Legislative Council

LC Paper No. CB(2) 1041/98-99
(These minutes have been seen
by the Administration)

Ref : CB2/BC/6/98

Bills Committee on Adaptation of Laws (No.2) Bill 1998
Minutes of meeting held on Friday, 6 November 1998 at 4:00 pm in Conference Room A of the Legislative Council Building

Mr Philip CHAN

Principal Assistant Secretary for Security E

Ms Betty CHEUNG

Senior Government Counsel

Mr John WONG

Senior Government Counsel

Mrs Sharon TONG

Chief Assistant Secretary (2)1

Miss Betty MA

Senior Assistant Secretary (2) 1

Mr KAU Kin-wah

Assistant Legal Adviser 6

Mr Andrew WONG was elected Chairman of the Bills Committee.

II. Meeting with the Administration

2. The Chairman remarked that the Bills Committee on Adaptation of Laws Bill 1998 had requested the Administration to prepare a paper setting out the guiding principles applied in the adaptation of laws exercise. The Bills Committee might consider making reference to this paper.

Briefing by the Administration

3. Ms Betty CHEUNG, Senior Government Counsel (SGC (BC)) said that the Adaptation of Laws Programme was carried out in two phases. The first phase which dealt with adaptation on specific topics (such as references to the Crown land and courts) had already completed. The current adaptation exercise was the second phase of the Programme. It dealt with the adaptation of other existing ordinances which had references inconsistent with the Basic Law or with the status of Hong Kong as a Special Administrative Region of the People's Republic of China (PRC). The need to refer to the Hong Kong Reunification Ordinance and the Interpretation and General Clauses Ordinace (Cap.1) would be minimized after the adaptation. Most of the proposed amendments in the Adaptation of Laws (No.2) Bill 1998 (the Bill) were merely terminological changes, such as to replace references to the "Crown", "Colony", "Governor" by "Government", "Hong Kong", "Chief Executive" respectively. She pointed out the Bill also sought to replace some references to the "Governor" with "Chief Executive in Council" in order to comply with Article 56 of the Basic Law. Under Article 56 of the Basic Law, the Chief Executive had to consult the Executive Council prior to making subordinate legislation. Thus, references to "Governor" which involved his power to make subordinate legislation would be proposed to be replaced by "Chief Executive in Council". SGC(BC) added that the adaptation of references to "Crown" with "Government" for provisions on "forfeiture" and "debt due to the Crown" was in line with the principles laid down in a paper prepared by the Law Draftsman for the earlier discussion of the Panel on Administration of Justice and Legal Services (LC Paper No. CB(2)532/98-99(01) referred, which was tabled at the meeting). Principal Assistant Secretary for Security E (PAS/S(E)) added that the adaptation of ordinances would be dealt with according to their respective policy areas, for example, references to Her Majesty's forces would be dealt with in the Adaptation of Laws (the Garrison) Bill.

Points highlighted by the Assistant Legal Adviser 6 (ALA6)

4. Referring to the Legal Service Division Report on the Bill (LC Paper No. LS37/98-99), ALA6 said that a summary of the proposed technical amendments to the eight Ordinances affected by the Bill was provided in Annex A of the Report. Annex B of the Report highlighted the provisions to be repealed or amended which, in the opinion of the Legal Adviser, might not be merely technical in nature.

Application of Article 56 of the Basic Law

5. In response to Miss Margaret NG, SGC(BC) said that the adaptation of reference to "Governor" by "Chief Executive in Council" was proposed in order to comply with Article 56 of the Basic Law, viz the Chief Executive had to consult the Executive Council before making important policy decisions, introducing bills to the Legislative Council, making subordinate legislation, or dissolving the Legislative Council. Section 3 of Cap.1 had been correspondingly amended, inter alia, by adding the definition of the Chief Executive and Chief Executive in Council. The adaptation exercise was in line with the expressions in section 3 of Cap 1. Miss Margaret NG requested and PAS/S(E) agreed to provide further information on the circumstances under which Article 56 of the Basic Law would be applied in the adaptation of laws exercise and the particular provisions in the Bill where references to "Governor" were proposed to be replaced with "Chief Executive in Council". (Post-meeting note : Information on the application of BL 56 was provided by the Administration in paragraphs 1-4 of the paper "The Administration's response to comments raised by members on 6 November 1998" (LC Paper No. CB(2) 710/98-99(01) (the paper).)

Adm

Schedule 1 - Dangerous Drugs Ordinance (Cap. 134)
Section 2(1) - definition of "Chief Pharmacist"

6. Miss Margaret NG enquired about the responsibility of a Chief Pharmacist. She said that opportunity should be taken to look into the duties of a Chief Pharmacist so as to ascertain whether the proposed adaptation of reference to "Governor" with "Chief Executive" in this context was appropriate given that some power originally exercised by the then Governor might no longer be appropriate. PAS/S(E) agreed to advise in writing the duties of a Chief Pharmacist.

Adm

(Post-meeting note : Duties of a Chief Pharmacist were set out in paragraph 5 of the paper.)

Section 2(1) - definition of "Conventions"

7. With reference to the proposed deletion of paras. (a) to (d) in the definition of "Conventions", PAS/S(E) said that the four Conventions in question were no longer applicable to the Hong Kong Special Administrative Region (HKSAR). Given that PRC was not a signatory to the four Conventions, these Conventions could not be extended to HKSAR after the reunification. ALA6 pointed out that the four Conventions were signed by the United Kingdom decades ago, it might not be possible to add new signatory to the Conventions in question. As advised by the Administration, the signing of the Single Convention on Narcotic Drugs in 1961 (para. (e) of the definition) had already covered the four Conventions. SGC(BC) added that the proposed repeal of the four Conventions in question had been discussed and agreed by the Sino-British Joint Liaison Group.

8. Miss Margaret NG said that as stipulated in the Sino-British Joint Declaration, international agreements to which PRC was not a party but were implemented in Hong Kong should remain in force in HKSAR. She asked whether the proposed repeal was in line with the decision of the Sino-British Joint Liaison Group. PAS/S(E) agreed to provide further information in writing on the rationale and principles for repealing the four Conventions in question.

Adm

(Post-meeting note : Further information on the rationale and principles for repealing the four conventions was provided in paragraph 6 of the paper.)

9. In response to the Chairman, SGC(BC) said that when PRC entered an international agreement, it would also be extended to HKSAR. In addition, HKSAR might, with the authorisation of the Central People's Government, make appropriate arrangement for the application to the SAR of other relevant international agreements.

10. ALA6 advised that the Administration had agreed to make a consequential amendment to paragraph (i) of the definition of Conventions.

Section 2(1) - definition of "medicinal opium"

11. Mrs Miriam LAU said that the proposed deletion of "in accordance with the requirements of the British Pharmacopoeia" would leave the standard for making medicinal opium ambiguous. She enquired about the new requirements being adopted in deciding whether raw opium was for medicinal use. In the event that a set of standard was adopted by Department of Health, the standard would have no legal basis. She also questioned how the public would be made aware of the standard adopted by the Department of Health. Miss Margaret NG added that the court would have no reference to make in considering cases of alleged unlawful use of raw opium. She urged the Administration to consider spelling out clearly the requirements in the legislation. In response, PAS/S(E) said that in accordance with the advice of the Department of Health, the existing legislation concerning the requirements of the British Pharmacopoeia was enacted in the 1960s which had become obsolete. The proposed deletion had no impact on the enforcement of the provision by the Department of Health. In the light of members' concern, PAS/S(E) agreed to provide additional information on the rationale for the proposed deletion and its implications on the enforcement of this provision, and the new requirements in the process. Representatives from the Department of Health would attend the next meeting to address specific concerns raised by members.

Adm

(Post-meeting note : The requested information was provided in paragraphs 7-8 of the paper.)

12. Miss Cyd HO queried whether the Administration was taking the opportunity to amend the obselete legislation in the adaptation of laws exercise, if so, the Administration should introduce these amendments under separate amendment bills. PAS/S(E) assured members that the Administration had no intention to amend the policy aspect of individual ordinances affected under the Adaptation of Laws Programme. The Bill only dealt with the necessary textual amendments so as to conform with the Basic Law or the status of Hong Kong as a Special Administrative Region.

Section 20(3) - Appeal to Governor on cancellation of licences, etc.

13. In considering whether references to "Governor" would be subsituted by "Chief Executive" or "Chief Executive in Council", Mrs Miriam LAU said that references to "Governor" ought to be substituted by "Chief Executive in Council"only if the adaptation was required to comply with Article 56 of the Baisc Law.

14. Miss Margaret NG said that the then Governor had dual roles to play prior to the transfer of sovereignty. The Governor was the head of the administration as well as the representative of the Queen. In some circumstances, the power was vested in the Governor under the Royal Prerogrative. Thus, the adaptation of "Governor" by "Chief Executive" should not be regarded as a mechanical exercise. She suggested to re-examine all the references to "Governor" after the information paper from the Administration as requested by the Bills Committee on Adpatation of Laws Bill 1998 on the guiding principles applied in the adaptation of laws exercise was ready.

15. PAS/S(E) responded in order to comply with Article 56 of the Basic Law, the Administration would adapt references to "Governor" to "Chief Executive in Council" in situations where the Chief Executive were required to make subordinate legislation. In proposing the term "Governor" to be replaced by "Chief Executive in Council", the major factor for consideration was whether the provision to be adapted would have any legislative effect within the meaning of the Interpretation and General Clauses Ordinance (Cap.1).

16. Members raised no further queries on section 20(3).

Section 58 - Power of Governor to give directions

17. In response to Miss Margaret NG's enquiry about the policy intent and the legislative effect of the proposed amendments, Mr John WONG, Senior Government Counsel said that section 58 was a general provision on the residual powers of the then Governor. At the request of the Chairman, the Administration agreed to explain the policy intent and the legislative effect of the proposed amendment in writing.

Adm

(Post-meeting note : The policy intent and the legislative effect of section 58 were set out in paragraphs 9-10 of the paper.)

18. Members raised no queries on the other proposed amendments to the Ordinance, viz. section 20(2), section 33(3),(4)(b), (5), (7), (8) and (9), section 38F(2) and (4), section 38K(1), section 50(1), section 51(1), section 55 and section 56.

Schedule 2 - Societies Ordinance (Cap.151)

Item 5 of the Schedule to the Ordinance

19. PAS/S(E) said that at present companies and associations in Hong Kong constituted under Royal Charter, Royal Letters Patent, any Imperial Act or any Ordinance were exempted from the Societies Ordinance. Exemption for companies or associations constituted under instrument made by the British Government was now inconsistent with the status of Hong Kong as a Special Administrative Region of PRC. Given that these companies and associations would have legitimate expectation on their continued exemption from the Ordinance, the Administration proposed to add a new item 5A to the Schedule so that any such companies and associations formed and established in Hong Kong immediately before the commencement of this Bill would continue to be exempted from the Ordinance, subject to their continuous operation in Hong Kong. For companies which were constituted after the commencement of the Bill, they need to fall within the new item 5 in order to be exempted.

20. Mrs Miriam LAU enquired about the differences between the proposed item 5 and the existing item 6 of the Schedule to the Ordinance. SGC(BC) clarified that the proposed item 5 covered organizations or bodies constituted under specific legislation, in particular non-profit making bodies such as the St. John Ambulance whilst the existing item 6 covered those companies or associations which were not formed in accordance with any specific legislation, but were registered under ordinances other than the Companies Ordinance. To facilitate members' understanding, PAS/S(E) agreed to provided examples of companies or associations referred to under the proposed item 5 and the existing item 6 of the Schedule to the Ordinance. To avoid ambiguity, the Administration would consider reviewing the drafting of the proposed item 5. The Chairman said that the discussion on item 5 of the Schedule to the Ordinance would continue at the next meeting pending the information from the Administration.

Adm

(Post-meeting note : The requested information on Cap 151 was provided in paragraphs 11-13 of the paper.)

21. Members raised no questions on the other proposed amendments to the Ordinance, viz. sections 2(3), 3, 6, 8(7), 24(3), 25(3), 26A(1), 26B(1) to (4), 26N and 41(1).

Schedule 3 - Crimes Ordinance (Cap.200) and its subsidiary legislation

22. In response to Miss Margaret NG, PAS/S(E) said that Parts I and II of the Crimes Ordinance concerning treason, sedition and related offences had not been included in the Bill because they were being dealt with in the context of the current study on the legislation required under Article 23 of the Basic Law. The legislative intent had been spelt out in paragraph 6 of the Legislative Council brief and the explanatory memorandum of the Bill. ALA6 added that it might not be appropriate to provide in the Bill in the form of a substantive clause that only adaptations to Parts III to XIII of the Ordinance were dealt with in the Bill from the drafting point of view, the Administration, however, might consider adding a footnote to the Bill to clarify any unnecessary misunderstanding. SGC(BC) said that the addition of such a footnote to the Bill would not have legislative effect. PAS/S(E) said that the Administration would explore the feasibility of spelling out clearly in the Bill that Parts I and II were not dealt with in the Bill.

Adm

(Post-meeting note : The Administration responded to this request in paragraphs 14-15 of the paper.)

Section 23C - definition of "Hong Kong ship"

23. In response to Mrs Miriam LAU, SGC(BC) said that there was no explicit definition of "Hong Kong ship" proposed in the Bill. The intention was to include a ship which was registered in Hong Kong as the reference to "British ship" in existing legislation meant a ship which was registered under the Merchant Shipping Act in the United Kingdom. Mrs Miriam LAU suggested the Administration to consider providing a definition of "Hong Kong ship" in the relevant ordinance, eg. it meant a ship registered with the Marine Department. SGC(BC) agreed to consider whether a definition for "Hong Kong ship" should be provided in the relevant ordinance and to provide further information on "British ship".

Adm

(Post-meeting note : Further information on "British ship" was set out in paragraphs 16-17 of the paper.)

24. The Chairman pointed out that a definition of "Hong Kong ship" was provided in section 23A of the Ordinance. He requested the Administration to explain why the definition of "Hong Kong ship" in section 23A only applied to sections 23A to 23C. PAS/S(E) agreed.

Adm

(Post-meeting note: The Administration responded in paragraph 18 of the paper.)

Section 41 - Power to direct a prosecution for perjury

25. Responding to Miss Margaret NG's enquiry about the reasons for the proposed repeal of section 41 of the Crimes Ordinance under the adaptation of laws exercise, SGC(BC) advised that section 41 was inconsistent with Article 63 of the Basic Law. Section 41 conferred a judge with power to direct prosecution for perjury wheras Article 63 of the Basic Law stipulated that the Department of Justice of HKSAR should control criminal prosecutions, free from interference. In addition, the Judiciary and the Prosecutions Division of the Department of Justice were not aware that section 41 had ever been applied in instituting prosecution. In normal circumstances, should a judge come across perjury, he would refer the case to the Secretary for Justice for instituting prosecution. Adm 26. Miss Margaret NG said that as stipulated in the Hong Kong Reunification Ordinance, the power exercised by the Secretary for Justice and the then Attorney General would be the same. She doubted whether the proposed repeal of section 41 involved a change in policy. The Administration was requested to provide additional information on the rationale for the proposed repeal of section 41. Miss Margaret NG suggested and members agreed that views from the Hong Kong Bar Association and The Law Society of Hong Kong on the proposed repeal of section 41 of the Crimes Ordinance be sought.


(Post-meeting note : The Hong Kong Bar Association and The Law Society of Hong Kong had been invited to forward their views on the proposed repeal of section 41 on 9 November 1998. Additional information on the rationale for the repeal of section 41 was also provided by the Administration in paragraph 19 of the paper.)

Repeal of sections 84 and 85(1)

27. To facilitate members' deliberation at the next meeting, the Chairman requested and the Administration agreed to provide advance information on the rationale for the proposed repeal of sections 84 and 85(1).

Adm

(Post-meeting note : The rationale for the proposed repeal was set out in paragraph 20 of the paper.)

28. Miss Margaret NG said that she would prepare a list setting out her concerns in relation to the Bill for the Administration's response so as to facilitate the deliberation of the Bill. PAS/S(E) agreed.

(Post-meeting note : The points raised by Miss Margaret NG had been forwarded to the Administration on 10 November 1998).

Date of next meeting

29. The next meeting was scheduled for 25 November 1998 at 8:30 am.

30. The meeting ended at 5:35 pm.

Legislative Council Secretariat
4 December 1998