Our Ref: CAB C4/17/7

Tel: 2810 2123
Fax: 2523 4889

24 July 1999

Mrs Constance LI
Clerk to Bills Committee
Legislative Council Secretariat
Legislative Council Building
8 Jackson Road
Central


Dear Mrs Li,

Thank you for your letter of 20 July 1999, conveying the Bills Committee's request for information. Our response is set out in the paragraphs below.

(a) The Administration to provide examples on how continuing offences were dealt with after the enactment of the Hong Kong Reunification Ordinance.

The question of continuing offences does not arise in the context of the Reunification Ordinance as the laws previously in force continued to apply. On the establishment of the HKSAR on 1 July 1997, courts, prosecuting authorities etc. became those of the HKSAR. To take this into account, pending proceedings were saved under section 15 of the Reunification Ordinance as those instituted by or against the HKSAR in the corresponding court or magistracy of the HKSAR.

The question of continuing offences have to be dealt with under this Bill in view of the following -

1. a set of bylaws which provide for continuing offences (that is offences for the continuation of which a daily penalty is imposed by the law on conviction for the initial offence) are repealed and replaced by a technically different Regulation;
   
   
2. under (a), there may be situations in which the initial offence is committed under a repealed bylaw before 1 January 2000 and is continued beyond 1 January 2000; the position then is that as from 1 January 2000 the provision under which the initial offence was committed is repealed; the conduct of the defendant is still an offence but under a technically different law; that is, the continuing offence is against a different law than the one for which the conviction for initial offence was obtained; an example is that the initial offence is carrying on a food business without a licence under bylaw 31 of the Food Business (RC) Bylaws ('bylaw offence"); if on 1 January 2000 this is repealed and replaced by Food Business Regulation, the result is that the same act constitutes a technically different offence, that is continuing to carry on a food business contrary to section 31 of the Food Business Regulation ("Regulation offence");

(b) The Administration to improve the drafting of clause 11 to limit its scope to only consequential, savings and transitional provisions.

The clause as it stands is confined to consequential, savings and transitional provisions. The present drafting takes account of the fact that the Bill already contains consequential amendments and transitional and savings provisions. The examples given by the Administration are worded differently because under them all the transitional and savings provisions are made by subsidiary legislation. To address Members' concern, the Administration will redraft Clause 11 to make it presentationally simpler to show the limited scope. The Law Draftsman will discuss with the Legal Adviser assisting the Bills Committee and agree on an acceptable draft.

(c) The Administration to explain why clause 11 is necessary, and which party or person can seek a judicial review if the provision made under clause 11 exceeds the enabling powers.

The Bill contains extensive consequential amendments. However, situations may arise where additional consequential and savings and transitional provisions may be needed -

1. Consequential - One example is where bylaws are made by the Councils while the Bill is being discussed or after its enactment and the timing is such that they cannot be amended before 1 January 2000 to bring them into line with the proposed new regime. If they are amended after 1 January 2000 to make them consistent with the new regime, the amendments may have to be dated back to 1 January 2000. The Legislative Council will have the opportunity to determine whether the amendments are truly consequential when they come before the Council by way of positive resolution procedure. Also, clause 11 ensures that rights of persons are not prejudiced by retrospective amendments.
   
   
2. transitional and savings - because of the administrative and practical arrangements that will have to be made in transferring the functions, situations may arise which are not evident or foreseen now, for which temporary arrangements are needed; a possible example is the taking over of the functions of the Provisional Municipal Council's Review Committees by the Licensing Appeals Board; the present statutory time limits for seeking relief may have to be extended but only in relation to rights of appeal existing on 1 January 2000; this can be done as a transitional measure under clause 11.

The procedure for applications for judicial review is set out in Order 53 of the Rules of the Supreme Court. Under Order 53 Rule 3(1), an application for judicial review can be made only with the leave of court. Under Order 53 rule 3(7), the "Court shall not grant leave unless it considers that the applicant has a sufficient interest in the matter to which the application relates." Whether a person has a sufficient interest is decided by the court in each case and involves a mixture of law, fact and discretion.

(d) The Administration to provide supplementary information on whether and how existing legislation can adequately substitute those Bylaws to be repealed in Schedule 2.

At the meeting of 23 July, Members raised a number of questions about the proposed repeal of sections 87 to 92 of the Public Health and Municipal Service Ordinance which are related to the Basements (Urban Council) Bylaws and the Ventilation (Urban Council) Bylaws to be repealed under Schedule 2. We are preparing supplementary information on both the repealed sections and Bylaws and will revert as soon as possible.

(e) The Administration to explain and provide examples on the division of responsibilities among the three departments (the Department of Health, Agriculture and Fisheries Department and the proposed Food and Environmental Hygiene Department)

Under the new set-up, the responsibilities of the Department of Health (DH), the proposed Department of Food and Environmental Hygiene (new department) and the Agriculture and Fisheries Department (AFD) are distinct, although in some areas, co-ordination will be necessary. In essence, DH will remain as Hong Kong Special Administrative Region's health authority, the Government's pubic health advisor and the executive agency for promoting health policies. The new department will be responsible for all food and environmental hygiene related matters including setting of food standards, management of food safety issues, import and export control of food products and hygiene standards of food premises. AFD will continue to facilitate the development and operation of the agriculture and fisheries industries by providing technical support and fresh food wholesale marketing services, administering loan funds and conducting fisheries resource conservation programmes. It will also continue to be responsible for managing country and marine parks, nature conservation and animal, plant and pesticide control activities.

The prevention of food-related infectious diseases involves a wide range of cross-disciplinary and inter-sectoral activities including disease surveillance and monitoring, veterinary health control, vector control, law enforcement and management at various levels of the food chain Under the new structure, the DH will continue to be responsible for disease surveillance and monitoring while the new department will deal with food and environmental hygiene related matters such as inspection of food premises. In case of incidents of food poisoning, notifications will continue to be received by the DH. It will then focus on investigation of food poisoning victims and other exposed persons. The new department will carry out investigations and take appropriate actions in connection with the food production chain and environmental hygiene. The departments will maintain close working relationship to safeguard the health of the community, under the overall co-ordination of the new Bureau.

Yours sincerely, (John C. Y. Leung) for Secretary for Constitutional Affairs