Bills Committee on
I. Section 3 of Schedule 5 - Section 4(4) of the Motor Vehicle Insurance (Third Party Risks) Ordinance ( Cap.272 )
Adaptation of Laws (No. 9) Bill 1999
( 2 September 1999 )
1. Article 22 of the Basic Law
1.1 Article 22(3) of the Basic Law reads -
"All offices set up in the Hong Kong Special Administration Region by departments of the Central Government, or by provinces, autonomous regions, or municipalities directly under the Central Government, and the personnel of these offices shall abide by the laws of the Region.".
1.2 The laws of the Region include, inter alia, Ordinances and their subsidiary legislation. The provisions of such Ordinances and subsidiary legislation may, apart from imposing duties and obligations, confer rights and provide for exemptions. Depending on the purposes of the legislation, a particular piece of Ordinance or subsidiary legislation may provide that it applies or does not apply to a specified person or a specified class of persons, and this may include the State organs.
1.3 Article 22 does not dictate whether a particular piece of Ordinance or subsidiary legislation applies to the State organs. One must refer to the particular legislation to determine the extent to which it applies to the State organs. There is nowhere in Article 22 which provides, explicitly or impliedly, that only duties and liabilities can be imposed but no rights or exemptions can be conferred on or provided to the State organs.
1.4 By the above reasons, the Administration does not agree that it will contravene Article 22 or it is inconsistent with Article 22 if a particular piece of legislation simply provides that it does not apply to the State organs.
2. The question of remedy
2.1 The proposal is to adapt "Her Majesty or the Government" to "the State". Members have raised concern that upon adaptation, there will be a lack of legal remedy against a State organ in case the latter is involved in a traffic accident. In this respect -
(a) The Administration refers to the objects and reasons for enacting the Motor Vehicle Insurance (Third Party Risks) Ordinance, which were set out in page 276 of the Hong Kong Hansard (1951).
(b) The first 3 paragraphs of the objects and reasons are repeated below -
"1. The primary object of this Bill is to compel, in some degree, owners and users of motor vehicles to take out insurance against the liability to pay compensation to other persons (third parties) which may arise in the event of road accidents.
2. The reason which prompts the introduction of this legislation is that in default of such provision, a person who is entitled to recover damages as a result of personal injury caused by another's negligent driving, may in fact be unable to do so owing to that person's lack of means to satisfy any judgement obtained against him.
3. The Bill in general follows the model of the Road Traffic Acts, 1930-1934. Compulsory insurance is restricted to motor vehicles (as defined in Clause 2) and is not applicable to certain of these, namely vehicles which belong to the Crown or to the Government, vehicles being driven for police purposes and vehicles owned by persons who have deposited the sum of $200,000 (either in cash or approved securities or partly in cash and partly in such securities) with the Accountant General (Clauses 4(4) and 5). These exceptions are made because the financial security of the owner of the vehicle is established.".
2.2 It is evident from the above paragraphs that -
(a) The purpose of the Ordinance is not to provide for a channel to sue in the event of traffic accidents. This aspect is regulated by other laws. The Ordinance only aims to ensure that once a person's liability to pay compensation to third parties is established, that person has the means to satisfy the claim.
(b) The reason why section 4 of the Ordinance does not apply to those classes of persons set out in subsection (4) is that these persons have the ability to pay compensation to third parties in the event of traffic accidents. This is most obvious in the case of the Crown (or the State when adapted) and the Hong Kong Government.
2.3 The privity of the contract of third party insurance is between the owner (or users) of a vehicle and the insurance company. In general, even if a vehicle is insured against third party risks, it does not mean the victim of a traffic accident involving that vehicle can by-pass the insured under the policy and bring civil proceedings against the insurance company directly.
2.4 The fact that State organs are excluded from the application of the Ordinance does not mean that they are immune from tortious liabilities arising from traffic accidents. The consequence of their exclusion from the Ordinance is that if they were found to be liable, they would have to pay for the compensation themselves. Similarly, the Government's liabilities under traffic accidents are not required to be insured. There is no question that the Government could escape such liabilities.
3. The meaning of "Her Majesty"
3.1 The Administration repeats its view that "Her Majesty" carries the meaning of "the Crown" in the present context and does not mean the Queen personally. The use of the expression "the Crown" in paragraph 3 of the objects and reasons referred to in paragraph 2(a) above no doubt supports this. The Administration's interpretation of "Her Majesty" to include all elements of the executive government from ministers of the Crown downwards is also consistent with the reason for not applying section 4 of the Ordinance to "motor vehicle which is the property of Her Majesty" (see paragraph 2 above).
4. Application of section 4(4)(a) before Reunification
4.1 Prior to Reunification, vehicles of the British Forces were exempted from third party insurance. The British Trade Commission was also not required to present third party insurance for the renewal of their vehicle licences.
II. Section 13 of Schedule 1 (By-law 4(1), Cross-Harbour Tunnel By-laws (Cap. 203 sub. leg.))
Section 14 of Schedule 2 (By-law 4(1), Eastern Harbour Crossing Road Tunnel By-laws (Cap. 215 sub. leg.))
Section 12 of Schedule 10 (By-law 4(1), Tate's Cairn Tunnel By-laws (Cap. 393 sub. leg.))
1. The Administration is requested to consider adapting references to the "Crown" in the above provisions (as well as those in by-law 26 of the Cross-Harbour Tunnel By-laws, by-laws 23 and 24 of the Eastern Harbour Crossing Road Tunnel By-laws and by-laws 23 and 24 of the Tate's Cairn Tunnel Bylaws) to the "Government" on the grounds given in the List of concerns dated 12.7.1999.
2. The 1st ground is, again, on the question of consistency among tunnel legislation. The Administration refers to its reply in this connection as set out in the two information papers previously submitted to the Committee. It needs only to repeat that the Adaptation of Laws Programme is not the venue for "curing" any inconsistency in policy among the legislation concerned.
3. As to the 2nd and 3rd grounds, there is nothing in either the Cross Harbour Tunnel Ordinance (Cap. 203), Eastern Harbour Crossing Ordinance (Cap. 215), Tate's Cairne Tunnel Ordinance (Cap. 393) or their subsidiary legislation which exclude explicitly the possibility of persons in the public service of the State performing duties that relate to the tunnel areas. It is in fact not inconceivable that defence duties may be carried out in the tunnel areas by persons in the public service of the State. Should an argument arise as to whether a person who seeks toll exemption is discharging duties of the State that relate to the tunnel areas, it is a matter of fact for the court.
4. The Chairman suggests amending the relevant exemption clauses in 2 stages. First, by replacing references to the "Crown" with the "Government" and secondly, by creating a new exemption in favour of vehicles which carry persons in assisting the Hong Kong Government to discharge public duties in the tunnel area. This amounts to a law reform and is beyond the scope of the Adaptation of Laws Programme. The new exemption may not be broad enough to catch all situations where persons in the public service of the State may be engaged on duty relating to the tunnel area, e.g. for national defence purposes.
5. The Administration wishes to reiterate that -
5.1 The scope of application of the exemption clauses concerned (i.e. by-law 4(1) of Cap. 203B, 215E and 393B) is extremely narrow. They only apply if a vehicle which carries a person in the public service of the State (if adapted) is engaged on duty relating to the tunnel area. The possibility of abuse of the exemptions is therefore extremely remote.
5.2 The purpose of the savings provisions concerned (i.e. by-law 26 of Cap. 203B, by-law 23 of Cap. 215E and 393B) are to preserve powers or duties of persons in the service of the Crown under existing laws. They do not create new rights or obligations.
5.3 The application clauses (i.e. by-law 24 of 215E and 393B) expressly apply the by-laws to vehicles and persons in the public service of the "State" (if adapted). The presence of such clauses rebuts the presumption embodied in section 66 of the Interpretation and General Clauses Ordinance (Cap. 1).
6. Finally, members wish to know if there is any negative impact if references to "Crown" in the above provisions are adapted to "Government" instead of "State". Apart from the fact that this involves policy changes and are beyond the scope of the Adaptation of Laws Programme, it also limits the scope of application of these provisions. In particular, in the case of application clauses, if it is intended to apply the subject By-laws to vehicles and persons in the public service of the State, such intention should be made explicit in order to exclude the application of s. 66 of Cap. 1.
III. 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.)
Section 65 of Schedule 8 (Regulation 62, Road Traffic (Traffic Control) Regulations (Cap. 374 sub. leg.)
1. The Administration would like to reiterate the point that adapting the term "Crown" in the phrase "persons in the public service of the Crown" in section 2(1) of the Road Traffic (Traffic Control) Regulations (the "Regulations") to "State" will not change the scope of the phrase since it is a defined term in the Regulations and has its special meaning in the Regulations. The definition of "State" in Cap. 1 does not apply here. The Administration considers that it is appropriate to adapt the term "Crown" here to "State".
2. The word "means" in the definition of "person in the public service of the Crown" conveys a restrictive meaning, whereas the word "includes" conveys the meaning that the scope of the definition is not limited to the bodies listed under the definition of "person in the public service of the Crown". This change will widen the scope of the original definition and amount to law reform. The Administration has no intention to introduce such law reform for the time being.
IV. Section 2 of Schedule 9 (Section 17, Road Traffic (Driving-offence Points) Ordinance (Cap. 375)
1. While examining the above section at the meeting on 8 June 1999, the Chairman requested the Administration to provide information on other legislation governing persons and vehicles in the public service of the Crown in respect of matters such as the issue of driving licences. The Administration in its paper submitted on 6 July 1999 has explained that matters relating to driving licences are regulated by the Road Traffic (Driving Licences) Regulations (Cap. 374 sub. leg. B). By reg. 4(1), these Regulations apply to persons in the public service of the "Crown", which is proposed to be adapted to the "State". At the meeting on 7 July 1999, the Chairman asked whether there would be any problem if references to "persons in the public service of the Crown" was adapted to "persons in the public service of the Government".
2. As explained in paragraphs II - 5.3 and 6 above, reg. 4(1) is an express application clause. The intention is for all persons in the public service (except members of the military forces described in reg. 4(2)) to comply with the requirements in the Regulations. It is therefore necessary to adapt reg. 4(1) to the effect that the provisions of the Regulations would apply to persons in the public service of the "State" and not just in the public service of the "Government" in order to rebut the presumption in section 66 of Cap. 1.
V. Section 1 of Schedules 2, 10, 11 and 12 - Section 2(3) of Cap. 215, Cap. 393, Cap. 436 and Cap. 474
The existing provisions provide for a subjective test of "urgency" and this was consistent with Article X of the Royal Instructions, according to which the then Governor could exercise similar power if "in his judgment" the matters were too urgent to be submitted to the ExCo for advice. Article 56(2) of the Basic Law, however, does not contain express wordings as to whether the test of "emergencies" is subjective or objective. The adaptation proposal is therefore intended to bring the provisions in line with Article 56(2). Upon adaptation, an objective test is to be adopted when deciding the question of whether a matter is one of emergency so that the Chief Executive may exercised any function to be exercised by the Chief Executive in Council under the respective Ordinances.
VI. CSAs to remove Schedule 1 following the enactment of the Revenue Ordinance 1999 (44 of 1999)
Now that the Cross Harbour Tunnel Ordinance (Cap. 203) will be repealed by the Revenue Ordinance 1999 from 1 September 1999, the Administration will move a CSA to delete all proposed adaptation in Schedule 1 of this Bill in respect of that Ordinance and its subsidiary legislation
31 August 1999