LC Paper No. CB(2) 2172/98-99
(These minutes have been
seen by the Administration)

Ref : CB2/BC/12/98

Members Present :

Hon Margaret NG (Chairman)
Hon Jasper TSANG Yok-sing, JP
Hon Andrew WONG Wang-fat, JP
Hon Mrs Miriam LAU Kin-yee, JP

Member Absent :

Hon James TO Kun-sun

Public Officers Attending :

Ms Roxana CHENG

Senior Assistant Solicitor General

Ms Diana LAM

Senior Government Counsel

Mrs N DISSANAYAKE

Senior Assistant Law Draftsman

Mr Lawerence PENG

Senior Government Counsel

Clerk in Attendance :

Mr LAW Wing-lok

Chief Assistant Secretary (2)5

Staff in Attendance :

Miss Anita HO

Assistant Legal Adviser 2

Miss Mary SO

Senior Assistant Secretary (2)8

I. Election of Chairman

Miss Margaret NG was elected Chairman of the Bills Committee.

II. Meeting with the Administration
(LC Paper No. CB(2) 1314/98-99(01))

2. Assistant Legal Adviser 2 pointed out that by virtue of the adaptation of "imperial enactment" to "national law applying in Hong Kong" in Rules 4 and 5 of the Indictment Rules and section 9(3) of the Criminal Procedure Ordinance (Cap. 221), it would appear that the trial of criminal offences under a national law applying in Hong Kong would adopt English practice and procedure if no such rules and orders were made in Hong Kong. As it was unclear as to how the national laws applying in Hong Kong were to be enforced, the Legal Service Division had therefore sought clarification with the Administration.

3. The Administration replied that if national laws that applied to Hong Kong by way of promulgation did not create offences which were triable in Hong Kong courts, section 9(3) of Cap. 221 and the proposed adaptation of the Indictment Rules would have no application to them. However, if a national law that applied to Hong Kong by way of promulgation did create an offence that was triable in Hong Kong courts, section 9(3) of Cap. 221 and Rules 4 and 5 of the Indictment Rules should apply to that offence in the same way as they applied to British laws that applied in Hong Kong before 1 July 1997.

4. The Chairman suggested to defer discussion on this item to the next meeting, in order to allow more time for members to study the Administration's replies set out in Appendix II to the paper in details. Members agreed.

5. Members then proceeded to scrutinize the English and Chinese versions of the Bill clause by clause. Members noted that most of the proposed amendments in the Bill were straightforward adaptations, apart from items mentioned in paragraph 6 below.

6. Enquiries were raised about the reasons for adapting:

1. the reference to "Crown" in sections 9(M)1 and 102(4) of Cap. 221 as "Government" in the context of court forfeiture;
   
   
2. the reference to "Queen" in Forms II, III, XVI and XVII of the Criminal Appeal Rules as "Government" in the context of court forfeiture;
   
   
3. the reference to "in the peace of the Queen" in section 19 of Cap. 221 as "within the jurisdiction of the Hong Kong courts"; and
   
   
4. the reference to "Crown" in sections 56(2)(a), 59, and 83S of Cap. 221, rule 64(2) of the Criminal Appeal Rules and rule 2 of the Criminal Procedure (Representation) Rules as "Government" in the context of the Crown being a party to criminal proceedings.

7. In respect of paragraph 6(iv) above, the Chairman was of the view that it was the fundamental principle of criminal prosecution that prosecution brought by the Director of Public Prosecutions should be on behalf of the Hong Kong Special Administrative Region (HKSAR) and not the HKSAR Government. She said that in the UK and US, criminal prosecution was brought by public prosecutors on behalf of the "Crown" and the "People" respectively. In response, Senior Assistant Law Draftsman (SALD) said that the adaptation of "Crown" to "Government" in Cap. 221 and its subsidiary legislation followed the adaptations of the same in sections 2 and 15(1) of the Magistrates Ordinance (Cap. 227) in April 1998. SALD further pointed out that section 19 of the Hong Kong Reunification Ordinance (Ord. No. 110 of 1997) provided that criminal proceedings which before the reunification were brought by, in the name of or against the Crown might after the reunification be brought by, in the name of or against the HKSAR.

8. The Chairman enquired about the basis for substituting the reference to "Her Majesty's Attorney General" in Form I of Cap. 221 with "the Secretary for Justice". SALD replied that "Her Majesty's Attorney General" was a reference to the "Attorney General of Hong Kong" as the substantive provision in section 15(2) of Cap. 221 showed.

9. At the request of the Chairman, Senior Assistant Solicitor General agreed to provide a written reply on queries raised by members on the Bill set out in paragraphs 6-7 above.	Admin

III. Date of next meeting

10. Members agreed that the Bills Committee would next meet either on 26 March or 8 April 1999 at 8:30 am to continue discussion with the Administration.

11. There being no other business, the meeting ended at 5:37 pm.

Legislative Council Secretariat
1 June 1999