Members present :

Hon Andrew WONG Wang-fat, JP (Chairman)
Hon David CHU Yu-lin
Hon Ronald ARCULLI, JP
Hon Jasper TSANG Yok-sing, JP
Hon Mrs Miriam LAU Kin-yee, JP

Members absent :

Hon Margaret NG
Hon James TO Kun-sun

Public officers attending :

Mr Gary YEUNG
Principal Assistant Secretary for Planning,
Environment & Lands (Lands)

Mr Anthony LI
Assistant Secretary for Planning,
Environment & Lands (Lands)

Mr John EDGE
Acting Deputy Director of Lands (Legal)

Mr W B MADDAFORD
Senior Assistant Law Draftsman 1

Mr K F CHENG
Senior Assistant Law Draftsman 2

Ms Carmen CHU
Senior Government Counsel

Miss Frances HUI
Government Counsel

Clerk in attendance :

Miss Odelia LEUNG, Chief Assistant Secretary (1)1

Staff in attendance :

Ms Bernice WONG, Assistant Legal Adviser 1
Mrs Mary TANG, Senior Assistant Secretary (1)2

I Election of Chairman

Mr Andrew WONG was elected Chairman of the Bills Committee.

II Meeting with the Administration

2. At the invitation of the Chairman, the Principal Assistant Secretary for Planning, Environment and Lands (Lands) (PAS/PEL(L)) said that the Adaptation of Laws (No. 5) Bill 1999 (the Bill) aimed at effecting the necessary adaptations to ten Ordinances relating to lands and building matters and their subsidiary legislation. He took members through a summary of major issues raised on the Bill and the responses from the Administration which was tabled at the meeting.

(Post-meeting note : the summary was circulated to members vide LC Paper No. CB(1)1710/98-99).

(i) Sections 3(1A) (a) and 46(1) of the Lifts and Escalators (Safety) Ordinance, Cap. 327

3. Responding to Mrs Miriam LAU, the Senior Assistant Law Draftsman 1 (SALD1) explained that section 3(1A)(a) of the Lifts and Escalators (Safety) Ordinance provided, amongst other things, that certain provisions of the Ordinance should not apply to a lift or escalator installed in any building belonging to the government of any member of the Commonwealth or over which such government had control and management. Prior to 1 July 1997 when Hong Kong was under British administration, the Central People's Government was exempted by virtue of section 3(1A)(d) under the category of "government of a foreign country". After 1 July 1997, the Central People's Government was no longer a foreign government and ceased to be exempted under section 3 (1A)(d). If the reference to the "government of any member of the Commonwealth" under section 3 (1A)(a) was simply repealed, there would then be no exemption provided to the Central People's Government. It was therefore necessary to adapt the reference to the "government of any member of the Commonwealth" in section 3(1A)(a) to the "Central People's Government". The government of any member of the Commonwealth would now fall under the category of "government of a foreign country" under section 3(1A)(d).

4. In response to Mr TSANG Yok-sing, Assistant Legal Adviser 1 (ALA 1) advised that the exempted provisions referred to in section 3(1A) concerned safety requirements, inspection and examination of lifts and escalators. The details were as follows -

1. Part III provided for examination and testing of lifts and escalators after installation or alteration;

2. Part IV dealt with maintenance and examination of lifts and escalators and testing of safety equipment provided therefor;

3. Part IV A concerned service lifts;

4. Section 29 prohibited use and operation of lifts and escalators in certain cases and provided for offences in connection therewith;

5. Section 29A prohibited the carrying out of lift works or escalator works by unauthorised persons; and

6. Section 33 provided that the Director of Electrical and Mechanical Services had to be notified where major alterations were to be carried out to lifts and where speed, operation or design of escalators was to be altered.

5. Regarding the reference to "Her Majesty" in section 3(1A)(c), SALD1 advised that the term had yet to be adapted.

(ii) Sections 2 and 3 of the Aliens (Rights of Property) Ordinance, Cap.185

6. PAS/PEL (L) explained that the object of the Aliens (Rights of Property) Ordinance was to remove doubts regarding the right of aliens to hold and transfer immovable property in Hong Kong. Under the definition contained in the Interpretation and General Clauses Ordinance, Cap.1 in force immediately before 1 July 1997, an alien used to mean a person who was neither a Commonwealth citizen nor a British protected person nor a citizen of the Republic of Ireland. However, that definition had been amended and an alien now meant a person other than a Chinese citizen. Similarly, under paragraph 20 of Schedule 8 to Cap. 1, any reference to an alien contained in any law in force immediately before 1 July 1997 and adopted as a law of the Hong Kong Special Administrative Region (HKSAR) should be construed as a reference to a person other than a citizen of the People's Republic of China. In the light of the new meaning of an alien, it was considered that the references to "Commonwealth citizen" contained in sections 2 and 3 of the Aliens (Rights of Property) Ordinance should be adapted to "Chinese citizen" so that an alien (as the word now meant) would have the same rights to hold and transfer immovable property in Hong Kong as if he were a Chinese citizen residing therein.

7. ALA1 drew members' attention to the preamble to Cap. 185 which stated that the Ordinance was enacted in pursuance of the Act for the Naturalisation of Aliens. She pointed out that since the Act had ceased to apply to Hong Kong after the reunification because Hong Kong was no longer a British colony, the purpose for enacting the Ordinance had become obsolete unless the Administration could provide information on any existing ordinance or subsidiary legislation imparting privileges of naturalisation to aliens residing in Hong Kong. ALA1 further said that at common law, aliens were precluded from owning land. The Act for the Naturalisation of Aliens was enacted in 1847 to validate the acts and statutes enacted in British colonies imparting privileges of naturalisation to aliens. Subsequent to the enactment of Cap. 185 in 1853, the United Kingdom enacted the Naturalisation Act 1870 to repeal the common law rule. However, this Act did not apply to Hong Kong. To justify the need to retain the Ordinance, she requested the Administration to provide case law to show that the common law applied to Hong Kong.

8. The Senior Assistant Law Draftsman 2 (SALD 2) said that the purpose of enacting Cap. 185 was to remove doubts regarding the rights of aliens to hold and transfer immovable property in Hong Kong. The fact that the Act had ceased to apply to Hong Kong would not by itself affect the validity of the Ordinance. The doubt regarding the rights of aliens to hold and transfer immovable property in Hong Kong arose not from or pursuant to the Act but from the fact that under common law an alien could not hold land. The purpose of enacting Cap. 185 was to overcome that common law rule i.e. to allow aliens to hold and transfer immovable property in Hong Kong. Cap. 185 was therefore still required. He further pointed out that section 17 of the Status of Aliens Act 1914 of the United Kingdom was similar to Cap. 185 in that it provided for rights of aliens to hold and transfer immovable property in the United Kingdom.

9. Mrs Miriam LAU queried whether the Bills Committee should consider the need for retaining the Ordinance as the scope of the Bill was basically about law adaptation. She pointed out that Hong Kong, being an international city, should welcome aliens' investment in property. The retention of the Ordinance would remove doubts about the rights of aliens to hold property in Hong Kong. From the conveyancing point of view, she would prefer retaining the Ordinance, albeit only stating the obvious.

11. ALA 1 further drew members' attention to the new definition of "alien" in Cap. 1 which had a different meaning from the repealed definition which was used prior to 1 July 1997. Under the repealed definition, an alien referred to a person who was neither a Commonwealth citizen nor a British protected person nor a citizen of the Republic of Ireland. Before 1 July 1997, Chinese citizens belonged to the category of aliens. Under the new definition, an alien meant a person other than a Chinese citizen. Mrs Miriam LAU said that since both before and after 1 July 1997, an alien had the same rights of holding property as a local citizen, she did not see any problem with the changes in the definition. However, as the Chinese rendition of "aliens" in Cap. 1, i.e. and Cap. 185, i.e. was different, she considered it necessary to reconcile the terms to remove any doubt in meaning.

12. PAS/PEL(L) said that as there was no definition of "alien" in Cap. 185 and no contrary intention appeared therein, the new definition of "alien" in Cap. 1 applied to Cap. 185. The Administration was liaising with the Department of Justice to amend the Chinese rendition of "alien" to in Cap. 185 by way of a miscellaneous amendment bill, as it was considered inappropriate to deal with the said amendment in the present Bill which was basically about adaptation of laws. Nevertheless, noting members' view, PAS/PEL(L) agreed to consider making the amendment in the context of the Bill.

Admin

(iii) Section 12(3) of the Demolished Buildings (Re-development of Sites) Ordinance, Cap. 337

13. PAS/PEL(L) advised that section 12(3) of the Demolished Buildings (Re-development of Sites) Ordinance contained references to the United Kingdom Law of Property Act 1925 (LPA) and laws in England relating to real property. These references were not in conformity with the status of Hong Kong as a Special Administrative Region of the People's Republic of China, and need to be adapted. Extensive research by the Lands Department and the advice from the Department of Justice revealed that the powers and remedies under the relevant English laws were sufficiently covered by the Conveyancing and Property Ordinance (CPO), Cap. 219 and the common law. Accordingly, the references to LPA and laws in England relating to real property would be substituted by references to CPO and the relevant common law in Hong Kong.

14. ALA1 referred members to Annex B to the Appendix of LC Paper No. LS 151/98-99 which set out a comparison of the rights and remedies of a mortgagee by deed under LPA and the common law in England with those of a mortgagee under a legal charge or equitable mortgage by deed under CPO and the common law in Hong Kong. She pointed out that the relevant statutory powers and remedies in CPO were wider than those provided in LPA. The proposed change in the Bill was not a straight-forward law adaptation.

15. Mrs Miriam LAU questioned why the Administration had not replaced the reference to "LPA" under section 12(3) of Cap. 337 with the reference to "CPO" when the latter was enacted in 1984. If the intention was that the reference to "CPO" should replace that to LPA, an amendment should have been made shortly after the enactment of CPO. She wondered if there was any policy intent in retaining the reference to "LPA" in Cap. 337.

16. The Acting Deputy Director of Lands (Legal) (Ag DD of L) said that he did not know why an attempt to amend the provisions had not been made in 1984. In any event, the reference to "LPA" had to be replaced because the Financial Secretary Incorporated (FSI) referred to in the section was a Hong Kong legal entity and it was appropriate that the powers and remedies available to him should be governed by a Hong Kong ordinance after the change of sovereignty. Although CPO and LPA were not entirely equivalent, they were sufficiently close.

17. SALD1 said that the choice was either to leave the reference to "LPA" intact or to substitute it by the reference to "CPO" as there was no middle ground.

18. The Chairman opined that if the reference to "LPA" was to be replaced by the reference to an equivalent legislation in Hong Kong, this would be tantamount to localisation rather than adaptation of law.

19. Mrs Miriam LAU was concerned that it might be the original intent of section 12(3) of Cap. 337 to provide FSI with the same powers and remedies as those available under LPA. Should this be the case, it might not be appropriate to simply replace LPA with a non-equivalent CPO for the purpose of law adaptation. She pointed out that if the amendment need to be made, it should have been done in 1984 when CPO was first enacted. She queried if there was any oversight on the part of the Administration in failing to make the amendment.

(iv) Section 30(1B) of the Land Registration Ordinance, Cap. 128

21. PAS/PEL(L) advised that the purpose of adding a provision to section 30 was to give a proper context to the amendments made to the First Schedule by the Bill and the Adaptation of Laws (Courts and Tribunals) Ordinance (25 of 1998) so as to be consistent with the operation of section 30 and the First Schedule.

22. Members accepted the Administration's explanation that the working of section 30 could be better reflected by adding the provision indicating the adaptations to the First Schedule.

Clause-by-clause examination

23. Members went through the Bill clause-by-clause.

Land Transactions (Enemy Occupation), Cap. 256

24. Noting that the reference to "the Colony" was adapted either to "Hong Kong" or "HKSAR" in different contexts. Mrs Miriam LAU sought clarification on the criteria for adaptation. PAS/PEL(L) advised that "Hong Kong" would be used to denote a geographical meaning. If the reference to "the Colony" carried a jurisdictional meaning, it would be adapted to "HKSAR".

Hong Kong Airport (Control of Obstructions), Cap. 301

25. In response to members, ALA1 advised that the reference to had been adapted to in a piece of subsidiary legislation enacted in 1997.	ALA1

(Post-meeting note: The title had been adapted by virtue of the Declaration of change of Titles (General Adaptation) Notice 1997. (L.N. 362 of 1997)

Date of next meeting

26. Members agreed to hold the next meeting in late September 1999.

(Post-meeting note : the next meeting would be held on 29 September 1999 at 4:30 pm.)

III Any other business

27. There being no other business, the meeting ended at 3:40 pm.

Legislative Council Secretariat
8 September 1999