Panel on Security (Minutes) 25 July 97

Provisional Legislative Council

PLC Paper No. CB(2)288
(These minutes have been
seen by the Administration)

Ref. : CB2/PL/SE/1

Provisional Legislative Council
Panel on Security

Minutes of Meeting held on Friday, 25 July 1997 at 4:30 pm in the Chamber of the Legislative Council Building

Members present :

Hon Mrs Selina CHOW, JP (Chairman)
Hon CHENG Kai-nam (Deputy Chairman)
Hon Allen LEE, JP
Hon Mrs Elsie TU, GBM
Hon Henry WU
Hon MA Fung-kwok
Hon HUI Yin-fat, JP
Hon CHAN Choi-hi
Hon Kennedy WONG Ying-ho
Hon Howard YOUNG, JP
Hon Ambrose LAU Hon-chuen, JP
Hon KAN Fook-yee

Members absent :

Hon CHEUNG Hon-chung
Hon Andrew WONG Wang-fat, JP
Hon IP Kwok-him
Hon Bruce LIU Sing-lee
Hon LAU Kong-wah
Dr Hon LAW Cheung-kwok

Public Officers attending :

Item II

Mrs Carrie YAU: Acting Secretary for Security
Mrs Regina IP: Director of Immigration
Mr K Y MAK: Assistant Director of Immigration
Mr Raymond FAN: Acting Deputy Secretary for Security 2

Item III

Mrs Carrie YAU: Acting Secretary for Security
Mr Mike Horner: Assistant Commissioner of Police (Service Quality)

Item IV

Mrs Carrie YAU: Acting Secretary for Security
Mr Peter WONG Hing-hong: Senior Assistant Solicitor General
Mr Philip CHAN: Acting Deputy Secretary for Security 1

Clerk in attendance :

Mrs Sharon TONG: Chief Assistant Secretary (2) 1

Staff in attendance :

Mr Jimmy MA: Legal Adviser (Item IV only)
Miss Salumi CHAN: Senior Assistant Secretary (2) 1

I. Date of next meeting and items for discussion
(PLC Paper No. CB(2) 76(01))
Members agreed to discuss the following items at the next regular Panel meeting to be held on Thursday, 21 August 1997 at 2:30 pm :

Liaison channel between the Administration and the People ' s Liberation Army stationed in Hong Kong (Item 1 of the list of outstanding items) ;
Follow-up on repatriation of Vietnamese migrants and resettlement of Vietnamese refugees (Item 2 of the list of outstanding items);
Hong Kong Special Administrative Region (HKSAR) passports
1. Progress on visa-free access for the HKSAR passport holders and the issue of HKSAR passports (Item 3 of the list of outstanding items) ;
2. Proposed appeal mechanism relating to the issue and cancellation of HKSAR passports (Item 4 of the list of outstanding items ;
3. As a related issue, the position on the issue of the British National (Overseas) passports, and whether there were channels between the Administration and the British Consulate in Hong Kong on matters relating to BNO passports ; and
4. As a related issue, situation of those non-ethnic Chinese in Hong Kong who were not eligible for any travel document, including the HKSAR passports, despite they had resided in Hong Kong for a continuous period of over seven years.

2.The Chairman said that members were welcome to forward to the clerk to Panel any relevant items that they would propose for discussion at future meetings. The Administration would be advised the same.

II. Arrival of eligible children from Mainland China who have the Right of Abode in Hong Kong under the Basic Law
(PLC Paper No. CB(2) 91(01))

Briefing by the Administration

3.Director of Immigration briefed members on some of the background information on the One-Way Permit (OWP) System which had been operating since 1982. She advised that the original daily quota of 75 was increased to 105 in 1993 and to 150 in 1995. The main objective for the increases was primarily to ensure an orderly arrival of eligible children who had the right of abode in Hong Kong under Article 24(2)(3) of the Basic Law. Out of the daily quota of 150, 45 were specifically reserved for eligible children.

4.Director of Immigration said that she had visited the Director of the Exit-Entry Administration Bureau (BEEA) of the Public Security Ministry on 16 July to discuss practical arrangements for implementing the Certificate of Entitlement Scheme and to urge the BEEA to increase the sub-quota for eligible children, within the overall daily quota of 150. The BEEA agreed in principle that the sub-quota should be increased, but indicated that they could only determine the precise number after an overall review. This was because an increase of the sub-quota for eligible children would inevitably reduce the number of OWPs for other categories of applicants, such as long separated spouses. Moreover, the BEEA needed to review the progress in implementing the Points System which had been effective since May 1997 before they could determine the increase of the sub-quota for eligible children. A decision would be made by the end of 1997.

Members ' views

5.Members noted that with a daily admission rate of 45, the estimated time-span for the 66 000 eligible children to come to Hong Kong would be about 4 years. They pointed out that as these eligible children had the right of abode in Hong Kong under the Basic Law, they should be admitted in a faster pace. To achieve this, some members raised the following suggestions :

To increase the overall daily quota of 150 ;
To increase the sub-quota for eligible children, e.g. from 45 to 80 or 90 ;
To assign a separate quota for eligible children instead of a sub-quota for them under the overall daily quota of 150 ;
Applications for OWPs to be approved by the Immigration Department (ID) of the Hong Kong Special Administrative Region (HKSAR), instead of the mainland authorities.

The Administration ' s responses

6.In response to members ' views, the Director of Immigration made the following points:

Response to the proposal on increasing the overall daily quota of 150
In setting the overall daily quota under the OWP System, the Administration had taken into consideration some important factors like the long term population policy of Hong Kong, the impact of the entry of mainland residents to Hong Kong for settlement on the local social support services, etc. At the moment, the Administration had no plans to increase the present quota which was set in 1995. However, this number would be reviewed in due course.
Response to the proposal on increasing the sub-quota for eligible children
The Administration recognized the need to increase the sub-quota for eligible children, within the limit of the overall daily quota of 150. In fact, the BEEA had already agreed in principle to increase this sub-quota and would make a decision on the precise number by the end of 1997.
Response to the proposal on assigning a separate quota for eligible children
The present arrangement of assigning a sub-quota for eligible children within the overall daily quota facilitated the Administration ' s control on the entry of mainland residents coming to Hong Kong for settlement. The Administration would review, from time to time, the need to increase the sub-quota. As indicated at (b) above, a decision on the increase of the sub-quota would be made by the end of 1997. If a separate quota not within the limit of the overall daily quota of 150 was to be assigned for eligible children, it could result in the upsurge in the number of eligible children coming to Hong Kong for settlement. This would pose a heavy burden on the local education system, medical and housing services etc. Moreover, the number of eligible children was ever increasing as more and more Hong Kong male residents got married in mainland China and had their children born in the mainland. It would be difficult for Hong Kong to absorb all the eligible children within a short period of time.
Response to the proposal that applications for OWPs to be approved by the Immigration Department of the HKSAR, instead of the mainland authorities
OWPs were issued to mainland residents under the relevant ordinance of mainland China. It was not appropriate to shift the authority for OWPs approvals from the mainland authorities to the ID of the HKSAR. Nevertheless, the ID had involved in the vetting procedure through involvement in the verification of the status of eligible children and their parents in Hong Kong to make sure that they had the right of abode under the Basic Law.

Further discussions
Sub-quota for eligible children and the Points System

7.Members were not convinced by the Administration ' s response. They considered that the sub-quota for eligible children should be increased as soon as possible, and not to wait till the end of 1997. In response to some members ' enquiries, Director of Immigration further elaborated that apart from the sub-quota of 45 for eligible children, the remaining 105 out of the total daily quota of 150 were allocated under the Points System to the following five categories of applicants for OWPs :

reunion of spouses ( 80% of 105 were allocated to applicants of this category and out of this number, 30 were allocated to spouses who had been separated over 10 years) ;
unsupported children coming to Hong Kong to seek dependence on their relatives (Applicants of this category might or might not be eligible children) ;
persons coming to Hong Kong to take care of their unsupported parents ;
unsupported elderly people coming to Hong Kong to seek dependence on their relatives and
inheritance of property.

8.Some members considered that as eligible children had the right of abode in Hong Kong under the Basic Law, their applications for coming to Hong Kong for settlement should have priority over other applicants, including the five categories of applicants under the Points System. Hence, the sub-quota for eligible children should be increased without delay.

9.Mr Howard YOUNG suggested to set up a point-deduction system under which applicants for OWPs who were found to have entered Hong Kong illegally would have their points deducted, so that their applications would be placed at the end of the queue. This proposal was to deter mainland residents from entering Hong Kong by illegal means. Director of Immigration advised that she was not in a position to comment on this suggestion as the Points System was operated by the mainland authorities.

Criteria for setting priority in the allocation of the sub-quota for eligible children

10.In response to some members ' enquiries, Director of Immigration advised that in allocating the sub-quota for eligible children, the mainland authorities gave priority to those family reunion cases. Normally, priority was given to those applicants who had parents in Hong Kong and among this group of eligible children, priority was given to the younger ones. Once the application for OWP from the mother of an eligible child was approved, the child would also be issued with OWP so that he/she could come to Hong Kong with his/her mother. The mainland authorities were considering to set objective and quantitative criteria for determining the priority in the allocation of the sub-quota for eligible children and would announce the details once available.

Authority to approve applications for OWPs

11.Mr Allen LEE said that he had received a number of complaints against corruption of the mainland authorities in processing applications for OWPs, resulting in a situation where meritorious applicants had to wait for years for approval of their applications. Having regard to the long queue under the first category (reunion of spouses) of the Points System, he queried whether 80% of 105 were really allocated to applicants of this category. He considered it essential for the ID to fight for the authority to approve applications for OWPs.

Next meeting with the mainland authorities

12. In response to Mr MA Fung-kwok ' s enquiry, Director of Immigration assured members that she would keep in touch with the mainland authorities and arrange for another meeting with them as soon as practicable.

Conclusion

13.The Chairman requested the Administration to reflect to the Chinese authorities members ' views on the subject and to strongly urge for the early increase of the sub-quota for eligible children. Director of Immigration agreed. She added that she would forward the minutes of this meeting and written views from members, if any, to the Chinese authorities.	Adm

III.Customer Satisfaction Survey of the Police Force
(PLC Paper No. CB(2)91(02))

Customer Satisfaction Survey

14.Assistant Commissioner of Police (Service Quality) advised that the Customer Satisfaction Survey (CSS) of the Police Force was conducted by an independent professional survey company. It was carried out by telephone interviews with randomly selected respondents who had been victims, witnesses or complainants of recent cases of non-violent crime, nuisance, dispute, minor assaults and traffic accidents involving damage only. A total of 804 people who had made reports to the Police in a 7-day period in February 1997 were interviewed.

15.In response to Mr Henry WU ' s enquiry, Assistant Commissioner of Police (Service Quality) added that one of the difficulties in conducting the CSS was to make sure that it did not contravene the Personal Data (Privacy) Ordinance. The Police Force had got clearance to contact the persons concerned before giving their names and telephone numbers to the survey company.

Follow-up action on the Survey

16.Members were pleased to note the encouraging results of the CSS. However, they were concerned about what follow-up action would be taken by the Police Force in making further improvements to its services.

17.Assistant Commissioner of Police (Service Quality) advised that the report on the CSS had been issued to divisional and district commanders. They were requested to improve on those highlighted areas of police stations that needed improvements. In the long run, the Police Force was about to engage a consultant for a period of 12 months. The consultant would work for the implementation of front-line customer service improvements in a police station. The North Point Police Station had been chosen for the project, the focus of which would be on areas of police-public interface. The object was to create a standard for the Police Force by producing a model police station for other police stations.

18.In response to the Chairman ' s enquiry, Assistant Commissioner of Police (Service Quality) further advised that the Police Force was selecting a consultant for the project. It was anticipated that the consultant would start working from mid-September and would take a maximum of 12 months to produce the model police station. Then the Police Force would set a schedule for other police stations to get up to the standard of the model police station.

Next survey

19.In response to the Chairman ' s enquiry, Assistant Commissioner of Police (Service Quality) advised that as a start, the Police Force planned to conduct the CSS in alternate years. Another survey, the Public Opinion Survey which was to identify the perception of the ' man in the street ' towards the Police Force and its performance, had been scheduled for the end of 1997. Then the CSS would be conducted again in 1998. With more experience in the future, the CSS would be conducted annually to measure improvements in services provided by the Police Force on an annual basis.

IV.Administrative guidelines on national security for the Police
(PLC Paper No. CB(2)76(02))

Briefing by the Administration

20.Acting Secretary for Security referred members to the PLC Brief on ' Administrative Guidelines on "National Security" in the Public Order Ordinance (POO) and the Societies Ordinance (SO) ' . She pointed out that the guidelines at Annex to the PLC Brief should be adopted for the application of the concept of ' national security ' in the context of the POO and that the application of the same concept in the context of the SO should be considered on a case by case basis. Under the POO, the Commissioner of Police (CP) or the police officers with the delegated authority had to make decision on the spot ; while under the SO, the Societies Officer had to consult the Secretary for Security before refusing to register or to exempt from registration a society or a branch.

Contents of the administrative guidelines

21.Members noted para. 2 of the administrative guidelines as follows :

' When deciding whether to take appropriate action on the ground of ' national security ' to regulate a public meeting or procession in progress, the Police Officer in charge may consider, among other things,

whether or not any act is likely to cause or lead to an imminent breach of the peace ; and
whether or not any person at the public meeting or procession is advocating separation from the People ' s Republic of China including advocacy of the independence of Taiwan or Tibet. '

"Imminent breach of the peace"

22.In response to the Chairman ' s enquiry, Legal Adviser quoted a precedent case of the Court of Appeal in the UK to explain what constituted a "breach of the peace" under the common law :

"There is a breach of the peace whenever harm is actually done or likely to be done to a person or in his presence to his property or a person is in fear of being so harmed through an assault, an affray, a riot, an unlawful assembly or other disturbance".

Legal Adviser added that the term "imminent" was not mentioned in the precedent case. However, under section 6(2) of the POO, the CP might take appropriate action "if he reasonably considers it to be necessary to prevent an imminent threat to the interests of national security or public safety, public order (ordre public) or the protection of the rights and freedoms of others.".

"Advocate"

23.In response to Mr MA Fung-kwok ' s enquiry, Legal Adviser explained that the term ' advocate ' was not defined in Hong Kong legislation. In general, the judge would interpret it in accordance with its ordinary and natural meaning. Acting Secretary for Security considered this approach appropriate.

24.Mr MA Fung-kwok, on behalf of Mr Kennedy WONG, asked why it was specifically mentioned in para. 2(b) of the administrative guidelines about "advocacy of the independence of Taiwan or Tibet" but not other places. Acting Secretary for Security advised that under the POO, ' "national security" meant the safeguarding of the territorial integrity and the independence of the People ' s Republic of China ' . The main concern was whether or not any person at a public meeting or public procession was advocating separation from the PRC, i.e. advocating independence of any places of the PRC. Taiwan and Tibet were quoted as examples for the purpose of illustration.

Application of the guidelines

The tests of reasonableness and necessity

25.In response to members ' enquiries, Acting Secretary for Security advised that under the POO, the CP might take action if he reasonably considered such action to be necessary in the interests of national security or public safety, public order (ordre public) or the protection of the rights and freedoms of others. In other words, he had to satisfy the tests of "reasonableness" and "necessity" before taking any action. In considering whether it was reasonable and necessary to do so, the CP had to take into account all the relevant factors and circumstances, including the two factors mentioned at para. 2(a) and (b) of the administrative guidelines. The nature and venue of the public meeting and the number of participants were examples of the relevant factors and circumstances to be considered.

26.Noting the word "and" between the two factors at para. 2(a) and 2(b) of the administrative guidelines, Mr KAN Fook-yee asked whether the CP would only take action if both of the two factors existed. Senior Assistant Solicitor General advised otherwise. He pointed out that the CP had to consider the two factors, among other things, before making his decision. This did not mean that he would only take action if both of the two factors existed. The ultimate test was whether the Police reasonably considered such action to be necessary in the interests of national security.

27.Mr KAN Fook-yee asked whether the CP would take action if only the factor at para. 2(a) of the administrative guidelines existed but not the one at para. 2(b) or, vice versa. The Administration advised that it would depend on the actual circumstances. In the former case (with the factor at para. 2(a) but not 2(b)), Acting Deputy Secretary for Security 1 advised that if there was a breach of the peace, the CP might take action on the ground of maintaining public order, not necessarily on the ground of safeguarding national security. In the latter case (with the factor at para. 2(b) but not 2(a)), Acting Secretary for Security advised that the CP might not take action if he considered that it was a peaceful public meeting.

Police officers with the delegated authority

28.In response to members ' enquiries, Acting Deputy Secretary for Security 1 advised that only police officers of senior ranks had the delegated authority to exercise the power of CP under the POO. As stated in para. 1 of the administrative guidelines, officers not below the rank of Senior Assistant Commissioner of Police had the delegated authority to regulate public meetings or public processions on the ground of "national security" at the time of notification. In respect of public meetings or public processions in progress, officers at or above the ranks of Chief Superintendent had to ensure that all the relevant factors had been taken into consideration before exercising the delegated authority.

Handling of cases

29.Some members asked whether the CP would prohibit a public meeting or a public procession on the ground of "national security" in cases as follows :

when a public meeting was in progress, one of the participants unknown to the organizer, put up slogans on the advocacy of the independence of Taiwan ;
when a public procession was in progress, four participants each wearing T-shirt with one of the four Chinese words advocating the independence of Taiwan printed on it respectively, walked side by side so that people could read the four Chinese words together.

30.Acting Secretary for Security said that it was difficult to comment on hypothetical cases. She assured members that the police officers on the spot would take all relevant factors and circumstances into consideration before making a decision.

Appeal channel

31.Acting Secretary for Security pointed out that any person, society or organization aggrieved by a decision of the CP might appeal to the Appeal Board constituted under section 44 of the POO and might apply for a judicial review.

Consultation

32.Mr MA Fung-kwok, on behalf of Mr Kennedy WONG, asked why the Administration had not conducted any public consultation before issuing the administrative guidelines. Acting Secretary for Security pointed out that the administrative guidelines were prepared to make it clear how the concept of "national security" under the POO and the SO should be applied. As a comprehensive consultation exercise had already been conducted in the drafting stage of the Public Order (Amendment) Bill 1997 and the Societies (Amendment) Bill 1997, the Administration did not consider it necessary to conduct another consultation exercise on the administrative guidelines. Nevertheless, the Administration had consulted the relevant government departments.

Conclusion

33.The Chairman concluded that the main concern of members and the public was that the application of the concept of "national security" under the POO would not restrict the freedom of speech. She requested the Administration to note this point and members ' views.

V.Close of meeting

34.The meeting ended at 6:40 pm.

Provisional Legislative Council Secretariat
8 September 1997

Provisional Legislative Council

Provisional Legislative Council Panel on Security

Provisional Legislative Council
Panel on Security