LC Paper No. CB(2) 1082/98-99
(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 Wednesday, 25 November 1998 at 8:30 am
in Conference Room A of the Legislative Council Building
Hon Andrew WONG Wang-fat, JP (Chairman)
Hon Cyd HO Sau-lan
Hon Margaret NG
Hon James TO Kun-sun
Hon Jasper TSANG Yok-sing, JP
Hon Mrs Miriam LAU Kin-yee, JP
Hon Ambrose CHEUNG Wing-sum, JP
Hon Christine LOH
Hon Ambrose LAU Hon-chuen, JP
Public Officers attending:
Clerk in attendance:
- Mr Philip CHAN
- Principal Assistant Secretary for Security E
- Ms Mimi LEE
- Principal Assistant Secretary for Security (Narcotics)
- Dr S P MAK
- Assistant Director of Health (Special Health Services)
- Ms Betty CHEUNG
- Senior Government Counsel
- Mr John WONG
- Senior Government Counsel
Staff in attendance:
- Mrs Sharon TONG
- Chief Assistant Secretary (2)1
I. Meeting with the Administration
- Miss Betty MA
- Senior Assistant Secretary (2) 1
- Mr KAU Kin-wah
- Assistant Legal Adviser 6
Matters arising - the Administration's response to comments raised by members
The Chairman said that the Administration had provided written response (LC Paper No. CB(2) 710/98-99(01)) to members' comments raised at the last meeting on 6 November 1998.
Article 56 of the Basic Law
2. Miss Margaret NG said that she had no queries to the Administration's response at this stage. This point would be considered when the adaptation of references to "Governor" in the relevant sections of the Bill was discussed.
Dangerous Drugs Ordinance (Cap 134)
3. Referring to paras. 7 and 8 of the paper, Miss Margaret NG enquired whether the standards of "medicinal opium" adopted by the UK Pharmacopoeia, the US Pharmacopoeia and the European Pharmacopoeia were the same, if not, which standard of "medicinal opium" was being adopted by the Department of Health (D of H). In response, Assistant Director of Health (Special Health Services) (AD/H(SHS)) said that the differentiation between "raw opium" and "medicinal opium" was in its form and use. The standard of "medicinal opium" laid down in pharmacopoeia was expressed as the level of the active components such as morphine, codeine of the processed raw opium for medicinal use. Hence, the proposed repeal of "in accordance with the requirements of the British Pharmacopoeia" in the definition of "medicinal opium" would not leave the definition of medicinal opium ambiguous. In addition, it was already spelt out clearly in the Dangerous Drugs Ordinance (DDO) that raw opium must have undergone the processes necessary to adapt it for medicinal use.
4. Mrs Miriam LAU opined that if the proposed repeal was adopted, it might leave the standard for making medicinal opium ambiguous due to a lack of specific requirements to satisfy the processes necessary to adapt raw opium for medicinal use. Principal Assistant Secretary for Security (Narcotics) (PAS/S(N)) responded that the emphasis of the definition of "medicinal opium" was on the use and form of "medicinal opium", not quality. Regarding the proposed repeal, PAS/S(N) said that besides using the British Pharmacopoeia as a reference for drugs manufactured in the UK, other national or regional pharmacopoeia were also used as a reference on the standard of "medicinal opium" from other countries or territories of origins. It was considered that the proposed repeal would more accurately reflect the existing practice of the D of H in deciding whether or not raw opium was for medicinal use.
5. Miss Margaret NG and Mr TSANG Yok-sing queried whether, apart from making reference to the British Pharmacopoeia as required under the DDO, making reference to other national pharmacopoeia had violated the legislation. In response, AD/H(SHS) reiterated that the objective of the provision was to differentiate the use between "raw opium" and "medicinal opium" instead of their respective components. When making reference to other national pharmacopoeia, the D of H would compare these standards with that laid down in the British Pharmacopoeia.
6. Noting that the D of H did make reference to various pharmacopoeia in determining the standard of "medicinal opium", Mrs Miriam LAU suggested the Administration to consider adopting " the standard of country of origin of the relevant drugs".
7. Miss Margaret NG also remarked that the proposed repeal would leave the standard for making medicinal opium ambiguous. She suggested to consider whether the provision was obsolete, if so, whether the proposed amendment should be dealt with in the context of the adaptation of laws exercise. Alternatively, she suggested to replace "in accordance with the requirements of the British Pharmacopoeia" with "in accordance with the requirements of the pharmacopoeia of the country of origin of the relevant drugs".
8. Mr TSANG Yok-sing opined that retaining the phrase "in accordance with the requirements of the British Pharmacopoeia" was not inconsistent with the Basic Law and the status of Hong Kong as a Special Administrative Region. The proposed repeal of the provisions in question on the ground of obsolescence might be outside the scope of the adaptation of laws exercise. The Chairman added that the Administration should not amend the legislation with a view to coping with its daily operation in the context of adaptation.
9. PAS/S(N) said that the DDO had come into operation since 1968. The Administration could not trace the background for adopting the provision, but it was not unreasonable to believe that making reference to the British Pharmacopoeia at the time had to do with the status of Hong Kong being a Colony of the UK, and the fact that the standards stipulated in the British Pharmacopoeia were internationally accepted. The provision was considered obsolete having regard to the practice of the D of H and was therefore proposed to be deleted. Having regard to the scope of the adaptation of laws exercise and the relative importance of the reference to the British Pharmacopoeia in the operation of the D of H, it was proposed that no alternative wording should be proposed in place of "in accordance with the requirements of the British Pharmacopoeia".
Societies Ordinance (Cap 151)
|10. Mrs Miriam LAU said that she had no strong views as to the proposed amendment to the definition of "medicinal opium" on the present context. She would support the proposed amendment only if certain standards for medicinal opium were incorporated back into the definition of "medicinal opium". PAS/S(N) agreed to consider Members' request.||Adm
11. Referring to the Schedule, Assistant Legal Adviser 6 (ALA6) raised the following concerns -
- whether new item 5A was only applicable to companies and associations constituted under instruments made by the British Government;
- as such companies and associations would be exempted from the Societies Ordinance, whether this provision violated the Decision of the Standing Committee of the National People's Congress on Treatment of the Laws previously in force in Hong Kong in accordance with Article 160 of Basic Law of the Hong Kong Special Administrative Region of the PRC adopted at the Twenty-fourth Session of the Eighth National People's Congress on 23 February 1997, in particular Article 4(2) of the Decision; and
- no definitions of 'Royal Charter', 'Royal Letters Patent' and 'Imperial Act' were provided under the existing laws.
12. In response, Miss Betty CHEUNG, Senior Government Counsel (SGC(BC)) and Principal Assistant Secretary for Security E (PAS/S(E)) made the following points -
- Under new item 5A proposed to be added to the Schedule, any companies and associations formed and established in Hong Kong immediately before the commencement of this Bill and qualified for exemption under the previous item 5 would continue to be exempted from the Societies Ordinance.
- Given such companies and associations constituted under Royal Charter, Royal Letters Patent, any Imperial Act or any Ordinance were exempted from the Societies Ordinance, the Administration did not have any record on the number of such companies and associations in Hong Kong. As advised by the Department of Justice, these companies and associations would have legitimate expectation that their existence would continue to be lawful. The Administration therefore proposed to add a new item 5A to the Schedule so that these companies and associations would continue to be exempted from the Ordinance.
- Schedule 9 to Cap 1 stipulated the construction of reference to British enactment. The court would make reference to the legislative history in interpreting the meaning of a piece of legislation if no definition was provided in the legislation in question. As the new item 5A followed the wording of the previous item 5 closely, there would be no doubt that new item 5A was referring to companies or associations constituted under an instrument made by the British Government when making reference to the meaning of the original item 5 of the Ordinance.
13. In response to the Chairman's enquiry on the meaning of 'a local society' under the proposed item 5A, SGC(BC) said that the definition of local society was provided in section 2 of the Ordinance. PAS/S(E) added that if a company or an association, which was constituted under an instrument made by the British Government, but was not established and operated in Hong Kong, it would not have legitimate expectation for continual lawful existence after the commencement of this Bill.
14. Members raised no further questions on the proposed amendments.
Crimes Ordinance (Cap 200) (Parts I-II)
| 15. Miss Margaret NG remarked that she agreed with the Administration's proposal to amend the Schedule heading for the Crimes Ordinance by adding after "Crimes Ordinance" the expression "(Parts III to XIII)". Miss NG enquired about the implementation of Parts I and II of the Crimes Ordinance in the meantime. PAS/S(E) replied that the Administration had earlier made a response to Mr LAU Chin-shek's similar question on the implementation of Article 23 of the Basic Law. He suggested and members agreed that the Administration's written response be circulated for members' reference.||Adm|
(Post-meeting note : The Administration had subsequently provided a copy of its reply to Mr LAU Chin-shek which was circulated to members vide LC Paper No. CB(2) 842/98-99(01) (the paper) on 9 December 1998.)
Crimes Ordinance (Cap 200) (Parts III-XIII)
|16. Referring to the views put forward by the Hong Kong Bar Association (LC Paper No. CB(2) 720/98-99(01)), Miss Margaret NG opined that she agreed to support the proposal to repeal section 41 of the Ordinance on the ground that it was obsolete but not on the ground that it was inconsistent with Article 63 of the Basic Law. Regarding private prosecution, she believed that the power of the Secretary for Justice to take over and bring to an end a private prosecution was the way that 'control' within the meaning of Article 63 of the Basic Law was exercised. Miss NG questioned the reasons why section 41 contravened Article 63 of the Basic Law given that the power exercised by the Secretary for Justice and the then Attorney General would be the same as stipulated in the Hong Kong Reunification Ordinance. Mrs Miriam LAU said that the power to direct a prosecution for perjury by a judge was different from the right of a person to start a private prosecution. Mrs Miriam LAU was doubtful whether section 41 was consistent with Article 63 and would like to consider response from the Administration on the Hong Kong Bar Association's letter before deciding on the proposed repeal of section 41. PAS/S(E) said that the Administration would provide a written response to the Bar Association's comments.||Adm |
17. Mr TSANG Yok-sing opined that, as a matter of principle, the Administration should only propose amendments to references which were either inconsistent with the Basic Law or with the status of Hong Kong as a Special Administrative Region in the context of adaptation of laws exercise. The Administration should not take the opportunity to amend provisions which were not within the scope of this exercise. Miss Margaret NG, however, pointed out that there might be practical difficulties. To facilitate members to decide whether certain amendments should be introduced under separate amendment bills, Miss NG suggested that the Administration could consider setting out in a list the amendments proposed which were not related to consistency with the Basic Law or with the status of Hong Kong as a Special Administrative Region of the PRC.
|18. The Chairman agreed that there were grey areas in the adaptation of laws exercise. He commented that the Administration was adopting a literal interpretation of Article 63 of the Basic Law. Even members supported the proposal to repeal section 41, it did not necessarily imply that members agreed with the Administration's interpretation of Article 63 of the Basic Law. He asked the Administration to take note of members' views. PAS/S(E) reiterated that the Adaptation of Laws Programme dealt with existing ordinances which had references that were either inconsistent with the Basic Law or with the status of Hong Kong as a Special Administrative Region of the PRC. The Administration had no intention to propose amendments to individual ordinances that were not within the scope of the adaptation of laws exercise. The Administration would further consider the views of members and the Hong Kong Bar Association on the proposed repeal of section 41.||Adm
19. The Chairman said that the discussion on section 41 of the Ordinance would be continued at the next meeting pending the Administration's response to the views put forward by the Hong Kong Bar Association.
20. Members raised no question on the definition of "Hong Kong ship".
Schedule 3 - Crimes Ordinance (Cap 200) and its subsidiary legislation
21. Members raised no questions on other proposed amendments to the Ordinance, viz. sections 84, 85(1)(a), 88(a), 145A(2), 153(2), 153G and 153H as well as the proposed amendments to the Suppression of Piracy Regulations and the Protected Coins (Designation) Order.
Schedule 4 - Offences Against the Person Ordinance (Cap 212) and its subsidiary legislation
Section 6 - Petit treason to be murder
22. Referring to para. 3 of the Administration's response to queries rasied by her regarding amendments proposed to the Ordinance (LC Paper No. CB(2) 710/98-99(02)), Miss Margaret NG disagreed with the Administration's view that the repeal of section 6 of the Ordinance had no bearing on the provisions in Parts I and II of the Crimes Ordinance relating to treason. She said that the concept of committing an offence in which one subject killed another who was his superior would be restored if section 6 was repealed. She asked whether, in the absence of petit treason, a killer would be prosecuted for treason or murder in the event that the President of the PRC was killed. SGC(BC) said that under section 2(1)(a) of the Crimes Ordinance, it was stipulated that 'a person commits treason if he kills, wounds or causes bodily harm to Her Majesty, imprisons or restrains Her'. This provision defined treason. Section 6 of Cap. 212 on petit treason was irrelevant to treason. She pointed out that the Administration could not trace the background for adopting the definition of petit treason. In accordance with Kenny's Outline of Criminal Law, which was published in the 1960s, petit treason was an archaic offence committed when one subject of the Crown killed another who was his superior, for example, when a feudal vassal slew his lord, a priest his bishop, or a wife her husband. PAS/S(E) added that "petit treason" was therefore an archaic offence at common law and different from "treason", under Article 23 of the Basic Law, which was an offence against the state.
23. Members were of the view that the repeal of section 6 of the Ordinance should be dealt with when Parts I and II of the Crimes Ordinance concerning treason, sedition and related offences were dealt with. Alternatively, Mrs Miriam LAU suggested the Administration to consider amending section 6 to the effect that in the case of any person murdering another person, regardless of the status of the person being murdered, such act would amount to murder but not treason.
24. In response, PAS/S(E) said that the Administration would consider members' views. In the meantime, he suggested that the discussion on the proposed repeal of section 6 be continued at the next meeting after the Administration's reply to Mr LAU Chin-shek regarding Article 23 of the Basic Law was provided to members. Members agreed.
(Post-meeting note : Further information was provided by the Administration in paras. 5 - 7 of the paper.)
25. Members raised no queries on other proposed amendments to the Ordinance, viz. sections 5, 9, 44(2) and 47A as well as the proposed amendment to the Termination of Pregnancy Regulations.
Schedule 5 - Weapons Ordinance (Cap 217)
26. Members raised no questions on the proposed amendments to the Ordinance.
Schedule 6 - Summary Offences Ordinance (Cap 228)
Section 21(2) - Unlawful for any person to wear uniform to which he is not entitled
27. Miss Margaret NG enquired about the omission of adaptation of references to "Her Majesty's forces". PAS/S(E) responded that the adaptation of ordinances would be dealt with according to their respective policy areas and that references to Her Majesty's Forces would be dealt with in the Adaptation of Laws Bill on Garrison matters. Mr John WONG, Senior Government Counsel (SGC(JW)) added that in accordance with the Garrison Law, the Garrison must be consulted when drafting any legislation which concerned the Garrison. SGC(BC) said that military references were not adapted in this phase of the adaptation of laws exercise. In view of the numerous Ordinance to be adapted and the time involved, the exercise should not be delayed until after consultation with the Garrison was completed.
28. In response to a further question from Miss Margaret NG, SGC(BC) said that pending textual amendment for the purpose of adaptation, "Her Majesty's forces" would be construed in accordance with section 2A(2)(c) of the Interpretation and General Clauses Ordinance(Cap 1) and rights, exemptions and obligations of Her Majesty's forces would apply to the Garrison.
29. Mr TSANG Yok-sing asked whether, apart from the requirements to consult the Garrison so as to effect amendments to the related legislation, there were any parties whose prior consent had to be obtained in this regard. SGC(BC) said that adaptations which were not being dealt with in the present stage of the exercise would be included in a paper on "Adaptation of Laws Programme - Guiding Principles and Guideline Glossary of Terms" to be provided for the reference of the Bills Committee on Adaptation of Laws Bill 1998. In brief, adaptation of the following references and provisions would not be dealt with at this stage -
- references to "Her Majesty's forces" and other military references;
- provisions relating to proceedings against the Crown that needed to be considered in the context of the adaptation of the Crown Proceedings Ordinance; and
- provisions relating to Article 23 of the Basic Law.
30. Mr TSANG Yok-sing opined that dealing with the adaptation of ordinances in accordance with their respective policy areas might not be an ideal way because the adaptation of an ordinance would have to be dealt with under several adaptation of laws bills. SGC(JW) said that the adapation of laws bills enacted in the tenure of the Provisional Legislative Council were also dealt with according to their respective policy areas. In order to ensure the consistency of the proposed amendments to military references which appeared in many ordinances, it was considered necessary to deal with adaptations to military references separately.
|31. Mr TSANG asked the Administration to consider spelling out clearly in the relevant adaptation of laws bills that adaptations to some references would be dealt with under separate adaptation of laws bills. SGC(JW) said that there were technical difficulties to insert a footnote to the Explanatory Memorandum of a bill after its gazettal. He suggested that the Administration would clarify the matter in its speech delivered during the resumption of Second Reading debate of the Bill. The Chairman asked the Administration to spell out clearly the provisions and references that had not been dealt with in this Bill in its speech delivered in the resumption of Second Reading debate. PAS/S(E) agreed.||Adm |
32. The Chairman requested the Administration to consider spelling out in the Explanatory Memorandum of other adaptation of laws bills to be introduced into the Legislative Council that adaptation to some sections of the ordinances were not being dealt with in the relevant bill.
(Post-meeting note : The Administration responded to this request in paras. 8 - 9 of the paper.)
33. Members raised no questions on other proposed amendments to the Ordinance.
Schedule 7 - Firearms and Ammunition Ordinance (Cap 238) and its subsidiary legislation
34. Members raised no queries to amendments proposed to sections 2(1) and 3(b)(iii).
Section 4(2) - Possession by exempted person
35. Miss Margaret NG enquired about the reason for requiring the Chief Executive to exercise his power with the concurrence of the Executive Council for exempting a class or description of persons. Referring to para. 3 of the information paper (LC Paper No. CB(2) 710/98-99(01)), PAS/S(E) said that an instrument would have legislative effect, amongst others, if it had general application to the public or a significant sector of the public as opposed to individuals. Notices made under section 4(2) for a class or description of persons, other than a particular person, for the exemption from the prohibition of possession of arms and ammunition without licence had legislative effect and hence were subsidiary legislation.
36. Miss Margaret NG expressed reservation about the proposal that the Chief Executive might grant exemption to a person without the need to seek the consent of the Executive Council. Mr James TO considered that the proposed amendment violated the legislative intent of section 4(2). Under the current provision, the Governor had to make notice in the Gazette regardless whether the exemption was granted to a particular person or a class or description of persons. The notice made in this regard was a piece of subsidiary legislation. PAS/S(E) responded that it was considered that notices made in relation to a class or description of persons had legislative effect because they were of general application and interests affected were more extensive. The power should therefore be exercised by the Chief Executive in Council in order to comply with Article 56 of the Basic Law. SGC(BC) added that a notice in the Gazette did not necessarily imply that it was a piece of subsidiary legislation. There were other forms of public notices in the Gazette. Mr James TO disagreed with the Administration's interpretation.
37. Owing to time constraint, the Chairman said that the discussion on section 4(2) would continue at the next meeting.
Date of next meeting
38. The next meeting was scheduled for Thursday, 10 December 1998 at 8:30 am.
39. The meeting ended at 10:45 am.
Legislative Council Secretariat
22 January 1999