Bills Committee on Adaptation of Laws (No.2) Bill 1998 (Agenda) 10 Dec 98

Legislative Council

LC Paper No. CB(2) 1527/98-99
(These minutes have been seen
by the Administration)

Ref : CB2/BC/6/98

Bills Committee on Adaptation of Laws (No.2) Bill 1998

Minutes of meeting held on Thursday, 10 December 1998 at 8:30 am in Conference Room A of the Legislative Council Building Members present:

Hon Andrew WONG Wang-fat, JP (Chairman)
Hon Cyd HO Sau-lan
Hon Margaret NG
Hon Jasper TSANG Yok-sing, JP
Hon Mrs Miriam LAU Kin-yee, JP
Hon Ambrose LAU Hon-chuen, JP

Members absent:

Hon James TO Kun-sun
Hon Ambrose CHEUNG Wing-sum, JP
Hon Christine LOH

Public Officers attending:

Mr Philip CHAN: Principal Assistant Secretary for Security E
Miss Betty CHEUNG: Senior Government Counsel
Mr John WONG: Senior Government Counsel

Clerk in attendance:

Mrs Sharon TONG: Chief Assistant Secretary (2)1

Staff in attendance:

Miss Betty MA: Senior Assistant Secretary (2) 1
Mr KAU Kin-wah: Assistant Legal Adviser 6

I. Meeting with the Administration

Matters arising - the Administration's response to comments raised by members

The Chairman said that the Administration had provided written response (LC Paper Nos. CB(2) 842/98-99(01) and (02)) to members' comments raised at the last meeting on 25 November 1998. Members raised no questions on the Administration's response.

Clause-by-clause examination

Schedule 7 - Firearms and Ammunition Ordinance (Cap.238) and its subsidiary legislation

Section 4(2) - Possession by exempted persons

2. Miss Margaret NG considered that "the Governor may by notice in the Gazette exempt any persons or class or description of persons" should be treated as one matter. She doubted whether the provision could be split having regard to the language and structure of the existing section 4(2).

3. Principal Assistant Secretary for Security E (PAS/S(E)) said that the Administration was of the view that an instrument would have legislative effect if it had general application to the public or a significant sector of the public as opposed to individuals. The reference to "the Governor" was adapted by "the Chief Executive in Council" in order to comply with Article 56 of the Basic Law. The notice made by the Chief Executive in Council under the proposed section 4(2)(b) was a piece of subsidiary legislation within the meaning of the Interpretation and General Clauses Ordinance (Cap.1). For a notice made under the proposed section 4(2)(a), since it did not have general application to the public or a sector of the public or a class, such notice did not have legislative effect. The proposed amendments to section 4(2) were in line with Article 56. He added that under existing section 4(3), the Commissioner of Police might grant an exemption to an individual.

4. Miss Margaret NG opposed to the proposal to split the existing section 4(2). She considered that, as required under Article 56, the Chief Executive should have consulted the Executive Council before making any important policy decisions even though such requirements were not spelt out clearly in the relevant legislation. Moreover, there seemed to be an anomaly that the Chief Executive might grant an exemption to any person by notice in the Gazette while the Commissioner of Police might grant such exemption in writing to any person. Though it was stated expressly in section 4(3) when and under what circumstances the Commissioner of Police could grant an exemption to an individual, the Chief Executive could definitely order him to do otherwise. Since granting of an exemption to an individual could be dealt with by the Commissioner of Police, an exemption to "any person or class or description of persons" should be treated as one class of persons. Exemption to be granted by the Chief Executive would therefore be of wider application and had to be made by a notice in the Gazette by the Chief Executive in Council. She further said that she was not certain whether the Administration's interpretation of Article 56 was appropriate. Further discussion on the interpretation of Article 56 was needed.

5. In response to the Chairman's enquiry on whether the Administration regarded a notice in the Gazette made under existing section 4(2) was a piece of subsidiary legislation, PAS/S(E) reiterated that the Administration would consider the following points to ascertain whether a notice in the Gazette was a piece of subsidiary legislation -

there was an express provision to say that a particular instrument was a piece of subsidiary legislation;
the instrument had general application to the public or a significant sector of the public as opposed to individuals;
the instrument extended or amended existing legislation; and
the instrument formulated a general rule of conduct.In this connection, he said that not every notice made under existing section 4(2) was regarded as a piece of subsidiary legislation. The determining factor was whether or not the notice had general application to the public. The Chairman expressed doubt on this interpretation.

6. Miss Betty CHEUNG, Senior Government Counsel (SGC(BC)) added that there were several types of notices in the Gazette which were broadly classified into legal notices and general notices. Legal notices would be regarded as subsidiary legislation which would then be incorporated into the Laws of Hong Kong after publication. General notices, e.g. on appointment of certain persons, were not regarded as having legislative effect. Notice in the Gazette made under the proposed section 4(2)(a) would be by way of a general notice whereas notice in the Gazette made under the proposed section 4(2)(b) would be by way of a legal notice.

7. Mrs Miriam LAU said that the issue on the treatment of "notice in the Gazette" was discussed at a meeting of the Panel on Transport. She agreed that in determining whether a notice in the Gazette was having legislative effect, one of the criteria was whether it had general application to the public. This was held in a number of common law cases. If a notice in the Gazette applied to the general public or certain classes or groups of the public, it would be treated as subsidiary legislation. Mrs LAU asked whether the then Governor had made any notices in the Gazette under the existing section 4(2) to exempt a person or a class or description of persons. In reply, PAS/S(E) said that there was no such record.

8. Assistant Legal Adviser 6 (ALA6) upon being asked by Miss Margaret NG's view expressed agreement with her view that the provisions in the existing section 4(2) should not be split.

9. SGC(BC) agreed that the provision in existing section 4(2) did not distinguish between the power of then Governor in exempting by notice in the Gazette two classes of persons, i.e. any person and any class or description of persons. Prior to reunification, the then Governor might make a piece of subsidiary legislation without consulting the Executive Council. Having regard to the implementation of the Basic Law, it was considered that the term "the Governor" should be adapted to "the Chief Executive in Council" in certain cases and "the Chief Executive" in other cases in order to comply with Article 56. The major factor of consideration was whether or not the notice in question had general application to the public or a significant sector of the public. PAS/S(E) pointed out that the provisions in existing section 4(2) were in fact dealing with two classes of persons, viz. any person and any class or description of persons. Members should not lump together the provisions under one heading.

10. Mrs Miriam LAU pointed out that the differences between the application of existing sections 4(2) and 4(3). Under section 4(3), exemption was granted in respect of the possession of specified arms and specified quantity of ammunition. Whilst section 4(2) applied generally or to such limited extent as the then Governor might specify.

11. To facilitate members' understanding of the legislative intent of section 4(2), Miss Margaret NG asked how sections 4(2) and 4(3) were applied respectively in the past, and whether any exemptions were granted respectively. She considered that the arbitrary power of the Chief Executive was a matter of concern. PAS/S(E) responded that according to the records available, the power under section 4(2) had not been used before by the then Governors. Records regarding the use of power under section 4(3) by the Commissioner of Police were yet to be found. An exemption of the possession of arms and ammunition was a decision not to be taken lightly, though it might not necessarily be an important policy decision within the meaning of Article 56.

12. Miss Cyd HO also wondered why the Administration proposed to adapt the existing section 4(2) by splitting it into sections 4(2)(a) and 4(2)(b).

13. The Chairman said that he was inclined to treat "any person and any class or description of persons" as one class of persons because different ways of dealing with exemption in respect of a class of persons and individuals were provided under existing sections 4(2) and 4(3) respectively. He considered that Article 56 was a description on what the Chief Executive would do before making important policy decisions. It did not necessarily mean that such requirement had to be stated expressly in the legislation. Otherwise, there would be an anomaly that a head of department and the Chief Justice of Court of Final Appeal might make a piece of subsidiary legislation without the need to consult the Executive Council while the Chief Executive had to do so. He wondered if the Chief Executive should consult the Executive Council prior to adopting measures with legislative effect in emergencies. The Administration was too inflexible in interpreting Article 56.

14. In response, PAS/S(E) reiterated that the objective of the adaptation of laws exercise was to adapt certain ordinances to bring them into conformity with the Basic Law and with the status of Hong Kong as a Special Administrative Region of the People's Republic of China. The proposed adaptation of references to "the Governor" by "the Chief Executive in Council" was to comply with Article 56. The Basic Law did not require a head of department or the Chief Justice of the Court of Final Appeal to consult the Executive Council before making subsidiary legislation, hence the issue was beyond the scope of the Bill. Regarding measures to be adopted in emergencies by the Chief Executive, the Executive Council might hold emergency meetings whenever such needs arose.

15. Miss Margaret NG said that she in general agreed to the Administration's view of stating expressly in the legislation that the Chief Executive in Council might by notice in the Gazette grant an exemption to a class of persons whether the Chief Executive should continue to have the power to exempt any person as in the case of the then Governors would be a policy consideration. Moreover, there was no provision in the Basic Law to require such power had to be exercised by the Chief Executive. Article 48(2) of the Basic Law only provided that the Chief Executive was responsible for the implementation of the Basic Law and other laws. The Chief Executive might decide on whether or not to consult the Executive Council according to the law. The manner in which the Chief Executive exercised his power could be dealt with from the policy point of view. Nevertheless, she strongly opposed to the proposal to split existing section 4(2) into sub-sections (2)(a) and (2)(b) because it was a violation of law. Granting of an exemption to an individual was an important matter.

16. Miss Margaret NG requested and PAS/S(E) agreed to advise on whether the phrase "any person or class or description of persons" was used in other legislation.

Adm

17. Mrs Miriam LAU opined that should a literal interpretation of Article 56 be adopted, it was understandable that the amendments proposed by the Administration was the only way to deal with existing section 4(2). To facilitate members" consideration of the proposed amendments, Mrs Miriam LAU requested the Administration to provide information on how the then Governor exercised his power in similar situation in the past, such as whether the matter in respect of a person was dealt with by the Governor and a class of persons was dealt with by the Governor in Council. PAS/S(E) agreed.

Adm

18. Miss Cyd HO asked whether similar amendments were proposed to other legislation. SGC(BC) said that the major factor for consideration in the treatment of adaptation to section 4(2) was whether the provisions had legislative effect. Given the question was not a clear cut issue, the Administration would adopt a case-by-case approach having regard to the legislative effect of each provision in question. She cited certain provisions that imposed criminal liabilities on individuals, in which "the Chief Executive in Council" would be proposed to replace "the Governor".

19. Miss Margaret NG suggested that the Hong Kong Bar Association, The Law Society of Hong Kong and legal academics be consulted on the interpretation of Article 56, and the proposed adaptation of references to "the Governor" by "the Chief Executive" in case of a person and by "the Chief Executive in Council" in case for a class or description of persons.(Post-meeting note : The Secretariat issued letters to the Hong Kong Bar Association, The Law Society of Hong Kong, University of Hong Kong and City University of Hong Kong on 14 December 1998.)

20. Miss Margaret NG reiterated her concern that the general public were obliged to observe strictly rules laid down in the legislation whereas the Chief Executive might exempt any person without the need to give an account to the public if the proposed section 4(2)(a) was adopted.

21. Miss Margaret NG suggested that should any proposed amendments be considered beyond the scope of adaptation, such provisions should be taken out from the Bill and be dealt with under a separate amendment bill. Mrs Miriam LAU opined that the proposed amendments were within the scope of adaptation if a literal interpretation of Article 56 was adopted. She pointed out that if granting of an exemption to a person was dealt with by the Chief Executive in Council, it would involve a change in policy. This would be beyond the scope of adaptation. The proposal to split the existing section 4(2) into sections 4(2)(a) and 4(2)(b) was the only way to comply with Article 56 though it was not the most desirable treatment.

22. The Chairman expressed disagreement with the Administration's interpretation of Article 56. He pointed out that despite it was stipulated in Clause X of the Royal Instructions that the then Governor should in all cases consult the Executive Council except in certain cases, such requirement was not spelt out expressly in every piece of legislation. He commented that the Administration failed to look into the intent of Article 56.

23. PAS/S(E) said that the Administration would further consider members' views and report to the Bills Committee at the next meeting.

Adm

Section 5 - Possession for the protection of life or property on vessels

24. PAS/S(E) pointed out that the proposed amendment to section 5(2)(f) was to comply with Article 56, i.e. to replace reference to the Governor by the Chief Executive in the case of a vessel and by the Chief Executive in Council in the case of any description of vessel.

25. Members agreed to defer consideration of the proposed amendment at the next meeting pending the Administration's further response and legal professionals' views on the interpretation of Article 56.

26. Members raised no questions on the proposed amendments to sections 44(2), 45(1), 46(5), 52(1) and 54 of the Ordinance.

Firearms and Ammunition Regulations and Firearms and Ammunition (Storage Fees)(Exemption) Declaration

27. Members raised no questions on the proposed amendments.

Schedule 8 - Public Order Ordinance and its subsidiary legislation

28. The Chairman pointed out that the proposed amendments to sections 10 and 31 were related to the discussion on the interpretation of Article 56.

Section 31 - Curfew orders

29. Referring to section 31(7), Mrs Miriam LAU enquired about the rationale for adapting the Governor by the Chief Executive as the provision applied to more than one person. SGC(BC) said that an instrument would have legislative effect if it had a general application. As section 31(7) was applicable to specified persons whose names needed to be published, a curfew order in question had specific application and was therefore not a piece of subsidiary legislation.

30. Miss Margaret NG agreed with Mrs Miriam LAU that there would be an anomaly that a curfew order might be made by the Chief Executive in Council in accordance with section 31(1) while the Chief Executive could exempt specified persons in accordance with section 31(7) without the consent of the Executive Council. It would violate the legislative intent of section 31 should such situation arise. Miss NG requested the Administration to explain the legislative intent of section 31, in particular subsections (6) and (7).(Post-meeting note : The required information had been set out in paragraph 9 of the paper "The Administration's response to issues raised by Members at the meeting on 10 December 1998' (the paper).)

Adm

31. Referring to the phrase "any servant of the Crown" in subsection (6)(j), Mr TSANG Yok-sing asked who these persons were. PAS/S(E) said that "any servant of the Crown" included officials sent to Hong Kong by the British Government prior to the reunification, unpaid street sweepers employed in the event of riots, etc. Mr John WONG, Senior Government Counsel (SGC(JW)) pointed out that the definition of public officer was laid down in Cap.1. PAS/S(E) added that given the Ordinance was dealing with internal security, the Administration therefore proposed to adapt the reference to "the Crown" by "the Government".

32. Mr TSANG Yok-sing opined that if the phrase "any servant of the Crown" referred to officials from the British Government, there would be no appropriate adaptation because no similar officials would be sent from the Central People's Government to Hong Kong. The phrase would then be obsolete and should be repealed.

33. Members expressed concern about the definition of "any servant of the Crown, other than a public officer" and whether such person still existed after the reunification. Mr TSANG Yok-sing wondered if such persons were entitled to certain privileges as being a class of specified persons under the legislation. SGC(JW) said that apart from being a servant of the Crown, such person had to possess a permit issued by the Commissioner of Police as stipulated in subsection (6)(j) before he became not subject to and not obliged to comply with a curfew order. PAS/S(E) added that such persons should be on duty or proceeding to or from duty.

34. The Chairman requested the Administration to clarify the definition of "servant of the Crown" together with a list of such persons and whether reference to such persons should be retained in the legislation. PAS/S(E) agreed.

Adm

35. The Chairman said that the discussion on section 31 would continue at the next meeting pending the information to be supplied by the Administration.

36. Members raised no questions on the proposed amendments to sections 35(1) and 35(4) of the Ordinance.

Section 36 - Closed areas

37. Miss Margaret NG asked how the Chief Executive in Council could possibly "reasonably believe" if the adaptation to section 36(1) was adopted and how the power was intended to be exercised under the proposed amendment. In response, SGC(JW) said that the *Chief Executive in Council" was defined in section 3 of Cap.1 as the Chief Executive acting after consultation with the Executive Council. It referred to a person and accordingly he might "reasonably believe" so. Miss Margaret NG pointed out that the proposed amendment involved two different concepts and procedures. One might reasonably believe something on his own judgement. However, it was an entirely different concept when one reasonably believed after consulting other persons. ALA6 said that the issue might be looked at from another perspective - the Chief Executive reasonably believed, he then acted on his belief after consulting the Executive Council. Miss NG said that though she could accept ALA6's explanation, the drafting of the provision in question seemed to be odd.

38. Mrs Miriam LAU suggested to amend the provision to read "where the Chief Executive reasonably believes that it is necessary for the protection of national security or protection of public order or public health, the Chief Executive in Council may by order declare any area or place to be a closed area.". Miss Margaret NG considered that the suggestion would result in deviation from the scope of adaptation. Mr TSANG Yok-sing suggested to replace "reasonably believes" by "desires". Mr Ambrose LAU said that he would prefer to retain the original meaning of the provision. The Chairman opined that the problem could be resolved if the Administration adopted a more flexible approach in interpreting Article 56, i.e. simply adapting the term "the Governor" by "the Chief Executive".

39. Miss Margaret NG requested the Administration to provide examples on whether the phrase "the Governor in Council may reasonable believe" was used in other legislation. SGC(JW) agreed. He added that an order made under section 36(1) was a piece of subsidiary legislation.	Adm
40. The Chairman requested the Administration to review the drafting of section 36(1) having regard to members' comments.(Post-meeting note : The Administration's reply on this point was at paragraph 11 of the paper.)	Adm

II. Date of next meeting

41. The next meeting was scheduled for 14 January 1999 at 4:30 pm.

42. The meeting ended at 10:30 am.

Legislative Council Secretariat
9 March 1999