OFFICIAL RECORD OF PROCEEDINGS
Wednesday, 26 May 1999
The Council met at half-past Two o'clock
THE HONOURABLE MRS RITA FAN, G.B.S., J.P.
THE HONOURABLE KENNETH TING WOO-SHOU, J.P.
THE HONOURABLE JAMES TIEN PEI-CHUN, J.P.
THE HONOURABLE DAVID CHU YU-LIN
THE HONOURABLE HO SAI-CHU, J.P.
THE HONOURABLE CYD HO SAU-LAN
THE HONOURABLE EDWARD HO SING-TIN, J.P.
THE HONOURABLE ALBERT HO CHUN-YAN
THE HONOURABLE MICHAEL HO MUN-KA
DR THE HONOURABLE RAYMOND HO CHUNG-TAI, J.P.
THE HONOURABLE LEE WING-TAT
THE HONOURABLE MARTIN LEE CHU-MING, S.C., J.P.
THE HONOURABLE ERIC LI KA-CHEUNG, J.P.
THE HONOURABLE LEE KAI-MING, J.P.
DR THE HONOURABLE DAVID LI KWOK-PO, J.P.
THE HONOURABLE FRED LI WAH-MING
DR THE HONOURABLE LUI MING-WAH, J.P.
THE HONOURABLE NG LEUNG-SING
PROF THE HONOURABLE NG CHING-FAI
THE HONOURABLE MARGARET NG
THE HONOURABLE MRS SELINA CHOW LIANG SHUK-YEE, J.P.
THE HONOURABLE RONALD ARCULLI, J.P.
THE HONOURABLE MA FUNG-KWOK
THE HONOURABLE JAMES TO KUN-SUN
THE HONOURABLE CHEUNG MAN-KWONG
THE HONOURABLE AMBROSE CHEUNG WING-SUM, J.P.
THE HONOURABLE HUI CHEUNG-CHING
THE HONOURABLE CHRISTINE LOH
THE HONOURABLE CHAN KWOK-KEUNG
THE HONOURABLE CHAN YUEN-HAN
THE HONOURABLE BERNARD CHAN
THE HONOURABLE CHAN WING-CHAN
THE HONOURABLE CHAN KAM-LAM
DR THE HONOURABLE LEONG CHE-HUNG, J.P.
THE HONOURABLE MRS SOPHIE LEUNG LAU YAU-FUN, J.P.
THE HONOURABLE LEUNG YIU-CHUNG
THE HONOURABLE GARY CHENG KAI-NAM
THE HONOURABLE SIN CHUNG-KAI
THE HONOURABLE ANDREW WONG WANG-FAT, J.P.
DR THE HONOURABLE PHILIP WONG YU-HONG
THE HONOURABLE WONG YUNG-KAN
THE HONOURABLE JASPER TSANG YOK-SING, J.P.
THE HONOURABLE HOWARD YOUNG, J.P.
DR THE HONOURABLE YEUNG SUM
THE HONOURABLE YEUNG YIU-CHUNG
THE HONOURABLE LAU CHIN-SHEK, J.P.
THE HONOURABLE LAU KONG-WAH
THE HONOURABLE LAU WONG-FAT, G.B.S., J.P.
THE HONOURABLE MRS MIRIAM LAU KIN-YEE, J.P.
THE HONOURABLE AMBROSE LAU HON-CHUEN, J.P.
THE HONOURABLE EMILY LAU WAI-HING, J.P.
THE HONOURABLE CHOY SO-YUK
THE HONOURABLE ANDREW CHENG KAR-FOO
THE HONOURABLE SZETO WAH
THE HONOURABLE LAW CHI-KWONG, J.P.
THE HONOURABLE TAM YIU-CHUNG, J.P.
THE HONOURABLE FUNG CHI-KIN
DR THE HONOURABLE TANG SIU-TONG, J.P.
THE HONOURABLE LEE CHEUK-YAN
THE HONOURABLE TIMOTHY FOK TSUN-TING, J.P.
PUBLIC OFFICERS ATTENDING:
THE HONOURABLE MRS ANSON CHAN, J.P.
THE CHIEF SECRETARY FOR ADMINISTRATION
THE HONOURABLE DONALD TSANG YAM-KUEN, J.P.
THE FINANCIAL SECRETARY
THE HONOURABLE ELSIE LEUNG OI-SIE, J.P.
THE SECRETARY FOR JUSTICE
MR GORDON SIU KWING-CHUE, J.P.
SECRETARY FOR PLANNING, ENVIRONMENT AND LANDS
MR NICHOLAS NG WING-FUI, J.P.
SECRETARY FOR TRANSPORT
MR DOMINIC WONG SHING-WAH, J.P.
SECRETARY FOR HOUSING
MR RAFAEL HUI SI-YAN, G.B.S., J.P.
SECRETARY FOR FINANCIAL SERVICES
MR JOSEPH WONG WING-PING, G.B.S., J.P.
SECRETARY FOR EDUCATION AND MANPOWER
MRS REGINA IP LAU SUK-YEE, J.P.
SECRETARY FOR SECURITY
MR LEO KWAN WING-WAH, J.P.
SECRETARY FOR HOME AFFAIRS
CLERKS IN ATTENDANCE:
MR RICKY FUNG CHOI-CHEUNG, J.P., SECRETARY GENERAL
MR LAW KAM-SANG, J.P., DEPUTY SECRETARY GENERAL
MR RAY CHAN YUM-MOU, ASSISTANT SECRETARY GENERAL
The following papers were laid on the table pursuant to Rule 21(2) of the Rules of Procedure:
|Subsidiary Legislation ||L.N. No.
Specification of Arrangements (Government of the Russian Federation Concerning Air Services) (Double Taxation) Order||123/99
Estate Agents Practice (General Duties and Hong Kong Residential Properties) Regulation||124/99
Estate Agents (Determination of Commission Disputes) Regulation||125/99
Public Health and Municipal Services Ordinance (Public Markets) (Designation and Amendment of Tenth Schedule) (No. 2) Order 1999||126/99
Declaration of Markets in the Urban Council Area (Amendment) Declaration 1999||127/99
Hawker (Permitted Place) Declaration 1999||128/99
Housing Ordinance (Amendment of Schedule) Order 1999 (L.N. 63 of 1999) (Commencement) Notice 1999||129/99
Report on the Administration of the Fire Services Welfare Fund together with the Director of Audit's Report and Audited Statement of Accounts for the year ended 31 March 1998
ORAL ANSWERS TO QUESTIONS
PRESIDENT (in Cantonese): Questions. I would like to remind Members that question time normally does not exceed one and a half hours, with each question being allocated about 12 to 15 minutes. When asking supplementaries, Members should be as concise as possible. They should not ask more than one question, and should not make statements. To do so would contravene Rule 26 of the Rules of Procedure.
After a Member has asked a main question, other Members who wish to ask supplementary questions to this question please indicate their wish by pressing the "Request-to-Speak" buttons.
If a Member wishes to follow up and seek elucidation on an answer, or raise a point of order, please stand up to so indicate and wait for me to call before speaking.
PRESIDENT (in Cantonese): First question.
Buildings Completed Before World War II
1. MR GARY CHENG (in Cantonese): Madam President, regarding the buildings completed before the Second World War, will the Government inform this Council of the following:
(a) the total number of flats in such buildings as well as the numbers of households and people involved;
(b) the number of such buildings which have been included in redevelopment programmes of the Land Development Corporation (LDC), and the numbers of households and people involved; and
(c) given that most of the facilities of those buildings such as staircases, internal partitions and mezzanines are made of wood and have been constructed a long time ago, the measures it has taken to ensure the structural safety of such buildings and that they are adequately equipped against fire?
SECRETARY FOR PLANNING, ENVIRONMENT AND LANDS (in Cantonese): Madam President,
(a) According to the records of the Buildings Department, 864 existing privately-owned buildings were completed before the Second World War, of which 11 are protected under the Antiquities and Monuments Ordinance, 144 are commercial, religious or community buildings, and 709 are residential or composite buildings. Apart from these 864 buildings, 21 pre-war buildings are owned by the Government which involve 66 domestic tenancies and about 350 people. Neither the Buildings Department nor the Census and Statistics Department has detailed information on the number of flats in these 864 privately-owned pre-war buildings or on the number of households and people involved.
(b) Nineteen privately-owned and one Government-owned pre-war buildings fall within the proposed and committed redevelopment projects of the LDC. About 84 households and 214 people would be involved. Our Urban Renewal Strategy Study has identified another 261 privately-owned and 10 government-owned pre-war buildings for redevelopment by the proposed Urban Renewal Authority.
(c) Of the 709 privately-owned pre-war residential or composite buildings, 389 are in good condition and well maintained by their owners. The remaining 320 buildings are less satisfactory in terms of building conditions. These 320 buildings have been inspected by the Buildings Department since the collapse of a pre-war building in Sheung Wan in 1990. The Buildings Department is concerned about pre-war buildings with masonry load-bearing walls and timber floors, which may be liable to significant deterioration over a comparatively short period of time. During these inspections, the Buildings Department checks to ensure that the buildings are structurally safe and that means of escape are unobstructed. The Department may also serve statutory orders requiring the building owners to carry out investigation or repair works, or requiring the closure of the buildings in question. In 1997 and 1998, the Department issued 24 and 21 statutory orders respectively. The 21 government-owned pre-war buildings are managed by a team of building professionals in the Lands Department, who inspect the buildings regularly and have repair works done where necessary. In 1997 and 1998, the Department carried out 28 and 36 repair works orders respectively in these 21 buildings.
MR GARY CHENG (in Cantonese): Madam President, some buildings more than 100 years old which have been dealt with by some Members have no toilets up to now. To make do, residents there can only make use of plastic buckets and newspapers. Although the Government collects rents from these buildings they remain in a very dilapidated condition. We invited members from the Antiquities Advisory Board to inspect the premises and they too did not understand why we did not follow up the matter. My supplementary question is: Why does the Government or the Antiquities Advisory Board not conduct a co-ordinated inspection to all such premises that are so old and so badly equipped, so that they can be treated as protected buildings at an early date?
SECRETARY FOR PLANNING, ENVIRONMENT AND LANDS (in Cantonese): Madam President, one of the aims of the Government in taking possession of these 21 buildings is that no resumption process has to be undertaken when areas near these buildings are redeveloped or developed because they have already been resumed. As regards the buildings mentioned by the Honourable Gary CHENG, the Government is now trying to see if some of them can be preserved as antiquities. If they can, the relevant department will do the repair work or maintain the external walls and renovate the interior of the buildings. Whether modern facilities, such as flushing toilets or other facilities, can be added to will depend on the conditions of the buildings. There are chances for these facilities to be added to some buildings built from masonry, I said "chances" because buildings built from masonry can bear the additional weight and pressure brought about by the new facilities; but we need to find out if buildings with a simpler structure, such as those built from bricks and wood, are strong enough to hold additional sanitary ware. In general, as the Government is planning to redevelop these buildings later on, our present job is to ensure as far as possible the safety of residents. In the short term we hope to be able to protect the buildings and let the people move into public housing or leave and receive compensation. Failing that, we need to find ways to help them live in greater safety. However, it is unlikely that a great improvement will be made overall.
DR LUI MING-WAH (in Cantonese): Madam President, will the Secretary inform this Council what the designed life span for buildings with masonry load-bearing walls and timber floors is?
SECRETARY FOR PLANNING, ENVIRONMENT AND LANDS (in Cantonese): Madam President, it is difficult to give a definite figure. In fact, they may last for several decades or up to 100 years if good materials are used and if they are well maintained. It all depends on how much thoughts and efforts the owners have put in taking care of their buildings.
MR EDWARD HO (in Cantonese): Madam President, according to the main reply from the Secretary, among the 864 privately-owned buildings only 11 are protected under the Antiquities and Monuments Ordinance. I note that there are 320 buildings the conditions of which are unsatisfactory. Will the Secretary inform this Council whether the Government has considered giving systematic protection to those old buildings with historical value, for example, by re-entry and compensating owners with transfer plot ratio, so that firstly, the old buildings may be preserved and secondly, resources may be obtained for repair?
SECRETARY FOR PLANNING, ENVIRONMENT AND LANDS (in Cantonese): Madam President, Members may note this work is already underway. There is a plan to monitor buildings with historical value in every district, whether they belong to the category mentioned or are post-war buildings. An aim of the Government to gain possession of the 21 buildings is to preserve those buildings which may be deemed to be valuable or to possess historical value. These are just individual cases. Some owners of pre-war buildings may like to redevelop the lot by themselves or jointly with owners of buildings adjacent to theirs.
MR HUI CHEUNG-CHING (in Cantonese): Madam President, what effect does the present economic downturn have on the redevelopment of old buildings by the Government? Has the speed of redevelopment been reduced?
SECRETARY FOR PLANNING, ENVIRONMENT AND LANDS (in Cantonese): Madam President, plans of the LDC are not in any way affected by the present conditions. The Government has already laid down programmes and timetables for the work of the proposed Urban Renewal Authority. Its work is not linked to the present market conditions.
MR JAMES TO (in Cantonese): Madam President, in part (b) of the main reply, it was said that 20 pre-war buildings fell within the proposed and committed redevelopment projects of the LDC. Furthermore, there were over 270 buildings for future redevelopment by the proposed Urban Renewal Authority. My supplementary question is: Given the present conditions of the buildings and the rate of redevelopment in the past, is the Government worried that these buildings may have become dangerous before redevelopment, thus jeopardizing the safety of the people?
SECRETARY FOR PLANNING, ENVIRONMENT AND LANDS (in Cantonese): Madam President, I mentioned in part (c) of the main reply that because a pre-war building collapsed in 1990, the Buildings Department has inspected over 800 buildings and has been following up on 320 of the buildings which we think should call for our attention. The Department is inspecting and examining these buildings at least once a year. The Department has also made orders, as mentioned in part (c) in the main reply, to effect repairs and other improvements to ensure a minimum safety level. Hence, in the connection with this topic, the Government has been showing regular concern. Some buildings are in good conditions now or during a past inspection but it is the owners who are responsible for maintenance. This is true for buildings built before or after the War. Owners must ensure the safety of their buildings whether they are pre-war or post-war ones. They need to follow up on maintenance.
DR RAYMOND HO (in Cantonese): Madam President, in part (c) of the main reply, the Secretary said 320 buildings were less satisfactory in terms of maintenance conditions. When inspecting them, the Buildings Department checked to ensure means of escape were unobstructed and they were structurally safe. The quality of concrete for pre-war buildings were poor and usually they had just one staircase. So, fire escape routes are especially required to be unobstructed. Will the Secretary inform this Council the frequency at which the Department made inspections? How often will it make an inspection?
SECRETARY FOR PLANNING, ENVIRONMENT AND LANDS (in Cantonese): Madam President, colleagues in the Buildings Department would make an inspection once every year on the 320 buildings. More frequent inspection may be conducted on some buildings which are found to have problems or to which orders for improvement have been issued.
MR CHAN KAM-LAM (in Cantonese): Madam President, in part (b) of the main reply, it was said 200-odd privately-owned and government-owned buildings would be under the responsibility of the Urban Renewal Authority to be established. But it seems that much of the work of the Authority has yet to be proceeded with. Would this give people the impression that they have to wait for ever for the redevelopment? When would the Urban Renewal Authority be established?
SECRETARY FOR PLANNING, ENVIRONMENT AND LANDS (in Cantonese): Madam President, we are planning to consult people about the Government's proposal at the end of this year and then set up the Urban Renewal Authority in 2000.
MR NG LEUNG-SING (in Cantonese): Madam President, in part (c) of the main reply, it was said the Government required the closure of some buildings under the law and made 21 and 24 statutory orders respectively in 1997 and 1998. Many occupants of the old buildings are elderly people. Will the Government inform this Council whether it has encountered any difficulties in taking action on these buildings or during the closure. Are there any special means in treating elderly people living in old buildings?
SECRETARY FOR PLANNING, ENVIRONMENT AND LANDS (in Cantonese): Madam President, the 24 and 21 statutory orders I referred to were orders for repair. In 1998, the Buildings Department did not issue any closure orders, but there were three such orders in 1997, one of which involved a pre-war building. The usual practice is followed when closure orders are made. Under this practice, there will be some who are entitled to resettlement or public housing. Otherwise the relevant people will be taken care of by other parties.
PRESIDENT (in Cantonese): Second question.
Employment Opportunities of Persons with a Disability
2. MR JAMES TIEN (in Cantonese): Madam President, will the Government inform this Council:
(a) of the average numbers of persons with a disability who were in employment and those who were unemployed, the employment rate as well as the total numbers of job vacancies for persons with a disability on the register of the Selective Placement Division of the Labour Department, in each of the three years both before and after the commencement of the Disability Discrimination Ordinance (Cap. 487);
(b) whether there are significant differences between such figures before and those after the commencement of the Ordinance; and
(c) whether it has assessed if the commencement of the Ordinance has adversely affected the employment opportunities of persons with a disability; if it has so affected, the details of the effects?
SECRETARY FOR EDUCATION AND MANPOWER (in Cantonese): Madam President,
(a) The Government does not keep records of the overall employment and unemployment figures in respect of persons with a disability in Hong Kong.
However, we can provide the statistics on the services provided by the Selective Placement Division of the Labour Department. These statistics reflect the situation where persons with a disability sought open employment through the Division. Open employment refers to productive and remunerative work in the competitive job market. The statistics of the Selective Placement Division do not include those who are engaged in sheltered work or supported employment. Besides, persons with a disability may also find their own jobs through other channels.
The relevant sections on discrimination in employment field of the Disability Discrimination Ordinance (Cap. 487) came into force on 20 December 1996. The numbers of persons with a disability who secured open employment through the Selective Placement Division and the numbers of vacancies in each of the three years before and after the commencement of the Ordinance are tabulated at Annex for Members' reference.
(b) No significant differences have been noted between such figures before and those after the commencement of the Ordinance.
(c) The Labour Department has not assessed if the commencement of the Disability Discrimination Ordinance has adversely affected the employment opportunities of persons with a disability. Nonetheless, since the commencement of the Ordinance in December 1996, no significant drop in the number of successful job seekers placed by the Labour Department has been witnessed. Neither is there any evidence indicating that the Ordinance has adversely affected the employment opportunities of persons with a disability.
Employment services provided by the Selective Placement Division to persons with a disability:
||No. of registered persons
||No. of vacancies
||No. of employed persons
|1999 (January to April)
MR JAMES TIEN (in Cantonese): Madam President, the original intent of the Ordinance was to help people with a disability to find work. We fully support the legislative intent. However, perhaps due to the economic downturn, the commercial sector may think they had better not recruit such people as there are some restrictions laid down by laws, and there may be a lot to follow up if they recruit people with a disability, and would thus make an option. In paragraph (c) of the main reply, the Secretary indicated the Labour Department has not assessed the extent to which employment opportunities of persons with a disability is affected. Nevertheless, he said there was no significant drop in the number of successful job seekers placed by the Labour Department. Will the Secretary inform this Council of the number of persons successfully placed?
SECRETARY FOR EDUCATION AND MANPOWER (Cantonese): Madam President, before I answer the Honourable Member's question I want to clarify one thing. In addition to providing employment opportunities to persons with a disability, the Disability Discrimination Ordinance also aims at making sure they are not discriminated against at work.
Secondly, from the figures provided by the Selective Placement Division at the Annex, it can be seen that in 1995, that is before the implementation of the Disability Discrimination Ordinance, 3 000-odd persons were registered; there were 2 000-odd vacancies, and 1 400-odd persons were employed. In 1998, that is last year, the number of persons registered increased and the number of vacancies decreased, which indeed reflected the employment situation then, but the number of persons employed similarly remained at 1 400-odd. If one compares the number of persons employed with that of the vacancies, it can be seen that the 1 400-odd people employed in 1995 represented a filling of 58% of the vacancies, but in 1998, the number of persons employed is similarly 1 400-odd, but the number of vacancies has decreased to 1 700-odd, representing 80% of the vacancies. Viewing looked at from another angle, this shows employers who registered at the Selective Placement Division have demonstrated great sincerity in recruiting persons with a disability. In other words, 80% of the vacancies have been filled. I think from the figures alone, one can see no indication of reluctance among employers in recruiting persons with a disability.
MR LAW CHI-KWONG (in Cantonese): Madam President, I would like to follow up on part (c) of the main reply. The Secretary indicated there was no significant drop in the number of persons employed. If we agree that the spirit of the Ordinance is to create equal opportunities, then the effect of its implementation is a failure because employment rate should go up. The Government, preparing to accept defeats, has just been complacent with a no-drop situation. Will the Government consider making some efforts to aim at increasing the employment rate instead of not letting it drop? For example, will the Government take the lead to set a certain target in recruitment ratio?
SECRETARY FOR EDUCATION AND MANPOWER (Cantonese): Madam President, in addition to finding work for persons with a disability, the Selective Placement Division also, as part of its important task, promotes anti-discrimination or urges employers not to discriminate against persons with a disability and provides as much as possible opportunities for these people. We launched promotions in the past and we will continue to do so in future. As regards the setting of a target to fix the number of persons with a disability that an employer must recruit, we had discussions on this before. Our main aim is for persons with a disability to rely on their ability to attain equal opportunity. Our conclusion has been that it would perhaps be counter-productive if we rigidly demand all employers (including the Government) to set a certain target to maintain a percentage of the employees for persons with a disability. It may cause employers and other staff to look with prejudice at those disabled persons recruited to meet the target. This was what worried us, and after some deliberations we did not agree to the idea of setting a target.
MRS SELINA CHOW (in Cantonese): Madam President, the Secretary seemed to be complacent about a stagnant employment figure as maintained by the Selective Placement Division. Will the Secretary inform this Council why has the Selective Placement Division done so badly in its efforts to improve employment opportunities for persons with a disability? Why did the number of vacancies drop from 3 100-odd in 1994 to 1 700-odd in 1998. Can we compare these figures with other vacancies, or is the Division particularly disappointing?
SECRETARY FOR EDUCATION AND MANPOWER (Cantonese): Madam President, the number of vacancies depends on the market demand; it is not something we can create. The 1 795 vacancies in 1998, when compared with 3 127 in 1994 by and large reflected the fact that we were in the course of an economic adjustment in which the rate of unemployment rose and the number of vacancies in the market in turn diminished gradually.
MRS SELINA CHOW (in Cantonese): The Secretary has not answered my supplementary question. Was the decrease comparable to the general decrease in vacancies?
SECRETARY FOR EDUCATION AND MANPOWER (Cantonese): Madam President, in fact I have provided an answer. But I can give some supplementary information. For example, whereas in the past we had 60 000 vacancies, we have only 20 000 now in the market. If the number of vacancies in the entire market decreases, the number of vacancies registered in the Selective Placement Division and other placement units will accordingly decrease.
MR LAU CHIN-SHEK (in Cantonese): Madam President, will the Secretary explain to this Council what he meant when he said just now that if the Government set a proportion for recruiting persons with a disability some people may view them with prejudice? Is the Secretary himself prejudiced against them? Can the Government clearly confirm that anti-discrimination legislation, such as the Disability Discrimination Ordinance, have positive influence on the community?
PRESIDENT ( in Cantonese): Mr LAU, please sit down first. Maybe you have not heard clearly what I said at the beginning of the meeting. I said when asking supplementary questions, Members should not ask more than one question. However, in order to save everybody's time, I would ask the Secretary to answer all your questions.
SECRETARY FOR EDUCATION AND MANPOWER (Cantonese): Madam President, first of all, we do agree that the spirit of the Disability Discrimination Ordinance brings forth a positive message. It urges the society not to discriminate against persons with a disability. It ensures that persons with a disability are given equal opportunities by law. But I believe that to achieve the desired effect we do not necessarily have to demand that all employers and the Government should meet a set target or ratio in the recruitment of persons with a disability, because I opine that notwithstanding their physical disabilities, disabled persons are endowed with their skills and capabilities to undertake certain posts, so it is not necessary to fix a number or a restrictive target. My previous explanation just meant to show my worries that the setting of that kind of target or ratio may give contrary effect.
MR HOWARD YOUNG (in Cantonese): Madam President, although the Secretary said there was no set target, I understand the Government is taking a lead in the recruitment of persons with a disability. Will the Government inform this Council whether the figures recorded in the Annex is a combination of the data from both Government and private sectors? If that is the case, then since the government figures are in a leading position, would the relevant figures fail to reflect the drop in employment rate in the private sector?
SECRETARY FOR EDUCATION AND MANPOWER (Cantonese): Madam President, the figures indeed include those in the private sector. I do not have a breakdown of the figures for both the private and the Government. I will note this supplementary question and then give a written reply later. (Annex I)
MISS CHOY SO-YUK (in Cantonese): Madam President, will the Secretary inform this Council in what way it has let persons with a disability know about the channels for complaint that they can resort to when they encounter discrimination in employment? And in the past year, how many cases of complaint has the Government received in this respect?
SECRETARY FOR EDUCATION AND MANPOWER (Cantonese): Madam President, if persons with a disability feel that they are being discriminated against in the course of seeking employment or at work, they may lodge their complaints with the Equal Opportunities Commission. The Commission has received a total of 250 complaints since the coming into effect of the Disability Discrimination Ordinance. Madam President, I have the figures with me but I would rather provide them in written form for reference by Members than read them out now. (Annex II)
MISS CHOY SO-YUK (in Cantonese): Madam President, my supplementary question is about ways through which the Government informs the persons with a disability to lodge their complaints, not whether they can lodge complaints. Has the Government made any promotion efforts in this respect?
SECRETARY FOR EDUCATION AND MANPOWER (Cantonese): Madam President, first of all, since the coming into effect of the Disability Discrimination Ordinance, we have made promotion efforts in this respect. The Equal Opportunities Commission also conducts publicity as regards the matter. Meanwhile, the Selective Placement Division of the Labour Department provides printed pamphlets to applicants for its services about what channels they can resort to for lodging complaints once they encounter certain problems.
PRESIDENT (Cantonese): Seven Members are still queuing for supplementary questions. As the time spent has exceeded 15 minutes, I suggest that Members should follow up the matter through other channels. Third question.
Adjustment to Public Housing Rental
3. MR CHAN WING-CHAN (in Cantonese): Madam President, according to the results of the last general revaluation, the rateable values of residential properties have on average dropped by 18%, and more than 80% of owners of residential properties will pay less rates as a result. In this connection, will the Government inform this Council whether:
(a) public housing flats under the management of the Hong Kong Housing Authority (HA) were included in this revaluation; if so, whether the rateable values of such flats have been reduced; if there was a reduction, what the average percentage of reduction, as well as the total amount of rents attributable to such reduction in a year are; and
(b) the HA will adjust public housing rental, which is inclusive of rates, in line with the reduction in rateable values; if so, what the planned timing for the rental adjustments to take effect is; if not, of the reasons for that; and how the HA will dispose of the overcharged rates?
SECRETARY FOR HOUSING (in Cantonese): Madam President, public rental housing flats managed by the HA were included in the revaluation of rateable values effective from April this year, and their rateable values have decreased by 20% on average. Total rates payable in 1999-2000 are estimated at $1.14 billion, representing a reduction of $140 million compared with the previous year or an average of $240 per flat per year.
According to present practice, rents collected from public housing occupants include an element for rates, and are revised every three years. Since the HA is responsible for the payment of rates to the Government, any upward or downward adjustments during the three-year period is absorbed by the HA until rents are next reviewed. In other words, rents are not immediately increased if there is an increase in rates, nor immediately decreased if there is a decrease in rates.
Although public housing rent levels are determined mainly on the basis of tenants' affordability, the HA has decided to grant the same concession of 50% of rates promulgated by the Government to tenants during the period July to September 1999, amounting to $167 million.
MR CHAN WING-CHAN (in Cantonese): Madam President, in the newspapers, it is reported that the HA will freeze the rents of public housing. If this measure is implemented, it will of course be welcomed, since freezing rents is one way to relieve people's hardship. In the third paragraph of the main answer, the Secretary pointed out that public housing tenants would be granted a concession of 50% of rates during the period July to September. May I ask what the specific arrangements are and how much each household will be granted approximately?
SECRETARY FOR HOUSING (in Cantonese): Madam President, in July, August and September this year, the HA will deduct a sum from the rent to be paid by each household. The amount to be deducted for each household per month will be based on the overall rateable values of each public housing block, as provided by the Rating and Valuation Department to the HA, and calculated as per the proportion of the internal area of the tenancy unit to the block.
MR LEE WING-TAT (in Cantonese): Madam President, I understand that rents collected from public housing tenants include an element for rates. However, in view of the poor economy, has the Government considered, as a new approach, to refund all of the $140 million from the HA to the tenants due to the revaluation of rateable values, in order to lessen the burden of tenants during hard times?
SECRETARY FOR HOUSING (in Cantonese): Madam President, each time the HA reviews the rents, it will of course take into account the results of the revaluation of rateable values effective from April this year and make suitable adjustments. This means that if the rateable values decrease, generally speaking, the overall rental of public housing estates should be lowered slightly. The HA should then make a certain deduction in the rent. As for how the HA deals with other measures of the Government, certainly, whenever the Government adopts some measures, the HA will hold a special group meeting to study the relevant measures and then decide what corresponding actions to take.
MISS CHAN YUEN-HAN (in Cantonese): Madam President, from the Secretary's reply just now, it seems that the Government has two standards. According to the third paragraph of the main answer, the Government will take certain handling measures in July to September in terms of rates. However, regarding the revaluation, the Government seems to think that no measures need to be taken. Just now, it even said it would have to give further consideration. I would like to ask what the Government's standards are. I wish to emphasize that in the present recession, if the Government is prepared to freeze rents again, we will welcome it. However, objectively speaking, the Government's rents are at a high level. As basically, the Government would act according to certain standards, so what are these standards?
SECRETARY FOR HOUSING (in Cantonese): Madam President, there are in fact two issues here. First, in the third paragraph of the main answer, I pointed out that the Government had adopted measures to reduce the rates and I believe what the HA would do in this respect should be quite clear. In the first paragraph of the main answer, I said that the Government had carried out a revaluation of the rateable values of properties and stated the results of the exercise. I also explained that the adjustment of rents by the HA is bound by the law, for in accordance with a law passed by the Legislative Council a few days before the handover of Hong Kong two years ago, rent adjustments can only be made once every three years. Under such circumstances, the HA is bound by law not to make any early adjustment. That is why in the main answer, I also explained that any upward or downward adjustments during this period must be absorbed by the HA until the next review when the overall situation will be re-considered and have the necessary adjustments made.
MR AMBROSE CHEUNG (in Cantonese): Madam President, since the rateable values have decreased and the Secretary also said just now this would have an effect on rent, and there are reports that the rents might be frozen, may I ask the Secretary why they are frozen instead of reduced, whether there is room for reduction and what are the Government's criteria?
SECRETARY FOR HOUSING (in Cantonese): Madam President, I believe that this involves issues pertaining to the law. The HA can freeze the rents. However, as I said, a new law was passed by the Legislative Council two years ago which restricts the authority of the HA. As a result, it cannot raise or reduce rents in a period less than three years, but can only review and adjust the rents once every three years.
MR LEUNG YIU-CHUNG (in Cantonese): Madam President, just now the Secretary said that the law restricts that rents may not be raised or reduced within three years. However, over 60 housing estates will be facing a rent increase in three years' time. In this connection, will the Housing Department suggests to the HA to have the present rents reduced? At present, the economic environment has not yet improved and the market situation is bad, will the Housing Department make such a suggestion?
SECRETARY FOR HOUSING (in Cantonese): Madam President, the rent levels are determined mainly on the basis of tenants' affordability. Of course, the rents also include an element for rates and take into account other expenditure such as management and upkeep. But the most important criterion is still the tenants' affordability. As for the Government's revaluation of rateable values, it would of course have a certain influence on the HA's determination of rent levels, but most important of all is the tenants' affordability, on which the final decision will be based. This is because the rents are already highly subsidized.
PRESIDENT (in Cantonese): Mr LEUNG, which part of your supplementary question has not been answered?
MR LEUNG YIU-CHUNG (in Cantonese): Actually, I asked the Secretary whether the Housing Department will suggest adjusting the rents downwards?
SECRETARY FOR HOUSING (in Cantonese): Madam President, at this stage, I cannot answer on behalf of the Housing Department or the HA and say what measures might be taken in future. However, I am sure that the Housing Department and the HA will make an appropriate decision based on the relevant information they have.
MR HO SAI-CHU (in Cantonese): Madam President, the Secretary has given a very clear reply in the third paragraph. However, apart from tenants, will shops and parking lots be given the same treatment to have their rates refunded for that quarter?
PRESIDENT (in Cantonese): Mr HO, you may sit down.
SECRETARY FOR HOUSING (in Cantonese): Madam President, the rents paid by commercial tenants are different. They do not include rates. Apart from paying the rent to the HA, commercial tenants have to pay rates themselves. If the Government adjusts the rates, it will directly affect the commercial tenants. In case the rates are refunded, they will be directly refunded to the commercial tenants.
MR LEE WING-TAT (in Cantonese): Madam President, I wonder if I have misheard something. The Secretary's answer seems to suggest that the Housing Ordinance does not allow the HA to reduce rent within three years. I would like the Secretary to explain whether the law lays this down. According to information provided by the Housing Bureau to the Panel on Housing of the Legislative Council, the overall income of tenants in the first quarter of 1999 dropped by 5% to 10 %. According to the principle of affordability, should the Administration reduce rent by 5% to 10%?
SECRETARY FOR HOUSING (in Cantonese): Madam President, the HA of course has its criteria in reviewing the rents of public housing and it will adjust them according to a set method. This is determined on an overall basis by the HA. We cannot say on behalf of the HA how it would amend the method or formula for calculation. However, I am sure that members of the HA will give their views and advice and come up with a decision that everyone will consider appropriate.
MR LEE WING-TAT (in Cantonese): Madam President, I would like the Secretary to clarify. In answering Mr LEUNG Yiu-chung's supplementary question, the Secretary seemed to suggest that the Housing Ordinance does not allow the HA to reduce rent. I would like to ask the Secretary through the President whether the Housing Ordinance restricts the HA from reducing rent.
SECRETARY FOR HOUSING (in Cantonese): Madam President, in answering Mr LEUNG Yiu-chung's and Mr LEE Wing-tat's questions, I pointed out that the Housing Ordinance has such a clause stating that "更改租金的釐定" is not allowed, which means that rent cannot be varied within three years. The wording in English is something like "any determination of variation of rent". Whether in the Chinese or English version, the meaning is quite clear, that is, rent cannot be varied within a period of three years. Actually, I am sure that Mr LEUNG Yiu-chung and Mr LEE Wing-tat are well aware of this, because two years ago, the relevant legislation passed by the Legislative Council three days before the handover of Hong Kong was tabled by these two Members.
PRESIDENT (in Cantonese): We have spent more than 16 minutes on this question. We will now proceed to the fourth question.
Construction of a Performance Venue on the West Kowloon Reclamation
4. MR AMBROSE CHEUNG (in Cantonese): Madam President, the Chief Executive indicated in the 1998 policy address that in order to enhance Hong Kong's appeal as a tourist destination, the Government is planning for a new, state of the art performance venue on the West Kowloon Reclamation. In this connection, will the Government inform this Council:
(a) of the siting, facilities, completion date and construction costs of the performance venue;
(b) of the measures it will take to ensure that the design and facilities of the performance venue can meet the expectation of residents and international standards; and
(c) whether it will consider co-operating with private developers in the construction of the venue, so as to reduce the commitment of public funds and shorten the time required for completing the project; if so, what the form of co-operation's; if not, of the reasons for that?
SECRETARY FOR HOME AFFAIRS (in Cantonese): Madam President,
(a) A site at the southern front of the West Kowloon Reclamation area has been temporarily identified for the purpose. As the project is at its preliminary planning stage, it is too early to provide a realistic assessment of its completion date and cost which will very much depend on the final design adopted.
(b) Based on past experience, the design of large-scale government facilities will meet the expectations of the public and international standards.
(c) Since the performance venue is still at a preliminary planning stage, it is premature to consider its implementation arrangements. The suggestion to co-operate with the private sector in the construction of the venue will not be ruled out.
MR AMBROSE CHEUNG (in Cantonese): Madam President, basically, the Secretary did not answer my question. What I mean is that my sensitive question has met with a secretive design. The project has been discussed for one or two years. The Chief Executive made a public commitment in the 1998 policy address, while the Secretary mentioned in the main answer that a site at the southern front of the West Kowloon Reclamation area had been identified and that preliminary planning had been made. In that case, can the Secretary explain what facilities are included in the preliminary planning, whether they are cultural, arts, recreational or other facilities? Since preliminary planning has been made, there must be some information. Why does the Secretary consider the project confidential and why did he refuse to disclose any specific information in the main answer?
SECRETARY FOR HOME AFFAIRS (in Cantonese): Madam President, there was no secrecy in my answer. After the Chief Executive had announced that the Government planned to build the venue last year (that is, 1998), the Hong Kong Tourist Association (HKTA) carried out a feasibility study and submitted its report to the Government recently. At present, we are examining the recommendations in the report. That is why I said that it is still at a preliminary planning stage. We are still studying the report of the feasibility study which has just been completed. Perhaps I can give a brief account of the main recommendations of the HKTA's feasibility study report. However, I want to stress that those are only the recommendations of the report. The Government is still studying them. First, the report recommends the site at the southern front of the West Kowloon Reclamation area. Second, the report recommends that the facilities should include a venue with 1 500 to 2 200 seats, a semi-open air theatre with approximately 8 000 seats and some open air facilities, facilities for rehearsals and commercial facilities, such as restaurants, as well as some parking spaces. These are the recommendations made by the HKTA's consultants. We are now studying them thoroughly with the departments concerned. That is why I stress that it is now at a preliminary stage.
MISS CYD HO (in Cantonese): Madam President, may I ask the Secretary whether the main purpose of this development is to create a tourist attraction, or to build a venue for Hong Kong artistic groups to promote the cultural industry? Just now, the Secretary mentioned that the facilities would include a semi-open air theatre with approximately 8 000 seats and a venue with 1 500 to 2 200 seats. Does Hong Kong have such popularity commanding artistic groups that can stage performances every night and will there be so many viewers coming to the theatre?
SECRETARY FOR HOME AFFAIRS (in Cantonese): Madam President, this proposal has several objectives. First, it is of course a facility that is aimed at attracting tourists to Hong Kong. Many tourists who come to Hong Kong would like to participate in some cultural events. However, at present, Hong Kong does not have many large-scale facilities. There are only three or four such facilities and their utilization rate is already as high as 80% to 90%. Very often, world-class performing groups which come to Hong Kong cannot find a suitable performance venue. In view of this, one of the objectives in building this facility is to create one more world-class performance venue in order to attract more world-class performers to perform in Hong Kong. Second, we also hope that this venue will become a tourist attraction and a world-class landmark, so as to attract more tourists.
MISS CYD HO (in Cantonese): Madam President, part of my supplementary question just now was whether Hong Kong has so many popular artistic groups that can stage performances there every night so as to ensure maximum use of that facility?
SECRETARY FOR HOME AFFAIRS (in Cantonese): Madam President, as I said just now, there are only a few large-scale venues in Hong Kong and their utilization rate is already very high. Even local artistic groups may not be able to book a venue. Even if they manage to book it, they may not be able to get an adequate time slot. As I said, many world-class performing groups intended to perform in Hong Kong but the effort aborted because of a lack of performance venue. From this, it is clear that the demand is very great. Therefore, we consider it necessary to build a high-class and large-scale venue.
DR TANG SIU-TONG (in Cantonese): Madam President, in Hong Kong, such venues are generally managed by the Urban Council. Although the Municipal Councils are soon to be disbanded, the Urban Council still exists now. Why is the Urban Council not given the charge of this or why is it not consulted?
SECRETARY FOR HOME AFFAIRS (in Cantonese): Madam President, the whole project is now at a very preliminary stage. As one Member said, one of the factors that must be considered is the future mode of management. Although it is a secondary concern to be considered in terms of the whole project, it is also an important factor. As far as I know, the HKTA's consultants also have some recommendations in this respect. We will consider them in detail and consult the relevant organizations at an appropriate time.
DR TANG SIU-TONG (in Cantonese): Madam President, I would like to ask the Secretary why the Urban Council is not given the charge of this?
SECRETARY FOR HOME AFFAIRS (in Cantonese): Madam President, we are still at a preliminary planning stage. After having the initial findings, we will carry out specific consultation with regard to the future operation and management.
MR LAU KONG-WAH (in Cantonese): Madam President, does the Secretary have any evidence to show which world-class performing groups did not come to perform because of a lack of performance venue in Hong Kong? Please give us the relevant information later. The preliminary conception described by the Secretary is in fact not much different from the facilities of the existing Cultural Centre. Why did the Secretary describe that as a world-class facility?
SECRETARY FOR HOME AFFAIRS (in Cantonese): Madam President, in terms of the design, we of course hope that it will be world-class. Actually, one cannot tell from the figures alone whether or not the design of a facility is world-class. For instance, a performance venue with 2 000 seats may have a very crude design or a world-class design. We hope to have a world-class design in order to attract world-class performing groups to Hong Kong. The greatest problem that we now face is that many performing groups want a longer period for performance, instead of a few weeks or one or two months. At present, it is very difficult for Hong Kong to provide such performance venues. Therefore, we hope that this venue can meet this objective in the future. As for the information on artistic groups which did not come to Hong Kong because of a lack of performance venues which Mr LAU has inquired about, I will give a written answer later. (Annex III)
MR SIN CHUNG-KAI (in Cantonese): Madam President, I believe that the Government is just studying the matter and that it is now only at a preliminary stage. From what the Secretary said, I really do not know what the Government wishes to achieve, because it is very difficult to make a comparison. In London and New York, for instance, such cultural events are very often offered on a large-scale, which cannot be adequately provided by just one or two theatres. Basically, they have eight or 10 theatres offering different programmes, so that people can go to different shows in the week. In view of this, will it really help by building one more theatre?
PRESIDENT (in Cantonese): Mr SIN, what is your supplementary question?
MR SIN CHUNG-KAI (in Cantonese): My supplementary question is whether the Government has tried to borrow from other's success. Does the Government think that the problem can be solved by building just one theatre?
SECRETARY FOR HOME AFFAIRS (in Cantonese): Madam President, at present, the utilization rate of our venues is very high and it is not easy to book a venue. Therefore, we hope to build a world-class theatre. Of course, we will examine whether there is a need to build another one after completing this facility. However, that would be a more long term matter. One of the objectives of the feasibility study is to look into the financial viability, such as whether it can financially self-sufficient or whether there will be a profit.
MR LEE KAI-MING (in Cantonese): Madam President, I would like to ask whether facilities like cultural venues or theatres could be exempted from the plot ratio restriction? If they could be exempted, why is it that since 1995, the construction of the Tai Po Civic Centre has failed to obtain approval due to the plot ratio restriction? If no exemption can be granted, how then can the Administration build this venue?
SECRETARY FOR HOME AFFAIRS (in Cantonese): Madam President, in determining the site, one consideration is town planning. We tentatively consider the southern front of the West Kowloon Reclamation area to be an appropriate site. But it does not mean that it is certain that we will be able to build the relevant facility there, since we must also obtain the approval of the Town Planning Board (TPB). I am sure that the TPB will consider the plot ratio before deciding whether to approve the project. This is what we must deal with later.
MR LEE KAI-MING (in Cantonese): Madam President, I would like to ask the Secretary whether such venues can be exempted from the plot ratio restriction? If not, the relevant facility can never be built. The Tai Po Civic Centre is a case in point.
PRESIDENT (in Cantonese): Mr Secretary, do you have anything to add?
SECRETARY FOR HOME AFFAIRS (in Cantonese): Madam President, the TPB has the statutory power to decide on any exemption from the plot ratio. That is why I said the exact site to be determined in the future must be approved by the TPB.
MR FRED LI (in Cantonese): Madam President, just now I carefully noted that the Secretary said the word "world-class" five to six times. What exactly is world-class and are the venues in Hong Kong world-class?
SECRETARY FOR HOME AFFAIRS (in Cantonese): Madam President, there are of course venues in Hong Kong that are world-class. But this does not mean that we do not need to build any more world-class venues. One of the most important objectives in the venue to be constructed is that it must be world-class.
MR FRED LI (in Cantonese): Madam President, my supplementary question was what did world-class mean.
SECRETARY FOR HOME AFFAIRS (in Cantonese): Madam President, in terms of design, we will consult the relevant organizations. Even with regard to details like who should design it and what the design should look like, detailed consultation will be carried out. The relevant organizations can then give their views on whether a certain design achieves world-class standards. As I said just now, this is just a preliminary concept. We are now in an initial stage of studying what facilities it should have, where it should be sited and how big an area it should occupy.
MR NG LEUNG-SING (in Cantonese): Madam President, in the second part of the main answer, it was pointed out that based on past experience, the design of large-scale Government facilities would meet the expectations of the public and international standards. The Hong Kong Coliseum is now chiefly a concert venue instead of a venue for sports events. In this connection, I wonder whether we can learn from this experience so that in building a new cultural or sports venue, we will ensure that it would serve its purpose?
SECRETARY FOR HOME AFFAIRS (in Cantonese): Madam President, I wish to thank Mr LEE for his suggestion. In this respect, we will certainly learn from past experience, whether it is good or bad. Furthermore, we will certainly consult the relevant organizations.
DR RAYMOND HO (in Cantonese): Madam President, the policy address was delivered more than six months ago and the next policy address is coming up soon. However, the plan revealed by the Secretary seems still very vague and passive. He said that the HKTA's consultancy plan is still being awaited. Will the Government consider publicly inviting interested private companies to submit their plans? Their plans might contain many innovative ideas.
SECRETARY FOR HOME AFFAIRS (in Cantonese): Madam President, we hope to examine the preliminary feasibility study report first before deciding on the next step. As I said in the main answer, we will not rule out co-operation with private developers. As for the mode of operation, we might have to think about it later on.
DR RAYMOND HO (in Cantonese): Madam President, the Secretary did not answer my supplementary question. My supplementary question was whether private companies will be publicly invited to submit their conceptions and innovative ideas so that construction of this project can commence soon, instead of waiting for the HKTA's report before considering whether or not to let the private sector participate.
SECRETARY FOR HOME AFFAIRS (in Cantonese): Madam President, we are now studying the HKTA's report. We hope to finish studying it soon before deciding what to do next.
PRESIDENT (in Cantonese): Last supplementary question.
MR CHAN KAM-LAM (in Cantonese): Madam President, the Secretary seemed not to have said anything in the main answer. However, I would like to know when the Government will finish its scrutiny of the HKTA's proposals and when can it make the ideas public and consult the people?
SECRETARY FOR HOME AFFAIRS (in Cantonese): Madam President, just now I introduced very briefly some suggestions and ideas of the HKTA's consultants. We hope to obtain preliminary findings in respect of this feasibility study report in the next few months and consult the relevant organizations or the public soon.
PRESIDENT (in Cantonese): Fifth question.
Breaching of the Takeovers Code
5. MISS EMILY LAU (in Cantonese): Madam President, the Securities and Futures Commission (SFC) last month upheld its previous decision made in January 1994 to publicly reprimand two persons who were involved in the purchase of shares in Shun Ho Resources Holdings Limited in 1998 and 1989, for breaching the provisions of the Hong Kong Takeovers and Mergers Code (the Code). In this connection, will the executive authorities inform this Council whether;
(a) they know the amount of time and money that the SFC has spent in investigating the case;
(b) they have assessed the deterrent effect of public reprimand upon actions in breach of the Code; and
(c) there are plans to criminalize breaches of the Code?
SECRETARY FOR FINANCIAL SERVICES (in Cantonese): Madam President,
(a) Since the Shun Ho case had taken a long time and the procedures involved were rather complicated, it would be necessary for me to first set out briefly the proceedings of the case.
In mid-1991, the SFC received a complaint that certain parties involved in certain transactions of shares in Shun Ho Resources Holdings Limited in 1990 and 1991 might have breached the Code. At the end of 1991, the Committee on Takeovers and Mergers commenced hearings to inquire into the matter. The SFC subsequently conducted further investigations into the transactions, which were extended to include certain tradings in the shares of Shun Ho in 1998 involving one of the concerned parties. The investigation took about one year to complete and the Takeovers and Mergers Panel (the Panel) (the successor body of the Committee on Takeovers and Mergers after 1992) made its decision on the case in January 1994. In its decision on the case, the Panel ruled that the transactions had indeed been in breach of the Code and imposed sanctions on the four persons concerned.
Subsequently, these persons appealed to the Takeovers Appeal Committee (the Appeal Committee) and one of them also applied to the court for judicial review. The judicial review process came to an end in October 1995 when the Privy Council made its ruling in October 1995. In the meantime, all concerned parties agreed to suspend the process of the Appeal Committee.
After the Privy Council released its ruling, one of the concerned persons agreed to abide by the ruling of the Panel and withdrew his appeal to the Appeal Committee. Another appellant also withdrew her appeal to the Appeal Committee in May 1996. The Appeal Committee resumed hearing on the appeals lodged by the remaining two persons in July 1996 and reached its decision on the appeals in April 1999. The decision of the Appeal Committee upheld the sanctions imposed by the Panel.
The Shun Ho case involved a number of different procedures, including the investigations by the SFC; the different steps of Panel hearings; the judicial review and the hearings of the Appeal Committee. The investigations by the SFC took approximately one year.
The investigations were conducted by the staff of the SFC which also involved its different departments. Since the same staff were also responsible for other cases under the Code and had to perform other duties of the SFC, it is difficult to work out the expenditure involved. However, insofar as the judicial review and the subsequent review process are concerned, the costs incurred by the SFC amounted to about $7.4 million. The SFC recovered $5.5 million from the party concerned subsequent to the ruling by the Privy Council in favour of the Panel and the SFC.
(b) The Code was first introduced in Hong Kong in 1975. The existing Code was made by the SFC pursuant to its functions stipulated under the SFC Ordinance. The Code sets out the principles and the generally accepted market standards for the commercial practices on takeovers and mergers in Hong Kong. It also sets out the rules for the implementation and application of such principles. The main objective of the Code is to ensure that all the shareholders who may be affected by a company's takeovers and mergers are treated even-handedly.
The Code is administered by the SFC Executives. Market participants may request the Panel to rule on matters related to the Code. The Panel may also conduct disciplinary proceedings against market participants suspected to have breached the Code, make rulings and decide on sanctions. The persons concerned may appeal to the Appeal Committee against the sanctions imposed by the Panel.
Sanctions against market participants in breach of the Code include, inter alia, public reprimands and "cold-shoulder treatment" (the person sanctioned will be denied access to services by dealers or advisers including brokers and merchant banks during the sanction period). Where appropriate, the SFC may, within its power, also take further actions such as revoking the intermediary licence of the person concerned. In the Shun Ho case, the intermediary licence of one of the concerned persons was revoked by the SFC following the ruling of the Panel. The Panel also imposed a "cold-shoulder treatment" to another concerned person in the case for a period of five years which remains valid at present.
For market participants, public reprimand is a serious dent in the business reputation of the reprimanded person. It would alert other market participants and enable them to better assess the risk of doing business with the reprimanded person. In a commercial society where information flows efficiently, public reprimands would have a considerable impact on the relevant persons. We therefore believe that this type of sanction does have a certain deterrent effect. The SFC's experience also indicates that the relevant persons are willing to spend an enormous amount of time, effort and money to fight their case and defend themselves from possible sanctions. This shows that public warnings or reprimands are effective deterrents.
However, I would like to point out that the existing Code and its enforcement in practice aim essentially to provide clear guidelines and standards for the market, while at the same time maintaining flexibility in enforcement, so as to cater for changing market activities and business circumstances. As a matter of fact, the executives of the SFC responsible for administering the Code (Takeover Executives) had handled a total of 1 547 cases under the Code in the three year period from April 1995 to March 1998, or on average 500 cases per year. Since 1992, only 40 cases have been found to be necessary to be submitted to the Panel for consideration and only three of them concerned disciplinary matters. This indicates that most of the cases could be handled at the Takeover Executives level. The figures also lends support to the observation that the existing mechanism and sanctions are effective and have sufficient deterrent effect.
(c) The question as to how to combat commercial and market misconduct effectively has been a matter of common concern to governments and market regulators all over the world. Because of the complexity of commercial crimes, there has been increasing opinion that "criminalization" may not necessarily be the most effective way to address the majority of market misconduct behaviour. As a high standard of proof is required for "criminal offences", it is often more difficult to convict complicated commercial crimes and takes a great deal of resources and time to establish a case. As such, the criminal approach to deal with market misconduct may not have sufficient deterrent effect on potential offenders. At present, some overseas market regulatory authorities, including those of the United Kingdom and Australia, are already trying to deal with market misconduct by way of civil actions. The Government and the SFC are now examining and conducting a review on the issue. The scope of the review covers all market misconducts. We expect to be able to put forward proposals and consult the Legislative Council and the market before the summer recess.
MISS EMILY LAU (in Cantonese): Madam President, the Secretary said in the main reply that there has been increasing opinion that "criminalization" may not be a very effective way to address market misconduct behaviour. He also indicated that the United Kingdom and Australia have been trying to deal with market misconducts by way of civil actions. Madam President, I would like to ask the Secretary which countries were referred to in his statement? Can he mention these countries one by one? Does he mean that these offences were originally criminalized in these countries but are now being dealt with by way of civil actions?
SECRETARY FOR FINANCIAL SERVICES (in Cantonese): Madam President, under the laws of the United Kingdom, many unlawful practices, according to our understanding and information obtained by the SFC, have in fact been addressed by way of civil actions instead of criminal litigations for many years. Of course, major fraud and deception cases must be dealt with by criminal litigations. As indicated by the Government in part (c) of the main reply, we are, of course, not going to address all these offences by way of civil actions because certain offences, such as fraud, still remained to be defined as criminal in nature. According to my understanding, many cases in Australia had, in fact, been dealt with by way of criminal litigations before. But in the course of enforcement, it was found difficult to initiate prosecution and the number of successful prosecution cases over the past few years was unsatisfactory. However, two rails, the civil and the criminal, are usually available to address such irregularities under the law of the country. As a result, the majority of regulators and law enforcement agents have gradually tended to adopt the civil rail rather than the criminal. At present, the mechanism in Australia has already been amended to the effect that civil rather than criminal rail is pursued by its investigation panel when dealing with these irregularities, just like the inquisitions conducted by our Insider Dealing Tribunal. So, in my opinion, we can consider adopting this approach. But I have to emphasize that the Government and the SFC are now studying the issue internally with the Department of Justice so as to decide whether we should take a few more steps ahead or remain status quo and what our justifications are. We have also undertaken to brief and consult the Members at the Panel on Financial Affairs to be held this July.
MISS EMILY LAU (in Cantonese): The Secretary has not answered my supplementary question. His mention of "increasing opinion" made me think that many countries had adopted such an approach. So I asked him what those countries were. But he repeatedly mentioned the United Kingdom and Australia. Did he simply refer to these two countries when he said that there was increasing opinion in favour of the approach?
SECRETARY FOR FINANCIAL SERVICES (in Cantonese): Madam President, I did not cite the example of the United States a moment ago because some concepts of irregularities generally prevail in the market of the United States. As regards the case of United Kingdom and Australia, many legal principles governing the commercial practices in Hong Kong have close relationship with those in the United Kingdom and many approaches we have adopted in Hong Kong follow those of the United Kingdom too. I am also of the view that Hong Kong, as an international financial centre, has a lot in common with London. In the case of the United States, I cannot say whether there is an increasing or decreasing trend towards such an approach. As there are also many double-rail mechanisms in the United States, very often, criminal sanctions act as a deterrent in law enforcement while civil proceedings are taken in reality. It is hoped that such an approach will discourage the defendant or respondent from resorting to various procedures or other defences. As a result, this may lead to a higher prosecution rate as reflected by court's rulings. In the United States, not every case is dealt with by way of criminal litigations. Usually both civil and criminal proceedings are adopted. So, it is difficult to say exactly which approach is used more often than the other in the United States. But I can say that regulatory authorities in the United Kingdom and Australia certainly show an obvious tendency towards the civil channel.
MR FUNG CHI-KIN (in Cantonese): Madam President, although the Code has been implemented for 24 years, according to the Secretary, the situation in Hong Kong is still quite satisfactory. Can the Secretary give me some more data to show whether of the 1 547 handled cases, most were initiated by market participants or by the SFC itself out of its suspected breaches of the Code? It is also said that most of these cases have been handled. Does this handling mean that the SFC has often made mistakes and got the wrong persons, or the persons involved all admitted guilty?
SECRETARY FOR FINANCIAL SERVICES (in Cantonese): Madam President, perhaps Members should first make it clear that the Panel is not simply a disciplinary panel because it has another very important function, that is, to interpret the Code and make clarifications when necessary. Hence, most cases concerning takeovers and mergers will be referred to the Panel if the executives level of the SFC are unable to deal with them. As I have just point out in the reply, there are only three cases which are really concerned with disciplinary matters and sanctions over the past seven years since 1992. It is not a question of losing or winning the cases by the SFC. There are hundreds of takeover and merger cases every year. Sometimes, commercial organizations or persons going to initiate such activities also wish that the SFC or the Panel would provide guidelines which they could follow. It is absolutely not a matter of harshness or not since the Panel has also played a part in disciplinary action. Miss LAU in her main question asked whether the actions taken have deterrent effect. The answer is of course in the affirmative. But most of the cases are purely commercial arrangements and the Panel is to see that they are properly conducted. Lastly, Madam President, there is a very important spirit in the Code and it reflects the views of the regulators and the commercial organizations on certain market behaviours at a certain time. Conducts which are widely accepted as fair practices will be manifested in the Code. That is why the Code has to be reviewed and amended from time to time.
MR JAMES TIEN (in Cantonese): Madam President, in my opinion, we have to strike a balance between regulation and flexibility of the market in as far as investment in securities and futures are concerned. The Secretary said at the end of part (b) in the main reply that over 1 500 cases were handled and among them only three were concerned with disciplinary matters. As a matter of fact, he himself also said that he saw no problem. If so, why did he say in the last paragraph that we have to follow the example of the United Kingdom and Australia in that we would consider the need of setting up the civil approach? Since he said that there was no problem, why should we consider this point? Are those measures currently adopted such as public reprimand and "cold shoulder treatment" considered sufficient?
SECRETARY FOR FINANCIAL SERVICES (in Cantonese): Madam President, I thank Mr TIEN for his question so that I can take this opportunity to clarify possible ambiguities in my reply. According to my understanding, part (c) of Miss Emily LAU's question is general in nature, I therefore give a general reply. In fact, both the Government and the regulatory authorities are of the view that takeovers and mergers do not cause major problems since there are other market irregularities which warrant more serious view. I have simply given a general response to a question on market irregularities rather than a specific question on takeovers and mergers.
MR JAMES TIEN (in Cantonese): Madam President, the Secretary has not answered my question. If everything is on the right track, why should we have to copy the example of the United Kingdom in adopting the civil approach? In other words, can we properly address these irregularities by means of public reprimand and "cold shoulder treatment"?
SECRETARY FOR FINANCIAL SERVICES (in Cantonese): Madam President, we are not considering a dramatic overhaul to the Code because since its implementation in 1975, most of its contents mirror the practices in the London market. Neither do I think that there is a need to do so. When I said that some cases could be dealt with by way of either a criminal or a civil approach, or purely criminal litigations, I was not referring to merger and takeover activities. Rather, I was discussing whether it is necessary to review the way of dealing with other market irregularities. And that is the objective of part (c) of the main reply.
MISS CYD HO (in Cantonese): Madam President, "cold shoulder treatment" is mentioned in part (b) of the main reply. Can the Secretary clarify whether "cold shoulder treatment" is mandatory in nature? In other words, if some dealers, advisers, or banks do not want to give "cold shoulder treatment" to the reprimanded persons and remain co-operative with them enthusiastically, will the SFC sanction those who refuse to give "cold shoulder treatment" to those reprimanded ─ such as the banks as service providers?
SECRETARY FOR FINANCIAL SERVICES (in Cantonese): Madam President, as I have explained, there is a very fundamental element in the Code, which is based on market consensus and self-discipline. When everyone agrees to comply with certain rules, these rules will then be codified. Although the Code is published within the powers of the SFC, a person who is in breach of the agreed conducts will not be subject to any particular legal sanctions under the formal legal situation, since these are rules of the game to be observed by all in the market. This has been obvious to us all from the previous cases. However, the number of cases in the past is small. As I have just explained, there are only three cases so far which have justified disciplinary sanctions. The persons who are subject to "cold shoulder treatment" are still serving their time. During the "cold shoulder treatment" period, commercial organizations, banks and other dealers all comply with the rule. As a result, these persons, or anyone who is in similar position in future, cannot carry on business at all. This is a fact. With a handful of real cases, I cannot assure you that there will be no problem in the future. But in view of the actual situation as at present, the market is in support of these generally accepted rules of the game which are being observed by all.
PRESIDENT (in Cantonese): Miss Cyd HO, which part of your supplementary question has not been answered?
MISS CYD HO (in Cantonese): I only wish to ask the Secretary in a more precise way. Is it true that the SFC does not sanction those who accord warm hospitality to persons under reprimand? Or is it true that the SFC could do nothing but would simply let the banks and the dealers accord their warm hospitality to those reprimanded?
SECRETARY FOR FINANCIAL SERVICES (in Cantonese): The answer in simple is yes.
PRESIDENT (in Cantonese): Member, I understand that a few Members are still waiting for their turn to ask questions, but we have already spent more than 21 minutes on this question. So I would like to draw a line here.
WRITTEN ANSWERS TO QUESTIONS
Installation of Escalators Connecting Bus Stops and Pedestrian Footbridge
6. MISS CHOY SO-YUK (in Chinese): The covered overhead pedestrian footbridge near the Cross Harbour Tunnel at Hung Hom, which connects the railway terminus, the Hong Kong Polytechnic University and bus stops on the ground level, is always flooded with pedestrians, many of whom carry bulky baggage and have to climb the stairs from the bus stops on the ground level to the footbridge leading to the railway terminus for the trains to the Mainland. In this connection, will the Government inform this Council whether it has plans to install escalators to link up the bus stops and the covered overhead pedestrian footbridge; if so, the details of such plans; if not, the reasons for that?
SECRETARY FOR TRANSPORT (in Chinese): Madam President, the Government is now building two escalators to link the footbridge above the toll booths of the Cross Harbour Tunnel with the bus stops on the ground level. The construction works, which commenced in February 1998, are scheduled for completion in November 1999. Both south- and north-bound passengers alighting at the bus stops near the Cross Harbour Tunnel will then be able to use the escalators to gain direct access to the footbridge, and onwards to the Hung Hom rail station, the Hong Kong Polytechnic University or Tsim Sha Tsui East.
Construction of Public Housing
7. MR GARY CHENG (in Chinese): Regarding the construction of public housing, will the Government inform this Council of:
(a) the number of cases in which irregularities in the construction procedure of building projects were found in the past three years; the details of the irregularities in those works; and the number of contractors involved; and
(b) the follow-up measures taken by the relevant authorities in respect of those cases and the penalties imposed on contractors for such irregularities?
SECRETARY FOR HOUSING (in Chinese): Madam President, the Housing Authority adopts a site monitoring system for its construction projects. All items of work throughout the construction process are inspected. If any item fails to comply with the required standard, the contractor concerned will be required to rectify or replace the item to the correct standard. In the past three years, 30 cases of non-compliance with concrete strength involving 15 different contractors were discovered during construction. All deficiencies have been or are being rectified before completion and handover of flats.
Contractors with poor performance will be barred from tendering for Housing Authority projects for a certain period or, in serious cases, will be removed from the Housing Authority's Approved List of Contractors.
Public housing projects carried out by the Housing Society are governed by the Buildings Ordinance (Cap. 123). In the past three years, no breach of the Ordinance by contractors has been reported. In the event of non-compliance with the Ordinance, the contractor will be required to rectify the deficiencies to the satisfaction of the Building Authority. Depending on the extent of non-compliance, the contractor may be debarred from tendering for Housing Society projects for a certain period or, in serious cases, removed from the Housing Society's Approved List of Contractors.
Safety of School Buses
8. MR ANDREW CHENG (in Chinese): Since 1 September 1997, school buses have been required to provide escorts when transporting primary school or kindergarten children. Moreover, a new requirement which came into operation on 1 May 1997 stipulated that school buses newly registered on or after that date should be equipped with certain facilities to enhance safety. In this connection, will the Government inform this Council:
(a) of the number of traffic accidents involving school buses since September 1997 and the number of casualties involving school children;
(b) of the traffic accident rate of school buses and the number of casualties involving school children since the implementation of these requirements as compared to the respective figures before the requirements were implemented;
(c) of the number of cases in which school buses were found not providing escorts since September 1997; of the penalty for breach of that requirement;
(d) how it monitors the school bus service and ensures that registered escorts do stay on buses to take care of children; and
(e) whether it has considered plans to further enhance the safety of school buses; if so, the details of such consideration?
SECRETARY FOR TRANSPORT (in Chinese): Madam President,
(a) and (b)
The mandatory requirement for provision of escort for primary and kindergarten school buses with a capacity of over 16 seats was introduced on 1 February 1997 with a grace period of six months. For the 16 months from 1 September 1997 to 31 December 1998, there were 226 traffic accidents involving school buses, with 175 casualties involving school children. The corresponding figures for the 16 months before the implementation of the escort requirement were 227 accidents and 169 casualties. There are many causes for traffic accidents. The above figures reveal that there is no significant change in the traffic accident rate of school buses and the number of casualties involving school children before and after the implementation of the requirement.
(c) Provision of escort for primary and kindergarten school buses with a capacity of over 16 seats is one of the licence conditions stipulated in the relevant Passenger Service Licence issued under section 27 of the Road Traffic Ordinance (Cap. 374). Non-compliance with the licence conditions may lead to cancellation, suspension or variation of the concerned passenger service licence. If an operator is found operating without an escort or if a complaint is received, he/she will be given the opportunity to explain the situation. Action against the operator will be taken if he/she fails to provide an escort during the follow-up investigation by Transport Department without good reasons.
According to a survey conducted by Transport Department at the end of 1997, 34 school buses were found not providing escorts on board the buses. No penalties were imposed on the operators concerned as they have all complied with the relevant requirement as observed in Transport Department's follow-up investigation.
(d) Transport Department monitors the compliance of the escort requirement by the school bus operators through regular surveys. The Department also conducts investigations in response to complaints received. Warning letters will be issued to those operators who fail to comply with the requirement and follow-up investigations will be conducted on them. The police will also report non-compliance cases that come to their attention through complaints or traffic accidents to Transport Department.
(e) The surveys conducted by Transport Department at the end of 1997 revealed that 96% of the surveyed school trips, that is, 988 out of 1 029 observed trips, did comply with the requirement. The Administration believes current safety measures are effective in promoting safety of school buses. These measures include: provision of escort, the mandatory installation of warning devices at main doors and emergency exist doors, an additional "Caution Children" rear sign board on school buses, as well as the yellow waist band on the body of the vehicle with the letters "School Private Light Bus". Transport Department will continue to monitor the situation closely and consider the need for additional measures to further enhance the safety of school buses in the light of developments.
Freezing the Rents of Public Rental Housing Estates
9. MR TAM YIU-CHUNG (in Chinese): In view of the economic downturn and the persistent high unemployment rate at present, will the Government inform this Council whether it knows if the Hong Kong Housing Authority will continue to freeze the rents of public rental housing estates at the existing levels so as not to increase the financial burden of public housing tenants; if not, the reasons for that?
SECRETARY FOR HOUSING (in Chinese): Madam President, public housing rent levels are determined on the basis of tenants' ability to pay. As the median rent-to-income ratio for Housing Authority tenants as a whole is now about 9.3%, public housing rents are reasonable and affordable.
The Housing Authority has waived rent increase for three groups of 263 000 tenants during the periods September 1998 to August 1999, December 1998 to November 1999 and April 1999 to March 2000 in order to alleviate their burden during a period of economic adjustment. In doing so, the Housing Authority has foregone rental income amounting to $750 million.
The Housing Authority will consider the question of rent adjustment for tenants whose rents are due for adjustment soon.
Scope of Service of the Post Office
10. MR HOWARD YOUNG: Will the Government inform this Council whether the Post Office has any plan to expand its scope of service to include selling stationery related to postal services, accepting payments for rates, vehicle licence fees and fixed penalty fines on behalf of other government departments; if so, the details of it?
SECRETARY FOR ECONOMIC SERVICES: Madam President, currently, all post offices are selling stationery and accessories related to postal services (such as padded envelopes, cartons, prepaid envelopes, writing pads and so on). The Postshop in the General Post Office is selling many other stationery items, stamp collecting accessories, postal souvenirs and so on. The Post Office plans to extend the sale of selected categories of these Postshop items to more post offices in the near future.
The Post Office has also explored with the Treasury and the Transport Department the possibility of post offices accepting payment of rates, fixed penalty fines, vehicle licence fees and so on. Discussion is at an initial stage and feasibility studies will be conducted to assess the viability of these services.
Environmental Pollution Problems
11. DR RAYMOND HO (in Chinese): It is reported that the Government intends to collaborate with members of the commercial and industrial sectors to set up various action groups to identify solutions to the environmental pollution problems in Hong Kong; and that some overseas persons have refused to take up work in Hong Kong for fear that our polluted environment will be hazardous to their health. In this connection, will the Government inform this Council of:
(a) the composition and terms of reference of these action groups; and
(b) the measures to improve our polluted environment, so as to ensure that the environment for conducting business will not be affected?
SECRETARY FOR PLANNING, ENVIRONMENT AND LANDS (in Chinese): Madam President,
(a) The Government works with many members of the commercial and industrial sectors, as well as with many people from other parts of the community to address environmental issues. The main organizations through which this partnership approach is developed are the Advisory Council on the Environment; the Waste Reduction Committee and its task forces; the Environmental Campaign Committee; the Professional Persons Environmental Consultative Committee; the Energy Efficiency and Conservation Sub-Committee of the Energy Advisory Committee; and the Country and Marine Park Board. Terms of reference and composition of these bodies are attached. The Government also works closely with the Private Sector Committee on the Environment, and the Environment Committee of the Hong Kong General Chamber of Commerce, and looks forward to developing a strong partnership with the Business Coalition on the Environment that has just been formed.
In March 1999, community groups, business groups, legislators, environmental non-government organizations and academics were invited to attend two forums at which the environmental challenges facing Hong Kong were presented, and those attending were asked to consider the objectives that should be set for the quality of Hong Kong's environment. To take forward the discussions, four working groups have been set up. Their composition and terms of reference are also attached.
(b) A very extensive programme of measures to reduce Hong Kong's pollution is being carried out. Details are given in the Departmental Reports of the Environmental Protection Department, Drainage Services Department, Electrical and Mechanical Services Department, Agriculture and Fisheries Department and Marine Department, as well as the reports of the Municipal Councils. The overall policy objectives and new initiatives are set out in the Policy Objective "Improve Our Urban, Rural and Marine Environment" issued by Planning Environment and Lands Bureau. The main emphasis at present is directed at street level air pollution; upgrading the sewage collection and treatment infrastructure; reducing waste and improving the waste management system; increasing energy efficiency; increasing afforestation and conservation work and promoting a cleaner environment as part of the "Healthy Living for the 21st Century" campaign. All these efforts are to improve the quality of Hong Kong's physical environment, for the benefits of all those who live or work here and for those who visit our city as tourists.
Advisory Council on the Environment
Terms of Reference
(a) to keep under review the state of the environment in Hong Kong; and
(b) to advise the Government, through the Secretary for Planning, Environment and Lands, on appropriate measures which might be taken to combat pollution of all kinds, and to protect and sustain the environment.
|Mr Peter WONG Hong-yuen, JP
|Mr PAO Ping-wing, JP
|Mr Edwin LAU Chi-kit
||Mr Otto POON Lok-to
|Miss CHIANG Lai-wan, Ann
||Ms TAM Siu-ying, Iris
|Mr CHAN Kwok-wai, JP
||Mr Clement CHEN Cheng-jen
|Mr Paul FAN Chor-ho, JP
||Mr Barrie COOK
|Prof Anthony Johnson Hedley, JP
||Dr HO Kin-chung
|Prof Peter HILLS
||Mr Plato YIP
|Prof LAM Kin-che
||Mr Joseph LAU Man-wai, JP
|Dr the Honourable LEONG Che-hung, JP
||Miss YAU Shuk-kau, Alex
|Mr LIN Chaan-ming
||Dr NG Cho-nam
|Mr Michael John Dudley RUSHWORTH
||Mr TAN Teng-huat
Waste Reduction Committee
Terms of Reference
(a) to promote public and private sector action to reduce waste, recover and reuse resources, in accordance with the policies set out in the Waste Reduction Framework Plan and as subsequently directed by the Secretary for Planning, Environment and Lands;
(b) to co-ordinate the work of the waste reduction task forces;
(c) to monitor local and international developments in waste reduction, and materials recovery and reuse, and advise the Secretary for Planning, Environment and Lands on appropriate responses; and
(d) to provide an annual report to the Advisory Council on the Environment on progress towards achieving waste reduction targets.
Mr Barrie COOK (Chairman)
||Mr Johnnie CHAN (Chairman of task force for private housing)
|Ms CHEUNG Lai-ping, Lister
||Mr LAU Che-feng, Edwin
|Mr Leonard LAW
||Dr POON Chi-sun
|Mr Roger L WALKER
||Prof YUE Po-lock
|Mr KWOK Shek-kwun (Chairman of task force for public housing)
||Dr Derek ZEN (Chairman of task force for Construction Industry)
Mr Jean-Marie LECLERCQ (Chairman of task force for hotel sector)
Director of Environmental Protection
Deputy Secretary (Environment), Planning, Environment and Lands
|Mr Nigel SHIPMAN (Chairman of task force for Government)
Environmental Campaign Committee
Terms of Reference
(a) to keep environmental issues constantly before the public with the objective of fostering more enlightened attitudes and more responsible behaviour towards the environment;
(b) keep under review the impact and effectiveness of publicity and educational programmes on environmental issues and where appropriate to follow up the findings of such reviews;
(c) to advise the government on community environmental education issues;
(d) to mobilize and manage resources for the purposes of promoting environmental awareness in Hong Kong in collaboration with environmental groups and other organizations;
(e) to encourage and where necessary, provide co-ordination for various publicity activities undertaken by non-government bodies and by government departments; and
(f) if funds permit, to plan and oversee environmental activities for the United Nations World Environment Day in Hong Kong and for the annual Environmental Protection Festival and for any other special environmental protection events as the Committee may decide.
|Mr Ronnie WONG Man-chiu, JP
|Mrs Peggy LAM Pei Yu-dja, JP
|Mrs Pamela CHAN WONG Shui, JP
||Dr Simon CHAU Sui-cheong
|Prof Peter Hills
||Ms Betty HO Siu-fong
|Ms Kay KU Yin-kay, JP
||Ms Liza LAM Lai
|Mr Edwin LAU Che-feng
||Mr Stanley LEE Yat-on
|Ms Nisa LEUNG Wing-yu
||Mr PANG Cheung-wai, Thomas
|Mr Edward STOKES
||Mr Edwin TSANG Ching-lun
|Mr Ray TSE Chee-on
||Mr Nigel WATT, JP
|Mr Vincent WONG Po-sum
Secretary for Home Affairs, or representative
|Mr YUNG Ying-cheuk
Secretary for Planning, Environment and Lands, or representative
|Director of Education, or representative
||Director of Environmental Protection, or representative
|Director of Health, or representative
||Director of Information Services, or representative
Professional Persons Environmental Consultative Committee
Terms of Reference
To exchange views on all environmental matters related to the duties and practice of architects, engineers, planners, surveyors and developers.
|Director of Environmental Protection (Chairman)
||Assistant Director of Environmental Protection (Air)
|Assistant Director of Environmental Protection (Waste Facilities)
||Mr Joseph SHEK
|Mr Patrick CHAN
||Ms Betty HO
|Ms Christina LO
||Mr Henry LAU
|Mr M Y WAN
||Mr Patrick PURNELL-EDWARDS
|Mr W H LAM
||Mr Percy WEATHERALL
|Mr James TAM
||Mr Mike WONG
|Ms June TENG
||Mr K C WAN
|Mr C K LAU
Energy Efficiency and Conservation Sub-committee
Terms of Reference
To consider proposals to promote energy efficiency and conservation in Hong Kong, having regard to their technical merits, potential effectiveness and environmental, economic and social implications, and to report to the Energy Advisory Committee.
|Deputy Secretary (Environment), Planning, Environment and Lands Bureau
||Principal Assistant Secretary (Environment) 2, Planning, Environment and Lands Bureau
|Assistant Secretary (Environment) 3, Planning, Environment and Lands Bureau
||Mr Otto POON Lok-to
|Mr Edmund LEUNG Kwong-ho
||Mr Dennis LAU Wing-kwong
|Mr LAM Wai-kwun
||Prof Peter HILLS
|Dr Joseph LAM Choi
||Dr NG Cho-nam
|Mr Justein WONG Chun
||Mr Michael CORBYN
|Prof TSANG Shu-ki
||Mr K K CHUNG
|Dr Albert POON
||Mr Gary CHANG
|Mr James KWAN
||Mr C M LIN
|Mr C K YUEN, EPD
||Mr K K LAM, EMSD
|Mr E A Johnson, ESB
||Mr HK TANG, BD
|Mr H S LAM, GPA
||Mr CHIU Yue-wong, TD
|Mr K T CHAN, HD
Country and Marine Park Board
Terms of Reference
(a) to act as a consultative body to advise the Country and Marine Parks Authority (the Authority) upon any matter referred to it by the Authority;
(b) to consider and to advise the Authority on, the policy and programmes prepared by the Authority in respect of existing and proposed country parks, special areas, marine parks and marine reserves; and
(c) to consider any objection that may be lodged under section 11 or section 17 of the Country Parks Ordinance, and section 12 of the Marine Parks Ordinance.
|Dr TAM Wing-kun, JP (Chairman)
||Mr FUNG Shiu-wing
|Prof Brian MORTON, JP
||Mrs Mei NG
|Mr TANG Pui-tat, JP
||Prof WONG Yuk-shan
|Mr John WONG Man-kon, JP
||Mr KEUNG Yin-man
|Mr John LEE Chi-ping
||Dr CHAU Kwai-cheong
|Mr George NG Sze-fuk, JP
||Mr John HUI Chiu-yin
|Mr CHAN Tak-hang
||Director of Agriculture and Fisheries
|Deputy Director of Agriculture and Fisheries or his alternate
||Director of Home Affairs or his alternate
|Director of Marine or his alternate
Director of Regional Services or his alternate
|Secretary for Home Affairs or his alternate
|Director of Education or his alternate
||Director of Lands or his alternate
|Director of Water Supplies or his alternate
||Director of Planning or his alternate
Working Groups for the Preparation of Environmental Policies
General Terms of Reference
1. to discuss what themes should be covered by the working groups and what environmental objectives should be set;
2. to discuss what policy options or programmes could be considered; and
3. to report the findings and recommendations of the working group.
Composition of the Working Groups
(1) Working Group on Better Use of Resources
Chairman : Dr C S POON (Hong Kong Polytechnic University)
Secretary : Mr Chris GABRIEL (Housing Department)
|1. Mr CHANG Yau-hung
||Central and Western Provisional District Board
|2. Mr Frank WAN
||Waste Management Association
|3. Mr A JARVIS
||GHK (Hong Kong) Limited
|4. Mr K S WONG
||Hong Kong Institute of Architects
|5. Prof P K WONG
||Chinese University of Hong Kong
|6. Mr Gary CHANG
||Hongkong Electric Company
|7. Mr Joseph SHEK
||Hong Kong Construction Association
|8. Mr Norman DI PERNO
||Canadian Chamber of Commerce
|9. Mr Fred LUK
||Hong Kong General Chamber of Commerce
|10. Mr Eric WALKER
||Friends of the Earth
|11. Mr Albert LAI
|12. Mr Ronnie WONG
||Environmental Campaign Committee
|13. Mr John HUI
||Real Estate Administration Association
|14. Mr Daniel SIN
||Planning, Environment and Lands Bureau
|15. Mr Anthony LO
||Planning, Environment and Lands Bureau
|16. Mr K K LAM
||Electrical and Mechanical Services Department
|17. Mr Roger TUPPER
||Economic Services Bureau
|18. Mr C K IP
||Water Supplies Department
|19. Mr CHAN Chi-yan
||Civil Engineering Department
|20. Mr Simon CHUNG
|21. Dr Ellen CHAN
||Environmental Protection Department
(2) Working Group on Improvement of the Urban Environment
Chairman : Ir Otton POON (Hong Kong Institution of Engineers)
Secretary : Mr LI Cho-ming (Housing Department)
|1. Mr CHAN Chung-kit
||Yau Tsim Mong Provisional District Board
|2. Mr TO Bun-man
||Eastern Provisional District Board
|3. Ms Ada WONG
||Provisional Urban Council
|4. Honourable Emily LAU
|5. Mr Stephen POON
||Land Development Corporation
|6. Ms Kay KU
||Hong Kong Council of Social Service
|7. Prof Bernard LIM
||Chinese University of Hong Kong
|8. Prof GU Ji-dong
||University of Hong Kong
|9. Ms Anne COPELAND
||Hong Kong Sustainable Development Forum
|10. Ms Betty HO
|11. Dr K C HO
|12. Mrs Vicky DAVIES
||Federation of Hong Kong Industries
|13. Dr Glenn FROMMER
||Mass Transit Railway Corporation
|14. Ms Iris TAM
||Advisory Council on the Environment
|15. Ms Lisa HOPKINSON
|16. Ms Maggie LAU
||Real Estate Developers Association
|17. Mrs Mei NG
||Friends of the Earth
|18. Mr Michael CHIANG
|19. Mr LUI Ping-hon
||Planning, Environment and Lands Bureau
|20. Ms Lisa CHENG
|21. Mr Raymond LEUNG
||Environmental Protection Department
|22. Mr TIN Hon-wai
|23. Ms Laura TSOI
|24. Mr T C CHEUNG
|25. Mr Thomas THUMB
(3) Working Group on Conservation and Use of the Natural Environment
Chairman : Prof K C LAM (Chinese University of Hong Kong)
Secretary : Mr Richard CHAN (Agriculture and Fisheries Department)
|1. Mr LI Kin-yin, Mark
||Wan Chai Provisional District Board
|2. Dr CHIU Sein-tak
|3. Dr Richard CORLETT
||Hong Kong University
|4. Prof WONG Chong-kim
||Chinese University of Hong Kong
|5. Ms Alex YAU
||World Wide Fund for Nature Hong Kong
|6. Dr NG Cho-nam
|7. Mr John WONG
||Marine Conservation Society
|8. Mr Edward STOKES
||Conservation Photography Foundation
|9. Mr KWOK Chi-piu
|10. Ms Anna KWONG
|11. Mr Tony KAM
||Hong Kong Junior Chamber
|12. Mr Christopher LAW
||Hong Kong Institute of Architects
|13. Mr Bryan BACHNER
||Hong Kong Environmental Law Association
|14. Mr Carlos CHEUNG
||Real Estate Developers Association
|15. Mr Billy HAU
||Kadoorie Farm and Botanic Garden
|16. Dr CHENG Luk-ki
||Friends of the Earth
|17. Ms Lisa HOPKINSON
|18. Ms S M HUNG
||Planning, Environment and Lands Bureau
|19. Mr Edward LO
|20. Dr WONG Fook-yee
||Agriculture and Fisheries Department
|21. Dr Malcolm BROOM
||Environmental Protection Department
|22. Mr C E FAIR
||Territory Development Department
|23. Mr M BYRNE
(4) Working Group on Public Education, Awareness and Culture
Chairman : Mr Peter WONG (Advisory Council on the Environment)
Secretary : Ms Mable MAK (Environmental Protection Department)
|1. Mrs Peggy LAM
||Wan Chai Provisional District Board
|2. Dr FANG Ming
||Hong Kong University of Science and Technology
|3. Prof MAK Kai-keung
||Retired professor of Chinese University of Hong Kong
|4. Mr LI Hing-kun
||Professional Teachers' Union
|5. Dr Eric TSANG
||Hong Kong Institute of Education
|6. Ir YIM Kin-ping
||Hong Kong Institution of Engineers
|7. Dr MAN Chi-sum
|8. Mr Sandy EDGE
||Australian Chamber of Commerce
|9. Dr W K YAU
||Tai Po Environmental Association
|10. Ms Maggie SO
||Mass Transit Railway Corporation
|11. Mr Justein WONG
|12. Mr Ray TSE
||Environmental Campaign Committee
|13. Mr HO Wai-chi
|14. Ms Idy WONG
||World Wide Fund for Nature Hong Kong
|15. Mr Stephen CHAN
|16. Mr Edwin LAU
||Friends of the Earth
|17. Ms Agnes KWAN
||Planning, Environment and Lands Bureau
|18. Mr K K LAM
|19. Mrs Connie MAK
|20. Dr WONG Fook-yee
||Agriculture and Fisheries Department
Franchised Bus Services between Tuen Mun and Yuen Long
12. MR ALBERT HO (in Chinese): Regarding the franchised bus services between Tuen Mun and Yuen Long, will the Government inform this Council:
(a) whether it knows:
(i) the respective percentages of delayed and lost trips against the total number of scheduled trips in the past year;
(ii) how the percentages in item (i) above compare to those of other parts of the New Territories;
(iii) the reasons for the delayed and lost trips, and the respective percentages of delayed or lost trips caused by each of such reasons;
(b) of the measures it has taken to reduce the number of delayed and lost trips, and their effectiveness;
(c) whether there are plans to implement further measures to improve the situation; and
(d) whether it has set performance targets to be met by franchised bus companies in respect of franchised buses running on schedule; if so, the details of the targets; if not, the reasons for that?
SECRETARY FOR TRANSPORT (in Chinese): Madam President, among the 67 franchised bus routes operating in Tuen Mun and Yuen Long, 65 are run by Kowloon Motor Bus (KMB) providing about 4 700 scheduled trips each day. In the past year, the lost trip rate of KMB's Tuen Mun and Yuen Long services was 2.4% of the scheduled trips. The bus company does not keep separate statistics on delayed trips as delays which cannot be rectified by subsequent frequency adjustments would be recorded as lost trips.
The lost trip rate of KMB services in the other parts of the New Territories in the past year was 2.5%, which is comparable to that of Tuen Mun and Yuen Long.
The main reasons for the lost trips are:
(a) crew shortage, for example, bus drivers' sudden sick and casual leave;
(b) vehicle inavailability, for example, mechanical failure before service, breakdown and accidents; and
(c) traffic congestion and disruption.
The percentages of lost trips due to these three reasons are about 25%, 52% and 23% respectively.
In case of sudden crew shortage or vehicle inavailability, KMB will deploy additional resources whenever necessary to maintain the route schedules. These measures have generally been effective. On the other hand, the Government also makes improvements to road infrastructure and implements traffic management and bus priority measures where appropriate to help reduce bus lost trips due to traffic congestion and disruption. For example, the completion of the Pok Oi Flyover in early 1999 has facilitated traffic circulation and reduced bus journey time.
We understand that KMB has been testing the use of "Satellite Fleet Management System" to locate their vehicles and improve operational efficiency. Subject to satisfactory test results, employment of such modern technology should be able to help reduce delays and lost trips in bus operation. The initiative of bus companies in this respect is welcomed by the Government.
Transport Department stipulates a Schedule of Service which prescribes the routing, operating frequency and vehicle deployment for each franchised bus route. Bus companies are required to provide service according to the Schedules. Transport Department conducts surveys from time to time to monitor the compliance of bus companies which are required to explain any discrepancy between their service provision and the particulars stipulated in the Schedules.
Unauthorized Use of Personal Data
13. DR TANG SIU-TONG (in Chinese): With regard to the unauthorized use of personal data, will the Government inform this Council:
(a) of the total number of cases handled by the police since 1996 involving the unauthorized use of personal data leading to monetary losses; the average number of alleged acts of unauthorized use of personal data and the average amount of losses in each case;
(b) of the respective numbers of prosecutions and successful prosecutions of these cases in each of the past three years; the usual means through which the offenders obtained the personal data of the victims; the average penalty imposed on convicted persons; the average amount of money successfully recovered and returned to the victims; and
(c) of the measures in place to prevent the unauthorized use of personal data; whether it has plans to step up such measures; if so, the details of it; if not, the reason for that?
SECRETARY FOR HOME AFFAIRS (in Chinese): Madam President,
(a) and (b)
There is no such an offence as theft of personal data in Hong Kong. Perpetrators of crimes involving the unauthorized use of personal data may be prosecuted for different offences depending on the particular circumstances of each case. For example, a person who uses somebody else's credit card information in order to make payments may be prosecuted under the Theft Ordinance or Crimes Ordinance; a person who receives bribes for supplying the personal data of his employer's clients to a third party may be prosecuted under the Prevention of Bribery Ordinance; and a person who, without proper authority, obtains personal data stored in a computer may be prosecuted under the Crimes Ordinance.
The Hong Kong Police Force and the Independent Commission Against Corruption (ICAC) are responsible for investigating the crimes mentioned in the preceding paragraph. The Hong Kong Police Force does not keep statistics of cases involving the unauthorized use of personal data and therefore is not able to provide the number of such reports and prosecutions. Similarly, the Independent Commission Against Corruption does not keep the number of such reports but its prosecution records reveal that, between 1 January 1996 and 30 April 1999, there were seven prosecutions brought against 13 people for unauthorized use of personal data. Of these, four resulted in successful prosecution, with six offenders convicted. The penalties for the convicts ranged from probation, a fine of several thousand to 10 thousand dollars, to three months' imprisonment. As the victims of these cases did not necessarily suffer any monetary losses, the ICAC does not have records of recovery of money by the victims of such cases.
(c) Data Protection Principle (DPP) 4 in Schedule 1 of the Personal Data (Privacy) Ordinance (PDPO) stipulates that a data user should take all practicable steps to ensure that personal data are protected against unauthorized or accidental access or disclosure.
If the Privacy Commissioner for Personal Data (PC) concludes, upon investigation, that theft of personal data is related to the data user's failure to undertake adequate security measures to comply with DPP4, he may issue an enforcement notice to direct the data user concerned to take steps as are specified in the notice in order to prevent further contravention. A data user that breaches an enforcement notice commits an offence and is liable to a fine at level 5 (at present a maximum of $50,000) and imprisonment for two years, and in the case of a continuing offence, to a further penalty of $1,000 daily.
In addition, an individual who suffers damage (including injury to feelings) by reason of a contravention of the Ordinance in relation to personal data of which the individual is the subject has a civil right of action to obtain compensation from the data user concerned.
In view of some cases involving theft of personal data, the PC in March 1998 sent letters to the utility and telecommunications sectors urging them to adopt measures to prevent their customer databases from unauthorized use by employees, and giving suggestions on how to improve data security and review procedures to ensure that their security measures meet the requirement of DPP4. The ICAC, in consultation with the PC, also issued a set of guidelines to the telecommunications sector in April 1999, suggesting measures to protect customers' personal data.
The PC will continue to undertake the afore-mentioned enforcement and preventive measures in accordance with the PDPO. He will also closely monitor the trend of cases involving unauthorized use of personal data with a view to deciding whether it is necessary to take further action to prevent similar illegal acts.
Power to Inspect Companies Suspected of Impropriety
14. MR CHEUNG MAN-KWONG (in Chinese): Section 29A of the Securities and Futures Commission Ordinance (SFCO) (Cap. 24) empowers the Securities and Futures Commission (SFC) to inspect a listed company's books and records if its directors and officers are suspected of impropriety in the management of the company's affairs. According to the SFC's 97-98 Annual Report, the power was invoked on two occasions during the year. In this connection, will the Government inform this Council:
(a) whether it knows:
(i) the reasons for the SFC to have invoked such power in 1997-98 on two occasions only;
(ii) of the circumstances under which the SFC will exercise such power, or decide to refer the cases to the Financial Secretary for determining whether an inspection should be initiated under the Companies Ordinance (Cap. 32);
(iii) whether the SFC is subject to any constraint in invoking such power; if so, what the constraints are;
(iv) whether the SFC has exercised such power since April 1998 to inspect listed companies with financial problems; if so, of the number of companies inspected and the progress of such inspections; if not, the reasons for that? and
(b) of the criteria the relevant authorities adopt in determining whether inspections should be initiated on companies suspected of impropriety, under the SFCO or the Companies Ordinance?
SECRETARY FOR FINANCIAL SERVICES (in Chinese): Madam President,
(a) (i) Since the introduction of the powers under section 29A of the SFCO in 1995, there have been seven inspections conducted of listed companies' books and records, of which two are instigated in the 1997-98 financial year. Inspection under section 29A can be initiated only under one of the four following types of circumstances stipulated under the law:
(1) it appears to the Commission that there are circumstances suggesting that the business of a company which is or was at the relevant time a listed company has been or is being conducted with intent to defraud its creditors, or the creditors of any other person, or otherwise for a fraudulent or unlawful purpose or in a manner oppressive to any part of its members, or that it was formed for any fraudulent or unlawful purpose; or
(2) it appears to the Commission that there are circumstances suggesting that persons concerned with the formation of the company or the management of its affairs have in relation to the formation of management been guilty of fraud, misfeasance or other misconduct towards it or its members; or
(3) it appears to the Commission that there are circumstances suggesting that its members have not been given all the information with respect to its affairs that they might reasonably expect; or
(4) if the Commission decides to provide assistance to investigate a matter relating to the company under section 59A1 , the circumstances giving rise or pertaining to the matter are, in the opinion of the Commission, of a nature similar to the circumstances giving rise or pertaining to a matter referred to in paragraph (a), (b), or (c).
Circumstances under (a) and (b) are fraud related and would invariably give rise to simultaneous police or ICAC involvement. It has been considered redundant to examine matters that are already or likely to be pursued by these law enforcement agencies. Also, instances arising from (b) in relation to the formation of a company have been rare, due to the vetting procedures undertaken by sponsors, auditors, and the Listing Division of Stock Exchange of Hong Kong prior to any company being listed.
Circumstances under (c) appear to offer wide scope for invoking the investigatory powers. However, as listed companies are required to furnish financial information twice a year and are subject to scrutiny in respect of each corporate announcement they issue, there are many avenues for the Stock Exchange to request for such information. Investigative powers are only invoked if all attempts fail.
Circumstances under (d) are entirely dependent upon a request being received from an overseas regulator.
In respect of the two inspections instigated in the 1997-98 financial year, one of them was instigated under the circumstances under (c) and the other under circumstances (a), (b) and (c).
(ii) The SFC can invoke its powers under section 29A if any one of the four types of circumstances set out in part (a) above exists. A referral to the Financial Secretary to appoint an inspector under the Companies Ordinance can be made in respect of cases in which the powers under section 29A have not allowed the SFC to properly form a view as to what has transpired, and it is in the public interest that the matter be pursued further (the grounds for appointing an inspector under section 143(1)(c) are further explained in paragraph (b) below). An inspector appointed under the Companies Ordinance will have much wider investigatory power than the SFC under section 29A, as the latter is only confined to the records and documents of a listed company and its subsidiaries.
(iii) The major restriction is that the powers can only be invoked in the four types of circumstances described above. However, it may not, or need not be apparent to the SFC that any of the suggested conditions apply. The legislation was modelled on the United Kingdom practice where the main trigger for initiating such inquiries was "complaints" from the public.
In Hong Kong, such complaints have been rare, and have usually focused on alleged wrongdoing where the listed companies have been accused of dubious arrangements (such as false invoicing) with other non-listed companies. As these non-listed companies are not subject to the jurisdiction of section 29A it has not been possible to initiate inspections under such circumstances.
However, if section 29A was widened to cover entities transacting business with targeted listed companies such impediment would be removed. This is being considered in the current review of all legislation falling under the SFC's purview.
(iv) Since April 1998, there was one inspection completed under section 29A into Peregrine Investment Holdings Limited and Peregrine Fixed Income Limited (Peregrine) in which the Court of First Instance has upon the application by the Financial Secretary under section 143(1)(a) of the Companies Ordinance, granted an order to instigate an investigation into Peregrine. The investigation is currently on-going.
It should be pointed out that the fact that a company is reported to suffer from financial problems does not in itself contribute a reason to involve a section 29A inspection, unless one or more of the four types of circumstances in paragraph (a)(i) arise.
(b) The powers under section 29A can only be invoked under one of the four circumstances detailed in part (a)(i) above.
Section 143 of the Companies Ordinance stipulates that Financial Secretary may appoint one or more inspectors to investigate the affairs of a company and to report thereon as the Financial Secretary may direct, if it appears to the Financial Secretary that there are circumstances suggesting:
(i) that the business of the company has been or is being conducted with intent to defraud its creditors or the creditors of any other person or otherwise for a fraudulent or unlawful purpose or in a manner oppressive of any part of its members or that it was formed for any fraudulent or unlawful purpose; or
(ii) that person concerned with its formation or the management of its affairs have in connexion therewith been guilty of fraud, misfeasance or other misconduct towards it or towards its members; or
(iii) that its members have not been given all the information with respect to its affairs that they might reasonably expect.
Our legal advice suggests that for the appointment of an inspector, it is necessary that there be "circumstances suggesting" any of the matters set out in (i) to (iii) above. Besides, significant or great public interest, the need to protect minority shareholders' interest, the availability of alternative remedies, degree of complexity and the uncertainty of the outcome are all relevant factors for the Financial Secretary to consider in making his decision in respect of section 143 of the Companies Ordinance.
Section 52 of the Banking Ordinance
15. MR SIN CHUNG-KAI (in Chinese): Under section 52 of the Banking Ordinance (Cap. 155), the Monetary Authority (MA) may exercise the following powers: to require banks, restricted licence banks and deposit-taking companies forthwith to take any immediate action as he may consider necessary, to make any requirement imposing restrictions on such institutions, or to appoint a person to be the Advisor or Manager of any of such institutions. In this connection, will the Government inform this Council if the MA has exercised these powers since its establishment; if so, the principles adopted by the MA in deciding to exercise such powers, the number of times these powers were exercised each year, and in respect of each case, the exact power exercised, the reasons for exercising such power and the amount of public funds involved?
SECRETARY FOR FINANCIAL SERVICES (in Chinese): Madam President, section 52 of the Banking Ordinance confers upon the MA a number of powers in respect of authorized institutions. The section also lays down the criteria under which use of the powers in that section may be exercised. These include, inter alia, situations whether the institution concerned is unable to meet its obligations or is insolvent; or is carrying on its business in a manner detrimental to the interest of depositors; or has contravened the Banking Ordinance; or the Financial Secretary advises the MA that it is in public interest to exercise the powers.
The MA stands ready to exercise the section 52 powers where the above criteria are satisfied and where other forms of remedial action are considered inadequate. The guiding principle is whether the stability of the banking system and the interest of depositors are best served by the exercise of the powers. Any such action under section 52 can only be taken after consultation with the Financial Secretary.
Since the establishment of the Hong Kong Monetary Authority in 1993, the MA has on a number of occasions exercised his power under section 52(1)(A), that is, to place restrictions on the institutions concerned. These occasions are documented each year in the Hong Kong Monetary Authority's Annual Report (see annex). No public funds were involved in exercising the power.
The powers under section 52(1)(B) and (C) in relation to the appointment of Advisers and Managers have not been exercised since the Hong Kong Monetary Authority was established. It should be noted that the use of section 52(1)(C) to appoint a Manager must be published in a notice in the Gazette for public enquiry.
Use by the Monetary Authority of Powers Under Section 52 of the Banking Ordinance (Extracts from Hong Kong Monetary Authority Annual Reports 1993-1998)
"An on-site examination or an adverse auditors' report may indicate serious problems in an institution, which could lead the Monetary Authority to exercise the powers of intervention under section 52 of the Banking Ordinance. These include the power to take control of the business of a troubled institution. No such instances arose in 1993."
"The Monetary Authority did not have to use any of its major powers under the Banking Ordinance in 1994."
"The HKMA had on one occasion to exercise its major powers under the Banking Ordinance in 1995. On 27 February 1995, the HKMA took action against Baring Brothers and Company Limited under section 52 of the Ordinance. This had the effect of requiring the bank to keep its branch in Hong Kong closed for normal business. The requirement was lifted on 4 April 1995. The business of the bank (whose name was changed to Bishopscourt (BB and Company) Limited) was subsequently transferred to a new company, Baring Brothers Limited; and its licence was revoked on 5 July 1995."
"The HKMA had to exercise its formal powers under the Banking Ordinance on one of these cases in which significant weaknesses were identified in the management and controls of the institution. The use of these powers was designed to ensure that the necessary remedial measures were taken."
"The HKMA did not have to use any of its major powers under the Banking Ordinance in 1997."
"The Monetary Authority exercised his formal powers under section 52 of the Banking Ordinance in two cases (one restricted licence bank and one deposit-taking company) in 1998. In both cases the authorized institution had ceased to meet certain authorization criteria, and restrictions were imposed to protect depositors and other creditors. In neither case did depositors or other creditors suffer any loss."
Legal Aid Applications
16. MR LEUNG YIU-CHUNG (in Chinese): I have received a complaint that the Legal Aid Department (LAD) had refused to grant legal aid to an applicant on the grounds that the amount claimed was too low. In this connection, will the Government inform this Council:
(a) Of the number of cases in which LAD refused to grant legal aid on the above grounds in the past three years; and
(b) Whether the amount of claims is a major consideration in vetting and approving legal aid applications by LAD; if so, whether the LAD will consider removing this consideration from the criteria for vetting and approving such applications?
CHIEF SECRETARY FOR ADMINISTRATION (in Chinese): Madam President,
(a) Under section 10(3)(a) of the Legal Aid Ordinance, a person may be refused legal aid where it appears to the Director of Legal Aid that only a trivial advantage would be gained by the applicant from a case. For example, the LAD may refuse to grant legal aid if the legal costs to be incurred in a monetary claim outweigh the advantage to be obtained or the damages to be recovered. Between 1996 and 1998, the LAD rejected 974 applications pursuant to this section.
The LAD may also reject applications concerning monetary claims under $15,000 as they are outside the scope of legal aid services as prescribed under section 5 of the Legal Aid Ordinance. These claims could be heard in the Small Claims Tribunal without legal representation for the parties concerned. The LAD does not keep separate statistics on applications so rejected.
(b) All applications are assessed as to the means of the applicants and the merits of individual cases. In assessing the merits of an application, the advantage to be obtained, including the amount of claims, from the legal proceedings is only one of the many factors to be considered.
We have no plans to change the present arrangement.
Proposed Link between Tai Ho Wan and Mui Wo
17. MISS CHRISTINE LOH: Regarding the Government's proposal to build a road between Tai Ho Wan and Mui Wo on Lantau, will the Government inform this Council:
(a) whether an environmental impact assessment (EIA) has been or will be conducted;
(b) of the options that it has considered in respect of the road alignment;
(c) whether in evaluating these options, it has adopted a weighting system regarding noise, air, visual, landscape, ecological and land use impacts as well as costs and feasibility; if so, whether the result of the evaluation has been published and provided to the Country and Marine Parks Board;
(d) of the type of vehicles that will be allowed to use the road; and
(e) whether it will consider widening Tung Chung Road as an alternative to building a new road; if not, the reasons for that?
SECRETARY FOR TRANSPORT: Madam President, the Highways Department has studied the options of a north-south link on Lantau Island. These options include the widening of the Tung Chung Road and other replacement road alignment options, including overland and tunnel options, within a broad corridor between Tai Ho Wan and Mui Wo. The study finds that Tung Chung Road after widening will still be substandard in terms of excessive gradients and sharp bends. The widening works will also affect about 10 hectares of country park. When consulted in March 1997, the Country Parks Committee under the Country and Marine Parks Board expressed concern about the impacts of the widening works on the country park, and advised that other alternatives be considered for a north-south link in Lantau.
A total of 17 alignment options were subsequently developed. After taking into account all relevant factors, an overland option passing over the natural saddle in the ridge between Tai Ho Wan and Mui Wo and connecting to Ngan Kwong Wan Road in Mui Wo is considered as the preferred option.
An EIA has been conducted for all the identified options of road alignment. The EIA covers the impact on air quality, noise, water quality, waste management, ecology, visual aspects, landscape, townscape, land use, hazard and heritage.
In the evaluation of the various alignment options, a weighting system has been adopted for assessing the various aspects covered by the EIA as well as the cost and feasibility. The result of the evaluation has been published and provided to the Country and Marine Parks Board. The findings by applying the weighting system were also explained to the Board at its meeting on 23 March 1999.
It is our intention that the new road will be closed to traffic except for emergency vehicles or vehicles with Lantau Closed Road permits.
Construction of the Shenzhen Western Corridor
18. MR LAU KONG-WAH (in Chinese): It has been reported that the management of a listed company has said that a report on the feasibility of constructing the Shenzhen Western Corridor (the Corridor) linking Shekou and Yuen Long had been completed. The company expects that the project would be endorsed by the relevant mainland authorities in October this year, and the relevant reclamation works will commence by the end of this year. In this connection, will the Government inform this Council whether:
(a) it has received a copy of the feasibility report; if it has, the major contents of it;
(b) it knows:
(i) the progress of the project; and
(ii) if the relevant authorities in the Mainland have plans to endorse the project within this year;
(c) it has examined the planning details and the designed traffic volume of the Corridor; if so, the outcome of that;
(d) it has examined the environmental impacts of the Corridor on the New Territories West after its opening; if so, the details of that; and
(e) it has plans to discuss with the mainland authorities relaxing the restriction on the number of vehicles allowed to travel between Hong Kong and the Mainland, and simplifying the application procedures for driving licences of the other side of the border by applicants from the Mainland and from Hong Kong after the opening of the Corridor?
SECRETARY FOR PLANNING, ENVIRONMENT AND LANDS (in Chinese): Madam President, with regard to the five parts of the above question, the position is as follows:
(a) We believe that the report mentioned in the above question is the Mainland's report of the "Shenzhen Western Corridor (SWC) Engineering Feasibility Study". We understand that this report has been submitted to the State Council for approval. We have not received a copy of the report.
(b) (i) The Hong Kong and Mainland Cross-Boundary Major Infrastructure Co-ordinating Committee (ICC), together with its panels and technical groups, have been studying the proposed road link between groups, have been studying the proposal road link between Shekou and Yuen Long (that is, the Corridor), and both sides have exchanged information on the progress and results of the relevant studies. We understand that the mainland authorities have completed the engineering feasibility study and the study report is currently being examined by the State Council. After the report has been approved by the State Council, the mainland authorities will proceed with the engineering design of the SWC.
(ii) In January 1998, we were informed by the Hong Kong and Macau Affairs Office of the State Council that the State Council had endorsed the creation of the project item of the SWC. We understand from the mainland authorities that "creation of a project item" is a key approval procedure after the Preliminary Project Feasibility Study has been completed. Engineering feasibility study would then follow. After the engineering feasibility study and the financial arrangement have been completed, the project will be submitted to the State Council for further approval. At this stage, we have not been informed of when the State Council would complete the entire approval process.
(c) The Hong Kong Special Administrative Region Government is currently conducting the "Crosslinks Further Study" and cross-boundary traffic forecast is being assessed in the first stage of this study. According to our preliminary assessment, the total capacity of the three existing boundary crossings (at Lok Ma Chau, Man Kam To and Sha Tau Kok) is expected to be saturated by around 2003-2004 when the traffic throughout will reach about 52 000 vehicles per say. Hence, we are actively investigating different ways to cope with the increase in cross-boundary traffic. Stage 2 of the Crosslinks Further Study will investigate issues including environmental impact, economic and financial assessment, further land-use plans and land resumption problems. After this stage of the study is completed in mid-1999, we shall then be in a position to take a final decision on the necessary connecting road network to the SWC.
(d) As mentioned above, environmental impact assessment is one of the important issues covered in the Stage 2 of the "Crosslinks Further Study". According to our preliminary assessment, the proposed new crossings will not cause any insurmountable adverse impact on the overall ecological, water and air quality of the environment. They may however have localized impact on specifics areas along their alignments. We can only confirm the details of the environmental impact on completion of the detailed study.
(e) The cross-boundary traffic control measures include the restriction on the number of vehicles travelling between the Mainland and Hong Kong and other related licensing procedures. We shall review the restrictive measures and the other related procedures in the light of changes to the traffic flow and traffic situation. If necessary, we will discuss with the mainland authorities on any appropriate adjustment.
Air Passenger Departure Tax
19. MR HOWARD YOUNG: Same-day transit passengers are now exempt from air passenger departure tax (APDT). In this connection, will the Government inform this Council whether it will discuss with the Airport Authority the relocation of the Departure Tax Information Counter (the Counter) in Chek Lap Kok Airport from the landside to the airside to allow such passengers to apply for tax refund without leaving the airside?
SECRETARY FOR THE TREASURY: President, with effect from 1 April 1999, passengers who arrive at and depart from Hong Kong on the same day are exempt from the payment of APDT. The exemption is intended to encourage same-day transit passengers to visit Hong Kong during their stay. With the new exemption, airlines and their agents would not normally collect APDT from transit passengers at the time when air tickets are purchased and hence refund is generally not applicable. If airlines have inadvertently collected APDT from transit passengers, they should refund the tax directly to such passengers as airlines are not required to pay the Government APDT in respect of transit passengers. For cases where refunds have to be made after the passengers arrive in Hong Kong, for example, due to a change of itinerary, passengers concerned may go to the Counter on the landside and apply for the refund. This should not cause any undue convenience to them. Alternatively, they may apply for refund by mail after they have left Hong Kong. In view of the small number of such refund cases, there should not be a need to relocate the Counter from the landside to the airside to facilitate the processing of APDT refund to transit passengers.
Relocating the Counter to the airside is not recommended also because it could no longer serve as an enquiry point on APDT matters for the general public. Besides, it could no longer process APDT exemption cases for those individuals who do not have access to the airside before check-in. In this connection, it should be noted that the average number of exemption cases processed per month since last September is some 17% more than that of refund cases.
Construction of Route 10
20. DR RAYMOND HO (in Chinese): It is reported that according to what has been planned, the construction of the proposed Route 10 which links Northern Lantau Island and Yuen Long will involve underwater explosion works within the Ma Wan Channel. In this connection, will the Government inform this Council of the ecological impact of these construction works on the Chinese White Dolphins within those waters; and the measures in place to ensure that these construction works will not disrupt the marine ecology of those waters?
SECRETARY FOR TRANSPORT (in Chinese): Madam President, works on the proposed Route 10 including the underwater blasting for constructing the foundation of the Tsing Lung Bridge will not bring about major long term ecological impact on the habitat of the Chinese White Dolphins. However, during the construction period we need to mitigate the short term impacts from the shock waves and sound induced by underwater blasting on any Chinese White Dolphins.
We would adopt the following mitigation measures:
(a) minimizing the number of blasting required and the quantity of charges used;
(b) placing the charges in the cores of rocks to minimize the shock wave pressure resulting from the blasting;
(c) generating an air-bubble curtain to enclose the blasting area so as to reduce the area affected;
(d) implementing surveillance procedures through observers and patrol boats to ensure no marine mammal activity within a radius of 500 m from the blasting site half an hour prior to blast detonation;
(e) arranging as far as possible the underwater blasting to take place during spring or summer time when there are fewer Chinese White Dolphins in the area; and
(f) alerting all vessel operators of the possible presence of marine mammals and of the need to comply with the rules of safe vessel operation around marine mammals.
Similar mitigation measures were adopted to protect the Chinese White Dolphins when underwater blasting took place in Chek Lap Kok, a more preferable habitat for the dolphins than the current Tsing Lung Bridge site, for the construction of the new airport. These measures were considered effective in reducing the short term impact of underwater blasting on the Chinese White Dolphins to acceptable levels.
We will ensure that all necessary mitigation measures are carefully studied in the Environmental Impact Assessment Study and included in the construction programme.
First Reading of Bills
PRESIDENT (in Cantonese): Bills: First Reading.
ROAD TUNNELS (GOVERNMENT) (AMENDMENT) BILL 1999
ROADS AND TUNNELS LEGISLATION (MISCELLANEOUS AMENDMENTS) BILL 1999
BANKING (AMENDMENT) BILL 1999
WITNESS PROTECTION BILL
|CLERK (in Cantonese):||
Road Tunnels (Government) (Amendment) Bill 1999
Roads and Tunnels Legislation (Miscellaneous Amendments) Bill 1999
Banking (Amendment) Bill 1999
Witness Protection Bill.
Bills read the First time and ordered to be set down for Second Reading pursuant to Rule 53(3) of the Rules of Procedure.
Second Reading of Bills
PRESIDENT (in Cantonese): Bills: Second Reading.
ROAD TUNNELS (GOVERNMENT) (AMENDMENT) BILL 1999
SECRETARY FOR TRANSPORT (in Cantonese): Madam President, I move the Second Reading of the Road Tunnels (Government) (Amendment) Bill 1999.
The object of the Bill is to provide for a legislative framework for the continual operation and management of the Cross-Harbour Tunnel (CHT) upon its reversion to the Government.
The franchise of the CHT will expire on 31 August this year. By that time the CHT will be reverted to the Government under section 52 of the Cross-Harbour Tunnel Ordinance. The existing Cross-Harbour Tunnel Ordinance which regulates the operation and management of the CHT shall lapse and be repealed by then.
As from 1 September this year, the CHT will be incorporated into the regulatory framework of the Road Tunnels (Government) Ordinance as other government tunnels. As the CHT used to be a private tunnel, its mode of operation is slightly different from other government tunnels, therefore, we need to make appropriate amendments to the Road Tunnels (Government) Ordinance to accommodate the actual operational requirements of the CHT.
Clause 2 of the Bill allows the Chief Executive in Council to make regulations in actual of any particular tunnel and to make traffic regulations specifically for the CHT.
These regulations govern areas such as the restriction and control of the passage of certain prescribed vehicles, for example, vehicles carrying dangerous goods other than categories 1, 2 and 5 and vehicles exceeding a certain height and load. These restrictions are currently applicable to other private tunnels including the CHT. To enable these regulatory provisions remain in force and not become automatically lapsed after the reversion of the CHT to the Government on 1 September 1999, the Road Tunnels (Government) Regulations will have to be amended accordingly to make these regulations continue to be applicable to all vehicles using the CHT.
In addition, the Bill also sets out the level of penalties for traffic offences committed within the tunnel area of the CHT and the level of removal and permit fees for vehicles using the CHT. These are brought in line with those of government tunnels.
Madam President, I beg to move.
PRESIDENT (in Cantonese): I now propose the question to you and that is: That the Road Tunnels (Government) (Amendment) Bill 1999 be read the Second time.
In accordance with the Rules of Procedure, the debate is now adjourned and the Bill referred to the House Committee.
ROADS AND TUNNELS LEGISLATION (MISCELLANEOUS AMENDMENTS) BILL 1999
SECRETARY FOR TRANSPORT (in Cantonese): Madam President, I move the Second Reading of the Roads and Tunnels Legislation (Miscellaneous Amendments) Bill 1999.
The object of the Bill is to improve the efficiency of the prosecution of traffic offences in private and government tunnels so as to enhance safety in these tunnels.
Currently, tunnels in Hong Kong are governed by their respective legislation and since these various pieces of legislation were enacted at different points in time, there are inconsistencies in the procedures for prosecution of traffic offences. The Administration has conducted a review recently and proposed amendments in the following areas in the Roads and Tunnels Legislation (Miscellaneous Amendments) Bill 1999 to align the different pieces of tunnel legislation by:
(1) Synchronizing the period to six months after the alleged traffic offence to replace the period of three to six months as provided in various ordinances, within which a tunnel officer may demand from any person (including the owner of the vehicle) information related to the driver suspected of the offence, so that more time will be allowed for the gathering of evidence;
(2) enabling the admission of certificates of image recording and printing devices as evidence in legal proceedings against traffic offences in tunnels; and
(3) making it an offence for any person making false statements and omitting material particulars demanded.
In addition, the Bill also proposes to allow offenders against the Tai Lam Tunnel and Yuen Long Approach Road Bylaw to plead guilty in writing for offences incurring a fine below $2,000.
Apart from making the procedures for prosecution of traffic offences in tunnels and toll tunnels consistent, the Bill also makes technical amendments to the Road Tunnels (Government) (Amendment) Bill 1999 to rectify payment arrangements made by the Government to toll operators as remuneration for managing the tunnels, in order to affirm that such arrangements are in line with the relevant statutory procedures.
Madam President, I beg to move.
PRESIDENT (in Cantonese): I now propose the question to you and that is: That the Roads and Tunnels Legislation (Miscellaneous Amendments) Bill 1999 be read the Second time.
In accordance with the Rules of Procedure, the debate is now adjourned and the Bill referred to the House Committee.
BANKING (AMENDMENT) BILL 1999
SECRETARY FOR FINANCIAL SERVICES (in Cantonese): Madam President, I move the Second Reading of the Banking (Amendment) Bill 1999. The purpose of the Bill is to bring Hong Kong's banking supervisory regime fully in line with the Basle Committee's Core Principles for Effective Banking Supervision and to improve the operation of the Banking Ordinance in the light of market development. In September 1999, the Basle Committee on Banking Supervision published the Core Principles which set out the minimum requirements for effective banking supervision for reference for supervisory authorities around the world to review their existing supervisory arrangements and to initiate a programme designed to address any deficiencies as quickly as practicable within their legal authority.
The Hong Kong Monetary Authority (MA) has made an assessment of Hong Kong's situation in accordance with the Core Principles, the outcome of which indicates that Hong Kong's banking supervision framework already substantially complies with the Core Principles. But the MA has identified in its assessment three areas, namely major acquisitions or investments by authorized institutions, the provision of information to an overseas supervisory authority for the purpose of consolidated supervision and the power to bring about corrective actions on a bank, which have not fully complied with requirements of the Core Principles.
It is the Government's long-standing policy that the supervisory framework in Hong Kong should conform as much as possible to international supervisory standards, hence, we have proposed to make several amendments to the Banking Ordinance. First of all, we propose to introduce a new provision to stipulate that an authorized institution must seek the MA's prior approval for any major acquisition or investment in a company which is 5% or more of the capital base of that authorized institution.
Secondly, we propose to substitute section 121(3) of the Banking Ordinance with a new provision to enable the MA to attach a condition: that the person to whom the information has been disclosed or the person receiving the information must obtain the consent of the MA for any onward transmission of such information. Such a condition is mandatory in the disclosure of individual customers' information.
Thirdly, to minimize the impact of the winding-up petition brought by an institution on the MA's corrective actions on an authorized institution, we propose to introduce a new provision to give the MA the right to be heard in respect of a winding-up petition against an authorized institution and to support or oppose such a petition.
Apart from the above-mentioned amendments, to improve the operation of the Banking Ordinance in the light of market development, we also propose to amend some relevant provisions so as to empower the MA to require all authorized institutions to publish or disclose information relating to their financial affairs, and to specify the manner and timing of such publication or disclosure. We also propose amendments to certain provisions so as to allow authorized institutions incorporated outside Hong Kong to lodge either a copy of their audited annual accounts or, with the MA's approval in writing, a copy of the consolidated accounts of their holding companies to the MA.
Madam President, the above amendments, if adopted, will improve Hong Kong's banking supervisory regime, thereby bringing it fully in line with international standards. Moreover, the operation of authorized institutions will become smoother and will therefore be in a better position to cater for market needs. These will be very important to the long-term development of Hong Kong's banking industry and the enhancement of Hong Kong's status as an international financial centre.
I urge Members to support the Bill. Thank you, Madam President.
PRESIDENT (in Cantonese): I now propose the question to you and that is: That the Banking (Amendment) Bill 1999 be read the Second time.
In accordance with the Rules of Procedure, the debate is now adjourned and the Bill referred to the House Committee.
WITNESS PROTECTION BILL
SECRETARY FOR SECURITY (in Cantonese): Madam President, I move the Second Reading of the Witness Protection Bill.
The purpose of the Bill is to provide a statutory basis for the existing Witness Protection Programme and adopt additional measures to change the identities of high-risk witnesses thoroughly.
The successful investigation of crimes and prosecution of criminals by law enforcement agencies, especially in cases involving organized or serious crimes, depend to a large extent on the co-operation of witnesses and the evidence they give in court. Therefore, the Witness Protection Programme is indispensable. We propose to put this programme on a statutory basis to further demonstrate the Government's determination to fight crime and to encourage witnesses to come forward to give evidence and to help witnesses to overcome fear of vengeance.
At present, the Police Witness Protection Unit and the Independent Commission Against Corruption (ICAC) Witness Protection and Firearms Section are responsible for operating the Witness Protection Programme. The key elements of the programme include a professional threat assessment, a written undertaking of acceptance (memorandum of understanding) to be signed by the witness and the police or ICAC, and a mechanism for appeals to review decisions made by the police or ICAC on the provision of witness protection.
We believe that the provision for changing the identities of high-risk witnesses thoroughly will give them more reassurance and enhance the effectiveness of the Witness Protection Programme. The existing Witness Protection Programme does not include changing the identity of the witness. The police and the ICAC can only change the name of a protected witness by means of a Deed poll so that the witness can use the new name in his identity card and travel document. However, these measures do not provide sufficient reassurance since consequential changes cannot be made to his birth and marriage certificates. The Bill will give relevant authorities the statutory power to change the identity of a protected witness in order to provide more thorough protection to him.
We propose that the features of the Bill should include:
(1) providing a legal framework for the Witness Protection Programme and providing for the key features of the existing Witness Protection Programme;
(2) empowering relevant authorities to change the identity of a protected witness and to issue new documents pertaining to the identity of the witness based on fictitious information without indicating that any change of identity has taken place. The change of identity of a witness must be recommended personally by the Commissioner of Police or the Commissioner of ICAC and approved by the Chief Executive;
(3) making it an offence for any disclosure of the identities and locations of witnesses currently or previously protected, or those who have been considered to be admitted to the Witness Protection Programme, or any information which compromises the security of these witnesses, without lawful authority or reasonable excuse, which will be punishable on conviction by imprisonment of up to 10 years; and
(4) providing that any officials and authorized persons, while acting in good faith and in the due execution of their duties in relation to the Witness Protection Programme, should be protected from any civil or criminal liability. This will reassure persons performing functions under the Witness Protection Programme.
As early as July 1996, the Witness Protection Bill was introduced into the then Legislative Council and was supported by the former LegCo Panel on Security, but the Bill eventually lapsed in the 1996-97 Legislative Council Session because the then Legislative Council did not have sufficient time to study it. The Bill introduced today is basically the same as the one introduced in 1996. I beg for Members' support of the Bill.
Thank you, Madam President.
PRESIDENT (in Cantonese): I now propose the question to you and that is: That the Witness Protection Bill be read the Second time.
In accordance with the Rules of Procedure, the debate is now adjourned and the Bill referred to the House Committee.
Resumption of Second Reading Debate on Bill
PRESIDENT (in Cantonese): This Council will resume the Second Reading debate on the Alice Ho Miu Ling Nethersole Hospital Incorporation (Amendment) Bill 1999.
ALICE HO MIU LING NETHERSOLE HOSPITAL INCORPORATION (AMENDMENT) BILL 1999
Resumption of debate on Second Reading which was moved on 12 May 1999
PRESIDENT (in Cantonese): Does any Member wish to speak?
(No Member indicated a wish to speak)
PRESIDENT (in Cantonese): I now put the question to you and that is: That the Alice Ho Miu Ling Nethersole Hospital Incorporation (Amendment) Bill 1999 be read the Second time. Will those in favour please raise their hands?
(Members raised their hands)
PRESIDENT (in Cantonese): Those against please raise their hands.
(No hands raised)
PRESIDENT (in Cantonese): I think the question is agreed by a majority respectively from each of the two groups of Members, that is, those returned by functional constituencies and those returned by geographical constituencies through direct elections and by the Election Committee, who are present. I declare the motion passed.
CLERK (in Cantonese): Alice Ho Miu Ling Nethersole Hospital Incorporation (Amendment) Bill 1999.
Council went into Committee.
CHAIRMAN (in Cantonese): Committee stage. Council is now in Committee.
ALICE HO MIU LING NETHERSOLE HOSPITAL INCORPORATION (AMENDMENT) BILL 1999
CHAIRMAN (in Cantonese): I now propose the question to you and that is: That the following clauses stand part of the Alice Ho Miu Ling Nethersole Hospital Incorporation (Amendment) Bill 1999.
CLERK (in Cantonese): Clauses 1 and 2.
CHAIRMAN (in Cantonese): Will those in favour please raise their hands?
(Members raised their hands)
CHAIRMAN (in Cantonese): Those against please raise their hands.
(No hands raised)
CHAIRMAN (in Cantonese): I think the question is agreed by a majority respectively from each of the two groups of Members, that is, those returned by functional constituencies and those returned by geographical constituencies through direct elections and by the Election Committee, who are present. I declare the motion passed.
CLERK (in Cantonese): Clause 3.
MR ERIC LI (in Cantonese): Madam Chairman, I move that clause 5 be amended, as set out in the paper circularized to Members.
Madam Chairman, the amendment is very simple, which is mainly to amend the "savings clauses" of the Bill in accordance with the proposals in the report of the Bills Committee on the Adaptation of Laws Bill 1998. Under the Adaptation of Laws Bill 1998 which has been passed, this Bill has to be consequentially amended so that it will be in line with the spirit of the Basic Law and the status of Hong Kong as a Special Administrative Region of the People's Republic of China. As such, I ask Members to vote in support of this amendment.
Thank you, Madam Chairman.
Clause 3 (see Annex IV)
CHAIRMAN (in Cantonese): Does any Member wish to speak?
(No Member indicated a wish to speak)
CHAIRMAN (in Cantonese): I now put the question to you and that is: That the amendment moved by Mr Eric LI be passed. Will those in favour please raise their hands?
(Members raised their hands)
CHAIRMAN (in Cantonese): Those against please raise their hands.
(No hands raised)
CHAIRMAN (in Cantonese): I think the question is agreed by a majority respectively from each of the two groups of Members, that is, those returned by functional constituencies and those returned by geographical constituencies through direct elections and by the Election Committee, who are present. I declare the motion passed.
CLERK (in Cantonese): Clause 3 as amended.
CHAIRMAN (in Cantonese): Will those in favour please raise their hands?
(Members raised their hands)
CHAIRMAN (in Cantonese): Those against please raise their hands.
(No hands raised)
CHAIRMAN (in Cantonese): I think the question is agreed by a majority respectively from each of the two groups of Members, that is, those returned by functional constituencies and those returned by geographical constituencies through direct elections and by the Election Committee, who are present. I declare the motion passed.
CHAIRMAN (in Cantonese): Council now resumes.
Council then resumed.
Third Reading of Bill
PRESIDENT (in Cantonese): Bill: Third Reading.
ALICE HO MIU LING NETHERSOLE HOSPITAL INCORPORATION (AMENDMENT) BILL 1999
MR ERIC LI (in Cantonese): Madam President, the
Alice Ho Miu Ling Nethersole Hospital Incorporation (Amendment) Bill 1999
has passed through Committee with amendments. I move that this Bill be read the Third time and do pass.
PRESIDENT (in Cantonese): I now propose the question to you and that is: That the Alice Ho Miu Ling Nethersole Hospital Incorporation (Amendment) Bill 1999 be read the Third time and do pass.
PRESIDENT (in Cantonese): I now put the question to you as stated. Will those in favour please raise their hands?
(Members raised their hands)
PRESIDENT (in Cantonese): Those against please raise their hands.
(No hands raised)
PRESIDENT (in Cantonese): I think the question is agreed by a majority respectively from each of the two groups of Members, that is, those returned by functional constituencies and those returned by geographical constituencies through direct elections and by the Election Committee, who are present. I declare the amendment passed.
CLERK (in Cantonese): Alice Ho Miu Ling Nethersole Hospital Incorporation (Amendment) Bill 1999.
PRESIDENT (in Cantonese): Members' motions. Two motions with no legislative effect. I have accepted the recommendation of the House Committee on the time limits of Member's speeches. The mover of a motion will have a total of 15 minutes to speak, and to give his or her reply. Other Members will each have a maximum of seven minutes.
PRESIDENT (in Cantonese): First motion: Interpretation of the Basic Law. Before I call upon Mr Albert HO to move his motion. I wish to make a clarification to Members.
Some Members feel that Mr Albert HO's motion has repeated the motion moved by the Secretary for Security at the Council meeting held last week, hence offended Rule 32 of the Rules of Procedure. Rule 32(1) stipulates that "Where the Council has taken a decision on a specific question and the question has been decided in the affirmative, no further motion shall be moved in relation to that question during the current session".
The wordings of the motion moved by the Secretary for Security and passed by the Council at the last meeting are "That this Council supports the Chief Executive's decision to request the State Council to approach the Standing Committee of the National People's Congress to interpret Article 22(4) and Article 24(2)(3) of the Basic Law". The scope of the motion clearly indicates that it is the Chief Executive to seek the interpretation of the Standing Committee of the National People's Congress (NPCSC) on two articles in the Basic Law. The motion relates to the Chief Executive's decision to seek the interpretation and it does not involve other articles in the Basic Law.
Mr HO's motion makes the proposition that "this Council objects to the Standing Committee of the National People's Congress (NPCSC) interpreting those articles in the Basic Law relating to the limits of the autonomy of the Hong Kong Special Administrative Region (SAR)". My understanding of the wordings of the motion is that Mr HO proposes to this Council that the NPCSC should not interpret any article in the Basic Law which relates to the SAR's autonomy.
As the two motions involve different propositions and scope, they can therefore be dealt with by the Council separately. I have no power under the Rules of Procedure not to allow Mr HO to move his motion. As to whether the Council should, after the passage of the Secretary for Security's motion as recently as last week, again support the passage of Mr HO's motion at this meeting, it is pertaining to the merits of the motion, which should not be the President's concern.
I would also like to remind Members that, in regard to the contents of Members' speeches, Rule 41(3) of the Rules of Procedure stipulates that:
"it shall be out of order to attempt to reconsider a specific question on which the Council has taken a decision during the session"
I believe that, in debating Mr HO's motion, Members will abide by this rule which is made by Members of this Council, so that the debate can proceed smoothly.
INTERPRETATION OF THE BASIC LAW
MR ALBERT HO (in Cantonese): Madam President, I move the motion which has been printed on the Agenda. I will read out the motion once more. I quote, "That, in order to uphold the principles of 'one country, two systems', a high degree of autonomy and judicial independence, this Council objects to the Standing Committee of the National People's Congress (NPCSC) interpreting those articles of the Basic Law relating to the limits of the autonomy of the Hong Kong Special Administrative Region (SAR)."
Madam President, before thoroughly analysing and discussing why we have to support this motion, I would like Honourable Members to first look at some of the deliberations of the Chinese Government when it raised the concept of "one country, two systems" and introduced Article 31 into the Constitution of the Peoples' Republic of China (the Constitution). In the early 80s, Mr DENG Xiaoping said that the sovereignty of Hong Kong had to be restored and a Special Administrative Region would be set up in Hong Kong. Therefore, Article 31 was introduced into the Constitution and it was written like this, "The state may establish special administrative regions when necessary. The systems to be instituted in special administrative regions shall be prescribed by law enacted by the National People's Congress in the light of specific conditions." I remember that I have openly raised a query at that time: if Article 31 was so written, did it mean that the systems or policies of the SAR could be in breach of some other articles of the Constitution? These articles included Article 10 which I best remember. Article 10 stipulated that land was owned by the state which could not be transferred, leased, bought or sold. Of course, what was more worrying was that the Constitution provided for the "four upholdings", stating that the whole nation has to abide by the principles of the "four upholdings", whereas Article 5 prescribed that any laws in contravention of the Constitution would be invalidated. Therefore, I was worried at that time if Article 31 was written in that way, was it sufficient to empower the NPC to ignore Article 5 and enact laws which would contravene Article 10 of the Constitution? After I had openly raised this query, some legal experts in the Mainland talked to me and said that the legislative intent of Article 31 was very clear enough, that was, under special circumstances, special arrangements could be made. When the NPC enacted this Article, it said that the system to be instituted in special administrative regions would not be restrained by all the articles in the Constitution, only the appropriate ones would be applicable whereas the inappropriate ones would not. Therefore, when the Basic Law was enacted, we saw that Article 11 was written like this, "The systems and policies practised in the SAR, including the social and economic systems, the system for safeguarding the fundamental rights and freedoms of its residents, the executive, legislative and judicial systems, and the relevant policies, shall be based on the provisions of this Law." Many academics reiterated then that "a high degree of autonomy" under the "one country, two systems" of Hong Kong would enable the SAR to enjoy comprehensive powers, including judicial, executive and legislative, to manage its internal affairs. This is what is meant by "a high degree of autonomy" and the Central Authorities will not intervene in affairs within the limits of the autonomy of the SAR. I think we all remember very clearly that certain high-ranking officials of the Central Authorities said at that time, "We will not intervene in the internal affairs of Hong Kong because, even for the socialistic path of the motherland, we are still fumbling, how do we know about capitalism? Please rest assured, for what we chiefly want to do are to bring the sovereignty of the motherland into incarnation, appoint the principle officials as well as clarify and determine the relationship between the Central Authorities and the SAR. We will not run the SAR's local business." That was the concept, I remember very clearly. In fact, in the course of drafting the Basic Law, many consultations and the substantive design of the whole Basic Law were revolving around this concept.
Now let us take a look at the design of the Basic Law. Chapter II is actually written very clearly. With comparatively more specific provisions, the duties and jurisdiction of the Central Authorities and the SAR are distinctly divided. For example, it sets out the relationship between the Central Authorities and the SAR, the Central Authorities are responsible for affairs within certain scopes. A number of articles also explain the limits of "a high degree of autonomy". The limits of the SAR's autonomy as specified in the Basic Law are repeated many times in this Chapter. Therefore, many articles in the Basic Law are actually very unequivocal. They prescribe that certain affairs are under the jurisdiction of the Central Authorities and these affairs must be supervised or implemented by the Central Authorities, whereas other affairs are under the jurisdiction of the SAR and such affairs will be dealt with and determined by the SAR itself and the Central Authorities will not intervene. I am not going to repeat them in details here. I believe Honourable colleagues will remember that Article 17 of the Basic Law is about legislative power. Laws enacted by the SAR must be reported to the NPCSC for record. If the NPCSC considers that a certain law enacted is not in conformity with the provisions of the Basic Law regarding affairs within the responsibility of the Central Authorities or regarding the relationship between the Central Authorities and the SAR, it may return the law in question to the SAR for reconsideration and that law shall them be invalidated. Under what circumstances will the Central Authorities return the law? It is when the law contravenes the articles concerning the relationship between the Central Authorities and the SAR, that is, the affairs within the jurisdiction of the Central Authorities.
In fact, it is the same for Article 18 which relates to national laws. If certain national laws are to be introduced into Hong Kong, they have to be included in Annex III to the Basic Law. However, it is written very clearly that such laws are only confined to those relating to defence and foreign affairs as well as matters outside the limits of the autonomy of the SAR. Article 158 was actually also drafted in such a spirit. Paragraph 1 of the Article states that the power of interpretation of the Basic Law shall be vested in the NPCSC, which is in line with the Constitution. But the following paragraph gives the courts of the SAR comprehensive authorization, and the remaining paragraphs of the Article expound that when the courts of the SAR exercise such a power, if provisions concerning the relationship between the Central Authorities and the SAR or affairs which are the responsibility of the Central People's Government are involved, the courts of the SAR shall, before making their final judgments, seek an interpretation of the relevant provisions from the NPCSC. Therefore, this Article has clearly prescribed a division of power and it has not been provided the courts of the SAR have to approach the NPCSC to interpret provisions which are within the limits of the autonomy of the SAR.
The whole conception of the Basic Law is in fact permeated with a very clear basic principle, that is, the division of powers and duties. Of course, we know that all powers are derived from the Constitution. While the Constitution embodies the implementation of sovereignty through the Basic Law, and in the implementation, "one country, two systems" and "a high degree of autonomy" are also embodied. However, in the course of the embodiment, there are systems and principles governing the division of powers that permeate the entire Basic Law. That which does not bear such a division is only Article 160 of the Basic Law. This Article specifies that, upon the establishment of the SAR, the NPCSC can declare any original colonial laws of Hong Kong which are in contravention of the Basic Law to be invalid. There is no division of powers in this Article, even laws within the autonomy or about the internal affairs of Hong Kong can be invalidated by the NPCSC. Why? The answer is very simple: because at that time the SAR Government had not been set up yet, so the Central Authorities had to enact such a special provision in order to ensure the smooth transfer of sovereignty. Other than Article 160, provisions in the Basic Law involving powers exercised by the Central People's Government would definitely provide for a division of powers and such a division is always very distinct, the principle behind these provisions is that affairs within the limits of the autonomy of the SAR will not be touched upon.
According to the points I made just now, irrespective of how we interpret Article 158 para 1, if the Basic Law is to be explained in the light of its original intention, no matter whether you say that was a legal policy, a political policy or political undertaking, basing on the above considerations, I think that the whole legislative spirit behind the Basic Law is that the Central People's Government (including the NPCSC) should not, will not and, even from a legal point of view, cannot intervene in the internal affairs of the SAR. Of course, I know the word "cannot" may be very controversial, however, at least insofar as the position of policy is concerned, the Central People's Government should not intervene. I also believe if the Central People's Government has thought over the case thoroughly, it would not intervene in the internal affairs of the SAR. Otherwise, in accordance with Article 158 para 1, if the NPCSC's power of interpretation has no restraint and can be exercised at any time, then all the mechanisms, all the restrictions of procedures and all the divisions of powers are meaningless. Why bother to write them down? Do they only serve to restrict the SAR? If they only serve to restrict the SAR, should they be written in this way? We think that the answer is very clear, that is, the NPCSC should be bound to carry through its pledge of not intervening in the internal affairs of the SAR.
In fact, if we take a careful look at Article 158 paras 2 and 3, we will see that they actually impose restrictions on the procedures. Some people say those are not restrictions because para 1 is written with such clarity and principle that it should not be restricted by para 2, 3 or 4. In other words, there is no restriction at all. However, if that is the case, we can look at the amendment procedure specified in Article 159. That is a very special procedure. The power to propose bills for amendments to the Basic Law is vested in the NPCSC, the State Council and the SAR, ordinary deputies to the NPC cannot make such a proposal. If Articles 158 and 159 are to be interpreted in the same way, since Article 159 para 1 has already stated that the power of amendment is vested in the NPCSC, does that also mean para 1 is not restricted by the procedures prescribed in the following paragraphs? If so, what are the paragraphs after Article 159 para 1 written for? Therefore, viewing from this angle, we feel that the Central Authorities should discharge its undertaking and the Hong Kong Government should not do anything to undermine such an undertaking.
What result will be brought about if the NPCSC interprets those articles within the limits of the autonomy of Hong Kong? Firstly, the pledge will be broken as intervention of the Central Authorities in the internal affairs of Hong Kong will destroy the power of Hong Kong to manage its own affairs and the integrity of its systems. Secondly, it will destroy Hong Kong's power of final adjudication. I would like to stress one point, this power of final adjudication is not only the power of adjudication on individual cases — for this I do not agree with the Secretary for Justice's interpretation — but also includes the interpretation of provisions of laws during the final adjudication, especially when the interpretation is related to internal affairs. If the Central Authorities intervene into or reverse this interpretation wantonly, the design and legislative intent of Article 158 will be utterly destoryed. Thirdly, if the Central Authorities interpret the articles within the limits of the autonomy of the SAR, many of the operational designs stipulated in Articles 17 and 18 of the Basic Law will also be destroyed. In other words, through the Basic Law, the Central Authorities can enact supplementary legislation for Hong Kong as they please. If such supplementary legislation is enacted without restrictions and can relate to Hong Kong's internal affairs, the NPCSC can then legislate for internal affairs within the limits of Hong Kong's autonomy through interpreting legislation. This is extremely dangerous. I believe that nobody wants to see such things happen. Besides, the Central Authorities interpreting articles within the limits of Hong Kong's autonomy will also destroy the amendment mechanism prescribed in Article 159.
People may ask, since the Central Authorities have the power of interpretation, is it equivalent to saying that the function of Article 159 is being queried? Is Article 159 really useful? This is a very important question. Some people think that we do not have to worry about intervention because at present it is the SAR Government that invites the Central Authorities to intervene. But this is not an acceptable explanation. I do not want to see our autonomy lost in the hands of our Government or our own people as we ourselves invite the Central Authorities to intervene. After the Court of Final Appeal has made a ruling, if the SAR Government invites the Central Authorities to intervene, it will give people an impression that the SAR Government tries to override our Judiciary in the name of the NPCSC. This will seriously damage the reputation of Hong Kong.
The last point I would like to make is that Article 24 of the Basic Law is undoubtedly within the limits of autonomy because we are talking about the right of abode, not nationality. Nationality is of course an issue which concerns the relationship between the Central Authorities and the SAR, but how is it possible that Article 24 is not within the limits of our autonomy? This is a question about the definition of Hong Kong permanent residents. Therefore, saying that the interpretation of Article 24 by the Central Authorities does not relate to the limits of autonomy is indeed a gross deception. Interpreting only Article 22 irrespective of 24 will not help us tackle the problem of the right of abode presently facing us either. So I hope Honourable Members will support the motion I move today in order to uphold "a high degree of autonomy", to uphold "one country, two systems" and to uphold the right of final adjudication of our Court of Final Appeal. Thank you, Madam President.
Mr Albert HO moved the following motion:
"That, in order to uphold the principles of 'one country, two systems', a high degree of autonomy and judicial independence, this Council objects to the Standing Committee of the National People's Congress interpreting those articles of the Basic Law relating to the limits of the autonomy of the Hong Kong Special Administrative Region."
PRESIDENT (in Cantonese): I now propose the question to you and that is: That the motion moved by Mr Albert HO, as set out on the Agenda, be passed.
The debate now commences.
MR GARY CHENG (in Cantonese): Madam President, some of us may think that the motion on the Interpretation of the Basic Law moved by the Honourable Albert HO today is a little bit too late in coming. It is a pity that in the last debate we did not have a chance to hear the views of the Democratic Party, and they did not have a chance to hear the views of other Members on that motion either. Today, we can put aside our emotions and restrict our discussion to the facts. In fact, debates of this nature at least do have one big advantage, and that is, it will enable the general public of Hong Kong to have an in-depth understanding of the Basic Law, and I think this is the best civic education.
Article 2 of the Basic Law provides that "The National People's Congress authorizes the Hong Kong Special Administrative Region (SAR) to exercise a high degree of autonomy and enjoy executive, legislative and independent judicial power, including that of final adjudication, in accordance with the provisions of this Law". After the reunification of Hong Kong to China, the Central People's Government has done its best to maintain the principle of "one country, two systems" and "a high degree of autonomy" in Hong Kong, and has won acclamation in both the international and local communities. We think that the key to such a success is the faithful application and implementation of the Basic Law.
Let us take a look at Article 158 of the Basic Law which the people of Hong Kong are very familiar with. We are very satisfied that the SAR is authorized to deal with matters which are within the limits of the autonomy of the Region on its own; we are also satisfied that Article 158 of the Basic Law provides that the Standing Committee of the NPC shall authorize the courts of the SAR to interpret on their own, in adjudicating cases, the provisions which are within the limits of the autonomy of the Region. However, this provision does not preclude the Standing Committee of the NPC from interpreting provisions which are within the limits of the autonomy of the Region. As to Article 159 which was just mentioned by Mr Albert HO, it also does not preclude the Standing Committee from amending the Basic Law. It only said that if the amendment proposal is raised in form of a SAR motion, then the procedures as laid down in the provisions of Article 159 must be followed and it must go through the mechanism of the SAR, that is, the consent of two thirds of the deputies of the Region to the NPC, two thirds of all the members of the Legislative Council and the Chief Executive of the Region must first be obtained. Therefore, it could be seen that there are no contradictions between Article 158 and Article 159, and these two Articles did not preclude the Standing Committee of the NPC from interpreting and amending the relevant provisions. I believe that this should be very clear to everyone, and lawyers must also be aware that the principle and objective of the provisions should come first. The first paragraph in Article 158 has already provided that the power of interpretation of the Basic Law shall be vested in the Standing Committee of the NPC.
I think Article 158 of the Basic Law is the most typical example of "one country, two systems". There are four paragraphs in this Article: The first paragraph embodies the principle of the power of interpretation, and lays down the fact that in China it is the legislature that interprets the law, and it could be said that this is a reflection of the "one country" principle. The second paragraph embodies the spirit of a high degree of autonomy for the SAR under the "two systems" principle. It also provides that Hong Kong has the right to interpret provisions which are within the limits of the autonomy of the Region, and the courts of Hong Kong, in adjudicating cases, may interpret the provisions of the Basic Law in accordance to the common law which is practised in Hong Kong. This is a reflection of the "one system" of Hong Kong. The third paragraph deals with matters which involve both systems, and that is, in adjudicating cases which involve both the Central People's Government and the SAR, the Court of Final Appeal (CFA) may interpret the provisions on their own. However, before making its final judgment, the CFA should refer the case to the Standing Committee of the NPC for interpretation. For in lack of a better example, I must quote the case of the right of abode to illustrate my point. This is obviously not a matter which simply involve Hong Kong, because by breaking up the link between the Certificate of Entitlement and the one-way permit, the established immigration policy and administrative operations of the mainland Government will be greatly disrupted. Moreover, in defining the status of the children of Hong Kong residents, the CFA has also failed to accept the explanation which was laid down in the documents of the Preparatory Committee, and has thus given rise to all the disputes. Paragraph 4 of Article 158 provides that even if the case is referred to the Standing Committee of the NPC for interpretation, it still has to go through the mechanism of the Basic Law Committee.
Actually, it is not at all surprising that there should be arguments over the interpretation of the Basic Law, for the Basic Law is really an innovative idea which has never existed in Hong Kong or in any other parts of the world. It is only natural that there would be doubts and conflicts over certain practices and principles in an environment where two entirely different legal systems are being adopted in two different places under the same sovereignty. It is equally understandable that the judges of the CFA will pass their judgment in accordance with their usual practice. Therefore, if there are controversies and disputes between the Government and the Judiciary over the judgment and interpretation of the CFA under such provisions of the Basic Law, we do not think that it is simply a matter of right or wrong; but since the principle of "one country, two systems" is not something which has been practised before, we could only grope our way through practice and through disputes.
We have studied Mr Albert HO's motion carefully and will deal with it in a cautious manner. Since Mr HO's motion said that "this Council objects to the Standing Committee of the NPC interpreting those articles of the Basic Law relating to the limits of the autonomy of the SAR", we are of the opinion that if such an objection is based on jurisprudence, then simply in protecting the rule of law and upholding the Basic Law, we would have no choice but to oppose to this motion. If, according to Mr HO, the purpose of the motion is to bar political intervention, then in accordance with the principles of the common law, at when there is no such cases or similar situations, we cannot broadly assume that when a case has to be referred to the Standing Committee of the NPC for interpretation, it will necessarily mean political intervention. We think that the example just quoted by Mr HO is not simply a question of falling within "a high degree of self autonomy". Article 158 of the Basic Law provides that the power of interpretation shall be vested with the Standing Committee of the NPC and it also authorizes the courts of the SAR to interpret on their own, the provisions of the Basic Law which are within the limits of the autonomy of the Region, but that does not mean that the Standing Committee of the NPC does not have the power to interpret provisions which are within the limits of the autonomy of the Region.
With these remarks, Madam President, I oppose Mr Albert HO's motion.
MISS MARGARET NG: Madam President, I am grateful to the Honourable Albert HO for moving today's debate because the issue is of great concern to the legal profession.
Lawyers and judges have been profoundly aware, from the start, that the Basic Law has brought in a "new order". The CFA, in its now world famous judgment, set its judgment in the context of "the development of constitutional jurisprudence in the new order". The CFA, no doubt, had in mind a case by case development, prudent, and considered in the factual circumstances of each case, in the time-honoured manner of the common law, and resolved within the autonomy conformed under "one country, two systems".
Regrettably, this process has not found favour with the Government of the Special Administrative Region (SAR). The Secretary for Justice also referred to a "new order" in her speech in this Council last week, but it is a new order ushered in by a request to the Standing Committee of the NPC for a reinterpretation of provisions of the Basic Law to conform to the Government's views, in the midst of controversy and strong opposition from the legal community.
The Government's defence is that this process is lawful, and hangs its case on Article 158 para 1. But as the CFA has so rightly warned, each provision of the Basic Law must be construed in context, and in a way which allows it to achieve its purpose in the constitutional regime.
The fundamental purpose of the Basic Law is to guarantee, overall, a high degree of autonomy under "one country, two systems". Article 158 does so in the specific area of the judicial system, not only to give effect to final adjudication, but also to preserve Hong Kong's separate legal system under the common law, with the judicial system at its centre.
The Central Authorities had always been keenly aware of the importance of maintaining Hong Kong's separate legal system as a key to confidence, both before and after the handover. They have always dealt with Article 158 with great sensitivity and understanding.
Throughout the Basic Law, special care is taken to leave the SAR matters within its autonomy. For example, in Article 17, as Mr Albert HO has pointed out, where laws passed by the SAR legislature is required to be reported to the Standing Committee "for record", only those contravening provisions regarding matters within the responsibility of the Central Authorities or relationship with the Central Authorities may be "returned". In other words, for provisions within the SAR's autonomy, the legislation is not returned even if it contravenes.
In a book on One country, two systems and the Basic Law of the SAR
(《一國兩制與香港特別行政區基本法》) edited by Mr XIAO Weiyun published soon after the Basic Law was promulgated, the kind of interpretation the SAR Government is now seeking was simply not visualized for whatever category of provisions. It recognizes that, under our system, the court's power to adjudicate is inseparable from its power to interpret. It leaves the CFA to determine whether a provision falls within the ambit of what requires referral to the Standing Committee to interpret prior to the CFA's final adjudication. There is nothing in Article 158 to provide, and I translate, "that if the Standing Committee of the NPC discovers afterwards the interpretation of the CFA is incorrect, it is to be nullified or returned for reconsideration." I repeat, there is no such provision.
Such is the respect that the NPC, in promulgating the Basic Law, wished to be accorded the CFA of the SAR, knowing how important this is to "one country, two systems" and continued confidence in the rule of law in Hong Kong.
In a seminar held in the University of Hong Kong yesterday, Professor Albert CHEN said, as a result of his research, that there was, in fact, no precedent for the Standing Committee to exercise its power of interpretation of specific provision of a national law. The "interpretation" of the nationality law in 1996 was in the nature of a supplemental legislation (補充立法). In rushing in the "new order" for the SAR, one wonders whether the Secretary for Justice is aware that she is also making legal history for the Mainland. The lack of precedence further increases the fear of arbitrary intervention.
Madam President, on judicial independence, the Secretary for Justice has said that this is no more than judges having the freedom to decide cases in accordance with the law, without interference. She also says that objections to reinterpretation "largely boil down to a matter of perception".
I have always understood perception to be of great importance to the rule of law. Hence the famous saying, "Justice must not only be done, but must be ...... seen to be done." In the case Secretary for Justice v the Oriental Press Group Limited and Others decided in May last year, the learned Chief Judge of the High Court said this:
"A civilized community cannot survive without effective machinery for the enforcement of its laws. The task of enforcing those laws falls on the courts, and on the judges who preside over them. It has always been regarded as vital to the rule of law for respect for the judiciary to be maintained and for their dignity to be upheld. If it were otherwise, public confidence in the administration of justice would be undermined, and the law itself would fall into disrepute."
Respect is given not for the sake of judges, but for the sake of the rule of law.
Whatever the Government chooses to call it, the perception is clear: The Government's view did not prevail before the CFA, and it is now getting the Standing Committee to say that the CFA is wrong and the Government is right. Whatever earlier promises or other provisions in the Basic Law may suggest for the present system to be maintained, the reality is that it will be tempered with mercilessly if it stands in the way of the Government.
In these circumstances, how can the public be expected to put any faith in the outcome of the court's process? How can the court's authority not be seen to be subject to executive will?
Madam President, there is talk of a "convention" to be set up about future reinterpretation ─ I am afraid that I have to stop here.
DR YEUNG SUM (in Cantonese): Madam President, today, I speak with a heavy heart. Last week, a significant decision of the Government awoke me and many of my friends and colleagues to the fact that our wish to have the pledge of "one country, two systems" and "a high degree of autonomy" truly fulfilled was only wishful thinking on our part. The shattering of this wish made all of us very sad.
On recollection, the Chinese and the British sides finally reached an agreement in late 1994 and signed the Sino-British Joint Declaration after going through so much troubles and difficulties. At that time, in point 3 of the Joint Declaration, the Chinese Government laid down its basic policy on Hong Kong in the form of a statement. Item (2) of point 3, I quote, reads, "The Hong Kong Special Administrative Region will be directly under the authority of the Central People's Government of the People's Republic of China. The Hong Kong Special Administrative Region will enjoy a high degree of autonomy". Item (3), I quote, provides, "The Hong Kong Special Administrative Region will be vested with executive, legislative and independent judicial power, including that of final adjudication." The Basic Law has been drawn up to provide a legal base for the Special Administrative Region (SAR) to exercise a "highly autonomous" system. But this pledge and this base have now gone down the drain.
When the draft Basic Law of the Hong Kong Special Administrative Region of the People's Republic of China (for solicitation of opinions) was published, the original Article 169 of the Basic Law reads, "The power of interpretation of this Law is vested in the Standing Committee of the National People's Congress. When the Standing Committee of the National People's Congress makes an interpretation of a provision of this Law, the courts of the Region, in applying such a provision, shall follow the interpretation of the Standing Committee. However, cases under adjudication and judgments previously rendered shall not be affected."
In discussing this provision of the Basic Law, members of the Consultation Committee of the Basic Law (Committee) were also concerned that if the Standing Committee of the National People's Congress (NPCSC), a political organ, was to interpret the Basic Law, the "high degree of autonomy" of the SAR would cease to exist except in name only. If the NPCSC has the power of interpreting the Basic Law, it may censor the affairs of the SAR for their being constitutional or not. Thus, it will be impossible for the SAR to exercise a "high degree of autonomy" and enjoy an intact power of autonomy, and it will have to depend totally on the self-constraint of the NPCSC but receive jurisprudentially no protection from the law at all.
In terms of human rights, the Committee also clearly expressed its concern. It was of the view that to have the courts interpret the Basic Law and vest in the courts in Hong Kong the final adjudication and interpretation power would create checks and balances against any infringement of human rights by the executive authorities and provide greater protection to our human rights. Otherwise, the human rights could not receive protection in any way.
In terms of the judicial system, the Committee opined that to have the NPCSC interpret the Basic Law would affect the judicial independence and final adjudication power of the SAR, which was an infringement on the Sino-British Joint Declaration. They were also worried that the Central Government might interfere with the final judgment of the SAR courts through this "interpretation".
More importantly, to have the NPCSC interpret the Basic Law will seriously undermine our common law system because the NPCSC will interpret the Basic Law in accordance with the policy and laws of China where the socialist system is practised. Everyone knows that under the common law system, the court is the only organ to adjudicate litigation. Hence, that will go against the spirit of the rule of law in the SAR.
As for the economy, the Committee was also concerned that since in most countries, the interpretation and execution of the law were undertaken by an independent judiciary instead of having a central administrative organ to enact and interpret the law, in order for Hong Kong to maintain its international status, it must have an independent judicial body for interpretation of the law. Therefore, the Committee considered that the original Article 169 of the Basic Law would undermine the international confidence in investing in Hong Kong.
Basing on the above reasons, the Committee put forward many different suggestions the general direction of which was to restrict the NPCSC's power to interpret the Basic Law, ranging from the strictest, that is, to vest in the SAR the power to interpret the Basic Law, to the more relaxed, that is, to vest in the NPCSC with the power to interpret the Basic Law, but the NPCSC is to delegate the full power to, or authorize the SAR to, interpret the provisions of the Basic Law concerning the internal affairs of the SAR, while at the same time the NPCSC shall practise self-constraint such as refraining from giving any interpretation to the provisions of the Basic Law concerning the internal affairs of the SAR, except under the request of the SAR courts, and it will only explain the provisions that are strictly of legal nature, and it will not be given the power to interpret any provisions concerning the policies and systems of the SAR.
The Committee's views were taken into consideration in the publication of the second draft, and the then Article 169 of the Basic Law was revised and became the present day Article 158. The provision in the Article was also amended by adding, "The Standing Committee of the National People's Congress shall authorize the courts of the Hong Kong Special Administrative Region to interpret on their own, in adjudicating cases, the provisions of this Law which are within the limits of the autonomy of the Region." I stress, it is to interpret on their own.
When the second draft was under discussion, a member of the Committee even suggested that the word "exclusively" be added before "authorize" to specify that only the courts of the SAR have the power to interpret the provisions within the limits of the autonomy of the SAR. This part is also the gist of the Honourable Albert HO's motion which specifically provides that besides authorizing this to the SAR courts, the NPCSC shall maintain the power to interpret the provisions relating to defence and foreign affairs as well as those concerning the relationship between the Central Authorities and the SAR.
Of course, these were only the views of the Committee, but I believe that they also reflected the demands of and feelings shared by most people in Hong Kong. Given this background, the people of Hong Kong have always thought that under the pledge of giving the SAR "a high degree of autonomy", affairs within the SAR's autonomy including the final adjudication and interpretation by the courts of the SAR of the provisions of the Basic Law within the autonomy of the SAR are to be strictly undertaken by the SAR itself, free from any intervention by the Central, and the common law system of the SAR shall be preserved and remain unchanged for 50 years. Although we had made great efforts to strive for democracy, our efforts were to no avail. But we thought that at least we had secured an autonomous system with the rule of law.
The decision of the Government last week to seek the interpretation of certain provisions of the Basic Law from the NPCSC has indeed taught the people of Hong Kong a hard lesson. Even before the demographic survey was completed, the SAR Government has, to resolve a problem that it has not studied thoroughly and clearly, castrated itself and voluntarily given up the SAR's "high degree of autonomy" and judicial independence, thereby damaging the foundation on which the SAR relies on for the protection of its stability and prosperity. After the damage done to this foundation of the rule of law, how can we expect our basic human rights originally protected by the Basic Law, including the of speech, of assembly, and of participating in trade unions, to be spared from the interpretation of the NPCSC and to remain intact?
I have thought that the road leading to democracy was rugged and bumpy, but little did I expect that the autonomy and final adjudication power of the SAR are also built on loose sand and can collapse so completely within such a short time. The common law system of the SAR is gradually heading towards the socialist continental law system, which is sounding the serious alarm that the "one country, two systems" formula of the SAR is heading towards "one country, one system".
I firmly believe that even if the Government promises to formulate a mechanism to limit the NPCSC's interpretation power of the Basic Law, the damage done to the "one country, two system" policy and "high degree of autonomy" of the SAR is already beyond repair.
MISS EMILY LAU (in Cantonese): Madam President, I speak in support of the Honourable Albert HO's motion.
Madam President, I understand that many people outside may not too follow what this motion debate is about. Under British rule in the past, even though many people might say that they supported the rule of law, many of the legal points are too difficult for them to understand. Now, concerning the interpretation of the Basic Law, this is not only a very difficult but also a brand new concept. I believe that few people can really comprehend. However, Madam President, I am not a lawyer myself either, so I wish to talk about my worries from the angle of a layman in law, a mere representative of people opinion. Many people are already scared by the Government, and fearing that there would be a sudden influx of immigrants to Hong Kong, they simply refuse to listen. Or perhaps, some would hear it over and over again but they still find some of the things much too complicated for them. Therefore, the public may not have grasped adequate information to conduct their own analysis on the overall situation. So, the most important message they get is that a million odd people are about to come to Hong Kong; hence, so long as someone could do something to stop their incoming, that must be the right thing to do. I hope that today, people inside and outside this Chamber can keep their cool and listen to what the case is about.
I very much agree with Dr YEUNG Sum and Mr Albert HO that we, the people of Hong Kong, have always regarded that "a high degree of autonomy" means that the people of Hong Kong are given a free hand to take care of certain matters themselves. Of course, the Central Authorities have the right to take charge of these matters. No one would deny that. They have the absolute right to do so. But, we thought that Article 158 para 2 of the Basic Law has provided that our Court of Final Appeal may interpret on its own the provisions of the Basic Law that are within the limits of the autonomy of the SAR. However, this illusion has been totally shattered by what the executive authorities is about to do; and not only is our illusion shattered, but our confidence in the "high degree of autonomy" is also greatly undermined. Madam President, I hope that when the Secretary makes the response later on, she will assure us Article 158 para 1 states that the power of interpretation is vested in the Standing Committee of the National People's Congress (NPCSC), paragraph 2 authorizes the SAR courts to interpret the Basic Law, and paragraph 3 states the circumstances under which the SAR courts are to seek an interpretation from the NPCSC. All these are stated very clearly, Madam President. It is that only when the courts adjudicate cases involving matters that come under the responsibility of the Central People's Government, or concerning the relationship between the SAR and the Central shall the courts seek the NPCSC's interpretation.
Now, Madam President, the executive authorities tells us that the case is not so, and they can seek an interpretation from the NPCSC even for matters within the autonomy of the SAR. The problem is, if we care about the rule of law, we have to follow the procedure. Madam President, I believe that you are also aware that in the Panel on Constitutional Affairs chaired by Mr Andrew WONG, we have discussed the procedure for amending the Basic Law and Article 159. Many people were invited to attend the Panel and they have put forward many ideas. Though their ideas are varied and very complicated, they all focused on the procedure. But what is the procedure involved in Article 158? Madam President, perhaps you may say that Article 158 has nothing to do with the Legislative Council. But anything relating to the executive authorities is also required to have procedures. However, I have yet to hear anything about the procedure. If there is not even an established procedure, and we rush into doing it, stopping only after the business is over to say, let me think about what to tell, will just like how the Government handled the Cyperport affair ─ it would say, let me think about what principle there is and then write it down. If this is the case, I believe that even though the public do not understand what the rule of law is or what the so-called interpretation power is, they would come to understand now, for if the place that we live in is civilized and has the rule of law, everything should be done in a proper procedure, and the procedure is not cited casually by several persons high up above. Rather, a procedure is called a procedure only when it is laid down through an open channel and agreed by everyone. Madam President, that is why I hope that the Secretary will tell us later whether it is true that there is not a procedure yet for seeking the interpretation of Article 158, and that it is not yet known how it should be done. We have asked this question several times before. It was mentioned that it needed to have the legislation carried out here in Hong Kong. Madam President, perhaps you still remember that at the time of the Provisional Legislative Council, it was proposed that legislation has to be made here in Hong Kong. Now this is overruled. Mr Daniel FUNG came and said he did not remember that he had said so at that time. He only asked if he had said so, and that even if it had been thought about, it may not be necessary to do so. In the face of such fickleness, Madam President, even those who know nothing about the rule of law or the interpretation of the Basic Law would hesitate. They would query ─ what the mischief is? Does the rule of law mean that when it is convenient or when you like to uphold the principle, you talk about the rule of law, but when you do not like it, you would distort the principle and still say that it is the rule of law? In so doing, will our "high degree of autonomy" be reduced into nothing?
Madam President, another thing that I would like to talk about is that we do not know how the Central Government is going to deal with this yet. Some say that the SAR Administration has actually put the Central Government in a very difficult position because it is the SAR Administration that drags them into this and it even decides for them how they are to go about. Madam President, is this not very absurd? These people have been requested to interpret the law but they should not think that they have been given due respect. Actually, how come the SAR could list out items one, two and three and then ask the Central Government to be just a rubber stamp, to stamp and approve the SAR's suggestions. Is this the right approach to take? Okay, even if the Central Government consents to do what the SAR requests them to, that is to stamp the interpretations provided, sooner or later, these interpretations are to be presented to our courts for the judges to follow. Some of our judges have said that they will have to see whether such interpretations comply with the procedure and if not, these interpretations might as well be thrown into the garbage bin and need not be given any regard. What if the judge should interpret the provisions in the wrong way? Madam President, would we seek an interpretation again? This way, we go another round. If an interpretation is to be sought from the Central whenever there are points we do not understand, and then after the interpretation, the judges refuse to follow and a fresh interpretation is sought, there will be an uproar across the territory and throughout the international community, and even the NPCSC would also burst into an uproar. They would say, Hey, TUNG Chee-hwa, what are you doing? Do you know how to run Hong Kong? Why does the whole bunch of you keep pestering us? Actually, the interpretation power should just be applied a few times, but after the establishment of the SAR, it has applied repeatedly. I feel that this is absurd but at the same time appalling.
Madam President, there is another possibility that we may be spared from all these troubles because our judges are intimidated, so everyone would keep silent. Then, not only the Court of Final Appeal but the lower courts would understand that interpreting the Basic Law the wrong way could lead to such a serious consequence. They will know that they should try not to get themselves into such situations and it is best for them to stay away. But how could they stay away? So, they would ask the people around how they are expected to say and would then adjudicate accordingly. If they really behave this way, Madam President, could we still claim to have judicial independence?
Finally, Madam President, I would like to talk about Article 23 of the Basic Law. We do not have an idea yet how it will be interpreted, but as DENG Xiaoping said, we will have to confront it sooner or later. This Article is extremely complicated, where part of it relates to the limits of our autonomy and part of it, such as that on acts of treason, secession, sedition, subversion against the Central People's Government, does not. And then, the prohibition to establish ties with foreign political organizations or bodies has also been included in this category. These are all very complicated. The problem is if each time after the court has made a ruling on some cases, and the SAR Government wants to overturn the ruling and go to Beijing for an interpretation, I believe that not only we, the democrats, but even many who do not understand what the interpretation power or the like are would also begin to think about the whole thing. I thank Mr Albert HO for moving this motion. This topic involves a lot of complications and its impacts on us will be very far-reaching.
Madam President, I believe that what the executive authorities is doing has completely undermined my confidence in the "high degree of autonomy" and the "one country, two systems" policy. With these remarks, I support the motion.
MR MARTIN LEE: Madam President, when I was drafting the Basic Law as a member of the Drafting Committee of the Basic Law, a question was asked of me repeatedly while we were discussing over two very controversial articles, Article 19 in relation to the meaning of the expressions "acts of state" and "facts of state", and also Article 158, the interpretation of the Basic Law. The question was: What if the courts should get it wrong? (錯了怎麼辦？) And my answer was this, "Well, if the judge in the first instance has pronounced judgment and the Government does not agree with it, the correct way is to appeal to the Court of Appeal of three judges, and if they still dismiss your appeal, the correct way to go about it is to go further, to the CFA. But if the CFA is still against you, I am afraid that is it, because that is final and that is now the law, and in future, all courts are bound by their decision." So, there is no question of the CFA getting it wrong. Now, Madam President, of course, this principle is well-known even to our law students. But unfortunately, it is not well-known to our Government.
One major flaw in the Government's case, that they should go to the Standing Committee for reinterpretation of various articles of the Basic Law after the CFA has actually adjudicated on them, is that if the CFA has got it right but the community cannot bear the social consequences of it, the correct thing to do is to amend. But if the CFA has got it wrong, the correct way to go about it is to interpret.
The question is this: Who is to pontificate over this question and say whether the CFA is right or wrong? There is nothing in the Basic Law which says who can overrule the CFA or who can decide whether they are right or wrong. Because once you say that, there is another organ or organization which or person who has that power, the CFA is not final. I would have thought that that is elementary.
But it seems that the Government believes that almost any Tom, Dick and Harry can say that the CFA is wrong. If that is so, in every case where the CFA has to rely on an interpretation of the Basic Law before coming to its decision, there is always a loser, and the loser will always say that the CFA has got it wrong. Can it be that this person, this unhappy defendant, can then ask the Standing Committee of the NPC to reinterpret the same articles of the Basic Law?
It seems that our Government believes that if the Chief Executive believes the CFA is wrong and the Secretary of Justice also believes it, so the executive has come to an overall decision in the Executive Council that the CFA is wrong in that its judgment goes against the original legislative intent, it can come to this Council for endorsement and likewise, it could go to the delegates of the Hong Kong Special Administrative Region to the NPC for endorsement.
Are they saying that the Chief Executive, the executive authorities and the legislature are in a position to judge the CFA to be wrong? Let us sit back and consider. Why do we have courts? The courts are there to adjudicate in disputes between citizens, but very often, our courts are called upon to adjudicate in disputes between the citizen and the Government. For example, the court will hold or may hold that in making a certain decision, the government department concerned has acted contrary to the rules of natural justice, or simply contrary to certain statute law.
Now, there the court is deciding in a dispute between the citizen and the Government. At other times, the court may say that the legislature, in passing a certain law, has gone against the Basic Law, our constitution, and so the court will declare that law to be null and void.
So, Madam President, the courts are there to decide whether the Government is wrong or whether the legislature is wrong, so as to do justice to the citizens. But how can we turn the tables and have the executive and the legislature to declare the courts to be wrong when they have struck down certain laws passed by the provisional legislature? We are turning the whole thing on its head. How can the Administration be so silly as not to understand what I consider to be elementary principles of law? And we are in this difficulty because they claim to be superior to the CFA.
Now, Madam President, we cannot allow this attitude to continue. We are becoming the laughing stock of the entire world, if the executive and the legislature can combine to declare the CFA to be wrong.
MRS SELINA CHOW (in Cantonese): Madam President, first of all, I would like to discuss the question of whether we should be grateful to the Honourable Albert HO or that he should be grateful to us instead. If the Democratic Party has not left the meeting in protest last week, this debate today might have been conducted successfully then. Nevertheless, the motion moved by the Democratic Party may well provide us with yet another chance to find out what they have to say when they could keep their cool.
According to Article 67 of the Constitution of the People's Republic of China (the Constitution) and Article 158 of the Basic Law, the Standing Committee of the National People's Congress (NPCSC) is entitled to the power of interpretation of the laws in force in the People's Republic of China. In this connection, since the Basic Law of the Hong Kong Special Administrative Region (SAR) is a part of the laws of China, the power to interpret its provisions should naturally be vested in the NPCSC. However, as the SAR was set up in accordance with the principles of "one country, two systems" and "a high degree of autonomy", Article 158 of the Basic Law has also clearly provided that the NPCSC shall authorize the courts of the SAR to interpret on their own, in adjudicating cases, the provisions of the Basic Law which are within the limits of the autonomy of the SAR. As regards the question of whether the NPCSC is not authorized to or will not interpret any of the provisions which are within the limits of the autonomy of the SAR even when the courts of the SAR are not adjudicating cases, the Basic Law has not given any specific account in this connection. However, bearing in mind that Article 158 of the Basic Law has clearly stipulated that the power of interpretation shall be vested in the NPCSC, and that other parts of this provision have not obviously pointed to any control over such interpretation power on the part of the NPCSC, we cannot restrict the NPCSC, under any circumstances, from exercising its constitutional right to interpret the provisions of the Basic Law which are within the limits of the autonomy of the SAR.
The legal profession has expressed a divergence of opinion in respect of the issue. We outsiders of the profession have all listened to the views expressed by both of the two camps, and the views are by no means one-sided. If we consider the views of the Bar Association authoritative, are the views of Professor Peter WESLEY-SMITH who teaches Constitutional Law at the University of Hong Kong not authoritative enough? Is the Law Society not authoritative enough, or are we saying that professor Albert CHEN not authoritative enough? After taking all these into consideration, we cannot agree with the motion moved by Mr Albert HO.
Madam President, just now quite a number of Honourable Members have cited the right of abode issue of those mainland children born to Hong Kong residents as an example in support of the argument of Mr Albert HO's motion. However, the Liberal Party does not think the issue serves as a very good example in this regard. This is because while Article 24 of the Basic Law is incorporated under Chapter III: Fundamental Rights and Duties of the Residents, the implementation and enforcement of para 2(3) of the Article will involve mainland citizens. As such, the decision of the Chief Executive to request the NPCSC to interpret Article 24 para 2(3) should not be regarded as a breach of the principle of "one country, two systems" or "a high degree of autonomy".
Actually, in debating the government motion last week, we have already made it very clearly that the way the CFA has interpreted the provisions concerned would give rise to a population problem which Hong Kong will not be able to sustain, and sooner or later the community will just collapse if the problem remain unresolved. Regrettably, we cannot see any possibility that Hong Kong could resolve the problem on its own. In this connection, although amending the Basic Law should be an alternative more easily understandable and acceptable to both Hong Kong and the international community, the procedure involved is very complicated while the entire process would be very time consuming owing to the significance of constitutional amendments. What is more, since three fourths of the deputies of the SAR to the National People's Congress have already indicated that they would not support the proposal to amend the Basic Law, there would not be any chance for the proposal to be put forward. That being the case, should we just let things drag on like this? What can we do to resolve the matter under the circumstances? It is an undeniable fact that the interpretation of the Basic Law by the NPCSC does not have any precedents, and that it will arouse much concern among the people of Hong Kong. Naturally, people will doubt whether this first attempt would mark the beginning of a series of actions by the Central Government to repeal by means of law interpretation the judgments made by the courts of Hong Kong, in particular those judgments which are not in line with the wishes of the SAR Government. I believe the SAR Government should seek to respond to such worries by explaining to the public the circumstances under which the NPCSC will exercise their power of interpretation in the future. In this connection, the Government should formulate reasonable guidelines that are extensively acceptable to the people of Hong Kong, with a view to setting up a specific mechanism in this respect, thereby dispelling the fear of the public.
It has been referred to by the Honourable Miss Emily LAU just now that actions should not be taken in the absence of any procedure, but is it really the way how things are being dealt with? Even in dealing with the business of this Council, many a time, not even in the Rules of Procedure of the Legislative Council could we find any procedure to cater to each and every situation involved. If any unprecedented situation should take place, decisions will be made to resolve the matters involved. If any unprecedented situation should take place, decisions will have to be made to resolve the matters involved. As regards the question of how we should consider the matter in later times, I suppose that should be dealt with in the future.
On behalf of the Liberal Party, Madam President, I oppose the motion moved by Mr Albert HO.
MR CHEUNG MAN-KWONG (in Cantonese): Madam President, after the incident regarding the CFA and the decision of the Government of the Special Administrative Region (SAR) to request the Standing Committee of the National People's Congress (NPCSC) to interpret the Basic Law, I cannot but tell myself in distress that: the Basic Law is a fraud, the principle of "a high degree of autonomy" is also a fraud. In the past, both the Democratic Party and many of our friends did have some illusions about the democracy as promised in the Basic Law; and since it had been said that the legislature would be constituted by election, we had thought we were going to have a one-person-one-vote general election. Before long we were all disillusioned, because the reality did not turn out to be what we had wished.
Until today, I noted we were of the belief that the pace of democratic development should be an issue of internal conflict which we could debate on, for at least the people of Hong Kong have been sharing a common view regarding the rule of law, that is, we have all along thought that the common law in force in Hong Kong would remain to be our independent judicial system, and that Article 8 of the Basic Law had also promised us that this system would be implemented after the reunification. But now I know our belief was but another illusion, for according to Article 158 of the Basic Law, the interpretation of the Basic Law shall be vested in the NPC, and since interpreting a law is also a law making process, it then follows that the laws of the Mainland could interfere in our Basic Law, and that the NPC could exercise its power of interpretation to interfere in both the independence and the power of final adjudication of our judiciary. So, we have once again been deceived; firstly on democracy, and secondly, on the rule of law.
However, it is the "high degree of autonomy" that has been deceived and suffered the damage. On this occasion, with the interpretation of the Basic Law by the NPC, the "high degree of autonomy" is being smashed, and the people of Hong Kong have deceived for yet another time. We have thought that Article 24 of the Basic Law, being part of the chapter on the Fundamental Rights and Duties of the Residents, should be within the limits of the autonomy of the Hong Kong. But it turns out that all provisions under the Basic Law, whether they are within the limits of the autonomy of the SAR, or concerning the relationship between the Central Authorities and the SAR, the NPCSC invariably has the power to interpret them. In the circumstances, we cannot but draw the conclusion that: on top of our laws there are always other laws; over our supreme power, lies another stronger power. There are continental laws over our common law, and the NPCSC is also over and above our CFA.
Yesterday, some pro-Central Government people said it should be admitted that to the power of interpretation of the NPCSC is a "Mount Five Fingers" to Hong Kong's "high degree of autonomy". Once in the "Mount Five Fingers", even if you were the Monkey King, you could but somersault 108 000 miles away and wee out there, you would still have to be tied down in the "Mount Five Fingers" for 500 years. Although the Monkey King was able to escape eventually, it was still constrained by the "Incantation of the Golden Hoop"; and to the people of Hong Kong, the "Incantation of the Golden Hoop" is the power of interpretation of the NPCSC. So, we have been deceived. We should have been alerted to the "Mount Five Fingers" effect overshadowing our "high degree of autonomy", our power of final adjudication, as well as the implementation of the principle of "one country, two systems" in Hong Kong when the Basic Law was still in the drafting stage. Should we have been informed of the "Mount Five Fingers" effect earlier, we would be able to think about it carefully before accepting the Basic Law. But we have been kept in the dark all along, it is not until today that we have learned about the "Mount Five Fingers" and the "Incantation of the Golden Hoop". This is unfair to the people of Hong Kong, and we have been deceived.
That being the case, I should like to raise yet another more alarming issue, Article 23 of the Basic Law. Just now the Honourable Miss Emily LAU said that she was not sure whether Article 23 of the Basic Law should be considered the affairs of the Central Authorities or that of Hong Kong, and whether it should be within the limits of the autonomy of the SAR or within the ambits of the Central Authorities. I could clearly say to Miss Emily LAU that, provided I have not got it wrong, Article 23 should be related to the affairs of both the Central Authorities and the SAR. In other words, the Central Authorities shall have the power to interpret the provision concerned. Let us take a look at the Basic Law, under which chapter has Article 23 been set out? Article 23 has been incorporated into the Basic Law immediately after Article 22 under Chapter II: Relationship Between the Central Authorities and the Hong Kong Special Administrative Region. Since the Central Authorities have the power to interpret Article 22 of the Basic Law, why should they not have the power to interpret Article 23 as well? If the Central Authorities should have the power to interpret Article 23, why then should they not have the power to interpret the meaning of subversion in the light of their own understanding? If the Central Authorities should adopt the socialist approach or the concepts of continental law to define the meaning of subversion, people would be prosecuted for what they have said. Should that be the case, how could we claim ours is the common law system? So, my Honourable colleagues, please take a look at how the law on National Flag has been drafted and how are judgments made in the light of its provisions.
While Article 23 of the Basic Law has empowered the SAR to enact laws on its own, such power should by no means be mistaken for autonomy in law making. According to Article 17 of the Basic Law, if we should enact laws autonomously, the Central Authorities may return any law which they consider not in conformity with the provisions of the Basic Law regarding affairs within the responsibility of the Central Authorities or regarding the relationship between the Central Authorities and the SAR; or alternatively, they may exercise the power under Article 158 of the Basic Law and make an interpretation of the provisions concerned. And mind you, making an interpretation of the law is no different from law making. So you have heard me talking a lot about Hong Kong being repressed by the "Mount Five Fingers", but my dear friends, do not think that the Central Authorities have won a victory. As a matter of fact, what has strangled Hong Kong's "high degree of autonomy" today will serve to strangle the Mainland's effort to unify with Taiwan in a peaceful manner tomorrow. Seeing the currently prevailing "Mount Five Fingers" effect overshadowing Hong Kong, Taiwan would naturally turn further and further away from the Mainland for fear of sharing the same fate as ours. The Mainland had intended to establish Hong Kong as model to entice Taiwan, but it turned out that the experience of Hong Kong has driven Taiwan even further away. It is indeed the height of folly to kill the goose that lays the golden eggs. In this connection, I could say that exerting a "Mount Five Fingers" effect is the greatest mistake mainland China has ever made in terms of her major decisions, since it has also ushered Taiwan away while crushing Hong Kong. What is more, the SAR Government has actually asked for this "Mount Five Fingers" effect and obtained endorsement from the Central Authorities, and there can be no greater folly than this. Thank you, Madam President.
MR ANDREW CHENG (in Cantonese): Madam President, the Chief Executive has invoked Articles 43 and 48 to clarify that he is accountable to the Central Government and the Hong Kong Special Administrative Region (SAR), and that he is responsible for the implementation of the Basic Law. But how could these two Articles be applied as a legal support for requesting the Standing Committee of the National People's Congress (NPCSC) to interpret the Basic Law? Moreover, is this kind of application in line with the original legislative intent?
The NPC is fundamentally a mechanism for electing leaders for the nation and for passing laws. It is not established for law interpretation purposes. According to the SAR Government, the NPCSC has only exercised its power of interpretation on only eight occasions so far, and the Government has quoted this to imply that the NPCSC will not casually exercise its power of interpretation of the Basic Law. Although this argument of the Government's might sound convincing, I should like to point out that the number of times the NPCSC has exercised its interpretation power has nothing to do with Hong Kong, and that it is not logical to conclude on the basis of these eight occasions that the NPCSC will restrain itself.
Madam President, even if the Chief Executive could draw conclusions in such a manner, will his power to request the NPCSC to interpret the Basic Law be put under any form of restraint?
According to Miss Elsie LEUNG, the Secretary for Justice, it would be very difficult to set up a mechanism for stipulating the situations under which the Government could request the NPCSC to exercise its power of interpretation; after all, the establishment of a mechanism for restricting the request for an interpretation will in effect impose more constraint on the power of the Chief Executive. According to the Constitution of the People's Republic of China and the Basic Law, the power of interpretation vested in the NPCSC is not subject to any limitation; as such, it is not possible for the SAR to stipulate the situations under which the NPCSC could exercise its power of interpretation. Will the manner in which this power of interpretation is being handled not serve to arouse the concern that "one man may steal a horse while another may not even look over a hedge"?
Madam President, the request for the interpretation of the NPCSC on Basic Law is tantamount to an opposition raised by the community to the judgment made by the CFA; hence, it will inevitably cast a definite impact on the image of the CFA. In addition, asking the NPC to interpret the provisions of the Basic Law relating to the limits of the autonomy of Hong Kong will have far-reaching effects on Hong Kong's autonomy. While the SAR Government could request the NPCSC to interpret the Basic Law, the Basic Law has not provided for any specific procedure, mechanism or guidelines to restrict the situations under which the Government could request the NPCSC to exercise its power of interpretation.
If the SAR Government is to bolster the confidence of the people of Hong Kong in "one country, two systems" and "a high degree of autonomy" for Hong Kong, it should not arbitrarily request the NPC or the NPCSC to exercise their powers to interpret the Basic Law. On the contrary, the Government should formulate the procedure for amending the Basic Law in the light of the provisions under Article 159 of the Basic Law, thereby stipulating the situations under which the NPCSC should be requested to interpret the Basic Law provisions.
However, it is regrettable that in seeking to resolve quickly the problems relating to an influx of mainland children born to Hong Kong residents, the Government has failed to set a good precedent in this respect. At present, it is upon the basis of its own assessment of public opinion that the Government has decided to request the State Council to approach the NPCSC to interpret the Basic Law.
When this Council was debating the Government Motion in this connection, Honourable Members who were in support of the motion have also laid emphasis on public opinion in making their speeches. As a matter of fact, public opinion is indeed in support of the decision of the SAR Government. However, should the judicial independence of a community which uphold the rule of law be influenced by public opinion? This is exactly where the crux of the problem lies.
If the judgment made by the Justices could be easily replaced with public opinion, then the people's courts emerging after the French Revolution should be considered proper. At that time, those people who had been suffering before the revolution all gathered at the court where the nobles would be summoned one after another; after the noble had been charged of his or her wrong doings before the revolution, the judge would then asked the people if they would want to send him or her to the guillotine, as the people yelled out and pointed their thumbs down, the nobles were one by one sent to the guillotine.
Even in the Mainland where the rule of law is not upheld to the full, it was only during the cultural revolution that the "public security organs" have been smashed and replaced by the "dictatorship of the people". Except for the cultural revolution during which trials were conducted in a manner similar to that of the people's courts emerged after the French Revolution, the Mainland has for most of the time been able to keep its judicial independence free from the interference of public opinion, albeit there is still the manipulation by the Party behind the scene.
Madam President, what the SAR Government is now trying to do is to dissimilate the community and make use of public opinion to support its own policy.
For a society which upholds the rule of law to maintain its stability, not only should its judiciary remain independent of its executive, its legislature, as well as public opinion, it also relies on its judges to enforce the law only in accordance with legal provisions, and without being swayed by public opinion. If the Government should undermine the independence of the judiciary just because it has found favour in public opinion, what would happen if one day public opinion believes it should be time to implement "mass dictatorship" or to have a military government for social stability purposes? Will the Government be willing to oblige then?
Madam President, upon its interpretation by the NPCSC the relevant provisions will become part of the law of Hong Kong, they do not need to be passed by this Council. In other words, there is yet another legislature for Hong Kong other than this Council. What worries us most is that there are yet a great many cases which involve the provisions of the Basic Law, such as the insult to the national flag, the issue of the Certificate of Entitlement and so on, some such litigants are now afraid that they will be facing the same fate.
Certainly, the NPC is the highest level of government in the Mainland, it should have every right to exercise its power. However, the problem is not that the NPC has indicated its intention to make laws for Hong Kong, but that the SAR Government has sought to request the NPCSC to legislate for Hong Kong by way of law interpretation. The two are distinctly different. Despite the fact that the NPC has authorized it to function with "a high degree of autonomy", the SAR Government has whined to the NPC that: the responsibility is too heavy for me to shoulder! A responsibility too heavy has in effect sent our legal system to the guillotine.
With these remarks, Madam President, I support the motion.
MISS CYD HO (in Cantonese): Madam President, I should like to respond briefly to the remarks made by the Honourable Mrs Selina CHOW regarding the views raised by the Honourable Miss Emily LAU on procedures.
Actually, procedures are very important, and it is for this reason we very regret very much that the Government has chosen not to follow procedures. As referred to by Mrs Selina CHOW just now, there have been many past cases in which this Council was faced with or required to promptly resolve matters that had no precedents, and that sometimes the Council just could not find any procedure to follow, not even in the Rules of Procedure of the Legislative Council. However, I should like to point out that in the recent two weeks there have been many cases in which Honourable Members and even the Government have sought to move a motion without notice, thereby necessitating other Members to withdraw the motion they had proposed. These were very exceptional cases, but so far the rights of all parties concerned have been taken care of. As regards the unexpected matters brought up during the House Committee meetings, we have also been able to reach a consensus right at the meetings, vote on the matters concerned, or refer the matters to the relevant panels for follow-up actions. Since the Chairman of the House Committee is elected by all Members of this Council under a one-person-one vote system, and even you, our Honourable Madam President, on whom the ultimate decision making power would rest, is also elected in the same manner, then if we were unable to handle certain matters in accordance with set procedures, we would at least be resolving the matters by authorizing one of us to exercise the a ruling power under a democratic political system.
Although within this Council democratic spirit could be implemented, the same cannot be realized in the Special Administrative Region, for the incumbent Chief Executive was not elected by everyone of us here. Hence, if the Chief Executive should act not in accordance with the procedures concerned, intense negative effects will inevitably be brought to the future of Hong Kong, and this is something which our community cannot afford to sustain.
Thank you, Madam President.
MR TAM YIU-CHUNG (in Cantonese): Madam President, last week this Council has passed by a huge margin in favour of the motion moved by the Government of the Special Administrative Region (SAR) requesting the State Council to approach the Standing Committee of the National People's Congress (NPCSC) for interpretation of the provisions of the Basic Law in relation to the right of abode (ROA) of mainland children born to Hong Kong residents, in order to confirming the legislative intent of the provisions concerned. Some people opine that requesting the NPCSC to interpret the Basic Law is tantamount to abandoning the "high degree of autonomy" that the SAR has been enjoying and damaging the rule of law. I could not agree with any such view. It has been set out clearly under Article 158 of the Basic Law that the power of interpretation of the Basic Law should be vested in the NPCSC; as such, the practice of seeking from the NPCSC its interpretation of the provisions concerned is a part of both the constitutional system and the rule of law implemented in Hong Kong. According to Article 2 of the Basic Law, the National People's Congress authorizes the Hong Kong Special Administrative Region to exercise a high degree of autonomy. In other words, while the right of Hong Kong to enjoy "a high degree of autonomy" is provided for by the Basic Law, the interpretation of the Basic Law is also a part of the Basic Law itself. That being the case, how could the practice of seeking an interpretation of the relevant provisions be doing any harm to Hong Kong's right to enjoy "a high degree of autonomy"?
Will the power of interpretation of the Basic Law held by the NPCSC pose any threat to the judicial independence and the power of final adjudication of the SAR? The answer is very obvious — No, it will not. Firstly, it is provided clearly under the Constitution of China that the interpretation of the law of China is the responsibility of the NPCSC, as the Basic Law is a part of the basic legislation under the Constitution, the power to interpret its provisions should naturally be vested in the NPCSC as provided under Article 67 of the Constitution. Secondly, the Basic Law is a piece of national legislation enacted by the National People's Congress, in order to ensure the uniform interpretation and implementation of its provisions throughout the entire nation, the power of interpretation of the Basic Law should be vested in the Central Authority. What is more, the interpretation of the Basic Law by the NPCSC will not affect the Court of Final Appeal in terms of the power of final adjudication it has in judging the various cases.
It has been set out under the "Standing Committee of the National People's Congress's Resolution Concerning the enhancement of Law Interpretation" (1981) that: (1) The further definition or supplementary specification of any piece of legislation or the provisions under it shall be provided by the NPCSC by way of law interpretation or promulgation of orders. (2) The interpretation of any specific laws and orders applicable by the courts in adjudicating cases shall be the responsibility of the Supreme People's Court. The interpretation of any law by the NPCSC shall be confined to the scope and content of the legal provisions, the adjudication of any specific cases will not be involved; as such, the independence of the judiciary could be safeguarded. That being the case, how could one say that the interpretation of the Basic Law by the NPCSC would undermine the judicial independence of the SAR?
Those who are opposed to the interpretation of the Basic Law by the NPCSC have in fact failed to see the need for the continental law system to integrate with the common law system under the premise of "one country, two systems". These people have started advocating the idea of "interpretation will undermine autonomy" as early as when the drafting of the Basic Law first commenced, more than a dozen years have past and they are still insisting that the power of interpretation of any laws shall be vested in the courts in common law jurisdictions. However, I should like to remind them that vesting the power of law interpretation in the courts is not the only available means among common law jurisdictions, since there are many countries in this world which have vested such power in their legislatures.
Madam President, with your permission, I should like to conclude my speech with a prose I have adapted from Mr XU Zhimo's verse "Ou ran":
Ye who are familiar with the common law system,
When coming across law books continental one of these days —
May ye not be not angry or dismay —
just let time help the shadows to fade.
On the path of reunification the two legal systems meet,
As for rationale, you have yours, and I have mine:
Much as you can remember; I cannot forget,
The blasts during the encounters that we had.
With these remarks, I oppose the motion.
MR FUNG CHI-KIN (in Cantonese): Madam President, today's debate was originally conducted in a pleasant and composed atmosphere. But during the course, the Honourable Miss Emily LAU and the Honourable CHEUNG Man-kwong were a bit agitated, as they worried about how Article 23 of the Basic Law would be interpreted.
Before the start of this debate, the President has explained why there is such a debate again. In fact, I wonder why the Honourable Albert HO has chosen not to withdraw his motion. Of course, I think they are really terrific for they know how to play with the Agenda and the scope of debate so that they can express their views again. But, as a matter of fact, they do not have any fresh arguments.
I still remember last time, in this Chamber, Members from the Democratic Party wore their "uniforms" ......
PRESIDENT (in Cantonese): Mr Martin LEE, what is the matter?
MR MARTIN LEE (in Cantonese): A point of elucidation. How did he describe ......
PRESIDENT (in Cantonese): Mr LEE, please wait. If it is a point of elucidation, I will need to ask Mr FUNG Chi-kin whether or not he is willing to be interrupted. Mr FUNG, would you like to continue with your speech or let Mr LEE elucidate?
MR FUNG CHI-KIN (in Cantonese): I would like to continue with my speech.
PRESIDENT (in Cantonese): Then I will ask Mr LEE to make his elucidation after you have finished your speech.
MR FUNG CHI-KIN (in Cantonese): Thank you, Madam President. I still remember in this Chamber last time, Members from the Democratic Party wore their "uniforms", or perhaps could be described as "costumes", and started hurling abuses by saying that "confidence is dead". After finding their request for suspending the debate was not acceded to, they left the Chamber together. This shows that they did not in the least respect the Council and were not responsible to their voters at all. In addition, as the minority, they were reluctant to obey the majority and abide by the decision made by this Council. It seems that they would not admit defeat and holding only those cards to their advantage! They posed like they were the embodiment of the truth and the embodiment of the rule of law. Mr Martin LEE said he did think of fasting but finally he had not done so because he was afraid of death, and because he was afraid many people would then be mad with joy once the died. I personally would not feel joyous for it would be very difficult to find such a rigid image in this Council.
Madam President, I am neither a lawyer, nor barrister nor legal expert. Of course, I am not qualified to take part in many debates involving legal arguments. But I do not agree to the practice of certain people who make use of their capacity as Members and of the various meetings held by this Council to repeat their arguments once and again. It seems that if we do not act according to their divine instruction, the sky will collapse and the Special Administrative Region will have no future, to the extent that even the reunification with Taiwan will be affected too. Such a behaviour, which is not unworthy of compliments, has wasted taxpayers' money and the time and energy of other Members. I think this should come under solemn criticism.
Madam President, from my personal point of view, the reason behind the motion moved today is actually very simple and, that is, some people still have no idea of what the so-called "one country, two systems" is. In their minds, they have only "two systems", but no "one country". It really surprised me that a Member said to insert Article 158 para 1 in the Basic Law was a fraud. Can the Basic Law, written in such a solemn manner, be a fraud? Can it be a fraud for the National People's Congress to have the power to interpret the Basic Law? It is really regrettable that the Member I mentioned is even a veteran member in this Council. There were also some people who tried to twist the meaning by interpreting "a high degree of autonomy" as "absolute autonomy" in an arbitrary manner. How can the "scope of autonomy" be detached or separated in such a simple manner? In my view, they will perhaps proclaim "independence" real soon.
Madam President, there is no precedence for "one country, two systems". It has been less than two years since its implementation. Reaching consensus and setting examples through the handling of some important cases best reflect how we can implement and uphold "a high degree of autonomy" in precise terms. Even the Court of Final Appeal has no query with respect to the power of the Standing Committee of the National People's Congress in interpreting the Basic Law and will see it as a basis. Therefore, I would like to urge Honourable Members to spend more time to go through the whole set of Basic Law and relevant Annexes seriously in order not to disappoint members of the public and voters in Hong Kong. Moreover, they should, in accordance with the spirit of "one country, two systems", "Hong Kong people ruling Hong Kong" and "high degree of autonomy", deal with the affairs of the Hong Kong Special Administrative Region properly in order to revive our economy without delay. Nothing could be more meaningful than this! Nothing could be more accountable to our voters!
Madam President, when President JIANG Zemin met with the Chief Executive designate of the Macau Special Administrative Region, Mr Edmund HO, he said: "'One country, two systems' shall be the long-term policy of our nation. We must act strictly in accordance with the Basic Law and will definitely not intervene in affairs under the jurisdiction of the autonomy of the Special Administrative Region. At the same time, the Chief Executive of the Special Administrative Region shall be accountable to the Central People's Government. If the Chief Executive has any problems which require assistance from the Central, the Central will definitely give full support." I would like to give Members of the Democratic Party this piece of advice: As you have lost much popular support this time, why do you not "kiss the dust" readily? Why do you still cling to this entanglement?
With these remarks, Madam President, I oppose the motion.
PRESIDENT (in Cantonese): Mr Martin LEE, I understand that you want to raise a point of elucidation. But I want to remind you that according to the Rules of Procedure, you can only elucidate the part you just delivered which has been misunderstood.
MR MARTIN LEE (in Cantonese): After listening to such a terrific speech delivered by Mr FUNG, I think there is no need for me to elucidate anymore.
MR JAMES TO (in Cantonese): Madam President, I would like to ask you to make a ruling. This is because, just now, Mr FUNG said that some Members played with the rules. I wonder if the President could make a ruling on this statement. As a matter of fact, the motion was approved by the President but now someone has "jumped the queue". Has the President felt that someone was playing with the rules? This accusation is actually quite substantial and severe. Which Member should be standing in the front? Could the President provide some information if there is any Member who does not know who should be standing in the front? Which Member has "jumped the queue"?
PRESIDENT (in Cantonese): Mr James TO, as President, I will not intervene in the expression of views by any Members under normal circumstances. I note that Mr Albert HO still has 45 seconds to make his reply. I think Mr HO will reply in due course. But if he chooses not to do so, I believe Members can see from the information how I gave my consent to Mr HO for him to move the motion. I think we should not waste Members' time again.
Members should be responsible for what they said. There is no need for the President to make a ruling. It is only when Members raise a point of order then I will have to make a ruling.
Does any Member wish to speak?
MR SZETO WAH (in Cantonese): Madam President, last Wednesday (19 May 1999), in this Chamber, we saw some people trampling on the Basic Law and subsequently turning it into a soft dough of flour, which could be "moulded into any shapes", in their hands. We saw that the principle of "one country, two systems" was emasculated, leaving behind only a body with an unsound mind. We saw that a major pillar contributing to Hong Kong's past success ─ the system of judicial independence ─ had contracted an incurable disease and was on the verge of death. We saw someone doing magic tricks by waving a piece of dirty cloth to hide the ugly side and turned 1.67 million into 200 000. In fact, the figure of 1.67 million was also a magic trick. We could also see some people, for the sake of currying favour with those in power, turned into accomplices of those who trampled on the Basic Law, emasculated the concept of "one country, two systems" and destroyed the judicial system.
The ruling made by the Court of Final Appeal (CFA) has brought enormous pressure on the population. This is something that all of us are concerned with and have taken seriously. But in order to solve this problem, we must follow a proper and correct channel, that is to say, we must amend the Basic Law. We must not forsake the proper channel simply because of the time factor, and jeopardizing our greater interests in the long run.
Although Article 158 of the Basic Law has provided that the power of interpretation shall be vested in the Standing Committee of the National People's Congress (NPCSC), the following mechanisms have also been provided for in the Basic Law:
First, the scope of interpretation is limited to provisions concerning affairs which are the responsibility of the Central People's Government, or concerning the relationship between the Central Authorities and the Hong Kong Special Administrative Region (SAR). As for clauses falling within the limits of the autonomy of the SAR, the courts of the SAR have been authorized to interpret on their own.
Second, the CFA should approach the NPCSC to interpret the Basic Law.
Third, judgments previously rendered shall not be affected by the interpretation subsequently made by the NPCSC.
The motion moved by the Government last week has obviously violated the abovementioned mechanisms.
The Government is of the view that Article 158 para 1, that is, the clause providing for the power of interpretation to be vested in the NPCSC, overrides the mechanisms governing other clauses. This approach is indeed extremely shocking and irrational. If we make interpretation according to this logic, this will lead us to horrible results.
If it is true that Article 159 para 1 has made it clear that the power of amendment shall be vested in the NPCSC, does it imply that we can ignore other mechanisms and there is no need to obtain the consent of two thirds of the deputies of Hong Kong to the NPC, two thirds of all the Members of the Legislative Council, and the Chief Executive? Is it that China's established basic policies towards Hong Kong may not be violated?
As for Article 156, it has not given the Chief Executive the power to request the State Council to approach the NPCSC to interpret the Basic Law for this power should originally rest with the CFA. However, the Government invoked Article 43 para 1 of the Basic Law which reads: "The Chief Executive shall be the head of the Hong Kong Special Administrative Region and shall represent the Region." Article 48 para 2 also reads: "The Chief Executive is to be responsible for the implementation of the Basic Law and other laws which, in accordance with the Basic Law, apply in the Hong Kong Special Administrative Region". In doing so, the Chief Executive has succeeded in usurping the power to seek interpretation of the Basic Law. This approach is also extremely dangerous. Can the Chief Executive make a deliberate misinterpretation out of context for the purpose of expanding his power indefinitely? Can he, go beyond the Basic Law just because he represents the Region? Can he, as an enforcer of the law, replace the judges of the courts for the purpose of interpreting the Basic Law indiscriminately and approaching the NPCSC to interpret the Basic Law?
As regards Article 24 of the Basic Law, the NPCSC has authorized the courts of Hong Kong to interpret provisions which are within the limit of the autonomy of Hong Kong. Now the Government has taken its own initiative to request the State Council to approach the NPCSC to make the interpretation, does it mean that the NPC is going to take back the power that was originally conferred on Hong Kong?
Yesterday, someone even suggested the NPCSC should interpret the Basic Law in a comprehensive manner again. This is indeed ridiculous. Does it mean that the Basic Law has to be rewritten and that the existing Basic Law can be repealed?
In terms of the style of writing, Article 24 para 2 of the Basic Law is different from its corresponding provision contained in the Basic Law for Macau. This has obviously reflected that there is a difference in legislative intent. If they are the same, why were they not written in the same manner? In order to change different provisions into similar provisions, we should make amendments through a correct and proper channel, not through interpretation. It is impossible for us to add some expressions, which were not originally in existence, into the Basic Law by way of interpretation. Otherwise, the power of interpretation will be replaced by the power of amendment. Replacement in such a manner will subsequently turn the Basic Law into a pack of waste papers.
With these remarks, Madam President, I support the motion.
THE PRESIDENT'S DEPUTY, DR LEONG CHE-HUNG, took the Chair.
MR JAMES TO (in Cantonese): Madam President, the observations I am going to give are very fragmented, but still I want to put them on record. Originally, I intended to read out all the information I have on hand, but it is impossible for me to do so in seven minutes. I only hope, as time goes by, people can see this version from the Record of Proceedings and know that Prof Albert CHEN did explain in great detail in page A24 of the HK Economic Times dated 5 May, from the angle of politics and of jurisprudence, as to why the Central Authorities or the Standing Committee of the National People's Congress (NPCSC) should not interpret the provision of Article 24 of the Basic Law with respect to autonomy. But I am not going to repeat the arguments here. Of course, Prof Albert CHEN said he felt something which was regarded to be wrong yesterday might turn out to be right today and that he would adjust to changes based on good reasons. I only want to say that I agree with all the arguments he put forward in the article, and I want to make a record here. He can surely adjust to changes but I think a major and significant theoretical basis is enshrined in the arguments he put forward in the article, as well as in his reasoning and rational thinking.
The second point I want to raise is, earlier on, the Honourable CHEUNG Man-kwong has lightly touched upon the problem pertaining to Article 23 of the Basic Law. Perhaps let me elaborate it in greater detail. In a Panel meeting, a government official did make the following remarks in explaining Article 23 of the Basic Law: The NPCSC is not allowed to interpret the laws enacted by the legislature as referred to in the provision of Article 23 of the Basic Law with respect to subversion for it can only interpret the Basic Law, not ordinary legislation. If we develop from this viewpoint and cite the right of abode as an example, we can in fact see that the NPCSC can, through interpreting Article 22 of the Basic Law, replace, reduce, twist and even alter the rights conferred by the provision of Article 24 of the Basic Law with respect to autonomy. According to the same logic, therefore, there is no need for the NPCSC to interpret in future the provisions concerning subversion that the Legislative Council might choose to enact, that is to say, some local legislation. However, through interpreting the provisions of Articles 23 and 39 of the Basic Law with respect to conventions for upholding human rights, the NPCSC can restrict the relevant rights of the people of Hong Kong. It can also, in a disguised and indirect form, impose the concept of subversion as perceived and implemented in the Mainland on the laws of Hong Kong. This can definitely be achieved according to the same reasoning. In other words, this can be achieved according to the logic and mechanism of the laws. Therefore, I hope the Government can, in its reply, give response in this respect.
The third point is very simple. Just now, when the Honourable FUNG Chi-kin mentioned Taiwan, it seemed to be a very remote case and was a bit exaggerated. He then went on to say that, in a meeting with Mr Edmund HO, the Chief Executive-designate of the Macau Special Administrative Region, President JIANG Zemin also stressed that "one country, two systems" would surely be continued because the Central Authorities had shown great determination to do that. But it is really ironical that when he was making that remark, the Central Authorities proposed to interpret the provisions of the laws with respect to autonomy here in Hong Kong shortly afterwards. This is, in my opinion, a big irony. Even if he has said it 100 times and no matter where he said that, or he can even say that it is the established policy of the country that the "high degree of autonomy" of the Special Administrative Region will not be intervened and so on, but what does " a high degree of autonomy" embrace? It should embrace judicial, administrative and legislative autonomy. As far as autonomy relating to these few aspects is concerned, judicial autonomy will face interpretation by the Central Authorities very soon. This has something to do with Article 158 of the Basic Law. Perhaps l should put it in a more technical manner: Article 158 para 2 empowers the courts of the Special Administrative Region to interpret the provisions which are within the limits of the autonomy of the Region. However, it is stated clearly in Article 158 para 3 that for provisions which are outside the limits of the autonomy of the Region, the courts should, before the Court of Final Appeal makes its final judgments, seek an interpretation of the relevant provisions from the NPCSC for fearing that the Region might make a wrong judgment. In other words, if we compare Article 158 para 2 with Article 158 para 3, we can naturally come to a logical deduction ─ such a request mechanism was put in place for there is a fear that the Region might interpret wrongly because Article 158 para 3 is not within the limits of the autonomy of the Region. As regarding Article 158 para 2, just as many of my colleagues said, the Central Authorities, after conferring the rights to the Region, has never said that it cannot provide interpretation again. The major point rather lies in that the Central Authorities are not afraid that the Region will make a wrong judgment, even if the Region makes a wrong judgment, it has been left do so. The only thing that matters is that the Region should not seek interpretation from the Central Authorities even if it has made a wrong judgment for the affairs are beyond the limits of autonomy. So far, if we judge from the angle of politics, the Basic Law, in addition to being a set of legal provisions, should be taken as provisions for unification that can provide stability and boost confidence. More importantly, as repeatedly stressed by Chinese leaders, it can demonstrate to Taiwan that it is, in itself, an executive mechanism that can put a "high degree of autonomy" into practice.
I can conjure up a simple picture that the people of Taiwan have a greater bargaining power than the people of Hong Kong. This is because Taiwan is already an entity by international standards. Even Chinese leaders find it impossible to deny this. It is of little importance that Taiwan has not proclaimed what mode it will model on because we all know it very well. If Hong Kong is said to have power to exercise autonomy, but still the NPC in approached for interpretation once and again in order to narrow down, reduce or restrict the rights of the people of Hong Kong, then how many provisions should be added and how big the assurance should be given in order to make the people in Taiwan believe that they will be given a "higher degree of autonomy" than the people of Hong Kong? I am afraid our leaders must consider this point very seriously.
MR SIN CHUNG-KAI (in Cantonese): Mr Deputy, I am sorry I have something to do just now, so I could not come in the Chamber in time.
Mr Deputy, today, I will focus on discussion of issues pertaining to the rule of law and conducting trade and business. So far, what are the factors that have contributed to Hong Kong's success as an international financial centre and a commercial centre? After the setting up of the Special Administrative Region, the Chief Executive pointed out in his first policy address that: "Hong Kong's development strategy will be based on two principles, a free market economy and a prudent fiscal policy. We are also committed to maintaining a sound legal system." The Financial Secretary, Mr Donald TSANG, has also frequently mentioned the four pillars contributing to Hong Kong's success, namely, free flow of information and freedom of speech, an environment for fair competition, maintenance of the rule of law by an independent judiciary and, finally, a prudent fiscal policy.
All these elements, which had contributed to Hong Kong's success, were not gained overnight. Rather, it has taken a long time for them to come into being. Unfortunately, the pillars are now being slowly eaten up by the "irregular card playing" policies adopted by the Government. Since July 1997, the Government has committed a series of mistakes in implementing its economic policy. The Government's massive intervention in the market has seriously undermined the principle of free economy. The fact that the Government decided to halt land sales for nine months and grant the Cyperport plan to the Pacific Century Group in private has seriously breached the principle of fair competition. Early this year, the Secretary for Justice, Miss Elsie LEUNG, explained why she decided not to prosecute Ms Sally AW of the Sing Tao Group and she was subsequently accused of siding with the interests of consortia, thereby seriously jeopardizing the reputation of the local judicial system. Today, the Government is trying to invite the National People's Congress to interpret the Basic Law. Taking a "lose-hit, win-take" approach, the Government is even attempting to override the judgment made by the Court of Final Appeal, thereby ruining the foundation for our judicial independence in a moment. Today, a pillar contributing to Hong Kong's success ─ judicial independence ─ has fallen down. The remaining pillars are also on the verge of collapse. How can we maintain Hong Kong's status as an international trading centre? How can we attract investors from overseas? I am not trying to "scare people". Some objective reports have pointed out that, since 1997, our business environment has begun to go backwards, and it is less attractive than before. Below I will quote some comments made by some important reports on Hong Kong.
The period from mid-1997 to 1998 has witnessed an irresistible Asian financial turmoil, with Hong Kong currency coming under severe attack. With the bursting of Hong Kong's bubble economy, our economy has entered into a period of recession. The quality of our banking system is also affected. In February 1998, Moody's Investors Service lowered the long-term external debt credit rating for public and private institutions in Hong Kong from stable to negative, indicating uncertainty about our capability to repay external institutions. In April the same year, R & I of Japan also announced the decision to lower its rating of Hong Kong's long-term external debt and long-term debts in Hong Kong dollars.
The Government's decision to intervene in the market in August 1998 has badly shaken investors, both local and overseas. Standard and Poor's Corporation, an international rating institution, announced immediately at the end of August that the Hong Kong Government's decision to intervene the market will weaken Hong Kong's fiscal power. As a result, Hong Kong's sovereign rating was lowered be one grade from A+ to A, while our prospect was rated as negative.
In terms of investment environment, the rating of Hong Kong has also dropped. In April 1998, EIU under the Economist Group of Britain indicated after conducting a survey on 60 economies that the transparency of the way the Special Administrative Region Government was administered had dropped since the handover. Moreover, the ways that some sensitive problems were treated had worried international investors. These include, for example, the way that the Secretary, Miss Elsie LEUNG, dealt with the case related to the Hongkong Standard, the endorsement by the Provisional Legislative Council of the granting of exemption for state institutions, including the Hong Kong Branch of the Xinhua News Agency, from legal proceedings and so on. As a result, the rating of Hong Kong's business environment has dropped drastically from the top position from 1993 to 1997 to the ninth position from 1998 to 2002.
Although Hong Kong still managed to occupy the top position in the freedom index published by the Heritage Foundation at the end of 1998, a remark was added to point out that Hong Kong had managed to maintain the top position because the report was finished at the end of June. But if Hong Kong considered intervening in the market, it would lose the top position and would be replaced by Singapore.
In spite of the fact that our neighbouring Asian countries have shown a sign of revival at the beginning of this year, the situation in Hong Kong has not yet seen any improvement. In January 1999, the EIU indicated that Singapore had replaced Hong Kong's top position in terms of best business environment in the Asian Region. The reason was although Hong Kong had seen improvement in the manpower market and infrastructure, its political and objective economic environment had obviously deteriorated.
In March 1999, Standard and Poor's Rating maintained its old credit rating of Hong Kong's sovereign, but Hong Kong's prospect rating still remained negative. In fact, according to the Standard and Poor's Rating, Hong Kong's performance was worse than the three remaining little dragons of Asia. Since the financial turmoil, Singapore and Taiwan have been able to maintain a stable rating in terms of prospect. During the financial turmoil, South Korea's currency rating has been lowered for five times. But in February last year, the rating was lifted and then for the second time in January this year. South Korea's prospect rating was also upgraded from stable to positive.
Hong Kong is an international economic city. Our economy is closely linked with our politics. The Special Administrative Region Government considers that giving emphasis on the principle of "one country" to interpret problems pertaining to the rule of law will have no direct bearing on our economy. But actually, an incomplete rule of law or a collapse of the rule of law will directly affect our economic rating. Such examples can be readily found in Southeast Asian countries. This is where the harm lies. And as a matter of fact, such harm can be measured in terms of real gold and silver for our borrowing power, capital repayment and, more importantly, our economic status will be affected.
Mr Deputy, the abovementioned international institutions' ratings of Hong Kong did serve to send us a warning that the investment environment of Hong Kong has begun to change and the risks of conducting trade and business in Hong Kong are now higher than before. The damage made by the Government to the rule of law will further aggravate overseas investors' worries over Hong Kong. While our neighbouring Asian countries are making unceasing efforts to improve their investment environments, the Special Administrative Region is, surprisingly, trying to destroy its own fortress by smashing the excellent rule-of-law tradition that we have been proud of, thereby casting a shadow on our long-term investment prospect.
MR AMBROSE CHEUNG (in Cantonese): Mr Deputy, when I spoke at our debate on the right of abode in Hong Kong last week, I stated clearly that the Government could actually change the number of people that would come to Hong Kong from 1.67 million to 200 000 through two channels, one, an interpretation by the National People's Congress (NPC) and the other, amending the Basic Law. In fact, the result will be the same in the end. Therefore, I have chosen to support the formal channel of amending the Basic Law and oppose an interpretation which is a shortcut.
Today, I am going to follow up this issue. The Government said on that day that it would follow up two issues. First, the Government pledged to make public the report to be submitted to the State Council. Second, it would establish a mechanism to standardize the ways in which an interpretation of the Basic Law should be sought in future when necessary.
Concerning the first point, the report is not made public yet because the State Council has to be consulted. We hope that we will get the result and some information as soon as possible. Concerning the second point, I hope that the Government will really take follow-up action. In the past few days, it seemed that the Government was gradually shrinking back and it thought that it might not be practical or feasible for a standard or mechanism to be established.
However, as academics have said, regardless of whether a standard will be established, after setting this precedent of seeking an interpretation by the NPC, many constitutional conventions will emerge. First, the nature of the issue we are dealing with is an unbearable blow struck at Hong Kong; second, the Chinese side, the Central Government and the Government of the Special Administrative Region (SAR) may have different views on the legal interpretation arising from the issue; third, the SAR itself may not be able to deal with the heavy blow struck; fourth, we will only seek an interpretation upon the support by a majority of the NPC representatives in Hong Kong; fifth, the Government will only do so after the issue has been discussed, approved and supported by a majority of this Council. We may regard the above as conventions that have appeared. I hope that the Government will really consider establishing a mechanism to standardize what can or cannot be done if similar cases occur in future.
I would also like to discuss another point. In the past two days, Executive Council Members have expressed their views and asked if an "overall review" of the Basic Law should be made. I do not support this and I think it is not possible to us to do so for a few reasons. First, if an "overall review" is made, it will tantamount to allowing the Central Government but not the Court of Final Appeal (CFA) to take over the full powers of interpreting the autonomous affairs of the SAR. Basically, the high degree of autonomy will disappear. I do not think this is feasible as this will be equivalent to our surrender of the high degree of autonomy if we do so. Second, if an interpretation or an "overall review" is required, we have to determine which clauses are controversial and ambiguous. I do not know who should be responsible for determining this. If we ask the Central Government, it will tell us clearly that clear provisions are found in the Basic Law and there is no ambiguity. The Basic Law is a constitution of principles and it is clear and unambiguous. Third, if we consider if the "overall review" concept complies with the conventions regarding the right of abode in Hong Kong, we will find that the concept does not comply. In the absence of precedents or real examples, is there any article that has struck a blow at Hong Kong to the extent that it would fail to bear or handle? Has the SAR and the Central Government given any article different legal interpretations? No. This requirement is not met. Fourth, what are we asking the NPC to interpret? The legislative intent. If we simply consider the provisions from Articles 24, 25, 26, 27, 28 to several articles following Article 30 regarding human rights, freedom of the person and freedom of religious belief, it is basically, from the administrative point of view, to ask the Central Government to state the legislative intent of every single article. To me, this is an unfeasible idea.
On the contrary, if we really want an interpretation, the Government should deal with prudently one article, that is, Article 48(2). The Government has been asking the Central Government to seek an interpretation by the Standing Committee of the NPC (NPCSC) through the State Council by applying Article 48(2) and Article 43, and in conjunction with Article 158 para 1. This is not the usual mechanism for seeking the Central Authorities for an interpretation. Article 48(2) is about something else, but it has now been so extensively interpreted that it is being applied to initiate the request for an interpretation. I think the Government might as well ask the State Council incidentally to request the NPCSC for an interpretation of Article 48(2) and state that this is a feasible channel that the Chief Executive may use. If after such an interpretation is made, it will be legally binding and will avoid further challenge on the interpretation by the Government as well as requesting the CFA to adjudicate in any such cases in future. However, the CFA may adjudicate that it is inappropriate to exercise Article 48(2) and it is not a normal procedure, consequently, the interpretation by the Government may lead to another constitutional dispute.
Finally, Mr Deputy, it is unfeasible for the Government to conduct an "overall review". If an additional article needs interpretation, it should be Article 48(2). Thank you, Mr Deputy.
DEPUTY PRESIDENT (in Cantonese): Does any other Member wish to speak?
(No Member indicated a wish to speak)
SECRETARY FOR JUSTICE (in Cantonese): Mr Deputy, I am very grateful to Honourable Members for the valuable views they expressed. After days of discussions, the Government has in fact made explicit its stance on many issues. I would like to take this opportunity to reply to the questions that some Honourable Members has asked just now.
While I support the principles of "one country, two systems", a high degree of autonomy and judicial independence upheld by Mr HO, I do not accept that they are in any way compromised by a request to the Standing Committee of the National People's Congress (NPCSC) for an interpretation of the Basic Law.
On 19 May 1999, this Council has had a full debate on the interpretation of the Basic Law by the NPCSC and decided "That this Council supports the Chief Executive's decision to request the State Council to approach the NPCSC to interpret Article 22(4) and Article 24(2)(3) of the Basic Law". I am glad to be given an opportunity to explain again why such interpretation of the Basic Law does not depart from the principles of "one country, two systems", a high degree of autonomy and judicial independence.
The Administration is fully committed to upholding those principles. It also accepts that only in very exceptional circumstances should it seek an interpretation of the Basic Law from the NPCSC.
Let me deal first with the request for an NPCSC interpretation. I think that it is widely accepted that Article 22 para 4 of the Basic Law concerns the relationship between the Central Authorities and the Hong Kong Special Administrative Region (SAR). It provides that, for entry into the SAR, people from other parts of China must apply for approval.
The other provision in respect of which an interpretation has been sought is Article 24 para 2(3). This provides that persons of Chinese nationality born outside Hong Kong of those residents listed in categories (1) and (2) of Article 24 para 2 shall be permanent residents of the SAR. Although this provision is within the limits of the autonomy of the SAR, in the context of the current debate about the right of abode of persons born and living in the Mainland, the article clearly impinges on issues that concern the Central Authorities.
Given this fact and, given the circumstances in which the NPCSC has been asked to interpret Article 24 para 2(3) of the Basic Law, an NPCSC interpretation of that article would be appropriate. Let me remind Honourable Members of the circumstances in which the request has been made.
(1) Firstly, there is overwhelming public support for steps to be taken to prevent the influx of possibly 1.67 million people within the next 10 years.
(2) Secondly, the SAR does not have the autonomy to solve the problem itself, unless the Court of Final Appeal (CFA) were prepared, at some unknown future date, to change its interpretation of the two articles in another case.
(3) Thirdly, the SAR must therefore seek the assistance of the Central Authorities, either by way of an amendment to the Basic Law or an interpretation ......
DEPUTY PRESIDENT (in Cantonese): Mr Martin LEE, do you wish to raise a point of order or clarify something?
MR MARTIN LEE: A point of order, Mr Deputy. Is the Secretary for Justice discussing things which should have been said last Wednesday, and, therefore, contrary to the direction of the President?
DEPUTY PRESIDENT (in Cantonese): I will have to listen again to what the Secretary has said in her speech just now. In view of this, I now suspend the meeting.
Council then resumed.
DEPUTY PRESIDENT (in Cantonese): Members, I have listened again to the speech made by the Secretary for Justice just now. I would now like to explain to you subrule (3) of Rule 41 of the Rules of Procedure as follows:
"Except as otherwise provided in Rule 66, it shall be out of order to attempt to reconsider a specific question on which the Council has taken a decision during the session; ......"
Now, I would like to ask the Secretary for Justice, did you attempt to cause the Council to reconsider a specific question on which it had taken a decision during the session, or did you just want to make clarification or respond to what Members had raised in the debate?
SECRETARY FOR JUSTICE (in Cantonese): Mr Deputy, I did not intend to again discuss a specific question on which the Council had taken a decision. However, as several Members have mentioned our request as well as Article 22 para 4 and Article 24 para 2(3) of the Basic Law in their speeches, I therefore hope that Mr Deputy will allow me to continue with my speech.
DEPUTY PRESIDENT (in Cantonese): All right, you were responding to Members' speeches just now. Miss LEUNG, Secretary for Justice, you may continue with your speech, but you should confine its contents to this subject matter.
SECRETARY FOR JUSTICE (in Cantonese): I will be careful. Thank you, Mr Deputy.
...... Whilst this Council may amend any local law to reverse the effects of a court decision, this Council cannot interpret or amend the Basic Law. The SAR Government's request for assistance from the NPCSC does not amount to the Central Authorities interfering unilaterally in Hong Kong's affairs in any way.
(4) Fourthly, having regard to the history behind the two articles, such as the opinion of the Preparatory Committee in 1996, there are good grounds for seeking an interpretation, rather than an amendment, of the Basic Law.
(5) Fifthly, the decision to seek an NPCSC's interpretation has been supported by a majority of Members of this Council.
Some people doubt whether the NPCSC has any power to interpret those provisions of the Basic Law which are within the limits of the autonomy of the SAR. My answer is: It does. Article 158 para 2 empowers the courts of the SAR to interpret on their own the provisions of the Basic Law which are within the limits of the autonomy of the Region and Article 158 para 3 provides that the courts of the Region shall, before making their final judgments which are not appealable, seek an interpretation from the NPCSC of the relevant provisions concerning affairs which are the responsibility of the Central People's Government (CPG) or concerning the relationship between the Central Authorities and the Region. If that is the only delineation of the power of interpretation between the courts of the SAR and the NPCSC, there would be no need for Article 158 para 1 which unequivocally and without any restriction states that the power of interpretation of the Basic Law shall be vested in the NPCSC. As I have previously explained, the power of interpretation of law is vested in the NPCSC by the Constitution of the People's Republic of China (PRC) and this includes the power to clarify, define and supplement the laws, a power which is different from the power of judicial interpretation. Such a power has never been abdicated by the NPCSC, whether it is in respect of matters within or outside the limits of the autonomy of the Region, and such power if exercised, cannot be questioned by the courts of the Region.
In view of all these circumstances, it cannot fairly be said that an NPCSC's interpretation of Article 24 para 2(3) of the Basic Law or any other provisions which are within the limits of the autonomy of the Region would undermine the principles of "one country, two systems", a high degree of autonomy, or judicial independence. Let me explain why.
The principle of "one country, two systems" is a uniquely creative concept which guarantees that Hong Kong's legal, economic and political systems are safeguarded after reunification. With regard to the legal system, continuity in the substance of our laws is provided for in Articles 8 and 18 of the Basic Law; and continuity in our judicial system is provided for in Articles 19 and 81. For almost all purposes, therefore, our legal system operates now in the same way as it did before reunification. However, I say "almost all purposes" because, where the interpretation of any provision in the Basic Law is involved, the Basic Law provides that the NPCSC is the ultimate authority. Since the Basic Law enshrines the concept of "one country, two systems", and also empowers the NPCSC to interpret it, it cannot be said that the exercise of that power is contrary to that concept.
What about our high degree of autonomy? The SAR has been granted a high degree of autonomy so it can decide for itself the principles and policies it will adopt when implementing the Basic Law in areas other than defence and foreign affairs. In relation to the current debate on right of abode, the SAR Government has carefully assessed all the options available and come to the view that accepting up to 1.67 million new immigrants within the next 10 years would 10 years would over-stretch the SAR's resources and create an intolerable burden. There is overwhelming public support in the SAR seeking to avoid the large influx of people. But it does not have the autonomy to implement that policy. Within Hong Kong, only the CFA has the power to change its interpretation of the Basic Law, and clearly this is not an option that can be relied upon. The only other available options are an amendment of the Basic Law or an NPCSC's interpretation of it. If either option is pursued at the request of the SAR, our high degree of autonomy is not undermined.
Finally, there is judicial independence. That is one of the cornerstones of Hong Kong's way of life and must not be undermined. But, as I explained to this Council's House Committee last Tuesday, an NPCSC's interpretation would not interfere with our judges' freedom to decide cases in accordance with the law, and without fear or favour. Just as the courts must abide by any new law or amendment of local laws enacted by this Council, the effect of which may be to reverse an earlier judgment. An NPCSC's interpretation, made in accordance with the Basic Law, would be an authoritative statement of the law which judges would be duty-bound to follow.
I accept that there are deep concerns underlying this motion. But I believe that, if the issues are analysed calmly and carefully, the proposal made last week to request an NPCSC's interpretation will be seen as in the best interests of Hong Kong, and not as undermining the principles referred to in the motion. I urge Members to vote against the motion.
I now wish to respond to the questions raised by several Members. First of all, I would like to point out that an "amendment" is different from an "interpretation". An "amendment" may involve a complete reversal of the original provision; but an "interpretation" can only involve interpreting the meaning of the original provision within its limits without contradicting its original intent.
Miss Emily LAU said that she was not aware of the procedure for interpretation and asked whether there was one. Yes, we do have such a procedure. As I have explained to Members, the Chief Executive is acting in accordance with Articles 43 and 48 para 2 of the Basic Law because he is responsible for affairs of the SAR and accountable to the CPG. As he is responsible for the implementation of the Basic Law, he has therefore submitted a report to the State Council to explain the difficulties he has encountered in implementing the Basic Law.
Under the standing orders of the NPCSC, the State Council may put forward suggestions or introduce bills. After receiving the Chief Executive's report, the State Council will pass it onto the NPCSC who will then decide on whether it should be placed on the agenda. If this item is placed on the agenda, it will be discussed at NPCSC meetings. During this process, the NPCSC will consult its Committee for the Basic Law in accordance with Article 158 para 4. Therefore, such a statutory procedure does exist.
Miss LAU also alleged that we were teaching the NPCSC how to interpret. As a matter of fact, we do not have the power to teach the NPCSC how to interpret the relevant provisions. Firstly, it is not for the SAR Government or the Chief Executive to decide whether the NPCSC will exercise the power of interpretation; Secondly, it is not for the SAR Government to decide the extent of the interpretation; Thirdly, it is not for the SAR Government to decide how the NPCSC will interpret. It is therefore wrong to assume that the NPCSC will interpret the relevant provisions according to our wishes.
Mr Martin LEE questioned the power of the executive authorities to judge whether a ruling was right or wrong and to request the NPCSC to exercise the power of interpretation? I would like to point out to Members that the SAR Government does not have the power to require the NPCSC to interpret, nor does it have the power to decide on the extent of the interpretation and how to interpret. We are of the view that the CFA's ruling contradicts the legislative intent of the relevant provisions. Judging from all the information, we have come to the conclusion that the ruling contradicts the legislative intent of the relevant provisions. We have therefore asked the NPCSC to interpret them. So it is not for the SAR Government to decide whether the CFA has made a mistake or not. The power of interpretation is in the hands of the NPCSC.
Several Members spoke of the possibility of putting in place a mechanism for defining the circumstances under which the Government may request the NPCSC to interpret the Basic Law. I am grateful for their views. However, this is a complicated issue which we have not encountered before. The Government will carefully study this possibility but we have never committed to establishing such a mechanism.
Several Members mentioned Article 23 of the Basic Law. You would probably remember that the CPG has empowered the SAR through Article 23 to enact laws on its own to prohibit any act of treason, sedition, subversion and secession against the country. This is a powerful testament to the "high degree of autonomy" enjoyed by the SAR. Under this Article, national laws and provisions concerning subversion and secession against the country in the People's Republic of China Criminal Law are not applicable in Hong Kong. The SAR's circumstances have been taken into account and the SAR has been given much freedom to legislate on its own. It is therefore wrong to regard this as an act by the NPCSC to interpret laws at will.
Moreover, as I have said just now, the interpretation of law must be done in accordance with its legislative intent, which must not contradict such intent and can only clarify and supplement the laws. The NPCSC does not have the power to interpret legislation enacted by the SAR on its own under Article 23 of the Basic Law and the power to do so entirely rests with local courts. The NPCSC can only interpret the Basic Law but not local laws in Hong Kong.
In conclusion, may I repeat that I fully understand the concerns that underlie this motion. As I have said, the SAR Government will not, save in highly exceptional circumstances, seek such an interpretation.
The whole issue reflects the principle of "one country, two systems": Whilst our Court of Final Appeal is vested with the power of final adjudication in legal proceedings and may interpret the Basic Law in accordance with Article 158 para 2 and para 3 in the legal system applicable to SAR, the NPCSC, being the highest organ of the country ─ the National People's Congress ─ is vested with the power of interpretation of the Basic Law whose interpretation is binding on the SAR courts. Under Article 158 para 1, the NPCSC has the power of final interpretation of the Basic Law. The Basic Law itself provides the interface between the mainland legal system and the Hong Kong legal system. We should have the confidence to allow the two systems to interact according to our "mini-constitution", and the present issue is a vital step in the implementation of "one country, two systems".
THE PRESIDENT resumed the Chair.
PRESIDENT (in Cantonese): Mr Albert HO, you may now reply ...... I am sorry, Mr HO. Mr Andrew WONG has raised his hand to indicate a wish to speak. Are you willing to let him speak first?
MR ALBERT HO (in Cantonese): All right.
MR ANDREW WONG (in Cantonese): Madam President, I may find it difficult to speak today because I have caught a cold, but I hope I am not showing sadness. I would like to say a few words after listening to Mr Gary CHENG's remarks. (It is actually not the first time I heard him making such remarks, he has made such remarks before.) He has made it clear at the very beginning that for provisions under the continental law system, the principles are set out in front, ahead of other provisions, they take priority and are featured by generality. Therefore, it is evident that the Standing Committee of the National People's Congress (NPCSC) has the right of interpretation under Article 158. However, the laws may not be interpreted this way under the common law system.
In respect of Article 158, as I have said, Honourable Members who oppose Mr Albert HO's motion now, and those who supported the Government's motion last Wednesday as well as the Government itself, have made similar interpretation on Article 158, and the courts have almost recognized that the NPCSC has such a right. But to me, according to common sense, the entire Article 158 should be interpreted as the NPCSC has the right of interpretation, but the courts of the SAR has been conferred with the right to interpret the provisions within the limits of autonomy of Hong Kong. This right is not conferred by the NPCSC but under Article 158 para 2 of the Basic Law. Article 158 para 3 confers to the courts of the SAR the right to interpret other provisions, but before making their final judgments, they have to seek an interpretation of the relevant provisions from the NPCSC. These procedures have been expressly stated. Article 158 para 4 further restricts the right of interpretation of the NPCSC, that is, the NPCSC shall consult its Committee for the Basic Law of the SAR before giving an interpretation of the Basic Law. Not a single step should be missed. Therefore, when I heard someone interpret Article 158 this way, I think that Members may have heard lies when we interpreted the provisions at that time, therefore, the whole thing may be a swindle.
I have used the word "swindle" before. In fact, I talked a lot at the special meeting of the House Committee. I did not speak last week and I obeyed the rules. I also obey the rules today and I am speaking on Article 158, not Article 24. Last Wednesday, when I spoke on the motion moved by the Honourable Martin LEE to adjourn the debate on the motion, I only wanted to remind Honourable Members that the House Committee had reached an agreement to ask the Government to move a motion on its preliminary decision in order to give us more time to hold further discussions with the Government and obtain more information. I only wanted to remind Members of that. Later, as I was very astonished that my Honourable colleagues could be so forgetful, and I walked out of this Chamber together with other Members. Consequently, Mr Martin LEE called me a democrat.
Today, we are not discussing the right of abode in Hong Kong as I know that it is very often highly difficult to differentiate between "specific" and "general" matters. Mr Martin LEE was right in raising a point of order. Members can also say that I have broken the rules but Madam President, I suppose you have heard me say very clearly that an amendment is better than an interpretation, and I said at the debate that I was a member of the "amendment school" but not the "interpretation school". I do not want to elaborate on the reasons why I support amendment but not interpretation, I just want to remind Members of the agreement we have reached and how we should tackle the present problem. Nevertheless, the biggest problem is that we are not only tackling the problem of the right of abode in Hong Kong but also that of "one country, two systems". This is where the crux of the problem lies.
If we uphold the belief that whatever comes first should be the principle to be abided by, evidently, the preamble or introduction must be more important than the articles that follow, and Chapter 1 must surely be more important than the other chapters. I have never seen or heard such an interpretation of the laws in Hong Kong and this is not how the international community perceives the legal system of Hong Kong. This is very important, a complete change. I understand that "one country, two systems" is a grand and innovative idea and it involves the interface between two legal systems which is a very difficult task. I can well appreciate that the way of thinking of the "four big defenders of the law" will be different from ours, but we also have different views. Instead of finding an easy way out, we must make concerted efforts to effect a proper interface between the two legal systems. If there is a solution to the problem, although it may take a longer time, why do we not choose that solution? If we think that the time taken will be too long but there is not enough time and we must solve this problem first, as I have said at the special meeting, can we consider a thorough solution that seeks an interpretation before an amendment? Why do we not consider this at all?
Certainly, it would be best if an interpretation of the provision is not made. Even if we interpret Article 158 under the continental law system, if any constitutional convention is to be established, it must be established by the NPCSC. Even though we understand that the NPCSC has such a right, it has to try its best not to exercise that right, even though it is asked by the SAR Government to do so. That is why I feel very sad. I have caught a cold, and I feel the effects both of the cold and of sadness because we ourselves are giving up "a high degree of autonomy" under "one country, two systems". Even if other Members do not want it, I do and I must continue fighting for it.
For sure, I cannot exert any influence on or control the NPCSC but I hope that the NPCSC will have restraint, exercise self-discipline and establish a practice that can really safeguard "one country, two systems" and enable Hong Kong to exercise "a high degree of autonomy" by not exercising its right of interpretation and by willingly promoting an amendment to the relevant provisions. I am not asking anyone to admit a fault or "submit to a failure". Thank you, Madam President.
PRESIDENT (in Cantonese): Mr WONG, please take your seat. I really think that you have caught a cold. After I have listened very attentively to your remarks, I think that you should actually ask to speak when the motion debate began instead of after the Secretary for Justice has replied. Fortunately, Mr Albert HO has not replied and he still has a chance. Mr HO, you have 45 seconds for your reply.
MR ALBERT HO (in Cantonese): Madam President, I will not reply to side issues, but I am most disappointed at the fact that the key point of this motion is: Should the Central Authorities interpret the provisions within the limits of autonomy of the Special Administrative Region (SAR)? I have said that the Basic Law has clearly differentiated between the powers and responsibilities between the Central Authorities and the SAR. I hope to reflect the spirit that the Central Authorities should not and cannot interfere with the limits of autonomy of the SAR.
When replying to my remarks, Honourable colleagues and the Secretary for Justice have not replied to this question. It seems that they do not find this an important point but they think that a more important point is whether or not the Central Authorities has the power of interpretation. They have mixed up the limits of autonomy and the relation between the Central Authorities and the SAR, and this what disappointed me most.
I do not think it is meaningful to talk about "special" things all the time because Hong Kong has actually have many "special" experiences. For example, the Cyberport and the Government's entry into the market. How many more "special" incidents do we want?
In a word, I also do not think it is meaningful to talk about "accidental" because these are definitely not "accidental" incidents. It is such a Legislative Council that would bring about such a Government.
PRESIDENT (in Cantonese): I now put the question to you and that is: That Mr Albert HO's motion be approved. Will those in favour please raise their hands?
(Members raised their hands)
PRESIDENT (in Cantonese): Those against please raise their hands.
(Members raised their hands)
Dr YEUNG Sum rose to claim a division.
PRESIDENT (in Cantonese): Dr YEUNG Sum claimed a division. The division bell will ring for three minutes.
PRESIDENT (in Cantonese): Council shall proceed to vote.
PRESIDENT (in Cantonese): Before I declare that voting shall stop, please check your votes. If there are no queries, voting shall stop and the result will be displayed.
Mr Michael HO, Miss Margaret NG, Mr CHEUNG Man-kwong, Mr Ambrose CHEUNG, Dr LEONG Che-hung, Mr SIN Chung-kai and Mr LAW Chi-kwong voted for the motion.
Mr Kenneth TING, Mr James TIEN, Dr Raymond HO, Mr Eric LI, Mr LEE Kai-ming, Dr LUI Ming-wah, Mrs Selina CHOW, Mr Ronald ARCULLI, Mr HUI Cheung-ching, Mr CHAN Kwok-keung, Mr Bernard CHAN, Mr CHAN Wing-chan, Mrs Sophie LEUNG, Dr Philip WONG, Mr WONG Yung-kan, Mr Howard YOUNG, Mr LAU Wong-fat, Mrs Miriam LAU, Mr FUNG Chi-kin and Dr TANG Siu-tong voted against the motion.
Geographical Constituencies and Election Committee:
Miss Cyd HO, Mr Albert HO, Mr LEE Wing-tat, Mr Martin LEE, Mr Fred LI, Mr James TO, Miss Christine LOH, Mr LEUNG Yiu-chung, Mr Andrew WONG, Dr YEUNG Sum, Mr LAU Chin-shek, Miss Emily LAU, Mr Andrew CHENG and Mr SZETO Wah voted for the motion.
Miss CHAN Yuen-han, Mr Gary CHENG, Mr Jasper TSANG, Mr LAU Kong-wah, Mr TAM Yiu-chung, Mr David CHU, Mr HO Sai-chu, Mr NG Leung-sing, Prof NG Ching-fai, Mr MA Fung-kwok, Mr CHAN Kam-lam, Mr YEUNG Yiu-chung, Mr Ambrose LAU and Miss CHOY So-yuk voted against the motion.
THE PRESIDENT, Mrs Rita FAN, did not cast any vote.
THE PRESIDENT announced that among the Members returned by functional constituencies, 27 were present, seven were in favour of the motion and 20 against it; while among the Members returned by geographical constituencies through direct elections and by the Election Committee, 29 were present, 14 were in favour of the motion and 14 against it. Since the question was not agreed by a majority of each of the two groups of Members present, she therefore declared that the motion was negatived.
PRESIDENT (in Cantonese): Second motion: Promoting extensive use of English.
PROMOTING EXTENSIVE USE OF ENGLISH
MR JAMES TIEN: Madam President, this Chamber used to speak in two languages, English and Chinese, although with many different Chinese accents. But over the past few years, fewer and fewer speak in English as most appeal to their voters who prefer Chinese. Now is the time for us to regain the balance if we wish to remain cosmopolitan. Sometimes, our audiences are not just at home but they are also abroad.
An example of that could be taken from what happened a couple of weeks ago. Then, only Dr the Honourable LEONG Che-hung, the Honourable Martin LEE and myself spoke wholly or in part in English about the bombing of the Chinese Embassy in Yugoslavia. To me, we should not have targeted our messages just at the local people, who were united in their patriotism and who knew what we were about to say. To me, we had to reach the international community, who needed our persuasion to be more balanced, and also to Hong Kong-based western businessmen, who needed our assurance that we would always cherish them as friends.
With almost two years gone as the Special Administrative Region, Hong Kong is paying less and less attention to those whose language is not Chinese, many public events are simply not announced in English and, even when they are, the information is poorly worded, confusing or obscure. Last weekend, the Federation of Civil Service Union held its largest rally ever with more than 10 000 people mobilized. Yet in the demonstration, not a single banner nor word of protest was in English. Most of the foreigners who saw the impressive march just did not know what was going on. There are many such cases that belie our pretension of Hong Kong as a cosmopolitan place.
Madam President, we are living in an international city. Being international is that which pays our rents, buys our food and puts our children through school. This is the reality that we must not ever forget. Our lifeblood is trade and finance. Our outlook is global. Our culture is rooted in both the East and the West. English is the universal language of art, commerce, science and technology. We were able to transform our economy from manufacturing to servicing because we could communicate with the world in English.
Some people may like to forget their colonial past and assert their patriotic pride. But to contribute to China, we have got to use English more often, correctly, and effectively. A few years ago, our Government introduced compulsory mother tongue education. This, some supposed, would also thrill our mainland citizens. But a senior Chinese official told the western media, in a baffled tone, about his surprise that we have forfeited one of our advantages just to be politically correct.
China wants, and needs, Hong Kong to be different from other cities on the Mainland. We are an asset to national reconstruction and renaissance by being the Chinese conduit to the world. Our diminishing such a role would harm national interest, ignore our history and go against our instinct.
English gives us an edge in establishing markets and getting information. This edge shall become even more important as we aspire to be the cyber centre for the region. Today, the state of the art technologies are almost an American preserve. Silicon Valley sets the cutting edge standards. Around 87% of the websites are in English. Software is being written with two languages, the Java language of cyber space and the English language, whether the programmers are in Bangalore, Boston or Beijing. Hong Kong has close to 800 000 web users. The number should surpass a million by year's end. I bet most of them surf the net and relate to one another mainly in English. More and more of our schools are going online. They have to use technical English. Our Cyber Port scheme and our information technology are tied to our fluency in English.
English also dominates the business world. Most of the leading financial journals and financial service providers conduct business in English. When you think about business, you have to think in English. Stock analyses and company reports are in English. Such financial professions as insurance, advertising, marketing, merchant banking, accounting, consulting, commercial law, contracting, even arbitration, offshore banking, and so on are done in English. The World Trade Organization operates on English, so does the Organization of Petroleum Exporting Countries (OPEC), and so does the Asia Pacific Economic Co-operation (APEC). You can name any international financial institution and chances are English is its principal language.
This is why I am appealing to local Hong Kong businesses to encourage English usage. To be players in the global economy, we have to be conversant in English. Most developing countries understand this as they promote English as a part of their strategy to attract foreign investment. Today on the Mainland, everybody wants to learn English. The Cable News Network (CNN) recently reported that in Beijing, people are learning English en masse by shouting out English phrases. We have a developed economy and yet we do not have the same desire to learn and use English to stay ahead.
English also drives the entertainment industry. This explains why Hollywood is attracting some of our most creative talents. They will confirm to you that their acquired command of English is the key that has opened many doors. If we are to live out our destiny as the technological, financial and cultural heart of the region, we have to be confidently English speaking, writing and thinking.
Just how far Hong Kong lags behind in English is illustrated by this fact. Some multinationals are moving corporate divisions out of Hong Kong for Shanghai, in part because the standard of English usage is perceived to be higher up there than down here. Some young junior Shanghai hotel executives can be mistaken for native English speakers despite their never having lived abroad.
Hong Kong today faces a tragedy of its own making. I have heard many of my constituents complain that it is virtually impossible to hire local staff to manage their businesses, because many of their prospective employees cannot and will not converse in English. They say that the problem has been worsening over the past couple of years. I am sure that other Members speaking today will confirm this trend, whatever the affected area.
Our Government cannot offer any solution because it is a big part of the problem. We have got officials who use "Chinglish" and who write memos that are sloppy in grammar and syntax. We have got many government department and statutory body officials who use English less and less because they lack confidence in that language. The less English they use, the less confident they become in it. This is a vicious circle. They are not its only casualties. English language test is not a must in the promotion of civil servants. At least, the promotion to directorate grades does not require any English language test. The Government needs to take the lead to improve our public servants' English language skill. In the past, bilingual government circulars were a reference for pupils trying to learn English. Now, with some circulars in Chinese, they not only miss the English reference, but also the English speaking and writing environment, which is so critical to learning the language. Even our magistracies nowadays issue court-hearing reminders only in Chinese despite English being the language of common law.
I will leave it to the Honourable Mrs Selina CHOW to talk about English language education, which should be a motion subject all on its own. I will instead talk about the sliding standards in university English, which concerns employers most. Some of my constituents cannot recruit staff right out of university because many graduates are not competent in the language. We have heard professors expressing despair about students who cannot grasp their subjects, however simplified, because they cannot cope with English. I support universities making proficiency in English mandatory for graduation. To make the use of English important, universities should not only teach it well but also test students for fluency. We cannot afford to have universities that lower their linguistic hurdles to cater for, or should I say, pander to the accepted lowering of academic standards.
Madam President, learning English as a dead thing is just not going to work, however much money the Government pours into the endeavour. The language can only be mastered if it is written, spoken and experienced everyday. English has to be living, breathing free, rather than be hitched as it is in Hong Kong.
We face the danger of creating through the neglect of English, two classes. The first is an elite minority fluent in English because they had been educated overseas. The others are the majority, not so fluent in English and so are denied careers. I am surprised that advocates of equal rights have not spotted this trend. I think they are silent on this issue because they are still preoccupied with the old fashioned management versus labour vein.
The consolation is that it is not too late, yet. We have got a chance to make right a wrong government policy and social attitude that are defeatist. Back in October, our Chief Executive, Mr TUNG Chee-wah, conjured up a vision of Hong Kong in the 21st century that will be the London and New York of Asia. If we are ever to achieve that ambition, our mastery of English is a prerequisite.
With those words, Madam President, I move the motion in my name.
Mr James TIEN moved the following motion:
"That, as an excellent command and the extensive use of English is pivotal in maintaining and enhancing Hong Kong's status as an international city and centre of trade, commerce and finance, this Council urges the Government to adopt comprehensive measures to improve the standard of English as well as increase its use in Hong Kong; such measures include better training and development of local teachers of English, promoting and encouraging the learning and extensive use of English in schools, the business and professional sectors, government departments and the community."
PRESIDENT (in Cantonese): I now propose the question to you and that is: That Mr James TIEN's motion as set out in the Agenda be approved.
MISS CHOY SO-YUK: Madam President, I am not one hundred percent for this motion, not that I oppose the position and spirit of the motion tabled by my colleague, the Honourable James TIEN. In fact, I fully support his ideas and suggestions contained in the motion.
I have reservations to this motion because Mr James TIEN seems to miss the root cause of the problem of declining standard of English in Hong Kong. Even if the Government is willing to implement this motion, it would not be able to tackle this problem of the declining standard of English with much success.
The root of the problem probably lies in a pervasive misunderstanding that, after the resumption of Hong Kong's sovereignty by China, the Chinese language should rule supreme, that the Chinese language is where the action and money is, therefore the English language shall be put to the back burner.
This general atmosphere is so prevailing that sometimes even we would merrily go with it, quite unconsciously. On occasions in which we previously use English naturally, now we switch to the Chinese channel automatically. On the other hand, it is only natural that we talked more about issues and matters about China, which are embedded in the Chinese language. Discussing issues and matters which originate from the Chinese language in English sounds odd and weird. We could hardly recognize our own changes.
Many a time, we reflexively use Chinese rather than English if both languages are equally appropriate. Sometimes, we take it an opportunity to use Chinese just because it is more comfortable.
With our newly gained identity, our patriotism and nationalism, the idea of an English-speaking patriotic Chinese is hard to sink in our mind.
Without notice, while we are feeling good about the emancipation from the bondage of the English language, while we are enjoying the new freedom in expressing ourselves in the Chinese language, we might be throwing away one of Hong Kong's most valuable assets, most valuable both to Hong Kong itself and to China. And, we are setting an example to the Hong Kong society as a whole.
For me, first and foremost, the use of any language is a matter of cultural values and personal attitudes. So, the promotion of extensive use of the English language and the uplifting of the English standard must start with the changing of people's cultural values and personal attitudes towards the English language. The Government's efforts to improve the general language standard should be first directed to the correction of Hong Kong people's misunderstanding about the use of the English and Chinese languages.
As a matter of principle, we should not be superstitious about the supremacy of any language. We should give value and dignity to all languages we use, and master well any language we need to master. That is a prerequisite for promoting the use of any language, be it English or Chinese.
Until dignity and value should be reinstated to the English language, using English will still be perceived to be one of the colonial leftovers practised by a small, shrinking number of pseudo-Hongkongers, not a decent act that links Hong Kong to the international community that China needs and encourages.
That is a crucial point that I could not find in Mr James TIEN's motion. This is not a small point. Hong Kong is now caught in a dilemma. On the one hand, we rationally realize that English is needed for our survival both as, I quote from the motion, "an international city and centre of trade, commerce and finance". We keep on talking about the need of China to use Hong Kong to tap into the modern world.
However, on the other hand, we are submerged in an overwhelming environment that switches us instantly to our mother tongue.
This is only natural, and desirable, given the fact that we have neglected our mother tongue for too long and we need to make up for what was lost.
So we need to sort out the conflicting motions. We must shed the misconcepts that Hong Kong is Chinese-speaking only, that English is declining in importance, that China wants to hear us speaking less English. We must drive home the message that we need to speak more and better English, as much as we need to speak more and better Putonghua, that China wants us to do so too, and that the world is watching whether Hong Kong's homecoming to China means a dissociation from the western world. We should give resounding answers to all these queries and doubts.
What Hong Kong needs, and the Government should do, is a large-scale campaign to correct the pervasive misconcepts and get across the proper messages to the world, and, more essentially, to the Hong Kong people to rekindle their enthusiasm for English. This is our advantage over Shanghai.
So, specifically, I would urge the Government to organize a compaign ─ say, an English Month, to drive home the message that "Mastering English is not only compatible to being a Hongkonger, in fact, is essential for the success of the concept of 'one country, two systems'."
Over 1 000 years ago, Dunhuang prospered as China's gateway to the West. It was the entry point for Buddhism into China. Over 100 years, Hong Kong has been China's modern gate to the West and East. DENG Xiaoping's wish embedded in the "one country, two systems" appears to me a measure to keep Hong Kong playing this role into the 21st century. We should let no stone unturned to achieve this daunting historic feat.
PRESIDENT (in Cantonese): Miss CHOY So-yuk, time is up.
MISS CHOY SO-YUK: Madam President, I support the motion.
DR RAYMOND HO: Madam President, in response to the Honourable James TIEN's call for keeping the balance, I will be speaking in English.
There have been many complaints about the declining English standard of our students. Some say that many university graduates cannot speak fluent English while secondary school leavers do not understand simple and basic English. I have talked to many human resources managers in charge of recruitment and find that most of them also have the same observation. This is a real and serious problem, if Hong Kong is to keep its status as an international city.
Although Chinese is a great language and a highly-treasured cultural heritage, there is no dispute that English has long been recognized as an international language. It is an important and useful language for business worldwide. It is an important language for academics. It is also an important medium of communication as millions of people in different parts of the world speak the language.
Adequate mastering of English is required not only in the commercial and financial sectors, but also in major professions. Taking engineering profession as an example, a good command of English is necessary and essential in addition to technical competence. In order to keep abreast of the latest development in the field, we need to do a lot of reading. Most of the technical papers are written in English. Besides, we need to have close contact with our overseas counterparts who are mostly English speaking. For winning contracts, we must have strong language skills to present our business plans and technical details and to answer enquiries or questions from our clients. Poor command of English will definitely reduce the effectiveness of such efforts. In short, the language is vital even to technical people.
Undoubtedly, our society is still putting much emphasis on the importance of acquiring English language skills. Schools, including kindergartens, stressing English teaching are most sought after by parents. Year after year, English textbooks for kindergarten and primary school students are getting harder and harder, creating unnecessarily heavy burden on to the students. Ironically, many students at senior levels are not able to understand the language even after they have spent over 10 years learning it. In fact, some university lecturers have complained that many of their students often struggle to follow their lectures given in English.
In the past two decades, the Government has invested heavily in our schools to promote the learning of both English and Chinese. However, the outcome is far from desirable, let alone satisfactory. We have strong reasons to believe that the poor standard in both languages bears no relationship to the allocation of resources and funding.
As a matter of fact, we need to foster a better English environment for our students. The introduction of the enhanced Native-speaking English Teacher Scheme is a very positive measure. This helps establish an enabling environment for students to speak English and improve oral skills. In order to allow these English-speaking teachers to focus on their teaching role, the Government should put in more efforts to assist them to adapt themselves to Hong Kong.
On the other hand, the Government has also taken the right step in setting up language benchmarks for all new and serving teachers. This will ensure that the teachers have the required language proficiency to enhance the effectiveness of teaching. In addition, students must be motivated to improve their English. We should make them understand that their academic pursuit or future jobs depend on it. Mastering of English will also allow them to surf in the cyberspace which is the centre of the knowledge-based universe.
Besides learning the language in the classroom, local students should be encouraged to make the best use of resources outside schools. They include radio and television broadcasting in English and the Internet. All these are effective tools for learning English. In a nutshell, our students should be encouraged to capitalize on the international nature of Hong Kong in the cultural, commercial, financial and professional arenas.
After all, it is very important for the Government to take the lead in promoting the extensive use of English. Our students are very smart and will take the cue to improve their English for their future.
With these remarks, Madam President, I support the motion. Thank you.
MISS CHRISTINE LOH: Madam President, I thought I could add to the debate by actually giving some actual examples of how, perhaps in some areas, the Government (and also the private sector) needs to rethink its language policy.
One thing that I have noticed is that recently both government and commercial publications and information sent to me and many of my constituents who have complained to me, had become monolingual.
It appears that what these institutions do is that they look at the recipient's surname. So, for example, they see "Christine LOH" and assume that I am literate in Chinese. As you well know, Madam President, unfortunately, I can speak Chinese but I cannot claim to be literate. So, obviously, for people like myself, I prefer to read in English but because the system has been changed, right now they just simply look at the surname and make an assumption.
So, I have been getting, for example, information from the Inland Revenue Department only in Chinese, and I have been receiving complaints from residents in Hong Kong providing other examples. One complaint that I have is about the Hong Kong Trade Development Council. The Trade Development Council again has been looking at the people to which they send information, and they have decided only to send Chinese notices in some cases. I have been corresponding with them to inquire about their language policy. So, for example, they told me that since the majority of small and medium companies in Hong Kong are locally owned, therefore, if they are targeting small and medium enterprises, they will only send information in Chinese. For example, if they have any courses, they believe that since the courses are conducted in Cantonese, they should only send the information sheet in Chinese.
I think there are people like me and many of our ethnic minorities living in Hong Kong. They are permanent residents, they do business here and are interested in many aspects of Hong Kong. They can certainly attend Chinese language courses but they cannot read Chinese. And certainly, there is no shortage of small and medium companies in Hong Kong that are managed and owned by people who are not literate in Chinese, whether they are ethnic Chinese or from some other ethnic backgrounds. So, taking such an assumption since the majority of small companies are managed or owned by Chinese, obviously is fallacious.
Again, I have received a letter here from somebody who obviously lives in the Southern District and is very interested in the work of the Provisional Southern District Board. His surname is HO, a Chinese surname. His complaint is that all minutes and information and notices provided by the Provisional Southern District Board are only in Chinese. This gentleman is interested in going and attending meetings from time to time. Obviously, Provisional District Boards do discuss issues that relate to residents in those areas, but if there are residents who are interested in going but do not understand Chinese, are we able to provide any kind of facility for them? Perhaps, it is difficult to have simultaneous interpretation like we have in this Council in our Provisional District Boards, but perhaps, this is something that the Home Affairs Bureau might like to think about since certainly in many areas, there are many Chinese who are not literate in the language living there and are certainly interested in district issues.
I would also like to highlight the police. I received information from residents of a particular building in Happy Valley. They had a series of robberies in that building. The police came, did their job, and then stuck up some notices giving basic information to residents there about security. Apparently, the majority of the residents in that building are not literate in Chinese and they requested the police to perhaps stick up a bilingual notice. This took an awfully long time. I do not know exactly how long, but by the time I wrote to the police and they wrote back to me after some time saying that they were prepared to put up a bilingual notice, a lot of time has elapsed.
Those are essentially government departments or semi-government bodies. I now would like to give some examples of commercial organizations. This really does surprise me, Madam President, because I would have thought that commercial organizations really want to reach out to the customers. One is Hongkong Telecom. Hongkong Telecom also chooses to send information to its customers essentially in Chinese most of the time. I have had complaints from many people requesting English information and they are told that under certain circumstances, they might like to log onto the Internet. Now, of course, the complaint is that if they did that they would have to pay, whereas those who are literate in Chinese, they just get the information free of charge. So, how do we deal with issues like that?
Again, with Fortress, a company that is well known in Hong Kong for selling electrical products, I had a complaint from an overseas Chinese. After they had bought a particular product, they went home, opened the box and found that the instructions were only in Chinese. They then enquired about getting instructions in English but were told that such were not available. So, they came to me. I wrote to Fortress which then sent me a photocopy of the instructions in English but that was hardly what I wanted. What I wanted was for them to review their policy.
So, Madam President, what I am really saying is that there are public and private bodies out there who would like to be bilingual. They all have bilingual policies but when they implement the policy, very often there are gaps. I call upon both government departments and commercial organizations to give this some further thoughts.
The last point I really want to make is that we do have ethnic minorities living together with us here who are not literate in Chinese. We also have many visitors here. We have to make sure that our museums, our tourist attractions, people who sell things (such as Fortress, the products of which may be bought by visitors), will all make an effort to make sure that at least things are bilingual, that they are available in English. It can be done. We used to do it that way. Perhaps we did not use to do enough to provide things in the Chinese language but since we have the ability and the facility to do it bilingually, I just feel, Madam President, that this is such an exceptional asset that we should be investing in and enhancing rather than running it down.
I fully support Mr TIEN's motion.
MR CHEUNG MAN-KWONG (in Cantonese): Madam President, as an international city, Hong Kong is in great need of people with a good mastery of English in order to maintain its competitiveness in the world. As shown by a recent survey, the best 30% of our student population are still able to maintain a reasonable standard of English, but for the 30% with poorer academic performance, their standard of English is indeed declining, much to the apprehensions of the education sector.
What is most unbelievable is that Hong Kong schools and families have all been attaching very great importance to the learning of English. The huge numbers of admission applications received by English-medium secondary schools every year are one good proof already, but the time spent by a student on learning English from kindergarten to secondary school is yet another vivid proof, and an even more astounding one too. A three-year-old kindergarten student who is not yet even at home with his mother-tongue is already starting to learn English. In our primary schools, students have to spend almost 30%, or even more, of their school time on learning English. And, most of our secondary school students used to learn in the medium of English. But as it has turned out, our students' mastery of English can hardly enable them to cope with the needs of our commercial society. What have actually gone wrong?
The most easily identifiable cause is the quality of teachers. It has been extremely difficult to recruit teachers of English in Hong Kong, and it has been even more difficult to recruit teachers with the proper training required. Figures and statistics can best explain what I have said. As indicated by the latest statistics, those relating to 1998, only 60% of our secondary schools can recruit English teachers with proper language teacher training, and for our primary schools, the percentage is even lower than 50%. As for the percentage of English teachers holding university degrees, it is 40% in secondary schools and just 10% in primary schools. What is more, the wastage rate of English teachers has been comparatively high. A survey conducted in 1994 indicates that the wastage rate of graduate English teacher is about 15% a year. This, however, does not mean that our schools do not attach any great importance to English, but rather that it has always been difficult to come across English teachers with the specialized training required. Even if we try to recruit native-speaking English teachers from overseas, things are absolutely not that easy either. The trouble of having to travel abroad for selection interviews is already a formidable difficulty in itself; what is most depressing is, however, the expatriate English teachers who have come here from afar are faced with enormous pressure ─ their work is indeed extremely hard, for they have to teach classes with 40 students each, and they are also burdened by the very heavy examination pressure and workload unique to Hong Kong. All this is really beyond their capability. Recently, 30% of the native-speaking English teachers have indicated that they will resign after the expiration of their contracts. This can tell us that the job of English teachers in Hong Kong is really an unthankful one.
Expatriate English teachers can of course help improve the quality of English language teaching in Hong Kong in the short-run. But while doing so, we still need to answer a number of fundamental questions. Should we in fact provide more training courses for local teachers of English? Should we do our best to reduce the workload of our English teachers, so that they can have more time for professional enhancement? Are we prepared to give brighter career prospects to all those English teachers who have received further training? And, naturally, we must, as a fundamental concern, examine whether or not the salaries of teachers can adequately reflect their heavy workload. If we do not do this, we will be unable to retain good teachers, and not just English teachers, I must say.
Even if we try to retain our English teachers by encouraging them to receive continuing education and training, we will still have to look squarely at this problem: Why have our students still failed to master English well enough despite the huge amount of time and efforts they have spent? Why do they still have a phobia for English? The Education Commission has once studied this problem, and it has made a very important observation, which is called the "fading sun-tan effect". By this, it is meant that learning English in school is somewhat like sun-bathing on the beach. Even if a student really gets very, very sun-tanned on the beach, once he returns home, his sun-tan will inevitably fade, because at home, there is no more sunshine, and all his sun-tanning efforts will thus be in vain. In the absence of a family and social environment where they can use English, students in Hong Kong trying to learn English has failed completely in their efforts due to a lack of frequent practice, though they may well have learnt a lot about the language in school. However, since our society and school system attach a very great importance to English, they are still forced to continue despite their evident failure; and they are even forced to start learning the language increasingly earlier. As they are forced to learn English, indeed English at a high level, at too early a time, or, to put it in another way, as they are forced to learn English as a first language, most of the students who lack any family support have inevitably become very frustrated about learning English. In the end, they develop a phobia for English. Anyone with any experience in education will know that once students become frustrated and once they have developed a phobia, it will be extremely hard for them to learn English well. This is exactly what is meant by the saying "speed will kill speed". The rationale behind this saying is all too easy to understand in theory, but in actual practice, everyone seems lost all together. Today, when we re-examine the causes of failure of our English language teaching, we must bear all these lessons firmly in mind.
The Education Commission once recommended that students should not start to learn English until Primary IV, but such a recommendation was naturally opposed by most parents. In the end, this recommendation was simply brushed aside. But we really need to consider very carefully the rationale behind the recommendation and all the related issues. Should our students learn English as a first language, or a second language? Is it wise to require our students to learn English, the harder the better, at a time when they are still not able to master their mother tongue solidly? For students in general, what levels should they be expected to attain, for the purpose of coping with the needs of society? What kind of English language environment should schools and society create, so as to ensure that our students will not suffer from the "fading effect"? How are we going to improve our English language curricula and teaching methods, so as to reducing students' frustrations and phobia for learning English? How are we going to train up a team of English teachers with better quality, who can be encouraged more by the satisfaction of success, not frustrated by any heavy pressure?
Madam President, the problems I have raised are all the challenges which our English language teaching must face up to immediately. The education sector will certainly do its best, and we also hope to receive the support from the community. I so submit.
MR KENNETH TING (in Cantonese): Madam President, we support the motion moved by Mr James TIEN today.
My colleagues in the Hong Kong Federation of Industries (HKFI) are of the view that if we are to thoroughly implement the high-tech and high value-added industrial policy actively championed by the Government, the supervisory staff of Hong Kong industries, their mechanical and electronic engineers, designers, purchasers and even sales persons must possess an adequate command of English. This is the only way to ensure the competitiveness of our industries.
In the present era of information technologies, if our industries are to design and manufacture high-tech and high value-added products such as those highly sophisticated interactive toys which combine the techniques of mechanical and electronic technologies, our personnel must be able to communicate in English with many different purchasers from Europe and America. If our employees cannot attain the standard of English required, we will certainly lag behind our competitors at the levels of design, manufacturing and even sales promotion.
Madam President, last Saturday, I read in the press an interview report on the education system in Hong Kong. In this article, the President of Lingnan College, Professor Edward CHEN, says that over his 35 years of educational career, his most painful observation has been the constantly declining language standards of Hong Kong university students. According to Professor CHEN, over 90% of our university graduates are unable to pronounce the numerals from 1 to 10 accurately in English, and many of them cannot even pronounce all the 26 English alphabets correctly. That being the case, he says, it is indeed very difficult for the industrial sector to recruit suitable staff. Though his remarks may be a bit exaggerated, but they do highlight the gravity of the situation. I think the Government must look squarely at this problem and work out some ways to improve language teaching in Hong Kong. It should also try to raise the professional competence of our English teachers.
To sum up, we maintain that if we are to enhance the earning ability of our industries for foreign exchange, the Government must seek to improve the English proficiency of students and employees. Therefore, the HKFI is in full support of Mr TIEN's motion, and we would like to urge the Government to implement an integrated policy to improve the overall English proficiency of the people of Hong Kong.
Thank you, Madam President.
MR YEUNG YIU-CHUNG (in Cantonese): Madam President, in recent years, I have frequently heard grievances from employers, who complain that the English standards of the university graduates they employ are far lower than those of their counterparts in the past. Some employers have laid the blame on our school education, saying that if we still do not try to improve our students' language proficiency, the competitiveness of Hong Kong in the world will for sure be greatly reduced in the long run.
Our English language standards have indeed dropped, but is it not also the case with our Chinese language standards? In fact, the decline in language standards is a world-wide phenomenon, because other forms of communication have replaced language. This is simply inevitable. But I of course appreciate that Mr James TIEN's motion is not meant to initiate any academic discussions on this matter. Rather, I know that the motion actually targets against a very specific objective: that through this debate, Mr TIEN aims to encourage a more extensive use of English in Hong Kong, thereby raising our overall English language standards.
I wish point out that our declining English language standards are very much the result of our erroneous language policy, under which English is taught as a second language, with students being trained under second language teaching methodologies.
I must say that Hong Kong has never been a bilingual society as such. Most Hong Kong people speak Cantonese, and even those who have a higher command of English will not use English as a means of communication unless there is a practical need to do so. Tertiary education institutions and commercial organizations, though, have more chances to use English. In other words, English is but a working language in Hong Kong, certainly not a second language and still less a lingua franca.
But under our existing policy, English is taught as a second language, and our teaching strategy has been something like this: Students are required to get to know English as early as possible, in the hope that they can have more chances to practise speaking and listening to the language. Under this strategy, students who are still in their infancy are already required to commit the 26 English alphabets to memory. As a result, English classes have come to dominate school life, and English-medium schools also once dominated our school system. Ironically, however, our overall English standards have always remained unsatisfactory, or can even be discribed as "poor".
This is largely because of the fact that outside their classrooms, students rarely have any opportunities to get in touch with English. So, without any daily practice, and given such a learning mode, how can students possibly make any progress?
Yesterday, the Chinese University released the findings of a survey, which show that when compared with their mainland counterparts, Hong Kong university students are far weaker in terms of reading and comprehension abilities in Chinese. As explained by the person in charge of this survey, the system of education in Hong Kong requires all students to learn both English and Chinese from the earliest days of their schooling, consequently many students have failed to become competent in both of these two languages. This reminds me of a colloquialism: "Neither sink or swim in the middle of the sea."
For all these reasons, the Democratic Alliance for the Betterment of Hong Kong maintains that teaching English as a foreign language and changing our teaching methodologies are the only ways to impove the English standards of our students.
Another problem which worries me greatly is the quality of teachers. Without good teachers, how can we possibly train up people with high quality?
Under a four-year scheme starting from this year, the Government will spend a total of $1.3 billion on employing native-speaking English teachers to teach English in our secondary schools. And, I have recently heard that the Government now intends to extend the scheme to our primary schools. I am of the view that "foreign assistance" can at best serve a stop-gap purpose. In the long-run, we must seek to improve the quality of our own teachers and enhance their professional training. This is the only correct orientation for development. I hope that the Government can inject more resources into the training for local English teachers, so as to raise their overall teaching standards and to ease the shortage of English teachers in Hong Kong.
I know that the Advisory Committee on Teacher Education and Qualifications has recently conducted a "language benchmarks" class inspections programme for language teachers in primary and secondary schools. The findings show that over 15% of the teachers inspected were unable to attain the required benchmark for one or more of the four test items, namely, English grammar, English pronunciation, teacher-student communication and teaching medium. This is indeed a very worrying problem. This also shows that in-service assessment of teachers is very important. We must see to it that all teachers who are below standard are made to improve their performance. Our ultimate objective should be to improve the quality of all our teachers.
Besides, I am also concerned about whether or not internet language will hinder the language learning of our students. The internet has recently become a popular information medium, through which we can communicate with people all over the world. However, the language used is a very special kind of network language, with English words and expressions often simplified and shortened into one or two letters. Although the effect of internet language on language ability has yet to be confirmed by accurate research findings, we still have good reasons to worry about its effect on the language learning of our students, because at a time when they are still unable to master either Chinese English adequately, they are now using yet another kind of language, a kind of "non-formal" English, as a means of communication.
Madam President, I so submit. I support the motion moved by Mr James TIEN.
MRS SELINA CHOW: Madam President, I would first like to thank the Honourable James TIEN for moving this motion which gives us a golden opportunity to prove the point that in fact, both Chinese and English are equally important and should always be used in this Chamber and in other cases.
Prior to the handover, it seemed quite logical that Hong Kong should regard English as its first language despite the fact that 98% of our population had Cantonese as our mother tongue. After all, we were a British colony.
Now, barely two years after our return to the motherland, there is wide perception here that we are losing our proficiency in the English language, despite the fact that English is guaranteed its official status in the Basic Law. Why is it so?
Some blame it on the adoption of mother tongue as the medium of instruction in our schools. In my view, this cannot be right. The deterioration in the standard of English started way back in the '80s. In fact, deterioration may be a misnomer. What happened might have been the consequence of the introduction of nine years of compulsory education which placed a huge demand on the number of teachers of the English language and that the system was not prepared to deliver within the given time frame. This resulted in a marked drop in the level of English, which is made more evident when measured against the standard accomplished and well recognized in those so-called elite schools with a long history of teaching in English. It could also be the result of the proliferation of pop culture that accompanied the expansion and penetration of the mass media which led to the replacement of English as the language of style and fashion by Cantonese. Whatever the cause, it is a generally held view that the standard of English today is not what it used to be.
In my discussions with employers and managers, their dissatisfaction with the current aptitude in English among their staff is fairly widespread. However, when we ask for solutions, their suggestions would invariably centre around schools, with propositions which would take years to bear fruit. In fact, quite often, they use the opportunity to voice their discontent rather than to propose any measures that would redress the problem.
I believe that what is required is a multi-prong strategy to attack our deficiency in English, and attack it we must. If something is not done quickly, we will lose our unique identity as the Chinese city with international characteristics, and will become just one of a number of coastal Chinese cities.
But before mapping out a strategy, we need to be clear what the objective is, and whether the long established public policy of relying entirely on our schools to teach English should be maintained.
Most schools aim to teach their students to read and write English, but with no specified practical use in mind. I am told that children are usually reluctant to speak it, due to shyness or lack of confidence. In other words, after attending years of English classes throughout their school years, many of them would not be able to communicate easily in the language. This cannot be right.
The objective of learning a language should not be just to use it, but to use it for a purpose. It is first and foremost a tool for communication. If those who learn it cannot use it effectively as such, something is wrong with the way it is taught, and changes are called for. If those who teach it cannot communicate in it with ease, replacements are called for. The policy of engaging native English speakers as teachers is basically sound, for from those teachers, students learn more than the language. They are exposed to the culture and philosophy personified by these teachers. The English so taught and learned is a living language. I believe that there has to be a commitment to this policy so that more of our youngsters can benefit from it.
More important, there should be a new vision for the teaching of English beyond schools, in that courses must be tailored for specific needs. To some extent, these already exist. For instance, in the travel and hotel industries, training is provided for new entrants into the trade out of necessity. But are similar courses conducted for workers in retailing, financial services, estate agents and other service industries? And what about the front-line contacts who serve visiting tourists every day, such as our taxi drivers? As vocabularies, jargons, idioms and situations differ from trade to trade, should there not be different courses catering for different needs?
If it is accepted that such a need exists, it has to be determined whether it can be left solely to the initiative of the individuals who or organizations which require the training. I believe that few small and medium enterprises would be prepared to send their staff to such training, for the following reasons. First, given the high turnover rate of staff, especially young employees, most employers may not think it worthwhile to invest in such training for a mobile personnel. Second, they would not spend the time to research into the availability of courses. And third, they may not be prepared to release their staff to go to such courses during working hours. In other words, if the Government does nothing, and if it insists on the usual "user pays" policy, such training will just not take place. I therefore submit that the Government must take the lead, and map out a plan, finance it, and teach English to groups of specific trades.
Apart from the spoken language, the Government has to also lead the practice to keep the face of Hong Kong bilingual, too. By this, I mean the signages and the publications. There need to be a firm commitment to the policy of maintaining the equal visibility of both of our official languages, especially in high profile displays such as advertising or promotional materials of government or public events. This will serve as a constant reminder to our people that this is a city where East meets West, and our healthy development depends on this strong identity built on our unique history. This will also serve as a signal to our many visitors that they need not feel strange and foreign in our city. In this respect, there is much that the Hong Kong Tourist Association must do to convince as many services as possible to use English one way or another to help visitors feel welcome.
PRESIDENT (in Cantonese): Mrs Selina CHOW, time is up. Please take your seat.
PROF NG CHING-FAI (in Cantonese): Madam President, the motion moved by Mr James TIEN reminds us of the importance of English. I am convinced that whether inside or outside this legislature, probably no one will deny the importance of English. In an international city like Hong Kong, English is especially important.
According to Mr James TIEN, English is an international language. Well, in terms of commerce and technology, I would very much agree with him. But if he is referring to the arts, for example, I think the French and the Italians may not agree, and so would we Chinese people. Many operas are originally written and performed in the Italian language, and, perhaps because of my own prejudice, I find that once they are translated into English, they will lose much of their persuasion. Therefore, while we must admit the importance of English, we must also bear in mind the bounds of its importance.
Actually, in a society like Hong Kong, it is extremely difficult for people to ignore the importance of English. In fact, other than those countries inhabited mainly by British people or their descendants, we cannot find any other countries where English is so highly regarded as it is in Hong Kong. There are some exceptions, like Singapore and India, but their number is certainly very small.
If we look at the topic today from a pragmatic perspective, we will certainly support Mr James TIEN's motion. The reason is that all of us would very much hope that Hong Kong can become a place with strong competitiveness. And, from the perspective of competitiveness, English is indeed very important. But I wish to remind Members that linguistic aptitude actually varies from person to person; some are able to master two languages easily and can use them at ease. Others, however, may be good at other things, and they may not necessarily be able to master a second language. Therefore, our education system should also cater for the needs of these students; we must not seek to tackle the language problem with an "across the board" approach.
Two Members, namely, the Honourable CHEUNG Man-kwong and the Honourable YEUNG Yiu-chung, have analysed this problem from the perspective of education. I believe that this is not the purpose of Mr TIEN's motion, and I do not want to involve myself in such a debate. I just want to point out that our problem does not lie so much in any social or governmental neglect of the importance of English, but with our failure to prescribe the right remedy, and to identify ways of improving the efficiency of our English language teaching. In this connection, we of course hope that both the Government and the education sector can consider the matter in a more detailed and in-depth manner. Actually, it is certainly possible to identify solutions to the problem, but I do not wish to discuss these solutions today.
And, I also want to remind Members that if we do not tackle the problem of English language teaching properly, some students may well lose their interest in other subjects and their intellectual development may also be hindered. Such a consequence is unwarranted. Therefore, I think we should really look at the problem of English from a wider perspective. We should not focus only on the practical side of the matter as suggested by the last part of the motion. And, looking at Mr TIEN's motion from such a perspective, I would support him.
Thank you, Madam President.
MR MARTIN LEE: Madam President, I note that in this motion, the Honourable James TIEN is urging the Government to do various things, including promoting and encouraging the learning and extensive use of English in schools, the business and professional sectors, government departments and the community. However, he has left this Chamber. I think we, Members of this Council, should also do our part to promote the use of English so that the community at large will, hopefully, really take our advice and try to improve the standard of their English, which unfortunately is lacking, even among the legal profession.
I remember a few years ago, I was invited to speak to the students of the School of Law in the University of Hong Kong and I asked the organizers, "Would you prefer me to speak in English or in Chinese?" and the answer was, "if you speak in English, some of the people may not understand you". So ultimately, I decided to speak in Cantonese.
Some years ago, a law graduate from Hong Kong went for an interview with an experienced barrister because the young man wanted to be a pupil. In other words, he wanted to practise at the Bar. However, after he and the would-be pupil master had been engaged in conversation in English for about 10 minutes, the young man said, "do you mind if I switch over to Cantonese?" because he could not cope with it. That is why it does not come as a surprise to me that judges have repeatedly voiced their concern over the lack of proficiency in the English language on the part of lawyers appearing before them.
What then can we do? Madam President, perhaps I should share with Members, and perhaps through the mass media with the community, my experience when as a young man I went to study law in London. I went to the marketplace and I was surprised that the people there called me "love", but of course they pronounced it as "Louvre"! Then, I understood that there was such a thing as cockney. Then to my horror, after a few days, I discovered that I was speaking English with a heavy and pronounced Cantonese accent. I never realized that I had that accent when I was in Hong Kong. So I said to myself, "how on earth can I go back and represent clients in English and speak in English in the courts if I speak English with such a heavy Cantonese accent!"
I soon found a way out. I began to watch BBC news on the television and I tried to follow the newscaster. At first, it was with the greatest difficulty. Of course, I tried to pronounce words the way he or she did and I tried to copy from him or her the intonation and everything. At first, I could manage about four words out of every 10, but after a few days, I made improvements and I could follow about six words out of 10. At the end of two months, I could follow him or her for the entire sentence and the entire paragraph. And before I knew it, half a year later, to my very pleasant surprise, I succeeded in getting rid of my Cantonese accent, although I have yet to acquire an Oxford accent!
So, I think our students and our grown-up people here who are already working can actually learn to improve their English by following the newscaster, and one such young lady happens to be the daughter of one of our Honourable colleagues here. On this day and at this age, it is in fact easier because we could videotape the entire news programme and then play it back again and again. I understand that a lot of students in mainland China are actually doing that too. They tune in to radio programmes and television programmes, and I can commend to the people of Hong Kong that there is a very efficient way of learning spoken English and completely free of charge.
Thank you, Madam President.
MISS CYD HO (in Cantonese): Madam President, I speak on behalf of the Frontier to support the motion moved by Mr James TIEN. However, I would like to speak in Cantonese because I hope more young students can understand my speech. I hope they will come to understand the importance of learning languages. This is like I do not think that one cannot speak English if one loves his country. I think both can be viewed completely separately.
Madam President, language is a means to facilitate inter-personal communication. It helps us to think and express our thoughts. Through the use of language we can give names to all sorts of objects and things. We can describe every act and even abstract feelings and metaphysical concepts of philosophy. If we do not know the language and the vocabulary, it would be complete confusion no matter how many ideas we have got in our mind. It would be completely incomprehensible to other people. There would be no way in which knowledge can be disseminated.
Chinese is a language full of sensory feelings. It is a poetic language. Its ways of forming characters by hieroglyphic, onomatopoeic, referential and transferring devices are unique among the languages of the world. It does not rely on spelling by romanization and transcription of the sounds of the words we hear. It relies on our eyes and the brain to associate and receive the words we come across. The syntactic structure of Chinese does not facilitate the statement of ideas connected by a fine and complicated network of logic. I believe Honourable Members would certainly have the gruesome experience of reading the Chinese version of bills. We are all aghast to find how Chinese can be rendered so unreadable and we come to question whether the language we read is in fact Chinese at all. This of course is something that our generation has to assume responsibility for. We need to enrich the grammar and sentence structure of the Chinese language. We need to be mindful of the mechanics of writing good Chinese ─ the four steps of introduction, exposition, transition and conclusion. We need to breathe new life to our Chinese language and remove its inherent deficiencies by enriching it with the language required to meet the needs of modern life.
But before we can complete this daunting task, we have to recognize the existence of different concepts and ways of thinking in different languages and that each language has its own distinct national character. Therefore, the recent emergence of an academic discipline called Lingui-philosophy is due to the recognition that there are certain words in each language which defies our efforts to translate them. If we want to understand these untranslatable words, we have to learn the words in their original language.
Madam President, if we realize the inadequacies of the Chinese language, we can make use of the strengths of other languages to complement our own language. We should not have the mentality that learning other people's language is an admission of the inferiority of our own. We hope that we can be broad-minded enough to break this nationalistic barrier. English is a good choice for it is the most widely used second language in the world apart from Chinese. By learning English not only can we communicate with those people who speak English as their mother tongue, we can also communicate with those people who speak other languages as their mother tongue. Many books and academic papers are translated into English soon after they are published. So if we are to "make our country strong through science and education" and to broaden our perspective of the world, English would be our first choice if we wish to pick up a foreign language.
I hope more young people will try to learn some other languages. It would be much better if they can learn a third or a fourth language. My own experience is that if you learn a third language, when you look back, you will find English is really very easy to learn. You will also know that in the past you did not learn English in a smart way. There are new ways of learning German and French which would have made English learning more efficient. You will find that had these approaches been used when you started to learn English , you will find that your English will be a lot better than the miserable smattering of English that you have arduously acquired after 11 years' of inefficient learning.
I very much agree with what Prof NG Ching-fai has said just now. There are truly some cultural elements and feelings which cannot be translated. Even if they are rendered into English, they would cease to be authentic. The awesome magnificence of the chorus in Beethoven's Ninth Symphony sung in the original German would be lost when sung in English.
I hope more students can take up translation as their career. This would help people who are native speakers of Chinese but are not so gifted in languages be able to acquire and keep an international perspective. This is possible only when a lot of people become translators and translate academic papers and other publications into Chinese.
Having said that, I believe apart from languages, the most important thing is that we must be inquisitive enough to know other cultures and have a willingness to communicate with other people. We must not lock ourselves up in our own world. I believe that all these are important in keeping our city a vibrant cosmopolitan city.
Thank you, Madam President.
MR HOWARD YOUNG (in Cantonese): Madam President, I speak in support of Mr James TIEN's motion. As Mr TIEN calls for an extensive use of English, it is appropriate to find people speaking in English here in addition to those who speak in Cantonese. It shows that the Honourable Members are not necessarily people who are always thinking in terms of political principles and political struggles, as some people may allege. If people spoke English during the days of the former British rule, they might be criticized as idolizing the West; and when they speak English after the handover, they may be criticized as being nostalgic about the colonial era. As a matter of fact, speaking English has nothing to do with any of these, it is a very pragmatic problem.
MR HOWARD YOUNG: It is a very practical problem as well. The main thing is that we have to think for ourselves "what will keep Hong Kong competitive?". Recently, we have had many theories about Hong Kong losing its competitive edge, about Hong Kong having high rental, high cost of labour, and so on. But language is one thing that we used to have, and that, even today, I hope, we still have, an advantage in, and so we should maintain that.
Looking around the Southeast Asian region, Hong Kong people talk mostly about competing with Singapore, so what is the thing that Singapore can really come out and claim that it is better than us? I think when it comes to the widespread use of the English language, we are indeed lagging behind Singapore, and perhaps even more so since the transition.
In practical terms, Madam President, I would like to point out that English is not really the language of the English people or the American people. It is an international language, and I want to give two very small examples to illustrate this. In the tourism industry, whether you are operating in Hong Kong or Singapore or North America or Europe, or even in mainland China, or Japan, if you make an airline booking on a computer, it is in English. And looking at the planes that fly to Hong Kong, whether they are from Taiwan or whether they are from mainland China or whether they are Hong Kong local airlines, on the fuselage, apart from using Chinese characters which is their own language, they also use the English language as well. This is because they do recognize that English is indeed an international language and we should treat it as such. And if we wish to remain competitive we should maintain that competitive edge.
With these words, Madam President, I support the motion.
MR SIN CHUNG-KAI (in Cantonese): Madam President, I speak to support the motion moved by Mr James TIEN.
Mr TIEN has spoken earlier on the importance of English to trade and industry. I would like to talk about how we can learn English well. The Chairman of our Party, the Honourable Martin LEE, has just talked about his own experience in learning English, and I think that is a very good one. It is still a very effective way (that is, to follow the newscaster in speaking English while watching the television). Nowadays, information technology facilitates us greatly in learning English. Leaving aside children who are too young to benefit from computers, a child of three or four years old can learn English the fun way with the help of computer games and CD-ROMs. As for adults, there are many ways of learning English with the help of the Internet.
The question remains how to improve one's standard of English. The Government has thought of hiring teachers who are native speakers of English to come to Hong Kong to teach the language. Besides this, the Government should make a complete overhaul of education technology used in primary and secondary schools. The Government may have invested more than $3 billion purchasing computers for schools so that each secondary school now has 82 computers and more than 40 computers for primary schools, but by comparison, Singapore has put in much more resources than Hong Kong in this respect. In Singapore, specific goals in computer-assisted learning are set. There is one computer for every two students, but in Hong Kong, there are more than 800 students in each secondary school, with only 80-odd computers, that means one computer to more than 10 students. There is a scramble for computers in English lessons. The Government should put in more resources in this respect and to use technology to help the school children learn English. In the public-funded tertiary institutions and the Open University, learning English through the Internet should be developed as much as possible. One example is interactive learning on the Internet. This will enable adults to learn English in their spare time or at some other time convenient to themselves. In other words, they can make use of these interactive methods to send their study materials from their universities to their homes. This will help greatly in the improvement of their language competency.
I wish to stress one point, and that is, the Government has taken some initial steps in making use of information technology to help school children and adults learn English and other subjects, but these efforts are not able to tackle the current problems. The Government may have put in more than $3 billion on this, but the ratio of learners to resources is only one sixth to that of Singapore. In Hong Kong, the hardware and software in language learning are readily available and these should be able to help the public greatly in their learning of English. I hope that the Government should look at this issue comprehensively. More English teachers should be employed, if not, more software learning packages should be purchased for public use. This will change the passive mode of learning to a more active mode. The conventional method of teaching English is to have a teacher standing in front of the pupils and talk. It will be more fun to learn English while playing with the computer. This will enable school children to follow the instructions and rules of the games to learn English in a more active manner while unconsciously picking up English gradually. When we observe how children learn, we will find some very marked changes. With the aid of computers, children learn better in those subjects which they used to think are very boring. They will not be put off by English any more and they can learn very happily while playing with the computer.
I have two kids. From what I know, they are learning English from the computer. The computer has become a good source of inspiration to them. The Democratic Party suggested some time ago that the Government should subsidize the lower-income class to buy computers. The Government should be determined to do that. It should make further efforts in making investments in computer equipment, English language teaching and computer-assisted learning. What should be done after investing more than $3.3 billion? Will there be enough software for use in the future? What should we do if there is not enough? To these questions, the Government should make some responses.
Madam President, I support Mr James TIEN's motion.
PRESIDENT (in Cantonese): Does any other Member wish to speak?
(No Member indicated a wish to speak)
SECRETARY FOR EDUCATION AND MANPOWER: Madam President, I would like first of all to thank the Honourable James TIEN for moving today's motion on promoting extensive use of English.
As one of the most open and freest economies of the world, Hong Kong thrives on international trade, and has built the bulk of its wealth on a highly competent services sector. Underpinning Hong Kong's strength as a service economy with an international outlook as well as a knowledge-based society is the ability of our people to communicate with the rest of the world.
English is indisputably the language of international trade and finance. It is also the most commonly used language in science and technology and on the Internet. The importance of maintaining a high standard of English and to maintain its extensive use in Hong Kong could not be over-emphasized.
We want our students to be biliterate in English and Chinese and trilingual in speaking Cantonese, English and Putonghua. But I wish to assure Members that, despite the perception of some of the international press that the status of English has been watered down after the transfer of sovereignty, there is no question about the Government's determination to uphold the importance of English, in order to bolster Hong Kong's position as a centre of international commerce and finance. This determination is reinforced after the transition of sovereignty.
I will explain our efforts in five areas, namely: raising the standard of English teachers; improving the learning of English in schools; raising the standard of English in universities; maintaining the use of English in the Government; and raising the standard of English in the workplace.
Raising the standard of English teachers
In keeping with the importance accorded to English, the Government has allocated substantial resources in the past few years and initiated a comprehensive package of measures to enhance the teaching and learning of English in schools and universities, and the professional development of English teachers.
First and foremost in our efforts to raise the standard of language teaching is to require all language teachers, including teachers of English, to attain language benchmarks. We will require all new teachers joining the profession in the year 2000 to meet the language benchmarks, while all serving language teachers are required to meet the benchmarks latest by 2005 and all other teachers latest by 2008. Teachers may opt to attain the benchmarks by either attending training courses or taking benchmark assessments administered by the Hong Kong Examinations Authority. We have earmarked around $29 million each year for the next 10 years to provide English language training courses for all serving English teachers who require training to reach the benchmarks.
In the area of teacher training, the tertiary institutions and the Education Department are providing a wide range of training courses for English teachers. These include:
Full-time, part-time, pre-service and in-service undergraduate and postgraduate courses in education specializing in English Language, and Teaching English as a Foreign or Second Language. Some of the pre-service programmes include an element of immersion training for student teachers in the United Kingdom and Canada;
In-service full-time block release courses for serving English teachers. We will be spending $240 million in the three school years from 1998 to 2001;
Short courses run by the Education Department to enhance the competence of English teachers. We will be spending $38 million in the three school years from 1998 to 2001; and
Primary English Teachers Oral Proficiency Courses, funded by the Language Fund which ran from February 1995 to February 1998. Around 2 700 teachers participated in the course. We will consider more such courses in the future.
We are facing a situation where only about half of our English teachers in the schools are subject-trained, and many of the graduates with good English standard have chosen other professions instead of teaching English in schools ─ a point made by the Honourable CHEUNG Man-kwong a moment ago. I have asked the Standing Committee on Language Education and Research (SCOLAR) to consider how best to remedy the situation, if necessary, with the help of the Language Fund, on a long-term basis.
The provision of resources and support facilities is an important element in the package of teacher development measures. The Language Resource Centre for Teachers was established last year to improve support services for language teaching and learning in schools, with particular emphasis on the application of computer technology. We have also invested more than $47 million in Telenex, an electronic support network developed by the University of Hong Kong. This network provides web-based help-desk type services for school English teachers, and gives them a common platform for exchanging views and questions on the teaching of English. Response to Telenex has been very positive and to date, it covers a large majority of secondary schools, with more than 3 000 secondary and primary school teachers connected to it.
Improving the learning of English in schools
There are concerns, quite understandably, about the standard of English in our schools with the implementation of the medium of instruction policy starting from the current school year. Let me clarify once again that the promotion of mother tongue teaching is not intended to undermine the importance of English. It is promoted for very good and valid educational reasons. Indeed, our observation after the first nine months is that the teaching of English has not slackened in the Chinese medium (CMI) schools. In fact, some of them have become more conscious of the need to guard against any decline in English due to lesser exposure to the language, and are therefore making extra efforts in the teaching of English as a core subject. All CMI schools are being provided with additional English teachers, averaging two per school. They are also provided with extra resources to purchase equipment and library books. Furthermore, we allocated $57 million last year to set up an "English Corner" in each school and to organize additional school-based English enhancement programmes.
We launched the Native-speaking English Teacher (NET) Scheme in the 1998-99 school year. With a financial commitment of around $1.5 billion over five years, the scheme aims to enhance the standard of English teaching and to foster a genuine English-speaking environment in our schools by introducing at least one NET into each public-sector secondary school. There are now 387 NETs in post, and we are monitoring the situation closely. There are positive signs that these teachers are making a positive contribution. In the meantime, the Quality Education Fund (QEF) and the Language Fund have been supporting trial schemes of NETs in primary schools, and initial results are encouraging. The QEF will stand ready to consider funding applications from individual primary schools wishing to employ a NET.
The Language Fund and the QEF have between them allocated close to $271 million over the past five years to support 163 English language projects to date. The projects cover a wide spectrum, including school-based activities, teacher training programmes, establishing language laboratories, multi-media facilities, language enhancement softwares, developing resource materials, intensive English Language Programmes for students, English Language Teaching Assistants in schools, vocational English projects and radio programmes. The totality of these projects is making a significant and positive impact on the teaching and learning of English in our schools.
Raising the standard of English in universities
English is the predominant medium of instruction in our universities, and we have no intention to change this. We are aware of the concerns of some employers about English standards of university graduates, and we will ensure that university students are up to par in English at the points of entry and exit. To do this, the Government has announced that as a rule, we will not fund the tuition costs of any candidates who are admitted to university without a pass in English in the Hong Kong Advanced Level Examination, unless they genuinely excel in other subjects. We will also ask the University Grants Committee and the tertiary institutions to seriously consider requiring students to sit for an English test to ascertain that they are adequately competent in English for employment purposes. The test should be conducted before graduation and the results should be included in the transcripts of the graduates.
In the meantime, the Government has been providing grants to tertiary institutions for the purpose of language enhancement. In the last triennium (1995-98), $210 million was committed to language training, of which a large portion was for the English enhancement of undergraduates. For the current triennium (1998-2001), $262 million has been earmarked for undergraduate English language training.
Maintaining the use of English in the Government
I would like to assure Members that in tandem with promoting the use of Chinese, English is still extensively used within the Government. For obvious reasons, government officials now speak more frequently in Cantonese in public than, say, five years ago, but internal communication and correspondence in the Government is still predominantly in English. At a personal level, I always use English in this Chamber to answer questions or speak on motions put to the Administration in English.
In keeping with the status of English as one of the two official languages in Hong Kong, it is the Government's policy that all written materials meant for members of the public, such as government notices, publicity and information literature, are printed in both languages; and we advise all the other public and statutory bodies to do the same.
I have noted the remarks made by the Honourable Miss Christine LOH, for example, that she has been receiving government correspondence only in Chinese, and I will pass them to the relevant authorities for follow-up action. It is also our policy to maintain a fully biliterate Civil Service. The Civil Service Training and Development Institute provides a wide range of English training courses for civil servants to meet job needs and to ensure that they possess a high level of competency when communicating at work.
In response to the remark made by Mr James TIEN, I could not promise without checking with the Civil Service Bureau whether we could insist that all protest banners put up by disgruntled civil servants should also have an English version.
Raising the standard of English in the workplace
Whatever we do in our schools and universities, it is in the workplace that one's English is put to the ultimate test. The English standard of our working population is therefore one of our major concerns. In this respect, I would call upon the business and professional sectors to play a more proactive part in training up their employees and members of their professions. I will also ask the SCOLAR to consider how best the Government could offer assistance.
Members will be pleased to learn that the Government will consider launching a major campaign in partnership with the business sector this year to raise the awareness for higher standards of English in the workplace and to encourage our workers to continuously make improvements in their English proficiency. The Language Fund, for example, may be used to offer matching grants to any chamber of commerce, trade association or professional body which wishes to provide English training for their employees or working members. We have useful discussions with some representatives of the business sector and the professional bodies. I hope that we can finalize the arrangements shortly.
With the strong growth in local popular culture and a sophisticated local film and entertainment industry, it is understandable that the average young person or average worker in Hong Kong may fail to see the relevance of English in their daily lives. After all, Hong Kong has always been a predominantly Chinese society with Cantonese as the mother tongue. And we all know too well in this Chamber that Cantonese is an extremely lively dialect. It is also a sad fact that most of our students, even at the university level, seldom listen to English radio channel, nor do they watch news or other programmes on the English television channel, except movies with Cantonese sound track. Most of them also do not read English newspapers.
However, if we are to maintain Hong Kong's position as a trading, financial and technology centre as well as a major tourist destination in this region, our community must not allow the importance of English to slip from our daily lives. In this respect, all sectors in the community ─ the education sector, the business sector, the mass media, the entertainment industry and even parents, must work hand in hand. For example, our parents must realize that for their children to learn to speak and write in English, learning in schools is just not enough. To learn improper English and acquire bad habits are worse and sometimes cannot be undone for the rest of one's life. I mentioned our proposal to launch a campaign to promote the learning of English for our workers. The Government stands ready to consider any proposals that aim to raise the profile of English in our community, and if necessary, to allocate resources for this purpose.
PRESIDENT (in Cantonese): Mr James TIEN, you may now speak in reply. You still have four minutes.
MR JAMES TIEN (in Cantonese): Madam President, I am very grateful to Honourable Members who have spoken in support of the motion I moved. What I would like to say is, like what I have expressed in my motion, about promoting the extensive use of English.
A few Honourable Members from the education sector have talked about what they think from the educational perspective. I am in full support of these opinions as I am not an expert in that field. Mr Joseph WONG, the Secretary for Education and Manpower has just now explained why the standard of English of the students today seems to have fallen behind that of their predecessors despite the huge sum of money the Government has spent, the numerous new schemes put forward and the efforts made to enhance the standard of English. Why are people from the business sector still complaining about the poor standard of English of the graduates? We fail to see why. All we know is that much has been done by the Government and a lot of resources have been put into the improvement of English standard among the students. Are we doing this too late because we have only started doing that in the past few years? May be we have to wait a few more years, then we shall see an improvement has been made in the standard of English among the students, by then the problem we discuss today might not be there any more.
Madam President, the main objective of my motion is about the use of English. I think any language has to be used frequently if the speaker wishes to have confidence in using it. And if the speaker is confident, he will use the language more frequently. With frequent usage, he will speak it better. According to this line of reasoning, it may be due to the fact that now we have less opportunities in using English, so we will rather not use it. But the problem is: we will not be confident in using English if we do not use it. Then there will be yet fewer chances of using it. The handover may have something to do with our estrangement with the English language. A lot of my friends, including myself, have to spend more time in learning Putonghua. As we have to remind ourselves to speak more in Putonghua and to speak in English, there is simply not enough time for both languages. Under such circumstances, people will speak less in English. I agree with the Honourable Howard YOUNG when he said that the English language is no longer the language of Britain alone, it is the lingua franca of the world today. We should not think that we use English because Hong Kong used to be a British colony. English is spoken all over the world together with the local language. As this is the case, for the benefit of building a better Hong Kong, not only those who wish to work in the trade and industries will need to learn their English well, as the Honourable YEUNG Yiu-chung has just said, but students will also need to do the same. Any person who speaks English well will definitely find it a great asset. It makes no difference if he learns it for travel purposes, for his career development or anything he has in mind.
Madam President, I move this motion because I hope that government departments and other semi-government bodies such as the Trade Development Council and our own business sector will encourage their staff to use English more extensively. If we are to write in both English and Chinese, there may be a greater consumption of paper and that may be undesirable from the perspective of environmental protection. But if we put the English and Chinese versions of say, a circular, together, then there will not involve too much waste of paper. Yet, if the public can have more chances to read and listen to English, then just as the Honourable Martin LEE has said, they will naturaly pick up English by and by.
Madam President, I would like to add one point. I remember many years ago when my daughter was still very young, she knew how to sing an English song, but at that time she did not know any English.
Thank you, Madam President.
PRESIDENT (in Cantonese): I now put the question to you and that is: That the motion moved by Mr James TIEN be passed. Will those in favour please raise their hands?
(Members raised their hands)
PRESIDENT (in Cantonese): Those against please raise their hands.
(No hands raised)
PRESIDENT (in Cantonese): I think the question is agreed by a majority respectively of each of the two groups of Members, that is, those returned by functional constituencies and those returned by geographical constituencies through direct elections and by the Election Committee, who are present. I declare the motion passed.
PRESIDENT (in Cantonese): I now adjourn the Council until 2.30 pm on Wednesday, 2 June 1999.
Adjourned accordingly at twenty-eight minutes past Eight o'clock.
Written answer by the Secretary for Education and Manpower to Mr Howard YOUNG's supplementary question to Question 2
The breakdown on the number of persons with a disability employed in government and private organizations through the Selective Placement Division is as follows:
||No. of employed persons
||No. of persons employed in government organizations
||Compared with last year
||No. of persons employed in private organizations
||Compared with last year
||1 346 (95%)
||1 302 (92%)
||1 241 (87%)
||1 230 (83%)
||1 163 (80%)
(January to April)
Written answer by the Secretary for Education and Manpower to Miss CHOY So-yuk's supplementary question to Question 2
According to information provided by the Equal Opportunities Commission, in the two and a half years since the enactment of the Disability Discrimination Ordinance on 20 December 1996 up to the end of April this year, the Commission received a total of 250 complaints on various aspects of employment, the breakdown of which is as follows:
1 January to
1 January to
1 January to
Areas of Complaint
|Opportunities for promotion, transfer and training; enjoying benefits, services and facilities and so on
|Discrimination by other organizations2||0
refers to disability discrimination in employment by way of harassment, that is, any acts or verbal statements made by any other persons to a person with a disability on account of the latter's disability, causing the latter to feel humiliated or intimidated.
refers to employment agencies or trade unions and so on.
Written answer by the Secretary for Home Affairs to Mr LAU Kong-wah's supplementary question to Question 4
Examples of those international events that were unable to perform in Hong Kong because they could not find a suitable venue, as provided by the Hong Kong Tourist Association, are now set out in the Appendix. The majority of these events are musicals which require venues with a larger seating capacity and a long booking period (in terms of weeks) to be economically viable.
International Events Unable to Obtain Venues*
|Events Proposed for 1997
|- Miss Saigon
||Hong Kong Cultural Centre (HKCC) Grand Theatre
|- West Side Story
||HKCC Grand Theatre
|- Cliff RICHARD in Concert
||Hong Kong Coliseum
|Events Proposed for 1998
||HKCC Grand Theatre
|- Crazy for you
||HKCC Grand Theatre
|- Magic JOHNSON
All stars vs. Asian All Stars
||Hong Kong Coliseum
WRITTEN ANSWER — Continued
|Event Proposed for 1999
||Hong Kong Coliseum
|Event Proposed for 2000
|- Sunset Boulevard
||HKCC Grand Theatre or Hong Kong Academy for Performing Arts Lyric Theatre
* Information provided by Hong Kong Tourist Association.
ALICE HO MIU LING NETHERSOLE HOSPITAL INCORPORATION
(AMENDMENT) BILL 1999
Amendments to be moved by the Honourable Eric LI Ka-cheung, J.P.
1 Section 59A of the SFCO empowers the SFC to conduct investigations into matters as per request by overseas regulators.
By deleting "the Government, all bodies politic and corporate, and all others" and substituting "the Central Authorities or the Government of the Hong Kong Special Administrative Region under the Basic Law and other laws, or the rights of any body politic or corporate or of any other persons".
By deleting ", and those claiming by, from, and" and substituting "and those claiming by, from or".