LC Paper No. CB(2)219/99-00
(These minutes have been
seen by the Administration)

Ref : CB2/BC/23/98

Members Present :

Hon Andrew WONG Wang-fat, JP (Chairman)
Hon HO Sai-chu, SBS, JP
Hon LEE Wing-tat
Hon Fred LI Wah-ming, JP
Hon Ronald ARCULLI, JP
Hon Ambrose CHEUNG Wing-sum, JP
Hon CHAN Wing-chan
Hon CHAN Kam-lam
Hon Howard YOUNG, JP
Hon YEUNG Yiu-chung
Hon CHOY So-yuk
Dr Hon TANG Siu-tong, JP

Members Absent :

Hon Kenneth TING Woo-shou, JP
Hon Cyd HO Sau-lan
Hon James TO Kun-sun
Hon Jasper TSANG Yok-sing, JP
Hon FUNG Chi-kin

Public Officers Attending :

Mrs Maureen CHAN

Deputy Secretary for Constitutional Affairs

Mr John LEUNG

Principal Assistant Secretary for Constitutional Affairs

Mrs N DISSANAYAKE

Senior Assistant Law Draftsman (Department of Justice)

Miss Selina LAU

Government Counsel (Department of Justice)

Clerk in Attendance :

Mrs Constance LI

Chief Assistant Secretary (2) 2

Staff in Attendance :

Mr LEE Yu-sung

Senior Assistant Legal Adviser

Miss Connie FUNG

Assistant Legal Adviser 3

Miss Flora TAI

Senior Assistant Secretary (2) 2

I. Matters arising

The Chairman said that at the last meeting Hon Howard YOUNG had referred to a court decision in which the court held that the previous owner of a property could not recover rental arrears after transfer of property ownership. Senior Assistant Legal Adviser (SALA) advised members that the Administration had been requested to provide the relevant court judgment in order to assess the case's implications on the validity of transfer of the contractual rights of the two municipal councils to the Government. In this regard, the Chairman asked the Administration to confirm whether the two municipal councils had leased the use of land to a third party e.g. operators of market stalls. Deputy Secretary for Constitutional Affairs (DS(CA)) replied that as far as she understood, market stalls operated under permits issued by the municipal councils. As to whether these permits were regarded to be leasing agreements, DS(CA) undertook to provide a written response.

Adm

II. Clause-by-clause examination of the Bill

2. Members noted that the Administration needed time to provide a written response to members' concerns raised at the last meeting on 25 June 1999. The Bills Committee therefore continued examination of the Bill from clause 8(e) onwards.

Clause 8 - Savings and transitional provisions for matters arising under section 7

3. Members did not raise any queries on clause 8(e) - (k).

Clause 9 - Saving of subsidiary legislation, fees, etc.

4. Members did not raise any queries on clause 9.

Clause 10 - Transitional provisions with respect to offences

5. Mr Ronald ARCULLI expressed concern about the legal effect of clause 10(1) as presently drafted and queried whether using the phrase "no corresponding enactment" in clause 10(1) was necessary. He pointed out that if an offence had been committed against an enactment repealed by the Bill, legal proceedings could still be commenced or continued under the repealed enactment. Senior Assistant Law Draftsman (SALD) said that according to section 23 of the Interpretation and General Clauses Ordinance (Cap. 1), where an ordinance was repealed, any penalty or legal proceeding in respect of an offence committed against that ordinance could still be instituted and continued as if the repealing ordinance had not been passed. She explained that for example, upon enactment of the Bill, the Provisional Municipal Councils (PMCs) would be deleted from the definition of "public body" in the Prevention of Bribery Ordinance (Cap. 201) but legal proceedings could still be taken against an offence committed in respect of the PMCs as public bodies.

6. Mr LEE Wing-tat said that he was also concerned that clause 10(1) would enable the new authority to take legal proceedings against an action which was an offence under the repealed enactment but such action was no longer unlawful under the new enactment. Mr ARCULLI remarked that legal proceedings could be initiated only if such action happened before the relevant enactment was repealed.

7. Responding to the Chairman, SALD pointed out that clause 10(2) was a saving provision dealing with penalty for continuing offence committed under any enactment repealed by the Bill. A similar provision could be found in section 148 of the Public Health and Municipal Services Ordinance (Cap. 132). SALA advised that subclauses (1) and (2) were transitional provisions dealing with prosecution of "one-off" offences and continuing offences committed under the repealed enactment respectively.

8. Mr LEE Wing-tat expressed concern that heavier penalty would be imposed for the same offence if legal proceedings were initiated under the new enactment. DS(CA) confirmed that the penalty levels in respect of various offences under the enactments to be repealed would remain unchanged. Mr LEE further asked and DS(CA) responded that the Provisional Urban Council Ordinance (Cap. 101) and the Provisional Regional Council Ordinance (Cap. 385) and their respective By-laws imposed comparable penalties on the same types of offences.

9. Mr LEE Wing-tat said that he was still concerned that as the Administration would generally adopt the more comprehensive and stringent version among the two in aligning the different By-laws, lawful action within the geographical jurisdiction of the Provisional Regional Council (ProRC) at present might become an offence after the realignment exercise. DS(CA) reiterated that the Administration only intended to reconcile the differences between the subsidiary legislation made by the PMCs and would not seek to change the penalty during the exercise. She further informed members that the PMCs had already set up a joint committee seeking to adopt a common policy in respect of public health.

10. SALD referred to section 101J of the Criminal Procedures Ordinance (Cap. 221) and explained that if the penalty for an offence was amended between the time a person committed the offence and the time of his conviction, the offender was liable to the penalty prescribed at the time of the offence. However, if the amended penalty was a lighter penalty, the offender was liable to the lighter penalty. SALA also advised that according to clause 10(2) as presently drafted, legal proceedings could only be initiated against a continuing offence as an offence under the new provision. Mr LEE Wing-tat asked whether it would mean that the new enactment had retrospective legal effect. SALA replied that the concept of retrospective legal effect did not apply because the act or omission was already an offence under the repealed enactment. If the new provision created a new offence, such act or omission would be an offence only if it took place after the provision came into operation. Mr Ronald ARCULLI added that a court would not accept retrospective legal effect if a criminal offence was involved.

11. Mr CHAN Wing-chan asked whether there would be an vacuum period during which existing enactment had been repealed but corresponding enactment had not come into operation. DS(CA) responded that the Administration intended to bring the proposed Ordinance into operation on 1 January 2000 and the Provisional Urban Council Ordinance and the Provisional Regional Council Ordinance would be repealed on the same day. The Bill also sought to align the different By-laws of the PMCs. For example, commercial bathhouses within the geographical jurisdiction of the ProRC at present were not subject to any regulation. When the Commercial Bathhouses (Urban Council) By-laws were renamed as Commercial Bathhouses Regulation, it would regulate all the commercial bathhouses throughout the territory. DS(CA) informed members that operators of the commercial bathhouses within the geographical jurisdiction of the former ProRC would be given a grace period of two years to comply with the licensing requirements of the Commercial Bathhouses Regulation.

12. In light of members' views, the Chairman asked the Administration to explain the purpose of clause 10 and to provide a simpler version of clause 10, if it was to be retained, to make it clear that the repealed legislation would only apply to offences committed before the commencement of the new enactment, and that the new corresponding enactment would apply to a continuing offence or offence committed on or after 1 January 2000. DS(CA) undertook to provide a written response.

Adm

Clause 11 - Chief Executive in Council to make consequential, transitional and saving provisions

13. Mr Ronald ARCULLI said that clause 11 sought to amend the Ordinance by way of an order, instead of an amendment bill, which was not a common practice. He queried whether constitutionally, it was possible for an order to amend a principal ordinance. Mr LEE Wing-tat shared the view. SALD replied that provisions similar to clause 11 could be found in the Occupational Safety and Health Ordinance (Cap. 509), the Long-Term Prison Sentences Review Ordinance (Cap. 524) and the Securities (Margin Financing) (Amendment) Bill 1999. She added that it was not uncommon for an order to amend an ordinance in the laws of Hong Kong. Mr LEE asked and SALD confirmed that the order was subsidiary legislation subject to the approval of the Legislative Council (LegCo).

14. At Mr ARCULLI's request, the Administration undertook to provide a copy of the relevant sections in other legislation which contained provisions similar to clause 11. In this regard, SALA advised that there were provisions in existing ordinances enabling a government official to amend the schedules of a principal ordinance. It would be a policy decision for Members whether the Chief Executive should be empowered to amend provisions of a principal ordinance by way of an order. The Chairman asked and SALA responded there was no provision in the General and Interpretation Clauses Ordinance empowering the Chief Executive to amend an ordinance by way of an order.

Adm

15. Mr Ronald ARCULLI pointed out that the scope of clause 11(1)(a) was not limited to making transitional and savings provisions. SALD explained that the purpose of clause 11 was to make additional consequential amendments and transitional and saving provisions which might become necessary as a result of the repeals and amendments contained in the Bill. For example, consequential amendments might become necessary to amend subsidiary legislation newly made by the PMCs before the Bill came into operation. SALD reiterated that the scope and effect of clause 11 were limited to consequential, transitional and savings provisions and the order to be made must be within these parameters. When the order was introduced in the form of subsidiary legislation, LegCo Members could always determine whether the order sought to introduce appropriate amendments within the parameters prescribed in clause 11. The Chairman asked whether such order if passed could be challenged by judicial review on ground of it being ultra vires. SALD replied that if any provision exceeded the enabling powers, it could be challenged in court as such by judicial review.

16. To address members' concerns, the Chairman asked and DS(CA) agreed to provide a paper explaining the purpose and legal effects of clause 11, and clarifying whether its scope was confined to those consequential, transitional or savings provisions in the Schedules to the Bill.	Adm

Clause 12 - Ordinance to be construed as continuing only valid and lawful acts

17. Members did not raise any queries on clause 12.

Clause 13 - Provisions of Ordinance not to derogate from section 23 of Interpretation and General Clauses Ordinance

18. SALD informed members that clause 13 was an avoidance of doubt provision which made it clear that the provisions of the Ordinance relating to repeal and amendment of enactments were in addition to and did not exclude the application of section 23 of the Interpretation and General Clauses Ordinance. In this regard, the Chairman remarked that if clause 13 was enacted, provisions not relating to continuing offence in clause 10 did not need to be retained. At Mr LEE Wing-tat's request, SALA explained to members the various provisions of section 23 of the Interpretation and General Clauses Ordinance which was a general provision dealing with the effect of repeal of any ordinance. He advised that clause 13 served as an additional safeguard which made it clear that any provision of the Ordinance did not seek to invalidate the effect of section 23 of the Interpretation and General Clauses Ordinance. Mr LEE remained of the view that clause 13 was not necessary if provisions of the Ordinance were carefully drafted to avoid any doubt or ambiguity.

Schedule 1 - Substitution of Titles of Subsidiary Legislation
Schedule 2 - Repeals and Replacement

19. Mr CHAN Wing-chan asked and DS(CA) explained that Schedules 1 and 2 provided for the renaming and repeal of certain subsidiary legislation made under the Public Health and Municipal Services Ordinance as a result of the reorganization, and that the Administration intended to bring such renaming and repeal into operation on 1 January 2000. DS(CA) added that Schedule 3 set out the detailed amendments to the Ordinance and its subsidiary legislation. In response to Mr Howard YOUNG's enquiry, Principal Assistant Secretary for Constitutional Affairs informed members that the Abattoirs (Urban Council) By-laws regulated slaughterhouses ran by the Government or the Provisional Urban Council (PUC) whereas the Slaughterhouses (Regional Council) By-laws regulated privately-operated slaughterhouses. He said that the former By-laws needed to be retained in the name of Abattoirs Regulation as the only Government-run Cheung Sha Wan Abattoir had yet to be closed down.

20. The Chairman informed members that the table setting out the new titles of the subsidiary legislation to be adopted in the Ordinance was in Annex B to the LegCo Brief. To further facilitate members' scrutiny of Schedules 1 and 2, DS for CA undertook to provide a comparison table on the detailed provisions of the By-laws of the PMCs as listed in Schedules 1 and 2, with explanation on the differences and the reason for selecting the By-law of a particular municipal council for enactment.

Adm

III. Date of next meeting

21. The Chairman reminded members that the next meeting would be held on Friday, 9 July 1999 at 8:30 am.

(Post-meeting note : As the Council meeting on 7 July 1999 would continue in the morning of 9 July 1999, the meeting on 7 July 1999 was cancelled.)

IV. Any other business

22. Mr Ambrose CHEUNG informed members that the PUC had requested to be given an opportunity to present its views when the Bills Committee discussed important policy issues in the Bill. The Chairman said that the Bills Committee would welcome representations from the PUC on specific areas when appropriate.

23. The meeting ended at 4:35 pm.

Legislative Council Secretariat
26 October 1999