Provisional Legislative Council
PLC Paper No. CB(2) 1286
Ref : PLC/HC/4
Minutes of the meetingMembers present :
held at the Legislative Council Chamber
at 4:10 pm on Friday, 20 March 1998
Dr Hon LEONG Che-hung, JP (Chairman)
Hon IP Kwok-him (Deputy Chairman)
Hon James TIEN Pei-chun, JP
Hon David CHU Yu-lin
Hon HO Sai-chu, JP
Hon Edward HO Sing-tin, JP
Dr Hon Raymond HO Chung-tai, JP
Hon NG Leung-sing
Hon Eric LI Ka-cheung, JP
Hon LEE Kai-ming
Hon Mrs Elsie TU, GBM
Hon Mrs Peggy LAM, JP
Hon Henry WU
Hon Henry TANG Ying-yen, JP
Hon Ronald ARCULLI, JP
Hon YUEN Mo
Hon MA Fung-kwok
Dr Hon Mrs TSO WONG Man-yin
Hon MOK Ying-fan
Hon CHAN Yuen-han
Hon CHAN Wing-chan
Hon CHAN Kam-lam
Hon CHENG Kai-nam
Hon Frederick FUNG Kin-kee
Hon Andrew WONG Wang-fat, JP
Dr Hon Philip WONG Yu-hong
Hon Kennedy WONG Ying-ho
Dr Hon Charles YEUNG Chun-kam
Hon YEUNG Yiu-chung
Hon LAU Kong-wah
Hon Mrs Miriam LAU Kin-yee, JP
Hon Ambrose LAU Hon-chuen, JP
Hon CHOY Kan-pui, JP
Hon Paul CHENG Ming-fun, JP
Hon CHENG Yiu-tong
Dr Hon TANG Siu-tong, JP
Hon Timothy FOK Tsun-ting
Hon KAN Fook-yee
Hon NGAN Kam-chuen
Dr Hon LAW Cheung-kwok
Hon CHOY So-yukMembers absent :
Hon WONG Siu-yee
Prof Hon NG Ching-fai
Dr Hon David LI Kwok-po, JP
Hon Allen LEE, JP
Hon Mrs Selina CHOW, JP
Hon NGAI Shiu-kit, JP
Hon CHEUNG Hon-chung
Hon LEUNG Chun-ying, JP
Hon Mrs Sophie LEUNG LAU Yau-fun, JP
Hon HUI Yin-fat, JP
Hon CHAN Choi-hi
Hon TSANG Yok-sing
Hon Howard YOUNG, JP
Hon CHIM Pui-chung
Hon Bruce LIU Sing-lee
Hon LAU Wong-fat, JP
Hon LO Suk-ching
Hon TAM Yiu-chung, JPClerk in attendance :
Staff in attendance :
- Mrs Justina LAM
- Clerk to the House Committee
- Mr Ricky C C FUNG, JP
- Secretary General
- Mr Jimmy MA
- Legal Adviser
- Mr LAW Kam-sang, JP
- Deputy Secretary General
- Mr LEE Yu-sang
- Senior Assistant Legal Adviser
- Ms Pauline NG
- Assistant Secretary General 1
- Mr Ray CHAN
- Assistant Secretary General 3
- Ms Bernice WONG
- Assistant Legal Adviser 1
- Miss Anita HO
- Assistant Legal Adviser 2
- Mr Arthur CHEUNG
- Assistant Legal Adviser 5
- Mrs Anna LO
- Chief Assistant Secretary (Complaints)
- Ms Kathleen LAU
- Chief Public Information Officer
- Mrs Betty LEUNG
- Chief Assistant Secretary (3)1
- Mrs Mary TANG
- Senior Assistant Secretary (1)2
- Mrs Eleanor CHOW
- Senior Assistant Secretary (2)8
I. Confirmation of the minutes of the 37th meeting held on 13 March 1998
(PLC Paper No. CB(2) 1223)
1 The minutes were confirmed.
(a) Report by the Chairman on his meeting with the Chief Secretary for Administration (CS)
2 Members noted that two more items of subsidiary legislation had been gazetted. They concerned the change of the post title of the Secretary for Broadcasting, Culture and Sport and the Mass Transit Railway stored value tickets.
(b) Seven Commencement Notices relating to the Buildings Ordinance (gazetted on 6 March 1998 and tabled in the Council on 11 March 1998)
3 Mr Ronald ARCULLI informed members that he had consulted the Hong Kong Construction Association and the Real Estate Developers Association of Hong Kong on the proposed commencement dates and they had raised no objection.
(c) Securities and Futures Commission (Fees) (Amendment) Rules 1998 (L.N. 166) ("1998 Rules")
4 The Chairman said that members had decided at the last meeting that scrutiny of the Rules by a subcommittee was not necessary as the fees in question were not payable to the general revenue. He asked Mr WU whether there were any new reasons that members should consider.
5 Mr Henry WU said that the various increases and new fees in the 1998 Rules were exactly the same as those set out in the Securities and Futures Commission (Fees) (Amendment) Rules 1997 ("1997 Rules") which were repealed by the Provisional Legislative Council on 15 October 1997. He considered that members or at least the subcommittee formed to study the 1997 Rules should take a further look at the 1998 Rules before deciding to support them. He pointed out that neither he nor most members of the subcommittee were present at the last meeting when the item was discussed.
6 The Chairman said that where the House Committee had taken a decision on a matter, there could well be reasons for the matter to be raised for reconsideration. However, the fact that a member or certain members were not present at the meeting when the previous decision was made could not be accepted as a reason.
7 Mr Ronald ARCULLI pointed out that the subcommittee formed to study the 1997 Rules had already been dissolved and whether the 1998 Rules should be studied by a subcommittee had been discussed and decided on at the last meeting. He added that if a member could not attend a meeting and had a view or suggestion to make, he or she should ask another member to do it on his or her behalf.
8 Mr Ambrose LAU asked members to focus on whether the 1998 Rules should be scrutinized by a subcommittee given that the proposed fee increases and new fees were the same as those repealed by the Council in October last year.
9 Mr James TIEN said that he was the Chairman of the subcommittee formed to study the 1997 Rules. The subcommittee had objected to the 1997 Rules on the grounds that the Securities and Futures Commission (SFC) had a huge revenue from transaction levy and reserves and that a review on the costs for securities transaction was underway and scheduled to be completed by March 1998. Mr TIEN considered it necessary that the Administration should provide an explanation, although whether a subcommittee should be formed to consider the explanation would be a matter for members.
10 The Chairman invited members to first decide on the question that the House Committee should reconsider the matter of setting up a subcommittee to study the 1998 Rules. The Chairman put the question to vote. Eleven members voted for the question and two members voted against it.
11 Mr WU suggested that a subcommittee be formed to study the 1998 Rules. Members agreed. The following members agreed to join : Mr James TIEN, Mr Henry WU, Mr CHAN Kam-lam, Mr Kennedy WONG, Mr Ambrose LAU, Mr Paul CHENG and Dr LAW Cheung-kwok.
III.Business arising from previous Council meetings
Legal Service Divisions report on subsidiary legislation tabled in Council on 18 March 1998 (gazetted on 13 March 1998)
(PLC Paper No. LS 124)
12 The Chairman said that the four items of subsidiary legislation gazetted on 13 March 1998 were all Commencement Notices.
13 Referring to the Housing (Amendment) Ordinance 1997 (108 of 1997) (Commencement) Notice 1998, the Legal Adviser explained that the Acting Secretary for Housing had appointed 13 March 1998 as the day on which the Ordinance was to come into operation. The Ordinance mainly provided that any adjustment in rent of residential units under the Housing Authority must not commence within three years of the preceding adjustment. The Legal Adviser further explained that under the Housing (Amendment) Ordinance 1998 (3 of 1998) (Commencement) Notice 1998, the same date was appointed as the day the Ordinance was to come into operation.
14 The Legal Adviser added that the other two Commencement Notices concerned the Consumer Goods Safety Regulation and the Toys and Childrens Products Safety Regulation. The Secretary for Trade and Industry had appointed 1 April 1998 as the day on which both Regulations were to come into operation.
15 Members did not raise any queries on the subsidiary legislation.
IV. Further reports by the Legal Service Division on outstanding bills
(a) Adaptation of Laws (Courts and Tribunals) Bill
(PLC Paper No. LS 125)
16 The Legal Adviser said that the Bill, which was one of the five Bills relating to adaptation of laws, sought to adapt references to court nomenclatures and titles of judges in more than 230 Ordinances. In response to queries raised by the Legal Service Division, the Administration had agreed to propose certain technical amendments and the Bill was now ready for resumption of the Second Reading debate. He added that copies of the correspondence with the Administration were attached to the report and welcomed members to approach him if they had any queries.
(b) Adaptation of Laws (References to Foreign Country, etc.) Bill
17 The Legal Adviser explained that the Bill sought to make amendments to references to foreign country and other related expressions in specific ordinances to ensure conformity with the Basic Law and with the status of Hong Kong as a Special Administrative Region of the Peoples Republic of China. He said that a report was made to the House Committee meeting on 13 February 1998. The Legal Service Division had since gone through the amendments again and he could now confirm that the Bill was ready for resumption of the Second Reading debate.
(c) Adaptation of Laws (Crown Land) Bill
(PLC Paper No. LS 126)
18 The Legal Adviser said that the Bill provided textual amendment of references to the Crown in relation to land in the laws of Hong Kong so as to conform with Article 7 of the Basic Law. As a result of discussion with the Administration, the Secretary for Planning, Environment and Lands had agreed to move certain Committee stage amendments. The Bill was ready for resumption of the Second Reading debate.
V. Further business for the Council meeting on 25 March 1998
(PLC Paper No. CB(3) 787)
19 Members noted that 19 questions (six oral and 13 written) had been scheduled.
(b) Bills - resumption of debate on Second Reading, Committee Stage and Third Reading
- Fire Safety (Commercial Premises) (Amendment) Bill 1998
- Prevention of Copyright Piracy Bill
- Kowloon-Canton Railway Corporation (Amendment) Bill 1998
20 The Chairman said that members had agreed at the last meeting that the Second Reading debate on the above three Bills be resumed. Members noted that a total of 10 bills would be dealt with at the Council meeting on 25 March 1998.
21 The Chairman informed members that Mr CHAN Choi-hi had given notice to move amendments to the Fire Safety (Commercial Premises) (Amendment) Bill 1998 but such proposed amendments had not been discussed by the Bills Committee concerned. The Chairman pointed out that although it was Members right to propose amendments
to bills in accordance with the Rules of Procedure, if a Bills Committee member intended to move amendments it would be more desirable if he or she could let the Bills Committee know to enable the latter to discuss the amendments.
VI. Business for the Council meeting on 1 April 1998
(PLC Paper No. CB(3) 788)
22 The Chairman said that 20 questions (six oral and 14 written) had been scheduled.
(b) Bill - resumption of debate on Second Reading, Committee Stage and Third Reading
Housing (Amendment) (No. 3) Bill 1997
23 Members noted that the Administration had given notice to resume the Second Reading debate on the Bill on 1 April 1998.
3 Resolutions under sections 5, 46 and 48 of the Mandatory Provident Fund Schemes Ordinance (Cap. 485) - to be moved by the Secretary for Financial Services
24 The Chairman said that the Administration had given notice to move the three Resolutions on 1 April 1998.
25 Mr Ronald ARCULLI said that the former Bills Committee on Provident Fund Schemes Legislation (Amendment) Bill 1997 had already studied the draft Resolutions in detail. A subcommittee was later formed to continue the scrutiny of the Resolutions after the passage of the Bill. The subcommittee had held two meetings with the Administration and also noted the views of 15 organizations.
26 Mr ARCULLI informed members that the subcommittee had divergent views in respect of a few investment-related issues under the Mandatory Provident Fund Schemes (General) Regulation. One issue concerned the capital preservation product (CPP). Some members were of the view that to ensure a reasonable return for scheme members opting to invest in the product, there should be an additional legal requirement that the investment return of the CPP must exceed the
savings deposit interest rate by 2%. These members had asked the Administration to consider topping up the shortfall by way of a loan if the investment return failed to meet the benchmark. The Administration objected to the proposal on account of practical difficulties and anomalies in requiring a guaranteed return in the context of the Mandatory Provident Fund (MPF) legislation. Mr ARCULLI said that a member had indicated that he might move amendments to provide for a scheme or product that would have a guaranteed return.
27 Mr ARCULLI further informed members that another issue on which there was difference in views was the requirement for an MPF scheme to invest at least 30% of its funds in Hong Kong dollar denominated assets. Some subcommittee members however preferred a higher percentage of 50% so as to reduce currency risks and boost local investments and would move amendments to this effect. Mr ARCULLI pointed out that different sectors of the investment industry also had mixed views on this issue.
28 Mr ARCULLI added that the subcommittee also had diverse views on the proportion of funds to be invested in shares. Some members had suggested that all MPF products should have more than 50% of their funds invested in shares. They considered this to be a safeguard on investment practice and would consider proposing amendments to this effect.
29 As regards the Mandatory Provident Fund Schemes (Exemption) Regulation which dealt mainly with the interface arrangements of existing voluntary schemes with the MPF system, members noted that the major provisions had been deliberated at length and agreed to by the subcommittee. Subcommittee members also had not raised queries on the Mandatory Provident Fund (Schemes) (Amendment of Schedule 6) Notice 1998.
30 Mr ARCULLI said that the subcommittee would not move any amendment in its name while the Administration had yet to advise whether it would propose any amendments. He reminded members that the deadline for giving notice to amend the Resolutions was 25 March 1998.
(d) Members motions
(i) Motion on "Editorial independence of Radio Television Hong Kong"
31 Members noted the wording of the above motion to be moved by Mr Edward HO Sing-tin.
(ii) Motion on "Establishing a Social Welfare Services Development Fund"
32 Members noted the wording of the above motion to be moved by Mr Eric LI Ka-cheung.
33 The Chairman reminded members that the deadline of giving notice of amendments, if any, to the above motions was 25 March 1998 and that the normal speaking time limits would apply.
VII. Advance information on business for the Council meetings on 7 - 8 April 1998
(a) Bills - resumption of debate on Second Reading, Committee Stage and Third Reading
- Inland Revenue (Amendment) Bill 1998
- Inland Revenue (Amendment) (No. 2) Bill 1998
- Stamp Duty (Amendment) (No. 2) Bill 1998
34 Members noted that the Administration had given notice to resume the Second Reading debate on these bills at the Council meeting on 7 and 8 April 1998. The Chairman said that the Bills Committees concerned were still scrutinizing the Bills.
(b) Members motions
(i) Motion to be moved by Hon CHENG Yiu-tong
35 Members noted that Mr CHENG Yiu-tong had been allocated a debate slot.
(ii) Motion on "Hong Kongs economic development"
36 Members noted that Mr Henry TANG Ying-yen had been allocated a debate slot.
37 The Chairman reminded members that the deadlines for giving notice of, and amendments, if any, to the above motions were 21 March 1998 and 30 March 1998 respectively, and that the normal speaking time limits would apply.
(iii) Valedictory motion
38 Members noted the draft wording of the above motion to be moved by the Chairman. The Chairman asked members to let him have their comments, if any, on the draft wording by 12:00 noon on the following day.
39 The Chairman said that Members had agreed at the last meeting that the speaking time limits would be 13 minutes and five minutes for the mover of motion and other Members respectively.
(a) Position report on Bills Committees/subcommittees
(PLC Paper No. CB(2) 1242)
40 The Chairman said that there were three subcommittees and seven Bills Committees in action. In addition, members had earlier agreed to form one subcommittee under agenda item II. Two subcommittees had completed work and would report under VIII(b) and (c) below.
(b) Report of the subcommittee on the four items of subsidiary legislation made under the Mental Health Ordinance
(PLC Paper No. CB(2) 1233)
41 Referring to the report, Dr TANG Siu-tong said that he wished to highlight two issues. The first concerned whether the removal of a healthy organ from a mentally incapacitated person for the purpose of transplant to another person could be regarded as a treatment or special treatment "in the best interests" of the mentally incapacitated person. The Administration had undertaken to follow up on the Estate Doctors Association Limiteds suggestion that organ donation by mentally incapacitated persons be specified as a special treatment under the Mental Health Ordinance. The Administration had advised the subcommittee that it would need to seek legal and medical opinions and further consult the relevant bodies before a decision on this matter could be taken.
42 Dr TANG said that the other issue concerned the setting up of the Guardianship Board. The Administration had advised that it would proceed with the recruitment of the Chairperson and supporting staff of the Board as soon as the necessary funding was approved by the Finance Committee at the end of March 1998. The Administration had estimated that the Board would be in operation around mid-1998 subject to the recruitment of staff progressing smoothly.
(c) Report of the subcommittee on Attachment of Income Order Rules
(PLC Paper No. CB(2) 1245)
43 Mr CHAN Kam-lam explained the background and objectives of the Rules as set out in paragraphs 2 and 3 of the report. Mr CHAN said that the subcommittee recommended that the Rules be supported subject to amendments to be moved by the subcommittee. As the Administration had raised objections to these amendments, he wished to brief members in greater detail. Referring to paragraph 11 of the paper, Mr CHAN said that subcommittee members had suggested that it be made clear that the maintenance payee be allowed to use another persons address and Rule 3(2)(a) be amended to this effect. The Administration had disagreed on the ground that Rule 3(2)(a) as drafted already permitted a designated payee to use an address other than his or her residential address. Moreover, permitting a third party who was not the payees legal representative to receive documents on behalf of the payee was inconsistent with the courts usual disapproval for third parties to be involved in proceedings on matrimonial matters.
44 Mr CHAN said that subcommittee members were concerned that a designated payee might not have knowledge of the maintenance payers income source and recommended that Rule 3(2)(i) be amended by adding the words "if known to the designated payee". The Administration had advised that the maintenance payee could still proceed despite the fact that he or she did not know the current income source of the maintenance payer.
45 Referring to Rule 3(3), Mr CHAN pointed out that members had suggested that if a designated payee was allowed to serve a copy of the summons on the maintenance payer by mail, it should be so specified in the Rule. The Administration had responded that there was no need to amend the Rule since it did not specify personal service of summons, hence the copy could be sent by mail or other means as provided for in, say, the Rules of High Court, District Court (Civil Procedure) (General) Rules, etc.
46 Mr CHAN said that the wording of the amendments set out in Appendix II was subject to further discussion between the Administration and the Legal Service Division.
47 Mr CHAN added that the subcommittee had also recommended that certain issues and concerns raised by subcommittee members should be referred to and followed up by the Panel on Home Affairs. Mrs Peggy LAM informed members that the item of mechanism for recovery of alimony had been added to the agenda of the Panels meeting on 23 March 1998.
(d) Report of the subcommittee on subsidiary legislation relating to Mandatory Provident Fund Schemes
48 Members noted that Mr Ronald ARCULLI had reported under agenda item VI(c) above.
(e) Report of the Bills Committee on Land (Compulsory Sale for Redevelopment) Bill
49 Mr ARCULLI said that the Bills Committee had so far held 11 meetings with the Administration to examine the Bill in detail and consensus had been reached on some major issues. These included -
- the minimum acquisition level as proposed in the Bill i.e. where majority owners held 90% of undivided shares in a lot, they could make an application to the Lands Tribunal for an order for sale. The percentage of acquisition could be lowered to not less than 80% if specified by the Chief Executive in Council;
- scope of application of the Bill i.e. in respect of two buildings which stood on two lots but shared a common staircase, the Bills Committee had suggested that the minimum acquisition level should be an average of 90% of the aggregate undivided shares in the two lots;
- the mode of sale i.e. the sale of a lot would be by way of auction, unless agreed otherwise by all owners as proposed by the Bills Committee; and
- termination of tenancies i.e. termination of tenancies would take effect upon the day on which the purchaser of the lot became owner of the lot as proposed by the Bills Committee.
50 Mr ARCULLI informed members that the Bills Committee had yet to examine some of the latest draft Committee stage amendments. However, as the deadline for giving notice to resume the Second Reading debate on bills at the last Council meeting was 21 March 1998, the Bills Committee had agreed that the Administration should proceed to give notice.
IX. Any other business
Last Council meeting
51 Members noted that the President had agreed that the last meeting of the Council should be advanced to 7 April 1998. The meeting would start at 2:30 pm.
52 The meeting ended at 5:05 pm.
Provisional Legislative Council Secretariat
25 March 1998