Bills Committee on Adaptation of Laws Bill 1998(Minutes) 10 Feb 99

Legislative Council

LC Paper No. CB(2)2003/98-99
(These minutes have been seen
by the Administration)

Ref : CB2/BC/5/98

Bills Committee on Adaptation of Laws Bill 1998

Minutes of meeting held on Wednesday, 10 February 1999 at 8:30 am in Conference Room A of the Legislative Council Building

Members present:

Hon Andrew WONG Wang-fat, JP (Chairman)
Hon Kenneth TING Woo-shou, JP
Hon Cyd HO Sau-lan
Hon Margaret NG
Hon Ronald ARCULLI, JP
Hon James TO Kun-sun
Hon Jasper TSANG Yok-sing, JP

Member absent:

Hon Ambrose LAU Hon-chuen, JP

Public Officers attending:

Ms Mimi LEE: Principal Assistant Secretary for Security (Narcotics)
Mrs Sarah KWOK: Principal Assistant Secretary for Security B
Mr CHAN Kong-sang: Assistant Commissioner for Correctional Services
Mr CHAN Hon-kit: Senior Superintendent
Customs Drug Investigation Bureau
Mr YEN Yuen-ho, Tony: Law Draftsman
Mr SUEN Wai-chung: Senior Assistant Law Draftsman
Ms Marie SIU: Senior Government Counsel

Clerk in attendance:

Mrs Sharon TONG: Chief Assistant Secretary (2)1

Staff in attendance:

Miss Betty MA: Senior Assistant Secretary (2) 1
Miss Connie FUNG: Assistant Legal Adviser 3

I. Meeting with the AdministrationOutstanding issues

Principal Assistant Secretary for Security (Narcotics) (PAS/S(N)) said that at the request of the Bills Committee, the Administration had prepared an information paper (LC Paper No. CB(2) 1275/98-99(01)) (the paper) responding to members' concerns raised at the last meeting.

Adaptation of reference to "Regulations of the Hong Kong Government"

2. PAS/S(N) said that the term "Regulations of the Hong Kong Government" referred generally to those regulations promulgated by the Government relating to the administration of the public service or management of civil servants. These included regulations known as the "Government Regulations" comprising seven Volumes as shown in paragraph 3 of the paper. Apart from the "Government Regulations", there were other general or departmental regulations, circulars, circular memoranda, instructions, orders, directions or procedures that might be issued by bureaux or departments, which supplemented "Government Regulations" and were of equal application and force to the Regulations.

3. The Chairman opined that the Administration might consider spelling out the specific "Government Regulations" in the relevant ordinances. LD said that this point would be dealt with when the adaptation of references to "Regulations of the Hong Kong Government" in the relevant sections of bills were discussed.

4. Miss Margaret NG enquired about the nature, legal effect and purpose of "other general or departmental regulations, circulars, circular memoranda, instructions, orders, directions or procedures that might be issued by bureaux or departments". In response, PAS/S(N) said that as advised by the Civil Service Bureau, the introduction in each Volume of the seven "Government Regulations" spelt out the application of the respective Regulations. Various types of instruments were adopted to meet the specific operational needs in individual bureaux/departments. These administrative rules or regulations might be issued by the heads of individual bureaux, departments or grades under their respective administrative authority to administer those matters under their purview. Nevertheless, these instruments were of equal application and force to the "Government Regulations".

5. The Law Draftsman (LD) said that should the principle for adapting the term "Regulations of the Hong Kong Government" be agreed at this Bills Committee, the principle would be extended to other adaptation of laws bills. To remind members, he said that a Committee Stage amendment would be proposed to the Bill to delete the reference to "relevant executive order" and substitute the reference to "Colonial Regulations" by "Public Service (Administration) Order" (PS(A)O). A definition of PS(A)O would be added to section 2 of the Prisons Ordinance (Cap. 234). Senior Government Counsel (SGC) added that the definition of PS(A)O was provided at paragraph 2 of LC Paper No. CB(2) 1034/98-99(01).

6. Miss Margaret NG enquired how the adaptation in respect of the definition of "Government Regulations" would be dealt with following the adaptation of "Colonial Regulations" by "PS(A)O".

7. The Chairman said that "any other regulation made or any direction given under that Order", inter alia, was included under the proposed definition of PS(A)O. Thus, any "Government Regulations" made would be specified in future reference. He asked whether there was still any need for adopting a definition of "Government Regulations". He pointed out that the various Regulations mentioned in the paper were made under no authority, except by the then Governor under the prerogative power. He considered that the formulation of these government regulations into regulations to be made by the Chief Executive in Council under a civil service ordinance would be the best alternative.

8. In response, LD said the proposed definition of the term "Government Regulations" was necessary. The introduction of a bill in relation to the administration of the public service would be beyond the scope of the adaptation of laws exercise. He assured members that the Administration had taken into account members' views seriously which would be dealt with at a later stage. He reiterated that the relevant Government Regulations would be specified in the relevant sections of bills in the context of the adaptation exercise. Given the vastly different types of instruments and the purposes for which they were issued, it would be impossible to provide an exhaustive list of specific instruments referred to by the general reference of "Government Regulations" and inappropriate to preclude the introduction of any new instruments. Thus, the definition of "Government Regulations" provided a short form for references to various Government Regulations from the drafting point of view. It was a generic term. It did not necessarily mean that there was a set of regulations entitled "Government Regulations".

9. PAS/S(N) added that based on the information from the Civil Service Bureau, there was a need for a term "PS(A)O" as well as a generic term to replace "Regulations of the Hong Kong Government". She pointed out that "PS(A)O" and "Regulations of the Hong Kong Government" were two different sets of orders/regulations. Assistant Commissioner of Correctional Services (AC of CS) supplemented that internal orders were also observed in relation to the disciplinary proceedings in respect of officers at the rank of superintendent or above in the Correctional Services Department under Cap. 234.

10. To conclude, the Chairman said that members agreed with the proposal to delete the reference to "relevant executive orders" and substitute by reference to "PS(A)O" and that the proposed definition of "Government Regulations" would be retained.

Prisons RulesRule 188(1)(d), (da) and (db)

11. On the proposed deletion of rule 188(1)(d) and (da) of the Prison Rules under the Prisons Ordinance, PAS/S(N) said that there were no residual provisions which were not covered by the Fugitive Offenders Ordinance. Rule 188(1)(db) of the Rules had replaced rule 188(1)(d) in its entirety.

12. Members accepted the explanation and raised no further questions.

Adoption of "market price in London"

13. Regarding the legislative intent for adopting "market price in London" as the valuation of investments under rules 258 and 259 of the Prisons Rules, PAS/S(N) said that the Administration could not trace the legislative intent as the rules were enacted in 1954 at the same time as the Prisons Ordinance. According to the Administration's record, the investments of the Correctional Services Department Welfare Fund had been placed in banks licensed in Hong Kong as fixed deposits in the past ten years and no valuation of investments of the Fund at the market price in London had ever been made. As the future investments of the Fund would be placed in the local market, it was considered appropriate to adopt the Hong Kong market price as the valuation of such investments.

14. Members accepted the explanation and raised no further questions.

"Joint Colonial Fund"

15. As regards what the "Joint Colonial Fund" was, PAS/S(N) said that the Administration had conducted a file search but had so far not been able to retrieve information on the "Joint Colonial Fund". According to the Director of Accounting Services, there was a "Joint Consolidated Fund" (now named as the "Account of the Government of the Hong Kong Special Administrative Region" (HKSAR)) which was an account maintained with the Crown Agents for Overseas Governments and Administrations (now named as Crown Agents Financial Services Ltd) in the United Kingdom (UK). The Account now mainly dealt with Government's payments of pensions in UK and had nothing to do with the welfare funds of Government disciplinary forces.

16. Mr TSANG Yok-sing asked whether the reference to "Joint Colonial Fund" in rule 260 was meaningless if the Fund had nothing to do with the welfare funds of disciplinary forces. In reply, AC of CS said that the account had not been used in the past ten years. The Chairman remarked that the Administration might consider repealing the reference which was, however, outside the scope of this Bills Committee.

17. Members raised no further questions on the issue.

Drug Trafficking (Recovery of Proceeds) Ordinance (Cap. 405) - Adaptation of reference to "countries or territories"

18. PAS/S(N) said that the Administration considered that the addition of "place" in the reference of "countries or territories" was necessary from the legal point of view. After 1 July 1997, China could not be "a country or territory outside Hong Kong". Designation of component parts of China (provinces, autonomous regions, etc) as "territories" outside Hong Kong might also present difficulties, since "territory" could bear a number of meanings, depending on the context in which it occurred. It was possible that the interpretation of "territories" by the court would involve issues of sovereignty or jurisdiction. In such circumstances, Cap. 405 might not be able to apply to such confiscation orders made in other parts of China. The addition of "place" in the reference would remove this possibility. She pointed out that this approach was also adopted in the Fugitive Offenders Ordinance enacted in 1997.

19. LD added that China without Hong Kong might not be taken as a "country" or "territory" in its fullest sense. There could be an argument that a designation under section 28(1)(a) must be in respect of a "country" or "territory" in its entirety and that a designation of "China (except Hong Kong)" might not be a proper designation of "country" or "territory" and so ultra vires and void.

20. Mr TSANG Yok-sing asked whether the term "place" could be adopted to replace "country" or "territory" entirely or whether it was appropriate to use the term "designated country". LD responded that the term "place" was not considered an appropriate term to replace "country" or "territory". He pointed out that even Hong Kong could be regarded as a place which was certainly not a country, the meaning of "designated country" would depend on the interpretation of words which followed. Nevertheless, he had no objection to provide a definition of "designated country". Senior Assistant Law Draftsman (SALD) added that the addition of "place" could avoid unnecessary court disputes over the interpretation of the enforcement of confiscation orders. Referring to the Schedule to Cap. 405, he said that reference was normally made to "country".

21. Mr TSANG Yok-sing further enquired whether the interpretation of "territory" was covered under that of "country". LD said that the Administration could not trace the background for adopting f"country or territory" in the Ordinance. He pointed out that the interpretation of "country" was clear. While "territory" might refer to a jurisdiction under a country, a confiscation order made under the Ordinance might be applicable to a territory only. LD added that the inclusion of China in the Schedule to the Ordinance must be adapted after the reunification.

22. Miss Margaret NG said that the addition of "place" was unnecessary though it had no material effect on the provisions in question. If the term "territory" was unable to provide an unambiguous interpretation, neither could the term "place". Nevertheless, she raised no objection to the Administration's proposal if the proposed addition of "place" was due to drafting reasons rather than from political consideration. LD responded that the proposed addition of "place" was purely from the legal and technical point of view.

23. Mr TSANG Yok-sing said that consideration might be given to adopting the reference used in the Basic Law, i.e. other parts of China. The Chairman opined that he was inclined to share with Miss NG's view. It seemed odd to include China in the list of designated country in the Schedule to the Ordinance. In response, SALD said that one of the principles of the adaptation of laws exercise was to propose essential adaptations only. Given the provision in question also appeared in other ordinances, the proposed addition of "place" would enable the enforcement of confiscation orders in Hong Kong.

24. Notwithstanding that she did not oppose the proposed addition of "place", Miss Margaret NG remarked that the Administration was over worried that the designation of "China (except Hong Kong)" might not be a proper designation of "country" or "territory".

25. LD said that in drafting a piece of legislation, the Administration would try to cater for all possible scenario from the drafting point of view so as to avoid any unnecessary court disputes over the interpretation of the provisions. PAS/S(N) added that given the increasing cooperation between the enforcement agencies in HKSAR and the Mainland to tackle the drug problem, it was considered necessary to rule out all possible technical problems in enforcing the confiscation orders from the policy point of view.

Clause-by-clause examinationSchedule 10 - Drug Trafficking (Recovery of Proceeds) Ordinance (Cap. 405) and its subsidiary legislation

26. In the light of the above discussion, members raised no questions on the proposed amendments to sections 28(1) and 31 of the Ordinance.

Schedule 1 to the Drug Trafficking (Recovery of Proceeds)(Designated Countries and Territories) Order

27. On the proposed addition of "except Hong Kong", the Chairman and Miss Margaret NG considered that the expression "excluding" was better than "except". Miss Margaret NG requested the Administration to further consider the common usage of the expression. LD agreed.

Adm

28. Members raised no further queries to other proposed amendments, viz. paragraphs 2 and 3(1) of as well as Schedules 1, 2 and 3 to the Order.

Schedule 12 - Post Release Supervision of Prisoners Ordinance (Cap. 475)

29. Members agreed to defer the discussion on section 23(1) pending the deliberations of the joint meeting of this Bills Committee and the Bills Committee on Adaptation of Laws (No. 2) Bill 1998 scheduled for 26 February 1999 on the interpretation of Article 56 of the Basic Law.

30. Members raised no questions on the other proposed amendments, viz. sections 4, 19(4), and 22 of the Ordinance.

Schedule 13 - Transfer of Sentenced Persons Ordinance (Cap. 513)Section 9 - Governor to give notice to Secretary of State in relation to relevant requests

31. In response to Miss Margaret NG's enquiry about the purpose of section 9, SGC said that prior to the reunification, the then Governor had to give notice to the Secretary of State in relation to the transfer of sentenced persons upon every request under section 9. It was proposed that the Chief Executive should give notice to the Central People's Government (CPG) in similar situations after the reunification. Principal Assistant Secretary for Security B supplemented that Cap. 513 provided for the processing of requests for transfer of sentenced persons pursuant to Hong Kong agreements with other jurisdictions. The agreements with other jurisdictions could only be concluded and operated with the agreement of the sovereign country. In relation to an individual request for the transfer of sentenced person, it was stipulated in section 9 of the Ordinance that notice must be given to CPG upon every request. As laid down in section 9(4), such notification was accompanied by a copy of the request, the accompanying documents, a summary of the material facts supporting the request, and other relevant information. A definition of "relevant request" was also provided in section 9.

32. Referring to the submission from the Hong Kong Bar Association (LC Paper No. CB(2)739/98-99(05)), the Chairman pointed out that the Hong Kong Bar Association questioned whether there was a need to adapt the provision in question. It was because Cap. 513 was to replace a scheme for transfer established under the UK Repatriation of Offenders Act 1984 which was no longer applied to Hong Kong. In its response (LC Paper No. CB(2) 753/98-99(01)), the Administration was of the view that section 9 was necessary. The Chairman added that a definition of "Secretary of State" was provided in Cap. 513. It would therefore be desirable to know which authority of CPG was responsible for matters relating to the transfer of sentenced persons between Hong Kong and places outside Hong Kong.

33. In response, LD said that it would be inconsistent with the status of Hong Kong as a SAR of the People's Republic of China if reference to "Secretary of State" was to be retained. The proposed adaptation was necessary. From the drafting point of view, "CPG" would be a generic term for adapting "Secretary of State" pending the conclusion between CPG and HKSAR Government on the appropriate authority of CPG to be responsible for matters relating to the transfer of sentenced persons between Hong Kong and places outside Hong Kong. He agreed that the Administration should continue its discussion with CPG on the matter. A definition of the appropriate authority of CPG would then be proposed to the Ordinance.

34. Miss Margaret NG opined that the then Governor was required under the legislation (the UK Repatriation of Offenders Act 1984) to comply with the instruction issued by the Secretary of State. She doubted whether the same practice could be extended to HKSAR Government directly as there was no legal basis for such requirement after the reunification. She requested the Administration to further consider the views put forward by the Hong Kong Bar Association in its letter dated 21 November 1998 and provide a written response. LD agreed.

Adm

(Post meeting note : The required information was circulated to Members vide LC Paper No. CB(2)1514/98-99(01).)

35. Referring to the Judgment delivered by the Court of Final Appeal on 29 January 1999 on the issue of right of abode, Miss Margaret NG pointed out that a purposive approach was adopted by the Court in interpreting the legislative intent of a piece of legislation. She considered that in dealing with adaptations, due consideration should be given to the legislative intent of the provisions. Thus, the implications of the adaptations on the bilateral agreements on the transfer of sentenced persons between HKSAR Government and other jurisdictions should be examined carefully in the light of the landmark ruling. In the circumstances, she said that the proposed adaptation might be deferred.

36. The Chairman asked whether the consent of PRC was required in concluding bilateral agreements with other jurisdictions. In reply, LD said that a response would be provided after the meeting. He further said that no change would be proposed to the substance of the legislation in the context of adaptation. Further consultation with the relevant Mainland authorities would be needed regarding the specific operation of the transfer of sentenced persons upon request. The proposed adaptation was a transitional provision which would be revised pending clarification from CPG on the relevant authorities of CPG to be responsible for these matters.

Adm

Section 10 - Transitional

37. Miss Margaret NG said that the adaptation of section 10 should not be dealt with under the adaptation of laws exercise having regard to its possible effect on the operation of the bilateral agreements in force and the relationship between HKSAR and CPG. When concluding a bilateral agreement with the other jurisdiction, the party concerned was aware of the role of the Secretary of State in the processing of requests for the transfer of sentenced persons. She asked whether the Administration had kept these jurisdictions informed of the changes, i.e. the role of the Secretary of State would be replaced by CPG.

38. The Chairman suggested and members agreed to defer the discussion on sections 9 and 10 pending the Administration's advice on the operation of sections 8, 9 and 10 of the Ordinance after the reunification.

Adm

(Post-meeting note : The requested information was circulated to Members vide LC Paper No. CB(2) 1514/98-99(01).) 39. Members agreed to defer the discussion on section 3(2) pending the deliberations of the joint Bills Committee meeting scheduled for 26 February 1999. Members raised no questions on the other proposed amendments, viz. sections 3(1), 4, 5(3), 5(4), 6, and 7(b) of as well as Schedule 1 to the Ordinance.

Schedule 14 - Long-term Prison Sentences Review Ordinance (Cap. 524)

40. Members agreed to defer the discussion on sections 43(1)(b) and 45(1) pending the deliberations of the joint Bills Committee meeting. Members raised no questions on the other proposed amendments, viz. sections 6, 12(1), 15(1)(a), 16, 21, and 41 of as well as Schedule 1 to the Ordinance.

Schedule 15 - Correctional Services Children's Education Trust Ordinance (Cap. 1131)Section 12 - Saving

41. Assistant Legal Adviser 3 said that while the Chinese text of the Decision of the Standing Committee of the National People's Congress referred to saving "the rights of the Central (People's Government) or the Government of HKSAR under the Basic Law", the proposed adaptation in this Bill used "and" which had departed from the Decision of the Standing Committee. SALD said that the Chinese text of the Decision of the Standing Committee would be used in this Bill. A Committee Stage amendment would therefore be proposed.

Adm

42. Members raised no questions on the other proposed amendments, viz. sections 6(2)(a), 6(2)(e), 6(2)(f), 6(3), 7(2), 9(2), 10 and 11(1) of the Ordinance.

43. The meeting ended at 10:35 am.

Legislative Council Secretariat
13 April 1999