[Bills Committee]

Regional Council (Amendment) Bill 1997
A Bill
To

Amend the Regional Council Ordinance.   
Enacted by the Provisional Legislative Council.    

1. Short title and commencement   
(1) This Ordinance may be cited as the Regional Council (Amendment) Ordinance 1997.   
(2) This Ordinance comes into operation on 1 July 1997.   

2. Long title amended   
The long title to the Regional Council Ordinance (Cap. 385) is amended by adding "Provisional" before "Regional".   

3. Short title amended   
The short title is amended by adding "Provisional" before "Regional".   

4. Interpretation   
(1) Section 2(1) is amended -   
  (a) in the definition of "Chairman", by repealing "under section 22";   
  (b) in the definition of "District", by adding "Provisional" before "District Boards Ordinance";   
  (c) in the definition of "District Board", by adding "Provisional" before "District" where it appears the second and third times;   
  (d) by repealing the definition of "elected member";   
  (e) by repealing the definition of "ex officio member";   
  (f) by repealing the definition of "Heung Yee Kuk";   
  (g) by repealing the definition of "member" and substituting -   
  ""member" (議員) means a member of the Regional Council appointed by the Chief Executive under section 6";   
  (h) by repealing the definition of "ordinary election";   
  (i) in the definition of "Regional Council", by adding "Provisional before "Regional" where it appears the second time;   
  (j) by repealing the definition of "representative member";   
  (k) in the definition of "Urban Council Area", by adding "Provisional" before "Urban" where it appears the second time;   
  (l) in the definition of "Vice-Chairman", by repealing "under section 22";   
  (m) 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 Pensions 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 (2) Section 2(2) is repealed.   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. Establishment    

Section 3 is repealed and the following substituted -   
"3. Incorporation and assumption of responsibilities   
(1) The Provisional Regional Council is a body corporate with perpetual succession and may sue and be sued in the corporate name of the Provisional Regional Council.   
(2) Notwithstanding the repeal of the incorporation of the Regional Council, the rights, duties and obligations existing immediately before 1 July 1997 in the Regional Council are not affected by the repeal and vest in the Provisional Regional Council. A power exercised by the Regional Council under an Ordinance before 1 July 1997 is taken to be a power duly exercised by the Provisional Regional Council on 1 July 1997 under the Ordinance.   
(3) The property of the Regional Council (including choses in action) immediately before 1 July 1997 is transferred to and vests in the Provisional Regional 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 Regional Council before 1 July 1997 continue to subsist as if they had been duly made by the Provisional Regional Council. The Provisional Regional Council has the power to make, amend, repeal and replace any subsidiary legislation, delegation, authorization and appointment that the Regional Council had the power to make, amend, repeal or replace.   
(5) The liabilities of the Regional Council immediately before 1 July 1997 become and are the liabilities of the Provisional Regional Council. The Provisional Regional Council is liable to pay or discharge the liabilities and may be sued for and recovered from for the liabilities.   
(6) The Provisional Regional 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 Regional Council and in force immediately before 1 July 1997 continues in force and is construed as if the Provisional Regional Council is substituted for the Regional Council. The contract may be enforced by or against the Provisional Regional Council.   
(8) The record of property of the Regional 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 Regional Council on the request of the Provisional Regional Council.   
(9) The legal claims including present, future, actual and contingent claims by or against the Regional Council and judicial and administrative proceedings instituted by or against the Regional Council that existed immediately before 1 July 1997 do not abate by reason of the repeal. The Provisional Regional Council is substituted for the Regional Council in any proceedings pending before a court or tribunal.   
(10) The guarantees and indemnities given by the Regional Council become and are the liability of the Provisional Regional Council. The Provisional Regional 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 Regional Council. The guarantees and indemnities given to the Regional Council become and are the property of the Provisional Regional Council. The Provisional Regional Council may sue for and recover on the enforcement of the guarantees and indemnities given to the Regional Council.    
(11) The licences and permits granted by the Regional Council in the exercise of its powers and functions are taken to be licences and permits granted by the Provisional Regional Council exercising the same powers as the Regional Council exercised in their granting.   
(12) The following as they existed immediately before 1 July 1997 are expressly saved and transferred from the Regional Council to the Provisional Regional Council but without limiting the operation of subsections (1) to (11) -   
(a) land allocated to the Regional Council by the Government for its use;    
(b) insurance policies held by the Regional Council;   
(c) the benefit of trade marks, copyright and other intellectual property rights held by the Regional Council;    
(d) the right to collect fees and other charges under any statutory or contractual authority held by the Regional Council; and   
(e) the approved estimates for 1997 and 1998.   
(13) The standing orders and rules of procedure of the Regional Council immediately before 1 July 1997 apply to the Provisional Regional Council subject to the changes that the Provisional Regional 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 Regional Council.   
(14) The Stamp Duty Ordinance (Cap. 117) does not apply to the vesting in the Provisional Regional Council of the property and rights transferred by this section.".   

6. Declaration of Regional Council area   
Section 5A(3) is repealed.   

7. Sections repealed and substituted   
Sections 6, 7 and 8 are repealed and the following substituted -   
"6. Provisional Regional Council   
(1) The Regional 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 3.   
(3) A person must swear the acceptance within the time specified in the appointment otherwise the appointment lapses.".   

8. Saving    
Section 10 is amended by adding "Provisional" before "District".   

9. Section substituted   
Section 11 is repealed and the following substituted -   
"11. 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) 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.".   

10. Non-acceptance of office   
Section 15 is repealed.   

11. Resignation as a member   
Section 16(1) is amended by repealing "other than an ex officio member".   

12. Non-attendance   
Section 18 is repealed and the following substituted -   
"18. Non-attendance   
A member must attend at least one meeting of the Regional Council in every 3 consecutive months otherwise he ceases to hold office unless the failure was due to some reason approved by the Regional Council.".   

13. Publication of notice of vacancy   
Section 20 is repealed and the following substituted -   
"20. 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.".   

14. Regional Council to elect Chairman and Vice-Chairman   
Section 22 is repealed.   

15. Duties of Chairman and Vice-Chairman   
Section 23(1) is amended by repealing "Except as provided in section 22(5) the" and substituting "The".   

16. Resignation etc. of Chairman    
Section 24(3) is repealed.   

17. Validity of acts of the Regional Council   
Section 36 is amended by repealing "election or".   

18. Proceedings against members on grounds of disqualification   
(1) Section 57(1) is amended by repealing "an elected" and substituting "a".   
(2) Section 57(4), (5) and (6) is repealed and the following substituted -   
"(4) The Secretary of Justice alone may institute proceedings under this section.".   

19. Part added   
The following Part is added -   

"PART XI  
TRANSITIONAL ARRANGEMENTS FOR THE PROVISIONAL REGIONAL COUNCIL 
62. Election of first Chairman and Vice-Chairman   
(1) The Director of Regional Services is to make arrangements for the first meeting of the members of the Provisional Regional Council before 7 July 1997.   
(2) The purpose of the first meeting is to elect a Chairman and a Vice-Chairman of the Provisional Regional Council.   
(3) The election of the Chairman and Vice-Chairman is to be in accordance with the voting procedure set out in Schedule 1.   
(4) The persons elected under this section take office as Chairman and Vice-Chairman on delivery to the Director of Regional Services of a completed oath or affirmation of acceptance of office in the appropriate form in Schedule 3. 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 Regional 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.   

63. Transitional construction of "Regional Council"   
In any Ordinance a reference to the Regional Council is construed as a reference to the Provisional Regional Council unless the context requires otherwise.   

64. Saving of certain appointments   
An appointment of the Secretary, Deputy Secretaries, Assistant Secretaries and other staff under section 29 that is in existence at 30 June 1997 is saved subject to the power of the Chief Executive under section 29 to revoke the appointments and to make further appointments.".   

20. Schedule amended   
(1) The First Schedule is re-numbered as Schedule 1.   
(2) Schedule 1 is amended -   
 (a) in paragraph 1, -   
   (i) by repealing "a representative member under section 8(1) or";   
   (ii) by repealing "22(1)" and substituting "62".   
 (b) in paragraph 1A, -   
   (i) by repealing "a representative member under section 8(1) or";   
   (ii) by repealing "22(1)" and substituting "62".   

21. Schedule substituted   
The Third Schedule is repealed and the following Schedule is substituted -   

"SCHEDULE 3 [ss. 6 & 62]
PROVISIONAL REGIONAL 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 Regional 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.".   


22. References to Schedules   
A reference to a Schedule in the Provisional Regional Council Ordinance (Cap. 385) that is made to an ordinal number is amended to the corresponding cardinal number.   

23. Transitional    
(1) The Chairman elected at the first meeting after 1 July 1997 is the delegate of the Regional Council for the purpose of section 38 of the Provisional Regional Council Ordinance (Cap.385) in the event that a delegation saved under section 3(4) of that Ordinance lapses. This delegation continues until the Regional Council resolves otherwise.   
(2) The Chairman may delegate the powers delegated to him under subsection (1) in accordance with the relevant Ordinances.   

Consequential amendments
Declaration of Regional Council Area Order 1994

24. Declaration of Regional Council area   
Section 2 of the Declaration of Regional Council Area Order 1994 (Cap. 385, sub. leg.) is amended by repealing "Subject to section 4, the" and substituting "The".   

25. Sections repealed    
Sections 3 and 4 are repealed.   

Explanatory memorandum

The main purpose of this Bill is to establish the Provisional Regional Council to operate in place of the Regional Council.   
2. Clauses 2, 3, 4 (in part), 6, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 23, 24 and 25 are consequential to this purpose.   
3. Clause 5 repeals and replaces section 3. The new section 3 incorporates the Provisional Regional Council and assigns the rights, duties, obligations and liabilities of the Regional Council to the Provisional Regional Council with a view to a seamless transition.   
4. Clause 7 repeals and replaces sections 6, 7, and 8. The new section 6 empowers the Chief Executive to appoint not more than 50 members to the Provisional Regional Council. This figure represents the number of existing members plus 25%. The term of appointment is 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 Regional Council. Clause 21 provides for the acceptance in a new Schedule 3.   
6. Clause 8 and clause 4 (in part) take account of simultaneous amendments to provide for a Provisional Urban Council and Provisional District Boards.   
7. Clause 19 adds a new Part XI. This is a transitional Part that enables the Provisional Regional Council to meet for a first time to elect a Chairman and Vice Chairman. It also includes new section 63 which provides for the construction of references to "Regional Council" in any legislation so that they will be interpreted as references to the Provisional Regional Council and new section 64 that saves appointments made before the commencement of this Ordinance. Clause 20 consequentially amends Schedule 1.   
8. Clause 22 amends references to the Schedules in the principal Ordinance so that they conform with current drafting practices.   


(Members of the public are welcome to express their views on the Bills, by writing to the Provisional Legislative Council Secretariat at 3/F, Huaxia Art Centre, No. 1 Guangqiao Street, Overseas Chinese Town, Shenzhen)