OFFICIAL RECORD OF PROCEEDINGS
Saturday, 21 June 1997
The Council met at half-past Nine o'clock
MEMBERS PRESENT:
THE PRESIDENT
THE HONOURABLE MRS RITA FAN, J.P.
THE HONOURABLE WONG SIU-YEE
THE HONOURABLE JAMES TIEN PEI-CHUN, J.P.
THE HONOURABLE DAVID CHU YU-LIN
THE HONOURABLE HO SAI-CHU, J.P.
THE HONOURABLE EDWARD HO SING-TIN, J.P.
DR THE HONOURABLE RAYMOND HO CHUNG-TAI, J.P.
THE HONOURABLE NG LEUNG-SING
PROF THE HONOURABLE NG CHING-FAI
THE HONOURABLE ERIC LI KA-CHEUNG, J.P.
DR THE HONOURABLE DAVID LI KWOK-PO, J.P.
THE HONOURABLE LEE KAI-MING
THE HONOURABLE ALLEN LEE, J.P.
THE HONOURABLE MRS ELSIE TU
THE HONOURABLE MRS SELINA CHOW, J.P.
THE HONOURABLE MRS PEGGY LAM, J.P.
THE HONOURABLE HENRY WU
THE HONOURABLE NGAI SHIU-KIT, J.P.
THE HONOURABLE HENRY TANG YING-YEN, J.P.
THE HONOURABLE RONALD ARCULLI, J.P.
THE HONOURABLE YUEN MO
THE HONOURABLE MA FUNG-KWOK
DR THE HONOURABLE MRS TSO WONG MAN-YIN
DR THE HONOURABLE LEONG CHE-HUNG, J.P.
THE HONOURABLE MRS SOPHIE LEUNG LAU YAU-FAN, J.P.
THE HONOURABLE MOK YING-FAN
THE HONOURABLE HUI YIN-FAT, J.P.
THE HONOURABLE CHAN CHOI-HI
THE HONOURABLE CHAN YUEN-HAN
THE HONOURABLE CHAN WING-CHAN
THE HONOURABLE CHAN KAM-LAM
THE HONOURABLE TSANG YOK-SING
THE HONOURABLE CHENG KAI-NAM
THE HONOURABLE FREDERICK FUNG KIN-KEE
THE HONOURABLE ANDREW WONG WANG-FAT, J.P.
DR THE HONOURABLE PHILIP WONG YU-HONG
THE HONOURABLE KENNEDY WONG YING-HO
THE HONOURABLE HOWARD YOUNG, J.P.
DR THE HONOURABLE CHARLES YEUNG CHUN-KAM
THE HONOURABLE IP KWOK-HIM
THE HONOURABLE CHIM PUI-CHUNG
THE HONOURABLE BRUCE LIU SING-LEE
THE HONOURABLE LAU KONG-WAH
THE HONOURABLE LAU WONG-FAT, J.P.
THE HONOURABLE MRS MIRIAM LAU KIN-YEE, J.P.
THE HONOURABLE AMBROSE LAU HON-CHUEN, J.P.
THE HONOURABLE CHOY KAN-PUI, J.P.
THE HONOURABLE PAUL CHENG MING-FUN, J.P.
THE HONOURABLE CHENG YIU-TONG
DR THE HONOURABLE TANG SIU-TONG, J.P.
THE HONOURABLE TIMOTHY FOK TSUN-TING
THE HONOURABLE KAN FOOK-YEE
THE HONOURABLE NGAN KAM-CHUEN
THE HONOURABLE LO SUK-CHING
DR THE HONOURABLE LAW CHEUNG-KWOK
THE HONOURABLE MARIA TAM WAI-CHU, J.P.
THE HONOURABLE TAM YIU-CHUNG, J.P.
MEMBERS ABSENT:
THE HONOURABLE CHEUNG HON-CHUNG
THE HONOURABLE LEUNG CHUN-YING, J.P.
THE HONOURABLE YEUNG YIU-CHUNG
CLERK IN ATTENDANCE:
MS PAULINE NG MAN-WAH
CLERK TO THE PROVISIONAL LEGISLATIVE COUNCIL
ADDRESSES
PRESIDENT (in Cantonese): Meeting will now begin. The first item of business is two addresses.
According to Rule 21(5) of the Rules of Procedure, no debate may arise on any address but I may in my discretion allow short questions seeking elucidation on matters raised in the addresses.
The first address is by the Honourable Paul CHENG on the report of the Bills Committee on the Immigration (Amendment) (No. 3) Bill 1997 that he presents to this Council. Mr Paul CHENG.
MR PAUL CHENG: Madam President, the Immigration (Amendment ) (No. 3) Bill 1997 is designed to amend the Immigration Ordinance in order to give effect to the provisions in Article 24 of the Basic Law relating to the permanent residents of and right of abode in the Hong Kong Special Administrative Region (SAR).
Schedule 1 of the Immigration Ordinance is amended through clause 6 of the Bill to provide for the six categories of the permanent residents of the SAR with the right of abode. The Bills Committee is satisfied that the draft provisions are consistent with the Basic Law, the detailed arrangements announced by the Hong Kong and Macau Affairs Office in April and agreement reached by the Sino-British Joint Liaison Group.
I do not believe it is necessary to cover the details of the Bill because interested Members can find them in the report which was issued earlier in the week. If they have not had a chance to read it, the brief prepared by the Chief Executive's Office circular No. 368 together with the booklet issued by the Immigration Department are both useful documents. To save time, I would simply highlight key areas raised by Bills Committee members during our deliberaton for information to those of you who did not sign up for the Committee.
Whilst the Bills Committee support the Bill in principle, some members raised concerns on a couple of points relating to implementation and interpretation as well as implications of the Chinese Nationality Law as it applies to the SAR.
1. Concern was raised that children born in Hong Kong to new immigrants from China should be entitled to the right of abode irrespective of whether their fathers or mothers were settled in Hong Kong at the time of their birth. The Chief Executive's Office undertook to review the existing administrative arrangement of imposing limits of stay on one-way permit holders with a view to permitting childern born to new immigrants to qualify for the right of abode immediately at birth. They will put forward proposals at a later date.
2. The Bill does not provide for those who claim to enjoy the right of abode in the SAR but have entered or sought to enter Hong Kong illegally. As we all know , the Chief Executive has already set up a special Task Force to examine this issue. Recommendations will be forthcoming as to whether this should be resolved by legislative or administrative measures or a combination of both.
3. A member of the Bills Committee queried the rationale for revoking the discretionary power of the Director of Immigration to allow illegal immigrants to obtain the right of abode. He felt this might undermine confidence in the SAR Government and create uncertainties in the minds of those who remained in Hong Kong with the authority of the Director of Immigration after landing illegally during the period between 1 July 1990 and 30 June 1997. The Chief Executive's Office explained that the amendment was designed to give a clear message to potential illegal immigrants that the SAR Government would take a tough stance in repatriating any illegal immigrants.
4. For non-Chinese nationals who have ordinarily resided in Hong Kong for a continuous period of not less than seven years and have taken Hong Kong as their place of permanent residence before or after the establishment of the SAR, under paragraph 3(1)(a) of Schedule 1, they will need to furnish information to satisfy the Director of Immigration that they have taken Hong Kong as their home or habitual residence. Members of the Bills Committee recommended change to the wording of two pieces of imformation required. These relate to reference of public funds and tax liabilities. The Chief Executive's Office has agreed to move a Committee stage amendment in this regard.
5. The other suggestion which the Chief Executive's Office has agreed to amend at the Committee stage relates to paragraph 2(a) of Schedule 1. The Committee stage amendment will effect that Chinese citizens born in Hong Kong to permanent residents even if they were not settled in Hong Kong at the time of their birth will still be qualified for the right of abode at birth.
6. The rest of the Committee stage amendments are technical in nature.
Madam President, the Committee unanimously recommend support of the Bill with the Committee stage amendments to be moved by the Chief Executive's Office to the Council.
PRESIDENT (in Cantonese): The second address is by the Secretary for Justice on the paper Introduction to Hong Kong Reunification Bill 1997 that she presents to this Council. Secretary for Justice.
SECRETARY FOR JUSTICE (in Cantonese): Madam President and Honourable Members, the People's Republic of China will resume the exercise of sovereignty over Hong Kong on 1 July 1997 and mark the end of the British colonial rule in Hong Kong. We have informally consulted the Provisional Legislative Council and a majority of Members have also agreed in principle to the promulgation of an ordinance entitled Hong Kong Reunification Ordinance to complete the legislative process and to give an account to the public of the laws passed by the PLC prior to 1 July 1997. In addition, by means of the Ordinance, we can give effect to the decision of the Standing Committee of the National People's Congress (NPC) concerning the adaptation of the existing laws in Hong Kong as well as to set the various transition-related matters in order.
Laws passed prior to 1 July 1997
On 1 February 1997, the Preparatory Committee of the Hong Kong Special Administrative Region made a decision regarding the commencement of work by the Chief Executive and the Provisional Legislative Council prior to 30 June 1997. Paragraph 2 of the Decision reads:
"The Provisional Legislative Council of the Hong Kong Special Administrative Region shall in accordance with the requirements of the legislative process of the legislative body of the Region and of 'The Decision for the Establishment of the Provisional Legislative Council of the Hong Kong Special Administrative Region made by the Preparatory Committee of the Hong Kong Special Administrative Region of the National People's Congress', formulate rules of procedure and voting procedure, examine and pass laws and so on. Upon the establishment of the Hong Kong Special Administrative Region, the laws that have been passed shall be ratified, reported to the Chief Executive for his signature, proclaimed for implementation so as to complete the legislative procedure."
It is necessary for the purpose of completing the legislative procedure that the laws passed by the Provisional Legislative Council prior to 1 July 1997 should be ratified. There is no doubt about the validity of the laws passed prior to 1 July 1997. However, to make assurance doubly sure, the confirmation of the laws on 1 July 1997 would remove any doubt as to the validity of the laws passed prior to such date (because the passing of the Bill itself is a complete law-making process). Finally, since the Chief Executive's Office does not have the facilities to publish the bills in the Government Gazette and the Provisional Legislative Council holds its meetings outside Hong Kong, it would be beneficial to the public to be given an account of all the laws passed by the Provisional Legislative Council prior to 1 July 1997. This issue is covered by Part II of the Bill.
Appointment of Chief Justice and other judges
Article 90 of the Basic Law provides that the appointment of the Chief Justice and Judges of the Court of Final Appeal, and the Chief Judge of the High Court must be endorsed by the Legislative Council although it does not say when and how the endorsement should be made. It is therefore suggested that the endorsement be made in the Bill which will be passed immediately after the swearing in ceremony for the sake of compliance with Article 90. The Provisional Legislative Council has expressed its support for the recommendation on the appointments concerned on 24 May and 14 June 1997 respectively. This issue is covered by Part III of the Bill.
Adaptation of laws
On 23 February 1997, the NPC Standing Committee published a decision on the treatment of laws previously in force in Hong Kong and declared in accordance with Article 160 of the Basic Law that a total of 24 Hong Kong ordinances in full or in part should not be adopted as laws of the SAR and set out a number of interpretation principles for applying other existing Hong Kong ordinances as laws of the SAR. Article 160 of the Basic Law does not give the NPC Standing Committee a legislative role in respect of the SAR. Therefore, it is proposed to effect the changes in the law, as an interim measure, by amending the Interpretation and General Clauses Ordinance (Cap. 1) so as to give effect to the NPC Standing Committee principles. This issue is covered by Part IV of the Bill.
Establishment of courts and maintenance of administration of justice
By the Hong Kong Act 1985, as from 1 July 1997, Britain shall no longer have sovereignty or jurisdiction over any part of Hong Kong, the Hong Kong Government, the Governor and the current courts (amongst other things) will cease to exist. It is therefore necessary to make it clear beyond doubt that the working of the government and the courts will continue despite the change of sovereignty. Without prejudice to the general principle:
(1) any judgement, order, decree, decision, record or act of any court, statutory tribunal or statutory boards delivered or made before 1 July 1997 shall continue to have effect;
(2) all proceedings that are pending before any court, statutory tribunal or statutory board established in Hong Kong may be continued before the corresponding court, statutory tribunal or statutory board established in the SAR;
(3) where any official of the Hong Kong Government is named as a party to any proceedings, that party shall be deemed to be the corresponding official of the SAR Government;
(4) where, immediately before 1 July 1997 the Crown, the Queen or any official of the Hong Kong Government had a right to bring proceedings before or to appeal to a particular court and so on, the SAR Government or the corresponding official of the SAR Government shall be regarded as having, or have exercised that right in respect of the corresponding court and so on of the SAR Government;
(5) conversely any person who had such a right against the Crown and so on shall continue to have that right as against the SAR Government;
(6) any instrument (including a warrant or summons) issued before 1 July 1997 that imposes rights or obligations on any person, and that was issued in the name or on behalf of the Crown and so on shall be treated as if it had been issued by the SAR Government or the corresponding official of the SAR Government;
(7) those persons with right of audience before any court and so on immediately before 1 July 1997 shall enjoy right of audience before the corresponding court and so on of the SAR Government;
(8) every person admitted as a solicitor or barrister of the Supreme Court shall be deemed to have been admitted as a solicitor or barrister of the High Court of the SAR. If the Legal Practitioners (Amendment) Bill 1996 before the Legislative Council Hong Kong, which deals with notary public, is not passed, the same also applies to every notary public.
The first paragraph of Article 81 of the Basic Law provides that:
"The Court of Final Appeal, the High Court, district courts, magistrates' courts and other special courts shall be established in the Hong Kong Special Administrative Region. The High Court shall comprise the Court of Appeal and the Court of First Instance."
There should therefore be legislation expressly establishing those courts as well as statutory tribunals and boards which are quasi-judicial in nature in accordance with the Basic Law. The legislation should also provide that the law previously applicable to such courts, statutory tribunals and boards shall be maintained in respect of them. This issue is covered by Part V of the Bill.
Although Article 81 of the Basic Law provides for the maintenance of the present judicial system, there is no express provision for the transfer of legal proceedings from the present courts to SAR courts. There should therefore be provision in the legislation for the continuance of legal proceedings commenced before 1 July 1997 and for other aspects of the administration of justice to prevent the system from being prejudiced by the transfer of sovereignty. This issue is covered by Part VI of the Bill.
Continuity of public service
Article 100 of the Basic Law provides that public servants serving in all Hong Kong Government departments before the establishment of the SAR may all remain in employment. However, the public offices that will exist on and after 1 July 1997 will be legally different from those that existed before that date not only because of the change of title but also there is some doubt as to whether acts done by, or in respect of, an office-holder before 1 July 1997 will be valid after that date. Furthermore, the legislation should also deal with the prerogative powers of such public office insofar as they are not inconsistent with the Basic Law and the delegation of such powers which derive from the Letters Patent. Some of such delegations are:
(1) delegations by the Governor of his statutory powers and duties under section 63 of Cap. 1 of the Laws of Hong Kong;
(2) delegation by the Governor of his power under the Letters Patent to make grants and dispositions of land; and
(3) delegations by the Attorney General of many statutory powers, particularly in relation to prosecution and sub-delegations of those powers.
It is therefore desirable for the Bill to provide for continuity in the public service by means of a general provision for continuity and specific provisions dealing with the areas identified above. This issue is covered by Part VII of the Bill.
Although arrangements for transferring some assets of the Hong Kong Government including the Exchange Fund to the SAR Government have been made, it is desirable to provide in domestic legislation that all assets and liabilities of the Hong Kong Government, including tax and other debts due to the Government, are transferred to the SAR Government to make such enforceable by the SAR Government. This issue is covered by Part IX of the Bill.
Budget
The Appropriation Bill has been agreed upon between the Chinese side and the British side of the Joint Liaison Group and passed by the Legislative Council. The Appropriation Bill has already been considered by the Provisional Legislative Council on 7 June 1997 and will therefore be confirmed in the Hong Kong Reunification Bill. This issue is covered by Part IV clause 6(2) of the Bill.
National laws
By Article 18 of the Basic Law, the laws listed in Annex III to the Basic Law shall be applied locally by way of promulgation or legislation by the SAR. However, in order to obviate the trouble of amending from time to time the Hong Kong Reunification Ordinance brought about by any addition to or deletion from the list, it has been decided that the application should be made by proclamation by notices in the gazette. The national laws concerned are therefore not listed in the Bill.
Legislative timetable
The draft Bill will be submitted to the Provisional Legislative Council by way of consultation document and will be presented to the Provisional Legislative Council at this meeting. The Chief Executive's Office will collect views regarding any amendments to the Bill for inclusion in the blue bill to be gazetted later and presented to the Provisional Legislative Council on 1 July 1997. The three readings could then be done on the same day to ensure the smooth passage of the Bill in the small hours of 1 July 1997.
Financial and staffing implications
The Bill bears no financial nor staffing implications on the Administration.
Honourable Members are most welcome to comment on the draft Bill for our reference and consideration before the Bill is submitted officially. Thank you, Madam President.
BILLS
Resumption of Second Reading Debate on Bills
PRESIDENT (in Cantonese): Second Reading of Bills. Council will now resume the Second Reading debate on four bills. The first one is the Hong Kong Court of Final Appeal (Amendment) Bill 1997.
HONG KONG COURT OF FINAL APPEAL (AMENDMENT) BILL 1997
Resumption of debate on Second Reading which was moved on 7 June 1997
PRESIDENT (in Cantonese): Does any Member wish to speak? Mr Henry WU.
MR HENRY WU (in Cantonese): Madam President, in accordance with the provisions of the Basic Law, the Hong Kong Special Administrative Region (SAR) shall, upon its establishment, set up its Court of Final Appeal and enjoy independent power of final adjudication, thereby indicating the genuine independence of the SAR's judicial system.
To prepare for the establishment of the SAR and to make transitional arrangements for the appointment of judges and other members of the Judiciary, the Chief Executive's Office has proposed Bills to amend the Hong Kong Court of Final Appeal Ordinance and the Judicial Service Commission Ordinance respectively. This is very much welcomed by the Hong Kong Progressive Alliance.
The Judicial Officers Recommendation Commission (Designate) has unanimously recommended that Mr Justice Andrew LI Kwok-nang be appointed as Chief Justice of the Court of Final Appeal of the Hong Kong Special Administrative Region; Mr Justice Henry Denis LITTON, Mr Justice Charles CHING and Mr Justice Kemal BOKHARY as Permanent Judges of the Court of Final Appeal with effect from 1 July; as well as Mr Justice Patrick CHAN as Chief Judge of the High Court. With these recommended appointments and the passing of the above two amendment Bills today, we believe, the smooth transition of the Judiciary and legal system of the SAR could be guaranteed and a sound foundation would also be laid for the rule of law in the SAR.
With these remarks, I support the amendment Bill proposed by the Chief Executive's Office.
PRESIDENT (in Cantonese): Does any other Member wish to speak? Mr NG Leung-sing.
MR NG LEUNG-SING (in Cantonese): Madam Presdient, in my opinion, to set up our own Court of Final Appeal is an unprecedented event in history. For the one hundred-odd years under British colonial rule, the Court of Final Appeal of Hong Kong has been in London, Britain. Neither were its judges people from Hong Kong nor had they have enough knowledge about Hong Kong. The Chinese Central Government would not follow in the footsteps of the colonial government and set up a Court of Final Appeal for Hong Kong in Beijing after 1997. On the contrary, it allows Hong Kong to have its own Court of Final Appeal, and this arrangement has been stipulated in black and white in the Basic Law. This fully reflects the determination and sincerity on the part of the Central Government in implementing in Hong Kong the principles of "one country, two systems" and "Hong Kong people ruling Hong Kong". This is also the most practical action taken to let the people of Hong Kong enjoy a high degree of autonomy after 1997. It is my conviction that this action will be supported and welcomed by most Hong Kong people.
It is also my belief that with the setting up of the Court of Final Appeal, the continuous development of the highly open and internationalized economy in Hong Kong would be better protected. The 800-odd regional headquarters and 1500-odd regional offices set up by multi-national enterprises in Hong Kong, as well as the some $600 billion capital they invest here, will soon be benefiting from our sound legal system, free and fair competition environment, prestigious infrastructure, and our highly efficient administrative structure as well. The Bill regarding the establishment of the Court of Final Appeal to be passed today not only marks the realization of an independent legal system in Hong Kong after 1997, but also goes a long way towards maintaining the confidence of both local and international investors in Hong Kong.
With these remarks, I support the passing of the Hong Kong Court of Final Appeal (Amendment) Bill 1997. I also urge that all sectors in the community lend their full support to the establishment of the Court of Final Appeal and its operation after 1997.
PRESIDENT (in Cantonese): Does any other Member wish to speak?
(No Member responded)
PRESIDENT (in Cantonese): If not, Secretary for Justice, do you wish to reply?
SECRETARY FOR JUSTICE (in Cantonese): Thank you, Madam President. When I moved the Second Reading of the Hong Kong Court of Final Appeal (Amendment) Bill 1997 on the 7th of this month, I pointed out that the purpose of the Bill is to reflect in the local law the provisions contained in Article 90 of the Basic Law.
Although the Provisional Legislative Council did not allocate the Bill to a Bills Committee for consideration, the Legal Advisers responsible for the work of the Bills Committees of the Provisional Legislative Council still worked very hard to scrutinize the Bill and provided the Chief Executive's Office with a lot of valuable advice. I wish to take this opportunity to express my gratitude to them. Their professionalism and dedication are highly appreciated. I must also thank the two Honourable Members who spoke in support of the Bill just now.
With these remarks, Madam President, I propose that this Council agree to the question on the Second Reading of the Hong Kong Court of Final Appeal (Amendment) Bill.
PRESIDENT (in Cantonese): I now put the question to you and that is: That the hong kong court of final appeal (amendment) bill 1997 be read the Second time. Will those in favour please say "aye"?
(Members responded)
PRESIDENT (in Cantonese): Those against please say "no".
(Members responded)
PRESIDENT (in Cantonese): I think the "ayes" have it. I declare that the question on the Second Reading of the Bill is agreed to.
CLERK (in Cantonese): Hong Kong Court of Final Appeal (Amendment) Bill 1997
JUDICIAL SERVICE COMMISSION (AMENDMENT) BILL 1997
Resumption of debate on Second Reading which was moved on 7 June 1997
PRESIDENT (in Cantonese): judicial service commission (amendment) bill 1997. Does any Member wish to speak?
(No Member responded)
PRESIDENT (in Cantonese): I now put the question to you and that is: That the judicial service commission (amendment) bill 1997 be read the Second time. Will those in favour please say "aye"?
(Members responded)
PRESIDENT (in Cantonese): Those against please say "no".
(Members responded)
PRESIDENT (in Cantonese): I think the "ayes" have it. I declare that the question on the Second Reading of the Bill is agreed to.
CLERK (in Cantonese): Judicial Service Commission (Amendment) Bill 1997
IMMIGRATION (AMENDMENT) (NO. 3) BILL 1997
Resumption of debate on Second Reading which was moved on 7 June 1997
PRESIDENT (in Cantonese): Immigration (Amendment) (No. 3) Bill 1997. Does any Member wish to speak? Mr Paul CHENG.
MR PAUL CHENG (in Cantonese): Madam President, when I presented the report of the Bills Committee earlier on, I mentioned a number of points which warrant concern. Now I would like to point out that the Immigration (Amendment) (No. 3) Bill 1997 will have a bearing on the confidence of all those who stay in Hong Kong to serve and to contribute to the community. Hong Kong is an international financial and commercial centre the development of which needs the continuous contribution by the people of Hong Kong. Yet we must not overlook the non-Chinese nationals working in Hong Kong or those Hong Kong people who have emigrated to foreign countries but decided to return to work in Hong Kong. I hope Honourable Members could take into consideration the unique situation of Hong Kong and the complexity involved in the interpretation of the Chinese Nationality Law as it applies to Hong Kong, and then enrich the spirit of the Bill with the greatest degree of latitude and accommodation so as to dispel the worries of most of the people working and living in Hong Kong.
Madam President, I so submit.
PRESIDENT (in Cantonese): Miss Maria TAM.
MISS MARIA TAM (in Cantonese): Madam President, I took part in the drafting of the Basic Law in 1985. At that time, a former schoolmate of mine in my secondary school days asked me whether he should emigrate to a foreign country at the request of his family members. Not only lending him my support, I even wrote a letter of guarantee for him. Duing that period of time, I told some of my friends who were emigrating: "Just go, but I am sure you will return." Not only have they returned, some of them are even working in China. At present, what they care most is how to acquire the right of abode in Hong Kong.
After the Preliminary Working Committee (PWC) was set up in 1993, I explained the position of Hong Kong to the committee members from mainland China. I said: "The people of Hong Kong are a group of city nomads who gather at where there is water. A foreign passport is our horse. Without a horse, we cannot pursue the life of city nomads. The way of life of minority nationalies in Inner Mongolia and Xinjiang are being taken special care of, likewise, that of the people of Hong Kong should be particularly taken care of as well."
When the alternative interpretation of the Chinese Nationality Law was announced in March last year, the South China Morning Post in Hong Kong, which has been criticizing China fairly strongly, indicated that what China was doing was to "Bend Over Backwards", meaning it was trying to cater for the people of Hong Kong as far as possible. From this, we can see China's sincerity.
The Hong Kong Progressive Alliance (HKPA) trusts that problems can be solved by communicating with China.
To make China understand the needs of the people of Hong Kong, it is not necessary to stage rallies or go overseas to criticize Hong Kong and China. On the contrary, one has to be patient in conducting analyses. If certain measures taken by China have negative effects on Hong Kong, China can be convinced to be flexible in dealing with Hong Kong matters. Madam President, you and other members of the PWC have been analysing time and again to the Preparatory Committee the position of Hong Kong, and there has been reflection of the opinions of returneees by the Hong Kong community and public opinion. What returnees are getting, without any demonstrations or sit-ins, is the right to choose to be Chinese citizens or persons with foreign nationalities. Either of the two categories can obtain the right of abode in Hong Kong.
Not only that, as a result of the negotiation between the Sino-British Joint Liaison Group (JLG), China grants Hong Kong the greatest flexibility by allowing it to impose certain conditions on the six categories of permanent residents specified in Aricle 24 of the Basic Law. Thus helping Hong Kong to remove certain important loopholes in immigration matters.
Firstly, under clause 2(2)(d) of the Bill, time spent in Hong Kong for work as an imported labour or employee, as a consular official, a member of the Hong Kong Garrison, or as an illegal immigrant cannot be counted towards the seven years required for the acquisition of the right of abode.
Secondly, paragraph 2(a) in proposed Schedule 1 of the Bill is amended to read: "A Chinese citizen born in Hong Kong before or after the establishment of the Hong Kong Special Administrative Region if his father or mother was settled in Hong Kong or had the right of abode in Hong Kong at the time of the birth of the person or at any later time." This is included to deter women who have entered Hong Kong illegally or legally but do not meet the requirements for right of abode from coming here to give birth to children with a view to letting their children to obtain the right of abode. This is a move welcomed by the people of Hong Kong.
Thirdly, about "A person of Chinese nationality born outside Hong Kong to a parent who is a permanent resident of Hong Kong if the parent has the right of abode". This has to be read together with Article 5 of the Chinese Nationality Law. If the parents of a child are settled in a foreign country at the time of the child's birth, the child will not have Chinese nationality and will not have the right of abode in Hong Kong unless he enters Hong Kong with a valid travel document and resides in Hong Kong for a continuous period of seven years and takes Hong Kong as his place of permanent residence. I hope those people who have emigrated to overseas countires can take note of this.
Fourthly, ethnic Indian, Pakistani or Jew who have for generations settled in Hong Kong could establish their permanent residence under paragraph 2(d) on "A person not of Chinese nationality who has entered Hong Kong with a valid travel document" as a new provision stating that "if a person was born in Hong Kong and was permitted to remain in Hong Kong by an immigration officer or an immigration assistant, he is taken to have entered Hong Kong on a valid travel document" has been added to the proposed paragraph. Persons not of Chinese nationality but with Indian, Pakistani or Jewish ethnicity who have for generations settled in Hong Kong may now have their right of abode in the territory protected pursuant to the additional clause.
Fifthly, in the interpretation section, "child" may include legitimate or illegitimate child if the relationship is a mother-and-child relationship. If it is a father-and-child relationship, only a legitimate child is entitled to the right. This is in line with the treatment in accordance with the Adoption Ordinance (Cap. 290) in Hong Kong and the British Nationality Law as applied to Hong Kong. This can also plug the loophole through which permanent residents in Hong Kong give birth to illegitimate children by setting up families outside Hong Kong thereby enabling such children to settle in Hong Kong.
Finally, the Bill, in the interpretation section, amends section 2(4)(a)(i) of the original Ordinance to "the Director of Immigration still retains the discretionary power to grant approval to remain in Hong Kong to any person who has entered Hong Kong illegally in 1997 but has no power to grant the right of abode". This is a necessary step to curb the influx of illegal immigrants into Hong Kong. However, the Director of Immigration can still allow people who have entered Hong Kong illegally before 1 July 1997 to remain in Hong Kong after considering the merits of each individual case. This is also a step that meets humanitarian needs.
The six points I cited are all different from what is contained in Aricle 24 of the Basic Law. To maintain the stability of Hong Kong, China has allowed for the Article a highly flexible interpretation which is tailor-made to cater to the interests of the people of Hong Kong.
Indeed, the definition of Chinese citizen should have been dealt with solely under Chinese jurisdiction. To make arrangements for passports of the Hong Kong Special Administrative Region (SAR) to be issued to the people of Hong Kong, China knew very soon after the drafting of the Basic Law that specific issues had to be negotiated in the JLG and then dealt with by legislation in the SAR. Now, this Council is undertaking this historical task. At the moment, the Immigration Department has begun to accept applications for SAR passports. The HKPA is glad to see that the matter which entails a negotiation for more than 10 years and is the concern of everyone is settled today with the number of people affected kept to a minimum and the interests of most people properly protected.
I so submit.
PRESIDENT (in Cantonese): Mrs Peggy LAM.
MRS PEGGY LAM (in Cantonese): Madam President, I am a member of the Bills Committee on the Immigration (Amendment) (No. 3) Bill 1997. I think the Bill submitted by the Chief Executive's Office of the SAR at the beginning of this month merits our support. The purpose of the Bill is to lay down specific measures to implement the Chinese Nationality Law in Hong Kong in accordance with the provisions of the Basic Law, and to resolve the various problems relating to the right of abode that confront Hong Kong, namely the arrangements for returnees, persons not of Chinese nationality, new immigrants from China and so on. Most of the problems are properly dealt with in the Bill.
A number of proposals in the Bill are most helpful to the long-term development of Hong Kong. To begin with, it confirms that Hong Kong people who have emigrated overseas can still enjoy the right of abode in Hong Kong after 1 July 1997. They do not need to swarm back to Hong Kong before that date. They will not be deprived of the right of abode they had before the establishment of the SAR unless they make a declaration of their foreign nationalities and give up their Chinese citizenship on their own initiative at any later time. This arrangement caters well for the unique situation of Hong Kong, and is therefore helpful in both attracting competent persons to return as well as in maintaining the competitive edge of Hong Kong in the international market.
Another proposal in the Bill helpful to Hong Kong is the assurance that present Hong Kong permanent residents not of Chinese nationality can continue to enjoy the right of abode after 1 July 1997. A large majority of them do not need to go through any procedure to retain the right of abode if they had settled in Hong Kong before 1 July 1997 or return to settle in Hong Kong within 18 months after 1 July 1997. The Bill also lay down clear arrangements for expatriates to acquire the right of abode in Hong Kong. I think the arrangements are fair and reasonable enough. They will not cause any inconvenience to the persons concerned but will help attract foreign expertise to come to contribute to the territory as well as to maintain the status of Hong Kong as a cosmopolitan city.
The Chief Executive's Office has made it clear that time spent in Hong Kong for work as an imported domestic helper, an imported worker, a consular official or as a member of the Hong Kong Garrison does not count towards "ordinary residence". I think this arrangement is appropriate and consistent with the real situation in Hong Kong, and will be readily accepted by the people of Hong Kong.
Some of the clauses of the Bill have given rise to relatively more disputes in the community. Among them is clause 2(2)(b) which revokes the discretionary power of the Director of Immigration (Director) to allow persons landing unlawfully to acquire the right of abode.
I think that the proposal will help to maintain orderly entry into Hong Kong after 1 July 1997 and prevent a possible influx of illegal immigrants. Some unrealistic imagination about Hong Kong after the resumption of sovereignty by China might still be prevalent among the population of some poor and remote areas in China. They might believe that illegal entry will be treated with leniency. The community as a whole should not make light of this situation.
Some people have associated this proposal with the issue of human rights. I do not think this is necessary. Firstly, the Bill states clearly that illegal immigrants who were permitted to remain in Hong Kong by the Director on compassionate grounds before 1 July 1997 are not affected. As regards persons who remain in Hong Kong for less than seven years after landing unlawfully, the Director may still exercise his discretion to decide whether they be granted the right of abode when their period of residence reaches seven years. It is very obvious that the proposal will not affect the so-called "democratic movement advocates". The Director still has the discretion over their application for residence.
I wish to reiterate one point. I support the revocation of the Director's discretionary power under the Bill simply because Hong Kong will otherwise have to face the potential danger of an influx of illegal immigrants, not because I do not think the Director should be granted that power. In the long run, it would be to the benefit of the administration of the SAR Government if the Chief Executive or the Director of Immigration is vested with this discretionary power.
Another point that causes concern is the provision contained in paragraph 2(a) of Schedule 1 relating to the requirement for the status of a permanent resident in the SAR. Some people worry that the provision may affect the right of abode of children born in Hong Kong to new immigrants. Under this clause, to qualify as a permanent resident, one has to be a Chinese citizen born in Hong Kong before or after the establishment of the SAR if his father or mother has settled in Hong Kong at the time of the birth of the person or at any time. For the new immigrants, the first seven years of their residence in Hong Kong are subject to the conditions of stay and are therefore not regarded as having "settled in Hong Kong". As such, children born to them during that period of time cannot obtain the status of permanent residents at birth.
I understand that the proposals indeed mean to cater for the long-term interests of Hong Kong as a whole, though some people have expressed doubts about the clause. However, I believe their doubts can be removed and the proposals will receive popular support if the Chief Executive's Office can explain the matter clearly and in detail.
Madam President, to conclude, I urge the Chief Executive's Office to complete as soon as possible the legislation regarding the arrangements for the children and spouses of Hong Kong people to come to Hong Kong. I understand that this is a very complicated issue that should not be handled hastily. Yet being separated from one's family members is not only an unfortunate plight for the individuals concerned but also a source for various social problems. The Chief Executive's Office must address this issue squarely.
With these remarks, Madam President, I support the Bill. Thank you.
PRESIDENT (in Cantonese): Mr Howard YOUNG.
MR HOWARD YOUNG (in Cantonese): I represented the Liberal Party in participating in the work of the Bills Committee on the Immigration (Amendment) (No. 3) Bill 1997 and was elected Vice-Chairman of the Committee. The Bill encompasses a very wide scope. The Liberal Party gives its full support to the timely passage of the Bill before 1 July 1997 because there is a need to send on 1 July 1997 a clear message to those numerous persons who have emigrated oversaes or expatriates who have resided in Hong Kong for a number of years as to how their right of abode will be dealt with and whether they will run the risk of losing that right. As such, we support the passage of the Bill today and the expeditious confirmation of the same on 1 July 1997.
One of the areas covered by the Bill relates to the numerous Hong Kong people who have emigrated overseas over the years. When Article 24 of the Basic Law was drafted, quite a large number of people in Hong Kong were still emigrating overseas but the recent fad of returning had yet to emerge. As such, the reality today is that a growing interest to focus one's attention on how to return to Hong Kong without losing any rights rather than on how to emigrate is prevalent among the public. This phenomenon has appeared both in Hong Kong and overseas. As a result, the Preparatory Committee of the SAR has made proposals in the light of the new situation and the problem is resolved through the "Interpretation of Chinese Nationality Law when applying in the Hong Kong Special Administrative Region" passed by the Standing Committee of the National People's Congress (NPC). Artcle 9 of the Chinese Nationality Law clearly states that Chinese citizens who lawfully emigrate to foreign countries and obtain foreign nationalities will automatically lose their Chinese nationality. As a Chinese citizen living in Hong Kong, if a person loses his Chinese nationality, he will easily run the risk of losing the right of abode. The "Interpretation of Chinese Nationality Law when applying to the Hong Kong Special Administrative Region", which is meant to cater for the needs of the people of Hong Kong and fits the practical situation they are in, is a very wise decision made by the NPC. The people concerned do not need to bother about hurrying back to Hong Kong before 1 July 1997. Being a member of the tourism industry, I do hope more people will be coming back as this will greatly benefit the hotel industry and the airlines. However, we must not forget the several tens of thousands or even more than 100 000 expatriates who have been living in Hong Kong for a number of years. Some of them have resided in the territory for a continuous period of seven years, thereby meeting fully the requirement set out under Article 24(4) of the Basic Law, the one which provides for the qualification to become permanent residents of the SAR. These expatriates have spent their whole lives making contributions to Hong Kong. They may feel very remote from the countries where they or their fathers were born. They should be welcome to become permanent residents of Hong Kong. However, for most of them, such a reasonable request have for years been a forlorn hope under the laws of the colonial government. In the past, it is easier for bona fide British citizens to become Hong Kong permanent residents with a foreign nationality but not vice versa. Madam President, I think it is necessary to send a clear message to these people on 1 July 1997. The Provisional Legislative Council should also have the unequivocal legal grounds on which these expatriates can be enabled to acquire on that same day the status of permanent residents. The relevant provisions of the Bill are written to achieve this end. The Liberal Party gives its full support to this.
Madam President, there is one point which was not mentioned by the Members who spoke just now but which I think should be taken note of. In the course of the work of the Committee, I received some comments among which are those made by the indigenous villagers who would like their descendants or even children born overseas to continue to enjoy the right of abode in the SAR. The legitimate interests of residents in the New Territorities have always been the concern of the Liberal Party as they are the local villagers who have been living in the territory for generations. We have given careful consideration to the possible means to meet this reasonable demand of theirs. Certainly, the means to meet that demand must be both legal and sensible. With regard to legal provisions, in addition to Article 9 of the Chinese Nationality Law, there is another provision stating that children born overseas to Chinese citizens will not have Chinese nationality as they are already of foreign nationalities at birth. According to the NPC, the Chinese Nationality Law is applicable to Hong Kong, but how can we enable the children of indigenous villagers to have Chinese nationality forever? This may be difficult from legal aspects. We have sought advice from the Chief Executive's Office. Their opinion was that since those who have emigrated overseas are mainly first generations of indigenous villagers in Britain, there should not be any problem for them to maintain their status of permanent residents even if the present Bill is passed. Neither is there any problem for their next two generations. Problems, however, will exist when it comes to their third generations.
Madam President, the Liberal Party thinks that when catering for the legitimate interests of indigenous villagers, we should not handle those who have emigrated to Britain in one way and those who have emigrated to other countries in another. As far as I know, although a vast majority of indigenous villagers have emigrated to Britain, there are some who have emigrated to other places such as the United States and Canada. If we conduct a study to find out why there may be problems now in enabling descendants of indigenous villagers to continue to enjoy the right of abode in Hong Kong "for generations", as they described it, we will notice that in fact the problem is not a question of nationality, but a question of the existing Immigration Ordinance which formally gives holders of British Passports the privilege of entering Hong Kong unconditionally and thereby obtaining the right of abode at ease. A relevant bill will be debated in the Legislative Council in Hong Kong next week and if passed, it will repeal that particular privilege. What can we do then? I have here a suggestion. This has not been made in the Bills Committee because its ambit is to scrutinize the Bill, not the Chinese Nationality Law. In my opinion, their request is fair and reasonable, though it has yet to be solved on legal aspects. I hope the SAR Government will consider my following suggestion. Since the NPC states that the Chinese Nationality Law is applicable to Hong Kong, the authority to handle the application for change in nationality will in future be the Immigration Department of Hong Kong. I note that there is a rarely invoked provision in the Chinese Nationality Law, which deals with the acquisition of Chinese nationality by foreigners, but there has not been any explanation on the qualifying requirement or application procedures that need to be followed. In the past, it was rare to see foreigners acquiring Chinese nationality. Except for the cases of the several well-known foreigners who joined the Red Army to resist Japanese invasion and were given special approval to acquire Chinese nationality, there was no legal procedure for that at the time.
Madam President, could I suggest the Immigration Department of the future SAR Government, as the authority for handling application for change in nationality, consider proposing clear conditions and legal procedures to be followed in connection with the acquisition of Chinese nationality, so that when the third, fouth or even fifth generations of indigenous villagers who may have emigrated to Britain or other countries want to return to settle in Hong Kong in future, although they are not Chinese by law, can still acquire Chinese nationality and readily become permanent residents of Hong Kong on the ground that their parents are indigenous villagers; or when evidence establishing their parents as Hong Kong residents are produced as reference for the acquisition for those whose parents are not indigenous villagers? I hope the future SAR Government will take this suggestion into consideration.
Madam President, we support the Bill and would like to see it passed without delay.
PRESIDENT (in Cantonese): Dr Raymond HO.
DR RAYMOND HO (in Cantonese): Madam President, to implement the provisions of Article 24 of the Basic Law relating to the right of abode and permanent residence in the SAR, it is a necessary and urgent step to make the relevant amendments to the Immigration Ordinance. Over the past few years, there has been great concern about the status of SAR residents, in particular, the right of abode for people not of Chinese nationality and returnees living or working in Hong Kong. In addition to wide coverage by the media, both the Hong Kong Government and foreign governments have tried to publish and issue guidelines for reference to those who may be affected. As the relevant law has not been finalized, the community have been speculating about the definition of SAR residents and the implementation of the relevant laws. The passage of the Immigration (Amendment) (No. 3) Bill 1997 will help allay worries about the position concerning the right of abode on the one hand, and effectively implement in Hong Kong the provisions contained in Article 24 of the Basic Law starting from 1 July 1997 on the other. These are all indispensible measures.
In addition to specifying in detail the various categories of permanent residents with the right of abode in the SAR, the Bill also provides for the circumstances in which the right of abode may be lost and the right to land in Hong Kong for those affected. In addition, it has set out transitional arrangements for those who are not of Chinese nationality but are permanent residents in Hong Kong before 1 July 1997. Despite the limitations in time and human resources in its drafting process, the Bill can still fully cover several relatively important and complex issues on immigration matters.
The Bill's proposed provision that children born in Hong Kong to new immigrants who have not resided in Hong Kong for a continuous period of seven years may not acquire the status of permanent residents in Hong Kong is not included in Article 24 of the Basic Law. That particular article only states that Chinese citizens born in Hong Kong shall acquire the status of permanent residents. Since the Basic Law has clearly laid down the entitlement to the status of a permanent resident enjoyed by people of this category, we should not amend the Basic Law for administrative considerations. Indeed, the above amendment should apply only to children born in Hong Kong to illegal immigrants or overstayers, or to those who stay in Hong Kong temporarily. The purpose of this amendment is to prevent people from the Mainland from coming to Hong Kong to give birth to children with a view to obtaining the status of permanent residents for these children. On the other hand, the Government should review the administrative measures of imposing limits of stay on one-way permit holders and consider whether children born to new immigrants should be permitted to qualify for the right of abode immediately at birth.
Another provision of the Bill stipulates that children under 21 years of age born to permanent residents with unclear or no nationality may have the right of abode if and only if they have no right of abode in any other place. Such children, on attaining the age of 21 years may apply for the status of permanent residents according to procedures applicable to persons not of Chinese nationality. As there is no provision in the Basic Law as to which category of persons will lose the right of abode on attaining the age of 21, the abovementioned persons should not be required to re-apply for the status of permanent residents.
Madam President, the two points I mentioned above are the only areas that warrant careful re-consideration. I am satisfied with the rest of the Immigration (Amendment) (No. 3) Bill 1997 submitted by the Chief Executive's Office.
With these remarks, I support the Bill. Thank you.
PRESIDENT (in Cantonese): Mr WONG Siu-yee.
MR WONG SIU-YEE (in Cantonese): Madam President, in respect of the right of abode for Hong Kong residents, Article 24(3) of the Basic Law provides that persons of Chinese nationality born outside Hong Kong to Hong Kong permanent residents shall be permanent residents with the right of abode in Hong Kong. Hence, when the Bill is passed, the SAR Government will still have to face a lot of practical problems that are difficult to resolve.
With reference to Article 24(3) of the Basic Law, paragraph 2(c) of the proposed Schedule 1 provides that a person of Chinese nationality born outside Hong Kong to a parent who is a permanent resident of the SAR in category (a) or (b) if the parent has the right of abode at the time of birth of the person is entitled to the right of abode. In other words, those children born in China to the people of Hong Kong are born with the right of abode in Hong Kong and this right cannot be forfeited. Then, when the Basic Law comes into effect on 1 July 1997, what can Hong Kong do about those illegal immigrants who are born to Hong Kong residents with the right of abode? Some people say that since the identity of these so-called "minor" illegal immigrants cannot be ascertained, they should all be repatriated. This appears to be correct but is not so in fact. It is because in general children born in the Mainland to the people of Hong Kong have birth certificates issued by the hospitals and bearing the names of their parents. Besides, family members of these children can approach notary offices in the Mainland to apply for notarial certification with regard to their identity. As such, if these children entered Hong Kong illegally with birth certificates or notarial documents, I am afraid it would be difficult to repatriate them on the ground that their identity cannot be ascertained.
Some say Article 22 of the Basic Law provides: "For entry into the Hong Kong Special Administrative Region, people from other parts of China must apply for approval. Among them, the number of persons who enter the Region for the purpose of settlement shall be determined by the competent authorities of the Central People's Government after consulting the government of the Region." Therefore, children born in the Mainland to people of Hong Kong should be dealt with in accordance with this article. This is a specious argument. The persons referred to in the article should be those persons in the Mainland who are not entitled to the right of abode in Hong Kong. How should they ever be confused with children of Hong Kong residents who are born with the right of abode in Hong Kong?
So, although the Bill provides that children born in the Mainland to Hong Kong permanent residents have the right of abode, that right in reality cannot materialize. This is a great setback in terms of legal principle and law enforcement.
Madam President, it must also be noted that there is a growing popularity for Hong Kong men to get married in China and give birth to children. Most of such men may come from the lower income groups or are senior citizens (some could be the long-time unemployed persons living off Comprehensive Social Security Assistance (CSSA)) because it is more difficult to get married and raise a family in Hong Kong. Besides, as the welfare conditions in Hong Kong have been improving gradually, more members of the lower strata or retirees have turned to the Mainland for marriage and give birth to children. When their wives and children come to Hong Kong for reunion, Hong Kong will have to bear the responsibility of feeding such families. In the light of the above situation and the fact that it is difficult to materialize the right of abode for children born in the Mainland to the people of Hong Kong as provided by Article 24(3)of the Basic Law, I think we should consider amending that provision to the effect that children of Chinese nationality born in the Mainland to the people of Hong Kong should not be granted the right of abode immediately. Such right can only be obtained after these children have come to Hong Kong in accordance with the provision in Article 22 and resided for a term of seven years.
Madam President, amending the Basic Law is a very serious matter and must be done in the light of the practical situation Hong Kong. The present situation is that Article 24(3) of the Basic Law will not be materialized for a considerable period of time because Hong Kong will otherwise be confronted with an unresolvable problem. This is because even if a certain period is allowed for all children born in the Mainland to the people of Hong Kong to come to Hong Kong, the number of such children will be hard to estimate as Hong Kong men getting married in the Mainland has become a popular practice. Moreover, such allowance will have severe adverse effects on the quality of the Hong Kong population. It will also bring unyielding pressure in our population growth, as well as to services in respect of welfare, education, housing, transport and traffic. In order to save Hong Kong from the threat of a "disaster", Article 24(3) of the Basic Law should be amended as soon as possible once the SAR is established.
However, since Article 159 of the Basic Law provides that the power of amending the Basic Law shall be vested in the National People's Congress (NPC) and the earliest NPC meeting will not take place until March next year, should there be another influx of illegal immigrants during the interim period, the NPC meeting will be too late a remedy for the urgent need. Therefore, I suggest the SAR should seek co-operation from the law enforcement authorities in the Mainland and join hands to adopt some administrative measures to keep any adverse effects to the minimum.
I now make the following suggestions:
(1) A review should be conducted immediately and more resources should be allocated to help increasing gradually the quota so as to shorten the waiting time for the children concerned to come to Hong Kong;
(2) Law enforcement authorities (mainly those in the Guangdong Province) should step up actions along the border and within the community so as to eliminate the channels through which illegal immigrants can enter Hong Kong;
(3) The relevant authorities in the Mainland should step up promotions to warn the people of the risks in life and the high costs of entering Hong Kong by illegal means, and that even if they succeed in entering Hong Kong, they would find themselves in a situation where the quality of life is lower because Hong Kong cannot afford to support them;
(4) The relevant authorities in the Mainland should step up actions to promote the prospects of economic success as a result of the open-door policy; and
(5) The SAR Government should consider extending the plan enabling aged CSSA recipients to continue to receive CSSA payments after they have gone to settle in the Guangdong Province to cover also those with spouses or children in the Mainland to quench their desire to smuggle their children into Hong Kong.
With these remarks, Madam President, I support the Bill.
PRESIDENT (in Cantonese): Dr Charles YEUNG.
DR CHARLES YEUNG (in Cantonese): Madam President, this is undoubtedly an disappoinment that China and Britain have failed to reach a final agreement on the issue of the right of abode in Hong Kong. Since the issue must be resolved upon the establishment of the SAR Government and since the Hong Kong Legislative Council under British rule just cannot enact laws invoking the Chinese Nationality Law, the legislation relating to the right of abode in the SAR could only be drafted by the Chief Executive's Office and passed by the Provisional Legislative Council.
The Immigration (Amendment) (No. 3) Bill 1997 submitted by the Chief Executive's Office is in fact written with reference to most of the consensus reached by the Sino-British Joint Liaison Group on the relevant issues. Since its publication, the Bill has gained acceptance from across the Hong Kong community. Besides, the Bill is particularly lenient towards the returnees from abroad in catering for their needs.
Before the policy on the right of abode was finalized, a number of prospective returnees to Hong Kong were burdened with fear and anxiety and were thinking of how to land in Hong Kong before the SAR is established. Earlier, there were reports that demands for air tickets for journeys from Vancouver and Toronto in Canada to Hong Kong surged because those people who have emigrated from Hong Kong to Canada feared that they would lose their right of abode if they could not get the tickets to fly back to Hong Kong in time.
Now, the Bill has clarified the policy. Hong Kong people who have emigrated to overseas countries do not need to hurry back to Hong Kong before 1 July 1997 to retain their right of abode. Instead, they may return to settle in Hong Kong within 18 months from 1 July 1997 to achieve the same purpose.
People not of Chinese nationality but holding Hong Kong Permanent Identity Cards may still retain their status of permanent residents if they are not absent from Hong Kong for a continuous period of not less than three years after returning to settle in Hong Kong. This lenient requirement is rare in other countries.
For instance, in Canada, permanent residents who have not acquired citizenship must live in the country for more than six months in a year, failing which their permanent resident status will be forfeited; in the United States, permanent residents who have not acquired citizenship must return to the country at least once a year, otherwise their "green cards" might be forfeited. The lenient measures taken by the SAR Government with regard to the issue of the right of abode not only encourages competent persons to return to Hong Kong but also helps greatly in maintaining the image of Hong Kong as a free port.
People not of Chinese nationality have a grace period of 18 months commencing on 1 July 1997 during which they may return to settle in Hong Kong. This arrangement is a practical one for those Hong Kong people who have emigrated to overseas countries but are still undecided and holding a wait-and-see attitude. They have a year and a half to observe the operation of the SAR Government. They may decide whether or not to return after they have gained confidence in the implementation of "one country, two systems". The 18-month grace period is not only lenient but also practical.
With these remarks, I support the Bill.
PRESIDENT (in Cantonese): Mr IP Kwok-him.
MR IP KWOK-HIM (in Cantonese): Madam President, the Bill is introduced to amend the Ordinance as a response to the concern of the members of the public in relation to the right of abode after 1 July 1997. I believe everyone can still recall the great anxiety exhibited by the people of Hong Kong during the time when specific arrangement in respect of the right of abode has not yet been announced, in particular those who have emigrated overseas and those who have gone overseas for study or on business, for they feared that they might lose their status as permanent residents. The anxiety of the people of Hong Kong residing overseas can be seen from the huge demand for air tickets before the handover. Hence, legislation relating to the status of residents of the SAR has to be processed before 1 July 1997 to inform the public of the clear arrangements about the matter so that they will understand their position and make suitable arrangements for themselves. Between the time when specific proposals on the right of abode was published to the time when this Bill was submitted to the Provisional Legislative Council, it has been said that people of Chinese nationality who are residing overseas may under the relevant provisions regain their status of permanent residents if they return to settle in Hong Kong before the end of 1999. After this lenient arrangement has been announced, we can see the anxiety of the people of Hong Kong has disappeared. From the demand for in-bound air tickets and hotel bookings, we can see that what took place before has vanished. This proves that the present arrangements about the right of abode are in the interest of the people of Hong Kong and can cater for their needs.
Madam President, in fact both the Chinese and the British Governments have reached a consensus on most of the arrangements regarding the right of abode and the people of Hong Kong should have "the load off their minds". Regrettably, out of his prejudice against the Provisional Legislative Council, Governor Chris PATTEN purposely make things difficult for the Chief Executive's Office by not providing any assistance in the drafting of the highly complicated Bill. The Democratic Alliance for Betterment of Hong Kong (DAB) deeply regrets the act of the British Hong Kong Government which sacrifices the interests of the people of Hong Kong to achieve the political end of hurting the Provisional Legislative Council. For this reason, the people of Hong Kong have, at one time, worried about whether scrutiny of the Bill can be completed before 1 July 1997 and whether a prolonged legal vacuum will appear as a result. I am happy to note that despite the meagre resources and time available, the Chief Executive's Office was able to submit the Bill to this Council in time, with the resumption of the Second Reading debate followed by the Third Reading of the Bill taking place today. The DAB very much appreciates the hard work put in by the Chief Executive's Office in this respect. The DAB must reiterate that the right of abode in the SAR is a matter for the SAR. Nobody can make laws for the legislature of the SAR. It is "perfectly justifiable" for the Provisional Legislative Council to take up the work in enacting the relevant law.
Madam President, the DAB welcomes the lenient principle on which the provisions of the Bill deals with the issue of the right of abode. However, there are still some specific provisions that are not clear enough, one example being the status of children born to the people of Hong Kong who have emigrated overseas. Due to the special relationship between Hong Kong and Britain, children born in Britain to the people of Hong Kong who have settled there may obtain the status of permanent residents by descent. Now, for consistence with the Basic Law and the Chinese Nationality Law, the Bill has given the right of abode a new interpretation, thus causing such children not of Chinese nationality to lose their right of abode in Hong Kong. The DAB very much sympathizes with them. The Bill does not point out clearly the status of these persons after they have entered Hong Kong. The SAR Government should have made known to other countries as early as possible the new definition of the right of abode in the SAR, especially to those persons who are affected, so that they know what their status in Hong Kong will be in future.
The Bill makes it impossible for the period of time to include time during which an illegal immigrant remains in Hong Kong with the authority of the Director of Immigration to count towards "ordinary residence". This serves to discourage illegal immigrants from trying their luck and entering Hong Kong illegally with a hope to remaining here with the authority of the Director of Immigration. The DAB is therefore in support of the amendment. Moreover, the amendment does not affect the conditions governing the exercise of the discretionary power by the Director of Immigration. As such, the issue of remaining in Hong Kong on special grounds after landing in the territory illegally will not be affected.
The Bill adds to the definition of "has settled in Hong Kong" the requirement that one is not subject to any condition of stay in Hong Kong. This makes it impossible for some people who comes to live in Hong Kong, especially the children born in Hong Kong to those who enter with a one-way permit, to immediately acquire the status of permanent residents. This is inconsistent with Articles 24(1) and 24(2) of the Basic Law. Although the Chief Executive's Office has made amendments to the relevant provisions, the DAB is of the view that the Chief Executive's Office must relate to the public the rationale behind this provision to enable the public to have a deeper and clearer understanding of the policy.
Madam President, since the law relating to the right of abode is extremely complicated and involves issues of technicality and practical enforcement, when the Bill was under consideration by the Bills Committee, some colleagues and I have raised quite a number of points that had not been addressed clearly in the Bill. We can see that the principal Bill under scrutiny still has a number of inadequacies. I therefore hope that the Chief Executive's Office can submit to this Council the relevant subsidiary legislations for scrutiny so that we may have a complete set of laws. In addition, the Bill has not dealt with the urgent and highly debatable issue concerning children born in the Mainland to permanent residents of Hong Kong. The DAB hopes the special Task Force formed by the Hong Kong Government and the Chief Executive's Office can come up with a proposed solution as soon as possible to avoid any confusion caused after the establishment of the SAR.
With these remarks, Madam President, I support the Bill on behalf of the DAB.
PRESIDENT (in Cantonese): Mr Bruce LIU.
MR BRUCE LIU (in Cantonese): I speak on behalf of the Hong Kong Association for Democracy and People's Livelihood (HKADPL) on three points.
First of all, the HKADPL hopes that the Chief Executive's Office can further adopt a lenient principle towards the application of the Chinese Nationality Law to the SAR. During the scrutiny of the Bill, we all noted that the Immigration (Amendment) (No. 3) Bill 1997 has adopted a very lenient attitude towards the application of the Chinese Nationality Law to Hong Kong. Why is it possible for such leniency? It is because the NPC had passed on 15 May 1996 the interpretations on several problems concerning the application of the Chinese Nationality Law to the SAR. Without these interpretations, the arrangements of the Nationality Law of the People's Republic of China will be very strict and lack flexibility. As what Mr Howard YOUNG has just said, Article 9 of the Chinese Nationality Law is on the automatic forfeiture of nationality, that is, any Hong Kong Chinese who has settled overseas and acquired a foreign passport will lose his Chinese nationality automatically and it is impossible for him to receive such lenient treatment just as those provided to the returnees at present. Generally speaking, after the endorsement and implementation of this lenient and flexible arrangement, it is hoped that the Chief Executive's Office can perform two tasks:
(1) It is very important that while announcing the national laws to be applied in the SAR which appears in Annex III to the Basic Law, the interpretations and resolutions of the NPC should also be announced. They should be implemented at the same time, so as not to give people an impression that there is any time lapse;
(2) More lenient measures should be imposed on the children of the new immigrants, and the limitation of stay imposed on their parents as stated in the Bill should be relaxed as soon as possible. It is an administrative measure instead of an arrangement in the legislation. It is stipulated in the legislation that the meaning of residence in Hong Kong is one should ordinarily reside in Hong Kong and is not subject to any limitation of stay. If the limitation is further relaxed by way of an administrative measure, the children of the new immigrants will not have to wait for their father or mother to meet the seven-year residence requirement before they can obtain the right of abode in Hong Kong. If this is the case, they can be benefited immediately. Many people are affected by this case, and they total at about 200 000. It is hoped that the Chief Executive's Office will have other arrangements later.
Furthermore, the Bill due to pass has already provided a reasonable protection on the right of abode and the related rights to those who may be affected. During the scrutiny of the Bill, we noted that the discretionary power of the Director of Immigration has been revoked. The local newspapers and the public are very concerned about this issue. The most heated argument centred around the revocation of the Director of Immigration's discretionary power, and the message is very clear, that is, no illegal immigrants can have any chance to obtain the right of abode in Hong Kong. The original intention of deterring or discouraging people from entering into Hong Kong illegally is very clear, and we are all in support of this. However, the discretionary power is only exercised in handling some special cases. In the past, there were very few cases of the Director of Immigration exercising this power. There were about 200 cases in the past or several dozens cases every year, and most of them are based on humanitarian or compassionate grounds, so the discretionary power should therefore be retained. Regarding the governments in other areas, their immigration authority also possess this discretionary power. Illegal entry will not be encouraged because of the "existence" of the discretionary power. It will only provide more flexibility in handling these cases. When handling special cases, we can allow the illegal immigrants to stay in Hong Kong on compassionate or humanitarian grounds, so that they can live in harmony with us and obtain the right of abode after living for a particular period as required by law. The HKADPL has reservation on this point, and it is hoped that the Chief Executive's Office will implement a review after the handover of Hong Kong. The discretionary power should be restored to the Director of Immigration if the actual situation is not such worrying. During the scrutiny of the Bill, the Chief Executive's Office has also promised openly that for those who have lived in Hong Kong for less than seven years and were permitted to do so by authority of the Director's discretion can continue to stay in Hong Kong and obtain the right of abode after living in Hong Kong for seven years. We welcome this arrangement and this is obviously a step forward. The resolution of the Preparatory Committee has not given an account on this. With this new arrangement, we welcome the clarification and promise made by the Chief Executive's Office publicly, and we are relieved at the news.
The last point which I would like to add is there are some problems which have not yet been handled or solved finally during the scrutiny process, and I hope that the Chief Executive's Office will make proper arrangement as soon as possible after the handover. One of them is in regard of paragraph 16 of the Bills Committee report on child illegal immigrants. In accordance with Article 24(3) of the Basic Law, they have the right of abode in Hong Kong. What should be done if they enter into Hong Kong illegally after 1997? Up till now, this problem still does not have a practical and possible solution, and I hope that the Chief Executive's Office can put forth a possible proposal as soon as possible. Also, after the passage of this Bill, a number of subsidiary legislations should be prepared, especially those on the implementation of the Bill, including paragraph 2 of Schedule 1. For example, some people have to make declarations if they have decided to make Hong Kong their place of permanent residence. Therefore, the related subsidiary legislations should be drafted quickly, so that these people can apply for the right of abode in Hong Kong in accordance with the statutory procedures.
Madam President, with these three supplementary points, I support the endorsement of the Bill on behalf of the HKADPL. Thank you.
PRESIDENT (in Cantonese): Does any other Member wish to speak? Dr TANG Siu-tong.
DR TANG SIU-TONG (in Cantonese): Madam President, concerning the right of abode of the descendants of our permanent residents, the Bill has set down detailed interpretations and stipulations, and I would like to talk about the amendments in this regard as proposed in the Bill.
In accordance with Article 24 of the Basic Law, "Chinese citizens born in Hong Kong before or after the establishment of the Hong Kong Special Administrative Region" will become the permanent residents of Hong Kong automatically. However, a condition is added to the above stipulation in the amendment Bill presented by the Chief Executive's Office, that is, for the child who is born in Hong Kong, his father or mother should be settled in Hong Kong or had already obtained the right of abode at the time of his birth or at any later time. The meaning of "settled" means they are ordinarily resident in Hong Kong and not subject to any conditions of stay.
The purpose of adding this condition is mainly to impose restriction on those Chinese citizens who are neither settling nor having the right of abode in Hong Kong. For example, the children who are born in Hong Kong to the tourists who come from the Mainland and the people who enter into Hong Kong illegally cannot obtain the right of abode in Hong Kong.
At the same time, the amendment also changes the policy on automatic acquisition of the right of abode for the children born in Hong Kong to new immigrants from China. It means that if either the father or mother cannot meet the "settling" requirement in Hong Kong or if they are not yet permanent residents, their children born in Hong Kong of Chinese nationality will not become permanent residents automatically.
Some commentators have criticized that the additional condition to the Bill seems to be in contravention of the Basic Law. Indeed, we have to understand that while the Basic Law can only embody the principles, the SAR Government has to prepare other provisions to interpret the provisions in the Basic Law in detail for implementation. Therefore, we cannot draw a hasty conclusion that any additional provision will be in contravention of the Basic Law. Moreover, the additional provision is the consensus of the Sino-British Joint Liaison Group after looking at the actual situation and holding numerous discussions. It conforms with the legal viewpoint of both China and Britain, and it has also taken the wishes of the Hong Kong people into consideration.
Furthermore, all countries and areas will act in accordance with their local constitutions and tie in with the practical situation to legislate on the definition of their nationals. The preamble of the Basic Law also clearly states that in order to maintain the prosperity and stability of Hong Kong, and taking account of its history and realities, a Hong Kong Special Administrative Region will be established. Since Hong Kong has very little usable land but a large population, if we permit all the Chinese nationals who are born in Hong Kong to become permanent residents, it will in another way encourage a large influx of mainlanders to come to Hong Kong both illegally or legally to give birth to their children. As a result, our housing, education, welfare, medical resources and infrastructure will have to shoulder a heavy burden, and it will be very difficult for the Administration to reserve resources systematically for the supply of adequate welfare facilities. How can the Basic Law objective of maintaining the prosperity and stability of Hong Kong be achieved?
Regarding whether illegitimate children and abandoned infants can have the right of abode in Hong Kong, according to the amendment Bill of the Chief Executive's Office, the relationship of a mother and child shall be taken to exist between a woman and any child (legitimate or illegitimate) born to her; but the relationship of father and child shall be taken to exist only between a man and any legitimate or legitimated child born to him. In other words, only when the mother is a permanent resident of Hong Kong can her illegitimate child obtain the right of abode after 1 July if the child's identity can be confirmed. Against this background, I think it is unfair to the illegitimate child born to a father. The present scientific advancement perhaps can solve this problem through identifying the genetic factor.
For the purpose of establishing a parent and child relationship in respect of an adopted child, the child has to be adopted within Hong Kong in accordance with the Adoption Ordinance (Cap. 290), but not to those children adopted in the Mainland or overseas.
Regarding abandoned infants in Hong Kong, we are in support of the amendment proposed by the Chief Executive's Office, that is, no matter the abandoned infant is or is not of Chinese nationality, it can automatically become a permanent resident or obtain the right of abode in Hong Kong according to the relevant legislations. As a result, the new born baby will not be stateless or have no right of abode though it does not have any parents to make declaration for it.
I am sorry that the descendants of indigenous villagers, who settled overseas in the past to make a living, cannot continue to enjoy the right of abode in Hong Kong. Although they are living overseas, their hearts are still with us. Also, the indigenous villagers and their descendants very often will come back to their native places to pay tribute to their ancestors, to renovate their homes and the graves of their ancestors. It can be said that they are very loyal to Hong Kong. I hope that the Government can consider and deliberate on resolving this problem. I would like to give my thanks to those Members who speak in support of my proposal.
With these remarks, Madam President, I support the Bill.
PRESIDENT (in Cantonese): Mr Frederick FUNG.
MR FREDERICK FUNG (in Cantonese): Thank you, Madam President. The subject of our debate today is the Immigration (Amendment) (No. 3) Bill 1997. Although I am in favour of the Bill in general, I still wish to speak on a few points here. To begin with, I find the Bill fairly lenient and do have some reservation about such leniency myself, not on behalf of the Hong Kong Association for Democracy and People's Livelihood (HKADPL). In my opinion, the Bill is more lenient than the various policies relevant in establishing permanent residence adopted by other countries. It is even more lenient than those articles of the Constitution of the People's Republic of China (the Constitution) which provide for the status of a Chinese citizen because the National People's Congress has another interpretation of the Constitution with regard to the implementation of the Chinese Nationality Law in the Hong Kong Special Administrative Region (SAR). The only reason for me to support the Bill is the hope to realize the principles of "one country, two systems", "Hong Kong people ruling Hong Kong", and "everything remain unchanged for 50 years". To put it in other words, it is to keep the existing policies unchanged for 50 years as far as possible. This is in fact an "impossibility" under the Constitution to give the Chinese Nationality Law an interpretation so "compromising" as to tolerate dual nationality, as for me, I could only "tolerate". I think it should be prescribed clearly in the Chinese Nationality Law that a Chinese citizen shall be of one nationality only and being a Chinese citizen in the SAR is no exception. Yet, it is all because of the SAR that such an exceptional interpretation could be passed.
With regard to the general analysis and views concerning the Bill, Mr Bruce LIU has already spoken on the behalf of the four HKADPL Members in this Council, but I would like to talk specifically about the discretionary power of the Director of Immigration. I can still remember that when the Bill was under discussion in the Preparatory Committee meeting, I attempted to make two requests. The first one is the preservation of the discretionary power. Our rationale was that since we could not know what would happen in future, we should retain the discretionary power. Should this discretionary power be revoked, we might not be able to resolve certain problems in future if necessary. The other request is the adoption of the proposal (which turned into a decision later on) made by the Preparatory Committee on that day. In accordance with Article 24(4) under Chapter III of the Basic Law, the Preparatory Committee laid down the meaning of the term "permanent resident" as follows: "a person not of Chinese nationality who has entered Hong Kong with a valid travel document, has ordinarily resided in Hong Kong for a continuous period of not less than seven years and has taken Hong Kong as his place of permanent residence before or after the establishment of the Hong Kong Special Administrative Region." To become a permanent resident, one must enter Hong Kong with a valid travel document. From there I deduced that since the illegal immigrants did not enter Hong Kong with a valid travel document, they might not be included as the "permanent residents" defined in accordance with Article 24(4) under Chapter III of the Basic Law. Besides, it might not be possible for the Director of Immigration to exercise his discretionary power to allow them to obtain the status of a "permanent resident". The request I made then was that such a decision should have retrospective effect. My point was that regarding those persons who remain in Hong Kong with the authority of the Director of Immigration after landing unlawfully during the period between I July 1990 and 30 June 1997, as they had entered Hong Kong before the Bill or the decision of the Preparatory Committiee was passed and have continuously resided in Hong Kong for more than seven years, they should be qualify for the acquisition of the status of a permanent resident. However, as a result of the decision made by the Preparatory Committee last year as well as the Bill to be passed today, their chance or right to become permanent residents under the British Hong Kong Government would be revoked upon the change of government. In my opinion, the discretionary power might change these persons from " the haves" to "the have-nots". I do not care if they were democratic movement supporters or persons permitted to remain in Hong Kong on compassionate grounds. Yet, as far as I know, the number of the latter is greater than that of the former by folds. I have cited some cases which I received from members of the public for the Preparatory Committee's consideration. Besides, on the day when the Preparatory Committee made its decision, I applied for an exceptional leave to explain my points of view before the decision was to be finalized. As I agreed to most of the proposals made then with the exception of that one, I abstained from voting.
In my opinion, if the discretionary power of the Director of Immigration is revoked or if those persons who remain with the authority of the Director of Immigration could not become permanent residents after 1 July 1997, it may cause the persons concerned to lose their rights and result in uncertainties among these persons as well as other members of the public. I have read a document before the debate, that is, PLC Paper No. 460/96-97. Paragraph 18 of the paper mentioned that the Secretary for Justice had proposed to amend clause 2(2)(b) of the Bill during the discussion process. The proposed amendment would allow the Director of Immigration to exercise discretion to permit those persons who remain with his authority before 1 July 1997 to acquire the status of a permanent resident after they have resided in Hong Kong for seven years. This proposed amendment has acceded to one of my two requests and is a great step made by the Chief Executive or the Secretary towards the direction which I have referred to just now. Should there be any amendment after 1 July 1997 with regard to the need to retain the discretionary power of the Director of Immigration, I hope that the SAR Government would take into consideration the rationale and value standard behind the decision made by the Director of Immigration before 1 July 1997 to allow those persons to acquire the status of a permanent resident after having resided for seven years. If the SAR Government found such rationale and value standard worthy of our adoption, then could we again move amendments should there be an amendment exercise of the Ordinance in future? I wish the SAR Government would give some thought to this issue.
Finally, I would like to point out that the Bill has reflected that: (1) the Chinese Government has adopted a lenient attitude in handling the nationality issue so as to cater practically for the situation in Hong Kong; (2) the Chief Executive's Office and the Secretary for Justice, in handling the discretionary power of the Director of Immigration, has not fully adopted the explanation to clause 2(2)(b) which I gave when the Bill was under discussion by the Preparatory Committee.
Nevertheless, I welcome these two points and I will change my stance from abstention to support. I agree to the explanation made by the Chief Executive's Office and the Secretary for Justice.
PRESIDENT (in Cantonese): Does any other Member wish to speak?
(No Member responded)
PRESIDENT (in Cantonese): Secretary for Justice, do you wish to reply?
SECRETARY FOR JUSTICE (in Cantonese): Thank you, Madam President.
To begin with, when the Bill was first presented to this Council, it was allocated to a Bills Committee for consideration. The Bills Committee comprises 22 members, with the Honourable Paul CHENG as the Chairman. During the past two weeks, the Bills Committee scrutinized the Bill in detail and raised a number of valuable comments on the draft provisions. In addition, it has also received representations from organizations as well as individuals. I wish to take this oppurtunity to express my gratitude to Mr CHENG and all other members of the Bills Committee. Committee stage amendments made in the light of the the Bills Committee's suggestions will be moved later to render the draft provisions more precise and more in line with the interest of the public.
Regarding whether the definition of "permanent resident" as set out in the Bill is consistent with that in the Basic Law, I share the views expressed by Dr TANG Siu-tong just now. The Basic Law only provides for the basic principles upon which the SAR has the right to elaborate in greater detail when enacting legislation. I would like to remind Honourable Members that while the provisions concerning permanent residence in the Basic Law are drafted with reference to the 1985 Joint Declaration, the agreements set out in the latter were made in accordance with the laws in force then. Schedule 1 of the then Immigration Ordinance cites the British Nationality (Hong Kong) Act and states that a person born in Hong Kong is not taken as a permenant resident unless his father or mother has settled in Hong Kong. The Bill is therefore consistent with the existing laws of Hong Kong and is not introducing any additional requirement to the provisions of the Basic Law. As to Article 24(3) of the Basic Law which concerns children born in China to Hong Kong permenant residents, it is our hope that the SAR Government could make as soon as possible the arrangements for them to come to Hong Kong for family reunion in an orderly way. In this respect, we have to take into consideration the capacity of the SAR in relation to various types of resources including education, housing, welfare and medical services. In my opinion, if restriction is said to be imposed on this right of abode which they are born with, it is only their execution of it that is being restricted; their entitlement to it shall never be forfeited. The SAR Government has set up a special Task Force to study the issue. Whilst legislative measures will be taken to make arrangements for them to come to Hong Kong in an orderly way, appropriate allocation of resources will also be made to cater for their needs. It is our hope that potential conflicts between these new immigrants and the local community could be avoided and that resentment against them would not be created among the local community. The special Task Force is now working hard on the study and recommendations on the ways to tackle the problem are expected to be forthcoming.
I would also like to speak on the issue of discretionary power that Honourable Members mentioned just now. The right of abode can never be granted through the exercise of discretionary power. It has to be codified by legislation. The discretionary power we mention here refers to that of the Director of Immigration to allow an illegal immigrant to remain in Hong Kong after landing illegally. This discretion over the permission to reside or stay in Hong Kong has not been revoked or reduced in the Bill. Clause 2(2) of the Bill and section 2(5) of the principal Ordinance provide that the permission to remain in Hong Kong given at the discretion of the Director of Immigration during the period between 1 July 1990 and 30 June 1997 shall remain effective. This provision is relevant in determining whether a person has settled or ordinarily resided for seven years in Hong Kong and needs to be stated clearly in legislation. The discretionary power of the Director of Immigration is exercised to allow such persons to remain in Hong Kong, not to grant them the right of abode. However, for those individuals who have resided in Hong Kong for seven years and acquired the right of abode in accordance with the laws in force then, their right shall be retained. Some Members have also mentioned the issue of parent and child relationship just now. In this respect, I would like to point out that the provisions relating to children born in or out of wedlock simply set out the meaning of the relevant terms as defined in the Parent and Child Ordinance. They are not new and do not contain any discrimination against children not born out of wedlock. The urgent task we need to proceed with is to have the Immigration (Amendment) (No. 3) Bill 1997 enacted so as to enable the present Hong Kong residents to continue to enjoy the right of abode after 1 July 1997 under its clear provisions, as well as to safeguard the rights of those persons who have not lawfully obtained the right of abode in accordance with the provisions of the Basic Law. As to the other issues raised by Members, including the issue of children of Chinese nationality born outside Hong Kong to permanent residents or indigenous residents of Hong Kong, the SAR Government will give thorough consideration to introducing legislation or an amendment Bill in such respects at any later time when required. Thank you, Madam President.
PRESIDENT (in Cantonese): I now put the question to you and that is: That the Immigration (Amendment) (No. 3) Bill 1997 be read the Second time. Will those in favour please say "aye"?
(Members responded)
PRESIDENT (in Cantonese): Those against please say "no".
(Members responded)
PRESIDENT (in Cantonese): I think the "ayes" have it. I declare that the question on the Second Reading of the Bill is agreed to.
CLERK (in Cantonese): Immigration (Amendment) (No. 3) Bill 1997
OATHS AND DECLARATIONS (AMENDMENT) BILL 1997
Resumption of debate on Second Reading which was moved on 14 June 1997
PRESIDENT (in Cantonese): Oaths and Declarations (Amendment) Bill 1997. Does any Member wish to speak?
(No Member responded)
PRESIDENT (in Cantonese): Secretary for Policy Co-ordination, do you wish to speak?
SECRETARY FOR POLICY CO-ORDINATION (in Cantonese): Madam President, as I have already spoken on the background and the major content of the Oaths and Declarations (Amendment) Bill 1997 when moving its Second Reading on 14 June, I do not intend to repeat them today.
I would like to take this opportunity to thank the Legal Advisor to the Bills Committee for the valuable comments provided. I would also like to express my gratitude to you, Madam President, Honourable Members and the Secretariat for all your support and assistance, without which the Second Reading debate on the Bill could not be resumed within such a short period of time.
With these remarks, Madam President, I urge this Council to pass the Second Reading of the Oaths and Declarations (Amendment) Bill 1997.
PRESIDENT (in Cantonese): I now put the question to you and that is: That the Oaths and Declarations (Amendment) Bill 1997 be read the Second time. Will those in favour please say "aye"?
(Members responded)
PRESIDENT (in Cantonese): Those against please say "no".
(Members responded)
PRESIDENT (in Cantonese): I think the "ayes" have it. I declare that the question on the Second Reading of the Bill is agreed to.
CLERK (in Cantonese): Oaths and Declarations (Amendment) Bill 1997
PRESIDENT (in Cantonese): Bills: Committee stage. Council is now in Committee.
Committee Stage of Bills
HONG KONG COURT OF FINAL APPEAL (AMENDMENT) BILL 1997
CHAIRMAN (in Cantonese): Hong Kong Court of Final Appeal (Amendment) Bill 1997.
CHAIRMAN (in Cantonese): I now propose the question to you and that is: That the following clauses stand part of the Bill.
CLERK (in Cantonese): Clauses 1, 3, 5, 6, and 9 to 17.
CHAIRMAN (in Cantonese): I now put the question to you as stated. Will those in favour please say "aye"?
(Members responded)
CHAIRMAN (in Cantonese): Those against please say "no".
(Members responded)
CHAIRMAN (in Cantonese): I think the "ayes" have it. The "ayes" have it.
CLERK (in Cantonese): Clauses 2, 4, 7, 8, 18 and 19.
CHAIRMAN (in Cantonese): Secretary for Justice.
SECRETARY FOR JUSTICE (in Cantonese): Madam Chairman, I move that clauses 2, 4, 7, 8, 18 and 19 be amended as set out in the paper circularized to Members. Clause 4 is amended so that the name of the Executive Council in the Chinese text would read as "行政會議" and be consistent with that in the Basic Law. The rest of the proposed amendments are related to the technical issues that I referred to when speaking on the resumption of the Second Reading debate.
Proposed amendments
Clause 2 (see Annex I)
Clause 4 (see Annex I)
Clause 7 (see Annex I)
Clause 8 (see Annex I)
Clause 18 (see Annex I)
Clause 19 (see Annex I)
CHAIRMAN (in Cantonese): Does any Member wish to speak?
(No Member responded)
CHAIRMAN (in Cantonese): If no Member wishes to speak, I now put the question to you and that is: That the amendments to clauses 2, 4, 7, 8, 18 and 19 moved by the Secretary for Justice be approved. Will those in favour please say "aye"?
(Members responded)
CHAIRMAN (in Cantonese): Those against please say "no".
(Members responded)
CHAIRMAN (in Cantonese): I think the "ayes" have it. The "ayes" have it.
CLERK (in Cantonese): Clauses 2, 4, 7, 8, 18 and 19 as amended.
CHAIRMAN (in Cantonese): We now vote on the amended clauses 2, 4, 7, 8, 18 and 19. Will those in favour please say "aye"?
(Members responded)
CHAIRMAN (in Cantonese): Those against please say "no".
(Members responded)
CHAIRMAN (in Cantonese): I think the "ayes" have it. The "ayes" have it.
JUDICIAL SERVICE COMMISSION (AMENDMENT) BILL 1997
CHAIRMAN (in Cantonese): Judicial Service Commission (Amendment) Bill 1997.
CHAIRMAN (in Cantonese): I now propose the question to you and that is: That the following clauses stand part of the Bill.
CLERK (in Cantonese): Clause 3 and clauses 8 and 9 of the English text.
CHAIRMAN (in Cantonese): I now put the question to you as stated. Will those in favour please say "aye"?
(Members responded)
CHAIRMAN (in Cantonese): Those against please say "no".
(Members responded)
CHAIRMAN (in Cantonese): I think the "ayes" have it. The "ayes" have it.
CLERK (in Cantonese): Clauses 1, 2, 4 to 7 and clause 8 of the Chinese text.
CHAIRMAN (in Cantonese): Secretary for Justice.
SECRETARY FOR JUSTICE (in Cantonese): Madam Chairman, I move that clauses 1, 2, 4 to 7 and clause 8 of the Chinese text be amended as set out in the paper circularized to Members.
Proposed amendments
Clause 1 (see Annex II)
Clause 2 (see Annex II)
Clause 4 (see Annex II)
Clause 5 (see Annex II)
Clause 6 (see Annex II)
Clause 7 (see Annex II)
Clause 8 of the Chinese text (see Annex II)
CHAIRMAN (in Cantonese): Does any Member wish to speak?
(No Member responded)
CHAIRMAN (in Cantonese): I now put the question to you and that is: That the amendments to clauses 1, 2, 4 to 7 and clause 8 of the Chinese text moved by the Secretary for Justice be approved. Will those in favour please say "aye"?
(Members responded)
CHAIRMAN (in Cantonese): Those against please say "no".
(Members responded)
CHAIRMAN (in Cantonese): I think the "Ayes" have it. The "ayes" have it.
CLERK (in Cantonese): Clauses 1, 2, 4 to 7 and clause 8 of the Chinese text as amended.
CHAIRMAN (in Cantonese): Will those in favour please say "aye"?
(Members responded)
CHAIRMAN (in Cantonese): Those against please say "no".
(Members responded)
CHAIRMAN (in Cantonese): I think the "ayes" have it. The "ayes" have it.
|
CLERK (in Cantonese): |
New clause 4A |
Certain persons ineligible for appointment as members of the Commission |
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New Clause 8 of the Chinese text |
修訂附表2 |
CHAIRMAN (in Cantonese): Secretary for Justice.
SECRETARY FOR JUSTICE (in Cantonese): Madam Chairman, I move that new clause 4A and new clause 8 of the Chinese text as set out in the paper circularized to Members be read the Second time.
CHAIRMAN (in Cantonese): I now propose the question to you and that is: That new clause 4A and new clause 8 of the Chinese text be read the Second time.
CHAIRMAN (in Cantonese): Does any Member wish to speak?
(No Member responded)
CHAIRMAN (in Cantonese): I now put the question to you and that is: That new clause 4A and new clause 8 of the Chinese text be read the Second time. Will those in favour please say "aye"?
(Members responded)
CHAIRMAN (in Cantonese): Those against please say "no".
(Members responded)
CHAIRMAN (in Cantonese): I think the "ayes" have it. The "ayes" have it.
CLERK (in Cantonese): New clause 4A and new clause 8 of the Chinese text.
CHAIRMAN (in Cantonese): Secretary for Justice.
SECRETARY FOR JUSTICE (in Cantonese): Madam Chairman, I move that the new clause 4A and new clause 8 of the Chinese text be added to the Bill.
CHAIRMAN (in Cantonese): I now propose the question to you and that is: That new clause 4A and new clause 8 of the Chinese text be added to the Bill.
I now put the question to you as stated. Will those in favour please say "aye"?
(Members responded)
CHAIRMAN (in Cantonese): Those against please say "no".
(Members responded)
CHAIRMAN (in Cantonese): I think the "ayes" have it. The "ayes" have it.
CLERK (in Cantonese): Long Title.
CHAIRMAN (in Cantonese): Secretary for Justice.
SECRETARY FOR JUSTICE (in Cantonese): Madam Chairman, I move that the Long Title be amended as set out in the paper circularized to Members.
Proposed amendment
Long Title (see Annex II)
CHAIRMAN (in Cantonese): I now propose the question to you and that is: That the Secretary for Justice's amendment to the Long Title be approved. Does any Member wish to speak?
(No Member responded)
CHAIRMAN (in Cantonese): I now put the quetion to you and that is: That the Secretary for Justice's amendment to the Long Title be approved. Will those in favour please say "aye"?
(Members responded)
CHAIRMAN (in Cantonese): Those against please say "no".
(Members responded)
CHAIRMAN (in Cantonese): I think the "ayes" have it. The "ayes" have it.
IMMIGRATION (AMENDMENT) (NO. 3) BILL 1997
CHAIRMAN (in Cantonese): Immigration (Amendment) (No. 3) Bill 1997.
CHAIRMAN (in Cantonese): I now propose the question to you and that is: That the following clause stand part of the Bill.
CLERK (in Cantonese): Clause 1.
CHAIRMAN (in Cantonese): I now put the question to you as stated. Will those in favour please say "aye"?
(Members responded)
CHAIRMAN (in Cantonese): Those against please say "no".
(Members responded)
CHAIRMAN (in Cantonese): I think the "ayes" have it. The "ayes" have it.
CLERK (in Cantonese): Clause 2.
CHAIRMAN (in Cantonese): Secretary for Justice.
SECRETARY FOR JUSTICE (in Cantonese): Madam Chairman, I move that clause 2 be amended as set out in the paper circularized to Members.
Proposed amendment
Clause 2 (see Annex III)
CHAIRMAN (in Cantonese): Does any Member wish to speak?
(No Member responded)
CHAIRMAN (in Cantonese): I now put the question to you and that is: That the Secretary for Justice's amendment to clause 2 be approved. Will those in favour please say "aye"?
(Members responded)
CHAIRMAN (in Cantonese): Those against please say "no".
(Members responded)
CHAIRMAN (in Cantonese): I think the "ayes" have it. The "ayes" have it.
CLERK (in Cantonese): Clause 2 as amended.
CHAIRMAN (in Cantonese): We now vote on the amended clause 2. Will those in favour please say "aye"?
(Members responded)
CHAIRMAN (in Cantonese): Those against please say "no".
(Members responded)
CHAIRMAN (in Cantonese): I think the "ayes" have it. The "ayes" have it.
CLERK (in Cantonese): Clause 3.
CHAIRMAN (in Cantonese): Secretary for Justice.
SECRETARY FOR JUSTICE (in Cantonese): Madam Chairman, I move that clause 3 be amended as set out in the paper circularized to Members.
Proposed amendment
Clause 3 (see Annex III)
CHAIRMAN (in Cantonese): Does any Member wish to speak?
(No Member responded)
CHAIRMAN (in Cantonese): I now put the question to you and that is: That the Secretary for Justice's amendment to clause 3 be approved. Will those in favour please say "aye"?
(Members responded)
CHAIRMAN (in Cantonese): Those against please say "no".
(Members responded)
CHAIRMAN (in Cantonese): I think the "ayes" have it. The "ayes" have it.
CLERK (in Cantonese): Clause 3 as amended.
CHAIRMAN (in Cantonese): We now vote on the amended clause 3. Will those in favour please say "aye"?
(Members responded)
CHAIRMAN (in Cantonese): Those against please say "no".
(Members responded)
CHAIRMAN (in Cantonese): I think the "ayes" have it. The "ayes" have it.
CLERK (in Cantonese): Clause 4.
CHAIRMAN (in Cantonese): Secretary for Justice.
SECRETARY FOR JUSTICE (in Cantonese): Madam Chairman, I move that clause 4 be amended as set out in the paper circularized to Members.
Proposed amendment
Clause 4 (see Annex III)
CHAIRMAN (in Cantonese): Does any Member wish to speak?
(No Member responded)
CHAIRMAN (in Cantonese): I now put the question to you and that is: That the Secretary for Justice's amendment to clause 4 be approved. Will those in favour please say "aye"?
(Members responded)
CHAIRMAN (in Cantonese): Those against please say "no".
(Members responded)
CHAIRMAN (in Cantonese): I think the "ayes" have it. The "ayes" have it.
CLERK (in Cantonese): Clause 4 as amended.
CHAIRMAN (in Cantonese): We now vote on the amended clause 4. Will those in favour please say "aye"?
(Members responded)
CHAIRMAN (in Cantonese): Those against please say "no".
(Members responded)
CHAIRMAN (in Cantonese): I think the "ayes" have it. The "ayes" have it.
CLERK (in Cantonese): Clause 5.
CHAIRMAN (in Cantonese): Secretary for Justice.
SECRETARY FOR JUSTICE (in Cantonese): Madam Chairman, I move that clause 5 be amended as set out in the paper circularized to Members.
Proposed amendment
Clause 5 (see Annex III)
CHAIRMAN (in Cantonese): Does any Member wish to speak?
(No Member responded)
CHAIRMAN (in Cantonese): I now put the question to you and that is: That the Secretary for Justice's amendment to clause 5 be approved. Will those in favour please say "aye"?
(Members responded)
CHAIRMAN (in Cantonese): Those against please say "no".
(Members responded)
CHAIRMAN (in Cantonese): I think the "ayes" have it. The "ayes" have it.
CLERK (in Cantonese): Clause 5 as amended.
CHAIRMAN (in Cantonese): We now vote on the amended clause 5. Will those in favour please say "aye"?
(Members responded)
CHAIRMAN (in Cantonese): Those against please say "no".
(Members responded)
CHAIRMAN (in Cantonese): I think the "ayes" have it. The "ayes" have it.
CLERK (in Cantonese): Clause 6.
CHAIRMAN (in Cantonese): Secretary for Justice.
SECRETARY FOR JUSTICE (in Cantonese): Madam Chairman, I move that clause 6 be amended as set out in the paper circularized to Members. Paragraph 2(a) of proposed Schedule 1 in clause 6 is amended by deleting "has settled" and substituting "was settled or had the right of abode" to provide for any Chinese citizen born in Hong Kong before or after the establishment of the Hong Kong Special Administrative Region (SAR) with the status of a permanent resident of and the right of abode in the SAR if his father or mother was settled or had the right of abode in Hong Kong at the time of his birth or at any later time. The amended clause, which is more reasonable and clearer, provides for children born in Hong Kong to permanent residents of Hong Kong who have returned to settle in mainland China the entitlement to the right of abode under paragraph 2(a). By amending subparagraphs (iii) and (iv), paragraph 3(1)(a) of proposed Schedule 1 in clause 6 will read more clearly and enable the Director of Immigration to approve applications in the light of whether that person has taken Hong Kong as his place of permanent residence, whether he has a reasonable means of income to support himself and his family, and whether he has paid his taxes in accordance with the law. The purpose of amending paragraph 6 of proposed Schedule 1 in clause 6 is to provide clearly that a person who is of Chinese nationality and had a right of abode in Hong Kong before the establishment of the SAR can continue to enjoy the right of abode in Hong Kong as long as he remains a Chinese citizen. The rest of the amendments are technical or textual in nature and designed to enable the clause to read more clearly and precisely. Madam Chairman, I beg to move.
Proposed amendment
Clause 6 (see Annex III)
CHAIRMAN (in Cantonese): Does any Member wish to speak?
(No Member responded)
CHAIRMAN (in Cantonese): I now put the question to you and that is: That the Secretary for Justice's amendment to clause 6 be approved. Will those in favour please say "aye"?
(Members responded)
CHAIRMAN (in Cantonese): Those against please say "no".
(Members responded)
CHAIRMAN (in Cantonese): I think the "ayes" have it. The "ayes" have it.
CLERK (in Cantonese): Clause 6 as amended.
CHAIRMAN (in Cantonese): We now vote on the amended clause 6. Will those in favour please say "aye"?
(Members responded)
CHAIRMAN (in Cantonese): Those against please say "no".
(Members responded)
CHAIRMAN (in Cantonese): I think the "ayes" have it. The "ayes" have it.
CLERK (in Cantonese): Clause 7.
CHAIRMAN (in Cantonese): Secretary for Justice.
SECRETARY FOR JUSTICE (in Cantonese): Madam Chairman, I move that clause 7 be amended as set out in the paper circularized to Members.
Proposed amendment
Clause 7 (see Annex III)
CHAIRMAN (in Cantonese): Does any Member wish to speak?
(No Member responded)
CHAIRMAN (in Cantonese): I now put the question to you and that is: That the Secretary for Justice's amendment to clause 7 be approved. Will those in favour please say "aye"?
(Members responded)
CHAIRMAN (in Cantonese): Those against please say "no".
(Members responded)
CHAIRMAN (in Cantonese): I think the "ayes" have it. The "ayes" have it.
CLERK (in Cantonese): Clause 7 as amended.
CHAIRMAN (in Cantonese): We now vote on the amended clause 7. Will those in favour please say "aye"?
(Members responded)
CHAIRMAN (in Cantonese): Those against please say "no".
(Members responded)
CHAIRMAN (in Cantonese): I think the "ayes" have it. The "ayes" have it.
OATHS AND DECLARATIONS (AMENDMENT) BILL 1997
CHAIRMAN (in Cantonese): Oaths and Declarations (Amendment) Bill 1997.
CHAIRMAN (in Cantonese): I now propose the question to you and that is: That the following clauses and schedule stand part of the Bill.
CLERK (in Cantonese): Clauses 1, 2, 4 to 8, 10 to 12, 14 to 16 and 19 and Schedule.
CHAIRMAN (in Cantonese): I now put the question to you as stated. Will those in favour please say "aye"?
(Members responded)
CHAIRMAN (in Cantonese): Those against please say "no".
(Members responded)
CHAIRMAN (in Cantonese): I think the "ayes" have it. The "ayes" have it.
CLERK (in Cantonese): Clauses 3, 9, 13, 17 and 18.
CHAIRMAN (in Cantonese): Secretary for Policy Co-ordination.
SECRETARY FOR POLICY CO-ORDINATION (in Cantonese): Madam Chairman, I move that clauses 3, 9, 13, 17 and 18 be amended as set out in the paper circularized to Members.
Proposed amendments
Clause 3 (see Annex IV)
Clause 9 (see Annex IV)
Clause 13 (see Annex IV)
Clause 17 (see Annex IV)
Clause 18 (see Annex IV)
CHAIRMAN (in Cantonese): Does any Member wish to speak?
(No Member responded)
CHAIRMAN (in Cantonese): I now put the question to you and that is: That the Secretary for Policy Co-ordination's amendments to clauses 3, 9, 13, 17 and 18 be approved. Will those in favour please say "aye"?
(Members responded)
CHAIRMAN (in Cantonese): Those against please say "no".
(Members responded)
CHAIRMAN (in Cantonese): I think the "ayes" have it. The "ayes" have it.
CLERK (in Cantonese): clauses 3, 9, 13, 17 and 18 as amended.
CHAIRMAN (in Cantonese): We now vote on the amended clauses 3, 9, 13, 17 and 18. Will those in favour please say "aye"?
(Members responded)
CHAIRMAN (in Cantonese): Those against please say "no".
(Members responded)
CHAIRMAN (in Cantonese): I think the "ayes" have it. The "ayes" have it.
CHAIRMAN (in Cantonese): Council will now resume.
Council then resumed.
Third Reading of Bills
PRESIDENT (in Cantonese): Bills: Third Reading. Secretary for Justice.
SECRETARY FOR JUSTICE (in Cantonese): Madam President, the
Hong Kong Court of Final Appeal (Amendment) Bill 1997,
Judicial Service Commission (Amendment) Bill 1997, and
Immigration (Amendment) (No. 3) Bill 1997
have passed through Committee with amendments. I move that these three Bills be read the Third time and do pass.
PRESIDENT (in Cantonese): I now propose the question to you and that is: That the
Hong Kong Court of Final Appeal (Amendment) Bill 1997,
Judicial Service Commission (Amendment) Bill 1997, and
Immigration (Amendment) (No. 3) Bill 1997
be read the Third time and do pass.
I now put the question to you as stated. Will those in favour please say "aye"?
(Members responded)
PRESIDENT (in Cantonese): Those against please say "no".
(Members responded)
PRESIDENT (in Cantonese): I think the "ayes" have it. The "ayes" have it.
CLERK (in Cantonese): Hong Kong Court of Final Appeal (Amendment) Bill 1997
Judicial Service Commission (Amendment) Bill 1997
Immigration (Amendment) (No. 3) Bill 1997
PRESIDENT (in Cantonese): Secretary for Policy Co-ordination.
SECRETARY FOR POLICY CO-ORDINATION (in Cantonese): Madam President, the
Oaths and Declarations (Amendment) Bill 1997
has passed through Committee with amendments. I move that the Bill be read the Third time and do pass.
PRESIDENT (in Cantonese): I now propose the question to you and is: That the
Oaths and Declarations (Amendment) Bill 1997
be read the Third time and do pass.
I now put the question to you as stated. Will those in favour please say "aye"?
(Members responded)
PRESIDENT (in Cantonese): Those against please say "no".
(Members responded)
PRESIDENT (in Cantonese): I think the "ayes" have it. The "ayes" have it.
CLERK (in Cantonese): Oaths and Declarations (Amendment) Bill 1997
MEMBERS' MOTION
TO AMEND THE RULES OF PROCEDURE OF THE PROVISIONAL LEGISLATIVE COUNCIL OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION
PRESIDENT (in Cantonese): Members' motion. To amend the Rules of Procedure of the Provisional Legislative Council of the Hong Kong Special Administrative Region. Mrs Selina CHOW.
MRS SELINA CHOW (in Cantonese): Madam President, I move the motion standing in my name on the Revised Agenda.
The purpose of this motion is to amend two rules of the Rules of Procedure. They are Rule 12 and Rule 65, which concern the proceedings at the first meeting of the Provisional Legislative Council after the establishment of the Hong Kong Special Administrative Region (SAR) and the confirmation of passage of bills respectively.
The original Rule 12(1) reads: "Subject to subrule (5) of this Rule, the Chief Executive, if he so wishes, shall address the Council at the first meeting after the establishment of the Hong Kong Special Administrative Region."
The time at which the Chief Executive shall present his policy address to this Council is provided in this Rule. In this respect, the Working Group on Rules of Procedure (Working Group) has consulted the Chief Executive's Office and was informed that the Chief Executive would like to present his address in October. Considering that this is consistent with the existing schedule of the legislature in Hong Kong, the Working Group suggested I move a motion to amend this Rule to read: "The Chief Executive, if he so wishes, shall address the Council after the establishment of the Hong Kong Special Administrative Region."
The original Rule 65 provides for any bills passed by this Council before 1 July 1997 to be confirmed by a motion at the first meeting of the Council held after the establishment of the SAR. The Working Group understands that the Chief Executive's Office plans to confirm the passage of such bills by means of another bill at that meeting and suggest I move a motion to amend Rule 65 so as to co-ordinate with the Chief Executive's work.
To facilitate the expeditious passage of the bill in the small hours of 1 July 1997, the Working Group proposes to include three additional requirements under the Rule as follows:
(1) the three Readings of the bill must be proceeded with at the meeting held on that day;
(2) except for essential technical amendment with the leave of the Chairman of the Committee of the whole Council granted before the meeting, no amendment shall be moved to the bill; and
(3) a Member shall not make a speech on the bill in excess of three minutes.
The motion also proposes to amend Rules 18, 19, 23, 32, 36, 41, 51 and 54, These consequential amendments are made with respect to Rules 12 and 65 as amended and are technical in nature.
I urge Honourable Members to support my motion.
Thank you, Madam President.
Mrs Selina CHOW moved the following motion:
"That the Chinese version of the Rules of Procedure of the Provisional Legislative Council of the Hong Kong Special Administrative Region made on 12 April 1997 and the English version of the Rules of Procedure of the Provisional Legislative Council of the Hong Kong Special Administrative Region made on 3 May 1997 by this Council be amended respectively as follows－
(A) in the Chinese version－
(1) in Rule 12－
(a) by deleting the heading and substituting－
"12. 行政長官發表施政報告";
(b) in subrule (1), by deleting "在不牴觸本條第(5)款的情況下，" and "首次";
(c) by deleting subrule (5);
(2) in Rules 18(1), 19(4) and 23(5), by deleting "(香港特別行政區成立後的首次會議的程序)" and substituting "(行政長官發表施政報告)";
(3) in Rule 32, by adding "第65條(法案的確認)及" and "或除非在香港特別行政區成立前已對某一議題作出決定，但其後因涉及《基本法》內有關立法機關的職權的條文而需再次考慮者外，" respectively before and after "第67條(行政長官發回已通過的法案予臨時立法會重議)另有規定外，";
(4) in Rule 36(5), by adding "及第65(3)條(法案的確認)" before "另有規定外";
(5) in Rule 41(3), by adding "第65條(法案的確認)及" before "第67條";
(6) in Rule 51(7)(a), by adding "第65(1)(b)條(法案的確認)及" before "第67條";
(7) in Rule 54(4), by adding "及第65(3)(a)條(法案的確認)" after "撥款法案";
(8) by deleting Rule 65 and substituting－
"65. 法案的確認
(1) 在香港特別行政區成立前經三讀並獲通過的法案在香港特別行政區成立後，須 ─
(a) 由負責有關法案的官員(如議案所確認的法案超過一條，則由負責該等法案的任何一位官員)動議一項可無經預告的議案，進行確認，而該項議案在通過後，不可動議其他議案將之撤銷；或
(b) 由在香港特別行政區成立後進行首讀的另一條法案進行確認。
(2) 本條第(1)(a)款所述的議案不容修正或辯論而付諸表決。
(3) 就具有根據本條第(1)(b)款任何確認其他法案的效力的法案所進行的程序而言 ─
(a) 在負責該法案的官員就現即二讀該法案的議案發言後，辯論須即時進行，並且不容中止至另一次會議待續；
(b) 全體委員會主席只可在例外情況下根據第57(2)條許可對該法案動議修正案，惟只是欠缺足夠時間以容許該條規定得以遵從不足以構成一種例外情況；及
(c) 議員如未獲臨時立法會主席或全體委員會主席許可，發言不得超過3分鐘，上述許可只會在例外情況下給予，惟該等時限並不適用於獲委派官員。”；
(B) in the English version─
(1) in Rule 12 ─
(a) by deleting the heading and substituting ─
"12. The Chief Executive's Address ";
(b) in subrule (1), by deleting "Subject to subrule (5) of this Rule, the", and substituting "The", and deleting "at the first meeting";
(c) by deleting subrule (5);
(2) in Rules 18(1), 19(4) and 23(5), by deleting "(Proceedings at the First Meeting after the Establishment of the Hong Kong Special Administrative Region)" and substituting "(The Chief Executive’s Address)";
(3) in Rule 32, by adding "Rule 65 (Confirmation of Bills) and" and "or unless a specific question decided upon before the establishment of the Hong Kong Special Administrative Region is required to be reconsidered thereafter in relation to the powers and functions of the legislature under the Basic Law" respectively before and after "Rule 67 (The Chief Executive Returning a Bill Passed to the Council for Reconsideration)";
(4) in Rule 36(5), by adding "and Rule 65(3) (Confirmation of Bills)" before "a Member";
(5) in Rule 41(3), by adding "Rule 65 (Confirmation of Bills) and" before "Rule 67";
(6) in Rule 51(7)(a), by adding "Rule 65(1)(b) (Confirmation of Bills) and" before "Rule 67";
(7) in Rule 54(4), by adding "and Rule 65(3)(a) (Confirmation of Bills)" after "Appropriation Bills";
(8) by deleting Rule 65 and substituting ─
"65. Confirmation of Bills
(1) A bill which has been read the third time and passed before the establishment of the Hong Kong Special Administrative Region shall be subject to confirmation after such establishment by -
(a) a motion, which may be moved without notice by the public officer in charge of the bill (or any of the public officers in charge if the motion is in respect of more than one of such bills) and after the motion has been passed, no motion may be moved to rescind it; or
(b) another bill presented for first reading after the establishment of the Hong Kong Special Administrative Region.
(2) The motion under subrule (1)(a) shall be voted on without amendment or debate.
(3) For the purposes of proceedings upon a bill which has any effect of confirming another bill under subrule (1)(b) -
(a) when the public officer in charge of the bill has spoken on a motion that the bill be now read the second time, the debate shall immediately be proceeded with and no adjournment until another meeting is allowed;
(b) the Chairman may give leave for amendment to be moved to the bill under Rule 57(2) only in exceptional circumstances, and the lack of sufficient time to allow compliance with that Rule shall not by itself constitute an exceptional circumstance; and
(c) a Member shall not, without the permission of the President or the Chairman, to be given only in exceptional circumstances, make a speech lasting more than 3 minutes but the restriction shall not apply to designated public officers.".
PRESIDENT (in Cantonese): I now propose the question to you and that is: That the amendments moved by Mrs Selina CHOW be made respectively to the Chinese version of the Rules of Procedure of the Provisional Legislative Council of the Hong Kong Special Administrative Region made on 12 April 1997 and the English version of the Rules of Procedure of the Provisional Legislative Council of the Hong Kong Special Administrative Region made on 3 May 1997 by this Council. Debate will now start. Does any Member wish to speak?
(No Member responded)
PRESIDENT (in Cantonese): If no Member wishes to speak, I think Mrs Selina CHOW need not reply.
(Mrs Selina CHOW indicated that she did not wish to reply)
PRESIDENT (in Cantonese): I now put the question to you and that is: That the motion moved by Mrs Selina CHOW be approved. Will those in favour please say "aye"?
(Members responded)
PRESIDENT (in Cantonese): Those against please say "no".
(Members responded)
PRESIDENT (in Cantonese): I think the "ayes" have it. The "ayes" have it.
NEXT MEETING
PRESIDENT (in Cantonese): In accordance with the Rules of Procedure, I now adjourn the Council until 2.45 am on Tuesday, 1 July 1997 at Meeting Room 201 (Eagle Suite) at level 2, Hong Kong Convention and Exhibition Centre Extension.
Adjourned accordingly at twenty minutes to Twelve o'clock.
Annex I
HONG KONG COURT OF FINAL APPEAL
(AMENDMENT) BILL 1997
COMMITTEE STAGE
Amendments to be moved by the Secretary for Justice
Clause Amendment Proposed
2(2) (a) By adding -
"(a) 加入 -
"高等法院" (High Court) 指由原訟法庭及上訴法庭組成的高等法院;".
(b) In the Chinese text, by renumbering paragraphs (a) and (b) as paragraphs (b) and (c).
(c) In paragraph (c) in the definition of ""Justice of Appeal" (上訴法院大法官)" , by deleting "(上訴法院大法官)" and substituting "(上訴法庭法官)".
(d) In the new paragraph (c) in the Chinese text, by deleting the definition of "High Court".
4 (a) By renumbering Clause 4 as Clause 4(1).
(b) by adding -
"(2) Sections 22(2) and 25(5) are amended by repealing "局" where it appears twice and substituting "會議".
Clause Amendment Proposed
(3) The definition of "Chief Justice" in section 2 is amended by repealing "(首席大法官)" and substituting "(首席法官)".
(4) Sections 5, 6, 11(a), 12, 13, 14, 16, 18, 40(1)(a), 42(4) and (5), 47(1) and (6) and 48(1) are amended by repealing "首席大法官" wherever it appears and substituting "首席法官".
(5) Sections 6(3), 7(3) and 12 are amended by repealing "上訴法院大法官" wherever it appears and substituting "上訴法庭法官".
(6) Sections 17, 19, 22, 23(1), 24, 25, 26, 27, 28, 31(a), 32(2) and (3), 33(1), 34, 35, and 37 are amended by repealing "上訴法院" wherever it appears and substituting "上訴法庭".
(7) Section 2 is amended -
(a) in the definition of "judge" by repealing "(大法官)" and substituting "(法官)";
(b) in the definition of "judge from another common law jurisdiction" by repealing "(其他普通法適用地區大法官)" and substituting "(其他普通法適用地區法官)";
(c) in the definition of "non-permanent judge" by repealing "(非常任大法官)" and substituting "(非常任法官)";
(d) in the definition of "non-permanent Hong Kong judge" by repealing "(非常任香港大法官)" and substituting "(非常任香港 法官)";
Clause Amendment Proposed
(e) in the definition of "permanent judge" by repealing "(常任大法官)" and substituting "(常任法官)".
(8) Sections 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 18, 19, 40(1)(b), 45(2) and 46 are amended by repealing "大法官" wherever it appears and substituting "法官".
(9) Section 12(4)(c) is amended by repealing "地方法院" and substituting "區域法院".".
7 (a) In proposed section 7A(1)(a), by deleting "大" where it appears three times.
(b) In proposed section 7A(1)(b), by deleting "基本法" and substituting "《基本法》".
8 (a) Clause 8(1) is amended by deleting "上訴法院大法官或原訟法庭大法官" and substituting "上訴法庭法官或原訟法庭法 官".
(b) Clause 8 is amended by adding -
"(1A) Section 12(2)(a) is amended by repealing "Chief Justice of the Supreme Court" and substituting "Chief Judge of the High Court".".
(c) Clause 8 is amended by adding -
"(2A) Section 12(3)(a) is amended by repealing "Chief Justice of the Supreme Court" and substituting "Chief Judge of the High Court".".
Clause Amendment Proposed
(d) Clause 8 is amended by adding -
"(4) Section 12 is amended by adding -
"(5) In subsections (2) and (3), a reference to a retired Chief Judge of the High Court, Justice of Appeal or judge of the Court of First Instance includes a reference to a retired Chief Justice, Justice of Appeal or judge of the Supreme Court before 1 July 1997.
(6) In subsection (4), a reference to a person never being a judge of the High Court, a District Judge or a permanent magistrate in Hong Kong includes a referencetoapersonneverbeingajudgeofthe
Supreme Court, the District Court or a permanent magistrate before 1 July 1997.".
18(1)(a) By adding "兩度出現的" after "廢除".
19 By deleting clause 19 and substituting -
"19. Transitional
(1) Section 49 is amended by being renumbered as subsection (1).
(2) Section 49 is amended by adding -
"(2) A reference to a final or interlocutory judgment of the Court of Appeal under section 22(1), and to a final decision of the Court of Appeal or the Court of First instance under section 31, includes a reference to similar judgments and decisions of the Court of Appeal and the High Court made before 1 July 1997.
Clause Amendment Proposed
(3) A reference in sections 23, 28, 32(2), 33(1) and 35 to the Court of Appeal or the Court of First Instance includes a reference to the Court of Appeal and to the High Court as they existed before 1 July 1997 for appeals that arise out of the extension made in subsection (2).".
Annex II
JUDICIAL SERVICE COMMISSION (AMENDMENT) BILL 1997
COMMITTEE STAGE
Amendments to be moved by the Secretary for Justice
Clause Amendment Proposed
Long title By deleting "敘" and substituting "敍".
1(1) By deleting "敘" and substituting "敍".
2 By deleting "司法人員敘用委員會條例" and substituting "《司法人員敍用委員會條例》".
New By adding -
"4A. Certain persons ineligible for appointment as members of the Commission
(1) Section 4 is renumbered as subsection (1).
(2) Section 4(1) is amended by adding "or the Regional Council" after "Urban Council".
(3) Section 4 is amended by adding -
"(2) The references to the Urban Council and the Regional Council in subsection (1) include a reference to the Provisional Urban Council and the Provisional Regional Council during their existence.".".
Clause Amendment Proposed
4 (a) By renumbering Clause 4 as Clause 4(1).
(b) By adding -
"(2) The definition of "commissioner for oaths" in section 2, sections 3(1)(a), (5B), (5D) and 9 are amended by repealing "首席大法官" wherever it appears and substituting "終審法院首席法官".
(3) Sections 4(a) and 14 are amended by repealing "局" and substituting "會".
(4) Section 13(1) is amended by repealing "局" and substituting "會議".".
5 (a) In the proposed section 7A(1), by deleting "而" and substituting "任而其", by deleting "委後" and substituting "委任後", and by deleting "早" and substituting "快".
(b) In the proposed section 7A(2), by deleting "欵" and substituting "款".
6 by deleting "of the Judicial Service Commission Ordinance".
7 (a) By adding a new paragraph (a) in the Chinese text and by adding -
"(b) by repealing "首席大法官" and substituting "終審法院首席法官"；
(c) by repealing "終審法院大法官" and substituting "終審法院法官"；".
Clause Amendment Proposed
(b) By renumbering paragraph (b) as paragraph (d).
(c) By adding -
"(e) by repealing "上訴法院大法官" and substituting "上訴法庭法官"；".
(d) By renumbering paragraph (c) as paragraph (f).
(e) By renumbering paragraph (d) as paragraph (g).
(f) By adding -
"(h) by repealing "地方法院" where it appears twice and substituting "區域法院"；".
(g) By renumbering paragraph (e) as paragraph (i).
New by adding -
"8. 修訂附表2
將"Second Schedule" 重編為 "Schedule 2"。".
8 (a) In the Chinese text, by renumbering Clause 8 as Clause 9.
(b) By deleting "凡以英文序數提述司法人員敘用委員會(第92章)的" and substituting "在《司法人員敍用委員會條例》(第92章)中，凡以英文序數提述".
Annex III
IMMIGRATION (AMENDMENT)(NO.3) BILL 1997
COMMITTEE STAGE
Amendments to be moved by the Secretary for Justice
Clause Proposed amendment
2(2) (a) By deleting paragraph (c) and substituting -
"(c) in paragraph (a)(ii) by repealing "a limit of stay" and substituting "any condition of stay";".
(b) By deleting proposed subparagraphs (v) and (vi) and substituting -
"(v) while employed as a contract worker, who is from outside Hong Kong, under a Government importation of labour scheme; or
(vi) while employed as a domestic helper who is from outside Hong Kong; or".
2(3) (a) By deleting proposed section 2(5) and substituting -
"(5) Subsection (4)(a) does not apply to a person -
(a) who acquired the right of abode in Hong Kong before 1 July 1997; or
(b) who remains in Hong Kong with the authority of the Director during the period from 1 July 1990 to 30 June 1997 inclusive after landing unlawfully and whom the Director may exclude from the application of subsection (4)(a).".
Clause Amendment Proposed
(b) By deleting proposed subsection (6)(b) and substituting -
"(b) whether he has habitual residence in Hong Kong;".
3 In proposed section 7A(1)(b), by deleting "which may include a limit of stay".
4(2) (a) In proposed paragraph (ia), by adding "continuously" after "Hong Kong".
(b) In proposed paragraph (ib), by deleting "has settled" and substituting "is settled".
(c) In proposed paragraph (id), by deleting "ceased to be ordinarily resident in" and substituting "been absent from".
5 By deleting clause 5.
6 (a) In paragraph 1(1) of proposed Schedule 1 in the definition of "中國公民" (Chinese citizen), by deleting "《有關《中華人民共和國國籍法》在香港特別行政區實施的解釋》" and substituting ""關於《中華人民共和國國籍法》在香港特別行政區實施的幾個問題的解釋"".
(b) In paragraph 1(2)(c), by deleting "in Hong Kong only in accordance with" and substituting "only in Hong Kong under an order made by a Court in Hong Kong under".
(c) In paragraph 1(3)(a), by deleting "Hong Kong Special Administrative Region permanent resident" and substituting "permanent resident of the Hong Kong Special Administrative Region".
Clause Amendment Proposed
(d) In paragraph 1(3)(b), by deleting "the Hong Kong Special Administrative Region" and substituting "Hong Kong".
(e) In paragraph 1(5), by deleting "has settled" and substituting "is settled".
(f) In paragraph 1(5)(b), by deleting "restriction on the period" and substituting "limit".
(g) In paragraph 2(a), by deleting "has settled" and substituting "was settled or had the right of abode".
(h) In paragraph 2(c), by deleting "has" and substituting "had".
(i) In paragraph 3(1)(a) -
(i) by deleting "before or after the establishment of the Hong Kong Special Administrative Region";
(ii) by deleting subparagraphs (iii) and (iv) and substituting -
"(iii) whether he has a reasonable means of income to support himself and his family;
(iv) whether he has paid his taxes in accordance with the law;".
(j) In paragraph 3(1)(b) -
(i) by deleting "before or after the establishment of the Hong Kong Special Administrative Region";
(ii) by deleting "18" and substituting "21".
(k) In paragraph 3(1)(c), by deleting "have settled" and substituting "be settled".
Clause Amendment Proposed
(l) In paragraph 3(2), by deleting "in" where it appears first and substituting "of".
(m) In paragraph 5(1)(b), by deleting "18" and substituting "21".
(n) In paragraph 5(2), by adding "in the place" before "lies".
(o) By deleting paragraph 5(3) and substituting -
"(3) A person under 21 years of age born in Hong Kong on or after 1 July 1997 to a parent who is a permanent resident of the Hong Kong Special Administrative Region under paragraph 2(f) at the time of the birth of the person is taken to have the status of a permanent resident of the Hong Kong Special Administrative Region under paragraph 2(f) if, but for this subparagraph, the person has no right of abode in any place including Hong Kong.
(4) The person on attaining the age of 21 years ceases to be a permanent resident of the Hong Kong Special Administrative Region under paragraph 2(f) and may apply to the Director for the status of a permanent resident of the Hong Kong Special Administrative Region under paragraph 2(d) at any time.
(5) Section 7A applies to a person who ceases to have the status of a permanent resident of the Hong Kong Special Administrative Region under this paragraph".
(p) In paragraph 6(a), by deleting "had settled" and substituting "was settled".
(q) In paragraph 6(b), by deleting "have settled" and substituting "be settled".
(r) In paragraph 6(c), by deleting "have settled" and substituting "be settled".
Clause Amendment Proposed
(s) Paragraph 6 is renumbered as paragraph 6(1).
(t) In paragraph 6, by adding -
"(2) A person who is of Chinese nationality and had a right of abode in Hong Kong before the establishment of the Hong Kong Special Administrative Region continues to enjoy the right of abode in Hong Kong as long as he remains a Chinese citizen.".
(u) In paragraph 7, by adding "A" before "permanent".
(v) In paragraph 7, by deleting "the Hong Kong Special Administrative Region" where it appears the second time and substituting "Hong Kong".
(w) By deleting paragraph 7(b) and substituting -
"(b) being a person falling within the category in paragraph 2(f), has been absent from Hong Kong for a continuous period of not less than 36 months after he obtained the right of abode in any place other than Hong Kong and has ceased to have ordinarily resided in Hong Kong.".
(x) In paragraph 7, by adding ""." at the end.
7 By deleting clause 7.
Annex IV
OATHS AND DECLARATIONS (AMENDMENT) BILL 1997
COMMITTEE STAGE
Amendments to be moved by the Secretary for Policy Co-ordination
Clause Proposed Amendment
3 By adding -
"(3) Section 2 is amended in the definition of "監誓員", by repealing "首席大法官" and substituting "終審法院首席法官".".
9 (a) Clause 9 is amended being renumbered as subsection (1).
(b) Clause 9 is amended by adding -
"(2) Section 14(2) is amended by repealing "one of the forms" where it appears twice and substituting "the form".".
13(1) By adding "廢除"議"而代以"成"," before "及".
13(3) By adding "廢除兩度出現的"議員" 而代以"成員", "after "代以 "會議",".
17(3)(a) By adding "廢除"議"而代以"成"," before "及".
Clause Amendment Proposed
17(3)(b) By adding "廢除"議"而代以"成","after" "會議",".
17(4)(a) (a) By deleting "局" where it appears twice and substituting "局議".
(b) By deleting "會議" where it appears twice and substituting "局議成".
18(5) (a) In proposed Part VI, by deleting "討論內容" and substituting "所討論的內容及情況以".
(b) In proposed Part VII, by deleting "議程" and substituting "討論的內容及情況".
18(8) By deleting subclause (8) and substituting -
"(8) Part I to Schedule 3 is amended-
(a) by adding "Chief Judge of the High Court" before "Judge of the High Court";
(b) by repealing "上訴法院大法官" and substituting "上訴法庭法官";
(c) by repealing "High Court" where it appears the second and third times and substituting " Court of First Instance";
(d) by repealing "Supreme" and substituting "High";
(e) by repealing "高等法院特委大法官" and substituting "原訟法庭特委法官";
Clause Amendment Proposed
(f) by repealing "高等法院暫委大法官" and substituting "原訟法庭暫委法官".
(8A) Part II to Schedule 3 is amended -
(a) in the heading, by repealing "HIGH COURT" and substituting "COURT OF FIRST INSTANCE";
(b) by repealing "首席大法官" and substituting "終審法院首席法官";
(c) by repealing "終審法院常任大法官"; and substituting "終審法院常任法官";
(d) by repealing "終審法院非常任香港大法官" and substituting "終審法院非常任香港法官";
(e) by repealing "終審法院其他普通法適用地區大法官" and substituting "終審法院其他普通法適用地區法官";
(f) by repealing "High Court" where it appears twice and substituting "Court of First Instance";
(g) by repealing "高等法院暫委大法官" and substituting "原訟法庭暫委法官";
(h) by repealing "地方法院" where it appears twice and substituting "區域法院".".
