LC Paper No. LS 119/98-99
Paper for the House Committee Meeting
of the Legislative Council
on 12 March 1999
Object(s) of the Bill
Legal Service Division Report on
Adaptation of Laws (No. 5) Bill 1999
To adapt certain Ordinances and their subsidiary legislation to bring them into conformity with the Basic Law and with the status of Hong Kong as a Special Administrative Region of the People's Republic of China.
LegCo Brief Reference
2. L/M (H) in PELB(CR)10/32/98 issued by the Planning, Environment and Lands Bureau in February 1999.
Date of First Reading
3. 10 March 1999.
4. A list of the Ordinances and subsidiary legislation affected by the Bill and a summary of the proposed amendments in the Bill are at Annexes Aand B respectively. Members may note that all of the Ordinances and subsidiary legislation set out at Annex A deal with land and buildings.
References to the Commonwealth
5. The Bill proposes to amend sections 2 and 3 of the Aliens (Rights of Property) Ordinance (Cap. 185) by replacing "Commonwealth citizen" with "Chinese citizen". The amendment serves to :
- declare that any "alien" shall have the same rights to hold and transfer immovable property in Hong Kong as if he were a Chinese citizen residing herein; and
- deem in law as valid and effectual every grant or transfer of immovable property in Hong Kong by an alien as if it had been made or done by any Chinese citizen.
6. Prior to 1 July 1997, "alien" has been defined in the Interpretation and General Clauses Ordinance (Cap. 1) to mean a person who is neither a Commonwealth citizen nor a British protected person nor a citizen of the Republic of Ireland. Hence, the two sections provide that an alien shall have the same rights in respect of immovable property in Hong Kong as those of a Commonwealth citizen.
7. Pursuant to the Adaptation of Laws (Interpretative Provisions) Ordinance (26 of 1998), the definition of "alien" has been amended to mean a person other than a Chinese citizen. "Chinese citizen" is defined as a person who has Chinese nationality under the Nationality Law of the People's Republic of China in Schedule 4 to the Promulgation of National Laws 1997 (L.N.379 of 1997). Paragraph 20 of Schedule 8 to the Interpretation and General Clauses Ordinance (Cap. 1) also provides that any reference to an "alien" contained in any law in force immediately before 1 July 1997 and adopted as part of the laws of the HKSAR shall be construed as a reference to a person other than a citizen of the People's Republic of China.
8. The Aliens (Rights of Property) Ordinance (Cap. 185) was enacted in 1853 to remove doubts regarding the rights of aliens to hold and transfer immovable property in Hong Kong which had arisen pursuant to the Act of Parliament 10 and 11 Victoria, chapter 83, intituled "An Act for the Naturalization of Aliens". The Administration has been requested to supply us with a copy of the Act and clarify the application of the two definitions to the Ordinance.
9. The Bill further proposes to amend sections 3(1A)(a) and 46(1) of the Lifts and Escalators (Safety) Ordinance (Cap. 327) by replacing "government of any member of the Commonwealth" with "the Central People's Government". The adaptation would exempt certain provisions of the Ordinance from applying to a lift or escalator installed in any building belonging to the Government of the HKSAR or the Central People's Government or over which either Government has control or management, unless the lessee or sub-lessee of such building is neither of the two Governments and is responsible under an agreement for any lift or escalator which forms part of that building.
10. The Legal Service Division is seeking clarification from the Administration as to the reason for the proposed adaptation. If the Bill is enacted, buildings belonging to the government of any member of the Commonwealth may continue to be exempted if they satisfy the requirements under section 3(1A)(d), i.e. a building belonging wholly to the government of a foreign country and which is used exclusively or mainly for the purpose of the official business of the consular officer of such government. Prior to 1 July 1997, buildings belonging to the Central People's Government have been exempted from the application of the Ordinance under that subsection.
References to the Law of Property Act 1925 and the common law powers and remedies available to a mortgagee by deed in England
11. The Bill proposes to amend section 12(3) of the Demolished Buildings (Re-development of Sites) Ordinance (Cap. 337) by repealing references to the powers and remedies of a mortgagee by deed under the Law of Property Act 1925 and the common law in England and substituting the powers and remedies of a mortgagee under a legal charge or equitable mortgage by deed under the Conveyancing and Property Ordinance (Cap. 219) and the common law in Hong Kong.
12. The Legal Service Division is studying the legal effect of the proposed amendment and has asked the Administration to provide a comparison of the powers and remedies under the two legislation and common law systems. Section 12(3) of the Demolished Buildings (Re-development of Sites) Ordinance (Cap. 337) confers on The Financial Secretary Incorporated the said powers and remedies for the purpose of enforcing a charge created under the Ordinance. The Ordinance provides that upon registration in the Land Registry of a final award for compensation payable to protected tenants of a building of which a re-development notice has been served, the amount of such compensation and interest thereon shall constitute a charge on the property in favour of The Financial Secretary Incorporated in trust for the person or persons entitled until payment has been made.
13. If enacted, the Bill will take retrospective effect from 1 July 1997 to ensure that there is consistency in the interpretation of all laws on and after 1 July 1997. The retrospective effect will not apply to provisions involving criminal offences or penalties.
14. There has not been any public consultation on the Bill.
Consultation with the LegCo Panel
15. No consultation with any LegCo Panel on the details of the Bill has been carried out.
16. The Legal Service Division is seeking clarification from the Administration of the issues mentioned in paragraphs 5 to 12 above. A further report will be made after we receive the reply from the Administration.
Wong Sze-man, Bernice
Assistant Legal Adviser
Legislative Council Secretariat
8 March 1999
List of Ordinances and subsidiary legislation
affected by the Adaptation of Laws (No. 5) Bill 1999
|Item No.||Ordinances and subsidiary legislation
|1.||Land Registration Ordinance (Cap. 128) and Land Registration Regulations (Cap. 128 sub. leg.)
|2.||Aliens (Rights of Property) Ordinance (Cap. 185)
|3.||Conveyancing and Property Ordinance (Cap. 219)
|4.||Land Transactions (Enemy Occupation) Ordinance (Cap. 256)
|5.||Hong Kong Airport (Control of Obstructions) Ordinance (Cap. 301)
|6.||Lifts and Escalators (Safety) Ordinance (Cap. 327)
|7.||Demolished Buildings (Re-development of Sites) Ordinance (Cap. 337)
|8.||Electricity Networks (Statutory Easements) Ordinance (Cap. 357)
|9.||Sewage Tunnels (Statutory Easements) Ordinance (Cap. 438)
|10.||Land Drainage Ordinance (Cap. 446)