Bills Committee on Adaptation of Laws Bill 1998(Minutes) 15 Jan 99

Legislative Council

LC Paper No. CB(2) 1631/98-99
(These minutes have been seen
by the Administration)

Ref : CB2/BC/5/98

Bills Committee on Adaptation of Laws Bill 1998

Minutes of meeting held on Friday, 15 January 1999 at 10:45 am in Conference Room A of the Legislative Council Building Members present:

Hon Andrew WONG Wang-fat, JP (Chairman)
Hon Kenneth TING Woo-shou, JP
Hon Cyd HO Sau-lan
Hon Margaret NG
Hon Jasper TSANG Yok-sing, JP
Hon Ambrose LAU Hon-chuen, JP

Members absent:

Hon Ronald ARCULLI, JP
Hon James TO Kun-sun

Public Officers attending:

Security Bureau
Ms Mimi LEE: Principal Assistant Secretary for Security (Narcotics)
Mrs Sarah KWOK: Principal Assistant Secretary for Security B
Department of Justice
Mr YEN Yuen-ho, Tony: Law Draftsman
Mr J L ABBOTT: Senior Assistant Law Draftsman
Mr SUEN Wai-chung: Senior Assistant Law Draftsman
Ms Marie SIU: Senior Government Counsel
Correctional Services Department
Mr CHAN Kong-sang: Assistant Commissioner for Correctional Services
Hong Kong Police Force
Mr Henrique KOO Sii-hong: Chief Superintendent
Narcotics Bureau

Clerk in attendance:

Mrs Sharon TONG: Chief Assistant Secretary (2)1

Staff in attendance:

Miss Betty MA: Senior Assistant Secretary (2) 1 cMiss Connie FUNG; Assistant Legal Adviser 3

I. Meeting with the Administration

Outstanding issues

Adaptation of reference to "saving the rights of Her Majesty, Her Heirs and Successors"

Assistant Legal Adviser 3 (ALA3) said that at the request of the Bills Committee, an information paper setting out the nature of the rights of Her Majesty, etc. as referred to in the legislative provision on saving such rights was prepared (LS Paper No. LS 93/98-99). She then took members through the information paper. She said that a total of 142 Ordinances with such savings provision could be found. The nature of Ordinances containing the savings provisions were spelt out in paras. 5 to 7 of the information paper. These Ordinances could be found from Cap.1001 onwards. It appeared that the rights saved to Her Majesty, etc. might include, but not limited to, foreign affairs, title to lands in the colonies, precious metals in land granted by the Crown, reversion of lands to the Crown and the Crown's right to unclaimed property, etc.

2. ALA3 pointed out that there were two discrepancies between the proposed adaptation of the savings provision and Annex 3 of the Decision of the Standing Committee of the National People's Congress (NPC) on Treatment of the Laws Previously in Force in Hong Kong in accordance with Article 160 of the Basic Law. Firstly, according to the Chinese text of Annex 3 of the Decision of the Standing Committee of NPC, the rights of were to be saved. However, the Bill proposed to adapt the savings provision to make it read saving the rights of the "Central People's Government" (CPG) . Secondly, while Annex 3 of the Decision of the Standing Committee referred to saving "the rights of CPG or the Government of the Hong Kong Special Administrative Region (HKSAR) under the Basic Law", item 21 of Schedule 8 to the Interpretation and General Clauses Ordinance (Cap.1) substituted "and" for "or" in the above context. The proposed adaptation in the Bill used "and" which departed from the Standing Committee's Decision but was consistent with the version in Cap.1. She added that the word "or" was used in the above context in the adaptation of savings provision in other adaptation of laws bills.

3. ALA3 further said that before the reunification, the Royal Instructions provided the legal basis for requiring the inclusion of the savings provision in private bills. Such requirement had not been provided for in statutes after the reunification.

4. In response, Law Draftsman (LD) explained that the apparent inconsistency between the Standing Committee's Decision and Cap.1 was due to the adoption of different drafting approaches. Both references were having the same meaning, i.e. the provision affected neither CPG nor HKSAR Government. Regarding adopting "CPG" as the English version for , LD said that the Administration was of the view that the Standing Committee's Decision had set out the guiding principles for adapting the laws previously in force in Hong Kong. It did not necessarily mean that the legislation in Hong Kong had to be adapted mechanically and strictly by the exact wordings appeared in that Decision. The term was considered as not precise enough in the course of adaptation. In respect of the Ordinances which contained the savings provision, it appeared that the rights to be saved were in connection with the executive authorities. Given the term "CPG" was used in the Basic Law, "CPG" was adapted in this context.

5. In response to the Chairman, LD said that there was no official English version for Annex 3 of the Decision of the Standing Committee of NPC. The English version incorporated in the Laws of Hong Kong was for reference purpose only.

6. At the invitation of Miss Margaret NG, ALA3 said that the Legal Services Division was of the view that the term and "CPG" were not the same. According to the Constitution of the People's Republic of China (PRC), the State Council of PRC is CPG whereas there was no definition of in the Constitution. Should the rights of "CPG" be saved, the question would be whether the rights of other State organs, such as NPC and its Standing Committee were to be saved. In addition, the rights of State and NPC were referred to under the Basic Law. Hence, it appeared that the scope of was much wider than that of "CPG".

7. In response to Miss Margaret NG, LD said that the Administration concurred with the rights saved to Her Majesty, etc. as laid down in LS Paper No. LS93/98-99. LD added that the Administration was not absolutely certain about the definition of . To avoid ambiguity in the course of adaptation, the Administration had taken into account what the rights of Her Majesty were. It appeared that these rights were executive rights only and thus did not include NPC. Hence, "CPG" was considered to be the most appropriate adaptation in the context of the savings provision. Nevertheless, LD said that the Administration had no strong view to adapt reference to saving the rights of "Her Majesty, etc." by "the Central" . Should there be any ambiguity in the definition of "the Central", interpretation from the court might be resorted to.

8. Miss Margaret NG opined that in the event that the Administration was not certain about the definition of

, she was of the view that the term "Her Majesty, etc." should be adapted by

in Chinese and then the Administration should consider adopting an appropriate English translation for the term. Mr Ambrose LAU said that if the Standing Committee of NPC had been referring to CPG in its Decision, it would have spelt out expressly, hence he preferred to retain the term

as used in the Decision of the Standing Committee. The Chairman suggested that the Administration might consider adopting "central authorities" as the translation for

notwithstanding that he had no strong view on this issue. Members supported the suggestion and LD concurred.

Adm

9. At the invitation of the Chairman, LD highlighted the Administration's reply as contained in its paper (LC Paper No. CB(2) 1034/98-99(01)) to members' enquiry on whether similar savings provision was required for the private bills to be introduced in UK Parliament. LD said that such savings provision was required for private bills in UK. It should be noted that the rights to be saved were those of "Her Majesty, Her Heirs and Successors, all bodies politic and corporate and all others except such as were mentioned in the bill". The beneficiaries of the saving were anyone not specially mentioned in the private bill.

10. Referring to para.12 of LC Paper No. LS 93/98-99, the Chairman pointed out that notwithstanding the Royal Instructions ceased to apply upon reunification, the Private Bills Ordinance still existed. LD said that the inclusion of the savings provision in private bills after the reunification might be continued having regard to such requirement by convention. The Administration would examine whether the savings provision should be repealed at a later stage. Members agreed that the arrangement could continue for the time being.

Adaptation of reference to "Colonial Regulations"

11. Mr Abbot, Senior Assistant Law Draftsman (SALD(Abbott)) said that the Administration had put forward a definition in its paper (LC Paper No. CB(2) 1034/98-99(01)) which replaced the Colonial Regulations by specific reference to the Public Service (Administration) Order as follows -

"Public Service (Administration) Order" means -

the Public Service (Administration) Order 1997 (Executive Order No.1 of 1997);
the Public Service (Discipline) Regulation made under section 21 of that Order (and together with that Order published as S.S. No. 5 to Gazette No. 2/97); and
any other regulation made or any direction given under that Order

and in this definition a reference to an instrument is a reference to that instrument as amended from time to time.

SALD(Abbott) added that the amended term proposed would allow the term to include both future amendments to the existing Order and also any regulations made or directions given under that Order.

12. Miss Margaret NG said that she accepted the proposal since it addressed her concerns raised at previous meetings. The Chairman said that he would accept the proposal notwithstanding his disagreement with the issue of an executive order. He remarked that the Administration might consider formulating an ordinance for the administration of the public service so that any relevant provisions of the Colonial Regulations could be formulated into regulations made under that ordinance.

Section 17(3) of Juvenile Offenders Ordinance (Cap.226)

13. Principal Assistant Secretary for Security B (PAS/S(B)) said that two sets of rules had been made under section 17(3) of the Juvenile Offenders Ordinance, namely, the Juvenile Offenders (Visitation of Places of Detention) Rules and the Remand House rules. Section 2 of the Juvenile Offenders (Visitation of Places of Detention) Rules provided that justices of peace (JPs) and such other persons as might be appointed by the Chief Executive were appointed visitors of places of detention. The making of the Juvenile Offenders (Visitation of Places of Detention) Rules resulted in JPs being appointed as visitors of places of detention. The Administration was not aware of any other persons having been appointed as visitors under the same Rules. She added that while rules regarding the places of detention were to be subsidiary legislation, the inspection of places of detention might be effected under administrative arrangements.

14. Miss Margaret NG suggested to defer the discussion on the issue pending the deliberation of the Bills Committee on Adaptation of Laws (No.2) Bill 1998 on the interpretation of Article 56 of the Basic Law. In this connection, the Chairman proposed and LD agreed to hold a joint meeting of the Bills Committee on Adaptation of Laws Bill 1998 and the Bills Committee on Adaptation of Laws (No.2) Bill 1998 to discuss the interpretation of Article 56 of the Basic Law. The joint meeting was scheduled for 26 February 1999 at 8:30 am.

Clause-by-clause examination

Schedule 2 - Juvenile Offenders Ordinance (Cap.226) and its subsidiary legislation

15. Members raised no question on the proposed amendments to section 21 of the Ordinance as well as the Places of Detention (Juvenile Offenders) Appointment (Consolidation) Order, the Juvenile Offenders (Forms) Rules, the Juvenile Offenders (Visitation of Places of Detention) Rules and the Remand Home Rules.

Schedule 3 Prisons Ordinance (Cap.234) and its subsidiary legislation

Proposed addition of definition of "government regulations" and "relevant executive order" to section 2

16. Miss Margaret NG and the Chairman asked whether the proposed addition of "relevant executive order" was still in need having regard to the Administration's proposal to replace reference to "Colonial Regulations" by "Public Service (Administration) Order" and delete the definition of "relevant executive order". SALD(Abbott) said that there was no reference to "relevant executive orders" in the legislation prior to the adaptation. Instead, reference was made to the "Colonial Regulations". The Administration now agreed to replace reference to "Colonial Regulations" by reference to the existing executive order, i.e. PS(A)O. This could be achieved by a Committee Stage amendment to the Bill deleting the reference to "relevant executive order" and substituting it by "PS(A)O". He pointed out that the definition of the original "relevant executive order" and that of "PS(A)O" would have the same legal effect.

17. Miss Margaret NG asked whether the adaptation of "Regulations of Hong Kong Government" was necessary. SALD(Abbott) said that there were no such documents entitled "Regulations of the Hong Kong Government" in existence. Only an instrument known as the Government Regulations was available to regulate the public service. Thus there was a need to replace the term "Regulations of the Hong Kong Government" with a suitable term which included the Government Regulations and other similar administrative rules.

18. In response to Miss Margaret NG's further question on what "Regulations of Hong Kong Government" were, PAS/S(N) said that based on the information from the Civil Service Bureau, regulations known as the "Government Regulations" comprised seven Volumes. The term referred generally to those regulations promulgated by the Government relating to the administration of the public service or management of civil servants. The Chairman requested and PAS/S(N) agreed to provide information on what the seven Volumes of "Government Regulations" were after the meeting.

Adm

(Post-meeting note : The information was provided by the Administration vide LC Paper No. CB(2)1275/98-99(01) (the paper).)

19. PAS/S(B) supplemented that apart from the seven Volumes of "Government Regulations", there were other administrative rules or regulations, such as bureau/departmental circulars, circular memoranda, instructions, standing orders, or other administrative rules and regulations that might be issued from time to time by bureaux or departments, which supplemented "Government Regulations" and were relevant to the administration of the public service. Given the different types of instruments and the purposes for which they were issued, the Administration therefore proposed to adapt "Regulations of the Hong Kong Government" by a generic term which would cover these different administrative rules and regulations, and the possible introduction of any new rules and regulations in future.

20. Miss Margaret NG opined that if a term referred to a specific document before adaptation, a named document should be proposed for adaptation as far as possible. To ensure certainty of the reference of a term so that any person concerned could be directed to the specific document in question and identify clearly the source of the document in question, the Administration might consider reviewing the definition of "government regulations". She also suggested to replace the term "Regulations of the Hong Kong Government" by "Government Regulations" and define "Government Regulations" as "included any other administrative rules or instruments regulating the public service". Mr TSANG Yok-sing said that Miss NG's suggested definition would defeat the original meaning of "Government Regulations" if these regulations meant some specific documents. In this connection, Mr TSANG requested the Administration to provide details on what these regulations were. If these regulations did refer to specific documents, they should not be adapted by a generic term. LD said that the Administration would consider members' views, trace the background and relevant papers in respect of these government regulations and revert to the Bills Committee at the next meeting.

Adm

21. The Chairman opined that the seven Volumes of "Government Regulations" were formulated by the then Governor under the prerogative power. The legal basis of these regulations was questionable after the reunification. Hence, he considered that the promulgation of these government regulations as subsidiary legislation under a Public Service (Administration) Ordinance to be enacted by the legislature would be the best alternative.

22. In the light of the above discussion, Members agreed to defer the discussion on sections 20B(a), 20D(1)(a), 20E(1) and 20F of the Ordinance pending the Administration's response.

23. Members raised no questions on other proposed amendments, viz. sections 3, 9(b), 12(2), 12A(1), 12A(3), 12A(4), 22(2)(d), 22(2A), 23(1), 24(2), 24A, 25(1) and 25(3) of the Ordinance.

Prison Rules

Rule 188 - Prisoners awaiting trial

24. PAS/S(B) said that rule 188(1)(d), (da) and (e) was to give effect to the extradition arrangements before the reunification. After the reunification, the Extradition (Hong Kong) Ordinance, the Extradition Acts 1870 and 1873, and the Fugitive Offenders Act 1967 as extended to Hong Kong were no longer applicable. The existing extradition arrangement was effected under the Fugitive Offenders Ordinance (FOO) (Cap.503).

25. At the invitation of the Chairman, ALA3 said that the Chinese Extradition Ordinance ceased to apply upon reunification in accordance with the Decision of the Standing Committee of the National People's Congress. The Extradition (Hong Kong) Ordinance was repealed by virtue of section 28 of FOO upon its implementation on 25 April 1997.

26. The Chairman enquired about the rationale for not deleting sub-paragraphs (d), (da) and (e) of rule 188 when inserting sub-paragraph (db) into the rule. Miss Margaret NG asked whether sub-paragraph (db) had replaced sub-paragraph (d) entirely and whether there were any residual provisions which were not covered by the enactment of FOO. PAS/S(B) agreed to provide further information.

Adm

(Post-meeting note : The requested information had been set out in paragraphs 6 and 7 of the paper.)

Rule 257 - Investments

27. In response to Miss Margaret NG, PAS/S(B) said that the rule dealt with the investments or deposits of the Correctional Services Department (CSD) Welfare Fund. It was no longer applicable for the Secretary of State to be responsible for the investment of the Fund after the reunification. The existing arrangement was spelt out in sub-paragraph (a) of rule 257.

Rule 258 - Valuation of investments and Rule 259 - Realization of investments

28. Miss Margaret NG enquired about the rationale for the adaptation. In response, PAS/S(B) said that the rules dealt with the valuation of investments of CSD Welfare Fund. Given most of the investments of the Fund were carried out in the local market, it was therefore considered that adapting market price in "London" by "Hong Kong" was appropriate. Regarding the legislative intent for adopting "market price in London" as the valuation of investments under rules 258 and 259, PAS/S(B) undertook to provide further information after the meeting.

Adm

(Post-meeting note : The requested information had been set out in paragraphs 8 to 10 of the paper.)

Rule 260 - Temporary advances to the Fund

29. At the request of the Chairman, PAS/S(B) agreed to provide further information on what the "Joint Colonial Fund" was.

(Post-meeting note : The requested information had been set out in paragraphs 11 to 13 of the paper.)

30. Members agreed to defer the deliberations of rules 70, 139(2), 140(1) and 239(1)(q) pending the Administration response to members' views on the adaptation of "Regulations of the Hong Kong Government" by "government regulations".

31. Members raised no question on other proposed amendments, viz. rules 1A, 21(2), 31, 40(2), 46, 54, 67(6), 77(1), 77(2), 148(2), 167(1), 225, 226(2), 227, 229, 234, 235, 249(b)(ii), 250, 251, 253, 254(b), 255, 255AA, 255B(2), 255B(3), 255B(4), 255E, 255F, 255H, 255J, 255K and 264(3) of the Prison Rules.

Schedule 4 - Detention Centres Ordinance (Cap.239) and its subsidiary legislation

32. Members raised no questions on the proposed amendments to the Ordinance as well as the Detention Centres Regulations.

Schedule 5 - Drug Addiction Treatment Centres Ordinance (Cap.244) and its subsidiary legislation

33. Members raised no questions on the proposed amendments to the Ordinance as well as the Drug Addiction Treatment Centres Regulations.

Schedule 6 - Training Centres Ordinance (Cap.280) and its subsidiary legislation

34. Members raised no questions on the proposed amendments to the Ordinance as well as the Training Centres Regulations.

Schedule 7 - Rehabilitation of Offenders Ordinance (Cap. 297)

35. Members raised no questions on the proposed amendments to sections 6(4) and 9(2) of the Ordinance.

Item 2 of Part 1 of the Schedule

36. Although "cadet" was an obsolete rank in the Police Force, the Chairman and Miss Margaret NG considered that the proposed deletion was beyond the scope of the adaptation exercise. LD said that retaining the term "cadet" in the Ordinance would have no effect on its interpretation. He agreed not to repeal the term "cadet" in this adaptation of laws exercise.

Adm

37. Members raised no questions on other proposed amendments to Part 1 of the Schedule.

Schedule 8 - Prisoners (Release Under Supervision) Ordinance (Cap.325) and its subsidiary legislation

38. Members raised no questions on the proposed amendments to the Ordinance as well as the Prisoners (Release under Supervision) Regulations.

Schedule 9 - Drug Addicts Treatment and Rehabilitation Ordinance (Cap.326)

39. Members agreed to defer the discussion on section 3(1) and (2) of the Ordinance pending the deliberation of the joint Bills Committee meeting on the interpretation of Article 56 of the Basic Law.

40. Members raised no questions on other proposed amendments, viz. sections 4(1), 5(1), 6(b), 14 and 21(1) of the Ordinance.

Schedule 10 - Drug Trafficking (Recovery of Proceeds) Ordinance (Cap.405)

41. Members raised no questions on the proposed amendments to sections 2(12)(d) and 24C(6) of the Ordinance.

Section 23 - Disclosure of information held by public bodies

42. In response to Miss Margaret NG, Mr SUEN Wai-chung, Senior Assistant Law Draftsman clarified that section 23(10) of the Ordinance provided that the serving of an order was required for obtaining material in the possession of a public body in civil proceedings against the Crown. Since the proceedings spelt out in section 23(10) were not specific provisions within the meaning of the Crown Proceedings Ordinance which was pending adaptation, Miss NG was content with the proposed adaptation of section 23 of the Ordinance.

Section 28(1) - Enforcement of external orders

43. The Chairman enquired about the rationale for the proposed addition of "place" to the section. SALD(SWC) said that the Mainland could not be described as "a country or territory outside Hong Kong" after the reunification. PAS/S(N) added that "territory" could bear a number of meanings, such as having connotation of sovereignty, depending on the context in which it occurred.

44. Miss Margaret NG, however, considered that "territory" was a neutral term, and hence no adaptation was needed in this context. She requested the Administration to consider whether it was necessary to amend the English version of the reference to "country or territory" in section 28(1) of the Ordinance, and to review the Chinese version of "country or territory" if the reference in English was to be retained. SALD(SWC) responded that the Administration would look into the legal meaning of "territory" in this context and consider whether it was necessary to amend the reference to "country or territory".

Adm

45. The Chairman requested and the Administration agreed to provide information on the purpose of "a designated country" under section 28(1)(a) of the Ordinance.

Adm

(Post-meeting note : The requested information had been set out in paragraphs 14 to 16 of the paper.)

II. Date of next meeting

46. The next meeting was scheduled for 10 February 1999 at 8:30 am.

47. The meeting ended at 12:50 pm.

Legislative Council Secretariat
18 March 1999