Legislative Council

LC Paper No. CB(2) 1529/98-99
(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, 14 January 1999 at 4:30 pm 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 James TO Kun-sun
Hon Mrs Miriam LAU Kin-yee, JP
Hon Ambrose LAU Hon-chuen, JP

Members absent:

Hon Christine LOH
Hon Jasper TSANG Yok-sing, JP

Public Officers attending:

Mr Philip CHAN
Principal Assistant Secretary for Security E

Ms Mimi LEE
Principal Assistant Secretary for Security (Narcotics)

Dr Cindy LAI
Principal Medical and Health Officer

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. Confirmation of minutes (LC Paper No. CB(2) 1041/98-99)

The minutes of meeting held on 6 November 1998 were confirmed.

II. Meeting with the Administration

Outstanding issues

2. Principal Assistant Secretary for Security E (PAS/S(E)) said that the Administration was studying the views of members and the Hong Kong Bar Association on whether the Secretary for Justice's prosecution power under Article 63 of the Basic Law was in conflict with section 41 of the Crimes Ordinance; and on the interpretation of Article 56 of the Basic Law and how it should be reflected in individual ordinances. The Administration would need one more month to study the issues before reverting with a more detailed response. He added that the Administration's response to the queries over section 31(6)(j) of the Public Order Ordinance would be available before the next meeting. Members agreed to continue the discussion on the above issues pending the information to be provided by the Administration.Adm


3. Miss Margaret NG said that she had sought clarifications from the Hong Kong Bar Association who confirmed that, in arriving at the views set out in its letter to the Bills Committee, the Bar Association had given due consideration to the provisions of the Royal Instructions in respect of the need to obtain consent from the Executive Council by the then Governor before making subsidiary legislation, although this was not mentioned in its letter to the Bills Committee.

Dangerous Drugs Ordinance (Cap.134)

4. Noting that the Administration proposed to replace "... in accordance with the requirements of the British Pharmacopoeia" by "... in accordance with the requirements of the European Pharmacopoeia or the U.S. Pharmacopoeia" in response to Members' suggestion that a "standard" should be incorporated in the definition of "medicinal opium" to make such definition more certain, Miss Margaret NG enquired about the differences between the standard specified in the British Pharmacopoeia and that specified in the European Pharmacopoeia or the U.S. Pharmacopoeia. She added that if the amendment was proposed to reflect the actual practice of the Department of Health, it would be beyond the scope of adaptation and should be dealt with under a separate amendment bill.

5. Principal Medical and Health Officer responded that the standard adopted in most countries followed the requirements either in the European Pharmacopoeia or the US Pharmacopoeia which were both internationally accepted. She cited "medicinal opium" as an example, that the standard specified in the British Pharmacopoeia was the same as that in the European Pharmacopoeia while there was only a slight difference in terms of the level of morphine component as compared with that required under the US Pharmacopoeia. She added that the recent trend was towards a global harmonisation of the quality standards of drugs specified in the various national pharmacopoeias, so as to facilitate mutual acceptance of drugs between countries.

6. As to whether the proposed amendment should be dealt with in the context of adaptation, Principal Assistant Secretary for Security (Narcotics) said that given the Dangerous Drugs Ordinance was first enacted in the 1960s, the Administration was unable to trace the legislative intent for citing the requirements of the British Pharmacopoeia in the definition of medicinal opium. It was not unreasonable to believe that the requirements in the British Pharmacopoeia were adopted because such requirements were internationally accepted and because of the status of Hong Kong as a British Colony.

7. Miss Margaret NG said that she had no objection to the drafting of the proposed amendment in para. 4 which reflected the existing practice. However, the adoption of the requirements in the British Pharmacopoeia was not necessarily because of the royal prerogative or the status of Hong Kong as a British Colony. She would not support the proposed amendment to be dealt with in the context of adaptation. She suggested that the Administration should consider proposing a Committee Stage amendment to delete the relevant clause in the Bill.

8. Mrs Miriam LAU said that the Administration's proposed amendment was acceptable given that the amendment was a minor one and the purpose was to reflect the existing practice. Though it did not necessarily mean that the Administration should take the opportunity to amend the substance of a piece of legislation in the context of adaptation. The Chairman agreed with Mrs LAU's view that the scope of adaptation could be treated with some flexibility as it was hard to draw a clear dividing line.

9. Miss Cyd HO said that any amendment to the existing legislation for the purpose of reflecting the existing practice of a government department was beyond the scope of the adaptation of laws exercise. She was of the view that the Administration should deal with the proposed amendment under a separate amendment bill. Moreover, should an adaptation be adopted simply because of the provisions in question contained reference to certain British standards, it would result in substantial consequential amendments to the exiting legislation.

10. In the light of members' views, PAS/S(E) said that the Administration would revert with a response at the next meeting.

Adm

11. Miss Margaret NG asked for a legal opinion on the question whether a proposed provision would be void if it went beyond the preamble or the long title of an Ordinance. Assistant Legal Adviser 6 would give his views at the next meeting.ALA6

Clause-by-clause examinationSchedule 8 - Public Order Ordinance (Cap.245) and its subsidiary legislation

12. Members raised no questions on the proposed amendments to sections 40, 43(2), 43(3), 43(6), 50(2)(b), 51(1) and 51(2) of the Ordinance as well as the Public Order (Movement of Craft) Order.

Schedule 9 - Administration of Justice (Felonies and Misdemeanours) Ordinance (Cap.328)

13. In response to the Chairman's question on the reason for proposing amendment to Schedule 4 to the Ordinance, Miss Betty CHEUNG, Senior Government Counsel (SGC) said that by virtue of the Decision of the Standing Committee of the National People's Congress (NPC) on 23 February 1997, the Application of English Law Ordinance (Cap.88) was not adopted as the law of the Hong Kong Special Administrative Region (HKSAR). The proposed amendments were to repeal the reference to "the Application of English Law Ordinance" in the Ordinance and the Schedule so as to reflect NPC's decision.

Schedule 10 - Complex Commercial Crimes Ordinance (Cap.394) and Schedule 11 - Crimes (Torture) Ordinance (Cap. 427)

14. Members raised no questions to the proposed amendments to the Ordinances. Schedule 12 - Organzied and Serious Crimes Ordinance (Cap. 455)

15. In response to Miss Margaret NG's enquiry for the rationale for proposing amendment to section 2(16)(d) of the Ordinance, PAS/S(E) said that the proposed amendment was to comply with Article 48(12) of the Basic Law.

Section 28 - Disclosure of information held by public bodies

16. Miss Margaret NG said that given the adaptation to the Crown Proceedings Ordinance was not included in the current adaptation of laws programme, she enquired about the rationale for adapting the reference to "Crown" by "Government" in section 28(10) and the purpose of section 28. SGC(BC) said that notwithstanding the timetable for the adaptation of the Crown Proceedings Ordinance was not yet finalized, the adaptation of "Crown" by "Government" in section 28 was in order. Pending adaptation, the Crown Proceedings Ordinance would be interpreted in accordance with the Hong Kong Reunification Ordinance and no doubt applied to civil proceedings against the Government of the HKSAR. Section 14 of that Ordinance provided that all documents required to be served on the Crown for any civil proceedings against the Crown should be served on the Attorney General, which was now adapted to the Secretary for Justice. Therefore, an order under section 28 should be served on the Secretary for Justice. The purpose of the proposed amendment was to clarify the legal procedures in respect of serving an order for material in the possession of a public body in the case of civil proceedings.

17. Miss Margaret NG opined that the definition of "Crown" was an issue to be resolved. She expressed concern about which particular authorities were within the meaning of "Crown", e.g. the Xinhua News Agency. She considered that the adaptation of "Crown" by "Government" in section 28 might be dealt with at a later stage, pending the adaptation of the Crown Proceedings Ordinance.

18. Mrs Miriam LAU said that section 28 seemed to deal with the mode of serving an order rather than who would be prosecuted under the Ordinance.

19. To facilitate members' further discussion on the issue, the Chairman requested and PAS/S(E) agreed to explain in writing the practical implications of adapting "civil proceedings against the Crown" by "civil proceedings against the Government" and whether the latter was confined to HKSAR Government.(Post-meeting note : The required information had been set out in paragraphs 16-18 of the Administration's response to issues raised by Members at the meetings on 25 November 1998, 10 December 1998 and 14 January 1999 (LC Paper No. CB(2) 1344/98-99(01) .)Adm

20. Members raised no questions on the other proposed amendments to sections 3(19) and 31 of the Ordinance.

III. Date of next meeting

21. The next meeting was scheduled for 26 February 1999 at 8:30 am.(Post-meeting note : The next meeting would be held on 26 February 1999 immediately after the joint meeting with the Bills Committee on Adaptation of Laws Bill 1998 at 8:30 am.)

22. The meeting ended at 5:15 pm.

Legislative Council Secretariat
9 March 1999