existed immediately
before 1 July 1997 do not abate by reason of the repeal. The Provisional
Urban Council is substituted for the Urban Council in any proceedings pending
before a court or tribunal.
(10) The guarantees and indemnities given by the Urban Council
become and are the liability of the Provisional Urban Council. The Provisional
Urban Council is liable to pay or discharge the liabilities and may be
sued for and recovered from under the guarantees and indemnities given
by the Urban Council. The guarantees and indemnities given to the Urban
Council become and are the property of the Provisional Urban Council. The
Provisional Urban Council may sue for and recover on the enforcement of
the guarantees and indemnities given to the Urban Council.
(11) The licences and permits granted by the Urban Council in
the exercise of its powers and functions are taken to be licences and permits
granted by the Provisional Urban Council exercising the same powers as
the Urban Council exercised in their granting.
(12) The following as they existed immediately before 1 July
1997 are expressly saved and transferred from the Urban Council to the
Provisional Urban Council but without limiting the operation of subsections
(1) to (11) -
(a) land allocated to the Urban Council by the Government
for its use;
(b) insurance policies held by the Urban Council;
(c) the benefit of trade marks, copyright and other intellectual
property rights held by the Urban Council;
(d) the right to collect fees and other charges under any
statutory or contractual authority held by the Urban Council;
(e) the Memorandum of Administrative Arrangement made with
the Government and dated 3 September 1973; and
(f) the approved estimates for 1997 and 1998.
(13) The standing orders and rules of procedure of the Urban
Council immediately before 1 July 1997 apply to the Provisional Urban Council
subject to the changes that the Provisional Urban Council may make and
the changes that may be necessarily implied arising out of the change in
name of and composition in the membership of the Provisional Urban Council.
(14) The Stamp Duty Ordinance (Cap. 117) does not apply to the
vesting in the Provisional Urban Council of the property and rights transferred
by this section.".
6. Declaration of Urban Council area
Section 5A(3) is repealed.
7. Sections repealed and substituted
Sections 6, 7 and 7A are repealed and the following substituted -
"6. Provisional Urban Council
(1) The Council consists of not more than 50 members appointed
by the Chief Executive for the term set out in their appointment but not
later than 31 December 1999.
(2) A person does not become a member and cannot undertake any
function as a member until he has sworn an acceptance of office in the
form set out in Schedule 1.".
(3) A person must swear the acceptance within the time specified
in the appointment otherwise the appointment lapses.".
8. Sections added
The following sections are added -
"10A. Disqualification from appointment
(1) A person is disqualified from being appointed or from holding
office as a member if he -
(a) holds an established office;
(b) holds a non-established office;
(c) holds a judicial office;
(d) holds an office of emolument in the gift or disposal
of the Provisional Legislative Council, Provisional Urban Council or Provisional
Regional Council or a committee of one of the Councils;
(e) is the -
(i) Chairman of the Public Service Commission appointed
under section 3 of the Public Service Commission Ordinance (Cap. 93);
(ii) Commissioner of the Independent Commission Against
Corruption, Deputy Commissioner or an officer appointed under the Independent
Commission Against Corruption Ordinance (Cap. 204); or
(iii) Commissioner for Administrative Complaints appointed
under section 3 of the Commissioner for Administrative Complaints Ordinance
(Cap. 397)or a person appointed by the Commissioner under section 6 of
the Commissioner for Administrative Complaints Ordinance (Cap. 397);
(f) has in Hong Kong or any other place been sentenced to
death or imprisonment for a term exceeding 3 months and has not either
suffered the punishment or received free pardon;
(g) has been convicted of treason;
(h) is disqualified from being appointed or holding office
as an appointed member under any Ordinance;
(i) is a salaried functionary of a government of
any place outside Hong Kong, or is a member -
(i) of a parliament, assembly or council, whether central
or local, of any place other than the People's Republic of China; or
(ii) of a legislature, assembly or council of Taiwan;
(j) is an undischarged bankrupt or, within the previous
5 years, has either obtained his discharge in bankruptcy or has entered
into a composition with his creditors, in either case without paying his
creditors in full;
(k) is subject to a decision under the Mental Health Ordinance
(Cap. 136) that he is of unsound mind and incapable of managing himself
and his affairs; or
(l) without prejudice to paragraph (f), has, where the appointment
is to be made within 10 years from the date of conviction, has been convicted
-
(i) of an offence in Hong Kong or any other place been
sentenced to imprisonment for a term exceeding 3 months without the option
of a fine;
(ii) of a corrupt or illegal practice within the meaning
of the Corrupt and Illegal Practices Ordinance (Cap. 288), other than the
illegal practice of contravening section 19(2) of that Ordinance, or of
a corrupt or illegal practice within the meaning of any other Ordinance
for the time being in force providing for punishment of corrupt or illegal
practices;
(iii) of an offence under the Prevention of Bribery
Ordinance( Cap. 201).
(2) Subsection (1)(k) does not prevent a person from being appointed
if subsequently his unsoundness of mind is found to have ceased.".
9. Non-acceptance of office
Section 14 is repealed.
10. Non-attendance
Section 17 is repealed and the following substituted -
"17. Non-attendance
A member is to attend at least one meeting of the Council in every
3 consecutive months otherwise he ceases to hold office unless the failure
was due to some reason approved by the Council.".
11. Publication of notice of vacancy
Section 18 is repealed and the following substituted -
"18. Publication of notice of vacancy
The Secretary is to give notice in the Gazette if a member dies,
resigns or becomes ineligible to be a member for any reason.".
12. Council to elect Chairman and Vice-Chairman
Section 20 is repealed.
13. Validity of acts of Council
Section 34 is amended by repealing "election or".
14. Proceedings against members on grounds of disqualification
Section 51A(4), (5) and (6) is repealed and the following substituted
-
"(4) The Secretary of Justice alone may institute proceedings
under this section.".
15. Saving
Section 54 is amended by adding "Provisional" before "Urban".
16. Part added
The following Part is added -
"PART IX
TRANSITIONAL ARRANGEMENTS FOR THE PROVISIONAL URBAN COUNCIL
55. Election of first Chairman and Vice-Chairman
(1) The Director of Urban Services is to make arrangements for
the first meeting of the members of the Provisional Urban Council before
7 July 1997.
(2) The purpose of the first meeting is to elect a Chairman
and a Vice-Chairman of the Provisional Urban Council.
(3) The election of the Chairman and Vice-Chairman is to be
in accordance with the voting procedure set out in Schedule 5.
(4) The persons elected under this section take office as Chairman
and Vice-Chairman on delivery to the Director of Urban Services of a completed
acceptance of office in the appropriate form in Schedule 1. The Chairman
and Vice-Chairman hold office until their respective appointments expire
or are otherwise terminated.
(5) On assuming office the Chairman may summon a meeting of
the Provisional Urban Council to be held on or before 31 July 1997. He
may give such notice of the meeting as he considers appropriate. The accidental
omission to give notice of the meeting to a member does not affect the
validity of the meeting.
(6) If a meeting referred to in this section do not take place
before the appointed time, the Chief Executive may appoint another date
by notice in the Gazette. This section applies to a meeting held on the
date appointed by the Chief Executive.
56. Transitional construction of "Urban Council"
In any Ordinance a reference to the Urban Council is construed as a
reference to the Provisional Urban Council unless the context requires
otherwise.
57. Saving of certain appointments
An appointment of the Secretary, Deputy Secretaries, Assistant Secretaries
and other staff under section 28 that is in existence at 30 June 1997 is
saved subject to the power of the Chief Executive under section 28 to revoke
the appointments and to make further appointments.".
17. Schedule added
The following Schedule is added -
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"SCHEDULE 1
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[ss. 6 & 55(4)]
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PROVISIONAL URBAN COUNCIL
Acceptance of Office
I, .......................................................................
of .....................................................................
being *a member/ Chairman/ Vice Chairman swear -
(a) I take the office as *a member/ Chairman/ Vice-Chairman
of the Provisional Urban Council upon myself and will duly and faithfully
fulfill the duties of the office according to the best of my ability;
(b) I will uphold the Basic Law; and
(c) my allegiance to the Hong Kong Special Administrative Region
of the People's Republic of China.
Sworn this ............... day of ......................19.......
Signature .................................
This acceptance was sworn before me a *Magistrate/Commissioner for
Oaths.
Signature .................................
* Delete whichever is inapplicable.".
18. Schedule repealed
The Third Schedule is repealed.
19. Fourth Schedule amended
The Fourth Schedule is amended by being re-numbered as Schedule 4.
20. Fifth Schedule amended
(1) The Fifth Schedule is re-numbered as Schedule 5.
(2) Paragraph 1 is amended -
(a) by repealing "a representative member under section 7A(1)
or";
(b) by repealing "20(1)" and substituting "55".
(3) Paragraph 1A is amended -
(a) by repealing "a representative member under section 7A(1)
or";
(b) by repealing "20(1)" and substituting "55".
21. Transitional
(1) The Chairman elected at the first meeting after 1 July 1997
is the delegate of the Council for the purpose of section 36 of the Provisional
Urban Council Ordinance (Cap. 101) in the event that a delegation saved
under section 3(4) of that Ordinance lapses. This delegation continues
until the Council resolves otherwise.
(2) The Chairman may delegate the powers delegated to him under
subsection (1) in accordance with the relevant Ordinances.
22. References to Schedules
A reference in the Provisional Urban Council Ordinance (Cap. 101) to
a Schedule in that Ordinance which refers to an ordinal number is amended
to the corresponding cardinal number.
Consequential amendments
Declaration of Urban Council Area Order 1994
23. Declaration of Urban Council area
Section 2 of the Declaration of Urban Council Area Order 1994 (Cap.
101, sub. leg.) is amended by repealing "Subject to section 4, the" and
substituting "The".
24. Sections repealed
Sections 3 and 4 are repealed.
Explanatory memorandum
The main purpose of this Bill is to establish the Provisional Urban
Council to operate in place of the Urban Council.
2. Clauses 2, 3, 4 (in part), 6, 8, 9, 10, 11, 12, 13, 14, 15,
20, 21, 23 and 24 are consequential to this purpose.
3. Clause 5 repeals and replaces section 3. The new section 3 incorporates
the Provisional Urban Council and assigns the rights, duties, obligations
and liabilities of the Urban Council to the Provisional Urban Council with
a view to a seamless transition.
4. Clause 7 repeals and replaces sections 6, 7, and 7A. The new
section 6 empowers the Chief Executive to appoint not more than 50 members
to the Provisional Urban Council. This figure represents the number of
existing members plus 25%. The term of the appointment in limited to 31
December 1999.
5. The members are required to swear that they will serve the body
to the best of their ability, that they will uphold the Basic Law and that
their allegiance is to the Hong Kong Special Administrative Region before
taking up membership of the Provisional Urban Council. Clause 17 provides
for the acceptance in a new Schedule 1.
6. Clause 16 adds a new Part IX. This is a transitional Part that
enables the Provisional Urban Council to meet for a first time to elect
a Chairman and Vice Chairman. New section 56 provides for the construction
of "Urban Council" in all other legislation as a reference to the Provisional
Urban Council and new section 57 that saves appointments made before the
commencement of this Ordinance.
7. Clauses 18, 19, 20 (in part) and clause 22 amend references
to the Schedules in the principal Ordinance so that they conform with current
drafting practices.
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