Hong Kong Special Administrative Region Passports Bill (Minutes) 15 Jul 97

PLC Paper No. CB(2) 366
(These minutes have been seen
by the Administration)

Ref. : CB2/BC/1/97

Bills Committee on Hong Kong Special Administrative Region Passports Bill

Minutes of the meeting held on Tuesday, 15 July 1997 at 2:30 pm in Conference Room A of the Legislative Council Building

Members present :

Hon Howard YOUNG, JP (Chairman)
Hon WONG Siu-yee
Hon Mrs Elsie TU, GBM
Hon Mrs Peggy LAM, JP
Dr Hon LEONG Che-hung, JP
Hon Mrs Sophie LEUNG LAU Yau-fun
Hon CHAN Yuen-han
Hon CHAN Kam-lam
Hon Andrew WONG Wang-fat, JP
Dr Hon Philip WONG Yu-hong
Hon Charles YEUNG Chun-kam
Hon Mrs Miriam LAU Kin-yee, JP
Dr Hon TANG Siu-tong, JP
Hon Timothy FOK Tsun-ting
Dr Hon LAW Cheung-kwok

Members absent :

Hon Edward HO Sing-tin, JP
Hon Henry WU
Hon Kennedy WONG Ying-ho
Hon LAU Kong-wah
Hon Ambrose LAU Hon-chuen, JP

Public officers attending :

Ms Ingrid HO: Principal Assistant Secretary for Secretary
Mr T K LAI: Assistant Director of Immigration
Mr T P WONG: Assistant Director of Immigration
Mr K F CHENG: Senior Law Draftsman

Clerk in attendance :

Mrs Sharon TONG: Chief Assistant Secretary (2) 1

Staff in attendance :

Miss Connie FUNG: Assistant Legal Adviser 3
Mr Paul WOO: Senior Assistant Secretary (2) 5

I.Meeting with the Administration
(Provisional Legislative Council Brief - Ref: SBCR 3/2091/95 (97)
Legal Service Division Report - Ref: PLC Paper No. LS 5/97-98 The Bill)

Principal Assistant Secretary for Security (PAS(S)) briefed members on the provisions in the Bill.

2.PAS(S) advised that authorization for the Hong Kong Special Administrative Region (HKSAR) Government to issue HKSAR passports was provided under Article 154 of the Basic Law, which came into force on 1 July 1997. To ensure that the urgent travel needs of Hong Kong residents were met, the Immigration Department had been issuing HKSAR passports since 3 July 1997. It would be necessary for the Bill to be enacted quickly so that implementation arrangements would not be impeded because of a lack of legislation. PAS(S) said that the Administration proposed that the Bill, if enacted, should take retrospective effect from 1 July 1997 so that the commencement of the legislation could tie in with the effective date of the authorization of issuing HKSAR passports.

3.In response to members' queries on the legal basis for the issue of HKSAR passports before the enactment of the Bill, PAS(S) said that in view of the clear mandate given by the Central People's Government of the People's Republic of China as well as the agreement reached at the meeting of the Sino-British Joint Liaison Group (JLG) in January 1996 authorizing the SAR Government to issue HKSAR passports upon the commencement of the Basic Law, there was no question as to the validity of the passports issued after 1 July 1997 and prior to the enactment of the Bill, even if the Bill took no retrospective effect. The purpose of the Bill, with its retrospectivity, was to provide for matters for the better carrying out of the provision of Article 154 of the Basic Law, and to ensure that holders of HKSAR passports, regardless of when they applied for their passports, would be given the same legal protection.

4.Mrs Miriam LAU Kin-yee pointed out that the wordings in Article 154 of the Basic Law of "......to issue, in accordance with law, passports......" seemed to suggest that the Basic Law empowered the SAR Government to enact laws for the issuing of HKSAR passports. It could therefore give rise to queries on the legality of the passports already issued since it could be argued that there was no such law in place before this Bill was enacted. The Administration undertook to provide legal advice in writing on the interpretation of those wordings of the Basic Law.

Adm

5.In reply to further questions from members, PAS(S) said that a person who was a holder of a Hong Kong permanent identity card and a valid foreign passport could apply for HKSAR passport if he chose to retain his Chinese nationality. A person who changed his Chinese nationality after being issued an HKSAR passport would lose his right to the passport. People who obtained a British passport through the British Nationality Selection Scheme would still be treated as Chinese citizens, according the interpretation given by the Standing Committee of the National People's Congress Concerning the Implementation of the Nationality Law of the People's Republic of China in the Hong Kong Special Administrative Region and adopted at the 19th meeting of the Standing Committee of the National People" Congress at the 8th National People's Congress on 15 May 1996. These people could not give up their Chinese nationality on the basis of their British passport and they were eligible to apply for HKSAR passports.

6.As regards the non-Chinese ethnic minorities who were permanent residents of Hong Kong, PAS(S) said that they must first become Chinese citizens before they could apply for HKSAR passports. Before 1 July 1997, these people could apply for British Dependent Territories Citizens (BDTC) or British Nationals (overseas) (BN(O)) passports. After 1 July 1997, they could apply for the new British Overseas Citizens (BOC) passport if they would be otherwise stateless. The British Consulate in Hong Kong had already started receiving applications for BOC passports from these people since 1 July 1997. PAS(S) added that there was another small group (about 100 in number) of stateless persons in Hong Kong to whom Document of Identity (DI) had been issued as travel document. The issue of DIs to these people would continue.

7.Mr Andrew WONG Wang-fat enquired if the fact that a person had revealed his intention to give up his status of a Chinese citizen would affect the Director of Immigration (Director)'s decision to approve the person's application for an HKSAR passport. The Administration replied that there was no reason for the Director not to issue the passport provided that the conditions under clause 3 of the Bill were fully met. The Director could cancel a passport already issued if any of the conditions under clause 3 no longer held. A person whose passport was cancelled under clause 9(1)(c) for incorrect matters recorded in the passport could apply for re-issue of the passport, subject to the conditions in clause 3 still being fulfilled.

8.Mr WONG Siu-yee enquired under what circumstances the Director would exercise the discretionary power in clause 4(2). The Administration advised that the objective of clause 4(2) was to cater for exceptional circumstances such as where the issue of a short-term passport to deal with an emergency situation was warranted. As it was impossible to precisely define exceptional circumstances, it was necessary to provide such discretionary power to the Director, subject to good reasons which justified his decision. The Administration further explained that the provisions in clause 4(2) would only apply to the issue of new passports. The validity period of passports already issued would not be changed.

9.On the same subclause, Mrs Miriam LAU Kin-yee opined that the wordings "if satisfied that good reasons exist" seemed to allow the Director too much discretionary power. She suggested that a more stringent requirement should be imposed on the Director for the exercise of the authority under clause 4(2).

10.At members' request, the Administration agreed to review the drafting of clause 4(2) to set out more clearly the legislative intent.	Adm

11.Referring to clause 6, the Administration clarified that the arrangements in respect of cross link passports would apply only to HKSAR passports. An HKSAR passport could not be "cross-linked" with a foreign passport. Cross link arrangements would only be made upon the request of an applicant. The Administration added that similar arrangements had been adopted for BN(O) passports issued before April 1997 and such practice had been accepted internationally by other countries.

12.The Administration further advised that the United States had agreed that it would permit entry of persons who produced at the time of entry a BN(O) passport bearing a valid visa together with an HKSAR passport. At members' request, the Administration agreed to clarify with other countries, in particular those which issued long-term visa, to see if similar practice as adopted by the US would be acceptable.

Adm

13.Commenting on clause 8(2), Mrs Miriam LAU Kin-yee said that it was unreasonable for the Director to require an applicant to collect his passport at the place where he made the application or at another place outside Hong Kong. PAS(S) explained that regardless of whether an application was made outside Hong Kong, a person could request for the passport to be collected in Hong Kong, or at a place outside Hong Kong. The additional fee prescribed under clause 8(2) would be charged only if the applicant chose to collect the passport at a place outside Hong Kong. The Administration undertook to improve the drafting of clause 8(2) to achieve the legislative intent.

Adm

14.The Administration further advised that the fees set out in the Schedule were part of the legislation and the notice made by the Chief Executive in Council under clause 11 to amend the Schedule would be subject to the negative vetting procedures of the legislature. The additional fees specified by the Director by notice under clause 8(3), on the other hand, would only require the approval of the Financial Secretary.

15.In respect of the fees charged for HKSAR passports, PAS(S) said that it had been an established practice for the Government to impose fees for recovering the administrative costs for the provision of services to the public. She added that although the proposed fees for the application of HKSAR passports were slightly higher than that for BN(O) passports because of higher production cost, the fees for the regular and jumbo SAR passports for adults were set at about 50% and 70% of the cost respectively. The fees charged for the passports would not create a profit for the Government.

16.Members opined that the phrase "has reasonable cause to believe" in clause 9(1)(a), (b) and (c) should be reviewed. Members suggested that there should be sufficient proof of those circumstances as referred to in the clause before the Director exercised the power to cancel a passport. They held that the present drafting of clause 9, which apparently provided a sweeping power to the Director to cancel passports, pinpointed the necessity for an appeal mechanism to guard against inappropriate use of the Director's power.

17.In response, PAS(S) said that the word 'shall" in clause 9(1) would be amended to read "may" by way of a Committee stage amendment. She further explained that the reason for the Administration not to specify an appeal channel in the Bill was that there were very clear-cut criteria set out under clause 3 for the issue of passports. As for other administrative decisions, any person aggrieved could apply for a judicial review of the Director's decision. The person could also pursue his case through other channels, such as by complaining to the Ombudsman or making representations to the Secretary for Security, the Chief Secretary for Administration or the Chief Executive as he saw fit.

18.In view of members' concern, the Administration agreed to review the drafting of clause 9(1)(a), (b) and (c) and to further examine the need to provide an appeal mechanism in the Bill.	Adm

19.The Administration also agreed to revert to members on the practices of dealing with appeal matters in relation to the issue and cancellation of British passports and the number of related complaints cases made to the Ombudsman.	Adm

20.Mrs Miriam LAU Kin-yee enquired of the difference in operation of clause 5 and clause 9(1)(c) in relation to matters incorrectly recorded in a passport. PAS(S) replied that clause 5 dealt with matters which could be rectified by way of an amendment without having to cancel the existing passport. Depending on the nature of individual cases, the Director would make the appropriate decision as he deemed fit.

21.With reference to Dr LEONG Che-hung's question, PAS(S) said that, for the purpose of Part II, III or IV of the Immigration Ordinance, Cap. 115, section 42 of the Ordinance provided that any person should be guilty of an offence for making false statements, forgery of documents and use and possession of forged documents. 22.In reply to Mrs Peggy LAM's enquiry, the Administration advised that people below the age of 16 would need their parents or legal representatives to apply for the passport on their behalf. People between the age of 16 and 18 could apply with their parents' consent, and people above the age of 18 should apply on their own. These arrangements had been agreed upon by the JLG and adopted for the issuing of BDTC and BN(O) passports before April 1997.

23.Regarding financial and staffing implications of the Bill, PAS(S) confirmed that additional resources had been approved by the Finance Committee for the creation of 262 posts in the Immigration Department as reserve to enable the department to increase its handling capabilities to issue passports from 2 000 to 4 000 a day. Actual implementation arrangements might require redeployment of experienced staff to fill these posts.

II.Legislative timetable

24.PAS(S) informed members that in view of the proposed retrospectivity of the Bill, the Administration intended to resume the Second Reading debate on 23 July 1997. She undertook to submit written response to the points raised by members and a revised set of draft Committee stage amendments (CSAs) before the House Committee's meeting on 18 July 1997.

25.The Chairman advised members that the President of the Provisional Legislative Council had agreed to extend the deadline for giving notice to CSAs to 1:00 pm on 22 July 1997, if the House Committee agreed that the resumed debate should take place on 23 July 1997.

III.Date of next meeting

26.The next meeting was scheduled for 18 July 1997 at 8:30 am.

IV.Close of meeting

27.The meeting ended at 5:00 pm.

Provisional Legislative Council Secretariat
18 September 1997