LegCo Paper No. CB(1) 1698/95-96
(These minutes have been seen
by the Administration)
Ref : CB1/BC/24/95/2
Bills Committee on
Dutiable Commodities (Amendment) Bill 1996
Minutes of Meeting held
on Wednesday, 22 May 1996 at 8:30 a.m.
in Conference Room A of the Legislative Council Building
Members Present :
Hon Ronald ARCULLI, OBE, JP
Hon Mrs Miriam LAU Kin-yee, OBE, JP
Hon SIN Chung-kai
Member Absent :
Hon NGAN Kam-chuen
Public Officers Attending :
- Mr M J T Rowse
- Deputy Secretary for the Treasury
- Mr Alan SIU
- Principal Assistant Secretary for the Treasury
- Miss Vivian SUM
- Finance Officer
Mr Anthony Watson-Brown
- Senior Assistant Law Draftsman
- Mr Michael CHIK
- Assistant Commissioner of Customs and Excise
- Mrs Virginia SZETO
- Superintendent, Customs and Excise Department
Staff in Attendance :
- Miss Kitty CHENG
- Assistant Legal Adviser 2
- Ms Estella CHAN
- Chief Assistant Secretary (1)4
- Miss Anita SIT
- Senior Assistant Secretary (1)6
The minutes of the meeting held on 24 April 1996 were confirmed.
(LegCo Paper No. CB(1) 1438/95-96)
2. The Chairman thanked the Administration for the detailed response to members' queries and concerns raised at the last meeting. Members in principle agreed with the Committee Stage Amendments (CSAs) proposed by the Administration as set out in Annex C to the paper.
3. Members continued with the clause-by-clause examination of the Bill.
4. In response to the Chairman's enquiry, Mr Anthony Watson-Brown confirmed that any situation involving the transfer of hydrocarbon oil other than to or from a vehicle's fuel tank would not trigger a presumption under the proposed Section 40(c). The authority would not be able to rely on presumption in the first place and would have to provide evidence to prove its charge that the hydrocarbon oil was dutiable goods. He further remarked that the authority could rely on presumption only in the situations prescribed under the provisions and in the absence of evidence to the contrary.
| 5. Members queried the meaning of "premises" under the proposed Section 40(d) and Section 40(f). Mr Watson-Brown responded that the word "premises" was intended to take its ordinary meaning for the purpose of the provisions. He undertook to look into the need for defining "premises" in the Ordinance.
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6. In response to members' enquiry, Mr Watson-Brown advised that in the case of dutiable goods placed in a taxi which had entered into a garage, the goods would be regarded as "dutiable goods on premises" if the taxi's engine had been turned off and no person was inside the taxi.
7. In response to members' enquiry, Mr Allan SIU advised that the penalties in respect of offences relating to the use of marked oil as fuel were last revised in July 1995, with the maximum amount of fine increased from $100,000 to $200,000 for most of the offences. As regards the normal amount of fine for illegal use of diesel oil imposed by the court, Mr Michael CHIK advised that the amount had been revised from $500 to $1,000. Members appreciated that such a level of fine was proportionate to the offence. Mr M J T Rowse added out that the court would also consider the ability of the offender to pay when deciding the amount of fine to be imposed.
(Post-meeting note: The Administration has clarified that the normal amount of fine for illegal use of diesel oil imposed by court was $1,780 before the revision in July 1996 and has been $2,330 after the revision.)
8. The Administration took note of a member's suggestion that when the Administration was to review the need for re-introducing the provisions regarding seizure and forfeiture of taxis, it should consider the alternative of raising the penalties and fines.
9. Members opined that the compounding procedures should be publicised with the enactment of the new provisions. Besides, the person upon whom an offence was compounded should be informed that the Commissioner of Customs and Excise (the Commissioner) maintained a register of compounding and the register would be referred to by a magistrate or court in the event of another subsequent offence committed by the same person. Mr CHIK advised that in compounding an offence, the Commissioner would serve a notice to the person being charged, which, besides setting out the alternative to compounding that a person could opt (i.e. having the charge heard in court), would also include information on the compounding procedures and the keeping of compounding records by the Commissioner. This arrangement was already included in the draft administrative procedures for compounding.
10. Members queried if the phrases "suspected offences the Commissioner has compounded" and "compounded offences" adopted under the proposed Section 47B were appropriate for the purpose of the provisions. They also enquired about the differences in implications of "compounded offences" and "convictions". Mr Watson-Brown explained that as the compounding proceedings would not involve a decision of the court, a compounded offence was not a conviction. The person upon whom an offence had been compounded should not be regarded as having been convicted of the offence but only that he had been reasonably believed to have committed the offence. The Chairman suggested that a provision be added to spell out the precise meaning of "compounded offences". The Administration agreed to look into this taking into account members' views.
11. In response to members' enquiry, Mr Rowse said that a person should not be disqualified from obtaining a Certificate of No Criminal Conviction due to his having a record of compounding. He undertook to confirm this after the meeting.
12. The Chairman queried if the word "knows" instead of "is aware" would be more appropriate for the purpose of the provision under Section 58(4). He was concerned that the word "aware" might not be as precise as and might require a lower standard of proof than the word "know". The Administration agreed to check if the word "knows" would be more appropriate for the proposed provision.
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13. Members queried if it would be more equitable to adopt a rising scale of fine corresponding to the number of times of compounding on the same person for similar offences. Mr Rowse responded that while members' concern about the equity of the penalty system was appreciated, a simple and straight forward penalty system as the one proposed was preferred to avoid disputes on the spot of compounding and to enable the frontline staff to conduct the proceedings more efficiently.
14. In reply to members' enquiries, Mr Rowse and Mr CHIK advised that according to the draft compounding procedures, the responsible officer would check the compounding record on the person being charged before serving a compounding notice. If the person was found to have similar offences compounded a number of times (the exact number would be determined at a later stage), the officer would not proceed with compounding but would file a prosecution instead. However, the person being compounded an offence would always have the option of having the charge heard in court.
15. In response to members' enquiry, Mr CHIK advised that when served a notice of compounding, a person would be given a period within which to pay the fine. Members expressed concern about whether there was any mechanism to ensure that persons including tourists would be prevented from leaving Hong Kong until the compounding fine levied on them had been paid. Mr Rowse assured that this would be adequately dealt with in the compounding procedures.
16. In reply to a member, Mr Watson-Brown advised that the respective executive departments of the two Municipal Councils would probably liaise with each other over the format and content of the forms when they were drafted. The advice of the Attorney General on the draft forms would be sought by the departments. In addition, the present administrative arrangement would ensure that the forms would be scrutinised by the same Counsel even if they were forwarded by the two departments separately.
17. Members agreed that upon receipt of the Administration's response in respect of the queries raised at this meeting, the Clerk to the Bills Committee would circulate the response to members. Subject to there being no further queries raised by members, the Bills Committee would report its deliberations to the House Committee together with the proposed Committee Stage Amendments.
18. On the Administration's indication that it would be prepared not to oppose a Committee Stage Amendment by members to remove the proposed provisions concerning seizure and forfeiture of taxis from the Bill, Hon Mrs Miriam LAU agreed to move the CSA. Hon SIN Chung-kai indicated that the Democratic Party reserved its position on the CSA. Mr Rowse further advised that the Administration would review the need for re-introducing the amendments to subject taxis to seizure and forfeiture after a period of observation.
(Post-meeting note: The Administration's response to issues raised at this meeting together with the proposed Committee Stage Amendments were circulated to members vide LegCo Paper No. CB(1) 1534/95-96 dated 1 June 1996. As members did not have any further queries and agreed that no further meeting was necessary, the Bills Committee reported to the House Committee on 7 June 1996 (LegCo Paper No. CB(1) 1554/95-96) and recommended the resumption of the Second Reading debate on 26 June 1996.)
19. The Chairman informed members that Hon CHAN Yuen-han had resigned from the Bills Committee.
20. There being no other business, the meeting ended at 10:00 am.
LegCo Secretariat
25 June 1996
Last Updated on 10 December 1998
