Provisional Legislative Council
PLC Paper No. CB(2) 1445
(These minutes have been
seen by the Administration)
Ref : CB2/BC/12/97
Bills Committee on
Adaptation of Laws
(Interpretative Provisions) Bill
Meeting on 21 March 1998 at 9:00 am in Conference Room B of the Legislative Council Building
Members present :
Hon Kennedy WONG Ying-ho (Chairman)
Hon WONG Siu-yee
Hon Mrs Sophie LEUNG LAU Yau-fun, JP
Hon IP Kwok-him
Hon Mrs Miriam LAU Kin-yee, JP
Hon Ambrose LAU Hon-chuen, JP
Members absent :
Hon CHENG Kai-nam
Hon Bruce LIU Sing-lee
Hon Ronald ARCULLI, JP
Dr Hon Philip WONG Yu-hong
Public officers attending :
- Administration Wing, Chief Secretary for Administration's Office
- Mr Paul TANG
- Deputy Director of Administration
- Ms Cecilia YEN
- Assistant Director of Administration
- Department of Justice
- Mr Gilbert MO Sik-keung
- Deputy Law Draftsman
- Law Drafting Division
- Mr R C ALLCOCK
- Deputy Law Officer
- Secretary for Justice's Office
- Mr Peter H H WONG
- Senior Assistant Solicitor General
- Legal Policy Division
- Miss Frances HUI Hang-ka
- Government Counsel
- Law Drafting Division
Clerk in attendance :
- Ms Doris CHAN
- Chief Assistant Secretary (2)4
Staff in attendance :
- Mr Jimmy MA
- Legal Adviser
- Mr Stephen LAM
- Assistant Legal Adviser 4
- Ms Joanne MAK
- Senior Assistant Secretary (2)4
I. Meeting with the Administration
(PLC Paper No. CB(2) 1266 (01) )
The Deputy Director of Administration (DD(A)) said that the Administration remained of the view that the term "State" was the most appropriate term to replace the reference to the "Crown" in section 66 of the Interpretation and General Clauses Ordinance (Cap. 1) concerning the binding effect of ordinances. He pointed out that, before the reunification, the "Crown" in the quoted context referred to the United Kingdom, the British Government and Hong Kong Government. Correspondingly, the word "State" was now proposed to cover the People's Republic of China (PRC), the Central People's Government (CPG) and the Government of the Hong Kong Special Administrative Region (HKSARG). In order to make the definition clear, DD(A) said that the Administration would move a Committee Stage Amendment (CSA) to define specifically that the "State" referred to the President of PRC and CPG as well.
2.DD(A) said that the Administration also considered that was the most accurate and exact Chinese equivalent of "State". He said that the Administration did not consider an appropriate alternative as it sounded outdated and bureaucratic. In fact, the expression had been avoided to be used as an official term in ordinances.
3.DD(A) said that the Administration had also considered using as an alternative expression of . However, the Administration considered that did not carry the meaning of an independent political hierarchy and it implied rather the secretary of a certain bureau or the head a government department only. might also be confused with the abbreviated names of public bodies (such as the Airport Authority) in ordinances.
4.DD(A) said that the Administration had also considered using instead of . However, the definition for had already been provided for in this Bill, which referred to HKSARG; and was too narrow to cover the meaning of "State" as defined in this Bill. DD(A) said that the concept of "State" as mentioned in Article 7 of the Basic Law had served as the basis of the Administration's consideration in this regard.
5.DD(A) said that the Administration also remained of the view that, since the Hong Kong Special Administrative Region (HKSAR) was an inalienable part of PRC, it was appropriate to include HKSARG within the definition of "State".
6.DD(A) said that the Administration considered that it was more appropriate to render "Central Authorities" as in the proposed definition of "State" and simply meant responsible Authorities.
7.Mr IP Kwok-him expressed reservation about the substitution of the term by the term in section 66 of Cap 1 as did not equate to HKSAR. The Deputy Law Draftsman (DLD) said that if "State" was used in the English text, seemed the only choice for the term in the Chinese text. He reiterated that was inappropriate as it could be mistaken as meaning "official" only. The Deputy Law Officer (DLO) said that one advantage of using the word "State" was that by using it, one was immediately alerted to the fact that this must be a defined term. Alternative expressions such as "Officials" or "Authorities" would be misleading to the readers who might think that all "officials" or "authorities" were referred to in section 66 of Cap 1.
8.For members' consideration, the Legal Adviser (LA) suggested to revise section 66 of Cap. 1 to read -
"No Ordinance shall in any manner whatsoever affect the right of or be binding on the State and HKSARG unless it is therein expressly provided".
9.In response, DD(A) said that the Administration had not adopted this option because excluding HKSARG from the definition of "State" would be inappropriate having regard to the constitutional status of HKSAR. He also clarified that the Administration did not mean to equate the "State" with "HKSARG". It only proposed to include "HKSARG" within the definition of "State" and such scope of coverage corresponded to that of the "Crown" before the reunification. However, Mrs Miriam LAU noted that clause 4(b) had set out that "State means only" and not "State includes only". In response, DD(A) corrected that, as set out in clause 4(b), the word "State" meant the organs listed in the definition only.
10.Mrs Miriam LAU referred to the letter dated 13 March 1998 from the Administration (PLC Paper No. CB(2) 1229 (01)), in which the Administration said that the definition of "Central Authorities of PRC" should include the President of PRC. However, she noted that the Administration had now proposed in the draft CSA that the definition of "State" meant the President and the Central Authorities of PRC as two separate entities. She requested the Administration to clarify this point. She personally considered that "State" should include CPG and HKSARG, as this coverage corresponded to that of "the Crown".
11.In reply, DD(A) explained that the President was the Head of State representing PRC and his status was similar to that of the Queen before the reunification. Therefore, it was appropriate to specify him under the "State" individually. As regards the Central Authorities of CPG, DD(A) said that they should include only the State Council and the State Central Military Commission.
12. Regarding the definition of a "subordinate organ of CPG of PRC" as defined in paragraph (f) in clause 4(b), Mrs Miriam LAU said that she could not quite understand what it meant by "acting within the scope of the authority and functions delegated to it". She was also concerned about which organizations were regarded as "subordinate organs". As the Administration had not provided an exhaustive list of relevant subordinate organs that came within the meaning of "State", members did not know at the moment which agencies were "subordinate organs" which would not be bound by Hong Kong laws unless the laws expressly said so. In this connection, the Chairman enquired whether the Administration had considered establishing a mechanism to decide whether a Mainland body was a "subordinate organ".
13.In response, DD(A) said that as mentioned in the Administration's letter dated 13 March 1998, examples of the relevant subordinate organs included Office of the Commissioner of the Ministry of Foreign Affairs of PRC in HKSAR, Office of the Chinese Senior Representative and Sino-British Joint Liaison Group. He explained that it was not possible for the Administration to provide an exhaustive list of the relevant subordinate organs as it was not within the Administration's remit to decide on this and the authority rested with CPG. He reiterated that a subordinate organ was within the definition of "State" if it satisfied basically the following conditions -
- it did not exercise commercial functions; and
- it was acting within the scope of the authority delegated to it by CPG.
14.DD(A) said that confirmation from CPG would be required as to whether or not a particular organ was exercising the delegated functions within the scope of the authority delegated to it by CPG. The final decision regarding whether or not a subordinate organ was within the definition of "State" rested with the Court which would have regard to the documents provided by the organ concerned.
15.DLO said that as to the "subordinate organs" in clause 4(b) in the Bill, the Administration was trying to replicate the position that applied to the "Crown". He said that under the common law position, there was no exhaustive list of emanations of the "Crown" as the government could set up subordinate bodies, such as statutory corporations, to operate on behalf of the "Crown". Therefore, the Administration set out in clause 4(b) that if a subordinate organ of CPG or the Central Authorities was given the power to act on behalf of that Central Authority, it should come within the definition of "State". He added that in practice, there would be constraints on the Central Authorities' ability to set up these bodies because they could not interfere with Hong Kong's internal administration.
16. In view of the fact that the Director of Administration had changed his interpretation of the reference to "the Central Authorities of PRC that exercise executive functions" only in eight days, Mrs Miriam LAU queried if it was true that the definition of "State" could be changed easily. In response, DD(A) said that the Director of Administration had proposed in the draft CSA to include the President and CPG under the definition of "State" in the light of comments and legal advice received by the Administration. Moreover, as specified in the Basic Law, CPG did not equate to Central Authorities of PRC. Rather, "Central Authorities" were particular authorities subordinate to CPG.
17. Mrs Miriam LAU asked why it was not specified in paragraph (e) in clause 4(b) that organs would be regarded as relevant subordinate organs only if they were delegated the authority by the Central Authorities of CPG. In reply, DLO said that it was clear enough from paragraphs (e) and (f) in clause 4(b) in the draft CSA that the organs in question were those not only subordinate to the Central Authorities but had functions delegated from either executive authorities of CPG or the Basic Law. The Administration in so drafting was limiting the "subordinate organs" to those types and not any subordinate organs of the Central Authorities. Moreover, the Administration had added in (i) that those organs must not exercise commercial functions, and (ii) that the particular organs must be acting within the functions delegated from the Central Authorities. In this way, the Administration had narrowed the definition down as far as possible in order to be consistent with the previous position of the "Crown".
18.Mrs Miriam LAU pointed out that the Queen of the United Kingdom (UK) only served as a "figure head" without participation in the administration of the Country, the President of PRC exercised executive functions. She therefore had reservation about equating the President of PRC with the Queen of UK. In response, DLO accepted that the Queen and the President of PRC had entirely different powers and functions. He explained that what the Administration tried to do was to analyze what the "Crown" meant, and it considered that the "Crown" basically meant the executive government. Then the Administration looked to the Chinese Constitution to see what persons or bodies exercised executive functions of PRC. It was quite clear from the Constitution that the President did exercise executive functions personally. So it seemed entirely appropriate to include him as part of the executive authorities of PRC. Although the Queen in practice did not exercise executive authorities, she did, as a matter of law, have those powers and so she was regarded as part of executive authorities of UK. As a matter of convention, she did not frequently exercise powers but for example, the appointment of the Prime Minister was actually a power of the Queen personally. The Administration therefore considered it appropriate to include the President of PRC because he did have, in law, executive powers.
19. DLD supplemented by referring to Article 80 of the Chinese Constitution which stipulated that the President of PRC exercised executive functions "in pursuance of decisions of the National People's Congress and its Standing Committee". He said that the extent of executive power exercisable by the President was similar to the Queen's.
20.Regarding the authentication of subordinate organs, DLO said that it would be a matter of fact for the particular organ to establish before the Court. As regards the possibility of having some certification procedure for proving the status of any subordinate organs, DLO said that he was looking into it. However, he was not able to put forward any proposal now because the Administration had to consult the relevant authorities on the mechanism.
21. The Chairman left the meeting at this point due to other urgent commitments. Mrs Miriam LAU was elected to chair the meeting temporarily.
22.Mr WONG Siu-yee considered that "State" could not mean HKSARG as the two were very different in the level of hierarchy. DD(A) explained that the coverage of "State" as given in clause 4(b) aimed to correspond to the same scope of coverage under the "Crown" before 1 July 1997. He said that if HKSARG was not included within the "State", it would lead to the problem that an ordinance expressed to be binding on the "State" would not be binding on HKSARG.
23.DLD reiterated that the concept of "State" was rather abstract and it had to be realized by organs exercising powers in the right of the State. DD(A) proposed to amend clause 4(b) to read the "State" "includes only" instead of "means only". Members supported the proposal.
24.Mr Kennedy WONG returned and resumed chairing the meeting.
25.Mrs Sophie LEUNG expressed doubt on the Administration's proposal to correlate the concept of the"Crown" with the "State" since the constitutional frameworks governing Hong Kong before and after the reunification were different. In response, DLO explained that the Administration did not mean that the expression "Crown" throughout the laws should all be changed to mean the "State" as it was being defined now. The Administration only proposed to substitute the term "Crown" with the term "State" in the context that legislation enacted in Hong Kong were presumed not to be binding on the "State" unless specified otherwise.
26.In response to LA's enquiry, DLD confirmed that in the future adaptation exercise for individual Ordinances, the term "State" would be rendered as in inverted commas to avoid readers mistaking the term to mean "country".
27. Mr Ambrose LAU considered that the Administration should not use such an umbrella term "State" to cover collectively the components set out in clause 4(b). Instead, he took the view that the components should be listed in every context where they needed to be referred to. In response, DLO explained that it was purely for convenience to have an umbrella term "State" to include the components of the term. He pointed out that any reference to "State" would include collectively all the components in paragraphs (a) to (f) in clause 4(b). Each one of them could individually benefit from section 66. For example, if an ordinance bound the "State", it would bind each of these components. If an ordinance was said not to bind the "State", any one of the components from (a) to (f) would take advantage of that exclusion.
28.Mr Ambrose LAU enquired whether "State" would be used if a particular ordinance was only meant to bind HKSARG. In reply, DLO said that in that case it would be specified that the ordinance bound HKSARG only. The Administration would use "State" only when it intended to cover all the components as defined under the "State". Mr LAU argued that since the Administration intended to list the authorities under the "State" disjunctively, he doubted if it was necessary to have an umbrella term "State".
29. DLO said that it was necessary to define the term "State". For example, if a particular ordinance said that it bound the "State" and based on that ordinance someone sued the Hong Kong Government, it had to prove that the reference to "State" included the Hong Kong Government.
II. Clause-by-clause examination of the Bill
Clause 2 - Application
30. Mrs Miriam LAU considered that the word "State" should be put in inverted commas in the English text to indicate that it was a defined term. She disagreed with the Administration that the large capital letter"S" of the word had served this purpose. The Chairman and Mr Ambrose LAU shared the view.
31. In reply, DLO said that the reference to "the State" made it quite clear that it was talking about a particular state and in this context it could only mean what it had been defined to mean. Moreover, the large capital letter"S" of the word also indicated that it was a defined term. Similarly, the word "Government" without inverted commas was well understood to mean in laws "the Hong Kong Government" before the reunification. In the same way, the word "Authority" was also without inverted commas in the Housing Ordinance and it was understood to mean the Housing Authority.
32. However, Mrs LAU pointed out that the examples of the "Authority" and "Government" were different as the two only stood for the Housing Authority and HKSARG respectively without any further meaning. However, the "State" in this Bill referred to the various components as defined and thus the Administration should go one step beyond and put it in quotation marks.
33.DLO explained that the suggestion had implications for their drafting programme generally as there had never been a policy that any defined terms must be put in inverted commas in English. If the Administration started doing this, it needed a general policy to stipulate under what situations that defined terms had to be put in quotation marks in English text.
34. Mrs LAU still preferred to use inverted commas unless this would cause substantial implications. LA considered that the absence of inverted commas for the term "State" should not cause legal problems as the term had been clearly defined in clause 4 (b). Moreover, the use of the specific article "the" served to denote that "the State" was a defined term; and it was also the usual practice that the legislature respected the drafting practice of the Administration.
|35.In response to members' request, DLD undertook to check whether there were precedent cases and revert to the Bills Committee in the form of a written reply.
(Post-meeting note : the Administration's reply was circulated to members under PLC Paper No. CB(2) 1331(02) dated 26 March 1998.)
Clause 4 - Interpretation of words and expressions
36. The Senior Assistant Solicitor General (SASG) said that clause 4 was drafted in line with the Basic Law. DLO briefed members that most of the amendments were rather straightforward to reflect the reunification only.
37.LA said that the Legal Services Division had vetted clause 4 and clarified with the Administration on certain points. The relevant correspondence had been circulated to members already. DD(A) said that clause 4 involved no implication at policy level as they were technical amendments only.
Clause 43 - Schedule added
38.DLO said that "Schedule 9 - Temporary provisions" contained colonial expressions which would still exist in other ordinances, and they would be removed when this adaptation of laws exercise was completed in the next legislative session.
III. CSA to be moved by the Administration
39.Mrs Miriam LAU considered it more appropriate to include the President of PRC under the Central Authorities of PRC rather than listing it out individually under the "State". She also expressed reservation that the President should equate to the Head of State. In response, DLO said that the original definition of "State" in the Bill did not specify the President nor CPG but referred in general terms to "the Central Authorities of PRC that exercised executive functions". DLO said that the revised version would be much more precise as it named specifically the two institutions which had executive functions similar to those of the "Crown". He considered that the revised version was preferable in terms of clarity and certainty.
40. Mrs Sophie LEUNG shared the view that the President of PRC was different as he was elected whereas the Queen inherited her position. DLO said that this was correct but the fact remained that the President was the Head of State and he had executive power which was similar in some respects to those of the Queen. Therefore, the inclusion of the President under the "State" was appropriate for the purpose of this definition.
41.LA highlighted that on "subordinate organs", the way that it was drafted envisaged that the nature of these organs might be of a hybrid nature. They might be established for even commercial purposes but at the same time for specific reasons they might be delegated with functions or other responsibilities of the CPG under the Basic Law. Therefore, only if and when they exercised those functions, then they would be covered. In response, DLO said that it was actually a two-stage test which corresponded to the position of the "Crown". The first test was to see whether an organ exercised commercial functions or not. If it did, it was outside the definition. If not, one had to see whether the organ was exercising its delegated functions when it was doing a particular act.
42.Mr Ambrose LAU considered that the use of the umbrella term -"State" to refer to the proposed components in the draft CSA would lead to the misinterpretation that HKSAR equated to "the State". He said that since the term "State" only appeared in three sections in the Bill, it was preferable to list all these components in each of the sections rather than using an umbrella term "State" to sum them up. He also had doubt as to whether "State" was an appropriate term to cover the components as defined.
43.Except for Mr Ambrose LAU, the Bills Committee accepted the term "State" and and the revised definition set out in the draft CSA.
|44.At the Chairman' suggestion, DLO undertook to review the listing order of paragraphs (a) to (f) under clause 4(b) in the draft CSA. In particular, members supported that HKSARG and CPG should be reverted in position to reflect the order of hierarchy.
|45.LA would follow up with the Chinese drafting of the Bill.
46.The meeting ended at 11:15 am.
Provisional Legislative Council Secretariat
12 May 1998