Ref: CB1/BC/12/98/2

Members present :

Hon Margaret NG (Chairman)
Hon HUI Cheung-ching
Hon Andrew WONG Wang-fat, JP
Hon Jasper TSANG Yok-sing, JP
Hon LAU Kong-wah
Hon Mrs Miriam LAU Kin-yee, JP

Member absent :

Hon James TO Kun-sun

Public officers attending :

Transport Bureau

Ms Doris CHEUNG, Principal Assistant Secretary for Transport

Department of Justice

Miss Shandy LIU, Senior Government Counsel

Mr Allen LAI, Government Counsel

Ms Vicki LEE, Government Counsel

Clerk in attendance :

Ms LEUNG Siu-kum, Chief Assistant Secretary (1)2

Staff in attendance :

Miss Connie FUNG, Assistant Legal Adviser 3

Mr Andy LAU, Senior Assistant Secretary (1)6

I Meeting with the Administration

(LC Paper No. CB(1) 1440/98-99(01)	--	The Administration's explanation regarding Committee Stage amendments proposed by the Administration.
LC Paper No. LS 164/98-99 (Revised)	--	Information paper prepared by the Legal Service Division
LC Paper No. CB(1) 1460/98-99(01)	--	List of issues raised by members at the meeting on 26 April 1999
LC Paper No. CB(1) 1460/98-99(02)	--	The Administration's response to CB(1) 1460/98-99 (01)
LC Paper No. CB(1) 558/98-99(02)	--	Adaptation of Laws Programme -Guiding Principles and Guidelines Glossary of Terms))

In response to members' queries raised at the last meeting, the Administration had provided an information paper for members reference. Members went through the paper (CB(1) 1460/98-99(02)) in detail. The main deliberations of the Bills Committee were summarized below.

General issues

2. The Chairman expressed reservations at the Adaptation of Laws Programme. She queried the principles under which the laws were adapted and stressed that any legislation adapted should be consistent with the Basic Law. She pointed out that in accordance with Article 22 of the Basic Law, all offices set up in the Hong Kong Special Administrative Region (HKSAR) by departments of the Central Government, or by provinces, autonomous regions, or municipalities directly under the Central Government, and the personnel of these offices should abide by the laws of HKSAR. However, the present proposal made by the Administration to amend the reference to "Crown" in the provisions concerned to "State" would result in the provisions contravening the Basic Law. For instance, vehicles and persons in the public service of the "State" after adaptation would be exempted from the payment of tolls when engaging on duty relating to the tunnel area. The Chairman considered that such an exemption was in contravention of the Basic Law which clearly stated that organs of the Central Government and personnel of these offices in Hong Kong should abide by the laws of Hong Kong. Mr Andrew WONG also remarked that if a clear departure was observed in this regard, suitable amendments should be made to bring the provisions into conformity with the Basic Law and such amendments would inevitably touch on policy issues and involve the interpretation of the Basic Law.

3. Mr TSANG Yok-sing considered that the said inconsistency did not arise from the proposed adaptation. It existed even without the introduction of the law adaptation exercise. The Chairman however opined that whether a particular provision of existing laws was inconsistent with the Basic Law would be a matter for the court to decide. However, if the legislature took a positive act to adapt the ordinances to the effect that there would still be inconsistency with the Basic Law, the legislature would be ultimately accountable for the inconsistency. In this respect, she considered that suitable amendments where policy changes were involved should be made in conjunction with the adaptation exercise.

4. Mr Allen LAI, Government Counsel, advised that the Adaptation of Laws Programme had the limited purpose of making amendments that were necessary to bring the laws into conformity with the Basic Law and with Hong Kong's new status as a Special Administrative Region of the People's Republic of China. The Ordinances concerned were adapted as they stood in accordance with the relevant provisions of the Interpretation and General Clauses Ordinance (Cap. 1). Should any policy issues underlying the legislation arouse concern among members of the Bills Committee, they should be dealt with in a separate exercise.

Section 13 of Schedule 1 (By-law 4(1), Cross-Harbour Tunnel By-laws (Cap. 203 sub. leg.))
Section 14 of Schedule 2 (By-laws 4(1), Eastern Harbour Crossing Road Tunnel By-laws (Cap. 215 sub. leg.))
Section 12 of Schedule 10 (By-laws 4(1), Tate's Cairn Tunnel By-laws (Cap. 393 sub. leg.))

5. Noting that inconsistencies would arise upon the proposed adaptation of "person or vehicle in the service/public service of the Crown" in the three pieces of tunnel legislation under consideration and other tunnel legislation, viz the Tsing Ma Control Area Ordinance (Cap. 498), the Western Harbour Crossing Bylaw (Cap. 436 sub. leg.) and the Tai Lam and Yuen Long Approach Road Bylaw (Cap. 474 sub. leg.), members queried the basis for such inconsistencies.

6. Ms Vicki LEE, Government Counsel pointed out that the proposed amendments were in line with section 7 of Schedule 9 to the Interpretation and General Clauses Ordinance (Cap. 1). The inconsistencies rested with the original drafting of the legislation rather than from the adaptation of laws exercise. Given that the legislature passed the relevant legislation with clear reference to the "Crown" and "Government" under different tunnel legislation, there was no latitude, for the purpose of the adaptation exercise, for the Administration to attribute legislative intention to the legislature beyond the clear words of the law. Any such changes were policy changes which would have to be dealt with outside the Adaptation of Laws Programme.

7. As to why the term "Government" was used in other tunnel legislation at the outset, Ms Vicki LEE advised that at the time the legislation were drafted, the Administration saw a need to replace references to "Crown" in the provisions concerned to another word in the light of the forthcoming transfer of sovereignty. Given that the concerned provisions of "State" under section 66 of Cap. 1 had not yet been drawn up at the time, it was then considered that the term "Government" was the most suitable replacement under the circumstances.

8. Mrs Miriam LAU opined that it could not be the established policy to exempt vehicles used for defence purposes from the payment of tolls whilst engaging on duty relating to the tunnel area since such provision had never been included in other tunnel legislation. She therefore commented that the present proposal to exempt vehicles in the public service of the State from the payment of tolls was a departure from the established policy. She expressed concern that after adaptation, a considerable number of subordinate organs of the Central People's Government would also be entitled to the exemption under the definition of "State".

9. On members' proposal to change the references to the "Crown" in the provisions concerned to "Government" to achieve consistency among all tunnel legislation, Ms Vicki LEE reminded that while the references to "Crown" in the savings and application provisions in the same legislation would be adapted to "State", the Administration should treat the exemption provision equally to keep the consistency in these provisions. Hence, the references to "Crown" in the exemption provision should also be adapted to "State".

10. On the scope of coverage of the "Crown" in the existing legislation, Ms Vicki LEE explained that the word "Crown" was an all embracing word. It covered all government or government-related organs. The scope would be the same as before upon the proposed adaptation of "Crown" to "State". The Chairman was not convinced by the Administration's explanation. She pointed out that the decision to change references to "Crown" in the provisions concerned to "Government" in other tunnel legislation before Reunification had indicated that the Administration was aware of the two implied meanings of the term "Crown", viz, Crown in right of the Hong Kong Government and Crown in right of the United Kingdom Government. Hence, suitable amendments had been made for individual ordinances based on the Administration's interpretation of the meaning of the Crown as the case might be.

11. The Chairman also pointed out that the law adaptation exercise was not simply a technical exercise. For certain provisions, it would inevitably touch on wider policy areas which was beyond the scope of the Bills Committee. Mr Andrew WONG opined that for the purpose of law adaptation, some degree of flexibility should be exercised as appropriate. As far as the present case was concerned, he suggested that references to "Crown" in the concerned ordinances should be changed to "Government" in consideration of the fact that in the past, Governor, being also the Commander-in-Chief of the armed forces in Hong Kong, was, in fact, playing a dual role of the service of the Crown and the Government itself. The proposed amendment therefore simply reflected the then constitutional arrangement.

12. Some members made suggestions to change the references to "Crown" in the concerned ordinances to "Government" instead of "State" and to introduce a separate amendment bill to deal with matters related to policy change. The Administration noted members' concerns in this regard and undertook to consider their suggestions.	Admin

Section 14 of Schedule 1 (By-law 26, Cross Harbour Tunnel By-laws (Cap. 203 sub. leg.))
Section 15 of Schedule 2 (By-law 23, Eastern Harbour Crossing Road Tunnel By-laws
(Cap. 215 sub. leg.))
Section 4 of Schedule 6 (Section 21, Road Tunnels (Government) Ordinance (Cap. 368))
Section 13 of Schedule 10 (By-law 23, Tate's Cairn Tunnel By-laws (Cap. 393 sub. leg.))

13. Members noted that the purpose of these savings provisions was to preserve those powers or duties the law had conferred or imposed on persons in the public service of the Crown which might be affected by the operation of the subject legislation. As the subject matter was closely related to the above exemption provisions, members considered that reference to "Crown" in these provisions should be adapted in the same manner as those related to the exemption provisions.

Section 16 of Schedule 2 (By-law 24, Eastern Harbour Crossing Road Tunnel By Laws (Cap. 215 sub. leg.))
Section 14 of Schedule 10 (By-law 24, Tate's Cairn Tunnel By-laws (Cap. 393 sub. leg.))

14. Ms Vicki LEE advised that these provisions expressly applied the By-laws to vehicles and persons in the public service of the Crown unless otherwise stated in the By-laws. Before Reunification, this meant that vehicles of and persons serving any emanation of the Crown would have to observe the By-laws which were mainly concerned with traffic control, prohibited and restricted traffic within the respective tunnel areas as well as the payment of tolls. The reference to "Crown" in these provisions was now proposed to be adapted to "State" and the By-laws would continue to apply to vehicles and persons in the public service of the State. Members agreed to the proposed adaptation.

15. The Chairman raised concern about Section 66(1) of the Interpretation and General Clauses Ordinance (Cap. 1) which provided that "No Ordinance (whether enacted before, on or after 1 July 1997) shall in any manner whatsoever affect the right of or be binding on the State unless it is therein expressly provided or unless it appears by necessary implication that the State is bound thereby". She sought clarification about whether, if the term "Crown" in the provision "Except where otherwise expressly provided these by-laws shall apply to vehicles and persons in the service of the Crown" was to be adapted to "Government", vehicles and persons in the public service of the State would be exempted from the By-laws. She asked when taking into consideration of Article 22 of the Basic Law which stated that all personnel of the Central Government's offices should abide by the laws of HKSAR, whether the phrase "by necessary implication" under section 66(1) of Cap.1 would be applicable in the circumstances, and the By-laws would still be binding on the State. Ms Vicki LEE was asked to look into the matter.

Admin

Section 1 of Schedule 3 (Section 3, Fixed Penalty (Traffic Contraventions) Ordinance
(Cap. 237))

16. Members noted that this application clause provided that the Fixed Penalty (Traffic Contraventions) Ordinance (Cap. 237) applied to motor vehicles owned by the Crown and to persons in the public service of the Crown. The reference to "Crown" in these provisions was proposed to be adapted to "State". The Chairman remarked that the proposed adaptation might involve a policy change as the word "Crown" in the provision, in her opinion, meant Crown in right of the Hong Kong Government. However, having regard to the effect of section 66(1) of Cap. 1 which provided that no ordinance should in any manner whatsoever affect the right of or be binding on the State unless it was therein expressly provided, she would have no other choice but accept the proposed adaptation. Members were of the view that vehicles and persons in the public service of the State should not be exempted from the concerned provisions.

Section 4(3), Roads (Works, Use and Compensation) Ordinance (Cap. 370)

17. Members noted that under section 4(3), "no person shall have any right against the Crown or any other person to restrain or compel anything authorized under this section or to recover any money, under this Ordinance or otherwise, in respect of anything authorized under this section". The Administration now proposed to replace the term "Crown" in this provision to "Government". The Chairman enquired whether "any other person" in the concerned provision included person in the public service of the State. Ms Vicki LEE advised that since the entire Ordinance did not expressly provide that the provisions contained therein should apply to the State, the provisions should therefore not be binding on the State unless it appeared by necessary implication that the State was bound thereby as provided for in section 66(1) of Cap. 1. Her initial opinion in this regard was that reference to "any other person" should not be extended to cover any person in the public service of the State.

Section 62 of Schedule 8 (Regulation 2(1), Road Traffic (Traffic Control) Regulations
(Cap. 374 sub. leg.))
Section 64 of Schedule 8 (Regulation 41(2)(a), Road Traffic (Traffic Control) Regulations
(Cap. 374 sub. leg.))

Admin 18. Members noted that the phrase "person in the public service of the Crown" was defined in Regulation 2(1) of the Road Traffic (Traffic Control) Regulations (Cap. 374 sub. leg.) for the purpose of that Regulation as to include the military forces. The Administration therefore proposed to adapt "Crown" in that phrase to "State". Members also noted that adaptation of references to "Her Majesty's armed forces" in the concerned provision would be dealt with separately by the Adaptation of Laws Bill relating to the Garrison. At the request of the Chairman, the Administration undertook to provide further information on all provisions containing the reference to the definition and the effect after the adaptation.

Section 2 of Schedule 9 (Section 17, Road Traffic (Driving-offence Points) Ordinance
(Cap. 375))

19. Members noted that before Reunification, this provision expressly applied the Road Traffic (Driving-offence Points) Ordinance (Cap. 375) to persons in the public service of the Crown, so that they were bound by the same law in respect of the recording of driving-offence points and disqualification from driving etc. Mr Andrew WONG enquired whether the provision was applicable to Her Majesty's armed forces and the People's Liberation Army before and after Reunification and whether they possessed separate driving licences for such purpose. Ms Vicki LEE advised that provisions relating to vehicle registration did not apply to Government vehicles and vehicles used by "Her Majesty's forces".

20. At members' request, the Administration undertook to provide detailed information on the existing legislation governing persons and vehicles in the public service of the Crown in respect of matters such as the issue of driving licence, vehicle licence and registration, provisions exempting such persons and vehicles from the requirement of law, the enforcement of the provisions relating to traffic offences, fixed penalty and driving-offence points against persons and vehicles in the service of Her Majesty's forces, etc.

Admin

Clause 3 of Schedule 5 (Section 4(4), Motor Vehicle Insurance (Third Party Risks) Ordinance (Cap. 272)

21. Ms Vicki LEE briefed members that Section 4 of the Ordinance obliged all users of motor vehicles to be insured against third party risks. Criminal liability was the sanction upon a failure to do so. Subsection (4) thereof, however, expressly provided that the section should not apply to certain categories of vehicles so that they were not required by law to take out third party insurance. One of the exempted categories was "any motor vehicle which is the property of Her Majesty or the Government upon any occasion upon which such vehicle is being used by a person authorized by Her Majesty or the Government to use the same on such occasion". As the provision did not apply to both the UK Government and the Hong Kong Government before Reunification, the same treatment should therefore be given to the State after Reunification. Hence, references to "Her Majesty or the Government" in the concerned provision was proposed to be adapted to "the State".

22. Some members queried the justification for the proposed adaptation. They pointed out that the meaning of "Her Majesty" was essentially different from that of the "Crown". Ms Vicki LEE advised that "Her Majesty" was sometimes used interchangeably with "the Crown" in the legislation. In such cases, "Her Majesty" did not merely mean the Queen personally, but extended to mean all elements of her executive government.

23. The Chairman and Mrs Miriam LAU were not convinced by the above explanation. They pointed out that "Her Majesty" was inferring the Queen personally whereas reference to the Government was inferring the Hong Kong Government itself. As such, the Administration's proposal to amend the two references to "Her Majesty or the Government" to "the State" was inappropriate. They worried that the category of state vehicles exempted from taking out third party insurance would be too wide, and there was no channel for victims to claim damages from the State organs. The Chairman also pointed out that the exemption would also be in contravention of Article 22 of the Basic Law which stated that organs of the Central Government and personnel of these offices in Hong Kong should abide by the laws of Hong Kong. Members asked for further information on the basis upon which the Administration established her interpretation that "Her Majesty" did not only infer the Queen herself and therefore should be adapted to "State". The Administration also undertook to explain in detail the exact categories of vehicles which could be exempted from the requirement of taking out third party insurance.

Admin

The Way Forward

24. The Chairman sought members and the Administration's view on whether there was a need to speed up the scrutiny of the bill so that Second Reading debate of the bill could be resumed before the summer recess. As there were still a number of issues needed to be resolved, both the Administration and members agreed that there was no need to rush for the passage of the Bill before the summer recess.

25. Members agreed that the next meeting would be held on 10:45 am on 6 July 1999.

(Post meeting note : With the concurrence of the Chairman, the meeting time was subsequently changed to 10:45 a.m. on 7 July 1999).

II Any other business

26. There being no other business, the meeting ended at 12:45 pm.

Legislative Council Secretariat
20 September 1999