Provisional Legislative Council

PLC Paper No. CB(1)1258
(These minutes have been
seen by the Administration)

Ref : CB1/BC/4/97

Bills Committee on Protection of the Harbour (Amendment) Bill 1997
Minutes of the meeting held on Tuesday, 10 February 1998, at 2:30 pm in Conference Room A of the Legislative Council Building

Members present :

Dr Hon Mrs TSO WONG Man-yin (Chairman)
Hon WONG Siu-yee
Hon HO Sai-chu, JP
Hon Edward HO Sing-tin, JP
Dr Hon Raymond HO Chung-tai, JP
Prof Hon NG Ching-fai
Hon Mrs Peggy LAM, JP
Hon Ronald ARCULLI, JP
Hon YUEN Mo
Dr Hon LEONG Che-hung, JP
Hon MOK Ying-fan
Hon CHAN Choi-hi
Hon YEUNG Yiu-chung
Hon IP Kwok-him
Hon Ambrose LAU Hon-chuen, JP
Hon KAN Fook-yee
Dr Hon LAW Cheung-kwok

Members absent :

Dr Hon David LI Kwok-po, JP
Hon Henry WU
Hon MA Fung-kwok
Hon Kennedy WONG Ying-ho
Hon CHOY So-yuk

Public officers attending :

Item III

Mr Wilson W Y FUNG
Principal Assistant Secretary for Planning, Environment and Lands (Planning)

Miss Miranda F H NG
Senior Assistant Law Draftsman
Department of Justice

Mr Raymond T L CHIU
Assistant Director of Planning (Technical Services)
Planning Department

Attendance by invitation :

Item II

Society for Protection of the Harbour

Mr Winston CHU Ka-sun
Chairman

Ms Christine LOH Kung-wai
Deputy Chairman

Madam CHU FOK Wing-yue
Financial Sponsor

Mr Adam MAYES
Consultant

Mr Jeff TSE Tsat-kuen
Legal Consultant

Clerk in attendance :

Miss Odelia LEUNG,
Chief Assistant Secretary (1)1

Staff in attendance :

Mr Jimmy MA,
Legal Adviser

Ms Connie SZE-TO,
Senior Assistant Secretary (1)1

1 The Chairman informed the meeting that in pursuant of House Rule 23 she had accepted the late membership of Messrs Ronald ARCULLI and YEUNG Yiu-chung who were away from Hong Kong when membership for the Bills Committee was called for.

I Confirmation of minutes of meeting

2. The minutes of meeting held on 2 January 1998 were confirmed.

II Meeting with Society for Protection of the Harbour

(PLC Paper No. CB(1)858, documents tabled by the Society at the meeting)

3. Mr Winston CHU and Ms Christine LOH of Society for Protection of the Harbour (the Society) presented their views on the Protection of the Harbour (Amendment) Bill 1997 (the Bill). They highlighted the following points -

  1. The Protection of the Harbour Ordinance (the Ordinance) was the only piece of legislation to protect Victoria Harbour from excessive reclamation. There were objections from the public and professional bodies against harbour reclamation;

  2. the Ordinance was not intended to prohibit reclamation but to require the responsible authorities to reclaim the harbour as a last resort by establishing the "presumption against reclamation" principle and requiring public officers/bodies to have regard to that principle. To this end, the Society was not opposed to reclamation projects for the construction of essential infrastructural facilities provided that they were fully justified in the public interest and the Administration had explored other alternatives;

  3. the Society was concerned that the Bill had deviated from the spirit of the Ordinance i.e., to protect and preserve the central harbour as a special public asset and a natural heritage of Hong Kong people, and the Administration had deliberately disregarded the Ordinance by planning to proceed with the Central Reclamation Phase 3 and Wan Chai Reclamation Phase 2. To put the intention of the Ordinance beyond doubt, the Society proposed to amend section 3(2) of the Ordinance by adding "and shall only authorize reclamation in the (central) harbour if there are over-whelming reasons and there is no other viable alternative" at the end of the section; and

  4. the Society also proposed to amend the Schedule to extend the scope of the Ordinance to cover the whole Victoria Harbour.

4. On the need to revise the definition of "reclamation" in the Ordinance, Mr Adam MAYES of the Society said that the Society was of the view that it was unnecessary to revise the existing definition as it had not caused any ambiguity. It was highly unlikely that works, such as repairing cables on the sea-bed and routine maintenance of facilities within the central harbour, which were not reclamation projects in the normal sense of the word and had no adverse impact on the status of the harbour as a special public asset and a natural heritage of Hong Kong people, would subject to the "presumption against reclamation" principle. Moreover, the Society was concerned about the possible uncertainties that might be brought about by the revised definition, for example, whether the amended definition would cover developments like the Ocean Terminal which was built on piles over sea surface.

III Meeting with the Administration

(PLC Paper Nos. CB(1)752, CB(1)764 and CB(1)899)

5. Responding to the Chairman, the Principal Assistant Secretary for Planning, Environment and Lands (Planning) (PAS/PEL(P)) said that the Administration considered the two amendments to section 3 and Schedule 1 to the Ordinance proposed by the Society outside the scope of the Bill. Members accepted the Administration ' s view.

6. The Bills Committee then continued with its deliberations on the need to revise the definition of "reclamation" and the ways to amend it.

Need for a revised definition

7. The PAS/PEL(P) stressed that the primary purpose of the Bill was to narrow the existing definition of "reclamation" to exclude non-reclamation projects with a view to removing ambiguities rather than to change the spirit of the Ordinance. He added that the Administration was fully committed to protecting the harbour. In line with the spirit of the Ordinance, the Administration would weigh the public benefit of the preservation of the central harbour against the public benefit of the reclamation project before making a decision to proceed with the project. Under the existing arrangements, any proposed reclamation projects must be incorporated in a draft Outline Zoning Plan, and gazetted in pursuant to the Foreshore and Sea-bed (Reclamations) Ordinance (Cap. 127) (FSRO). Objections might be lodged against the proposed reclamation. Moreover, funding approval from the Public Works Subcommittee of the Finance Committee was required before reclamation projects in Public Works Programme could proceed. These mechanisms would ensure proper public control and scrutiny of reclamation projects. In practice, the Administration would continue to conduct thorough studies on the impact of a reclamation project on the harbour prior to making a decision to proceed with the project.

8. Responding to the Chairman, the Legal Advisor (LA) said that the term "reclamation" had not been defined in other Hong Kong laws. The definition under the Ordinance, which was the same as that in the FSRO, provided only an inclusive description of the term. In LA ' s view, any proposed definition of this nature would be fluid and could not be exhaustive. In the event of litigations, the court would take into consideration the legislative intent of the ordinance in question in interpreting the meaning of "reclamation". As regards the operational mechanism of the "presumption against reclamation" principle, LA remarked that this had not been spelt out in the Ordinance. In litigations it rested with the court to decide whether the authorities concerned had given due consideration to all the relevant factors and circumstances in proposing a reclamation project.

9. Members in general held the view that any changes proposed by the Administration had to be in accord with the spirit of the Ordinance. To this end, the majority members agreed that a revised definition was justified to remove ambiguities. Dr Hon LEONG Che-hung, however, shared the view of the Society that the undertaking of routine repair and maintenance works for underwater facilities was not subject to the "presumption against reclamation" principle and the existing definition should be retained.

Ways of amendment

10. PAS/PEL(P) said that the Administration had examined some members’ proposal of adding a proviso to the existing definition to list out those projects that should be excluded from the operation of the Ordinance but discarded it in view of the difficulties in compiling an exhaustive list. To address members’ concerns raised at the last meeting, the Administration had prepared two revised definitions of "reclamation" for members’ consideration. In the first revised definition which was attached to PLC Paper No. CB(1)752, the word "reclamation" meant "any works carried out or intended to be carried out for the purpose of forming land from the sea-bed or foreshore". This revised definition could address members’ concerns about the need to subject the process of formulation and preparation of a reclamation project to the "presumption against reclamation" principle and would remove any ambiguity over the reference to "for dry land purposes" which had been deleted. In the light of some members’ concern that works, in particular, public dumping and construction of elevated structures on piles over sea surface, which would result in reducing the sea surface area, should be caught by the definition, the Administration had prepared a second revised definition of reclamation which meant "any works carried out or intended to be carried out on or upon the sea-bed or foreshore the result of which is the formation of dry land including such dry land formed by public dumping or elevated structures on piles". At members’ request, this revised definition was tabled at the meeting.

11. In reply to enquiries about the second revised definition, the Senior Assistant Law Draftsman (SALD) explained that the reference to "dry land" was to distinguish land from that covered by water as under existing legislation, the word "land" included land situated above and under water. To address members’ concern, PAS/PEL(P) said that the Administration would examine the feasibility of deleting the reference to "dry land" to remove any possible ambiguity. As regards the term "public dumping/ , SALD said that the same term was used in the provisions of the Environmental Impact Assessment Ordinance (Cap. 499). PAS/PEL(P) added that the term should cover all inert construction wastes used for reclamation purpose.

12. Comparing the two revised definitions, some members were of the view that subject to further refinement, the second revised definition was acceptable in principle as it categorically stipulated the inclusion of public dumping and construction of elevated structures on piles over sea surface under the scope of the Ordinance. However, some members opined that the first revised definition was simpler, more straight-forward and would more accurately reflect the Administration ' s policy intention. They remarked that it was superfluous to spell out, as in the second revised definition, the way by which the land was reclaimed. The more elaborated the word "reclamation" was defined, the more confusion it tended to create. For example, whether the reclaimed land must invariably be dry land or had to be dry all the time.

13. As members had different views on the proposed amendment to the definition of "reclamation", the Chairman put the two revised definitions to vote. The majority members favoured the first revised definition put forth by the Administration.

14. In conclusion, the Chairman said that subject to the Committee stage amendments to be moved by the Administration, the Bills Committee recommended the resumption of the Second Reading debate on the Bill on 4 March 1998. She would report on the Bills Committee ' s deliberations at the House Committee on 20 February 1998. The Administration was requested to note the deadline for giving notice to move the Committee stage amendment by 23 February 1998.

15. The meeting ended at 4:40 pm.


Provisional Legislative Council Secretariat
9 April 1998