LC Paper No. LS147/98-99

Paper for the House Committee Meeting
of the Legislative Council
on 23 April 1999

Legal Service Division Report on
Adaptation of Laws (No. 10) 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. S.F.(41) Pt.7 to CSO/ADM CR 1/1/3572/90(99) issued by the Chief Secretary for Administration's Office on 30 March 1999.

Date of First Reading

3. 21 April 1999.

Comments

4. A list of the Ordinances and subsidiary legislation affected by the Bill is at Annex C. A summary of the technical amendments is set out in Annex A. The Bill seeks to revise the Ordinances and subsidiary legislation dealing with the privileges and immunities enjoyed by diplomatic officers and international organizations in Hong Kong consequential upon the change of Hong Kong's status as a territory under the British Administration to that of a Special Administrative Region of the People's Republic of China.

5. Apart from the provisions mentioned in Annex B, the Bill does not seek to introduce any change in policy and only effects essentially technical drafting changes to individual Ordinances.

6. 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.

Public Consultation

7. There has not been any public consultation on the Bill.

Consultation with the LegCo Panel

8. No consultation with any LegCo Panel on the details of the Bill has been carried out.

Conclusion

9. The Legal Service Division is seeking clarification from the Administration on certain legal and drafting aspects of the Bill. A further report will be issued if necessary.

Prepared by

KAU Kin-wah
Assistant Legal Adviser
Legislative Council Secretariat
20 April 1999

Annex A

A. Proposed Technical Changes

B. Proposed Repeals

1. "and Land Commission" in section 1 of the Privileges and Immunities (Joint Liaison Group and Land Commission) Ordinance (Cap. 36); regulation 12(1)(m) and 15 of the Dutiable Commodities Regulations (Cap. 109 sub. leg.); section 43(3)(a)(iii) and (b)(iii) of the Stamp Duty Ordinance (Cap. 117); paragraph 10 of the Second Schedule to the Air Passenger Departure Tax Ordinance (Cap. 140); section 4(3) of the Cross-Harbour Tunnel (Passage Tax) Ordinance (Cap. 274).

2. Definition of the "Land Commission" in section 2 of the Privileges and Immunities (Joint Liaison Group and Land Commission) Ordinance (Cap. 36).

3. "The Governor declares and provides and it is hereby declared and provided as follows -" at the beginning of The Food and Agriculture Organization; The International Civil Aviation Organization; The International Labour Organization; The United Nations; The United Nations Educational, Scientific and Cultural Organization; and The World Health Organization (all Cap. 190 sub. leg.).

4. "His Excellency the Governor hereby declares and provides as follows -" at the beginning of The Inter-governmental Maritime Consultative Organization; The International Atomic Energy Agency; The International Telecommunication Union; The Universal Postal Union; The World Meteorological Organization; and The Asian Development Bank (all Cap. 190 sub. leg.).

5. The Consular Conventions (Consolidation) Order (Cap. 267 sub. leg.).

Annex B

A. Summary of Repealed Provisions

1. The Second Schedule to the International Organizations and Diplomatic Privileges Ordinance (Cap. 190).

2. The proviso to Article 9 of The Inter-governmental Maritime Consultative Organization (Cap. 190 sub. leg.).

3. The European Communities Notification (Cap. 190 sub. leg.).

4. The preamble to the Administration of Estates by Consular Officers Ordinance (Cap. 191).

5. The Chinese Visa Office (Privileges and Immunities) Ordinance (Cap. 224).

6. Section 12 of the Consular Relations Ordinance (Cap. 259).

7. The 30 orders (all Cap. 259 sub. leg.) made under the Consular Relations Ordinance (Cap. 259).

8. "the China Visa Office (Privileges and Immunities) Ordinance (Cap. 224)" in regulation 12(1)(m) and regulation 15 of the Dutiable Commodities Regulations (Cap. 109 sub. leg.) and in section 4(3) of the Cross-Harbour Tunnel (Passage Tax) Ordinance (Cap. 274); section 43(3)(a)(ii) and (b)(ii) of the Stamp Duty Ordinance (Cap. 117); and paragraph 9 of the Second Schedule to the Air Passenger Departure Tax Ordinance (Cap. 140).

Ordinance/Sub. Leg.	Section/Schedule/Paragraph	Original Provision	Amended Provision
International Organizations and Diplomatic Privileges Ordinance (Cap. 190)	Long Title	the law for the time being in force in England	custom for the time being in force in the People's Republic of China
	Section 6	the law applicable to the Colony, the law and	any Ordinance, the
		England	the People's Republicof China
	First Schedule Part I Paragraph 2 and Paragraph 3	England	the People's Republicof China
	First Schedule Part II Paragraph 1	England	the People's Republicof China
	First Schedule Part IV Paragraph 1 and Paragraph 2	England	the People's Republicof China
The Food and Agriculture Organization (Cap. 190 sub. leg.)	Article 8 Paragraph (1)(c)	British citizens, British Dependant Territories citizens or British Overseas citizens	Chinese nationals
	Article 8 Paragraph (3)	a British citizen, a British Dependant Territories citizen or a British Overseas citizen and who is not the representative of a Government of Her Majesty other than Her Majesty's Government in Hong Kong or a member of the staff of and accompanying any such representative.	a Chinese national.
The International Civil Aviation Organization (Cap. 190 sub. leg.)	Article 8 Paragraph (3)
The International Labour Organization (Cap. 190 sub. leg.)	Article 8 Paragraph (3)
The United Nations Educational, Scientific and Cultural Organization (Cap. 190 sub. leg.)	Article 8 Paragraph (3)
The World Health Organization (Cap. 190 sub. leg.)	Article 8 Paragraph (3)
The International Atomic Energy Agency (Cap. 190 sub. leg.)	Article 8 Paragraph (4) Proviso to Article 9 Proviso to subparagraph (c)of Article 11(1)	a British citizen, a British Dependent Territories citizen or a British Overseas citizen	a Chinese national
The Inter-governmental Maritime Consultative Organization (Cap. 190 sub. leg.)	Article 8 Paragraph (4)
The Organization for the Network of Aquaculture Centres in Asia and the Pacific Notification (Cap. 109 sub. leg.)	Paragraph 9(4)
The International Telecommunication Union(Cap. 190 sub. leg.)	Article 8(4)
The International Civil Aviation Organization (Cap. 190 sub. leg.)	Article 8 Paragraph 1(c)	British citizens, British Dependent Territories citizens or British Overseas citizens	Chinese nationals
The International Labour Organization (Cap. 190 sub. leg.)	Article 8 Paragraph 1(c)
The United Nations (Cap. 190 sub. leg.)	Article 8(c) Article 13
The United Nations Educational, Scientific and Cultural Organization (Cap. 190 sub. leg.)	Article 8 Paragraph (1)(c)
The World Health Organization (Cap. 190 sub. leg.)	Article 8 Paragraph (1)(c)
The United Nations(Cap. 190 sub. leg.)	Article 15	British citizen, British Dependent Territories citizen or British Overseas citizen	[where it first appears] a Chinese national
			[where it secondly appears] Chinese national
The Universal Postal Union (Cap. 190 sub. leg.)	Article 8(4)	a British citizen, a British Dependent Territories citizen or a British Overseas citizen	a Chinese national
The World Meteorological Organization (Cap. 190 sub. leg.)	Article 8(4)
The Asia-Pacific Telecommunity Notification (Cap. 190 sub. leg.)	Article 11(4)
The International Maritime Satellite Organization Notification (Cap. 190 sub. leg.)	Article 9(4)
The International Telecommunications Satellite Organization Notification(Cap. 190 sub. leg.)	Article 9(4)
The United Nations(Cap. 190 sub. leg.)	Article 15	except a Government of Her Majesty other than Her Majesty's Government in the Colony.
Administration of Estates by Consular Officers Ordinance (Cap. 191)	Section 3	by deleting therefrom any State when the provision of the Treaty with that State mentioned in the Schedule shall have ceased to have effect; by adding thereto any State with whom Her Majesty shall make a Treaty of Commerce and Navigation containing provision similar to any of the provisions mentioned in the Schedule.	by adding thereto any State with whom the Government of the People's Republic of China has entered into an agreement or arrangement which or any provision of which provides for the administration of estates by consular officers and which applies to Hong Kong; by deleting therefrom any State when the provision of the agreement or arrangement with that State mentioned in the Schedule shall have ceased to have effect.
	The Schedule	[The whole Schedule is repealed]	Schedule Name Title       Date  Provision of          of           of State Agreement Agreement            or             or    Arrangement    Arrangement
Consular Relations Ordinance (Cap. 259)	Section 2(2)	"national of the receiving State" shall be construed as meaning - (a) a British citizen, a British Dependent Territories citizen, or a British Overseas citizens; or (b) a British subject; or (c) a British protected person.	"national of the receiving State" shall be construed as meaning a Chinese national.
	Section 2(8) Section 10(3)	Diplomatic Privileges Act 1964 (1964 c. 81 U.K.)	Regulations of the People's Republic of China concerning Diplomatic Privileges and Immunities (L.N. 379 of 1997)
	Section 6(1)	person who is a British citizen, a British Dependant Territories citizen or a British Overseas citizen or is otherwise comprised in the definition of "national of the receiving State" in subsection (2) of section 2,	Chinese national

Annex C

1. Privileges and Immunities (Joint Liaison Group and Land Commission) Ordinance (Cap. 36).

2. International Organizations and Diplomatic Privileges Ordinance (Cap. 190) and its subsidiary legislation.

3. Administration of Estates by Consular Officers Ordinance (Cap. 191).

4. Chinese Visa Office (Privileges and Immunities) Ordinance (Cap. 224).

5. Consular Relations Ordinance (Cap. 259) and its subsidiary legislation.

6. Consular Conventions Ordinance (Cap. 267) and its subsidiary legislation.