Provisional Legislative Council

PLC Paper No. CB(1) 1068

Ref : CB1/SS/11/97

Paper for the House Committee Meeting
on 6 March 1998

Report of the Subcommittee on
Mass Transit Railway (Transport Interchange) Regulation and Resolution under section 25 of the Mass Transit Railway Corporation Ordinance (Cap. 270)

Purpose

The paper reports on the deliberations of the Subcommittee on Mass Transit Railway (Transit Interchange) Regulation ("the Regulation") (L.N. 89 of 1998) and Resolution under section 25 of the Mass Transit Railway Corporation Ordinance (Cap. 270).

2. The Regulation and the Mass Transit Railway (Transport Interchange) Bylaw ("the Bylaw") made by the Mass Transport Railway Corporation ("the Corporation") under section 25 of the Mass Transit Railway Corporation Ordinance (Cap. 270) provide the legal framework for the operation and control of transport interchanges for the railway.

Mass Transit Railway (Transport Interchange) Regulation

3. The Regulation, provides for, inter alia, the following matters:

1. requiring the Corporation to provide roads and transport facilities for transport interchanges and giving the Corporation the requisite powers to perform its functions under the Regulation;

2. empowering the Commissioner for Transport to exercise control over the operation of transport interchanges by requiring the Corporation to obtain the prior approval of the Commissioner before the Corporation may erect or display or place any prescribed traffic signs, prescribed light signals, or prescribed road markings; designate areas within a transport interchange as parking spaces, car parks, taxi ranks, bus stops, public light bus stands, prohibited zones and restricted zones; and

3. empowering the Commissioner for Transport to give directions to the Corporation with which the Corporation shall comply, failing which the Commissioner can take the appropriate action and recover the costs therefor from the Corporation.

4. The Regulation was gazetted as subsidiary legislation on 13 February 1998 and tabled in the Provisional Legislative Council on 18 February 1998.

Mass Transit Railway (Transport Interchange) Bylaw under section 25 of the Mass Transit Railway Corporation Ordinance (Cap. 270)

5. The Bylaw provides for, inter alia, the following:

1. the application of the Bylaw to all persons and vehicles within a transport interchange;

2. control and regulation of vehicular and pedestrian traffic in a transport interchange;

3. the provision and regulation of use of car parks and parking spaces in a transport interchange;

4. the use of the transport interchanges by franchised buses, public light buses and taxis;

5. the power of the Corporation to appoint authorized persons to enforce provisions of the Bylaw and the powers of such authorized persons;

6. fixed penalties for certain traffic contraventions relating to parking; and

7. penalties for offences under the Bylaw which range from a fine at $500 to $5,000 and 6 months imprisonment.

6. The Bylaw will be submitted to the Provisional Legislative Council for approval by way of a resolution.

The Subcommittee

7. Members agreed at the House Committee meeting on 13 February 1998 to form a Subcommittee to study the Bylaw. At the House Committee meeting on 20 February 1998, Members decided that the same Subcommittee should also scrutinize the Regulation. Mr CHAN Kam-lam was elected Chairman of the Subcommittee. The Subcommittee held two meetings with the Administration. A membership list of the Subcommittee is at the Appendix.

8. To enable the Subcommittee to study the Bylaw in detail, the Administration withdrew its notice of moving the resolution, which originally was intended for the Council meeting on 25 February 1998, until after the Subcommittee has completed its deliberations.

Deliberations of the Subcommittee

9. Members have found the Regulation in order and focused on the examination of the Bylaw, in particular, the parts on offences inside car parks, detention and disposal of vehicles, fixed penalty as well as exclusions and limitations of liabilities.

Offences inside car park

10. Members in general consider that section 15(1) of the Bylaw too strict. A person despite possessing a good reason to enter a car park (e.g. collecting his own belongings from his car), may easily be charged with an offence if no prior permission is obtained.

11. The Corporation explains that different from private premises, the transport interchanges, as stipulated in the land grant, have to be made accessible by members of the public. Together with section 57, under which the Corporation has to accept certain liability in respect of any loss of or damage caused to a vehicle inside a transport interchange, the Corporation finds it necessary to include this provision to empower the management to impose certain restriction on access to the car park for security reason. However, to limit the disturbance brought to those who need to enter a car park for other reasonable causes, the Corporation agrees to add section 15(1)(d) providing that a person who reasonably requires to go to any part of a car park can enter the car park without the permission of an authorized person.

Detention and disposal of vehicles

12. Section 34 provides that any vehicle which has been wheel-clamped or removed from a transport interchange may be detained by the Corporation and the Corporation may sell or dispose of the vehicle by public auction or otherwise and apply the proceeds, if any, from the sale or disposal of the vehicle, among others, in payment of any administrative charges, costs and expenses as may be incurred by the Corporation, and any remaining balance shall be paid to the owner of the vehicle. However, if the owner does not make a claim before the expiry of 12 months from the date of the sale or disposal, any balance shall become the property of the Corporation.

13. In considering the reason for not passing the remaining balance to the Government instead, members have noted that there is similar provision in the existing Mass Transit Railway By-laws (Cap. 270 sub. leg.) under which the expiry period for claiming any remaining balance from the sale or disposal of a vehicle is only six months. There is even no provision in determining such expiry period in government car parks. In this respect, the Administration is of the view that it would be more appropriate to amend the proposed provision of the Bylaw when a comprehensive review of provisions of this nature, for the Corporation as well as other public transport organizations, is conducted.

Fixed penalty

14. Members have noted that the Corporation intends to make contravention of a section relating to illegal parking within the transport interchanges an offence and to make the proceedings in dealing with such contravention criminal. Members consider that under the existing Fixed Penalty (Traffic Contraventions) Ordinance (Cap. 237), the proceedings in respect of such contravention are not criminal in nature. It is therefore not appropriate for the Corporation to make such contravention a kind of criminal offence in the interchange areas. Members are of the view that the Corporation’s move to make illegal parking subject to both criminal proceedings and fixed penalty might create confusion over the co-relation between fixed penalty and civil debt.

15. The Corporation’s explanation is that having regard to the strategic importance of the transport interchanges and the heavy traffic flow within the area, the Corporation needs to adopt a heavy penalty upon offenders in order to maintain efficient management of the interchanges. Furthermore, the criminal proceedings under the proposed provisions of the Bylaw in respect of such an offence are simpler and less time-consuming. Therefore, it is the original legislative intent to make such contravention a criminal offence. However, to be in line with the Fixed Penalty (Traffic Contraventions) Ordinance (Cap. 237) and the Housing (Traffic Contraventions) (Fixed Penalty) Bylaw (Cap. 283 sub. leg.), the Corporation agrees to amend the relevant provision as proposed by members.

Exclusions and limitations of liabilities

16. Members have noted that under sections 54-56 of the Bylaw, the Corporation shall not be held responsible for any loss of or damage caused to a vehicle inside a transport interchange or a vehicle which has been wheel-clamped or removed from a transport interchange. Yet, the Corporation will accept liability up to the extent imposed upon it under the provisions of the Control of Exemption Clauses Ordinance (Cap. 71). Nevertheless, members also noted that Cap. 71 only applies to terms of a contract or notices instead of to a statutory provision, and the reference drawn to provisions of Cap. 71 might give rise to future challenge in Court. Disregarding whether Cap. 71 is applicable, members in general consider that the Corporation should shoulder responsibilities for damages resulting from its mismanagement.

17. The Corporation holds the view that since the Corporation has no control over the public’s access to the transport interchanges, it is reasonably necessary to limit the Corporation’s liability in respect of any claim for damage to vehicles inside a transport interchange. Moreover, it would not be fair if the Corporation has to accept unlimited liability despite reasonable care has been exercised by the Corporation.

18. To strike a balance between the benefit of the Corporation and the interest of the public, the Corporation agrees to state clearly in the Bylaw that the exclusions and limitations shall be subject to control. To make the provisions of Cap. 71 work in the Bylaw, the Corporation agrees to amend section 57 by providing that sections 54, 55 and 56 shall be treated as if they were contract terms or notices under the Control of Exemption Clauses Ordinance (Cap. 71).

Conclusion

19. The Administration and the Corporation accept the Subcommittee’s views and agree to amend the relevant provisions of the Bylaw accordingly.

Recommendation

20. Subject to the Administration’s amendments as mentioned above, the Subcommittee supports the Regulation and the Resolution under section 25 of the Mass Transit Railway Corporation Ordinance (Cap. 270) and agrees that the Resolution be moved as soon as possible.

Advice Sought

21. Members are invited to note the deliberations of the Subcommittee and support the recommendation at paragraph 20 above.

Provisional Legislative Council Secretariat
4 March 1998

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Appendix

Provisional Legislative Council

Subcommittee on
Mass Transit Railway (Transport Interchange) Regulation and Resolution under section 25 of the Mass Transit Railway Corporation Ordinance (Cap. 270)

Provisional Legislative Council Secretariat
23 February 1998