LegCo Paper No. CB(1) 589/96-97
(These minutes have been seen by the Administration)
Ref : CB1/PS/8/95/1

LegCo Panel on Transport
Subcommittee on Western Corridor Railway

Minutes of the Meeting
on Friday, 19 July 1996 at 8:30 a.m.
in the Chamber of the Legislative Council Building

Members present :

    Hon Mrs Miriam LAU Kin-yee, OBE, JP (Chairman)
    Hon Edward S T HO, OBE, JP
    Hon Albert CHAN Wai-yip
    Hon LEE Wing-tat
    Hon Zachary WONG Wai-yin
    Hon CHAN Wing-chan
    Hon LEE Kai-ming
    Hon NGAN Kam-chuen
    Hon Lawrence YUM Sin-ling

Members attending:

    Hon Eric LI Ka-cheung, OBE, JP
    Dr Hon Samuel WONG Ping-wai, MBE, FEng, JP
    Hon CHAN Kam-lam, JP

Members absent :

    Hon Mrs Selina CHOW, OBE, JP
    Hon CHEUNG Hon-chung
    Hon Albert HO Chun-yan
    Dr Hon LAW Cheung-kwok
    Hon SIN Chung-kai
    Hon TSANG Kin-shing

Public officers attending :

Mr Gordon SIU, JP
Secretary for Transport
Mr Paul LEUNG, JP
, Deputy Secretary for Transport
Mrs Jenny Wallis
Principal Assistant Secretary for Transport
Mr Trevor Keen
Principal Assistant Secretary for Planning, Lands and Works (Lands)
Mr Jim White
, Senior Estate Surveyor, Lands Department
Mr John Allen
Deputy Crown Solicitor (Commercial)
Legal Department
Mr C K MAK
, Acting Government Engineer/Railway Development, Highways Department
Mr George LAI
Chief Engineer/Territory Transport Planning
Transport Department

Attendance by invitation :

From Kowloon-Canton Railway Corporation
Mr Kevin Hyde
Chairman
Mr Ian McPherson
Director, West Rail

From Johnson Stokes & Master
Mr Richard Russell
Solicitor

From Chesterton Petty Ltd
Mr Alan Child
Director

Clerk in attendance:

    Mrs Vivian KAM

Staff in attendance :

Mr Jimmy MA
Legal Adviser
Mr Billy TAM
Senior Assistant Secretary (1)4

I Matters arising from previous meeting

Mr Gordon SIU reported that he met with members of the Preparatory Committee (PC) in Beijing on 14 July 1996 to brief them on the Western Corridor Railway (WCR). He confirmed that the same information would be passed to PC and LegCo members alike. As regards the Chinese version of the full proposal of the Kowloon-Canton Railway Corporation (KCRC), translation work was being carried out and Mr SIU undertook to provide the Chinese version once available.

2. The Chairman drew members’ attention to KCRC’s response on the Modified Technical Studies Programme circulated vide LegCo Paper No. CB(1) 1861/95-96. She enquired on behalf of Hon Christine LOH Kung-wai if environment impact assessment studies on the WCR project had been made. Mr SIU advised in response that the KCRC would brief members on the issue at the current meeting.

II Presentation on Legal Empowerment and Land Requirements

3. At the invitation of the Chairman, Mr Ian McPherson of the KCRC introduced the consultants to members. With the assistance of slides, Mr Richard Russell of Johnson Stokes & Master briefed members on the subject of Legal Requirement, and Mr Alan Child of Chesterton Petty Ltd addressed the meeting on issues concerning land requirements. Mr McPherson followed by highlighting salient points in the information paper on Modified Technical Studies Programme.

(Post-meeting notes: The presentation materials were circulated to absent members vide LegCo Paper No. CB(1) 1880/95-96.)

III Discussion on Legal Empowerment

4. The Chairman referred to the letter from the Chairman of KCRC dated 18 July 1996 in reply to questions raised in the Clerk to the Subcommittee’s letter dated 28 June 1996 concerning the legal basis for KCRC to undertake planning activities relating to WCR prior to the effective date of the KCRC (Permitted Activities) (Consolidation) Order. She sought the Administration’s views on the issue.

5. Mr SIU said that the Administration agreed with the KCRC Chairman’s view that KCRC had the legal basis for undertaking the activities concerned. He advised that he would provide a written response to elaborate on whether the former Secretary for Transport’s request had been endorsed by the Governor in Council and on the reason for the Administration to agree with KCRC that it was correct in law to regard the letter as a "direction in writing" from the Governor in Council for the purpose of section 6(1) of the KCRC Ordinance. He also undertook to provide the letter of 26 January 1995 from the former Secretary for Transport to KCRC on the construction and operation of the WCR.

6. On the difference between invitation and direction, Mr Paul LEUNG explained that the Administration followed the Executive Council’s direction and invited KCRC to submit a proposal; no conflict in law was involved. Mr John Allen advised that the letter from the former Secretary for Transport conveyed the direction from the Governor in Council. Given the facts and circumstances prevailing at that time, KCRC believed that it was under a direction and the Administration supported KCRC’s view. He also pointed out that KCRC had been given interim empowerment to undertake related activities through the KCRC (Permitted Activities) (Consolidation) Order. A member considered a need for the Administration to dispel misconceptions and suggested that authorizations from the Governor in Council should be clearly documented and publicized such as by way of publication in the Gazette. He asked about the scope and expiry date of the direction. Mr SIU undertook to provide a copy of the relevant letter.

Legal empowerment

7. A member was concerned about amendments to the KCRC Ordinance not having been made at an earlier stage, and the rationale for drawing up the project agreement prior to the amendment of the KCRC Ordinance. Mr Russell said that according to the legal programme in the full proposal, the project agreement had to be executed prior to the amendment of the KCRC Ordinance. The intention of the project agreement had always been that the agreement should be effective conditional upon a number of factors, one of these being all necessary approvals having been obtained. On this basis, the project agreement would not be effective until the necessary amendments had been made. As regards the time taken for introducing amendments to the KCRC Ordinance, Mr Russell explained that amendments would only be enacted by LegCo when approvals regarding the project agreement had been obtained or agreed in principle. Mr McPherson clarified that two sets of legislation were involved. Amendments to the KCRC Ordinance granted authority for KCRC to build and operate the railway while the Executive Council approval of the railway scheme related to the grant of land to KCRC.

8. Members considered that the KCRC Ordinance should be amended before KCRC could start related activities; they were worried about LegCo assuming a rubber stamping role. Mr SIU emphasized that the proposed legal programme only represented KCRC’s view. He assured members that procedures similar to those adopted for the new airport project would be used and the Administration would have regard also to the experience in other previous projects. The Administration was under no obligation to follow the timetable suggested by KCRC.

9. A member expressed concern on the legal consultants looking for legal loopholes and making suggestions solely for the benefit and convenience of KCRC. He accused KCRC for adopting double standards by considering itself a public body in the process of land resumption but claiming to be a commercial organization when fares were set. Mr Trevor Keen emphasized the need for new legislation as no existing legislation could be modified to suit the needs of the WCR project. The best solution was to enact a new ordinance based on the Roads (Works, Use and Compensation) Ordinance. Mr Russell said that KCRC’s intention was to comply with the instruction from the Secretary for Transport to complete the railway by 2001. In order that land would be made available for the project as from January 1998, the consultants had come up with the most feasible solution to expedite the project. On the allegation of double standards, Mr Kevin Hyde of KCRC explained that KCRC was a statutory body operating under stringent conditions. As far as fares were concerned, the Corporation was empowered to set fares but was directed to achieve a 12-15% rate of return as its long term objective. He emphasized that KCRC had complied with regulations in all issues.

10. A member commented that KCRC should not refrain from amending the KCRC Ordinance for political reasons. Mr McPherson said in response that KCRC had made a proposal and put forward a number of options. It was for the Administration to take a stand. Mr Keen confirmed that KCRC had only been requested to offer suggestions. The Administration had however considered the proposed options inappropriate and concluded that a separate piece of legislation was required.

11. Members asked for the Administration’s own timetable on legal amendments and whether the timetable would conform with that of the KCRC. Mr LEUNG said that the Administration planned to introduce proposed legislation into LegCo in November 1996 and amendments to the KCRC Ordinance in late 1997 or early 1998. He further clarified that new legislation would provide the necessary legal basis and would be applicable to WCR and future railways. He confirmed that LegCo would be consulted irrespective of who the builder or operator of WCR would be. Mr SIU supplemented that the Administration was hopeful that construction would commence in 1998 but that land resumption would be a complex issue. In response to a member on the delay of the KCRC timetable for the legal programme apart from that caused by land resumption, Mr McPherson admitted that a slippage of six months was envisaged.

12. At the request of a member, the Legal Adviser agreed to prepare a paper to compare the materials concerning legal empowerment in paragraph 4.1.1 of Volume 1 of the KCRC full proposal with those in the LegCo Brief on the KCRC (Permitted Activities) (Consolidation) Order dated 4 January 1996, and to highlight discrepancies which might exist. In response to another member on whether points raised in section 2.4 of Volume 1 of the full proposal were circumventing the laws to achieve policy objectives for convenience, the Legal Adviser said that it was a matter of interpretation. He explained that it was not unusual to extend the scope of current legislation to implement a particular policy. Any such proposals would ultimately be subject to approval by LegCo.

IV Discussion on Land Requirements

Land Requirements

13. Concerning the significant area of private land required for the project, a member asked if the alignment could be so designed as to by-pass the least number of grave-sites. He also asked if the consultants and the Administration had duly considered the impact on the Outline Zoning Plan (OZP) and the question of fung shui. On the latter aspect, a member also enquired about the reason for having considered only two sites as having fung shui problems in the full proposal. Mr Child affirmed that the consultants were all sensitive to the fung-shui issue and that the two sites only represented the key areas. As for grave-sites, he advised that these were difficult to avoid. Mr McPherson added that the proposed alignment basically followed the one defined in the Railway Development Study and KCRC had made every effort in avoiding grave-sites. Mr Keen also advised that the Administration had noted the concern and would work closely with KCRC to minimize adverse effects. As regards the effects on OZP, he confirmed that KCRC had conducted briefings for the Town Planning Board.

14. A member sought clarification on whether the Administration had issued directives for freezing land development applications or had intentionally delayed the processing of such applications to facilitate the land resumption programme of WCR. Mr Keen negated such an allegation and emphasized that it was incumbent upon the Administration to process all applications. In response to another member, Mr Keen confirmed that there would not be shortcuttings of proper legislative procedures required for the resumption of private land and modification of private rights. As regards the estimated period of five years for land resumption, he said that it was necessary to wait for completion of KCRC’s technical studies. The Lands Department had a team working on this issue and he reckoned that some parts of the five-year programme could be expedited.

15. In commenting on the difficulty with land resumption, a member asked if the legal consultants had been negligent when forming their opinions without having thoroughly considered the impact. Mr LEUNG emphasized that the delay was not with legal enactment but with land resumption. Mr Keen re-iterated that much discussions had been going on to work out the most expedient way to carry out the works. Since KCRC had used certain assumptions in putting forward its proposal, early completion of the technical studies would be important in order to find ways to reduce the time required for land resumption.

16. A member requested reconsideration of the resumption of the two factory buildings in Tsuen Wan. He suggested that the site near the Riviera Garden could be developed into a station and a business district since the recently released Territorial Development Strategy had named Tsuen Wan as a new business district. This would also achieve cost-effectiveness. Mr McPherson said in response that the area involved two alignments and three potential positions. KCRC’s initial preference was for the option with the middle location as it was close to major centres of population. Nevertheless, the member’s views would be taken into consideration.

Follow-up on previous meetings

(i) Concerns raised on 12 July 1996 on Transportation Planning

17. In referring to the worst scenario analysis, a member expressed dissatisfaction with the response by KCRC. No worst situation scenarios had been presented to make possible an evaluation on the viability of the project. Mr McPherson undertook to provide such an analysis for members’ reference.

(ii) Just-in-time mechanism

18. On the "just-in-time mechanism", a member deemed it important to review how the containers could reach container terminals other than Container Terminal Number 8. Mr McPherson expressed confidence that the mechanism should work in Hong Kong. Mr SIU pointed out that future traffic situations would be different and that the scheme would be dependent on improvements to the road traffic system. He was hopeful that road traffic conditions would have improved by the time WCR become operational. The Administration would ensure the cost-effectiveness of the scheme and resolve traffic congestions in the area. The Chairman was also concerned about practicality of the mechanism and urged the Administration-appointed consultants to duly consider members’ concerns.

(iii) Modified Technical Studies Programme

19. A member requested elaboration on the four areas of work listed in paragraph 3a of the paper on the subject and suggested that a paper similar to those for Finance Committee meetings be prepared with details and justifications for the types of consultancies required.

Relationship between the Administration and KCRC

20. In response to a member on the relationship between the Administration and KCRC in the WCR project, the mechanism for monitoring the project and the possibility of setting up a body similar to the Provisional Airport Authority, Mr SIU advised that the project was only very preliminary and only broad indications could be given at the present stage. He would revert to the Subcommittee on this in due course.

Local expertise and applied research

21. At the request of a member for measures for retaining local expertise through encouraging applied research by tertiary institutions, Mr SIU undertook to discuss this with KCRC and respond in writing.

Role of the two Government officials on the KCRC Board

22. A member asked about the role of the two Government officials on the KCRC Managing Board. He was dissatisfied with the officials having participated in the decision for approving the consultancy work already undertaken but had left KCRC in defending such a decision. He remarked that this was unfair to KCRC.

23. Members agreed that the next meeting would be held on 26 July 1996 at 8:30 am for discussing the subjects of Implementation Plan and Modified Technical Studies Programme.

24. There being no further business, the meeting ended at 10:45 a.m.

Legislative Council Secretariat
30 December 1996

Last Updated on 21 Aug, 1998