LegCo Paper No. CB(1) 819/96-97
(These minutes have been seen by the Administration)
Ref : CB1/PL/TP/1

LegCo Panel on Transport

Minutes of meeting held on
Tuesday, 17 December 1996, at 8:15 am
in the Chamber of the Legislative Council Building

Members present :

    Hon Mrs Miriam LAU Kin-yee, OBE, JP (Chairman)
    Hon Zachary WONG Wai-yin (Deputy Chairman)
    Hon Albert CHAN Wai-yip
    Hon LEE Wing-tat
    Dr Hon Samuel WONG Ping-wai, MBE, FEng, JP
    Hon CHAN Kam-lam
    Hon CHAN Wing-chan
    Hon Albert HO Chun-yan
    Hon LEE Kai-ming
    Hon NGAN Kam-chuen
    Hon SIN Chung-kai
    Hon TSANG Kin-shing

Members absent :

    Hon Mrs Selina CHOW, OBE, JP
    Hon Edward S T HO, OBE, JP
    Dr Hon Philip WONG Yu-hong
    Hon CHEUNG Hon-chung
    Hon CHOY Kan-pui, JP
    Hon LAU Chin-shek
    Dr Hon LAW Cheung-kwok
    Hon Lawrence YUM Sin-ling

Public officers attending :

For Item IV
Transport Branch
Mr Gordon SIU, JP
Secretary for Transport
Mr Paul LEUNG, JP
Deputy Secretary for Transport (Transport Infrastructure)
Miss Nancy LAW, JP
Deputy Secretary for Transport (Transport Management)
Mr Johnny CHAN
Principal Assistant Secretary for Transport (Transport Infrastructure)

Highways Department
Mr Ken LEUNG, JP
Director of Highways
Mr Alan KAM
Assistant Director of Highways (Major Works)
Mr Y C TSE
Chief Engineer/ Major Works

Transport Department
Mr Y M LEE
Chief Engineer

Works Branch
Mr Peter Berry
Principal Assistant Secretary for Works (Contracts & Cost Control)

Item V

Transport Branch
Mr Gordon SIU, JP
Secretary for Transport
Mr Paul LEUNG, JP
Deputy Secretary for transport (Transport Infrastructure)
Miss Nancy LAW, JP
Deputy Secretary for Transport (Transport Management)
Mr K C LAU
Principal Assistant Secretary for Transport (Transport Services)

Transport Department
Dr Dorothy CHAN, JP
Deputy Commissioner for Transport
Miss Regina YEUNG
Chief Transport Officer
Miss Zina WONG
Assistant Commissioner for Transport (Ferry & Paratransit)

Item VI

Transport Branch
Mr Gordon SIU, JP
Secretary for Transport
Mr Paul LEUNG, JP
Deputy Secretary for transport (Transport Infrastructure)
Miss Nancy LAW, JP
Deputy Secretary for Transport (Transport Management)
Miss Maureen WONG
Principal Assistant Secretary for Transport (Transport Management)

Transport Department
Dr Dorothy CHAN, JP
Deputy Commissioner for Transport
Dr Ernest LEE, JP
Assistant Commissioner for Transport (Management & Licensing)

Attendance by invitation :

For Item VI
Motor Transport Workers General Union, School Children Vehicle Section
Mr HO Lai-yip
Mr TSANG Kwan-shing

Private Hire Car for Young Children Association Ltd
Miss FONG Miu-ling
Mr LO Siu-wing

Clerk in attendance:

    Mrs Vivian KAM

Staff in attendance :

Mr Matthew LOO
Senior Assistant Secretary (1)4 (Acting)

I Tuen Mun Road widening works mediation case -- closed session

(Paper No. CB(1) 512/96-97(01) extract from Standing Order 18 on Contents of Questions)

(Paper No. CB(1) 512/96-97(02) extract from Erskine May’s Parliamentary Practice relating to matters sub judice and matters awaiting judicial decision)

The Legal Adviser briefed the Panel on Standing Orders 13, 14, 18 and 31 and extracts from Erskine May’s Parliamentary Practice on questions and answers relating to matters sub judice and matters awaiting judicial decision.

II Confirmation of minutes of previous meeting -- open session

(LegCo Paper No. CB(1) 411/96-97)

2. The minutes of the meeting held on 8 November 1996 were confirmed.

III Date of next meeting and items for discussion

(List of outstanding items for discussion)

3. The Chairman informed members that two meetings had been scheduled on 10 and 24 January 1997 respectively.

IV Tuen Mun Road widening works mediation case

(Paper No. CB(1) 512/96-97(03) extract from minutes of meeting held on 23 October 1996)

(Paper No. CB(1) 512/96-97(04) provided by the Administration in October 1996)

(Paper No. CB(1) 512/96-97(05) extract from minutes of meeting held on 29 November 1996)

(Paper No. CB(1) 512/96-97(06) provided by the Administration in November 1996)

(Paper No. CB(1) 512/96-97(07) provided by the Administration in December 1996)

4. In response to a member, the Director of Highways (D of HyD) and the Assistant Director of Highways (Major Works) (AD of HyD(MW)) advised that the Contractor had put in claims in relation to the mediation case. One of the claims was to cover the costs of the additional works, traffic diversions and programme acceleration for completion of the works at Sam Shing Hui and So Kwun Wat sections after the rockfall incident. Those claims which were related to works at the disputed section at Tai Lam and subsequently found to be impossible amounted to about $100 million. There were also other claims not related to the impossibility issue. All of these claims were being assessed by the Supervising Officer of the contract.

5. Members were dissatisfied with the non-disclosure of the Mediator’s Decision. A member noted that the Administration had repeatedly emphasized the Contractor’s right in declining disclosure of the Decision until the Coroner’s Inquest in March 1997. He was concerned with the possibility of significant sums of public money being incurred if the Government were to lose in these claims. In response, the Principal Assistant Secretary for Works (Contracts & Cost Control) (PAS for W(CCC)) advised that it might not be practical to settle all claims before March 1997. It was also inadvisable to release the content of the claims before settlement and the special conditions of contract which would impact on the rights of both parties before the court, and he had been advised by the Attorney General’s Chambers that these conditions could not be divulged. Furthermore, the liability of the claim was governed by the contract and its quantum would be subject to negotiation between the Administration and the Contractor. The payment of compensation was a matter of professional judgement and it was his fundamental concern that LegCo Members, being the third party, should not interfere with this commercial activity.

6. Members disagreed strongly with PAS for W(CCC) for labelling LegCo Members as the third party in this case. They pointed out that LegCo had approved a significant amount for the project and this might have obviated the need for the Administration to seek approval from the Finance Committee for funds required for the compensation. Without knowing the basis of the Mediator’s Decision, members were unable to judge whether negligence or errors were involved or that the Mediator had come to the right conclusion. They also considered that some officials, when lobbying support for the project, had only stated such advantages as the cost-effectiveness of the Design and Build Contract and had failed to draw attention to other important aspects. In response, D of HyD advised that the construction contract was overseen by a supervising officer who was an experienced chartered engineer of the Government. The supervising officer would not be influenced by either the Government or the Contractor, and his neutrality was important in ensuring the smooth implementation of provisions in the contract. Any interference might intrude this neutrality and lead to arguments on infringement of contractual rights, resulting thereby in other claims for compensation. The Chairman stressed that members’ primary concern was on the claims and on monitoring the proper spending of public money.

Admin

Admin

7. Hon Albert CHAN Wai-yip considered that the Contractor’s claims of $100 million had resulted from the acceptance of the Mediator’s Decision, and this was a separate issue from the impartiality of the supervising officer. He was dissatisfied with LegCo being deprived of the opportunity of being fully briefed on the incident. He also questioned the basis for the Administration to accept the Decision and if this was the best way to tackle the case. He remarked that to guard against future recurrences, the Democratic Party might raise at the meeting of the Public Works Subcommittee on 18 December 1996 a requirement for disclosure of mediator’s decisions and related negotiation documents as a prerequisite for approving funding requests from the Administration in the future. D of HyD explained that acceptance of the Mediator’s Decision was based on legal advice from private counsel and the Attorney General’s Chambers. The decision of not pursuing the impossibility claim in arbitration was made after considering the pros and cons of different courses of action and the conclusion reached was that further pursuing the case would not be in the overall interest of the public. He added that the Administration was still assessing the claims and had yet to make a decision. The Secretary for Transport (S for T) said that he would raise with the Secretary for Works observations made by members. He considered however that members should have regard to the principles for the overall system of contracts and approval of funds and these should not be affected by a single incident. He re-iterated that all information relating to the incident in question would probably be released at the time of the Coroner’s Inquest and the Administration as well as the Director of Audit would take follow-up action where necessary on such matters as safety and risk assessment, dereliction of duty and negligence after the Inquest proceedings. While it was not possible at the moment for the Administration to compromise its stance on the non-disclosure of the Mediator’s Decision, S for T undertook to explore other means of addressing members’ concerns.

8. Hon Albert HO Chun-yan did not agree that disclosure of the said document would pre-empt the findings of the Coroner’s Inquest, having regard to the facts that Coroners had in some cases agreed to release documents for public information prior to proceedings, that persons could take civil proceedings and request disclosure of relevant documents, that LegCo could conduct public hearings or the Governor could appoint commissions of enquiry, and that issues such as the Kwun Lung Lau incident and the fire accident in the Garley Building were discussed in public by Members and related documents were made available prior to proceedings. He held the view that on the basis of the above, it was unreasonable for the Administration to withhold the information. He also cast doubt on the Administration’s claim that the issue involved matter of sub judice. The Chairman pointed out that contractual obligations were involved and sought clarification from the Administration. D of HyD advised in response that the Hong Kong Government Mediation Rules stipulated that the Mediator’s Decision could only be disclosed with the mutual consent of both parties concerned. Similar conditions regarding divulgence of information were also stipulated in Clause 8 of the General Conditions of Contract.

Admin

9. Members were concerned about the party which should be held responsible in this case, and the policy implications and impact of this incident on existing and future works contracts. In particular, they asked if there were any disclaimer clause in the contract concerning unforeseeable situations and accidents beyond control, and if a copy of the supplementary agreement for works at Sam Shing Hui and So Kwun Wat sections could be provided to the Panel. PAS for W(CCC) undertook to provide relevant extracts of the general conditions of contract on the two clauses on impossibility and the confidentiality of commercial documents for members’ reference. D of HyD added that the supplementary agreement stipulated special conditions of contracts which could not be divulged at this juncture. He also advised that following acceptance of the Mediator’s Decision, the Contractor had been relieved of his obligation to complete the disputed works at the Tai Lam section. The Administration was conducting a feasibility study for the remainder of the works and this was expected for completion by April 1997.

(Post-meeting note: Response from PAS for W(CCC) was circulated to members vide LegCo Paper No. CB(1) 647/96-97.)

10. A member noted from the information paper that significant resources would have to be incurred for the construction of a new lane for Tuen Mun Road. In view of the impending opening of the Ting Kau Bridge and the Route 3 (Country Park Section) in late 1997 and mid-1998 respectively, and the fact that about $500 million spent on the works had only succeeded in increasing traffic flow by 400 vehicles during the morning peak hour, he sought clarification on whether it was the Administration’s intention to proceed with the construction of the new lane. S for T said in reply that the Administration had yet to decide but he would take the member’s views into consideration. Another member expressed disappointment with the manner with which Design and Build contracts were handled. When introducing Design and Build projects previously, the Administration had advised that contractors would normally be responsible for technical issues related to the projects. This did not appear to be applicable in the present case. He stressed that Government should not be held liable for follow-up action and it was inconceivable for Government to have to pay significant compensation in this and some other cases. He suggested that all future contracts should be available for public inspection.

11. The Panel requested the Administration to report to members progress of this case and provide all relevant documents in due course. The Chairman advised that this item would be discussed again after the Coroner’s Inquest.

V Taxi fare receipt

(Paper No. CB(1) 512/96-97(08) provided by the Administration)

12. At the Chairman’s invitation, the Assistant Commissioner for Transport (Ferry & Paratransit) (AC for T(F&P)) briefed the Panel on the subject of taxi fare receipt. The device for issuing taxi fare receipts could either be an integral part of a taximeter or a printer added onto the existing taximeter. The capital cost of a printer was around $1,000 to $1,500, and a taximeter-cum-printer, $4,000 to $6,000. Taxi fare receipts could be printed within 12 seconds and this should not cause traffic delays. The Administration had discussed the proposal with suppliers of taximeter equipment and the taxi trade. Taxi operators, including drivers and taxi owners, generally welcomed the proposal. They also accepted contingency arrangements of hand-written fare receipts in case of printer failures.

13. A member enquired if these devices could record the total sum of daily income of taxi drivers as this might provide supporting data for taxi fare revision applications. AC for T(F&P) advised that although some of the devices could be upgraded to serve this purpose, the proposal would deviate from the original aim of issuing taxi fare receipts and further consultation would have to be made with taxi operators. On whether such records would be used by the Commissioner of Inland Revenue to assess the income tax of taxi drivers, S for T advised that this would be a separate issue.

14. As regard the durability of these devices, AC for T(F&P) said that these were simple machines for printing out data and would be very durable; some of the machines had been installed in Rehab buses for over one year. As to whether issuance of the receipts would solve the problems of over-charging and meter tampering, AC for T(F&P) acknowledged that this might not be the ultimate solution but it should at least serve a deterrent effect. Furthermore, the Police had confirmed that the receipts would be useful in assisting in the prosecution of drivers for over-charging. She agreed with members on the need for this message to be conveyed clearly to the public.

15. On the implementation schedule of the proposal, the Principal Assistant Secretary for Transport (Transport Services) advised that the amendment regulations would be introduced into LegCo in March 1997 for implementation in June 1997; all taxis would have to install such devices before mid-1998. As regards the possibility of advancing the programme, he explained that it would take time for the suppliers to provide an adequate supply of the devices. S for T agreed with members that the Panel would be briefed on the details of the amendment regulations again before the Administration formally put them to LegCo.

VI Safety of school transport

(Paper No. CB(1) 512/96-97(09) extract from minutes of meeting of Education Panel held on 15 November 1996)

(Paper No. CB(1) 512/96-97(10) provided by the Motor Transport Workers General Union School Children Vehicle Section, Private Hire Car for Young Children Association Ltd, and Young Children School Mini-buses Operators Association Ltd)

(Paper No. CB(1) 512/96-97(11) provided by the Administration)

Meeting with Deputations

16. The Chairman advised that representatives of the trade had been invited to the meeting to present their views on the subject. At the Chairman’s invitation, the deputations made their representations as follows.

Private Hire Car for Young Children Association Ltd

17. Mr LO Siu-wing agreed with the need to standardize the colour for school light buses but proposed white colour for the body of the vehicle with yellow stripe as such a colour scheme was currently adopted by the trade and the change in colour would involve significant resources. He supported the mandatory provision of escorts but not the registration of escorts with the Administration.

Motor Transport Workers General Union School Children Vehicle Section

18. Mr HO Lai-yip shared Mr LO’s view on the colour scheme. He added that the need for escorts would increase the operating cost of the trade, and quoted a case of students of a primary school in Wong Tai Sin where the patronage dropped 20% after an increase in monthly fare by $30 as a result of the provision of escort services. He also cautioned that the requirement for escorts to be over 21 years of age would have an adverse impact on most kindergartens as most school assistants now accompanying students in nanny vans were below 21. Mr HO deemed it unnecessary for escorts to be registered. Furthermore, he urged the Administration to review the display of the "Caution : Children" sign at the rear of school buses as this would block the drivers’ sight.

19. Members generally supported the mandatory requirements for escorts having regard to the prime concern of safety of students. They sought elaboration from the trade on their objection to providing the names of escorts to the Administration since security guards were similarly required to register details with the Administration. In response, the deputations said that they were not convinced of the need for this arrangement. They considered it sufficient for the Administration to ensure the presence of escorts but did not deem it necessary for the Administration to register their personal particulars; some escorts might object to the details being released to the Administration. They pointed out that many school bus accidents were caused by students and were not related to the presence or otherwise of escorts. The deputations also emphasized that other arrangements, such as lifting no-stopping restrictions for students to board and alight from school buses and nanny vans, should also be considered to enhance safety. On the subject of operating costs, they said that the increase in costs would largely be shouldered by the trade as most parents could not afford the fare increase. Hon Zachary WONG Wai-yin pointed out that the Democratic Party had proposed to the Administration at a recent meeting of the Education Panel to increase travel subsidies following the mandatory requirement of escorts in school buses.

20. Members noted that the colour scheme proposed by the Administration was based on a number of researches which showed that yellow was the most suitable colour for safety purposes; many overseas countries such as Canada had also adopted this colour for school buses. The deputations responded that around 90% of existing school buses and nanny vans in Hong Kong had been using the scheme of white body with yellow strip for more than ten years, and the proposed scheme would create inconvenience to the trade and the public. While appreciating the Administration’s proposal for the colour scheme to apply only to new nanny vans for the time being, they remarked that such an arrangement might delay the standardization process by six to seven years. On the contrary, they estimated that it would only take one year to implement the scheme if the current colour scheme of white body with yellow strip was adopted. They held the view that the yellow strips were adequate to alert other drivers on the road.

Meeting with the Administration

Admin

21. Members enquired about the need to register escorts. The Assistant Commissioner for Transport (Management & Licensing) (AC for T(M&L)) said in response that the concerns of the trade and parents had been taken into account in formulating the policy for registration. Legal advice sought also supported the registration process and the basic information on escorts supplied prior to their assumption of duties would help the Administration in following up complaints. Furthermore, operators would not be prohibited from making a trip if an escort suddenly failed to turn up. The Administration would only take follow-up action in the absence of satisfactory explanations for repeated absences. AC for T(M&L) added that the operation of the trade was different from other public transport such as buses and trains which were not required to register their drivers with the Administration. Members generally appreciated the operational difficulties which operators might have in providing the requisite information before escorts assumed duties, and sought to ascertain the need to register escorts. Hon LEE Wing-tat, on behalf of the Democratic Party, considered that prior registration was not required if the Administration could confirm that registered owners of school buses or nanny vans would have criminal liability in case of accidents if no prior information on escorts was provided. AC for T(M&L) took note of members’ views and undertook to provide the Panel with the legal considerations for the prior registration of escorts.

Admin

22. As regards the colour scheme, AC for T(M&L)) said that the scheme proposed by the Administration was conspicuous and would alert road users in keeping a safe distance with nanny vans. Yellow was the colour adopted by overseas countries such as Canada, United States and Australia. He also advised that traffic conditions in Hong Kong were different ten years ago when school buses and nanny vans were introduced, and this might have accounted for the different body colour at that time. He emphasized that while the trade had been consulted on the proposed measures to enhance school bus safety, the Administration also needed to have regard to the views of other parties such as parents and school authorities. Flexibility had already been given to operators by confining the introduction of the proposed colour scheme to new nanny vans only. The Chairman requested TD to check the availability of statistics in the past three years on the number of traffic accidents caused by drivers who were unaware of the body colour of nanny vans, AC for T(M&L) replied that he was not aware of such figures but would further check. On the installation of the "Caution : Children" sign at the rear of school buses, AC for T(M&L)) also undertook to follow up the proposal with the trade.

VII Any other business

(10:30 am onwards)

23. There being no other business, the meeting closed at 10:50 a.m.

Legislative Council Secretariat
31 January 1997

Last Updated on 22 August 1998