LegCo Paper No. HB 315/95-96
Ref : HB/H/5
Legislative Council House Committee
(1995/96 Session)
Minutes of 10th meeting held in the LegCo Chamber
of the Legislative Council Building
on Friday, 8 December 1995 at 4:40 p.m.
Present :
Dr Hon LEONG Che-hung, OBE, JP (Chairman)
Hon Ronald ARCULLI, OBE, JP (Deputy Chairman)
Hon Allen LEE, CBE, JP
Hon Mrs Selina CHOW, OBE, JP
Hon Martin LEE, QC, JP
Hon SZETO Wah
Hon Edward S T HO, OBE, JP
Hon Mrs Miriam LAU Kin-yee, OBE, JP
Hon Albert CHAN Wai-yip
Hon CHEUNG Man-kwong
Hon CHIM Pui-chung
Hon Frederick FUNG Kin-kee
Hon Michael HO Mun-ka
Dr Hon HUANG Chen-ya, MBE
Hon Emily LAU Wai-hing
Hon LEE Wing-tat
Hon Eric LI Ka-cheung, JP
Hon Fred LI Wah-ming
Hon Henry TANG Ying-yen, JP
Hon James TO Kun-sun
Dr Hon Samuel WONG Ping-wai, MBE, FEng, JP
Dr Hon YEUNG Sum
Hon Howard YOUNG, JP
Hon Zachary WONG Wai-yin
Hon Christine LOH Kung-wai
Hon James TIEN Pei-chun, OBE, JP
Hon LEE Cheuk-yan
Hon CHAN Kam-lam
Hon CHAN Wing-chan
Hon CHAN Yuen-han
Hon Andrew CHENG Kar-foo
Hon CHENG Yiu-tong
Hon Anthony CHEUNG Bing-leung
Hon Albert HO Chun-yan
Hon IP Kwok-him
Hon LAU Chin-shek
Dr Hon LAW Cheung-kwok
Hon LAW Chi-kwong
Hon LEE Kai-ming
Hon LEUNG Yiu-chung
Hon Bruce LIU Sing-lee
Hon MOK Ying-fan
Hon NGAN Kam-chuen
Hon SIN Chung-kai
Hon TSANG Kin-shing
Dr Hon John TSE Wing-ling
Hon Mrs Elizabeth WONG, CBE, ISO, JP
Hon Lawrence YUM Sin-ling
Absent :
Dr Hon David K P LI, OBE, LLD (Cantab), JP
Hon NGAI Shiu-kit, OBE, JP
Hon LAU Wong-fat, OBE, JP
Dr Hon Philip WONG Yu-hong
Hon Paul CHENG Ming-fun
Hon CHEUNG Hon-chung
Hon CHOY Kan-pui, JP
Hon David CHU Yu-lin
Hon Ambrose LAU Hon-chuen, JP
Hon LO Suk-ching
Hon Margaret NG
In attendance :
ASG2 (Clerk to the House Committee)
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(1) Governors Question Time on 14.12.95
The Chairman advised Members that, at the coming Question Time on 14.12.95, the Governor would :
- make a brief statement on his visit to the Philippines; and
- take questions on the economy.
(2) Confirmation of the minutes of the last meeting held on 1.12.95
(LegCo Paper No. HB 264/95-96)
The minutes were confirmed.
(3) Revised membership of the Subcommittee on Authentic Chinese Texts of Existing Legislation
Members endorsed the revised membership of the Subcommittee.
(4) Legal Advisers report on the subsidiary legislation tabled in the Legislative Council on 6.12.95
(LegCo Paper No. LS 40/95-96)
The Legal Adviser referred Members to the Paper, in particular item 5 which dealt with the proposed increase in charges of the Hong Kong and Yaumatei Ferry Company, Limited. Because of the Christmas and New Year break, it was advisable for Members to move a motion to extend the scrutiny period of the subsidiary legislation to preserve their right to amend any of these items.
The Chairman advised Members that he had already given notice to move a motion at the sitting on 13.12.95 to extend the scrutiny period to 10.1.96.
Mr LEE Wing-tat suggested and Members agreed to set up a Subcommittee to study the Ferry Services (Hong Kong and Yaumatei Ferry Company, Limited) (Determination of Fares) (Amendment) Order 1995. The following Members agreed to join the Subcommittee : Mr Ronald ARCULLI, Mr LEE Wing-tat, Mr Zachary WONG Wai-yin, Miss CHAN Yuen-han, Mr Albert HO Chun-yan, Mr LAU Chin-shek and Mr SIN Chung-kai.
Members agreed to support the remaining items of subsidiary legislation.
(5) House Committee delegation on the case of Messrs Paul AU Wing Cheung and WONG Chuen Ming
Mr Howard YOUNG said that the Philippines Consulate had verbally advised the Secretariat that it might not be possible for the delegation to meet the President of the Philippines and other authorities this month. A formal reply was still awaited. At his request, the Chairman had written to the Governor on 7.12.95 to confirm the House Committees request that the Governor raise the case with the President of the Philippines during his visit the following week. Subsequent to the issue of the letter, he had also faxed to the Private Secretary of the Governor background information on the case prepared by the travel industry.
In response to the Chairman, Mrs Elizabeth WONG said that although she had recently met the First Lady of the Philippines on a social occasion in Hong Kong, the case had not been raised. She had subsequently written to the First Lady and had yet to receive a reply.
(6) Proposed Select Committee to enquire into alleged malpractices concerning the Special Labour Importation Scheme for Airport Core Programme
(7) Report by the LegCo Panel on Manpower - The Special Labour Importation Scheme for the new airport and related projects
(LegCo Paper No. PL 335/95-96 and page 3 of Annex A of Appendix A to the Paper tabled at the meeting (attached))
The Chairman suggested and Members agreed that items (6) and (7) be discussed together.
Mr TSANG Kin-shing said that, in view of the latest developments, both he and Mr Michael HO had decided to drop their proposal to set up a Select Committee and to support the Manpower Panels proposal instead.
Mr LAU Chin-shek, chairman of the Panel, reported that the Panel was disappointed with the result of the efforts made by the Labour Department and was concerned about the respective responsibilities of the contractors and the labour service companies in the incidents. The Panel also considered it necessary to assess what the Government would do to protect the legitimate interests of imported labour. It had decided to conduct an enquiry into the circumstances surrounding the recent labour disputes involving imported workers under the Special Importation of Labour Scheme for the Airport Core Programme Projects (ACP Scheme). A motion to seek the Councils approval for the Panel to exercise the powers under the Legislative Council (Powers and
Privileges) Ordinance, Cap. 382, would be moved at the sitting on 13.12.95. He asked Members to support the proposal and to recommend to the President the dispensation of the required notice for moving the motion.
The Chairman drew Members attention to the following in considering the proposal :
- According to the Administration, the Labour Department and the Police were investigating cases of malpractice and the Attorney Generals Chambers would consider whether prosecution action need to be taken, hopefully within this month;
- The Chinese authorities in Beijing had set up a task force to investigate the case of mainland workers imported under the ACP Scheme; and
- Conducting such an enquiry would involve manpower and other resources.
In response to the Chairman, the Secretary General said that the costs of staff and other services incurred in the enquiries into the case of Alex TSUI and the Kwun Lung Lau incident were about HK$1 million in each case. Should Members decide to support the proposal, the Secretariat would have to identify savings to meet the costs which had not been provided in the Secretariats budget. Members noted that special interpretation services for languages other than Cantonese and English might also be required if any witnesses to be summoned by the Panel included persons who spoke other languages.
In response to the Chairman, the Legal Adviser advised Members that the implications on the Legal Service Division depended on the terms of reference of the enquiry. If the terms of reference included the investigation of individual cases relating to alleged deduction of wages, the enquiry would be a quasi-judicial enquiry. It was important that the Panel should be clear about what it sought to achieve. He urged the Panel to be cautious in devising and interpreting its terms of reference, based on information that was made available to the Panel.
Responding further to the Chairman, the Legal Adviser said that, from the legal point of view, if the Panel was authorized by the Council to exercise the powers under the Legislative Council (Powers and Privileges) Ordinance, it had the backing of the statute for it to continue its enquiry even though the matter was under investigation by the Police. However, the Panel needed to seriously consider the risk of its enquiry prejudicing any on-going investigation. It was for Members to decide how the powers conferred upon them should be exercised. In response to Mr Ronald ARCULLI, the Legal Adviser said that while the Panel
could exercise its powers to enforce the attendance of a witness, the question of enforcing an answer would be a different matter i.e. the Panel would have a problem if a witness refused to reply on the ground that it was against the public interest for him to do so in public because there was an on-going prosecution.
Mr SZETO Wah said that Members should decide whether the proposal was worthy of support in principle. The technical problems involved should not be insurmountable.
Miss Emily LAU and Mr Edward HO expressed doubts as to whether the proposed enquiry should be conducted now as the matter was under investigation by the Police and the Labour Department. If prosecution action would be taken very shortly, they were concerned that the proposed enquiry might prejudice the proceedings. Miss LAU was also concerned about the possible effect upon the witnesses summoned by the Panel who had also to give evidence in court.
Mr James TO Kun-sun supported the proposal as he felt that LegCo could conduct an independent enquiry without affecting other on-going enquiries and Members could constantly seek legal advice on the way forward. The enquiry conducted by the Panel could start with looking into the process of importing the workers.
Mr Albert HO Chun-yan considered that the aim of the Panel was clear, which was to understand the incidents fully so as to facilitate the formulation of policies in the future. He pointed out that the enquiry would not be used for the purpose of making any individuals criminally liable, although any maladministration should not be lost sight of.
In response to the Chairman on Mr Albert Ho Chun-yans comments, the Legal Adviser said that a witness summoned by the Panel under Cap. 382 could not decline to give evidence on the ground of self-incrimination. However, the evidence given could not be used against the witness in a court of law later on.
Mr LEE Cheuk-yan said that he thought the proposed enquiry would focus on studying the relationship between the imported workers and the labour service companies purported to have been involved in the alleged exploitation and their relationship with the contractors. He considered that only a LegCo enquiry could establish their relationships and the truth about the allegations. Thereafter, necessary preventive measures could be taken.
Mr IP Kwok-him agreed that the matter was serious and should be properly looked into. In view of developments in Hong Kong and China, he asked Members to consider the timing of the enquiry.
In response to Mr IP, the Legal Adviser advised that the Panel could not exercise powers under Cap. 382 to summon persons who were specified under the Consular Relations Ordinance and the International Organizations and Diplomatic Privileges Ordinance.
Mr Frederick FUNG Kin-kee was in support of the proposal and said that the purpose of the enquiry should be to assess the effectiveness of the existing system in monitoring the importation of labour scheme and to recommend measures to strengthen the monitoring system, rather than identifying individuals responsible for the incidents.
Mr James TIEN said that, in view of the extent of the alleged abuse of the imported workers under the ACP Scheme which had come to light recently, the Liberal Party was in support of the Panels proposal to further pursue the matter.
Mr Eric LI Ka-cheung had reservations about the proposal because, as it was, the proposal lacked concrete details and specifics to justify the invoking of the Legislative Council (Powers and Privileges) Ordinance.
Mr LAU Chin-shek said that prompt action should be taken by LegCo since there were about 4,600 imported workers involved in the ACP Projects and about 3,000 more had yet to be imported. In spite of the Labour Departments efforts, it had failed to ascertain the role of the labour service companies and the extent of the responsibilities of the contractors. The Panel would, in consultation with the Legal Adviser, draw up detailed procedures for the conduct of the enquiry after being authorized by the Council to exercise the powers under Cap. 382.
Mrs Selina CHOW advised Members that, after the Security Panel had been authorized by the Council to conduct an enquiry into the case of Mr Alex TSUI in 1994, it had subsequently decided to temporarily defer the enquiry on the ground that any enquiry at that time might prejudice the police investigation of a complaint relating to the case. In the present case, she was of the view that Members should have confidence in the Panels ability to exercise carefully and sensibly the powers proposed to be delegated under the Legislative Council (Powers and Privileges) Ordinance. She also agreed that there was urgency in conducting the enquiry.
Following further discussion and at the suggestion of Mr SZETO Wah, the proposal of the Panel was put to vote. There were 35 votes for the proposal, no vote against it and five absentations.
The Chairman declared that the proposal was carried and a request would be made to the President of the Council for dispensation of the required notice of the motion which would be moved by Mr LAU Chin-shek.
The meeting ended at 6:05 p.m.
Legislative Council Secretariat
13 December 1995
Appendix II
The Democratic Alliance for the Betterment of Hong Kong (DAB) requests the British Government to clarify the following points:
- It is known that the British Government had indicated, during the negotiations between Britain and China in 1984, to the Chinese Government that the contents of the International Covenant on Civil and Political Rights which were applicable to Hong Kong had been included in the laws of Hong Kong, and thus there was no need to amend the existing legislation; the British Government must clarify whether the British side did make such a remark.
- If the British side did disclose that the existing laws of Hong Kong did not contravene the contents of the International Covenant on Civil and Political Rights which were applicable to the territory, why it contradicted itself in 1991 by saying that the laws of Hong Kong contravened the part of the Covenant which was applicable to Hong Kong, and made amendments to several ordinances one after another?
- Section 3 of the Joint Declaration signed by the Chinese and British Governments stipulates that 孏he laws currently in force in Hong Kong will remain basically unchanged� The Joint Declaration was signed by the two sides in 1984. As one of the signatories, the British Government has the obligation to clarify the interpretation of the abovementioned statement.
- Before the Bill of Rights Ordinance was drafted and enacted, did the Hong Kong Government discuss the matter with the Chinese side through the Joint Liaison Group; was the British side fully aware of the views of the Chinese side at that time?
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