OFFICIAL RECORD OF PROCEEDINGS
Wednesday, 9 December 1998
The Council met at half-past Two o'clock

MEMBERS PRESENT:

THE PRESIDENT
THE HONOURABLE MRS RITA FAN, G.B.S., J.P.

THE HONOURABLE KENNETH TING WOO-SHOU, J.P.

THE HONOURABLE JAMES TIEN PEI-CHUN, J.P.

THE HONOURABLE DAVID CHU YU-LIN

THE HONOURABLE HO SAI-CHU, J.P.

THE HONOURABLE CYD HO SAU-LAN

THE HONOURABLE EDWARD HO SING-TIN, J.P.

THE HONOURABLE ALBERT HO CHUN-YAN

THE HONOURABLE MICHAEL HO MUN-KA

DR THE HONOURABLE RAYMOND HO CHUNG-TAI, J.P.

THE HONOURABLE LEE WING-TAT

THE HONOURABLE LEE CHEUK-YAN

THE HONOURABLE MARTIN LEE CHU-MING, S.C., J.P.

THE HONOURABLE ERIC LI KA-CHEUNG, J.P.

THE HONOURABLE LEE KAI-MING, J.P.

DR THE HONOURABLE DAVID LI KWOK-PO, J.P.

THE HONOURABLE FRED LI WAH-MING

DR THE HONOURABLE LUI MING-WAH, J.P.

THE HONOURABLE NG LEUNG-SING

PROF THE HONOURABLE NG CHING-FAI

THE HONOURABLE MARGARET NG

THE HONOURABLE MRS SELINA CHOW LIANG SHUK-YEE, J.P.

THE HONOURABLE RONALD ARCULLI, J.P.

THE HONOURABLE MA FUNG-KWOK

THE HONOURABLE JAMES TO KUN-SUN

THE HONOURABLE CHEUNG MAN-KWONG

THE HONOURABLE AMBROSE CHEUNG WING-SUM, J.P.

THE HONOURABLE HUI CHEUNG-CHING

THE HONOURABLE CHRISTINE LOH

THE HONOURABLE CHAN KWOK-KEUNG

THE HONOURABLE CHAN YUEN-HAN

THE HONOURABLE CHAN WING-CHAN

THE HONOURABLE CHAN KAM-LAM

DR THE HONOURABLE LEONG CHE-HUNG, J.P.

THE HONOURABLE MRS SOPHIE LEUNG LAU YAU-FUN, J.P.

THE HONOURABLE LEUNG YIU-CHUNG

THE HONOURABLE GARY CHENG KAI-NAM

THE HONOURABLE SIN CHUNG-KAI

THE HONOURABLE ANDREW WONG WANG-FAT, J.P.

DR THE HONOURABLE PHILIP WONG YU-HONG

THE HONOURABLE WONG YUNG-KAN

THE HONOURABLE JASPER TSANG YOK-SING, J.P.

THE HONOURABLE HOWARD YOUNG, J.P.

DR THE HONOURABLE YEUNG SUM

THE HONOURABLE YEUNG YIU-CHUNG

THE HONOURABLE LAU CHIN-SHEK, J.P.

THE HONOURABLE LAU KONG-WAH

THE HONOURABLE LAU WONG-FAT, G.B.S., J.P.

THE HONOURABLE MRS MIRIAM LAU KIN-YEE, J.P.

THE HONOURABLE AMBROSE LAU HON-CHUEN, J.P.

THE HONOURABLE EMILY LAU WAI-HING, J.P.

THE HONOURABLE CHOY SO-YUK

THE HONOURABLE ANDREW CHENG KAR-FOO

THE HONOURABLE SZETO WAH

THE HONOURABLE LAW CHI-KWONG, J.P.

THE HONOURABLE TAM YIU-CHUNG, J.P.

THE HONOURABLE FUNG CHI-KIN

DR THE HONOURABLE TANG SIU-TONG, J.P.

MEMBERS ABSENT:

THE HONOURABLE BERNARD CHAN

THE HONOURABLE TIMOTHY FOK TSUN-TING, J.P.

PUBLIC OFFICERS ATTENDING:

THE HONOURABLE MRS ANSON CHAN, J.P.

THE CHIEF SECRETARY FOR ADMINISTRATION

THE HONOURABLE DONALD TSANG YAM-KUEN, J.P.

THE FINANCIAL SECRETARY

THE HONOURABLE ELSIE LEUNG OI-SIE, J.P.

THE SECRETARY FOR JUSTICE

MR NICHOLAS NG WING-FUI, J.P.

SECRETARY FOR TRANSPORT

MR JOSEPH WONG WING-PING, G.B.S., J.P.

SECRETARY FOR EDUCATION AND MANPOWER

MR KWONG KI-CHI, G.B.S., J.P.

SECRETARY FOR INFORMATION TECHNOLOGY AND BROADCASTING

MISS DENISE YUE CHUNG-YEE, J.P.

SECRETARY FOR THE TREASURY

MR LAM WOON-KWONG, J.P.

SECRETARY FOR THE CIVIL SERVICE

MRS REGINA IP LAU SUK-YEE, J.P.

SECRETARY FOR SECURITY

MR PETER LO YAT-FAI, J.P.

SECRETARY FOR HOME AFFAIRS

MR PATRICK LAU LAI-CHIU, J.P.

SECRETARY FOR PLANNING, ENVIRONMENT AND LANDS

CLERKS IN ATTENDANCE:

MR RICKY FUNG CHOI-CHEUNG, J.P., SECRETARY GENERAL

MR LAW KAM-SANG, J.P., DEPUTY SECRETARY GENERAL

MS PAULINE NG MAN-WAH, ASSISTANT SECRETARY GENERAL

MR RAY CHAN YUM-MOU, ASSISTANT SECRETARY GENERAL

PAPERS

The following papers were laid on the table pursuant to Rule 21(2) of the Rules of Procedure:

Subsidiary Legislation	L.N. No.
Arbitration (Parties to New York Convention) (Amendment) Order 1998	368/98
Immigration (Amendment) Regulation 1998 (L.N. 318 of 1998) (Commencement) Notice 1998	369/98

Sessional Papers

No. 66	─	Ocean Park Corporation Annual Report 1997-1998
No. 67	─	The Prince Philip Dental Hospital Hong Kong Report by the Board of Governors for the period 1 April 1997 to 31 March 1998
No. 68	─	Equal Opportunities Commission Annual Report 1997/98

Report

Report of the Bills Committee on Hotel Accommodation (Miscellaneous Provisions) Bill 1998

ADDRESS

PRESIDENT (in Cantonese): Address. Mr Ronald ARCULLI will address the Council on the Ocean Park Corporation Annual Report 1997-1998.

Ocean Park Corporation Annual Report 1997-1998

MR RONALD ARCULLI: Madam President, tabled before the Council today is the 1997-98 annual report of the Ocean Park Corporation.

In the financial year ended 30 June 1998, the Ocean Park had 3 million visitors, down 27% from the record 4.1 million in the previous year. Nevertheless, the Park was able to break even on operations but not including depreciation, whilst capital expenses had to be funded from reserves.

The lower attendance for the year was mainly due to the economic downturn in Hong Kong and in Southeast Asia. The financial turmoil affected the disposable income of local residents who became more cautious towards their spending on entertainment and leisure. Our Southeast Asian neighbours suffered two serious setbacks ─ depreciation of their currencies and contraction of their economies.

In recognition of the less than satisfactory market conditions, the Ocean Park decided to cap its admission price at the present level for the year. This means that the Ocean Park admission price has not been increased for seven years since 1991.

Nonetheless, I am proud to say that despite these less than desirable factors, the Ocean Park has been able to provide the highest possible level of quality service for our guests and the finest care facilities for our animals. Its long-term development plans are on track for completion on a rolling basis. New attractions were also added during the year. All these were accomplished with one objective in mind ─ in maintaining the Ocean Park as a world class premier park providing a balanced mix of recreation, education and conservation facilities for both Hong Kong people and tourists.

The most notable attraction added last year was the Discovery of the Ancient World adventure which opened in the Lowland Gardens in August last year. With an investment of $45 million, the adventure takes visitors through an "ancient civilization" with numerous realistic-looking animals and plant characters including elephants, gorillas, pythons and alligators.

During the year, the Ocean Park also stepped up its strategic alliance with tourist bodies, in particular those organized by the Hong Kong Tourist Association, and business partners to rebuild inbound tourist traffic and encourage park attendance.

On the education side, in February, we started a Junior Secondary School Educational Programme titled "Exploring Biodiversity and Conservation at Ocean Park". The programme is in addition to the primary tours, which we have been organizing since 1992. Last year, a total of 23 755 primary and secondary students participated in our in-park educational tours.

The Ocean Park will continue to expand its efforts on education as well as on animal conservation. One valuable opportunity to do so would be through the opening of the Giant Panda Habitat next year. As we all know, the Central People's Government has given to the people of Hong Kong a pair of giant pandas ─ An An and Jia Jia. The Ocean Park is honoured to have been chosen as their permanent home. Work began during the year to construct a state-of-the-art habitat for An An and Jia Jia, which takes advantage of the natural gradient and is designed to replicate the giant pandas' natural environment as far as possible.

On behalf of the Ocean Park, I would like to thank the mainland giant panda experts, particularly the State Forestry Administration and Wolong Nature Reserve for their advice during the planning of the Habitat. Last but not least, special gratitude must be extended to the Hong Kong Jockey Club Charities Trust for its generous donation of $40 million to the project.

As we all know, giant pandas are among the most endangered species in the world and a lot of efforts have been and are continuing to be made to help with their survival and on the conservation of their natural habitat. The Ocean Park is delighted to be part of this united effort. We will actively initiate programmes to support conservation efforts for the giant pandas, wild as well as for those in captivity. In fact, a foundation will be set up for this purpose with the objective of raising $10 million over the next 10 years. We also aim to strengthen our education and promotion efforts to arouse support from the community on conservation programme for giant pandas.

Looking ahead, the forthcoming year looks equally challenging as the past year. The Ocean Park will continue to add exciting new attractions for our visitors with entertainment, education and conservation remaining our mission.

Thank you, Madam President.

PRESIDENT (in Cantonese): Honourable Members, in accordance with the Rules of Procedure, Members may ask simple questions on the content of the address to seek elucidation. Mr SIN Chung-kai has indicated that he would like to ask questions.

MR SIN CHUNG-KAI (in Cantonese): May I ask Mr Ronald ARCULLI how the Ocean Park proposes to break even or go from loss to profit this year, other than by introducing two giant pandas?

MR RONALD ARCULLI: It is all very difficult to predict whether we will be able to return to a break-even point. But we are optimistic that with the Giant Panda Habitat, we will attract a lot of visitors, not just local visitors but also regional visitors, and we hope that this will help us absorb some of the deficits that we are now experiencing. Of course, one other consideration that has been made by the Board of the Ocean Park is the level of service and the level of safety maintenance in the Park. As far as that is concerned, we have been avoiding, as best as we can, to lay off staff or to cut any parts on maintenance. Hence, we do have some overheads and hopefully, with additional revenue, we do not have to use our reserves too much.

ORAL ANSWERS TO QUESTIONS

PRESIDENT (in Cantonese): Questions. We have a long agenda today, and I will do my best to limit question time to one to 11/2 hours, with each question being allocated about 12 to 15 minutes on average. When asking supplementaries, Members should be as concise as possible. They should not ask more than one question, and should not make statements. To do so would contravene Rule 26 of the Rules of Procedure

First question.

Transport Services to and from the New Airport

1. MRS MIRIAM LAU (in Cantonese): Madam President, regarding the transport services to and from the new airport at Chek Lap Kok, will the Government inform this Council:

(a) of the daily number of passengers travelling to and from the new airport at present, the modes of transport used by the passengers and the respective percentages of passengers using different modes of transport; and how these figures compare with the forecasts in the Transport Study for the New Airport (TRANSNA) completed at the end of 1996; and

(b) whether it has reassessed the demand and supply for transport to and from the new airport; if so, whether adjustments have been made to the bus services concerned based on the findings of the re-assessment; if not, of the reasons for that?

SECRETARY FOR TRANSPORT (in Cantonese): Madam President,

(a) For the first four months since the new airport commenced operation, July to October, the average daily public transport patronage to and from the new airport was 167 455, which is 38% below the forecast in the TRANSNA completed in 1996. Further breakdown by modes of transport is shown in the Annex which has been tabled for Members' reference. The statistics show that with the exception of Airbuses and External Buses, patronage of the remaining modes is below the forecast patronage in TRANSNA. For the same period and with a slow down in our economy and the tourist industry, the average daily number of air passengers was 55 500 or 19% below the forecast made in 1996 of 68 350. The number of non-air passengers was 111 955 or 45% below the 1996 forecast of 201 950.

(b) We have to be careful not to draw premature conclusions about the TRANSNA forecast or future demand pattern for airport transport services basing simply on the passenger demand pattern for the first four months of the airport's operation. While the patronage figures are lower than the forecast figures, one also needs to take into account the significant changes in the economic environment since the TRANSNA was completed in 1996. The current volatile economic situation has significantly affected the number of air and non-air passengers travelling to and from the airport. The rate of intake for the Tung Chung New Town and the number of airport working population has also been significantly lower than forecast. One also needs to be mindful that our airport has been built to meet Hong Kong's needs well into the 21st century and the transport services have to be planned not only to meet immediate but also long-term needs. Having said that, we are also conscious of the economic costs to both the transport operators and the community if the services provided are under-utilized. Against this background, both the Government and the transport operators have been monitoring the initial transport pattern closely and adjustments have been made to planned provisions where required to ensure there is a closer match between the provisions and the demand.

Over the past months, various steps have been taken to rationalize and improve franchised bus services. These include:

(i) simplification of the routings within Chek Lap Kok Island of Route A35 (Mui Wo to Airport), Route S54 (Chek Lap Kok Ferry Pier to Airport) and eight external services.

(ii) introduction of an additional night route N30, plying between Yuen Long (East) and the Airport via Tin Shui Wai and strengthening of two night services from Mong Kok and Tsuen Wan by the addition of an early service at 5.15 am.

Over the coming three months, further improvements will be planned or implemented, including:

(i) reduction of the frequencies of two direct airport bus routes, four external bus routes and two shuttle bus services; and

(ii) review of services for the North, Southern, Ma On Shan, Western, Siu Sai Wan and Tseunt Kwan O Districts to see how they can be improved.

On train services, the Mass Transit Railway (MTR) Corporation has been monitoring the patronage of the Airport Express Line (AEL) and the Tung Chung Line (TCL) closely. Marketing measures have been introduced to boost their patronage. These measures include fare concessions, introduction of family travel packages, promotional programmes for targeted groups, and the introduction of "park and ride", "park and greet" and "park and fly" schemes.

The Government is committed to providing an effective and efficient transport network to serve the airport. Our aim is to give the community a wide range of choices of transport services at different fares to match different levels of speed, comfort and convenience. On the other hand, we would also seek to ensure that there is no gross under-utilization of community resources. The Transport Department will carry out a thorough review towards the end of the first quarter of 1999 to reassess the overall situation and to map out plans to ensure a more proper match between the demand for and provision of transport services for the airport.

Annex

Patronage of Public Transport Services for the Airport -
Breakdown by Modes of Transport

Transport Mode	Average Daily Patronage	Forecast Patronage in TRANSNA	% Different between Actual and Forecast Patronage
AEL	23 122	36 000	-36%
TCL (Tung Chung Station)	29 587	80 100	-63%
Airbuses	19 793	16 300	+21%
External Buses (1)	59 096	50 800	+19%
Shuttle Buses	24 267	61 600	-61%
Ferry	5 645	5 800	-3%
Taxis	5 945	19 700	-70%
Total (2)	167 455	270 300	-38%

(1) Patronage in this bus group include patronage of overnight bus routes.

(2) These figures do not include bus services from the airport to South Lantau.

MRS MIRIAM LAU (in Cantonese): Madam President, the number of passengers travelling to and from the new airport daily is obviously far less than the original forecast, thus resulting in a surplus supply of bus service. At the same time, however, there have also been requests from different districts asking for direct bus services to the airport. Could the Secretary inform this Council how the Government is going to handle these requests?

SECRETARY FOR TRANSPORT (in Cantonese): Madam President, this is a dilemma for us. We have to cater for the needs of the people on the one hand, and we cannot deny that there is indeed a surplus of services provided by the various modes of transport on the other. We will take into consideration several factors before deciding on whether additional direct transport services to the airport will be provided. These factors include patronage, the financial viability of the new routes, impact on the other existing modes of transport, capacity of the roads and so on. We must consider these factors in detail before making any conclusions. However, as I said just now, we still need to take into account another two important factors: first, the existing surplus supply of public transport services; second, the limited capacity of our existing roads. It is not easy to strike a balance among all those constraints. In regard to the provision of additional direct transport services, I urge members of the community to take a more rational and reasonable approach to striving for a balanced supply of services.

MR TAM YIU-CHUNG (in Cantonese): Madam President, the dilemma referred to by the Secretary just now may give rise to the situation where "while some people are in need of transport services, certain modes of transport are in need of patrons". For instance, none of the three airport bus routes serving Tsuen Wan and Kwai Tsing areas runs through the Riviera Gardens which have accommodated more than 30 000 residents; does the Government consider it should conduct a review in this connection? Moreover, in Yuen Long and Tuen Mun districts, ......

PRESIDENT (in Cantonese): Please keep your supplementary to one question only.

MR TAM YIU-CHUNG (in Cantonese): I was only trying to cite one more example, not raising another question.

PRESIDENT (in Cantonese): If you only wish to raise one more example, then please go on with your supplementary.

MR TAM YIU-CHUNG (in Cantonese): I should like to raise two points, the first one is on the bus routes serving Tsuen Wan and Kwai Tsing districts; as for the second one, its about the situation in Yuen Long and Tuen Mun. In the latter situation, residents living in these two districts who go to work at the new airport always have difficulties in getting on a bus when they are on the early morning shifts or night shifts because the bus schedules do not match their work schedules. Does the Secretary agree that this matter should be put under review?

SECRETARY FOR TRANSPORT (in Cantonese): I should like to thank the Honourable TAM Yiu-chung for providing us with this piece of information. Meanwhile, we need more time to observe and assess the actual demand for and the operating situation of public transport services before we could make any further adjustment. As regards some urgently needed improvements, we would of course implement them expeditiously.

DR RAYMOND HO (in Cantonese): Madam President, it has been mentioned in the main reply that the number of non-air passengers was 45% below the forecast made two years ago, which is indeed a rather high percentage. In addition, part (b) of the main reply also referred to the rate of intake for the Tung Chung New Town and the lower than forecast number of airport working population as two contributing factors; in this connection, I believe the future rate of intake for the Tung Chung New Town will be far greater than it is at present. In analysing the differences in figures, has the Government taken into account the fact that passengers are forced to switch to other modes of transport because the TCL is frequently out of order?

SECRETARY FOR TRANSPORT (in Cantonese): I am afraid I should not speculate if there would be any individual cases of such kind, but I do believe that might probably happen in reality. The existing figures at large are falling short of the forecast by a considerable margin. According to the then TRANSNA, the population of the Tung Chung New Town was estimated to be 20 000, but the actual intake is by now less than 14 000. There is an obvious gap in this respect and has impact on the patronage of the TCL to a certain extent.

MRS SELINA CHOW (in Cantonese): Madam President, when we were conducting the TRANSNA then, our focus was mainly on the fares of the AEL. In view of the marked difference between the AEL and TCL fares, we are concerned that passengers might take the TCL to Tung Chung first and then move on to the airport by taxis or other modes of transport. Could the Secretary inform this Council whether such situation has been identified during the investigation, by that I mean whether there are any passengers taking the TCL first and then change to other modes of transport in order to cut down on the fare expenses? In addition, could the Secretary inform this Council whether the existing fare concessions will continue to be offered by the AEL?

SECRETARY FOR TRANSPORT (in Cantonese): Madam President, the case quoted by the Honourable Mrs Selina CHOW is about whether passengers will take the AEL direct or take the TCL and then travel by bus to the airport. It is undeniable that the latter way would cost less in terms of the fares but more in terms of time. In addition to being time consuming, the latter way would also be less comfortable comparatively speaking. The TCL is one of the ordinary MTR service lines, as compared to the AEL which is of higher quality, efficient, more comfortable and effective. The services offered by the two lines are different.

MRS SELINA CHOW (in Cantonese): Madam President, the reply provided by the Secretary is very convincing, but he has not answered my supplementary. I was asking him whether the situation I referred to had happened before, and of the way the Government would resolve the problem if that really existed. In addition, the Secretary has also failed to answer whether the fare concessions will be continued.

SECRETARY FOR TRANSPORT (in Cantonese): Madam President, under normal circumstances that situation may possibly happen, but I do not have in hand the actual figures of the patronage survey conducted by the MTR. As regards the question whether or not the MTR will continue to offer fare concessions so as to compete with other modes of transport, I am sure the MTR, being a commercial operation, will consider ways to maintain its competitive edge, and it will certainly introduce new fare concessions or continue with the existing ones if fare rates are proved to be conducive to higher patronage.

MR SIN CHUNG-KAI (in Cantonese): Madam President, it is very obvious that the patronage of both the AEL and the TCL are markedly below the original forecasts. In this connection, could the Secretary inform this Council whether there is any possibility that the MTR fares would be used to subsidize the two lines and thus causing the overall pressure for fare rise to increase?

SECRETARY FOR TRANSPORT (in Cantonese): Since the different MTR lines operate as a whole, the corporation will certainly take into account the income and actual patronage of each and every line. Regarding the determination of fare rates, however, the fares for individual MTR lines and especially the AEL in this case were determined in the light of the then forecast operating situation and patronage of the AEL if it were to operate independently. Apparently, if the problem of low patronage has impacted on the balance of payments of a certain line, the operation of the company as a whole will be affected and the company will naturally consider ways to break even.

MR SIN CHUNG-KAI (in Cantonese): Does that imply the losses incurred by the AEL and the TCL will be compensated for by the other lines?

SECRETARY FOR TRANSPORT (in Cantonese): It may not necessarily be so.

MR LAU KONG-WAH (in Cantonese): Madam President, as referred to by the Secretary, the economic facts also have significant impact on the overall patronage. If we look at Airbuses alone, we can see that the patronage of Airbuses is in fact higher than the forecast figure; as such, I believe competitiveness is also an important factor in this case. Facts have proven that setting the AEL fare at $100 per journey is a mistake, and that the present concession rate of $70 is still not competitive enough. In this connection, could the Secretary inform this Council whether the fare will be further reduced?

SECRETARY FOR TRANSPORT (in Cantonese): Unfortunately the Honourable LAU Kong-wah does not live in Taikoo Shing, since I would like to quote an example to demonstrate clearly that it would be more economical for residents of Taikoo Shing to take the AEL to the airport than to travel by Airbuses. The following example should be the meanest: suppose a family of four lives in Taikoo Shing and the father needs to go on a business trip, and the mother is taking the two kids to the airport as well because they want to see their father off. With the current fare concessions offered by the MTR, which is the family travel package and the single journey fare concession for adult, the total cost for this family of four to travel to and from Taikoo Shing and the airport would not exceed $205, as compared to $315 if they took the Airbus. That way, the family could use the $100 saved to buy meals at the MacDonald's on the one hand, and save much travelling time on the other, since at least 20 minutes could be saved. Therefore, if we take time to calculate carefully, we could see that it should be more economical, more comfortable and faster to take the AEL to the airport.

PRESIDENT (in Cantonese): Second question.

Enhancing the Productivity of Government Departments

2. MR KENNETH TING (in Cantonese): Madam President, regarding the allegations that government departments are squandering public funds and some civil servants are discharging their duties perfunctorily, will the Government inform this Council:

(a) what mechanisms, apart from the value for money audits carried out by the Audit Commission, are in place to assess the performance and efficiency of government departments and whether resources are put to effective use;

(b) of the measures adopted to ensure that civil servants are dedicated to their work; whether it will take disciplinary actions against those who discharge their duties perfunctorily and those who submit false records of their outdoor duties; and

(c) of the measures to be taken to restore the confidence of the business and industrial sector and the public in the Government's administrative capability, and the basis on which the effectiveness of such measures is assessed?

SECRETARY FOR THE CIVIL SERVICE (in Cantonese): Madam President,

(a) The Hong Kong Special Administrative Region Government is an open and accountable government. We set out to present our policies and work programmes every year in the context of the Chief Executive's policy address. We are also committed to reporting on the progress of our pledges in the following year. These progress reports are for public and this Council's scrutiny.

In presenting the expenditure Estimates to this Council each year, the Controlling Officer for each Head of Expenditure submits a Report on his programmes and list his department's performance targets. The report is subject to Members' scrutiny at the Special Finance Committee session each year.

The performance of each department is also monitored through the performance pledges made by individual departments to the public. They set out in clear terms the standard of service that the public can expect of government departments. These pledges are updated regularly to reflect the changing environment and demands.

In the context of our internal resource management system, department heads and bureau directors are required to account for how effectively their allocated resources have been utilized. Trading Fund departments are, in addition, subject to specified rates of returns on the resources they use.

(b) The Government is committed to upholding the high standards of conduct and integrity of the Civil Service. To assist staff at all levels to acquire a good understanding of the conduct standards expected of them, the Civil Service Bureau is stepping up on educational efforts, which include publication of a Civil Servants' Guide to Good Practices, induction training and departmental training and seminars. Where reported malpractices are received, departments concerned will conduct investigation. Punishment will be inflicted against the officers concerned if the allegations are found substantiated. Arising from the findings of the recent Audit Report, all departments are asked to review and improve on the monitoring system on staff attendance and on outdoor staff's diligence and productivity.

(c) The Chief Executive has committed the Government to "manage for results, by results" and to drive for higher productivity in the years to come. Through the introduction of the Target-based Management Process we have published policy objective booklets for the whole of the Government specifying what we aim to deliver for the community, the steps being taken to achieve these objectives, and how we may measure our success. These objectives will form the basis of a top down structure linking departmental activity to policies and priorities, ensuring that resources and efforts are focused on the issues of concern to the community.

The Enhanced Productivity Programme announced in this year's policy address aims to deliver quantified short-term productivity gains and to address more fundamental issues to achieve sustained gains in the mid-term.

In addition, the two resource bureaux are looking into reform measures which will enable departments to better utilize their financial and staff resources and to enhance their productivity and efficiency. We shall in due course consult the parties concerned and the relevant Panels of this Council when we are ready with these proposals.

MR KENNETH TING (in Cantonese): Madam President, the Audit Commission once pointed out that there were cases of squandering public funds in government departments. Will the Administration therefore inform this Council whether investigations have been conducted to find out how much public funds have been squandered as a result of administrative errors? If not, will the Administration gather such statistics? And, how long will this take?

SECRETARY FOR THE CIVIL SERVICE (in Cantonese): Madam President, every year when the Director of Audit prepares the Audit Reports, he will try to quantify as much as possible productivity gains on the basis of his own assessment. For example, he will try to quantify how much resources would have been saved if there had been no errors. I do not have the figures for so many years to hand, and I must say that it is simply impossible for me to have them now. But if the Honourable Kenneth TING requests these figures, we would be happy to give a written reply to this Council on such figures for a reasonable period of time in the past, such as the last three to five years. (Annex I)

MR HUI CHEUNG-CHING (in Cantonese): Madam President, some field staff of the Census and Statistics Department (C&SD) have recently submitted falsified reports on their survey methods. So, it is only natural that people will have doubts on the economic data supplied by the Department. And, as the commercial and industrial sector usually relies on government statistics to formulate their long-term plans, I would like to know whether the Administration has formulated any specific measures to ensure the accuracy of the information and figures concerned?

PRESIDENT (in Cantonese): Mr HUI, this question is about the squandering of public funds and the perfunctoriness of civil servants. So, you should not be asking questions on statistical figures.

MR HUI CHEUNG-CHING (in Cantonese): But we know that actually many field staff of the C&SD have either not conducted any field work or have adopted inappropriate survey methods. That is why we do have doubts about the accuracy of these figures. If we take these figures as reference, we will not be able to make any accurate plans. How can the Administration assure us that such figures are accurate, and thus set our mind at rest?

SECRETARY FOR THE CIVIL SERVICE (in Cantonese): Madam President, since the release of the Audit Report, the Commissioner for Census and Statistics has repeatedly explained in public that he had taken the initiative to check the accuracy of various statistics after receiving the Audit Report. He is one hundred percent satisfied that the statistics in question are entirely reliable. His conclusion has been confirmed by the Statistics Advisory Board after a review, and the Board accepts the Commissioner's findings. According to the Audit Commission, some field staff of the C&SD did not follow the instructions on collecting statistics. For example, they just made some simple telephone calls instead of conducting site interviews. However, the Commissioner for Census and Statistics has assured us that we need not worry about the accuracy of these figures because all the information has already been thoroughly double-checked.

MR JAMES TIEN (in Cantonese): Madam President, part (b) of the main question asks about the kinds of disciplinary actions which the Government will take against the handful of ─ I assume there is only a handful of ─ civil servants who are either perfunctory in their duties or have falsified their field work records. The Secretary has replied that in cases like this, the departments concerned will conduct investigation. I would like to ask the Secretary what he meant by "the departments concerned"? Does this refer to the department where the officer concerned works, or another independent body responsible for conducting such investigation? Furthermore, the Secretary has also mentioned that punishments will be imposed on the officers concerned if the allegations are found to be substantiated. May I ask what kind of punishment will be imposed? Will they be verbal warnings only?

SECRETARY FOR THE CIVIL SERVICE (in Cantonese): Madam President, in principle, when staff problems arise, the heads of department concerned should take investigative actions, and the Civil Service Bureau is prepared to offer its assistance or advice. With regard to the form of punishment, it will range from verbal warnings on the lenient end to dismissals in the severe end, depending on the seriousness of each case.

MR AMBROSE CHEUNG (in Cantonese): Madam President, the Administration referred to a general direction in its main reply, and repeatedly mentioned that it will "manage for results and by results", implement the Enhanced Productivity Programme, and better utilize financial and staff resources. But while the Administration mentioned in part (b) of its main reply that punishment would be imposed on the officers concerned, it failed to set out a specific reward and punishment system. When it comes to disciplinary actions, we all know that very few civil servants have in fact been dismissed or forced to retire; and since the Administration mentioned in the last paragraph of its main reply that it would conduct a study on reform measures, may I ask the Secretary whether the Administration will consider the implementation of a more specific and effective reward and punishment system as part of the reform measures?

SECRETARY FOR THE CIVIL SERVICE (in Cantonese): Madam President, we are also very concerned about the points raised by the Honourable Ambrose CHEUNG. Since public organizations are not supposed to pursue profits as a target, and since they cannot thus have any profits to distribute, it will not be easy for them to handle the issue of "reward". Under the existing civil service framework, "rewards" are basically in the forms of written or verbal commendations; and even if the performance of an officer is really very outstanding, the only concrete reward will at best be accelerated promotion. Of course, under special circumstances such as when a certain team has performed outstandingly, the department concerned may perhaps allocate a small amount of resources to show its appreciation for members of the team. Unlike private organizations, public organizations cannot be expected to offer their staff any monetary rewards or bonuses. However, we are aware of the public concern for the reward and punishment system. That is why in the last paragraph of the main reply we point out that we are now considering a number of further reform measures, which will cover a few major aspects, such as incorporation of a more specific reward and punishment system into our salary scales, and ways of streamlining disciplinary procedures and making them more effective. We are also considering a whole series of other reform measures and will be seeking the views of this Council on these measures later on.

MR HOWARD YOUNG (in Cantonese): Madam President, has the Administration ever explored the internal causes leading to the efficiency problems of civil servants? Is insufficient supervision from middle and senior management a cause? Is the system itself at fault? Or, the lack of drive on the part of lower level civil servants? Has the Administration tried to find out the actual causes?

SECRETARY FOR THE CIVIL SERVICE (in Cantonese): Madam President, apart from the Audit Commission which brings our attention to many different problems in its annual reports, other public sector monitoring bodies like the Office of the Ombudsman and the Independent Commission Against Corruption also put forward to us many improvement proposals every year. First of all, I wish to point out that though a lot of questions and advice are raised and given in the reports of these monitoring bodies and by Members of this Council every year, on the whole, local and overseas organizations — I mean some international agencies outside Hong Kong ─ are of the opinion that the Hong Kong Civil Service is highly effective compared with the civil service of other places in the world. Though the size of our Government is small, our Administration has been making continuous progress in areas like openness, effectiveness and target achievement over the past decades. However, this does not mean that we need not make any further improvement, and we totally agree that fundamental improvements to the system should be considered, and that we should not proceed in a piecemeal approach.

I have mapped out our future directions in the last paragraph of my main reply, and in fact, we have already conducted a comprehensive review on a lot of fundamental issues, and hopefully we can come up with some constructive proposals on further improving our administration. Of course, individual front-line staff have to be held responsible for their dereliction of duty and perfunctoriness, but management staff are also to blame for inadequate supervision. Moreover, among our directorate or top level staff, there are also some problems with management culture and awareness. As Mr Ambrose CHEUNG have just said, the whole punishment and reward system should be improved. Therefore, we still have a lot of work to do.

Madam President, I would like to emphasize that when Members criticize our Civil Service, they should also look at our track records over the past decades, or at least our performance in the past 10 months or so. Although we were faced with big historic changes during the handover period, on the whole, we have succeeded in maintaining the good governance of Hong Kong. Therefore, Members should not completely gainsay the past achievements of our Civil Service.

PRESIDENT (in Cantonese): Since we have spent almost 15 minutes on this question, let us now move on to the next question. Third question.

Financial Assistance to Tertiary Institution Students

3. MRS SELINA CHOW (in Cantonese): Madam President, regarding the provision of financial assistance to tertiary institution students, will the Government inform this Council:

(a) whether there are reductions in the number of students who are granted financial assistance under the Local Student Finance Scheme (LSFS) and in the average amount of financial assistance granted to students in the current academic year as compared to last year; if so, whether the reductions are attributable to the new assessment formula from this academic year onwards, which disallows the deductions of housing expenses and so on from the family income;

(b) up to now, among the students who have suspended their studies due to financial difficulties, of the respective numbers of students who are unsuccessful in their applications for financial assistance under the above Scheme as well as students who are granted lower amounts of financial assistance than those in the last academic year; and whether there are measures in place to help students who have suspended studies due to such reasons; and

(c) whether it plans to lower the current 7.5% interest rate of loans granted under the Non-Means-Tested Loan Scheme (NLS) with a view to relieving the future financial burden of tertiary students who have participated in the Scheme?

SECRETARY FOR EDUCATION AND MANPOWER (in Cantonese): Madam President,

(a) As at the end of November 1998, the Student Financial Assistance Agency (SFAA) has processed 30 213 LSFS applications (or 76% of total applications for the 1998-99 academic year). 84.7% (or 25 576 students) are successful in obtaining financial assistance and 21.9% of the successful applicants (or 5 589) receive maximum assistance (that is, about $84,430 for an undergraduate student). These figures are in fact higher than those in last year which stood at 83.3% and 18.1% respectively. They show that the new assessment formula has achieved its main objective of targeting at the genuinely needy students. It is also in line with our earlier assessment that broadly the same ratio of students would continue to benefit under the LSFS.

Current results show that the average grant has dropped by 10% to about $28,000 whereas average loan has decreased by 12% to $23,000. The reduction may be attributable to many factors, the most crucial ones being the student profile and the family circumstances of individual applicants. Nevertheless, it is noteworthy that a successful applicant can, on average, obtain $51,000 in grant and loan, which is more than sufficient to cover the tuition fee and academic expenses of an undergraduate student.

As we made clear when seeking Members' approval for revising the assessment formula in 1997, the low-income low-expenditure group will benefit under the new formula whereas families with relatively higher income and higher expenditure, particularly on housing, may be worse off. The old formula is based on disposable income of a family whereas the new formula is based on gross family income. For example, under the old formula, a student of a four-member family with monthly income of about $23,000 and mortgage payments of $10,000 would have received more or less the same level of assistance with that of another student of a four-member family with lower monthly income of about $13,000 and rental payments of $1,000. But under the new formula, this lower income family will obtain more assistance whilst the higher income family will receive less. Obviously, there are many variations of actual assistance as much will depend on individual family circumstances.

All the results of this year's application exercise are expected to be completed by March next year. The Joint Committee on Student Finance, which is an advisory committee with representatives from students, institutions, the community and the Government, will examine the implications of the new formula on students of different family income levels and consider whether and, if so, how the formula should and could be further improved.

(b) According to the institutions covered by the LSFS, 32 students have suspended their studies this year and have given the reason as a financial one. It should be noted that there were similar cases in previous years. Of the 32, only eight of them have been confirmed to have applied under the LSFS in the 1998-99 academic year. Two other students have also been reported to have applied but, owing to lack of information from the institutions, we are unable to confirm that this is indeed the case.

Of the eight confirmed LSFS cases, three of them would have been entitled to either maximum or close to the maximum levels of assistance. Of the remaining five students, three had or would have obtained between 40% and 50% of their maximum entitlements. One has already received about 10% of his maximum entitlement and the other one was assessed as ineligible for assistance, both because of high income levels.

Starting from the current academic year, the Government introduced the NLS to complement the LSFS. Students may borrow up to the tuition fee level. Successful LSFS applicants can also apply to top up to the maximum LSFS assistance, subject to the tuition fee level not being exceeded. In addition, needy tertiary students can also apply for bursaries and loans from their universities. Depending on their need, the conditions stipulated by the donors and funds available, the amounts can range from $2,000 to $10,000.

(c) Being non-means-tested, the NLS does not seek to subsidize students who either fail the means test or do not want to be means-tested. It therefore operates on a no-gain-no-loss and cost recovery basis. The current interest rate is 8.248%, being the Government's no-gain-no-loss interest rate of 6.748% (with effect from 1 October and reviewed every six months), plus an additional 1.5% risk-adjusted factor. We have, however, undertaken to review the 1.5% risk-adjusted factor one year after the repayment of the first batch of loans towards the end of 2000.

MRS SELINA CHOW (in Cantonese): Madam President, although in part (a) of the main reply, the Secretary said that the number of students benefited is actually more than those of last year, I am not sure whether he means the percentage or the absolute number of students is more than that of last year because last year's figures are not available for comparison. However, the second paragraph of part (a) clearly points out that the average grant has dropped by 10% whereas the average loan has decreased by 12% and that the reduction may be attributable to many factors. The Secretary has mentioned a new assessment formula in which the grant and loan are calculated according to gross family income instead of disposable income. Is this new formula one of the reasons leading to the reduced average amount of assistance? Is the present formula being unfavourable to the application of a student whose family has to make mortgage repayments as it has purchased its own home?

SECRETARY FOR EDUCATION AND MANPOWER (in Cantonese): Madam President, the new assessment formula is based on gross family income and is indeed different from the old formula which is based on disposable income of a family. This could be one of the reasons leading to the reduced average amount of assistance granted. I said "could be" because the whole process of vetting this year's applications will not be completed before early next year, and only by then can we make a more thorough evaluation of the new formula.

As to whether the new formula will give rise to unfairness, I think we can look at that in the future when the picture is clearer. However, when we submitted this new assessment formula to the Finance Committee for approval last year, we made clear the difference between the two formulae and we also stated categorically that we felt unfairness did exist in the past. For example, under the old formula, a student from a high-expenditure family which made a great amount mortgage repayment every month received more assistance than another student from a low-income, low-expenditure family. Since our principle is to provide assistance to the genuinely needy families and students, we explained clearly the reasons for revising the assessment formula to the Finance Committee. I have also pointed out in part (a) of the main reply that, so far, at least more students receive maximum assistance percentage-wise, and there are initial signs showing that the new formula can serve the genuinely needy students better.

As I have said in the main reply, we will be glad to carry out a comprehensive review of the implications of the new formula on students of different family income and expenditure levels after this year's application exercise is over, and we will also give thoughts to whether further improvements are needed. We remain open in this regard.

PRESIDENT (in Cantonese): Many Members would like to raise supplementary questions. Due to the time constraint, I hope Members' questions and public officers' answers can be as concise as possible so that more Members will be able to ask their questions.

MR LEUNG YIU-CHUNG (in Cantonese): Madam President, the last paragraph of part (a) of the main reply states that this year's application exercise is expected to be completed by March next year, which means that the application exercise is not yet completed at the moment. However, it will be quite close to the end of the academic term by March next year. Does the LSFS aim at helping students solve their problems for the current academic year or the next academic year? Why does it take so long to complete the application exercise? Can the processing time be shortened?

SECRETARY FOR EDUCATION AND MANPOWER (in Cantonese): Madam President, I would like to explain in a concise manner. Firstly, it is true that we undertook to finish the work of vetting and approval in two months' time. What we are dealing with now are basically those applications from first-year students which were submitted late due to various reasons. Secondly, the whole scheme includes an appeal mechanism and at present we are also handling a lot of appeal cases.

MR CHEUNG MAN-KWONG (in Cantonese): Madam President, while the Government has started its review only lately, 32 students have already suspended their studies this year due to financial difficulties. I recall quite a number of years ago, the Government undertook that no undergraduate would be obliged to discontinue his studies because of financial problems. Does this undertaking still hold today? If so, will the Government take any contingent measures to assist these 32 students, especially those eight who have lodged applications under the LSFS, so that they can continue with their studies?

SECRETARY FOR EDUCATION AND MANPOWER (in Cantonese): Madam President, our undertaking is that students would not have to give up their studies due to financial difficulties. Under the LSFS, the maximum assistance is over $80,000 which is well sufficient for a student to pay for his tuition fee and daily expenses. Of course, some students may suspend their studies not merely because of their own financial problems; they may want to start working sooner so as to help alleviate their families' burdens. This is something no finance scheme can possibly attend to. However, we know that the institutions do keep in contact with their students and may extend help to them in case of need.

PRESIDENT (in Cantonese): Honourable Members, this Council has already spent over 15 minutes on this question. We will now move on to the fourth question.

Reports on Value for Money Audits

4. MR AMBROSE CHEUNG (in Cantonese): Madam President, in connection with the Director of Audit's reports on value for money audits submitted to the President of the Legislative Council, will the Government inform this Council whether:

(a) standing mechanisms are in place in all departments to deal with the problems pointed out in the Director of Audit's reports, and to consider and implement the relevant recommendations; and

(b) the departments not covered in the reports will conduct internal reviews of the issues raised therein?

SECRETARY FOR THE TREASURY (in Cantonese): Madam President, on part(a) of the question, there are standing arrangements for Controlling Officers to deal with issues raised in the Director of Audit's value for money reports. Controlling Officers are also accountable to the Public Accounts Committee (PAC) on such matters.

Upon receipt of the Director of Audit's value for money reports, the PAC will examine the matters raised and where necessary, conduct public hearings on subjects selected for further investigation. In the light of those examination and public hearings, the PAC will make its report to the Legislative Council on the Director of Audit's report. The PAC report covers recommendations on the measures to be taken by the Administration. The Administration is required to respond formally in writing to the PAC reports. This takes the form of a Government Minute to be tabled in the Legislative Council by the Chief Secretary for Administration within three months of the publication of the PAC report.

We attach great importance to the Government Minute which comments as appropriate on the conclusions and recommendations contained in the PAC reports and indicates what action the Administration proposes to take. The Finance Bureau assists the Chief Secretary for Administration in the compilation of the Government Minute. Bureau Secretaries and Controlling Officers concerned are required to provide clear and definite response to the recommendations of the PAC. Where they agree with the recommendations, they should provide an action plan on how they intend to implement remedial measures to rectify the irregularities highlighted by the PAC and the Director of Audit. Where they do not intend to take action, they are required to explain why.

The Administration must also provide the PAC with an Annual Progress Report on matters outstanding from previous Government Minutes. This follow-up mechanism could enable the PAC to monitor the progress of the Administration's response to its recommendations until a matter has been satisfactorily resolved and, with the agreement of the PAC, is deleted from the list of outstanding items. The Annual Progress Report is usually presented to the Legislative Council in September every year.

In addition, the Finance Bureau monitors progress on matters outstanding in previous Government Minutes by asking for half-yearly progress reports from the bureaux and departments concerned. We also compile half-yearly progress reports on those subjects in the Director of Audit's reports that have not been selected for investigation by the PAC. We keep the Director of Audit informed by copying to him all these reports.

On part (b) of the question, all Controlling Officers are required to ensure the economy, efficiency and effectiveness of their operations. Their duties and responsibilities are laid down in the Public Finance Ordinance and elaborated in instructions and regulations issued by the Financial Secretary from time to time. Depending on the nature of particular issues raised in the Director of Audit's reports, we may require all or a particular group of departments to review whether they have the same sort of problems in their departments. We may also promulgate service-wide guidelines for all to observe in order to prevent similar problems from recurring. Take a recent example, in view of the Director of Audit's findings regarding the monitoring of outdoor staff in several departments in his Report No. 31, the Secretary for the Civil Service has asked all Heads of Departments to review immediately existing systems of supervising outdoor staff and implement any necessary action promptly. They will report progress to him on their reviews and the way forward within three months.

MR AMBROSE CHEUNG(in Cantonese): Madam President, according to an example cited in the last paragraph of the Government's main reply, other departments also need to review their respective systems of supervising outdoor staff and report on the progress of their reviews to the Secretary for the Civil Service in three months. In this connection, could the Secretary inform this Council whether such reports will also be included as part of a standing mechanism to enable the Legislative Council to follow up the matters concerned, just like such standing arrangements as PAC reports, Government Minutes, progress reports and annual reports to which the Secretary has referred in the first paragraph of the main reply?

SECRETARY FOR THE TREASURY (in Cantonese): Madam President, both the Government Minute and the Annual Progress Report are made in response to the PAC reports on subjects selected for further investigation. For this reason, subjects which have not been selected by the PAC, or even more fundamentally, matters not raised in the Director of Audit's reports, as in the case referred to by the Honourable Ambrose CHEUNG in his supplementary, will not be included in any Government Minutes or Annual Progress Reports. Nevertheless, I believe there are still many other channels through which this Council could require the Government to submit reports, for example, relevant Legislative Council Panels such as the Panel on Public Service and so on. The existing mechanisms should be able to enable this Council to continue monitoring the work of the Government in the areas concerned.

MR AMBROSE CHEUNG (in Cantonese): Madam President, with your leave, I should like to raise a supplementary on the first part of the main reply. According to the standing arrangements to which the Secretary has referred just now, the Administration is required to respond to the recommendations for improvement made by the Director of Audit in Government Minutes, progress reports and annual reports. Nevertheless, it seems to me that the Audit Commission does not have any capacity or power to monitor the progress of the remedial measures; the only participation of the Director of Audit in this connection is to receive all such reports copied to him to keep him informed of the progress of matters. The Audit Commission itself does not have any particular role in ensuring the practical implementation of its recommendations for improvement. Could the Secretary inform this Council whether this is true; and if so, of the reasons?

SECRETARY FOR THE TREASURY (in Cantonese): Madam President, this is not what happens in reality. As a matter of fact, the Government Minute, the Annual Progress Report the Administration provides the PAC with, as well as the half-yearly progress reports submitted to the Director of Audit all serve to enable the Director of Audit to learn from different sources the follow-up actions taken by the Administration in respect of the recommendations made in the Director of Audit's reports. Should the Director of Audit have any remarks or comments about the Administration's response, he could raise them in any of the subsequent Director of Audit's reports. Director of Audit's reports are prepared for presentation to the PAC, thus the mechanism in this respect is therefore rather complete, and the Administration will have absolutely no chance to "duck out" of dealing with the issues raised.

PRESIDENT (in Cantonese): Fifth question.

Change in Land Title

5. MR LAU KONG-WAH (in Cantonese): Madam President, upon the completion of the Shenzhen River Regulation Project, a parcel of land in the bend of the River of about one sq km will be formed by the original section of the River and the newly formed section between the Huanggang and Lok Ma Chau Crossings. It is reported that the Shenzhen Municipal Government has assigned the title of this piece of land to Shum Yip Holdings Company Limited in early 1997. In this connection, will the Government inform this Council:

(a) whether any agreement has been reached between the two Governments to the effect that the Shenzhen Municipal Government will discuss with the Government of the Hong Kong Special Administrative Region (SAR) before the assignment of the said title; whether the said title is registrable in Hong Kong; and whether it has assessed the impact of such a change in the title on the development of this piece of land;

(b) of the itemized details of the administrative right that can be exercised by the SAR Government in respect of this piece of land and the co-operation mechanism between the two Governments in respect of the future development of this piece of land; and

(c) whether the crimes committed on this piece of land will be dealt with according to the laws of Hong Kong?

SECRETARY FOR PLANNING, ENVIRONMENT AND LANDS (in Cantonese): Madam President,

(a) There is no agreement between the SAR Government and the Shenzhen Municipal Government regarding prior consultation over any assignment of the land title of the Lok Ma Chau (LMC) Loop. We are seeking clarification with the Central People's Government over matters relating to any title to this site. The LMC Loop is located within the Frontier Closed Area and the Government at present does not have any development plans for this site. The question of assessment of the impact of the so-called "change in title" on the development of this site, therefore, does not arise.

(b) In accordance with Article 7 of the Basic Law, the SAR is responsible for the management, use and development of land and for the leasing or granting to individuals, legal persons or organizations that land for use or development. No agreement has been reached on any co-operation mechanism between the SAR Government and mainland authorities in developing this site.

(c) As the LMC Loop falls within the boundary of the SAR, if crimes were committed in this area, they will be dealt with in accordance with the laws of the SAR.

MR LAU KONG-WAH (in Cantonese): Madam President, paragraph (a) of the main reply indicated indistinctly that the issue was handed to the Central People's Government for discussion only after divergence and disputes had arisen. Will the Secretary inform this Council whether the Guangdong Government had, during the previous meeting held between Guangdong and Hong Kong, made the request and confirmed that the title had been granted to Shum Yip Holdings Company Limited? If so, what action will the Government take in future?

SECRETARY FOR PLANNING, ENVIRONMENT AND LANDS (in Cantonese): Madam President, when experts from a sub-committee on Hong Kong/Guangdong cross-border liaison entered into discussion at expert level on how to co-operate in developing high technology industrial estates, the Shenzhen authorities did mention the possibility of considering developing the Loop area into new technological industrial estates. As I said in the main reply, we are trying to sort out the situation with the Central People's Government.

MISS CHAN YUEN-HAN (in Cantonese): Madam President, according to what the Secretary said just now, the Loop area seems to fall within the boundary of the SAR. I would therefore like to ask the Secretary for clarification. If this piece of land belongs to the SAR, on what matters will the Government consult the Central People's Government? I hope the Secretary can give me a reply.

SECRETARY FOR PLANNING, ENVIRONMENT AND LANDS (in Cantonese): Madam President, it is clearly set out in the Order of the State Council of the People's Republic of China No. 221 of 1 July 1997 that the boundary of the SAR will, after the realignment of the Shenzhen River, follow the new centre line of the river. Therefore, it is an indisputable fact that the LMC Loop will fall within the boundary of the SAR.

MR JAMES TO (in Cantonese): Madam President, my supplementary question is if the situation is so clear-cut, why did paragraph (a) of the main reply fail to state clearly that this piece of land belong to the SAR Government, and instead it had to seek clarification with the Central People's Government?

SECRETARY FOR PLANNING, ENVIRONMENT AND LANDS (in Cantonese): Madam President, the supplementary question I answered earlier was related to the boundary, whereas the one now raised by another Member is related to title. It is the title of the Loop area that we are seeking clarification with the Central People's Government.

MR JAMES TO (in Cantonese): Madam President, could the Secretary inform this Council of the difference between boundary and title? If not, Members will not be able to understand what he means. This is because according to paragraph (b) of the main reply, the SAR is responsible for such matters as management and development of land.

SECRETARY FOR PLANNING, ENVIRONMENT AND LANDS (in Cantonese): Madam President, concerning the issues related to boundary and title, I am afraid we have to ask legal experts to explain them. But as far as I understand it, the Order of the State Council as promulgated by the State Council has stated that the boundary will be divided by the centre line of the river, with the land south of the centre line belonging to the SAR. Nevertheless, the State Council Order has not clearly stated how the title of the Loop area should be granted for development or how the area should be sub-leased. It is for this reason that we are now seeking clarification with the Central People's Government.

MR HO SAI-CHU (in Cantonese): Madam President, in fact, my supplementary question is also focused upon something similar. I feel that the main reply is somewhat ambiguous as paragraph (c) of the main reply seems to state that the site belongs to the SAR. Under such circumstances, I worry that if our understanding is different from that of Shenzhen, it might handle certain matters on its own? If this really happens, of course we need to seek help from the Central People's Government for solution. Is the Secretary confident that he can sort out the matter so that it can be handled in a clear-cut manner?

SECRETARY FOR PLANNING, ENVIRONMENT AND LANDS (in Cantonese): Madam President, this is exactly what we are trying to clarify with the Central People's Government. We hope we can sort out the whole matter clearly.

MISS CHAN YUEN-HAN (in Cantonese): Madam President, will the Government inform this Council whether it is trying to figure out with the Central People's Government that if we divide the boundary by following the centre line of the river, the site should belong to us but the right to use it may go to Shenzhen? If so, it may lead to some trouble as we have different systems under the same country and interpretation may differ under different systems. Will the Government inform this Council what it will do if different interpretations are applied to the legislation pertaining to title?

SECRETARY FOR PLANNING, ENVIRONMENT AND LANDS (in Cantonese): Madam President, I appreciate Members' concerns in this respect. This is why, as I said earlier, we are seeking clarification with the Central People's Government. After receiving the reply from the Central People's Government, perhaps we can provide this Council with information in greater details. But we are still waiting for the reply.

PRESIDENT (in Cantonese): Miss CHAN, do you want to wait in line or do you think your supplementary question has not been answered?

MISS CHAN YUEN-HAN (in Cantonese): Madam President, on the one hand, my question has not yet been answered and, on the other, I want to wait in line to raise my next question.

PRESIDENT (in Cantonese): I will let you wait in line then.

MR LAU KONG-WAH (in Cantonese): In fact, the Secretary has not really answered one of my supplementary questions just now. He should not evade my question anyhow. Although he said he was seeking clarification with the Central People's Government, the site does in fact fall within our boundary. As to the title, has the Shenzhen Government really granted it to a company? All he needs to do is to answer either "yes" or "no"? In addition, paragraph (b) of the main reply stated that there was no agreement yet. Will the Secretary not rule out the possibility of reaching an agreement of developing the site together?

SECRETARY FOR PLANNING, ENVIRONMENT AND LANDS (in Cantonese): Madam President, regarding Mr LAU's question of what the Shenzhen Government has done, I think it is very difficult for me, as a spokesman for the SAR Government, to reply on behalf of the Shenzhen Government. As to the second part of the supplementary question, that is, whether there is a possibility for both parties to co-operate in developing the land, we have, as I have told Members just now, discussed this matter at the expert level during a joint conference on Hong Kong/Guangdong co-operation. But as the development of the site will involve numerous levels and the participation of many bureaux within the SAR, we may not be able to give a specific reply shortly. But we will not say for sure that there is no possibility for both sides to co-operate in developing the site. I believe we need to give both parties some time to discuss the matter as far as this aspect is concerned.

PRESIDENT (in Cantonese): Mr LAU, which part of your supplementary question has not been answered?

MR LAU KONG-WAH (in Cantonese): The Secretary has not answered the first part of my supplementary question. Of course, he cannot answer on behalf of the Shenzhen Government but I wonder if the Shenzhen Government has said that the title had already been granted?

SECRETARY FOR PLANNING, ENVIRONMENT AND LANDS (in Cantonese): Madam President, I am very sorry that I cannot answer the question as I did not attend that meeting personally.

MR JAMES TO (in Cantonese): Madam President, we will conduct a debate on jurisdiction later. But now we are having a problem pertaining to the granting of leasing rights of land that falls within our boundary. Will government officials inform this Council whether we have other pieces of land in Hong Kong which, like this piece of land, we have, according to Article 7 of the Basic Law, the leasing right but still we need to discuss with someone else concerning this right? And will we insist that the leasing right pertaining to land falling within the boundary of the SAR belong to the SAR Government? It is really strange that we need to discuss with someone else in such a context.

SECRETARY FOR PLANNING, ENVIRONMENT AND LANDS (in Cantonese): Madam President, I need to clarify that the SAR Government is not discussing with the Shenzhen Government about this title issue. What we are doing at the moment is to seek clarification with the Central People's Government over the issue. As regards the supplementary question raised by Mr James TO earlier concerning whether there is any other situation like this, the Loop area is a unique case indeed. The problem pertaining to boundary demarcation arises simply because we need to demarcate according to the new centre line of the Shenzhen River after the realignment of the river and after the straightening of the river bed. As such, I believe this is the only answer I can give at the moment.

MR ANDREW WONG (in Cantonese): Will the Secretary inform this Council whether certain citizens of Shenzhen own the title of some farmland as well as land that fall within the boundary of the SAR?

SECRETARY FOR PLANNING, ENVIRONMENT AND LANDS (in Cantonese): Madam President, there is none as far as I am aware.

MISS CHAN YUEN-HAN (in Cantonese): Madam President, I would like to tell the Secretary that I did go to Shenzhen to discuss this issue as we were deeply concerned about the use of this piece of land. I even saw that Shenzhen treated this piece of land as if it owned its title. As a result, they have done a lot of planning there. Could the Secretary inform me how long it will take for the Government to sort out the matter with the Central People's Government to decide which side should be responsible for the management of the site? I do not wish to see the question keep on dragging. This is because if this really happens, it might lead to a lot of misunderstanding between both parties and many disputes will thus arise. I said this because Shenzhen previously owned the site before the Shenzhen River was straightened. It is only after the implementation of the straightening works that the river will fall into the boundary of Lok Ma Chau. As such, both parties may have different ways in interpreting the relevant ordinance and thereby leading to a lot of misunderstanding. Will the Government inform this Council when it can clarify the whole matter?

SECRETARY FOR PLANNING, ENVIRONMENT AND LANDS (in Cantonese): Madam President, no deadline was fixed when we asked the Central People's Government for information. But I can assure Members that as we have this question in this Council today, we will definitely inform the Central People's Government of the concerns of Members over this matter in the hope that we can have a clear reply earlier.

MR JAMES TO (in Cantonese): Madam President, the Central People's Government should not only appreciate the position held by Members of this Council. The most important thing is whether officials of the SAR Government can declare the position of the Government in public that, according to Article 7 of the Basic Law, the leasing right of the site should go to the SAR Government. Or they are fundamentally telling the Central People's Government that the current situation is pretty delicate but it does not really matter; since Members in this Council have very strong views, it will do no harm to listen to what they have to say.

SECRETARY FOR PLANNING, ENVIRONMENT AND LANDS (in Cantonese): Madam President, as I said earlier, the SAR Government bases on two things in dealing with the issue pertaining to the Loop area. The first one is Article 7 of the Basic Law, and the other is the Order of the State Council issued on 1 July. It was by virtue of these two legal bases that the SAR Government elaborated on the boundary and the right relating to the use of the Loop area. I have nothing to add concerning these two documents.

MR JAMES TO (in Cantonese): Does the Government hold that we have the rights to manage and lease the site? Madam President, according to your understanding, is this the position held by the Government? Have I made a wrong interpretation?

PRESIDENT (in Cantonese): Mr TO, the President is not in the position to interpret the Government's position. Your supplementary question is very clear, but the public officer can elect to answer your question in this manner. I cannot make him to answer you in such a way that you think is acceptable. Therefore, you may wish to follow up your supplementary question on other occasions.

MR ANDREW WONG (in Cantonese): Madam President, I am aware that some farmland in the SAR are indeed owned by certain citizens in Shenzhen. But as the farmland is situated within the boundary of Hong Kong, high-rise buildings cannot be built on it indiscriminately once it is designated as farmland. I hope the Secretary can confirm that if we think the site in question falls within our jurisdiction, even if the title of the site belongs to the Shenzhen Government and even if Shenzhen has granted it to Shum Yip Holdings Company Limited, the company will still be prohibited from constructing buildings on the site unless such arrangements as payment of premium or planning approval have been made.

SECRETARY FOR PLANNING, ENVIRONMENT AND LANDS (in Cantonese): Madam President, as I said earlier, I am not aware that some land that falls within the boundary of the SAR Government is not owned by Hong Kong people. If this really happens, these lands will be similarly subject to planning control as all the places south of the new centre line of the Shenzhen River should belong to Hong Kong. As I said in the main reply earlier, if crimes were committed in those areas, they will be dealt with in accordance with the laws of Hong Kong. As such, they will be similarly subject to our planning legislation as far as planning is concerned.

PRESIDENT (in Cantonese): Last oral question.

Environmental Hygiene in Pedestrian Areas

6. PROF NG CHING-FAI (in Cantonese): Madam President, on Sundays and Public Holidays, some less-civic-minded people scatter rubbish all over the streets designated as a pedestrian area in the Central District, and this directly affects the environmental hygiene of the streets. In view of this, will the Government inform this Council:

(a) of the number of complaints received during the last year concerning the poor environmental hygiene condition in that area on holidays;

(b) whether the Administration would consider stepping up the prosecution of people who scatter rubbish in the pedestrian area; and

(c) whether the Administration will step up publicity and education in this respect, so that people will pay more attention to environmental hygiene in pedestrian area; if so, the details of it?

SECRETARY FOR HOME AFFAIRS (in Cantonese): Madam President,

(a) During the period from November 1997 to October 1998, the Urban Services Department (USD) received 10 complaints about unhygienic conditions, mostly dumping of refuse by visitors, in the pedestrian precincts of the Central District during the holidays.

(b) Regular enforcement action against people who litter in the pedestrian area has been undertaken by USD. In the 12 months ending October 1998, a total of 623 litter offenders were prosecuted. To step up enforcement action, the USD has assigned dedicated teams to patrol the area and prosecute litter offenders. As part of the "Healthy Living into the 21st Century" Campaign, the Administration is considering measures to improve and raise the hygiene standard of our environment, including enhanced enforcement action against littering.

(c) The Administration places great emphasis on educating the public against littering and promoting public awareness and community involvement to improve the hygiene standards of the local environment. In addition to the territory-wide "Keep Hong Kong Clean Campaign", a "Clean Central Campaign" was launched on 18 October 1998 by the Provisional Urban Council and the Philippines Consulate-General to improve cleanliness in the Central District. In parallel, under the direction of the Steering Committee on Healthy Living into the 21st Century, which is chaired by the Chief Secretary for Administration, a series of activities are being planned. They include publicity through TV programmes; roving exhibitions and public seminars; design awards and competitions to promote healthy living.

PROF NG CHING-FAI (in Cantonese):Madam President, in part (b) of the main answer, the Secretary referred to "regular" enforcement action. Does a "regular" action means an action taken on every holiday or every other holiday? It is also stated in part (b) that the Administration is considering enhanced enforcement action. Does this imply the deployment of more manpower for enforcement actions? What is the current manpower level? How much more manpower will be deployed?

PRESIDENT (in Cantonese):Prof NG, I have said that each Member can only ask a supplementary question. As time is pressing, I do not want to take up Members' time, therefore, I hope that the Secretary will try his best to answer the question.

SECRETARY FOR HOME AFFAIRS (in Cantonese):Madam President, the Steering Committee on Healthy Living into the 21st century will hold a meeting in a few days' time and I can briefly say a few words on the items of work they will study and I hope that this will answer the Member's question. The items of work they will study include: first, reviewing the form and severity of penalty; second, improving work in respect of refuse disposal; third, tightening up the conditions for food establishment licensing; fourth, clearing up refuse black spots; and fifth, enhancing enforcement and prosecution actions. These issues will be studied at the meeting of the Steering Committee to be held a few days later.

PROF NG CHING-FAI (in Cantonese):Excuse me, the Secretary has not answered my first question, that is, does a "regular" action means an action to be taken on every holiday or every other holiday?

SECRETARY FOR HOME AFFAIRS (in Cantonese):Madam President, a "regular" action means an action to be taken on every holiday.

MR NG LEUNG-SING (in Cantonese):Madam President, it is stated in part (c) of the main answer that a "Clean Central Campaign" was launched by the Provisional Urban Council and the Philippines Consulate-General. Out of the 623 litter offenders prosecuted within the 12 months concerned as stated in part (b) of the main answer, how many are nationals of the Philippines? As some offenders were not prosecuted on holidays, are there other statistical data to show who else apart from nationals of the Philippines litter in the pedestrian area? Apart from the Philippines Consulate-General in Hong Kong, what other bodies does it need to co-operate with?

SECRETARY FOR HOME AFFAIRS (in Cantonese):Madam President, our statistical data is not categorized according to the nationality of litter offenders, therefore, we do not have the data requested by the Honourable Member. As most users of the pedestrian precincts are nationals of the Philippines, the Provisional Urban Council finds it most suitable to co-operate with the Philippines Consulate-General in Hong Kong. The Provisional Urban Council has no plans for co-operating with other consulate-generals or people at the moment.

MR GARY CHENG (in Cantonese):Madam President, the Secretary has just said that a review will be made on enforcement actions and penalty. Has specific measures been considered? As it is not a problem unique to Central but a territory-wide problem, will there be increased penalty or will those who litter be asked to collect refuse as punishment? Does the existing legislation have sufficient deterrent effect and has a review been made in this respect? It is a pity that the Chief Secretary for Administration has just left the Chamber as I originally intended to ask her to express her views in her capacity as the Chairman of the Steering Committee on Healthy Living into the 21st century.

SECRETARY FOR HOME AFFAIRS (in Cantonese):Perhaps I have to explain why we find the penalty against prosecuted offenders inadequate. In the past year, a first-time offender was fined some $440 while a subsequent offender was fined around $540 on average. Therefore, we will take this as the basis during the review and look into the form and severity of penalty.

MR SIN CHUNG-KAI (in Cantonese):Madam President, if my memory serves me correct, there was a plan a few years ago to divert some Filipino maids to certain schools on holidays so that they will not pool together in Central. As there are more and more Filipino maids in Hong Kong, Central is excessively crowded on Sundays. What is the progress of this plan?

SECRETARY FOR HOME AFFAIRS (in Cantonese):I believe that the Healthy Living into the 21st Century Campaign will take this issue into account. We have not yet formulated a specific proposal for the diversion of people.

WRITTEN ANSWERS TO QUESTIONS

Tsuen Wan "Seven Streets" Redevelopment Project

7. MR LEE CHEUK-YAN (in Chinese): Regarding the Tsuen Wan "Seven Streets" Redevelopment Project undertaken by the Land Development Corporation (LDC), will the Government inform this Council if it knows:

(a) as at 15 November 1998,

(i) the respective numbers of eligible families that have been rehoused by ballot, that have accepted cash compensation, and that have not been rehoused (together with a breakdown of families by the number of members);

(ii) the number of available units provided by the Hong Kong Housing Society (HS) as choices to families that have not been rehoused, as well as the details of these units in terms of location, area, size of household to be accommodated and rent;

(b) the breakdown of families that have been rehoused by ballot according to their sizes, as well as the geographical distribution of the rehousing units;

(c) the average monthly rent the families with rehousing eligibility paid for their original units at the Tsuen Wan "Seven Streets";

(d) the present average monthly rent paid by the families that have been rehoused;

(e) how the HS would implement the rehousing of families the majority of members of which do not meet the seven-year residence rule;

(f) whether the HS plans to rehouse families affected by the above redevelopment project in its housing units which have not been sold;

(g) the circumstances in which the rehousing eligibility of families affected by the redevelopment project will be forfeited;

(h) whether the LDC has reviewed if it is a fair policy to offer lower amounts of cash compensation to families that have not been allocated suitable units in the final ballot, as compared to the amounts of cash compensation offered to families that have participated in the earlier ballots; and

(i) whether the families affected by the above redevelopment project will be included in the Administration's plan, as stated in the Chief Executive's 1998 policy address, to seek the assistance of the Hong Kong Housing Authority in rehousing those affected by redevelopment projects?

SECRETARY FOR PLANNING, ENVIRONMENT AND LANDS (in Chinese): Madam President,

(a) (i) Statistics on households who have been rehoused, those who have accepted cash compensation, and those who will participate in ballots in the coming months are at Annex A.

(ii) The required data on rehousing units in Kowloon and the New Territories provided by the HS are at Annex B. The data exclude 84 units which have already been taken up by households as a result of successful ballots. They also exclude units on Hong Kong Island, which are required by another current project of the LDC. The HS forecasts that the supply of rehousing flats arising from casual vacancies will remain steady.

(b) Statistics on the households who have been rehoused are at Annex C.

(c) The monthly rents which tenants who are eligible for rehousing are currently paying for their accommodation at Tsuen Wan "Seven Streets" range from $190 to $9,250. The average is about $1,700.

(d) Details of the monthly rents paid by households who have been successfully rehoused into HS rental estates are at Annex D. They range from $690 to $2,775. The average is about $1,300.

(e) The residence criterion for households to be eligible for rehousing into the HS's rental flats is that the head of household must have lived in Hong Kong for at least seven years. Households which do not meet this criterion will be offered cash compensation.

(f) Eligible households will be rehoused into the HS's rental flats. There are no plans for the HS to make use of flats from its other housing schemes for this purpose.

(g) A household who has already participated in three successive ballots but refused to accept any of the flats allotted to it by the ballots will forfeit its rehousing eligibility. However, the household will be offered cash compensation in lieu of rehousing.

(h) The LDC does not have a policy of offering less compensation to those households who fail to choose a rehousing unit of their preference after three rounds of ballot, as compared with that offered to households who have participated in the earlier ballots.

(i) The HS already serves as rehousing agent for the LDC. Our plan to explore with the Housing Authority how we might seek its assistance in rehousing applies to arrangements in the longer term after the Urban Renewal Authority has been set up.

Annex A

Tsuen Wan "Seven Streets" Redevelopment Project
Distribution of Households who are Rehoused, or given Cash Compensation and who will participate in coming Ballots by Household Size

(as at 15 November 1998)

	Household Size
	1 person	2 persons	3 persons	4 persons	5 persons or above	Total
Households who have been rehoused	25	16	21	15	7	84
Households who have accepted cash compensation	132	53	52	29	21	287
Remaining households living in properties already acquired by LDC*	187	107	92	59	42	487

* The eligibility of these households for rehousing is being determined by checking whether they own domestic property or have alternative accommodation in public housing estates or in private property.

Annex B

Tsuen Wan "Seven Streets" Redevelopment Scheme
HS Rental Flats in Kowloon and the New Territories Currently Available for Rehousing

		Normal Rehousing Flats					Rehousing Flats for the Elderly			Total No.
District	Name of Estate	No. of Units	Rental ($)	Flat Size (sq m)	Household Size*	No. of Units+		Rental ($)	of Flats
Tsuen Wan	Moon Lok Dai Ha	20	850-1,275	21.5-32.5	2-4 persons	-		-	20
Tsuen Wan	Clague Garden Estate	-	-	-	-	2		780	2
Tsuen Wan	Bo Shek Mansion	2	2,430-5,180	22.8-49.7	2 persons or more	19		955-1,150	21
Kwun Tong	Kwun Tong Garden Estate	116	880-2,010	23.2-34	2 persons or more	8		690	124
Yau Ma Tei	Prosperous Garden	40	3,755-6,005	31.9-46.6	2 persons or more	13		655-1,990 (3 persons)	53
To Kwa Wan	Lok Man Sun Chuen	141	985-1,820	26.5-56.5	2 persons or more	-		-	141
Ma Tau Wai	Chun Seen Mei Chuen	24	985-1,560	25.8-43.7	2 persons or more	-		-	24
Hung Hom	Ka Wai Chuen	5	1,170-1,350	18.7-29	2-4 persons	4		690	9
Tseung Kwan O	Verbena Heights	100	830-1,215	15-22.3	2-4 persons	-		-	100
Sai Kung	Lakeside Garden	17	1,275-2,035	21.2-34	1-3 persons	-		-	17
Sha Tin	Jat Min Chuen	95	1,215-1,585	19.1-26.3	2-4 persons	8		780	103
Tsing Yi	Broadview Garden	35	2,175-4,075	27.1-46.8	2-4 persons	-		-	35
Kwai Chung	Cho Yiu Chuen	19	1,240-2,240	37-58	2 persons or more	9		710	28
	Total	614	-	-	-	63		-	677

Note: * The allocation is based on a standard of 7 sq m per person

⁺ All flats listed in this column are for 1-2 person elderly households except for one unit in Prosperous Garden which can accommodate a 3- person elderly household

Annex C

Tsuen Wan "Seven Streets" Redevelopment Project
Distribution of Households Rehoused into HS Rental Flats
by Household Size and Rehousing Estate

(as at 15 November 1998)

District	Estate	Unit Types
		*EPF1	EPF2 or above	1P	2P	3P	4P	5P or above	Total
Tsuen Wan	Moon Lok Dai Ha	0	0	0	1	2	7	0	10
Tsuen Wan	Clague Garden Estate	0	0	0	0	1	0	0	1
Tsuen Wan	Bo Shek Mansion	4	0	0	0	0	0	0	4
Kwun Tong	Kwun Tong Garden Estate	0	0	0	4	6	3	0	13
Yau Ma Tai	Prosperous Garden	0	0	0	0	0	0	0	0
To Kwa Wan	Lok Man Sun Chuen	0	0	0	2	4	2	2	10
Ma Tau Wai	Chun Seen Mei Chuen	0	0	0	1	2	0	0	3
Hung Hom	Ka Wai Chuen	0	0	0	1	0	0	0	1
Tseung Kwan O	Verbena Heights	0	0	19	0	0	0	0	19
Sai Kung	Lakeside Garden	0	0	0	0	0	0	0	0
Sha Tin	Jat Min Chuen	2	0	0	5	1	0	0	8
Tsing Yi	Broadview Garden	0	0	0	1	3	0	0	4
Kwai Chung	Cho Yiu Chuen	0	0	0	1	2	3	5	11
	Total	6	0	19	16	21	15	7	84

* Elderly Person Flat

Annex D

Tsuen Wan Seven Streets Redevelopment Project
Monthly Rents Payable by Households Rehoused into HS Rental Flats

(as at 15 November 1998)

Estate	No. of Households	Rents Payable ($)
Moon Lok Dai Ha	10	1,035-1,350
Clague Garden Estate	1	2,590
Bo Shek Mansion	4	955
Kwun Tong Garden Estate	13	880-2,010
Lok Man Sun Chuen	10	1,130-1,230
Chun Seen Mei Chuen	3	985-1,205
Ka Wai Chuen	1	690-1,350
Verbena Heights	19	830-880
Yat Min Chuen	8	780-1,585
Broadview Garden	4	2,175-2,775
Cho Yiu Chuen	11	1,240-2,000
Total	84	-

Recruitment of Dental Hygienists

8. MR MICHAEL HO (in Chinese): In connection with the recruitment of Dental Hygienists, will the Government inform this Council:

(a) of the entry qualifications for the post of Dental Hygienists;

(b) of the number of Dental Hygienist recruitment exercises conducted over the past three years, and the respective numbers of vacancies and eligible applicants in each of these recruitment exercises;

(c) of the difficulties in recruiting such staff; and

(d) whether it has taken any measures to attract more qualified persons to join the grade; if so, of the details?

SECRETARY FOR HEALTH AND WELFARE (in Chinese): Madam President,

(a) The entry requirements for the post of Dental Hygienists are as follows:

The person concerned should:

(i) have enrolled with the Dental Council of Hong Kong under Ancillary Dental Workers (Dental Hygienists) Regulations (Cap. 156, sub. leg. B), to practise as a dental hygienist; and

(ii) have Chinese Language and English Language (Syllabus B) at Grade "E" or above in the Hong Kong Certificate of Examination, or equivalent; and

(iii) be able to speak fluent English and Cantonese.

(b) The Department of Health conducted recruitment exercises in January 1995, February 1996 and February 1998. The vacancies were two, one and two respectively and the numbers of qualified applicants were four, five and seven respectively.

(c) and (d)

In these three recruitment exercises, all vacancies were filled by suitable persons selected from a pool of qualified applicants two to five times the numbers of vacancies. The Department of Health was satisfied with the result of these recruitment exercises.

Encryption Technology

9. MR SIN CHUNG-KAI: In view of the fact that information security is vital for the future development of electronic business, will the Government inform this Council of:

(a) the present policy and regulations for the import and re-export of encryption technology, which is a technology for converting an electronic message into a secret form; and the rationale for them;

(b) the actions it has taken to request the Government of the United States to relax its export controls on encryption technology; and

(c) the average time taken for vetting and approving the import of encryption technology; and of the means to streamline such process?

SECRETARY FOR TRADE AND INDUSTRY: Madam President,

(a) Under the Import and Export Ordinance and its Strategic Commodities Regulations, software or hardware having cryptographic functions as described in Schedules 1 and 2 to the Regulations are classified as strategic commodities which require licences issued by the Director-General of Trade for their import and export, including re-export. We follow international standards in controlling the import and export of strategic commodities, including encryption products. Such controls are essential for the purpose of maintaining the confidence of the developed countries in our system, thereby enabling our businesses to continue to have access to high-tech products and cutting-edge technologies which originate in those developed countries and which are necessary for Hong Kong's economic development.

(b) The United States Government revised in September 1998 its encryption policy to allow easier access to encryption software by a number of sectors in 45 destinations. These sectors include financial and banking institutions, insurance companies, health and medical sectors, and on-line merchants. Hong Kong is one of the 45 beneficiaries eligible for receiving powerful encryption products for use by these specific sectors without individual licences. As regards other sectors, we have been in touch with the United States Administration and have been informed that applications involving encryption software for use by these sectors in Hong Kong will be considered on a case-by-case basis. We shall continue to liaise with the United States Administration on the matter.

(c) The Director-General of Trade normally approves within five working days applications for the import of encryption products supported by the necessary end-use and end-user information. In view of the United States's recent revision of its encryption control policy, the Trade Department has simplified the documentation requirement and streamlined the existing licensing procedure in order to expedite the processing of applications for the import of encryption products. Furthermore, we understand that the international non-proliferation regime concerned (that is, the Wassenaar Arrangement) has recently decided to relax controls on certain encryption products. For example, controls on all encryption products at or below 56 bits will be removed. We will update the relevant Schedules to the Import and Export (Strategic Commodities) Regulations to remove the licensing requirements for such products.

Staff in Public Hospitals

10. MR LEE KAI-MING (in Chinese): Will the Government inform this Council as at the end of October 1998, of:

(a) the total number of staff in each public hospital; and

(b) the respective numbers of Ward Attendants, Workmen II and Health Care Assistants in each public hospital; and their respective percentages of the total number of staff in the hospital?

SECRETARY FOR HEALTH AND WELFARE (in Chinese): Madam President,

(a) and (b)

As at end of October 1998, the total number of staff, the respective numbers of workmen II, ward attendants and health care assistants and their respective percentages of the total number of staff for each public hospital are listed in the annex.

The differences in percentages of workmen II, ward attendants and health care assistants between different hospitals reflect the diversity in functions, scopes and levels of complexity of medical services provided in each hospital.

Annex

As at 31.10.1998

Hospital/Institution	Total Strength			Ward Attendant				Workman II				Health Care Assistant
				No.		% of total strength			No.		% of total strength			No.	% of total strength
Hong Kong
Cheshire Home (Chung Hom Kok)	97			0		0.0%			11		11.3%			23	23.7%
Duchess of Kent Children's Hospital	264			12		4.5%			36		13.6%			16	6.1%
Grantham Hospital	792			32		4.0%			79		10.0%			40	5.1%
Maclehose Medical Rehabilitation Hospital	170			8		4.7%			15		8.8%			14	8.2%
Nam Long Hospital	218			5		2.3%			16		7.3%			40	18.3%
Pamela Youde Nethersole Eastern Hospital	3 102			24		0.8%			406		13.1%			335	10.8%
Queen Mary Hospital	4 151			268		6.5%			488		11.8%			208	5.0%
Ruttonjee Hospital & Tang Shiu Kin Hospital	1 314			29		2.2%			167		12.7%			127	9.7%
St John Hospital	136			0		0.0%			18		13.2%			28	20.6%
Tsan Yuk Hospital	427			22		5.2%			35		8.2%			48	11.2%
Tung Wah Eastern Hospital	578			21		3.6%			86		14.9%			49	8.5%
Tung Wah Group of Hospitals Fung Yiu King Hospital	244			12		4.9%			37		15.2%			38	15.6%
Tung Wah Hospital	848			94		11.1%			102		12.0%			23	2.7%
Wong Chuk Hang Hospital	24			0		0.0%			28		13.1%			60	28.0%
Kowloon
Haven of Hope Hospital	550			17		3.1%			38		6.9%			65	11.8%
Hong Kong Buddhist Hospital	341			41		12.0%			33		9.7%			16	4.7%
Kowloon Hospital	1 341			72		5.4%			163		12.2%			60	4.5%
Kwong Wah Hospital	2 981			152		5.1%			338		11.3%			179	6.0%
Margaret Trench Medical Rehabilitation Centre	105			3		2.9%			11		10.5%			9	8.6%
Our Lady of Maryknoll Hospital	551			23		4.2%			48		8.7%			25	4.5%
Queen Elizabeth Hospital	4 875			203		4.2%			636		13.0%			187	3.8%
Tung Wah Group of Hospitals Wong Tai Sin Hospital	650			45		6.9%			65		10.0%			129	19.8%
United Christian Hospital	2 979			45		1.5%			309		10.4%			227	7.6%
New Territories
Alice Ho Miu Ling Nethersole Hospital	1 248			0		0.0%			52		4.2%			130	10.4%
Bradbury Hospital	67			2		3.0%			5		7.5%			5	7.5%
Caritas Medical Centre	2 092			122		5.8%			222		10.6%			137	6.5%
Castle Peak Hospital	1 433			74		5.2%			190		13.3%			203	14.2%
Cheshire Home (Shatin)	217			2		0.9%			26		12.0%			40	18.4%
Fanling Hospital	162			13		8.0%			15		9.3%			16	9.9%
Kwai Chung Hospital	1 501			173		11.5%			170		11.3%			72	4.8%
Lai Chi Kok Hospital	217			45		20.7%			30		13.8%			1	0.5%
North District Hospital	677			0		0.0%			36		5.3%			62	9.2%
Pok Oi Hospital	579			26		4.5%			42		7.3%			78	13.5%
Prince of Wales Hospital	4 021			201		5.0%			458		11.4%			171	4.3%
Princess Margaret Hospital	3 240			156		4.8%			364		11.2%			138	4.3%
Shatin Hospital	793			1		0.1%			117		14.8%			126	15.9%
Siu Lam Hospital	316			56		17.7%			34		10.8%			90	28.5%
Tai Po Hospital	526			0		0.0%			109		20.7%			103	19.6%
Tuen Mun Hospital	3 533			194		5.5%			356		10.1%			236	6.7%
Yan Chai Hospital	1 719			8		0.5%			226		13.1%			159	9.2%
Other Hospital/Institution
Hong Kong Eye Hospital	210			1		0.5%			29		13.8%			0	0.0%
Hong Kong Red Cross Blood Transfusion Service	305			0		0.0%			23		7.5%			0	0.0%
Rehabaid Centre	28			0		0.0%			2		7.1%			0	0.0%
Total	49 812			2 202		4.4%			5 671		11.4%			3 713	7.5%

Quality of Edible Salt

11. MISS CHRISTINE LOH: The majority of edible salt comes from mainland China. In this connection, will the Administration inform this Council:

(a) whether regular tests are conducted on imported edible salt,

(b) how Hong Kong's acceptable standards on the quality of edible salt compare with those on the Mainland; and

(c) how the current regulations on the marking and labelling for prepackaged edible salt in Hong Kong compare with

(i) those in place in Hong Kong before 1996, and

(ii) those currently in force on the Mainland?

SECRETARY FOR HEALTH AND WELFARE: Madam President,

(a) Imported edible salt is subject to regular examination under the Department of Health's food surveillance programme.

(b) The standard which the Department of Health uses for assessing the quality of edible salt is based on recommendations of many advanced international food safety authorities. The ingredient of concern is sodium chloride on dry basis. The local requirement is that 97.5% of edible salt needs to be sodium chloride on dry basis. This is similar to that of the Mainland which requires only 97% of edible salt to be sodium chloride on dry basis.

(c) (i) Currently, marking and labelling of prepackaged edible salt sold in Hong Kong is governed by Schedule 3 of the Food and Drugs (Composition and Labelling) Regulations (Cap. 132 sub. leg.). The Regulations were last amended in 1996. Major amendments are as follows:

- highly perishable prepackaged food products are required to be marked with "use by" dates;

- it is an offence for anyone to sell, offer or expose for sale any prepackaged food products after their "use by" dates; and

- it is an offence for anybody, except the manufacturer or packer or other persons with authorization, to alter, remove or obliterate any particulars on food labels required under the Regulations.

Since prepackaged edible salt is not a highly perishable prepackaged food product, it is exempted from the "use by" date-marking requirement. However, it has become an offence since 1996 for anybody, except the manufacturer or packer or other persons with authorization, to alter, remove or obliterate any particulars on labels of prepackaged edible salt required under the Regulations.

(ii) Hong Kong's requirements on the marking and labelling for prepackaged edible salt are similar to those of the Mainland. This is because both are based on recommendations of Codex Alimentarius Commission, the food safety authority of the United Nations. The comparison of the requirements is as follows:

Requirement for Labelling	Hong Kong	The Mainland
Food Name	Yes	Yes
List of Ingredients	Yes	Yes
Indication of Minimum Durability	Yes	Yes
Name and Address of Manufacturer/Packer	Yes	Yes
Count/Weight/Volume	Yes	Yes
Appropriate Language to be Used	Yes	Yes
Statement of Special Instruction for Use	Yes	Recommended
Statement of Special Instruction for Storage	Yes	Yes
Declaration of Irradiated Food	Yes	Yes
Quality Grade Declaration	No	Yes
Product Standard Code	No	Yes
Lot Identification	No	Recommended

USD's Trial Scheme to Employ the Disabled

12. MR CHEUNG MAN-KWONG (in Chinese): It is learnt that the Urban Services Department (USD) has launched a trial scheme which aims at creating more employment opportunities for disabled persons and assisting them in integrating into the community, by arranging for the refreshment outlets operations at its venues to be awarded to organizations for the disabled, and requiring them to employ a certain number of disabled persons to work in the outlets. In this connection, will the Government inform this Council:

(a) of the venues under the management of the USD at which the trial scheme is being conducted; whether places such as refreshing kiosks and gift shops are covered under the trial scheme;

(b) of the support (such as financial support) which is provided by the USD for the trial scheme;

(c) whether the USD has assessed the effectiveness of the trial scheme; if so, of the details;

(d) whether the USD plans to further extend the trial scheme; if so, of the details; and

(e) whether the Regional Services Department (RSD) has launched or will launch a similar scheme; if so, the details of the scheme?

SECRETARY FOR HOME AFFAIRS (in Chinese): Madam President, on the basis of information provided by the USD and RSD, the answers to the five questions raised by the Honourable CHEUNG Man-kwong are as follows:

(a) The light refreshment restaurant at the Cornwall Street Park is the only venue under the management of the USD which is currently operated by an organization for people with disability under a trial scheme. The scheme was first implemented in December 1996 and has now operated for almost two years. Many of the staff members employed in that restaurant are people with disability.

(b) Support provided by the Provisional Urban Council to the trial scheme included:

(i) a concessionary rental at 5% of the gross monthly income;

(ii) minor alterations and fitting out of the premises to meet the restaurant licensing requirements; and

(iii) provision of basic furniture, such as tables and chairs.

(c) The Provisional Urban Council reviewed the project in September 1998 and considered it a success in view of the satisfactory performance demonstrated by the organization, acceptance of the scheme by the public and the fact that the scheme improved employment opportunities for people with disability.

(d) Given the success of the scheme, the Provisional Urban Council plans to gradually extend the scheme to other regions, viz. Hong Kong East, Hong Kong West and Kowloon East. The three leisure venues identified for the scheme are:

(i) Java Road Complex Indoor Games Hall (Hong Kong East)

(ii) Aberdeen Tennis and Squash Centre (Hong Kong West)

(iii) Ho Man Tin Recreation Ground (Kowloon East).

(e) A similar scheme has not been carried out by the Provisional Regional Council. The Provisional Regional Council policy remains that contracting-out of its services should be conducted through competitive tendering. Under this policy, five of its service contracts are currently being operated by four organizations for people with disability. The Provisional Regional Council will keep in view the progress of the Provisional Urban Council trial scheme before it decides on the way forward.

Levels of Harmful Substances in Potable Water

13. MISS EMILY LAU (in Chinese): It is reported that potable water from Dongjiang contains high level of ammonia. In this connection, will the executive authorities inform this Council:

(a) of the average ammonia level in the water from Dongjiang in the past year, and how this figure compares with those in the four years before last year;

(b) whether chlorine is used by the Water Supplies Department (WSD) to neutralize ammonia in potable water; if so, of the amount of chlorine used for that purpose in the past year, and how this amount compares with those in the four years before last year;

(c) whether harmful substances such as trichloromethane will be generated by the use of chlorine to neutralize ammonia in potable water; if so, of the average levels of such harmful substances in potable water in the past year; and

(d) whether it has assessed how the health of people will be affected by such harmful substances, and of the measures in place to reduce the levels of such substances?

SECRETARY FOR WORKS (in Chinese): Madam President,

(a) Result of the water quality monitoring tests conducted at Muk Wu Pumping Station in the past year showed that the average level of ammonia per litre of Dongjiang water is 2.49 mg. The ammonia levels in the four years before 1998 are as follows:

Year	Ammonia Level Per Litre of Water
1997	1.94 mg
1996	1.17 mg
1995	0.89 mg
1994	1.22 mg

(b) The dosing of chlorine is to sterilize the water during the treatment process. Chlorine will react with ammonia and completely remove it in the end.

The average level of chlorine dosage is 7.7 mg per litre of water in the past year. The chlorine levels in the four years before 1998 are as follows:

Year	Chlorine Dosage Per Litre of Water
1996-97	6.2 mg
1995-96	5.0 mg
1994-95	4.1 mg
1993-94	2.5 mg

The amount of chlorine dosage for water treatment in various countries is determined by their regional and environmental needs. There are no rigid standards or requirements in this respect.

The 7.7 mg of chlorine dosage will be dissolved during the water treatment process. The average level of free chlorine residue per litre of water is about 1.0 mg and complies with the Guidelines for Drinking Water Quality (1993) of the World Health Organization (WHO) which requires that the level should not exceed 5.0 mg per litre of water.

(c) Trichloromethane will not be formed when chlorine reacts with ammonia during the treatment process, but chlorine may react with other impurities in raw water to produce trichloromethane. According to the above Guidelines, the level of trichloromethane in drinking water should not exceed 200 ug per litre of water. Records of the WSD showed that a trichloromethane level below 50 ug per litre of water, which is much better than the standard, has been maintained for years.

(d) The level of trichloromethane in potable water recorded by the WSD is also much lower than WHO standards. The health risk caused to human beings by a level lower than 50 ug of trichloromethane per litre of potable water is minimal.

Use of Substandard Tyres by Heavy Goods Vehicles

14. MRS MIRIAM LAU (in Chinese): Regarding the use of substandard tyres by heavy goods vehicles, will the Government inform this Council:

(a) of the number of heavy goods vehicles which were found to have substandard tyres during the mandatory vehicle examination in each of the past three years, and the percentage of such vehicles in the total number of heavy goods vehicles which failed to pass the examination;

(b) of the number of prosecutions instituted by the police against the owners of heavy goods vehicles which were found to have substandard tyres during the police's roadside inspections in each of the past three years, and the percentage of such prosecution cases in the total number of police inspection cases involving heavy goods vehicles;

(c) whether statistics have been compiled on the spans of time between the dates at which the vehicles mentioned in item (b) above were found to have substandard tyres and the dates of their last examination; if so, of the findings of the statistics; if not, why not; and

(d) whether it has discovered any cases where owners of vehicles changed the tyres of their vehicles into standard ones before sending them for examination and then replaced the tyres with the original substandard ones after the vehicles have passed the examination; if so, of the measures in place to prevent such acts; if not, whether investigations will be conducted into the matter?

SECRETARY FOR TRANSPORT (in Chinese): Madam President,

(a) The Government does not maintain statistics on the number of heavy goods vehicles which have failed to pass the vehicle examination owing to substandard tyres.

(b) The police do not keep records showing breakdown of prosecution cases arising from roadside inspections of heavy goods vehicles. Nevertheless, the police do have details of the number of summonses issued in respect of substandard tyres of heavy goods vehicles. The number of cases for 1995, 1996 and 1997 were respectively 25, 20 and 14.

(c) The Government does not compile statistics on the span of time lapsed between the dates of vehicle examination for heavy goods vehicles and the dates on which they were caught by roadside inspections. We have nevertheless retrieved information separately from the Transport Department and the police and conducted a manual matching of the records of the cases mentioned in paragraph (b) above. Of the 59 heavy goods vehicles records checked, two cases were found to have a short lapse of time of less than one month since their previous vehicle examination and the date of police prosecution for substandard tyres.

(d) The police and Transport Department have not uncovered any cases where owners of vehicles changed the substandard tyres of their vehicles into standard ones before sending them for examination and then replaced the tyres with the original substandard ones after the vehicle examination. We are concerned about such allegations. The police and the Transport Department are looking into the matter.

Train Failures of the Airport Railway

15. MR LAU KONG-WAH (in Chinese): It is reported that the Airport Railway train failures on 12 and 18 November 1998 caused disruptions to train services. In this connection, will the Government inform this Council:

(a) whether it knows:

(i) the total number of Airport Railway train failures which have occurred since its opening;

(ii) if the Mass Transit Railway Corporation (MTRC) has identified the causes of each train failure; if so, please provide a breakdown of such causes in terms of human errors, machine part damage or system failures, and advise how the MTRC solved these problems;

(iii) if ground settlement has occurred along the section of the track between Olympic Station and Lai King Station of the Airport Railway; if so, of the reasons for that, the impact on train services, and the remedial works carried out by the MTRC; and

(b) whether the Administration has set up a mechanism to monitor the quality of the inspection and maintenance work carried out for the Airport Railway by the Operations Engineering Department of the MTRC; if so, of the details of such a mechanism?

SECRETARY FOR TRANSPORT (in Chinese): Madam President,

(a) (i) Since the opening of the Airport Railway, there were six incidents which caused service disruption exceeding about 20 minutes or more.

(ii) The MTRC has carried out full investigations into the causes of each incident, as detailed below:

Number of Incidents		Causes
1		software failure
1		failure to comply with operational procedures
1		equipment fault
1		extraneous factor whereby an overhead line was damaged by nylon strings
2		hardware failure
Total	6

The MTRC has taken the necessary remedial actions to prevent recurrence of such incidents. These include immediate repair, software modification, enhanced training and fine-tuning of systems. It has also improved the contingency arrangements.

(iii) It is inevitable that settlement will occur on all reclaimed land. As the section between Olympic and Lai King is built on reclaimed land it is not immune from the effects of settlement. The MTRC has taken this factor into consideration in the design of the Airport Railway. A gradual settlement of about 1 cm per year is expected. This is well within the design limit. It has no adverse effect on the safe operation of the railway. The MTRC is closely monitoring the situation and is carrying out daily visual inspection and monthly test. Further maintenance work of the track will be undertaken as required.

(b) The Hong Kong Railway Inspectorate (HKRI) is set up to ensure the safety of railway systems in Hong Kong. It reviewed with the MTRC maintenance issues before the opening of the Airport Railway and was satisfied that;

(i) maintenance facilities had been completed;

(ii) maintenance organization had been set up with experienced professional staff at management level;

(iii) maintenance manuals which include detailed maintenance procedure and check lists had been prepared and further enhanced in the light of experience gained in the commissioning period; and

(iv) staff training had been completed.

The MTRC operates and maintains the railway having, at all times, due regard to the safety of the railway and of persons using or employed on the railway. The Corporation is responsible for carrying out all maintenance work according to the maintenance manuals and is required to notify HKRI of safety related incidents in accordance with MTR Regulations. The HKRI carries out regular inspections and if it identifies any weakness in the maintenance system, it will ask the Corporation to undertake the necessary improvement measures.

Employ More Teachers in Primary and Secondary Schools

16. MISS EMILY LAU (in Chinese): Will the executive authorities inform this Council whether they will consider providing government and aided primary and secondary schools with additional resources for the employment of more teachers, so as to reduce the workload of serving teachers and give them more time to care for their students?

SECRETARY FOR EDUCATION AND MANPOWER (in Chinese): Madam President, in order to improve the quality of education and strengthen our support to schools and teachers, the Government has kept the needs of students and schools under review from time to time with a view to providing additional resources and support as necessary. In the current school year, additional resources being allocated to public sector schools for providing extra teachers and other supporting services include the following:

- to provide secondary schools with native-speaking English teachers (NETs) on top of the normal establishment (each secondary school can be given one NET);

- to provide additional English teachers for secondary schools using Chinese as the medium of instruction (each secondary school can employ one to four additional English teachers depending on the number of classes);

- to provide additional teachers to primary schools to implement the English and Chinese extensive reading schemes and to improve library services (each whole-day school or bi-sessional school with 12 or more classes can employ one additional teacher); and

- to provide additional clerical staff to primary and secondary schools (each primary school can employ one to two additional clerical staff depending on the number of classes; and each secondary school can employ one additional clerical staff.)

In the coming three years, we will further create some 490 and 670 additional teaching posts in existing secondary and primary schools respectively. Moreover, the Chief Executive has announced in his 1998 policy address that from the 1999-2000 school year onwards, each public sector secondary and primary school will, on average, be provided with an annual grant of $120,000 and $155,000 respectively to implement school-based management. Schools can make flexible use of the grant, including the employment of additional staff. The Government has also allocated additional resources to speed up the creation of graduate posts in primary schools so as to raise the professional standard of the teaching force and to improve the quality of education.

In fact, the student-to-teacher ratio has improved steadily in recent years through continual allocation of additional resources by the Government, which enables teachers to teach more effectively and to have more time to care for their students. Relevant statistics are as follows:

	1995-96	1996-97	1997-98	1998-99
Primary schools	23.8:1	23.2:1	22.7:1	22.1:1
Secondary schools	19.5:1	19.5:1	19.5:1	18.8:1

In the long run, the Government will continue to strengthen its support to schools and training for teachers in order to provide all-round education to our students, covering both their academic achievements and character development.

Flying Activities by the Garrison Stationed at Shek Kong Camp

17. MR LEUNG YIU-CHUNG (in Chinese): Regarding flight activities by the garrison dispatched to Hong Kong by the Central People's Government and stationed at the Shek Kong Camp, will the Government inform this Council:

(a) whether the garrison stationed there has informed the Hong Kong Government of its flight schedule;

(b) whether it knows the average number of flight activities conducted each month by the garrison there; and the number of which conducted at night;

(c) of the current legislation governing the noise generated by such flight activities;

(d) whether it has assessed if such flight activities have increased the noise level in the neighbourhood; if so, the details of it; and

(e) whether it has plans to discuss with the garrison the reduction of the nuisance caused by its flight activities to residents nearby?

SECRETARY FOR SECURITY (in Chinese): Madam President,

(a) The garrison notifies the Civil Aviation Department of the Government of the Hong Kong Special Administrative Region (SAR) in advance every time flying activities are carried out by its helicopters.

(b) The number of flying activities of the garrison's helicopters is determined by its requirement in the discharge of its defence responsibility. Under normal circumstances, the garrison on average conducts 12 to 16 flying activities each month, less than one third of which are conducted at night. Barring exceptional circumstances, all such flying activities are carried out between 9.00 am and 9.30 pm.

(c) The garrison is not the only flying unit using the Shek Kong Airfield. Other users include the SAR Government Flying Service and the Hong Kong Aviation Club. Under the Civil Aviation (Aircraft Noise) Ordinance, the Civil Aviation Department is empowered to enforce noise control regulation on civil aircraft, but that Ordinance does not apply to military aircraft. Irrespective of whether the Ordinance applies or not, if the Government becomes aware of any problem of aircraft noise, the relevant units will be contacted to seek appropriate and practicable solution to minimize the impact of noise on residents.

(d) In view of the time restriction on the flying activities of the garrison's helicopters, the infrequency of their flights and the improvement measures adopted by the garrison, the Civil Aviation Department and the Environmental Protection Department consider that the impact of the noise caused by the garrison's helicopters on the surrounding areas of Shek Kong has been effectively alleviated.

(e) The SAR Government has established close liaison channels with the garrison to handle matters of mutual concern. The Government has earlier liaised with the garrison on the impact of noise caused by helicopters on residents in Shek Kong area. The garrison attaches great importance to the problem and regrets the inconvenience caused to some residents in Shek Kong. In order to alleviate the impact of its flying activities on the local residents, the garrison has put in place a series of positive adjustments to its flying operations as follows:

(1) The starting time of its flying sessions has been postponed from 7.00 am to 9.00 am and the closing time advanced from 12.00 midnight to 9.30 pm to take into account local living habits;

(2) Its training sessions for taking-off and landing have been so arranged that normally its helicopters would not fly at a low altitude over the same area within a short time;

(3) The amount of flight training at night has been reduced. In fact, the garrison has not conducted flight training at night recently;

(4) The garrison would not carry out formation flying training unless in exceptional circumstances;

(5) The number of low altitude flight training sessions has been reduced;

(6) The garrison's helicopters would avoid, as far as possible, flying at low altitude for a prolonged period over Shek Kong area and where possible, would move to flying over the sea and sparsely populated areas.

Conservation of Electricity by Government Departments

18. DR DAVID LI: Will the Government inform this Council what actions are in place or being planned to motivate civil servants to conserve electricity in government offices?

SECRETARY FOR PLANNING, ENVIRONMENT AND LANDS: Madam President, civil servants, as part of the community and taxpayers, are concerned with both the environment and the cost of running the Government. As good citizens, we all have an interest and a responsibility to conserve electricity. A number of steps have been taken across the Government to encourage the reduction of electricity consumption.

Since 1993, the Electrical and Mechanical Services Department (EMSD) has been conducting energy audit surveys for selected public buildings. These include checking energy consumption, identifying opportunities for energy efficiency improvements and recommending improvement measures. Many simple operational improvements that do not incur capital investments have been implemented, such as resetting room temperatures to higher values, switching off lights and air-conditioning on leaving rooms, shortening the pre-cooling time in the morning and turning off air-conditioning units earlier in the evening. By the end of 1998, 85 buildings will have been audited. Another 44 buildings will be audited by the end of 2000.

We also distribute energy saving tips, posters and stickers to educate and remind civil servants from time to time.

The Energy Efficiency Office (EEO) of the EMSD, established in 1994, co-ordinates and monitors the implementation of our energy management programmes and provides technical advice to other departments on energy efficiency and conservation matters. The EEO plans to release guidelines on good electricity consumption housekeeping in mid 1999.

The Government's Green Manager Scheme, introduced in 1994, requires departmental Green Managers to report on electricity consumption and the actions taken to save electricity. In addition, the Energy Managers appointed under the Green Manager Scheme are expected to conduct regular office walk-through surveys to identify weaknesses and opportunities for improving management practices.

A number of government-wide initiatives are expected to have a very positive impact on energy consumption in the coming years.

One of the initiatives in our "Policy Objectives" for Improving the Environment published in October this year is to require all Controlling Officers to publish environmental reports starting from the 1999-2000 financial year. The contents of these reports will vary considerably from department to department, but I expect one of the most common features will be measures taken to reduce energy consumption.

Population Statistics and Growth

19. MR LEUNG YIU-CHUNG (in Chinese): Will the Government inform this Council:

(a) of the average number of minor children in each family in Hong Kong at present;

(b) of the percentage of families with two or more minor children against the total number of families in Hong Kong in each of the past five years;

(c) of the estimated increase in Hong Kong's population in the next 10 years, the number of them who are local-born and the number of them who come from other places to settle in Hong Kong;

(d) whether there is a discrepancy between the current population growth rate and that estimated in the last census; if so, the reasons for it;

(e) whether it has assessed the effectiveness of the Hong Kong Family Planning Association's family planning education; if so, the details of the assessment; if not, why not; and

(f) whether consideration will be given to drawing up measures to further promote the concept of family planning, so as to slow down population growth?

SECRETARY FOR HEALTH AND WELFARE (in Chinese): Madam President,

(a) According to the data obtained from the General Household Survey (GHS), the average number of persons aged below 18 in each domestic household was 0.7 in the third quarter of 1998.

(b) Figures on the number of domestic households with two and more persons aged below 18 and the corresponding proportions in total number of domestic households from 1993 to 1997 are shown in the following table:

Period	Number of domestic households with two and more persons aged below 18		Domestic households with two and more persons aged below 18 as a proportion of total number of domestic households
			(%)
1993	447 900		26.7
1994	453 700		26.2
1995	453 100		25.4
1996	451 200		24.5
1997	457 000		23.8

(c) According to the Census and Statistics Department's latest population projections, the population is projected to increase from the estimate of 6 684 900 in mid-1998 to 7 547 900 in mid-2008. This represents an average annual growth rate of around 1.2% or an overall increase in population of 863 000 over the 10-year period. Natural increase (that is, births minus deaths) accounts for around 28% of the projected population growth while balance of arrivals over departures accounts for the remaining 72%.

(d) According to the projections on the basis of the information collected in the 1996 by-census, the projected mid-1998 population is 6 659 400, an increase of 2.6% compared with the projected mid-1997 population. The estimated mid-1998 population released in September 1998 is 6 684 900, an increase of 2.9% compared with the estimated mid-1997 population. The slight discrepancy is mainly attributable to a higher net inflow of people, as reflected by the balance of arrivals over departures.

(e) Survey on the Knowledge, Attitude and Practice of Family Planning has been carried out by the Family Planning Association of Hong Kong every five years since 1967. The recent survey done in 1997 showed that the percentage of a representative sample of 1 511 married women practising contraception has increased from 72% in 1977 to 86% in 1997. Therefore, this reflects success on promotion of family planning by the Family Planning Association of Hong Kong and other organizations providing family planning service, such as Maternal and Child Health Centres.

(f) The fertility rate of Hong Kong is already one of the lowest in the world, having dropped from 1.37 per reproductive age woman in 1986 to 1.19 in 1996. The number of births registered per year has decreased in the past 10 years from 73 030 (13 per thousand population) in 1988 to 60 379 (9.3 per thousand population) in 1997. This suggested that the concept of family planning is well accepted by the public.

Relocation of Shipyards in Tsing Yi

20. MR LEE WING-TAT (in Chinese): Regarding the relocation of shipyards at northern Tsing Yi, will the Government inform this Council:

(a) of the current progress of the relocation plan;

(b) whether there is any delay in the plan; if so, the reasons for it; and

(c) whether it has set a deadline for the relocation of shipyards?

SECRETARY FOR PLANNING, ENVIRONMENT AND LANDS (in Chinese): Madam President,

(a) Regarding the clearance work associated with the reclamation project in northern Tsing Yi, the Government has met the representatives of the affected shipyard operators several times and explained clearly to them the details of the clearance exercise and the terms on which they could relocate their shipyards. The Government hopes that they will decide early on whether to accept the Government's offer of new shipyard sites to be granted by private treaty, so that the clearance exercise may be carried out smoothly. However, the Government's terms have so far not been accepted by the representatives of the shipyard operators.

The representatives of the shipyard operators have raised a few counter-proposals regarding the terms before the original clearance date. The Government is considering these proposals and will reply to the representatives of the shipyard operators next week. The Government is also actively making preparations for the clearance exercise, which include co-ordinating respective items of work among government departments concerned, handling the technical issues involved and fixing a new clearance date.

(b) and (c)

Because of the issues mentioned in part (a) above, the Government could not carry out the clearance work in October this year as originally intended. However, the Government will fix the new clearance date as soon as possible and inform the shipyard operators concerned accordingly.

BILLS

First Reading of Bill

PRESIDENT (in Cantonese): Bills: First Reading.

FILM CENSORSHIP (AMENDMENT) BILL 1998

CLERK (in Cantonese): Film Censorship (Amendment) Bill 1998.

Bill read the First time and ordered to be set down for Second Reading pursuant to Rule 53(3) of the Rules of Procedure.

Second Reading of Bills

PRESIDENT (in Cantonese): Bills: Second Reading.

FILM CENSORSHIP (AMENDMENT) BILL 1998

SECRETARY FOR INFORMATION TECHNOLOGY AND BROADCASTING (in Cantonese):Madam President, I move the Second Reading of the Film Censorship (Amendment) Bill 1998.

In the Final Report of the Government Task Force on Services Promotion and the 1997 policy address we undertook to improve the operation of the Film Censorship Ordinance and the relevant regulatory system to facilitate the application of the Ordinance and the operation of the film industry. To fulfil that undertaking, we have reviewed the Ordinance and proposed to streamline its operation, to improve service quality and to simplify the appeal procedures. The Bill aims at implementing the proposals of the Government.

First, we propose to repeal the requirements of submitting to the Film Censorship Authority (the Authority) for censorship for still films of a cultural, educational, instructional, promotional and religious nature and for non-commercial purposes. According to the existing provisions, although these still films are exempt from classification, they are required to be submitted to the Authority before being granted exemption. These requirements have been criticized by art, educational and professional bodies which need to use still films as visual aids in public forums. A repeal of these requirements will not only simplify censorship procedures but also reduce the administrative burden for these bodies. To prevent the exemption from being abused, the Authority will have the reserve power to require exhibitors to submit still films for examination in the event of doubts about a possible abuse.

Second, we propose to simplify the appeal procedures against decisions of the Authority or a censor by enabling requests for a review of a decision of the Authority or a censor to be made to the Board of Review through the Secretary for Information Technology and Broadcasting instead of through the Chief Secretary for Administration.

Third, according to the existing Film Censorship Ordinance, the Authority must complete the relevant examination before the expiry of a statutory time limit. The intention of prescribing a statutory time limit is to comply with the performance pledge of the department. However, to incorporate this time limit into the principal Ordinance will deny the authority concerned of some flexibility because for example, when the department can complete examination before the statutory time limit, it can only be shortened by amending the principal Ordinance. Therefore we propose to take the relevant time limits out of the Ordinance and put it in the regulation made under that Ordinance to obviate the need for frequent legislative amendment to the Ordinance.

Madam President, simplifying the operation of the Film Censorship Ordinance can provide a convenient environment for the professions and the operation of the film industry. I urge Members to support the Bill.

Madam President, I beg to move.

PRESIDENT (in Cantonese): I now propose the question to you and that is: That the Film Censorship (Amendment) Bill 1998 be read the Second time.

In accordance to Rule 54(4) of the Rules of Procedure, the debate is now adjourned and the Bill referred to the House Committee.

Resumption of Second Reading Debate on Bill

PRESIDENT (in Cantonese): We will resume the Second Reading debate on the Hotel Accommodation (Miscellaneous Provisions) Bill 1998.

Under Rule 21(4) of the Rules of Procedure, I have permitted Mr CHAN Kam-lam, Chairman of the Bills Committee on the Hotel Accommodation (Miscellaneous Provisions) Bill 1998, to address the Council on the Committee's Report.

HOTEL ACCOMMODATION (MISCELLANEOUS PROVISIONS) BILL 1998

Resumption of debate on Second Reading which was moved on 16 September 1998

MR CHAN KAM-LAM (in Cantonese): Madam President, I now table the report in my capacity as Chairman of the Bills Committee on the Hotel Accommodation (Miscellaneous Provisions) Bill 1998. I will speak only on the main deliberations of the Bills Committee.

This Bill seeks is to amend the definitions of "hotel" and "guesthouse" in the Hotel Proprietors Ordinance, the Hotel Accommodation Tax Ordinance and the Hotel and Guesthouse Accommodation Ordinance to plug the existing loopholes in the legislation. The Bill also proposes to extend the period of licences issued under the Hotel and Guesthouse Accommodation Ordinance to a maximum of 36 months, as well as amend certain enforcement details.

The Bills Committee has discussed the definitions of "hotel" and "guesthouse" with the Administration and agreed that the amendment will help to include certain existing establishments which should be regarded as hotel or guesthouse in the scope of the relevant legislation. With regard to hotel-like apartments leased on a monthly basis, the Administration has stated clearly that if all the accommodation in those premises are offered for lease for 28 or more successive days, they will be excluded from the Hotel and Guesthouse Accommodation Ordinance. If those premises offer accommodation both on a daily and monthly basis, they will still be regulated by that Ordinance.

The Committee also noted that the hotel industry has asked for different definitions for "hotel" and "guesthouse" so that the two kinds of establishments will have to meet different licensing requirements and to enable travellers to choose accommodation suitable to their needs. The Administration has undertaken to consult the industry as soon as possible in order to draw up practicable definitions.

The Committee has discussed the extension of the period of licences in detail. The Committee noted that since the Hotel and Guesthouse Accommodation Ordinance came into force in 1991, the majority of hotels have strictly met the licensing requirements. Therefore, the Committee was of the view that the Administration should consider issuing licences with a longer period to hotels or guesthouses with a good track record. After deliberation, the Committee has recommended to the Administration to stipulate that licences be issued up to a period of seven years, on basis of opinions presented by the Federation of Hong Kong Hotel Owners. During this period, the hotel should employ an Authorized Person to certify annually that no material alterations have been made to the latest plans approved of by the Office of the Licensing Authority. As for establishments with a licence for a period not exceeding 36 months, they are not required to submit annual certification by an Authorized Person. This recommendation has looked after both the safety of the hotels as well as the need to facilitate the operation of the hotel industry. The Administration has accepted the views of the Committee and the industry and agreed to propose Committee stage amendments in this respect.

As for the industry concern about whether new licensing requirements will be introduced when licences are renewed, the Administration has clarified that the policy guideline issued by the Secretary for Home Affairs in 1993 clearly states that after the works required have been completed, no new licensing requirements will be introduced unless the relevant alterations affect the safety of the guests in the establishments or pose an obvious threat to their safety.

Members of the industry are also concerned about the time limit for completing alteration works to meet the requirements for works to be carried out or new safety requirements. Some Committee members have asked the Administration to grant a grace period so that the hotels can complete the necessary works within a reasonable period. The Administration has agreed to stipulate in the administrative guidelines that the relevant works may be completed within a reasonable period.

The Committee has also suggested that the Administration should consult members of the hotel and guesthouse industries extensively on matters relating to the licensing system in future. In this connection, the Committee has suggested that the Government should include representatives of the guesthouse industry in the consultation framework for matters relating to the hotel and guesthouse industries.

Madam President, I would like to take this opportunity to thank Members for their active participation and government representatives for their quick response, both of which have enabled the Committee to complete the deliberations efficiently.

I so submit. Thank you.

PRESIDENT (in Cantonese): Does any Member wish to speak?

MR HOWARD YOUNG: Madam President, I rise to speak in favour of the passing of the Hotel Accommodation (Miscellaneous Provisions) Bill 1998. This Bill is basically a tidying-up exercise to plug the loopholes in the law that have been in existence for some time. However, during the discussion of the Bills Committee, we did receive representations from the hotel industry, in particular from the Hong Kong Federation of Hotel Owners. It has been a long-lasting request from that industry that the Administration should look at this Bill when the time comes and come out with clearer legal definitions in order to distinguish hotels and guesthouses. I believe this is not just a request from the hotels that are commonly known as such, but also from the guesthouse industry in Hong Kong which is quite substantial.

Although the Administration has said that at this time, it had no intention to undertake this exercise, I hope that the Administration will give an undertaking or indication as to when this can be carried out.

Madam President, the reason for this is that there are many common tourists' destinations around the world where the definitions, the requirements or criteria for licensing and the implementation of the regulations for accommodation establishments are different in regard to small guesthouses and full-fledged hotels. This, in fact, is a protection for tourists as well, because when they come and book themselves into an establishment that is called a hotel, they will know what to expect and accordingly, will have in their mind what they are willing to pay. On the other hand, there are tourists who actually do not want to stay in the higher class type of accommodation known as hotels, but actually do look for very simple guesthouses or even youth hostels. If the Administration agrees to tidy up all these laws some time in the near future and bring about very clear definitions for the two kinds of establishments, I am sure it would be helpful to the industry.

At this point of time, I would also like to welcome the Administration's agreement to the amendment made to the Bill that allows the cycle of licensing to be extended from the originally intended three years to the currently seven years, but of course with the proviso that an annual statement from a court authorized person as to the legality of any works done to the hotel should be given. I think this is something that will save the Administration money, save the hotels a lot of procedures and at the same time, will protect public interests. This is really a win-win situation.

Lastly, I would like the Administration to note that during our discussion, we also met representatives from the guesthouse industry. Neither do they have the aspiration to be run as hotels nor do they have the aspiration to be seen as hotels. They would like to be called a spade a spade, a guesthouse a guesthouse, or perhaps, a hostel a hostel. But they do have the aspiration that once the Government looks at the guesthouse issue, perhaps the minimum number of hotel rooms that are exempted from hotel accommodation tax could be relaxed, from the current minimum of nine rooms to about 15 rooms. I think that is a common wish of that industry and I hope the Government will take note of this point.

With these remarks, Madam President, I support the passing of the Bill.

MR CHAN WING-CHAN (in Cantonese): Madam President, the issues dealt with in the Hotel Accommodation (Miscellaneous) Bill 1998 were actually put before the former Legislative Council as early as 1996 in the form of another Bill. At that time, a Bills Committee was also set up for the purpose of scrutiny, and I was a member of that Bills Committee. This time around, I am also a member of the relevant Bills Committee. But due to one reason or another, the submission of the Bill to this Council has been delayed until now. It can be said that the Bill today will serve to settle all related issues, much to the relief of hotel and guesthouse operators.

Madam President, in 1998, because of the drastic fall in the number of tourists coming to Hong Kong, our hotel occupancy rate has remained persistently low. Although we have seen some improvements recently, the poor business situation in the first half of this year has already dealt a serious blow to our hotels. The most directly affected are of course hotel staff. In June and July this year, quite a number of hotels resorted to a series of measures which were harmful to the interests of their employees, and these measures include retrenchment, reductions of fringe benefits and no-pay suspension from duties. Some hotels have even assigned their security and cleaning work to outside contractors. All these measures are against the interests of staff. I am very concerned about the job security and livelihood of hotel staff.

That said, I must hasten to add that I am also very concerned about the business situation of hotels, because this is closely related to the job security and livelihood of their staff. We do very much hope that the business situation of hotels can be improved and the chances of their staff being "axed" reduced. I personally support the requests of the hotel industry in relation to the amendment of the Hotel Proprietors Ordinance, the Hotel Accommodation Tax Ordinance and the Hotel and Guesthouse Accommodation Ordinance.

Some of the amendments introduced by the Government in this Bill are technical ones. And, the industry is also very concerned about the period of the licences. In this regard, the Government originally proposed to relax the period from one year to three years. But the industry pointed out that hotels would usually follow a seven-year repairs and renovation cycle, and no major renovations will be carried out during any seven-year cycle. For this reason, the Federation of Hong Kong Hotel Owners expressed the hope that the Government would extend the period of licences to seven years. Members of the Bills Committee and I find this proposal reasonable, especially because hotel proprietors have agreed that before they submit their works plans to the Government annually, they will appoint an Authorized Person to certify that they have not made any major alterations to their hotels. This can ensure the safety of hotel guests. I very much welcome the fact that the Government can fully appreciate the business difficulties of hotel and guesthouse operators, and has thus entertained their requests and Members' proposals by introducing some reasonable amendments in this Bill. The extension of the period of licences can give assurance to the industry, in particular hotel proprietors. This can also help them develop their business as they will be able to draw up longer-term plans. The extension will certainly benefit the hotel industry and enable it to operate with economic efficiency.

As for guesthouses, since they are mostly small businesses, their situation is even more difficult than that of hotels. This is a point which the Government must note. And, it must also be noted that many unlicensed guesthouses have taken away much of the business of licensed guesthouses in recent years. The extension to seven years will of course help guesthouses a great deal. However, some hostel proprietors are worried that they may not be able to pay the licence fees for seven years all at one time. So, a more flexible and feasible alternative is to allow them to choose a three-year licence and to exempt them from annual inspections.

With these remarks, Madam President, I support the Bill. Thank you.

SECRETARY FOR HOME AFFAIRS (in Cantonese): Madam President, first of all, I would like to thank Honourable Members for their supporting the Hotel Accommodation (Miscellaneous Provisions) Bill 1998. My special thank goes to the Bills Committee which, under the chairmanship of the Honourable CHAN Kam-lam, scrutinized the entire Bill and accepted our recommendations for improving the Hotel Proprietors Ordinance, the Hotel Accommodation Tax Ordinance and the Hotel and Guesthouse Ordinance.

The principal purpose of the Bill is to amend the definitions of "hotel" and "guesthouse" in the above three Ordinances and to make technical amendments to the Hotel and Guesthouse Ordinance in order to enable the licensing scheme under that Ordinance to operate more effectively.

During the course of deliberations, a number of constructive comments were put forward for the Government's consideration. One of the opinions was to extend the maximum period of licences issued or renewed under the Hotel and Guesthouse Ordinance from the proposed three years to seven years. During the seven-year period, the licensee is required to submit to the issuing authority a certificate signed by an Authorized Person, certifying that the relevant hotel or guesthouse during the period has not undergone any substantial alterations, and its building safety and fire safety conditions have been properly maintained, and that it has been operated in a manner which does not contravene any of the licensing conditions imposed. An Authorized Person shall be an architect, engineer or surveyor registered with the Building Authority.

We have carefully examined the Bills Committee recommendation of extending the licence period to seven years and considered it practicable. So we have decided to adopt it. Later on, I will move a Committee stage amendment to this effect.

I must point out here that the seven-year licence period proposed in the amendment requires the licensee to submit an Authorized Person's certificate annually. Where a licence is issued for a period not exceeding three years, the annual production of the certificate is not required. The Honourable Edward HO put forward a suggestion at one of the meetings of the Bills Committee in this connection. He opined that if holders of licences issued for a period not exceeding three years were not required to submit a certificate, then a licensee for a seven-year licence should only be required to submit such a certificate starting from the fourth year.

We have considered the idea carefully. Logically speaking, Mr HO's opinion was justified. However, the amendment we propose maintains that holders of licences issued for a period of four to seven years should submit an Authorized Person's certificate to the issuing authority for the following reasons:

(1) Qualified operators of hotels and guesthouses are free to apply for a licence not exceeding three years or one that is effective for seven years. Licence holders of the former category are not required to submit the relevant certificate annually. Thus the operators may save fees for employing Authorized Persons to examine their premises and issuing certificates each year.

(2) That the Government extends the period of licences from one to seven years is a major change in terms of the time limit concerned. We have a responsibility to assure the public that the extension would not compromise the safety of hotels and guesthouses. The requirement of submitting an Authorized Person's certificate annually is meant to provide direct protection for guests of hotels and guesthouses.

(3) The recommendation on annual submission of an Authorized Person's certificate was put forward by the Federation of Hong Kong Hotel Owners Limited. We decided to adopt that suggestion for public safety considerations.

(4) The hotel industry represented to us the idea of a gradual replacement of the licensing system by a self-regulation system. A study conducted by the Business and Services Promotion Unit of the Government of the Special Administrative Region last year on the licensing system for the hotel and guesthouse industry has endorsed this point as a long-term objective. Our amendment is heading in this direction step by step.

Madam President, let me reiterate that licences valid for a period exceeding one year are issued on the merits of individual cases. In principle, only hotels and guesthouses with good track records, proven to meet building and fire safety requirements and with no abuse of the provisions are issued with licences valid for more than one year.

Some operators in the trade are still worried that the licensing authority will change licensing requirements frequently thereby increasing their operating costs. I wish to reiterate the guideline issued by the former Secretary for Home Affairs, which has been proven to be effective, states clearly in paragraph 7 thereof that once a licence is issued, no additional conditions will be imposed unless there have been substantial alterations in the partitioning, use or facilities in the premises or there is a safety hazard. The Government will continue to enforce the Hotel and Guesthouse Ordinance in accordance with the guideline.

The Bills Committee had different interpretations about the definitions and their different applications for the words "hotel" and "guesthouse" in the existing Ordinances. The Government is also concerned about this point. We consider that different laws enacted at different times may serve different legislative intents. Definitions specified in each and every ordinance, unless otherwise expressly provided, are applicable only to the ambit covered by that very ordinance. This principle has been proven effective so far. Differences in definitions existing in different laws will not hinder the enforcement or effectiveness of the laws. We will consult the relevant Policy Bureaux and departments for a review should the need arise in the future.

Individual Members of the Council and persons in the hotel industry have suggested that the Government should consider categorizing and classifying "hotels" and "guesthouses". The suggestion has far-reaching effects, and factors to be considered include the safety measures and general facilities in hotels and guesthouses, and the services they provide. Certainly the purpose of the Hotel and Guesthouse Ordinance is to provide for a statutory licensing scheme to supervise the building and fire safety of hotels and guesthouses. However, the facilities and services provided by hotels and guesthouse are outside the existing scope of control of the Hotel and Guesthouse Ordinance. We think it is more appropriate to deal with the suggestion separately if we are to review and implement the suggestion because we need to consult the trade and the relevant departments, including the Commissioner for Tourism to be appointed in the near future.

In fact the Bill was tabled before the former Legislative Council in 1996, but unfortunately it did not reach the Second Reading stage at the time. In view of the urgent need to implement the various measures proposed in the Bill to improve the operation of the licensing scheme for the hotel and guesthouse industry and to plug the loopholes of the existing laws, I urge Members to support the Bill for an early implementation of the various proposals.

Madam President, I recommend the Bill to this Council for Second Reading.

Thank you, Madam President.

PRESIDENT (in Cantonese): I now put the question to you and that is: That the Hotel Accommodation (Miscellaneous Provisions) Bill 1998 be read the Second time. Will those in favour please raise their hands?

(Members raised their hands)

PRESIDENT (in Cantonese): Those against please raise their hands.

(No hands raised)

PRESIDENT (in Cantonese): I think the question is agreed by a majority of the Members present. I declare the motion passed.

CLERK (in Cantonese): Hotel Accommodation (Miscellaneous Provisions) Bill 1998.

Council went into Committee.

Committee Stage

CHAIRMAN (in Cantonese): Committee stage. Council is now in Committee.

HOTEL ACCOMMODATION (MISCELLANEOUS PROVISIONS) BILL 1998

CHAIRMAN (in Cantonese): I now propose the question to you and that is: That the following clauses stand part of the Hotel Accommodation (Miscellaneous Provisions) Bill 1998.

CLERK (in Cantonese): Clauses 2, 3, 4, 8, 9, 11 and 12.

CHAIRMAN (in Cantonese): Will those in favour please raise their hands?

(Members raised their hands)

CHAIRMAN (in Cantonese): Those against please raise their hands.

(No hands raised)

CHAIRMAN (in Cantonese): I think the question is agreed by a majority of the members present. I declare the motion passed.

CLERK (in Cantonese): Clauses 5, 6, 7 and 10.

SECRETARY FOR HOME AFFAIRS (in Cantonese): Madam Chairman, I move that clauses 5, 6, 7 and 10 be amended, as set out in the paper circularized to Members. The amendment to clause 5 simply adds the meaning of "authorized person" to the Hotel and Guesthouse Accommodation Ordinance. The amendment to clause 6 seeks to extend the maximum period of a licence issued under the said Ordinance from three years to seven years. In addition, where a licence is issued for a period exceeding three years, the licence holder shall submit to the Authority an "authorized person's certificate." The amendment to clause 7 extends the maximum effective period of a licence upon renewal from three years to seven years. As stated above, where a renewed licence has an effective period of more than three years, the licence holder shall submit an "authorized person's certificate" to the Authority annually. The amendment to clause 10 adds a penalty whereby an Authorized Person who makes any statement or furnishes information which is false in the certificate commits an offence.

The above amendments were put forward after the Government has considered carefully the opinions of operators in the trade. I urge Members to support the amendments. Thank you, Madam Chairman.

Proposed amendments

Clause 5 (see Annex II)

Clause 6 (see Annex II)

Clause 7 (see Annex II)

Clause 10 (see Annex II)

CHAIRMAN (in Cantonese): Does any Member wish to speak?

(No Member indicated a wish to speak)

CHAIRMAN (in Cantonese): I now put the question to you and that is: That the amendments moved by the Secretary for Home Affairs be passed. Will those in favour please raise their hands?

(Members raised their hands)

CHAIRMAN (in Cantonese): Those against please raised their hands.

(No hands raised)

CHAIRMAN (in Cantonese): I think the question is agreed by a majority of the Members present. I declare the amendments passed.

CLERK (in Cantonese): Clauses 5, 6, 7 and 10 as amended.

CHAIRMAN (in Cantonese): Will those in favour please raise their hands?

(Members raised their hands)

CHAIRMAN (in Cantonese): Those against please raise their hands.

(No hands raised)

CHAIRMAN (in Cantonese): I think the question is agreed by a majority of the Members present. I declare the motion passed.

SECRETARY FOR HOME AFFAIRS (in Cantonese): Madam Chairman, since the Rules of Procedure stipulate that any proposed new clause shall be considered after the clauses of a Bill have been disposed of, may I seek your consent to move under Rule 91 of the Rules of Procedure that Rule 58(5) of the Rules of Procedure be suspended in order that my proposed new clause 7A may be considered ahead of clause 1.

CHAIRMAN (in Cantonese): Secretary for Home Affairs, as only the President may give consent for a motion to be moved, without notice, to suspend the Rules of Procedure, I order that Council do now resume.

Council then resumed.

PRESIDENT (in Cantonese): Secretary for Home Affairs, you have my consent.

SECRETARY FOR HOME AFFAIRS (in Cantonese): Madam President, I move that Rule 58(5) of the Rules of Procedure be suspended to enable the Committee of the whole Council to consider my proposed new clause 7A ahead of clause 1.

PRESIDENT (in Cantonese): I now propose the question to you and that is: That Rule 58(5) of the Rules of Procedure be suspended to enable the Committee of the whole Council to consider the Secretary for Home Affairs' proposed new clause 7A ahead of clause 1.

PRESIDENT (in Cantonese): I now put the question to you as stated. Will those in favour please raise their hands?

(Members raised their hands)

PRESIDENT (in Cantonese): Those against please raise their hands.

(No hands raised)

PRESIDENT (in Cantonese): I think the question is agreed by a majority of the Members present. I declare the motion passed.

Council went into Committee.

Committee Stage

CHAIRMAN (in Cantonese): Council is now in Committee.

CLERK(in Cantonese):

New clause 7A

Cancellation and suspension of licence or refusal to renew licence, and amendment or variation of conditions of a licence.

SECRETARY FOR HOME AFFAIRS (in Cantonese): Madam Chairman, I move that new clause 7A, as set out in the paper circularized to Members, be read the Second time. The new clause 7A authorizes the Authority to cancel or suspend a licence or refuse to renew a licence or amend or vary the conditions of a licence on the ground that an Authorized Person's certificate has not been submitted as required or an Authorized Person's certificate submitted is incomplete, incorrect or false. Thank you, Madam Chairman.

CHAIRMAN (in Cantonese): I now propose the question to you and that is: That new clause 7A be read the Second time. Does any Member wish to speak?

(No Member indicated a wish to speak)

CHAIRMAN (in Cantonese): I now put the question to you as stated. Will those in favour please raise their hands?

(Members raised their hands)

CHAIRMAN (in Cantonese): Those against please raise their hands.

(No hands raised)

CHAIRMAN (in Cantonese): I think the question is agreed by a majority of the Members present. I declare the motion passed.

CLERK (in Cantonese): New clause 7A.

SECRETARY FOR HOME AFFAIRS (in Cantonese): Madam Chairman, I move that new clause 7A be added to the Bill.

Proposed addition

New clause 7A (see Annex II)

CHAIRMAN (in Cantonese): I now propose the question to you and that is: That new clause 7A be added to the Bill.

CHAIRMAN (in Cantonese): I now put the question to you as stated. Will those in favour please raise their hands?

(Members raised their hands)

CHAIRMAN (in Cantonese): Those against please raise their hands.

(No hands raised)

CHAIRMAN (in Cantonese): I think the question is agreed by a majority of the Members present. I declare the motion passed.

CLERK (in Cantonese): Clause 1.

SECRETARY FOR HOME AFFAIRS (in Cantonese):Madam Chairman, I move that clause 1 be amended, as set out in the paper circularized to Members. The amendment to clause 1 stipulates that sections 5(ba), 6, 7, 7A and 10(b) shall come into operation on a date to be appointed by the Secretary for Home Affairs by notice in the Gazette. These sections that will come into operation provide for, among other things, the extension of the period of licences under the Hotel and Guesthouse Accommodation Ordinance to a maximum period of seven years, and the annual submission of an Authorized Person's certificate by the holder of a licence issued for a period exceeding three years. The commencement date of the above sections is yet to be determined, since we need to make a detailed cost analysis and calculation to determine the fees of licences issued for different periods. These sections will officially come into operation after the regulations concerning the licence fees have been amended. Thank you, Madam Chairman.

Proposed amendment

Clause 1 (see Annex II)

CHAIRMAN (in Cantonese): Does any Member wish to speak?

(No Member indicated a wish to speak)

CHAIRMAN (in Cantonese): I now put the question to you and that is: That the amendment moved by the Secretary for Home Affairs be passed. Will those in favour please raise their hands?

(Members raised their hands)

CHAIRMAN (in Cantonese): Those against please raise their hands.

(No hands raised)

CHAIRMAN (in Cantonese): I think the question is agreed by a majority of the Members present. I declare the amendment passed.

CLERK (in Cantonese): Clause 1 as amended.

CHAIRMAN (in Cantonese): Will those in favour please raise their hands?

(Members raised their hands)

CHAIRMAN (in Cantonese): Those against please raise their hands.

(No hands raised)

CHAIRMAN (in Cantonese): I think the question is agreed by a majority of the Members present. I declare the motion passed.

PRESIDENT (in Cantonese): Council now resumes.

Council then resumed.

Third Reading of Bill

PRESIDENT (in Cantonese): Bill: Third Reading.

HOTEL ACCOMMODATION (MISCELLANEOUS PROVISIONS) BILL 1998

SECRETARY FOR HOME AFFAIRS (in Cantonese): Madam President, the

Hotel Accommodation (Miscellaneous Provisions) Bill 1998

has passed through Committee with amendments. I move that this Bill be read the Third time and do pass.

PRESIDENT (in Cantonese) : I now propose the question to you and that is: That the Hotel Accommodation (Miscellaneous Provision) Bill 1998 be read the Third time and do pass.

PRESIDENT (in Cantonese): I now put the question to you as stated. Will those in favour please raise their hands?

(Members raised their hands)

PRESIDENT (in Cantonese): Those against please raise their hands.

(No hands raised)

PRESIDENT (in Cantonese): I think the question is agreed by a majority of the Members present. I declare the motion passed.

CLERK (in Cantonese): Hotel Accommodation (Miscellaneous Provisions) Bill 1998.

MOTIONS

PRESIDENT (in Cantonese): Motions. Four motions moved under the Mutual Legal Assistance in Criminal Matters Ordinance. First motion: Proposed resolution relating to the Mutual Legal Assistance in Criminal Matters (Australia) Order.

PROPOSED RESOLUTION UNDER THE MUTUAL LEGAL ASSISTANCE IN CRIMINAL MATTERS ORDINANCE

SECRETARY FOR SECURITY (in Cantonese): Madam President, I move that the resolution to make the Mutual Legal Assistance in Criminal Matters (Australia) Order be passed by this Council.

We are fully committed to supporting international co-operation in the combat of serious transnational crimes. We have embarked on the establishment of a network of bilateral agreements with other jurisdictions on mutual legal assistance in criminal matters. These agreements ensure reciprocity between the contracting parties and greatly enhance international co-operation in the fight against cross-border crime. We have so far signed seven agreements on mutual legal assistance in criminal matters ─ with Australia, France, New Zealand, the United Kingdom, the United States, Italy and Korea.

We have also put in place the necessary legislative framework for implementing the mutual legal assistance arrangements. In June 1997, the Mutual Legal Assistance in Criminal Matters Ordinance was enacted. This principal legislation provides the statutory framework which enables us to respond to a wide range of requests for assistance in the investigation and prosecution of criminal offences. These include the taking of evidence, search and seizure, production of material, transfer of persons to give evidence and confiscation of the proceeds of crime.

The subsidiary legislation, the Mutual Legal Assistance in Criminal Matters Regulation, was subsequently made in February 1998 to provide for the practice and procedures in relation to the performance by magistrates of functions under the Ordinance.

Pursuant to the provisions in the Ordinance and to specifically enable the arrangements embodied in the signed agreements to be brought into force, the Chief Executive in Council has made four Mutual Legal Assistance in Criminal Matters Orders which are introduced to this Council for approval today. Apart from this Mutual Legal Assistance in Criminal Matters (Australia) Order, I shall in a moment move the resolution to make the other three Orders.

These four Orders specify the scope and procedures in relation to the provision of assistance. They also provide for safeguards of the rights of persons involved in criminal proceedings. These Orders are substantially in conformity with the provisions in the Ordinance. However, as mutual legal assistance practices vary from jurisdictions to jurisdictions, it is necessary to modify some of the provisions of the Ordinance to reflect the practice of the particular negotiating partner. These are necessary to enable Hong Kong to comply with its obligations in the particular agreement. The modifications have been summarized in the Schedule to each of the Orders.

I would like to thank the Chairman, the Honourable James TO and other Members of the Subcommittee for their careful examination of these resolutions, and for their support.

In order to strengthen our co-operation with other jurisdictions in criminal justice and international law enforcement, it is extremely important that these four Mutual Legal Assistance in Criminal Matters Orders be made. With these remarks, I urge Members to approve the making of the Mutual Legal Assistance in Criminal Matters (Australia) Order.

Thank you, Madam President.

The Secretary for Security moved the following motion:

"That the Mutual Legal Assistance in Criminal Matters (Australia) Order, made by the Chief Executive in Council on 13 October 1998, be approved."

PRESIDENT (in Cantonese): I now propose the question to you and that is: That the motion moved by the Secretary for Security, as set out on the Agenda, be passed.

MR JAMES TO (in Cantonese): Madam President, I rise to speak in my capacity as the Chairman of the Subcommittee formed to examine the five Orders made under the Mutual Legal Assistance in Criminal Matters Ordinance (the Ordinance).

At the meeting of the Executive Council on 13 October 1998, the Council advised and the Chief Executive ordered that under section 4(1) of the Ordinance, the following Orders:

- Mutual Legal Assistance in Criminal Matters (Australia) Order (the Australia Order);

- Mutual Legal Assistance in Criminal Matters (France) Order (the France Order);

- Mutual Legal Assistance in Criminal Matters (New Zealand) Order (the New Zealand Order);

- Mutual Legal Assistance in Criminal Matters (United Kingdom) Order (the United Kingdom Order); and

- Mutual Legal Assistance in Criminal Matters (United States of America) Order (the United States Order)

should be made to implement the bilateral arrangements for mutual legal assistance in criminal matters with these countries. Section 4(7) of the Ordinance provides that the Legislative Council can approve or repeal the Orders but not to amend them.

The Secretary for Security had originally given notices to move five resolutions at the Legislative Council meeting on 11 November 1998 seeking the Council's approval of the five Orders. The Secretary for Security had subsequently withdrawn the notices in view of the House Committee's decision to form a subcommittee to study the five Orders.

The Subcommittee has completed scrutiny of the first four Orders, namely, the Australia Order, the France Order, the New Zealand Order and the United Kingdom Order. I shall now highlight the deliberations of the Subcommittee on the four Orders concerned.

The Subcommittee notes that section 4(2) of the Ordinance provides that the Chief Executive in Council shall not make an order unless the arrangements for mutual legal assistance to which the Order relates are substantially in conformity with the provisions of the Ordinance. Having examined these four Orders, the Subcommittee is of the view that the four Orders are substantially in conformity with the provisions of the Ordinance.

Section 4(3) of the Ordinance provides that where an order specifies modifications to the Ordinance those modifications shall be summarized in a schedule to the Order. The Subcommittee notes that the modifications set out in Schedule 2 to each of the four Orders reflect areas in which the relevant agreement varies from the Ordinance. These modifications are summarized below under the following four headings:

(a) Previous Convictions and so on

Section 5(1)(e) of the Ordinance provides that the Secretary for Justice shall refuse assistance if the request relates to the prosecution of a person for an offence in respect of which he has been convicted, acquitted, pardoned or punished in the requesting jurisdiction.

Article IV(1) of the Hong Kong/Australia Agreement, the Hong Kong/France Agreement and the Hong Kong Special Administrative Region (SAR)/United Kingdom Agreement extends this protection to conviction, acquittal or pardon in the requested jurisdiction. Article IV(1) of the SAR/New Zealand Agreement provides for this protection in relation to conviction and so on wherever incurred, that is, in the requested jurisdiction and third jurisdictions as well. The modifications to section 5(1)(e) set out in Schedule 2 to the Australia, France, New Zealand and United Kingdom Orders reflect the relevant provisions in the agreements concerned.

(b) Lapse of Time

A new subparagraph is included in section 5(1)(e) of the Ordinance under Schedule 2 to the France, New Zealand and United Kingdom Orders to provide for refusal of assistance if the offence, had it occurred in Hong Kong, could no longer be prosecuted by reason of lapse of time. This modification reflects the relevant provisions in the bilateral Agreements with France, New Zealand and United Kingdom.

(c) Immunities

Section 17 of the Ordinance gives a person who comes to Hong Kong from another jurisdiction to render assistance certain immunities. These immunities cease to apply if the person has had the opportunity of leaving Hong Kong and has remained in Hong Kong otherwise than for the purpose of rendering assistance.

The Hong Kong/Australia Agreement and the SAR/United Kingdom Agreement provide that the immunities will continue to be applicable for a period of 15 days after the person has had the opportunity of leaving Hong Kong. The period of immunity provided for in the Hong Kong/France Agreement and the SAR/New Zealand Agreement is 30 days and 21 days respectively. The modifications to section 17 of the Ordinance set out in Schedule 2 to the four Orders reflect the additional protection provided in the respective Agreements.

Under section 23 of the Ordinance, persons who travel from Hong Kong to other jurisdictions to render assistance are conferred immunity from civil suit. The modification to section 23 set out in Schedule 2 to the United Kingdom Order removes this immunity as immunity from civil suit is not provided for in United Kingdom domestic law.

(d) Confiscation of the Proceeds of Crime

The modifications set out in Schedule 2 to the United Kingdom Order include the addition of a new paragraph to section 5(1) of the Ordinance. The new paragraph provides that the Secretary for Justice shall refuse assistance if the request relates to confiscation of the proceeds of crime and the underlying offence would not be a basis for confiscation in Hong Kong had the offence occurred in Hong Kong. This modification is made at the request of the United Kingdom Government and reflects the relevant provision in the SAR/United Kingdom Agreement.

Members of the Subcommittee generally agree with the Administration's explanation that there is a need to modify some of the provisions of the Ordinance to reflect the practice of the particular negotiating partners. Members consider that the modifications to the Ordinance are necessary to enable Hong Kong to comply with its obligations in the respective Agreements.

Members of the Subcommittee have concluded that the Australia, France, New Zealand and United Kingdom Orders made under section 4(1) of the Ordinance be supported.

With these remarks, Madam President, I have described the work and results of the deliberations of the Subcommittee. I call upon members of the Subcommittee and Honourable Members to support these four Orders.

PRESIDENT (in Cantonese): Does any other Member wish to speak?

(No Member indicated a wish to speak)

PRESIDENT (in Cantonese): Secretary for Security, do you wish to reply?

(The Secretary for Security indicated she did not wish to reply)

PRESIDENT (in Cantonese): I now propose the question to you and that is: That the motion moved by the Secretary for Security, as set out on the Agenda, be passed. Will those in favour please raise their hands?

(Members raised their hands)

PRESIDENT (in Cantonese): Those against please raise their hands.

(No hands raised)

PRESIDENT (in Cantonese): I think the question is agreed by a majority of the Members present. I declare the motion passed.

PRESIDENT (in Cantonese): The second motion: Proposed resolution relating to the Mutual Legal Assistance in Criminal Matters (France) Order.

PROPOSED RESOLUTION UNDER THE MUTUAL LEGAL ASSISTANCE IN CRIMINAL MATTERS ORDINANCE

SECRETARY FOR SECURITY (in Cantonese): Madam President, I move that the resolution to make the Mutual Legal Assistance in Criminal Matters (France) Order be passed by this Council.

I have explained earlier, in moving the resolution to make the Mutual Legal Assistance in Criminal Matters (Australia) Order, the importance of making the Orders on mutual legal assistance in criminal matters. I do not think I need to repeat the reasons here. I urge Members to approve the making of the Mutual Legal Assistance in Criminal Matters (France) Order.

Thank you, Madam President.

The Secretary for Security moved the following motion:

"That the Mutual Legal Assistance in Criminal Matters (France) Order, made by the Chief Executive in Council on 13 October 1998, be approved."

PRESIDENT (in Cantonese): I now propose the question to you and that is: That the motion moved by the Secretary for Security, as set out on the Agenda, be passed. Does any Member wish to speak?

MR JAMES TO (in Cantonese): In my capacity as the Chairman of the Subcommittee concerned, I have already given an account of the four Orders and the deliberations of the Subcommittee. I believe that there is no further need for me to repeat them here.

PRESIDENT (in Cantonese): Secretary for Security, do you wish to reply?

(The Secretary for Security indicated that she did not wish to reply)

PRESIDENT (in Cantonese): I now put the question to you and that is: That the motion moved by the Secretary for Security, as set out on the Agenda, be passed. Will those in favour please raise their hands?

(Members raised their hands)

PRESIDENT (in Cantonese): Those against please raise their hands.

(No hands raised)

PRESIDENT (in Cantonese): I think the question is agreed by a majority of the Members present. I declare the motion passed.

PRESIDENT (in Cantonese): The third motion : Proposed resolution relating to the Mutual Legal Assistance in Criminal Matters (New Zealand) Order.

PROPOSED RESOLUTION UNDER THE MUTUAL LEGAL ASSISTANCE IN CRIMINAL MATTERS ORDINANCE

SECRETARY FOR SECURITY (in Cantonese): Madam President, I move that the resolution to make the Mutual Legal Assistance in Criminal Matters (New Zealand) Order be passed by this Council.

I urge Members to approve the making of this Order.

Thank you, Madam President.

The Secretary for Security moved the following motion:

"That the Mutual Legal Assistance in Criminal Matters (New Zealand) Order, made by the Chief Executive in Council on 13 October 1998, be approved."

PRESIDENT (in Cantonese): I now propose the question to you and that is: That the motion moved by the Secretary for Security, as set out on the Agenda, be passed. Does any Member wish to speak?

(No Member indicated a wish to speak)

PRESIDENT (in Cantonese): I now put the question to you and that is: That the motion moved by the Secretary for Security, as set out on the Agenda, be passed. Will those in favour please raise their hands?

(Members raised their hands)

PRESIDENT (in Cantonese): Those against please raise their hands.

(No hands raised)

PRESIDENT (in Cantonese): I think the question is agreed by a majority of the Members present. I declare the motion passed.

PRESIDENT (in Cantonese): Fourth motion. Proposed resolution relating to the Mutual Legal Assistance in Criminal Matters (United Kingdom) Order.

PROPOSED RESOLUTION UNDER THE MUTUAL LEGAL ASSISTANCE IN CRIMINAL MATTERS ORDINANCE

SECRETARY FOR SECURITY (in Cantonese): Madam President, I move that the resolution to make the Mutual Legal Assistance in Criminal Matters (United Kingdom) Order be passed by this Council.

I urge Members to approve the making of this Order.

Thank you, Madam President.

The Secretary for Security moved the following motion:

"That the Mutual Legal Assistance in Criminal Matters (United Kingdom) Order, made by the Chief Executive in Council on 13 October 1998, be approved."

PRESIDENT (in Cantonese): I now propose the question to you and that is: That the motion moved by the Secretary for Security, as set out on the Agenda, be passed. Does any Member wish to speak?

(No Member indicated a wish to speak)

PRESIDENT (in Cantonese): I now put the question to you and that is: That the motion moved by the Secretary for Security, as set out on the Agenda, be passed. Will those in favour please raise their hands?

(Members raised their hands)

PRESIDENT (in Cantonese): Those against please raise their hands.

(No hands raised)

PRESIDENT (in Cantonese): I think the question is agreed by a majority of the Members present. I declare the motion passed.

MEMBERS' MOTIONS

PRESIDENT (in Cantonese): Members' motions. Two motions with no legal effect. I have accepted the recommendations of the House Committee as to the time limits on speeches for the motion debates. The movers of the motions will each have up to 15 minutes for their speeches including their replies, and another five minutes to speak on the amendment. The mover of an amendment will have up to 10 minutes to speak. Other Members will each have up to seven minutes for their speeches.

First motion: The repealed labour ordinances.

THE REPEALED LABOUR ORDINANCES

Mr Andrew CHENG (in Cantonese): Madam President, I move the motion which has been printed on the Agenda.

Madam President, I am afraid I could not speak very clearly today because of the tongue ulcer I have. Therefore, I beg your indulgence if you could not hear what I say. Though "ulcer-tongued", I will still move this motion today and hope that Honourable Members will lend me their support.

Madam President, labour-related issues have become hot topics in the first Legislative Council since its formation and thus on the face of it, one might have gathered the impression that great importance have been attached to labour-related issues. However, slightly more than a year ago, the Honourable Madam President and many Members now sitting in this Chamber in the Provisional Legislative Council supported the package arrangement of the Government of the Special Administrative Region (SAR) to repeal and amend three labour Ordinances to abolish the right to collective bargaining, restrict the use of trade union funds, and cut down on the protection for trade union members and officers against discrimination, thereby damaging gravely the interests of the employees.

With the help of the Provisional Legislative Council elected by a small coterie, the then SAR Government made use of the Employment Ordinance 1997 and the Employment and Labour Relations (Miscellaneous Amendments) Ordinance 1997 to repeal the Employment (Amendment) (No. 4) Ordinance 1997 and the Employee's Rights to Representation, Consultation and Collective Bargaining Ordinance, as well as amended the Trade Unions (Amendment) (No. 2) Ordinance 1997. This is indeed regrettable. How could any Member of this Council, organizations or political parties genuinely striving for the interests of the labour support such kind of law revocation activities with contradictory intentions? The age of the Provisional Legislative Council was not only a dark age for the constitutional development of the SAR, the law revocation exercise it carried out has also marked an end to any efforts seeking to further enhance the protection for the interests of the labour.

Madam President, the Committee on Freedom of Association (CFA) of the International Labour Organization (ILO) has recently indicated that the law revocation exercise carried out by the Government and the Provisional Legislative Council has violated the International Labour Conventions. It has been pointed out in the CFA report that by amending the Trade Unions (Amendment) Ordinance, the Government has infringed upon the independent operation of trade unions. Moreover, the restrictions that union funds cannot be used for political purposes, and that donations to overseas organizations must seek the prior approval of the Chief Executive have also violated the principle of freedom of association. For these reasons, the CFA has urged the SAR Government to abandon the amendments introduced.

In regard to the Employment (Amendment) Ordinance which provides for the protection of employees against discrimination on the ground of trade union activities and the right to reinstatement, the CFA is of the opinion that the existing legislation after the revocation of the Ordinance has yet to be brought into complete conformity with the principle of protection against anti-union discrimination in relation to the freedom of association.

As for the Ordinance on the right to collective bargaining, the CFA has clearly ruled that the Government's reason for repealing the Ordinance is contradictory to International Labour Convention No. 98 and has violated many of the principles of the Convention, including one essential element under the principle of freedom of association, which is the right of employees to negotiate freely with employers their terms of employment.

Madam President, it has been set out clearly under Article 39 of the Basic Law that "international labour conventions as applied to Hong Kong shall remain in force and shall be implemented through the laws of the Hong Kong Special Administrative Region." However, apart from refusing to legislate for the implementation of the Conventions, the SAR Government has openly repealed the relevant Ordinances and violated the International Labour Conventions, and thereby breached the Basic Law. As such, the Government should rectify the law revocation exercise by submitting bills on the repealed Ordinances to this Council for reconsideration.

Madam President, when the Provisional Legislative Council debated the Government's proposal to repeal the Ordinances on 29 October last year, the political parties representing the interests of the business sectors naturally lent their support to the Government's proposal. But it is regrettable that the Democratic Alliance for the Betterment of Hong Kong (DAB) on that day supported the Government at the expense of the interests of the labour and voted for the Second Reading of the Bill to repeal the Ordinances. When the question on the third reading of the Bill was put, knowing that the Bill would definitely be passed, the DAB then reversed its stance and voted against the motion so as to leave a record that it has voted against the Bill, thereby confusing the public by "cleansing" its deeds. The conventional fence-sitting practice of the DAB, which is to live off its supporters while helping outsiders as well as to say one thing and do another, was fully reflected in the voting results of that day.

As regards the Federation of Trade Unions (FTU), its stance could not be more unclear. On the one hand, the representatives have criticized the Government for repealing the Ordinances while supporting the system of collective bargaining, yet on the other they have made use of technical difficulties as excuses and refused to support the proposal put forward by the Honourable LEE Cheuk-yan. In this connection, although Mr CHENG Yiu-tong, the Chairman of the FTU, had spoken in opposition to the Government's proposal to repeal the Trade Unions Ordinance which provided for the protection of the right to reinstatement, he eventually abstained from voting. I hope that the FTU will not adopt an evasive stand any more. If it is really for the interests of the labour, its Members in this Council should join us to urge the Government to re-submit bills on the repealed or amended labour Ordinances to this Council for reconsideration. Should they find any technical problems with the bills, they should bring them up for discussion and propose amendments at the Committee stage instead of letting those Ordinances that strive for the interests of the labour to disappear in history alongside with the Provisional Legislative Council.

Madam President, we estimate that the trend towards layoffs will continue for quite some time; as such, the various forms of labour protection including the right to collective bargaining are of utmost importance to the employees.

Tomorrow is the 50th Anniversary of the Universal Declaration of Human Rights, and in Article 20 of the Declaration, it has been stated everyone has the right to freedom of association; the same has also been stated in Article 18 of the Hong Kong Bill of Rights. I hope that Honourable Members would take this opportunity of the 50th Anniversary of the Universal Declaration of Human Rights to reflect on themselves and rectify the mistakes that we made in the past. As for the Democratic Party, it is our hope that the Government would re-submit the three repealed Ordinances to this Council for reconsideration as soon as practicable. I hereby urge Members not to commit the same mistake again by allowing the Ordinance to repeal the Ordinances to violate the International Labour Conventions and the Basic Law, because so doing is totally irresponsible.

With these remarks, Madam President, I beg to move.

Mr Andrew CHENG moved the following motion:

"That, as the Provisional Legislative Council repealed the Employment (Amendment) (No. 4) Ordinance 1997 and the Employee's Rights to Representation, Consultation and Collective Bargaining Ordinance and amended the Trade Unions (Amendment) (No. 2) Ordinance 1997, thereby breaching the International Labour Convention and the Basic Law, this Council deeply regrets the actions of the Provisional Legislative Council and the Government, and urges the Government to immediately submit to this Council for reconsideration those pieces of labour legislation that have been repealed or amended, so as to safeguard the basic rights of the labour force."

PRESIDENT (in Cantonese): I now propose the question to you and that is: That the motion moved by Mr Andrew CHENG, as set out on the Agenda, be passed. Does any Member wish to speak?

MR HO SAI-CHU (in Cantonese): Madam President, my colleagues from the Liberal Party and I are in opposition to the motion moved by the Honourable Andrew CHENG. The Government of the Hong Kong Special Administrative Region (SAR) has not breached the International Labour Conventions, nor has it breached the Basic Law.

In June last year, the former Legislative Council passed three pieces of labour-related Private Member's Bill, including:

First:	The Employment (Amendment) (No. 4) Ordinance 1997 which provides for the protection against discrimination on the ground of the employee's participation in trade union activities;
Second:	The Employee's Rights to Representation, Consultation and Collective Bargaining Ordinance on collective bargaining; and
Third:	The Trade Unions (Amendment) (No. 2) Ordinance 1997 which provides for regulation and control of trade union activities.

All these Ordinances were not drafted in consultation with the Labour Advisory Board (LAB). As a matter of fact, there had not been any sufficient public consultation or comprehensive and proper scrutiny before the Bills were passed. In view of the far-reaching impact these three Ordinances have on both the local labour relations and the development of the local economy, the SAR Government proposed to repeal the first two Ordinances and amend the third after careful deliberation and consultation with the LAB. As a result, the Provisional Legislative Council of the SAR passed the Employment and Labour Relations (Miscellaneous Amendments) Bill 1997 on 29 October last year to implement the aforementioned proposals. As employers, we agree very much to the action taken by the SAR Government in this respect.

The decision of the Government is fully supported by the LAB. The LAB is a highly representative body representing the reasonably balanced interests of both employers and employees; besides, it has operated smoothly for many years. The LAB has proved to be an effective mechanism so far. Indeed, the ILO has all along encouraged the adoption of a tripartite negotiation mechanism to resolve any major labour-related issues, as it is in line with the international labour standards. In regard to the labour-related matters in Hong Kong, the LAB has been playing an important role and making remarkable contributions, thereby improving substantially the rights and benefits of the labour over the years.

Employers are in opposition to the proposal to urge the Government to legislate for the implementation of collective bargaining, lest this would give rise to confrontational labour relations. Moreover, should trade unions try to compete for members, this will impact adversely on not only the local labour relations but also the incentive for foreign investors to invest in Hong Kong. We believe the most effective way should be to actively encourage and promote voluntary negotiations between employers and employees or other relevant bodies.

We are glad to see that in order to strengthen and encourage the promotion of voluntary negotiations and effective communication, the Labour Department has set up the Workplace Consultation Promotion Unit in April 1998, specifically tasked to promote voluntary negotiations and better communication between employers and employees.

As a matter of fact, the mechanism of voluntary negotiations supplemented with the conciliation services provided by the Labour Department has all along been operating effectively in Hong Kong, and the local labour relations have been cordial so far. The SAR Government has always recognized the active and important role of trade unions in maintaining harmonious labour relations; and, it has also encouraged the involvement of enterprise unions in joint negotiations at the enterprise level. Many significant disputes would not have been resolved without the conciliation services of the Labour Department and the active involvement of the trade unions.

The SAR Government has applied with modifications to Hong Kong the International Labour Convention No. 87. The modifications are permitted under the ILO Constitution. The modifications cover qualifications of trade union officers and restrictions on the use of union funds for political purposes. The modifications in respect of the occupational background of trade union officers and use of trade union funds are necessary safeguards to ensure the healthy development of trade unions in Hong Kong and to ensure that the role of trade unions are strictly confined to the promotion and protection of the interests of union members. The existing restrictions prohibits only the use of union funds for political purposes; trade unions are not prohibited from participating in general political activities. Moreover, since trade unions are not political parties, the restriction aims only at enabling the trade unions to concentrate more on their role of promoting the interests of union members. This restriction has also been supported and endorsed by the LAB. In addition, the existing legislation has lifted the restrictions on both the association of local trade unions with overseas bodies and the federation of cross-sectoral trade unions. In addition, it has also removed the requirement of government approval for the international affiliation of trade unions. All these amendments are in line with the interest of Hong Kong as a whole and able to enhance the rights of the trade unions tremendously.

Indeed, the existing Employment Ordinance have offered sufficient protection against anti-union discrimination. In this connection, Part IVA of the Ordinance provides for protection of employees against acts of anti-union discrimination on the ground of the employees's participation in union activities; besides, Part VIA of the Ordinance has also provided for the protection of employees against dismissal by reason of anti-union discrimination. The protection offered by these provisions is identical to that under the repealed Employment (Amendment) (No. 4) Ordinance 1997.

From the point of view of employers, we agree to the gradual improvement of the interests of employees; however, such improvement must be introduced gradually to keep pace with the social and economic development of Hong Kong on the one hand, and to strike a balance between the interest of employers and that of employees on the other.

With these remarks, Madam President, I oppose the motion.

MR LAU CHIN-SHEK (in Cantonese): Madam President, it was most encouraging that the former Legislative Council passed a number of Private Member's Bills at its last "marathon" sitting held before the reunification. I was especially excited by the passage of the three labour-related bills on the organization and independent operation of trade unions introduced by the Honourable LEE Cheuk-yan on behalf of the Hong Kong Confederation of Trade Unions (HKCTU), since it signified that wage earners in Hong Kong could really enjoy the freedom of association under the protection of the relevant legal provisions; besides, this was also the fruit of our efforts after years of protest, struggle and confrontation. Nevertheless, right after the establishment of the Special Administrative Region (SAR), the Government openly "froze" the Ordinances concerned in the first place and then "repealed" them altogether later, thereby depriving the wage earners of their entitled rights and causing Mr LEE Cheuk-yan to go on a hunger strike. This is indeed a blot on the record of the SAR.

I do not wish to keep on rekindling old grievances. As a matter of fact, the conclusion made by the Committee on Freedom of Association (CFA) of the ILO has indicated very clearly that the SAR Government's decision to repeal the relevant Ordinances is a violation of International Labour Conventions, namely, the Freedom of Association and Protection of the Right to Organize (No. 87) and the Right to Organize and Collective Bargaining Convention (No. 98). In addition, the CFA has also specifically required the SAR Government to legislate for the establishment of a collective bargaining mechanism for employers and employees, ban any forms of anti-union discrimination action, as well as ensure the independent operation of trade unions.

However, at the meeting between the HKCTU and the Secretary for Education and Manpower yesterday, Secretary Joseph WONG made a response tantamount to ignoring the Internation Labour Convention or the conclusion of the ILO altogether! I find it most disappointing that even today the Government still fails to realize the importance of freedom of association to the development of trade unions, and is unwilling to respect the internationally recognized basic human right of freedom of association. Today, on the eve of the 50th Anniversary of the Universal Declaration of Human Rights, I hope that the Government could realize clearly that "freedom of association" is the foundation upon which many civil and social rights and freedom are built.

In addition to International Labour Conventions No. 87 and No. 98 which have specifically provided for the freedom of association and the freedom to participate in trade union activities, the Preamble to the ILO Constitution has also stated categorically the "recognition of the principle of freedom of association to be a means of improving conditions of labour". Aptly because the principle of the freedom of association is the guiding principle of the Preamble to the ILO Constitution, any complaints against violation of the International Labour Conventions would be examined and decided by the CFA. From this we can see that the ILO has always regarded "freedom of association" as the major premise for the pursuit of labour interests.

Apart from the ILO Constitution and the International Labour Conventions, the Universal Declaration of Human Rights, which is the world's classic document on human rights, has also stated clearly the freedom of association and the right to organize trade unions. In this connection, Article 20 states that "Everyone has the right to freedom of peaceful assembly and association", and Article 23 states that "everyone has the right to form and to join trade unions for the protection of his interests"; hence, the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights which were made consequential upon the Universal Declaration of Human Rights have also established the right to "freedom of association" in the form of international agreements. In addition, it is well known that the Basic Law, which is the mini-constitution for Hong Kong, has also set out clearly under Article 27 that "Hong Kong residents shall have freedom of speech, of the press and of publication; freedom of association, of assembly, of procession and of demonstration; and the right to form and join trade unions, and to strike".

The reason why I have quoted so many provisions set out in international conventions and covenants as well as the Basic Law is that I wish the Government could realize that the "freedom of association" which allows workers to freely and voluntarily form and join trade unions is the basic protection provided for by the International Bill of Human Rights and the Basic Law; this is a fact that the Government cannot deny. Indeed, since the Government has repealed the relevant labour-related Ordinances to deprive workers of their right to form and join trade unions, it has violated International Labour Conventions No. 87 and No. 98, Article 22 of the International Covenant on Civil and Political Rights, Article 8 of the International Covenant on Economic, Social and Cultural Rights, as well as Articles 27 and 39 of the Basic Law. In view of Mr TUNG Chee-hwa's claim that the SAR Government would not break the law, I cannot but wonder if Mr TUNG has really read those international conventions and covenants carefully or he was just speaking nonsense and to "act" as if he was correct!

Madam President, because of the present economic recession and the high unemployment rate, wage-earners have found themselves being deprived of their rights in an unprecedentedly grave manner. According to a labour relations survey conducted by the HKCTU last month, close to 40% of the workers interviewed have been victims of wage cuts, benefit cuts or layoffs; yet when aggrieved, about 60% of the respondents said they had not reflected their grievances to their firms simply because they were afraid that things would be raked up against them. It is all the more important for wage earners to organize themselves and bargain with their employers collectively at the present stage; however, our labour-related laws have regrettably made a retrogression in this respect, thereby gravely depriving our workers of their rights to form trade unions and to bargain collectively.

Nevertheless, I should like to point out clearly that wage earners should strive for their own rights in joint actions. Regardless of whether their legal provisions for the protection of their rights, wage earners would still organize themselves to bargain collectively with their employers should their rights be infringed on. The recent case of the Hongkong Telecom employees is one example in this respect. However, if we have legal provisions setting out clearly the independent operation of trade unions and the workers' right to collective bargaining, the negotiations between the employers and their employees will then be more in order; otherwise, confrontations will just be intensified and impact on the stability of the community.

To maintain a superficial harmonious situation by high-handed measures is doomed to fail eventually. I hope the Government will give thought to that seriously. Thank you, Madam President.

DR LUI MING-WAH (in Cantonese): Madam President, the Provisional Legislative Council passed the Employment and Labour Relations (Miscellaneous Amendments) Bill 1997 to repeal the Employment (Amendment) (No. 4) Ordinance 1997 and the Employee's Rights to Representation, Consultation and Collective Bargaining Ordinance, as well as to amend the Trade Unions (Amendment) (No. 2) Ordinance 1997 by re-introducing provisions for restrictions on the use of trade union funds and the qualification of trade union officers. In this connection, Honourable Members who spoke just now have expressed their views as to whether the three Ordinances have violated any of the International Labour Conventions, and since I do not see any violation of the Conventions on the part of the Government, I do not wish to dwell on the issue. I represent the industrial sector, and for this reason, I should like to speak on the three Ordinances from the sector's perspective.

Insofar as the Employment (Amendment) (No. 4) Ordinance 1997 is concerned, the Employment (Amendment) (No. 3) Ordinance 1997 (which is Part IVA of the Employment Ordinance) enacted by the Government has in fact made provisions for employment protection in respect of dismissal on the ground of the employees' trade union membership or participation in trade union activities. In my opinion, this should be the most complete form of protection for any employees, and there is indeed no need for another amendment ordinance. Besides, since it is never easy to establish that the trade unionist employees concerned are subject to discrimination on the ground of their trade union membership or participation in trade union activities, any attempt to achieve this by legislative means will only serve to stir up unnecessary disputes.

With respect to the Employee's Rights to Representation, Consultation and Collective Bargaining Ordinance, the Government has always encouraged direct negotiation between employers and employees supplemented by the Labour Department's conciliation service. In this connection, trade unions could also help by offering advice and support.

According to the proposal put forward by the Honourable LEE Cheuk-yan in 1997, unions which have more than 15% of the workforce of enterprises with over 50 employees, may propose to the management to exercise the right to collective bargaining with the consent of over half of the workforce. But the fact remains that 94% of the firms in Hong Kong are staffed with less than 20 employees. They have neither the need for a trade union nor the conditions to bring into full play the right to collective bargaining. As for the large corporations, most of them have already formed trade unions, some of which may even be exercising their right to collective bargaining. To these large corporations, legislative control is but a redundant effort. On the other hand, some large corporations may have several trade unions, hence it is quite difficult for any of the trade unions to meet the membership requirement in order to bargain with the employer. In this connection, the introduction of collective bargaining will probably give rise to competition among trade unions, thereby creating clashes of interests among employees.

In addition, the right to collective bargaining will inevitably undermine the market force in determining wage levels. However, when such a wage level determination mechanism is functioning smoothly in Hong Kong, we should not do anything to undermine its effectiveness. Besides, the Employee's Rights to Representation, Consultation and Collective Bargaining Ordinance has also made provisions which require the employers to consult the qualitifed trade unions on matters related to financing, change of partners, layoffs, removal and so on, thus dealing a heavy blow to the operating independence of the enterprises and restricting the flexibility of commercial operations, in detriment to the competitiveness of Hong Kong. As investors turn their back on Hong Kong, job opportunities will decrease while the rate of unemployment will increase. This is the last thing we wish to see, since the ultimate victims will still be the workers. For this reason, I believe there is no need to establish the status of recognized trade unions by legislative means to facilitate collective bargaining.

As regards the Trade Unions (Amendment) (No. 2) Ordinance 1997, since it allows cross-sectoral union federations, free association with overseas trade unions, free uses of union funds and so on, local employees will inevitably be involved in political disputes and unnecessary unionist movements; as a result, trade unions will become a tool in political struggles, thereby further complicating the labour relations. In fact, the major role of a trade union should be to strive for the benefits of employees, hence changing its role to a political one is contradictory to the original purpose of trade union formation. On the contrary, banning the use of union funds for political purposes will enable the trade unions to concentrate their efforts on the betterment of the welfare of employees.

Since the repealed labour ordinances run against the spirit of free economy prevalent in Hong Kong and inconsistent with the existing conditions of the local community, I oppose the motion moved by the Honouarble Andrew CHENG to urge for the re-consideration of the repealed labour ordinances.

Madam President, I so submit.

MR LEUNG YIU-CHUNG (in Cantonese): Madam President, last year, the Provisional Legislative Council repealed several pieces of labour legislation after freezing them. In response to this, a group of former Legislative Council Members from the labour sector raised strong opposition from the very beginning. At that time, Mr LEE Cheuk-yan and I even went on a fast in protest as the repeal of the legislation would not only subject "wage earners" to exploitation of a more serious nature, but it was also in breach of the International Labour Convention. Nevertheless, the then government and the Provisional Legislative Council, which was not based on public opinion, still insisted on repealing the laws.

Whether it is right or wrong for the Provisional Legislative Council to have repealed the laws has now become crystal clear. This is because the International Labour Organization (ILO) has made a ruling by pointing out that the repeal of the laws is in breach of the spirit of the International Labour Convention. It would be a waste of time for us to discuss in detail whether or not the repeal is in breach of the Convention as the ILO is the sole authority for judging whether a certain piece of labour legislation is in breach of the Convention. As it is provided in the Basic Law that the Hong Kong Special Administrative Region (SAR) must put the Convention into practice, we are obliged to believe and trust the ruling made by this international labour body, just as we have to trust and obey the ruling made by the Hong Kong Court of Final Appeal.

I think it is more important for us to look at what the Hong Kong Government should do after the ILO has made its ruling, instead of examining whether or not the International Labour Convention has been breached. But it is extremely regrettable that the Government is still "insisting that it has done nothing wrong" by twisting its argument and saying that the ILO report has not specifically stated that the Hong Kong Government is "in breach of" the Convention. The wording used by the ILO in the report is "contrary to". Madam President, you and many officials as well as Honourable colleagues have a high English standard. I believe all of you understand the expression "contrary to" very well. Even if it is not actually translated into "違反", I believe the spirit and meaning of the translation will come quite close to "違反". But unfortunately, the Government is still insisting on its own line.

The Government's way of handling the matter reminds me of the way the United States President Bill CLINTON handled his sex scandal. I think both incidents are quite similar in the sense that the persons involved in the incidents have done something wrong but they have strongly denied what they have done. It was only after Ms Monica LEWINSKY presented her skirt which was stained with semen that Mr CLINTON's attitude changed instantly. He even changed what he had said by admitting that his relationship with Monica was inappropriate. Later, after seeing that there was no chance for further argument, he appeared before the television in tears and apologized to his family as well as to the whole world and promised that he would not make the same mistake again. It is extremely regrettable that although the ILO has ruled that the repeal is not proper, our Government has not acted like Mr CLINTON. And instead of admitting its mistake, it has, on the contrary, tried to indulge in sophistry and "defend itself with all its might". I really hope that the SAR Government can think over what it has done and rectify the wrongs, if any, it has done.

I read from a newspaper today that many senior officials recently followed the prevailing trend of "admitting mistakes". In particular, many senior officials admitted in the Public Accounts Committee that their subordinates had made some mistakes. We should be very pleased with the emergence of this phenomenon. And in fact, many people in Hong Kong were pleased to see that the officials were willing to admit their mistakes. Even Secretary LAM Woon-kwong highly praised the officials for what they had done. Such being the case, I earnestly hope that Mr LAM Woon-kwong could talk to Mr Joseph WONG and encourage him to face the reality by admitting to any mistakes he has made instead of "defending himself with all his might".

Madam President, I once had an intention to propose amending the Basic Law lately. After sounding out my proposal, I was criticized by many people. And in particular, I was bombarded by some friends of mine who was pro-Beijing for they held that the Basic Law was a "sacrosanct" piece of law and that it should not be amended arbitrarily. Of course, I cannot agree with such a view. If the Basic Law was really that sacrosanct, then why did they let the SAR Government or the Provisional Legislative Council to contravene the Basic Law indiscriminately and even insult as well as trampling on the Basic Law? And why did they let the SAR Government to show disrespect for the document passed by the National People's Congress of the Central Government without raising any objection so far? Is this approach reasonable?

I have been extremely doubtful of the Basic Law Drafting Committee which said that Hong Kong could act according to the International Labour Convention when Article 39 of the Basic Law was drafted. But so far, has the authorities really acted according to the Convention in spite of the fact that this is written in the law? If it has not done so, it will mean that what is provided in the Basic Law serves only as a vase for decoration.

Therefore, I earnestly hope that the Government can instantly "clarify confusion and bring things back to order" by re-tabling the repealed legislation back to this Council to enable us to really put the spirit of the Convention into practice.

Moreover, I hope those colleagues sitting here can support Mr Andrew CHENG's motion when they vote later if they really uphold and safeguard the Basic Law.

Madam President, I so submit.

MISS CHAN YUEN-HAN (in Cantonese): Madam President, for trade unionists, it is their basic duty to fight for the interests of the labour as well as for protection through legislation. Let me cite collective bargaining as an example. We strongly demand that legislation be introduced to provide for a collective bargaining system. As unionists, we must endeavour to reach such goals as the rights to organize trade unions, go on strike, and engage in collective bargaining.

Just now, Mr Andrew CHENG from the Democratic Party pointed out that the Hong Kong Federation of Trade Unions (FTU) or the Democratic Alliance for the Betterment of Hong Kong (DAB) had been adopting an ambiguous position and trying to please both sides in respect of these issues. He further warned us not to evade the issues and repeat the mistakes again. I hope Mr Andrew CHENG can, first of all, do his homework by investigating how voting was conducted in the Legislative Council in those years as well as finding out the FTU's position by looking back at Hong Kong's history over the past two or three decades.

Madam President, the Employee's Rights to Representation, Consultation and Collective Bargaining Ordinance was not scrutinized by the former Legislative Council at all. More importantly, trade unions throughout the territory were not given a chance to fully debate the contents of the Ordinance in a comprehensive manner and express their views. The FTU considered it was all too hasty to make such a very important decision.

Looking around at other countries which practise collective bargaining, we can see that there are different modes of collective bargaining as the situations in different countries and regions differ. There is a need to formulate the mode of collective bargaining in light of the unique features of different countries and regions. It may not suit our actual circumstances if we simply introduce overseas experiences.

The FTU is of the view that the most ideal collective bargaining system should consists of three levels, including the central, the trade and the enterprise.

The first level is the central level. It should be similar to the existing Labour Advisory Board (LAB) and should consist of representatives from the labour side, management side and official side. Such issues as Hong Kong's future manpower policies, labour relations and labour welfare should be discussed at this venue with a view to providing a comprehensive and forward-looking guideline.

The second level comprises people in the trade and its basic unit is the trade. Trade unions are empowered to discuss with trade associations the employment terms of workers or the rights and responsibilities of the labour and management sides. At present, the construction trade union and relevant trade unions are holding similar consultation with their trade associations.

The third level refers to the collective bargaining system of enterprises. Individual enterprises can, in the light of their uniqueness, discuss the terms of condition and the ways to improve work efficiency with the management side. In order to establish this level, we must, at the same time, put in place other legislation to provide workers participating in collective bargaining with concrete employment protection. Given the current economic recession, it is even all the more necessary for legislation to be put in place to effect employment protection. Otherwise, no one will be willing to participate in collective bargaining.

In drafting the relevant legislation, we must take into account a three-level collective bargaining mechanism. To put emphasis on any one level is a bad arrangement, a point stressed all along by the FTU. As unionists, we strongly demand that a three-level collective bargaining system be established. The FTU hopes that the community can conduct an extensive debate on this proposal and give its support.

After establishing a collective bargaining system, we must do something which can contribute to concentrating the power of trade unions and unifying workers before we can give full play to the strength of collective bargaining. We found numerous problems in the bill proposed by Mr LEE Cheuk-yan then on collective bargaining. It may be detrimental to the cohesion of trade unions and solidarity among workers and may even lead to secession of trade unions, thereby hindering the concentration of union power. We do not support any piece of legislation which has been passed without our scrutiny at all. I am aware that Mr Andrew CHENG did take part in the scrutiny of the Estate Agents Ordinance. It has taken more than two years to scrutinize such a simple piece of legislation as this one. But the piece of legislation under question which involved various aspects and was extremely controversial was passed in a hasty manner without going through any scrutiny at all. This is why we found it very difficult to give our support.

As for the Trade Unions Ordinance, we hold that it is essential to make some technical amendments, such as to lower the age of a union officer from 21 to 18 and to allow trade unions of various trades to form general unions. The FTU is in support of all these amendments. Nevertheless, we strongly object to the use of union funds for political purposes and allowing trade unions to have affiliation with foreign political organizations.

But I would like to stress one point and that is, the Employment (Amendment) (No. 4) Ordinance was passed through scrutiny by this Council and its contents have all along been supported by the FTU and DAB. According to the Ordinance, employment protection is of extreme importance to employees engaged in trade union activities. At the moment, there is no legislation on protection of employees' employment. The Ordinance raised the point that an employee can enjoy the right to reinstatement if he is dismissed by his employer on the ground of his participation in trade union activities. We are absolutely clear about this point and we have all along supported it. For people engaging in union activities, this is undoubtedly an important protection. This is why we are in full support of it.

The International Labour Organization (ILO) has recently expressed its views on the repeal of these three pieces of labour legislation by the Provisional Legislative Council. We also welcome other people to express their views to us. But first of all, we have to ask: To what extent does the ILO understand the situation in Hong Kong? Has the ILO, before raising its views, listened to the opinions of other trade unions in Hong Kong or has it drawn its conclusion without consulting other trade unions at all? Is the ILO acting prudently as it has already fixed its direction in respect of these three pieces of legislation after listening to one side of the story only?

Madam President, I believe it is essential for us to conduct detailed discussions before implementing a complicated piece of legislation. Just as I mentioned earlier, it has taken several years for the authorities to conduct repeated discussions before the Estate Agents Ordinance and the Mandatory Provident Fund Schemes Ordinance, which I also took part in the scrutiny process, were finally enacted. To safeguard the interests of the labour, I hope these pieces of legislation can be discussed and scrutinized in detail by both the community and this Council when they are tabled to this Council again.

Madam President, I so submit.

MR AMBROSE LAU (in Cantonese): Madam President, labour relations in Hong Kong have all along taken harmony, co-operation between the labour and management sides, as well as mutual understanding and respect seriously. In this respect, the Labour Advisory Board (LAB) has proved itself an effective mechanism for employers and employees to consult and co-operate with one another. Nevertheless, the last Legislative Council has, on the eve of the handover, hastily presented several pieces of labour legislation out of keeping with the actual circumstances of Hong Kong, without fully consulting the LAB and the labour sector.

Hong Kong's environment has never provided a chance for a collective bargaining system to develop fully. Even if we look at overseas countries which practise collective bargaining, most of them have proved that collective bargaining has more disadvantages than advantages as far as the labour side is concerned. For instance, the unemployment rate in Spain has reached as high as 22% today. When the power of trade unions reached its height in the United States in the 1950s, collective bargaining had resulted in a higher unemployment rate, though the wages of union members under protection were raised.

In fact, the contents of the local ordinance related to collective bargaining were gathered from relevant legislation from various countries. The ordinance empowered the labour side to take part in enterprise management, and this is in contradiction with Hong Kong's free economy which is built on private ownership. As a result, investors will be so frightened that they will turn away and, eventually, it will be the labour in general who suffer. Moreover, it was stated in the ordinance that a union could become a party to the negotiation table so long as it had the support of 15% of the workers. I think I need not mention that judges of the Labour Tribunal will find it impossible to cope with the sharp rise in labour conflicts and disputes. And because trade unions harbour a mountain-stronghold mentality, workers will ultimately find that they are unable to get help and, on the contrary, settlement of many labour disputes will be delayed. As a result, they cannot be solved in good time and reasonably. Article 98 of the International Labour Convention has not required that a government must legislate on collective bargaining. This point is also recognized by the International Labour Organization.

The Trade Unions (Amendment) (No. 2) Ordinance 1997 allowed a local trade union to join an overseas trade union and form a union across different trades, as well as allowing the union to use its funds for political purpose. Subsequently, the trade union might change from an organization fighting for the interests of workers into a tool for political struggle as well as a political organ. And this may contravene Article 23 of the Basic Law. More importantly, if a trade union transformed into a political organ, it would have no time at all to concentrate its work on improving workers' benefits. It is worthy to point out that the Hong Kong Special Administrative Region Government will definitely not interfere with the operation of trade unions in safeguarding workers' benefits. But it can prevent the emergence of a direct link between disguised local political organs and disguised overseas political organs.

The main objective of the Employment (Amendment) (No. 4) Ordinance 1997 was to provide protection to employees subject to any forms of discrimination because of their union membership or participation in union activities so that they would have the right to civil redress. Actually, the Employment (Amendment) (No. 3) Ordinance 1997 has given protection to employees from being dismissed because of their union membership or participation in union activities. There is indeed no need to put in place another overlapping mechanism.

Madam President, to start with, the Provisional Legislative Council's repeal and amendment of the three pieces of labour legislation was aimed at safeguarding the harmony of the local labour relations and maintaining a good environment for investment in Hong Kong. Its ultimate objective was to safeguard the fundamental interests of workers in Hong Kong. Under the attack of the Asian financial turmoil, Hong Kong has now entered a tough period of recession. Intensification of labour-management conflicts during this period will only delay the revival of our economy.

Madam President, I so submit.

MR KENNETH TING (in Cantonese): Madam President, the Liberal Party and the Federation of Hong Kong Industries would like to reiterate that we object to the re-tabling of the three pieces of legislation mentioned in the motion to this Council. Undoubtedly, the purpose of Members from the labour sector in putting forward these three bills is to further safeguard the interests of the labour force. They are of the view that, upon the passage of the bill on collective bargaining, for instance, trade unions can then represent employees in negotiations with their employers and the rights of the employees can then be protected. However, I think the issue may not be so simple. I would like to ask: If collective bargaining can provide a good solution to labour problems, why should the Philippines Airline cease its business in September this year? The answer is crystal clear and that is precisely due to the right to collective bargaining. It was proposed by the airline at that time that it could give up 20% of the company's shares and three director seats in exchange for the trade union's abandonment of its right to collective bargaining for 10 years. But the trade union of the Philippines Airline still maintained its objection. And this had made it impossible for the union to reach an agreement with the management side and finally the Philippines Airline had to cease its business. Consequently, all employees of the airline lost their jobs instantly. If collective bargaining had not dealt a serious blow to the airline, why did the airline choose to wind up instead of letting the trade union to exercise its right to collective bargaining again? It is therefore easy to see that the right to collective bargaining has an adverse impact on commerce and industry.

Madam President, I can predict that if we have the right to collective bargaining in Hong Kong, both local and overseas investors will cut their investment in Hong Kong drastically. The reputation of Hong Kong as the most ideal place for investment will also be destroyed.

On the other hand, the Federation of Hong Kong Industries and the Liberal Party will object to the deletion of the provision related to the affiliation of local trade unions with overseas trade unions and the permission given for different trades to form inter-trade unions. The deletion of the provision related to these two areas will not only turn any labour problem into a political issue, but also turn local labour disputes into an international issue. Subject to the prerequisite that we must ensure that Hong Kong maintains favourable investment environment, we will object to the re-tabling of the bill to this Council.

As for the third bill, that is, the Employment (Amendment) (No. 4) Bill 1997, we think it is unreasonable too. This bill puts on the management side the onus of proving that the dismissal decision is not made because of the fact that the employee has joined a trade union. But we think this requirement is unreasonable. This is because 94% to 95% of the companies in Hong Kong employ a staff of less than 20 people. Should this bill be abused, the management side will have to hire a solicitor for defence. Many small and medium enterprises will thus be forced to close down because of this unreasonable bill. For these reasons, we object to the proposal.

Madam President, the Federation of Hong Kong Industries and the Liberal Party understand that it was for the purpose of safeguarding the interests of employees in Hong Kong that the Democratic Party and some colleagues of the labour sector have requested to table these three bills again. But before tabling these pieces of labour legislation, we must, first of all, study the damage that may be done by the legislation to the operation of our commerce and industry as well as to the whole business environment and confidence of investors. Otherwise, the legislation will only "spoil the whole matter in spite of its good intention" and undermine the confidence of the commercial and industrial sector in making investment. And eventually, employees in Hong Kong will only lose more job opportunities and find that they have more losses than gains.

Thank you, Madam President. I so submit.

MISS MARGARET NG: Madam President, I support the motion of the Honourable Andrew CHENG.

This has nothing to do with any position I may have on the repealed labour laws concerned. Indeed, I had reservations on the Bills concerned when they were debated in the last Legislative Council before the handover. I know that the Honourable LEE Cheuk-yan has taken a great deal of care over the Bills he introduced, and had the assistance of professional advice. I greatly respect his efforts. My reservation was only that there was not enough time to go through as much scrutiny and testing as I would like to see.

However, even had I voted against these Bills, which I did not, I would have respected the outcome when the Bills were passed and became laws.

I find it abhorrent that following the handover, the Government took advantage of the absence of an elected legislature to abolish these lawfully enacted Ordinances. Thus, it blotted the establishment of the Hong Kong Special Administrative Region with an assault on the rule of law.

The Honourable Ambrose LAU seemed to suggest just now that the three repealed laws may have contravened the Basic Law. If so, there is a perfectly proper channel to declare them invalid. There was no excuse to take the step of "freezing" and then repealing them through the Provisional Legislative Council.

I am glad to have the opportunity today to express my censure. I support the reintroduction of the legislation for proper discussion. If the legislation or any part of it is unpracticable or poses any difficulty for Hong Kong, then let amendments be introduced.

Due process must be respected. This is the foundation of the rule of law. There should be no exception.

Thank you, Madam President.

MR MICHAEL HO (in Cantonese): Madam President, many of my colleagues have described collective bargaining as a dreadful monster by saying that it will affect not only the atmosphere for investment, but also overseas investors. First of all, I shall make a brief response. If this system is put in place, will it destroy the previous labour relations entirely? This is in fact just one of the systems for fixing problems pertaining to labour relations. Collective bargaining can be conducted in a proper manner. The objective of Mr LEE Cheuk-yan's introduction of a private bill before July 1997 was only to introduce collective bargaining arrangements by means of legislation. If Members feel that something is not done good enough or is far from being perfect, we can make remedies by making amendments or carrying out support work in other areas properly.

Mr HO Sai-chu mentioned that if collective bargaining is put in place, employers will definitely raise objection and it will even lead to competition for members among trade unions. In fact, it is irrefutable that trade unions are now competing for members but what is wrong with that? Now we are saying that the Labour Department has been working effectively in carrying out its reconciliation work, but is this the real picture? This is only because employers in Hong Kong are in a position much stronger than their employees. Therefore, we do not see that many major labour disputes. Consequently, the weaker party was being suppressed and the reconciliation work has always ended this way.

Dr LUI Ming-wah mentioned that trade unions were playing a supporting role. But I think this is not the case. If we have collective bargaining, employers will know whom they can talk to. Collective bargaining will then play a formal and systematic representative role. In that case, not everyone can talk to the boss by saying that he represents workers. Collective bargaining will then provide a crystal clear mechanism. Furthermore, it has one more advantage and that is, the workers will have to be responsible for what they have said and therefore they cannot go back on their words. Of course, people may say that things are proceeding smoothly now insofar as the setting of the wages is concerned. It is smooth because employers have acted in a high-handed manner, and employees have utterly no room for negotiation as employers can change things as they like.

What is the big deal with trade unions participating in politics? Mr LEE Cheuk-yan, Mr LAU Chin-shek, Miss CHAN Yuen-han and Mr CHAN Wing-chan, who are sitting in this Council today, are all trade unionists. It is evident that they represent workers in taking part in political affairs. There is nothing wrong of them to put forward their demands through political channels or strive for workers' interests through this Council. In a council, employers can take part in politics, and so can employees. A trade association can support an employer to take part in politics, then why can a trade union not do so? We should not look at one side only in viewing matters like these.

Finally, I want to reserve some time to respond to the Hong Kong Federation of Trade Unions (FTU). Just now, Miss CHAN Yuen-han said we had not done our homework properly. In this connection, I would like to ask Members to look at what Mr CHENG Yiu-tong said during the Second Reading debate on the repeal of laws in the Provisional Legislative Council on 29 October 1997, and I quote: "...... the right of collective bargaining are objectives that people involved in labour movements must strive for. Therefore, we strongly demand that a collective bargaining system be set up through legislation. However, we do not agree to the contents of the collective bargaining ordinance as proposed by former Legislative Council Members. We think that the contents of this ordinance are unfavourable to the unity of our trade unions as well as to the unity among workers. I think the contents of the ordinance will cause a break-up in a trade union, or among trade unions, resulting in their failure to get united." And my quote ends here.

Madam President, both speeches given by Mr CHENG Yiu-tong at that time and by Miss CHAN Yuen-han today have not explained clearly why collective bargaining will result in a break-up and unfavourable consequences. If someone says that other ordinances should be amended, he can suggest ways to make amendment and state his reason by pointing out what areas should be amended and strengthened. What the trade unions in Hong Kong should do is to supplement the legislation related to collective bargaining so as to enable the relevant arrangements to be implemented smoothly and effectively under the laws of Hong Kong. I wonder if the FTU will support this motion or not.

MISS CYD HO (in Cantonese): Thank you, Madam President. The first speech made in today's debate has already "fueled the fire". Mr Andrew CHENG even recalled some contradictory voting acts that took place in this Chamber in 1997. I believe there is no need for the Frontier to fan the flames here. I would like to sincerely persuade the Democratic Alliance for the Betterment of Hong Kong (DAB) and the Hong Kong Federation of Trade Unions (FTU) to support Mr Andrew CHENG's motion as both of them claim that they represent the grassroots to strive for the rights of the labour force. I hope we can put aside factional struggles and make concerted efforts to get things done.

In fact, if we look at the contents of today's motion from the last sentence back, we can see that our fundamental objective is to safeguard the basic rights of the labour force. What disputes do we have in this area? We have been saying that Hong Kong is now caught in an economic recession, we should therefore make concerted efforts to tide over these difficult times. As such, it is essential to safeguard the basic rights of the labour force; unless we think that the labour force has basically no rights, including those rights which are most fundamental. Or we think that the labour force is so powerful that it has already made a profound impact on the Government for the desired protection. In that case, there will be no need for us to do anything to protect the rights of the labour force. If so, this motion will not warrant our support. But actually, the current situation is not like this.

Let us look at the recent situation. As it is now difficult to do business and because of the linked exchange rate problem of the Hong Kong currency, our competitive edge has become very weak. But many recent incidents have proved that the labour force, being the weaker group in the community, is always the first one to suffer in order that the operating costs can be lowered. We can see from the current situation that workers are in a completely "passive" position. They have absolutely no power to negotiate and may not even have a chance to sit at the negotiation table. As a result, 3 000-odd people can only take to the streets, like what the staff of telecommunications companies did before. Does the Government really want to see 3 000-odd people take to the streets every time? Or does it want to have representatives from both sides to sit down and discuss? I hope Members can consider this point.

Some Members worried if the basic rights of the labour force would become excessive or too political? Some other Members also pointed out that the bills had not gone through detailed scrutiny when they were passed by the end of June 1997. Is it not an excellent approach? This is because according to the second last sentence of the motion, Mr Andrew CHENG is only "urging the Government to immediately submit to this Council for reconsideration those pieces of labour legislation that have been repealed or amended". During the process of reconsideration, Members can, if they so wish, put forward any views they may have. Both the management side and the labour side will be given a chance to express their views through discussion and voting as well as deciding what rights Hong Kong workers can enjoy under the present circumstances through this mechanism. Why can Members not support this?

Madam President, I would also like to talk about the politicization issue as mentioned by Members just now. It is not my wish to see that a double standard exists in Hong Kong. Why do we called it "political" when workers group together to form a trade union? Recently, we saw that some employers grouped together and put forward their proposal of importing foreign labour. But in that case, the employers only labelled their action as "revival" but not "politicization". Why can we allow the same act to be described in two different ways? Is it our intention that the workers can only stay in a passive position and on the receiving end but not join hands with their employers to revive Hong Kong's economy?

Secondly, I would like to respond to what Miss CHAN Yuen-han said just now. She said over the past two or three decades, the FTU did actually have terrific performance in respect of such labour rights as collective bargaining. I earnestly hope that the FTU can put forward its views by drafting a motion and tabling it to this Council for discussion. If they do not take the initiative to do something and only vote against the bill proposed by other colleagues who aim at striving for the rights of the labour force, they will find it extremely difficult to convince the public. We should really make strenuous efforts to improve the rights of the labour force. As such, I hope colleagues from the FTU and the DAB can take the initiative to do something.

Finally, I would like to tell Mr Andrew CHENG that under the existing system of this Council, we have to pass through two barriers if we are to pass a bill for the purpose of improving the rights of the labour force. First of all, the bill should be tabled by the Government on its own initiative. But in this case, we will have to seek Mr TAM Yiu-chung's assistance in urging the Government to do so. Secondly, without the support of the colleagues from the DAB and the FTU, we will fail in securing a majority of the votes. Subsequently, we will be unable to endorse business related to the rights of the labour force. Therefore, I would like to urge Mr Andrew CHENG not to go too far when he replies later. We should do the lobbying in a sincere manner in the hope that this motion can be passed smoothly today.

Thank you, Madam President.

MR YEUNG YIU-CHUNG (in Cantonese): Madam President, the DAB considers that Mr Andrew CHENG's criticism that the Provisional Legislative Council's repeal of the Employment (Amendment) (No. 4) Ordinance 1997 and the Employee's Rights to Representation, Consultation and Collective Bargaining Ordinance and amendment the Trade Unions (Amendment) (No. 2) Ordinance 1997 have breached the International Labour Convention and the Basic Law is untenable and I will refute his criticism point by point.

As we all know, when the Provisional Legislative Council scrutinized the Employment and Labour Relations (Miscellaneous Amendments) Bill 1997, on account of the fact that the Labour Advisory Board (LAB) had failed to reach a consensus about some labour legislation and the three Ordinances concerned had not gone through public consultation or the Committee stage by the end of June 1997 but were rashly passed at the last sitting of the Legislative Council, the two Ordinances concerned were therefore repealed and the Trade Union Ordinance was amended upon a consensus reached by the LAB. This falls in line with the overall and long-term interests of Hong Kong and is a practicable and responsible act. For instance, the Employee's Rights to Representation, Consultation and Collective Bargaining Ordinance is highly controversial although the DAB supports the institution of a right to collective bargaining, we find that the specific provisions of the Ordinance is still not very sound and is to question. It is because the Ordinance provides that 15% trade union members can establish a body having statutory consultative rights. Theoretically speaking, a company or body can create at the most six trade unions having statutory consultative rights. This will undoubtedly intensify the political conflicts in trade unions and cause an overlapping and splitting up of trade unions. This is extremely unfavourable to the economic competitiveness and the long-term development of labour relations in Hong Kong, and not conducive to the unity of wage earners.

Madam President, Mr Andrew CHENG's criticism that the Provisional Legislative Council's repeal of the Ordinances is in breach of the International Labour Convention and the Basic Law is totally unfounded. Article 39 of the Basic Law provides that the provisions of international labour conventions as applied to Hong Kong shall remain in force and shall be implemented through the laws of the Hong Kong Special Administrative Region (SAR). The British ruled Hong Kong before 1997 and represented Hong Kong in joining international labour bodies but it only pledged to implement 48 out of a total of 70 conventions in Hong Kong. For instance, the United Kingdom did not accept Article 87(3) of the Convention entirely, and it amended it such that the use of trade union funds fell in line with the use specified under local laws or permitted by the Government. Such being the case, had it violated the international conventions? The provisions of the conventions are intended for reference by member countries in making legislation and the signatory countries can implement all or part of the provisions or make reservations about a resolution in the light of the conditions of their countries. This is being practical and realistic, not rigid uniformity.

Originally, a Member moving a motion can absolutely make specific suggestions concerning repealed or amended bills but the objective of this motion is only to besiege the Provisional Legislative Council under the pretext of protecting labour interests. This is not strange at all as some people who opposed the Provisional Legislative Council have been sparing no effort in smearing the Provisional Legislative Council. During the Legislative Council election, they even strongly attacked the Provisional Legislative Council, they made up the 10 "sins" of the Provisional Legislative Council and alleged that they would lodge complaints against the Provisional Legislative Council and so on. After all, they wanted to completely negate the Provisional Legislative Council.

For example, people who opposed the Provisional Legislative Council kept saying that the Provisional Legislative Council had restricted people's freedom of procession and association. In fact, people's rights and freedom of demonstration have not been reduced after 1997 and the number of demonstration held is even greater than that before 1997. As to the passage of government motions by the Provisional Legislative Council, people who opposed the Provisional Legislative Council said that the Provisional Legislative Council is a rubber stamp. However, those who opposed the Provisional Legislative Council mention nothing about and are indifferent to the negation of government motions by the Provisional Legislative Council, its role in exercising checks and balances against the Government and its freeze on fuel duties. On the one hand, those who opposed the Provisional Legislative Council criticized the Provisional Legislative Council for being at a loss as to what to do in the face of economic difficulties, on the other hand, they criticized that the Provisional Legislative Council was only concerned about but did not attach importance to people's livelihood. When people want to level charges against the Provisional Legislative Council, they will be fully expressive.

Madam President, the achievements made by the Provisional Legislative Council should not be obliterated as it was established to ensure legal continuity after the handover of sovereignty and that the legal vacuum would be filled up. Within the 16 months of its existence, the Provisional Legislative Council scrutinized and passed 63 "indispensable" bills, dealt with 104 appropriation items, 529 written and oral questions and 57 motion debates and successfully abolished the port of first asylum policy, reduced rates, and froze fuel duties and government service fees. We should say that the efforts and contribution made by the Provisional Legislative Council in promoting the stable transition, preparing for the establishment of the SAR and ensuring the smooth operation of the SAR merit our positive recognition. The value of the existence and historical significance of the Provisional Legislative Council is obvious to all and any attempts to negate the Provisional Legislative Council are bound to fail.

With these remarks, I oppose Mr Andrew CHENG's motion on behalf of the DAB. Thank you, Madam President.

MR CHAN WING-CHAN (in Cantonese): Madam President, Mr Andrew CHENG has said that the Hong Kong Federation of Trade Unions (FTU) and the Democratic Alliance for the Betterment of Hong Kong (DAB) have shown an ambiguous position and urged us not to evade the problem any longer, while Mr Michael HO has talked about the right to collective bargaining. I would like to respond to their comments.

The position of the FTU on the three labour ordinances is consistent. During the time of the Provisional Legislative Council and the Legislative Council, we supported what we supported and opposed what we opposed; our position has been very explicit.

On the question of the right to collective bargaining, the attitude of the FTU has always been unequivocal ─ we support and demand a collective bargaining mechanism. The Chairman of the FTU has stated that we agree that the Government should enact legislation on the right to collective bargaining. This is right and is still true, we will welcome the enactment of such legislation by the Government. One of the functions of a trade union is to uphold people's rights of organizing trade unions and going on strike. I have also asked a question about collective bargaining before.

We have said time and again that we do not agree to the remarks made by former Legislative Council Members about collective bargaining as they are not favourable to trade unions. As Miss CHAN Yuen-han has just commented on this, I am not going to repeat the points here.

An important point is that this bill on the right to collective bargaining was rashly submitted to the Provisional Legislative Council before being scrutinized by the Bills Committee. Members should be aware that any bill, regulation or subsidiary legislation should be discussed by the House Committee to determine whether it should be scrutinized by a Bills Committee. If a bill involves material or policy issues, a Bills Committee has to be established to scrutinize it. During a shorter scrutiny period, one or two meetings may be called to scrutinize a bill but a longer scrutiny period may be one to two years. For instance, the scrutiny period of the Estate Agents Ordinance just mentioned by Miss CHAN Yuen-han and which Mr Andrew CHENG knows very well is two years. Take the Mandatory Provident Fund Schemes Bill as another example, the scrutiny period is over two years during which two legislative councils have existed. As the Mandatory Provident Fund Schemes Ordinance involves contributions to be made by employers and employees in future, during the scrutiny period, the Bills Committee invited representatives of chambers of commerce, trade unions, the academic sector and the community, including those from the fund and insurance sectors to express their views. A bill has to go through detailed scrutiny, amendment and finalizing before passing into law.

There are two major co-operating "partners", employers and employees, or the representatives of trade unions and chambers of commerce under the legislation on collective bargaining. Labour disputes or material labour problems have to be handled and resolved in accordance with the said legislation. Have Members scrutinized in detail such material legislation concerning labour problems? No. Do the representatives of chambers of commerce and employers, trade unions and the community have a chance to express their views in the Legislative Council? No.

Madam President, let me draw an analogy. A pair of prospective husband and wife walk into the church for their wedding and the presiding priest or pastor will ask: "Mr CHAN, the bridegroom, do you marry Miss MA?" Besides saying "I do", the bridegroom smiles to let the priest know his intention clearly. In the same way, the priest asks the bride whether she wants to marry Mr CHAN and spend the rest of her life with him. This is a critical moment, for sure, nothing dramatic happened, unless in movies. The bride will say "I do" with exuding tenderness. Then, the bride and bridegroom exchange their rings and the priest declares the ceremony over. The newly-weds accept congratulations from friends and relatives, board the festooned limousine and begin their honeymoon and their married life which will last for decades. This is a modern and civilized marriage.

For another kind of marriage, parents choose a spouse for their son or daughter regardless of whether their child agrees to their match and they just send the newly-weds into their bridal chamber after the wedding. The bride and bridegroom are blindly married to one another and we know without saying if they are happily married.

What is the difference between the course of enactment of the legislation on collective bargaining and the said example in which the bride and bridegroom are blindly married to one another? Legislation that is not scrutinized or recognized will give rise to future arguments and will not be favourable to the labour force and the community.

With these remarks, Madam President, I oppose Mr Andrew CHENG's motion.

PRESIDENT (in Cantonese): Does any other Member wish to speak?

(No Member indicated a wish to speak)

SECRETARY FOR EDUCATION AND MANPOWER (in Cantonese): Madam President,

Introduction

recently, the Committee on Freedom of Association (CFA) of the International Labour Organization (ILO) released its report on the complaint lodged by the Hong Kong Confederation of Trade Unions (CTU) about the repeal of two labour laws and the amendment of another labour law last year by the Provisional Legislative Council. The Government understands the concern of the Honourable Andrew CHENG and other Members about this matter. I would like to explain in detail the Government's position and views with regard to this matter in this motion debate.

The Government did not breach the International Labour Conventions

First, let me point out that when the Government of Hong Kong Special Administrative Region (SAR) submitted the Employment And Labour Relations (Miscellaneous Amendments) Bill 1997 to the Provisional Legislative Council in October last year proposing to repeal the Employment (Amendment) (No. 4) Ordinance 1997 and the Employee's Rights to Representation, Consultation and Collective Bargaining Ordinance, as well as amend the Trade Unions (Amendment) (No. 2) Ordinance 1997, it did so only after serious consideration and the decision was consistent with the overall interest of Hong Kong. However, it did not mean that the Government does not place emphasis on the protection of labour rights.

Second, the Government did not breach the International Labour Conventions as applied to Hong Kong or the relevant provisions of the Basic Law. Nor does the CFA report of the ILO state that the SAR Government has breached the specific articles of the relevant International Labour Conventions.

The relevant International Labour Conventions are Convention No. 98, "the Right to Organize and Collective Bargaining Convention", and Convention No. 87 adopted in 1948, "the Freedom of Association and Protection of the Right to Organize Convention". Our existing labour laws comply with these two conventions. I would like to explain the main points here:

(1) Article 4 of Convention No. 98 of the International Labour Conventions stipulates that "measures appropriate to national conditions shall be taken, where necessary, to encourage and promote the full development and utilization of machinery for voluntary negotiation between employers or employers' organizations and workers' organizations, with a view to the regulation of terms and conditions of employment by means of collective agreements". This article clearly recognizes that the conditions in different countries and regions might be very different. Thus, the Convention does not rigidly require the relevant countries or regions to impose collective bargaining by statute. In fact, the ILO has clearly pointed out in its publication "Digest of decisions and principles of the Freedom of Association Committee" that "nothing in Article 4 of Convention No. 98 places a duty on the Government to enforce collective bargaining by compulsory means with a given organization; such an intervention would clearly alter the nature of bargaining". Thus, what we are doing now is to encourage and promote voluntary negotiation between employers and employees or their relevant organizations. This is a measure appropriate to the conditions in Hong Kong.

(2) Convention No. 87 of the International Labour Conventions only was applied to Hong Kong after a modification declaration had been made. The modifications cover the issues of qualifications of trade union officers and restrictions on the use of trade union funds for political purposes. The modifications concerning the occupational background of trade union officers and the use of trade union funds are meant to ensure the healthy development of trade unions in Hong Kong. They are also a necessary measure to ensure that trade unions will concentrate on the promotion and protection of the interests of union members. These modifications are allowed by the Constitution of the ILO.

With regard to the Basic Law, since the establishment of the SAR Government, it has seen to it that the relevant provisions of any new laws do not contravene the relevant provisions in the Basic Law before they are enacted. The enactment of the Employment and Labour Relations (Miscellaneous Amendments) Ordinance 1997 by the Government was no exception.

On basis of the above two reasons, the Government does not intend to submit the labour laws repealed or amended by the Provisional Legislative Council to the Legislative Council for reconsideration.

The Government's labour policy

I must reiterate that the Government will continue to strive to protect employees' rights and promote their interests as it has been doing. Our policy is to promote employees' interests gradually while taking into account the socio-economic developments of Hong Kong and balancing the interests of employers and employees. The Government also abides strictly by another principle and that is, before making any decision about labour affairs, including whether or not to legislate on or implement the International Labour Conventions, the Government will consult the Labour Advisory Board (LAB). The LAB consists of representatives of the Government, employers and employees and is the Government's most important and most representative consultative organ on labour affairs. Over the past few decades, we have greatly improved the interests of employees in Hong Kong by using this proven mechanism. This tripartite consultative framework also conforms to the requirements of the ILO Constitution.

Indeed, the Government has consistently improved the benefits and welfare of employees. I have been Secretary for Education and Manpower for three years. In the short space of these three years, we submitted 51 proposals relating to labour and they were passed by the legislature. The pieces of legislation passed include those enhancing maternity benefits and wage protection, further protecting employees against unreasonable dismissal or modification of the terms of employment, improving the clauses on long service payment and year-end bonus, extending the immunity of registered trade unions from prosecution for acts committed in labour disputes and in any civil suits to members and officers of trade unions, appointing the Labour Day on 1 May as an additional general holiday from 1999 and expanding the scope of protection of the Occupational Deafness Compensation Scheme. These pieces of legislation were drafted on basis of the consensus reached by representatives of the Government, employers and employees in the LAB. We will continue to make proposals for legislation on basis of this proven and sound system to improve the benefits and welfare of employees.

Reasons for repealing and amending certain labour ordinances

The proposals in the Employment and Labour Relations (Miscellaneous Amendments) Bill 1997 were made on the basis of the views of the LAB. In the relevant debate in the Provisional Legislative Council, we already explained in detail the reasons for repealing and amending certain labour ordinances. I will sum up the Government's arguments once more.

The repeal of the Employment (Amendment) (No. 4) Ordinance 1997

The principal reason for our proposing to repeal the Employment (Amendment) (No. 4) Ordinance 1997 was because the Employment (Amendment) (No. 3) Ordinance 1997 proposed by the Government which had come into operation on 27 June 1997 already provide similar safeguards to employees. This Ordinance strengthens the employment protection of employees and protects them from unreasonable termination of employment, unreasonable modification of the terms of employment contracts and unlawful dismissal. The dismissal of employees by employers due to anti-union discrimination is a kind of unreasonable dismissal. If employees are dismissed for exercising their rights in relation to trade unions, the employers will be civilly liable, while employees who have won their case in court will receive compensation. In August last year, representatives of employers and employees unanimously agreed after in-depth discussions to repeal the Employment (Amendment) (No. 4) Ordinance 1997 first and review the clauses on reinstatement in the ordinance proposed by the Government one year after its commencement. The Government is now conducting this review and expects to be able to consult the LAB early next year. The Government will explain the results of the review to the Panel on Manpower of the Legislative Council, including whether the existing law needs to be amended.

The repeal of the Employee's Rights to Representation, Consultation and Collective Bargaining Ordinance

The Employee's Rights to Representation, Consultation and Collective Bargaining Ordinance was repealed chiefly because the purpose of this ordinance was to impose collective bargaining by statute, a provision which would have far-reaching impact on the overall labour relations and negotiations between employers and employees in Hong Kong. However, the Ordinance had not gone through detailed deliberation before passage by the Legislative Council, nor had various sectors of the community been consulted. In fact, the majority of members of the LAB considered this Ordinance inappropriate. There were also members of local trade unions and the labour sector who doubted the practicability of this Ordinance. In other words, this Ordinance was not acceptable to different sectors in the community, nor did it have the general and unanimous support of the local labour sector and trade unions. The Government's proposal to repeal it was consistent with the overall interests of the community. Therefore, we do not intend to submit it to the Legislative Council for reconsideration.

We understand that due to the economic downturn, the number of cases of retrenchment and wage reductions has greatly increased recently. The labour sector believes that the establishment of a collective bargaining mechanism will help to solve the problem. Indeed, if we introduce a very extensive collective bargaining system by compulsory means now, it might lead to more tension between employers and employees. During these difficult times, we must take even greater care to avoid intensifying the conflict between employers and employees. We have always believed that voluntary direct negotiations between employers and employees, supplemented with conciliation services provided by the Labour Department, is the best way to maintain harmonious relations between employers and employees. Last year, we undertook to more actively encourage employers and employees to engage in voluntary and direct negotiations, such as through the establishment of consultation mechanisms in individual enterprises. On the trade level, we encourage tripartite dialogue. In the past, the Labour Department has assisted in the establishment of a tripartite group in the catering trade to help members of the trade comply with the regulations of the Employment Ordinance and a Code of Labour Relations Practice was published for the reference of members of the trade. The trade specific collective bargaining agreements reached by employers and employees in the printing industry, the water pipe trade and the iron fixing trade of the construction industry are also some successful examples.

The Labour Department set up the Workplace Consultation Promotion Unit in April 1998. Through the organization of different courses, publicity drives, studies, visits and compilation of Codes of Practice on Employment, the Unit encourages different organizations to establish effective communication and consultation channels as well as voluntary negotiation mechanisms. If necessary, staff of the Unit will provide advisory services to individual organizations to assist employers and employees in establishing or improving communication channels. Moreover, in view of the recent problem of wage reduction and retrenchments, the Labour Department published the "Guidelines on what to do if wage reductions and retrenchments are unavoidable" in late October to encourage employers and employees to conduct frank discussions and find a solution to the problems together. This is also in keeping with the spirit of voluntary collective bargaining.

The amendment of the Trade Unions (Amendment) (No. 2) Ordinance 1997

The reason for the Government's decision to amend the Trade Unions (Amendment) (No. 2) Ordinance 1997 was that it wanted to implement the recommendations of our comprehensive review of the Trade Unions Ordinance last year. The amendments which we proposed and which have come into force have indeed retained several provisions that relax the restrictions on trade unions. They include lowering the age requirement for members of the executive of a trade union, relaxing the voting requirements for changing the name of a trade union, allowing trade unions representing various trades to be registered as trade union federations, abolishing the requirement that officers of trade union federations must be employed in the relevant trades, as well as allowing local trade unions to become a member of an organization of workers or employers or a relevant professional organization established in a foreign country without having to obtain the prior consent of the Chief Executive. We have also decided to retain the restrictions on the use of the funds of trade unions, one of them being that the funds may not be used for political purposes.

The purpose of these proposals was to ensure the healthy development of local trade unions and that their activities would be confined to promoting the welfare and interests of their members. These proposals not only had the unanimous support of representatives of employers and employees in the LAB, but were also accepted by many trade unions in Hong Kong. Therefore, we have no intention of submitting the Trade Unions (Amendment) (No. 2) Ordinance 1997 which did not undergo any amendment to the Legislative Council for reconsideration. However, the Government will review from time to time whether the existing legislation needs to be improved, including the legislation on trade unions, in order to meet the socio-economic developments and balance the interests of employers and employees, while taking into account the overall interests of the community.

Conclusion

Finally, I would like to clarify one point, and that is I did not say to members of the CTU that the ILO's recent report on Hong Kong meant nothing to me. The Honourable LEE Cheuk-yan was present on that occasion. I hope that he will say something in fairness to me when he speaks later. Actually, we attach great importance to the provisions of the International Labour Conventions as applied to Hong Kong and to the views expressed by the ILO on labour affairs in Hong Kong. The representative of the SAR Government already explained the Government's position at the meeting of the Governing Body of the ILO on 19 November 1998. We will examine in detail the views presented in the CFA report and give a more detailed response to the ILO at an appropriate time. Thank you, Madam President.

PRESIDENT (in Cantonese): Mr LEE Cheuk-yan has raised his hand to indicate that he would like to speak. Before I call upon Mr LEE to speak, I would like to do a little explaining to Members who are present.

Honourable Members, the order of speaking in this Council in motion debates has always been like this: Members will speak first to express their views, to be followed by the relevant public officers who will respond to the motion and Members' speeches. Finally, the Member moving the motion will reply. As I understand it, the purpose of this arrangement is to ensure that the debate will not drag on endlessly. If Members who did not speak before do so only after the public officer has replied, I may allow the public officer to reply again for the sake of fairness. Moreover, other Members who did not speak before may ask to speak at this stage. If it carries on like this, the debate will go on forever. In my view, the established pattern of speaking allows the debate to proceed smoothly. Thus, the arrangement is adopted in this Legislative Council and Members have never raised any objection.

However, today, Mr LEE Cheuk-yan has asked to speak after the Secretary for Education and Manpower has finished his speech. I have consulted the Rules of Procedure. Since Rule 38(6) merely stipulates that no Member may speak on a question after it has been put to the Council for decision by the President and does not state that no Member may speak before the question is put, I will allow Mr LEE Cheuk-yan to speak at this stage.

However, I deem it necessary to ask the Committee on Rules of Procedure to examine whether the Rules of Procedure should be made consistent with the established practice in terms of the arrangement of the order of speaking in debates.

MR LEE CHEUK-YAN (in Cantonese):Madam President, in our debate today, Mr CHAN Wing-chan has just said that the Bill I introduced at that time was like a bride and bridegroom blindly married to one another. As far as a blind match is concerned, the Provisional Legislative Council is a good example.

However, I really do not wish to debate on the Provisional Legislative Council today and I hope that Mr YEUNG Yiu-chung will not take offence. I would like to debate about an international topic today, that is, whether the Hong Kong Government has respected the International Labour Conventions No. 87 and No. 98. These Conventions are related to the most basic right of workers, that is, the most basic human right.

According to Miss CHAN Yuen-han, the International Labour Organization (ILO) does not understand Hong Kong and has not consulted local trade unions before drawing the conclusion. However, I can say that before the conclusion was drawn, the Government did make a response. The Government had stated its position, therefore, the ILO has not listened to our views only.

It is only natural for the ILO to have failed to consult local trade unions. It will be disastrous if the ILO has to consult trade unions on everything. Why? Did the National General Union have to be consulted before the arrest of HAN Dongfang? We all know what happened. Therefore, local trade unions are very often not consulted as the "ruler" cares nothing about the views of local trade unions but attaches utmost importance to its own views. Therefore, I hope that Miss CHAN Yuen-han will understand how the ILO as an interpreter of the Conventions operate. Members should make decisions as to whether they oppose or support a specified use, but we are discussing about whether the Government should intervene. Should the Government make laws to regulate how trade unions use their funds? The Conventions have made it clear that regulation is not appropriate, therefore, it is not good for Miss CHAN Yuen-han to say that the Conventions will be violated. Moreover, I find it hard to explain "political purposes". Indeed, if the funds used on a signature campaign held against labour importation are used for political purposes, then similar to the funds used on the defence of the Diaoyu Islands, most of the funds used by our trade union on many activities in the past would have been used for political purposes. However, I do not want to debate on this at length today. I only hope that when Members of the FTU discuss about collective bargaining, they will remember that they did not propose any amendments at that time though they could. So far, they have not made any proposal which can be drafted as law. I really hope that they can make such a proposal so that we can continue with our negotiation and enact sound legislation for Hong Kong in this respect.

When the Secretary for Education and Manpower made his reply just now, he said that he respects the International Labour Conventions. He has been saying so but he is making it very explicit this time that the most authoritative committee under the ILO has said that the Government has violated the Conventions. Can officials deny that the Government has violated the Conventions? I hope that the Government will look clearly at the ruling of the ILO instead of keep insisting on its stance. The Secretary is actually saying that the Government is insisting on three points. Firstly, it is picking on the wordings used, that the ILO committee has not specified which provisions of the Conventions that the Government has violated. In fact, we can clearly see from the report that the Government has "three violations". It has violated the International Labour Conventions, the Basic Law and the pledge the Chinese Government made to the ILO that it will continue to implement the Conventions in accordance with the Basic Law, that is, it has violated two Conventions (No. 87 and No. 98) as well as three provisions. Let me read out the three violated provisions for Members' comments. The first provision is: Any legal provision empowering the administrative authority to restrict a trade union from administering or using its funds to carry out normal and lawful activities do not tally with the principle of freedom of association. Has the Government not violated it? Another provision is that, any legal provision imposing a general ban on the participation in political activities by trade unions for attaining specified objectives is in violation of the principle of freedom of association. The third provision is that "If the Committee thinks that the employer can dismiss any worker on the basis of his being a member of the trade union or his activities after paying him compensation for unfair dismissal according to law (in other words, an employer can dismiss an employee after making payment). Obviously, the relevant legislation has not allowed workers to enjoy adequate protection against acts of anti-union discrimination as stated in the Convention No. 98. The Secretary is very authoritative and has included grounds against collective bargaining in the statement of the ILO committee on freedom of association. He said that if the bill was passed, the existing harmonious labour relations will become retaliatory and directly strike a blow at our economy and our attraction to foreign investors ...... What are people's comments on the Secretary? The above reasons against formulating legal provisions to promote collective bargaining are clearly stated in Article 4 of Convention No. 98 and the Government must discharge its duties. The violated provisions have been specified. Nevertheless, why is the Government arguing even after it has gone over the whole report?

The Government's second argument is against the claim that the Government has also despised others' suggestions besides violating the provisions. When I met the Secretary yesterday, I calculated that out of four suggestions made by the others, only a half was accepted and three and a half were rejected. I have to be fair to the Secretary as he did not say that he despised others, I am the one that said so. Yet, I still think that the Secretary has despised them and is unrepentant.

The third point is that the Government persists in its old ways as it has the power. It does not intend to make relevant laws even though it has violated the International Labour Conventions.

We are greatly disappointed at the three points above. If the Government still persists in its own ways, when the ILO brings up the case in future, others will not show the Government respect as it has not shown others due respect. I am gravely disappointed today as the debate has actually remained at the level two years ago and Members still do not sufficiently understand the International Labour Conventions. Another disappointment is that collective bargaining and freedom of association are the essential requirements of a civilized society but our acts are still so uncivilized. Hong Kong is a well-developed society but it is really disappointing that it is still so backward in this regard. Thank you, Madam President.

MR JAMES TO (in Cantonese):Madam President, I would like to say briefly that the Government actually has two choices only, it can either play this game and apply the applicable parts of the International Labour Convention to Hong Kong or denounce them. As the organization or convention has a judgement mechanism, ratifying the Convention means accepting the judgement of the judgement mechanism of the organization as part of the game (regardless of whether the Government likes it or not) and its judgement as to whether the Government has violated the Convention. Therefore, the Government cannot say that it has ratified the Convention for fun and it will be of no avail even if it says that it does not agree to the views of the organization. However, it can actually indicates that it does not intend to apply a certain part of the Convention when a judgement will be made. Many Conventions allow countries or regions to make a choice during the protocol stage. For example, the United Kingdom has chosen in respect of certain Conventions not to give its nationals the rights to directly file complaints with the United Nations Human Rights Committee, if it decides so, it can opt out and choose not to play this part of the game or to accept the judgement or jurisdiction of the Convention.

However, if Hong Kong has not denounced a Convention or part of a Convention but it finally indicates that it is dissatisfied with a judgement, this will become an international laughing stock and our reputation of respecting international conventions will be seriously blemished. Frankly speaking, the Chinese Central Government has ratified so many international treaties and conventions in the international community all along, and what it can be proud of is that at least it observes the provisions. Unless it has not ratified certain treaties or conventions, otherwise, it will observe the provisions. For instance, it has recently ratified two human rights conventions. It has done so after lengthy consideration and consulting many departments. Why? It is prudent and careful and it will show reservation if it really has reservations.

When the Chinese Government formulated the Basic Law, it laid down Article 39 related to the International Labour Conventions. If after due consideration, the Hong Kong Special Administrative Region Government led by Mr TUNG Chee-hwa may not wish to ratify certain Conventions, it should seek an amendment to the Basic Law or even ask the Ministry of Foreign Affairs of China to opt out under a mechanism specified in certain provisions and choose to denounce a certain judgement mechanism. However, it can definitely not say that the judgement made by the most authoritative judgement body is wrong or unacceptable when it has yet to denounce the treaty or a certain mechanism. If so, this will not only blemish Hong Kong's reputation but also indirectly harm the reputation China attained through observing the Conventions all along as Hong Kong is now part of China.

MR LEE WING-TAT (in Cantonese):Madam President, I will make a short speech.

Some Honourable Members including Mr LEE Cheuk-yan have pointed out that among Legislative Council Members, a majority supports collective bargaining in principle, including Members of the Hong Kong Federation of Trade Unions (FTU) and the Democratic Alliance for the Betterment of Hong Kong (DAB). I asked Dr YEUNG Sum what "lip service" meant and he told me that it might be defined as "simulating". I agree that when a political party or body supports a motion, it certainly supports its principle, content and mode of implementation and even financial implication. Some Members criticized that Mr LEE Cheuk-yan had acted too hastily between May and June 1997 and I actually agree to their views. However, when will the DAB and FTU stop paying "lip service" and "simulating"? Actually, various political parties including the Democratic Party, the DAB, the FTU and the Frontier should negotiate together the form of collective bargaining we need and its content and particulars instead of opposing the motion on every occasion a Member proposes it for the reasons that consultation has not been made and the content is not specific. How does this differ from actually opposing this legislation?

A year and five months have passed since June to July 1997. We will probably debate about this topic again by the end of our term, that is, the year 2000. At that time, the DAB and FTU may again stand up in support of collective bargaining but they will not support the motion in the end as they do not agree to another Member's stand. There may be the same scenario in the year 2004 again. Do we have a schedule? I have said to Dr YEUNG Sum that if the DAB and the FTU propose such a piece of legislation, we may probably support it by casting 13 votes as this is feasible in principle. If the DAB or the FTU says that professionals are needed to draft the relevant legislation, I, LEE Wing-tat, and Honourable colleagues of the Democratic Party are willing to raise funds on their behalf for engaging a barrister to draft the legislation. But I hope that they will not just tell Members in this Chamber that they support the motion but impede it from being put into practice time and again by A, B and C means. This shows that they are simulating.

Some Members of the DAB and the FTU have not yet spoken. I hope that they will tell us when they speak if their political party or trade union have a schedule of implementation. Do they wish to let our workers wait for five or 10 years more? I am not a professional in this area but I am agitated by the present situation. If the FTU has a plan, I am absolutely willing to assist it in raising funds for completing its work. I am also willing to help the DAB. If five bodies have a common goal, why can the relevant legislation not be passed? I cannot see the reason why, unless the FTU and DAB are simulating. If they still behave like this in the debate to be held next year or four years later, Madam President, I really have nothing to say.

Thank you, Madam President.

MR CHAN KAM-LAM (in Cantonese):Madam President, the Democratic Party Members are very generous. As they hope that the DAB can make a response, I will elaborate on the matter here.

Labour legislation has great influence on the community and we have all along been handling the matter very prudently. As to the legislation on collective bargaining, it also has great influence on the community. We have just heard many Members talking about collective bargaining but it seems that as we opposed the suggestion made by Mr LEE Cheuk-yan in the past, we are simply regarded as opposing collective bargaining. In fact, collective bargaining has complex contents and Mr Michael HO has asked why we cannot have collective bargaining. That is not the case and we can actually take our time to deliberate on collective bargaining. Actually, many countries in the international community have their own modes of collective bargaining. The collective bargaining legislation that has been adopted by some highly advanced and democratic countries has been continuously amended. Back in Hong Kong, the FTU and the DAB are studying the matter now.

When Mr LEE Cheuk-yan proposed the relevant bill then, we had said time and again that we could not support the contents of the bill. If the bill was passed, it would certainly spilt up the workers or even trade unions in small and medium enterprises and it would have extremely adverse impact on society. Moreover, Hong Kong is politicizing seriously and I do not think that merely chanting pleasant slogans or sweet words can cater for workers' interests. For instance, some trade unions have suggested earlier on that now that women can be given maternity leave four weeks before and six weeks after the delivery of babies, men should also be given leave to take care of their wives who have just given birth. When this suggestion was made, it seemed that it was defending the interests of the working class and fighting for workers' interests, but it would actually do our society great harm. The DAB and the FTU will not be easily cheated by these pleasant slogans as we consider the matter from the angle and on the basis of the overall and long-term interests of Hong Kong.

In such a solemn debate, I have heard some remarks that lighten the atmosphere. For instance, Mr LEUNG Yiu-chung has compared the Secretary for Education and Manpower, Mr Joseph WONG, to Mr CLINTON, the United States President, and the International Labour Organization to LEWINSKY. If such an analogy is made, the Secretary surely has to admit his fault that he has failed to safeguard workers' interests. But if Mr LEE Cheuk-yan is compared to LEWINSKY, I am not sure if she falls with love with every man she meets, and the International Labour Organization is regarded as a dress soiled by semen in order to pressurize Mr WONG, the Secretary, it seems not very appropriate. In any case, if legislation on the long-term interests of workers has to be formulated, we cannot just hastily amend the bills introduced by Members. Instead we should conduct comprehensive public consultation and discussions on the matter.

According to Mr LEE Cheuk-yan, since the proposal has been made, if we have different views, we can make a counter-proposal. However, we have all along keep our words that before we make any new proposals, we must carry out extensive public discussions. We can see that before the reunification in 1997, a number of laws were passed in a hurry, giving rise to many problems. We do not wish to see this happen again. We know that the major objective of this motion debate related to labour legislation moved by Mr Andrew CHENG today is to express regret over the Provisional Legislative Council. However, the public will not think that the Democratic Party cares about the labour problem just because the Democratic Party has moved a motion. In fact, after today's debate, we can see that all Members of the Democratic Party, with the exception of Mr LAU Chin-shek, know nothing about the labour problem at all.

Thank you, Madam President.

PRESIDENT (in Cantonese): Secretary for Education and Manpower, do you wish to reply?

SECRETARY FOR EDUCATION AND MANPOWER (in Cantonese): With your leave, Madam President, I would like to say a few words. Just now, I deliberately refrained from responding to the analogy made by the Honourable LEUNG Yiu-chung. However, the Honourable CHAN Kam-lam referred to it again. Let me respond by saying that I lead a normal life (Laughter) and I am an ordinary person with a happy family. (Laughter)

Madam President, I wish to respond to the Honourable James TO's speech earlier. I hope that he will read my speech one more time. Actually, I have already explained clearly our position and views on the relevant report of the International Labour Organization (ILO). We are implementing the provisions of the International Labour Convention as applied to Hong Kong and we also attach great importance to the advice given by the ILO on labour affairs in Hong Kong. Our representative already stated the Government's position on 19 November and we will give a more detailed response in due course.

The Honourable LEE Cheuk-yan's interpretation of the report is different from ours. Even if we go on talking about this, our opinions will still differ. However, I would like to add one point. Many Members are concerned about matters such as the right to collective bargaining. What recommendation has the Committee on Freedom of Association made? Members may not have read the relevant report in detail, or not as carefully as Mr LEE Cheuk-yan or I. The report contains the following recommendation: "The Committee requests the Government (that is, the Government of the Hong Kong Special Administrative Region (SAR)), in the near future, to give serious consideration to the adoption of legislative provisions laying down objective procedures for determining the representative status of trade unions for collective bargaining purposes which respect freedom of association principles". Even this recommendation ─ I have read it out in full ─ does not request that the SAR Government reinstate or reconsider the relevant Ordinances. In due course, we will be happy to give a detailed response to the ILO.

The last point I would like to make is that labour issues are always very difficult to handle, since one can only make a decision after balancing the interests of employers and employees and taking into account the overall economic interests of the community. In dealing with these issues, if we do not rely on a tripartite consultation framework consisting of employers, employees and the Government to arrive at a certain basic consensus, I believe that any legislation will encounter great difficulties in its implementation even if it is passed. It will also cause endless internal divisions, conflicts and struggles in the community.

From the speeches of many Members, it is also clear that there is a great deal of controversy in the community over the question of compulsory collective bargaining and that employers and employees fail to come to a consensus. Indeed, many representatives of the industrial and business sectors firmly object to it. It is useless in saying that they just do not understand the matter and that they should have put it into practice. I do not think that this is the crux of the problem at all. The crux of the problem is that if we cannot arrive at a basic consensus on arrangements that might impair the harmony of labour relations, there is no use implementing those arrangements. Even if the relevant ordinances are passed, they will only create more problems in future.

Thank you, Madam President.

PRESIDENT (in Cantonese):Mr Andrew CHENG, you may now reply and you have up to eight minutes 48 seconds out of your original 15 minutes.

MR ANDREW CHENG (in Cantonese):Madam President, I am grateful to the 15 Members for speaking and I am particularly grateful to Miss Cyd HO for her advice and for expressing her wish that I will not fan the flames, I believe that my sore tongue can hardly fan the flames again. I will not respond to the remarks made by the seven Members who support this motion but I would spend some time responding to the remarks of the eight Members who oppose or have reservations about this motion.

Firstly, I would like to respond to the views expressed by Mr HO Sai-chu, Dr LUI Ming-wah, Mr Ambrose LAU and Mr Kenneth TING, who I think are representing the views of the industrial and business sectors. Mr HO Sai-chu has said that the Labour Advisory Board (LAB) does not agree to the decision of the Legislative Council. In my opinion, there is certainly some difference between the work of the LAB and that of the Legislative Council. The former Legislative Council is returned by more than 1 million Hong Kong people as Miss Margaret NG has pointed out clearly. Therefore, we have to respect the legislation enacted by the former Legislative Council. Can we not move an amendment or have a debate if the LAB does not agree to the decision of the Legislative Council? Mr HO Sai-chu has said that the legislation on labour issues must be dealt with in the light of social and economic development and be done in a gradual and orderly manner, not a radical manner. It seems that these arguments are repeatedly made in debates about democratic development. If Mr HO Sai-chu thinks that this should be done, I ask him to support today's motion even more as it asks the Government to reconsider the relevant legislation. I also ask him to introduce a reasonable bill that will handle matters in a gradual and orderly manner as well as safeguard labour interests.

Dr LUI Ming-wah has said that the relevant legislation will reduce flexibility in respect of wage negotiation and undermine competitiveness. These are purely reasons in defence of the interests of bosses in the industrial and business sectors. He has said that this will give rise to more meaningless disputes, and he also deeply believes that employers will support the enactment of legislation because they do not want to sincerely resolve problems related to labour relations with wage earners on an equal basis. According to Mr Ambrose LAU, he does not support the legislation because it was enacted hastily at that time. In fact, we need his support even more because this motion is asking for the reconsideration of the legislation enacted then. But he is not in the Chamber now. We do not wish to see legislation being enacted hastily. But we hope that the relevant legislation will be enacted prudently after it has been reconsidered.

Mr Kenneth TING has foretold that the number of local and foreign investors will greatly decrease. This is simply intimidation. He has even said that the coercive force of politicizing trade unions will scare investors away. But, is the employer organization, Employees and Employers Guild, not politicizing? These Members can be described as showing downright once again that they are typical employers from the industrial and business sectors who uphold protectionism.

I would also like to respond to the remarks of some Honourable colleagues of the FTU and DAB. Firstly, Miss CHAN Yuen-han has said that we have not prepared our lessons well and advised that we should look up the voting record, that is, the voting result 20 to 30 years ago. I am unable to make head or tail of it. I fail to find the voting result 20 to 30 years ago indeed. As for the voting results of the Provisional Legislative Council and the former Legislative Council, we know very clearly ......

MR TAM YIU-CHUNG (in Cantonese):Miss CHAN Yuen-han has not mentioned the point about the voting result of the FTU 20 to 30 years ago.

PRESIDENT (in Cantonese):I am sorry, Mr TAM Yiu-chung, this point should be elucidated by Miss CHAN Yuen-han herself. Mr Andrew CHENG, please continue.

MR ANDREW CHENG (in Cantonese):This is what I have heard but this is not the key point, I believe ......

PRESIDENT (in Cantonese):Miss CHAN Yuen-han, do you wish to elucidate what you said? I would first ask Mr Andrew CHENG if he is willing to give way, otherwise, you have to make the elucidation after he has finished speaking.

MR ANDREW CHENG (in Cantonese):I am certainly willing as I have taken Miss Cyd HO's advice.

PRESIDENT (in Cantonese):Miss CHAN Yuen-han, please elucidate your speech earlier.

MISS CHAN YUEN-HAN (in Cantonese): I do not think that this is what I meant. I actually wanted to say that over the past 20 years or so, the Federation of Trade Unions has been fighting for collective bargaining. But in his speech, Mr Andrew CHENG said that we had not done anything in this respect over the years. This is what I said just now, and is different from what Mr Andrew CHENG said a moment ago. Thank you, Madam President.

MR ANDREW CHENG (in Cantonese): Madam President, I was just now saying that the position of the Federation of Trade Unions (FTU) during the time of the Provisional Legislative Council and the former Legislative Council was all together ambiguous. I never mentioned anything about its work, underlying principles and attitude. I do not wish to point out once again how Members belonging to the FTU and the Democratic Alliance for the Betterment of Hong Kong (DAB) voted on this issue at that time. I simply do not wish to repeat what I have already said. This motion asks for the submission of the relevant legislation to this Council for reconsideration. The FTU and the DAB will most certainly say that I have moved this motion with the aim of totally restoring the laws concerned. But this is not the case in reality. Members of the FTU, who have engaged themselves in union movements for two to three decades, avow that they do support the introduction of collective bargaining in principle, but that since trade unions had not yet studied the legislation concerned in any great depths at that time, they decided not to render their support. If they really mean what they said, then we do hope that in case the Government really submits the relevant legislation to this Council for reconsideration in the future, they will render their support under their avowed principle. The Honourable CHAN Wing-chan also said loudly that if the Government really submitted the legislation to this Council for reconsideration, they would render their support. My motion simply "urges the Government to immediately submit to this Council those pieces of labour legislation that have been repealed or amended." That being case, why do they still oppose my motion? This really baffles me. What baffles me even more is his reference to blind marriages. Well, since he has referred to blind marriages, I may as well respond to his remarks also by referring to the same analogy. I think what has happened is that we have been forced to have a divorce. But we must say that it is only natural for men and women to get married when they are of marriageable age. Madam President, what we want now is marriage. When a man and a woman want to marry each other, others can raise their objection within one month. But the point now is that we do not even have the chance to indicate our desire to get married. Is this even more uncivilized than blind marriages?

Mr CHAN Kam-lam and the Honourable TAM Yiu-chung both criticized me a moment ago, saying that my only aim was to move a motion which served to pick on the Provisional Legislative Council. And, Mr CHAN Kam-lam also said that I knew absolutely nothing about labour issues. Madam President, I would certainly take their advice if their criticisms were justified. Last time, Mr CHAN Kam-lam also criticized me for amending his motion. I admit that as the spokesman for the Democratic Party on labour affairs, I have to learn while I proceed with my work. But at least, when it comes to labour issues, I can represent the Democratic Party, take account of the Party's other policies, and safeguard the interests and positions of the labour sector. My position has never wavered, and I have never tried to say one thing and do another.

Madam President, the repeal of the legislation concerned has aroused international concern and widespread criticisms, and over the past year or so, we have also seen the adverse consequences resulting from the repeal. In this very time of economic downturn, more and more unscrupulous employers have resorted to various different methods to oppress their workers, and since their bargaining power has dropped significantly, employees are unable to fight back. We can look at the case of the Hongkong Telecom, a company which we have talked about repeatedly over the past few months. Though the employees of this company may find their employer's attempts to cut their salaries and fringe benefits very unreasonable, they do not in fact have any bargaining power in the course of negotiations because they are not backed up by any legislation on collective bargaining. Even when an employees' union is highly representative, the company has simply refused to recognize its status and negotiate with its representatives. The Government has all along emphasized that it encourages employers and employees to conduct direct collective negotiations on a voluntary basis, and it even says that it has reserved funds for the purpose of setting up a task force within the Labour Department to foster cordial employer-employee relations and good management methods. But labour disputes still keep surfacing in large numbers. Does the Government still think that employers and employees can really solve the problems between them on the voluntary and equal basis which it advocates? For ages, the relationship between employers and employees has been characterized by inequality. The intent of the relevant legislation is precisely to turn what is now an unequal relationship into one which is equal as far as possible. Collective bargaining is precisely one of the ways to realize this intent.

PRESIDENT (in Cantonese): Mr Andrew CHENG, your time is up. Please sit down.

MR ANDREW CHENG (in Cantonese): Regrettably, the Government has so far acted like an ostrich which buries its head and the relevant bill deep in the sand. In so doing, it has forcibly repealed the Ordinances despite all their value. With these remarks, Madam President, I call upon Honourable Members to support my motion.

PRESIDENT (in Cantonese): Mr Andrew CHENG, next time when I ask you to sit down and stop speaking, please do so immediately.

PRESIDENT (in Cantonese): I now put the question to you and that is: That the motion moved by Mr Andrew CHENG be passed. Will those in favour please raise their hands?

(Members raised their hands)

PRESIDENT (in Cantonese): Those against please raise their hands.

(Members raised their hands)

Mr Andrew CHENG rose to claim a division.

PRESIDENT (in Cantonese): Mr Andrew CHENG has claimed a division. The division bell will ring for three minutes.

PRESIDENT (in Cantonese): Before I declare that voting shall stop, do Members have any queries? Voting shall now stop. The result will now be displayed.

Functional Constituencies:

Mr Michael HO, Mr LEE Kai-ming, Miss Margaret NG, Mr CHEUNG Man-kwong, Dr LEONG Che-hung, Mr SIN Chung-kai and Mr LAW Chi-kwong voted for the motion.

Mr Kenneth TING, Mr James TIEN, Mr Edward HO, Dr Raymond HO, Mr Eric LI, Dr LUI Ming-wah, Mrs Selina CHOW, Mr Ronald ARCULLI, Mr Ambrose CHEUNG, Mr HUI Cheung-ching, Mr CHAN Kwok-keung, Mr CHAN Wing-chan, Mrs Sophie LEUNG, Dr Philip WONG, Mr WONG Yung-kan, Mr Howard YOUNG, Mr LAU Wong-fat, Mrs Miriam LAU, Mr FUNG Chi-kin and Dr TANG Siu-tong voted against the motion.

Geographical Constituencies and Election Committee:

Miss Cyd HO, Mr Albert HO, Mr LEE Wing-tat, Mr LEE Cheuk-yan, Mr Martin LEE, Mr Fred LI, Mr James TO, Miss Christine LOH, Mr LEUNG Yiu-chung, Mr Andrew WONG, Dr YEUNG Sum, Mr LAU Chin-shek, Miss Emily LAU, Mr Andrew CHENG and Mr SZETO Wah voted for the motion.

Miss CHAN Yuen-han, Mr Gary CHENG, Mr Jasper TSANG, Mr LAU Kong-wah, Mr TAM Yiu-chung, Mr David CHU, Mr HO Sai-chu, Mr NG Leung-sing, Prof NG Ching-fai, Mr CHAN Kam-lam, Mr YEUNG Yiu-chung and Mr Ambrose LAU voted against the motion.

THE PRESIDENT, Mrs Rita FAN, did not cast any vote.

THE PRESIDENT announced that among the Members returned by functional constituencies, 27 were present, s even were in favour of the motion and 20 against it; while among the Members returned by geographical constituencies through direct elections and by the Election Committee, 28 were present, 15 were in favour of the motion and 12 against it. Since the question was not agreed by a majority of each of the two groups of Members present, she therefore declared that the motion was negatived.

PRESIDENT (in Cantonese): Second motion. The Hong Kong Special Administrative Region's judicial jurisdiction.

THE HONG KONG SPECIAL ADMINISTRATIVE REGION'S JUDICIAL JURISDICTION

MR MARTIN LEE (in Cantonese): Madam President, I move that the motion as printed on the Agenda be passed.

The court case, recently completed in the Mainland, involving the CHEUNG Tze-keung crime syndicate and the case involving the murder of five persons in Telford Gardens which is about to be heard in Guangdong Province have aroused great concern in Hong Kong, especially within the legal sector. The reason for such a great concern is that the cases heard by the courts in the Mainland involve not only crimes committed in the Mainland, but also crimes committed in the Hong Kong Special Administrative Region (SAR), such as the act of smuggling explosives and firearms into Hong Kong by accomplice LAU Kwok-wah and the crimes of fraud and murder committed by the suspect, LI Yuhui, in Hong Kong.

The Democratic Party agrees entirely that mainland courts should have jurisdiction over crimes committed in the Mainland, but objects totally to the idea that offences committed in Hong Kong should also be heard before mainland courts under the criminal laws of the Mainland.

In regard to the aforesaid cases, I would reconstruct the whole thing as follows: First, two tycoons were kidnapped and blackmailed by the CHEUNG Tze-keung crime syndicate in Hong Kong. Then, some "influential people" brought this to the attention of the "imperial court" in Beijing. As a result, the Central Government ordered the Guangzhou authorities to handle the case vigorously. With the concerted efforts of the Chinese and Hong Kong governments, CHEUNG Tze-keung and his gang were arrested in Guangzhou and brought before the court there. Following public outcries on the trial of this locally occurred kidnapping case in the Mainland, the Hong Kong Government hastened to defend the Guangzhou law court, saying that since no one had ever reported the case to the Hong Kong police, there was thus an absence of sufficient evidence, and so it was simply impossible for the Hong Kong authorities to proceed with any prosecutions. However, on the awareness that such an argument was probably too flimsy, the Hong Kong Government immediately quoted Article 6 of the Criminal Law of the People's Republic of China (Chinese Criminal Law), saying that since some of the crimes committed by CHEUNG Tze-keung and his gang occurred in the Mainland, they had also committed criminal offences there, so the mainland law courts should have jurisdiction over their case. Some pro-China comments also quoted Article 24 of the Chinese Criminal Procedures Law, saying that criminal cases should be heard before the People's Courts of the localities where the crimes concerned are committed. This is the so-called "territoriality principle". However, when the legal sector pointed out that according to Article 18 and Annex III of the Basic Law, Article 6 of the Chinese Criminal Law should not be applied in Hong Kong, and the case in point centred around the handling of another crime which occurred in Hong Kong ─ the murder of five persons in Telford Gardens, the authorities concerned realized that the "territoriality principle" could not stand. So, they started to invoke the "active personality principle" under Article 7 of the Chinese Criminal Law, arguing that since the suspect, LI Yu-hui, was a Mainland citizen, this principle should apply and he should thus be brought before the law courts of the Mainland. And, someone even argued without any rhyme or reason that the "territoriality principle" and the "active personality principle" should both be applied, respectively as the primary and secondary principles. Then, the legal sector again pointed out that the "active personality principle" specified in Article 7 of the Chinese Criminal Law should not be applied in Hong Kong, because Hong Kong was not outside the territory of China. And the authorities subsequently advanced the sophistry that the term "territory" as used in Article 7 of the Chinese Criminal Law should refer to the bounds of jurisdiction, not the country's geographical territory as such. But the legal sector immediately responded by saying that the term "territory" as used in the Chinese Criminal Law should refer to "the territory and territorial waters and space of the People's Republic of China". She, the "authorities" whom I mentioned just now, then gave a further explanation: Since the Basic Law was not yet promulgated when the Central Government enacted the Criminal Law, and since the Mainland and the SAR had not reached any agreement on rendition, there is no alternative but to adopt such a "purposive interpretation". Faced with such an explanation, should we not feel that whenever they want to prosecute somebody, they can always bend the laws to suit their purpose? Such an explanation runs counter to any Common Law interpretation, and has of course led to great outcries from the legal sector again. As a result, a further sophistry was advanced, and it was claimed that priority should be accorded to the party who first handled the case or to the party who had secured the evidence. But who should be regarded as the party who first took action in the cases concerned? Suppose the Hong Kong police did issue an arrest warrant, should they then be regarded as the party who first took actions?

It is often said that one simply cannot argue with government officials because as the saying goes: the Chinese character for "government official" (官) has two mouths (口). But, in the disputes surrounding the criminal cases in question, the SAR government officials have even had six mouths. What's more, they even lack the backbone to stand up firmly for the rule of law.

Step by step, the SAR Government has backed down on its own position, curtailed the jurisdiction of Hong Kong and even undermined the rule of law, an important principle underlying the concept of "one country, two systems". So, how can we withhold our profound disappointment and regret at the Hong Kong Government?

In its handling of the two criminal cases in question, the Hong Kong Government has simply failed to fight for any rendition arrangements. Quite on the contrary, Miss Elsie LEUNG, Secretary for Justice, and Mrs Regina IP, Secretary for Security, when questioned by the mass media and the Legislative Council, have both tried repeatedly to defend the procuratorate and the courts of the Mainland. Government officials have also accused the media of misreporting the facts of these two cases. They have even commented that 80% of the contents of the media reports are wrong. But how can we possibly blame the media? The courts in the Mainland have barred Hong Kong reporters from the proceedings, and our government officials have not fought for more transparency and more information for the Hong Kong people either. The ways in which Hong Kong officials have handled these two cases have indeed greatly disappointed the people of Hong Kong and have also dealt a heavy blow to our faith in the rule of law.

The two cases in question have highlighted the need for rendition and mutual legal assistance arrangements. The Democratic Party is of the view that these are the two important issues which China and Hong Kong must tackle without delay.

When negotiating the relevant agreements, the Hong Kong Government must insist on two important points. First, it must insist that cases which occurred in Hong Kong must be heard in Hong Kong. In this connection, I can still recall what happened in 1987, when the Legal Sub-group of the Basic Law Drafting Committee met in Shenzhen to discuss this issue. At that time, Ms LIU Yiu-chu, Ms Maria TAM and I were the Hong Kong members of the Sub-group, and the Mainland members were Mr WANG Tieya and Mr WU Jianfan who were both legal experts. We met for two days, and finally reached agreement on the following four points:

1. Whether or not a particular act should be regarded as constituting an offence in a certain locality should be determined by the laws of that locality where the act concerned occurred;

2. Where a trial has been held for a particular act in one locality, and irrespective of acquittal or conviction, the same act should not been tried or sentenced in the another locality;

3. Offences must be heard before the courts of the localities where they were committed; and

4. Fugitives must be rendered for trial to the localities where they committed their crimes.

Obviously, the concepts and attitude of Mainland legal experts in regard to mutual legal assistance and rendition were very open and civilized, and they agreed totally that offences should be tried in the localities where they were committed. The Hong Kong Government should stand firm on these four points.

Another important point that should be insisted upon is that all agreements must be drawn up in accordance with internationally accepted standards and principles. In this regard, the United Nations has set out a model treaty on extradition and mutual legal assistance. For the sake of protecting human rights, the model treaty specifies the types of crimes to be included and the restrictions and obligations relating to the implementation of the relevant agreements.

The United Nations model treaty mentions seven conditions which one party to the agreement must refuse to surrender fugitives, which include when the crimes concerned are of a political or racial nature, or when they involve the issue of religion, nationality or sexual discrimination.

Besides, the model treaty also sets down eight criteria under which the party being requested can refuse to surrender the fugitive concerned on an optional basis, and one criterion of which is concerned with crimes punishable by death.

The Democratic Party is of the view that provisions on the death penalty should be mandatory instead of optional. The difference between mandatory refusal and optional refusal is that, in the case of mandatory provisions, the party being requested is obligated to surrender the fugitive concerned only after the party requesting extradition has provided an undertaking that no sentence of death will be imposed, or the death sentence will not be administered. Otherwise, the party being requested will definitely refuse to surrender the fugitive. In the case of optional provisions, if the party requesting extradition does not provide any undertaking that no sentence of death will be imposed or the death sentence will not be administered, the party being requested can decide on its own whether to surrender the fugitive or not.

We are making such a strict demand on this particular aspect because we think that the legal system of the Mainland is not yet sound enough, and for this reason, the likelihood of wrong verdicts is rather high. Even the legal experts of the Mainland agreed that it would take quite a long time before the legal system of the Mainland could attain a sound level. So, when it comes to such provisions that hinge on life and death, the Hong Kong Government must be particularly cautious. It must avoid rash decisions, and furthermore, it must not back down so very easily.

Tomorrow will be the 50th anniversary of the Universal Declaration of Human Rights. And, we are greatly encouraged by the fact that the Central Government has recently signed the International Covenant on Economic, Social, and Cultural Rights and the International Covenant on Civil and Political Rights. We hope that the Central Government can ratify its signing of these Covenants as soon as possible, so that they can be applied to the Mainland at an earlier date. The Democratic Party hopes in addition that the Central Government will also sign the Optional Protocols relating to these Covenants. That way, Chinese nationals will be able to lodge direct complaints with the United Nations Human Rights Committee in case the Central Government violates any provisions of the human rights convenants.

On this memorable day, the Democratic Party hopes that the Central Government will agree to accept some stricter standards to safeguard human rights when negotiating with the SAR Government on rendition and mutual legal assistance. We also hope that the Central Government will consider the idea of abolishing the death penalty, for if improved human rights can do good to Hong Kong, they can do even greater good to the Mainland.

As for the amendment moved by the Honourable Mrs Miriam LAU, the Democratic Party regrets that she has sought to delete the words "deeply regrets" from my original motion. Is the Liberal Party all along satisfied with the receding arguments and sophistry which the Government has been advancing?

Madam President, with these remarks, I call upon Honourable Members to vote down the amendment and support my original motion.

Mr Martin LEE moved the following motion:

"That this Council deeply regrets that, while the cases involving the kidnapping of two business tycoons in the Hong Kong Special Administrative Region (SAR) and the murder of five persons in Telford Gardens, which are being handled in the Mainland in accordance with the Criminal Law of the People's Republic of China, have caused widespread concern among Hong Kong people, the SAR Government has not tried its utmost to seek the return of those who are suspected of violating the law in the SAR for trial in the SAR courts so as to safeguard the judicial jurisdiction conferred on the SAR by the Basic Law; this Council also urges the SAR Government to expeditiously discuss and conclude an agreement with the Central People's Government, on the basis of internationally accepted principles, on rendition arrangements between the Mainland and the SAR, so as to restore the public's confidence in the SAR's judicial jurisdiction."

PRESIDENT (in Cantonese): I now propose the question to you and that is: That the motion moved by Mr Martin LEE, as set out on the Agenda, be passed.

Mrs Miriam LAU will move an amendment to this motion, as printed on the Agenda. In accordance with the Rules of Procedure, the motion and the amendment will now be debated together in a joint debate.

I now call upon Mrs Miriam LAU to speak and to move her amendment.

MRS MIRIAM LAU (in Cantonese): Madam President, I move that the motion moved by the Honourable Martin LEE be amended as set out on the Agenda.

Madam President, the CHEUNG Tze-keung case and the Telford Gardens murder case have aroused great public concern, and they can be considered as the most serious cross-boundary crimes since the reunification of Hong Kong with the motherland. Although the Hong Kong residents and the mainland citizens involved in these two cases all committed their criminal acts in Hong Kong, they were tried in the courts of the Mainland. So, this has led to heated arguments on whether or not the judicial jurisdiction of the Special Administrative Region (SAR) has been infringed upon by the Mainland. Having studied the relevant provisions of the Chinese Criminal Law and the Basic Law, the Liberal Party has come to the conclusion that while Hong Kong definitely has jurisdiction over these two cases, the courts in the Mainland should also have the right to them. Therefore, there is simply no question of Hong Kong's jurisdiction being infringed upon. In his motion, Mr Martin LEE criticizes the Hong Kong Government for failing to defend our jurisdiction, and he expresses regret at that. The Liberal Party does not agree with him.

Article 6 of the Chinese Criminal Law states that "if any act or consequence relating to a crime occurs inside the territory of the People's Republic of China, the crime shall be deemed to have occurred inside the territory of the People's Republic of China". Although it is alleged that the acts of kidnapping in the CHEUNG Tze-keung case were all committed in Hong Kong, the whole crime was in fact planned in the Mainland. What is more, the main culprit in this case, CHEUNG Tze-keung, was also involved in smuggling of firearms in the Mainland. So, we can say that the Mainland can indeed justify its handling of this case.

As for the Telford Gardens murder case, there is no doubt that Hong Kong should have jurisdiction over it. But when it comes to whether or not the Mainland should also have jurisdiction, more complicated considerations will immediately arise. Both the Mainland and the SAR Government claim that according to Article 7 of the Chinese Criminal Law, "This Law shall be applicable to any citizen of the People's Republic of China who commits a crime prescribed in this Law outside the territory and territorial waters and space of the People's Republic of China." Therefore, they argue that although the killings in this case occurred in Hong Kong, the suspect, who is a mainland citizen, can be tried in the courts of the Mainland. But I have to point out that the term "territory" mentioned in Article 7 obviously refers to places outside the territorial boundaries of China. And, it must be remembered that in accordance with the Basic Law, Hong Kong is an inalienable part of China, not a place outside the territory of the People's Republic of China. Therefore, it is inappropriate to invoke Article 7 of the Chinese Criminal Law to justify the mainland jurisdiction over this particular case. Before the reunification, the position of Hong Kong in relation to the territory of China was very clear, and, for this reason, there had never been problems with the interpretation of Article 7 of the Chinese Criminal Law. Unfortunately, no adaptation has been made to the Chinese Criminal Law following the reunification and the special arrangements resulting from the implementation of "one country, two systems"; then, following the Telford Gardens murder case, some advanced and unfounded argument that Article 7 of the Chinese Criminal Law should be interpreted as referring to places outside the jurisdiction of China. But such an argument is hardly convincing. Some law academics even say that Article 7 of the Chinese Criminal Law must be interpreted in such a way that it applies to mainland citizens who have committed crimes in Hong Kong. If not, they argue, an absurd situation will emerge whereby it is impossible to try those mainland citizens who have fled back to the Mainland after committing crimes in Hong Kong. But the Liberal Party does not agree to this point. I think it will be very dangerous for us to interpret any laws in such an unorthodox manner with the sole purpose of achieving or avoiding a certain result.

I do not think that Article 7 of the Chinese Criminal Law should apply in the Telford Gardens case. But according to media reports, the suspect is a mainland citizen; he resided in the Mainland before committing the crime, and he sneaked back to the Mainland with the loot. So, if there is evidence showing that the suspect planned the crime in the Mainland and disposed of the loot there, then the courts in the Mainland should have the authority to try this case under Article 6 of the Chinese Criminal Law.

I must of course admit that I am no expert in Chinese laws. And, as a matter of fact, different legal professionals do hold vastly divergent views on the scope of application of Article 6 and Article 7 of the Chinese Criminal Law. But this shows precisely that there are many grey areas in the bounds of jurisdiction of the SAR and the Mainland. Even if my view of the Telford Gardens case is correct, there will still be problems. Let me just give one example. In case a mainland citizen plans a crime in Hong Kong or commits a crime here without any prior planning, and in case he is arrested by the mainland authorities after fleeing back there, how should the case be handled? Given such circumstances, both Article 6 and Article 7 of the Chinese Criminal Law do not apply. But does this mean that the suspect can thus escape from the long arm of the law? Such a case shows that grey areas do exist with respect to how the respective judicial jurisdiction of the SAR and the Mainland should be adapted for better co-ordination. In addition, since there is at present no formal agreement on mutual legal assistance and rendition between the governments of both places, whenever cross-boundary crimes occur, disputes will easily arise. For that reason, the governments of both places must immediately conduct negotiations on rendition arrangements and mutual legal assistance, so as to enhance people's confidence in the jurisdiction of the SAR.

First, with respect to the rendition of suspects between Hong Kong and the Mainland, there is now only one administrative arrangement under which the Mainland will surrender to Hong Kong for investigation or trial only those Hong Kong residents who have committed crimes only in Hong Kong. Since 1990, 128 Hong Kong fugitives have been rendered to Hong Kong through this arrangement. As for Hong Kong, it has never rendered any suspect to the Mainland due to the absence of a formal and legally based arrangement.

The current arrangement is not satisfactory at all. As a result, people fear on the one hand that Hong Kong may become a haven for mainland fugitives. On the other hand, they also fear that the Mainland may ask for the rendition of Hong Kong suspects much too often than is really required. So, when Hong Kong negotiates with the Mainland on rendition arrangements, it must base the negotiations on internationally accepted standards and principles. The rendition arrangements must ensure that criminals will not escape punishment under the law and the rights of the individual protected. Hong Kong must make reference to internationally accepted principles on rendition in its negotiations with the Mainland. The more usual internationally accepted safeguards which forbid rendition relate to the following: double criminality, some prescribed crimes, further rendition of suspects to a third country and some general exemptions involving political offences and government persecution. Besides, there are also some other safeguards applied on a discretionary basis, and these include humanitarian considerations and death penalty. Under the existing Fugitive Offenders Ordinance (Cap. 503), Hong Kong will surrender any suspect only when the requesting party has made an undertaking that it will not administer the death penalty on the suspect. This is also the usual practice in many foreign countries. For example, in Canada, where there is no death penalty, the government will not surrender any fugitive involved in crimes likely to be punishable by death to any countries which practise death penalty.

In addition, all agreements on mutual legal assistance must be based on mutual benefits; the principle of reciprocity should be applied with respect to the rights and obligations of both sides. At present, many problems in this particular respect have yet to be addressed. Hong Kong and the Mainland are different from each other in terms of political, economic, cultural and legal institutions, and their usual interpretation of legal provisions and concepts are also different. The governments of both places must identify all these differences very clearly and conduct pragmatic discussions on various possible arrangements.

At present, there is no agreement between the Mainland and the SAR on mutual legal assistance in criminal matters. So, the governments of both places must set up a working group as soon as possible. This working group must meet regularly with the aim of drawing up a timetable on the conclusion of a legal mutual assistance agreement. That way, it is hoped that appropriate arrangements can be drawn up and implemented as quickly as possible to enable both sides to work together in combating cross-boundary crimes.

If the Mainland and Hong Kong can set up a mutual legal assistance mechanism and conclude a reasonable agreement on rendition arrangements, they will be able to deal with cross-boundary crimes through mutual assistance and negotiations. They will also be able to work closely together to combat crimes and handle jurisdiction matters, thus removing people's anxieties.

With these remarks, Madam President, I beg to move my amendment.

Mrs Miriam LAU moved the following amendment:

"To delete "this Council deeply regrets that, while" and substitute with "as"; to delete "cases involving the kidnapping of two business tycoons in the Hong Kong Special Administrative Region (SAR)" and substitute with "CHEUNG Tze-keung case"; to delete ", which are being handled in the Mainland in accordance with the Criminal Law of the People's Republic of China,"; to delete "the SAR Government has not tried its utmost to seek the return of those who are suspected of violating the law in the SAR for trial in the SAR courts so as to safeguard the judicial jurisdiction conferred on the SAR by the Basic Law;"; to delete "also" from "this Council also urges the SAR"; to delete "SAR" from "this Council also urges the SAR" and substitute with "Special Administrative Region (SAR)"; to add "and to ensure that the agreement thus reached can fully address the concerns of the public," after "on rendition arrangements between the Mainland and the SAR,"; and delete "restore" from "so as to restore the public's confidence in the SAR's judicial jurisdiction" and substitute with "enhance"."

THE PRESIDENT'S DEPUTY, DR LEONG CHE-HUNG, took the Chair.

DEPUTY PRESIDENT (in Cantonese): I now propose the question to you and that is: That the amendment moved by Mrs Miriam LAU be made to Mr Martin LEE's motion. Secretary for Justice.

SECRETARY FOR JUSTICE (in Cantonese): Mr Deputy, this motion involves two statements. The first refers to two cases in the Mainland and what the Hong Kong Special Administrative Region (SAR) Government has done, or not done, in respect of them. The second statement urges the Government to expeditiously discuss and conclude an agreement on rendition arrangements between the Mainland and the SAR. Later this afternoon, the Secretary for Security will be discussing the administrative and policy aspects of both statements. I wish to address the legal aspects of the first statement, and to demonstrate that the allegations made against the Government are unjustified.

It is true that the two cases referred to have caused widespread concern among Hong Kong people. But I believe that when the cases are fully understood, and put in their proper context, many of the concerns will disappear. Part of the problem is that the jurisdictional aspects of cross-boundary crime are not widely understood. I would therefore like to clarify some of the basic principles.

First, it must be understood that there is no country or region in the world that has an exclusive judicial jurisdiction over crimes committed within its boundaries. Were this the case, it would be relatively easy for criminals to escape from justice.

There are two ways in which a crime committed in one place may be the subject of criminal proceedings in another place. First, that other place may have jurisdiction because the crime was planned there, or was completed there, or because one or more elements of the crime occurred there. Hong Kong's own criminal law exemplifies this principle. For example, under section 5 of the Offences Against the Person Ordinance, it is an offence for any person in Hong Kong to conspire to murder any other person anywhere in the world. Last month, someone was convicted in the Court of First Instance of the offence of conspiracy in Hong Kong to commit a murder in Singapore. In addition, under the Criminal Jurisdiction Ordinance, Hong Kong courts have jurisdiction over specified offences of fraud and dishonesty if any part of the conduct or of the results that are required to be proved for a conviction of such an offence takes place in Hong Kong.

If Hong Kong, or any other place, exercises its criminal jurisdiction in such circumstances, this should not be regarded as undermining the judicial jurisdiction of the place where the crime, or some elements of the crime, were committed. It should be recognized as a legitimate means to prevent cross-border crime and to protect the interests and reputation of the place that assumes jurisdiction. These bases of jurisdiction are fully consistent with the international law principles of "objective" and "subjective" territoriality.

The second way in which criminal proceedings in one place may arise out of conduct occurring elsewhere is on the basis of extra-territorial offences. An extra-territorial offence is one that can be committed outside the borders of the country or region that created the offence. As a matter of international law, it is permissible for States to extend the application of their laws and the jurisdiction of their courts to persons, property and acts outside their territory. Many, if not all, legal systems have such offences.

As I am sure you will know, Spain is currently claiming jurisdiction to prosecute General Pinochet for crimes of genocide, torture and hostage-taking allegedly committed in Chile. But extra-territorial offences are not limited to crimes against humanity, or to crimes that are prohibited by international treaties.

Some countries including Israel, Italy and Turkey, have jurisdiction over the criminal conduct of their nationals committed abroad. The United Kingdom had jurisdiction over certain offences committed by British subjects anywhere in the world, including treason, murder, bigamy, perjury and breach of the Official Secrets Act. The United States exercises extra-territorial jurisdiction in respect of (for example) its anti-trust legislation, and in respect of air piracy and hostage-taking.

Hong Kong has a number of extra-territorial offences. For example, the offence of offering an advantage to a public servant, contrary to section 4 of the Prevention of Bribery Ordinance, can be committed "in Hong Kong or elsewhere". Offences under the Crimes (Torture) Ordinance, and the Internationally Protected Persons and Taking of Hostages Ordinance are triable in Hong Kong irrespective of the nationality of the offender and of whether they were committed in Hong Kong or elsewhere. In 1990, the Privy Council held that a conspiracy entered into elsewhere to commit a crime in Hong Kong is triable by Hong Kong courts. In reaching its decision, the court commented that "crime is now established on an international scale and the common law must face this new reality." The Administration has recently proposed that certain sex offences against children should have extra-territorial application.

As a result of the principles I have outlined, no place has exclusive criminal judicial jurisdiction over crimes committed in that place. On the contrary, there are many situations in which two or more places have concurrent jurisdiction. For example, if a British citizen commits a murder in Hong Kong, both the United Kingdom and Hong Kong have the jurisdiction to try him.

In such a situation, what can the SAR Government do if the offender is arrested in the United Kingdom? The answer is that, if it has sufficient evidence against the offender, it can formally request the United Kingdom Government to return him to Hong Kong in accordance with the extradition agreement between the SAR and the United Kingdom. I should point out, however, that extradition agreements commonly permit the country that is requested to surrender an alleged offender to decline to surrender him if that country has the jurisdiction to try him for the relevant offence.

If Hong Kong and another place have concurrent jurisdiction over a case, but there is no extradition agreement in force between them, there is no legal basis for Hong Kong to request the return of the alleged offender to Hong Kong.

Let me now turn to the two cases referred to in the motion. Some people have expressed concern that Hong Kong residents might be tried in the Mainland for offences committed in Hong Kong, or even for acts which constitute offences in the Mainland but are not unlawful in Hong Kong. There is no legal basis for such concern.

I will begin by restating two fundamental aspects of the principle of "one country, two systems". First, under Article 18 of the Basic Law, the national laws of the People's Republic of China are not applicable to the SAR, except for those listed in Annex III of the Basic Law. The Chinese Criminal law is not so included and therefore does not apply to the SAR.

Secondly, under Article 19 of the Basic Law, the courts of the SAR have jurisdiction over any person who is alleged to have committed an offence under Hong Kong law.

Neither of these two fundamental principles have been undermined by the arrest and trial of CHEUNG Tze-keung and his co-accused in the Mainland. They were tried not just for offences related to alleged kidnappings in Hong Kong, but also for offences involving the illegal sale and purchase of explosives and smuggling of weapons and ammunition, which occurred in the Mainland where they were arrested. Although the kidnappings were allegedly perpetrated in Hong Kong, they were planned in the Mainland; the preparatory work, including the purchase of vehicles, weapons and equipment for use in the kidnappings, was carried out in the Mainland. It must clearly be understood that whereas CHEUNG Tze-keung was sentenced to life imprisonment in respect of the kidnapping offences and the offence of smuggling weapons and ammunition, it was only in relation to the offence of the illegal sale and purchase of explosives that he received the death penalty. That explosives offence occurred after the dates of the alleged kidnappings.

Article 6 of the Chinese Criminal Law provides that the Law is applicable to all who commit crimes within the territory of the People's Republic of China, and that the occurrence of either an act or a consequence of a crime within the territory of the People's Republic of China is deemed to constitute its commission within the People's Republic of China. In other words, to plan an offence in the Mainland which is to occur elsewhere is treated as a criminal act justifiable in the Mainland. It is on the basis of these facts that the mainland judiciary exercised jurisdiction over the case. It did so not because Hong Kong is part of the People's Republic of China, but because the case falls within the jurisdictional territory of mainland courts.

It is true that some of the offences that were planned in the Mainland were allegedly committed in Hong Kong. This means that, if there were sufficient evidence that those crimes were committed in Hong Kong, the SAR courts would also have jurisdiction over them. But, as I have explained earlier, there is nothing unusual about a situation in which the courts of two places have concurrent jurisdiction over a case. Nor does such concurrent jurisdiction in any way impair the judicial jurisdiction of either place.

The other case referred to in the motion relates to LI Yuhui, a resident of mainland China who is alleged to have committed five murders in Hong Kong. He was arrested and will be tried in the Mainland.

On what basis do the mainland courts exercise jurisdiction in this case? The answer is supplied by Article 7 of the Chinese Criminal Law which gives the mainland courts extra-territorial jurisdiction over crimes committed by Chinese nationals. Article 7 provides as follows.

"This Law shall be applicable to any citizen of the People's Republic of China who commits a crime prescribed in this Law outside the territory and territorial waters and space of the People's Republic of China; however, if the maximum punishment to be imposed is fixed-term imprisonment of not more than three years as stipulated in this Law, he may be exempted from the investigation for its criminal responsibility."

It is my understanding that, whilst the Chinese Criminal Law does not apply in Hong Kong, the extra-territorial reach of Article 7 does extend to Hong Kong. I would ask Honourable Members to note that the words used in Articles 6 and 7 are "領域" and not "領土". The necessary implication of "領域" is jurisdictional territory and not territory simplicita. Ideally, the case of LI Yuhui is to be tried in Hong Kong. However, in the absence of rendition agreement, there is no legal basis for requesting him to be sent back to Hong Kong for trial. The important issue is whether the mainland court does have jurisdiction over the case. I am satisfied that both the mainland court and SAR court have jurisdiction over the matter, and since the accused was arrested in the Mainland and since there is no legal machinery for him to be brought back to Hong Kong, the allegation that the jurisdiction of the Hong Kong court has been eroded or the confidence in the autonomy of the SAR's judicial jurisdiction being impaired is totally unsubstantiated. Thus, this motion does not hold water at all. I am aware that some lawyers disagree with my interpretation of Article 7 and consider that it does not apply to acts done in Hong Kong. They are, of course, entitled to their own opinions.

If my view is correct, does this mean that Chinese citizens who are residents of Hong Kong can be prosecuted in the Mainland for criminal acts committed solely in Hong Kong? It is my understanding that this is not the case.

I believe that the only sensible way to interpret the Chinese Criminal Law is to see how it interfaces with the Basic Law. As I mentioned earlier, Articles 18 and 19 of the Basic Law have the effect that the Chinese Criminal Law does not apply to Hong Kong; and crimes that take place in Hong Kong are subject to the jurisdiction of Hong Kong courts. An administrative arrangement exists between Hong Kong and the Mainland under which a person who is alleged to have committed on offence in Hong Kong and who is arrested in the Mainland will be returned to Hong Kong to face trial in Hong Kong if three conditions are satisfied, that is, (1) he is a Hong Kong resident, (2) the offence was committed entirely in Hong Kong and (3) he is not accused of having committed any offence in the Mainland.

Since 1990, 128 fugitive offenders have been returned to Hong Kong under these arrangements and there is no reason to believe that the Mainland will depart from that practice. The mainland courts have not asserted jurisdiction under Article 7 of the Criminal Law of the People's Republic of China over crimes committed exclusively in Hong Kong by Hong Kong residents and there is no basis for assuming that they will do so in future. On the contrary, mainland authorities (including the President of the Guangdong Provincial People's Higher Court Mr LU Botao) have recently confirmed that, under the provisions of the Basic Law, the Public Security Bureau, the Procuratorate and the courts in the Mainland have no jurisdiction over Hong Kong residents in respect of crimes committed solely in Hong Kong

As from 1 July 1997, we have a new constitutional order in the form of the Basic Law, a piece of legislation passed by the National People's Congress of the People's Republic of China which is an entirely different legal system from the SAR legal system. How the Basic Law interfaces with the laws of the People's Republic of China and the domestic law is an area of uncharted waters. One should adopt an open mind and explore into such sphere zealously. Unjustifiable allegations that bring our legal system into disrepute are not beneficial to the SAR. I would refer Honourable Members to several articles written by Chinese Law experts who teach, or are doing research, in our universities and understand both the mainland legal system and the Hong Kong legal system: they are the articles of Prof GU Minkang, Dr ZHU Guobin and Dr LIN Laifan of the City University appearing in Ming Pao on 23 November, Prof WANG Chenguang of the same university appearing in Wen Wei Pao on 25, 26 and 27 November and of Prof WEN Hongshi, Prof of Jilin University appearing in the December issue of Hong Kong Economic Journal Monthly Magazine. Prof CHEN Guangzhong, Vice President of China Law Society also spoke on the subject as reported by Xinhua News Agency, Chungking. From these articles, Members will find my interpretation of Articles 6 and 7 of the Criminal Law of the People's Republic of China as expressed in my press statement of 3 November is not without foundation. I shall be happy to provide Honourable Members with copies of these articles on request.

The motion alleges that the SAR Government has not tried its utmost to seek the return of those who are suspected of violating the law in the SAR for trial in the SAR courts. I will address this allegation from the legal perspective, and the Secretary for Security will later this afternoon address it from the administrative perspective.

On what legal basis could the Administration have sought the return of the defendants in the two cases referred to? If there were sufficient evidence against the defendants, the Hong Kong courts would have jurisdiction to try them for offences allegedly committed in Hong Kong. However, the only way in which the Hong Kong Government can make a formal request for the surrender of an alleged criminal by another jurisdiction is on the basis of an arrangement for the surrender of fugitive offenders made with that place. Similarly, Hong Kong will only surrender an alleged criminal to another jurisdiction on the basis of such an arrangement.

There is no such arrangement between the SAR and the Mainland. As a matter of law, there was therefore no basis on which a formal request could have been made to the Mainland for the surrender of the defendants in the two cases referred to, and Honourable Members would not ask the Government to take any step which is not in accordance with the rule of law.

Mr Deputy, before we criticize the events surrounding the two cases, let us consider what our attitude would be had the position been reversed. Imagine that a murder took place in the Mainland, that had been planned in Hong Kong. Or imagine that an offence against section 4 of the Prevention of Bribery Ordinance by a Hong Kong resident occurred in the Mainland. If the Hong Kong courts were to try those who planned the murder, or those who committed the corruption offence, would we say that the trials undermined the judicial jurisdiction of the Mainland? Would we agree to surrender those persons to the Mainland to face trial there in the absence of any arrangement for the surrender of fugitive offenders? The answer to both questions must be a resounding "no".

We must not apply double standards. We must respect the judicial jurisdiction of mainland courts, and we must accept that we cannot make a formal request for the surrender of alleged offenders in the absence of an arrangement to do so.

The Administration therefore firmly rejects the allegation in this motion that it failed to safeguard the SAR's judicial jurisdiction and undermined the public confidence in that jurisdiction.

DEPUTY PRESIDENT (in Cantonese): Does any Member wish to speak?

MR GARY CHENG (in Cantonese): Mr Deputy, just now Mr Martin LEE presented a reconstructed case, now I have another one and its credibility should be greater than that which has been made by Mr LEE, because I believe barristers would only speak on the basis of evidence and facts. My version is: A barrister has been given certain vital information by certain fugitive members of CHEUNG Tze-keung's gang, and that barrister could have given the information to the Government and on the basis of the evidence the latter could request a rendition of the gang members to Hong Kong for trial. But unfortunately this barrister made use of the vital information to attack and make accusations against the Government. This is what I wish to add to the case reconstruction.

We are opposed to the motion because according to Mr Martin LEE, the Basic Law is upheld only when the suspects are rendered to Hong Kong for trial. We do not agree to this. And speaking of this case, there is no way we can agree to this. If the case falls within the concurrent jurisdiction of two places, the place which first arrests the suspects will have the priority to put them on trial. I believe this is the international practice. The case under question involves more than the rendition of suspects; it also involves the question of mutual legal assistance. The motion expresses regrets but we think that in terms of arrangements on mutual legal assistance and the rendition of suspects, there has never been a complete scheme, and so there is no place for regrets since we have never had anything and so we have never lost anything. Likewise, the question of restoring confidence is also out of place.

Similar cases have happened quite frequently. The $10 million robbery case on the jetfoil Guia in 1995 saw the co-operation of the police forces of Guangdong, Hong Kong and Macau in bringing the offenders to justice. But on the question of the rendition of offenders, nothing has been finalized so far. I do not know if Mr LEE has been actively following up this case, as he has done in the CHEUNG Tze-keung case at present. Maybe we should talk about the case which happened before the handover in which a member of the British navy killed a person during a fight in a Hong Kong bar. The Provisional Legislative Council then raised the issue to the Hong Kong Government and pointed out that that was a criminal case which happened 100% in Hong Kong, and I do not know if Mr LEE made any response to the case and put in any efforts to strive for justice as in the present CHEUNG Tze-keung case. Of course, ......

MR JAMES TO (in Cantonese): Mr Deputy, I wish to ask if Mr CHENG was trying to say that Members of this Council, including those from the Democratic Party, had done nothing to bring that navy man to Hong Kong for trial? Was he trying to say that?

DEPUTY PRESIDENT (in Cantonese): Mr TO, please be seated first. Would you like to clarify this point, Mr CHENG?

MR GARY CHENG (in Cantonese): Mine is a question, a question mark.

DEPUTY PRESIDENT (in Cantonese): Mr CHENG, please continue.

MR GARY CHENG (in Cantonese): The Government should make the public realize that it was working hard to engage in negotiations concerning mutual legal assistance on justified grounds. The "grounds" that it relies on are the legal systems here and in the Mainland, as well as certain principles and spirits commonly acknowledged by different international jurisdictions. However, as for the interpretation of the Criminal Law of the People's Republic of China, the Government of the Hong Kong Special Administrative Region (SAR) should listen more and say less and consider the whole matter move from the angle of the Hong Kong legal system; as for interpreting the Chinese Criminal Law, this should be done more on the part of the Mainland.

The are differences between Hong Kong and the Mainland in areas such as the legal system, statutes, and the severity or leniency of sentencing. The people of Hong Kong are of course very concerned about the agreement yet to be made between both places on the rendition of suspects and mutual legal assistance, especially on the question of whether or not the judicial jurisdiction of Hong Kong can ultimately be protected. The Democratic Alliance for the Betterment of Hong Kong thinks that the Government should enter into negotiations with the Chinese Government on this issue in accordance with internationally accepted principles and the powers conferred on it by the Basic Law. These internationally accepted principles and the so-called model text of international agreements should all be respected and referred to. Any discussions on these issues should be conducted on the premise of mutual respect for each other's systems and beliefs. In fact, the so-called model texts are the results of discussions between countries and places based on mutual respect for each other. If there was no basis for these discussions and agreements, there would be no such model texts available now. This is more so now because what we are talking about are matters not between two sovereign states, but the Mainland and Hong Kong under "one country, two systems". We should take a similar attitude of mutual respect.

On another occasion Mr Martin LEE said that we must never give in. No discretion is allowed on the standards found in this international model text. Even if we are talking about international agreements, these can only be based on certain principles and decisions should be made taking account of the practical situations of both places. I believe it is hard to find identical texts in agreements on mutual legal assistance between countries or regions. Take for example the resolutions on the agreement on mutual legal assistance between Hong Kong and four other countries passed in this Council today, none of them are identical. But all these four resolutions have not contravened these relevant principles and their spirit. Many people are worried that the agreements made between the SAR Government and the Mainland may violate human rights. But even if such agreements are concluded, they must first go through the local legislative process and become law before they can be implemented and enforced. Therefore, I believe the Legislative Council will not pass any agreement or law which contravenes international standards or violates the International Covenant on Human Rights.

Mr Deputy, we urge the SAR Government to open expeditiously substantive discussions with the mainland authorities for the purpose of concluding a reasonable agreement in accordance with Article 95 of the Basic Law, taking into account the principles and spirit of international model texts of agreements on mutual legal assistance and rendition of suspects. I so submit in support of the amendment proposed by Mrs Miriam LAU.

MISS EMILY LAU: Mr Deputy, I rise to speak in support of the Honourable Martin LEE's motion. Mr LEE asserts that the Government of the Special Administrative Region (SAR) has not tried its utmost to seek the return of the fugitive offenders who are suspected of violating the law in the SAR for trial in our courts. In so doing, the Administration has failed to safeguard the judicial jurisdiction conferred on the SAR by the Basic Law.

One reason advanced by the Administration for not seeking the return of CHEUNG Tze-keung for the kidnapping of two business tycoons was that the tycoons had refused to report the crime to the police.

We are not sure how much the Administration has done to urge these very prominent tycoons to co-operate, but one must ask what sort of example these leading public figures are setting for the rest of the community? If they are indeed too frightened to report to the police, what sort of a commentary is it on our law and order situation?

Even before the change of sovereignty, we have been urging the colonial government to expedite negotiation with the mainland authorities on mutual legal assistance in criminal as well as civil matters. In the case of rendition, which is arrangement for the transfer of persons to be charged with criminal offences between the Mainland and Hong Kong, we must first clarify over whom and over what should the Mainland assert its jurisdiction.

The "Big Spender" case and the "Telford Gardens" case serve as good examples. Mr Deputy, we must ask on what basis did the mainland courts assert jurisdiction over things apparently done in Hong Kong?

Most of the explanations which have been given in Hong Kong are by the Hong Kong officials. It is not clear what the Chinese version is. It could well be that the Hong Kong officials have been dreaming up excuses for the Mainland. Thus, it is imperative that we disentangle what the Mainland asserts from what the Hong Kong officials believe the Mainland to assert and on what basis. Up till now, Mr Deputy, the Hong Kong officials have been referring to the Chinese Criminal Code, Article 6 of which bases jurisdiction on acts done in Chinese territory, and Article 7 of which bases jurisdiction on acts done by Chinese nationals outside Chinese territory. Under Article 6, it is argued that any act preparatory to committing a crime can be charged as the full criminal act, and that if the preparatory acts are committed in Chinese territory, the mainland courts have jurisdiction. As for Article 7, the Secretary for Justice just told us that many lawyers in Hong Kong do not agree with her explanation justifying the mainland courts' assertion of jurisdiction over the Telford Garden case.

Mr Deputy, if the Administration's interpretation of Article 6 and Article 7 is indeed the true interpretation of the Chinese law, in negotiating on rendition, the Administration ought to assert that no matter whether the Chinese courts have jurisdiction under the Criminal Code, in a case where the substantive offence such as robbery or kidnapping is committed in Hong Kong and the suspect has fled to the Mainland, such a person should be sent back to Hong Kong to face trial here.

On rendition arrangements generally, Mr Deputy, we should be entering into negotiations on the basis that we do have principles that are non-negotiable. The minimum protections in the Fugitive Offenders Ordinance should be part of the basic package.

It is totally unacceptable for the Administration to put up the excuse that negotiations have to be conducted in secret, because to reveal negotiating positions may affect the course of them. In fact, the Administration has already revealed its negotiating position through the Secretary for Security by telling this Council and the world at large that Hong Kong may have to yield on the death penalty. This is tantamount to revealing to the other party that you do not have any principles and everything is negotiable. We in this Council must insist, and must insist now, that the Government has a bottomline and that the bottomline which is non-negotiable must include the protections built into the Fugitive Offenders Ordinance.

Getting the right agreement is far more important than getting it quickly. But until the agreement is in place, the Hong Kong officials should not meekly accept that the mainland courts have jurisdiction over everything which happens in Hong Kong. The Secretary for Justice has acknowledged that this is the correct position, but we have no idea what she plans to do when the Chinese courts assert jurisdiction which they do not have as in the Telford Garden case. On present evidence, Mr Deputy, it appears that she will defend the mainland authorities even if they are wrong. This is regrettable and unacceptable.

With these remarks, I support Mr LEE's motion and oppose the Honourable Mrs Miriam LAU's amendment.

MR LAU CHIN-SHEK (in Cantonese): Mr Deputy, I will focus my speech on the issue of death penalty involved in the rendition of fugitives between the Mainland and Hong Kong. My view on this is very clear: Not only do I object to the rendition of any suspects to the Mainland where they may face the death penalty, but I also reiterate that I urge China to abolish the capital punishment immediately.

The Secretary for Security has all along refused to make any undertaking on the Government's principles or bottomline in its discussions with the mainland authorities as regards the rendition agreement. Nor is she willing to undertake that Hong Kong would definitely not surrender to the Mainland suspects who may face the death penalty. Under such circumstances, we cannot help but question: To what extent does the Hong Kong Special Administrative Region Government respect human rights? The Government asserts that, in the international community, there is no unequivocal prohibition against extradition of fugitives who may face the death penalty, and, even in Canada, there was a precedent of extraditing a criminal to the United States where he would be tried and might be sentenced to death. However, the Government's assertion has actually overlooked the issue of human rights and the trend of development in the international community, as well as the fact that the Chinese criminal law system is unreasonable.

"Every human being has the inherent right to life. No one shall be arbitrarily deprived of his life." I believe this internationally recognized principle of human rights is one that no one will object to. The international community is increasingly aware that: "Not only no one shall be arbitrarily deprived of his life, but no one shall be deprived of his life at all." The tolerance of death penalty will only give rise to irreversible tragedies of mistaken verdicts, and it does not help improve public order in any way. In fact, a life sentence can already achieve the effects of punishing offenders and deterring crimes.

In Hong Kong, the abolition of death penalty in 1993 was in keeping with the global trend of respecting human rights. In the five years after the abolition of the capital punishment, our crime rate has not soared and it is thus evident that its abolition has not done any harm at all.

Although important international human rights documents such as the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights do not have any express provisions on the abolition of the death penalty, they clearly state that "no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment". In recent years, international covenants and treaties tend to stipulate in explicit terms that countries should legislate to abolish the capital punishment. Such international documents include the Second Optional Protocol to the International Covenant on Civil and Political Rights Aiming at the Abolition of Death Penalty, whereas the human rights covenants in Europe and America also comprise a similar optional protocol aiming at the abolition of death penalty. It is expressly provided in all of the above covenants that "each State Party shall take all necessary measures to abolish the death penalty within its jurisdiction". In fact, at present, more than half of the countries in the world have already legislated to abolish the death penalty. With more and more countries signing international covenants aiming at the abolition of death penalty, I believe in the near future, the prohibition against death penalty will become a part of the international customary law.

The international trend of abolishing the death penalty will influence the extradition of fugitives between countries by making "no surrender of persons to a place where they may face the death penalty" one of the conditions of extradition or rendition. At present, many extradition agreements between countries and even most of the extradition agreements between Hong Kong and other countries stipulate in explicit terms that "the facing of death penalty may be used as a reason for the refusal of extradition". Therefore, I think that the SAR Government has no ground for objecting to include "the refusal of surrendering a person who may face the death penalty" as one of the conditions in the rendition agreement it signs with the Mainland.

In fact, there are more reasons why the Hong Kong Government should refuse to surrender a person to the Mainland if he may face the death penalty there. Other than the fact that the death penalty itself is inhuman, it is also because the criminal laws and judicial proceedings of the Mainland are extremely unreasonable and backward, which are simply incompatible with the criminal laws and judicial proceedings of a free democratic society. China's closed judicial proceedings, the lack of neutrality of its law courts, the deprivation of the defendants' right to defend, and so on are evident and I believe I do not have to go down the list. What shocks me all the more is that, according to my recent study, among the 350 articles concerning criminal offences in the Criminal Law of the People's Republic of China, there are as many as 58 articles involving criminal offences which are punishable by death penalty, that means almost one out of six crimes are punishable by death! Such crimes include those "endangering national security" which were formerly called "anti-revolutionary" offences, in which acts such as endangering national sovereignty, secession and subversion may all lead to the death penalty. It can be said that the Chinese Criminal Law is still a draconian code of law which arbitrarily suppresses its people's freedom of speech and activities and spares no effort in cracking down on dissidents.

In the final analysis, any civilized society which respects human rights should completely abolish the death penalty and must refuse to surrender persons to other countries or regions where they may face the death penalty. On this occasion of the 50th anniversary of the signing of the Universal Declaration of Human Rights, I appeal to the Chinese Government to immediately abolish the death penalty so as to give real protection to the human rights of its people!

Mr Deputy, I so submit.

THE PRESIDENT resumed the Chair.

MISS MARGARET NG: Madam President, seldom in this Chamber is a more solemn subject debated than this: it is the life and liberty of everyone who lives under the system of law of Hong Kong. Even people who are convicted of serious crimes have rights which cannot be violated. But matters of jurisdiction and rendition affect equally anyone who may be accused of having committed a crime, or wanted for prosecution. This means the wrong answer on jurisdiction, or the wrong rendition agreement would put everyone at risk. A bad agreement compromising fundamental rights is worse than no agreement at all.

Jurisdiction

Madam President, the Honourable Martin LEE is quite right to consider jurisdiction and rendition together because the two are closely related.

Jurisdiction is about whether a court in the People's Republic of China (PRC) or in the Hong Kong Special Administrative Region (SAR) has the right or competence to try a case.

Rendition is about under what conditions which have to be met, and what procedures have to be followed, for a person in a place to be surrendered to another place for trial or punishment.

Clearly, no request for rendition can be made without jurisdiction. On the other hand, the full effect of rendition agreement can be known only if jurisdiction is reasonably clear.

A basic view to adopt, is that the Mainland and the SAR are two entirely separate jurisdictions linked by the Basic Law. Each has its own law and its own system of justice. The law and system of justice of the one has no application or force in the other. The two are linked up only where expressly provided in the Basic Law, and only to the extent provided.

The spirit or, indeed, a major purpose of the Basic Law is to preserve the status quo before the handover, and the separation then existing, between the Mainland and Hong Kong. Everything the Government does must follow this basic policy. Apart as provided in the Basic Law, there must be no diminishment, as far as possible, of Hong Kong's separateness from the Mainland where the law and administration of justice is concerned.

For example, before 1 July 1997, crimes committed in Hong Kong were tried in Hong Kong, not in the Mainland, regardless of the nationality or resident status of the accused. Never until the trial of CHEUNG Tse-keung, was a crime committed in Hong Kong tried in the Mainland solely on the basis that the planning or preparation took place in the Mainland.

Before 1997, the PRC Criminal Law had no effect in Hong Kong. It had, of course, no application, but also it had no effect, for example, under the kind of provision as Article 6 or Article 7, that is, under the so-called "territorial principle" or "active personality principle". It must be made clear that after the establishment of the SAR, the practical effect remains the same.

Rendition

Madam President, on the question of rendition soon to be discussed with the mainland authorities, many lawyers are very concerned that the Government is unclear as to what its bottomline is, or that there is one at all, let alone whether the Government means to stand firm on it.

This Council must never forget, rendition means the Hong Kong authorities arresting and detaining someone in Hong Kong by force, for the purpose of handing him over to the custody of the mainland authorities. It is necessary to ensure that the Hong Kong authorities do not thereby compromise the protection of his basic rights which, under the Hong Kong system, he is entitled to.

So this Council must specify from the outset, that any rendition agreement must have incorporated into it all the safeguards already recognized to be essential under Hong Kong law, specifically, under the Fugitive Offenders Ordinance, and in the United Nations Model Treaty of Extradition accepted by Hong Kong.

These safeguards include dual criminality, no surrender of persons for political crimes or where the person surrendered may face the death penalty. These are well-known safeguards. There are others which time does not permit me to go into.

But I do want to go into the safeguard of evidential threshold. That is, a person must not be surrendered unless the mainland authorities can prove in a Hong Kong court of law, and in accordance with Hong Kong law, that there is at least sufficient evidence for a prima facie case to connect that person to the offence for which request is made for his rendition.

Rather than adopted a more relaxed attitude because the discussion is between the Mainland and the SAR, the Government should in fact be more restrictive. This is because in negotiating an extradition treaty with another foreign jurisdiction, there is an underlying assumption that its system of justice is reasonably similar in principle to the system of Hong Kong. No such assumption can be made in respect of the imminent discussion with the Mainland. To reduce uncertainty and preserve confidence in the rule of law in Hong Kong, clear and explicit safeguards are required.

Madam President, I appreciate that the amendment of the Honourable Mrs Miriam LAU means well in trying not to criticize the Government. But as is clear from my position outlined above, it is of the utmost importance that there is a specific, clear and firm bottom line on rendition as well as on jurisdiction. Being specific now is the essence of the original motion. I cannot agree to any compromise on that.

The Government has utterly refused to be specific, clear or firm. It has, moreover, refused to consult the public or this Council. Further, the officials have, for reasons unknown, sought only to make out a case for the Mainland's jurisdiction but not explore the case for the SAR under the Basic Law. They have sought to do so by adopting an unfounded interpretation of Articles 6 and 7 of the PRC Criminal Law. Not only is that interpretation wrong, but as disclosed in the mainland court judgment of the CHEUNG Tze-keung case, the Government's attempt was wide of the mark. The mainland courts did not even take these provisions into consideration but relied on Article 24 of the PRC Criminal Procedure Law, which provides for jurisdiction as between courts in different parts of the Mainland, without paying any regard to the Basic Law.

When the Government is wrong, this Council must frankly say so, albeit with regret.

Madam President, I support the original motion and oppose the amendment. Thank you.

DR YEUNG SUM (in Cantonese): Madam President, I speak in support of the motion moved by Mr Martin LEE.

In the past, the rule of law system established by the British colonial government in Hong Kong was not only effective but also struck roots in the hearts of people. The public at large believe that all people are equal before the law and that the legal system ensures that people will be given a fair trial. However, the way in which the Government of the Hong Kong Special Administrative Region has handled the CHEUNG Tze-keung and LEE Yuhui cases has made people question our rule of law system. The indecisive attitude of the SAR Government and its defensive position held in favour of the trial rights of mainland courts has made people feel that the SAR Government has not tried its best to uphold the judicial jurisdiction of Hong Kong.

The SAR Government has said time and again stated that it cannot take the initiative to handle the case involving the alleged kidnappings of and blackmailing two local business tycoons as the victims have not reported the crime to the police and there is insufficient evidence. This I strongly question.

Madam President, in accordance with the laws of Hong Kong, criminal prosecution can be initiated not necessarily after someone has reported the crime to the police. In fact, the police can take the initiative to investigate cases although the victims are unwilling to testify in court for fear of revenge by bandits. Prosecution can be initiated once there is sufficient evidence. According to the reports, the local police have provided the mainland authority with information on the cases. Obviously, it is not true that the local police know nothing about the details of the cases. Why do they not handle the cases?

It is even all the mere intriguing that the Government has said that there is insufficient evidence in the CHEUNG Tze-keung case but yet it has applied for a judicial ruling to freeze his assets. This is open to question. If there is insufficient evidence, why has it petitioned the count for a freeze on his assets? Is there sufficient or insufficient evidence? The Government should account to the public on this.

Madam President, in regard to the LAU Kwok-wah case, we can only see from the indictment that LAU Kwok-wah is charged with the smuggling of explosives and firearms in Hong Kong, not any acts of crime in the Mainland. However, the Secretary for Security has said that the information they have exchanged with the Mainland all along shows that LAU Kwok-wah has taken part in the payment and smuggling of firearms in the Mainland. However, in the respective written judgment, we find no reference to the offence committed by LAU Kwok-wah in the Mainland. The Security Bureau has indicated that this is unexpected and that the court verdict may not have stated everything in detail so it has to seek clarification with the mainland court.

Madam President, how can we be convinced of the ability of the SAR Government when the Security Bureau does not even know what is written on the indictment? LAU Kwok-wah is a resident of Hong Kong and the case took place in Hong Kong, however, the trial is not conducted in SAR courts. Does it not signify that the SAR Government will arbitrarily give up the judicial jurisdiction of Hong Kong? The Secretary for Justice also evaded LAU Kwok-wah's case when she spoke earlier.

The Telford Gardens murder case happened in Hong Kong, and according to international practice, the case should be tried in Hong Kong and the SAR Government should try its best to fight for the trial of the case in Hong Kong and it needs not defend the authority of mainland courts in assuming jurisdiction over the case.

Madam President, even if both Hong Kong and China have jurisdiction over certain cases, for instance, the plotting and planning parts of kidnapping cases, the Government should also fight for the rights of Hong Kong people and the media to sit in on the trial or consider offering individuals who need help legal aid services, rather than looking on unconcerned.

Madam President, China acceded to the International Covenant on Civil and Political Rights earlier on and the Covenant is applicable to Hong Kong according to the Basic Law and the Hong Kong Bill of Rights Ordinance. Article 14 of the Covenant provides that except under special circumstances such as those related to national safety, Hong Kong people should indeed receive an open and fair trial. Therefore, the Government should spare no efforts to fight for an open trial for Hong Kong people in the Mainland. However, during the trial of the CHEUNG Tze-keung case, we did not see the Government sparing no efforts to fight for an open trial.

Lastly, Madam President, I would like to stress in particular that the SAR Government should uphold a high degree of autonomy in Hong Kong and the independent and complete jurisdiction of Hong Kong under the Basic Law and take up the matter with China in respect of the Chinese Criminal Law instead of completely embracing the arrangement and arbitrarily giving up the jurisdiction of Hong Kong. Maintaining the rule of law system is undoubtedly essential to the development of a high degree of autonomy in Hong Kong. The Government should adopt an unyielding attitude as far as the jurisdiction of Hong Kong is concerned in order not to rock the foundation of our society.

I so submit in support of the motion.

MR MA FUNG-KWOK (in Cantonese): Madam President, Hong Kong has never reached any agreements with the Mainland on mutual legal assistance and there are only one-direction and unofficial administrative arrangements for the mainland authorities to render Hong Kong residents who have committed offences in Hong Kong to the Hong Kong authorities for trial. There is no definite and established mechanism governing this kind of rendition arrangements, and each case is considered on its merits. On the other hand, there appears to have been no cases of fugitive suspects from the Mainland having been rendered to the Mainland for trial. The spirit of mutual legal assistance should be built on the principle of reciprocity. The present one-direction and unofficial administrative arrangement is, to a certain extent, unfair to the mainland authorities.

With the increased contacts and commercial dealings between Hong Kong residents and those of the Mainland in recent years, there are more and more civilian and commercial disputes and even cross-boundary crimes. Therefore, it is a matter of increasing urgency for both places to conclude some arrangements on mutual legal assistance and to a certain extent, on the rendition of suspects. The issue has aroused great concerns among the legal sector as well as the community at large after the occurrence of the CHEUNG Tze-keung case and the Telford Gardens case.

It is known that the mainland authorities have been raising the issue of mutual legal assistance for discussion with the Hong Kong Government, but there has been no active response from the latter, probably due to political or other reasons. The absence of an agreement on mutual legal assistance between both places is mainly due to the entirely different legal systems of Hong Kong and the Mainland. While common law is practised in Hong Kong, continental law is practised in the Mainland. While death penalty is not enforced in Hong Kong, it is enforced in the Mainland. While the legal systems of both places have been undergoing great changes in these years, the mainland system in particular has been changing very rapidly. This has made the issue of communication between the two judicial systems more complicated.

After the reunification , the two judicial systems remain independent, and do not interfere with each other nor subordinate to each other. Given the lack of sufficient communication and understanding between both parties, there are bound to be many difficulties in their discussions on the issue of mutual legal assistance. According to the Basic Law, the Hong Kong Special Administrative Region (SAR) enjoys autonomy in jurisdiction and there is no question of the Mainland exploiting the jurisdiction of the SAR.

Madam President, the CHEUNG Tze-keung case is in itself a case of cross-boundary criminal activities. Both Hong Kong and the Mainland enjoys jurisdiction over the case, and there should be no disputes in this point among the public and the Members of this Council. Given such a situation of concurrent jurisdiction, according to international practice, the party which arrests the suspects has the right to decide whether or not to exercise its jurisdiction and to initiate judicial proceedings. We cannot say that the Mainland is infringing upon the jurisdiction of Hong Kong when it initiates the proceedings for the CHEUNG Tze-keung case. In fact, many people are very much aware that the offenders in the above case have actually violated the Chinese laws with their smuggling of ammunitions and the evidence in this respect is crystal clear. While we are speaking for the protection of the jurisdiction of the SAR, how can we infringe upon the jurisdiction of the judicial organs of the Mainland? For if we claim that the SAR Government has not done its best to defend the jurisdiction conferred to it by the Basic Law when CHEUNG Tze-keung and his gang are not tried in the courts of the SAR in the first place, this is obviously making unfounded accusations and politicizing the whole issue. It is none other than the irresponsible opinions made by those people that erode the confidence of the people of Hong Kong in their jurisdiction. Therefore, I cannot agree to Mr Martin LEE's motion.

To the people of Hong Kong, the definition of "extra-territoriality" in the LI Yuhui case certainly has some grey areas. The SAR officials must seek through formal channels to ask the mainland authorities to explain the meaning of "extra-territoriality" and the legal grounds for their exercise of jurisdiction. This is a better way to dispel public apprehensions than having the Secretary for Justice and officials in the Security Bureau to interpret the Chinese Criminal Code. Also, the receiving of the funds involved in the LI Yuhui case by the SAR Government before a sentence is passed is questionable.

Recently, in response to certain discussions made in society on the issue of mutual legal assistance, some officials of the SAR Government pointed out that a major obstacle to the conclusion of an agreement on mutual legal assistance with the mainland authorities is the question of death penalty. When the Hong Kong Government was negotiating with other jurisdictions on mutual legal assistance agreements, it used the 12 internationally recognized principles on the refusal to render fugitives as the groundwork for discussion. These principles include the refusal to render fugitives to places where the death penalty is enforced. The failure to conclude such an agreement with Thailand is precisely due to this issue of sentencing.

The Secretary for Security hinted some time ago that a flexible stance would be taken to deal with the problem of death penalty when discussions on mutual legal assistance were to be held with the Mainland. This is a welcome stance to take. The existence of the death penalty should not be the major obstacle for the reaching of an agreement on mutual legal assistance. The model texts used internationally are valuable sources of reference, but practical situations of both places should also be taken into account. For example, Britain extradited two fugitives to Germany when the latter had not yet made any commitment on the issue of death penalty.

The agreements on mutual legal assistance reached between China and many other countries such as Canada and Thailand in civil law, business law and criminal law provide for the non-rendition of prisoners on the death row and political prisoners. I hope that when Hong Kong concludes a mutual legal assistance agreement with the Mainland, both parties should take into account the entirely different judicial systems of both places and their being two independent jurisdictions. This will enable the application of international agreements on mutual legal assistance between Hong Kong and the Mainland so that the spirit of "one country, two systems" can be fully realized.

Furthermore, I wish to point out that mutual legal assistance agreements should be arrangements on the rendition of fugitives executed in a reciprocal, fair, just and reasonable manner. The agreement itself must be fair and reasonable to the law enforcement and judicial organs of both places. Any discussions on a mutual legal assistance agreement should be founded on understanding and consultation. They should be grounded in enhancing the deterrent effect of the criminal law and the effectiveness in combating cross-boundary crimes so that offenders could not get away with their offences and be brought to justice instead. There would be no chance for offenders to get away from the long arm of the law by fleeing from one jurisdiction to another. This is the essence of mutual legal assistance. If both places can reach an agreement on mutual legal assistance according to the principles of reciprocity, fairness, justice and reason, I think the public's worries will certainly be dispelled.

I so submit.

MR ALBERT HO (in Cantonese): Madam President, I speak mainly in response to the legal arguments presented by the Secretary for Justice a moment ago.

I remember at a press conference held on 3 November, the Secretary for Justice raised for the first time her interpretation of Chinese territory and the so-called "active personality principle". And even to date, the Secretary for Justice still insists on this point of view. The conclusion so drawn leads to the belief that that the courts of the Mainland have jurisdiction over the LI Yuhui case. I recall during last week's meeting of the Panel on Administration of Justice and Legal Services, I asked the Deputy Solicitor General Mr S K Y WONG to provide us with the relevant information so that we might understand what kind of reference the Secretary for Justice might have looked up. I believe the Secretary has not only sought the advice of some authorities in the Mainland but has also relied on certain literature to support her views.

Yesterday we received a pile of papers finally, and they include extracts from four books. One is edited by Prof ZHAO Bingzhi and another is called Criminal Law of China which was published in 1998. Prof ZHAO is undoubtedly an authority in Chinese law. He is the Deputy Dean of the Faculty of Law at the People's University of China, a law professor, a Doctor of Laws, a supervisor of Ph D candidates, and is also the deputy chief executive of the Criminal Law Research Society of the China Law Association, together with a host of other titles. His authority is unquestionable. But I was very surprised when I flipped through the papers. If the Secretary reads these articles today, she would ask, "Are his views correct? Is Prof ZHAO talking nonsense? Are his legal concepts completely wrong? Has he taught the students the wrong thing?" Let me read out from page 14 of the book A New Introduction to Criminal Law on the territorial principle in Chinese Criminal Law. This is on Articles 6 and 7 to which the Secretary has referred on the concept of territory of the People's Republic of China. It says, "The territory of the People's Republic of China refers to all the spatial territories within its boundary. More specifically, this includes (1) land, being the most fundamental and vital component of a country's territory, comprising all the land and its substrata within the country's boundary lines; (2) waters, being inner waters (inner rivers, lakes, seas and parts of the demarcation waters shared with foreign countries, usually being the centre line of a river, and the centre of the main channel if it is a navigable river) and the seas." This is clear enough. The book also mentions that according to international treaties and practices, the territory of a country can be extended to include the vessels and aircraft, together with the embassies of that country in other countries. Article 6 has of course mentioned this point as well. However, the concept of territory as expounded by the Secretary just now is quite different. What she said was a legal concept, a jurisdiction. I do not know what grounds she has on this. I have not read the articles she has cited, but is Prof ZHAO entirely wrong? He is indeed an authority and he has written the book I have just quoted. What grounds do we have to disagree to his interpretation?

Apart from this book, there is also a book published by Prof ZHAO in 1998 called the Criminal Law of China which is a must for all who study Chinese law. I bought the book and read it and it says the same thing. Besides, I also read the book An Exposition of the Chinese Criminal Law edited by the Law Committee of the Standing Committee of the National People's Congress which also supports this interpretation. I do not know how the Secretary for Justice has reached such an innovative interpretation. Who back up her views? What are their publications and standings? Do the courts in China have any precedents to support her views. And even today I am unable to figure that out. That is the first point.

Second, the Secretary for Justice said that due to the interpretation of the concept of territory, Article 7 was applicable while Article 6 was not. We all know that Article 6 says that the Chinese Criminal Law shall apply if the crime is committed within the territory of the People's Republic of China, unless otherwise provided for in law. Likewise, the book by Prof ZHAO which I have quoted just now also refers to the following three exemptions: (1) those who enjoy diplomatic immunities; (2) the autonomous regions in China where it has been stipulated that the laws of China are not applicable and that these regions are to be ruled by their own laws; (3) Hong Kong and Macau where the respective Basic Law shall be enforced. All these show clearly that Article 6 is obviously applicable. I do not know why the Secretary for Justice has reached such a conclusion. This is the second point.

The third point is the active personality principle. In fact, this is an innovative interpretation. I fail absolutely to see any grounds making Article 7 or Article 6 applicable to citizens of China residing in Hong Kong. The Secretary explained that there were two kinds of Chinese citizens, one are those living in China, and the other are those living in Hong Kong. I also fail to see any grounds to make the Chinese citizens referred to in the Nationality Law of China hold a different legal status.

The fourth point, the Secretary for Justice thinks that under many circumstances there should be concurrent jurisdiction. It may well be true for this particular case because crimes may be committed on both sides of the boundary. But what I wish to point out is that it is obvious under the Basic Law that only the Hong Kong Special Administrative Region (SAR) has jurisdiction over acts done in Hong Kong. The legal concept embodied in the Basic Law is one of a regional separation of powers which is in reality an exclusion of the Chinese Criminal Law from the territory of Hong Kong. This is also the viewpoint so unequivocally put forward by Prof ZHAO Bingzhi and in other legal publications. Therefore, the SAR as compared to the Mainland enjoys exclusive judicial jurisdiction over crimes committed within the territory of Hong Kong. I earnestly hope that the Secretary for Justice can have a clear understanding of this concept and will not insist on an erroneous point of view.

MR AMBROSE LAU (in Cantonese): Madam President, looking at the matter positively, the controversies on jurisdiction that arise out of the CHEUNG Tze-keung case and the Telford Gardens case are a meaningful thing. For it can dispel the apprehensions of the public on this issue.

Both cases involve the coincidence of jurisdictions. The CHEUNG Tze-keung case is a criminal case straddling two places. The acts and results of the crimes took place in two locations, more than one act of crime was committed in both places. More than one offender was involved. Some are residents of Hong Kong and some are mainlanders. For this kind of cross-boundary syndicated crimes, the Hong Kong Special Administrative Region (SAR) has jurisdiction over them, and so has the Mainland. Under the circumstances of a coincidence of jurisdictions, according to the principles of "practical control" and "priority given to the first party who handles the case", jurisdiction should be exercised by the judicial organs which first arrest the suspects and the courts which first handle the case. In this case, the arrest of suspects, their prosecution and trials are conducted by the judicial organs in the Mainland, therefore, it is only reasonable for the CHEUNG Tze-keung case to be tried by the mainland courts.

This kind of coincidence in the jurisdiction of two places will not undermine the jurisdiction of Hong Kong which is autonomous. For crimes committed by Hong Kong residents and which are entirely done in Hong Kong, the Basic Law provides that the mainland public security and judicial authorities have no jurisdiction over such crimes. There is absolutely no question of extending the Criminal Law of the People's Republic of China and the Law of Criminal Litigation to Hong Kong.

As for the Telford Gardens case, it is one which involves a mainland resident who committed a crime in Hong Kong and then fled to the Mainland where he was arrested. The case is different from one which involves a mainland resident who comes to Hong Kong and commits a crime for which he is arrested later in Hong Kong. For cases of the latter kind, the courts in Hong Kong would of course have the right to exercise their jurisdiction.

There is at present no formal arrangement made between Hong Kong and the Mainland on the rendition of suspects. What we have is only an informal administrative arrangement which is one-direction only, that is, the rendition of Hong Kong residents who have committed offences in Hong Kong by the mainland authorities to Hong Kong. But if they have broken the laws of the Mainland, they would be sent back to Hong Kong upon the completion of the legal proceedings of the Mainland. The motion before us urges the Government of the SAR to use internationally recognized principles as a basis for its discussions the Central People's Government on the rendition of suspects and to reach an agreement on such arrangements. In order that this is done well, it requires a high degree of political wisdom and excellent negotiation skills. In my opinion, the remarks made by Prof Albert H Y CHEN of the Faculty of Law of the University of Hong Kong merit our consideration. He said that under the present circumstances in which the SAR Government was not sufficiently prepared in terms of political inclinations and legal justifications, it was unable to handle requests for the rendition of Hong Kong residents who had allegedly violated the laws of the Mainland from Hong Kong to the Mainland to stand trial there. The rendition of suspects is a reciprocal matter, but apart from the arrangements concerned which are reciprocal, the difference between the laws of both places may lead to a lack of reciprocity in sentencing and even in the court's decision on whether a person is guilty or otherwise. The Hong Kong Progressive Alliance (HKPA) therefore thinks that the arrangements on the rendition of suspects between Hong Kong and the Mainland should be dealt with very prudently, otherwise the worries of the Hong Kong people cannot be fully addressed.

Madam President, according to principles recognized in the international community, it is a normal thing to have coincidence of jurisdictions between places with different systems of law. If a coincidence in jurisdictions arises, the party with "actual control" and which "first handles the case" should exercise its jurisdiction. The view which takes that agreeing to the coincidence of jurisdictions as tantamount to giving assent to the infringement upon the autonomous jurisdiction of the SAR by the Mainland is in fact a violation of internationally recognized principles on concurrent jurisdiction.

Article 18 of the Basic Law provides that national laws of China shall not be applied in Hong Kong except for those listed in Annex III to the Basic Law. In the CHEUNG Tze-keung case and the Telford Gardens case, the most crucial point is that the Chinese Criminal Law and the Law of Criminal Litigation have not been enforced in Hong Kong but in the Mainland where a coincidence of jurisdictions occurs.

The HKPA earnestly hopes that the worries of the public can be dispelled through the discussions today, and to prove that under the circumstances of a coincidence of jurisdictions, the Chinese Criminal Law will definitely not be enforced in Hong Kong. What is to be enforced are in line with the principles of "actual control" and "priority given to the party which first handles the case" which are commonly recognized by the international community. In so doing, the Basic Law and the "one country, two systems" principle can be upheld.

Madam President, I so submit.

MISS CHRISTINE LOH (in Cantonese): Madam President, please excuse me if my speech today is not good enough, or if my remarks are not clear enough in any way, because the topic today is really very complicated. It is not at all easy to understand Chinese laws, and up to this very moment, I still do not know how I should interpret the laws of China.

I have not decided how I should vote today, which is why both sides can still lobby me for my support. I have listened to the arguments of both sides with very great care and attention. But I still have some questions, and I hope that those Honourable Members who are going to speak after me can help me decide how I should vote.

One question I have in mind is this: For the CHEUNG Tze-keung case, which is still the subject of many arguments now, can we actually take him back to Hong Kong and bring him before the law courts of the Special Administrative Region (SAR)? The Honourable Martin LEE's original motion criticizes the SAR Government for not having done its utmost to seek the return of the suspects for trial in the SAR courts. My question is: Under the existing administrative arrangements, can we really take him back to Hong Kong and bring him before the SAR courts? We can criticize the SAR Government for failing to do so only if the answer to this question is "yes". If not, I mean, if it is impossible to do so under the existing arrangements, I really do not know what else the SAR Government can do. I hope that Mr Martin LEE can give me an explanation on this point a moment later.

Having said that, I must add that the way in which the SAR Government has handled this case is indeed not entirely appropriate, which is why the people of Hong Kong are so worried. In this connection, let me perhaps tell the SAR Government how I look at this case. The Government once commented that it did not have sufficient evidence to justify the arrest of CHEUNG Tze-keung in Hong Kong. But then, on the other hand, it suddenly applied for a court writ to freeze his assets in Hong Kong. The application was eventually turned down by the court which ruled that all the required evidence could not be found in Hong Kong. I once wrote to the relevant government department in my personal capacity, asking it to tell me the justifications which had led to its decision to apply for a court writ. I was told that since time was running out, and since it was feared that the assets of CHEUNG Tze-keung might simply disappear somehow, there was a need to take such a step. If there was really no evidence ...... if such a step was chosen simply because time was running out ...... and, well, since the application was eventually turned down by the court, well, can one say that all was done in too great a haste? Since the Government had already stated that there was no evidence, I really fail to see why it still decided to apply for a court writ. I hope that if ever they have the chance to do so, government officials can give me an explanation, because people simply do not know whether there were sufficient justifications for such a step.

Besides, I too hope that the SAR Government can reach an appropriate agreement with the relevant mainland authorities. But having listened to Honourable Members' remarks today, I start to realize that this matter is indeed a very complicated one. That is why I now think quite differently that we must avoid any rash actions, for we may not have given enough thoughts to quite a number of problems. Moreover, we do not know whether the Government has any trump cards in hand in its negotiation with the Mainland. Nor are we able to know how transparent the negotiations between the two sides will be. I naturally hope that there can be a high degree of transparency, but the Government may well say that for technical reasons, it should not reveal all the contents of the negotiations. Actually, the two cases in question have made the people of Hong Kong aware of the related problems. We begin to realize that the matter is indeed very complicated. So, I think the people of Hong Kong themselves should also take part in the discussions on these problems. We also need to understand how to interpret Chinese laws. Should academic institutions, the political sector and the legal sector, therefore, hold some seminars or similar activities, so as to enable us to discuss the related problems in greater detail? I also hope that government officials can take part in these activities and exchange their viewpoints with us. Only such discussions can enable us to identify solutions to these complicated problems, thereby bringing forward the type of satisfactory situation depicted in the latter half of the original motion. I just do not know when we can bring forward such a satisfactory situation. But I do not think that the SAR Government should proceed too quickly. I reiterate that we ourselves should play a positive role and get to know all the related problems. Then, we should consider how best to solve them.

Finally, I wish to raise one more point. I do not know how the public at large look at our Police Force. But some recent events have indeed caused immense anxieties among us. For example, some victims of serious crimes have decided not to report to the police. What does this show to us? Does this mean that some people have no confidence in the efficiency of our Police Force? In addition, I also think that the people of Hong Kong are worried about one thing. Have these victims sought to get things done in the Mainland through their good connections there? I do not think that we can actually find any answers to these questions today. But these questions will remain in the hearts of the Hong Kong people.

I hope that I can hear more opinions from different sides, because up to this very moment, I have not decided how I should vote.

MR JASPER TSANG (in Cantonese): Madam President, the Democratic Alliance for the Betterment of Hong Kong agrees fully with the Honourable Martin LEE, who states in his motion that the Government of the Hong Kong Special Administrative Region (SAR) must expeditiously discuss and conclude an agreement on rendition arrangements with the Mainland Government. But we also find a contradiction between the first and second halves of his motion, and, to say the least, this will probably convey a rather confusing message to members of the public.

According to Mr Martin LEE, since the SAR Government has not done its utmost to seek the return of those who are suspected of violating SAR laws for trial in SAR courts, there is a need to express deep regret. As we all know, there is no agreement on this particular matter now, and if there were indeed an agreement, it would not have been necessary for him to urge in the second half of his motion that the SAR Government must discuss and conclude an agreement with the Mainland. So, Mr Martin LEE's request is tantamount to saying that even in the absence of any an agreement, the SAR Government can still seek the surrender of those who are suspected of violating the laws in the SAR. We often say that Hong Kong must uphold the rule of law. Well, given the fact that there is now no agreement on rendition arrangements, even if our Democratic Party colleagues are right in asserting that the Mainland does not have any jurisdiction over the cases concerned, and even if the law courts in the Mainland cannot thus handle these cases, what legal basis is there which can enable the SAR Government to ask for the return of suspects for trial in the SAR? Since the Democratic Party maintains that suspects can still be returned to Hong Kong even in the absence of an agreement, why then should there be any need to conclude an agreement?

I have the impression that the Honourable Miss Margaret NG does have some reservations about the conclusion of an agreement, because she has commented that no agreement is better than a bad agreement. I think the matter is very simple. The conclusion of an agreement requires two parties. That being the case, should we then consider the question of reciprocity? In the past, there was no reciprocity. As indicated by the information given to me by the Government, since 1990, some 100 Hong Kong residents who fled to the Mainland after committing crimes in Hong Kong have been arrested by the Mainland Government and sent back to Hong Kong. But has the Hong Kong Government ever returned anyone to the Mainland? The answer is in the negative. Therefore, we can say that even in the absence of an agreement, there have always been some arrangements under which the Mainland Government will return those Hong Kong residents who have broken the laws in Hong Kong. But the Hong Kong Government has never surrendered to the Mainland anyone who has broken the laws there, or who, as claimed by the Mainland Government, has broken the laws there. Some colleagues of mine in this Council, of whom Miss Margaret NG is one, may well think that this is a more desirable situation. If they really think so, then there are contradictions in their own stance. Why then should there be any need to conclude an agreement in the very first place? Once there is an agreement, the question of reciprocity will emerge, and so will the question of death penalty as mentioned by the Honourable LAU Chin-shek. If the question of death penalty is really involved, what are we going to do?

Therefore, unless the whole thing is seen from the perspective that the Democratic Party will always express its regret at whatever the SAR Government does, the first half of the motion will at best serve to confuse members of the public, because they will be led to think that the SAR Government has not done its utmost though it has the right to seek the return of suspects to Hong Kong for trial. If the SAR Government really has the right to seek the return of suspects for trial, and if it fails to do so despite such a right, then we can express our regret. But if it is for the time being beyond its ability to do so due to the absence of an agreement, we simply should not express any regret. Right?

Let me now turn back to the point on "no agreement is better than a bad agreement". I think Miss Margaret NG's remarks are a bit misleading. She said that before 1 July 1997, all those who were suspected of committing crimes in Hong Kong were tried in Hong Kong regardless of their nationalities; in other words, whether or not the suspect was a Hong Kong resident, as long as the case concerned occurred in Hong Kong, he would be tried in Hong Kong. But she omitted one point: the place of arrest. No doubt, all those who commit crimes in Hong Kong, be they Hong Kong residents, mainland citizens, United Kingdom citizens, United States citizens or even Indian citizens, will be tried in Hong Kong if they are arrested in Hong Kong. This was the case before 1997 and is still the case now. But if a British navy man commits a crime in Hong Kong and then flees back to Britain, thus avoiding arrest here, how can he possibly be tried in Hong Kong? If mainland citizens commit crimes in Hong Kong and are arrested here, they too will be tried in Hong Kong. There have never been any precedent cases in which mainland citizens arrested in Hong Kong were released without having to face any trials because they were mainland citizens. If Miss Margaret NG wants to use the Telford Gardens case as an example to show that the situation after 1997 has indeed worsened, she must cite an actual pre-1997 precedent case like this one: A mainland citizen committed a crime in Hong Kong and then fled back to the Mainland. Subsequently, the former British Hong Kong administration requested the Mainland to surrender him to Hong Kong for trial. The suspect was a mainland citizen, and it might have happened that the Mainland was willing to surrender him to Hong Kong; or, the Mainland might have unreasonably turned down the request. In the latter case, the former British Hong Kong administration before 1997 still vigorously sought to have the suspect surrendered to Hong Kong. The only thing was that its request was all the way rejected by the Mainland, and it was because of this that the former British Hong Kong administration was saved the censure, an expression of regret, from the Democratic Party. Only when there was really such a precedent case could we say that changes have emerged after 1997, or that the SAR Government has compromise its own judicial jurisdiction.

I also wish to say a few words on the question of death penalty mentioned by Mr LAU Chin-shek. It seems that Miss Margaret NG has little confidence in our eventual conclusion of a good agreement. But rightly as pointed out by the Honourable Gary CHENG a moment ago, I do not believe either that a bad agreement can ever be implemented in Hong Kong at all, because any agreement will have to go through the legislative process before it can be implemented in Hong Kong. So, if the agreement eventually concluded is a bad one, I do not think that it can be implemented in Hong Kong at all. If we really think that the Mainland simply pays no heed to the rule of law, or, in the words of Mr LAU chin-shek, if all they have in the Mainland are really just draconian laws and harsh rules, then we will in fact be trying to achieve the impossible when we attempt to negotiate with the Mainland on the conclusion of an agreement, especially a good agreement. Should this really be the case, we will have no alternative but to withhold all negotiations until the trends described by Mr LAU Chin-shek really emerge, that is, until human rights are universally respected and death penalty is completely abolished everywhere on the globe. But if we do so, we will obviously be acting against the request put forward by Mr Martin LEE in his motion. However, all this aside, if we still believe that we can still carry out negotiations on the basis of mutual respect, then we should really start to consider what kind of agreements can best serve the interests of Hong Kong. In this connection, I must say that even if we can really conclude an agreement under which the Mainland agrees that we need not surrender any suspects who will probably face the death penalty in the Mainland, we should still think very carefully whether or not such an agreement is really good for Hong Kong after all. I think we should consider this point indeed very carefully. Thank you.

MR LEE WING-TAT (in Cantonese): Madam President, I will look at this case from the layman's point of view because unlike colleagues in this Chamber now, especially those who are in the legal profession, the general public that I come in contact with in my district do not look at this issue from the legal point of view. In their discussions about this case, many people would raise several questions: Is it because of the incompetence of the police that they cannot prosecute the suspects? Why did the victims not report the case to the police? Has this incident cast doubts on the present capability of the police? Although I am not a member of the Panel on Security, I once attended their meeting and listened to the police's views. The Chief Secretary for Administration and other government officials once said in public that they were indeed making great efforts to pursue the case of the suspected victims. Newspapers have also carried reports on a family member of Mr LEE Ka-shing and Mr Walter KWOK. I have also thought about this case over and over again from the angle of an ordinary citizen.

Of course, in the victims' position, they did have to consider many factors including the safety of their families and many other things. From a certain point of view, as regards that they, including Mr LEE Ka-shing, decided not to report their cases to the police, I personally understand and sympathize with their position. However, I do not think that we should support their approach in this incident. As everyone knows, Mr LEE Ka-shing is not any ordinary citizen but a well-known business tycoon who is greatly influential to the economy of Hong Kong. What message would he send to the community by not reporting the case to the police? Does it imply that the Hong Kong police are incapable of protecting the safety of Hong Kong citizens? Or was Mr LEE Ka-shing worried that reporting it to the police would jeopardize the safety of his son or dear ones? I think the crux of the problem was how much confidence he had in the Hong Kong police's ability to crack down on crime. In my opinion, even though we understand and sympathize with his decision, we cannot support it. If all Hong Kong citizens, particularly those celebrities, resort to taking the same action, they are in fact passing a vote of no confidence on the ability of the Hong Kong police in fighting crime. Hence, I do not feel that we should follow suit.

On the other hand, it has also been widely reported by newspapers that the victims brought this up with the leadership in the Central Government and regarding this, no one has denied so far. If this report is true, it is even more dangerous. It is true that this incident involved the kidnapping of a family member of a Hong Kong citizen. But we cannot rule out that in future the conflicts between Hong Kong businessmen and ordinary Hong Kong citizens would lead to one of the parties going to complain to the mainland authorities; or Hong Kong citizens may attempt to settle the civil matters between them and mainland authorities, including the provincial, county or municipal authorities, or with mainland citizens by filing lawsuits against them with the leadership in the Central Government or have the offenders caught by means of the power other than the Hong Kong police. This is no doubt an indication of their great distrust of the power of the Hong Kong police, thus setting a very bad example to everyone. Although I do not totally agree with the police in their handling of this incident, but on this issue, I do sympathize with them.

Unfortunately, in an interview on 22 November, Mr LEE Ka-shing said that he could face Hong Kong and the motherland with a clear conscience. This I do not intend to comment. But I failed to understand his point when he said that he respected the police. Or perhaps the Secretary for Security will answer this question: If a victim does not report his case to the police, or if Mr LEE Ka-shing said he respected the police by not reporting the case to them, can the statement stand? Was it an indication of his distrust of her capability in handling security matters? Or was it a distrust of the ability of the Police Force under her to crack down on crime? Looking back at the developments after the incident, I feel that they have not been treated fairly. In the one or two similar cases that have happened recently, they have worked very hard — I do not know whether they have been forced to work so hard because of this incident or they have always worked that hard; I presume that they have always worked that hard — and been able to arrest one or two suspects within a very short time and the victims did report the case to the police. Since these incidents happened within such a short period of time and no evidence has indicated that the officers of the Security Bureau or Police Force lack the power to protect Hong Kong citizens, I feel that what Mr LEE Ka-shing has done this time is wrong. He has set a bad example to the public in Hong Kong.

Thank you, Madam President.

MR ANDREW CHENG (in Cantonese): Madam President, the foundation of a sound system of the rule of law is built upon justice and equality. "Everyone is equal before the law" is not merely a slogan. The goddess of justice is blind-folded, symbolizing that everyone, including the seemingly common enemy of society, is innocent before he is convicted. Given this foundation, a fair, just and open trial is the cornerstone of maintaining justice. "Rather to let the wrong-doer go than to wrong the innocent" is the spirit of common law and also the foundation of Hong Kong's system of the rule of law trusted by the international community.

After our reunification with China, there are circumstances under which both the Hong Kong Special Administrative Region (SAR) and the Mainland have concurrent jurisdiction over certain cases. Under "one country, two systems", our greatest concern is that the SAR Government might not be negotiating with the mainland authorities on reciprocity. The difference in footing is not only resulted from the difference in status between the sovereign power and the SAR but also the different judicial systems of both places. We would "rather let go of the wrong-doer than wrong the innocent" but they would "rather wrong the innocent than let the wrong-doer go"; we "try first before convicting" but they seem to "convict first before trying". Given such polarities, internationally recognized principles will become the major factor to uphold the equality between the "two systems" in the "one country, two systems" and also to give the SAR Government certain equal bargaining power in its negotiation with the mainland authorities on the rendition of suspects.

Madam President, the Secretary for Security has cited the case of both the Spanish and French Governments requesting the British Government for the extradition of the Chilean dictator, General Augusto PINOCHET, to be tried in their countries after he was arrested in Britain. She has attempted to prove that the SAR Government has done nothing wrong in the CHEUNG Tze-keung and LI Yuhui cases by citing that there is "concurrent jurisdiction" in the international community. However, the Secretary seems to have forgotten that the so-called "concurrent jurisdiction" applies only to similar or identical legal systems. Compared to China, these countries have relatively sounder legal systems, including the open hearing and various appeal channels.

Madam President, the Democratic Party totally agrees that evil men should be punished. But the CHEUNG Tze-keung case has aroused our concern over the issue that the rich and powerful like Mr LEE Ka-shing can make use of his clout in Beijing and file his case to the highest authorities, influencing the rule of law with the rule of man and having the public security force in the Mainland override the Hong Kong police; thus resulting in "crimes committed in Hong Kong being tried in the Mainland". Once this precedent is set, the Hong Kong police may become the subsidiary body of the mainland public security force any time and the "two separate systems" in the "one country, two systems" will surely vanish into thin air.

Madam President, the United Nations Model Treaty of Extradition includes seven circumstances under which one party of the agreement must refuse to surrender the persons concerned. They are:

1. the offence involved is of political nature;

2. there are reasons to believe that the surrender is made out of discrimination against the offender on account of his race, religion, nationality, political opinions or gender;

3. the offence is involved with martial law instead of common criminal law;

4. the offence has already been tried and a verdict made;

5. the offence will not be prosecuted owing to lapse of time, human rights or any other reasonable reasons;

6. the offender will face inhumane and cruel treatment and will be denied a fair trail as stipulated by Article 14 of the International Covenant on Civil and Political Rights; and

7. the offender has been convicted in his absence and will not have an opportunity to defend himself or be retried.

The Model Treaty also provides eight criteria for refusal of the surrender of the offender, including crimes punishable by death and consideration that such an extradition or rendition may be deemed inhumane due to the age and health conditions of the offender.

Madam President, the principles prescribed in the Model Treaty may be incorporated in the rendition agreement with the Mainland as the major principles safeguarding the basic human rights. The SAR Government can absolutely not compromise on these principles of the Model Treaty, for once it does so, we will very likely become a little lamb under the control of the giant dragon and will have to continue to compromise and yield in the mutual legal assistance in judicial matters. We have to continue to play the part of the little dragon under the giant dragon and shoulder the responsibility of the "little dragon upholding the rule of law".

With these remarks, Madam President, I support the motion.

PROF NG CHING-FAI (in Cantonese): Madam President, because of the importance of this issue, please permit me to express my personal views on it with my hoarse, unpleasant voice.

The CHEUNG Tze-keung case and the Telford Gardens murder case have become the subjects of public concern and also aroused our attention to the issues of rendition of fugitive offenders and mutual legal assistance across the boundary. It is true that since the implementation of the open door policy in the Mainland, there have been increasing contacts and exchanges between the peoples of Hong Kong and the Mainland, giving rise to many civil disputes, economic crimes as well as cross-boundary crimes. There is indeed an urgency in concluding a mutual legal assistance agreement in judicial matters between both places under the principle of "one country, two systems". As regards today's motion, I would like to concentrate on mutual legal assistance.

With the contacts and exchanges among the peoples of various parts of the world growing closer and closer, social concepts keep evolving, and the jurisdiction of a country or a place is getting less and less absolute and distinct. Concerning this, the Secretary for Justice has cited a number of very good examples which I would not repeat here. There is a need for the negotiation on mutual legal assistance among countries, particularly among neighbouring ones, in the face of problems of cross-border or cross-boundary crimes, or fugitive criminals. However, owing to the different political, social and economic conditions of different countries or places, the differences in their legal and judicial systems, as well as in their history of development, it is not an easy task to establish an agreement on rendition or extradition, and on mutual legal assistance between two countries or two independent jurisdictions. From today's discussion, everyone should have realized that this is indeed a very complicated matter. Take the case of Hong Kong's request for the extradition of a Mr LUI, former employee of the British American Tobacco China, from the United States to stand trial in Hong Kong as an example: Although both Hong Kong and the United States practise the common law system, it still had gone through many twists and turns and a tedious procedure before he was finally brought back to Hong Kong. It is certainly even more difficult for Hong Kong and the Mainland, each practising a completely different legal system, to negotiate for a mutual legal assistance agreement. Although there are some model treaties in the international community available for reference, it still entails appropriate arrangements made in accordance with the practical situations of each sides before an agreement that is to the best interests of both on the basis and with due respect to the other's independent jurisdiction can be made.

Madam President, given the lack of a mutual legal assistance agreement between Hong Kong and the Mainland, we can only deal with the issue on a case by case basis through administrative measures. According to the information provided by the Security Bureau, as mentioned by many Members earlier, the present arrangement is one-way, which is limited to renditions from the Mainland to Hong Kong. This situation of non-reciprocity seems to be unfair to the Mainland. Nor is it desirable.

Madam President, other than the entirely different legal and judicial systems of Hong Kong and the Mainland, we should also note that these systems do not remain stagnant, but keep developing instead. As our legal system evolves from the one under the British rule to the present autonomous "Hong Kong people ruling Hong Kong" under the "one country, two systems" model, many laws have undergone an adaptation process and new ones formulated. At the same time, under the open door policy, the legal and judicial systems of the Mainland are developing and improving even more rapidly. For example, there will be a jury system and the enactment of a law on the justices and so on. Therefore, it seems impractical to demand for an agreement to rigidly set down the terms on the rendition of suspects or fugitive offenders, or even on mutual legal assistance within a short time. Neither will it do any good to both places. Some colleagues have also said that a wrong agreement is even worse than not having an agreement at all. Therefore, I think that both places should conduct more negotiations, accumulate more experience and sum up more cases before a comprehensive agreement can be concluded stage by stage.

I suggest that we should start from the pragmatics and do the following first:

1. enhance the communication between the local and the mainland judiciaries, and establish an effective channel for such;

2. set an agenda for the SAR Government and the Central Government to discuss the mutual legal assistance; and

3. conduct discussions on the scopes and boundaries of both sides' jurisdictions.

Madam President, it has only been a short time since the reunification of Hong Kong with China. Although the Basic Law has vested an independent jurisdiction in the SAR, I believe that there are still some grey areas as to how the actual relationship between the two independent jurisdictions stands and how the relevant provisions in the Basic Law are implemented; and there may well be conflicts here and there. Therefore, there is need for the two places to keep groping for experience and pursuing perfection in a normal manner. From this perspective, it is understandable that there have been inadequacies in the handling of the CHEUNG Tze-keung and the Telford Gardens cases by the Hong Kong officials. I believe that had there been more transparency and had the Government explained it more clearly to the public, the people's anxieties could have been greatly reduced. However, it is far too exaggerated to politicize the two cases and deduce that the SAR's jurisdiction has been infringed upon.

In respect of the CHEUNG case, since it is apparent that the crimes were committed in two places, and considering the fact that the suspects were apprehended in the Mainland, is it not an internationally recognized principle that the mainland authorities could exercise priority jurisdiction and proceed with the legal procedures? As for the Telford Gardens murders, it hinges on how the term "outside the territory" in Article 7 of the Chinese Criminal Law is interpreted. I think that the highest authority to interpret this point lies with the Standing Committee of the National People's Congress and the mainland judiciary. Of course, the officials, the legal profession, politicians and even the general public in Hong Kong can all express their views on this but after all the authoritative opinion should come from the two organs mentioned above. Would it not be too hasty of us to jump to the conclusion now? In moving this motion, Mr Martin LEE intends to lead this Council to pass a verdict and conclude that the jurisdiction vested in the SAR by the Basic Law has already been eroded or the Hong Kong people have lost confidence in the SAR's jurisdiction. I feel that this is somewhat too much an arbitrary assertion. Thus I cannot subscribe to the motion.

The amendment of Mrs Miriam LAU seeks to relieve the anxiety of the people of Hong Kong. That is a good motive. However, I wish to point out that the first and foremost purpose of reaching an agreement on the rendition of suspects is to stop the criminals from escaping from the long arm of the law and let justice prevail rather than to limit it to enhancing Hong Kong people's confidence in our jurisdiction. It is only correct that the agreement is founded on the principle of reciprocity, fairness and reasonableness.

Madam President, I so submit.

MR CHEUNG MAN-KWONG (in Cantonese): Madam President, I would like to talk about my views and feelings about the handling of the CHEUNG Tze-keung and the LI Yuhui cases by the Government of the Hong Kong Special Administrative Region (SAR).

My first feeling is profound sadness. I recall that many years ago, Mr T K ANN once said something that many friends of the democratic camp and I agreed and we were also greatly touched by it. He said that Hong Kong needed "to be ruled by the law of Hong Kong". It is crucial that Hong Kong is ruled by the law of Hong Kong. Everyone has a different idea about the pace of democratic development in Hong Kong but our insistence on the rule of law is essential to maintaining the stability and development of Hong Kong. Today, Mr Martin LEE has said that "officials have six mouths" meaning that they have given totally different versions of explanations at six different stages. With each explanation of them, I was left with the impression that the SAR Government had betrayed the rule of law in Hong Kong, a most saddening conduct. In fact, when Miss Elsie LEUNG was explaining the meaning of "territory" the other day, I did not raise any questions for I was totally disheartened and nothing could be sadder than that. I told the Honourable James TO that I was totally disheartened. How can one clearly and simply interpret the "territory of a country" as the "territory of its jurisdiction"? Would those in the legal profession please tell me. I was so disheartened and heart-broken that I disdained to raise questions or pursue with the issue.

Second, I have been overcome with regrets. I regret that the SAR Government has not done its utmost to secure the rendition of LAU Kwok-wah for trial in Hong Kong. What was LAU Kwok-wah accused of? It was illegal transportation of explosives. LAU Kwok-wah, who used to live in Lam Tin, is obviously and without doubt a citizen of Hong Kong. According to the indictment of the mainland court, his crime was merely to "drive a lorry loaded with explosives to No. 95 Sheung Wo Village, Lau Shui Heung, and unload the explosives into the house with CHEUNG Tze-keung and his gang." A Hong Kong citizen had driven a Hong Kong registered lorry in Hong Kong and broken the Hong Kong law but was arrested in the Mainland. On what account was the SAR Government not able to secure the rendition of him for trial in Hong Kong? 128 people have been rendered for trial in Hong Kong since 1990, why was the Government unable to do so this time around? The car thieves were sent back together with the stolen vehicles to stand trial in Hong Kong in the past, why was LAU Kwok-wah not treated likewise? This case alone has well given us regrets already. Even if rendition was impossible, has the SAR Government requested the Chinese Government not to try LAU as his crime was obviously committed in Hong Kong? The SAR Government could not even give a clear explanation under what principle this case was handled this way.

The third is an appeal. I would like to make an appeal to the Honourable Miss Christine LOH and the Liberal Party. The Liberal Party and the Democratic Party hold different views on many issues, such as people's livelihood and democracy, but we have always had a very similar view and even insistence on one thing — the rule of law. The Honourable Ronald ARCULLI has examined many bills, which has won our deep appreciation. In respect of this incident, Mrs Miriam LAU has also disagreed with the SAR Government's interpretation of Articles 6 and 7 of the Chinese Criminal Law. Her point also coincides with Mr Martin LEE's. It is based on this point of view that Mr Martin LEE expresses his regrets at the SAR Government. Why can we not stand on the same front, particularly on the issue of the rule of law? Therefore, I very much hope that the Liberal Party can have second thoughts on this.

Fourthly, I wish to clarify two things. The first is the incident about the ferry Guia. The incident took place at a spot where the fresh water met the sea water, a spot where neither China, Hong Kong nor Macau could be sure which water it was. Guia was hoisting the Macau flag at that time. In that incident, China, Hong Kong and Macau all arrested some offenders, and the ultimate decision was each to carry out its own trials. Why? That was because the incident took place in the sea where no boundary can be set. As we cannot determine what water of what country by the colour of the water, no rendition could be carried out. In the end, without a resolution on how rendition could be done, each resorted to trying the offenders it arrested.

Another incident concerned a British navy man not being extradited back to Hong Kong for trial after killing an Australian. Perhaps the Honourable Gary CHENG did not know about it but Mr James TO had clearly mentioned that he had handled the case. We just cannot say that Mr James TO's handling it cannot be considered as the efforts made by the Democratic Party or by Mr Martin LEE. Things cannot be interpreted this way. This is only a matter of no knowing it. Everything will be fine after a clarification.

Lastly, I would like to respond to the Honourable MA Fung-kwok's view. He suggested that the views of us, obviously meaning the Democratic Party, or even including Miss Margaret NG and the Frontier, could rock the people's confidence in the rule of law in Hong Kong. This is just not correct. What rocks their confidence in Hong Kong's rule of law is not what we say, but rather the facts on which we have based our comments. How many people would have their confidence shaken by unfounded rumours? Their confidence is shaken mainly because such views are based on facts, based on the LAU Kwok-wah and LI Yuhui cases, and based on the views of the SAR Government and the arguments it gave when it compromised its own judicial jurisdiction. People's confidence is shaken only by the facts, and the facts alone.

Our friends from the Democratic Alliance for the Betterment of Hong Kong certainly agree that the rule of law is the foundation of Hong Kong's stability. But on the issue of the rule of law, we should not "kill the hen to get the eggs". In this incident, those who feel the most frightened are not members of the Democratic Party but the businessmen, including those of Hong Kong, who have businesses on both sides of the boundary. Has it ever crossed your mind that Hong Kong businessmen will be scared for they never know that what normal business activities they conduct in Hong Kong could possibly see them end up getting arrested and put on trial in the Mainland and no one would fight for their rendition? Moreover, Hong Kong is serving as a showcase to Taiwan and even to the whole world politically, economically as well as with respect to the rule of law. China may not wish to see the decline of the rule of law in Hong Kong, but first we have to stand firm on our own rights. If we cannot stand up for the rule of law in Hong Kong ourselves, it is simply out of the question to expect others to believe our conviction to it.

Thank you, Madam President.

MR JAMES TO (in Cantonese): Madam President, only three Members from the Democratic Party intended to speak originally but now six or seven have spoken. Now, there should not be any points left that we have not been responded to or refuted. I would like to talk a little about my feelings on this issue. I should have talked about my views but now I have decided to talk about my feelings because many Members have spoken on other aspects already.

In the past few days, I have been asked by reporters about my view on this issue. I do feel quite sad about it. From the views, analysis and lame arguments advanced by SAR officials, I have come to the conclusion that the Central Government in Beijing would have given a more cautious and prudent consideration than SAR officials with regard to Hong Kong's need to take the overall situation into account in respect of this issue. If the Central Government does not accept the ideas such as the workers' right to collective bargaining, the freedom of forming trade unions and of association in the International Labour Convention, it would rather not sign it. As far as I understand it, it had studied the International Covenant on Civil and Political Rights for almost 10 years and intended to sign it before 1989, but ended up not signing it subsequent to the June 4 incident. And now it has reconsidered it and finally signed it. As for how the Central Government looks at Hong Kong, its purpose is not to look for a couple more political prisoners. Its present policy is that it had better oust all political prisoners out of China. It would not want to arrest a few criminals from outside the country to execute them just because it has the capital punishment.

In the CHEUNG Tze-keung case, the Central Government may have been a little arbitrary in its dealing. It may have even acted on a good subjective motive, that it is to help Hong Kong. But it might have failed to see ─ because it was unlikely that it had such vision ─ that there is a price to safeguard the rule of law. It thought that it was doing us a favour but it has turned out that the action has led to many side effects and subsequent problems. Many Members have enthusiastically expressed their views today. Actually I hope that the Government can listen to and take on board a few of our points. Although we have disagreed on many things during the discussion, there are points on which we can see eye to eye. Those who have put forward these points include the Honourable Jasper TSANG and Prof the Honourable NG Ching-fai and even the Honourable Ambrose LAU. They all send out the same message that extreme care must be taken in handling this issue. Miss Margaret NG has put it very plainly that it is better not to deal with the problem than to mess it up. In fact, how many cases have we got which required the rendition of mainland citizens to Hong Kong? There may not be many such cases as the LI Yuhui one. Hong Kong has yet to turn into such a place. But the problem is, as everyone is aware, that this has great implications on public confidence. Therefore, many Members have stressed that the Chinese Criminal Law does not apply in Hong Kong, a point which is also stipulated in the Basic Law. However, according to the interpretation of the Secretary for Justice, Miss Elsie LEUNG, this Chinese Criminal Law has been implemented indirectly in Hong Kong already.

The Honourable CHEUNG Man-kwong has said just now that those who frequently travel between the Mainland and Hong Kong, especially those who have business in both places, may have the greatest worries as they frequently need to enter into joint venture agreements part of which is enforced in Hong Kong and the other in the Mainland. But if when the capital has not yet reached the other party, they may be mistaken that fraudulence is involved and it often becomes a criminal offence in the Mainland. The one suspected of fraud may be taken to stand trial in a non-central court. If the governing authorities of a certain place are very tough, like a local tyrant, the court there may come under their control. This is exactly what Hong Kong people are worried about ─ the scope of application of the Chinese Criminal Law. According to the interpretation of the Secretary for Justice, Hong Kong businessmen may have to face trials in the Mainland today, tomorrow or on any future days as a result of this. That, of course, has great implications on their confidence. There are many businessmen in Mr Ambrose LAU's party, are they not aware of that? Dr the Honourable CHUNG Sze-yuen has also met with many people from the business sector and he has also suggested that perhaps we should deal with those easily distinguishable cases first. According to him, the easily distinguishable cases involve those who have no problem coming back to Hong Kong after visiting the Mainland, or those mainland citizens who have broken the law in the Mainland and can be deported back to the Mainland even if they are in Hong Kong as that only involves sending the people back to their own places to stand trial. Such cases can be dealt with first. Nevertheless, cases involving the rendition of Hong Kong citizens to the Mainland have to be handled with enormous caution. Dr CHUNG has seen the problem clearly and understands people's worries. However, what has made us, the Democratic Party, disheartened is the attitude held by SAR officials all along. These people have made no effort whatsoever to safeguard our rule of law and jurisdiction. Such an attitude has undermined my confidence in them to the point that I become more confident of the cautious attitude of the officials of the Central Government than of them.

So far, the Mainland Government has never attempted to expound the version of Chinese Criminal Law as interpreted by Miss Elsie LEUNG or the officials under her, or the concept of jurisdiction. Prof NG Ching-fai said that the Standing Committee of the National People's Congress was in the best position to expound it. I also hope that the Standing Committee will make some comments, for I could never believe that the Standing Committee would give us something like the theories put forward by Secretary Elsie LEUNG. The Standing Committee is very prudent about their actions for they know that once they make any comment on it, there will be great implications outside the country; not only on Hong Kong but Macau and also Taiwan and the people there will lose confidence. Right now, we can only depend on the interpretation of the SAR officials. But they, for the sake of their own convenience, and in order to stop us from making requests, or perhaps they have no confidence in themselves or in the mainland authorities, dare not stand firm on their grounds and dare not do their best to fight for the rights vested in us by the principle of the division of powers in the two places as stipulated by the Basic Law. This is the most worrying, disheartening and disappointing thing to me. The other day when I was talking to Mr Martin LEE on the phone, I said, "I feel very disappointed. Having fought for democracy for so many years ─ you, our seniors, have dedicated even longer time ─ I have never felt so disheartened as today, because our officials have actually betrayed and yielded our autonomy. What is left for us to fight for?" If the Mainland Government uses force, we can still stand up to fight and refute them. But now it is our own people who ruin our business, how can it not be disheartening? This is what, "There is nothing sadder than being totally disillusioned," is like.

Therefore, I hope that even if the SAR Government really wishes to second guess the intention of the Mainland Government before taking actions, it should make a greater effort to figure out what they are thinking before setting any restrictions, self-censoring and giving up the fight for our own rights.

Madam President, one very ridiculous thing is that the same situation also appeared in regard of a site in the loop of the Shenzhen River that we mentioned in the oral question earlier on. Why can we not openly state that under the Basic Law, the control over this site belongs to us? This is a clear-cut and indisputable fact. But why have they stopped short of stating it? Why? This is because they say they are afraid that it will ruin the relationship with Shenzhen and instead they say that perhaps we should discuss it first. This is exactly what I am most worried about, that is, when we betray our rights ourselves, there is nothing whatsoever we can do to remedy the damage.

MR NG LEUNG-SING (in Cantonese): Madam President, many Members have spoken on whether or not the people of Hong Kong still have confidence in the present judicial system. From the businessmen that I have come in contact with and the views that I have heard from them, so far I still find that they are vastly confident. I have never heard them say they fear that they would break the law in the Mainland out of carelessness and cannot be rendered back to Hong Kong after arrest. Whatever, this issue has been widely discussed in Hong Kong, giving rise to various points of views for our reference. As regards the CHEUNG Tze-keung case that has caused so much public concern, no one has ever reported the case to the police according to the reports, hence it does not seem to constitute a case as far as the rule of law is concerned. Since the crimes indeed took place in the Mainland, it is indisputable that the mainland judiciary has jurisdiction over the case in accordance with the territorial principle provided in the Chinese Criminal Law. Therefore, even though some of the people involved in the case were Hong Kong residents and Hong Kong courts may also have jurisdiction over them, in accordance with the general practice of dealing with conflicts over jurisdiction, it is also reasonable for the country where the suspects are arrested decides to exercise its priority in jurisdiction. And in this case, the suspects were arrested in the Mainland. This is also a point that other jurisdictions should respect. Hong Kong, as a Special Administrative Region of China, enjoys independent jurisdiction and has to observe also this practice in dealing with such matters.

There are diverse legal points of view in the community over whether the Mainland has jurisdiction over the Telford Gardens murder case. Some Members have mentioned earlier that the "territory" in Article 7 of the Chinese Criminal Law includes Hong Kong and "the citizens of People's Republic of China" covers Hong Kong residents; therefore we cannot apply the active personality principle stipulated in this Article to the Telford Gardens case and use this as the legal basis for the Mainland's jurisdiction over the case. This is only one of the legal viewpoints. Another viewpoint holds that the "citizens of People's Republic of China" stipulated in Article 7 refers to the subject body to which the Chinese Criminal Law applies and "territory" refers to the scope in which the Chinese Criminal Law is effective. This interpretation basing on the jurisdiction is in theory a realization of the principles of "one country, two systems" and the independence of Hong Kong's jurisdiction. Looking at the principles alone, independent of individual cases, it is worth an in-depth study in respect of whether the terms "citizens of People's Republic of China", "territory" and other similar references in mainland laws should contain certain implicit variations under the practice of "one country, two systems". We should conduct a serious and comprehensive review on the conflicts arising from the mainland law involving the jurisdiction of Hong Kong, and work with the mainland authorities for a systematic solution. To use individual cases as a guide for our interpretation, I am afraid, would deprive our policies on the legal system of completeness and system.

In principle, I consider it a policy direction to conclude as soon as possible rendition arrangements between both places. In fact, the Hong Kong Government is proceeding with this. But the arrangements must be comprehensive and acceptable to the majority of the people of Hong Kong. We have to consider the question of reciprocity in terms of the offences, punishment and procedures of giving evidence on the one hand, and take care on the other not to leave a vacuum in the law and loopholes that may give rise to the possibility of the so-called connivance of and harbouring the fugitive criminals. For example, CHEUNG Tze-keung committed a crime in Hong Kong years ago but was able to escape punishment through legal technicalities.

The Hong Kong people's confidence in the SAR's jurisdiction is built sensibly on the explanation based on facts and jurisprudence. I think that the handling of the CHEUNG Tze-keung and Telford Gardens cases was not a political issue of whether or not the SAR Government had compromised its jurisdiction. Rather it is a question of whether or not legal arrangements can be made to settle the conflicts over jurisdiction under one country. We have no reason to lose our confidence in the SAR's judicial jurisdiction. Basically, as I have said, many businessmen would not lose their confidence as a result of the CHEUNG case. What we must do now is to further strengthen Hong Kong people's confidence in the practice of "one country, two systems" and the SAR's jurisdiction by the conclusion of satisfactory rendition arrangements through the co-operation of both places. Here, with these remarks, I support the amendment.

PRESIDENT (in Cantonese): Does any other Member wish to speak?

(No Member indicated a wish to speak)

PRESIDENT (in Cantonese): Mr Martin LEE, you may now speak on Mrs Miriam LAU's amendment. You have up to five minutes to speak.

MR MARTIN LEE (in Cantonese): Madam President, actually I do not mind letting the lady speak first. I thank the many Members who have expressed their views but I have not heard Mrs Miriam LAU explain why she has sought to amend my motion, or what is wrong with my motion. When she talked about Article 7 of the Chinese Criminal Law, she actually shared our views. She did not agree with the Secretary for Justice about the interpretation of the concept "territory" and indicated that this should be amended instead of being given a far-fetched explanation. Given that, all she needed to do was to remind herself that the person who offered that argument was not an ordinary citizen but the Secretary for Justice who represented the Government, and then she would agree to my expression of regrets on the Government. It is a shame that Mrs LAU forgot or did not want to hear the Secretary speak those words personally. But today the Secretary has very honestly reiterated her stance, so Mrs LAU should have no further questions.

I appreciate the Honourable Andrew CHENG for having spoken today despite the ulcers in his mouth. The same goes for Prof the Honourable NG Ching-fai for having spoken in spite of his hoarse voice, but his voice is sexier this way.

I wish to respond to the Secretary's interpretation of "territory". She pointed out that the term "territory" instead of "territorial land" is used in the law. By that she caught my attention. So, I looked up Article 6 which refers to the issue of "territory". But the interpretation given by the Standing Committee of the National People's Congress who has the right to interpret laws states, "This article circumscribes the scope of which the term "territorial regions" in the Criminal Law is applied." Is this not clear enough? It then goes on to say, "The territory of the People's Republic of China stated here refers to all regions within the boundary of the People's Republic of China, including its territorial land, territorial waters and territorial air". Frankly speaking, even a Primary 3 pupil would not have given such an explanation. He will certainly take a look at the map first. If the People's Republic of China is represented in pink, then all the pink patches on the map represent the land of China, that is, its territory. How can it be interpreted as its jurisdictional region? This totally baffles me. Such a lame argument could have been given by a government official, it is no wonder why so many Members are so disappointed and disheartened.

The Secretary for Justice questioned how we could ask for rendition without legal grounds. The Honourable Jasper TSANG also held the same argument. I recall that when I was a member of the Basic Law Drafting Committee ─ there are few members of that Committee in this Chamber ─ Mr LU Ping told me that he did not agree to include this point in the Basic Law but would only deal with the issue on a case by case basis. Here is where the problem lies. If we are to deal with it on a case by case basis, the Hong Kong Government will have to request the mainland authorities for the rendition of suspects. If we do not make such a request, we would of course not get it for no one knows what we want. Someone has also questioned whether the Hong Kong Government made such requests during the British Hong Kong Administration. Why is the practice so? Mr Jasper TSANG has also asked me the same question. Of course the British Hong Kong Government has made such requests before; otherwise how could the present arrangements have come about? For Hong Kong citizens having committed crimes in Hong Kong, if the mainland authorities do not put them on trial, they will render them to Hong Kong. But the request has to be initiated by Hong Kong, otherwise rendition will not take place. What exactly has happened to the SAR Government that it did not even dare to ask?

Mr MA Fung-kwok and Prof NG Ching-fai have criticized us for politicizing the issue. In fact, many issues are politicized. For example, the question on littering in Central asked by Prof NG Ching-fai earlier today was also politicized. If it was unimportant, it would not have been brought up in this Council for it might well be left to the two Municipal Councils that are about to be "exterminated". What is "politicization"? Whatever affects the public is a political issue; whenever there are major problems, we have to bring them up; and whenever the Government deals with them improperly, our duty is to criticize it. I am not afraid that people would criticize me for politicizing issues. I just find it absurd that they would object my motion with such a reason.

Mr Jasper TSANG has also spoken on logic. I am very interested in discussing logic with him. He has asked how we can request for anything without an agreement. I have already answered that. He has also asked whether there is the need for an agreement if one can request for something without an agreement. This is very simple. Without an agreement, the power lies with the Central Government and the rendition of suspects hence depends totally on its preference. But if there is an agreement, both sides must observe the agreement and cannot do things as they please. It is that simple, but even so, his is not clear about it. That really puzzles me.

I do not wish to speak any further. (Laughter) Madam President, what I can only do is to let Members decide whether or not to support my motion and I cannot do anything even if they do not. I really wonder why my motion should warrant an amendment. What is wrong with it?

SECRETARY FOR SECURITY (in Cantonese): Thank you, Madam President, I am very pleased to respond to the views put forward by Honourable Members.

First of all, I would like to respond to the case reconstruction by Mr Martin LEE. My first comment on this case reconstruction is that it is too much of a hearsay and has totally disregarded the efforts we made during a closed-door meeting held by the Panel on Security of the Legislative Council in early November where we provided information on the CHEUNG Tze-keung case, and in particular the hard work made by the police in investigating this case as well as that made by the Government of the Hong Kong Special Administrative Region (SAR) in advising the victims concerned to report the cases. This I feel is very unfair to us and I am very disappointed.

Another point for which I must express my disappointment is that in Mr Martin LEE's case reconstruction, there is a strong hint that the officials of the SAR Government were flattering the central authorities and collaborated with the Mainland Government to intentionally abandon the investigations into the CHEUNG Tze-keung case and compromised our jurisdiction, and I think Mr James TO has made a similar accusation earlier on. Accusations like these are a great insult to the integrity of the officials of the SAR Government, including my own. In my opinion, these are totally unfounded accusations.

Just now the Secretary for Justice has elucidated certain judicial principles and considerations of the way we handled cases such as the CHEUNG Tze-keung case and the LI Yuhui case. What I wish to do now is to provide further information on these cases. For the CHEUNG Tze-keung case, as I have said on a number of public occasions, it is beyond any doubt that if CHEUNG Tze-keung was arrested in Hong Kong and if the police had sufficient evidence, we would certainly have initiated the prosecution here in Hong Kong. But the fact is, when CHEUNG Tze-keung left Hong Kong for the Mainland this January, the Hong Kong police still did not have sufficient evidence to bring charges against him. Just now Mr LEE also raised the question of whether a warrant was issued for CHEUNG's arrest. The fact is when he left Hong Kong, we had not gathered enough evidence to make the move at that time to issue an arrest warrant against him. Therefore, he was free to leave Hong Kong. The Government did not have any intention to arrest him at that point in time or make a prosecution against him arbitrarily. The handling of the matter was completely in line with the spirit of our judicial system. Afterwards, CHEUNG Tze-keung was arrested in the Mainland and the authorities there initiated their judicial proceedings. In accordance with the situation in which more than one jurisdiction is competent to try the suspects present within its jurisdiction, and given the practice of giving priority to the party who first handles the case, we did not ask the Mainland to send CHEUNG Tze-keung back to Hong Kong to stand trial. This is entirely in keeping with the way we handle cases which we share a concurrent jurisdiction with other jurisdictions. Let us take a look at the way the Canadian Government handled the Charles NG case of mass slaughter and abuse. In that particular case, Charles NG broke out of the Californian jail and fled to Canada where he was arrested after injuring a person with a gun. The Canadian Government did not work for his extradition to the United States right away, but started to do so only after completing prosecution against him and even to the extent of after he had served his four-year sentence. Therefore, even if Charles NG had allegedly committed murder in the 1980s, the work for his extradition to the United States began only in the 1990s. This case shows that more than one jurisdiction can have jurisdiction over the same offender. It is a general practice for the jurisdiction which first arrests that particular offender to enjoy the priority of exercising its jurisdiction first. This is a common international practice. There is no question of infringing on the jurisdiction of other places. The way Hong Kong and the Mainland handled the CHEUNG Tze-keung case was no different from the way Canada handled the Charles NG case by adhering to the principle of giving priority to the party which first handles the case. There was no way where the courts of Hong Kong or those of the Mainland were more competent than the other and hence overriding the other. The SAR Government did not compromise its jurisdiction to the detriment of the judicial system of Hong Kong.

A few Honourable Members have referred to the LAU Kwok-wah case earlier on. We understand that many people would just look at the indictment and the verdict and feel that he was tried in the Mainland simply because of his criminal activities in Hong Kong. But we need to know that the judicial system of the SAR and that of the Mainland are different, and as mentioned by many Honourable Members just now, there exists a gap of development between the judicial systems of both places. If we simply rely on the yardstick of Hong Kong and look at the wording of the indictment and the verdict alone, to make a judgment on whether he was tried in the Mainland for his offences in Hong Kong, then such inference is inappropriate. I wish to reiterate, as far as we know, that LAU Kwok-wah was tried in the Mainland not because of his breach of the laws of Hong Kong, but he was actually involved in and did take part in the planning of certain offences in the Mainland and he was tried in the Mainland for the offences he committed there. This was based on information obtained by the Hong Kong Police, including information obtained from sources in the Mainland when investigation was made into the case, together with the information obtained when representatives of the police attended the trials and confirmed by the clarification we subsequently made with the authorities in the Mainland.

I would like to make use of this opportunity to respond to a few points raised by Miss Christine LOH, such as whether the suspects in the CHEUNG Tze-keung case can be rendered to Hong Kong according to some informal rendition arrangements. The answer is no. For the current informal arrangement is only applicable to Hong Kong people who have committed offences only in Hong Kong and the Mainland has not initiated any prosecution proceedings against such offences.

As for the Telford Gardens case, since it happened in Hong Kong, the SAR definitely has jurisdiction over it. If the suspect LI Yuhui was arrested in Hong Kong, and if we had sufficient evidence, we would surely have begun the prosecution. But the question is, he was arrested in the Mainland. In other words, before we had a chance to prosecute him, the mainland authorities had already started the investigations. And since he is a resident of the Mainland, the Mainland has jurisdiction over him. Another difficult problem related to this case is that we have not yet set up any statutory mechanism with the Mainland on arrangements to render residents of the Mainland to Hong Kong. The informal administrative arrangements that we are using are quite limited and one-direction only. Under these arrangements, certain fugitives are rendered by the Mainland to Hong Kong, but these arrangements can only be applied to those Hong Kong residents whose offences are committed entirely in Hong Kong. If these suspects are also involved in offences committed in the Mainland, they can only be sent back to Hong Kong upon completion of the judicial proceedings of the Mainland. Just now some Honourable Members questioned why we had not made a special request to the Mainland with regard to the LI Yuhui case, such as giving some people "a pat on the shoulder" and ask them to forget the laws of the Mainland and not to care whether there are any statutory mechanisms and render the suspect to us. If this is the case, we must be prepared to make reciprocal arrangements to entertain requests made by the Mainland to render Hong Kong residents for trial in the Mainland. In fact, as I have repeatedly clarified, with regard to our bottomline, the Government's stand is very firm, both before and after the reunification. Before we have any statutory arrangements, we will not render Hong Kong residents to the Mainland rashly for we think that it is very imprudent to handle cases in this way in the absence of any formal arrangements and proper protection. So after careful consideration, we decided not to give the Mainland a "pat on the shoulder" and ask the officials there to render LI Yuhui to us. For this will destroy the rule of law and replace it by one in which personal relationships and favours dominate.

Moreover, I wish to emphasize that the police have put great efforts in these two cases and these efforts have not become lax after the suspects have escaped from Hong Kong. As for the queries raised by many Honourable Members on the kidnappings, I can also stress that, as the Commissioner of Police has said on some public occasions, the Hong Kong police is definitely capable of fighting serious crimes, especially kidnappings. The Commissioner has also said that over the past two years, the successful detection rate for kidnappings was 100%. Of course, we regret that the persons involved in the alleged kidnappings did not report to us, but we can assure every Honourable Member that the Hong Kong police is certainly capable of handling serious crimes and detecting kidnappings successfully.

On the issues of the jurisdiction of the Mainland arising as a result of these two cases, we have exchanged our views with the relevant authorities in the Mainland. We realize that if the offences committed by Hong Kong residents are entirely done in Hong Kong, then according to provisions in the Basic Law, all the public security organs, people's procuratorate and people's courts would have no jurisdiction over such cases. No doubts about it. There will never be any case where the Chinese Criminal Law and Law of Criminal Litigation will be invoked to investigate, prosecute and try the suspects. It is not so now and shall never be. The judicial authorities in the Mainland respect the autonomous jurisdiction of Hong Kong. The courts of the SAR have jurisdiction over all offences committed against the laws of Hong Kong by Hong Kong residents. In the press conference held last week after the trial of second instance of the CHEUNG Tze-keung case, the President of the Higher People's Court of the Guangdong Province made a similar statement, I hope the people of Hong Kong can rest assured.

The second part of the motion moved by Mr Martin LEE urges the Government to expeditiously discuss and conclude an agreement on rendition arrangements between the Mainland and the SAR on the basis of internationally accepted principles. The amendment made by Mrs Miriam LAU urges us to ensure that the agreement thus reached can fully address public concerns. In a meeting of the Panel on Security held on 3 December, I briefed Honourable Members on the direction and views adopted by the Government in dealing with the conclusion of arrangements with the Mainland on the rendition of fugitives. Our stance is basically in conformity with the principles put forward by many Honourable Members today.

The Government completely agrees that the absence of any formal rendition agreement with the Mainland at present is far from being satisfactory. We would not like to see Hong Kong turn into a refuge for offenders and what is more, the security of Hong Kong being threatened.

Before the reunification, we started to liaise with the relevant authorities in the Mainland and we had initial discussions with them on the issue of the rendition of fugitives. After the reunification, we continue with our efforts in this respect. The recent CHEUNG Tze-keung case and the LI Yuhui case have aroused great public concern and brought to fore the urgency of a formal rendition agreement between Hong Kong and the Mainland. The Government will fast-track work in this respect, in order that an agreement may be concluded with the Mainland on this most important issue soon. But as many Honourable Members have cautioned, we must handle the issue with extreme care because there exists a great difference between the judicial systems of both places. As Honourable Members may understand, it is never an easy task to reach a set of arrangements which is feasible and acceptable to both parties.

I am very pleased to make use of this opportunity today to reiterate the following five important principles adopted by the Government in concluding rendition arrangements with the Mainland:

(1) Any arrangements made shall conform to what is prescribed in Article 95 of the Basic Law, that is, the SAR may, through consultations and in accordance with law, maintain juridical relations with the judicial organs of other parts of the country, and they may render assistance to each other.

(2) Such arrangements shall be implemented through and in accordance with legislation.

(3) Such arrangements shall be acceptable to both Hong Kong and the Mainland. The kind of rendition arrangements we wish to conclude should be in both directions.

(4) The arrangements must address the differences in the legal and judicial systems of both places. Under the principle of "one country, two systems", we must respect each party's laws and systems. Besides, we need to prevent offenders from getting away with their offences while the rights of individuals must be protected. The usual protection clauses and procedural safeguards found in the rendition agreements we have concluded with other jurisdictions are reference materials which we value highly.

(5) Any arrangement thus concluded shall conform to what is prescribed in Article 19 of the Basic Law, that is, the courts of Hong Kong shall have jurisdiction over all cases in the SAR. At the same time, when we discuss rendition agreements with the Mainland, we must formulate some principles to deal with situations where a case is subject to two jurisdictions concurrently.

First, about the clauses which seeks to protect human rights. According to what is prescribed in Article 39 of the Basic Law, the provisions of the International Covenant on Civil and Political Rights as applied to Hong Kong shall remain in force. Our laws and policies shall be in conformity with these provisions. Under this major premise, our objective is to reach an arrangement which includes proper procedural safeguards. We will certainly make use of internationally recognized principles as a basis. As I have said, when we draw up some arrangements with the Mainland on the rendition of fugitives, we will make reference to the usual safeguards found in the rendition agreements we have already concluded with other jurisdictions. These safeguards include double criminality, specified crimes, no onward transfer to a third country, plus other safeguards on the handling of the issue of death penalty and giving immunity to political offences. We will also refer to the practices of other countries in these respects. I wish to emphasize one more point: It is not practical at all to require us to make a wholesale adoption of every word in the model treaty to any regional arrangements. If the world can adopt the model treaty on extradition as recommended by the United Nations without changing even a single word, then there will not be any need for a place or a country to engage in discussions with other places or countries before an agreement is concluded. Every country may as well sign only one multi-lateral international agreement, then all problems will be solved. But since each place has its own system, it is impossible to have just one agreement applicable to all. Like the rendition agreements and agreements on mutual legal assistance we have signed with other countries, although these are based on the model treaty, in many cases amendments are made as necessary, given the different legal systems of the signatories and their internal arrangements. The ultimate consideration is to ensure that these amendments will best suit the overall interests of both parties.

Many people are deeply concerned about how the issue of death penalty is handled. Since there is a disparity between Hong Kong and the Mainland with regard to the policies and laws on death penalty, it is very difficult to conclude rendition arrangements concerning fugitives who have committed crimes punishable by death penalty. We must be very careful in this regard.

The policy considerations of not practising the death penalty in Hong Kong are clear enough. Death penalty ceased to be practised in Hong Kong since 1966, and it was officially abolished through legislation in 1993. At present, we can see no need to restore death penalty. In the model treaty on the rendition of fugitives as applied to Hong Kong, the safeguards on death penalty are only optional provisions. However, there are very stringent requirements under the current laws of Hong Kong with compulsory provisions requiring that a pledge should be given before any rendition is made, to the effect that the person so rendered will not be subject to a death penalty or that the death penalty imposed on that person shall not be practised. Our current arrangement is far more stringent than those countries which do not implement this measure as something mandatory.

While I am not the one who know most about the reasons why before the reunification, the Hong Kong Government adopted this policy, I believe one of the grounds being considered at that time was the need to protect the lives of Hong Kong people and to reduce the possibilities of Hong Kong people being executed abroad. Needless to say, such a consideration is necessary. But at the same time, considering the need to maintain public order in Hong Kong, we should handle this problem in as objective and pragmatic a manner as possible. We also hope to refer to the practice of other countries and to find a way to solve this problem which is both acceptable to Hong Kong and the Mainland. From the ways certain developed countries have coped with the issue of death penalty, we can see that policies and considerations are different as far as the rendition of fugitives is concerned.

Finally, I must emphasize that the Government takes very seriously and understands the concern and worries of the public on this issue. In this debate today, Honourable Members have given us a lot of valuable advice which is very helpful to our drawing up of a feasible scheme in this respect. We shall soon begin discussions with the relevant authorities in the Mainland on how to draw up a feasible arrangement which can fully address the concerns of the public. Although it is not possible for us to disclose details of the talks to the public before they are over for fear that the progress of the talks may be affected, the public can rest assured that once we have finished our talks with the departments in the Mainland and have drawn up specific proposals, the Legislative Council will be consulted and the public will be informed of their details, for we need to have legal support before we can implement any proposal. By then the Legislative Council can scrutinize the proposals in detail through the various legislative procedures before accepting any scheme which is acceptable to the people of Hong Kong and approved of by the Legislative Council.

Thank you, Madam President.

MR ANDREW WONG (in Cantonese): Madam President, may I speak again after the public officer has spoken?

PRESIDENT (in Cantonese): Yes.

MR ANDREW WONG (in Cantonese): Thank you, Madam President. I was not prepared to speak. Although I have been absent from this Chamber for a prolonged period, please understand that I have been talking to people upstairs. I am in an awkward position right now because this debate may turn out to be fruitless. I hope that Members will understand the urgency of negotiating with the Mainland for rendition arrangements. The Honourable Martin LEE moved the motion, and the Honourable Mrs Miriam LAU moved an amendment to it. If Members do not support Mrs LAU's amendment, it may end up that Mr LEE's motion will not be passed either. So, in the end, neither the motion nor an amended motion will be passed. It will be quite "omenous" indeed to have both defeated.

That is why I did my very best to convince Members such as the Honourable LEUNG Yiu-chung and Miss Christine LOH to support Mrs Miriam LAU's amendment although I do not like the amendment very much as it deletes all the words about the regrets against the Government and hence water the whole case down. In fact the Government does not seem to have tried its very best in the case. I think this is a serious matter and now I am at a loss as what to do. I passed a note to Miss LOH and she wrote me back that she had asked Mr Martin LEE and they agreed that even if the debate bears no fruit, it is still acceptable as no one ever indicated they would not observe the internationally recognized standards about rendition or extradition. Under such circumstances, I find things very difficult and I must clarify my position.

My original intention was not to support Mrs Miriam LAU's amendment, but then I thought I should take the whole situation into account and give it my support. Not only that, I should also lobby others for support. Now I think that everyone should act on their conscience. I would like everyone to think and I also hope that Mrs LAU and Members from the Liberal Party can do the same. Is the original motion of Mr Martin LEE so unpalatable and unacceptable? Must we defeat it? The present situation is that everyone wants to defeat it.

I do not want to dwell on the CHEUNG Tze-keung case any more. Although part of that case was not related to Hong Kong, part of it did. Conspiring and planning a kidnap constitutes a crime in the Mainland, but not in Hong Kong because one may just bluff about it. In Hong Kong only when a kidnap has actually taken place can it be a crime. But the LI Yuhui case is obviously related to rendition. LI has no right of permanent residence in Hong Kong. He is a Chinese national. But he was not rendered to Hong Kong for trial after committing a crime here. Actually, in 1997 instead of 1998, or even before 1997 when the Chief Executive was still the Chief Executive (Designate) but called himself the Chief Executive, he should have thought about the matter. But so far there is still no arrangement and this is a much regrettable fact.

Therefore, I have had my thoughts reshuffled many times today. I wanted to tell Mr LEUNG Yiu-chung that I wanted to take back what I had told him. I hope Members from the Liberal Party could consider giving a strong message to the Hong Kong Government and the Chinese Central Government that rendition arrangements are an urgent issue. And all extradition arrangements that Hong Kong has made with other countries in the past must be dealt with too. By "other countries" I do not mean China as it is our motherland. Under the principle of "one country, two systems", rendition or extradition arrangements must be dealt with ("extradition" is used in relation to countries other than the Mainland and "rendition", to the Mainland) as soon as possible.

I do not want Hong Kong to become a haven for criminals but we must provide sufficient protection for Hong Kong citizens. We do not want to protect only those suspected criminals, who are Hong Kong citizens, when they are abroad as we are able to secure their extradition but leave those in the Mainland not rendered and hence not protected. I very much regret this position. I must apologize to Mrs Miriam LAU. Although we spoke to each other face to face for such a long time ─ in fact it was I who did the talking but not the other way round ─ I ask that everyone support Mr LEE's motion and oppose Mrs Miriam LAU's amendment as I think rendition arrangements are very important. Thank you, Madam President.

PRESIDENT (in Cantonese): Secretary for Justice, I grant you a special approval to speak for the second time because I believe many Members would like to hear your response.

SECRETARY FOR JUSTICE (in Cantonese): Madam President, I will not repeat my points. But I would like to dwell on those new legal issues which have been raised by a few Honourable Members which I have not dealt with before.

First, Miss Margaret NG mentioned some officials of the SAR who quoted the law wrongly to illustrate the grounds for jurisdiction over the CHEUNG Tze-keung case. I wish to read out from the press conference held on 5 December by the Higher People's Court of the Guangdong Province on the subject of jurisdiction in the CHEUNG Tze-keung case. It says, "The question of whether Hong Kong has any jurisdiction over this case and the right to trial has been said many times. Now we would like to do so once again. Some of the offenders involved in this case lived in Hong Kong and some lived in the Mainland. Their offences of the illegal trading of explosives, smuggling of firearms and ammunitions took place in the Mainland. The crimes which were committed in Hong Kong such as kidnapping and robbing goldsmiths' shops were planned and prepared in the Mainland secretly. That is to say, the preparatory acts of crimes which were later carried out in Hong Kong took place in the Mainland. In accordance with Article 6 of the Chinese Criminal Law, if one of the criminal acts or their consequences takes place within the territory of the People's Republic of China, then the crime shall be deemed to have been committed within the territory of the People's Republic of China. Article 24 of the Law of Criminal Litigation provides that jurisdiction over criminal cases falls with the People's Court of the place where the crime was committed. Therefore, the courts of the Mainland have full jurisdiction over the case and that cannot be disputed. Although the courts of the Special Administrative Region also have jurisdiction over the case, for cases like this over which different places have concurrent jurisdiction, the usual practice is that the courts of the place which first handle the case shall be competent to try the suspects involved. After the crimes had been committed, CHEUNG Tze-keung and others were arrested in the Mainland. A lot of evidence, both in the form of persons and matters, have been gathered in the Mainland or seized as a result of investigations. In such circumstances and under the above-mentioned provisions in law, the judicial organs of the Mainland have indisputable jurisdiction over this case. This is clear enough. As for worries that the Mainland would interfere with the cases that should be handled by Hong Kong, such a situation does not happen now and will not happen in the future. As for offences committed by Hong Kong residents which take place entirely in Hong Kong, according to provisions in the Basic Law, the procuratorate and the courts of the Mainland have no jurisdiction over such cases, and the judicial organs of the Mainland fully respect the autonomous jurisdiction of Hong Kong, and that the courts of the Special Administrative Region have jurisdiction over all offences committed by Hong Kong residents in the Special Administrative Region." This is in conformity with two of the three points which I mentioned in the press conference on 3 November.

As for the legal grounds for the jurisdiction issue in the LI Yuhui case, I believe when the trial for that case commences, the courts will elucidate on the issue of jurisdiction for this case. This is my response to the view put forward by Mr James TO that the Mainland has never supported my interpretation on jurisdiction.

As for the article by Prof ZHAO mentioned by Mr Albert HO, I wish to point out that this is only one of the dozen or so references that we have looked up. There are contradictory views from other sources as well. May I read a short paragraph from the article "On the Problem and Resolution of Coincidence in Jurisdictions on both sides of the Straits" by Prof WANG Chen-guang: "The Basic Law states that the Hong Kong Special Administrative Region is an inalienable part of the People's Republic of China. Such a statement is made on the grounds of national sovereignty. Except for those listed in Annex III to the Basic Law, national laws shall not be applied in the Hong Kong Special Administrative Region. That is to say, in terms of jurisdiction...... Hong Kong is also an area of independent jurisdiction separated from the various systems of the Mainland, including the legal system. In other words, Hong Kong lies outside the area of jurisdiction of the Mainland. In most cases, the area of jurisdiction coincides with the concept of a state's territory. But when it comes to Hong Kong, Macau and Taiwan, it covers an area which is less than the extension of the concept of the state's territory. A frank admission that Hong Kong is outside the area of jurisdiction of the Mainland, and the statement grounded in the concept of the sovereignty of a state that Hong Kong is a part of China are statements made on different planes and so there is no contradiction as to what they refer to. There is no implication that Hong Kong will be singled out and come under any foreign rule. It is a fact that Hong Kong people enjoy the preferential treatment given to foreign businessmen and are treated as foreign citizens or legal persons when they come to the Mainland to invest and engage in commercial activities. This is an indirect manifestation that the laws of the Mainland regard Hong Kong as a legal territory outside their jurisdiction. This is in effect adhering to the principle of "one country, two systems" and the high degree of autonomy conferred on Hong Kong by the Basic Law."

Therefore, I cannot agree to the allegation made by Mr Albert HO and Mr James TO that my interpretation of Article 7 of the Chinese Criminal Law was nonsense.

As for Mr Martin LEE's mention of the interpretation of the term "territory" in the Chinese Criminal Law by the National People's Congress (NPC), the NPC has never invoked Article 67 (4) of the Constitution and made a legal interpretation of the Chinese Criminal Law. Therefore, what he said was only a legal opinion and not a legal interpretation made by the NPC.

Now I wish to turn to Miss Christine LOH's question regarding the CHEUNG Tze-keung case, that is, since we did not have sufficient evidence to make a prosecution, then why did we apply to the courts for an order to freeze his assets? Before CHEUNG Tze-keung left the territory, the police did not have enough information to make a prosecution and to prove that he committed the crime of kidnapping. Therefore, he could not be charged. But the application for a court order to freeze CHEUNG's assets made under the Organized and Serious Crimes Ordinance has time limits, for if the time limit lapses, the assets may have been gone and once gone, applications for this kind of freeze order cannot be made any more. According to law, this kind of application can be made on hearsay evidence. If there is no adequate evidence, the court will not issue a freeze order at the initial stage. In other words, at that time we did provide the necessary evidence so that the court was satisfied that it should issue a temporary freeze order. But then the case was still being heard, we hoped to obtain more evidence during the trial, and when no other evidence was available, the court was competent to revoke the temporary assets freeze order. Therefore, we did not apply to the courts to issue an assets freeze order knowing that there was insufficient evidence. There is a difference between the kind of evidence required to make a prosecution for the crime of kidnapping and that required to apply for an assets freeze order. As for other points of argument, I have referred to them in my earlier speech and I will not repeat them here. Thank you, Madam President.

PRESIDENT (in Cantonese): I now put the question to you and that is: That the amendment moved by Mrs Miriam LAU, be made to Mr Martin LEE's motion. Will those in favour please raise their hands?

(Members raised their hands)

PRESIDENT (in Cantonese): Those against please raise their hands.

(Members raised their hands)

Mr Martin LEE rose to claim a division.

PRESIDENT (in Cantonese): Mr Martin LEE has claimed a division. The division bell will ring for three minutes.

PRESIDENT (in Cantonese): Before I declare that voting shall stop, Members may wish to check their votes. Are there any queries? If not, voting shall now stop. The result will now be displayed.

Functional Constituencies:

Mr Kenneth TING, Mr James TIEN, Mr Edward HO, Dr Raymond HO, Mr Eric LI, Mr LEE Kai-ming, Dr LUI Ming-wah, Mrs Selina CHOW, Mr Ronald ARCULLI, Mr Ambrose CHEUNG, Mr HUI Cheung-ching, Mr CHAN Kwok-keung, Mr CHAN Wing-chan, Mrs Sophie LEUNG, Dr Philip WONG, Mr WONG Yung-kan, Mr Howard YOUNG, Mr LAU Wong-fat, Mrs Miriam LAU, Mr FUNG Chi-kin and Dr TANG Siu-tong voted for the amendment.

Mr Michael HO, Miss Margaret NG, Mr CHEUNG Man-kwong, Mr SIN Chung-kai and Mr LAW Chi-kwong voted against the amendment.

Geographical Constituencies and Election Committee:

Miss CHAN Yuen-han, Mr Gary CHENG, Mr Jasper TSANG, Mr LAU Kong-wah, Mr TAM Yiu-chung, Mr David CHU, Mr HO Sai-chu, Mr NG Leung-sing, Prof NG Ching-fai, Mr MA Fung-kwok, Mr CHAN Kam-lam, Mr YEUNG Yiu-chung and Mr Ambrose LAU voted for the amendment.

Miss Cyd HO, Mr Albert HO, Mr LEE Wing-tat, Mr LEE Cheuk-yan, Mr Martin LEE, Mr Fred LI, Mr James TO, Miss Christine LOH, Mr LEUNG Yiu-chung, Mr Andrew WONG, Dr YEUNG Sum, Mr LAU Chin-shek, Miss Emily LAU, Mr Andrew CHENG and Mr SZETO Wah voted against the amendment.

THE PRESIDENT, Mrs Rita FAN, did not cast any vote.

THE PRESIDENT announced that among the Members returned by functional constituencies, 26 were present, 21 were in favour of the amendment and five against it; while among the Members returned by geographical constituencies through direct elections and by the Election Committee, 29 were present, 13 were in favour of the amendment and 15 against it. Since the question was not agreed by a majority of each of the two groups of Members present, she therefore declared that the amendment was negatived.

PRESIDENT (in Cantonese): Mr Martin LEE, you may now reply. You have four minutes 56 seconds out of your original 15 minutes.

MR MARTIN LEE (in Cantonese): Madam President, I was indeed happy to hear what Mr Gary CHENG said today. He said he had intended to move an amendment to refuse to affirm our practice of following internationally accepted principles and he had withdrawn that amendment. He even said we should follow internationally accepted principles and spirit. I feel he knew he was wrong and I was relieved to note that. (Laughter) I do hope he could go one step further to support my original motion.

I think the Secretary for Security was going too far when she said I insulted her integrity. In fact my case reconstruction was meant to explain how the Government had responded at six different stages. No one said the six stages to which I had referred were wrong. Did I say the Government has compromised its judicial jurisdiction? I did not say the Government did so directly, nor did I say it had openly declared it did. I did not say so. The question is the Government did not request the Mainland to render the fugitive. If it did not try its utmost, it did not get any suspect from the Mainland. If it did not get any suspect from the Mainland it had in effect compromised its judicial jurisdiction. One question in mind is the argument of "giving priority to the party who first handles the case". If a suspect hides in the Mainland, without the Mainland knowing it, but with us knowing the fact, we should inform the Mainland requesting arrest of the suspect and his subsequent rendition to Hong Kong. But the present situation is that the suspect is in the Mainland and has been arrested and tried. Does it follow that according to the principle of "giving priority to the party who first handles the case" then every time we fail to effect a rendition? Does it mean we have to handle each case according to that principle?

So, we have to open discussions with the Mainland now. Does it mean that no question is allowed before the discussion? I said no. In fact, while Hong Kong was under British rule, and after Hong Kong has become an SAR, 128 persons were rendered to Hong Kong. But the explanation given by the Secretary for Security regarding LAU Kong-wah, sorry it should be LAU Kwok-wah (laughter), I do not think she should look at the indictment and the verdict alone to decide whether or not this LAU Kwok-wah has committed any offence in the Mainland. This is not correct. Even if the Mainland has the evidence, they may not be admissible in Hong Kong courts. The indictment of course records the offences committed in Hong Kong and the verdict also records what took place in Hong Kong. But interpretation is not important.

The Secretary for Security also asked whether she needed to give a "pat on the shoulder" to request a rendition from the Mainland. Of course, not. We are making the request lawfully because the person has committed an offence in Hong Kong and escaped to the Mainland, so and we want to have him rendered to Hong Kong for trial. We hope the Hong Kong Government should make a request for rendition like what it did for the 128 persons in the past, not through a friendly "pat on the shoulder". Patting on the shoulder is not to my liking and I do not want to do it because if a man pat on the shoulder of a lady he may be accused of indecent assault. Moreover, is patting on the shoulder inconsistent with the rule of law? If we asked that the 128 people be rendered to Hong Kong, were we destroying the rule of law? Of course not. But the Secretary said something that gave me great relief. She said to the effect that, "Hong Kong should not resume capital punishment." She also said, "In drafting the agreement in future, the part about capital punishment should be mandatory." I appreciate that point very much.

As regards the second speech of the Secretary for Justice in which she quoted Mr WANG Chenguang, I find it difficult to understand, although I have tried very hard to listen to her carefully. She spoke about the smaller ambit of judicial jurisdiction compared to territorial jurisdiction. She mentioned that Hong Kong, Taiwan, and Macau should all observe the principle of "one country, two systems". But law is law and we should not adopt "purposive interpretation". This is dangerous. Under common law such words are very dreadful. The Government could take whatever suits itself. Lastly, about the application for a "freezing order", I think there is a problem with it. If the Government had no evidence, it should not take one out. It should have withdrawn the application at the final stage and should not have argued. The result was that the Government had been fined heavily for costs. This is a point which the Government cannot explain satisfactorily. Thank you, Madam President ......

(The Honourable Martin LEE moved as if to sit down but then he rose again and continued to speak)

MR MARTIN LEE (in Cantonese): So, I hope the Liberal Party can take the Honourable Andrew WONG's advice and vote in favour of my motion. Thank you, Madam President.

PRESIDENT (in Cantonese): I hope Members would not follow the example of Mr LEE, saying "Thank you, Madam President" so that the timer returns to "00:00" and then speak again. This way I cannot tell how long he has spoken. (Laughter)

Secretary for Security, do you want to elucidate?

SECRETARY FOR SECURITY (in Cantonese): Madam President, thank you for giving me a chance to clarify a point which Mr LEE has mentioned earlier. In my earlier speech, I did not say that when we were to hold discussions with the Mainland, we would compel them to accept our condition that we would not render the suspects should they refuse not to enforce the death penalty. I have not mentioned this point.

MR MARTIN LEE (in Cantonese): Madam President, I got it wrong. I am sorry and I am sad too. (Laughter)

PRESIDENT (in Cantonese): I now put the question to you and that is: That the motion moved by Mr Martin LEE, as set out on the Agenda, be passed. Will those in favour please raise their hands?

(Members raised their hands)

PRESIDENT (in Cantonese): Those against please raise their hands.

(Members raised their hands)

Mr Martin LEE rose to claim a division.

PRESIDENT (in Cantonese): Mr LEE has claimed a division. The division bell will ring for three minutes.

PRESIDENT (in Cantonese): Will Members please proceed to vote. Before I declare that voting shall stop, are there any queries? Voting shall now stop. The result will now be displayed.

Functional Constituencies:

Mr Michael HO, Miss Margaret NG, Mr CHEUNG Man-kwong, Mr Ambrose CHEUNG, Mr SIN Chung-kai and Mr LAW Chi-kwong voted for the motion.

Mr Kenneth TING, Mr James TIEN, Mr Edward HO, Dr Raymond HO, Mr Eric LI, Mr LEE Kai-ming, Dr LUI Ming-wah, Mrs Selina CHOW, Mr Ronald ARCULLI, Mr HUI Cheung-ching, Mr CHAN Kwok-keung, Mr CHAN Wing-chan, Mrs Sophie LEUNG, Dr Philip WONG, Mr WONG Yung-kan, Mr Howard YOUNG, Mr LAU Wong-fat, Mrs Miriam LAU, Mr FUNG Chi-kin and Dr TANG Siu-tong voted against the motion.

Geographical Constituencies and Election Committee

Miss Cyd HO, Mr Albert HO, Mr LEE Wing-tat, Mr LEE Cheuk-yan, Mr Martin LEE, Mr Fred LI, Mr James TO, Miss Christine LOH, Mr LEUNG Yiu-chung, Mr Andrew WONG, Dr YEUNG Sum, Mr LAU Chin-shek, Miss Emily LAU, Mr Andrew CHENG and Mr SZETO Wah voted for the motion.

Miss CHAN Yuen-han, Mr Gary CHENG, Mr Jasper TSANG, Mr LAU Kong-wah, Mr TAM Yiu-chung, Mr David CHU, Mr HO Sai-chu, Mr NG Leung-sing, Prof NG Ching-fai, Mr MA Fung-kwok, Mr CHAN Kam-lam, Mr YEUNG Yiu-chung, Mr Ambrose LAU and Miss CHOY So-yuk voted against the motion.

THE PRESIDENT, Mrs Rita FAN, did not cast any vote.

THE PRESIDENT, announced that among the Members returned by functional constituencies, 26 were present, six were in favour of the motion and 20 against it; while among the Members returned by geographical constituencies through direct elections and by the Election Committee, 30 were present, 15 were in favour of the motion and 14 against it. Since the question was not agreed by a majority of each of the two groups of Members present, she therefore declared that the motion was jegatived.

NEXT MEETING

PRESIDENT (in Cantonese): I now adjourn the Council. (Some Members rose) Council will resume at 2.30 pm on Wedesday, 16 December 1998.

Honourable Members, you need not rise before I do so. (Laughter)

Adjourned accordingly at eighteen minutes past Ten o'clock.

Annex I

WRITTEN ANSWER

Written answer by the Secretary for the Civil Service to Mr Kenneth TING's supplementary question to Question 2

We have gone through all the reports for the past three years and have prepared the attached summary for Members' information.

Members please also pay attention to the fact that the estimated financial implications adopted by the Director of Audit took various forms. They could refer to revenue that could have been generated, revenue foregone or expenditure that could have been saved. They could be a one-off or recurrent in nature. Moreover, the financial implications in many instances are notional or calculated on the basis of certain assumptions. Thus even when the relevant bureau or department implement the recommendations, the same financial benefits might not be readily realized.

Annex II

HOTEL ACCOMMODATION (MISCELLANEOUS PROVISIONS) BILL 1998

COMMITTEE STAGE

Amendments to be moved by the Secretary for Home Affairs

Clause	Amendment Proposed
1(2)	By deleting "Sections 6 and 7" and substituting "Sections 5(ba), 6, 7, 7A and 10(b)".
5	By adding -
	"(ba) in subsection (1), by adding -
	""authorized person" (認可人士) has the meaning assigned to it by section 2 of the Buildings Ordinance (Cap. 123);";".
6	By deleting the clause and substituting -
	"6. Application for and issue of licence
	Section 8 is amended -
	(a) in subsection (5)(d) -
	(i) by adding "subject to subsection (5A)," before "authorize";
	(ii) by repealing "12" and substituting "84";
	(b) by adding -
	"(5A) Where a licence is issued for a period exceeding 36 months, the person holding the licence shall submit to the Authority a certificate ("authorized person's certificate"), which shall -
	(a) be submitted within a period of 1 month before and 1 month after each anniversary of the licence;
	(b) be in such form as the Authority may determine and signed by an authorized person;
	(c) certify that since the day upon which the licence was issued or, since the immediate previous anniversary of the licence, as the case may be, the hotel or the guesthouse -
	(i) has not undergone any substantial alteration by reference to the latest plan, if any, deposited with and agreed to by the Authority;
	(ii) has been operated, kept, managed or otherwise controlled by the person holding the licence in a manner which does not contravene any of the conditions imposed under subsection (2)(a); and
	(iii) has been maintained by the person holding the licence in a proper condition with regard to building safety and fire safety.".".
7	By deleting the clause and substituting -
	"7. Renewal of licence
	Section 9 is amended -
	(a) in subsection (1), by deleting "12" and substituting "84";
	(b) by adding -
	"(3A) Where a licence is renewed for a period exceeding 36 months, the person holding the licence shall submit to the Authority a certificate ("authorized person's certificate"), which shall -
	(a) be submitted within a period of 1 month before and 1 month after each anniversary of the licence;
	(b) be in such form as the Authority may determine and signed by an authorized person;
	(c) certify that since the day upon which the licence was renewed or, since the immediate previous anniversary of the licence, as the case may be, the hotel or the guesthouse -
	(i) has not undergone any substantial alteration by reference to the latest plan, if any, deposited with and agreed to by the Authority;
	(ii) has been operated, kept, managed or otherwise controlled by the person holding the licence in a manner which does not contravene any of the conditions imposed under section 8(2)(a); and
	(iii) has been maintained by the person holding the licence in a proper condition with regard to building safety and fire safety.";
	(c) in subsection (6), by deleting "for a period of 12 months" and substituting "subject to subsection (3A), for a period of 84 months".".
New	By adding -
	"7A. Cancellation and suspension of licence or refusal to renew licence, and amendment or variation of conditions of a licence
	Section 10 is amended by adding -
	"(f) on the ground that, where the licence is issued or renewed for a period exceeding 36 months, an authorized person's certificate has not been submitted as required by section 8(5A) or 9(3A);
	(g) on the ground that an authorized person's certificate submitted under section 8(5A) or 9(3A) is incomplete, incorrect or false in any material particular.".".
10	By deleting the clause and substituting -
	"10. Offences in relation to certificates of exemption and licences
	Section 21 is amended -
	(a) in subsection (6)(e) -
	(i) by adding "person or a" before "public officer";
	(ii) by repealing "20(2)(a)" and substituting "20(2)";
	(b) by adding -
	"(6A) An authorized person who in or in connection with an authorized person's certificate referred to in section 8 or 9 makes any statement or furnishes information which is false in any material particular and which he knows or reasonably ought to know is false in such particular commits an offence.".".