PLC Paper No. CB(2) 48
Ref : CB2/BC/1/97

Paper for the House Committee meeting on 18 July 1997

Report of the Bills Committee on
Hong Kong Special Administrative Region Passports Bill

Purpose

This paper reports on the deliberations of the Bills Committee on the Hong Kong Special Administrative Region Passports Bill and seeks members�support for the Bill to resume its Second Reading debate on 23 July 1997.

The Bill

2. Introduced into the Provisional Legislative Council on 9 July 1997, the Bill seeks to provide for the issue, amendment and cancellation of the Hong Kong Special Administrative Region (HKSAR) passports.

3. The Bill is to implement Article 154 of the Basic Law, which provides that the Central People Government shall authorize the Government of the HKSAR to issue, in accordance with law, passports of the HKSAR of the People Republic of China (PRC) to all Chinese citizens who hold permanent identity cards of the Region, and travel documents of the HKSAR of the PRC to all other persons lawfully residing in the Region.

4. The Bill, if enacted, shall be deemed to have come into operation on 1 July 1997 in order to tie in with the effective date of the authorization for the HKSAR Government to issue HKSAR passports in accordance with Article 154 of the Basic Law.

The Bills Committee

5. At the House Committee meeting held on 11 July 1997, members decided that a Bills Committee should be formed to study the Bill. Twenty members joined the Bills Committee. The membership list of the Bills Committee is in Appendix.

6. Under the chairmanship of Hon Howard YOUNG, the Bills Committee has held two meetings with the Administration.

Findings and deliberations of the Bills Committee

7. The gist of findings and deliberations of the Bills Committee on the Bill is summarized below.

Legal basis to issue passports prior to enactment of the Bill and retrospective effect of the Bill

8. The Bills Committee has noted that the Director of Immigration (Director) has been issuing HKSAR passports since 3 July 1997. The Bills Committee has also noted that clause 1(2) of the Bill provides that the Bill, if enacted, shall be deemed to have come into operation on 1 July 1997. The Committee has questioned the legal basis on which the Director issued passports prior to the enactment of the Bill, and whether in the absence of the retrospective clause, the validity of such HKSAR passports issued would be affected.

9. The Administration has explained that Article 154 of the Basic Law which came into force on 1 July 1997, provides for authorization of the HKSAR Government to issue, in accordance with law, passports of HKSAR to all Chinese citizens who hold permanent identity cards of the Region, and travel documents of HKSAR to all other persons lawfully residing in the Region. The Bill provides for the detailed implementation arrangements for the better carrying out of this provision. There is no question about the validity of passports issued prior to the enactment of the Bill. The proposal for the Bill to take retrospective effect from 1 July 1997 would provide for better protection for such passport holders and uniformity of implementation details before and after the Bill passage, such as the amendment, cancellation and other details relating to the issue of passports. In practical terms, if clause 1(2) is not passed, there would only be an impact on fees collected in connection with applications for passports.

10. Some members, however, point out that Article 154 clearly specifies that the HKSAR Government shall issue passports in accordance with law. There was no local legislation on the issue of passports before the enactment of the Bill. In response, the Administration has advised that, according to legal advice, the expression n accordance with law�is used to render a number of different expressions in the Basic Law. It is intended that the particular activity or function will be subject to such law including the common law, which applies either generally or specifically, but that there is no obligation to enact specific legislation. In the context of Article 154, it is only necessary to have express statutory provision for the charging of fees. Some members still have doubt about the interpretation of the expression n accordance with law� The Bills Committee agrees that the issue be follow-up by the relevant panel.

11. Some members point out that the Bill should have been introduced into the Provisional Legislative Council prior to 1 July 1997 so that it would have been scrutinized and included in the Hong Kong Reunification Ordinance (110 of 1997) to avoid any possible doubt on the point of passport legitimacy, rather than having to rectify the situation now.

Appeal mechanism

12. The Bills Committee has expressed concern that there is no provision for review or appeal mechanism in the Bill. The Administration has explained that a person may seek judicial review of a decision made by the Director relating to the issue, amendment and cancellation of HKSAR passports. A person aggrieved by the decision of the Director may lodge complaints to the Secretary for Security, the Chief Secretary for Administration and the Ombudsman on administrative matters.

13. The Bills Committee points out that there are stringent requirements for seeking judicial review. The Committee considers it necessary to put in place an appeal mechanism in view of the fact that some grievances may be trivial and may not pass the test for judicial review. An appeal mechanism would reinforce the perception and practice that Hong Kong residents, as long as they are qualified, could easily acquire a passport or travel document without undue hindrance.

14. On further discussion, the Administration has agreed to move Committee stage amendments (CSAs) to provide for an appeal mechanism on the decision made by the Director. Details of the appeal procedures will be made in the form of subsidiary legislation. The Administration has undertaken to mention during the resumption of the Second Reading debate that the necessary subsidiary legislation would be introduced into the Council before the end of 1997. The Administration has also undertaken to consult the relevant panel on its proposed appeal mechanism

Conditions for issue of passport (clause 3)

15. Under the Bill, the Director may, on application, issue a HKSAR passport to an applicant who is a Chinese citizen, a permanent resident of HKSAR and is a holder of a valid permanent identity card containing a statement that the holder has the right of abode in Hong Kong.

16. As to whether ethnic Chinese holding a foreign passport would be eligible for the issue of HKSAR passport, the Administration has clarified that according to the Nationality Law of PRC and the xplanations of Some Questions by the Standing Committee of the Chinese National People Congress concerning the Implementation of the Nationality Law of PRC in HKSAR�adopted by the Standing Committee on 15 May 1996, all Hong Kong residents of Chinese descent are Chinese citizens. Those who have settled abroad and acquired a foreign nationality can apply to change their nationality by making a declaration of change of nationality to the Immigration Department. If the person chooses not to make that declaration, he would be treated as a Chinese citizen; and if he is a permanent resident of HKSAR, he would be eligible for a HKSAR passport. For persons who had obtained British nationality through the British Nationality Selection Scheme, they would still be considered as Chinese citizens and be eligible for HKSAR passports. However, those who have changed their nationality and successfully declared a change to Immigration Department would no longer be eligible for a HKSAR passport.

Application outside Hong Kong (clause 8)

17. In response to the Bills Committee, the Administration has explained that in some situations, the Director would need to specify the place at which an applicant collects his passport where the application is made outside Hong Kong. Members reckon that flexibility should be given for the applicant to collect his passport at a place he wishes if it is practicable to do so. The Administration has agreed to move CSAs to that effect.

Cancellation of passport (clause 9)

18. The Bills Committee has expressed concern that, under the amended version of clause 9(1), the Director may cancel a passport as long as the Director has reasonable cause to believe that those circumstances as referred to in subclause (1)(a), (b) and (c) exist. The Committee has suggested that more stringent conditions should be imposed, for example, there should be sufficient proof of those circumstances before the Director could exercise his power to cancel a passport so that passports could not be cancelled lightly.

19. The Administration has agreed to introduce amendments to the effect that the Director may cancel a passport if the Director is satisfied on reasonable ground that those circumstances as referred to in the subclause exist.

False Declarations

20. In response to members�enquiries on the absence of a penalty provision for obtaining a passport by means of false or misleading information under the Bill, the Administration has explained that such a provision is not included in the Bill as section 42 of the Immigration Ordinance (Cap. 115), which provides for penalty for making false statements or representations when applying for a passport, is considered to be adequate.

Committee stage amendments

21. Apart from the Committee stage amendments mentioned above, the Administration has proposed some technical amendments to the Bill. The Committee stage amendments to be moved by the Administration are under preparation.

Recommendations

22. The Bills Committee recommends that :

1. with the approval of the President, the Second Reading debate of the Bill be resumed at the Provisional Legislative Council meeting on 23 July 1997; and
2. the Bill be deemed to take effect from 1 July 1997 to tie in with the authorization granted in the Basic Law, to avoid legal arguments about the validity of passports already issued since 3 July 1997, to allow the fees already collected for the service in the interim to be credited to the Treasury and to provide for uniformity of implementation details before and after the enactment of the Bill.

Advice sought

23. Members are invited to support the recommendations of the Bills Committee at paragraph 22 above.

Provisional Legislative Council Secretariat
18 July 1997