LC Paper No. CB(1) 1928/98-99
(These minutes have been seen
by the Administration)
Bills Committee on
Adaptation of Laws (No. 9) Bill 1999
Minutes of meeting
held on Tuesday, 8 June 1999, at 10:45 am
in Conference Room B of the Legislative Council Building
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 :
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.
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
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
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
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
|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
(Cap. 215 sub. leg.))
Section 4 of Schedule 6 (Section 21, Road Tunnels (Government) Ordinance
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)
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)
(Cap. 374 sub. leg.))
Section 64 of Schedule 8 (Regulation 41(2)(a), Road Traffic (Traffic
(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)
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,
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