LC Paper No. CB(2) 1169/98-99
Ref : CB2/H/5
House Committee of the Legislative Council
Minutes of the 20th meeting
held in the Legislative Council Chamber
at 2:30 pm on Friday, 22 January 1999
Members present :
Dr Hon LEONG Che-hung, JP (Chairman)
Dr Hon YEUNG Sum (Deputy Chairman)
Hon Kenneth TING Woo-shou, JP
Hon David CHU Yu-lin
Hon HO Sai-chu, JP
Hon Cyd HO Sau-lan
Hon Edward HO Sing-tin, JP
Hon Albert HO Chun-yan
Hon Michael HO Mun-ka
Dr Hon Raymond HO Chung-tai, JP
Hon LEE Wing-tat
Hon Martin LEE Chu-ming, SC, JP
Hon Eric LI Ka-cheung, JP
Hon LEE Kai-ming, JP
Hon Fred LI Wah-ming
Dr Hon LUI Ming-wah, JP
Hon NG Leung-sing
Prof Hon NG Ching-fai
Hon Margaret NG Ngoi-yee
Hon Mrs Selina CHOW LIANG Shuk-yee, JP
Hon Ronald ARCULLI, JP
Hon MA Fung-kwok
Hon James TO Kun-sun
Hon CHEUNG Man-kwong
Hon Ambrose CHEUNG Wing-sum, JP
Hon HUI Cheung-ching
Hon Christine LOH Kung-wai
Hon CHAN Kwok-keung
Hon CHAN Yuen-han
Hon Bernard CHAN
Hon CHAN Wing-chan
Hon CHAN Kam-lam
Hon Mrs Sophie LEUNG LAU Yau-fun, JP
Hon LEUNG Yiu-chung
Hon Gary CHENG Kai-nam
Hon SIN Chung-kai
Hon Andrew WONG Wang-fat, JP
Dr Hon Philip WONG Yu-hong
Hon WONG Yung-kan
Hon Jasper TSANG Yok-sing, JP
Hon Howard YOUNG, JP
Hon YEUNG Yiu-chung
Hon LAU Kong-wah
Hon LAU Wong-fat, GBS, JP
Hon Mrs Miriam LAU Kin-yee, JP
Hon Ambrose LAU Hon-chuen, JP
Hon Emily LAU Wai-hing, JP
Hon CHOY So-yuk
Hon Andrew CHENG Kar-foo
Hon Timothy FOK Tsun-ting, JP
Hon LAW Chi-kwong, JP
Hon TAM Yiu-chung, JP
Hon FUNG Chi-kin
Dr Hon TANG Siu-tong, JP
Members absent :
Hon James TIEN Pei-chun, JP
Hon LEE Cheuk-yan
Dr Hon David LI Kwok-po, JP
Hon LAU Chin-shek, JP
Hon SZETO Wah
Clerk in attendance :
Staff in attendance :
- Mrs Justina LAM
- Clerk to the House Committee
- Mr Ricky C C FUNG, JP
- Secretary General
- Mr Jimmy MA, JP
- Legal Adviser
- Mr LAW Kam-sang, JP
- Deputy Secretary General
- Mr LEE Yu-sung
- Senior Assistant Legal Adviser
- Ms Pauline NG
- Assistant Secretary General 1
- Mr Ray CHAN
- Assistant Secretary General 3
- Miss Connie FUNG
- Assistant Legal Adviser 3
- Mr Arthur CHEUNG
- Assistant Legal Adviser 5
- Mr KAU Kin-wah
- Assistant Legal Adviser 6
- Mrs Anna LO
- Chief Assistant Secretary (Complaints)
- Miss Kathleen LAU
- Chief Public Information Officer
- Miss Odelia LEUNG
- Chief Assistant Secretary (1)1
- Mrs Betty LEUNG
- Chief Assistant Secretary (3)1
- Miss Mary SO
- Senior Assistant Secretary (2)8
The Chairman informed members that two additional reports would be made under agenda item VII.
I. Confirmation of the minutes of the 19th meeting held on 15 January 1999
(LC Paper No. CB(2) 1106/98-99)
1. The minutes were confirmed.
II. Matters arising
Report by the Chairman on his meeting with the Chief Secretary for Administration (CS)
2. The Chairman said that CS hoped that the debate on the motion on "Civil service's culture and efficiency" could focus on general issues and that as there would be a Government Minute later on, the Administration would not be expected to respond on specific cases during the debate.
III. Business arising from previous Council meetings
(a) Legal Service Division's report on bills referred to the House Committee in accordance with Rule 54(4)
Adaptation of Laws (No.18) Bill 1998
(LC Paper No. LS 84/98-99)
3. Before introducing the paper, the Legal Adviser said that the Administration had confirmed in writing that the various religious organizations affected by the Adaptation of Laws (No.14) Bill 1998 had been fully consulted on the proposed amendments and had raised no objection.
4. The Legal Adviser said that the Adaptation of Laws (No.18) Bill 1998 proposed, among other things, the deletion in section 2 of the Dominican Missions Ordinance, the London Missionary Society Incorporation Ordinance and the Missions Etrangères Incorporation Ordinance of the reference to the requirement of placing in the hands of the Governor satisfactory proof of the appointment of the Procurator before the incorporation of the missions concerned. The Legal Adviser pointed out that according to the Administration, such requirement was no longer necessary, as the missions had all been incorporated. However, it appeared that the purpose of the amendment was to delete an obsolete provision rather than to effect adaptations. The Legal Service Division had therefore written to the Administration asking for an explanation on how and why the proposed deletion was an adaptation item. A further report would be made to the House Committee in due course.
5. The Legal Adviser added that as a number of amendments proposed by the Bill were along the same lines as some amendments proposed in the Adaptation of Laws Bill 1998, he suggested that members should wait until the Bills Committee on that Bill had completed work before deciding on how this Bill should be dealt with. Members agreed.
(b) Legal Service Division's report on subsidiary legislation tabled in Council on 20 January 1999 (gazetted on 15 January 1999)
(LC Paper No. LS 100/98-99)
6. The Legal Adviser introduced the paper covering the seven items of subsidiary legislation gazetted on 15 January 1999. Referring to the Road Traffic (Construction and Maintenance of Vehicles) Regulation 1999 made under the Road Traffic Ordinance, the Legal Adviser explained that the Amendment Regulation sought to remove the reference to a specific model of smokemeter originally described in the Fourth Schedule of the Road Traffic (Construction and Maintenance of Vehicles) Regulations. In substitution, models of smoke measuring apparatus would be specified by the Commissioner for Transport by notice published in the Gazette. The Legal Adviser said that as such notice was expressly stated in the added new paragraph (2A) not to be subsidiary legislation and consequently not subject to scrutiny by the Council, members might wish to set up a subcommittee to study the point of principle involved.
7. The Chairman suggested that a subcommittee should be formed. The following members agreed to join: Mr Ronald ARCULLI, Miss Christine LOH Kung-wai, Mr LAU Kong-wah, Mrs Miriam LAU Kin-yee and Mr Andrew CHENG Kar-foo.
8. Members did not raise any queries on the remaining six items of subsidiary legislation.
9. The Chairman informed members that the deadline for amending the subsidiary legislation was 10 February 1999 or 3 March 1999, if extended by resolution.
IV. Further business for the Council meeting on 27 January 1999
(LC Paper No. CB(3)1152/98-99 tabled at the meeting)
10. Members noted Mr Fred LI Wah-ming's revised question set out in the paper.
(b) Bill - resumption of debate on Second Reading, Committee Stage and Third Reading
Immigration (Amendment) (No.2) Bill 1998
11. Members noted that the Administration had given notice to resume the Second Reading debate on the Bill at the Council meeting on 27 January 1999.
V. Business for the Council meeting on 3 February 1999
(LC Paper No. CB(3) 1127/98-99)
12. The Chairman said that 20 questions (six oral and 14 written) had been tentatively scheduled.
(b) Bills - First and Second Readings
(i) International Organizations (Privileges and Immunities) Bill
13. The Chairman said that the Administration had advised that the above Bill would be introduced into the Council on 10 February 1999, instead of 3 February 1999.
(ii) Chinese Medicine Bill
14. Members noted that the above Bill would be introduced into the Council on 3 February 1999 and would be considered by the House Committee on 5 February 1999.
(c) Government motion
Resolution under section 16(3) of the Protection of Wages on Insolvency Ordinance (Cap. 380) - to be moved by the Secretary for Education and Manpower
(LC Paper No. LS 102/98-99)
15. Referring to the paper, the Legal Adviser said that the proposed resolution sought to increase the existing limit of severance payment from $36,000 to $50,000, plus 50% of that part of the employee's entitlement to severance payment in excess of $50,000. The increase would take effect from 5 February 1999, if approved by the Council.
16. The Chairman said that the proposed resolution was discussed by the Panel on Manpower on 23 December 1998.
17. Mr Eric LI said that he had no objection to the proposed increase but was concerned about the financial implications of the proposed increase on the Protection of Wages on Insolvency Fund (PWIF), given that the PWIF incurred its first ever deficit in 1998 because of the current economic downturn. In fact, he had given notice to ask a question on the PWIF at the Council meeting on 3 February 1999. Mr LI enquired whether the Panel on Manpower had considered this aspect when discussing the proposed resolution.
18. Mr LEE Kai-ming responded that the Panel on Manpower supported the proposed resolution after very careful consideration and having regard to the financial position of the PWIF. He informed members that the proposal had already been endorsed by the PWIF Board and the Labour Advisory Board, both of which comprised employer and employee representatives, and the financial experts managing the PWIF. They were of the view that the PWIF should be able to bear the additional payments arising from the proposal, given that the PWIF still stood at a healthy level of $777 million as at 30 November 1998 and that the economic downturn was not expected to continue for more than two to three years. Mr LEE further pointed out that if the proposal was implemented, it was estimated that some 84% of the applicants would be able to get their full entitlements in severance payment, as opposed to only 75% in 1997.
19. In reply to Mr Eric LI's enquiry, the Legal Adviser said that the PWIF would apply the severance payment entitlement as determined by the provisions of the Employment Ordinance.
20. Mr Eric LI said that in the absence of any concrete figures to substantiate that the financial position of the PWIF would not be adversely affected as a result of the proposed increase, he would need to seek further information from the Administration.
21. Mr Ronald ARCULLI expressed support that more information should be sought from the Administration. He suggested that a decision on how the proposed resolution should be dealt with be deferred to the next House Committee meeting.
22. The Chairman reminded members that should a subcommittee be considered necessary, the Administration would have to withdraw its notice for moving the proposed resolution at the Council meeting on 3 February 1999, and the proposal could not take effect on 5 February 1999 as planned.
23. In reply to Mr ARCULLI's enquiry, the Legal Adviser said that the limit of severance payment of $36,000 was last increased from $18,000 on 2 February 1996.
(d) Members motion
Motion on "Prices of fuel"
24. Members noted the draft wording of the motion to be moved by Mrs Miriam LAU Kin-yee.
25. The Chairman informed members that the deadline for giving notice of amendments (if any) to the motion was 27 January 1999. The speaking time limits stipulated in rule 17(c) of the House Rules would apply.
26. The Chairman said that Dr TANG Siu-tong had withdrawn his notice to move a motion on "Effects of changes in the functions of the municipal service on the public" at the Council meeting on 3 February 1999. At the invitation of the Chairman, Dr TANG said that the reason for his withdrawal was that the consultant commissioned by the Administration to develop a new administrative structure on arts, culture, sports and recreation services had not yet completed work.
27. In reply to Dr TANG's enquiry, Assistant Secretary General 3 said that as Dr TANG had withdrawn his notice before the deadline for giving notice of motion, he would not be regarded as having sponsored a motion for the purpose of the queuing system. He further said that Dr TANG's withdrawal came just before the deadline of giving notice. The Secretariat therefore did not issue a circular to invite Members to apply for the vacant slot and had only consulted the two Members who had been allocated debate slots at the Council meeting on 10 February 1999 to see if they were interested in taking up the vacant slot.
28. Mrs Selina CHOW said that the report of the Select Committee to inquire into the circumstances leading to the problems surrounding the commencement of the operation of the New Hong Kong International Airport at Chek Lap Kok since 6 July 1998 and related issues would be tabled in Council on 27 January 1999. As Chairman of the Select Committee, she would like to move a motion on the report for debate at the Council meeting on 3 February 1999 using the vacant slot. She hoped that members would agree so that she could seek the President's permission for the requisite notice period to be waived.
29. In reply to the Chairman's enquiry, Assistant Secretary General 3 said that according to the House Rules, the House Committee had the authority to determine the allocation of the vacant debate slot.
30. In reply to Mr Fred LI's enquiry, Mrs Selina CHOW said that in line with past practice, the report of a Select Committee would be tabled in Council and a motion debate on it would be held at the following Council meeting.
31. Dr YEUNG sum, Mr Fred LI and Miss Emily LAU expressed support for Mrs CHOW's request. Miss LAU asked whether another Member could speak on her behalf as she would be out of town.
32. In reply, the Secretary General referred members to rule 16 of the House Rules which stipulated that a Member who wished to take part in a debate but who could not attend the meeting at which the debate was held could request another Member speaking in the debate to express his views in the speech. A Member who had undertaken to express an absent Member's views in the debate should express his own views first and then say that these views were shared by the absent Member. The Member speaking should not read a speech prepared by the absent Member, nor should he speak at length about the absent Member's views and then say at the end that he agreed with such views.
33. Miss LAU further said that as the Select Committee was appointed by the Council and its membership was broadly representative of the membership of the Council, she hoped that Members would support the motion and would not propose any amendment.
34. Mr James TO said that he would also not be in Hong Kong on 3 February 1999. He strongly objected to holding the debate on the report of the Select Committee on 3 February 1999, not because of his absence but because one week's time was hardly adequate for Members who were not on the Select Committee to digest all the relevant materials. The outcome would be that only Select Committee members would take part in the debate. He further pointed out that as the report would already have made its strongest impact after its tabling in Council, the debate could be held later, say March 1999. He considered the decision to hold the debate on 3 February 1999 to be incorrect and asked that his objection be recorded.
35. In response, Mrs Selina CHOW said that she and the Deputy Chairman of the Select Committee would be happy to answer any queries that Members might have on the report of the Select Committee.
36. The Chairman suggested and members agreed that:
- Mrs Selina CHOW be allocated a debate slot to move the motion on the report of the Select Committee on 3 February 1999;
- Mrs CHOW's motion would be the first motion to be debated at the Council meeting on 3 February 1999;
- Mrs CHOW would not be regarded as having sponsored a motion for the purpose of the queuing system; and
- Members should not propose amendments to the motion.
VI. Advance information on business for the Council meeting on 10 February 1999
(a) Bills - First and Second Readings
(i) Adaptation of Laws (No.2) Bill 1999
(ii) Adaptation of Laws (No.3) Bill 1999
(iii) Adaptation of Laws (No.4) Bill 1999
37. Members noted that the above three Bills and the International Organizations (Privileges and Immunities) Bill would be introduced into the Council on 10 February 1999 and would be considered by the House Committee on 26 February 1999.
(b) Members motions
(i) Motion to be moved by Hon Mrs Selina CHOW LIANG Shuk-yee
38. Mrs Selina CHOW said that she would withdraw her notice to move a motion at the Council meeting on 10 February 1999.
39. Assistant Secretary General 3 said that the Secretariat would issue a circular inviting Members to submit applications for the vacant debate slot at the Council meeting on 10 February 1999. The deadline would be 12:00 noon on Monday, 25 January 1999.
(ii) Motion on "Disbandment of the two Municipal Councils"
40. The Chairman informed members that Mr Ambrose CHEUNG had withdrawn his notice to move the above motion and had applied for a debate slot at the Council meeting on 10 March 1999. The Secretariat had issued a circular inviting Members to submit applications for the vacant slot by 12:00 noon on 22 January 1999. Assistant Secretary General 3 said that at the close of the application deadline, only Mr SIN Chung-kai had applied for the vacant slot.
41. At the invitation of the Chairman, Mr Ambrose CHEUNG explained that 10 February 1999 was not a suitable time for a debate on the motion in view of the proposal of having "One municipal council, one municipal services department" put forward by the two Municipal Councils recently and the fact that the consultant commissioned by the Administration to develop a new administrative structure on arts, culture, sports and recreation services had not yet completed work. Moreover, he would like to be apprised of the legislative proposals relating to the disbandment of the Municipal Councils on which the Administration had undertaken to conduct a briefing at the joint meeting of the Panels on Health Services, Environmental Affairs and Constitutional Affairs on 8 February 1999.
42. The Chairman reminded members that the deadlines for giving notice of the motions and notice of amendments (if any) to the motions to be moved on 10 February 1999 were 26 January 1999 and 3 February 1999 respectively. The speaking time limits stipulated in rule 17(c) of the House Rules would apply.
(a) Position report on Bills Committees/subcommittees
(LC Paper No. CB(2) 1109/98-99)
43. The Chairman said that there were 12 Bills Committees and 4 subcommittees, including the one subcommittee formed earlier at the meeting.
(b) Report of the Subcommittee on Ozone Layer Protection (Controlled Refrigerants) Regulation (Commencement Notice) 1998
44. Mr Ronald ARCULLI, Chairman of the Subcommittee, said that the Legal Service Division and the Administration held different views as to the validity of the Ozone Layer Protection (Controlled Refrigerants) (Commencement) Notice 1994 which was gazetted as a General Notice but which had not been tabled in Council. The Legal Service Division considered the requirement of laying of subsidiary legislation in the Council directory for the purpose of determining the validity of the subsidiary legislation, whereas the Administration considered the requirement mandatory. Mr ARCULLI further informed members that, as advised by the Legal Adviser, 19 Legal Notices which were gazetted on 27 and 30 June 1997 had not been tabled in Council. Subcommittee members recommended that a separate subcommittee be formed on the matter and that the Administration be requested to give formal notice to the Clerk to LegCo on subsidiary legislation which should be tabled.
45. In reply to the Chairman, Mr ARCULLI said that the new subcommittee should study the issue of subsidiary legislation gazetted but not tabled in Council and not the provisions of the 19 subsidiary legislation in question.
46. The Legal Adviser said that, in his view, it was the duty of the Administration to make sure that section 34 of the Interpretation and General Clauses Ordinance was complied in that all subsidiary legislation were laid on the table of LegCo so that LegCo could perform its functions under section 34(2).
47. Mr LEE Kai-ming concurred with the Legal Adviser's views and said that the Administration should give formal notice to the Clerk to LegCo on subsidiary legislation which should be tabled in Council.
48. Dr YEUNG Sum suggested that the subcommittee should also consider whether a formal procedure should be laid down for the tabling of subsidiary legislation, and if necessary, amendments be made to the Rules of Procedure.
49. Members agreed to form a subcommittee to study the issue of subsidiary legislation gazetted but not tabled in Council. The following members agreed to join: Mr LEE Kai-ming, Miss Margaret NG Ngoi-yee, Mr Ronald ARCULLI and Mr James TO Kun-sun. Members further agreed that the Chairman should raise the matter with CS.
(c) Report of the Panel on the Administration of Justice and Legal Services
50. Miss Margaret NG, Chairman of the Panel, said that in view of the considerable public concern about the Hong Kong Standard case, the Panel considered it imperative that the Secretary for Justice (SJ) should explain her decision not to prosecute Ms Sally AW to the Panel. A letter was sent to SJ on 21 January 1999 inviting her to attend a special meeting of the Panel on 22 January 1999. SJ declined the invitation but replied in writing explaining that she needed to first study the Reasons for Verdict and consider the report of the case being prepared by counsel who conducted the prosecution. She would have to examine the transcript as well, if necessary.
51. Miss NG further said that members of the Panel present at the meeting on 22 January 1999 found SJ's reply unacceptable and had discussed whether it was necessary to use powers provided in the Legislative Council (Powers and Privileges) Ordinance to summon SJ to appear before the Panel on the matter and answer questions. Members finally decided to write to SJ again reiterating the Panel's concern and requesting her to explain her decision not to prosecute Ms Sally AW at the earliest opportunity.
52. The Chairman informed members that SJ had telephoned him in the morning assuring him that she was very willing to address the Panel on her decision not to prosecute Ms Sally AW after she had considered the Reasons for Verdict and the counsel's report. SJ also told him that the timing for her explanation would need to take into account any matter which might be raised if there was any appeal against conviction, although such appeal would not necessarily have a bearing on her timing to address Members on the case.
53. Mr Martin LEE said that he had so far refrained from commenting whether or not SJ was right in not prosecuting Ms Sally AW. However, the press had recently reported that Ms Sally AW had admitted to the Independent Commission Against Corruption that she had given the green light to inflate circulation figures. Although he did not know how true this press report was, he could not accept the reasons put forward by SJ for not explaining her decision not to prosecute Ms Sally AW.
54. Mr Ronald ARCULLI agreed that SJ should address the Panel on the case, given the growing public concern. He believed that SJ would do so and hoped that the use of powers under the Legislative Council (Powers and Privileges) Ordinance to summon a public officer to give information would not become a standard practice of Panels.
55. Miss Emily LAU echoed Miss NG's views that SJ must explain her decision not to prosecute Ms Sally AW. She further said that in order to elicit a reply from SJ at the earliest possible time, consideration should be given to asking an urgent question in Council or requesting SJ to make a statement at the Council meeting on 27 January 1999. Regarding the latter, the Legal Adviser said that a statement of this nature had been made at a sitting of the former LegCo where the then Attorney General made a statement on the Alan Bond case.
56. In response, Miss NG said that having regard to past experience, she doubted whether the President would agree that a question relating to the Hong Kong Standard case was of an urgent nature. Mrs Selina CHOW said that it was more suitable for an issue of this nature to be discussed at a Panel meeting where Members would have more time to ask the Administration questions and give views. Mr ARCULLI pointed out that Members would only be allowed to ask short questions for the purpose of seeking elucidation of the statement.
57. In reply to Miss Emily LAU and Mrs Selina CHOW's enquiry, the Legal Adviser said that without knowing the full facts of the case and whether those convicted would lodge an appeal, it was difficult to give a definite answer on whether asking questions on the case would breach the sub judice rule. He further pointed out that in accordance with Rule 41(2) of the Rules of Procedures, Members should not make reference to a case pending in a court of law in such a way which might prejudice that case. The intention of this Rule was to avoid undermining the interests of people involved in a case pending in a court of law.
58. Miss NG said that whether or not there would be an appeal would not be relevant to SJ's decision made in March 1998 not to prosecute Ms Sally AW. Now that the case had been concluded, SJ should honour her promise that she would give her explanation at the conclusion of the case. Miss NG added that if SJ had difficulty in doing so, she should explain her difficulty instead of remaining silent.
59. The Chairman suggested that he might ask CS to urge SJ to address Members on the case as soon as possible at his next meeting with CS.
60. Mr Martin LEE said that he disagreed with the suggestion of bringing up the matter with CS, as it would give a wrong impression of inviting the executive authorities to intervene in the affairs of the Department of Justice. Mrs Selina CHOW shared Mr LEE's view.
61. Mr Albert HO said that SJ's meeting with the Panel to explain her decision not to prosecute Ms AW should not be conducted in camera and should be open to all Members. Mrs Selina CHOW echoed Mr HO's view.
62. Miss Emily LAU said that although Panel members did not consider it necessary to invoke the Legislative Council (Powers and Privileges) Ordinance to summon SJ to appear before the Panel for the time being, the Administration should not be given an impression that this option had been ruled out.
VIII. Any other business
Follow-up on motions with no legislative effect passed in Council
(LC Paper No. CB(3) 1122/98-99)
63. Members noted the paper and agreed that motions with no legislative effect passed in Council should continue to be followed up by the relevant Panels.
64. The meeting ended at 4:01 pm.
Legislative Council Secretariat
27 January 1999