Legislative Council

LC Paper No. LS 134/98-99

Members may recall that the Legal Service Division made a report to the House Committee meeting on 26 February 1999 on the Bill (LegCo Paper No. LS116/98-99 refers.) To recap, the Bill amends five Ordinances in order to reconstitute the welfare funds established for members and former members of the Fire Services Department, the Police Force, the Correctional Services Department, the Immigration Service and the Customs and Excise Service and their dependants.

2. We have sought clarifications from the Administration on certain technical points, in particular, the need for enacting clause 10 and whether the staff have been consulted.

3. The Administration intends to enact clause 10 so as to validate certain transactions relating to the Police Welfare Fund. This is a validation clause with retrospective effect. In spite of the fact that the Secretary for Security had said that the Bill did not involve a change of policy, we had asked the Administration to clarify whether it was the case. In the Administration's letter of 10 March 1999, it explained that in its view, the existing Police Welfare Fund established under section 39 of the Police Force Ordinance (Cap. 232) does not have the legal capacity to acquire real property. But the Commissioner of Police had acquire property by using a company limited by guarantee as a vehicle to overcome the legal problem. In its letter of 16 April 1999, it further explained that clause 10 is to clarify that the Police Welfare Fund can be applied to procure comforts and convenience. This is a matter for Members to decide whether clause 10 of this Bill should be supported in light of what the Administration has explained.

4. As for whether the staff of the five disciplined services have been consulted, the Administration stated that the Bill has been drafted with their support.

5. Having studied the Administration's answer to technical points raised, we are satisfied that other provisions of the Bill do not raise any legal difficulties. Correspondences are attached (Please see annexures A, B, C and D).

6. Subject to Members' accepting the Administration's explanation, the Second Reading debate of the Bill may be resumed.


Encls.


Prepared by


HO Ying-chu, Anita
Assistant Legal Adviser
Legislative Council Secretariat
26 April 1999

Annex A

SBCR 2/2801/75(98)
LS/B/48/98-99
2869 9209
2877 5029

By Fax No. 25234171

24 February 1999

Mr. K W Leung
CAS(S)Special Duty
Security Bureau
6/F Main and East Wings
Central Government Offices
Hong Kong


Dear Mr. Leung,

I am scrutinizing the legal and drafting aspects of the above Bill with a view to advising Members. I would be grateful if you could clarify the following:

1. Clause 10 - Validation of certain transactions relating to police welfare fund

Would you please clarify the need for this validation clause?

2. Item 1 of Schedule 1

1. It is noted that the Bill is not intended to introduce policy changes. However, should not the definition of "dependant" in the proposed new section 18 be expanded to cover "foetus" of the Fire Services' employees and former employees?
   
   
2. In the proposed new section 19B(h), there is a reference to the Acceptance of Advantages (Governor's Permission) Notice 1992 (Cap. 201 p. c). Members may wish to have explanation from the Administration on the meaning of "p.c" and the apparent unusual treatment of including non-legislative instruments in the Loose-leaf Laws of Hong Kong.

3. Item 3 of Schedule 1

The enabling power for the Chief Executive in Council to make subsidiary legislation is amended. Although not being presented as part of the Bill, is it envisaged that amendment regulations would be made? If so, would Members be given the draft for scrutiny together with the Bill?

4. The LegCo Brief is silent on whether staff of the relevant disciplined services has been consulted. Would you please clarify?


I shall be grateful if you can let me have a reply in both English and Chinese so that I can report to the Members.

Yours sincerely,



(Anita Ho)
Assistant Legal Adviser

c.c. Dept. of Justice (Attn: Mr. Duncan Berry, SALD)
Dept. of Justice (Attn: Miss Shandy Liu, SGC)
LA

Annex C

SBCR 2/2801/75(98)
LS/B/48/98-99
2869 9209
2877 5029

By Fax No. 25234171

26 March 1999

Mr. K W Leung
Chief Assistant Secretary
Security Bureau
6/F Main and East Wings
Central Government Offices
Hong Kong


Dear Mr. Leung,

Thank you for your letter dated 10 March 1999. In relation to clause 10 of the Bill, I shall be grateful if you could clarify the following:

1. Validation clauses are usually used as a legislative tool to rectify an act or transaction by deeming the act or transaction as having been done with valid legal authority and thereby treating it as valid and having full effect in law. By its nature, it would have retrospective effect and it may amount to a change of the original legislative intent or policy for that matter. Under the existing section 39 of the Police Force Ordinance (Cap. 232), the Commissioner of Police, when acting as controller of the Fund, has not been empowered to acquire property for the purposes of the Fund. If Clause 10 is enacted, and by making reference to the purported acquisition of real property by the Commissioner of Police, would it be seen as a change of policy? When moving the Second Reading motion, the Secretary for Security has said that the Bill did not involve changing existing policy.
   
   
2. Clause 10 applies to all real and personal properties located both within and outside Hong Kong. What are these properties? Are there any personal properties held by the Commissioner of Police for the Fund within and outside Hong Kong?
   
   
3. Clause 10 will have the effect of validating previous acquisitions of property by the Commissioner of Police. Nonetheless, would it have the effect to include the conveyance or assignment for the purpose of transferring or vesting of title to the Commissioner of Police in his capacity as the corporation sole to be established by this Bill?
   
   
4. In paragraph 1 of your letter, you stated that "The Hong Kong Police Welfare Association" acts as trustee for the purpose of holding property on behalf of "The Police Welfare Fund". We are of the view that the Fund is only an accounting device provided by statute to enable the Commissioner, when acting as controller of the Fund, to use the Fund for purposes provided under section 39(3) of the Ordinance. That being the case, there may not exist any legal basis for the Fund, which is an accounting device, to have the capacity to act as beneficiary in relation to interests in properties held by the Hong Kong Police Welfare Association. Please clarify.
   
   
5. Why is there the need for enacting clause 10(2)? What if there had been disposal of property and the proceeds of disposal were not credited to the Police Welfare Fund?

Your early reply in both Chinese and English to facilitate my preparation of a further report to the House Committee is appreciated.

Yours sincerely,


(Anita Ho)
Assistant Legal Adviser

c.c. Dept. of Justice (Attn: Mr. Duncan Berry, SALD)
Dept. of Justice (Attn: Miss Shandy Liu, SGC)
LA