Bills Committee on Adaptation of Laws (No.2) Bill 1998(Minutes) 26 Feb 99

Legislative Council

LC Paper No. CB(2) 2115/98-99
(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 Friday, 26 February 1999 at 8:45 am in Conference Room A of the Legislative Council Building

Members present:

Hon Andrew WONG Wang-fat, JP (Chairman)
Hon Margaret NG
Hon James TO Kun-sun
Hon Mrs Miriam LAU Kin-yee, JP
Hon Ambrose LAU Hon-chuen, JP
Hon Jasper TSANG Yok-sing, JP

Members absent:

Hon Cyd HO Sau-lan
Hon Christine LOH

Public Officers attending:

Mr Philip CHAN: Principal Assistant Secretary for Security E
Ms Mimi LEE: Principal Assistant Secretary for Security (Narcotics)
Mr Tony YEN: Law Draftsman
Mr Peter WONG: Senior Assistant Solicitor General
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 of meeting held on 25 November 1998
(LC Paper No. CB(2) 1082/98-99)

The minutes of meeting held on 25 November 1998 were confirmed. II. Meeting with the Administration
Outstanding issues
(LC Paper No. CB(2) 1344/98-99(01))

Dangerous Drugs Ordinance (Cap.134)

2. Assistant Legal Adviser 6 said that he had prepared a written opinion in the form of an information note (LC Paper No. CB(2) 1362/98-99(01)) responding to Miss Margaret NG's request for a legal opinion on the question whether a proposed provision would be void if it went beyond the preamble or the long tittle of an Ordinance. In brief, there was no legal principle which stated that a provision of an Ordinance would be invalid solely for the reason that it was beyond the scope of the long title.

3. Miss Margaret NG said that she had no objection to the drafting of the proposed amendment to the definition of "medicinal opium" which reflected the existing practice. However, she would not support the proposed amendment to be dealt with in the context of adaptation. Any amendment to the existing legislation for the purpose of reflecting the existing practice of a government department was beyond the adaptation of laws exercise. It should be dealt with by way of an amendment bill.

4. Principal Assistant Secretary for Security E (PAS(S)E) said that the adaptation of laws exercise dealt only with the necessary textual amendments so as to conform with the Basic Law or the status of Hong Kong as a Special Administrative Region (SAR). The Administration was of the view that the proposed amendment to the definition of "medicinal opium" was within the scope of the adaptation of laws exercise. In addition, dealing with the amendment under a separate amendment bill would unduly delay the adoption of an appropriate standard for "medicinal opium" which reflected the existing practice.

5. 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, the scope of adaptation could be treated with some flexibility as it was difficult to draw a clear dividing line. She considered that there was no need to deal with the amendment under a separate amendment bill.

6. Mr TSANG Yok-sing said that the scope of adaptation of laws exercise was well-defined. The proposed amendment on the ground of obsolescence might be outside the scope of the adaptation of laws exercise. He asked whether there were any other provisions in the Adaptation of Laws Bills being proposed to be adapted solely on the ground of obsolescence. Should such amendments be small in number and minor in nature, they might be dealt with in the context of adaptation. Otherwise, such amendments should be dealt with under a separate amendment bill.

7. Responding to Mr TSANG, Law Draftsman said that from the drafting point of view, the Administration did face quite a number of grey areas in dealing with adaptations. He said that a miscellaneous amendment bill might be introduced at the final stage of the adaptation of laws exercise with a view to dealing with any residual provisions or grey areas yet to be adapted. However, it would be a complicated exercise as it covered numerous ordinances and involved various policy bureaux.

8. PAS(S)E pointed out that the Administration's original proposal was to delete the phrase "in accordance with the requirements of the British Pharmacopoeia" from the definition of "medicinal opium". Having regard to members' comments that the proposed deletion would leave the standard for making medicinal opium ambiguous, the Administration therefore proposed to delete "in accordance with the requirements of the British Pharmacopoeia" and substitute "in accordance with the requirements of the European or the US Pharmacopoeia". The proposal would more accurately reflect the existing practice of the Department of Health (D of H) in deciding whether or not raw opium was for medicinal use. PAS(S)E urged members to support the proposed amendment.

9. Mr TSANG Yok-sing asked whether the British Pharmacopoeia was still in use; if so, what the differences between the British Pharmacopoeia and the European or the US Pharmacopoeia were. Principal Assistant Secretary for Security (Narcotics) (PAS(S)N) responded that apart from making reference to the British Pharmacopoeia on the standard of "medicinal opium", the D of H also made reference to other national or regional pharmacopoeia. She said that the differentiation between "raw opium" and "medicinal opium" was in its form and use. The standard of "medicinal opium" laid down in pharmacopoeia was expressed at the level of active components. 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 reiterated that the proposed amendment would more accurately reflect the existing practice of the D of H in deciding whether or not raw opium was for medicinal use.

10. Mr TSANG Yok-sing said that making reference to the British standard was not inconsistent with the status of Hong Kong as a SAR. Given that the British Pharmacopoeia, the European Pharmacopoeia and the US Pharmacopoeia were used as a reference on the standard of "medicinal opium" from other countries or territories of origins, he suggested the Administration to consider substituting the adaptation in question with "in accordance with the requirements of the British, the European or the US Pharmacopoeia".

11. In response, PAS(S)N 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. At present, Hong Kong imported medicinal opium from European countries as well as North American countries. These countries adopted either the standard specified in the European Pharmacopoeia or the US Pharmacopoeia, which were both internationally accepted. The quality therein was generally very high, which provided a guarantee as regards the efficacy of the drug concerned. PAS(S)E added that the standards stipulated in the British Pharmacopoeia were embodied in the European Pharmacopoeia.

12. At the invitation of the Chairman, PAS(S)N said that having regard to members' comments, the Administration maintained the view that the existing definition of "medicinal opium" was no longer appropriate and should be amended either by deleting "in accordance with the requirements of the British Pharmacopoeia" without substitution or by deleting the same and substituting "in accordance with the requirements of the European Pharmacopoeia or the US Pharmacopoeia". The Administration preferred the first proposed alternative.

13. Mr TSANG Yok-sing considered that the adoption of "in accordance with the requirements of the European Pharmacopoeia or the US Pharmacopoeia" was more acceptable than simply deleting "in accordance with the requirements of the British Pharmacopoeia" from the adaptation point of view.

14. Mr Ambrose LAU said that he was inclined to support the Administration's original proposal to repeal the phrase "in accordance with the requirements of the British Pharmacopoeia" from the definition of "medicinal opium". Nevertheless, he had no strong objection to the Administration's latest proposal.

15. Mr James TO said that as a matter of principle for adaptation, amendments should only be proposed whenever necessary. He would support the amendment having regard to the Administration's explanation that it was not unreasonable to believe that the requirements in the British Pharmacopoeia were adopted because of the status of Hong Kong as a British colony.

16. In concluding the discussion, the Chairman said that though he was inclined to retain the phrase "in accordance with the requirements of the British Pharmacopoeia" and to deal with the repeal subsequently if needed, the majority of members supported the amendments proposed by the Administration and accepted it as within the scope of the adaptation of law exercise. The relevant Committee Stage amendments to the Bill would be moved by the Administration.

Adm

Crimes Ordinance(Cap.200) - proposed repeal of section 41

17. Miss Betty CHEUNG, Senior Government Counsel (SGC(BC)) said that the Administration agreed with the Bar Council's view that the right of a person to start a private prosecution was not affected by Article 63 of the Basic Law. However, the Administration remained of the view that section 41 of the Ordinance was inconsistent with Article 63 of the Basic Law and therefore should be repealed in the current adaptation exercise. It was because section 41 empowered a judge or a magistrate to direct the prosecution of a person who in the opinion of the judge/magistrate had been guilty of perjury. It encroached on the power of the Secretary for Justice to decide independently whether to prosecute a person for the said offence.

18. Miss Margaret NG said that she supported the proposed repeal of section 41 on the ground that it was obsolete but not on the ground that it was inconsistent with Article 63 of the Basic Law. Thus, she would not support the proposed amendment to be dealt with in the context of adaptation.

19. Mr TSANG Yok-sing and Mrs Miriam LAU accepted the Administration's explanation that section 41 should be repealed in the adaptation of laws exercise.

Firearms and Ammunition Ordinance (Cap.238)

20. PAS(S)E said that section 4(2) of the Ordinance would be adapted in line with the new approach in respect of adapting "Governor" to "Chief Executive" as agreed at the joint Bills Committee meeting on the interpretation of Article 56 of the Basic Law. Members agreed.

Adm

Public Order Ordinance (Cap.245)

21. PAS(S)E said that given the Ordinance was dealing with internal security, the Administration therefore proposed to adapt the reference to "Crown" to "Government". Regarding the definition of "servant of the Crown', PAS(S)E said that the word "servant" was indicative of an employment relationship of master and servant. Whether some persons would be treated as "servant of the Crown" would depend on the terms of contract. The difference between an independent contractor and a servant depended on the facts of each case. According to the Police, there was operational need for certain people who were contracted or subcontracted to carry out repair or emergency work for the Government in the event of riots. Section 31(6)(j), if adapted, continued to serve as a valid purpose by covering a situation which was not catered for elsewhere.

22. In response to the Chairman, Mr John WONG, Senior Government Counsel said that the definition of "public officer" was laid down in Cap.1.

23. The Chairman and Mrs Miriam LAU were of the view that an independent contractor was probably not within the meaning of public officer as defined in Cap.1 having regard to the master and servant relationship. Mr TSANG Yok-sing and Mr James TO expressed concern about who these persons, as mentioned in subsection (6)(j), were. Mrs Miriam LAU suggested the Administration to consider whether the provision in question needed to be repealed at a later stage. Nevertheless, members agreed with the adaptation of reference to "Crown" to "Government".

Organized and Serious Crimes Ordinance (Cap.455)

24. SGC(BC) pointed out that the existing section 28(10) resembled closely section 23(10) of the Drug Trafficking (Recovery of Proceeds) Ordinance and provided that an order should be served as if the proceedings were civil proceedings against the Crown. Under section 14 of the Crown Proceedings Ordinance, all documents required to be served on the Crown for any civil proceedings against the Crown should be served on the Attorney General (Secretary for Justice). The proposal to adapt the reference in section 28(10) from the "Crown" to "Government" would therefore mean that the order should be served on the "Secretary for Justice". Thus, the amendment concerned only with the service of documents under Cap.455 and did not affect the scope of application of the Crown Proceedings Ordinance.

25. Members raised no further question on the matter.

26. Members agreed that the draft Committee Stage amendments be circulated for members' comments.

27. There being no other business, the meeting ended at 9:50 am.

Legislative Council Secretariat
21 May 1999