LC Paper No. CB(1) 1551/98-99
(These minutes have been seen
by the Administration)
Bills Committee on Members present :
Adaptation of Laws (No. 9) Bill 1999
Minutes of meeting
held on Monday, 26 April 1999, at 4:30 pm
in Conference Room B of the Legislative Council Building
Hon Margaret NG (Chairman)
Hon HUI Cheung-ching
Hon Andrew WONG Wang-fat, JP
Hon Mrs Miriam LAU Kin-yee, JPMembers absent :
Hon James TO Kun-sun
Hon Jasper TSANG Yok-sing, JP
Hon LAU Kong-wahPublic officers attending :
Clerk in attendance :
- Transport Bureau
- Ms Doris CHEUNG,
- Principal Assistant Secretary for Transport (6)
- Mr Roy TANG,
- Principal Assistant Secretary for Transport (3)
- Department of Justice
- Mr John WONG,
- Senior Government Counsel
- Miss Shandy LIU,
- Senior Government Counsel
- Mr Allen LAI,
- Government Counsel
- Ms Vicki LEE,
- Government Counsel
Staff in attendance :
- Mr Andy LAU,
- Chief Assistant Secretary (1)3 (Atg)
I Election of Chairman
- Miss Connie FUNG,
- Assistant Legal Adviser 3
- Ms Sarah YUEN,
- Senior Assistant Secretary (1)4
Members agreed that Miss Margaret NG should preside over the election of Chairman of the Bills Committee.
2. Miss Margaret NG invited nominations for chairmanship. She was nominated by Mr HUI Cheung-ching and seconded by Mrs Miriam LAU. Miss Margaret NG accepted the nomination.
3. There being no other nomination, Miss Margaret NG was elected Chairman of the Bills Committee.II Meeting with the Administration
(The relevant Bill circulated vide LC Paper No. CB(3)1368/98-99, the relevant Legislative Council Brief (Ref.: L/M(1) to TBCR 1/3231/91 Pt.III), the Legal Service Division Report issued vide LC Paper No. LS 136/98-99, a marked-up copy of the Bill issued vide LC Paper No. CB(1)1180/98-99, and the Administration's response to queries raised by the Legal Service Division on the Bill under Ref LC Paper No. LS 164/98-99 and issued vide LC Paper Nos. CB(1)1192 and 1200/98-99)
4. Members agreed to adopt the chart entitled "Administration's response to queries raised by the Legal Service Division on the Adaptation of Laws (No. 9) Bill 1999" (the Chart) issued vide LC Paper No. LS 164/98-99 as the backbone for subsequent discussion. Where appropriate, the Administration would be requested to provide written information to address members' concerns raised at the meetings.
5. At the Chairman's invitation to brief members on the gist of the Bill, Mr John WONG explained that where the word "Crown" was concerned, the general principle was that it should be substituted as appropriate by either "State" or "Government" according to the contexts in which the "Crown" was referred to. As such, during drafting of the Bill the bureaux concerned had been consulted on the policy considerations behind the relevant provisions.
6. The Chairman referred to the general proposal to amend "any function to be exercised by the Governor in Council under this Ordinance may, where the Governor is of the opinion that the matter is one of urgency, be exercised by the Governor" to "any function to be exercised by the Chief Executive in Council under this Ordinance may, where the matter is one of emergency, be exercised by the Chief Executive", and pointed out that the amendment might result in change of legal effect as the former provided for a subjective test of "urgency" by the Governor whereas the latter was silent on whether the test of "emergency" was subjective or objective. She opined that the proposal warranted more in-depth discussion.
Paragraph 2 of Schedule 8 - Section 3 of the Road Traffic Ordinance
7. The Chairman questioned if the substitution of "Crown" by "State" had in fact been proposed in response to special needs, pointing out that the proposed substitution had not been provided for either in the Hong Kong Reunification Ordinance or the Decision of the Standing Committee of the National People's Congress on Treatment of the Laws Previously in Force in Hong Kong. Mr John WONG replied that reference had been made to Item 7(1) of Schedule 9 to the Interpretation and General Clauses Ordinance (Cap. 1), which provided that where it was expressly provided in an Ordinance that the Ordinance affected or did not affect the right of, or was or was not binding on the Crown, then that reference to the Crown should be construed as a reference to the State. The Principal Assistant Secretary for Transport (3) (PAS/T3) supplemented that the proposed adaptation of "person or vehicle in the service/public service of the Crown" into "person or vehicle in the service/public service of the State" was an example of adaptation in accordance with Item 7(1) of Schedule 9 to Cap. 1, having regard that provisions containing the reference to "person or vehicle in the service/public service of the Crown" in fact dealt with provisions that would either apply the relevant enactments to vehicles or persons in the service of the Crown or otherwise affect the rights of the Crown. A case in point was section 3 of the Road Traffic Ordinance (Cap. 374). Members noted that in consideration that the Parts referred to in section 3(1) dealt with offences related to speeding, drink driving, reckless driving and careless driving, the legislative intent was that those offences should also apply to vehicles and persons in the service of the organs of the Central People's Government stationed in Hong Kong.
Paragraph 13 of Schedule 1 - by-law 4(1) of the Cross-Harbour Tunnel By-laws
8. While supporting a wider scope of application for binding provisions, the Chairman opined that this should be just the opposite for exemption provisions such as by-law 4(1) of the Cross-Harbour Tunnel By-laws (Cap. 203 sub. leg.), whereby a vehicle which carried a person in the public service of the Crown engaged on duty relating to the tunnel area would be exempt from the payment of a toll. She therefore queried the justification for the proposed adaptation of replacing the term "Crown" by "State" which would widen the extent of the exemption. Ms Vicki LEE explained that in proposing the adaptation, consideration had been given to the legislative intent of the original provision, which was to exempt those vehicles and persons engaged on duty relating to the tunnel area from the payment of a toll. Since vehicles used for defence purposes might qualify as vehicles as such, it was appropriate to adapt "Crown" to "State" in this particular case. Members were assured that after adaptation, the scope of such exemption would still remain limited as the precondition for exemption was that the persons or vehicles involved had to be engaged on duty relating to the tunnel area. The Chairman considered it necessary to examine the original policy intent of the provisions. She suggested that the Bills Committee should seek to determine how exemption or binding provisions should be dealt with and, at her request, the Administration agreed to set out in a self-contained paper the guiding principles of the proposed adaptation of references to "Crown" in the relevant Ordinances and their subsidiary legislation, the original policy intents of the provisions and the actual effect of the provisions after adaptation. In addition, cross reference materials, if any, should be attached.
9. Pointing out that Garrison-related adaptation amendments were still under examination and that in her view the word "Crown" in by-law 4(1) of the Cross-Harbour Tunnel By-laws (Cap. 203 sub. leg.) should refer to "Government", the Chairman opined that the proposed substitution of the word "Crown" with "State" in this by-law had indeed involved some kind of policy change. She pointed out that although members might support the policy change in question, she had reservation as to whether it was appropriate to include amendments which involved policy changes in the context of the adaptation of laws exercise. In response, the Administration agreed to examine if the relevant amendments would be outside the scope of the adaptation of laws exercise.
10. In this connection, Ms Vicki LEE also drew members' attention to by-law 4(2), which referred to "vehicle used for defence purposes, including civil defence purposes", and maintained that it was the original legislative intent of by-law 4(1) to cover the military forces stationed in Hong Kong by the United Kingdom. Mrs Miriam LAU however pointed out that as far as she recalled, the term "Government" was used instead of "State" in some other tunnel legislation. She therefore queried about the inconsistency. Mr HUI Cheung-ching also cautioned that as some of the State vehicles had no identification and some tunnels were private tunnels, application of the above provision to State vehicles might be difficult. ALA3 further pointed out that as highlighted in the Chart, section 3 of the Western Harbour Crossing Bylaw (Cap. 436 sub. leg.) and the Tai Lam Tunnel and Yuen Long Approach Road Bylaw (Cap. 474 sub. leg.) only exempted vehicles that carried persons in the public service of the Government and not the State from the payment of toll when such persons were engaged on duty relating to the tunnel area. Members urged the Administration to ensure consistency between similar laws. They also requested the Administration to provide further information on the original policy intent of by-law 4(1), in particular on whether the exemption clause was applied to Her Majesty's forces in the past, whether it was appropriate to include the proposed amendment in the adaptation of laws exercise and whether enforcement problems were envisaged.
Paragraph 14 of Schedule 1 - by-law 26 of the Cross-Harbour Tunnel By-laws
11. Ms Vicki LEE explained that this section saved the power or duty conferred or imposed by any law upon persons in the service of the Crown. Under the Interpretation and General Clauses Ordinance (Cap. 1), "law" was defined to include law applicable in Hong Kong. By reading Annex III to the Basic Law on national laws applicable to the HKSAR and in view of the fact that under the Garrison Law, it was the Garrison who acted in place of the British forces, it was the Administration's submission that in this savings provision the word "Crown" should be substituted by "State". The Chairman said that without studying by-law 26 in detail, it would not have come into light the complexity of the issues involved. Accordingly, the provision should be studied with care. At her request, the Administration was asked to take into account the remarks made by the Chief Justice on the position and restriction of law enforcement under the new order in the Court of Final Appeal's judgment on the right of abode delivered on 29 January 1999 when determining the guiding principles for the adaptation of laws exercise, especially in determining whether it was an established presumption that acts of the State or Government should be placed above the law. The Administration was also asked to provide further information on the basis of the proposed amendment of by-law 26 and the actual effect of the provision upon adaptation.
Paragraph 3 of Schedule 5 - Section 4(4) of the Motor Vehicles Insurance (Third Party Risks) Ordinance
12. Referring to the proposed substitution of "Her Majesty or the Government" with "the State" in section 4(4)(a) of the Motor Vehicles Insurance (Third Party Risks) Ordinance (Cap. 272), which exempted motor vehicles which were the property of Her Majesty or the Government from the requirement of having a valid policy of third party insurance, Mrs Miriam LAU expressed concern about how damage claims involving State vehicles could be handled properly if such exemption was applied to them. Having regard that after the handover, many vehicles of the State, including those of State agencies, could come to Hong Kong for various purposes, she expressed grave concern on the proposed adaptation. In order to have a better understanding of the pre-1997 arrangements, she enquired about the original definition and scope of "the property of Her Majesty or the Government" in the context of the provision, the types of vehicles that fell within the scope of the definition and, in the absence of a proper insurance policy against third party risks, what kinds of legal remedies were available prior to 1 July 1997. In response, PAS/T3 pointed out that notwithstanding the exemption, in effect all along the only vehicles which had not taken out third party insurance were vehicles of the Hong Kong Government. This was because in satisfying vehicle registration requirements, practically every vehicle other than Government vehicles had to produce a valid policy of third party insurance before a vehicle licence was issued to it. To address members' concerns, however, he undertook to clarify the basis of the proposed adaptation for section 4(4), whether it would involve a policy change, what kinds of vehicles would fall within the scope of the exemption clause after adaptation, the effects of the provision after adaptation, and whether it would affect the interests of victims of traffic accidents in claiming damages from parties concerned. In response to the Chairman's comment that the purpose of the adaptation of laws exercise should be to take out provisions inconsistent with the Basic Law and bring the provisions into conformity with the status of Hong Kong as a Special Administrative Region of the PRC, he also agreed to consider the exemption clause under section 4(4) in the light of Article 22 of the Basic Law, which provided that all offices set up in the 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 the Region.
Committee Stage amendments (CSAs)
13. The Administration agreed to provide a set of CSAs which they were prepared to move consequential on the adaptation of similar terms in previous Adaptation of Laws Bills which had been passed by the Legislative Council and the basis of such adaptation.
14. Members agreed that the second meeting of the Bills Committee should be scheduled for Tuesday, 18 May 1999, at 8:30 a.m.
(Post-meeting note: At the request of the Administration and with the concurrence of the Chairman, the second meeting was subsequently deferred to 8 June 1999 at 10:45 a.m.)
15. There being no other business, the Chairman declared the meeting closed.
16. The meeting ended at 5:50 p.m.
Legislative Council Secretariat
29 June 1999