Legislative Council

LC Paper No. LS171/98-99

Paper for the House Committee Meeting
of the Legislative Council
on 30 April 1999

Legal Service Division Further Report on
Adaptation of Laws (No. 10) Bill 1999

At the House Committee Meeting held on 23 April 1999, the Legal Adviser reported that the Administration's response to certain legal and drafting issues raised by this Division was being studied. Having considered the Administration's view, we have affirmed our conclusion and would set out below briefly the issues and arguments for Members' consideration.

Substituting "England" by "the People's Republic of China"

2. The substitution is required in section 6 and paragraphs 2 and 3 of Part I, paragraph 1 of Part II, and paragraphs 1 and 2 of Part IV of the First Schedule of the International Organizations and Diplomatic Privileges Ordinance (Cap. 190) ("the Ordinance"). The context of the substitution is that what is in force or accorded in England would be in force or accorded in Hong Kong. When "England" is substituted by "PRC", an ambiguity, which does not exist under the original provision, would arise. This is because Hong Kong has never been part of England but is an inalienable part of PRC. "What is in force or accorded in PRC would be in force or accorded in Hong Kong" does not seem to make sense because Hong Kong is also part of PRC. The Administration's response that PRC is a legal concept and not a geographical concept, is neither here nor there. It may perhaps be more appropriate if "Mainland China" is used.

British Citizen, British Dependent Territories Citizen or
British Overseas Citizen and Chinese National

3. In the 15 subsidiary legislation made under the Ordinance, references to "British citizen(s), British Dependent Territories citizen(s) or British Overseas citizen(s)" are replaced by "Chinese national(s)". (For detail provisions please see pages 3 to 7 of Annex B of the Legal Service Report LS147/98-99.) Each of such references is in the context of a provision that excludes such citizens from the privileges and immunities accorded to representatives and staff of the named international organizations. It is accepted that the range of persons covered by "British citizen(s), British Dependent Territories citizen(s) or British Overseas citizen(s)" and that by "Chinese national(s)" cannot be the same. However, when we look at the effect of application to the residents of Hong Kong, the difference becomes significant. Hong Kong permanent residents who are not Chinese nationals but are BDTCs or BOCs would now enjoy privileges and immunities in Hong Kong as staff of the international organizations where they previously would not. This practical effect of the proposed adaptation was drawn to the attention of the Administration to which it responded by stating that the legislative intent would remain the same throughout and the proposed adaptation was a straight forward substitution. It also maintains that the applicable principle is that the national of one country is not given diplomatic privileges and immunities when he is in his own country. This is no doubt the correct principle to apply when one is dealing with a country. In our view, Members should be aware that by applying the proposed approach of adaptation in this case, it would result in permanent residents of Hong Kong being treated differently because of their difference in nationality.

4. Members may decide whether the above issues merit further study and whether a bills committee should be formed. Otherwise the Bill is ready for resumption of Second Reading debate.

Prepared by

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