Ref : CB2/BC/24/98

Members Present :

Hon Andrew WONG Wang-fat, JP (Chairman)
Hon James TO Kun-sun
Hon HUI Cheung-ching
Hon TSANG Yok-sing, JP
Hon Howard YOUNG, JP
Hon Emily LAU Wai-hing, JP
Hon CHOY So-yuk

Members Absent:

Hon David CHU Yu-lin
Hon Margaret NG

Public Officers Attending :

Mr P C LEUNG
Deputy Director of Administration

Mrs Apollonia LIU
Assistant Director of Administration

Mrs Lilian WONG
Director of Protocol

Ms Amelia LUK
Deputy Law Officer (International Law)

Mr Sunny CHAN
Senior Government Counsel

Clerk in Attendance :

Mr LAW Wing-lok
Chief Assistant Secretary (2) 5

Staff in Attendance :

Mr KAU Kin-wah
Assistant Legal Adviser 6

Miss Mary SO
Senior Assistant Secretary (2) 8

I. Election of Chairman

Mr Andrew WONG was elected chairman of the Bills Committee.

II. Meeting with the Administration
(LC Paper Nos. CB(2) 2562 /98-99(03) and 2562/98-99(04))

2. The Chairman welcomed representatives of the Administration to the meeting.

3. The Chairman asked the Assistant Legal Adviser (ALA) to give his views on the drafting and legal aspects of the Adaptation of Laws (No. 10) Bill 1999 (the Bill). ALA made the following observations:

1. the substitution of "British Citizens, British Dependent Territories Citizens or British Overseas Citizens " by "Chinese nationals" in the 15 subsidiary legislation made under the International Organizations and Diplomatic Privileges Ordinance (Cap. 190) would result in Hong Kong permanent residents being treated differently because of their difference in nationality, i.e. Hong Kong permanent residents who were not Chinese nationals but were British Dependent Territories Citizens (BTDCs) or British Overseas Citizens (BOCs) would now enjoy privileges and immunities in Hong Kong as staff of the international organizations, where they previously would not;

2. the substitution of "England" by "the People's Republic of China" in section 6 and paragraphs 2 and 3 of Part 1, paragraph 1 of Part II, and paragraphs 1 and 2 of Part IV of the First Schedule of Cap. 190, which would have the effect that what was in force or accorded to PRC would be in force or accorded in Hong Kong, did not seem to make sense as Hong Kong was an inalienable part of PRC. It might be more appropriate if the term "Mainland China" was used in place of "the People's Republic of China"; and

3. the use of the words " the custom for the time being in force in the PRC" in the long title of Cap. 190 appeared to be incongruous with the fact that PRC did not have customary law.

ALA further said that apart from these observations, the drafting and legal aspects of the Bill were in order.

4. Referring to paragraph 3(i), Assistant Director of Administration (AD of Adm) said that it was inevitable that as a result of the transfer of sovereignty, some Hong Kong permanent residents would enjoy privileges and immunities in Hong Kong as staff of the international organizations, where they previously would not. AD of Adm however pointed out that the legislative intent of Cap. 190 would remain unchanged after the proposed adaptation in that the principle that the national of one country was not given diplomatic privileges and immunities when he was in his own country was maintained. AD of Adm further said that the number of people excluded from enjoying privileges and immunities if they were representatives of international organizations as provided in notifications made under Cap. 190 after reunification was in fact larger than before reunification. At the request of members, AD of Adm undertook to provide a breakdown of the figures in writing.

Adm

5. Mr James TO enquired whether Hong Kong residents holding Canadian and United States passports would enjoy privileges and immunities in Hong Kong as staff of the international organizations concerned.

6. AD of Adm replied that according to the definition of "Chinese nationals" in the "Explanations of some questions by the Standing Committee of the National People's Congress concerning the implementation of the Nationality Law of the People's Republic of China in the Hong Kong Special Administrative Region", Hong Kong residents who were of Chinese descent and born in Hong Kong or other parts of China would be regarded as Chinese nationals in the HKSAR regardless of whether they held or had held Hong Kong BDTC passports, British National (Overseas) passports or any other foreign passports. She further explained that if such Hong Kong residents chose to be treated as foreign nationals in the HKSAR, they would have to make a declaration of change of nationality to the HKSAR Immigration Department. After their declarations had been approved, these persons would be regarded as foreign nationals in the HKSAR and would be eligible for consular protection. And if they were staff of international organizations concerned, they would also be able to enjoy privileges and immunities to which staff of such organizations were entitled.

7. Director of Protocol (D of P) supplemented that all foreign governments represented in Hong Kong had signed agreements with the PRC for the maintenance after reunification, or establishment of consulates (including honorary consulates) in the HKSAR. The agreements signed with Canada, the United Kingdom and the United States varied slightly from the Vienna Convention on Consular Relations, particularly, the agreements signed with Canada and the United States which had provisions dealing with the dual nationality issue.

8. Deputy Law Officer (International Law) (Dep LO) explained that according to the terms of agreements signed between the PRC and respectively Canada and the United States, the national of the sending State entering the receiving State with valid documents of the sending State would, during the period for which his status had been accorded on a limited basis by visa or lawful visa-free entry, be considered as a national of the sending State by the appropriate authorities of the receiving State with a view to ensuring consular access and protection by the sending State.

9. At the request of members, AD of Adm undertook to clarify the length of time during which nationals of Canada and the United States, who were Hong Kong residents of Chinese descent and born in Chinese territories, would not be treated as Chinese nationals even if they did not declare a change of nationality with the Immigration Department after they had entered Hong Kong. AD of Adm further undertook to provide copies of the agreements signed between the PRC and Canada, United Kingdom and the United Sates regarding their consulate in Hong Kong.

Adm

10. Mr James TO expressed concern that some foreign nationals, who were Hong Kong residents of Chinese descent and born in Chinese territories, might not be aware of the need to make a declaration with the HKSAR Immigration Department for a change of nationality in order to enable them to enjoy privileges and immunities which would have been accorded to them as staff of the international organizations concerned after they had entered the HKSAR. D of P responded that international organizations and consular posts in Hong Kong would be reminded of the need for their staff to declare a change of nationality after the Bill was passed by the Legislative Council.

11. Responding to the issue raised in paragraph 3(ii), Senior Government Counsel said that the substitution should not cause any ambiguity as the references to the PRC in the relevant provisions in Cap. 190 impliedly referred to the jurisdiction of the PRC and the references to Hong Kong impliedly referred to the jurisdiction of Hong Kong. He further said that the use of the term "Mainland China" suggested by ALA might not be appropriate in the context of jurisdictional matters as the term merely described a geographical concept.

12. With regard to the issue raised in paragraph 3(iii), Dep LO said that the use of the word "custom" in the long title and section 6 of Cap. 190 should be taken to mean international custom relating to privileges and immunities of sovereign, diplomatic agents or foreign powers etc. and not custom or customary law used in the British constitutional laws. She further said that although the PRC adopted the civil law system, it nevertheless recognized and accepted international custom which was one of the major sources of international law. The Administration therefore considered it necessary to spell out in section 6 of Cap. 190 that such international custom would have the force of law in Hong Kong. Moreover, in view of the ever changing nature of international custom, the incorporation of custom in the local legislation would serve as a safety net to catch any new international custom which had not yet been covered in the national law relating to diplomatic privileges and immunities that applied to Hong Kong.

13. ALA accepted that "custom" should be taken to mean international custom. He however pointed out that international custom did not have legal effect and would not be enforced in PRC, and that although the PRC provided privileges and immunities according to international custom, such custom was not spelt out in the relevant Chinese laws. At the request of members, AD of Adm agreed to provide clarifications on whether the original meaning of the word "custom" was international custom or customary law in England.

Adm

14. Members then commenced to examine the Chinese version of the Bill clause by clause.

III. Clause-by-clause examination of the Bill
(LC Paper No. CB(2) 2562 /98-99(02))

Schedule 1 - Privileges and Immunities (Joint Liaison Group and Land Commission) Ordinance (Cap. 36) and its subsidiary legislation

15. Members raised no queries on the proposed adaptations in Cap. 36.

Schedule 2 - International Organizations and Diplomatic Privileges Ordinance (Cap. 190) and its subsidiary legislation

16. Members agreed to defer discussion on the long title and section 6 of Cap. 190 pending the Administration's clarifications on the points raised in paragraph 13 above.

17. In response to members' queries raised on Article 8(3) of The Food and Agriculture Organization, The International Civil Aviation Organization, The International Labour Organization, The United Nations Educational, Scientific and Cultural Organization, and The World Health Organization, AD of Adm undertook to provide clarifications for members' consideration.	Adm

18. Miss Emily LAU enquired about the reason for repealing the European Communities Notification and whether it would be replaced by a new one.

19. AD of Adm replied that the repeal was necessary because the agreement between Hong Kong and the European Commission (EC) expired on 1 July 1997. She further said that the HKSAR Government presently relied on the Regulations of the People's Republic of China Concerning Diplomatic Privileges and Immunities for granting privileges and immunities to persons connected with the EC. AD of Adm also advised that after the passage of the International Organizations (Privileges and Immunities) Bill which was being scrutinized by a Bills Committee, an order would be made by the Chief Executive in Council in respect of an international organization to replace the notification under Cap. 190 in respect of the same organization. The provisions in Cap. 190 which dealt with diplomatic privileges and immunities would however be retained.

20. Members raised no queries on the other adaptations proposed in Cap. 190.

IV. Date of next meeting

21. Members agreed that the next meeting of the Bills Committee be held in September 1999.

(Post-meeting note : The second meeting of the Bills Committee would be held on 29 September 1999.)

22. The meeting ended at 6:12 pm.

Legislative Council Secretariat
24 September 1999