Legislative Council

LC Paper No. CB(2)2568/98-99
(These minutes have been
seen by the Administration)

Ref : CB2/BC/7/98

Bills Committee on Immigration (Amendment) (No.2) Bill 1998
Minutes of Meeting held on Tuesday, 8 December 1998 at 2:30 pm in Conference Room B of the Legislative Council Building

Members Present:

Hon James TO Kun-sun (Chairman)
Hon HO Sai-chu, JP
Hon LEE Cheuk-yan
Hon Ronald ARCULLI, JP
Hon MA Fung-kwok
Hon CHAN Yuen-han
Hon CHAN Kam-lam
Hon YEUNG Yiu-chung
Hon TAM Yiu-chung, JP

Member Absent:

Hon David CHU Yu-lin

Public Officers Attending:

Mr K S SO

Principal Assistant Secretary for Security

Miss Cythnia WONG

Assistant Secretary for Security

Mr K K YIP

Assistant Commissioner of Police, Operations

Mr K Y MAK

Assistant Director of Immigration

Mr Byron LEUNG

Government Counsel

Clerk in Attendance:

Mrs Constance LI

Chief Assistant Secretary (2) 2

Staff in Attendance:

Mr Arthur CHEUNG

Assistant Legal Adviser 5

Miss Flora TAI Senior Assistant Secretary (2) 2 _______________________________________________________________ I. Membership of the Bills Committee . The Chairman informed members that Hon Mrs Selina CHOW and Hon Michael HO had withdrawn from the Bills Committee. II. Matters arising from the last meeting Samples of Travel Pass and APEC Business Travel Card 2. At the Chairman's request, the Administration had provided a sample each of the Travel Pass and APEC Business Travel Card which were shown to members at the meeting. Consultation with the Hong Kong Construction Association Ltd [Paper Nos. CB(2)783/98-99(01) and CB(2)809/98-99(01)] 3. Members noted that the Administration had provided copy of a letter from the Security for Security dated 18 September 1998 to the Hong Kong Construction Association Ltd. (the Association) and a letter from the Association dated 4 December 1998 to the Bills Committee. Members also noted the Association's view that the prosecution would have to prove the employment status of the two-way permit holders (TWPHs) arrested on a construction site before it could secure a conviction of the site controller. 4. Mr Ronald ARCULLI expressed strong reservation about the Administration's policy. He considered it unfair to hold the principal or main contractor liable even if the latter was not in control of the site where the illegal worker was found. Mr ARCULLI said that he and the Association had met the Secretary for Security recently to seek clarification on the proof required to prosecute a construction site controller under the proposed sub-section 38A(4), and were still given the understanding that there must be proof of an employer-employee relationship between the construction site controller and the illegal workers for prosecution under the proposed section. Principal Assistant Secretary for Security (PAS for S) reiterated that it would not be necessary to prove the existence of an employer-employee relationship between the construction site controller and the illegal worker under the proposed sub-section 38A(4). The Administration could prosecute the construction site controller if there was evidence to prove that the illegal worker was taking up employment in the construction site, when the employer of that illegal worker could not be identified. However, the Administration would, as a matter of policy, endeavour to identify the employer of the illegal worker to see if there was sufficient evidence to prosecute the employer under section 17I in the first instance. 5. Mr Ronald ARCULLI also expressed dissatisfaction that while the Association had taken the initiative to prepare a code of practice on preventing illegal workers working on construction site, the Administration had declined to confirm that compliance with the code would by itself constitute a defence in court, on the grounds that it was not possible to draw up an exhaustive list for the purpose. The Chairman asked whether it was possible for the Administration to set out stringent rules for the industry to follow. PAS for S responded that what "all practicable steps" involved in each case was ultimately a matter for the courts to decide, having regard to all relevant circumstances of the particular case. At the request of the Association, the Administration had already given advice on the guidelines on preventing illegal employment on construction sites. PAS for S added that as the Association had already drawn up a set of guidelines for the existing section 38A, he failed to see why the existing guidelines could not be extended to cover the proposed legislative amendments. In this connection, the Chairman commented that it might be a good defence for a principal or main contractor if the latter had taken steps to prevent entry of any TWPH to the construction site. Prosecution of the construction site controller under the proposed sub-section 38A(4) Adm 6. The Chairman informed members that the Administration had confirmed that a conviction of the illegal worker under section 41 of the Immigration Ordinance (Cap. 115) was not required for the prosecution of the construction site controller to proceed under proposed sub-section 38A(4); and that what was required was evidence to prove beyond reasonable doubt that the illegal worker had committed an offence under section 41 by taking employment. PAS for S stressed that a conviction under section 41 in a different court would not be used as proof for prosecution under the proposed sub-section 38A(4). The Chairman queried why it was considered necessary, in cases where a conviction under section 41 had been secured, to prove for the second time that the illegal worker had committed an offence under section 41 for prosecution of a construction site controller under the proposed sub-section 38A(4). PAS for S explained that such requirement was to ensure fairness to the construction site controller. He pointed out that in some cases the conviction under section 41 might have been based on self-admission of the "illegal worker". At the Chairman's request, PAS for S agreed that the Secretary for Security would clearly state the policy intention in her speech on resumption of the Second Reading debate of the Bill. 7. In response to the Chairman, Assistant Legal Adviser advised that although a conviction under section 41 in a different court would not be used as proof for a prosecution under proposed sub-section 38A(4), the Administration would in practice still have to abide by the same standard of proof, i.e. it must prove beyond reasonable doubt that an offence under section 41 was committed. He drew members' attention to the fact that the Administration had confirmed in its letter of 30 November 1998 that, as a matter of policy and in practice, it would prosecute the illegal worker and secure a conviction under section 41 before proceeding to prosecute the construction site controller. Adm 8. Referring to Mr ARCULLI's earlier comments, the Chairman sought clarification on the interpretation of the definition of "construction site controller" in section 38A. He considered that ambiguity in the English text might give rise to the possible interpretation that the principal or main contractor was liable even if he was not in control of the site where the illegal worker was found. Assistant Legal Adviser agreed with the Chairman, pointing out that the description "who has control over or is in charge of a construction site" might actually refer to the subcontractor, owner, occupier or other person "other than the principal or main contractor". Mr Ronald ARCULLI held a different view pointing out that, on the face of the description, the definition would include the principal and main contractor. In response to the Chairman, Government Counsel said it was possible that the definition could be subject to these two interpretations. The Chairman queried how the Administration would deal with cases where the principal or main contractor had sub-contracted the whole site and was not in control of the construction site concerned. Assistant Director of Immigration (AD of I) informed members that from his experience, there must be a person in charge of the construction site who was usually the main contractor, even though he might have subcontracted the whole site. Enforcement departments would prosecute whoever was in control of the construction site if an illegal worker was found taking up employment in that construction site. Considering that the Chinese and English text of the definition might appear different in meaning, members requested the Administration to confirm the policy intention and interpretation of the definition of "construction site controller" in section 38A of the Immigration Ordinance. (Post-meeting note : The Secretary for Security subsequently confirmed in a letter of 30 December 1998 that when section 38A was introduced in 1990, the definition was so drafted that the liability was placed on the principal or main contractor irrespective of whether he was physically in control or in charge of a construction site. The letter was issued to members vide Appendix II to LC Paper No. CB(2)961/98-99.) 9. Mr Ronald ARCULLI opined that prosecution of the principal or main contractor would be unfair in circumstances where the principal or main contractor had subcontracted the construction site to a number of subcontractors and the principal contractor himself was not physically in control of the site. PAS for S responded that it was the Administration's policy that the principal or main contractor would be prosecuted if there was insufficient evidence to prove the employment relationship between the illegal worker and any of these subcontractors. With regard to the practice in enforcing the provision, PAS for S reminded members that it would be a defence in proceedings for the construction site controller charged to prove that he had taken all practicable steps to prevent persons who were not lawfully employable from taking employment on the site. Moreover, enforcement of the existing section 38A had proved to be effective in tackling the specific problem of employment of illegal immigrants on construction sites. He therefore maintained the view that it was feasible for the principal or main contractor to prevent illegal employment on a construction site even under the subcontracting system. 10. Referring to the judgement of the case of R. v. Shun Shing Construction and Engineering Company [Attachment to Paper No. CB(2)783/98-99(01)], Mr Ronald ARCULLI questioned the effectiveness of the defence provided in the proposed sub-section 38A(5). He considered that the controller of the construction site or sub-contractors should only be requested to take" reasonable measures" rather than "all practicable steps" to prevent illegal employment on the sites. In this regard, Miss CHAN Yuen-han stated that she was in support of the Administration's policy. She said that it was not unreasonable to hold a principal or main contractor responsible for the behaviour of his subcontractors as the main contractor could impose the requirements on the subcontractors. 11. Noting that section 38A dealt with illegal employment on construction sites, Mr CHAN Kam-lam asked whether a construction site controller would be prosecuted if a delivery man of a restaurant who was an illegal worker had been found on the construction site. PAS for S and AD of I responded that the proposed section targeted on illegal employment for construction work on construction sites. Mr Ronald ARCULLI asked why the Bill only sought to penalise employment of TWPHs on construction sites but not in other places of employment, if it was Government policy to combat the problem of illegal employment. Miss CHAN Yuen-han remarked that it was easier to identify the employer of the illegal worker in other places of employment such as in a restaurant. PAS for S pointed out that the problem of illegal employment of TWPHs on construction sites was more serious than in other trades. Chinese version of "taking employment on a construction site" 12. In response to the Chairman, Assistant Legal Adviser confirmed that the Chinese version of "taking employment on a construction site" in section 38A(4) & (5) was consistent with the English version. III. Clause-by-clause examination of the Bill 13. As members had no further questions on the policy issues, the Bills Committee proceeded to clause-by-clause examination of the Bill. The gist of the discussion is summarised in the following paragraphs. Clause 2 - Interpretation 14. Referring to the definition of "APEC business travel card", Mr Ronald ARCULLI asked and Government Counsel responded that "APEC" was just the name of the travel card and "APEC" was commonly accepted when referring to the Asian Pacific Economic Co-operation. In response to the Chairman, PAS for S explained that an APEC business travel card might be issued by the Director of Immigration or other person in a participating economy recognised by the Director of Immigration. In this connection, AD of I informed members that it was Government policy to grant, on production of a valid passport, two-months stay to a holder of APEC business travel card without the requirement of a visa. Implementation of APEC Business Travel Card was a pilot scheme which would be issued to businessmen who were Hong Kong permanent residents to facilitate their travelling to APEC economies. The pilot scheme was at present confined to only four participating economies. Adm 15. At Mr Ronald ARCULLI's suggestion, the Chairman asked the Administration to consider amending "come to Hong Kong" to "enter Hong Kong" in the proposed definitions of APEC Business Card and Travel Card under section 2(1), for consistency with other provisions in the Immigration Ordinance (Cap. 115). (Post-meeting note : The Administration subsequently agreed to move a Committee Stage amendment to replace the phrase " come to Hong Kong" with "enter Hong Kong".) Clause 3 - Site controller commits offence if illegal immigrant on construction site, etc Adm 16. As the policy intention of adding section 38A was to tighten control of unlawfully unemployable persons taking up employment "in construction work" on construction sites, the Chairman asked the Administration to consider improving the drafting to clearly reflect such a policy intention, so as to avoid catching other unintended categories which were now dealt with by other provisions of the Immigration Ordinance. He also asked the Administration to state clearly its policy intention when the Bill resumed its Second Reading debate. (Post-meeting note : The Administration responded after the meeting that while section 38A targeted mainly on construction work, it was not advisable to restrict its application to "construction work" as defined in section 38A(1) so as not to undermine the effectiveness of the provision.) Consequential amendments 17. Members noted that Regulation 1A (Interpretation) of the Immigration Regulations would be made redundant when interpretation relating to APEC business travel card and travel card was added to the principal ordinance. The relevant provision was therefore repealed. IV. Legislative timetable Adm 18. Members noted that if the Bill was to resume Second Reading debate on 6 or 13 January 1999, the Bills Committee would have to report to the House Committee on 18 December 1998 and the deadline for giving notice for resumption of Second Reading would be 21 or 28 December 1998 respectively. At the request of the Chairman, the Administration undertook to advise the date of resumption of Second Reading Debate. Members agreed that the Bills Committee would report to the House Committee on 18 December 1998, subject to any further comments from members on the Administration's proposed Committee Stage amendments. (Post-meeting note : Members of the Bills Committee had no comments on the Committee Stage amendments proposed by the Administration on 30 December 1998 and the Second Reading debate of the Bill was resumed on 27 January 1999.) 19. There being no other business, the meeting ended at 3:45 pm. Legislative Council Secretariat 15 July 1999