Legislative Council

LC Paper No. CB(2) 2296/98-99
(These minutes have been seen by
the Administration)

Ref : CB2/BC/8/98

Bills Committee on Adaptation of Laws (No.3) Bill 1998
Minutes of meeting held on Monday, 25 January 1999 at 2:30 pm in Conference Room B of the Legislative Council Building

Members present:

Hon Margaret NG (Chairman)
Hon Andrew WONG Wang-fat, JP
Hon Jasper TSANG Yok-sing, JP
Hon Howard YOUNG, JP

Member absent:

Hon James TO Kun-sun

Public Officers attending:

Mrs Carrie WILLIS

Principal Assistant Secretary for Security A

Mr K F CHENG

Senior Assistant Law Draftsman

Ms Daphne SIU

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

Ms Bernice WONG

Assistant Legal Adviser 1

I. Meeting with the Administration

Proposed repeal of the Smuggling into China (Control) Ordinance and its subsidiary legislation

Principal Assistant Secretary for Security A (PAS/S(A)) said that at the request of the Bills Committee, the Administration had provided written response (LC Paper No. CB(2) 1120/98-99(01)) to members' comments raised at the last meeting on 30 December 1998. An analysis of the Smuggling into China (Control) Ordinance (SCCO) (Cap.242) and the Import and Export Ordinance (I&EO) (Cap.60) sought by members had been compiled in the Annex of the paper. She pointed out that columns II, III and IV of the Annex compared the provisions of the two Ordinances with remarks. Column V of the Annex identified those provisions in SCCO which did not conform with the status of the Hong Kong Special Administrative Region (HKSAR) or were inconsistent with the provisions with the Basic Law. Column VI of the Annex described the adaptation required if SCCO was to be retained on the statue-book.

2. At the invitation of the Chairman, Assistant Legal Adviser 1 (ALA1) said that notwithstanding the 1948 agreement between the then UK Government and the then Chinese National Government on various measures to prevent smuggling between Hong Kong and China had never been ratified by the Central People's Government (CPG) of the People's Republic of China (PRC), the agreement had been given legal effect by legislation and SCCO was part of the Laws of Hong Kong.

3. Mr Howard YOUNG said that he supported the repeal of SCCO. However, he expressed reservation on dealing with the proposed repeal under the adaptation of laws exercise. He asked whether there was any precedent case on the ratification of a piece of legislation, which was to give effect to the arrangement made before 1949, by CPG of PRC; if so, whether it was dealt with under the adaptation exercise. In response, PAS/S(A) said that the purpose of SCCO was to give effect to the 1948 agreement between the then UK Government and the then Chinese National Government. The 1948 agreement was irrelevant for Hong Kong after the reunification and the continued implementation of the agreement was incompatible with the status of Hong Kong as a Special Administrative Region (SAR) of PRC. From a broader perspective, the Administration considered that the proposed repeal of SCCO under the adaptation of laws exercise was appropriate.

4. Senior Assistant Law Draftsman (SALD) said that from the legal point of view, SCCO still existed and had legal effect. The continued implementation of the 1948 agreement by way of SCCO was considered incompatible with the status of HKSAR from a policy point of view. The purpose of SCCO was totally spent.

5. The Chairman said that she did not dissent from the view that the customary line laid down in SCCO was obsolete and in contravention of the boundary of HKSAR promulgated by the State Council. However, even SCCO was not repealed, it was not enforceable. The crux of the matter was whether the proposed repeal of the principal Ordinance was within the scope of adaptation of laws exercise. She pointed out that, apart from the long title of SCCO, none of the provisions of the Ordinance had made reference to the 1948 Agreement. It was in fact a piece of localized legislation. It appeared that only certain references in section 6 of SCCO were more relevant to the context of adaptation. Nevertheless, it was also arguable whether these provisions contravened the Basic Law. The reason for repealing the Ordinance was due to its obsolescence. She was of the view that the proposed repeal of SCCO fell within the adaptation of laws exercise only if it was examined from a very broad perspective. Should the approach be adopted, she worried that a lot of the provisions in existing legislation would have to be adapted in the light of policy considerations.

6. Mr Andrew WONG opined that following the promulgation of the boundary of HKSAR by the State Council in its Order No.221, the customary line laid down in SCCO was no longer applicable to HKSAR and had become obsolete. The boundary of HKSAR was a matter for CPG after the reunification. Hence, he agreed with the Administration that the proposed repeal of SCCO was within the scope of adaptation of laws exercise. Moreover, he considered that the entire SCCO was to give effect to the previous customary reference line as well as to enable the enforcement of measures to prevent smuggling in Hong Kong waters. Thus, I&EO had not repealed SCCO impliedly.

7. Mr TSANG Yok-sing concurred with Mr Andrew WONG that the previous "buffer area" and the customary reference line as laid down in SCCO were no longer applicable to HKSAR. It was reasonable to repeal such reference. Given most of the provisions of SCCO were obsolete, it might not be worthwhile to adapt the remaining provisions. He considered that SCCO should be repealed but not in the context of adaptation exercise. In this connection, he suggested the Administration to consider dealing with the proposed repeal of SCCO under an amendment bill.

8. Senior Government Counsel (SGC) said that international agreements signed by the UK and applied in Hong Kong would lapse after the Reunification. The continued application of such international agreements in the HKSAR to which PRC was not a signatory was only possible with the assistance of the CPG. Otherwise, the HKSAR would have to make fresh arrangements with the relevant parties under authorization in accordance with the Basic Law. In the present case, given that the underlying legislative intent of SCCO was to give effect to the 1948 agreement signed by the then UK Government on behalf of Hong Kong and the then Chinese National Government, the continued implementation of the agreement in the HKSAR would have to be arranged between the CPG and the HKSAR. In response to members, she pointed out that the legislative intent of SCCO was clearly spelt out in the long title of SCCO.

9. The Chairman disagreed with the rationale for determining whether the proposed repeal of SCCO was within an adaptation of laws programme by examining its underlying legislative intent. She was of the view that the scope of adaptation was very narrow.

10. In response to SGC, ALA1 pointed out that the arrangement by CPG for the continued implementation of the cited international agreements was required only if these agreements had not been incorporated into the local legislation. In addition, certain ordinances previously in force in Hong Kong were regarded to be in contravention of the Basic Law and were not adopted as the laws of HKSAR in accordance with the Decision of the Standing Committee of NPC on treatment of the laws previously in force in Hong Kong in accordance with Article 160 of the Basic Law of HKSAR of PRC adopted on 23 February 1997. SCCO was not included in the Decision. It might be regarded that NPC considered that there was no such need to trace the legislative background in respect of the enactment of SCCO.

11. In response to Mr TSANG Yok-sing, ALA1 advised that the long title of an ordinance did not have any legal effect.

12. In response to ALA1, SGC pointed out the fact that SCCO was not included in the Decision of the Standing Committee of NPC on 23 February 1997 was not conclusive as to its consistency with the Basic Law. Article 160(1) of the Basic Law provided that if any laws were later discovered to be in contravention of the Basic Law, they should be amended or cease to have force. Nevertheless, she agreed that the underlying purpose of SCCO had no bearing on whether it remained valid.

13. Mr Andrew WONG said that should the sole purpose of SCCO be to give effect to the customary reference line, the proposed repeal of SCCO could be dealt with under the adaptation of laws exercise. To facilitate members' study of the issue, he requested and PAS/S(A) agreed to provide a copy of the 1948 agreement signed by the then UK Government and the then Chinese National Government.

(Post-meeting note : The requested information was subsequently provided by the Administration and was circulated to members vide LC Paper No. CB(2) 1301/98-99(01).)

14. The Chairman enquired about the rationale for the proposed repeal of SCCO from the legal point of view. In reply, SALD said that only a few provisions in SCCO were not in conformity with Hong Kong's status as a SAR or inconsistent with the Basic Law. Most of the provisions in SCCO were in order from the legal point of view. He pointed out that, however, taking into account the underlying spirit of enacting SCCO, the purpose of SCCO was totally spent.

15. Mr Howard YOUNG remarked that if the rationale for repealing an ordinance was due to the fact that it was signed by the then UK Government, due consideration should be given to the implication of adopting such an approach. Mr TSANG Yok-sing shared Mr YOUNG's concern. He said that given the Basic Law had already ratified those international agreements which were in force prior to the reunification, there was no need to repeal SCCO simply because of reunification. He expressed concern that the repeal of SCCO on the basis of its underlying legislative intent might give the public an impression that the Administration intended to repeal all the international agreements signed by the then UK Government.

16. The Chairman opined that no amendment was needed for SCCO from the legal point of view. In the event that SCCO was considered as incompatible with the status of HKSAR from the policy point of view, it should be dealt with by the respective policy bureau instead of in the context of adaptation. It would have far reaching repercussion if the rationale for adapting an ordinance was based on its underlying legislative intent.

17. To conclude, the Chairman said that members agreed unanimously that SCCO and its subsidiary legislation should be repealed. Most members of the Bills Committee, however, did not support the repeal under the adaptation of laws exercise. She urged the Administration to further consider members' views and consider dealing with the obsolete provisions under an amendment bill. Pending the response from the Administration which would be circulated to members for consideration, she suggested that the resumption of the Second Reading debate of the Bill would take place after the completion of deliberations on the general principles adopted in the adaptation of laws exercise by the Bills Committees on Adaptation of Laws Bill 1998 and Adaptation of Laws (No.2) Bill 1998.

18. PAS/S(A) responded that the Administration would further consider whether the proposed repeal of SCCO would be dealt with under an amendment bill having regard to members' views.

Adm

(Post-meeting note : The Administration advised vide LC Paper No. CB(2)1301/98-99(01) that it would pursue the proposed repeal of SCCO outside the current exercise and the Secretary for Security would move Committee Stage amendments to remove the proposed repeal from the Bill.)

19. There being no other business, the meeting ended at 3:15 pm.

Legislative Council Secretariat
26 March 1999