PLC Paper No. LS 56

Paper for the House Committee Meeting of the Provisional Legislative Council on 5 December 1997

Legal Service Division Report on 2 Motions under section 31 of the Kowloon-Canton Railway Corporation Ordinance (Cap. 372) and a Motion under section 25 of the Mass Transit Railway Corporation Ordinance (Cap. 270)

The Secretary for Transport has given notice to move 3 separate motions at the Provisional Legislative Council meeting on 17 December 1997 to seek approval of the following bylaws -

  1. Kowloon-Canton Railway Corporation (Amendment) Bylaw 1997, made under section 31 of the Kowloon-Canton Railway Corporation Ordinance (Cap. 372);

  2. North-west Railway (Amendment) Bylaw 1997, made under section 31 of the Kowloon-Canton Railway Corporation Ordinance (Cap. 372); and

  3. Mass Transit Railway (Amendment) Bylaw 1997, made under section 25 of the Mass Transit Railway Corporation Ordinance (Cap. 270).

2. All these amending bylaws are required under the respective Ordinances to be approved by the legislature.

3. The main effect of the amendments is to adapt the relevant definitions and provisions relating to ticketing in the principal by-laws to make them applicable or extend them to smart cards as a form of ticket. This will facilitate the use of the Octopus, which was introduced into the local public railway systems in September 1997. The amendments are essentially technical in nature.

4. Some other minor miscellaneous amendments are also included, a more notable amendment being that to the Mass Transit Railway By-laws which gives a new power to an official of the Mass Transit Railway Corporation to demand the name, address and telephone number from a person suspected of committing an offence under the by-laws. A similar power has already been provided for in the by-laws of the two other railways.

5. In order to ensure that the motions are in order, clarification is being sought from the Administration on some general, specific and related aspects of the bylaws, including -

  1. whether the time-lapse between the introduction of the Octopus in September 1997 and the putting into place of amendments only some months later might have created any problems;

  2. the drafting of the draft approving resolutions and the bilingual texts of the amending bylaws; and

  3. whether the Chinese version of the Mass Transit Railway (Amendment) Bylaw 1997 has been properly made according to law.

Copy of a letter to the Administration raising a number of queries is attached.

Prepared by

CHEUNG Ping-kam, Arthur
Assistant Legal Adviser
Provisional Legislative Council Secretariat
2 December 1997


LS 56(01)

2869 9283
2877 5029

2 December 1997

By Fax (2877 0762)

Secretary for Transport
Transport Bureau
2nd Floor, East Wing
Central Government Offices
Central
Hong Kong.

(Attn: Mr Davey Chung)

Dear Sir,

Motions under the Kowloon-Canton Railway Corporation Ordinance and Mass Transit Railway Corporation Ordinance

I refer to the 3 motions which the Secretary for Transport has given notice to move in the Provisional Legislative Council on 17 December 1997 to seek its approval of the Kowloon-Canton Railway Corporation (Amendment) Bylaw 1997, North-West Railway (Amendment) Bylaw 1997 and Mass Transit Railway (Amendment) By 1997 respectively.

It is noted that in each of the 3 draft resolutions, the date on which the relevant bylaw was made is missing although the date is clearly available from the attached bylaw. Please ensure that a full set of the draft resolutions, with the dates duly inserted, is submitted as replacement.

In the draft speeches by the Secretary for Transport, it is stated that the amending bylaws are to provide for the use of smart cards as a form of fare payment in the respective railways and that the smart cards have already been introduced for those railways on 1 September 1997. It is also noted that although the relevant bylaws were made towards the end of July or at the beginning of August 1997 by the respective corporations, they have not yet been put into force pending approval by the Council. In other words, the introduction of the smart card scheme has not been synchronised with the updating of the relevant bylaws. Will this have any effect on the implementation of the scheme and in particular on the interest of passengers?

Your clarification is also sought on some specific aspects of the respective bylaws -

  1. Kowloon-Canton Railway Corporation (Amendment) Bylaw
    1. the word egislative�in the formula immediately under the title should begin with the capital 尞�

    2. are ticket�in the new definition of irst class ticket�in section 1(c) of the English text is simply rendered as � �in the Chinese text;

    3. the characters � �in the Chinese text seems to be superfluous;

  2. North-west Railway (Amendment) Bylaw
    1. should the beginning words of the amendment to by-law 6 to be read as nless having first paid ....... and unless obtaining .......�or as nless having first paid ....... and unless having obtained .......�

    2. what accounts for the placing of the addition to by-law 8(2) after nterfered with� which makes it different from how the corresponding provision is drafted in the new by-law 7(1)(d) of the Kowloon-Canton Railway Corporation By-laws and therefore from the effect of the latter?

  3. Mass Transit Railway (Amendment) Bylaw
    1. in the draft approving resolution, should section 25(2) instead of section 25 be cited so as to be more precise as in the 2 other draft resolutions;

    2. is there any need to amend the definition of 懀icket�to expressly include mart card�as in the other amending bylaws?

    3. will there be any problem over the ownership of the smart card after the amendments arising from by-law 17(1) and the corresponding by-law 7(1) of the North-west Railway By-laws;

    4. the Chinese version of the amending bylaw may not have been properly made as the copy supplied has not been affixed with the public seal of the Mass Transit Railway Corporation, nor does it appear to have been properly signed;

    5. paragraph 4 of the relevant draft speech creates the impression that the exercise simply seeks to update the principal by-laws to provide for the use of the smart cards. The more substantial amendments made by the amending bylaw in fact seek to confer a new power on an official to demand personal particulars from a suspected offender and to provide the corresponding sanctions;

    6. the opportunity has not been taken to express or amend the fines in or to levels in accordance with the practice introduced since 1994. The same is true with the other 2 sets of amending bylaws.

Yours faithfully,
(Arthur Cheung)
Assistant Legal Adviser

c.c. ASG3

Last Updated on 10 December 1997