MR CHEUNG MAN-KWONG (in Cantonese): Madam Chairman, the Democratic Party opposes the provision empowering the Chief Executive to give directions of a general character to District Councils as this involves the value of a constitutional system.
Firstly, the Chief Executive as the head of the executive authorities can certainly give directions to subordinate officials. However, even though there are appointed members and ex officio members in District Councils, there are more elected members (with the exception of the Islands District Council). Why can the Chief Executive as the head of the executive authorities give directions to elected District Councils? Are they at the mercy of others because they are District Councils, at a lower level than the Legislative Council? If so, are District Councils independent?
Secondly, if District Council members are elected, it has a firmer election footing than the Chief Executive as District Council members are returned by one-man-one-vote general election in their respective districts. Is it proper for the Chief Executive with a not as firm election footing to give directions to a District Council with members returned by one-man-one-vote election?
Thirdly, in terms of functions, District Councils are basically consultative bodies and the executive authorities should listen to public opinion through the District Councils. When they listen to public opinion, the rights to speak, how to speak and express views should be dictated by District Councils and direction should not be given by the Chief Executive. Is directed consultation genuine consultation?
Based on the above points and having taken the constitutional structure, election footing or functions of District Councils into account, I think that clause 83 must be deleted. Thank you, Madam Chairman.
MR SIN CHUNG-KAI (in Cantonese): Madam Chairman, I would also like to discuss about this clause. This clause is simple, "upon consultation with a District Council, the Chief Executive may give general directions to a District Council in the performance of its functions."
The Chief Executive may consult a District Council and explain to it why he has to give a certain direction. After a direction has been given, if District Council members fail to observe or perform the direction, how can the Chief Executive enforce the provision of clause 83? If a District Council violates this clause, will all its members be prosecuted or will the District Council be dissolved and re-elected? If the District Council has only partly performed the direction, what should be done?
When the Secretary gives us a reply later, can he explain to us clearly the consequence that may result from the violation of this clause?
MR JAMES TO (in Cantonese): Madam Chairman, if you ask me, on comparison, is this clause or the clause on appointed membership worse? I would say that this clause is worse than the clause on the addition of appointed membership. Even if the Government has added one fifth or one fourth appointed members, the political reality and the distribution of the seats can still not let the Government rest assured, and it still has to take control of this final power, and give directions to District Councils with a majority of seats returned by election. Even mainland China is not bold enough to incorporate such an explicit provision into its laws. It only achieves this aim by certain means or the indirect control by the party and it is not bold enough to make such an explicit provision. Constitutionally, the President or Premier can give directions to the deputy of a certain place to the National People's Congress or the representative of any village. This is actually a very terrifying attitude.
Mr Andrew WONG has put forward arguments saying that the Chief Executive can then direct District Councils to perform certain duties. If the Chief Executive wants District Councils to perform certain duties, he can amend the legislation to give District Councils such duties and he does not need to give directions. Regardless of how good the motive behind a direction is, the direction may be interpreted in the most dangerous way. Now that the Government does not know how it should interpret it and cannot give a convincing example, why should it add this clause? Why is this clause added by those law drafters?
If we look up similar ordinances, we will get a clearer picture. I am a member of the board of directors of the Land Development Corporation. The Land Development Corporation Ordinance states that the Chief Executive can give the Corporation directions. As far as I know, the legislation on the Housing Authority also contains a similar clause. Why? It is because the Chief Executive may have to ask certain statutory bodies to perform certain responsibilities and direct certain bodies to perform its public responsibilities. However, District Councils are only consultative bodies. If the Chief Executive wants to give them directions, this attitude is extremely terrifying.
Lastly, the Government later adds an annotation that it will only give directions in the public interest. I do not think this can solve the problem. Why can the Chief Executive do so constitutionally? I can only arrive at a conclusion that in line with the mode of thinking and power distribution of the Government led by Mr TUNG Chee-hwa, it has adopted this attitude towards District Councils which will not have any influence on political power. This is a natural reflex projected onto the Law Drafting Division. For me, this is regrettable and should be condemned.
This incident can be traced to the same origin and has definitely not happened by chance. Other incidents that have taken place one after another (as just mentioned by Mr Martin LEE) are stifling democracy and gradually stripping democracy of its essence. They are enemies of democracy, and resuming power is absolutely going against the global trend.
I only hope that a simpleminded lawyer in the Department of Justice had suggested adding this clause for he thought that it might have merit. Perhaps, he drafted this clause after having referred to the ordinances related to the Housing Authority or the Land Development Corporation, or the Secretaries or policy-making officials thought that there was no big deal and allowed the lawyer to add this clause without question. I am willing to make an apology if there is such a big mistake or this clause has appeared for these ridiculous reasons. Otherwise, it means that everyone in the whole department knows this clause well but they are not willing to amend it and fail to give reasons. I can only give a superficial explanation that the Government simply wants to grasp the ultimate and absolute power even in respect of a consultative body without real powers and submit people to it. This is an extremely terrifying attitude indeed.
MR ANDREW WONG (in Cantonese): Madam Chairman, Mr James TO said that the Government wanted to submit people to it and I think that he was overstating. He has mentioned how I understood the matter. As far as I understand it, more modern wordings may have to be used but the original meanings are totally different. I suspect that this provision is not added by simpleminded lawyers but the wordings used may convey the relationship between the former Governor and the district authorities.
Let us take a look at the provisions of the Provisional Regional Council Ordinance and the Provisional Urban Council Ordinance for certain functions. The amendment to the District Councils Bill to be moved by Miss Christine LOH includes certain wordings in these existing ordinances. One sentence is: "undertake such other functions within the District Council area as the Chief Executive may from time to time direct." This sentence which covers one of the functions of District Councils is found in the Provisional Regional Council Ordinance and also specified in the former Regional Council Ordinance. Evidently, I must oppose Mr LEE Wing-tat's amendment and also the amendment of the Secretary for Constitutional Affairs for their amendments have limited the functions of District Councils to matters which affect the public interest, in other words, they do not have any real functions in the districts and cannot perform certain tasks.
Therefore, I make it clear that I oppose these amendments. I consider that the original text should be retained. If Members find the original text irksome, better wordings may be used in future, but I emphasize that the original meanings are totally different from what Mr James TO said.
MR RONALD ARCULLI: Madam Chairman, I have asked Mrs CHOW to get the Provisional District Boards Ordinance (Cap. 366). With the amendment, clause 83 of the present Bill is simply divided into two sections, subsections (1) and (2), otherwise, the wording is virtually identical.
With your permission, I will read out section 24 "Directions by Governor to Board": "The Governor may, after consultation with a Board, give the Board directions of a general character as to the discharge by the Board of its functions in relation to matters appearing to the Governor to affect the public interest, and a Board shall give effect to such directions."
We went out to get the Ordinance simply because, when we were looking at it through the Bills Committee, my recollection was that we were told that this was in the existing law. And when we checked the existing law, I think the words "public interest" were left out, and that is the result of the amendment. I take the point that Mr Andrew WONG has made, but I think adding the words "to affect the public interest" would in fact go with the direction, which is supposed to be of a general character as opposed to of a specific function. Thus, I think by eliminating "public interest", the Chief Executive, on the face of it, is empowered to give any sort of direction of a general character. However, where you have a qualification of "public interest", at least the justification for that direction is in fact the public interest.
Of course, bearing in mind all the time that he has to consult with the Board, and no doubt with a Board comprising of a great majority of elected members, if the direction is something that the Board felt that it did not reflect its opinion when asked by the Chief Executive, I am quite sure that the Chief Executive and all of us would hear about it.
MR JAMES TO (in Cantonese): Madam Chairman, I have listened carefully to the views expressed by Mr Andrew WONG and Mr Ronald ARCULLI but I can only say that their views are their own wishful thinking. Looking at the matter purely from a legal angle, it is really stated that the Chief Executive may give general directions. Mr Andrew WONG said that the wordings might be amended if Members did not like them. I have to admit that I do not trust the Government as there have been similar incidents before but I do not want to bring them up again. The problem is that the word "directions" is really found in the draft Bill and this cannot dispell our doubts.
Since the Government is responsible for drafting and introducing the Bill, if it finds that Members have fears or queries, it should be co-operative and look for ways to amend the wordings used to a certain extent as suggested by Mr Andrew WONG, so that Members would not worry about the consequence that would result from an ulterior motive. This is the Government's responsibility. If the Government says, "Sorry, that is how the Government is. The Bill will be passed once there are enough votes and we do not bother about other problems. Today, the Government is the big winner, and that is how the Government is!" If this is the Government's attitude, we can do nothing. I can only say, "Let us wait and see! Let us see how the relationship between the executive and legislative authorities develops." This is not the work of a single day but has accumulated over a long period of time.
Frankly speaking, I cherish the memory of an experience. I think Miss Christine LOH also recalls our scrutiny of the legislation related to a review on the authority of the Independent Commission Against Corruption. We missed the officials who were in charge. For a year or so during the scrutiny, the Government seriously considered Members' views. If we expressed our views or worries, the government officials would try to amend the wordings to allay Members' worries while preserving the original intent of the Government.
If the Government has good motives and subjective wishes, why does it not do so now? Now, the Government only says, "Sorry, that is how the Government is." It also says that it originally intended to pass the Bill in February but the Bill is going to be passed on 10 March to show the Government's respect of Members. If the Government adopts this attitude towards law enactment, I would like to say that we will have an encounter some day.
MISS MARGARET NG (in Cantonese): Madam Chairman, we need not discuss about attitude, motive, mutual trust or look up previous clauses but we should purely take a look at the wordings of the legislation and discuss about the legal effects the clause will normally have if the Bill is passed.
If the Bill is passed, the legal effect of the clause will have a very wide scope. Clause 59 of the Bill has stated the functions of District Councils. The Chief Executive can give general directions to District Councils in its performance of any function. It is also stated in the clause that District Councils have no alternative but follow the directions given by the Chief Executive. Although the Government will consult District Councils, it only consults them. In the course of consultation, regardless of whether District Councils are willing or unwilling or are only partly willing or unwilling, they still have to follow the directions. Therefore, amendments cannot be made once the scope is defined. Even though the case is brought to the courts and the judges are sympathetic, they cannot do anything for the legislation must be enforced per se.
Can the inclusion of the expression "in the public interest" restrict the wide scope of this clause? Madam Chairman, I do not think so. It is because the courts cannot judge public interest. The courts cannot indicate that the Chief Executive has gone beyond his authority or that his directions are given not for public interest. The courts have no ground on which they can judge whether the Chief Executive's directions are in keeping with public interest. So long as the Chief Executive is the head of the executive authorities, the courts will believe that the public interest as determined by the Chief Executive is most probably the interest of the public. Such precedents embody the spirit of the common law. It may not be necessary for the courts to accept the advice of the executive authorities, but with the separation of powers, this has always been the inclination of courts.
Madam Chairman, in respect of the clause itself, I find that the scope of authority is too wide. This clause definitely does not tally with the legislative spirit or the spirit of the rule of law. Therefore, we should not waste time discussing about attitude, motive or whether there is co-operation. In any case, this clause should not be approved.
DR YEUNG SUM (in Cantonese): Madam Chairman, although Miss Margaret NG said that we should not discuss about attitude and motive, I still want to discuss about attitude.
District councils are just consultative bodies. They do not have any real power and they have an appointment system. But the Government's provision stating that the Chief Executive may give District Councils directions has put in place a safety valve, similar to a controlling spell. This is the Government's attitude of goverance. The Government cannot rest assured with these district consultative bodies, and ultimately, it adopts a safety measure in making general directions a prerogative of the Chief Executive. Does the Chief Executive need to take the trouble to give directions to these consultative bodies that do not have real powers and have an appointment system? If members are elected, they will not be elected again if they turn out to be incompetent. Besides, the appointment system (we have spent much of time discussing the appointment system) can help strike a balance, why is it necessary to retain this clause?
I absolutely agree with Miss Margaret NG that this unnecessary clause should be deleted.
MR MARTIN LEE (in Cantonese): Madam Chairman, when Hong Kong was a colony, if the Governor had such power, we would only say that he was tactful. We could understand his attitude and why he did so because Hong Kong was a colony. But why do we have to preserve things that are useless and out of keeping with the times now that Hong Kong is a Special Administrative Region?
The matter is actually not that simple. If the Chief Executive really wants to be a dictator (I have earlier in this meeting said that he is a dictator), becomes more and more interested in being a dictator and would like to possess such power, he might as well give all government departments directions, would this be better? Why does he have to exercise this power on District Councils particularly?
I hope that Honourable colleagues will pull themselves together. Three Liberal Party Members are here. Yesterday, the South China Morning Post reported that the Chief Executive imposed pressure on the Liberal Party through some tycoons and influenced their voting inclinations in the motion debate that would be held later. This is actually a certain kind of direction. Although he is only giving direction to one of the parties, he may later give direction to the Legislative Council. I am not kidding. Now that the provision is not necessary, it should not be retained. We should not say that the provision should be retained for there was such a provision. The Liberal Party has already become a victim in respect of another issue, are we not afraid? Thank you, Madam Chairman.
SECRETARY FOR CONSTITUTIONAL AFFAIRS (in Cantonese): Madam Chairman, just now Mr Ronald ARCULLI pointed out that the former Chapter 366 of the Laws of Hong Kong, which was the District Boards Ordinance (it should be the District Boards Ordinance, not the Provisional District Boards Ordinance he referred to), has already made such an arrangement. I must admit that it is an oversight on our part since we have not stated clearly that the Chief Executive may only give directions in relation to matters which affect the public interest. However, after some discussion with the Bills Committee, we have agreed to plug the loophole. As such, I will move an amendment to this clause later on to set out that directions may only be given in relation to matters which affect the public interest.
I believe we have made our points clear in this connection. There has indeed been an oversight on our part, but we will introduce a remedy later on.
MR LEE WING-TAT (in Cantonese): Madam Chairman, I am not going to repeat what Miss Margaret NG has said. It is really worrying for the clause to give the Chief Executive such extensive powers.
I have been asking a question since the Bills Committee began to scrutinize the Bill but it was not yet answered. Can the Secretary give some examples to illustrate the directions that will be given by the Chief Executive to District Councils? This will at least allow Honourable colleagues who support this clause to get an idea of the directions that will be given by the Government in future. Perhaps, the Government cannot think of any example. Given such a clause that gives the Chief Executive such powers, he can give any directions he likes in future.
This is out of keeping with the legislative spirit. The Government cannot ask us to approve a Bill in which the scope of power is not defined and not known by officials who drafted the Bill. This clause will surely be approved but I believe that people can tell whether it is fair. If legislation is enacted this way, anything can happen. Thank you, Madam Chairman.
MR SIN CHUNG-KAI (in Cantonese): Madam Chairman, I have asked a question just now. If this clause is approved but a District Council does not follow the Chief Executive's direction, what should be done? Can the Government explain to us the consequence of this? Madam Chairman, the Secretary has not explained this just now, can he give us an explanation later?
I am a district board member. Although I am not sure whether I will run for the coming election, most probably I will do so. If I am elected but I do not follow the directions given, what will happen? This is a practical problem.
MR ANDREW WONG (in Cantonese): Madam Chairman, I am very grateful to Mr Ronald ARCULLI for referring to the relevant original text when he spoke. In fact, those wordings were used when the District Board Ordinance 1981 was first enacted. At a meeting of the Bills Committee, a Member pointed out that this clause was different from the previous clause. The Government basically wants to amend the clause to make it the same as the previous clause.
I agree that the power involved is significant and wide. But as far as I can recall, this power has never been exercised. This is the first point.
The second point is, as far as I understand it, in respect of the previous or existing clause, if District Councils do not observe the clause, the Governor before and the Chief Executive now cannot do anything as there is no penalty clause. Although Members have asked to delete the clause for it is not useful, the word "directions" is also used in other ordinances. For instance, there is a clause in the ordinances of the Provisional Urban Council, the Provisional Regional Council, the former Urban Council and the former Regional Council, stating that the Chief Executive can give directions to the Urban Council or Regional Council. The original text is "undertake such other functions within its areas as the Chief Executive may from time to time direct". In other words, to undertake functions within the Urban Council or Regional Council areas. That is how I interpret the clause.
I may have made an excessively narrow interpretation of the original text which has an excessively wide scope. However, I would rather take the risk than delete the clause. If the amendment is approved and the clause is deleted, I have no idea where the directions will come from.
MISS MARGARET NG (in Cantonese): Madam Chairman, I do not understand why the Bills Committee has not discussed what effect the clause will have if it is approved. Why was it not discussed?
I would like to respond to Mr Andrew WONG's remark that there is no penalty clause. According to Mr WONG, that is why the Government cannot do anything even if District Councils do not observe the clause. But this is not the case as there is a legal basis. If a District Council does not follow a direction received, the Government can apply for a court order, ordering the District Council to follow the direction.
This is an inference I have drawn but I am not sure if I am right. Actually, we should have discussed this when we scrutinized the Bill.
MR MARTIN LEE (in Cantonese): Madam Chairman, I want to convey via you a message to Mr Andrew WONG that his views are his own wishful thinking. Although, he is not sure, he is afraid of deleting the clause. What is the demerit of deleting this clause? I wonder what demerit deleting this clause will have in Mr Andrew WONG's view.
I also want to ask the Secretary via you to tell us if the former Governor did exercise this power and under what circumstances he exercised the power. If the power was not exercised, did the Governor find this hard going?
MR SIN CHUNG-KAI (in Cantonese): Madam Chairman, I would also like to make a point via you. I do not think that District Councils can be compared to the two Municipal Councils. The two Municipal Councils have very specific functions such as refuse collection. Take the avian flu incident as an example, after the Government slaughtered the chickens, the chicken carcasses were cleared up by the two Municipal Councils. If the two Municipal Councils acted against the Government's direction and did not clear up the chickens carcasses, the Chief Executive had to mobilize the staff of the two Municipal Councils for the issue involved public interest. However, this clause should not be included for District Councils are just consultative bodies.
District council members are only responsible for discussing the policies to be implemented by the Government in certain districts for the interest of the public. Does the Government have to give directions to District Councils as to how discussions should be held? Does it want to direct them to support the Government? Does it mean to do so? Other than holding discussions, District Councils do not serve the function of implementing policies. Do we want District Council members to clear up chicken carcasses? It is not feasible.
What does public interest mean? If it refers to the interest of Hong Kong and a certain district, there will definitely be contradictions. If the Kwai Tsing District Board opposes the construction of Container Terminal No. 9, does the Government have to direct us to support the construction of Container Terminal No. 9? But the Government will construct the Terminal regardless of whether the District Board supports it or not. Therefore, this is unambiguous. Can we not discuss? We should not think so but we should take this opportunity to realize "one country, two systems" and "Hong Kong people ruling Hong Kong" and delete this colonial clause. Let us be bolder.
Madam Chairman, thank you for giving us a chance to speak. (Laughter)
MR ANDREW WONG (in Cantonese): As Mr Martin LEE has conveyed to me his views via the Chairman, I am also going to convey to him my views via the Chairman.
I have thought at times maybe the Bills Committee have not done enough, therefore, there are many problems. Mr SIN Chung-kai has also drawn our attention to another problem, that is, the two Municipal Councils are different from the District Councils. In fact, the Government is more prepared to give directions to the two Municipal Councils. The expenses incurred by the two Municipal Councils in implementing the Government's directions need not be borne by the Government for they are financially independent. Instead, I worry that the Government may not be prepared to give directions to District Councils for it has to meet the expenses incurred by them.
Therefore, my views are not my own wishful thinking. I want to retain the existing clause and add a new clause so that District Councils will have more functions and the clauses will be fine-tuned gradually.
MR MARTIN LEE (in Cantonese): Madam Chairman, I shall be brief. Mr SIN Chung-kai is right as he has experience. He said that a District Council is a venue for the expression of views. Why is the expression of views not permitted?
He has reminded me that if the clause is approved, this will go against the Basic Law. If the expression of views is not permitted, the freedom of speech will be violated. Under the international conventions on human rights and the Hong Kong Bill of Rights, people shall enjoy the freedom of speech. If we are deprived of the freedom of speech, the law has definitely been breached and a judgement has to be made by the court. Thank you, Madam Chairman.
CHAIRMAN (in Cantonese): Before I put the question to you, does any other Member wish to speak?
MR SIN CHUNG-KAI (in Cantonese): Madam Chairman, I would like to ask the Secretary via you again if he does not intend to answer my question. I have asked the question twice. What is the consequence of not observing this clause? As I am going to vote on this clause, can the Secretary tell me the consequence of not observing this clause?
MR LEE WING-TAT (in Cantonese): Madam Chairman, would the Secretary answer this question? I have a very strange feeling. Although we are not in a position to force the Secretary to answer questions, this is a fairly reasonable request. It is specified in other laws that offenders will be fined, imprisoned or otherwise punished. Therefore, the Secretary should tell us the consequence if this clause is approved but District Councils do not follow the directions. If District Councils can neglect the directions without consequence, the Secretary might as well tell us that there will not be any consequence. But why is it necessary to lay this down if there is no consequence?
Madam Chairman, although it is already 5.20 am, I have become stronger and stronger through fighting. (Laughter) If the Secretary does not answer my question, I will go on debating. Thank you, Madam Chairman.
MR ANDREW WONG (in Cantonese): Madam Chairman, when I discussed another issue, I said that we were not having a question time but a debate. If Mr LEE Wing-tat is not satisfied with the answer given by the Secretary, Mr SUEN, or the remarks I made, I can only say that, as before, I have accepted this saying or arrangement and I intend to oppose Mr LEE's amendment and accept the Government's amendment now. I have expressed my views but Members keep asking questions. Although Mr LEE has become stronger and stronger through fighting, it does not mean that he can waste our time.
CHAIRMAN (in Cantonese): To uphold the freedom of speech, we cannot help wasting time sometimes. Perhaps Members think that the Rules of Procedure should be amended. (Laughter)
SECRETARY FOR CONSTITUTIONAL AFFAIRS (in Cantonese): Madam Chairman, in fact I consider we have all made our points clear, there is nothing more for me to say. However, since Mr LEE Wing-tat has in his way asked me to speak on the issue, perhaps I could give some further explanations here.
As we have explained many times earlier, the provision has never been invoked before. Despite its existence for so many years, the provision has never been invoked by the Governor. On the other hand, although the Administration has never thought about the circumstances under which it will advise the Chief Executive to exercise this power, that does not mean there will not be any opportunity that warrants the exercise of this power in the future.
In any case, if the provision does exist, and if we do implement it in the future, what would happen to those District Councils which refuse to follow the directions given them? I think we have already made it clear that District Councils must follow the directions made in this connection, and as referred to by Miss Margaret NG just now, should any District Council refuse to follow the directions, the Administration could apply for a court order requiring that particular District Council to implement the directions concerned. We will know what to do when the situation arises.
CHAIRMAN (in Cantonese): Mr SIN Chung-kai, for how many times you have spoken already?
MR SIN CHUNG-KAI (in Cantonese): Madam Chairman, it is after 5 am and I cannot recall how many times I have spoken. But I know that the Chairman has a very good habit of allowing Members to speak for many times at the Committee stage.
I think that the Secretary has not explained this clause clearly. He should specify the possible penalty if District Councils do not follow the directions. Even though the directions given by the Chief Executive are really in the public interest, District Councils or District Council members will not follow the directions for they may have to perform their own duties or represent the views of their constituents and express views on behalf of the public. When a District Council member fails to follow the direction of the Chief Executive, he would like to know the consequence and the price he has to pay. As penalty is not specified in the existing bill, if the case is brought to the court, there will not be a clear direction as to how the court should make a judgement.
CHAIRMAN (in Cantonese): Honourable Members, after you have raised your hands, I will certainly let you speak. But I ask you not to repeat arguments made or express them in other ways. I cannot remember clearly all your views but you should remember them very well. I hope that you will take note of this.
MR LEE WING-TAT (in Cantonese): Madam Chairman, I would like to respond to what Mr Andrew WONG said. I am actually not happy about the point Mr Andrew WONG made because we can actually express our views in various ways when we hold debates in this Chamber, asking questions is just an expression of opinion. I do not think that a Member has to make a lengthy speech whenever he expresses his opinions, asking 10 questions is also an expression of opinion.
I do not want to repeat what I have said but I do not agree to Mr WONG's attitude. He should not guide Members as to how they should express their views or whether they should ask the Secretary questions. If Mr WONG finds that there are problems with my expression of opinion, he should raise a point of order for the Chairman to give a ruling to stop me from speaking. Otherwise, I will continue to express my views this way. Thank you, Madam Chairman.
MR MARTIN LEE (in Cantonese): Madam Chairman, I am definitely going to make a new point. In fact, Mr Andrew WONG is not making a new point as the Chairman has already given a ruling on what he just said.
The new point I would like to make is that I wish to ask other Members via the Chairman to support this amendment, and support the original provision when the Government can give better reasons in future. Thank you.
CHAIRMAN (in Cantonese): I now put the question to you and that is: That the amendment moved by Mr LEE Wing-tat be passed. Will those in favour please raise their hands?
(Members raised their hands)
CHAIRMAN (in Cantonese): Those against please raise their hands.
(Members raised their hands)
Mr James TIEN rose to claim a division.
CHAIRMAN (in Cantonese): Mr James TIEN has claimed a division. The division bell will ring for one minute.
CHAIRMAN (in Cantonese): Will Members please proceed to vote.
CHAIRMAN (in Cantonese): Before I declare that the voting shall stop, Members may wish to check their votes. If there are no queries, voting shall now stop and the result will be displayed.
Functional Constituencies:
Mr Michael HO, Dr Raymond HO, Mr Eric LI, Miss Margaret NG, Mr CHEUNG Man-kwong, Mr Bernard CHAN, 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, 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, Mr Timothy FOK, Mr FUNG Chi-kin and Dr TANG Siu-tong voted against the motion.
Geographical Constituencies and Election Committee:
Mr Albert HO, Mr LEE Wing-tat, Mr Martin LEE, Mr Fred LI, Mr James TO, Miss Christine LOH, Dr YEUNG Sum, Mr Andrew CHENG and Mr SZETO Wah voted for the motion.
Miss CHAN Yuen-han, Mr Gary CHENG, Mr Andrew WONG, Mr Jasper TSANG, Mr LAU Kong-wah, Mr TAM Yiu-chung, Mr David CHU, Mr HO Sai-chu, Mr NG Leung-sing, Mr CHAN Kam-lam, Mr YEUNG Yiu-chung, Mr Ambrose LAU and Miss CHOY So-yuk voted against the motion.
THE CHAIRMAN, Mrs Rita FAN, did not cast any vote.
THE CHAIRMAN announced that among the Members returned by functional constituencies, 27 were present, nine were in favour of the motion and 18 against it; while among the Members returned by geographical constituencies through direct elections and by the Election Committee, 23 were present, nine were in favour of the motion and 13 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.
SECRETARY FOR CONSTITUTIONAL AFFAIRS (in Cantonese): Madam Chairman, earlier on Honourable Members have voted down the proposal to delete clause 83, and I have indicated in my speech that I would move a amendment to the clause to set out clearly that the Chief Executive may give directions only in relation to matters affecting the public interest. I hereby move that subclause (1) of clause 83 be amended as set out in the paper circularized to Members. I urge Honourable Members to support this amendment.
Proposed amendment
Clause 83 (see Annex IV)
CHAIRMAN (in Cantonese): Does any Member wish to speak?
MR LEE WING-TAT (in Cantonese): Madam Chairman, we have made this point when we debated on clause 83. Even though the public interest is taken into consideration, it cannot dispel Members' worries or at least the Democratic Party's worries. As the act of giving general directions involves very extensive power and is not specific, we will not support this amendment. Thank you, Madam Chairman.
MR MARTIN LEE (in Cantonese): Madam Chairman, the clause will actually become worse after the amendment. Why? If the directions given are not related to public interest, it will not do much harm. But if they are related to public interest, the situation will be serious and District Council members must or are forced to follow such directions for they are related to public interest. Therefore, the clause will become worse after the amendment. Thank you, Madam Chairman.
MR ANDREW WONG (in Cantonese): Thank you, Madam Chairman, I intended to oppose the two amendments but as I now find that the original clause involves public interest, I would like to say that I support this amendment.
CHAIRMAN (in Cantonese): Secretary for Constitutional Affairs, do you wish to reply?
(The Secretary indicated that he did not wish to reply)
CHAIRMAN (in Cantonese): I now put the question to you and that is : That the amendment moved by the Secretary for Constitutional Affairs be passed. Will those in favour please raise their hands?
(Members raised their hands)
CHAIRMAN (in Cantonese): Those against please raise their hands.
(Members raised their hands)
Mr LEE Wing-tat rose to claim a division.
CHAIRMAN (in Cantonese): Mr LEE Wing-tat has claimed a division. The division bell will ring for one minute.
CHAIRMAN: Will Member please check their votes. If there are no queries, I declare that the voting shall stop and the result will now be displayed. (The Clerk informed the Chairman that the screen in the Chamber showed that 35 Members voted for the amendment but his computer screen showed that 34 Members voted for the amendment.)
CHAIRMAN (in Cantonese): I am really sorry. It is now after 5 am and the computer is also tired. If the result shown on the computer is different from the printed-out, the printed result will prevail.
Mr Kenneth TING, Mr James TIEN, Mr David CHU, Mr HO Sai-chu, Mr Edward HO, Mr Eric LI, Mr LEE Kai-ming, Dr LUI Ming-wah, Mr NG Leung-sing, Mrs Selina CHOW, Mr Ronald ARCULLI, Mr HUI Cheung-ching, Mr CHAN Kwok-keung, Miss CHAN Yuen-han, Mr Bernard CHAN, Mr CHAN Wing-chan, Mr CHAN Kam-lam, Dr LEONG Che-hung, Mrs Sophie LEUNG, Mr Gary CHENG, Mr Andrew WONG, Dr Philip WONG, Mr WONG Yung-kan, Mr Jasper TSANG, Mr Howard YOUNG, Mr YEUNG Yiu-chung, Mr LAU Kong-wah, Mr LAU Wong-fat, Mr Ambrose LAU, Miss CHOY So-yuk, Mr Timothy FOK, Mr TAM Yiu-chung, Mr FUNG Chi-kin and Dr TANG Siu-tong voted for the motion.
Mr Albert HO, Mr Michael HO, Mr LEE Wing-tat, Mr Martin LEE, Mr Fred LI, Mr James TO, Mr CHEUNG Man-kwong, Miss Christine LOH, Mr SIN Chung-kai, Dr YEUNG Sum, Mr Andrew CHENG, Mr SZETO Wah and Mr LAW Chi-kwong voted against the motion.
Miss Margaret NG abstained.
THE CHAIRMAN, Mrs Rita FAN, did not cast any vote.
THE CHAIRMAN announced that there were 49 Members present, 34 were in favour of the motion, 13 against it and one abstained. Since the question was agreed by a majority of the Members present, she therefore declared that the motion was carried.
CLERK (in Cantonese): Clause 83 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.
(Members raised their hands)
CHAIRMAN (in Cantonese): Does any Member wish to claim a division?
(No Member responded)
CHAIRMAN (in Cantonese): I think the question is agreed by a majority of the Members present. I declare the motion passed.
CHAIRMAN (in Cantonese): We will now deal with the part of the Bill relating to "functions of a District Council".
CLERK (in Cantonese): Clause 59.
CHAIRMAN (in Cantonese): The Secretary for Constitutional Affairs and Miss Christine LOH have separately given notices to move amendments to clause 59. The two amendments will be debated together in a joint debate.
Committee now proceeds to a joint debate. I will first call upon the Secretary for Constitutional Affairs to move his amendment, as he is the public officer in charge of the Bill.
SECRETARY FOR CONSTITUTIONAL AFFAIRS (in Cantonese): Madam Chairman, I move that clause 59 be amended by deleting from subclause (a)(i) "including matters relating to food and environmental hygiene services", and by adding in subclause (b)(iii) to enable a District Council, where funds are available for the purpose, to undertake community activities within the district, as set out in the paper circularized to Members.
The amendment is proposed in response to the views expressed by Honourable Members in regard to the functions of a District Council. I hereby urge Honourable Members to support the amendment.
Proposed amendment
Clause 59 (see Annex IV)
CHAIRMAN (in Cantonese): I will call upon Miss Christine LOH to speak on the amendment moved by the Secretary for Constitutional Affairs as well as her own amendment. However, no amendment may be moved by Miss Christine LOH at this stage.
MISS CHRISTINE LOH (in Cantonese): Madam Chairman, first of all, I would like to send my regards to you because you have been sitting here with us for a long time. If you share my feelings, I believe that you will now find that your brain, mouth and body are not well co-ordinated. Therefore, if I have spoken unclearly or inadequately about certain matters, I would like to apologize to the Chairman first.
If we refer to the original clause 59, we will know that the amendments to clause 59 including the amendment the Secretary said that he would move basically have a very narrow scope. As I envisaged that it will be very late when I move my amendment, I have explained to Honourable Members during the Second Reading why I move this amendment. Perhaps I can explain this again briefly.
What effect will my amendment have? Firstly, we have not made changes because it is impossible for the consultative role of District Councils to be changed into political. I believe Honourable Members will understand that it is impossible for me to do so, otherwise, the Chairman would not have allowed my amendment. Secondly, when Mr Andrew WONG and I worked out this amendment, we had in mind the objectives that the future District Councils would really play a more important role and become genuine district authorities instead of a framework for people to hold discussions as many Members have said.
However, we cannot achieve these objectives today, therefore, the amendment can be described as a collection centre for goods. What would be the result? If a new piece of legislation in future gives District Councils suitable rights and responsibilities, and suitable funding to allow them to exercise these rights and responsibilities, they can then take up these rights and responsibilities. It is not necessary for us to amend this legislation then because District Councils will be able to play a more meaningful role. Basically, this is the sole purpose behind our amendment. Thank you, Madam Chairman.
CHAIRMAN (in Cantonese): Members may now debate on the amendment of the Secretary for Constitutional Affairs and Miss Christine LOH's amendment. Does any Member wish to speak?
THE CHAIRMAN'S DEPUTY, DR LEONG CHE-HUNG, took the Chair.
MR LEE WING-TAT (in Cantonese): Mr Deputy, we agree to the amendment proposed by the Secretary. Actually, I was the person who put forward this view. This is because the functions of a District Council have been drafted in quite a strange way in the original provisions of the Bill. Apart from consultation of a general character, matters related to food and environmental hygiene are especially highlighted. My view is that a District Council can make consultation in matters related to food and hygiene in the district irrespective if this provision is written down or not. In fact, environmental health superintendents and managers in cultural and leisure services also attend the present district board meetings.
Our criticism against the Government is that the consultation conducted by the Government in 1998 on the scrapping of the Municipal Councils was too high in profile. It seemed to hint to the members of the district boards that their powers might expand in the future, especially after the abolition of the Municipal Councils. But how in fact are the powers going to be expanded? Will the District Councils be empowered to enforce legislation on food and environmental hygiene? But the fact is that they will not. Are powers regarding monitoring and decision-making in the new executive department, whatever its name is, that is, the Department of Food and Environmental Hygiene under the Environment and Food Bureau, going to be given to the new District Councils? The answer is also no. In fact, the functions of the District Councils have not changed in any way, they are only limited to consultative functions.
The Government's original drafting is to add this provision into this Bill, but I think it is only muffling matters up and being perfunctory. If the Government does not consult the District Councils regarding food and environmental hygiene and therefore this provision is added, then why is the Government not consulting the District Councils regarding traffic, sanitation and welfare? There can well be 10 such like provisions. I believe the Government is doing this because it feels that the district boards will not be led to believe that powers are really devolved and that there is enough support to pass this amendment, and so it really does not matter whether this provision is added into the Bill or not.
Heeding our advice, the Government has finally decided to delete this part. We will therefore not object to this. For we are reasonable people and we will not object to this provision after the Government has taken our advice. We support Miss Christine LOH's proposal. Thank you, Mr Deputy.
THE CHAIRMAN resumed the Chair.
CHAIRMAN (in Cantonese): Miss Christine LOH, do you wish to speak again?
(Miss Christine LOH indicated that she did not wish to speak)
CHAIRMAN (in Cantonese): Secretary for Constitutional Affairs, do you wish to reply?
SECRETARY FOR CONSTITUTIONAL AFFAIRS (in Cantonese): Madam Chairman, I have already expressed my views regarding this issue in my Second Reading speech, I will now repeat my views briefly here. The Honourable Miss Christine LOH has proposed to delete clause 59 and substitute it with a new clause to enable a District Council to undertake local public works within the district, as well as to provide and manage premises and facilities for active and passive recreation activities and sports. My view is that distributing the responsibilities for public works and recreational facilities among 18 districts would over-divide the responsibilities concerned, affect the efficiency of work, and may even cause additional public expenditure. As the amendment would give rise to a series of problems, we do not think the proposal should be implemented at this stage. For this reason, I urge Honourable Members to vote against this amendment.
MR ANDREW WONG (in Cantonese): Madam Chairman, I shall be very brief. For I wish to clarify one point only. The problem mentioned by the Secretary for Constitutional Affairs just now would not arise. For with regard to funding, if the Government considers the District Councils are too small in scale or that they are too scattered, then large scale infrastructure projects will not be given to the District Councils. So, that is not where the root of the problem lies. It lies in the attempt of the Government to retain the former image of the district boards as consultative bodies and therefore future developments are already finalized and there is no intention of making fundings to district boards or to impose any ordinance onto them. This kind of mentality I think is improper. For when reform is made in the three-tier framework to change it into two tiers, if 18 districts are thought to be too many, then there should be a kind of structure at the local levels and progress should be made gradually. And in the new ordinance, the number of districts will be determined by the Chief Executive and it does not have to be restricted to 18. Please read the provisions carefully, they are proposed by you and you can set the number at 10 next time. So I think we are only making something trivial sound overly important. I wish to say thank you to Members who support me.
Thank you, Madam Chairman.
MISS CHRISTINE LOH (in Cantonese): Madam Chairman, Mr Andrew WONG has given us an example just now. I think that this is already good enough to refute the only argument put forward by the Secretary to urge Honourable Members not to support my amendment. I believe many of my Honourable colleagues who are familiar with the administration and financial operations of the district boards would accept Mr WONG's explanation. If this is so, then they may as well support my amendment instead.
CHAIRMAN (in Cantonese): I now put the question to you and that is: That the amendment to clause 59 moved by the Secretary for Constitutional 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 motion passed.
CHAIRMAN (in Cantonese): Miss Christine LOH, as the amendment moved by the Secretary for Constitutional Affairs has been passed, I granted you leave to revise the terms of your amendment, and the revised amendment has been set out in the paper circularized to Members on 9 March. You may now move your amendment.
MISS CHRISTINE LOH: Madam Chairman, I move that clause 59 be further amended as set out in the paper circularized to Members.
MISS CHRISTINE LOH (in Cantonese): I just want to say a few words. Although there are some minor changes in my amendment, that does not contradict with what I have just said. I urge Honourable Members to support me.
Proposed amendment
Clause 59 (see Annex IV)
CHAIRMAN (in Cantonese): I now put the question to you and that is: That the amendment moved by Miss Christine LOH be passed. Will those in favour please raise their hands?
(Members raised their hands)
CHAIRMAN (in Cantonese): Those against please raise their hands.
(Members raised their hands)
Miss Christine LOH rose to claim a division.
CHAIRMAN (in Cantonese): Miss Christine LOH has claimed a division. The division bell will ring for one minute.
CHAIRMAN (in Cantonese): I wish to remind Members who have just come into the Chamber that voting is being taken on Miss Christine LOH's amendment.
CHAIRMAN (in Cantonese): Will Members please proceed to vote?
CHAIRMAN (in Cantonese): Before I declare that the voting shall stop, Members may wish to check their votes. Are there any queries? Voting shall now stop and the result will be displayed.
Functional Constituencies:
Mr Michael HO, Dr Raymond HO, Mr Eric LI, Mr LEE Kai-ming, Dr LUI Ming-wah, Miss Margaret NG, Mr CHEUNG Man-kwong, Mr Bernard CHAN, 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, 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 Timothy FOK, Mr FUNG Chi-kin and Dr TANG Siu-tong voted against the motion.
Geographical Constituencies and Election Committee:
Mr Albert HO, Mr LEE Wing-tat, Mr Martin LEE, Mr Fred LI, Mr James TO, Miss Christine LOH, Mr Andrew WONG, Dr YEUNG Sum, Mr Andrew CHENG, Mr SZETO Wah and Mr NG Leung-sing voted for the motion.
Miss CHAN Yuen-han, Mr Gary CHENG, Mr Jasper TSANG, Mr TAM Yiu-chung, Mr David CHU, Mr HO Sai-chu, Mr CHAN Kam-lam, Mr YEUNG Yiu-chung, Mr Ambrose LAU and Miss CHOY So-yuk voted against the motion.
THE CHAIRMAN, Mrs Rita FAN, did not cast any vote.
THE CHAIRMAN announced that among the Members returned by functional constituencies, 28 were present, 11 were in favour of the motion and 17 against it; while among the Members returned by geographical constituencies through direct elections and by the Election Committee, 22 were present, 11 were in favour of the motion and 10 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.
CLERK (in Cantonese): Clause 59 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.
CLERK (in Cantonese): Clause 67.
MR SIN CHUNG-KAI (in Cantonese): Madam Chairman, I move the amendment to clause 67, as set out in the paper circularized to Members.
Madam Chairman, clause 67(1) the District Councils Bill proposes that public officers be appointed to act as secretaries to the District Councils. The Democratic Party has great reservations on this. We think that the staff of the secretariat of the District Councils should be people who are not public officers. That would be more appropriate. First, as the District Councils are assemblies formed mostly by popular elections, they represent the public in giving advice to the Government and discussing with it in all kinds of local affairs, including the improvement of the environment and the promotion of cultural and recreational activities. The Democratic Party thinks that an independent secretariat should be set up to serve the District Councils. This will help the District Councils in representing public opinion and prevent them from having the constitutional position of a department or an organization under the Government.
Second, the Chief Executive in his policy address last October pledged to enhance the consultative and monitoring functions of the district boards in municipal services. This is intended to ensure that the Government can consult the district boards and listen to their advice before any plans affecting the local community are implemented. If the district boards are to give full play to their functions of monitoring the Government and representing public opinion, we need to have district boards which are entirely returned by popular elections in the first place. Then there should be an independent secretariat whose staff are employed by the district boards and be accountable to them. The secretariat should be outside the civil service system and independent of the Government and its rules and regulations, unaffected by the staff deployment of the various government departments.
An independent secretariat has the advantage of providing a more stable source of clerical support and this will help the district boards in discharging their duties more effectively. The autonomy of the district boards will be raised and they will be subject to less pressure from the resource deployment and stringency plans of the Government. As a matter of fact, at a time when the Civil Service and the employment mechanisms of civil servants have come under review, the Democratic Party thinks that it is the right time to demand for the setting up of a secretariat for the district boards. The district boards should be given a free hand in making decisions on resources and their deployment, thus increasing the cost-effectiveness. But unfortunately, as the Basic Law has already stipulated restrictions on motions to be moved in the Legislative Council, that motions which are moved by Legislative Council Members having a charging effect must be approved by the Chief Executive in the first place. Therefore, the Democratic Party is unable to propose an amendment to this Bill, providing for the setting up of an independent secretariat. We are therefore amending the requirement that the secretary to a district board must be filled by a public officer by seeking to delete "a public officer" and substituting "any person" to be decided by the District Council concerned. I must emphasize that this amendment is only a minor step towards the setting up of an independent secretariat. I hope that the Government can give due consideration to this proposal and give serious thoughts to the setting up of an independent secretariat.
Madam Chairman, I have been a district board member for 14 years, a member of the Regional Council for six years and I have also served the Legislative Council for a few years. I am well aware of the quality of service in the various secretariats. The Legislative Council secretariat is certainly the best among these. As a matter of fact, Honourable colleagues who have been involved in the various panels and committees, as well as the inquiry into the new airport, will certainly appreciate the high degree of professionalism in the Legislative Council Secretariat. The fact that it is an independent secretariat makes it more efficient in providing quality services to Members. The secretariats of the Municipal Councils are not as independent as the Legislative Council, but they are still of a considerable scale. They are in a certain degree affected by the chairman of the Regional Council and the chairman of the Urban Council, but they can be said to be relatively independent. At present, the secretary of a district board is also a staff member of the sub-office of the district office of the Home Affairs Department, although that person is appointed to the secretariat. From my experience as a member of the district board for many years, the secretariat of a district board is mostly composed of public officers. Take the example of the Kwai Ching District Board for which I am serving, there is one Senior Executive Officer, one Executive Officer I and two Executive Officer IIs, apart from some elected persons. Since the Government does not have a high regard for the district boards, whenever there is staff shortage in other departments, one of these four officers will be transferred. The remaining three officers will have to be responsible for the operation of the secretariat for at least a few months. There are no arrangements as to how this situation is to be solved. The present system includes a district management committee and the secretary of the district board is also the secretary of that committee. This arrangement can of course facilitate the exchange of correspondence, but it is doubtful that independence can be maintained. If the Government is to take the best advice and to let district boards play the best of their roles, it should consider the setting up of an independent secretariat for each district board. This would be of great help to the collection of public opinion at the grassroots level.
In the long run, I hope that the Government can heed the advice of the Democratic Party and set up an independent secretariat for each district board.
Proposed amendment
Clause 67 (see Annex IV)
CHAIRMAN (in Cantonese): Does any Member wish to speak?
(No Member indicated a wish to speak)
SECRETARY FOR CONSTITUTIONAL AFFAIRS (in Cantonese): Madam Chairman, under the existing arrangement, a Senior Executive Officer employed by the Government will serve as the secretary of a district board. The Senior Executive Officers are well-versed in the operation of the Government; hence, they could handle the work at ease and help their respective district boards to perform the various functions. Should there be any personnel problems, such as in the case of a secretary resigning from office or taking long leave, the Government could promptly arrange for another person to fill the post. However, if the secretary is to be employed by the District Council concerned in the future, the same flexibility will hardly be available. What is more, due to the lack of career prospect, the District Councils will find it hard to recruit the right employees who are willing to serve for a longer term. In view of the smooth operation of the existing district coard secretariats and the close collaboration between the secretary and the chairman and members in each district board, I am afraid the amendment moved by Mr SIN Chung-kai will serve to do more harm than good. As such, I urge Honourable Members to vote down this amendment.
MR JAMES TO (in Cantonese): Madam Chairman, if the grounds put forward by the Government to oppose Mr SIN Chung-kai's amendment are the remarks just now made by the Secretary, then they are very feeble indeed. Why? The arguments he has given are on smooth operation and the handling of a familiar job with ease. But I doubt if this kind of people cannot be found in the private sector. To be frank, there are many statutory bodies which will employ public officers, or those who have worked in the Government but have left and worked in the private sector.
I think it is hard to justify the ground that it is impossible to employ those available in the job market who are equally familiar with the operation of government organizations. Secondly, the staff of the district boards are working very smoothly and their chairman does not seem to find any problems. I think they can be given a greater degree of flexibility, for that is only giving the members of the district boards another option. For example, Mr SIN Chung-kai has been the chairman of a district board, the members of his district board are very familiar with the way things are running. If they find that someone they have employed is not familiar with the operation of the Government, or that the efficiency of the district board suffers as a result, then I think the members would not be so indiscreet as to allow this situation to continue. I think the real reasons behind this issue are not that simple. I suspect the Government wants to strengthen its grip on the district boards. It thinks that the inclusion of appointed members is not enough. Ex officio members are also added. Then the Chief Executive can issue directions to require the staff must be government officers.
From another perspective, the Legislative Council used to be not an independent body. The setting up of an independent secretariat can instil greater confidence in the Members. Should some kind of consensus be reached in the district boards that staff should be employed from outside the Government, then I think they should be given some flexibility in this regard. Lastly, for all items of public expenditure, the Government can set up some kind of regulatory system or draw up some guidelines so that the district boards will not employ someone whose terms and conditions of employment are very much different from those staff, say Executive Officers, originally provided by the Government. Then there will not be any worries about whether favouritism will exist, or that someone's friends, wife, or husband may take up the post, or that the holder of a certain post will enjoy a lucrative monthly salary close to half a million dollars and so on. In fact, a reasonable regulation can be exercised through the setting up of some kind of a framework. On the other hand, if district boards are only allowed to employ public officers, and that they are not allowed to put their collective views into practice, that is in the hiring of people outside the Government, then I would think that the Government's wish to control the district boards is too obvious. Despite cosmetic efforts, such as putting forward reasons like the need for familiarity of the operations and even smooth co-operation, convenience of doubling and acting appointments and so on, the argument is still unjustified.
CHAIRMAN (in Cantonese): Before I invite Mr SIN Chung-kai to reply, does any other Member wish to speak?
(No Member responded)
CHAIRMAN (in Cantonese): Mr SIN Chung-kai, do you wish to reply?
MR SIN CHUNG-KAI (in Cantonese): Madam Chairman, I will not reply for there is no use doing so.
CHAIRMAN (in Cantonese): I now put the question to you and that is: That the amendment moved by Mr SIN Chung-kai be passed. Will those in favour please raise their hands?
(Members raised their hands)
CHAIRMAN (in Cantonese): Those against please raise their hands.
(Members raised their hands)
Mr James TO rose to claim a division.
CHAIRMAN (in Cantonese): Mr James TO has claimed a division. The division bell will ring for one minute.
CHAIRMAN (in Cantonese): Will Members please proceed to vote.
CHAIRMAN (in Cantonese): Before I declare that the voting shall stop, Members may wish to check their votes. Are there any queries? Voting shall now stop and the result will be displayed.
Functional Constituencies:
Mr Michael HO, 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, Dr Raymond HO, Mr Eric LI, Dr LUI Ming-wah, Mr Ronald ARCULLI, Mr Ambrose CHEUNG, Mr HUI Cheung-ching, Mr CHAN Kwok-keung, Mr Bernard CHAN, 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 Timothy FOK, Mr FUNG Chi-kin and Dr TANG Siu-tong voted against the motion.
Mr LEE Kai-ming abstained.
Geographical Constituencies and Election Committee:
Mr Albert HO, Mr LEE Wing-tat, Mr Martin LEE, Mr Fred LI, Mr James TO, Miss Christine LOH, Dr YEUNG Sum, Mr Andrew CHENG and Mr SZETO Wah voted for the motion.
Miss CHAN Yuen-han, Mr Gary CHENG, Mr Jasper TSANG, Mr TAM Yiu-chung, Mr David CHU, Mr HO Sai-chu, Mr NG Leung-sing, Mr CHAN Kam-lam, Mr YEUNG Yiu-chung, Mr Ambrose LAU and Miss CHOY So-yuk voted against the motion.
THE CHAIRMAN, Mrs Rita FAN, did not cast any vote.
THE CHAIRMAN announced that among the Members returned by functional constituencies, 27 were present, six were in favour of the motion, 20 against it and one abstained; while among the Members returned by geographical constituencies through direct elections and by the Election Committee, 21 were present, nine were in favour of the motion and 11 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.
CHAIRMAN (in Cantonese): As the amendment moved by Mr SIN Chung-kai has been negatived, I now put the question to you and that is: That clause 67 stand part of the Bill. 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.
CHAIRMAN (in Cantonese): We will now deal with the part of the Bill relating to "qualifications of committee member".
CLERK (in Cantonese): Clause 69.
CHAIRMAN (in Cantonese): The Secretary for Constitutional Affairs, Mr Fred LI and Mr Ronald ARCULLI have separately given notices to move amendments to clause 69. As the Secretary for Constitutional Affairs and Mr Fred LI's amendments are mutually exclusive, they will be debated together in a joint debate. After the joint debate, we will deal with Mr Ronald ARCULLI's amendment.
Committee will now proceed to a joint debate. I will first call upon the Secretary for Constitutional Affairs to move his amendment, as he is the public officer in charge of the Bill.
SECRETARY FOR CONSTITUTIONAL AFFAIRS (in Cantonese): Madam Chairman, I move that clause 69(2) be amended by deleting "section 20" and substituting "section 20(1)".
The purpose of the amendment is to state clearly that any person who is not a member may be appointed to a committee only if he or she satisfies the qualifications set out in section 20(1), which are the qualifications for being nominated as a candidate. I hereby urge Honourable Members to support the amendment.
Proposed amendment
Clause 69 (see Annex IV)
CHAIRMAN (in Cantonese): I will call upon Mr Fred LI to speak on the amendment moved by the Secretary for Constitutional Affairs as well as his own amendment, but will not ask Mr Fred LI to move his amendment unless the Secretary for Constitutional Affairs' amendment has been negatived. If the Secretary for Constitutional Affairs' amendment is passed, that will by implication mean that Mr Fred LI's amendment is not approved.
MR FRED LI (in Cantonese): Madam Chairman, clause 69(2) of the District Councils Bill proposes that persons appointed to a committee in a District Council shall also satisfy the qualifications for nomination as a candidate and for being elected as a member of a District Council. These qualifications include the person shall have reached 21 years of age, being an elector, not disqualified from voting at an election, not disqualified from being nominated as a candidate and has ordinarily resided in Hong Kong for three years immediately preceding the nomination.
That is to say, a member of a committee under a District Council, commonly called a co-opted member, shall satisfy the following qualifications as proposed by the Government: being a permanent resident of Hong Kong; be on the voter register; has not been sentenced to death or imprisonment in Hong Kong or any other place without serving the sentence; not been convicted of a corrupt practice or an illegal practice or an offence under the Prevention of Bribery Ordinance within three years before the election; not been convicted of any offence in Hong Kong or any other place in respect of which the person has been sentenced to imprisonment for a term exceeding three months within five years before the election; and be financially sound and not an undischarged bankrupt.
Apart from these, a person is disqualified from holding office as an co-opted member if the person is a judicial officer or a prescribed public officer, such as being employed in the Independent Commission Against Corruption, the Office of the Ombudsman and the various government departments. The Bill also covers people employed in the Equal Opportunities Commission, the Office of the Privacy Commissioner for Personal Data, or as a representative or a salaried functionary of the government of a place outside Hong Kong or a member of any legislature, assembly or council outside Hong Kong.
Obviously, these many restrictions have not existed before. According to the previous District Boards Ordinance, any person who is not a member of a district board shall have the opportunity of becoming a co-opted member and participating in the affairs of the district. Therefore, in the appointment of co-opted members, the district boards had a greater flexibility to allow people from all walks of life, including both professionals and non-professionals, to take part in the committees they were interested in joining, or where their expertise could be tapped. This would allow the inclusion of different opinions and help the district boards to promote their work. The Democratic Party thinks that the previous system could absorb more talents and encourage the public to take part in district affairs.
The Democratic Party cannot agree to the Government's views. There are some experts who may not be eligible to be a member of a district board, such as holders of a passport of a foreign country and who have lived in Hong Kong for a long time, or those who are employed in the Government. They can attend a meeting of a committee and discuss items on its agenda even if they cannot become co-opted members. This will do no harm to the enthusiasm of these people in taking part in the affairs of the district. They can be permitted to attend the meetings though they are not allowed to vote. The committees should decide on the steps and attitude to be taken in this issue, so that these people who have the enthusiasm for community affairs will not be barred from working in the committees.
We cannot see why a person who, for example, is an officer in the Works Bureau or is employed in the Equal Opportunities Commission, should not be allowed to take part in a committee under a District Council as a co-opted member and air his opinions on and take part in the improvement of matters related to traffic or cultural and recreational matters. Clause 69(2) of the Bill is apparently setting out some unequal requirements to restrict certain people from taking part in community affairs. This is a violation of article 25 of the International Covenant on Civil and Political Rights which specifies that every citizen shall have the right and the opportunity to take part in the conduct of public affairs in the public assembly of his community.
In making the Bill's proposal, the Government said that the duties of co-opted members were similar to those of the members of the District Councils. Since co-opted members have the right to vote in committee meetings, so they should be regarded on the same par with the members. They must therefore also satisfy the qualifications for becoming members. But in the constitutional framework, there is a great disparity between the status and duties of District Council members and co-opted members. Elected members are returned through the electoral system and they have the mandate of the public in their respective districts. They represent the public in discussing public issues with the Government. However, a co-opted member does not have this mandate and representativeness. We feel that we should not impose the same qualifications required of members on co-opted members.
Furthermore, under the existing constitutional arrangements, the duties of a district board member and a co-opted member are different. For example, members can join the future Election Committee as representatives of regional organizations and vote for a Chief Executive. Members of district boards can apply for subsidies from the Government to set up ward offices where they can meet the public. Co-opted members do not have such subsidies and authority. Therefore, we think that there should not be any legal provisions requiring co-opted members to fulfil the same qualifications as District Council members.
Due to the above reasons, the Democratic Party has proposed an amendment to lift the restrictions on the qualifications of co-opted members. I beseech Honourable colleagues to support this amendment.
CHAIRMAN (in Cantonese): Members may now debate on the amendment moved by the Secretary for Constitutional Affairs as well as the amendment of Mr Fred LI. Does any Member wish to speak?
(No Member indicated a wish to speak)
SECRETARY FOR CONSTITUTIONAL AFFAIRS (in Cantonese): Madam Chairman, Mr Fred LI proposes to delete clause 69(2), which is the requirement that any person co-opted into a committee under a District Council must satisfy the qualifications for nomination as a candidate. I believe the purpose of Mr LI is to enable more persons to participate in the work of the District Councils. Nevertheless, we do not think there is sufficient justification to support any amendment to this basic requirement for co-opting into a committee under a District Council.
We hold that since there are two types of members in a committee, it should be reasonable to standardize their qualification requirements, thereby enabling them to share the same rights and responsibilities. To become a candidate of a District Council, one only needs to has reached the age of 21, be an elector, and has ordinarily resided in Hong Kong for three years immediately preceding the nomination. These requirements could enable the District Councils to appoint persons with sufficient local experience and community knowledge to support the work of the districts councils. For this reason, I urge Honourable Members to vote down Mr Fred LI's amendment.
MR JAMES TO (in Cantonese): Madam Chairman, I have a feeling that the suspicions that I mentioned just now are completely justified. All the amendments proposed by the Government are interrelated. The Government is trying all sorts of means to increase its power and control at various levels. Such controls are being extended to the secretariats, the appointment of non-public officers and the appointment of co-opted members in the committees under the various District Councils. For these are within the purview of the District Councils, and so the Government is imposing numerous bars and hurdles on these.
Let me give some examples. If some people of the age of 18, 19 or 20 are needed to lead some youth activities in the district, this will not be possible because of the provision in clause 20. Or if someone is fully qualified to become a voter, but merely because he is not registered, then he cannot become a co-opted member. There are provisions which specify that he must be a voter, not someone who is qualified to be one. This is really puting in place unnecessary restrictions. Just now the Government said that we should not place unnecessary restrictions to limit the candidates whom the Chief Executive considers fit for appointment. From this same perspective, why are the District Councils imposing such unnecessary restrictions? The Bill as it stands provides that members to be co-opted must have resided in Hong Kong for three years immediately before the nomination. As for the relationship between familiarity of the affairs of a district and whether a person has resided in Hong Kong for three years, Mr SIN Chung-kai has explained on this just now. The District Councils should not take members as fools. Besides, there are at least some appointed members in the District Councils. As the Government has put it, appointed members are no fools, but those elected are fools, the reason being the Government will not appoint some people as members recklessly. If a person is really unsuitable or unable to discharge his duties, there will be at least some public outcry against him. Why is the Government placing all sorts of restrictions on these consultative bodies? I really do not understand it. Does the Government lack confidence in the members and is not sure of what is going to happen? And so they are putting all sorts of obstacles. It would be much better if appointed members are required to obtain the approval of the district officer of their respective districts. This is making another appointment on top of the appointment. Would that be just great? The entire Bill is simply like that. One just shudders to think how terrifying the Government's mentality is. There is a total lack of trust in the voters, the members elected and in the entire framework. If this is so, what kind of measures will the Government take in the future constitutional development?
What the Government is doing today is like a mirror reflecting what the Government will be thinking in the future and what kind of mentality it has. I hope this is only something which some officials or members of the Executive Council are thinking, and not what the entire Government and the whole Executive Council are thinking. Otherwise, it would be very worrying to think what position the Hong Kong people will find themselves in.
CHAIRMAN (in Cantonese): Before I put the question to you, does any other Member wish to speak?
(No Member responded)
CHAIRMAN (in Cantonese): I now put the question to you and that is: That the amendment moved by the Secretary for Constitutional Affairs be passed. Will those in favour please raise their hands?
(Members raised their hands)
CHAIRMAN (in Cantonese): Those against please raise their hands.
(Members raised their hands)
Mr James TO rose to claim a division.
CHAIRMAN (in Cantonese): Mr James TO has claimed a division. The division bell will ring for one minute.
CHAIRMAN (in Cantonese): Members may wish to check their votes. If there are no queries, I declare voting shall now stop and the result will be displayed.
Mr Kenneth TING, Mr James TIEN, Mr David CHU, Mr HO Sai-chu, Mr Edward HO, Dr Raymond HO, Mr Eric LI, Mr LEE Kai-ming, Dr LUI Ming-wah, Mr NG Leung-sing, Mr Ronald ARCULLI, Mr Ambrose CHEUNG, Mr HUI Cheung-ching, Mr CHAN Kwok-keung, Miss CHAN Yuen-han, Mr CHAN Wing-chan, Mr CHAN Kam-lam, Dr LEONG Che-hung, Mrs Sophie LEUNG, Mr Gary CHENG, Dr Philip WONG, Mr WONG Yung-kan, Mr Jasper TSANG, Mr Howard YOUNG, Mr YEUNG Yiu-chung, Mr LAU Wong-fat, Mrs Miriam LAU, Mr Ambrose LAU, Miss CHOY So-yuk, Mr Timothy FOK, Mr TAM Yiu-chung, Mr FUNG Chi-kin and Dr TANG Siu-tong voted for the motion.
Mr Albert HO, Mr Michael HO, Mr LEE Wing-tat, Mr Martin LEE, Mr Fred LI, Miss Margaret NG, Miss James TO, Mr CHEUNG Man-kwong, Mr Bernard CHAN, Mr SIN Chung-kai, Dr YEUNG Sum, Mr Andrew CHENG, Mr SZETO Wah and Mr LAW Chi-kwong voted against the motion.
THE CHAIRMAN, Mrs Rita FAN, did not cast any vote.
THE CHAIRMAN announced that there were 48 Members present, 33 were in favour of the motion and 14 against it. Since the question was agreed by a majority of the Members present, she therefore declared that the motion was carried.
CHAIRMAN (in Cantonese): Mr Fred LI, as the amendment to clause 69 moved by the Secretary for Constitutional Affairs has been passed, you may not move your amendment, which is inconsistent with the decision already taken. Mr Ronald ARCULLI, you may now move your amendment to clause 69.
MR RONALD ARCULLI: Madam Chairman, I move that clause 69 be further amended as set out in the paper circularized to Members.
The amendment that I am seeking is to ensure that a committee of a District Council would comprise a majority of members of the District Council rather than persons who, not being members, are appointed to the committee.
It seems to me that where a committee of this nature has the ability for any member of the committee, including non-District Council members, to vote and to be counted as quorum. More importantly, where the District Council itself can delegate any of its functions to such a committee, it is in common sense and is a good practice that the majority of such a committee would be members of the District Council who are elected. Of course, there would be ex officio or appointed members, too.
However, at the end of the day, I cannot understand why the Administration is objecting to my amendment, and I will deal with that later when I hear of the reasons given by the Administration. But I hope that Members will support my amendment.
Proposed amendment
Clause 69 (see Annex IV)
CHAIRMAN (in Cantonese): Does any Member wish to speak?
MR FRED LI (in Cantonese): Madam Chairman, the Democratic Party supports the amendment moved by Mr ARCULLI, as simple as that. We think that it is only proper for the majority of a committee under a District Council to be composed of members of the District Council. That would ensure more members of a District Council can take part in the work of these committees.
SECRETARY FOR CONSTITUTIONAL AFFAIRS (in Cantonese): Madam Chairman, Mr Ronald ARCULLI has moved to add a new provision, subclause (2A), to the end of clause 69. The purpose of the amendment is to stipulate that the number of co-opted members in a committee under a District Council shall not exceed one half of the membership of that committee. I could understand the concern of Mr ARCULLI in this respect; however, the absence of legal provisions in this respect does not imply that the situation concerned would not be subject to any control. Actually, a District Council may make standing orders in accordance with clause 66 to regulate its proceedings and that of its committees. We consider it the best arrangment for individual District Councils to make standing orders to regulate their respective committees; as such, we are opposed to the proposal to stipulate the relevant requirements by law. For this reason, I urge Honourable Members to vote against the amendment.
MR RONALD ARCULLI: Madam Chairman, it seems to me that a requirement of this type ought to be desirable simply because the last thing we would want is for our 18 District Councils to have a different composition. How can we possibly leave it to each individual District Council to decide how they make up their committees? I am not saying that they should have three, five or seven members, or whatever. All I am saying is, whatever they decide on, the majority should be members of the District Council.
It is not really a matter for standing orders, and I certainly hope that it is not a matter where the Chief Executive would exercise his power under section 83. It is a very simple request, and I think a very sensible one. Thus, I think, if nothing at all, in ensuring uniformity as opposed to a free-for-all measure, my amendment makes an eminent lot of sense.
Thank you.
CHAIRMAN (in Cantonese): I now put the question to you and that is: That the amendment moved by Mr Ronald ARCULLI be passed. Will those in favour please raise their hands?
(Members raised their hands)
CHAIRMAN (in Cantonese): Those against please raise their hands.
(Members raised their hands)
Miss Christine LOH rose to claim a division.
CHAIRMAN (in Cantonese): Miss Christine LOH has claimed a division. The division bell will ring for one minute.
CHAIRMAN (in Cantonese): Will Members please cast their votes?
CHAIRMAN (in Cantonese): Before I declare voting shall stop, Members may wish to check their votes. If there are no queries, voting shall now stop and the result will be displayed.
Functional Constituencies:
Mr Kenneth TING, Mr James TIEN, Mr Edward HO, Mr Michael HO, Dr Raymond HO, Mr Eric LI, Mr LEE Kai-ming, Dr LUI Ming-wah, Miss Margaret NG, Mrs Selina CHOW, Mr Ronald ARCULLI, Mr CHEUNG Man-kwong, Mr Ambrose CHEUNG, Mr Bernard CHAN, Dr LEONG Che-hung, Mrs Sophie LEUNG, Mr SIN Chung-kai, Mr Howard YOUNG, Mr LAU Wong-fat, Mrs Miriam LAU and Mr LAW Chi-kwong voted for the motion.
Mr HUI Cheung-ching, Mr CHAN Kwok-keung, Mr CHAN Wing-chan, Dr Philip WONG, Mr WONG Yung-kan, Mr Timothy FOK, Mr FUNG Chi-kin and Dr TANG Siu-tong voted against the motion.
Geographical Constituencies and Election Committee:
Mr Albert HO, Mr LEE Wing-tat, Mr Martin LEE, Mr Fred LI, Mr James TO, Miss Christine LOH, Dr YEUNG Sum, Mr Andrew CHENG, Mr SZETO Wah, Mr HO Sai-chu and NG Leung-sing 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 CHAN Kam-lam, Mr YEUNG Yiu-chung, Mr Ambrose LAU and Miss CHOY So-yuk voted against the motion.
THE CHAIRMAN, Mrs Rita FAN, did not cast any vote.
THE CHAIRMAN announced that among the Members returned by functional constituencies, 29 were present, 21 were in favour of the motion and eight against it; while among the Members returned by geographical constituencies through direct elections and by the Election Committee, 22 were present, 11 were in favour of the motion and 10 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.
CLERK (in Cantonese): Clause 69 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.
CLERK (in Cantonese): Clause 86 and Schedule 6.
SECRETARY FOR CONSTITUTIONAL AFFAIRS (in Cantonese): Madam Chairman, I move that clause 86 and the consequential amendments to relevant Ordinances proposed in Schedule 6 be amended, as set out in the paper circularized to Members. The amendments are purely technical in nature. I hereby urge Honourable Members to support them.
Proposed amendments
Clause 86 (see Annex IV)
Schedule 6 (see Annex IV)
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 Constitutional 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 motion passed.
MR FRED LI (in Cantonese): Madam Chairman, I move the amendment to section 12 of Schedule 6, as set out in the paper circularized to Members.
Madam Chairman, section 12 of Schedule 6 of the District Councils Bill proposes that a consequential amendment be made to section 3(1)(e) of the Corrupt and Illegal Practices Ordinance.
The original provision of this Ordinance states that the Corrupt and Illegal Practices Ordinance is applicable to the district boards and the elections to elect members of district boards, as well as the elections which elect representatives from among district board members to the Urban Council or the Regional Council. The Bill also proposes to change the English name of the "District Doard" into "District Council" and to delete the wording on the election of members representing the district boards to be members of the Urban Council or the Regional Council. This is obviously a prelude to the abolition of the Municipal Councils. Therefore, I feel compelled to propose this amendment. Though it is an amendment in wording, I hope my real intention can be understood. This is especially so for two of our colleagues come from the Urban Council.
Before the derailment of the political system, there were nine members in the Urban Council who were returned by indirect elections. They were elected by the district boards in their respective districts from among their members. At the same time, there were also nine members in the Regional Council returned by indirect elections. They are also members of district boards elected into the Urban Council. This is in fact an important arrangement in the three-tier representative government because the Urban Council will elect a representative into the Legislative Council and so election is made from one tier to another.
In this Bill, the Government has proposed to cancel the arrangement whereby indirect elections will be conducted among the district board members to elect representatives into the Urban Council and the Regional Council. This is really a dismemberment of this three-tier structure and in particular a severing of the ties between the district boards and the Urban Council, making way for the scrapping of the Municipal Councils in future. Another example is in the Legislative Council (Amendment) Bill where the Government cancels the seat in the Legislative Council of the representative of indirect election in the Urban Council. The Legislative Council (Amendment) Bill which is currently under scrutiny has deleted the seats in the Legislative Council of representative members of the Urban Council and the Regional Council. This reflects the problem which I have just mentioned.
There have been great controversies in the parliamentary assemblies on the Government's proposal to scrap the Municipal Councils and sever that vital link in the middle of the three tiers. The Urban Council has passed a motion expressing regrets to the Government's proposal. The Municipal Councils have proposed the "one Municipal Council, one department" proposal to preserve the existing three-tier structure. In last July, the Legislative Council debated on the motion on "Review of District Organizations" moved by Mr Ambrose CHEUNG. During the debate, the Democratic Party, the Democratic Alliance for the Betterment of Hong Kong and the Liberal Party all requested the Government to give serious thoughts to the "one Municipal Council, one department" proposal made by the Municipal Councils.
Before the Government makes the proposal to scrap the two Municipal Councils, it has sought in the District Councils Bill to delete the provisions regarding the indirect election of representatives of district boards into the Municipal Councils. We think that this is a furtive step made in advance. The Democratic Party thinks that this provision should be dealt with when the Government proposes the bill to scrap the two Municipal Councils. No changes should be made at the present moment.
What we have in mind when we propose that the original provision regarding section 3(1)(e) of the Corrupt and Illegal Practices Ordinance be kept unchanged is that there should only be consequential amendments made to change the English name of the "District Board" into "District Council".
In the Government's response to my proposal, it is pointed out that section 3(e), (c) and (d) of the Corrupt and Illegal Practices Ordinance has already covered the elections of the Urban Council and the Regional Council, including direct elections and elections to choose representatives of members. However, this is quite an ambiguous explanation, given after the deletion of some express provisions. So we ask that the status quo be kept for the moment until the bill to scrap the two Municipal Councils is proposed, then the Government can deal with the issue of deleting this provision.
I beseech Honourable colleagues of this Council to support my amendment to preserve the relevant wording in the provision, especially when the issue of "council scrapping" has been debated for so many times in the Urban Council. Thank you.
Proposed amendment
Schedule 6 (see Annex IV)
CHAIRMAN (in Cantonese): Does any Member wish to speak?
(No Member indicated a wish to speak)
SECRETARY FOR CONSTITUTIONAL AFFAIRS (in Cantonese): Madam Chairman, I am afraid Mr Fred LI is being overly sensitive. The object of his amendment is to retain in the Corrupt and Illegal Practices Ordinance the provision regarding the two Municipal Councils. As a matter of fact, however, he has admitted a moment ago that the elections of the two Municipal Councils were clearly included in sections 3(1)(c) and 3(1)(d) of the Ordinance. Hence, we consider it unnecessary to introduce any amendment in this connection, and that Mr LI's amendment will serve no practical purposes but give rise to repetitious provisions. I hereby urge Honourable Members to vote against the amendment.
MR FRED LI (in Cantonese): Madam Chairman, the purpose of this amendment is in fact to keep the existing wording. My purpose is clear, and that is to leave this issue pending the proposal of the relevant bill by the Government. The time may be this April or May, depending on the final decision of the Government. I hope that Honourable Members can support this amendment. We are not giving up this issue, we are just laying it aside until the Government proposes a bill on this.
CHAIRMAN (in Cantonese): I now put the question to you and that is: That the amendment moved by Mr Fred LI be passed. Will those in favour please raise their hands?
(Members raised their hands)
CHAIRMAN (in Cantonese): Those against please raise their hands.
(Members raised their hands)
Mr James TO rose to claim a division.
CHAIRMAN (in Cantonese): Mr James TO has claimed a division. The division bell will ring for one minute.
CHAIRMAN (in Cantonese): Will Members please proceed to vote.
CHAIRMAN (in Cantonese): Before I declare that the voting shall stop, Members may wish to check their votes. If there are no queries, voting shall now stop and the result will be displayed.
Functional Constituencies:
Mr Michael HO, Miss Margaret NG, Mr CHEUNG Man-kwong, Mr Ambrose CHEUNG, Mr SIN Chung-kai, Mr LAU Wong-fat, Mr LAW Chi-kwong and Dr TANG Siu-tong 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 Bernard CHAN, Mr CHAN Wing-chan, Dr LEONG Che-hung, Mrs Sophie LEUNG, Dr Philip WONG, Mr WONG Yung-kan, Mr Howard YOUNG, Mrs Miriam LAU, Mr Timothy FOK and Mr FUNG Chi-kin voted against the motion.
Geographical Constituencies and Election Committee:
Mr Albert HO, Mr LEE Wing-tat, Mr Martin LEE, Mr Fred LI, Mr James TO, Dr YEUNG Sum, Mr Andrew CHENG and Mr SZETO Wah voted for the motion.
Miss Christine LOH, 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, Mr CHAN Kam-lam, Mr YEUNG Yiu-chung, Mr Ambrose LAU and Miss CHOY So-yuk voted against the motion.
THE CHAIRMAN, Mrs Rita FAN, did not cast any vote.
THE CHAIRMAN announced that among the Members returned by functional constituencies, 29 were present, eight were in favour of the motion and 21 against it; while among the Members returned by geographical constituencies through direct elections and by the Election Committee, 22 were present, eight were in favour of the motion and 13 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.
CLERK (in Cantonese): Clause 86 and Schedule 6 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.
(Members raised their hands)
CHAIRMAN (in Cantonese): Does any Member wish to claim a division?
(No Member responded)
CHAIRMAN (in Cantonese): I think the question is agreed by a majority of the Members present. I declare the motion passed.
Clause 2
SECRETARY FOR CONSTITUTIONAL AFFAIRS (in Cantonese): Madam Chairman, I move that the definitions of ordinary election and prescribed public officer in clause 2 be amended, as set out in the paper circularized to Members.
Proposed amendment
Clause 2 (see Annex IV)
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 Constitutional 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 motion passed.
CLERK (in Cantonese): Clause 2 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.
CLERK (in Cantonese): Clauses 27, 32, 37, 38, 39, 68 and 77.
SECRETARY FOR CONSTITUTIONAL AFFAIRS (in Cantonese): Madam Chairman, I move the amendments to clauses 27, 32, 38, 39, 68 and 77 and the deletion of clause 37, as set out in the paper circularized to Members. I hereby urge Honourable Members to support the amendments.
Proposed amendments
Clause 27 (see Annex IV)
Clause 32 (see Annex IV)
Clause 37 (see Annex IV)
Clause 38 (see Annex IV)
Clause 39 (see Annex IV)
Clause 68 (see Annex IV)
Clause 77 (see Annex IV)
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 Constitutional 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 motion passed.
CHAIRMAN (in Cantonese): As the amendment moved by the Secretary for Constitutional Affairs has been passed, clause 37 will therefore be deleted from the Bill.
CLERK (in Cantonese): Clauses 27, 32, 38, 39, 68 and 77 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.
| CLERK (in Cantonese):
|
New clause 27A
|
Suspension of operation of District Councils to enable ordinary election to be held
|
|
New clause 34A
|
Who are validly nominated candidates
|
|
New clause 38A
|
When election proceedings are terminated or when an election fails
|
|
New clause 84A
|
Transitional: application of section 27A to first ordinary election
|
SECRETARY FOR CONSTITUTIONAL AFFAIRS (in Cantonese): Madam Chairman, I move that new clauses 27A, 34A, 38A and 84A, as set out in the paper circularized to Members, be read the second time. Having accepted the suggestion of the Bills committee, we have proposed to add new clauses 27A and 84A to the Bill, the purpose of which is to authorize the Director of Home Affairs to suspend the operation of the District Councils before the holding of an ordinary election, with a view to preventing any incumbent District Council members from making use of their services at the relevant District Councils to appeal for support from voters.
Moreover, we have also proposed to add new clauses 34A and 38A to the Bill, the purpose of which is to prevent the electoral proceedings from being terminated. We propose that if, after the close of nomination for an election but before the holding of the election, it comes to the knowledge of the Returning Officer that a candidate has died or is disqualified as a candidate, the Returning Officer may immediately revise the list of validly nominated candidates to enable the electoral proceedings to continue. However, in the event that the death or disqualification of a candidate comes to the knowledge of the Returning Officer only after the close of polling for an election, the counting of votes for the election will proceed as scheduled. The Returning Officer will not terminate the electoral proceedings unless the candidate who has died or been disqualified is successful at the election. The purpose of this provision is to avoid any wastage of the time and money the candidates and the Government have invested in the election.
CHAIRMAN (in Cantonese): I now propose the question to you and that is: That new clauses 27A, 34A, 38A and 84A be read the second time.
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 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 clauses 27A, 34A, 38A and 84A.
SECRETARY FOR CONSTITUTIONAL AFFAIRS (in Cantonese): Madam Chairman, I move that new clauses 27A, 34A, 38A and 84A be added to the bill. I hereby urge Honourable Members to support the amendment proposed.
Proposed additions
New clause 27A (see Annex IV)
New clause 34A (see Annex IV)
New clause 38A (see Annex IV)
New clause 84A (see Annex IV)
CHAIRMAN (in Cantonese): I now propose the question to you and that is:That new clauses 27A, 34A, 38A and 84A be added to the Bill.
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 69A
|
A District Council may appoint representatives to be members of the District Management Committee
|
MR ANDREW CHENG (in Cantonese): Madam Chairman, I move that new clause 69A, as set out in the paper circularized to Members, be read the Second time.
Madam Chairman, the most disappointing and regrettable point in respect of the making of the District Councils Bill is that the Government is taking a retrograde step in democracy in restoring the appointment system abolished four years ago and retaining outdated ex officio membership. Another disappointment is that District Councils have not been given more functions. For instance, District Councils are not given greater authority to determine on their own how resources should be utilized. Instead, as before, District Councils will draw up plans and apply to the Home Affairs Bureau for funding. The subordination of District Councils to government departments in a disguised form is a mock on District Councils with the majority of members being returned by popular elections.
Madam Chairman, the councils in many foreign countries are returned by election. These councils also have more say in the management of affairs within their respective districts. For example, they can formulate regulations on the use of roads or traffic control within the districts, submit budgets on the expenditures on public works and social welfare within the districts for consideration by the central government, make management service pledges for districts and urge governments to carry out the pledges. In terms of district management, the existing District Management Committee is a government committee chaired by a District Officer while its members include the representatives of major departments within the district. It provides a forum for departments to hold open discussions and probe into and solve problems in the district. According to the information given by the Government, the terms of reference of the District Management Committee include responding actively to the requests of a District Council, giving priorities to government projects and programmes in the district to meet the needs of the district, encouraging people within the district to take part in district affairs and improving the environment of the district to boost people's sense of belonging. It also makes suggestions on the interim usage of vacant government land in the district. At each meeting of a District Council, the District Management Committee will submit a written report on the work of the Committee and the progress of the work carried out by the Committee in response to Members' requests.
Madam Chairman, under the existing arrangements, a District Council chairman will attend meetings of the District Management Committee. The Government has stated that it will consider the inclusion of a District Council chairman as a member of the District Management Committee to strengthen communication between the District Management Committee and the District Council. Madam Chairman, the Democratic Party thinks that this is not enough for many district problems will first be discussed in committees under the District Council to allow free discussions by people in the district. Therefore, the Democratic Party suggests that a District Council should be empowered to appoint the chairmen of the committees under the District Council who will become members of the District Management Committee. This way, the communication between the District Management Committee and District Council will really be strengthened and more effective discussions on district problems conducted. The Democratic Party also suggests that the relevant administrative arrangements should be incorporated into the provisions of the Bill. In addition to solidifying the legal basis of the District Management Committee, it serves a more important purpose of empowering a District Council to appoint suitable representatives, including the chairmen of the District Council and its subordinate committees, to the District Management Committee. The District Council should also entrust these people to join the District Management Committee as its representatives. This way, a District Council will be more accountable and it will not be subject to directions from the Government. The Government cannot amend its administrative arrangement at any time or determine the District Council representatives who can become members of the District Management Committee. Madam Chairman, with these remarks, I beg to move.
CHAIRMAN (in Cantonese): I now propose the question to you and that is: That new clause 69A be read the Second time.
CHAIRMAN (in Cantonese): Does any Member wish to speak?
(No Member indicated a wish to speak)
SECRETARY FOR CONSTITUTIONAL AFFAIRS (in Cantonese): Madam Chairman, the Government has much reservation about the proposal put forward by Mr Andrew CHENG. The Chairman of a district board is currently attending meetings of the District Management Committee (DMC) as a non-voting member and will become a member of the DMC starting from next year onwards. The chairman should therefore be able to represent the District Council at the DMC meetings and reflect his or her own views or that of the District Council. If the chairman of any committee under the District Council concerned or other members of the District Council are all attending the meetings of the DMC, not only the DMC will be overcrowed with members but the effective operation of the DMC will also be affected. For the reasons I have mentioned just now, I urge Honourable Members to vote against the motion.
CHAIRMAN (in Cantonese): Mr Andrew CHENG, do you wish to reply?
MR ANDREW CHENG (in Cantonese): Madam Chairman, I have nothing special to say in reply because we mainly think that if the chairmen of a Districts Councils and their committees can become members of the District Management Committee, the communication between District Councils and the District Management Committee can be strengthened. However,the reason given by the Secretary that there will be too many people is extremely farfetched. Let me do a rapid calculation, at present, the District Officer chairs the District Management Committee while the officials in the district are members of the Committee, the officials or the chairman of the Committee may not necessarily hold discussions on every matter. Even tough there will be more members, the proposal does merit the Government's consideration for it is possible to effect better communication. In any case, we hope that Members will support this motion. Thank you.
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.
(Members raised their hands)
Mr LEE Wing-tat rose to claim a division.
CHAIRMAN (in Cantonese): Mr LEE Wing-tat has claimed a division. The division bell will ring for one minute.
CHAIRMAN (in Cantonese): Will Members proceed to vote.
CHAIRMAN (in Cantonese): Before I declare that the voting shall stop, Members may wish to check their votes. If there are no queries, voting shall now stop and the result will be displayed.
Functional Constituencies:
Mr Michael HO, Mr CHEUNG Man-kwong, Mr SIN Chung-kai and Mr LAW Chi-kwong voted for the motion.
Mr Kenneth TING, Mr Edward HO, Dr Raymond HO, Mr Eric LI, Mr LEE Kai-ming, Miss Margaret NG, Mr Ronald ARCULLI, Mr Ambrose CHEUNG, Mr HUI Cheung-ching, Mr CHAN Kwok-keung, Mr Bernard CHAN, Mr CHAN Wing-chan, Dr LEONG Che-hung, Mrs Sophie LEUNG, Dr Philip WONG, Mr WONG Yung-kan, Mr Howard YOUNG, Mr LAU Wong-fat, Mrs Miriam LAU, Mr Timothy FOK, Mr FUNG Chi-kin and Dr TANG Siu-tong voted against the motion.
Geographical Constituencies and Election Committee:
Mr Albert HO, Mr LEE Wing-tat, Mr Martin LEE, Mr Fred LI, Mr James TO, Miss Christine LOH, Mr Andrew WONG, Dr YEUNG Sum, 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 CHAIRMAN, Mrs Rita FAN, did not cast any vote.
THE CHAIRMAN announced that among the Members returned by functional constituencies, 26 were present, four were in favour of the motion and 22 against it; while among the Members returned by geographical constituencies through direct elections and by the Election Committee, 23 were present, 10 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.
CHAIRMAN (in Cantonese): In accordance with the Committee's decision, we will note proceed further on new clause 69A.
CLERK (in Cantonese): New clause 70A Audit
MR LEE WING-TAT (in Cantonese): Madam Chairman, I am very happy for we will finish scrutinizing the entire Bill after we have scrutinized this amendment. This is the last Committee stage amendment if I have not read the script incorrectly.
Madam Chairman, I move that new clause 70A, as set out in the paper circularized to Members, be read the Second time. The clause appears very complicated, but it is actually very simple. Its aim is to specify that the accounts of District Councils should be audited by the Audit Commission. Why do I make this proposal? As we all know, the funding given to district boards keeps increasing. The annual expenditures of certain district boards exceed millions of dollars while those of some other district boards reach $10 million, and the total expenditures of 18 district boards total over $120 million. In the public account, the amounts under the control of the so-called controlling officers are less than the overall appropriation to District Councils. Now that our Government often stresses "value for money", the accounts should be unambiguous and public money should be used properly, we do not see why the Government has to oppose allowing the Audit Commission to audit the accounts of District Councils and other relevant accounts. Many public bodies have actually implemented similar provisions. Therefore, Madam Chairman, I will not drag on and I only hope that Honourable colleagues will support us and specify that the funding to District Councils can also be inspected by the Director of Audit. Thank you, Madam Chairman.
CHAIRMAN (in Cantonese): I now propose the question to you and that is: That new clause 70A be read the Second time.
CHAIRMAN (in Cantonese): Does any Member wish to speak?
(No Member indicated a wish to speak)
SECRETARY FOR CONSTITUTIONAL AFFAIRS (in Cantonese): Madam Chairman, as I have referred to in my Second Reading speech, the Director of Home Affairs is currently the controlling officer responsible for the district board funds, and she has already issued a very clear guideline to the district boards regarding the utilization of the funds. The expenses and accounts of the Home Affairs Department, including the voting of district board funds, are vetted by the Audit Commission; as such, there is indeed no need for the accounts of each and every distric council to be audited separately. Moreover, as the principal function of the District Councils is to offer advice to the Administration while the services they provide are run by the Home Affairs Department and other government departments, the existing government control over the finances of the district boards should be sufficient. For this reason, I urge Honourable Members to vote against the motion.
MR LEE WING-TAT (in Cantonese): Madam Chairman, in fact, I fail to see what damage this request will cause the Government or what harm it will do to the public. Certainly, as a controlling officer, the Director of Home Affairs has already checked the accounts. Frankly speaking, in my experience, district boards do have a problem of squandering. For instance, holding a ceremony or celebration costs thousands of dollars, and a function with performances by singers to celebrate an event costs $20,000 to $30,000. Has money been used properly? As I know that the Government intends to increase the funding to District Councils in the coming year, I hope that Honourable colleagues will support our suggestion and monitor District Councils' spending.
Madam Chairman, the Democratic Party will vote against the Bill at the Third Reading. If we lose, we will withdraw from the Chamber in protest. Thank you, Madam Chairman.
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.
(Members raised their hands)
Mr LEE Wing-tat rose to claim a division.
CHAIRMAN (in Cantonese): Mr LEE Wing-tat has claimed a division. The division bell will ring for one minute.
CHAIRMAN (in Cantonese): Will Members please proceed to vote.
CHAIRMAN (in Cantonese): Before I declare that the voting shall stop, Members may wish to check their votes. If there are no queries, voting shall now stop and the result will be displayed.
Functional Constituencies:
Mr Michael HO, Dr Raymond HO, 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 Edward HO, Mr Eric LI, Mr LEE Kai-ming, 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 Timothy FOK, Mr FUNG Chi-kin and Dr TANG Siu-tong voted against the motion.
Geographical Constituencies and Election Committee:
Mr Albert HO, Mr LEE Wing-tat, Mr Martin LEE, Mr Fred LI, Mr James TO, Dr YEUNG Sum, Mr Andrew CHENG and Mr SZETO Wah voted for the motion.
Miss Christine LOH, Miss CHAN Yuen-han, Mr Gary CHENG, Mr Andrew WONG, 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 CHAIRMAN, Mrs Rita FAN, did not cast any vote.
THE CHAIRMAN announced that among the Members returned by functional constituencies, 25 were present, seven were in favour of the motion and 18 against it; while among the Members returned by geographical constituencies through direct elections and by the Election Committee, 23 were present, eight 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 negatived.
CHAIRMAN (in Cantonese): In accordance with the Committee's decision, we will not proceed further on new clause 70A.
CLERK (in Cantonese): Schedules 1, 2 and 5.
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.
CHAIRMAN (in Cantonese): Council will now resume.
Council then resumed.
Third Reading of Bill
PRESIDENT (in Cantonese): Bill: Third Reading.
DISTRICT COUNCILS BILL
SECRETARY FOR CONSTITUTIONAL AFFAIRS (in Cantonese): Madam President, the
District Councils Bill
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 District Councils Bill 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.
(Members raised their hands)
Mr LEE Wing-tat rose to claim a division.
PRESIDENT (in Cantonese): Mr LEE Wing-tat has claimed a division. The division bell will ring for three minutes.
PRESIDENT (in Cantonese): Members may wish to check their votes. If there are no queries, I declare that the voting shall now stop and the result will be displayed.
Mr Kenneth TING, Mr James TIEN, Mr David CHU, Mr HO Sai-chu, Mr Edward HO, Dr Raymond HO, Mr Eric LI, Mr LEE Kai-ming, Dr LUI Ming-wah, Mr NG Leung-sing, Prof NG Ching-fai, Mrs Selina CHOW, Mr Ronald ARCULLI, Mr MA Fung-kwok, Mr Ambrose CHEUNG, Mr HUI Cheung-ching, Mr CHAN Kwok-keung, Miss CHAN Yuen-han, Mr CHAN Wing-chan, Mr CHAN Kam-lam, Dr LEONG Che-hung, Mrs Sophie LEUNG, Mr Gary CHENG, Mr Andrew WONG, Dr Philip WONG, Mr WONG Yung-kan, Mr Jasper TSANG, Mr Howard YOUNG, Mr YEUNG Yiu-chung, Mr LAU Kong-wah, Mr LAU Wong-fat, Mrs Miriam LAU, Mr Ambrose LAU, Miss CHOY So-yuk, Mr Timothy FOK, Mr TAM Yiu-chung, Mr FUNG Chi-kin and Dr TANG Siu-tong voted for the motion.
Miss Cyd HO, Mr Albert HO, Mr Michael HO, Mr LEE Wing-tat, Mr LEE Cheuk-yan, Mr Martin LEE, Mr Fred LI, Miss Margaret NG, Mr James TO, Mr CHEUNG Man-kwong, Miss Christine LOH, Mr LEUNG Yiu-chung, Mr SIN Chung-kai, Dr YEUNG Sum, Mr LAU Chin-shek, Miss Emily LAU, Mr Andrew CHENG, Mr SZETO Wah and Mr LAW Chi-kwong voted against the motion.
THE PRESIDENT, Mrs Rita FAN, did not cast any vote.
THE PRESIDENT announced that there were 58 Members present, 38 were in favour of the motion and 19 against it. Since the question was agreed by a majority of the Members present, she therefore declared that the motion was carried.
(All Members from the Democratic Party withdrew from the Chamber after the vote)
CLERK (in Cantonese): District Councils Bill.
MOTIONS
PRESIDENT (in Cantonese): Motions. Proposed resolution under the Factories and Industrial Undertakings Ordinance and the Interpretation and General Clauses Ordinance.
PROPOSED RESOLUTION UNDER THE FACTORIES AND INDUSTRIAL UNDERTAKINGS ORDINANCE AND THE INTERPRETATION AND GENERAL CLAUSES ORDINANCE
SECRETARY FOR EDUCATION AND MANPOWER (in Cantonese): Madam President, I move the motion under my name as set out on the Agenda.
The Commissioner for Labour made the Construction Sites (Safety) (Amendment) Regulation 1998 under section 7 of the Factories and Industrial Undertakings Ordinance on 20 September 1998 to replace Part VA of the existing Regulations. The purpose of the Amendment Regulation is to improve the safety of and protection for workers working at height.
Many fatal accidents in the construction industry have resulted from workers falling from height. The Administration considers that contractors should provide, whenever possible, a proper working platform for workers working at height. If this is not practicable, a safety net should be used as an alternative. Only when this is again not practical, can a safety belt/harness be used as the most basic safety measure.
However, the existing Regulations do not reflect this modern concept of risk management. As a result, contractors in the construction industry tend to opt for the comparatively inexpensive option of providing workers with safety belts/harnesses as a safety measure. Furthermore, the existing Regulations are too complicated and difficult to understand, and contain too many technical details.
Under the existing Regulations, if the Government decides to initiate a prosecution, it must prove to the court that it is practicable for the contractor to comply with certain regulations, for example, provision of a working platform. Such requirements make it difficult for us to enforce the existing Regulations.
We therefore propose to replace the existing Part VA of the existing Regulations by a new part in the Amendment Regulation to:
(a) define working at height;
(b) define the safety standards for compliance;
(c) spell out the legislative intent that, as far as possible, working at height (that is, of two m or higher) should be kept to a minimum. Where it is necessary for workers to work at height, the contractor must provide proper working platforms. If it is not practicable to do so, safety nets and safety belts/harnesses should be provided. It is only when all this is again not practicable that safety belts/harnesses be used alone; and
(d) require contractors to prove in proceedings that it is impracticable to use working platforms or safety nets.
We further propose that the Amendment Regulation should provide for the substantive provisions only. The technical details should be set out in an approved code of practice so that future changes in the safety measures as a result of technological developments can be incorporated quickly into the code without recourse to amending the law.
We propose that the Amendment Regulation shall come into effect six months after enactment. This will allow time for the construction industry to become familiar with the safety standards relating to safety nets which have not been commonly used in Hong Kong.
As the cost for the provision of a proper working platform or safety net is relatively small compared to the contract sum, we expect the above proposed amendments will not bring a heavy financial burden to contractors.
We briefed the Legislative Council Panel on Manpower on the Amendment Regulation on 24 September 1998. The Subcommittee on regulations relating to occupational safety and health of the Legislative Council started the scrutiny of the Amendment Regulation in December last year. I am pleased to know that the Subcommittee has given its support to the Amendment Regulation. Taking account of the suggestions made by the Subcommittee, the Government has also proposed some amendments to the Amendment Regulation as set out in this motion. These amendments, being mainly textual or technical in nature, will also provide contractors with a defence for non-compliance punishable by imprisonment.
The most controversial part of the Amendment Regulation is the proposed ban on the use of boatswain's chairs across the board as a method of working at height. As this proposal will affect about 200 boatswain's chair workers whose job mainly involves the painting of external walls of buildings, there has been disagreement on this among members of the Subcommittee. I would like to point out that the Government considers the use of boatswain's chair highly dangerous, which does not provide adequate protection for workers working at height. An industrial accident occurred last weekend in which a boatswain's chair worker was killed after falling from a height. This sad tragedy again reminds us of the need and urgency to amend the existing Regulation and impose a ban on the use of boatswain's chairs across the board, in order to enhance the safety of workers working at height. As a matter of fact, the existing Regulations already provide in no uncertain terms that contractors are not allowed to use boatswain's chairs for work at height unless it is not reasonable or reasonably practicable to use other safer alternatives.
The Government understands that a ban on the use of boatswain's chairs will affect workers performing this particular job. However, we are of the view that as the Amendment Regulation will come into effect six months after enactment, there will be sufficient time for these workers to undergo training in the use of suspended working platform and obtain the relevant qualification. This two-day training course is organized by the Construction Industry Training Council and is also available on Saturdays and Sundays. Workers can continue to perform the job of working at height on suspended working platforms after obtaining the relevant qualification. Their wages may be lower compared with what they are now making as boatswain's chair workers, but their safety at work will be enhanced.
I urge Members to support the Amendment Regulation so as to improve the safety of workers working at height.
Madam President, I beg to move.
The Secretary for Education and Manpower moved the following motion:
"That the Construction Sites (Safety) (Amendment) Regulation 1998, made by the Commissioner for Labour on 22 September 1998, be approved, subject to the following amendments -
(a) by deleting section 2(c);
(b) in section 3, in the proposed regulation 38H(1)(c), by deleting "reasonable" and substituting "reasonably practicable";
(c) by adding -
"3A. Keeping of records
Regulation 67(1) is amended -
(a) by repealing "scaffold,";
(b) in subparagraph (b), by repealing "or scaffold".";
(d) in section 4(b) -
(i) in subparagraph (I), by deleting "or (4)";
(ii) by adding -
"(ia) in subparagraph (d), by adding "38F(4)," after "regulation";";
(iii) in subparagraph (ii), by deleting ", (2) or (3), 38B(1), 38C, 38D, 38G";
(iv) in subparagraph (iii)(A), by adding "and substituting "38A(2) or (3), 38B(1), 38C, 38D or 38G"" before the semicolon."
PRESIDENT (in Cantonese): I now propose the question to you and that is: That the motion moved by the Secretary for Education and Manpower, as set out on the Agenda, be passed.
MR ANDREW CHENG (in Cantonese): Madam President, in my capacity as the Chairman of the Subcommittee on regulations relating to occupational safety and health, I would like to speak on the motion moved by the Secretary for Education and Manpower concerning the Construction Sites (Safety) (Amendment) Regulation 1998 (Amendment Regulation).
The Subcommittee has deliberated on the Amendment Regulation and met representatives from the Hong Kong and Kowloon Painters General Union. Although the Subcommittee supports the legislative intent of the Amendment Regulation which seeks to enhance the protection of the safety of workers working at height, some members are deeply concerned about the provision in the proposed Regulation 38G which prohibits the use of boatswain's chairs. Just like the General Union, these members are concerned that the inhibition on the use of boatswain's chairs would seriously affect the employment opportunities of boatswain's chair workers. When the Subcommittee scrutinized this Regulation, it found that there had been no fatal accidents involving the use of boatswain's chairs in the past 10 years. But as the Secretary just said, there was a fatal accident involving boatswain's chair last week. At that time, members asked the Administration to adopt a flexible approach in implementing the Amendment Regulation, and permit the use of boatswain's chairs. Moreover, it is not always practicable to use suspended working platforms in some construction sites.
The Administration has explained to members the material danger and artificial factors related to the use of boatswain's chairs. As safer work systems such as provision of proper working platforms or suspended working platforms are available, the use of boatswain's chairs should be prohibited barring exceptional circumstances.
The Administration further explained that the existing Construction Sites (Safety) Regulation prohibits the use of boatswain's chairs. But in certain cases, the use of suspended scaffoldings is not practicable due to the structure of the building or the short duration of the job, and these are exceptional cases. At present, if a contractor does not notify the Labour Department, the Department would not have no knowledge that boatswain's chairs have been used. After the Amendment Regulation comes into operation, in situations where the use of suspended working platforms is not practicable, the contractor could apply to the Commissioner for Labour for the use of boatswain's chairs. Exemption would be considered on a case by case basis, subject to compliance with the safety requirements prescribed by the Labour Department. Where applications are approved, the Labour Department would conduct site inspections to ensure the proper use of boatswain's chairs. Hence, the occupational safety in the construction sector could be improved.
The Administration also advised that affected workers can attend a two-day course organized by the Construction Industry Training Authority. After they have obtained the relevant certificate, they can perform painting work on suspended working platform. They may earn less than when they used boatswain's chairs, but their safety at work will be better protected.
Members requested the Administration to provide expressly in the Amendment Regulation for exemption to use boatswain's chairs in special circumstances and to set out the criteria for granting such exemption. The Administration is of the view that such an express provision would contradict the objective of the Amendment Regulation. As for the criteria for approving the use of boatswain's chairs, they are technical details that will be included in the relevant code of practice.
Madam President, the Administration has proposed a grace period of six months upon the enactment of the Amendment Regulation before it comes into operation. A member has proposed extending the grace period stipulated in the proposed Regulation 38G to one year, to allow more time for the affected workers to be trained to perform other job types. The Subcommittee has also deliberated on this proposal.
The Administration did not support the proposal and explained that adopting this proposal will serve no meaningful purpose insofar as boatswain's chair workers are concerned. After the implementation of the Amendment Regulation, a contractor will not be able to apply for exemption from the proposed Regulation 38G even if the use of boatswain's chairs is the only practicable option. The Labour Department will implement the proposed Regulation and issue Suspension Notices to prohibit the use of boatswain's chairs in situations where other safer means of support are practicable. The Administration stressed that the affected workers should have sufficient time to obtain the certificate in using suspended working platforms within the six-month grace period.
Having considered the Administration's explanation, the majority of members agreed that the Amendment Regulation should be implemented as early as possible to improve the safety protection for workers working at height. They therefore accepted the six-month grace period as proposed by the Administration. Upon the request of members, the Administration has undertaken to mention in its speech in moving the motion on the Amendment Regulation today the exemption for using boatswain's chairs under special circumstances.
However, some members have reservations about the proposal restricting the use of boatswain's chairs. A member says that members of the Hong Kong Federation of Trade Unions would oppose the proposed Regulation 38G and the Amendment Regulation.
Madam President, the Subcommittee has considered whether a fixed penalty system should be introduced in order to deter workers from contravening the Regulation. It is a duty of construction workers to wear safety belt on site whenever the use of the belt is necessary. The Administration has explained the enforcement difficulties of implementing a fixed penalty system against the workers. Moreover, there are provisions in the existing legislation for prosecuting workers for non-compliance with the safety requirements. The Labour Department will step up prosecutions against the workers concerned wherever necessary and appropriate. In view of the enforcement difficulties, the Subcommittee finally agreed that the establishment of a fixed penalty system would not be considered.
Madam President, the proposed amendments made by the Secretary for Education and Manpower were supported by the Subcommittee.
Madam President, I am going to speak on the Amendment Regulation in my capacity as the spokesman of the Democratic Party on labour policies. We support the amendment. I said earlier that a member had hoped to extend the six-month grace period to one year, and it was me. I accepted the Administration's view that extending the grace period to one year would not give boatswain's chair workers much help insofar as their livelihood is concerned. Last week, there was a fatal boatswain's chair accident. It reminded us that occupational and work safety is far more important than the workers' "rice bowls". We hope that the Amendment Regulation can really allow boatswain's chair workers to be trained for performing work on suspended working platforms as early as possible so that their livelihood would not be greatly affected.
Madam President, I so submit.
MR CHAN WING-CHAN (in Cantonese): Madam President, please call on Mr LAU Chin-shek to speak first because he raised his hand first.
PRESIDENT (in Cantonese): Mr CHAN Wing-chan, I ask you to speak first.
MR CHAN WING-CHAN (in Cantonese): Madam President, we support the spirit of the regulation in enhancing and improving the safety measures for work at height. However, if the new regulation will throttle a certain work type or deprive a certain industry of space for operation, we in the Hong Kong Federation for Trade Unions (FTU) will oppose it. The FTU has been making efforts to promote industrial safety and fighting for improvement to safety at the workplace. In future, the FTU will continue to work for industrial safety. However, if the Amendment Regulation is approved today, it will throttle the work type concerned and deprive it of space for operation. Thus we oppose this.
We are greatly concerned with industrial accidents in the construction sector that cause work injury. We know that in 1997, the average annual accident rate in the construction sector was 227.4 accidents per 1 000 workers, 3.8 times the total number of accidents in other sectors. Moreover, out of the 58 fatal industrial accidents in 1997, 41 occurred in the construction sector.
In the face of an industry with a fairly high work injury rate, the FTU has been asking the Government to enact legislation and draw up a code of practice for safety management in the industry. However, the Government and contractors often carry out insufficient supervision and enforcement. Certainly, workers are to blame, too.
It is unwise for the Government to throttle the boatswain's chair work type which has been operating well. Rather the Government should first improve the safety measures. In fact, the boatswain's chair work type is still required in many places the environment of which is special. For instance, the use of suspended working platforms is not practicable in some facilities of the new airport at Chek Lap Kok such as the facilities at height, external glass curtains and protruding parts which must be cleaned by workers on boatswain's chairs or abseiling. It is also not practicable to install suspended working platforms in some old buildings. For buildings with specially designed external walls such as the Tai Hing Estate in Tuen Mun which has tapered external walls, the use of suspended working platforms is also not practicable. Boatswain's chairs should be used for work performed in such buildings.
In addressing the problem squarely, the Government should consider how the potential dangers of using boatswain's chairs can be minimized or reduced instead of throttling this work type. In the air and road transport industries, accidents such as plane crash and collision of vehicles often happen and they may even cause heavy casualties. We should adopt a positive approach and set out to improve safety instead of abolishing the relevant mode of transport.
Now that we are not able to do away with boatswain's chairs, the Government should enhance safety training for boatswain's chair workers and supervision of the safety measures in construction sites. Besides, the FTU also suggests that the Government should establish a licensing system to ensure that workers have adequate safety knowledge and techniques before performing the relevant work. I believe that accidents can be avoided or reduced with sufficient safety training and supervision.
Madam President, as we do not support the way in which the Government deals with the boatswain's chairs issue, I oppose this Amendment Regulation on behalf of the FTU and the Democratic Alliance for the Betterment of Hong Kong.
Madam President, I so submit.
MR LAU CHIN-SHEK (in Cantonese): Madam President, I fully support this resolution for the simple reason that I insist that safety of workers comes first.
We should learn a lesson from the tragic industrial accident that happened in Sha Kok Estate last Saturday. On that day, a worker on a boatswain's chair painting the external wall of a building on the 15th floor fell together with the boatswain's chair to the platform on the first floor and died. It was suspected that the broken axis of the pulley on the rooftop and the life line which failed had caused the accident.
During the 20 to 30 years working in the trade unions, I have handled many work injury cases. Once, I carried the coffin of a worker who died of work injury and asked his boss to reimburse his family members the funeral expenses. The toughest task for me was to face the grieved, disheartened and bewildered family members of the deceased. Regardless of how much compensation could be given, it could not remedy the damage done by the loss of dear ones. When a family member of a worker who died of work injury held my hand in the hospital, yelling furiously, "Help me, help me! I want my husband back!", I felt that a person's life was more precious than anything, and industrial safety was more important than "rice bowls".
Everybody knows that industrial safety in Hong Kong is in a miserable state, and this is particularly true when we consider construction site accidents. As Mr CHAN Wing-chan has cited, 300 out of 1 000 workers have suffered work injuries. This is simply an insult to our community! Last year, the number of people killed in industrial accidents was 10% more than that the year before. This proves that industrial safety needs substantial improvement. It is definitely essential to enhance legislation.
I support the prohibition on the use of boatswain's chairs which is a dangerous way to work at height. I also hope that the Government can step up enforcement to genuinely protect workers' safety.
With these remarks, Madam President, I support the motion.
MR RONALD ARCULLI: Madam President, I must put on record the disappointment and dissatisfaction of my constituency members of the Hong Kong Construction Association (HKCA) over this resolution under the Factories and Industrial Undertakings Ordinance.
Let me state quite clearly that the HKCA is a strong supporter of measures to improve safety at our workplaces. Let me also say that whenever the Administration chooses to consult my constituent association, there is always a response. Indeed, on some occasions, our suggestions are taken up by the Administration, although this is not as often as we would like to see. The motion before this Council is one example of how the Administration has virtually ignored suggestions and concern of the HKCA. Let me elaborate.
When considering safety measures to be introduced it seems to me quite plain that several matters have to be taken into account. First and foremost, the hazard or danger we want to prevent or protect our workers from. Second, what equipment or methods are available to attain, if possible, prevention or protection? Third, what steps should be taken to train those exposed to the risk of injury? Fourth, what is actually the working environment, and how and whether the first three factors I have mentioned could be applied to such environment?
This resolution deals with prohibiting the use of boatswain's chairs, save in exceptional cases, and working at heights and what measures would suit the working environment. Insofar as the provision regarding boatswain's chairs are concerned, we have no particular objections at all. And as the grace period is one of six months, we consider that that should be adequate to train enough workers to take over the new methodology.
However, on working at heights, the HKCA wrote to the Labour Department in July 1995 making it quite plain that, for safety of persons working at heights, it is wrong, and I emphasize, it is wrong to approach the problem as if there was a sequence or level of protection, that is, working platforms, followed by safety nets, and then safety belts. The method of protection should be considered on its own merits. The nature of the work, the environment and duration of the work, plus other factors, have all need to be taken into consideration to determine what is an appropriate or the best solution.
Safety belts should not be described as a last resort. The use of such a term demonstrates a lack of understanding, and quite unfairly implies that any contractor using safety belts is offering the lowest protection to his employees. Perhaps the Administration should look seriously into an exceedingly simple measure to increase the use of safety belts and other safety measures.
And that is what my constituent associates, HKCA, the Electrical and Mechanical Contractors Association, and I, and indeed, some Members of this Council, have said on many, many occasions: Introduce fixed penalty for not adhering to safety measures. This sadly has fallen, not just on deaf ears, but closed ears. But I will continue to press the Administration on this fixed penalty idea.
The other strong objection my constituents have is that the law will shift the burden of proving that it is impracticable to use working platforms or safety nets onto the contractor. This is contrary to the general rule that it is incumbent on the authorities to prove the ingredients of an offence. But under the guise of expediency, the Administration, with the assistance of this Council, I might add, has over the past few years taken the easy way out by transferring the burden onto the contractors.
Madam President, I would have thought that an administration which says it is concerned with safety, which says it is business-friendly, would sit down with my constituents and work out the best possible, workable protection instead of asking this Council to endorse a terribly one-sided law.
I hope Honourable Members agree with what I believe is a fair approach, and vote against the resolution.
DR LEONG CHE-HUNG (in Cantonese): Madam President, construction sites are the most vulnerable to industrial accidents. The figures of the Labour Department show that some 40 000 workers were injured in industrial accidents in 1997, of which 43% were construction workers. Out of 58 workers killed in industrial accidents, 41 were construction workers, at a high rate of 71%. It can be imagined that enhancing construction site safety can greatly reduce unnecessary causalties in industrial accidents.
The medical sector has spared no pains to promote occupational health and safety in Hong Kong. We welcome this Amendment Regulation proposed by the Government to enhance the safety protection for workers working at heights.
Although we all know that this contentious amendment will affect the livelihood of around 200 boatswain's chair workers, as Mr Andrew CHENG and Mr LAU Chin-shek have said, amendments are essential for the safety of workers. We know that a 23-year-old boatswain's chair worker lost his life in an accident that occurred in Sha Kok Estate in Sha Tin a few days ago. Life is always more important than making money. Now that we have an economic slump, workers will surely be worried but the most pressing task is to help these workers in their job search or teach them how to use suspended working platforms as soon as possible. I hope that the Government can sympathize with these workers and give them more career guidance.
In fact, medical bodies have suggested time and again that the Government should abolish the use of bamboo scaffolds and use safer steel scaffolds instead for the safety of those in the construction industry. The collapse of bamboo scaffolds often happens and causes unnecessary casualties. Moreover, most countries including mainland China have switched to using more stable steel scaffolds while such an advanced city like Hong Kong still continues to use bamboo scaffolds. Are we falling behind the times? I am greatly disappointed at the fact that the Government keeps declining this suggestion under the pretext that there is no data to support that many fatal accidents are caused by improper scaffold materials. I hope that the Government will soon reconsider this.
With these remarks, Madam President, I support the motion.
MISS CYD HO (in Cantonese): Madam President, the Frontier supports this resolution proposed by the Government. During our scrutiny, workers from trade unions have asked the Government to refrain from regulating the operation of boatswain's chairs as no fatal accidents had been caused by the use boatswain's chairs in the past 10 years. In fact, this is open to question. First, very unfortunately, as many Honourable colleagues have said, a fatal accident happened last Saturday. Second, a government paper has cited the views of the medical sector that working on boatswain's chairs for a long time will damage workers' vertebrae. However, the Government fails to provide us with figures on cases of work injuries or occupational diseases caused by the operation of boatswain's chairs. I am very sorry about this. Actually, when workers work on boatswain's chairs, their backs are not supported and their feet are suspended, great pressure is imposed on their knee and vertebral joints. The greatest problem with the Government is that it is still unwilling to admit that backaches are occupational diseases, therefore, statistical figures are naturally unavailable. As regards this incident, the Government is carrying a stone to beat its feet. When it has to lobby Members to accept its regulation on boatswain's chair operation, it cannot provide Members with any figures to support its argument. Therefore, for the sake of statistical calculation or the protection of workers, I hope that the Government will incorporate backaches into the scope of occupational diseases and work out a set of figures as early as possible.
In fact, many workers are disturbed by backaches incurred at work over a long period of time. Those suffering from serious injuries and pains cannot even make simple moves such as bending their backs. They cannot work and they encounter problems in their daily activities. Even so, they are not given reasonable compensation and this is extremely unfair to workers. Mr LEE Cheuk-yan has been following up this problem for a long time. I urge the Government to make a review soon and incorporate backaches into the scope of occupational diseases.
Even if this motion is approved, it will not completely prohibit the use of boatswain's chairs for work at heights. Under the realistic circumstances of Hong Kong, not every part of every building can accommodate suspended working platforms and boatswain's chairs have to be used sometimes. Even if this motion is approved, we should still pay attention to the safety of boatswain's chair operation. Take the tragedy last Saturday as an example, it was reported that the axis fell off because it was not welded properly and this made the worker fall. When workers work on boatswain's chairs, they use many tools, some are brought by workers while some others are provided by subcontractors or contractors. We call upon workers to carefully inspect the tools and equipment before they start working and start working only when they find the tools intact and the necessary confidence. Otherwise, if workers think that their health or safety may be jeopardized when they work, they should refuse the work. When we scrutinized the legislation related to work in confined spaces, we also discussed the rights of workers to refuse working.
The Government promised to carry out a review then. I hope that the Government will follow this up immediately and provide us with a timetable so that legislation will be enacted soon to protect workers' safety.
DR RAYMOND HO (in Cantonese): Madam President, in relation to construction site safety, despite efforts made over the years, there is still a fairly high accident rate. But some types of work should be slowly improved, and one of these is the use of boatswain's chairs.
Throughout these years, we have trained up many safety officers to enhance safety at construction sites. However, it seems that we have not done enough. Why? Is the concern of the industry not adequate or the communication between the Government and the industry insufficient? It seems that this is open to question. We cannot say that it is because there are more workers who have newly joined the industry. The Government has actually put in a lot of resources for training workers who have newly joined the industry. Is there any difference between the requirements of the industry and the understanding of the Government? Mr Ronald ARCULLI has touched upon this and this is also my understanding of the situation. However, it is not perfect for us to deny completely a certain work type or work mode before we find a thorough solution. Very often, we have to make reference to foreign experience when we design safety measures but we may not have done enough in certain aspects. Regardless of whether this motion will be approved or not, I hope that the communication between the Government and the industry can be enhanced in future and that the Government will listen more to the opinions of those in the industry.
MR EDWARD HO (in Cantonese): Madam President, as an architect, I am very concerned about construction site safety. I also concur with what Mr LAU Chin-shek just said. I would like to say that construction site safety can only be improved with the joint efforts and co-operation of various parties. Firstly, the Government should legislate or play a supervisory role but as Mr Ronald ARCULLI just said, even if legislation is enacted or contractors are forced to shoulder all responsibilities, this may not necessarily be fair or achieve the desired effects. Contractors are responsible for developing more safe work procedures or using more advanced machinery. Take bamboo scaffolds as an example, I think that nowhereelse in the world is using bamboo scaffolds now. Investments should be made in this respect.
Workers are also responsible. As Mr LAU Chin-shek is so concerned about workers, I hope that he can seek every chance to tell them that they should care more about their own safety. When I inspect construction sites, I find that workers are provided with safety measures such as safety belts or safety helmets but they are unwilling to use them for they would impede the progress of their work. At present, subcontracting is common in the construction industry and subcontractors are actually a work team formed by workers. Construction sites have provided workers with safety measures, but the workers do not use them. This is a fairly important problem. For the fixed penalty system just discussed by Mr Ronald ARCULLI, I have suggested before that the penalty amount need not be too large, but the point is that every person should at least bear some responsibilities. That is what I would like to say.
MR LEUNG YIU-CHUNG (in Cantonese): Madam President, from the perspective of the Government, it has actually promoted industrial safety for many years but how effective is such promotion? I hope that the Government will question itself when it proposes the Amendment Regulation today as to why not much improvement has been made in respect of industrial casualties although it has been promoting industrial safety for years. I think that the Government should carry out a comprehensive review and look into the causes.
Many Honourable colleagues have given many reasons. In my opinion, various parties should be responsible. Firstly, developers have to thoroughly consider the equipment they provided. Secondly, workers certainly have to be concerned about their lives and health. Industrial accidents do not simply cause death. The loss of life is certainly painful but those who have become disabled are pitiable as their disabilities will have life-long effects on them.
For sure, it is very important to enhance the safety awareness of employers and employees. But how? Many workers resist the use of industrial safety measures for two major reasons. One reason is common in the manufacturing industry in the past, that is, the so-called industrial safety measures directly affect workers' livelihood. For instance, with the installation of such facilities, workers earn less and they find it very inconvenient. The safety nets in the past were only designed simply for the sake of safety, and workers were not consulted on ideal designs. When the Government formulates safety measures, it should consult workers' views because these measures would affect their livelihood as I have just said. I heard Mr CHAN Wing-chan say that no trade union or worker does not want industrial safety. The problem lies in the fact that this Amendment Regulation affects the livelihood of some 200 workers or the stability of their work in future. Therefore, when we consider industrial safety, we should consider more about how we can improve their livelihood and make their work stable. The Government should take these two points into consideration instead of focusing on safety only.
I also think that the problem raised by Miss Cyd HO is very important. When we talk about industrial safety, have we paid attention to what workers think? If workers do not wish to work for they really sense danger, do they have the rights to refuse working? This is a very important point. Is it contradictory if workers cannot refuse working though they sense that the work is dangerous? We should note the difficulties encountered by workers.
When we promote industrial safety, we have to take both parties into account if we want to do it in a comprehensive manner. Certainly, workers worry most about the effects of industrial safety on their livelihood. Frankly speaking, no one hopes that he will incur an industrial accident or resists industrial safety. But the Government really has to ponder over how it can effectively promote industrial safety. In the past, there were industrial safety officers but they were not very effective because they were very often under the control of employers and their views were not accepted. It seems that we have made great efforts in industrial safety but they are superficial rather than real. Therefore, I hope that the Secretary can carefully consider how we can effectively promote industrial safety.
MISS CHAN YUEN-HAN (in Cantonese): Madam President, life is precious and the Federation of Hong Kong Trade Unions (FTU) and all its subordinate trade unions are greatly concerned about workers' safety. But why do we oppose the Amendment Regulation proposed by the Government today? We will adopt a scientific approach to analyse a work type. Last week, an accident which have not occurred in the past 10 years had happened and a boatswain's chair worker aged 20 or so was killed in the industrial accident. We followed up the case specifically and discovered that two problems led to this accident. Firstly, probably due to a quality problem, the pulley axis loosened. Secondly, the life line was clipped on the wrong side and the worker could not draw enough strength from the rope, as a result, he dropped to the ground and died. We do not deny that this is a dangerous work type but working on a boatswain's chair is as dangerous as working on a suspended working platform. In the past 10 years or recent years, we have witnessed one after another accidents involving problems with suspended working platforms.
Why do the two work types have similar problems? Mr CHAN Wing-chan has stated very clearly that the Government should be held responsible. Can the Government better supervise the entire work process? Will the Government consider a licensing system as proposed by the workers? We have been discussing these points. In this accident, did the fault of the contractor or subcontractor caused the axis to loosen? This is one of the problems. Under such circumstances, we totally agree that we must put life in the most important position, but where does the problem lie in this accident?
The use of boatswain's chairs is similar to the use of suspended working platforms. The FTU definitely agrees that proper safety measures should be prescribed for every work type. As Honourable colleagues have said, for a long period of time in the past, the FTU has been promoting industrial safety and has fought and made great efforts for the relevant measures. However, objectively speaking, although Hong Kong is such a prosperous city, its performance in industrial safety is far from being satisfactory. Very often, the Government evades the problem and neglects workers' rice bowls. This is precisely an important reason why we oppose the Government's acts. I think that it is a positive approach for the Government to specify that workers should be licensed. If the Government really wants to evade the problem, I believe that it may prohibit the construction industry in future. Therefore, the Government should learn a lesson from the tragic industrial accident which took place last week in which a young worker was killed, and review the problems once again including the problems with suspended working platforms.
I would like to stress again and again that this industrial accident is man-made, and the contractor, subcontractor and the worker have to bear certain responsibilities. In my opinion, it will be fairer for us to make a positive evaluation which will also help to practically improve industrial safety in the construction sector.
Madam President, I so submit.
PRESIDENT (in Cantonese): Secretary for Education and Manpower, please reply.
SECRETARY FOR EDUCATION AND MANPOWER (in Cantonese): Madam President, first of all, I would like to thank all the Members who have spoken. They are generally supportive of the Government's efforts to improve industrial safety, particularly with respect to the construction industry. As a matter of fact, our record in industrial safety, particularly in terms of the number of accidents in the construction industry, has failed to match by far our achievements in economic development. The Government will therefore continue to enhance legislation in this respect, in order to reduce and even avoid, as far as possible, the occurrence of industrial accidents, especially those involving workers falling from height, which are usually fatal.
Apart from the Government, employers, the relevant industries and employees also have a role to play in enhancing industrial safety. I very much hope that all of us will put aside our prejudices in future discussions and concentrate on finding a consensus acceptable to all the parties on this matter. Let me cite two examples; from an employer's point of view, a fixed penalty will help to make more employees become more careful in complying with safety regulations. But from an employee's point of view, it will put more pressure on them and become something of a harassment. Another example is that workers have the right to refuse to work on the ground of a hazard to their safety. From their point of view, this provision has provided a safeguard in that they can refuse to work if it is obviously dangerous to perform the job. But as some jobs are potentially dangerous, employers may have doubt about the circumstances under which an employee should be allowed to refuse to work? Therefore, careful consideration is required to work out a solution in this respect.
My purpose of citing these two examples is to prove that an improvement in industrial safety can only be achieved through close discussion and consultation among the Government, the relevant industries, employers and employees. In fact, we have observed the comments made by some Members that our communication was inadequate in certain respects in the past. We can look into how to make improvement accordingly. Nevertheless, I would like to stress that all proposals relating to the enhancement of industrial safety are subject to repeated deliberations and discussions, including careful examination by the Labour Advisory Board. Just as with this motion which has been subject to discussions for a few months, the Legislative Council, after receiving a proposal in this respect, usually forms a Subcommittee to have detailed discussions involving employees, employers and the relevant industries before drawing a conclusion.
I would like to raise another point and that is: we of course understand that the use of boatswain's chairs is prohibited except in some very special circumstances and subject to the approval of the Commissioner for Labour and a ban on the use of them will inevitably affect workers in this particular type of job. Nevertheless, the use of boatswain's chairs is basically dangerous, which has been reflected to a certain extent by the fact that workers performing this job earn higher wages. After weighing the importance of various factors involved, we consider safety more important than wages. As jobs involving work at height are here to stay, suspended working platforms, which are safer, will be used as far as possible in the future. Nevertheless, boatswain's chair may be allowed in special circumstances after we have carefully examined this matter. Generally speaking, it is inherently dangerous to use boatswain's chairs. I therefore hope that, for the safety of workers, Members will support the Amendment Regulation.
PRESIDENT (in Cantonese): I now propose the question to you and that is: the motion proposed by the Secretary for Education and Manpower, as set out on the Agenda be passed. 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.
(Members raised their hands)
Mr LAU Chin-shek rose to claim a division.
PRESIDENT (in Cantonese): Mr LAU Chin-shek has claimed a division. The division bell will ring for three minutes.
PRESIDENT (in Cantonese): Members may wish to check their votes. If there are no queries, I declare that the voting shall stop.
PRESIDENT (in Cantonese): The result will now be displayed.
Mr David CHU, Mr HO Sai-chu, Miss Cyd HO, Mr Albert HO, Mr Michael HO, Mr LEE Wing-tat, Mr LEE Cheuk-yan, Mr Martin LEE, Mr Eric LI, Mr LEE Kai-ming, Dr David LI, Mr Fred LI, Dr LUI Ming-wah, Mr NG Leung-sing, Prof NG Ching-fai, Mr MA Fung-kwok, Mr James TO, Mr CHEUNG Man-kwong, Mr Ambrose CHEUNG, Mr HUI Cheung-ching, Miss Christine LOH, Dr LEONG Che-hung, Mr LEUNG Yiu-chung, Mr SIN Chung-kai, Mr Andrew WONG, Dr Philip WONG, Mr LAU Chin-shek, Mr Ambrose LAU, Miss Emily LAU, Miss CHOY So-yuk, Mr Andrew CHENG, Mr SZETO Wah, Mr LAW Chi-kwong, Mr TAM Yiu-chung, Mr FUNG Chi-kin and Dr TANG Siu-tong voted for the motion.
Mr Kenneth TING, Mr James TIEN, Mr Edward HO, Dr Raymond HO, Miss Margaret NG, Mrs Selina CHOW, Mr Ronald ARCULLI, Mr CHAN Kwok-keung, Miss CHAN Yuen-han, Mr CHAN Wing-chan, Mr CHAN Kam-lam, Mrs Sophie LEUNG, Mr Gary CHENG, Mr WONG Yung-kan, Mr Jasper TSANG, Mr Howard YOUNG, Mr YEUNG Yiu-chung, Mr LAU Kong-wah, Mr LAU Wong-fat and Mrs Miriam LAU voted against the motion.
THE PRESIDENT, Mrs Rita FAN, did not cast any vote.
THE PRESIDENT announced that there were 57 Members present, 36 were in favour of the motion and 20 against it. Since the question was agreed by a majority of the Members present, she therefore declared that the motion was carried.
PRESIDENT (in Cantonese): Proposed resolution under the Public Finance Ordinance. Secretary for the Treasury.
PROPOSED RESOLUTION UNDER THE PUBLIC FINANCE ORDINANCE
SECRETARY FOR THE TREASURY (in Cantonese): Madam President, I move the motion which has been printed in the Appendix to the Agenda.
The purpose of this motion is to seek funds on account to enable the Government to carry on existing services between the start of the financial year on 1 April 1999 and the enactment of the Appropriation Ordinance. This follows the procedure long established in this Council.
We have determined the funds on account sought under each subhead in accordance with paragraph four of the resolution, by reference to percentages of the provision shown in the draft Estimates. If the draft Estimates are changed, by the Finance Committee or officers under delegated powers, the provision to which the percentages are applied will also change accordingly. Thus the provision on account under each head is not constant but may vary, with every increase being matched by an equal decrease. The initial provision on account under each head is shown in the footnote to this speech. The aggregate total under all heads is fixed, however, at $59,159,268,000 and cannot be exceeded without the approval of this Council.
The resolution also enables the Financial Secretary to vary the funds on account in respect of any subhead, provided that these variations do not cause an excess over the amount of provision entered for that subhead in the draft Estimates or an excess over the amount of funds on account for the relevant head.
The Financial Secretary will issue a vote on account warrant to the Director of Accounting Services authorizing him to make payments up to the amount specified in this motion and in accordance with its conditions. The vote on account will be subsumed upon the enactment of the Appropriation Ordinance, and the general warrant issued after the enactment of the Appropriation Ordinance will replace the vote on account warrant.
Madam President, I beg to move.
Footnote
| Remarks: |
Details will be given after the Appropriation Bill 1999 is gazetted on 26 February 1999.
|
Footnote
|
Head of Expenditure
|
Amount
shown in
the draft
Estimates
|
Initial
amount of
provision
on account
|
|
|
$'000
|
$'000
|
| 21
|
Chief Executive's Office
|
56,809
|
11,468
|
| 22
|
Agriculture and Fisheries Department
|
782,643
|
234,925
|
| 25
|
Architectural Services Department
|
1,498,107
|
300,432
|
| 24
|
Audit Commission
|
131,103
|
28,781
|
| 23
|
Auxiliary Medical Service
|
63,409
|
12,954
|
| 82
|
Buildings Department
|
504,575
|
121,616
|
| 26
|
Census and Statistics Department
|
579,794
|
117,663
|
| 27
|
Civil Aid Service
|
80,968
|
17,874
|
| 28
|
Civil Aviation Department
|
759,792
|
202,169
|
| 43
|
Civil Engineering Department
|
934,420
|
260,326
|
| 29
|
Civil Service Training and Development Institute
|
162,796
|
34,840
|
| 30
|
Correctional Services Department
|
2,710,087
|
577,427
|
|
| 31
|
Customs and Excise Department
|
1,986,341
|
493,582
|
| 37
|
Department of Health
|
3,507,561
|
799,903
|
| 92
|
Department of Justice
|
954,394
|
210,965
|
| 39
|
Drainage Services Department
|
1,419,717
|
301,653
|
| 40
|
Education Department
|
28,533,134
|
7,558,625
|
| 42
|
Electrical and Mechanical Services Department
|
207,078
|
48,040
|
| 44
|
Environmental Protection Department
|
2,279,225
|
484,727
|
| 45
|
Fire Services Department
|
3,049,006
|
764,340
|
| 46
|
General Expenses of the Civil Service
|
4,877,207
|
1,096,349
|
| 166
|
Government Flying Service
|
513,945
|
386,458
|
| 48
|
Government Laboratory
|
223,428
|
62,248
|
| 50
|
Government Land Transport Agency
|
266,865
|
218,392
|
| 51
|
Government Property Agency
|
2,189,605
|
451,869
|
| 35
|
Government Secretariat: Beijing Office
|
65,410
|
24,088
|
| 143
|
Government Secretariat: Civil Service Bureau
|
238,227
|
81,649
|
| 144
|
Government Secretariat: Constitutional Affairs Bureau
|
40,089
|
8,018
|
| 145
|
Government Secretariat: Economic Services Bureau
|
70,149
|
19,152
|
| 146
|
Government Secretariat: Education and Manpower Bureau
|
125,541
|
42,949
|
| 147
|
Government Secretariat: Finance Bureau
|
116,339
|
23,396
|
| 148
|
Government Secretariat: Financial Services Bureau
|
152,613
|
32,426
|
| 149
|
Government Secretariat: Health and Welfare Bureau
|
66,131
|
13,227
|
| 53
|
Government Secretariat: Home Affairs Bureau
|
173,971
|
67,342
|
|
| 150
|
Government Secretariat: Housing Bureau
|
43,202
|
10,241
|
| 55
|
Government Secretariat: Information Technology and Broadcasting Bureau
|
66,334
|
21,267
|
| 142
|
Government Secretariat: Offices of the Chief Secretary for Administration and the Financial Secretary
|
372,467
|
120,208
|
| 96
|
Government Secretariat: Overseas Offices
|
266,251
|
68,579
|
| 56
|
Government Secretariat: Planning, Environment and Lands Bureau and Works Bureau
|
346,642
|
82,199
|
| 151
|
Government Secretariat: Security Bureau
|
112,350
|
24,798
|
| 152
|
Government Secretariat: Trade and Industry Bureau
|
84,938
|
17,388
|
| 153
|
Government Secretariat: Transport Bureau
|
92,108
|
35,788
|
| 58
|
Government Supplies Department
|
168,585
|
33,877
|
| 60
|
Highways Department
|
1,937,510
|
480,209
|
| 63
|
Home Affairs Department
|
1,062,926
|
245,180
|
| 168
|
Hong Kong Observatory
|
225,497
|
49,100
|
| 122
|
Hong Kong Police Force
|
12,599,625
|
2,643,772
|
| 62
|
Housing Department
|
511,804
|
102,361
|
| 70
|
Immigration Department
|
2,176,108
|
455,995
|
| 72
|
Independent Commission Against Corruption
|
705,901
|
144,992
|
| 121
|
Independent Police Complaints Council
|
15,377
|
4,485
|
| 73
|
Industry Department
|
537,948
|
415,958
|
| 74
|
Information Services Department
|
403,671
|
107,821
|
| 47
|
Information Technology Services Department
|
669,722
|
133,945
|
| 76
|
Inland Revenue Department
|
1,272,666
|
262,281
|
| 78
|
Intellectual Property Department
|
84,500
|
21,700
|
| 80
|
Judiciary
|
975,748
|
217,355
|
|
| 90
|
Labour Department
|
779,898
|
157,058
|
| 91
|
Lands Department
|
1,644,020
|
359,387
|
| 94
|
Legal Aid Department
|
903,069
|
181,417
|
| 112
|
Legislative Council Commission
|
428,179
|
100,129
|
| 98
|
Management Services Agency
|
69,137
|
23,465
|
| 100
|
Marine Department
|
1,025,251
|
252,227
|
| 106
|
Miscellaneous Services
|
5,051,771
|
4,044,685
|
| 114
|
Office of The Ombudsman
|
61,286
|
12,866
|
| 115
|
Official Languages Agency
|
115,903
|
28,101
|
| 116
|
Official Receiver's Office
|
145,375
|
34,505
|
| 120
|
Pensions
|
8,567,893
|
2,505,178
|
| 118
|
Planning Department
|
439,690
|
123,194
|
| 130
|
Printing Department
|
267,999
|
61,570
|
| 136
|
Public Service Commission
|
21,273
|
4,255
|
| 160
|
Radio Television Hong Kong
|
570,645
|
131,147
|
| 162
|
Rating and Valuation Department
|
391,057
|
80,612
|
| 163
|
Registration and Electoral Office
|
463,637
|
92,728
|
| 170
|
Social Welfare Department
|
28,996,190
|
6,842,813
|
| 174
|
Standing Commission on Civil Service Salaries and Conditions of Service
|
30,045
|
6,009
|
| 175
|
Standing Committee on Disciplined Services Salaries and Conditions of Service
|
6,525
|
1,305
|
| 173
|
Student Financial Assistance Agency
|
2,294,403
|
461,926
|
| 176
|
Subventions: Miscellaneous
|
309,718
|
83,556
|
| 177
|
Subventions: Non-Departmental Public Bodies
|
31,746,042
|
6,832,146
|
| 180
|
Television and Entertainment Licensing Authority
|
103,326
|
38,686
|
| 110
|
Territory Development Department
|
219,507
|
43,902
|
| 181
|
Trade Department
|
299,780
|
64,047
|
| 186
|
Transport Department
|
893,756
|
257,369
|
|
| 188
|
Treasury
|
333,090
|
68,957
|
| 190
|
University Grants Committee
|
13,265,331
|
3,339,557
|
| 194
|
Water Supplies Department
|
5,377,707
|
1,086,099
|
|
|
__________
|
__________
|
|
|
188,873,862
|
48,128,268
|
| 184
|
Transfers to Funds
|
11,031,000
|
11,031,000
|
|
|
__________
|
__________
|
|
Total
|
199,904,862
|
59,159,268
|
|
|
=========
|
=========
|
The Secretary for the Treasury moved the following motion:
"That -
1. Authority is hereby given for a sum not exceeding $59,159,268,000 to be charged on the general revenue in advance of an Appropriation Ordinance for expenditure on the services of the Government in respect of the financial year commencing on 1 April 1999.
2. Subject to this Resolution, the sum so charged may be expended against the heads of expenditure, and expenditure for each such head shall be arranged in accordance with the subheads, shown in the draft Estimates of Expenditure 1999-2000 or, where such estimates are changed under the provisions of the Public Finance Ordinance as applied by section 7(2) of that Ordinance, in accordance with such estimates as so changed.
3. Expenditure in respect of any head shall not exceed the aggregate of the amounts specified in respect of each subhead in that head, by reference to percentages, in section 4(a) and (b).
4. Expenditure in respect of each subhead in a head shall not exceed -
(a) in the case of a Recurrent Account subhead, an amount equivalent to:
(i) except where the subhead is listed in the Schedule hereto, 20% of the provision shown in respect of it in the draft Estimates;
(ii) where the subhead is listed in the Schedule hereto, that percentage of the provision shown in respect of it in the draft Estimates which is specified in relation to that subhead in the Schedule; and
(b) in the case of Capital Account subhead, an amount equivalent to 100% of the provision shown in respect of it in the draft Estimates,
or such other amount, not exceeding the provision shown in respect of the subhead in the draft Estimates, as may in any case be approved by the Financial Secretary.
|
|
|
SCHEDULE
|
[s.4]
|
|
|
Head of Expenditure
|
|
Subhead
|
Percentage
of provision
shown in
draft
Estimates
|
|
| 22
|
Agriculture and Fisheries Department
|
452
|
Society for the Prevention of Cruelty to Animals (Hong Kong)
|
25
|
|
|
|
456
|
World Wide Fund for Nature (Hong Kong)
|
25
|
|
|
|
522
|
Subventions to conservation and management of Ramsar site
|
25
|
|
| 28
|
Civil Aviation Department
|
170
|
Airport insurance
|
100
|
|
| 31
|
Customs and Excise Department
|
248
|
Grant to the Customs and Excise Service Welfare Fund
|
100
|
|
|
|
292
|
Seizure management
|
26
|
|
| 35
|
Government Secretariat: Beijing Office
|
149
|
General departmental expenses
|
40
|
|
|
205
|
Publicity
|
75
|
|
| 40
|
Education Department
|
326
|
Kindergarten Subsidy Scheme
|
40
|
|
|
|
330
|
Assistance to private secondary schools and bought places
|
45
|
|
|
|
489
|
Miscellaneous educational services
|
25
|
|
| 46
|
General Expenses of the Civil Service
|
013
|
Personal allowances
|
40
|
|
| 50
|
Government Land Transport Agency
|
225
|
Traffic accident victims assistance scheme ─ levies
|
100
|
|
| 60
|
Highways Department
|
273
|
Highways maintenance
|
30
|
|
| 72
|
Independent Commission Against Corruption
|
203
|
Expenses of witnesses, suspects and detainees
|
30
|
|
| 76
|
Inland Revenue Department
|
002
|
Allowances
|
25
|
|
|
|
007
|
Job-related allowances
|
25
|
|
|
|
149
|
General departmental expenses
|
25
|
|
| 90
|
Labour Department
|
280
|
Contribution to the Occupational Safety and Health Council
|
25
|
|
|
|
295
|
Contribution to the Occupational Deafness Compensation Board
|
25
|
|
| 92
|
Department of Justice
|
234
|
Court costs
|
25
|
|
|
|
243
|
Hire of legal services and related professional fees
|
25
|
|
|
|
287
|
Legal services for projects relating to the Port and Airport Development Strategy
|
25
|
|
| 106
|
Miscellaneous Services
|
163
|
Write-offs
|
50
|
|
|
|
191
|
Payment to Cross-Harbour Tunnel Company Limited
|
100
|
|
|
|
192
|
Refunds of revenue
|
100
|
|
| 120
|
Pensions
|
015
|
Public and judicial service pension benefits and compensation
|
30
|
|
|
|
017
|
Surviving spouses' and children's pensions, widows' and orphans' pensions and increases
|
30
|
|
|
|
021
|
Ex gratia pensions, awards, allowances and increases
|
50
|
|
|
|
026
|
Employees' compensation
|
40
|
|
| 130
|
Printing Department
|
002
|
Allowances
|
25
|
|
| 170
|
Social Welfare Department
|
176
|
Criminal and law enforcement injuries compensation
|
25
|
|
|
|
177
|
Emergency relief
|
100
|
|
|
|
179
|
Comprehensive social security assistance scheme
|
25
|
|
|
|
180
|
Social security allowance scheme
|
25
|
|
|
|
187
|
Agents' commission and expenses
|
100
|
|
|
|
412
|
Refunds of rates
|
30
|
|
| 176
|
Subventions:Miscellaneous
|
414
|
Environmental Advisory Service
|
25
|
|
|
|
437
|
Hong Kong - Japan Business Co-operation Committee
|
25
|
|
|
|
446
|
Duty Lawyer Service
|
25
|
|
|
|
475
|
Outward Bound Trust of Hong Kong
|
25
|
|
|
|
503
|
Subventions to non-government organization camps
|
25
|
|
|
|
521
|
Skills centres
|
25
|
|
|
|
528
|
Mental Health Guardianship Board
|
25
|
|
| 177
|
Subventions : Non-Departmental Public Bodies
|
520
|
Vocational Training Council
|
25
|
|
|
525
|
Hong Kong Arts Development Council
|
22
|
|
|
|
526
|
Legal Aid Services Council
|
25
|
|
| 188
|
Treasury
|
187
|
Agents' commission and expenses
|
76
|
|
| 190
|
University Grants Committee
|
149
|
General departmental expenses
|
55
|
|
|
|
169
|
Visitation
|
40
|
|
|
|
492
|
Grants to UGC-funded institutions
|
25
|
|
|
|
496
|
Refund of rates and Government rents ─ UGC-funded institutions
|
25
|
|
|
|
529
|
Home Financing Scheme
|
25
|
|
|
|
530
|
Housing-related expenses other than Home Financing Scheme
|
25"
|
PRESIDENT (in Cantonese): I now propose the question to you and that is: That the motion moved by the Secretary for the Treasury, as set out in the Appendix to 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 the Treasury, as set out in the Appendix to the Agenda, be passed. Will those in favour please raise their hands?
(Members raise 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. Other Members will each have up to seven minutes for their speeches.
Members who wish to speak in a debate on a motion need, in addition to raising their hands, indicate the wish by pressing the "Request-to-Speak" buttons. Do Members have any question?
(No Member responded)
PRESIDENT (in Cantonese): The first motion: Civil Service's culture and efficiency.
CIVIL SERVICE'S CULTURE AND EFFICIENCY
MR ERIC LI (in Cantonese): Good morning, Madam President. With your permission, I move that the motion as set out on the Agenda be passed.
Last month, when I spoke on Reports Nos. 30 and 31 of the Public Accounts Committee (PAC), I addressed three oft-mentioned themes, of which the main one is on how to make good use of government human resources in ways that are economical and effectiveness-orientated.
In my speech, I quoted the Director of Audit's three reports which have caused the public considerable concern, namely, those on "the monitoring of outdoor staff", "the refuse collection service of the Regional Services Department" and "the procurement of government vehicles." I also raised questions on those departments' failure to set up suitable monitoring and accountability mechanism to ensure full proper use of valuable human resources.
As the relevant viewpoints have already been detailed in my speech and the conclusions and recommendations of the reports presented to Members, I do not intend to repeat them here. However, in the course of preparing the reports, members of the PAC were clearly aware that the cause of the problem was not that the internal staff management of a few departments has gone astray as it appeared to be. It is necessary to fully analyse the problems that have surfaced, and ultimately look for solutions that can eradicate the problems. What is more, it is necessary for the Government, especially the Secretary for the Civil Service, to put in real efforts to monitor and work concertedly alongside, or even bring in bold reforms to the traditional culture and general practices of the Civil Service "along new thinking and in the direction of high efficiency" afresh.
Today I have moved this motion at the request of PAC members so that Members of this Council can actively take part in a debate on this "base-strengthening project". Before letting Members have the chance to speak to their hearts' content, I would like to explain why I personally hold the view of "no reform, no accomplishment".
As early as in the policy debate of 20 October 1994, I already mentioned that "a faithful and outstanding Civil Service is the most valuable asset that Hong Kong people can still rely upon for a transition to 1997 with a certain degree of smoothness". This reflects my expectation and appreciation of the entire Civil Service. In fact, our Civil Service has remained uncorrupted, duty-conscious and diligent. At the time of the transfer of sovereignty, the Civil Service played an important role in maintaining social stability. It really deserves this Council's endorsement and high commendation.
This motion, which is proposed by me today, is rather neutral in nature. I do not mean the myth about high efficiency and integrity of the Civil Service has broken. It is just because we, being Members of the Legislative Council, are duty-bound to realistically address the unusually unstable political and economic situations following the smooth transition and the enormous impact on the Civil Service. We do notice that the high worth of civil servants are likely to come under attacks. Therefore, we want to point out to the Government some clear directions of reforms in the spirit of actively preparing for changes, hoping that the Government can meet the aspiration of the public and adopt base-strengthening measures to "maintain the value", or even "increase the value", of the system.
Ever since I made known my intentions, the Chief Executive and the Government of the Hong Kong Special Administrative Region (SAR) have made swift responses with reference to the overhaul of the Civil Service, and also initiated positive and resolute measures. I do appreciate that. The Consultation Document on Civil Service into the 21st Century, which was released two days before yesterday, will definitely contribute to today's debate and the discussions in the community.
The consultation document merely makes brief reference to the economic downturn following the recovery of sovereignty and the public's rising expectation as reasons for reform. I am of the view that to actually realize the targets of reform, we must, first of all, enhance the required understanding of these changes in order that all parties can peacefully rise above the changes and stop using past achievements or merits as "shields" to justify inherent problems and inadequacies, or allow them to become stumbling blocks to progress.
Abrupt changes in the economic situation, and the sudden outbreak of the Asian financial turmoil have subjected every Asian region to strong impact. Protected by the linked exchange rate, Hong Kong's economic establishment has been able to remain intact. However, in the wake of this, there comes the pressure of intense competition in the areas of consumption and export from nations with depreciated currencies. Under the system of free economy, private enterprises inevitably made swift and drastic adjustments, thus bringing down commodity prices and wages, pushing up the unemployment rate, and shrinking economic activities. In sharp contrast, the public sector, which tends to stick to old ways and is super-stable, is still enjoying growth both in manpower and wages. There is indeed a world of difference echoing the saying that "a thousand years flash by in the mundane world whilst only seven days go by in the mountains."
Firstly, the pays for civil servants, which were still relatively reasonable a year ago, have all of a sudden become high pays. With the abrupt change in the disparity of pays, the public sector is, by comparison instantly, has become expensive and inefficient when subjected to value-for-money comparison on the basis of product to product or service to service even if the public sector and private enterprises remain just as efficient as they were one year ago.
Secondly, deflation has indeed singled out the ratio of public resources taken up by public bodies, having gone up sharply from 18% to 21%. Given this, it is reasonable and pragmatic for the people to ask the Government to "slim down", and rejuvenate the local economy by adopting the principle of "small government in a big society" so as to leave more room to private enterprises.
In particular, the mechanism of market competition should be brought in for services that do not necessarily require funding, operation or co-ordination by the Government. It will then be necessary for those sectors of the government body to make adjustments in line with the whole society so as to achieve the target of cost-effectiveness in deploying limited public resources and approximate private enterprises. Only in this way can we ensure that the services of civil servants are indeed value for money. At present, the institutional reform of contracting out services and privatizing departments is indeed heading in the right direction.
Thirdly, there lacks an accountability mechanism for reward and punishment. In the Story of the Three Kingdoms, KONG Min executed MA Ji in tears, and demoted himself from the post of Prime Minister. In that story, who should be executed and who should be demoted? It is all very clear with regard to the authority and responsibility of both the person involved and the person in charge. Instant impact is thus made and the rule of the law is also effected. This earns both respect and acceptance from the people.
In modern society, it certainly would not go to the extent of "execution". However, we have to address the impression of the Civil Service having "no fault, no supervision, no reward or punishment." In the course of the hearings of the PAC, there clearly came into light the phenomenon of government officials protecting each other as well as the bureaucratic culture of highly complicated procedures. A department head wishing to verbally caution a subordinate who is at fault must go through a tripartite consultation involving the Secretary for Justice and the Civil Service Bureau. It takes a lot of trouble and several months before a decision can be made. However, after all the delay, only minor punishment can be meted out eventually. How much cautioning effect can this achieve?
It is also a mission impossible to deal with surplus staff engendered by services or methods of services that are out of date. It is said that departments would rather "be busy about nothing" or "turn a blind eye" to under-worked redundant staff and allow them to fend for themselves than make determined efforts to streamline their establishments at the risk of running into trade unions' objections and greater troubles. Consequently, it is easy to swell the government, but difficult to slim it down.
Under such a system, it often requires a lot of external force (such as Audit Commission reports) to bring about limited adjustments randomly. As time goes by, the management will be totally devoid of staff management capability, something that it ought to possess. The automatic driving force for regulating efficiency within the system will gradually become obsolete. It has to rely on other more expensive external monitoring systems on a long-term basis, often requiring much effort with little progress. Given all these, it is only natural for efficiency to remain stagnant. Also, it is very easy to bring individual departments into disrepute when they are unfortunate enough to be pin-pointed.
According to the recommendations of the consultation document, reward and punishment ought to be strict and fair, and the arrangements for entry, promotion and exit ought to be flexible. These, though merely re-vesting department heads with the most basic tools of staff management for the purpose of boosting departmental management's control over cost, efficiency and service quality, can still ultimately improve civil servants' ability to response to accountability questions. Furthermore, as responsibility comes with authority, senior officials cannot but wholeheartedly hold themselves accountable when the need arises.
Fourthly, generalists are given preference over specialists. In 1973, the McKENZIE Report, which reviewed government structure and efficiency, put forward two main courses of reforms, namely, to open up senior posts for specialists to compete fairly, and to adopt performance rather than seniority as the main consideration for promotion within the Civil Service. By coincidence, these recommendations are similar to those of England's FULTON Report of 1968, which aimed at reforming the system of civilian government. They surfaced again in the current consultation document, given stronger promise of implementation by the Government.
In the course of my work at the PAC, it came to my notice that senior administrators increasingly avoid making professional decisions of any sort. Frequently, huge sums of public funds are used to hire professional consultants, for instance, the Water Supplies Department spent $200,000 to hire consultants merely to draw up meter-reading routes, a very basic task. What is more, some senior officials blindly believe in famous professional consultants and, therefore, permanently rely on external assistance for making professional judgements. As time goes by, they find it impossible and unmanageable even just to co-ordinate or arrange consultants' work. In the end, there are all sorts of errors and omissions. As a result, people come to wonder why professionals are being led by laymen and why technical expertise is being looked down upon at a time when management becomes more and more professionalized.
According to the recommendations of the consultation document, with which I agree, professional training for generalists should be stepped up; talents should be exchanged with private enterprises, and a mechanism of two-way traffic outside the Civil Service for absorbing special talents should be adopted in place of the current practice, which, operating in a way similar to "breeding", absorbs talents only from within as in one-way traffic. Perhaps at the time when the system of civilian government was first established, the Hong Kong Government could almost take in all that small number of talents produced by local universities. Hong Kong is now dotted with universities. Technical professionals in society are being multiplied at a speed much faster than that of the past. Are talents available not limited to those in the Government? In the long run, confined staff management is going to make it impossible for professional expertise and efficiency of the public sector to keep abreast with the fast-moving pace of the entire society.
Fifthly, we should divorce entirely from archaic traditions:
(1) As civil servants have been localized, the Government should comprehensively review or abolish generous fringe benefits previously offered to recruit expatriates, such as housing and education allowances;
(2) Accountability should be boosted especially as the Chief Executive is now chosen by election and the democratic political system is evolving incessantly. The SAR Government is now putting in full efforts to materialize the spirit of Hong Kong people ruling Hong Kong as their own masters.
How can the role of the Civil Service remain unchanged and civil servants still hang around in their "greenhouse" without moving on at a time when the whole external world is progressing?
Originally I also wanted to speak on the above point and other issues, such as "frugality". However, there is only limited time, and I believe that some of my colleagues may have greater interest and expertise in addressing such a topic. So, for the time being, I have it shelved.
The trend of unemployment and pay cuts will inevitably stay on in Hong Kong for some time. Already receiving pays topping the world level, Hong Kong civil servants need not suffer from unemployment, pay cuts, or greatly increased workload. Half of them can still enjoy incremental points. Furthermore, the cost of living has actually gone down. So in the public's view, their terms of service can be considered to be good. Many Members of this Council have declined the pay increases for their honoraria, or donated them to more needy organizations. I understand that many civil servants, not wishing to fuel discontent by allowing the gap between the public and themselves to grow, are holding a similar view, that is, they are willing to get a little less. Amidst the groundswells of reforms, civil servants' unions have behaved in a restrained manner, which is indeed a good sign.
The combination of the effects arising from the impact of the financial turmoil and the explosion detonated by the reports of the PAC is not just the superficial issue of budget deficit. The most important matter exposed is the deeply-entrenched conflict of thoughts and culture. This has to be frankly faced by the civil servants and members of the public as a matter of reality.
According to an independent survey conducted by the Centre of Social Studies of the University of Hong Kong at my request, 92% of the accountants surveyed are in favour of reforming the Civil Service. I hope that Mr LAM Woon-kwong, Secretary for the Civil Service, can prescribe the right medicine for the illness after the consultation so as to "cure the illness from head to toe", and "get everybody sincerely convinced" too ultimately.
With these remarks, I beg to move.
THE PRESIDENT'S DEPUTY, DR LEONG CHE-HUNG, took the Chair
Mr Eric LI moved the following motion:
"That in the light of the conclusions and recommendations contained in the reports of Public Accounts Committee upon the Director of Audit's reports nos. 30 and 31, this Council urges the Government to take note of the views expressed by Members of this Council on the culture, efficiency and frugality of the Civil Service."
DEPUTY PRESIDENT (in Cantonese): I now put the question to you and that is: That the motion moved by Mr Eric LI as set out on the Agenda be passed.
Does any Member wish to speak? Please press the "Request-to-Speak" button indicating your wish to speak.
MR CHEUNG MAN-KWONG (in Cantonese): Mr Deputy, I wonder whether "good morning" or "good night" is the more appropriate greeting to you. (Laughter)
When the PAC asked for a motion debate on Civil Service's culture and efficiency, the Civil Service Bureau had already released the consultation document with a view to introducing into the Civil Service a comprehensive major reform transcending two centuries. This reform is a Cultural Revolution for the Civil Service that touches the heartland of the Government. The Democratic Party is going to respond comprehensively.
Following the reunification, the SAR Government came under the impact of the financial turmoil, avian flu, and the new airport fiasco. Members of the public are having more and more doubt about the calibre, crisis management ability and leadership of the civil servants, especially senior officials. Following the exposure by the Audit Commission of the irregularities of "loafing on jobs" and "neglecting duties while taking the pay" among some members of the Civil Service, civil servants' credibility has dropped to an all-time low. The reform proposals now brought up by the Civil Service Bureau exhibit both firm determination and a vision going into the new century. This is worth supporting.
However, to reform, it is wrong to neglect reality and just see things at a distance. According to Mr LAM Woon-kwong, Secretary for the Civil Service, reforming the Civil Service is just like converting a car into one equipped with "automatic gear" and "air bag". But in fact it is likely for that car to be left with its body, steering wheel and foot pedal, while all other parts may be replaced one by one. The problem is that the Government, not being a private organization, cannot undergo major expansion or simply close down according to the vicissitudes of the economy. The Civil Service must be stable. However, according to Mr LAM, at present civil servants are "super stable" unless they "get into trouble" themselves. So, two thirds of the Civil Service will have to be put on contract terms within a decade. A contract is to be renewable at any time whilst termination of service is also possible at any moment. There is to be complete freedom for entry and exit. With such a practice, at times of recession the Civil Service will become a shelter providing opportunities for those "looking for greener pastures white feeding on hay"; but at times of economic prosperity, civil servants having no sense of belonging and under no binding restriction will inevitably "look for and move over to greener pastures", thus producing a heavy drain on manpower. Furthermore, short-term contracts, providing little sense of mission and offering low opportunity cost, bears the risk of breeding corruption. With this, "super stable" will be turned into "super unstable", thus giving the SAR Government not a single day of peace, and causing service quality to fluctuate drastically. Therefore, the Government must look for a system dominated by long-term employment but supplemented by short-term contracts so as to let the Civil Service retain flexibility in a stable situation.
The second main point of civil service reform is to set up a system under which reward and punishment are fair and pays performance-based. This is, of course, heading in the right direction. The key point is how to implement it fairly. For private enterprises, the primary criterion for reward and punishment is profit. But many government offices are merely "clear-water yamens". With nature of services varying from department to department, it is also difficult to make comparison. While the General Post Office is earning money by selling stamps, the Social Welfare Department always wants to spend more on Comprehensive Social Security Assistance; while teachers under the Education Department are putting in great efforts to teach Band 5 students and only manage to make slow progress, Inland Revenue Department staff are making successful crackdowns on tax evasion. Is it indeed possible to sort out the successful from the unsuccessful among departments so as to implement a system of performance-based pays? So to base pays on performance is only a direction. Each department will have to implement it step by step in accordance with its own conditions. Mr LAM Woon-kwong holds that it is necessary to "grasp the nettle". Has he taken into consideration the point that to move on against odds without a good method might generate staff disputes or polarize supervisors and subordinates? I think reform must not be hasty; it cannot go too far at one go. Why not test it out in departments that are in a position "to make a go", and "find the way across the river by feeling for the rocks"? Are we on the brink of disaster where we cannot afford to wait a single day and must implement the system of performance-based pays on a full scale?
Now on the third main point of civil service reform, namely, doing away with a promotion system based on seniority and smashing the iron rice-bowl. Iron rice-bowl is certainly out of date, but the Government still should not smash a civil servant's ordinary rice-bowl for no reason, and treat him as an item that can be sent for or sent away freely. "With regard to those who are not bad enough to warrant dismissal and have not erred or misbehaved", Mr LAM Woon-kwong holds that they should be directed to retire if they are found to be obstructing the promotion of "high-fliers" so as to vacate their posts for old blood to be replaced by fresh blood. What Mr LAM Woon-kwong said is somewhat callous and can set civil servants shivering. It should be noted that there are 190 000 civil servants. It is impossible for all of them to be elites. But what is wrong with being mediocre and straight? Even though no weight should be attached to seniority, it is still wrong to "fry (fire) people like frying squids with pepper bean paste". To do so is to go to the extreme. Is that not heartless? To civil servants, is the new century a callous century, one in which neither warmth nor moral obligation can be found in the relationship between employers and employees? I oppose such an inhuman civil service policy.
Mr Deputy, even though I have raised reservations and sounded warnings, I still agree that civil service reform cannot but go ahead. The century-old shop of the Civil Service has got to have a facelift. The old tree still has to produce new buds. I am of the view that so long as things are sensible, reasonable and lawful, spasms of pain from reform can be accepted as a matter of course. I therefore oppose applying a narrow interpretation of Article 103 of the Basic Law, which provides for the preservation of the original system of the Civil Service. A system has to change in accordance with time and reality, otherwise it will become a piece of fossil just with the value of a relic and would not be in a position to face the challenge of the future. However, no matter how correct the direction of reform is, it still has to make old and new members of the Civil Service see that the reform is going to bring new life and hopes, and show them the direction to strive on, and that they are not trapping or burying themselves. Only with this can the civil servants be won over wholeheartedly for joint and concerted advancement. Do not be conservative; do not be radical. Do not forget that the Civil Service is both the core and driving force of the reform. They are human beings, too. So it is necessary to leave a humane breathing space in the reform.
Mr Deputy, I so submit.
MISS EMILY LAU (in Cantonese): Mr Deputy, I rise to speak in support of Mr Eric LI's motion. I fully support Mr LI's motion especially because I am a member of the PAC.
Mr Deputy, ever since the transfer of sovereignty, Hong Kong has seen many major events, such as the avian flu, the Asian financial turmoil and the chaos at the new airport at the time of its opening. All these confused and troubled the public, setting them wondering whether or not the civil servants were slack in performing their duties. Mr Eric LI just said that the myth about our Civil Service has now broken. However, I believe that to some of our people as well as to our friends abroad, the myth has already vanished into thin air.
Last November the Director of Audit released Reports Nos. 30 and 31, exposing various irregularities, including the fact that many civil servants are loafing on their jobs, and also revealing the slack attitude of their supervisors in discharging their duties. So, the reports criticized both the "loafers" and their supervisors. As just mentioned by Mr LI, at a time of such poor economy, when people are worrying about their jobs or actually have already lost their jobs, members of the public will, on noticing civil servants' "iron rice-bowls" and high pays, inevitably wonder if these people should be so well-paid. It is often said that Hong Kong civil servants rank among the world's best-paid civil servants. Do they still deserve such high pays and generous benefits?
Under such circumstances, when the Chief Executive attended the question and answer session of this Council on 11 January, he put forward the need to review and reform the culture and system of the management of the Civil Service. I fully support that. Mr LAM Woon-kwong, Secretary for the Civil Service, released this document last Monday. I hope that Honourable colleagues and members of the public will read it carefully and let the Secretary have their comments. Initially I do not quite agree with my friend Mr CHEUNG Man-kwong's comment on callousness because I have not been able to find anything that is callous despite repeated efforts. But we should study carefully as some matters merit thorough consideration. I think the document is on the right path. The Frontier will look into it carefully. If the reform is correct, we will support the Government fully. However, we also want to assure members of the Civil Service. We are not trying to make them feel uneasy day in day out. The point is that there must be changes to outdated matters.
I am pleased to notice one point, one mentioned by the Chief Executive and this document, that is on the need to streamline disciplinary procedures. Mr Deputy, you probably have heard of this saying: "Here comes five o'clock with no crisis at all". Thus they get off work like that every day. Not the entire body of 190 000 civil servants behave like that, but some of them do think in that way and just wish to muddle through. I have been fully aware of such a malpractice ever since I became a member of the PAC in 1991. Several years ago, when Mr Michael SZE, the predecessor of Mr LAM Woon-kwong, first took office, he vigorously condemned civil servants who neglected their duties while taking the pay, but lamented that not a single one could be "eliminated" in three years. At that time, a department head pulled me to one side to tell me that "They have my hands tied up and ask me to fight with the lion. Why should I bother!" I think Mr LAM does understand what is meant by that, and know how to fight with the lion. I hope that they can now be untied. Let us give heads of departments or bureaux some authority to deal with matters. However, Mr LAM said on the television that "in fact it is not fast at all. It is going to take one year." That is to say, it is going to take one year to deal with those civil servants who neglect their duties while taking the pay. See how swiftly private organizations handle redundant staff. I hope that the Secretary can make a go at it with full force. We definitely will support him. But it has got to be fair in all aspects as we do not want civil servants to have the impression that there are injustice, surreptitiousness, and unfairness. Fair though it ought to be, it should not be allowed to drag on for a long time as before.
What is the yardstick for conduct punishable by disciplinary action? Surely, coming under this are failures to observe government regulations or instructions and misconduct. However, the PAC once came into knowledge of a case. That is probably the one concerning a high-rise building erected at Garden Road. We opined that disciplinary actions should be taken against the civil servant concerned. In response, the Administration said that it was not necessary. Why? It was because that civil servant did that "in good faith". I do not know how to translate this expression. The Chinese translation provided is "竭誠辦事，盡忠職守". I find such attitude of the Administration most inappropriate. I am not saying that the civil servant did that out of malice. However, if a person neglects his duty or shows incompetence, he, in my view, should be disciplined.
Now the Government is repeating old errors. In the present inquiry into the incident of the new airport, all our 13 colleagues held that there was dereliction of duties by some persons. But the Administration said the same thing: "in good faith". That is to say, again, "竭誠辦事". It is wrong for the Government to act in this way. If a person has been totally negligent in performing his duties, the Government cannot just say that he has not done that out of malice. I really want the Government to show us some determination. If it always tries to defend the wrongdoers, how can we believe that the Government indeed wants to reform?
In addition, I very much agree with what Mr Eric LI just said. It has come to our notice that some civil servants, especially bureau chiefs, are increasingly trying to avoid making professional judgements. How? By using money to hire consultants. That is to avoid making professional judgement as well as to duck political responsibility. Should anything go wrong, the excuse that "I was so advised by consultants" will be put up. That is to "pass the buck" to outsiders. This is something often mentioned and frequently heard. Mr Deputy, there is still another point about which I worry very much. Many professional departments, especially engineering departments, often turn to consultants, thus making it impossible for civil servants to learn anything. With billions of dollars paid to those consultants by the Government, our civil servants can never learn. I would like to ask the Secretary to check whether or not there are bureau chiefs committing such mistakes. If the answer is in the affirmative, then I hope that he will resolutely look into the matter to see why we have to spend billions of dollars to hire so many consultants without getting our civil servants to understand these matters after so many years.
Finally, Mr Deputy, I want to talk about civil servants' fringe benefits. Their fringe benefits are alarmingly numerous. In the current Budget, there is a sum of $604 million for an item known as "personal allowances"; another item known as "travelling expenses" amounting to $178 million; and there are six types of housing allowance, the total of which amounts to $3,800 million. As stated by some colleagues, I am sure that among all these are some outdated ones.
Mr Deputy, while fully supporting this review by the Government, I call upon the people of Hong Kong to give their support too. It is our hope that in the course of this, members of the Civil Service will find us fair to them. But the most important thing is that the six to seven million of us will have to be satisfied that it is fair, too. Mr Deputy, thank you.
MR NG LEUNG-SING (in Cantonese): Mr Deputy, we have been in session for 18 hours. I twice joined the PAC during the period from the Provisional Legislative Council to this Legislative Council. Here I want to respond to Mr Eric LI's motion of today and offer my support.
Following my participation in the inquest into Reports Nos. 30 and 31 of the Director of Audit, I do have much worry over inefficient staff management and improper utilization of public resources in the operation of certain departments. In recent years, the proportion of Gross Domestic Product taken up by public expenditure has been on the increase, now expected to go beyond 20% to reach the all-time high of 21.1% next year. Civil servants' salaries and benefits take up two thirds of recurrent public expenditure. If resources which take up such a large proportion of local economic activities are not put to good use, Hong Kong's overall productivity and economic vitality will be pulled down. It is easy to breed but hard to restrain such inertia on the part of staff inside the Government. If no hard effort is put in to effect reform in order to eradicate irregularities, there will be adverse effects on the proper growth of Hong Kong's economy.
The contents of the PAC Reports Nos. 30 and 31, involving a lot of issues in the areas of staff management and utilization of resources, show that the management and cost control of certain departments lack business principles and exactitude, and deviate from private sector's target of effectiveness. For government departments, it is indeed difficult to set profit targets. However, if some improvements or reforms are done on some pivotal systems, such as establishing effective disciplinary procedures and a reward and punishment mechanism, and setting clear work targets and data indicators, the Government probably can still match private sector in the effective utilization of resources provided that there is monitoring from the public and the Legislative Council.
Mentioned in the reports are the work of outdoor staff from departments like the Water Supplies Department, Census and Statistics Department and Government Supplies Department, and the refuse collection service of the Regional Services Department. The problems involved have aroused much public attention. Imposing stern punishment on rule-breaking officers and drawing up, and regularly reviewing, meticulous quantifying yardsticks of work can help to rectify such issues of manpower wastage. With regard to staff management, we cannot solely rely on staff members' conscience; strict enforcement of supervisory measures by the management is still required. Fundamentally, only a good supervisory system meeting the needs of social development and the requirements of business principles can be assurance for civil servants' efficiency and calibre.
Now on spending public funds. It is obvious that some government departments have not strictly observed prudent commercial principles in controlling cost. Typical examples are the ways in which some government departments deal with engineering contracts. For instance, when the Government Supplies Department invited tenders for the new computerized inventory system, a 10% ceiling was set for liquidated damages, thus rendering it impossible for the Government to get reasonable compensation when the contractor's delay in installation incurred losses. In that case, the Information Technology Services Department set for a standard computer contract a ceiling of 10% for liquidated damages. According to that department, raising the ceiling will give rise to complicated bargaining. Again, this shows failure to take actual market situation into consideration, failure to fight for the most favourable contract terms, failure to save as much as possible for taxpayers, and a bureaucratic practice of working for administrative convenience only. This only gives outsiders the impression that it is very easy to earn government money. According to the department concerned, raising the ceiling of liquidated damages will push up a project's tender price. But that department neglected one point. Failure to accurately assess losses accompanying project delay to ascertain the ceiling of damages will, in the course of the tendering exercise, lead tenderers to under-estimate the peril of project delay. The tender prices might be a little lower, but the potential risk of project delay goes up sharply. In the end, the Government's losses will be heavier than its gains. It can be noticed from this case that in doing business, the Government is unable to hold the gate firmly in the area of efficiency and effectiveness. It shows that government departments lack experience in participating in market activities. For the sake of administrative convenience, they often fail to try their best to fight for the most favourable protection of public interest, ultimately wasting public funds and naturally victimizing Hong Kong people.
Turning now to the relocation of the General Post Office. Because of the lack of co-ordination between government departments responsible for property management and planning, the failure on the part of the General Post Office to acquire a scientific analysis of the cost-effectiveness of land uses for its various operations, and the lack of attention and monitoring from the Policy Bureaux concerned, the relocation of the General Post Office has been delayed repeatedly since 1985. With a relocation date yet to be fixed after a lapse of more than 10 years, its existing site, a piece of precious commercial land with a value amounting to billions of dollars, has not been put to the most economically effective use within a reasonable period of time, and, therefore, is unable to generate wealth for the Treasury. To the public, this is a loss. I think the Government should learn from this a lesson on how to make good use of public resources. The General Post Office, a department operating on a trading fund, should in particular strive for greater improvement in lowering operation cost.
Mr Deputy, Hong Kong is a famous business city. Being a Member from the business sector, I hope that the Government can demonstrate as much as possible the capability and efficiency in the area of general administration required of the administrator of Hong Kong, a business centre; treasure every dime and every cent collected from taxpayers; rectify administrative weakness of the past; boost the concept of prudent commercial principles; and maintain good monitoring and control on matters concerning value for money. Administrative departments, legal departments and technical support departments should also step up co-ordination among themselves and be ready to shoulder responsibility. Only by so doing can the value of resources be increased, efficiency of government departments really improved, and the overall productivity of Hong Kong pushed forward.
MR CHAN KWOK-KEUNG (in Cantonese): Mr Deputy, the civil servants of Hong Kong are efficient, law-abiding and uncorrupted, always enjoying praises and international recognition. With a huge establishment of about 200 000 members, it is inevitable that among Hong Kong civil servants are some who may bring disgrace to the group. They stay in the same old groove, tend to be lackadaisical, desert their duties, and, thus, adversely affect services of the public sector. This is indeed a fact.
Civil servants' working attitudes and unsatisfactory performances can be reflected in people's complaints to newspapers and the Ombudsman. However, there are some irregularities not noticeable to common people. For this, we have to rely on the Audit Commission's evaluation and investigation. Directly accountable to the Chief Executive, the Audit Commission works independently, with no need to be biased against or in favour of individual departments. Even during the days of the Audit Department, the predecessor of the Commission, evaluation was carried out to look at the efficiency of government departments and subvented organizations by way of value-for-money audits. Reports released then often drew attention from the Legislative Council and the community. For instance, the said department once pointed out that staff members of subvented organizations drew double housing benefits, and thus wasted government resources. Had it not been looked into and pointed out by the Audit Department, it would have been difficult for members of the public to notice such a problem. So, the work of the Audit Commission is of great reference value to the Legislative Council in monitoring the Government's efficiency.
Last year, the Director of Audit presented to the Legislative Council Reports Nos. 30 and 31, according to which some government departments did not economize and wasted electricity. For instance, the central air-conditioning system of the Hong Kong Police Force was in use round the clock, as a result of which, electricity consumption during off-peak hours of the night was just as high as that in daytime. This has gone against environmental protection and also wasted some $30 million a year in electricity consumption.
In addition, some departments do have the problem of outdoor staff who loaf on jobs, go slow on work, start work late and leave work early. But the management just turns a blind eye to all these. With regard to outdoor staff loafing on jobs, the situation is, according to the reports, particularly acute in several departments, for example, the Meter Readers of the Water Supplies Department, the Census and Survey Officers of the Census and Statistics Department, and the delivery teams of the Government Supplies Department. We definitely should not let these officers get away easily for staying in the same old groove, being lackadaisical, discharging their duties perfunctorily and wasting public funds. They should be held responsible for dereliction of duties. Members of the management also cannot pass their responsibilities onto others. Had they effected management properly, the various departments could have more accurately assessed manpower requirements and more effectively managed human resources, and none of their subordinates would have been "loafing on jobs".
With problems detected, it is going to be necessary to carry out overhaul or reform. We support the Enhanced Productivity Program mentioned by the Chief Executive in his policy address. If all government departments can improve their competitiveness and efficiency, the people can surely benefit from it.
However, we should note that problems mentioned in the Reports only involve a small number of civil servants. In the huge establishment of the Civil Service, those bringing disgrace to their group are few. We should not hold a sweeping view and condemn the work of the entire Civil Service as utterly worthless. Under a good management system, we should be fair with rewards and punishments, punishing those whose performances are lackadaisical or unsatisfactory, but duly rewarding those whose performances are outstanding. Furthermore, it is essential not to let departments' policies or measures in connection with their overhauls or reforms cut or reduce their original benefits, and thus turn them into victims buffeted from within and without. Regardless of the scale of the reform, consultation should be held with staff of the various departments to gather their views, attach weight to their wishes, provide them with suitable job security, and strive for consensus of opinions on the reform in order that all members of the departments can be united as one to work hand in hand for greater efficiency and effectiveness.
I so submit.
MR LAU CHIN-SHEK (in Cantonese): Mr Deputy, I dare not say "good night" to you. "Good night" means adjournment, adjournment means "dispersal". As we have already endured for 18 hours, let us stay on.
Mr Deputy, good morning. Talking about reforming the civil service culture, we are bound to hold the view that only by smashing "the iron rice-bowl" can civil servants' efficiency be improved and the existing culture of the Civil Service, one deep in the mind of many with the impression that "to work or not to work makes no difference in pay", changed. That is, it is expected to bring in the competition method of survival of the fittest observed by the private sector.
However, one point merits our consideration, and that is, civil servants' work differs greatly from those in the private sector in nature.
Services provided by the Government cannot be replaced by those of the private sector. So, what the public expects from government services are greater than what they expect of services offered by the private sector. They also differ completely in nature. We call civil servants "public servants" while probably nobody will take staff of the private sector as "public servants". This exactly reflects the point that the public expects civil servants' services to be really for the benefit of the public, not ones that mean to earn people's money, no matter whether they are pensionable or contractual staff, and no matter whether they are permanent or temporary officers.
There is another major difference. Civil servants have to face the entire society; they have to face some 7 million Hong Kong people. Unpopular though the Government's policies might be, civil servants are still under duty to implement them. Under such circumstances, probably nobody is prepared to carry out some unpopular policies unless there is some definite job security.
I am of the view that the public's dissatisfaction with civil servants' efficiency and their opposition to policies implemented by civil servants are mainly due to two factors. In the first place, some front-line civil servants probably fail to take into consideration the actual needs of those seeking services when they are in contact with the people, who often feel that they are being bullied by civil servants, and, therefore, often take a confrontational position. The confrontation gets worse when economy turns sour and unemployment grows. In the second place, some general policies of the Government are being opposed by the people. However, civil servants have to be responsible for the implementation of policies. Naturally it gives people the feeling that the culture and efficiency of the Civil Service have to be revamped.
I am of the view that in addition to the option of maintaining the status quo and that of privatization, there is perhaps a third way for us to consider. Civil servants should also duly examine themselves to see if real efforts should be made to improve their attitudes when serving members of the public, in particular paying attention to the feelings of those being served. What is more, it is necessary to make the people know that civil servants do understand their needs. Unions of civil servants especially should speak out more to comment on government policies so as to let the people know that though they are required to implement government policies, they do share the people's views.
In my opinion, the overhaul of the culture of the Civil Service does not just involve the improvement of efficiency. What counts more is that civil servants can really "serve the people" and be bona fide "public servants".
Mr Deputy, I so submit.
MR LAU KONG-WAH (in Cantonese): Mr Deputy, as a member of the PAC, I wholeheartedly share some of the main points made by Mr Eric LI. This is his conclusion as well as, I believe, the Government's response.
Throughout the course of inquiry, there were two things that impressed me most. Following the release of the report by the Director of Audit, 23 teams of refuse collection vehicle workers of the Urban Services Department were disbanded overnight bringing a saving of some $50 million. This is the first one. The fact that some outdoor staff of the Water Supplies Department were said to be "loafing on jobs" and under-worked is the second one. In my opinion, of all the cases disclosed about the Water Supplies Department, the most serious one is the one that started work at 9 am and finished as early as 11 am.
Why could some members of the Civil Service be working from 7 am to 11 pm and some from 9 am to 11 am? This is a very strange phenomenon, which long exists and is not a temporary one. Some claim that to be a problem with front-line workers. But it in fact also has something to do with management standard and management quality. Therefore, I believe that the series of reform proposals put forward by Mr LAM Woon-kwong are timely and appropriate to the circumstances.
In my opinion, the series of reforms have not been prompted by impulse; nor are they engendered by the chain of events following the establishment of the SAR Government. The causes are some factors long brewed, and changes to the internals of the Civil Service are made necessary by external factors.
Looking back to the time before the 1990s, the Government applied a method known to scholars as "the absorption of politics by administration" in its governance, that is, bringing some political elements into the government's administrative departments through different channels for absorption. By the 1990s, the phenomenon just mentioned by me vanished for ever. Throughout the 1990s, administration has been under the onslaught of politics. In the 1990s, there has been pressure on the Government from political parties and pressure groups; people's demands have been on the rise too. The Government has got to take a close look to see that the pressure that it is sustaining is not just the onslaught from political parties. So, it is my view that if there is no reform, it is going to be basically impossible to solve certain problems that are long-standing and hard to overcome. The Government will find it very difficult to make any headway, and the public probably will be unable to vent their discontent. The Government's internal system has undergone changes in the 1990s. We can see that the entire Civil Service has developed into an open and accountable system from a confined bureaucratic system. Had it not gone that way, there would be no way out for the Government. The process is painful and difficult, but necessary.
During the five years preceding the reunification, the trend that we saw was one opening up. However, for the next few years, the emphasis should, I believe, be on accountability. In my opinion, there are two yardsticks for the assessment of future reforms. The first yardstick is to see if there is any improvement in effectiveness and efficiency. The second yardstick is to see if there is any disruption to stability and justice. Surely, I believe that it is possible to improve efficiency and effectiveness. But at the PAC, we have been emphasizing one thing, namely, the need to have assurance for quality while stressing effectiveness and efficiency. The Home Ownership Scheme (HOS) is a good example. HOS units are not particularly good in quality. However, with private sector participation, many problems cropped up. This proves that there must be quality assurance.
With regard to stability, I agree that it is not ideal to be "super stable". However, "unstable" is also something we do not want to see. In the past, it was hard for blue-collar factory workers or labourers to switch over to other jobs once they lost their jobs. They could not find employment. According to our forecast, in the future it is likely that many white-collar workers, professionals or those doing brain-work will be unable to find employment after termination of service. So, what problems should the Government consider? What the Government should now consider is not just the issue of smashing the "iron rice-bowl" because the present society is not one in which the hunt is for "iron rice-bowl" or one in which one permanently sticks to one job right from the beginning. What an employee looks for now is not life-long employment at the same place once employed. What does one look for now? That is to be able to learn a skill that one can make use of forever. So, life-long training and internal training inside the Civil Service are, in my opinion, very very important to the staff. I hope that the Secretary for the Civil Service will take this into consideration so as to somewhat ease the minds of members of the staff.
Some friends take such a reform as a cultural revolution. Indeed, this cultural revolution can be an upheaval. There are, however, something to which the Secretary for the Civil Service and the Government have got to pay attention. What is being said about pegging salary as well as punishment and reward to performance is, in fact, to commercialize a public servant's work. On many public occasions in the past, civil servants often mentioned that they were in pursuit of a sense of satisfaction and ideals, and talked about stability. It seems that now they seldom make mention of that; nor is it included in the direction of reform. Why are such traditional values and culture missing? Are they no longer applicable? Why are they not mentioned by principal officials? What will result from the commercialization of public servants' work? If a public servant's image is equated with that of an employee in the private sector, what will result from it? I would like the Secretary for the Civil Service to give it more consideration and move one further step.
Thank you, Mr Deputy.
DR RAYMOND HO (in Cantonese): Mr Deputy, Hong Kong's progress and achievement in the past really depended on a Civil Service that was uncorrupted, reliable, honest, trustworthy, outstanding and efficient. At present, Hong Kong is undergoing a very testing economic transformation. We have even greater need for a Civil Service full of self-confidence and high in morale to offer support and provide the people with quality services.
Last November when the Director of Audit presented reports to this Council, the issue relating to the monitoring of outdoor staff attracted strong response from the community. At a time when there is non-stop news about private organizations laying off staff or cutting pays, yet there are staff in government departments who cover up having free time and make false reports on their work. We must condemn this. However, we need not regard such a state of affairs as an irregularity common to all government departments because this is a very dangerous assumption.
In fact, every year the Director of Audit tries his best to carry out investigation, and brings to light departments and systems that have problems. This precisely proves the monitoring role played by the Audit Commission. Here I sincerely call upon the Government to amend the legislation concerning the Airport Authority expeditiously so as to bring in the monitoring of the Director of Audit and, thereby, put the operation of the Airport Authority onto the right tracks as soon as possible.
I have to reiterate that we need not regard the shortcomings of certain departments or the black sheep among civil servants as a phenomena common to government departments. Most of the civil servants are diligent and duty-conscious. To do that can only deal a heavy blow to their morale as well as to the quality of their services to the public.
At present, the systems of evaluation and promotion of the Civil Service are rigid, as a result of which staff with unsatisfactory performances and attitudes can still muddle through the government establishment, drawing salaries without doing much and wasting public resources, whilst some capable and hard-working civil servants are being frustrated by the restraints of the systems.
Under the existing government structure, it is difficult for the many outstanding professionals to get promotion chances. To become department heads, they usually take 10-odd years longer than Administrative Officers (AOs) with the same length of service; some even have to wait until the time close to their retirement. Let alone becoming heads of Policy Bureaux.
We should consider giving professionals on MPS Point 48 and D1 a chance to voluntarily participate in a three-year training. That is to say, they are to study in a foreign university for one year and then be seconded to various Policy Bureaux to gain experience in different fields. After that, they may enter for a selection exercise together with other professionals on D2. Those found to be outstanding will then be absorbed into the AO stream. In this way, there can be more AOs. What is more, AOs' professional abilities can be improved. They can then be able to cope with emergencies requiring professional knowledge. Their sensitivity to crisis and crisis management ability can also be improved.
Many people in the community are of the view that the Government may consider privatizing or corporatizing its services so as to improve efficiency and reduce wastage of resources. However, the Government must study this proposal carefully as such arrangements have achieved negative effects when implemented abroad. Before implementing any similar arrangement, the Government should arrange to have full and thorough dialogue and consultation with staff members of the departments concerned and consider the special conditions of each department.
With regard to the newly released consultation document on civil service reform, its general direction is acceptable. However, we have to be careful with its implementation details. Implementation should be done with high transparency. Do not change for the sake of changing so as not to upset the stability of the Civil Service.
With these remarks, Mr Deputy, I support the motion.
MR JAMES TIEN (in Cantonese): Mr Deputy, 30 years have flashed by since 1971 when I came back from the United States after completing my studies. Over these decades, Hong Kong has changed a lot, changing over from a manufacturing centre to a centre of service and finance. There are big changes in other areas too. Housing is under the care of the Housing Bureau; the promotion of trade is under the Trade Development Council. As for other developments, the Government also has very thorough preparation.
However, for the Civil Service, the last relatively major review was the McKINZIE Report released way back in 1973. So, in my opinion, it is now very appropriate for Mr LAM Woon-kwong, the Seccretary for the Civil Service, to conduct the review, which is, in fact, long over due. In the civil service system today, there are many fringe benefits, for example, housing allowance, or travel allowance and transport expenses, and so on which were necessary in those years when many civil servants were recruited from England. They had to be allowed to go back to England once a year. It was also necessary to let their children have tuition subsidies in British schools. They had many other fringe benefits in Hong Kong. But now the Civil Service should be in line with the local business sector. Nowadays the business sector does still hire expatriates to work in Hong Kong, but most of them have become contract staff and many fringe benefits are no longer available.
Therefore, I very much appreciate the fact that Mr LAM Woon-kwong is able to initiate the review while holding the post of Secretary for the Civil Service. It is very difficult for the Secretary for the Civil Service to have such courage as to conduct such a major review in his own bureau as this will inevitably offend others. The tenure as the head of a policy bureau usually lasts a year or two only. Why offend so many civil servants? The Chief Secretary for Administration being also present here, to her I have to express the hope that Mr LAM can hold his post longer, at least for a few years, so that he can implement the findings of the review. Here I want to bring up another point. According to past practice, an official only holds a post for a short time. I remember that Mr LAM was once the Commissioner for Labour. I had been in dialogue with him for some time. However, he was promoted in less than a few months. This is also a problem. The more capable you are, the faster you get promoted. With the review already launched by him, I hope that if anything does come out of it, he can have time to implement the relevant policies.
I want to talk about salary. The annual salary adjustment of the Civil Service is based on comparison with the private sector. I once raised such a question in the Legislative Council. In the comparison of the Government, a small firm is one with a staff establishment of 100 to 500, a medium-sized firm with an establishment of 500 to 1 500 and a large firm with more than 1 500. In the 1970s, when Hong Kong did not have many firms and those firms all had many employees, it was still appropriate to use that as the criterion for comparison. Now take a look at Hong Kong's small and medium enterprises. 90% of the firms employ fewer than 100 persons each. This is the real picture of Hong Kong's industrial and business sectors. However, the Government still regards an establishment with 100 to 500 employees as a small firm. As a matter of fact, what they use for comparison are no longer those Hong Kong employers who can afford to let "wage earners" have high salaries or generous fringe benefits. With regard to starting salaries in the Government, even an ordinary clerk earns $12,000 to $13,000 a month. To most members of the business sector, this is impossible. The Government must understand that public money is money from all taxpayers. I hope that when they use it, they do put it to proper uses.
I also very much agree with a point just made by Miss Emily LAU. We have employed so many senior officers at Points D6, D7 and D8, all of whom are earning more than $100,000. However, to perform their duties, they often have to hire consultants. They call in consultants to help them do researches. Such a consultancy report easily costs taxpayers several million dollars. I believe such a situation would not appear in the business sector. If we pay a senior employee $3 million to $4 million a year, how can we allow him to spend $3 million to $4 million to hire a consultant? Work has to be done by him. Of course, unlike civil servants, who are subject to transfers in a few years, senior staff members employed by the business sector, especially administrators, usually hold longer tenures. I hope that in future senior officials, especially the heads of Policy Bureaux, can make proper use of consultant firms even if they do have to hire them. Do not use consultant firms (in the words of Miss LAU) to "pass the buck"; do not just say: "I was advised by the consultant firm to do so. I have made consultation. I have proceeded strictly in accordance with what the consultant firm said," whenever problem crops up.
I very much agree with what Mr CHAN Kwok-keung said. I am surprised that he said so. The reason is that he is a trade union representative, but the many reasons that he gave are ones which I believe no trade union representative will give. Anyway, I very much agree with him.
Furthermore, some Members have raised the point that members of the Civil Service do have their difficulties, and cannot be compared with the business sector. How to do "money for value" assessment in a big organization like the Government? But this is achievable. There are quite a few private companies of considerable size and it is impossible for a managing director to directly manage some 10 000 employees. However, they have a structure which, operating openly and fairly, is able to make junior staff understand that "shoe shining" is not necessarily the prerequisite for promotion, and that there is a mechanism for them to develop their career so long as they perform well. I believe that after the review of the entire Civil Service, it is going to be possible for the Government to carry out improvement so long as it is determined to do so.
Mr Deputy, the Liberal Party supports this Consultation Document of the Government and, of course, also supports Mr Eric LI's motion. Thank you.
MR FRED LI (in Cantonese): Mr Deputy, following the release of the civil service reform consultation document on Monday afternoon, I noticed that there was extensive coverage by the electronic media. One civil servant telephoned a radio station to say that in the past the Civil Service was described as a very outstanding workforce, but now all of a sudden it was drastically belittled. These are heartfelt words from that civil servant. Another host of a radio programme mentioned that his friend, an Administrative Officer, once said: "Even if I come into conflicts with those low calibre councillors at a meeting, nothing will happen to me." These words, broadcast through the radio, only show that these officials come to the Chamber of the Legislative Council with a reckless and unprincipled mentality to challenge us. They are not very serious at meetings, thinking that they can muddle through by winding up members' queries in a perfunctory manner. As a matter of fact, in the existing civil service system, regardless of mistakes made by the management or errors in administrative management, it seems that there is no need to shoulder any responsibility or face the consequence. Outsiders even have the impression that the more one gets berated, the faster one gets promoted. I think fellow Members also share this feeling. Apart from getting some criticism from Members, the mass media and the public, there is seldom any disciplinary procedure as "squaring accounts". Such a state of affairs reminds me of my work at the PAC over the past few months, when I discovered failure to discharge duties and administrative malpractices on the part of certain departments. However, the departments concerned usually defended what they did through the mass media, but totally disregarded others' opinions. Is this the culture of the Civil Service? I believe that not a single Hong Kong citizen would like to see the preservation of such a culture.
Mr Deputy, the public's response to civil servants' efficiency and behaviour today is in fact something long accumulated and attributable to the absence of a monitoring and accountability mechanism over the Civil Service. The system and operation of the Civil Service have thus deviated from the mainstream of society and are even out of line with the expectations of the public. In particular I want to point out that the good and the bad are intermingled among the civil servants. If the upper beam is not straight, the lower ones will go even more aslant. With individual management bodies neglecting their supervisory duty, it is difficult to expect civil servants working on the front line to have good performances. It can be noticed from cases heard by the PAC, for example, the question concerning Meter Readers of the Water Supplies Department, that the issue of "deserting duties" has long existed. We also concern ourselves with the poor supervision on the part of senior management in the departments, not confining our attention to workers "deserting duties" on the front line. In fact we have to find out the primary cause of these problems. So long as there are a few heads of black sheep in the Government, members of the public will inevitably belittle the entire Civil Service by taking "a sweeping view". However, I still firmly believe that most of the civil servants working on the front line are duty-conscious and hard-working. The most obvious example is the Audit Commission. Following the exposure of several cases of "deserting duties", I started to receive from civil servants, either by phone or by mail, complaints about incidents of "deserting duties" on the part of their colleagues or their departments. The complainants are all civil servants, who work with those "deserters". Finding what their colleagues do disagreeable, they want me to inform senior members of the departments so that the authorities concerned can rectify such irregularities. Here is a very good example. A fortnight ago, I received from a Urban Services Department (USD) worker a complaint revealing that for a long time, nightshift USD drain workers have not been discharging their duties and been changing work procedures themselves without going to various parts of Kowloon to do drain work according to schedule. This might have indirectly brought about a long-standing situation in which Mongkok is flooded whenever there is a rainstorm. The Urban Council has held a special hearing for this.
Mr Deputy, I very much respect those civil servants who are faithful to their duties and dare to rise to testify on colleagues' failure to discharge duties despite all the pressure on them. The USD worker just mentioned by me even gave evidence to Urban Council Members in person. Such courage is most admirable. But for these upright civil servants, certain departments probably could not have noticed incidents of failure to discharge duties. I suggest that the Government, when considering reforming the Civil Service, should also consider setting up an independent mechanism for complaints so that retired or serving civil servants as well as members of the public can have a suitable channel to lodge complaints about the Civil Service and monitor civil servants' discipline, efficiency and conduct in order that the Civil Service can be made more accountable, transparent, and consistent with the public's expectation. With these remarks, Mr Deputy, I support Mr Eric LI's motion.
THE PRESIDENT resumed the Chair.
MRS SELINA CHOW (in Cantonese): Madam President, I have been with this Council since 1981. After nearly 18 years in the Council, I have made many friends, probably as many enemies, among members of the Civil Service. Being outspoken and straightforward, I often just say what comes to my mind, and have perhaps offended others unawared. But at least I tell the truth. In the course of this, I noticed that many members of the Civil Service did make adjustments and changes in response to the transformation and revamp of the whole situation. Agreeing with what many Honourable colleagues, said, I do think that our Civil Service is undoubtedly an outstanding and uncorrupted workforce. However, it is impossible for any outstanding workforce to be perfect. There are bound to be areas we do consider good enough. We will therefore often make some well-meaning criticisms in the hope that some serious review may take place.
I have talked about the structure of the Civil Service on many occasions here. There are often inadequacies in the co-ordination and overall organization across the board. For the implementation of some public policies, it often requires co-operation among the various bureaux and departments in order to meet public requirements or really promote some reforms. However, it is a pity that such a practice so far has not, in my opinion, proved to be very effective. When our request involves more than one bureau or department, we often have the impression that we are being shoved around like a ball. Members of the public may be passed from one department to another, or given to understand that the matter does not come under the purview of one bureau and has to be taken care of by another. Surely, there is some sort of mechanism now. Panels can have joint sessions, to which officers from different bureaux will be invited for joint discussions. Whether or not civil servants can indeed solve some problems or formulate some policies by way of inter-departmental co-operation is, in my opinion, not very effective so far.
Furthermore, I think that the policies of those at the top and those below are often incoherent. According to some senior civil servants, they are often determined to improve some policies, but, given the excessive expectation of the public, sometimes matters are not that satisfactory. These civil servants do have determination, especially in the case of Administrative Officers. They do have ideals and want to make improvement. A decision made over a long period of time to revise certain policies might run into problems when put to the front line or at the departmental level for implementation. These professional problems might be due to: First, failure to properly understand or link up the policies, or because of some long-standing cultural problems. Sometimes the understanding of those on the front line or at the bottom is different. The more senior the officers are, the humbler they may become, with attitude really like that of public servants. However, it might be different on the front line. Some civil servants might feel self-important and regard themselves as senior officials. Now we often talk about small and medium enterprises, and hold that it is necessary to create a business-friendly environment. However, according to many of those running small businesses, in reality there is too much control but not enough assistance. When coming to matters involving government services, they will be in contact with some officers who think they are very superior. Usually these are more junior officers. Therefore, we hope that the management of the Civil Service can rectify this as much as possible.
Here is another point, namely, the "user pays" principle. I think that to apply the "user pays" principle to public services probably would not give cause for criticism. The reason is that in so doing we are discharging our responsibility. We should pay for using public services. But we, as users or consumers, often wonder if our payments are really worthwhile. Sometimes we wonder if it is indeed necessary for the procedures to be so complicated, or whether the whole structure can achieve the targeted efficiency. Often the charge can reflect the quality and quantity that the service should have. Yet, with regard to the amounts chargeable, users have no say. So the Government is under a heavy responsibility, namely, to ensure that the services to users are indeed value for money. I can tell Members that when drawing up these policies, the Government often feels that it does not matter to ask the business sector to pay as ultimately the money is not out of the pockets of the business sector. But it is necessary to be careful with people's livelihood. Payments for business operations will be built into the cost. But please do bear in mind the question as to how to make profit under the overall business environment. It is essential to control cost and the cost has to be minimized. So, if government services also constitute part of the cost, the Government is duty-bound to maximize the Civil Service's efficiency. I have something to say in supplement. It is my sincere hope that on hearing Councillors' criticism, members of the Civil Service would not take too much to their hearts. If they take too much to their hearts, they will be swayed by personal feelings, and there can be no frank exchange of views. Thank you, Madam President.
DR LEONG CHE-HUNG: Madam President, I rise to speak in support of the motion. Let me state in no uncertain terms that, by supporting this motion, I am not doubting the well-publicized and time-honoured efficiency of our Civil Service, yet, there is always room for improvement, in particular, the civil service system itself.
Madam President, in the past few months, there have been some major, perhaps even radical, suggestions on revamping the Civil Service. Most somehow give an impression that the revamp is very much financially driven and motivated by the current economic downturn. If this is the sole reason for the radical surgery, we are barking up the wrong tree. It is perhaps for this reason that why the motion calls for the Government to examine and perhaps alter the culture, analyse and perhaps streamline its efficiency, scrutinize and improve frugality, to make an already good Civil Service even more committed.
Madam President, I would like to base my discussion on Chapter 11 of the Director of Audit's Report No. 31, which is on dental service provided by the Department of Health, to illustrate the limitation of flexibility, the resistance to change unless under intense pressure, and the lack of long-term vision that have not only led to the criticism of the Director of Audit, but also constrained the development of dental services in Hong Kong to date.
As a start, Madam President, in spite of the fact that the major reasons for the existence of government dental service is to fulfil the Government's contractual obligations for civil servants, yet waiting time to see a dentist runs from up to 6.9 months for treatment. Also, if a civil servant needs anything like a denture, it will be an average waiting time of something like 20.8 months. One wonders how many of those on this side of the Chamber should become at least partially edentulous, that is, toothless, should they bother to queue up for government service.
Amongst the many reasons, the major issue is that whilst civil servants work from 9 am to 5 pm, government dental clinics are also open from 9 am to 5 pm. In short, civil servants have to use their valuable working time to attend dental appointments to the extent that in 1997, for example, some 343 000 hours were so spent, representing 181 man-years, and in terms of notional costs, some $76 million was spent in 1997-98. It is on this basis that government dental clinics are now extended from 8 am to 6 pm on weekdays only.
On the other hand, private dentists open seven days a week, some even work after normal office hours to allow better flexibility for patients, providing them the convenience of not disrupting them from their work. A mere reshuffle of the working hours of staff and arrangements for shift duties by the government dental service would probably improve efficiency.
It may be said that even then, with the only 200-odd dentists in government clinics, it is still insufficient to deal with the 180 000-plus civil servants' oral health. Flexibility must be the order of the day. There is no reason for not increasing the dental manpower of the Department of Health so as to provide more efficient services for civil servants, to extend services to special oral need groups and needy members of the public, and hence at the same time decrease the manpower excess in the private sector as quoted by the Director of Audit.
Obviously, it may even be more cost-effective to contract out civil servants' dental service to private practitioners. In two Dental Practice Profile Survey Reports done in 1989 and 1994, both have shown that the median charge of private dentists are much cheaper than the cost of government service. As an example, the cost of a simple dental filling is more expensive in the government dental service by some 108% to 132%. It is not that contracting-out was never thought of, yet because of a previous abuse for such services, the Government refuses to revisit the issue.
Let me now turn to say a few words about the age-old civil service culture of "do not rock the boat", using the fact of the Director of Audit's Report to illustrate the fallacies of government bureaucracy. Procrastination has always been the order of the day, and unless and until there is intense public or international pressure, nothing moves.
To wit, while the Government provides the heavily-subsidized medical treatment service for anybody, such service has always been rejected for dental care. Yet, we all know oral health is, and must be, an integral part of healthy living. For years, the Government has been using the argument that it is so expensive to provide dental treatment service and only promotes dental health education to encourage people to have regular dental check-ups. The motto that the Government puts out is: "If you keep your oral hygiene well, you should retain at least 20 teeth by the time you reach 80." Yet, where do the general public, who cannot afford a private dentist, go for dental care?
Why did this happen? Well, bad oral health is not life-threatening. Old grannies are always subdued to the fact that it is natural to have no teeth by the time they reach that good old age. In short, there is no public pressure, no political pressure for the Government to consider starting the machinery. Even political parties are oblivious to dental service problems, for such is never high in their common complaints list.
Madam President, civil service reform will not be complete if the Government does not address two other issues. As a start, the role of civil servants must be properly defined. For whilst the Administration is loudly proclaiming that the Civil Service is apolitical, top Secretaries are formulating policies they themselves implement. In short, they are taking a political role regrettably with no mandate. It may well be workable in a colonial setting. But as we are masters of our own house now, so we must initiate changes.
Secondly, while we all acknowledge the Jack-of-all-trades multi-talents of the Administration and Administrative Officers, many bureaux need professional expertise and leadership to be properly run. Such professional knowledge is understandably not available with the generalists.
If we want Hong Kong to improve for the better, let me put it to you, Madam President, the Civil Service must be updated.
PRESIDENT (in Cantonese): Dr LEONG Che-hung, your time is up.
MR HOWARD YOUNG: Madam President, the Report of the Public Accounts Committee (PAC) is a yearly exercise reassuring the public of the existence of a reliable checks and balances mechanism watching over the efficiency of our public service. Each year findings bring to question the culture, efficiency and frugality of our Civil Service. This year's Director of Audit's Reports No. 30 and 31 were no exception. Since the release of the Reports, the Government has announced a consultative document on reform of the Civil Service. The Liberal Party has consistently supported that the system of the Civil Service must change with the times and must improve itself as the socio-economic circumstances change.
In the last decade, government and public expenditure has expanded remarkably. At the moment, the number of civil servants is close to 200 000, and those who are paid out of the public purse in total close to 300 000. The total benefits and welfare and remuneration are equivalent to about two thirds of government recurrent expenditure. During these times of economic difficulties, I think everyone, including the Government and public sector, are looking for various ways to trim down and increase efficiency.
Handsome staff benefits, such as paid travel, education, overtime, housing, language lessons and meal allowances are all intended to attract and retain talented and high calibre individuals into the Civil Service, and have done so. But they are not as successful in initiating diligence and efficiency.
Further, the sheer size and depersonalized nature of the public administration and collective responsibility may have become a shield for some members of the Civil Service from the consequences of their actions. Among the thousands of civil servants involved in any one project, who can be singled out as actually responsible? The fact is that the system of permanent employment, the "iron rice bowl" concept, where job security is guaranteed regardless of performance is open to abuse.
Madam President, the importance of public sector accountability cannot be emphasized enough. We, the Liberal Party, therefore, in principle support the civil service reform consultation paper. In particular, we agree with the introduction of new entry terms to replace the current permanent and pensionable appointment terms; the revamping of the retirement system with the initiation of a contributory provident fund, especially since the private sector is also going to be full-fledged involved in mandatory provident funds; and the overall effort to align the Civil Service with the pace of society. We believe in the need for flexibility to counter the redundancies of bureaucratic existence and the need to fully maximize the potential of all government resources for more efficiency. We, the Liberal Party, also fully support the move to attract new talent from the private sector for competition at various levels.
We would like to urge the Government to make the most of the recommendations put forward by the PAC. The call for service reviews such as checking the utilization rate of some 117 government canteens are all geared towards encouraging more forward thinking and problem solving among our civil servants so that it is not at year's end that remedial action is considered.
Furthermore, the prevailing trend of restricting policy-making to the upper tiers of government officials greatly limits the optimal use of available manpower resources. We propose extending public policy decision-making and responsibility to different grades of government officials to fully make use of the diversified talents of our Civil Service, so that they can contribute to the development of Hong Kong and take ownership of their policy decisions.
Nevertheless, the question still remains as to how to balance the independence and autonomy of public officials with enhanced responsibility. In our view, the answer lies in the cultivation of social conscience through a modern-day human resources development. Apart from providing Administrative Officers with more directly usable knowledge and necessary policy-making skills, civil service training should stress the awareness of the social impact of decisions. Our civil servants should have a sense of personal responsibility to the community for each choice they make. When there is a problem, or indeed just a potential one, they should not instinctively shelve or move it to another desk, nor should they unquestionably accept a solution or solutions proposed. They should feel a personal obligation to solve it actively themselves, and undertake that obligation fully and wholeheartedly.
Madam President, despite the quite often heard criticizing voices, we in the Liberal Party do recognize that there are many, many dedicated people in the Civil Service who work hard and efficiently. And take for example, we notice that many senior officers of the Administration have been with us since late last night to the early hours of this morning, joining us in various debates and discussions. For this, we are truly grateful. And of course, we all recognize that the successful transition could not have been achieved without the dedication from all sectors of the Civil Service.
However, Hong Kong people today are indeed ruling Hong Kong with a high degree of autonomy, but doing so efficiently requires a considerable amount of adjustment and a new kind of self-awareness on the part of its civil servants.
With these remarks, Madam President, we support the motion.
MR TAM YIU-CHUNG (in Cantonese): Madam President, Hong Kong's Civil Service has long been considered to be one that is efficient, uncorrupted and law-abiding. However, according to the Director of Audit's value for money audit reports, some departments are slack in their management, with staff-members loafing on their jobs and wasting public money. Certainly, such a poor phenomena did not appear only after the establishment of the SAR Government. Now in the era of "Hong Kong people ruling Hong Kong", can we still turn a blind eye to these eye-sores? The answer is a firm "no".
In maintaining social stability and ensuring the smooth operation of the Government, the Civil Service has always been the mainstay. In particular, its stabilizing effect in society during the 1997 transition was apparent enough to be noticed by all. What people expect of the Civil Service has gone up as they have become masters of their own house following the establishment of the SAR Government. Furthermore, given the impact from the financial turmoil, people expect the Government to be able to lead Hong Kong out of the crisis and rejuvenate the economy. In order to respond to social needs and people's wishes, civil servants, being public servants, must have dedication and refrain from regarding themselves as rulers, and always improve their efficiency in the quest for excellence.
We would all agree that some irregularities in the system are now obstructing the Civil Service's efforts to improve efficiency and also causing suffocation to the service culture. For an administrative system to be healthy, there must be unblocked communication between those at the top and those down below, and punishment and reward must be fair. That is just like a man's blood circulation, which can hardly afford to have the slightest obstruction. Front-line staff is pivotal in the implementation of government policies. So, middle-level supervisors have to both properly play the monitoring role, and be able to function as bridges. It so happens that it is here that some bad blood is being accumulated, as a result of which many bad signs have cropped up. According to the Report, senior supervisors of some departments fail to assign enough work to front-line staff and even wink at those staff loafing on jobs. Some dishonest workers are able to cover up the fact that they have time to spare by giving false reports on their work and mislead their superiors.
In fact, most of the civil servants are loyal to, and happy with, their jobs. There is a term known as "tunnel effect", which denotes a psychological symptom compared to two trains coming to a halt in a tunnel. If one of the two manages to be re-started whilst the other one long remains motionless, passengers on board of the latter definitely will burst into an uproar. For the same reason, if those in a department who are lazy and poor in performance go unpunished, then no matter how hard-working or committed other officers are, they will sooner or later come to feel that it is "undeserving" and depressing. So, if the managers just try to drift along without discharging the duty required of them, and let a minority of their subordinates "behave or act wildly," the entire department's morale and efficiency will definitely go downhill.
To bring an end to such a situation, we have to put in joint efforts to build up a sense of responsibility in respect of service culture and work, improve civil servants' efficiency, and, if need be, open up the Civil Service to create a competitive environment. The civil service reform consultation document just released by the Government on Monday proposes to carry out reform in four areas, namely, the entry and exit mechanism, pays and fringe benefits, disciplinary procedures, and the performance appraisal mechanism. I consider that to be a comprehensive and fundamental reform.
Nowhere in the world can one find a mode of administration that can improve efficiency and effectiveness for ever and ever. The SAR Government must keep pace with the times and incessantly review administrative systems so that the Civil Service can be more effective and provide the public with better services. However, staff management should not be one-sided. Amid the general trend of reform, the Government should step up dialogue with the staff side on the ways to carry out various plans so that all civil servants can see that the reform is essential and fair, and thus support it. In order that reform can be accomplished with better results at the cost of less effort, we have to be enterprising enough to be bold and resolute as well as cautious enough to be able to progress gradually.
I so submit.
MR HUI CHEUNG-CHING (in Cantonese): Madam President, given its huge numerical and structural sizes, it is very difficult to comment on the Civil Service's culture and efficiency in general terms. As a Legislative Council Member, I, for more than half a year, have been representing the import and export sectors in conveying views to the Government as well as in striving for their rights and benefits. Though the Government does not necessarily grant whatever is requested, there have been a few examples which show, more or less, that civil servants are also striving to follow the principle for effectiveness and base their actions on the spirit to serve. They are indeed important assets motivating the successful development of Hong Kong.
Here is the first obvious example. In mid-September last year, I pointed out that Hong Kong businessmen wishing to make business trips to some of Hong Kong's import and export trade markets in the Middle East (for example, Saudi Arabia) must take all the trouble to leave Hong Kong to go to places (for example, Beijing) where consulates of the countries concerned are available to file applications for visas. After I raised this issue concerning obstruction to business operations, within a month, the Trade Development Council was able to obtain from the China Travel Agency an undertaking to process applications for Saudi Arabian visas for Hong Kong businessmen. The Central Government also concluded consulate agreements with Saudi Arabia and the United Arab Emirates, both of which will set up consulates in Hong Kong within the current year.
Here's another case showing the sense of responsibility and emphasis on efficiency on the part of the Government. In mid-July last year, Mr CHAN Kam-lam and I, together with representatives of the Hong Kong's shoe-making industry, asked the Government to revise, in accordance with recommendations of the World Trade Organization, those rules on the issue of certificates of origin for Hong Kong-made shoes to make it possible for Hong Kong shoe traders to move back to Hong Kong some of the processing steps done elsewhere so as to comply with international regulations for the issue of Certificates of Hong Kong Origin and, thus, to enjoy lower tariffs. In the end, the Government agreed to amend the regulations, bringing the new regulations into effect just last month.
Though merely representing the Government's few responses to my many requests, the two examples just quoted are indicative of the government will to consider the requests of businessmen and ordinary people. The public are precisely looking forward to having accountability and high efficiency extended to all parts from one single point.
In fact I agree with many Honourable colleagues on the point that the Civil Service has many inherent problems, for example, the attitude and culture of "more work more mistakes, less work fewer mistakes, and no work no mistakes". Because of this, the Government not only cannot effectively deal with various disasters, but is also unable to satisfy people's expectation that the Government should have the courage to take up commitments and uphold accountability. In the case of avian flu, the crisis arose because some government officials had been bureaucratic and rigid. The new airport came to a standstill because some government officials took upon themselves authority but not responsibility. Surely, the Government should not get all the blame for these disasters. However, had the Government not erred, the severity of the blows to Hong Kong from such disasters could have been reduced.
Roughly speaking, now a civil servant on the average serves some 35 citizens, last year earning, on the average, more than $0.26 million in wage and benefits, or, in other words, collecting from each citizen a service fee amounting to more than $7,000. Different people have different views on the question as to whether such a price is too high or too low. Given all the mistakes by the Government over the past year or so, more and more people are asking one question, namely, whether or not the Civil Service's performance is really worth the money. At a time when the economy is poor and people have to economize on food and clothing, the said question is becoming more and more acute.
Mindful of what people expect of civil servants' work performances, the Financial Secretary last week proposed to freeze the civil service salaries. There is also the possibility of following private sectors' pay cuts. These are to bring out the message that the Government will be riding out the storm together with members of the public.
I hope that the civil service reform consultation document just released by the Government can receive from civil servants (especially civil service unions) active and constructive responses, but not emotional and passive resistance, so that a three-win solution beneficial to the people, the Government, and the long-term overall development of Hong Kong can be achieved.
Madam President, I so submit. Thank you.
MISS CHAN YUEN-HAN (in Cantonese): Good morning, Madam President. Originally my draft for this speech was on matters concerning civil servants of bureau level. After listening to the speeches delivered by some Honourable colleagues this morning, I also want to talk about issues of the entire Civil Service. As just mentioned by quite a few colleagues, members of the public and the international community used to hold the Civil Service in high esteem as a workforce uncorrupted, dedicated to the implementation of policies and highly efficient. During the transitional period, the public was appreciative of civil servants' performance. A stable Civil Service actually symbolized Hong Kong people's confidence during the transitional period. There are, therefore, quite a few provisions for the Civil Service in the Basic Law. All the above are facts that we were once always proud of. However, as society becomes more open, the demand for accountability also grows. Many people will put to our civil servants a lot of questions and suggestions. It has been particularly so over the past two years, when we have experienced so many events. Many people are also calling into question civil servants' crisis management ability and calibre. In the course of this, it has come to my notice that the fact that front-line civil servants loaf on jobs is often used (by, I wonder, the Government or bodies responsible for the management of civil servants) as an example to claim that all civil servants are lazy. There are bound to be a few heads of black sheep in a group. But society is now being engulfed by such thinking. In the past we praised the Civil Service so much, but all of a sudden we completely reverse our view on them. And I think such a view is spreading.
Last Sunday, I went through a Customs counter at the border as I had to attend to some domestic matters. I met a few civil servants on my way. They took the initiative to talk with me. Their conversation indicated that they had lost confidence in themselves. This, when contrasted with the pride that civil servants used to take in their posts, is, in my view, indicative of certain changes. At that time the Government had yet to announce the various proposals of civil service reform. However, I already had that feeling. In fact the Government and we should reflect on this. In the past, we considered the Civil Service uncorrupted, efficient and capable of carrying out government policies effectively, but all of a sudden here comes a drastic change in the people's opinion. Given the reform proposals announced by the Government, the whole society seems to be attributing all the problems to the civil servants, especially those on the front line. I think that this merits consideration by all members of society, including Members of the Legislative Council. From the standpoint of trade unions, we agree that there should be reform for the Civil Service as, after decades of operation, it has many areas that need to be changed with changes in society, such as issues relating to promotion, acting appointments, and internal transparency, all of which have long been questions brought up by civil service unions. According to my observation, ever since the Government announced the civil service reform proposals, civil service unions have adopted an open and restrained attitude, and are prepared to reform. Any reform that may be carried out eventually, in my opinion, should be carried out rationally. For instance, according to those civil servants whom I ran into last Sunday on my way through Customs, their worry is that the whole reform package might aim for cuts in pays and fringe benefits as it is the order of the day. Reform in their eyes is equivalent to cuts in pays and fringe benefits. I told them that the matter should not be viewed in that way. I think it is bad to have such an atmosphere. Though the Government has stressed that certain departments, for example, the disciplined services, will be exempted, yet there are things which are now beyond the vision of civil servants. So such a way of thinking is engulfing the entire workforce, especially those on the front line.
In my opinion, when all members of the community consider it necessary to reform the Civil Service, and we also agree on the need for reform, it is not appropriate to exaggerate or enlarge some matters; nor is it advisable to peg the situation of the Civil Service to that of the private sector. To strengthen our competitiveness and to improve civil servants' service quality and efficiency, I do not deny the need for reform. We all agree on this. However, I think a balance has to be struck in the course of reform as it is apparent that we want to have a Civil Service that is stable, capable of generating a strong consolidating power, and able to implement government policies. So, it is necessary to find ways to strike a balance between the private sector and the public sector. This is, in my view, a matter that we will have to handle with great care when implementing the reform.
While burning midnight oil here last night, I spared some time to read newspapers. I noticed that many people are discussing the matter and that many scholars and I are, by coincidence, of the same view. That is to say, we all agree that though it is necessary to reform, it is also necessary to take into consideration civil servants' views in the course of the reform, and it is not advisable to strive for development in the direction of privatization in total disregard of the Civil Service's stability and consolidating power. Furthermore, I have to stress that it is necessary to deal a fair hand when identifying loafers. Therefore, I appreciate the remarks made by a supervisor of the Water Supplies Department. When someone, saying that his subordinates were very lazy, asked him why the meters read by his subordinates were so few, the officer said in reply that the matter had nothing to do with his subordinates, but should be attributed to the management's overall work arrangement. According to my observation, problems with the Civil Service often arise from the management level. Though now staff of the Hospital Authority are no longer members of the Civil Service, they came over from the Civil Service and constitute part of the medical care service. It has come to my attention that the tasks of front-line staff are often very tough, but often the problems are with the management, on which resources have been spent. Therefore, I have no objection to enhancing staff members' quality, but I also consider it inappropriate to ask them to take up all the responsibilities. We must strike a balance among them. I have just said (Miss Emily LAU is shaking her head incessantly) that I do not dispute the need to enhance the quality of their service on the front line and that I also do not dispute the point that on the front line there are some who are bringing disgrace to the group. However, they belong to the minority. Sorry, by "front line", I do not mean the party to which Miss Emily LAU belongs. I am referring to those civil servants working on the front line. As a trade unionist, I have all along paid attention to the views of civil service unions as well as friends from the Civil Service. I have come to the view that when the Government implements the reform, it is essential to consult the trade unions and the staff side. Do not just listen to the views from the bureaux or those from the management side.
With these remarks, Madam President, I support the motion.
MR MARTIN LEE (in Cantonese): Madam President, I think all of us have waken up. So there have been more speakers. Perhaps we will have to have lunch here today.
Madam President, in the past we often said "working from 9 am to 5 pm", and "the iron rice-bowl". In fact these are already archaic. Those situations were applicable only to the age of old Cantonese movies, not now. My friends' children who have grown up and are working, often cannot leave until 9 pm or 10 pm. This is also true of those senior officials sitting on the opposite side now. However, there are still some who are "working from 9 am to 5 pm". There are even some who are, according to what Honourable colleagues have said, "working from 9 am to 11 am". Surely, these are the few bringing disgrace to the group.
But I think members of the Civil Service should not cherish memories of the past nostalgically. Perhaps those were already "good old days". There is also something called "AO" culture that I find it hard to accept. According to some people, the superior is always right and should be absolutely obeyed . Why is it so? The reason is that it is the superior who prepares the staff performance appraisal report. Furthermore, according to one of the officials usually sitting opposite us, "You must not criticize my boss. I definitely will argue with you right up to the very end." I find that very strange. If his boss is wrong, not only I but he also should make the criticism. Is this correct? It is no good for the superior to be surrounded by persons who can only say "Yes, Sir". I think such a culture is archaic, and, therefore, ought to be changed.
I still remember what a senior officer of the Legal Department told his colleagues long time ago: "Let me teach you some ropes. If you run into any problem, do not do anything. Gradually as you grow in age, your seniority will also grow and your turn for promotion will definitely come. You must not deal with many matters, then nothing will happen." In the end that officer got promoted to very high ranks, first becoming the Crown Prosecutor, and ending up in the High Court as a judge. However, I do not think that it is now possible to do so. It just does not work any more.
Civil servants should be in line with employees in the private sector. That is to say, those who perform better, work harder, and show greater sense of responsibility should be promoled faster. In this way, every person will move on and get promoted to senior posts quickly. In fact, private organizations have been doing so. Madam President, the 21st century is drawing close. We should keep abreast with the times and make no mention of situations applicable to the age of old Cantonese movies. I think this is not beyond us as most members of the Civil Service do understand that the modern world is different from the past, and that it would not do to indulge in the memory of the "good old days". I believe that they will soon get accustomed to the new culture. Therefore, I support the motion. Thank you.
PRESIDENT (in Cantonese): Does any other Member wish to speak?
(No Member responded)
CHIEF SECRETARY FOR ADMINISTRATION (in Cantonese): Madam President, Hong Kong has a Civil Service that is professional, efficient, credible and uncorrupted. I believe that most of my colleagues in the Civil Service are dedicated to their duties, uncorrupted and law-abiding. We continuously put in efforts to ensure high standards of personal conduct and integrity among civil servants. The Civil Service Bureau's recent release of "Civil Servants' Guide To Good Practices" is precisely part of the efforts. The Guide aims to make all members of the Civil Service understand more clearly the standards required of them and stresses the point that civil servants' personal conduct and integrity are just as important as their performance on jobs. The Civil Service's culture and quality of service must meet public expectation. Efforts on the staff side and those on the management side are mutually complementary. This is most important. It is a pity that some civil servants do fall short of the standards required. Even though they only belong to a very small minority, we will deal with all incidents of misconduct seriously. Disciplinary procedures will definitely be taken against those in breach of government regulations or management instructions; nobody will be allowed to misbehave and bring the Civil Service into disrepute.
The Director of Audit and the Public Accounts Committee (PAC) play an important role in the public scrutiny of the work procedures and performances of the authorities. The Director and his officers are welcome to conduct objective scrutiny on our work. Sometimes this process might embarrass the Government, especially when our colleagues are being labelled as poor in performance or incompetent. Surely, nobody likes being criticized for poor efficiency. However, it does not mean that we tend to defend shortcomings. On the contrary, we often face up to this kind of scrutiny with a positive attitude and welcome justified criticisms. I firmly believe that the monitoring systems now available are essential in ensuring the integrity and uprightness of the Civil Service. Among them are the work of the Director of Audit in value for money matters, the work of the Ombudsman in matters concerning administrative malpractices, the ICAC and the Legislative Council, which independently monitors the Government in various ways, including through questioning.
Reports Nos. 30 and 31 of the Director of Audit looked into several departments that have outdoor staff. According to the findings, the performance of individual civil servants or groups of civil servants are indeed disappointing. It is correct for members of the PAC to be concerned about the situations stated therein. In accordance with the Rules of Procedure, the Administration will prepare the Government's replies in three months to formally answer the PAC. However, I wish to avail myself of today's opportunity to report to Honourable Members and the general public measures taken by us to address certain management issues and the preparation being made by us to prepare the Civil Service for the next century. In the first place, all departments named have conducted in-depth reviews in response to individual situations mentioned by the Director of Audit in his reports. Taking a serious view on the misconduct referred to in the reports, we have done in-depth investigations and, wherever appropriate, instituted disciplinary proceedings. In addition, the departments concerned have taken measures to strengthen their monitoring systems. The Census and Statistics Department has improved its log-keeping system on outdoor work, requiring outdoor staff to note down in detail each outdoor assignment's method of work and duration, nature of work before and after a survey and the time used, travel time, and other official duties as well. To monitor staff members' on-duty hours, the Water Supplies Department has brought in a staff attendance record system. To surprise-check departmental services and to identify areas requiring improvement, the Regional Services Department has set up a special testing team and a service quality assessment unit. The Government Supplies Department has decided to install a vehicle tracking system to obtain accurate time record on the whereabouts and situations of vehicles.
Apart from measures taken by these departments, we promised Honourable Members immediate actions to look into the issue of having more extensive monitoring on outdoor staff. Later, on 19 November 1998, the Secretary for the Civil Service wrote to heads of department to ask them to review the monitoring of outdoor staff, to identify problem areas, and to ensure the effectiveness of monitoring systems now being used. I have to stress that all departments, including those with only a few outdoor staff, took part in the review and identified areas requiring improvement. The review brought out a clear message: it is necessary for us to revamp these systems. Under certain circumstances, the attendance register system will be more strictly enforced and relevant records will be spot-checked more frequently. Supervisors will conduct more surprise checks to monitor subordinates and, if need be, will use electronic devices as aids. For instance, the Housing Department has adopted the use of an electronic patrol monitoring system to better trace members of the staff. There will be more monitoring on the staff doing outdoor work upon the implementation of the new systems. To achieve this, we will bring in the use of portable computers to record staff attendance.
Currently studying findings of the review, the Civil Service Bureau is going to draw up a set of new guidelines, intended for all departments on the basis of uniform standard for use in monitoring outdoor staff, and yet will leave sufficient room for department heads to have additional regulations or systems according to special conditions of their respective departments. This is an on-going job. We will make sure that we do learn from the cases concerned. Surely, no matter how water-tight a regulation or monitoring system is, there still might be grey areas. It is civil servants' personal conduct and self-discipline that matter most. I hope that each of our colleagues can show diligence, put in full efforts, and be honest and upright in discharging his official duties, and, in using public funds, be as frugal as possible and always pay attention to cost-effectiveness.
Three days ago, the Secretary for the Civil Service released a consultation document, which is a long-term blueprint for civil service reform. Enhancement of productivity and improvement of management culture are the main targets of this reform. This important mission will cover all areas involved in the management of civil servants, ranging from recruitment procedures to pension arrangements, and covering pays, terms of appointment and disciplinary procedures. I understand that most civil service unions do agree with the general direction of the reform. The Government is very appreciative of their positive attitude. There probably will be comments on the consultation document from all sectors in the next few months. As pointed out by the Secretary for the Civil Service, there is a clear objective for the future general orientation of the Civil Service, but there are many ways to achieve that objective. We are going to consult the staff side adequately and proceed with caution. However, we also want to bring in the reform as soon as possible so as to strive for excellence. I am confident that the public will support our work. I also firmly believe that our colleagues will welcome the revamp professionally and positively. Here I do not intend to discuss in detail the contents of the consultation document. However, I call upon our colleagues, Honourable Members, and other interested parties to study the various concepts given in the document and express their views in debates on the future orientation of the Civil Service so that we can make improvement to the Civil Service and ensure the Hong Kong Special Administrative Region will have a Civil Service that meets our requirements and the challenges ahead.
The Government has pledged to make proper use of public funds. This is, of course, particularly important now because of the economic situation. It is, however, definitely not a new commitment. The new commitment is that all members of the Civil Service should make every effort to equip themselves in preparation for challenges in the new millennium. We announced the launch of the Enhanced Productivity Program last October, and have been actively finding ways to push government services towards excellence. In just a few months, the Government and subvented organizations have been able to enhance productivity by over $800 million through internal redeployment to provide some 300 items of new services or improve facilities. It has always been the Government's objective to improve efficiency of services. To this end, we have implemented a number of initiatives, and will keep on studying other improvement measures, some of which might involve significant changes to the Government's modus operaudi.
Over the past few years, we have established quite a few trading funds operating on business principles. The departments concerned have been able to improve efficiency and productivity following their conversion to the trading fund system, the General Post Office being an obvious example. To streamline the structure of government operations, many tasks have already been contracted out. We will continue to progress in this direction. For instance, there are plans to contract out the Transport Department's work of issuing driving licences and vehicular permits as well as the Social Welfare Department's home help service. Another way to upgrade efficiency of government services is to bring in more private sector participation. We have given developers permission to connect public utilities for, and build access roads to, projects developed by them, thus shortening construction time by one to three months. Currently under our consideration are plans to let private organizations participate in water supply work. Also identified is the issue that private sector can play a greater role in running homes for the aged. To ensure that government departments do keep abreast with the times, we will put in efforts to reform the government machinery in order that more cost-effective services can be provided to the people. One of our programme areas is to identify departments that are suitable for corporatization, and to work out in detail proposals and arrangements in consultation with members of their staff. One of the reasons why Hong Kong's Civil Service has never been inferior to those of other places in the world is that we know how to meet, accommodate and positively respond to the changing needs of the community. We will keep on doing so. To achieve this, we can not just adopt new systems, but should retain the merits of the existing system. The reason is that the existing system made it possible for our civil servants to successfully discharge the historic mission during the transition to 1997. In the next few months, we will be introducing into different areas of civil service management new measures so as to ensure Hong Kong a Civil Service which is loyal, uncorrupted, professional, high in morale, and always ready to meet new challenges.
PRESIDENT (in Cantonese): Mr Eric LI, you are now entitled to reply and you have one minute and 39 seconds, out of your original 15 minutes.
MR ERIC LI (in Cantonese): Madam President, I am most grateful to the Chief Secretary for Administration for her positive response. However, it seems that Mr LAM Woon-kwong, the Secretary for the Civil Service, has recently caused a lot of controversies, and made himself a target of flak. So he should be given more chance to state his defence. It is hoped that he later will respond to views expressed by so many Members and give his reply to this Council. "Here comes five o'clock with no crisis at all," said Miss Emily LAU. I was a little worried when the debate first started as yesterday's debate on the District Councils Bill ran unawared from five o'clock yesterday afternoon to seven o'clock this morning. Fortunately, when the topic on the Public Accounts Committee turned up, all Members woke up. Their presentations then improved markedly. Working overtime at low cost with high efficiency, 17 Members have managed to state all the views in less than two hours. When a Member speaks, quality counts far more than quantity. Each of us has addressed the issue from viewpoint familiar to himself but different from those of others, and expounded the need to carry out reform now. We also indicated our support for the general direction of the reform. Mr LAM surely will, I believe, find this a promising start. Mr CHEUNG Man-kwong extolled such a reform as a "cultural revolution". Madam President, may I say a few words to Mr LAM through you: "As the Revolution has yet to be completed, the Secretary still has to press on." However, this Council will support the Secretary. We wish the Secretary every success. Please support this motion.
PRESIDENT (in Cantonese): I now propose the question to you and that is: That Mr Eric LI's motion 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 motion is agreed by a majority respectively from each of the the two groups of Members, that is, those returned by functional constituencies and those returned by geographical constituencies through direct elections and by the Election Committee, who are present. I declare the motion carried.
PRESIDENT (in Cantonese): Honourable Members, I have to make a declaration. Dr Raymond HO just told me that at 5.29 am, at the Committee stage when Council voted on the Secretary for Constitutional Affairs' amendment to clause 83(1), Dr Raymond HO was, according to him, present and did vote for it. However, the voting record printed out indicated that he had not voted. According to the Rules of Procedure, if a Member brings up the point that there might be a counting error in the voting result before I declare the result of the vote, I may give consent to make amendment. But under the circumstances of that moment, it was not possible for Dr HO to know that his vote was not recorded. So this puts me in a fairly difficult position. After reviewing the voting record, I noticed that of the 49 Members then present, 48 voted, with 34 voting in favour of the amendment, 13 against it, and one abstaining. So even if there is one more vote in favour of it, it would not affect the final result of having the amendment passed. However, to keep things straight, I have to make this declaration in order that this incident can be recorded in our verbatim records.
DR RAYMOND HO (in Cantonese): Madam President, at that time you did say that there appeared to be some problem. However, at that time I did not know that the problem was with my voting machine. Thank you for spending time to clarify it for me.
PRESIDENT (in Cantonese): Now let us move on to the second motion: Vote of no confidence in the Secretary for Justice.
VOTE OF NO CONFIDENCE IN THE SECRETARY FOR JUSTICE
MISS MARGARET NG: I would like to declare that I am a member of the Operations Review Committee of the Independent Commission Against Corruption (ICAC). I have taken advice from the Legal Advisor and the Senior Counsel. I am advised that there is no conflict of interest disqualifying my moving, speaking or voting in this debate. However, so that there is no question of concealment, I wish to state this fact and put it on record.
Madam President, I move the motion standing in my name.
On 18 March 1998, three employees of the Hong Kong Standard were charged with conspiring with the Chairman of the Sing Tao Group which owns the paper to inflate the paper's circulation figure. The Chairman of the Group, Ms Sally AW, was however, not prosecuted. She also happened to be a family friend of the Chief Executive and a member of the Chinese Peoples' Political Consultative Conference.
This sparked off a public outcry. Why was Ms AW not prosecuted, even though she was named on the charge sheet as a co-conspirator? Was she given preferential treatment because of her position? If so, where does this leave the principle of equality before the law?
On 3 February 1999, the Secretary for Justice explained her reasons for her decision in a long statement to this Council's Panel on Administration of Justice and Legal Services. In it, she said her reasons were: (1) insufficient evidence; and (2) public interest.
Under "public interest", her reason is that, because the Sing Tao Group was in financial difficulties, prosecuting Ms AW might, or would, bring on the following consequences: the Sing Tao Group might collapse; the newspapers owned by the Group would have to close down; over a thousand people would lose their jobs; and the failure of a major media group would send a "bad message" to the international community.
She said in her statement, "Thus it was that I also decided that it was not in the public interest to initiate a prosecution of Ms AW". Significantly, she went on, "I then asked myself if these public interest factors required me to withhold my consent to the prosecution of the three other suspects, I decided they did not."
Such an interpretation is deeply shocking. Not only is the projection of the consequences of prosecuting Ms AW naive, but this is blatantly treating heads of companies employing large numbers of people differently from their employees in a charge of conspiring together for the benefit of the company. Even more unforgivable, we are told this is what "public interest" means.
The public was scandalized. The Secretary's "public interest" looks indistinguishable from the ordinary person's view of unequal treatment. Learned opinion was astonished. Professor Yash GHAI of the Hong Kong University Law School said, "I am amazed by this reasoning. It does not show proper understanding by the Department of Justice of what the rule of law means." Chairman of the Bar, Mr Ronny TONG, S.C., said, "It runs contrary to my understanding of the law." A poll in the Apple Daily next day showed that over 56% of the public did not accept Miss LEUNG's explanation against 26% who accepted it, and nearly 50% had no confidence in her suitability as Secretary for Justice, against 27% who had.
In the ensuing public debate and commentaries, there is not the shadow of a doubt as to which side the public opinion fell. A survey published on 6 February by the Hong Kong Policy Research Institute showed a 31% drop in the level of confidence in the administration of justice, clearly caused by the statement of the Secretary for Justice. The direct response I have received from my own constituency is overwhelming. Her interpretation of the "public interest" has also sent a far worse message to the international community than the financial difficulties of the Sing Tao Group could ever have sent.
Since then, the Government had lobbied hard on the line that the "public interest" consideration was irrelevant, because Miss LEUNG had already come to the conclusion that there was insufficient evidence for prosecution. The explanation on public interest was given out of an abundance of honesty on Miss LEUNG's part and instead of being blamed, she should be praised for it.
Madam President, this is strange logic indeed. But even more to the point, is this capable of being believed? Even in the statement itself, the Secretary said she gave it "serious consideration." It was clearly an important matter affecting her decision.
Moreover, Miss LEUNG has claimed time and again that she followed her department's prosecution policy guidelines. Paragraph 16 of the guidance booklet says, "[it is after] having satisfied himself that the evidence itself can justify proceedings in the sense that there is a reasonable prospect of obtaining conviction ...... that Government Counsel must then consider whether the public interest requires a prosecution."
On her analysis of the evidence itself, the reasons she gave for her conclusion are highly questionable. For example, it is admitted that Ms AW made a statement to the ICAC in which she "agreed that the circulation figures could be improved by the printing of more papers". The Secretary for Justice discounted this because she said, "she was ignorant of the details and left all such matters to (Henrietta) SO". Well, an ignorance of the details is immaterial provided agreement has been reached. Her decision not to prosecute boils down to the fact that she believed that Ms AW was not dishonest. But from her statement itself, there is no basis for her belief apart from Ms AW's denial.
Madam President, it has been asked time and again by the community, by Members of this Council and the Bar why was independent opinion not sought? The Secretary for Justice's reply was simply that it was not a complex matter. But complexity is not the only reason for obtaining an outside opinion. Here is a potentially sensitive case. If she had not anticipated public sensitivity, she was left in no doubt of it after her decision was made known last March. It is still open to her to take this course. Yet up to this day, she has adamantly refused to seek an outside opinion, at the expense of damage to public confidence.
Her insistence that she was in no way mistaken undermines those who try to defend her against my motion by saying that everyone can make mistakes, and she should not be penalized for having made a mistake. Further, her refusal to acknowledge that she was mistaken means she intends to continue to consider public interest in the same way. In the face of this, how can we have any confidence in her? How can we stand by and do nothing?
Similarly, in the recent crisis arising from the Court of Final Appeal judgment on the right of abode, her conduct again shakes one's faith in her commitment to the rule of law.
When the judgment was delivered on 29 January and met with a chorus of praise, the Government kept silent. When unfounded attacks were made by people in the Mainland unfamiliar with the Hong Kong system, the Chief Executive professed that he would study these views carefully. On a trip to Beijing, the Secretary for Justice said she did not seek to exchange views but only to listen. Though she had never found the judgment wrong or ambiguous, told by Beijing officials that it was "unconstitutional" and needed "rectification", she came back to Hong Kong and applied for a "clarification" in a move admitted by her counsel in open court to be without precedent in law.
All this was done in a context of high political pressure, exerted in the loudest possible way through the media, so that to deny the application would, in the public view, amount to wilful exacerbation of the crisis, while agreeing may be seen as the court succumbing to pressure. Yet, such an insensitive exposure of the independence of the Judiciary to risk was paraded as high political wisdom worthy of admiration and praise.
As if this was not enough, the Secretary for Justice needs must make it worse, and fed speculations of an "understanding" with the Judiciary by privately communicating with the Chief Justice prior to the application, time and again without reasonable excuse and without notifying legal representatives on the other side. Every practitioner knew such conduct to be highly questionable, because any appearance of one side attempting to influence the judge behind the other side's back must be avoided. While she finally admitted this was perhaps not the best thing to do, she still maintained that what she did was right, and that she might well do the same thing again.
She then attacked those who deplored such contact as people who cast doubt on the independence of the Judiciary and insult the integrity of the judges. As to vile and personal insults openly and persistently launched against the Chief Justice and the court, she never raised a single objection. How can this give us confidence in her as guardian of the public interest and the rule of law?
Madam President, this debate is not just about the present Secretary for Justice. It is about what is to be considered the norm for the maintenance of the rule of law in the Special Administrative Region. It is about the standard and proper conduct this community has the right to expect of a Secretary for Justice. Apart from the Chief Justice, there is no public office more crucial to the rule of law. She is the top law officer. She is the legal advisor of the Government. If she gets the law wrong, often there will be no redress. She is not just a technician of the law. She is by duty and by right the custodian of the public interest. She is the gatekeeper of justice. She has huge prerogatives which are often exercised in confidence. Our system works only if the public can have implicit faith in her. What she has done has destroyed that faith.
Madam President, I beg to move.
Miss Margaret NG moved the following motion:
"That this Council has no confidence in the Secretary for Justice."
PRESIDENT (in Cantonese): I now propose the question to you and that is: That the motion moved by Miss Margaret NG, as set out on the Agenda, be passed.
SECRETARY FOR JUSTICE (in Cantonese): Madam President, I find myself in the invidious position of having to explain why Members should have confidence in me. The motion does not say why this Council should not have confidence in me. I therefore do not know what accusations may be levelled against me in this debate. Some Members have had the courtesy of giving me notice of their main concerns, and I would like to thank them for doing so. I would like to thank the Honourable Miss Margaret NG and the Honourable Ronald ARCULLI for giving me advance copies of their speeches.
When notice of this motion was given, I was informed by Miss Margaret NG that she would focus on my decision not to prosecute Ms Sally AW Sian. I have given two lengthy statements on this issue to the Panel on Administration of Justice and Legal Services of this Council on 23 March 1998 and 4 February 1999. However, since only a few Members were present at the Panel's meetings, I wish to summarize the main points for the record.
In March last year, three persons were charged with a conspiracy, which allegedly involved Ms Sally AW. I will refer the case as the "Hong Kong Standard case". Many people were puzzled that Ms AW had not herself been prosecuted. When the trial of the three defendants concluded in January this year, the judge explained in his decision that he could understand an initial puzzlement, in those unused to the criminal way, as to how a court could decide that A conspired with B but that B did not conspire with A. The judge explained why this can be perfectly proper at that time.
It is a well-established policy, based on fairness to suspects, that the reasons for decisions to prosecute or not to prosecute are not disclosed. However, because of the exceptional nature of the Hong Kong Standard case, I did, on 4 February 1999, give reasons for the decision not to prosecute Ms AW.
The case was exceptional since:
(1) allegation of bad faith made against me had to be answered;
(2) public comments had been made on the assumption that Ms AW as a guilty party in the conspiracy, and the record of Ms AW's interview with the Independent Commission Against Corruption (ICAC) had been improperly leaked to the press. In fairness to Ms AW, the nature of the evidence against her needed to be clarified;
(3) it was necessary to restore confidence both locally and overseas in our legal system, which had been shaken by allegations of impropriety.
These exceptional circumstances were not, I would add, of my own making. The allegations of impropriety were entirely speculative. Moreover, I emphasized that, in giving an explanation in these circumstances, I was not setting a precedent for the future. It would be grossly unfair to criticize me in future for reverting to the established policy of not giving reasons for prosecution decisions.
Before explaining the reasons for the decision, I explained some fundamental points of our prosecution policy. First, no one must be subjected to a criminal trial unless there is clear evidence to justify that course. Secondly, a prosecution should only be brought if the evidence is such that there is a reasonable prospect of securing a conviction, and not merely because there is a bare prima facie case. And, thirdly, even if there is such evidence, a prosecution should not be brought if this would be contrary to the public interest.
As I explained, I had come to the conclusion that on the evidence available against Ms AW, there was no reasonable prospect of securing a conviction. The conclusion was reached on the basis of the following facts:
- The evidence against Ms AW was nowhere near as substantial as it was against the other three suspects.
- There were 53 witnesses and over 3 000 pages of exhibits against the three suspects but none of these implicated Ms AW.
- The evidence against Ms AW consisted of a record of interview conducted by the ICAC on 4 June 1997.
- That record had to be looked at in its entirety. It was not right to look just at a few questions and answers in isolation.
- Although Ms AW had said that she wished to raise the circulation figures of the two newspapers, she had repeatedly emphasized that she had no intention to deceive the Audit Bureau of Circulation Limited.
- Ms AW said that she was not aware of the illegal acts which her subordinates (as the judge was to find) initiated and, when informed of those acts, she told her subordinates to stop them.
My conclusion that there was insufficient evidence on which to prosecute Ms AW alone sufficed to dispose of the matter. It was, in fact, not necessary for me to have considered the public interest factors at all. However, as representations about the Sing Tao Group had been made to me, I did give those representations consideration on public interest grounds. The fact that I did so is not a valid ground of criticism. The prosecution guidelines do not prohibit the consideration of public interest factors if there is insufficient evidence. At the most, they make it unnecessary to consider those factors, since a prosecution should never be brought if there is insufficient evidence.
The approach that I adopted in respect of public interest factors, although unnecessary, was entirely in accordance with my department's established, and published, prosecution policy. Paragraph 10 of that publication indicates that two questions that may properly be considered are, first, "how would the decision to launch a prosecution affect other people?" and, secondly, "would the consequences of prosecution be out of all proportion to the seriousness of the offence or to the penalty a court would be likely to impose?" The fact that the combination of factors that I took into account are not specifically mentioned in paragraph 10 of the publication is neither significant nor surprising. The list of factors in that paragraph is not, and cannot be, exhaustive.
After the decision not to prosecute was made, I appreciated that the amount of evidence available, and the public interest factors, could change. I therefore kept an open mind as to the possibility of prosecuting Ms AW. However, since no new evidence has emerged against Ms AW, it has not been necessary to revisit the issues.
Miss NG now criticizes that decision relating to public interest factors. Before that criticism is answered, it is important to put my decision in its proper perspective. The decision did not determine the question whether Ms AW should be prosecuted. As I have said, there was insufficient evidence to prosecute her. My decision in respect of the public interest factors did not strictly need to be made.
Where a judge, in deciding a case, makes statements that are not strictly necessary for the decision reached, the statements are known as "obiter dicta", which means things said by the way. Miss NG is in effect asking this Council not to have confidence in me on the basis of my obiter dicta. Moreover, these obiter dicta were not set in stone, since I accepted that the position could change. Even if Miss NG's criticisms were justified, which they are not, hers is an extraordinary position to take. The response is out of all proportion to the alleged error.
In any event, I have asked the Director of Public Prosecutions, Mr Grenville CROSS, SC, to demonstrate that Miss NG's criticism is entirely misconceived. He will later this afternoon address the criticism. He will speak with the authority of someone who has 23 years of experience, and outstanding ability, in respect of prosecution issues.
For my part, I wish to refute, in unequivocal terms, the allegation that my decision in respect of public interest factors confirms that people of high position have received special treatment, or that there is one law for the rich and one for the poor. Nothing could be more abhorrent to me.
Article 26 of the International Covenant on Civil and Political Rights (ICCPR), which applies in Hong Kong by virtue of Article 39 of the Basic Law, guarantees that "all persons are equal before the law and are entitled without any discrimination to the equal protection of the law". I am therefore required by law, as well as by professional ethics, to observe equality before the law. And I do so.
The false assumption underlying Miss NG's criticism is that equality before the law means that all persons must be treated identically. That is demonstrably not the case. The jurisprudence relating to Article 26 of the ICCPR establishes that equality before the law essentially means that judges and officials must not act arbitrarily in enforcing laws. The requirement of equal treatment is violated when a court or an administrative decision is based on manifestly arbitrary considerations, that is, considerations that are devoid of any objective justification.
The authorities relating to Article 26 establish that individual features distinguishing one person from another, such as talents and characteristics, may properly play a role in a particular prosecution decision. The approach that I adopted was entirely consistent with those authorities.
I fully accept that other lawyers might have approached the decision in a different way and might come to a different decision. Prosecution decisions are inherently controversial. However, I completely reject the allegation that the decision I came to was not one that was properly open to me.
I also reject calls to obtain a second opinion on the matter on the basis that it is one of "public sensitivity". The origin of the public sensitivity is groundless speculation. Were I to seek a second opinion every time there is groundless speculation about the propriety of a decision, it would be very easy for someone to engineer such a result. Moreover, such an approach could create double standards based on the identity and background of a suspect. I refuse to be forced into adopting such double standards.
Miss NG has previously said that I pay only lip service to the rule of law. That is wrong. The sad irony is that it is precisely because of my strict observance of the rule of law that I find myself facing this motion. I have strictly adhered to the following fundamental principles:
(1) that no one should be prosecuted unless the evidence is such that there is a reasonable prospect of conviction — a person should not be prosecuted simply as an easy way out of a difficult situation;
(2) that when a decision is made not to prosecute someone, one should not subject that person to a public trial by the media or politicians;
(3) that the public interest is a factor which may need to be taken into account in making a prosecution decision; and
(4) that Article 63 of the Basic Law must be observed and a prosecution decision should not be influenced by the apparent public opinion on the issue.
All these are important principles underpinning the rule of law, but it is through upholding these principles that I find myself criticized this morning. I shall listen to Honourable Members' views with care and shall treasure them. But, without meaning any disrespect, no amount of pressure brought on me will prevail upon me to abandon those principles.
Article 63 of the Basic Law provides that the Department of Justice shall control criminal prosecutions, free from interference. It is vital for the community that the Department of Justice retains its independence in relation to prosecution decisions. There must be interference from no one. Although I do not doubt my accountability to this Council in respect of my official duties, the line must be drawn there. There must be no attempt to exert political pressure on my Department's decision-making in respect of prosecutions.
Madam President, one week ago, Miss NG kindly forewarned me that she was likely to raise, in this debate, the issue of the Court of Final Appeal (CFA) decision relating to the right of abode. Let me first make one point clear about that decision. Some people have asserted that the Administration has never at any stage said that it respects the judgment in that case and will comply with it. That is incorrect. Both the Chief Secretary for Administration and I, for example, have said precisely that. There must be no doubt about the Administration's commitment to the rule of law and respect for judicial decisions.
In the newsletter that Miss NG issued last week she made serious allegations in respect of the clarification issued by the CFA. She alleged that the independence of the Judiciary and dignity of the court have received a great blow. She stated that she was outraged by the invidious position in which the Government had placed the CFA.
Last Friday, 5 March 1999, I gave a full explanation to the House Committee of this Council of my recent trip to Beijing and of the application to the CFA. I explained how, in Beijing, I had promoted understanding of the original CFA decision; had explained the difference between the legal systems of the two places; and had expressed the concerns in Hong Kong. In particular, I informed Honourable Members that I had handed over a copy of the Bar Association's two submissions in respect of the decision, plus articles by two distinguished lawyers and copies of the evidence in the cases. I explained that the application for a clarification was properly made, after other options had been carefully considered following my return to Hong Kong. I explained that the Court issued a clarification which did not depart from the original decision; that the Court considered that it had the inherent jurisdiction to do so; and that it was prepared to do so. I made it absolutely clear that no political pressure whatsoever was applied to the Court. The clear fact is that the Court's original judgment was not affected. The independence and impartiality of the Court were in no way undermined.
Despite my explanation, Miss NG has this morning continued to criticize my actions. There is clearly nothing I can say that will persuade her to accept that she is misguided. I would ask other Honourable Members to consider the issue rationally and dispassionately. I would ask you to accept that not only was the application perfectly proper, but also that it helped to resolve a very difficult problem. I would also ask you to accept that my two communications with the Chief Justice to enable him to convene the CFA as soon as possible are not a legitimate ground for criticism.
Madam President, the criticisms by Miss NG are, when properly analysed, totally misconceived. There is no basis for this Council to lose confidence in me. I remain committed, as always, to the rule of law, equality before the law, and independence of the Judiciary. Nothing I have done throws any doubt on that commitment. I urge all Members to vote against the motion.
Thank you, Madam President.
DIRECTOR OF PUBLIC PROSECUTIONS: Madam President, may I begin with some general remarks. As this motion raises issues of prosecutorial policy, it is right that I should acquaint the Council with my views and hopefully provide some clarifications.
Let me briefly explain the background to the decision taken in respect of Ms Sally AW. The decision not to prosecute Ms AW was reached on the basis of the evidence, and on the evidence alone. Some have certainly sought to blur this fact but it must not be blurred.
On 4 February 1999, the Secretary for Justice explained to the Council's Panel on Administration of Justice and Legal Services with particularity why she felt that the available evidence was not such as to provide a reasonable prospect of securing a conviction. She carefully contrasted the limited evidence available against Ms AW with the altogether more substantial evidence which existed against those who actually faced trial. And what was equally important was that Miss LEUNG was at pains to reassure not only the Panel, but also the public at large, that if any new evidence emerged, it would be duly considered. That approach is surely right and proper, and it has all too often been ignored.
The Secretary for Justice also explained that her decision was "finely balanced". Questions as to the weight of evidence are ultimately matters of judgment. In that approach, again, Miss LEUNG cannot be faulted. Such questions are not to be decided by the simple expedient of counting the number of opinions, whether for or against prosecution. This was not a case of great complexity, nor was it one where a particular expertise was required. It was wholly proper, therefore, that the Department of Justice itself should have decided upon the most appropriate way forward, free from interference or pressure from any quarter.
Much pressure, of course, has been brought to bear upon Miss LEUNG to prosecute Ms AW, even though she decided the evidence was insufficient: however tempting it may have been to simply throw Ms AW to the wolves and to initiate a prosecution, it is to the credit of Miss LEUNG that she has steadfastly refused to buckle to that pressure. She must indeed at times have felt tempted to toss the established prosecution policy out of the window in order to get the critics off her back. It is, therefore, as laudable as it is good for the rule of law that the Secretary declined to cave in and to authorize a prosecution when she felt that there was not a reasonable prospect of securing a conviction.
Had Miss LEUNG capitulated to pressure of that sort, this motion of no confidence would indeed have been justified. However, she has steadfastly, Madam President, upheld the rule of law and the right of the individual not to be placed upon trial unless there first exists a proper evidential foundation. This conduct is in the highest traditions of prosecutorial policy, and Miss LEUNG, therefore, enjoys my full support. I and my senior staff will never tolerate a situation in which people are placed on trial not because of the evidence, but because of political, media or other forms of pressure. And on this issue, Miss LEUNG and I are in heated agreement.
Madam President, as has been said, when Miss LEUNG made her statement to the Panel, she mentioned the thought that she had given to certain representations urged upon her by Ms AW's lawyers. This, as is now well known, was not strictly necessary because, as explained in the booklet entitled Prosecution Policy Guidance for Government Counsel, Miss LEUNG had already decided that there was not sufficient evidence to prosecute. However, she chose to give this matter thought and to frankly let the Panel know of this. Honesty is surely the best policy.
Miss LEUNG might also have mentioned the other representations which, in fact, she rejected out of hand. It was submitted to her that it was not in the public interest to prosecute Ms AW, for example, because she was a member of the Chinese People's Political Consultative Conference, a Justice of the Peace, and a major contributor to charitable organizations. Had the Secretary for Justice treated any such considerations as cogent, this motion of no confidence might again have been justified. That she gave such matters short shrift is, the Council may agree, to her credit. Although at one stage, some suggested that political or personal considerations may have influenced the decision not to prosecute Ms AW, it is fortunate that after Miss LEUNG's statement to the Panel, the air upon that issue has, at least, been cleared.
As regards the public interest factors which were considered, there has been much comment which is not well-founded. Miss LEUNG has repeatedly explained that in this case, those factors were academic as there was not sufficient evidence to prosecute. That apart, it is recognized by prosecutors throughout the world that situations can arise in which it may be proper to have regard to the potential effects of a prosecution upon other people, and to consider whether the possible consequences of a prosecution are proportionate to the seriousness of the offence. In that, there is nothing new or irregular. It is stated in the prosecution policy booklet.
Madam President, the Honourable Member who moved the motion, in her February newsletter to her constituents in the legal constituency, wrote that: "The Secretary for Justice's understanding of 'public interest' was fundamentally wrong and effectively sanctioned unequal treatment between influential and ordinary people before the law." And then in the March 1999 edition of the Hong Kong Lawyer, the Honourable Member wrote that: "These are not matters that can properly be taken into account as public interest. In fact, they are the very matters that the principle of 'equality before the law' forbids one to take into account."
In light of these observations, this Council, Madam President, is entitled to know if the approach of Miss LEUNG in fact demonstrated misunderstanding, inexperience or poor judgment.
I have, therefore, written in recent weeks to 13 countries to ask whether or not their prosecuting agencies consider that these are matters which may sometimes need to be taken into account. Certainly, in the common law countries (and nine out of the 11 countries to have replied are common law countries), and maybe also in the civil law countries, it went without saying that, as in Hong Kong, these matters only needed to be taken into account once it had been decided that there was sufficient evidence to prosecute.
The Council will be interested to learn that seven of the 11 countries to have replied thus far have advised that far from being, as the Honourable Member put it in her Hong Kong Lawyer article, "forbidden", the consideration of such factors as the closure of a company and large-scale redundancies may need to be taken into account by the prosecutor. But I must emphasize that some countries have expressed themselves more emphatically on this than have others, and other countries have made clear that they are talking about the situation hypothetically.
One country alone, Madam President, has said that these are not matters to be considered. The other three countries were non-committal in their responses. Although I regret that the constraints of confidentiality mean that I cannot identify each of the 11 countries, I have nonetheless ......
MR MARTIN LEE: I have a point of clarification, if Mr CROSS can give way, and that is, whether he would be kind enough to identify these countries.
PRESIDENT: Mr CROSS, it is up to you to decide whether to give way or to continue with your speech. To give way, in this sense, is that you would clarify the question raised by the Honourable Martin LEE. But the fact is, of course, Mr LEE should have said "Point of clarification" and then I would have asked you whether you wished to give way and then he would ask his question. But he has been too fast for me.
DIRECTOR OF PUBLIC PROSECUTIONS: Madam President, I am happy to have him ask the question.
PRESIDENT: The question has already been asked.
DIRECTOR OF PUBLIC PROSECUTIONS: Madam President, I regret that, as these replies were given to me in terms of confidentiality and indeed they contain matters which may not have been revealed in the countries concerned, it is not open to me to reveal the nature of the countries concerned. Despite the constraints of confidentiality which bind me, Madam President, I have nonetheless supplied edited copies of the 11 letters to those Members of this Council who have asked to see them, including the Honourable lady that moved the motion. Should it assist, I will advise the Chairman of the House Committee, obviously in confidence, of the identity of the 11 countries.
The seven countries which have said that such factors can be taken into account include, I should emphasize, leading common law and civil law jurisdictions. In spite of the usual rule of confidentiality, Madam President, I am pleased to be able to inform the Council that the Secretary General of the International Association of Prosecutors, Mr Henk Marquart SCHOLTZ, having been made aware of the concerns which this issue has generated in Hong Kong, has kindly given me his permission to advise this Council that in his own jurisdiction, the Netherlands, the prosecutor will, and I quote, "surely take into account the likely consequences of a prosecution upon employees of a company, in particular if a company would be ruined."
Madam President, I would submit that the response of the Secretary General, who may be taken to know something of these matters, and of the six common law countries, is not such as to demonstrate that the thinking of the Secretary for Justice on this issue is, as some have suggested, some sort of aberration caused by inexperience.
Some, Madam President, might say it does not matter that this thinking is accepted throughout the common law world, but it should not be accepted in Hong Kong. To that, Madam President, I reply that Hong Kong was, before the handover, a part of the common law world. It is now a part of the common law world, and it will remain a part of the common law world. I make no apology for saying that we remain committed to upholding the prosecutorial traditions and practices of the common law world, even if, on occasion, some people choose to criticize or to misrepresent those traditions and practices. We must not bend or surrender the prosecutorial traditions and practices of the common law world whenever we come under pressure, for it is our duty to uphold those traditions and practices, and to apply them fairly and even-handedly in order to achieve justice.
As and when any public interest factors arise, and the factors of immediate concern would rarely, if ever, arise in practice, I offer the assurance to this Council that they will be treated with the utmost of care and with complete propriety, always remembering that it is the duty of the prosecutor throughout the common law world to look at the full picture and to decide where the interests of public justice in the broadest sense may properly be said to lie.
Madam President, some have sought to cast doubt upon legitimate public interest considerations on the basis that they may place one suspect in a different position from another. No one pretends that prosecution decisions are easy. The prosecutor does not invariably confront a situation which is open-and-shut. A simplistic approach to the difficult task of determining where the public interest may properly be said to lie may be fine for the armchair prosecutor, but it is a luxury which the responsible prosecutor, whose decision may have grave and far-reaching consequences for the suspect, for his family, and for the public at large, can ill afford.
No two cases are alike. Factors may arise in one case which have no relevance in another. That, however, does not mean that the taking into account of such factors somehow contravenes the principle of equality before the law. If that were right, it would never be proper to decide not to prosecute a suspect because he was very young or very old, or seriously ill or badly stressed, since that would involve the giving of preferential treatment to that person over others. Equality before the law does not require that every case be treated in exactly the same way, irrespective of the personal situation of the suspect or the circumstances of the case or the merits of the prosecution.
The prosecutor, for example, may conclude that although it is proper to prosecute a thief who steals an item for the sheer thrill of it, it may not be necessary to prosecute an impoverished thief who steals the same item because he is starving. In the same way, if such a case proceeds to court, the judge may decide at the sentencing stage that a sentence which is altogether more lenient is appropriate for the thief who only stole because he was starving, than is appropriate for the thief who was thrill seeking.
Properly understood, therefore, equality before the law means that prosecutors must not proceed in an arbitrary way in enforcing the law. It would, for example, be the height of arbitrariness to prosecute Ms AW simply because she is a well-known personality. She, like everyone else, is entitled to be treated in accordance with the basic tenets of established prosecution policy. The notion that the higher the profile of the suspect, the lower the threshold for prosecuting, is as obnoxious to the prosecutor as is the converse. Discrimination of that sort has simply no role to play in our system of criminal justice.
In conclusion, Madam President, decisions whether to prosecute must always be taken in accordance with recognized legal criteria. When deciding whether to prosecute, the Secretary for Justice acts in a quasi-judicial capacity and does not take orders from anyone. Responsibility for the matter rests solely with her, and for this purpose, she acts as an independent official.
In this, there is undoubtedly a strong element of trust, such as has to exist in relation to judicial officers. It is of course true that honest, experienced people acting in good faith can come to different conclusions. One can only bring to bear one's best judgment, experience and honest consideration to the question. Although some people might indeed disagree with her decision not to prosecute, that does not mean that the discretion was not exercised properly.
Madam President, I am satisfied that the Secretary for Justice has conducted the case of Ms AW throughout with complete propriety and in accordance with the dictates of prosecutorial policy. I am, therefore, able to pledge to her the full support of myself and my colleagues in this matter. As those of us who have the privilege to work closely with her well know, Miss LEUNG is an outstanding Secretary for Justice. She yields to no one in her commitment to the rule of law in Hong Kong. We are indeed fortunate to have in place so dedicated a public servant.
My appeal to this Council, therefore, is for fairness. The criticism of Miss LEUNG on this issue has demonstrated indeed that the Secretary is in a no-win situation. If, as is the practice throughout the common law world, she declines to give detailed reasons for the decision not to prosecute, she is criticized and told that she must clear the air. If, however, as here, she gives full reasons, she is still criticized. Either way, it means that it is not possible for Miss LEUNG to win. But I do know, Madam President, from discussions with prosecutors in other jurisdictions that they face precisely the same dilemma on this. So, Hong Kong is in no sense unique. But that does not mean that it is not right for me to call for criticism which is balanced, informed and realistic.
There has been too much ill-considered and unfounded criticism of Miss LEUNG. There has been too great a willingness to impute bad faith or bad judgment, or both. This is not good for any society or any person. It is not good for the legal community. It is not good for Hong Kong. It is not good for the rule of law. It does us all no good. Indeed, it diminishes us all. It is time to move on. It is time in the interests of Hong Kong to put all of this behind us.
Madam President, I respectfully urge this Council to reject this motion without further ado.
DR PHILIP WONG (in Cantonese): Madam President, today's so-called "no confidence" motion is in fact a vote against the independence of the Judiciary, because in a community with absolute independence of the Judiciary, the Secretary for Justice should not be under any form of pressure when discharging his or her duties. What is most ironic is that those who are at present putting the greatest pressure on the Secretary for Justice are those who have always vocally cherished the independence of the Judiciary. Does this amount to inconsistency between words and deeds? These people not only want to see Ms Sally AW prosecuted, they have also in their minds convicted Ms AW. However, I would like to quote Mr Michael THOMAS, a former Attorney General, that "...... in our legal system, the only proper place for questions of guilt or innocence of crime to be determined is in a court...... ."
There are many precedents in the judicial history of Hong Kong when the Attorney General, having considered comprehensively the various factors, decided not to prosecute a suspect. From the Hansard, I learned that at the Legislative Council sitting on 25 March 1987, Mr Michael THOMAS, then Attorney General, answered a question from the late Mr Stephen CHEONG Kam-chuen about prosecution. At that time, the chairman of the board of a listed company who allegedly publicly gave an inflated figure of the net worth of the assets of the company was not prosecuted. And Mr CHEUNG raised a question to Mr THOMAS. Mr THOMAS, in his reply, first quoted the words the renowned British justice secretary Sir Hartley SHAWCROSS said 40 years previously, "It has never been the rule in this country ─ I hope it never will be ─ that suspected criminal offences must automatically be the subject of prosecution." Mr THOMAS pointed out that when deciding whether prosecution should be initiated in a case, the Attorney General had to be satisfied that there was sufficient evidence to prove that the case had all the elements that constituted a certain crime. At the same time, to assess public interest, various other factors had also to be considered, including the circumstances under which the crime was committed; the seriousness of the crime; the actual effects of the crime; extenuating circumstances surrounding the commission of the crime; the attitude of the suspect and the effects of prosecution on other parties. Mr THOMAS stressed, "The decision to prosecute or otherwise must be taken from the angle of overall justice ...... The Attorney General does not normally publicly explain the reasons for not prosecuting, and such a practice is well justified. The authorities rarely makes public statements regarding such decisions because doing so would signify that certain people have been suspected by the authorities of committing a crime. And this is not fair. Even when the facts concerned are known generally, any public explanation regarding the reasons for not prosecuting the suspect would lead to arguments among members of the public as to the guilt or otherwise of the suspect."
I quoted the words of a former Attorney General to show that in the present case Miss Elsie LEUNG has acted in the spirit of the rule of law and in compliance with the established criminal prosecutorial policy of Hong Kong, and therefore no pressure should be brought to bear upon her.
Madam President, I so submit.
MR MARTIN LEE (in Cantonese): Madam President, I have never before spoken of my experience as a barrister at a Legislative Council meeting, but I must make an exception today. I was qualified as a barrister in 1966 and took silk in 1979. Over the years, I have handled numerous criminal cases. I can tell my Honourable colleagues here, if I were the prosecutor in the case concerned, I would certainly have proceeded with the prosecution. Not only I, but many barristers and Senior Counsels with criminal case experience I spoke with also invariably said that they would definitely have done so. Therefore, I am very much puzzled by the furious attacks two senior members of the legal community had levelled at Miss Margaret NG. Madam President, I can tell Miss NG not to fear, because the Democratic Party fully supports each and every sentence of her speech.
As a matter of fact, we have no need to read that much profundity into this affair, all we need is our common sense. Three senior members of the staff were prosecuted, but their superior was not. Their boss was not ignorant of the matter, she knew. How did she know? She knew the circulation of her newspaper was dropping, and all of a sudden it was said that more prints would bring in more money. Please think, what did this mean? To produce the large number of prints in the face of dropping circulation was to throw away money. Could the matter be that simple? Therefore, it was already very significant to know that much. In a case of conspiracy, there is no need to know who the other conspirators are, and who does what. Knowledge of all these are not necessary. Knowledge that there are such persons will suffice, and the part each of such persons plays may be different. I could get somebody to steal a car, another to buy a gun, still one other to drive that car and use that gun to commit a murder, then all four of us would be guilty. Naturally, I might not fully know how they did what they did, but that is immaterial.
Mr CROSS said that the Secretary for Justice had explained that it was entirely due to insufficiency of evidence that no prosecution was initiated. I think that reason was entirely not that. The explanation the Secretary for Justice gave us was not put that way; it was completely two different matters. She said that she first examined if there was evidence, then she also mentioned public interest. Frankly, when a senior solicitor or barrister saw insufficient evidence, he or she would have decided not to go ahead with prosecution; what reason was there to consider public interest? Actually Mr Ronald ARCULLI was the first one to raise this point on that day. In fact, any experienced barrister, or scantily experienced one, would not be that silly.
I think that the Secretary for Justice had misunderstood the policy of her prosecuting branch. That policy dictates that when deliberating, one factor to be taken into account is the effect of the prosecution decision on other parties, and these "other parties" do not refer to the 2 000 people under the employ of Ms AW. Madam President, I already told her that the term was not to be interpreted in such a way. The term "other parties" refers the people directly related to the case. For example, in a rape case where a young woman was raped, when the doctor says that if she is called to the court to answer questions, grave damage would be done to her mentally; there could be no prosecution under the circumstances. Or in a family dispute case, two brothers fought for family assets, the elder brother assaulted and wounded the younger brother, and the latter reported the assault to the police. The matter however was later settled among the parties to their satisfaction, and the wounded younger brother withdrew his report. In this way, there is no prosecution. But why was it necessary to consider the 2 000 people? If the words "other parties" are to be taken literally, then they could mean one's relatives. In that case, the Secretary for Justice could have simply said that the term referred to the Chief Executive. The Chief Executive is a long-time family friend of Ms AW, therefore prosecution would affect the "other party", namely, the Chief Executive. In that case, the explanation could simply stop there. Therefore, it is basically a misunderstanding of the prosecutorial policy on the part of the Secretary for Justice that spawned the incident. "Public interest" is definitely not an academic issue, it is very clearly, very distinctly written there. If Members have not read that document, they should get hold of a copy.
What we are saying now is not that Ms AW must be prosecuted. Nobody ever asked the Secretary for Justice to do so. Neither did I. I only say that not to prosecute Ms AW is a wrong decision, that is all. Nor am I saying eagerly that she could be prosecuted now if new evidence emerges. The point is that there was sufficient evidence and prosecution should be initiated right then. That the Secretary for Justice did not do so at that time was a mistake. It is not that we should seek further evidence so as to bring about a prosecution.
Naturally, everybody is equal before the law. The present problem is, why do the people of Hong Kong, Members of the Legislative Council and the Bar Association (which comprises not one or two barristers) feel that this most important principle was not observed? Everybody knows that it is the duty of a law enforcement officer to ensure justice is done, but that is not enough, he needs to make people see that he is actually doing so. In English this is expressed as "Justice must not only be done, but must manifestly be seen to be done." In this incident, how can that decision be said to be ensuring justice is done. Does everybody think that it is the case? Here lies the problem.
Madam President, as a matter of fact, I am also very much dissatisfied with the matter concerning the Court of Final Appeal (CFA) clarifying its ruling. I asked a very clear-cut question. The Secretary for Justice said that "clarification" could in fact be construed as "rectification", in other words, "clarification" and "rectification" are equivalent. Why did I ask such a question? It is because when the Secretary went to Beijing, the experts or leaders there, or some people she met there, said that the ruling of the CFA was wrong, and therefore needed to be rectified. On her return, she told the CFA that it made no mistake, she really told the justices that they made no mistake, but she wanted them to clarify. Rectify and clarify are two distinctly different words, but she still managed to mix them up to mislead people. I think that is shocking. The duties of the Secretary for Justice are in reality very important; she is the highest-ranking law officer of the government. But even in the interpretation of such obvious words she distorted their meanings. How can we have confidence in her? And that was not the first time she did so. She also did so in the case of LI Yuk-fai, when discussing whether the suspect should be prosecuted in Hong Kong. When explaining the term "territory" in Article 7 of the Criminal Law of China, while "territory" must perforce be construed as "geographical territory", she interpreted "territory" as "judicial jurisdiction", an interpretation acceptable to no lawyer.
Madam President, I support the motion.
MR YEUNG YIU-CHUNG (in Cantonese): Madam President, I think that the motion of Miss Margaret NG to express no confidence in Miss Elsie LEUNG, the Secretary for Justice, is not fully justified and is inappropriate.
As Miss NG explained, the reason she moved the "no confidence" motion was that Miss LEUNG was not fit for the office of the Secretary for Justice. Why is she not suitable? Because she "completely misinterpreted public interest", "lacked professional judgment". To put it plainly, Miss LEUNG was alleged of being "incompetent", therefore, there is no confidence in Miss LEUNG, and Miss LEUNG was asked to "seriously consider resigning".
Are the allegations that lead to "no confidence" in the Secretary for Justice tenable? A comprehensive and objective analysis of the whole process concerned will help us in our judgment. On 4 February, Miss LEUNG explained to this Council that the reason for not prosecuting Miss Sally AW in the case of inflating the circulation figures of the Hong Kong Standard was insufficiency of evidence and public interest. The focal point of the current controversy is the interpretation of public interest, that is, whether public interest should be considered and how should the term be understood. The decision not to prosecute per se and the primary reason of insufficiency of evidence are accepted generally, and are not subject to any doubt.
Madam President, from the academic point of view of the jurisprudence community in Britain regarding the prosecutorial policy, it was reasonable for the Secretary for Justice to consider evidence in conjunction with public interest. Naturally, evidence must be the primary consideration. In the face of sufficient evidence, other public interest factors could be weighed together with evidence. According to the criminal prosecutorial policy of Hong Kong, prosecution is only initiated when evidence is sufficient and when the prosecution meets public interest. If the evidence is insufficient, prosecution should not be initiated; and the fact that prosecution is not in the interest of the public further strengthens the justification for not initiating prosecution. The thorough consideration, the prudent and responsible way is for the protection of the rights of any suspect, and is a manifestation of the spirit of judicial justice. Before initiating prosecution, the procurator departments of many common law countries will also consider the factor of public interest.
It is obvious that public interest can be considered. As to what elements of public interest to consider, that is a matter of opinion. Furthermore, despite the different opinions, the survival of a major media group and the impact on the freedom of the press so soon after the reunification and on our international image as mentioned by the Secretary for Justice should not be ignored. Under the specific circumstances at that time, such factors could constitute elements of public interest and should be taken into account. It is unfair for some people to make criticisms with hindsight. It is also wrong for some people to "focus on one point to the neglect of all others", to mislead the citizens to believe that "the rich is above the law", and to "elevate the matter to a plane of principle" by alleging that the matter signified that "everybody is not equal before the law", and even to ask Miss LEUNG to resign.
Madam President, it is normal for different people to have different views and understanding of a case. Mr Martin LEE just said that he had a different understanding. However, such difference should not be related to the level of ability of an individual. When a higher court overrules the judgment of a lower court, this does not mean that the judge in the lower court is incompetent, not to be trusted, and should be replaced. This is quite ordinary common sense.
Some people have, out of the good of their hearts, said that if there was insufficient evidence, the Secretary for Justice should not have unnecessarily explained her consideration of public interest. Some other people have also asked: While Miss LEUNG was not required to offer any explanation, why was she so "silly" as to offer one? Such people thought that if Miss LEUNG did not consider public interest, or did not explain, there would not be any controversy. They were too innocent and naive. As a matter of fact, to certain people with specific motives who target the person rather than the matter, it is useless however Miss LEUNG explained. Want to hang a dog? Just give it a bad name.
When the Secretary for Justice decided not to prosecute Ms AW, such people with specific motives had not been satisfied with the reason of insufficient evidence. They on the contrary expressed that the only explanation for Ms AW to escape prosecution was that the matter involved public interest, suspecting that the Secretary for Justice decided in favour of Ms AW because Ms AW was a long-time acquaintance of the Chief Executive, or because she was a member of the Chinese People's Political Consultative Conference (CPPCC), insinuating that there was a problem of integrity with Miss LEUNG. After Miss LEUNG offered her explanation to the Legislative Council, they then said that Miss LEUNG did not have a problem of integrity, but one of ability, of lacking professional judgment; Miss LEUNG was "an honest and good person"; the matter was "a good person doing bad things". This is simply trying to topple Miss LEUNG for the sole purpose of toppling her. The integrity and ability of Miss LEUNG as well as her performance, I believe, are there for Members of this Council and the public at large to see, and I am not going to elaborate here.
Miss LEUNG did not violate the Basic Law, nor did she contravene the criminal prosecutorial policy. Moving a "no confidence" motion in the Legislative Council on the strength of merely a controversial interpretation, and by a barrister at that, enables people to see for themselves their attitude of "I am the truth, I am the law". It is really ridiculous.
Madam President, it is with a heavy heart that I take part in today's debate. I am also deeply worried. To initiate prosecution or not is the prerogative and duty of the Secretary for Justice. According to the tradition in Hong Kong and also the provision in Article 63 of the Basic Law, there should not be any interference. While the same common law is practised, when former Attorney Generals decided not to prosecute Mr Alan BOND and Mr HARRIS, no explanations were demanded; but the present Secretary for Justice was required to offer an explanation for not prosecuting Ms AW. A precedent has been made. Today's so-called "no confidence" motion may also create a precedent of forcing a Secretary for Justice to resign. This inclination towards and practice of "adjudication by public opinions" do not help us maintain the independence of the judiciary and judicial justice, and will bring very negative impact on the social image and international reputation of Hong Kong. They must be rectified, and quickly.
With these remarks, I oppose the motion of Miss Margaret NG. Thank you, Madam President.
MISS EMILY LAU (in Cantonese): Madam President, I support the motion of Miss Margaret NG on behalf of the Frontier.
At the outset, I have to apologize to the Secretary for Justice because when her staff asked me what I would raise in my speech, bearing in mind the motion does not give any reason for having no confidence in her, I did not have an answer as, unlike Miss NG and Mr Ronald ARCULLI who gave her a copy of their speeches, I have not prepared any written speech, all I have are a few speaking notes. Nevertheless I told Mr ALLCOCK the several points I would touch upon, including the cases of "the Big Boss", LI Yuk-fai, Ms Sally AW, the Xinhua News Agency and the Court of Final Appeal (CFA).
Madam President, when the Chief Executive (Designate) decided to appoint Miss Elsie LEUNG as his Secretary for Justice before the handover of sovereignty, many citizens, I know, particularly members of the legal profession, were very surprised because they felt that Miss LEUNG might not have the kind of experience for such an important position. Some people referred to the fact that she was a deputy to the Chinese National People's Congress (NPC) and a founding member of the Democratic Alliance for the Betterment of Hong Kong (DAB). I was somewhat worried at that time. Madam President, I do not think there is anything like political discrimination here, but for such an important position, and for the duties thereof to be discharged competently, as Miss NG just argued so clearly, we need to have a candidate whom the legal profession and the community at large are satisfied to have the expertise and experience. Therefore, I have had apprehension right from day one.
Things happened in series thereafter. The fact that the Secretary for Justice did not prosecute Xinhua News Agency and Ms AW gives the Frontier, many citizens and myself a feeling that not everybody is equal before the law, though I also think that it is not necessarily true that money always sorts things out, as some people so alleged. In fact, many wealthy people felt the chill when they heard the Secretary used the possible unemployment of many workers following the collapse of a company as a criterion, because even they think it is not fair. What they further fear is that overseas investors might not want to come here after they hear of such a criterion because they now know that such criterion will be the rule of the game. Recently, some rich people have said to me that they know that money alone cannot ensure no prosecution, you also need political connections. Such a message is even worse. Therefore, Madam President, I am every much worried as a result of these two no prosecution cases.
As to the case of "the Big Boss" CHEUNG Tsz-keung, we did at that time discuss whether we should do our utmost to bring him back to Hong Kong for trial; and at the same time, even he was tried in the Mainland (because he also committed crimes there), we hoped that he would not be tried for breaking the laws of Hong Kong, because it would otherwise result in confusion of jurisdiction.
In the case of LI Yuk-fai, the same issues emerged. Mr Martin LEE talked about this just now. In fact, Mr LEE was not alone in having such a view, many solicitors and barristers have disagreed with the interpretation of the Chinese Criminal Law by the Secretary for Justice. This again makes us doubt what really is our judicial jurisdiction. We hope that the Secretary could defend our judicial jurisdiction. If even she is making our legal community knit their brows, with everybody expressing his or her worries, then we who are laymen of law will simply become "scared and sleepless". Even this is the second time I have used this expression, Madam President, I still have to repeat it.
Though Members said a lot about the issue of "public interest", I do not mind repeating the views of the Bar Association. The Bar Association was shocked after hearing the interpretation of "public interest" by the Secretary for Justice. They said that the reason could definitely not be used as a defence, and they felt that the Secretary had contravened the criminal prosecutorial policy. They further deemed that the way the Secretary had handled the case shook the confidence of the Bar Association in the ability of our justice department to uphold the rule of law. These are grave accusations against the honourary leader of the Bar Association, that is Miss LEUNG. The fact that even they are making such criticisms against her sends chills down people's spine.
Madam President, on the issue of the CFA, I think that the Government has blundered time and again. When the ruling of the CFA was given on 29 January, some left-wing newspapers did praise it. The issue here is quite complicated. The Mainland does not know the legal system of Hong Kong too well. At that time, Mr TUNG Chee-hwa and the Secretary should hurry to Beijing to explain to them. But they did not, nor did they tell the people of Hong Kong where they stood in respect of the ruling. Actually, we are still not too clear about their stance. Getting off the plane on his return from abroad, Mr TUNG said that the ruling had negative effects on Hong Kong, and this made people worry. It was not until 12 February did the Secretary for Justice went to Beijing and she said that she went there to listen to views and not to offer explanations. She said that the most important thing was for her to listen to views. Then she returned to say that the ruling was wrong, and had to be rectified. Subsequently, she made an unprecedented application, and made contact with Mr LI Kwok-nang, the Chief Justice, on two occasions. I am not in the legal profession, but those who are have said that it was very inappropriate of her to have done so. As a result, her actions prompted me to wonder if it could be some show of "ball throwing". Meanwhile, it seemed that many things could happen at the same time, such as the simultaneous release of both the English and the Chinese versions of the judgment. Such things filled us with doubts.
I think that the issue regarding the CFA is more important than the AW case. Last week, when the Secretary for Justice came to the Legislative Council, I again raised with her the matter of the judicial jurisdiction of Hong Kong. On 29 January, the CFA ruled in unequivocal terms that in respect of cases tried in Hong Kong involving matters within the scope of Hong Kong's autonomy, the court had the power to examine the administrative acts of the NPC, to even to declare such acts to be violating the Basic Law. Naturally, this touched the nerve centre of the "Beijing Man", therefore the demand for rectification. Actually, the CFA did not really make any rectification; all it did was to come out and say a few slogans, to the effect that the NPC has the supreme authority and the like. May I ask the Secretary if she still agrees with the ruling of 29 January in the sense that our court still enjoys judicial jurisdiction? Or is it as Mr Jasper TSANG, Chairman of the DAB, has said, it no longer exists, we must never in future touch matters of the NPC? The Secretary refused to answer me on that day, I hope that she would share her views with us today.
Madam President, I believe that the reputation of Hong Kong has been tarnished. I am very glad that so many officials are present here today. I think that all of us should give the whole matter some thought. I mean, not only does the Secretary for Justice need to consider her own situation, the whole executive branch, the whole of Hong Kong must think. How do we handle this matter? Do we continue to let one incompetent officer, or one who many have said "has acted in good faith", meaning one with a good heart, but without due ability or is under certain other pressures, to remain in that position? Could that protect our good name? Could that enable Hong Kong to walk with a raised head among the international community?
Thank you, Madam President.
MISS CHOY SO-YUK (in Cantonese): Madam President, I have complete confidence in Miss Elsie LEUNG, the Secretary for Justice.
Government departments often find themselves in a situation where no matter what their decisions or policies are, the demands of all parties are not satisfied, or numerous controversies appear. The Hong Kong Progressive Alliance (HKPA) and I opposed many government decisions and policies in our time. The decision of the Secretary for Justice not to prosecute Ms Sally AW, similarly, aroused arguments in society. Such diverse opinions are inevitable. So long as throughout the whole process, there are no indications that the Secretary had not been dutiful and impartial, we should not, and do not have any reason to, have no confidence in her.
While I took part in the Legislative Council inquiry into the new airport, the majority of the Members thought that even if certain officials were found to have failed in their duties, words of reprimand or criticism should not be rashly levelled against them, because this would create unnecessary interference with other officials who did their job. When deciding whether or not to prosecute Ms AW, the Secretary for Justice did her job faithfully, though not everybody agrees with her decision. However, there are still some Members who use this reason to blame the Secretary, to say they have no confidence in her. Does this create an even bigger interference with officials like the Secretary for Justice who discharge their duties conscientiously?
As duty conscientious Members of the Legislative Council, we should incessantly spur the Government on, to point out its mistakes. However, while we are doing so, what is more important is that we should deal with the matters, and not target persons. As legislators, we must not have double standards.
With these remarks, Madam President, I oppose the motion.
MR ALBERT HO (in Cantonese): Madam President, it does not give us any pleasure to take part in today's motion debate, because it involves Miss Elsie LEUNG, the first Chinese Secretary for Justice in the history of Hong Kong. When she was first appointed, as everybody knows, the Democratic Party made very prudent response because we knew that at the time she accepted the appointment she was not in any way experienced in the work of the Legal Department; nor was she very much so even in the handling of criminal cases or the important legal policies involving certain public matters, a fact that might hamper her ability to have a complete grasp. At that time we responded prudently. I remembered that I told Miss LEUNG that we understood the very limited choice of suitable candidates. At that time, everybody knew that Miss LEUNG was respected by the legal community for her character and morals and as a practising solicitor she enjoyed a considerably good reputation. However, since she took over the reins of the department, certain things have actually happened that could not but make us doubt, or even worry about, her ability to make good judgments, her experience, training, sensitivity and sense in discharging the duties of her office. About this we are becoming more worried by the day.
The wording of the motion under debate today is very simple, no reason has been given. Naturally I am aware that Miss LEUNG feels disturbed, embarrassed and at a loss as to how to reply. Mr ALLCOCK rang me to inquire about the points the Democratic Party would advance in support of the motion. Our Chairman, Mr Martin LEE, later told Mr WINGFIELD that if and when we decided to support the motion today, we would cite the cases of LI Yuk-fai, CHEUNG Tsz-keung and the Hong Kong Standard as well as the issue about the Court of Final Appeal (CFA), which all would influence our decision. If we put forward views about these issues, I believe Miss LEUNG and other officials would have sufficient preparation to respond.
I believe that Miss LEUNG can clearly remember that when the Government was handling the cases of LI Yuk-fai and CHEUNG Tsz-keung, we did have many doubts and apprehensions, worrying that if the Government of Hong Kong was not really taking a Hong Kong stance, upholding the judicial jurisdiction given us by the Basic Law, and ensuring that the Chinese Criminal Law is not applied in Hong Kong. In other words, any crimes committed in Hong Kong must be subject to the laws of Hong Kong, and not the national laws of China, as provided under Article 18 of the Basic Law. However, much to our disappointment and incomprehension, Miss LEUNG has all along stuck to a view that the term "territory" in Article 6 of the Chinese Criminal Law, that is, the sovereign territory of China, does not cover Hong Kong because Hong Kong does not fall within the jurisdiction of Chinese law courts; and she has repeatedly stressed that the so-called "jurisdiction over dependents" under the Chinese Criminal Act enables Chinese courts to try people who violated the Chinese Criminal Act while within the territory of Hong Kong. In other words, if that provision is so construed, the Chinese Criminal Law in certain circumstances is applicable to some people who are physically in Hong Kong.
At that time, we raised quite a few points, and the views found in publications of mainland academics and the Legal Work Committee of the National People's Congress are not supported by the majority of the Hong Kong academia. We also put repeated questions to Miss LEUNG at panel meetings. I feel that she stuck very strongly to her own views. At that time, I thought that if such distortion could pass, what was the use of language and logic?
Nevertheless, Madam President, it is mainly the decision of Miss LEUNG in the case of the Hong Kong Standard that form the chief reason for my voting in favour of this no confidence motion today. What shocked me most was not only the mistaken interpretation by Miss LEUNG of the term "public interest" (here I would not wish to repeat the words of my colleagues), but also the fact that she does not seem to realize how the whole community is looking at the case. Actually, when Miss LEUNG offered her explanation here on that day, not only was I shocked, members of the panel as well as the reporters in the reporters' room were similarly shocked. Even the people in the streets were shocked. The first words of everyone in the legal profession I contacted were that they were shocked. Therefore, it is not a problem how Miss LEUNG thought; rather, it is whether she had considered, whether she was aware, that the independence and dignity of the whole of our judicial system hinged on how people felt about the explanation she offered. She said that the rich and the poor were not treated differently; that the high and the mighty did not enjoy privileges; but her whole understanding of "public interest" as applied in this case cannot but fill people with doubts. However she has no such awareness, and still insists to date that she is not mistaken. With such ability of judgment, she really makes us so greatly worried to the extent that we must query if she has sufficient ability of judgment and intellect to hold such an important office. Thank you, Madam President.
MR JAMES TIEN: Madam President, the Liberal Party agrees with some but not all of the views expressed by the Honourable Miss Margaret NG in her speech introducing the motion.
The Secretary for Justice, Miss Elsie LEUNG, could have explained to us that she did not prosecute Ms Sally AW solely because there was not enough evidence. This would have been a legal decision which anyone could accept. She, instead, claimed that she did not prosecute because trying the Chairman of the Sing Tao Group might force several publications to close and thousands to lose their jobs.
I commend Miss LEUNG for her compassion. I cannot, however, accept that she is the one to make commercial or social decisions. The fate of Sing Tao, a listed company, does not rest with its Chairman. It depends on market forces. I base this belief on the evidence. Even before Miss LEUNG made her decision, an American financier had already expressed firm interest in buying the Sing Tao Group. Prosecuting a newspaper proprietor is not the same as shutting down the business.
I am not someone for an English newspaper monopoly in a city of our diversity. I think the Hong Kong Standard can carry on whatever happens to the Sing Tao Chairman. Hong Kong Standard's rival publication, the South China Morning Post, has withstood periodical changes of ownership. South China Morning Post was majority-owned by the Hongkong and Shanghai Bank, which sold it in 1986 to Rupert MURDOCH's News Corporation. Mr MURDOCH sold it in 1994 to KUOK family's Kerry Holdings. Newspapers changing hands is a nature of the press business. This happens even to the august The Times of London and The Observer. The Daily Telegraph survived the sudden death of its owner, Robert MAXWELL, and the prosecution of his heirs.
The question is whether public confidence in the law can survive Miss LEUNG's decision. I am an optimist. I think it can. But I also think that she has sent out a wrong message about equality before the law. Ms AW cannot be above the law just because she is a famous businesswoman. Prominence in society does not translate into privileges. If anything, it provides for special responsibilities and obligations. Legislators should not tolerate one standard for an established publisher and another for computer software merchants who trade in pirated goods. The world might have worked that way before, but it does not and should not work that way now.
As strongly as Liberal Party legislators feel about this issue, unfortunately, not all of our electors share the sentiment. These constituencies have expressed their concern to their representatives. The Hong Kong General Chamber of Commerce, that is my constituency, has not conveyed any forceful view on the issue to me. However, the issue has divided the Liberal Party's constituency voters, just as it is dividing the whole Hong Kong community. There are those who think that Miss LEUNG is not up to her job. There are those who also think that we should rally around Miss LEUNG and the Government because Hong Kong must project an image of unity, of common purpose at such difficult economic times.
Madam President, some Members pointed out that the vote of no confidence is a vote for Miss LEUNG to resign. I cannot agree with that because it is too radical. Considering what we have seen over the past couple of years, if all senior civil servants were to resign for their mistakes, the whole top tier of the Government might go. This is unreasonable. Perhaps such a measure makes sense when we have a cabinet in which ministers are not civil servants.
Miss LEUNG has made a mistake, but that should not completely discredit or distract from the good things she has done. We must also take note of that fact. However, the Liberal Party maintains that the Secretary for Justice's decision not to prosecute Ms Sally AW on the public interest grounds as cited has constituted a serious error of judgment.
With these words, Madam President, the Liberal Party will abstain on this motion.
MR ANDREW CHENG (in Cantonese): Madam President, a trustworthy Secretary for Justice must be one who convinces Hong Kong people that he or she is impartial, is able to uphold justice and is competent enough to hold that office.
In dealing with the Hong Kong Standard case, Miss Elsie LEUNG who, lacking experience in criminal prosecution, completely rejected the proposal of the ICAC who investigated the case, and decided not to prosecute Ms Sally AW, while failing to offer reasonable explanations acceptable to the public. The matter shows that in handling the case of Ms AW, Miss LEUNG has failed to convince the people of Hong Kong that she is competent for the office vested with the huge power of prosecution. Nor has she given people the impression that she has acted impartially and been strictly fair.
The explanation regarding "public interest" offered by Miss LEUNG has surprised many people in Hong Kong. According to paragraph 17 of the prosecution policy booklet, the elements for consideration in respect of public interest cover issues such as whether the people concerned are youngsters likely to turn over a new leaf, are old and feeble or mentally ill. There is however no mention of public interest having to cover whether the company of the person concerned is liable to collapse, or other economic effects, for that matter.
Madam President, the way Miss LEUNG interpreted "public interest" gives people two possible ideas. First, if she really is convinced of such interpretation of "public interest", then she is no longer qualified to hold the office of Secretary for Justice; second, if such interpretation is only the superficial reason she managed to offer, one that she hoped to muddle through with, and if in her mind she has a second and real way to interpret "public interest", then her integrity is called into question. The fact that the families of Ms AW and the Chief Executive have close connections leads people to doubt if Miss LEUNG has turned the supreme power to initiate prosecution or otherwise into a political tool, tarnishing the rule of law in Hong Kong, gravely hurting the spirit of "everybody being equal before the law", and damaging people's trust in the Secretary for Justice as well as their confidence in the rule of law in Hong Kong.
Madam President, on top of the case involving Ms AW, Miss LEUNG also violated the principle of "mutual non-interference among the three independent branches of government" and broke the existing judicial practice, over the procedure of applying to the Court of Final Appeal (CFA) for a clarification, calling into doubt as to the equity of the latter's ruling. The reason she put forward for her contacting the Chief Justice in private on two occasions was that such contacts served administrative needs, for the speedy arrangements for the overseas judge to come to Hong Kong. She also argued in a convoluted way that they were merely courtesy contacts. May I ask, as a lawyer herself, did she ever contact a judge in the past when she lodged an application for an urgent hearing? For her outrageous act that deviates from both law and reason, I can find no justification other than that under instruction from the North she could not but exert pressure on the CFA.
Madam President, the fallacy regarding "public interest" in the case of Ms AW and the demand on the CFA to clarify itself and to make political statements have blatantly undermined confidence in our independent judicial system and the rule of law under the "one country, two systems" arrangement.
Madam President, I would like also to make some observation regarding the way high-ranking officials are rallying against this motion today. There is a report that the Government not just wants to win this round, but wants to win big. In not the least way is it prepared to make a review following such a major blunder. Aspiring to a major victory following such a grave mistake has fully revealed its attitude of "government chauvinism"! It should be noted that some polls discovered that over half of the respondents support a "no confidence" vote against Miss LEUNG. From this it can be seen that public confidence in the Government has been greatly eroded, and the citizens generally think that the so-called "public interest" considered by Miss LEUNG is not acceptable, deviating from the spirit of the rule of law. Government officials should show their conscience, should ignore their own self-respect and work to defend the spirit of the rule of law.
Madam President, we should know that both China and Hong Kong must acknowledge that their legal systems are different, that there should not be any undue interference with the other side. However, to ask the Central Government to respect our system of rule of law, our SAR Government and our officials must first respect the traditional spirit of common law and our judicial practice. Tolerating judicial injustice for once will bring the rule of law into irredeemable collapse. Let the present mistake made by Miss LEUNG be a lesson to the SAR Government that cherishes "government chauvinism". Only a government capable of introspection is a government with hope.
With these remarks, Madam President, I support the motion.
MR DAVID CHU: Madam President, based on the explanations and facts provided by the Secretary for Justice and the Director of Public Prosecutions, it is abundantly clear that it is the unfair claims made by Miss NG and her motion that are damaging the rule of law and Hong Kong's image in the eyes of the international community, rather than the conduct of our Secretary for Justice.
It is Miss NG who brings unfair media and political pressure to bear upon the Secretary for Justice, trying to influence her decision. And it is the Secretary for Justice who is standing firm, courageously, in defence of our treasured rule of law. The Secretary for Justice deserves our respect and admiration instead of a motion of no confidence.
Madam President, I oppose this motion.
MR LEUNG YIU-CHUNG (in Cantonese): Madam President, the explanations offered by Miss LEUNG, the Secretary for Justice, to this Council's Panel on Administration of Justice and Legal Services on 4 February for her decision not to prosecute Ms Sally AW created a public outcry in Hong Kong. As I am not a member of that Panel, I was not present at the meeting. However, I was very angry having learned of the explanations of Miss LEUNG through the media and thought that she was really not to hold on to her office as Secretary for Justice. Therefore I submitted a motion to the Council Secretariat immediately the next day demanding the resignation of the Secretary for Justice. Subsequently, after I learned that Miss Margaret NG would move a no confidence motion, I decided not to move any amendment to show my support of her motion. Nevertheless, even if today's motion fails to pass owing to a change of stance on the part of the Liberal Party, I still demand that Miss LEUNG should assume responsibility for her performance in the case of Ms AW and other recent incidents and resign from her office so as to save the confidence of the citizens of Hong Kong as well as that of the international community in the rule of law in Hong Kong.
Since taking office, Miss LEUNG has been the subject of much criticism over a number of incidents including, apart from the AW case, her earlier decision not to prosecute the Xinhua News Agency for violating the Personal Data (Privacy) Ordinance. In the face of such criticism, some people came to Miss LEUNG's defence, saying that she did what she did out of good intentions, only it turned out that good intentions brought bad results, therefore we should not blame her with harsh words. Madam President, whether the Secretary is a good person, whether she discharges her duties conscientiously, is not the point at issue today. The point lies in her ability, as the head of the Department of Justice, to achieve the most basic objective of our legal services, that is, to ensure that justice is done, and, to be seen, in a fair and impartial manner. In fact, however, we all see that Miss LEUNG has failed in that particular respect.
Miss LEUNG obviously made mistakes in the AW case and in the matter of applying for a clarification from the Court of Final Appeal (CFA), and she admitted her mistakes in an indirect manner. For example, over the AW case, she issued a press release after her interpretation of "public interest" attracted a huge amount of criticism to say that her decision regarding the case would not form a precedent. If she felt that her act was correct, why could it not become a precedent? Similarly, when she privately contacted Mr LI Kwok-nang, the Chief Justice, by phone, out of the normal practice before applying for the CFA clarification, she explained that she was "too impatient", and that she would not consider doing that again in the future. For the same reason, if she thought what she did was right, why would she not do so again in the future? Therefore, I think that Miss LEUNG now knows her mistakes. It would be even better if, knowing her mistakes, she would make amends. Unfortunately, however, she changed her mind again today. To gloss over her acts, she claimed that she made no mistakes at all.
It is a pity that her two mistakes I just mentioned have brought irreparable damage to the rule of law of Hong Kong. She decided not to prosecute Ms AW so that the employees of the Sing Tao group would not lose their job, whether it was out of good intention or not, whether because she was even more concerned about the working people than the Secretary for Education and Manpower, the end objective result of her act was that ordinary citizens were made to think that everybody is not equal before the law, and that prominent businessmen or businesswomen could avoid prosecution. How can we trust such a person to hold a key position? And whether Miss LEUNG was really only "too impatient" that she phoned Mr LI Kwok-nang, her act had given people the impression that she was likely exerting pressure on the Chief Justice so as to achieve the political objective of pacifying the North. Therefore, the important thing is not merely what Miss LEUNG was doing, or what the motives hidden behind her decisions were, what is the more important thing is her stance in handling affairs. In fact, the stance she handles affairs has made it impossible for the whole of Hong Kong to believe she has the ability to lead the Department of Justice in ensuring justice is done.
As she is wholly incompetent for her position, should this Council not pass the no confidence motion, and even ask her to resign? According to media reports, government officials have lobbied Members of this Council, saying that if the motion was approved, the international image of Hong Kong would be tarnished; it would mean that even when high-ranking officials make major mistakes, for the sake of the image of Hong Kong, the Legislative Council should "carry on" and continue to support such high-ranking officials.
Madam President, it is believed that everyone of us attaches great importance to our international image. And precisely because of this, I think that the Legislative Council has more reasons to pass this motion, so as to let the whole world know that Hong Kong really has the determination to defend the rule of law. If our Government and our legislature, knowing full well the mistakes of our high officials, insist on defending them, refuse to reprimand them, the international community would have even less confidence in our rule of law. We can look at examples abroad. President Bill CLINTON was the subject of the United States Congress impeachment proceedings, and members of the British and Japanese cabinets have often volunteered resignations for mistakes they made (Japan has one such case recently). But have such incidents affected the overall image of these countries? I think that on the contrary they let us see that they at least have assumed due responsibility.
I think that Miss LEUNG alone is not totally responsible for undermining the confidence of Hong Kong citizens and the international community, a greater share of the blame should go to Mr TUNG Chee-hwa, the Chief Executive, because when he appointed the principal officials and members of the Executive Council at the juncture of Hong Kong's return to China, he gave people an impression that "he used only people close to him", preferring people friendly with the Beijing government. Appointing Miss LEUNG as the Secretary for Justice is one of the examples. No wonder the organization Hong Kong Human Rights Monitor strongly denounced Miss LEUNG for deciding in Beijing's favour in a number of controversial matters. Other examples include the appointment by the Chief Executive of Mr LEUNG Chun-ying as the Executive Council member with the housing portfolio. Madam President, I so submit.
MR ERIC LI (in Cantonese): Madam President, the explanations offered to the Panel on Administration of Justice and Legal Services by Miss Elsie LEUNG, the Secretary for Justice, were not convincing, much to the regret of the accounting sector. As a principal official of the Government, she must assume responsibility over the matter. However, any judgment on the issue of responsibility is not a simple clear-cut matter of right or wrong.
Though the professional judgment of the Secretary for Justice was not accepted by the accounting sector, we believe there does not involve any question of integrity, nor, obviously, are there any motives pointing to withholding information or cheating. From the point of accountability, the matter should be treated internally employing the usual civil service procedures, or handled as a matter of professional judgment, or certain new political standards should be introduced to require the Secretary also to assume political responsibility. Over this matter, there have been diverse views within the accounting sector.
I have exchanged views with many in the accounting sector over this matter. The professional bodies I contacted, including the Hong Kong Society of Accountants, unanimously opined that the present debate is a political matter. Sticking to the stance of maintaining political neutrality by professional bodies, the presidents of all such bodies have told me that their organizations would not discuss or take a stance, and would respect my political judgment as the elected representative of the accounting sector.
Having canvassed the opinions of some members of the accounting sector, I have arrived at some preliminary views of my own, and that is, if the matters in question fall purely within the realm of professional judgment, the most that should be done is to express regret or to bring censure, the more serious demand for disqualification or resignation is not warranted.
After considering my stance as stated above, drawing from my own experience over the years in my work on professional disciplinary boards that different members of a profession very rarely have 100% agreement in desired severity of a judgment over the same matter, and in view of the fact that in the cases under discussion, the Secretary has shown incomparable honesty and courage, I am of the opinion that we should approve such political integrity. The Secretary has worked with the Legislative Council, to frankly inform the public the reasons for making her controversial decision irrespective of the consequence, enabling the Legislative Council to give timely play to its monitoring function and efficacy. To be fair, such an act should mitigate the negative impact of the affair and restores some of our confidence.
Some members of the accounting sector expressed to me that taking a common sense approach, as the Secretary for Justice is after all not a political appointment, the matter should be handled in the normal way within the Civil Service, that is, even mistakes have been made, they are not serious enough to warrant resignation. This view has its merit, and is in line with my preliminary stance.
If I take a political approach in this no confidence motion, obviously a political precedent would be created in the sense that not only ordinary senior civil servants are required to assume their occupational responsibility, they would also be exposed to political risks. Is the present time opportune for the creation of such a precedent? Before the matter is discussed and debated by society and by the professional community after having studied and considered the matter in full depth, it is only appropriate that I, as the representative of the accounting sector, do not act recklessly. Otherwise, with the precedent created, when a second or a third senior civil servant makes mistakes of a similar nature in their professional judgment, they would be subject to political adjudication, and be forced to resign. The consequence, if actually resulted, would bring fundamental changes to the present system of life-long non-politically-appointed careers for civil servants.
Many senior members of the accounting sector told me that they were most concerned about the serious economic problems Hong Kong is at present facing, and hoped that as their representative, I would not adopt too radical a political approach, so as to enable the Government to maintain a relatively stable administrative machinery to handle the real problems. I also understand that heavily politically tinted moves might not be what the majority of the accounting sector would like to see.
It is worth mentioning that having arrived at my own preliminary stance, I considered moving an amendment to the motion calling for an "expression of regret over the incident". However, as the views of the political parties are polarized, I found that such an amendment would receive little support and so dropped it.
As the accounting sector representative, my door is open to views. Though people who discussed and analysed things with me face to face have agreed with my views, individual people have contacted me by phone, fax or e-mail to convey their views for my consideration. Among the six individuals who did so, three were in favour, and three opposed.
In order to maintain my impartiality, I commissioned the Social Science Research Centre of the University of Hong Kong to conduct an independent questionnaire survey. Of the 409 valid questionnaires, 139 were returned, representing a return rate of 34%. I received the results of the survey only yesterday afternoon which show that 60% of the respondents were against forcing Miss LEUNG to resign, 37% in favour. However, the percentage of those respondents who supported the expression of regret is a high 73%, with 22% opposing. About the same ratio is found in respect of those in favour and opposing this no confidence motion. There are academics who think that it might be inappropriate for me to take such results as the sole indicator for deciding which way to vote.
As far as I know, as the matter does not involve any professions outside the legal community, and in view of the time constraint, no major functional constituencies, the legal profession included, have conducted any constituency-wide survey.
Madam President, in view of the fact that 60% of the expressed views of the accounting sector do not favour a resignation by Miss LEUNG, and that major professional bodies of the accounting sector also do not like any high-profile involvement in this political matter which might hurt the stability of the Administration, I have come to the conclusion that, having made my statement to express my regret, it would most clearly reflect the collective views of the accounting sector for me to maintain my decision to oppose the motion.
MISS CHRISTINE LOH: Madam President, let me start off by saying that I was unable to give to the Secretary any advance notice of what I might say, because I have only decided what to say as I sat down. The reason I did not want to decide beforehand what I would say is precisely because I did want to listen to her and to Mr Grenville CROSS' views before I choose what to say.
I base my decision today to support the Honourable Miss Margaret NG's motion on the Sally AW prosecution as well as the Secretary for Justice's reasons on public interest given in this Council. There is no need for me to repeat my doubts since they have been fully addressed by a number of Members as well as, of course, by Miss Margaret NG.
I did listen extremely carefully to the good Secretary. I also listened very carefully to the words of the Director of Public Prosecutions. Much of what was said had been said at various times since the Secretary's statement given in our Panel on 4 February, I believe, to clarify what she said then when it became obvious that her words aroused deep public disquiet.
Mr Grenville CROSS spoke about the Secretary for Justice's honesty in revealing her thought process to us. I believe that honesty is not at issue here. What is at issue here is whether the Secretary has made a serious error of judgment. Despite all the subsequent explanations, the legal community and the public at large have not been pacified.
I do not get the impression that people in this Council and people out of this Council are gunning for the good Secretary. She is held in high regard in many respects. It is the matter of her judgment that is at issue, not her character or her integrity. For people in high office, words uttered cannot always just be retracted or explained away. In public life, we all know that we need to choose our words very carefully, and this is particularly true for the Secretary for Justice when she gives a public account of her prosecutorial decisions.
The Secretary spoke about an improper leak of Ms Sally AW's interview with the Independent Commission Against Corruption, which we had the benefit of seeing in the media. However improper that was, that information is now in the public arena. It is a genuine record of a meeting that did take place. Why was it leaked? Unhappiness with the Secretary's decision by somebody who was in the know? I do not know. But doubts remain.
The Honourable James TIEN mentioned that some people who lobbied the Liberal Party to depart from its previously declared position to support the motion, called upon Hong Kong people to show unity and common purpose by standing with the Government. What is happening in this Council today and the wide public discussion about the Sally AW case and other controversial issues, I think are two of Hong Kong's strengths. There are not many countries in Asia where we can have this kind of debate, where we can have this kind of debate in a very civilized manner.
I really do think, Madam President, that this is one of our strengths. If there are problems, if we want to get to the root of the problems, we just cannot put it aside and pretend it did not happen and not discuss it. Miss Margaret NG has chosen an entirely proper way for someone in our industry, in our business, to take up issues of grave concern about the ability of a particular person in high office, in our business, to express deep concern, to express confidence or no confidence. Miss Margaret NG has chosen a proper way to do it in this Council. Other people who have other roles in the community, they can choose other ways of expressing themselves. But I think it is hard for the Administration as a whole to deny that this issue, however much explanation has been given so far, has not gone away.
I would just like to end by re-emphasizing that what we are doing today is one of Hong Kong's greatest strengths. It is not about standing together, having a common purpose. Because if all that means is that we do not want to discuss difficult issues, that we do not have the proper venues to discuss those issues, I think we would be a lesser community. Of course, when we discuss these very difficult issues, a lot of things come out. We do not need to be afraid that our community is necessarily weakened. If we learn from these issues, if we are able to arrive at a clearer view about important issues that can only take Hong Kong forward, I think Hong Kong would have benefitted.
DR LEONG CHE-HUNG: Madam President, I rise to speak on this motion with a heavy heart. I presume this must be the feeling of most of us in this Chamber, including perhaps those up in the public gallery. For it is never a pleasant task to openly criticize someone whom we all have worked closely inside and outside this Chamber for the good of Hong Kong. It takes a lot of bravery to move such a motion. It takes a lot of soul-searching, analysing and determination to vote with it. Similarly, it takes a lot of courage to vote against it.
Yet, Madam President, if Hong Kong is to move along its path of democratization, if Hong Kong is to exhibit a transparent and responsible government, if this legislature is to perform its role as monitor of the Administration for which we are so elected and for which the public have placed on us their trust, if this Special Administrative Region is to prove to the international world that pluralism and different opinions are to be accommodated, then so be it. Both the Administration and Members of this Council will all have to face such and similar "baptism" in the future.
Let me begin, Madam President, by vehemently declaring that my debate today and my vote in no way indicate my failing admiration for the personal integrity of the Secretary for Justice, nor my wavering respect for her as a person. In fact, it could almost be said that it is her integrity, her honesty and her kindness that ironically has landed her in this mess today.
Today's debate, Madam President, centres on the Secretary for Justice's reasons for not prosecuting Ms Sally AW. It is only on that issue that I will be basing my deliberation instead of the wider context of the Secretary for Justice's other performance. Let me stress, Madam President, in no uncertain terms that the debate today is not a debate on a point of law, but rather a debate on public confidence on the rule of law from the Secretary for Justice's performance.
The call for a vote of no confidence is based on incompetency. Is the Secretary for Justice, therefore, incompetent? There are obviously two angles to look at competency in the job of the Secretary for Justice context: competency in a professional way and competency in a political or public way.
Some government officials have expressed to me in no uncertain terms that, since this is a legal matter, and I as a medical doctor should play no part. Yet, Madam President, the motion before us is a motion in this Legislative Council, not in the court. It is an issue that is of interest to all in Hong Kong, not only for Hong Kong itself, but also on how others would now see Hong Kong. It is an issue that concerns not just legislators, but every single person that can claim in one way or another a Hong Kong belonger.
Many have expressed to me that if it is a professional issue and if one believes in professional autonomy, a non-legal professional should not take a stand. Yet, it is exactly on the support of professional autonomy that we must take a stand and vote with the decision of the legal profession. The Honourable Miss Margaret NG has indicated to us in her opening remarks of the overwhelming support of her constituents on this particular motion.
Madam President, on the political or the public issue, the rule of law is itself very much a public issue affecting each and every man in the street, for which each and every one of us must be treated equally in the eyes of the law. In this context, the basis for which the Secretary for Justice cited as public interest leaves much to be desired.
Surveys done after the incident have unmistakenly indicated the drop of confidence of the people of Hong Kong in our judiciary system. Madam President, this is what this Council is concerned with, rather than how the Director of Public Prosecutions explained on whether the Secretary for Justice acted rightly in the way she prosecuted.
Madam President, as this debate today and the facts that lead to the call for this debate have incited much public concern and it borders on professional competence, and as the medical and dental professions play an important role in the nine main professional bodies of Hong Kong, it is imperative that the medical and dental professions should take a stand. On that basis, a consultation was done with the major professional bodies of my constituents to give me a reference on how to vote. Whilst there are divergent views as expected, most who are willing to take a stand show strong support for the motion.
Madam President, with these remarks, I support the motion.
MR TAM YIU-CHUNG (in Cantonese): Madam President, I wish to respond to some of the views raised by Mr Martin LEE just now.
I am not a lawyer, least of all a Senior Counsel. But I took part in the drafting of the Basic Law. I recall that when we drafted the Basic Law, we paid particular attention to Article 63, that one stipulating that the Department of Justice of the SAR shall control criminal prosecution, free from any interference. When this article was formulated, we also doubted if it needed to be written this way. But we clearly understood that such was the prerogative of the Secretary for Justice under common law; for them to make judgment, they had to be able to handle things independently, to be free from interference. This would also strengthen our confidence in the legal system of the SAR. That was why we wrote it down as we did in the Basic Law, to show respect to that system.
When I heard Mr Martin LEE mention the AW case, he made it sound very simple: A, B and C were charged with conspiracy, it seemed that not too much deliberation was needed. Though I am no lawyer, I feel that conspiracy is a grave matter. I have been informed that a charge of conspiracy could only be laid after a very complicated process. Naturally, there are many experts in this Chamber here, and I would not like to display my skills with the ax in the house of LU Ban, the supreme master of carpentry. However, the only person who examined the large volume of evidence, had a full knowledge of the large number of witnesses is the Secretary for Justice. She said that there were over 50 witnesses and 3 000-odd statements. We had no knowledge of all these. When I heard Mr LEE put it in a way that it appeared to be that simple, he made me worried, because if the decision to prosecute a person is that simple, would it not appear another extreme, that is, "shoot first and ask question later"? I believe the citizens of Hong Kong do not want to see this happen.
Naturally, as far as lawyers are concerned, 10 of them may have 20 different views. When I read articles I often find different people have different views. I have read some articles written by people which escaped Members'attention just now. For example, on the interpretation of "public interest", Professor CHAN Wang-ngai, Dean of the University of Hong Kong Law School, holds a view different from that of the Bar Association as we were told just now, and from the views of Mr Martin LEE. Besides, the interpretation of "public interest" by Mr LEE Shiu-keung, former chairman of Local Government Counsel Association, was also not the same as those of the two persons I just mentioned. Therefore, I think that it is precisely because of the difference in legal views and the understanding of the law that there are lawsuits. If there can always be consensus of opinions, there would no longer be lawsuits. If understanding comes easily, where do the lawyers get their business? Therefore, I think that there are bound to be incessant arguments over points of law.
Furthermore, Mr Martin LEE got himself entangled in the difference between "clarification" and "rectification". My own view is that when the Secretary for Justice went to Beijing, the experts there told her that the power of the Court of Final Appeal (CFA) to interpret the Basic Law was not deemed proper, and there were demands for the CFA to rectify. However, I saw that upon her return to Hong Kong, the Secretary for Justice applied to the CFA for clarification which the Central Government accepted recently. I think that this shows precisely that the Secretary for Justice has done her job pretty well, that is, she has solved the issue of the demand for rectification by mainland experts by way of getting the clarification. Therefore, in this respect, I fail to see what is wrong.
Finally, I wish to said that to defend the spirit of the rule of law is of paramount importance to Hong Kong, and I do not see how casting a vote of no confidence in the Secretary for Justice will serve to defend the spirit of the rule of law. The deeper I think, I cannot but wonder, in plain words, if there are people who can only accept a Secretary for Justice with exactly the same stance and the same way of thinking as they have. If that is the case, it will not be the rule of law, but the rule of man!
Nevertheless, I believe that the end result of today's debate will show that this Council has confidence in the Secretary for Justice.
With these remarks, I oppose the motion.
MR NG LEUNG-SING (in Cantonese): Madam President, I wish to say at the outset that like other Members I have deliberated in detail the content of today's motion, and have a full view of the whole background of the matter. I also exchanged views with citizens who are concerned; I also met some professionals, including some in the legal profession.
As a whole, my conclusion is that this motion is a controversial one. Simply put, as a no confidence motion, it does not have sufficient support to get through. Heavily tinted politically, with too much of a political flavour, it can easily bring very undesirable effects in view of the present economic recession in Hong Kong.
Furthermore, it is also worth mentioning that nine Members and I, as members of a Hong Kong delegation, just returned from a visit to Japan where we met people of the business and financial sectors, and even of political parties, who gave us a clear impression that they were gravely concerned about the various negative messages coming out of Hong Kong.
That experience has made me determined, upon my return to Hong Kong, to vote against this motion, so as to prevent any negative impact the passage of the motion would have on overseas investors who may thus think that something seriously wrong is with the head of the Department of Justice, and may also have doubts about the foundation of the rule of law in Hong Kong.
The passage of the motion, I believe, will only bring negative influence, and will do nothing to help the economy and investment environment of Hong Kong; and will definitely not help increase employment opportunities. As a Member of the Legislative Council who cares about society and services to the citizens, I am sure to follow the examples of other Members to oppose this motion that has negative impact on Hong Kong at this juncture.
I so submit.
DR LUI MING-WAH (in Cantonese): Madam President, the Hong Kong Standard case has indeed triggered off enormous repercussions in society, attracting criticisms and responses. On the surface of it, senior officers of a listed company were convicted in court, but as the press revealed, Ms Sally AW, the boss who was in the know, was not prosecuted by the Government. People are perplexed and just do not understand. Naturally, they do not understand because they can only see the surface with ordinary wisdom; but their doubts were aggravated because of the shadows cast by the inglorious court rulings of the Hong Kong Government before 1997.
Madam President, I am no legal expert, therefore I simply wish to look at this matter from a layman's angle and would like to share with this Council the results of my survey conducted in the industrial sector.
First of all, the Secretary for Justice also explained that the decision not to prosecute Ms AW was based on insufficiency of evidence. This could have put a period to the matter. However, the Secretary for Justice added that prosecuting Ms AW would affect public interest, a statement now deemed by Miss Margaret NG as an important addition. Naturally, representatives of the Government have already said consideration in this particular respect is not without precedent. But to the man in the street, it would seem a pity that Miss LEUNG said a little too much and got herself into trouble.
Madam President, I have also heard a not-so-apt analogy. A murderer's first shot hit the victim's heart, and then he fired a second shot at the victim's thigh. Now, to the legal experts in this Chamber, I put this question: First, what do you think is the ability of the murderer in using a gun? Second, do you think it fit to query his ability on strength of his shot that hit the thigh? I believe the question can be answered with ordinary intelligence.
Everybody is talking about points of law. But please spare a moment to listen to the views of the man in the street. I issued 2 000-odd fax questionnaires, and received in return 183, among them 81 indicated no confidence, 92 confidence, and 10 without views. My assistants conducted telephone interviews with 60 companies, among them 17 expressed no confidence, 33 confidence and 10 had no views. Though there have not been any overwhelming views, the inclination is very clear.
The respondents generally believe that a no confidence vote against the Secretary for Justice not only undermines the authority and administration of the Government, but also hurts Hong Kong's reputation abroad, bringing negative impact on our business environment and our ability to attract foreign investment. Does it worth it? Hong Kong can well do without such negative elements, particularly so in the midst of our present economic difficulties. Legal experts please do not criticize the pragmatism of the business sector. What good does any further slide into recession will bring the citizens of Hong Kong?
Therefore, though what Miss LEUNG did was not perfect, and people regret that, but it is going too far to cast a vote of no confidence against her.
Madam President, while I would not support the no confidence motion of Miss Margaret NG, I am of the opinion that the heated debate on her motion has sent the Government, the citizens of Hong Kong and the whole world a clear message that the Legislative Council attaches great importance to matters of this nature now and hopefully also in the future, and that is to say, our determination in maintaining the rule of law will not change. Thank you.
MR CHAN KAM-LAM (in Cantonese): Madam President, I thought that in today's debate I would be able to learn more from the words of Miss Margaret NG and Mr Martin LEE about the prosecution decision concerned and the debated issues. However, having listened to them, I have the feeling that the person rather than the issue has been the subject of the discussion. Though Miss LEUNG, the Secretary for Justice, explained that it was due to insufficient evidence that Ms Sally AW was not prosecuted, the spears are not aimed in that direction. This and some arguments of other Members have made me understand that there could be a number of political motives behind this affair.
We have but made our first step since the reunification. In a matter of only 20-odd months, there have been different opinion and various pessimistic talks about the affairs in Hong Kong after the reunification. All this on the whole boils down to mistrust of the Chinese Government, preference of continued British colonial rule, and reluctance to see Hong Kong people ruling Hong Kong. Though Hong Kong has returned to China, they have been energetically picking on this and that, trying to shake the confidence of the whole world in the Chinese Government, and to belittle the administrative authority of the SAR Government.
It has been less than two years since the reunification. With only a brief look at what happened during this period of time and a little earlier and listening to the words of those Members who support this motion, we can see what kind of credibility the supporters and the mover of the motion have.
Before the reunification, many people said that handing Hong Kong over by the British Government to China would be like handing the Jews to Hitler, comparing the Chinese Government to a Fascist regime of terror, and calling upon the people of Hong Kong to resist the reunification.
Secondly, words were spread that Hong Kong would not enjoy any freedom of speech after the reunification; there were even talks that the Chinese Government would impose a reign of terror in Hong Kong, would inflict political persecution on dissidents in Hong Kong, to the extent that they would not be able to leave Hong Kong after 1997. Facts have told us it is not the case.
The excessive petition activities including "sleeping in the street", burning of tyres, carrying coffins and bodily collisions before and after the reunification were nothing but tricks to give the international media materials for the many negative reports on the reunification.
The recent cases involving CHEUNG Tsz-keung and LI Yuk-fai have time and again been used to accuse the SAR Government for relinquishing its judicial jurisdiction. No effort was barred to distort facts, their aim being to undermine the administrative authority of the Government.
When in the midst of the financial turmoil the Government launched an offensive against "international predators" who had hitherto ravaging the Hong Kong markets, while the community applauded the action, numerous criticisms were hurled at the Government for interfering with the free economy and scaring away international investors. There were even demands for the Hong Kong Government to dispose off all the stocks it came to hold.
What is more, the ruling of the Court of Final Appeal aroused widespread concern among the citizens of Hong Kong who worry about the huge burden on their city if mainland immigrants are to come by the millions. Such of our worries were blamed for having a divisive effect on Hong Kong people.
Therefore, criticisms against the Government we have often heard include "Businessmen rule Hong Kong", "Collusion between the Government and the businessmen", the Chief Executive being a benevolent despot, incompetent officials and great retrogression in democracy.
Today, when we look at those things that happened not so long ago, compare them with the facts we have, as well as take stock of public opinions, it is easy to arrive at a conclusion: those who often criticize strongly the reunification and against SAR affairs do not themselves have any credibility. All they do is to use democracy and justice as their tools in attacking other people. They have in fact raped the true meaning of democracy and justice.
Fortunately, Hong Kong has not degenerated into a place where there is confusion as to black and white, right and wrong. The words spoken by Members in support of the motion have left me a very deep impression, and that is those speakers in fact aim at striking a blow at the judicial justice of Hong Kong; it is just blatant interference with the independence of the Judiciary of Hong Kong. As a matter of fact, this can bring nothing good to the overall image of Hong Kong internationally.
Having listened to the explanations of the Secretary for Justice and the Director of Public Prosecution, I feel that we should support her.
Thank you, Madam President.
MR CHEUNG MAN-KWONG (in Cantonese): Madam President, right at the beginning of the present debate, Miss LEUNG, the Secretary for Justice, raised a very important question: why no confidence in her? To answer her question, I wish to quote a statement by the Bar Association on 10 February which stated unequivocally: The Bar Association regrets the refusal of Miss Elsie LEUNG, the Secretary for Justice, to seek independent legal opinion in respect of the case involving Ms Sally AW. The explanation Miss LEUNG offered in respect of public interest in support of her decision not to prosecute has shocked the Bar Association. The office of the Secretary for Justice is a symbol of justice and public confidence in Miss LEUNG is closely related to public confidence in the legal system. Failure on the part of Miss LEUNG to prosecute a conspirator listed in the indictment and her explanation for her decision not to prosecute have greatly shaken the confidence of the Bar Association in her ability and commitment in upholding the rule of law.
The statement had in fact two titles. The first one was "Re: Calling for the resignation of the Secretary for Justice". An hour later, it was replaced by a new one, reading "The Bar's views on the Secretary for Justice's reasons for not prosecuting Sally AW". Consequently it was asked: Why did the initial title of the statement demand the resignation of the Secretary for Justice? The reply of the Bar Association was that its executive committee had in fact discussed whether a demand should be made for Miss LEUNG's resignation, but they did not have sufficient evidence to prove anything wrong with the integrity of Miss LEUNG. So, they switched to expressing no confidence in her ability, I repeat, her ability. As to resignation or not, it would be left to Miss LEUNG's decision.
On 5 March, the Bar Association issued a second statement: The series of actions by the SAR Government have demonstrated that it has thrown away the principle that justice must not only be done, but must be manifestly seen to be done. The way the Secretary for Justice explained her decision not to prosecute Ms Sally AW, chairman of Sing Tao Holdings, as well as her refusal to seek independent legal opinion, and the manner she handled the application to the Court of Final Appeal (CFA) for clarification of its ruling in respect of the right of abode of permitless children, are two obvious examples. The defence the SAR Government keeps putting up around such incidents will only serve to increase public doubts as to whether our legal system is capable of seeing justice is done.
Madam President, these are not the views of any Dick and Tom in the street, they are the views of the Bar Association. I am a Member of the Legislative Council, but I am not a legal professional, so I would ask: What are the motives of the Bar Association in expressing its views, showing no confidence in Miss LEUNG? Does the Bar Association want to destroy the rule of law in Hong Kong? Does the Bar Association want to turn itself into politicians, and to "stir up storms"? What malice and grudge does the Bar Association hold to do such a thing? Why does it deem it necessary to target the person rather than the matter? I am very much perplexed. If a respectable professional body, in the present case, the Bar Association, is taking such a course of action, I believe there is only one conclusion to be drawn, and that is, they in the Association honestly believe that from a pure point of law, they have no confidence in the ability of Miss LEUNG as the Secretary for Justice. Of course, Mr CROSS does not share that view, and he spoke in defence of Miss LEUNG. I would ask him to talk to the Bar Association.
The problem has appeared. It is a foregone conclusion that this no confidence motion will be defeated, despite the 24-hour meeting, thanks to the all-out defence efforts of the Democratic Alliance for the Betterment of Hong Kong and the Hong Kong Progressive Alliance. With the Liberal Party pressed into abstaining from voting, this motion will not be carried. I would not like to criticize the stance of the political parties, even less would I wish to comment on the decision of the Liberal Party to abstain, because they are already under sufficient pressure, and I do not wish to rub salt into their wounds. However, does Miss LEUNG really think that she has won when this motion is defeated? It is not the case! Because the statements and the questions of the Bar Association will continue to ring resoundingly across the sky over Hong Kong! That the Bar Association has no confidence in Miss LEUNG will stay in the mind of the legal community! The problem remains. What is Miss LEUNG going to do?
It should be painful for a professional body to have made a decision to show no confidence in somebody's ability. Nevertheless, a vote of no confidence was already cast, not by the Legislative Council, but by the Bar Association. The AW case, the CHEUNG Tsz-keung case, the LI Yuk-fai case, the right of abode case and the Xinhua News Agency case, one after the after, it is such cases that change the Bar Association, turning even many who use to have respect for Miss LEUNG into ones who have no confidence in her. This is what I would call "No sorrow is bigger than a loss of all hope"!
The rule of law is the cornerstone of Hong Kong, and the confidence of the legal profession is very important. When the Bar Association and the legal profession generally have no confidence in Miss LEUNG, what option will she take in response to the statement of the Bar Association that "We express no confidence in her; resignation or not, it is Miss LEUNG's decision"? This is still a question hanging over Hong Kong. I think that Miss LEUNG should respond to this point of the Bar Association later.
Thank you, Madam President.
MR AMBROSE CHEUNG (in Cantonese): Madam President, first of all, I hope that my speech in this debate today will be fair both to the Secretary for Justice and to Miss Margaret NG. I commend Miss NG for moving this motion, and I also believe that the purpose of moving this motion is to defend our system of law and our judicial system. I would not speculate on other motives. Unless sufficient evidence emerges, I do not think there are political motives that override other purposes. Similarly, I also hope to be fair to the Secretary for Justice, and treat her in a fair manner after making an analysis based on the information available.
When I consider which way to vote on this motion, I shall mainly base my decision on three factors. The first factor is my own view regarding the opinion of the legal profession, this is my personal view. Then there is the views of the functional constituency, that is, the Provisional Urban Council, I represent. The last is some historical relations between myself and the Sing Tao newspapers and Ms Sally AW. I would first talk about my view regarding the opinion of the legal profession. I have listened carefully to the opinions of the Bar Association, the Law Society and legal professionals, including those of the Secretary for Justice and Mr CROSS. But I am not prepared to discuss them in detail here. I can only say that this issue here is a complicated and controversial one. It is complicated because it involves expertise in law, differing legal views as well as different interpretations of the law. Such views and interpretations are also themselves related to judgment.
PRESIDENT (in Cantonese): Mr CHEUNG, could you stop, please, and check if there is anything interfering with your microphone? ...... The noise is now gone, please continue.
MR AMBROSE CHEUNG (in Cantonese): Could be I was shaking in my heart. (Laughter)
Madam President, in the face of such a complicated and highly controversial issue involving differing views, angles and judgment, I have considered a large number of views. Over the past four weeks, I was inclined to support the motion of Miss NG, but I did not in the least query the integrity of the Secretary for Justice. I think that over the matter of the Court of Final Appeal (CFA), there could have been minor slips in procedures on the part of the Secretary for Justice; and she could have erred in professional judgment in deciding not to prosecute Ms Sally AW. In the latter case, I have clearly stated I have reservations about her decision not to prosecute Ms AW.
On the other hand, I have also carefully considered the views of my functional constituency. I am more fortunate in that my constituency comprises only 50 people. I polled all the other 49 members by open ballots. The results as of yesterday are that 24 members of the Provisional Urban Council oppose the motion, 22 support, two abstain and one refuse to take a stance; all 49 are thus accounted for. I have not voted. It is obvious that the views are considerably diverse. Though a majority emerged, the split between those against and for is rather close, only a ratio of 24 to 22.
I have ask myself how I am going to play my role in the Legislative Council when it comes to the vote. Do I act according to my own view, or do I represent those of the constituency I represent? I think that my decision is an easy one, the views of my constituency are to take precedence over my own. Therefore, I shall respect the views of the Provisional Urban Council and vote accordingly. At the same time, I have also considered whether or not the rule of law, the judicial system and the legal system of Hong Kong have any relation with my functional constituency, the Provisional Urban Council. I believe Members will find the answer for this question readily enough. There is definitely a relation. A council, that is, the Provisional Urban Council, is sure to care about the citizens, and also about this issue.
The third point is some personal relations I just mentioned. I wish to be brief. My grandfather used to be the sole agent for the Sing Tao newspapers in the last 60 years. But I and my direct relations are not at present involved in the operation and business concerned. Anyway, in respect of this I have sought professional opinion to see if there is any conflict of interest or of role. I have decided that there does not exist any such conflict, but I deem it fit to disclose the situation in my speech.
Having considered the above points, and in spite of my voting against the motion later in deference to the views of the Provisional Urban Council, I hope that the Government and the Secretary for Justice would come to grasp the various issues as a result of the present debate, to understand the diverse views of different professionals, the views of the citizens and the views of the councils. I also hope that this debate would at least achieve one objective, and that is, the Government and the Secretary for Justice would conduct a self-examination and review. Thank you, Madam President.
DR YEUNG SUM (in Cantonese): Madam President, I speak in support of the motion moved by Miss Margaret NG to have no confidence in the Secretary for Justice. Madam President, I also wish to declare at the outset that in making my decision I am not against Miss LEUNG, the Secretary for Justice, as a person because she has given me a considerably good impression during the period she and I worked in the Social Welfare Advisory Committee; I have so decided purely out of my concern that the performance of Miss LEUNG has affected the image of Hong Kong as having independence of the judiciary and has undermined public confidence in our system of the rule of law.
I wish only to cite two cases to explain the stance with which I am going to vote.
The first is the decision of Miss LEUNG not to prosecute Ms Sally AW on grounds of insufficient evidence and protecting public interest. The so-called public interest turned out to be her concern about the financial difficulties facing the Sing Tao Holdings, its 1 000-odd employees who might lose their job, and about the repercussion such a prosecution might generate overseas at that particular juncture.
Madam President, the way Miss LEUNG interpreted public interest created a general uproar in society. In many opinion polls, public confidence in our legal system saw a dramatic drop. The public reaction and concern was whether wealthy businessmen and members of the upper social echelons would be treated specially by the law, whether such people enjoy the right to avoid prosecution so long they own a huge business. The citizens cannot but ask: Does the principle of "everybody is equal before the law" cease to exist? Has such principle been given up after Hong Kong's reunification with China? I feel really bad about that.
It is regrettable that the way Miss LEUNG has handled the case of Ms AW has gravely undermined public confidence in our legal system. I left the University of Hong Kong immediately after giving a lecture there so that I could came back to complete my speech. In the elevator I met several professors of the Economics Department who told me that in Singapore from where they just returned, Singaporeans said to them that the system of the rule of law in Hong Kong had been shaken. This gave me more feelings when I wrote my speech. And then over the case concerning the right of abode of the permitless children, Miss LEUNG, representing the Government, made the reportedly unprecedented move of applying to the Court of Final Appeal (CFA) for a clarification. At a previous meeting, representatives of the Government told us that they discovered some such cases in the United States after searching, but the nature of such cases is a bit different from the one here which still is unprecedented in the legal history of Hong Kong.
Madam President, I am not a member of the legal profession, and I do not wish to make people think that I know very much about law. I am only expressing my deep regret at the acts of Miss LEUNG as an ordinary citizen. The original ruling of the CFA was not queried by the litigating parties. If somebody does not understand the judgment, it would be easy for the Government to explain, and the judges of the CFA should not be asked to clarify because it must be known that asking the CFA judges to make a public clarification of their ruling is tantamount to dragging the CFA into the vortex of politics. Is this what we wish to see? A high price will have to be paid for a moment of indiscretion on the part of the Government.
The fact that upon her return from Beijing, Miss LEUNG contacted Chief Justice LI Kwok-nang of the CFA over the phone has made people uneasy. The CFA eventually offered a clarification, and surprise, surprise, all noises of doubt, both locally and in Beijing, quieted down. This could not but make me wonder if local officials did not join hands with Beijing and the local people concerned to stage a nice play of pacifying the waves. At present, no more querying noise is coming from Beijing, and the matter, it seems, has settled. However, Madam President, it is precisely such coincidence that makes me gravely uneasy.
Such a manner of handling legal issues between China and Hong Kong has created a very bad precedent. What I wish to ask is, would there be other incidents in the future when troubles again arise with the law?
Madam President, Miss LEUNG should have been aware that it was unprecedented to apply to the CFA for clarification. I think that there has not been such precedent is the result of respect for the courts. Now Miss LEUNG did not consider the position of the CFA, and asked the court to offer public clarification of its ruling. This undoubtedly has put the status and dignity of the CFA at a very precarious situation, dragging it into a political storm.
Madam President, I suspect that that act was aimed at appeasing the people concerned in Beijing. I further suspect that so long as the CFA clarified that it would never again challenge the authority of the National People's Congress, the storm would subside. I wish I am just worrying about nothing. Otherwise, the present storm has in fact not really gone, because the image of the independence of the judiciary in Hong Kong has suffered. This is what I deeply regret.
Madam President, Miss LEUNG should have known that demanding a clarification from the CFA would arouse big outcry in the legal community and the public at large. It is a pity therefore that Miss LEUNG went ahead as she did fully aware of the consequences. It is really disappointing.
On the other hand, I wish to further point out that I have reservations about the CFA acceding to the demand of the Government and making the clarification. I am surprised and disappointed that with their position and dignity, the five judges of the CFA did finally decide to accede to the demand of Miss LEUNG and make the clarification. I do not wish to comment on whether or not they have changed their stance, but I do have some views and reservations about their acceding to such a demand. In fact, by responding, the CFA has to a certain degree dragged our judicial system into a maelstrom.
Lastly, at the Legislative Council House Committee meeting last Friday Miss LEUNG said that Members should not doubt and criticize her for repeatedly contacting Chief Justice LI Kwok-nang over the CFA ruling. She pointed out that Members should not doubt the personal integrity of the Chief Justice, and that Members' criticisms, if repeated, would only affect the legal system and international image of Hong Kong. I do not know if the Chief Secretary for Administration will, in her speech at the conclusion of the debate, echo such opinions, that repeated criticisms would only affect the legal system and international image of Hong Kong.
Madam President, I do not agree with such opinions of Miss LEUNG.
PRESIDENT (in Cantonese): Dr YEUNG, you time is up.
DR YEUNG SUM (in Cantonese): Thank you.
MR BERNARD CHAN: Madam President, I believe that most colleagues here have known Miss Elsie LEUNG for quite a long time. Not one of them, even after Miss LEUNG's controversial explanation of her decision over Sally AW's case, has questioned her integrity and sincerity in public service. Today, we have to decide whether to cast a vote of no confidence in this kind lady. I think most of us feel regret about it, irrespective of our stances.
I have thought twice, if not more, on the notion of "public interest" as raised by Miss LEUNG in her declaration last month, and the subsequent arguments followed by the Government. But I am really sorry to say that I can hardly share the point of the Administration. I have conducted an opinion survey among my insurance electors. 65% of them do not accept Miss LEUNG's reasons of not prosecuting Ms Sally AW. I share their view as well.
Of the respondents to my survey, 38% support the motion whilst 42% oppose to it. Of those who are against the motion, many disagree with Miss LEUNG's explanation. But they have yet to lose total confidence in the justice system in Hong Kong and they do not think she deserves a vote of no confidence.
However much I share the same view, I think Miss LEUNG has made a grave mistake in this case. I am afraid that the damage has been done. People's faith in the justice system has been undermined, regardless of the outcome of this motion.
I would like to mention the Government's controversial trading in the stock market, which has drawn heavy criticism in society as well. The Financial Secretary, I am obliged to say this, has been defending in a justifiable manner. His credible arguments win my support, despite the risk of the trading involved. Now he earns many favourable responses towards his action, even in the international community. I do believe that his arguments count. But in the case before us, I am very disappointed of how the Government has been defending its position. I do not think that any reasonable person can understand its logic.
Madam President, I do not support the motion. I just hope that Miss LEUNG has learnt her lesson and will make proper and sensible judgments in the future. Thank you.
MR GARY CHENG (in Cantonese): Madam President, I am a legislator, but I am also a layman of law, and must indeed try to acquire more knowledge in that area. Here in this Chamber, there are lawyers whom I very much respect. Both the Honourable Miss Margaret NG and the Honourable Martin LEE are highly respected by me.
Just now Mr Martin LEE said that the debate today was an "all-sided attack", I think that is unfair, at most it is a "counter-attack", it can hardly be put as an "all-sided attack". Further, I do not hope, nor do I think, that the discussion today involves any belligerent attacks, because it simply should not be. I earnestly hope that this incident could enable laymen of law like me to learn and grasp certain points, to understand with what standards we should be looking at such things.
The legal profession, it seems, has seldom any consensus of opinions. Just now quite a number of Members stressed time and again "a trump card", that is, the Bar Association. I do not want to talk rashly about political stance or political background, but after all there would be partisan views. Certain officials present here and we attended a meeting of a certain consultative committee at which some lawyers were invited to talk about the Basic Law. One of the lawyers told us a joke. He said that to require lawyers to come to a consensus of opinions was to strip them of the means of livelihood, because lawyers made their living only because there was disagreement. A number of speakers just now asked others to respond to the Bar Association, and I believe the Government would sure do. As a layman listening to the speech of Mr CROSS, I learned for the first time of the similar cases handled by courts in foreign countries where public interest was also taken into account, and of the arguments about whether the factors involved in our present case fell within the meaning of public interest. Therefore, I would like to ask either Miss Margaret NG or Mr Martin LEE, if they would respond to such facts and arguments? (A pity that Mr LEE already spoke and could not speak again.) However, I think they would not respond to such views. Just like they did not last night. At the debate last night, we asked some Members that as they opposed the appointment system, and as their term of office in the district boards formed in Chris PATTEN's time running from September 1994 to September 1998 already expired, why they hung onto their seats. (I am sorry to ask it again.) Their present seats are purely appointed ones now. Why do they still occupy such seats? Nobody answered. They have always said that upon the reunification in 1997, they accepted the appointment. But nobody ever answered the question why they are clinging to their seats after September 1998.
I had thought that Miss Margaret NG and Mr Martin LEE would give us some law points involving this case. However, frankly speaking, when I read and re-read other articles or criticisms, I have become more and more scared. In fact, many citizens, like me, do not fully understand what is meant by "everybody is equal before the law". As far as I am concerned, this present incident let me learn one concept, is "equality" is meant to give everybody bread, or to feed everybody until no one is hungry? There could be different views here. Many Members quoted the dissatisfaction or criticisms of the citizens or the various sectors. Obviously, those are their views, to quote them is fine. But should we use such views to support our own argument, or should we guide the citizens to consider the two different sets of opinions. Just like today, we lay out these two different kinds of views for discussion, it does not matter even such discussion might be influenced by partisan bias. As it is difficult to have a consensus in the interpretation of the law, we should have discussions, should we not? For instance, Miss Margaret NG once said, or so I read in one of her articles, that such public interest should never enter the mind, forming a "prohibited area" which must not even be touched. However, does Miss NG still stick to this view today? I would very much like to know whether she still thinks that it is a prohibited area that must not be trespassed. I really want to know how she would respond to the overseas views Mr CROSS revealed to us, and if we should also consider such views.
Therefore, I think that today's discussion should be some form of public education, a lecture in law, enabling the citizens to consider this matter from various angles while taking into account of various views. To me, the question of having confidence or having no confidence does not exist.
As to the matter of the Court of Final Appeal (CFA), Beijing did respond very strongly initially. But as Dr YEUNG Sum said, they cooled down eventually. If it is agreed that the clarification of the CFA did not go against its original ruling, that is, there had not been any amendment to or contravention of the ruling, and that it did clarify certain points to calm Beijing down, why is it a bad thing? What harm is there? Why has it made Dr YEUNG uneasy? I do not wish to arrive at the conclusion that some people hope to see chaos so that they can benefit from the confusion. I really hope it is not the case.
Thank you, Madam President.
DR RAYMOND HO (in Cantonese): Madam President, at appears the debate on the motion "to have no confidence in the Secretary for Justice" is revolving round the issue of "public interest". First of all, the reason for this motion was the Secretary's interpretation of "public interest" when she decided whether to prosecute Ms Sally AW in connection with the case of Hong Kong Standard. On the other hand, the approval or otherwise of this motion and the impact on society so created are also another form of consideration of "public interest". Considering that the motion will have far-reaching impact on Hong Kong, I have extensively consulted the engineering sector which I represent.
In the past several weeks, I canvassed, directly or indirectly, the opinions of the engineering sector. Many individual members of the sector also let me have their views through various channels. Some among them support the motion, but much more are against; and the latter include many members of the Hong Kong Institute of Engineers and Hong Kong Association of Consultant Engineers. The views of those opposing the motion can be summarized as follows.
Among the engineers who oppose the motion, many have said that they have no doubt about the integrity of Miss LEUNG. She being the most senior law officer, her professional ability in the legal field must meet the requirements of the position, but her personal integrity is also equally important. As a matter of fact, from earlier press reports, I have learned that some Members who are in favour of the motion have expressed that they have no doubt about the integrity and conduct of the Secretary for Justice. This precisely indicates that Miss LEUNG really fulfills one important requirement of the office of the Secretary for Justice; I believe many citizens would agree.
As professional engineers, we fully appreciate the importance of professional judgment. Among the engineers I contacted, the majority thought that in deciding not to prosecute Ms Sally AW in the absence of sufficient evidence, Miss LEUNG was only exercising her professional judgment as the Secretary for Justice, and there was no evidence whatsoever to show that she made any mistake in making the judgment. Therefore, this also indicates that she did not make any judgment that could be deemed a failure of her duty.
It is true that some people in the community have criticized Miss LEUNG for making public her understanding of "public interest". And I also think that as it was decided that Ms AW was not to be prosecuted due to insufficiency of evidence, the Secretary for Justice should not have made known her view regarding "public interest", a move that gave rise to unnecessary misunderstanding among members of the public. In this respect, Miss LEUNG should pay particular attention so as to avoid anything similar happening in the future.
The Secretary for Justice has always been hardworking, duty conscious and fully committed to her job. Many of the engineers I contacted and myself all think that her being excessively straightforward should not lead us to discredit her other strengths and her good performance in the past, still less for us to cast her a vote of no confidence.
With these remarks, Madam President, I oppose the motion.
MR LEE CHEUK-YAN (in Cantonese): Madam President, I speak in support of today's no confidence motion. Why do I support it? The most important thing is that the present incident has made the citizens of Hong Kong doubt if everybody is equal before the law. As Mr Gary CHENG just said, having listened to the speeches of Members, he himself also began to have the doubt. That everybody is equal before the law is a principle that is an important cornerstone of the rule of law, in particular the Department of Justice does its work behind closed doors. We are not asking them to work completely in the open. However, when they consider whether to initiate a prosecution, they examine all the evidence available behind closed doors. There is no way we know how they work. For every prosecution, we have no way to see what evidence is available to them because the Department deliberates and decides behind closed doors. There is no cause for much criticism against such a practice, because such work must be done behind the doors, because the evidence must not be open to public perusal. Therefore, what is considered when working behind closed doors is very important.
In the present incident, what created the most uproar is that "public interest" was the consideration. Let me quote the previous words of the Secretary for Justice, "With the number of the unemployed rising in Hong Kong, initiating prosecution at this time may result in more extensive loss of jobs. This has made me uneasy." I have to thank her for her uneasiness, because it is naturally a good thing that she was concerned about unemployment. But she went on to say, "Under the circumstances, my primary duty is to consider the possible consequences of prosecuting other people." This is the problem. If she always considers and calculates the consequences of a prosecution, she would also consider the size of the company, its number of employees, the position of the company in the media sector of Hong Kong. To consider so many elements could be dangerous in that the background of the one to be prosecuted would first be taken into account in the deliberation. The Secretary for Justice might think that I am being unfair to her, because she said earlier that the factor considered in the whole case was insufficient evidence; and she also said that she had no need to consider public interest. That notwithstanding, she admitted that she did consider "public interest". In other words, she considered public interest, as well as the insufficiency of evidence. How much weight did she give to each of these two elements? We have no way to know. Such elements of consideration only paraded themselves in her mind; and after repeated deliberation, she said that it was for public interest. As a result, the citizens will doubt if this is in line with the principle of "everybody is equal before the law", and also doubt if an employer employs several ten thousand workers, he will not be prosecuted. This is the shadow that the incident has cast. Naturally, the Secretary for Justice is sure to say that she would deliberate in a fair way. However, after she used "public interest", all the citizens of Hong Kong have doubts, when there are doubts, the rule of law will be shaken, because justice must not only be done, but it must manifestly seen to be done. Such doubts cast shadows on the minds of the citizens of Hong Kong about the rule of law, making them think how much weight the Secretary for Justice gave or will give to this element. As a labour representative, I am greatly worried. Why? We have a lot of cases involving discrimination against trade unions. We have just received a report that in the case of International Container Terminals Company discriminating against the trade union, while we in the labour sector think there is totally sufficient evidence, the Department of Justice has decided not to initiate prosecution. So I wonder whether the decision by the Department not to prosecute is based on public interest, or on insufficient evidence. What is the different weight given to the two. It would mean big trouble if this is the case. Suppose we want to prosecute the Oriental Overseas for discriminating against the trade union, we have to consider the background of the employer, whether it would hurt public interest, or tarnish his reputation. I am not saying that the Secretary for Justice is sure to consider these factors, but after public interest has become one factor, it is difficult for the citizens of Hong Kong not to harbour such thinking.
Further, there is one more drawback. Why is there the public outcry? Mr CROSS may later correct me, I have never heard the viewpoints he mentioned. Just now he said that it was nothing new. He opened the book and quoted the words therein, "How the decision to prosecute or otherwise affects other people, it is a factor you have to consider", "How the decision to prosecute or otherwise affects other people" on the other hand was not a consideration in the case we are talking about. The Secretary for Justice said frankly that public interest meant whether the whole enterprise would be caused to collapse, and that was a factor considered by her. But this was not mentioned by her before. And all of a sudden, the Department of Justice found a dozen countries, many of which did consider such a factor. We find it difficult to judge such an argument, because it is very easy to quote things out of context. We must carefully study the legal systems of the countries concerned before we can come to some understanding. But the study was only made by the Department recently, how did they deliberate in the past? I hope that Mr CROSS would clarify. Did the practice of considering this factor begin many years ago? Were there many similar cases in the past? Or have such cases only appeared recently? We do not know the answers to any of these questions. Therefore, that the factor of public interest was considered aroused much public outcry is because it is something unheard of before. All these notwithstanding, it is certain that the motion today will not be approved. During the debate over the District Councils Bill yesterday, I said that yesterday was a day people changed their stance, yesterday was the first time the Liberal Party changed direction, now is their second time. The second change of stance, according to the explanation of Mr James TIEN, is the result of diverse views of their constituencies. I am afraid that the culture of giving face mutually has now come to Hong Kong: You give me face, and I give you face in return. In the council, the business sector gives the Government face, and does not cast a vote of no confidence, and then the Government gives face to the business sector, reciprocating the face-giving. If it turns eventually into a "face-giving party", then it will be very dangerous. I hope that nothing like that will happen. Thank you, Madam President.
MR RONALD ARCULLI: Madam President, historically and generally, Attorney Generals or Secretaries for Justice do not explain or give reasons why prosecutions are not commenced. The reason is plain. Those who are appointed to this high office are entrusted with the power to prosecute or not to prosecute any person with a criminal offence. Indeed, some of our laws prohibit some criminal prosecutions unless the Secretary consents.
This is the high regard and trust accorded to holders of such office. Indeed, until this unfortunate incident, the Liberal Party had no reason, no reason to think otherwise of the Secretary for Justice. But why then are we so disturbed by her decision in the Sally AW case? I will try to explain.
The Secretary has told us that there were two reasons why Ms AW was not prosecuted. First, she concluded that there was no reasonable prospect of securing a conviction. Second, she said that from the public interest point of view, she considered it not right to prosecute Ms AW but that she could not do so likewise with the other three suspects who were members of the management of the Sing Tao Group.
The Secretary's decision has caused widespread concern, and it is unacceptable and untenable. The community cannot understand why public interest was one of the two reasons relied on by the Secretary for not prosecuting Ms AW. There was widespread concern that there was one law for the rich and another for the poor. It was particularly unfair to the business community that her decision caused such widespread concern. It is unacceptable that any holder of this high office can cause such widespread concern, both in Hong Kong and internationally, by an untenable decision.
Madam President, I shall now refer to the booklet issued by the Department of Justice entitled Prosecution Policy Guidance for Government Counsel. Paragraph 13 effectively says that the first question to consider is the sufficiency of evidence. The proper test is whether there is reasonable prospect of a conviction. Next is paragraph 16, and I quote, "...... having satisfied himself that the evidence itself can justify proceedings in the sense that there is a reasonable prospect of obtaining a conviction ...... Government Counsel must then (I emphasize the word "then") consider whether the public interest requires a prosecution."
Madam President, the position is crystal clear. If there is insufficient evidence, that must be the end of the matter. Government Counsel will not, and indeed cannot, consider public interest. Why then did the Secretary not follow the guidelines set out in paragraphs 13 and 16?
The Secretary tells us that the prosecution policy booklet does not prohibit consideration of public interest even if there is insufficient evidence. I do not accept that, but even if that were so, why consider something wholly and totally irrelevant? Furthermore, none of the factors considered by the Secretary and on which she relied to bring in public interest are amongst the eight situations set out under paragraph 17.
Madam President, the matter does not end there. In a letter to me dated 3 March 1999, Director of Public Prosecutions, Mr Grenville CROSS, continues his gallant defence of a wholly untenable position. He boldly asserts, and I quote, "The Secretary for Justice's consideration of public interest factors was entirely consistent with established prosecution policy." Nowhere does he refer to paragraphs 13 or 16 that I have referred to.
Even more astonishing is his letters to the 13 countries enquiring about public interest considerations. Astonishing because the Director makes no reference to the insufficient evidence as a starting point. What seems to escape him, and indeed the Secretary, is that both of them simply refuse to accept that they have ignored their own prosecution policy. On the contrary, they are attempting to justify the Secretary's decision by asserting that her decision is consistent with prosecution policy.
On 4 February 1999, the Secretary gave reasons why she departed from the long-established policy of Attorney Generals not explaining why prosecutions are brought or not brought. She told us quite rightly that this policy is not designed to suit the Secretary, that it exists to safeguard the integrity of the criminal system and to protect the legitimate interests of those caught up in the system. Despite the Secretary's emphatic statement that she is not setting a precedent, we have serious concerns as to how an absence of explanation by the Secretary in a similar case in future will not cast a long shadow over the criminal justice system.
Madam President, today, there will be no winners, and I mean this because this is not about politics. This is about the rule of law that we have nurtured and cherished in Hong Kong for a long time. This is not just about a grave error of judgment on a decision not to prosecute.
This is also about the Secretary placing herself in a position so that she felt compelled and indeed justified to depart from established policy. This is about the Secretary causing widespread concern, about whether all of us are equal before the law. This is about the Secretary not following the prosecution guidelines in arriving at her decision not to prosecute. This is about the Secretary telling us today that she also considered public interest when in fact she told us on 4 February that she relied on it as a reason for non prosecution. This is about the Secretary repeatedly claiming public interest factors were academic. This is about the Secretary maintaining that she has done no wrong.
Madam President, because of my respect for the Liberal Party and the Basic Law, I am afraid I cannot continue with this debate, and I shall withdraw from this Chamber. Today, whatever the result of this motion, there are no winners. The loser is Hong Kong.
MR HUI CHEUNG-CHING (in Cantonese): Madam President, I must at the outset point out that the so-called "no confidence" motion is a heavily biased motion.
Regarding the decision of the Secretary for Justice not to prosecute Ms Sally AW, some people completely ignored the key point that the decision not to prosecute was based on insufficiency of evidence. Instead, they quibbled and speculated about the political status of Ms AW, and basing on their guesses, suspected the Department of Justice was thus being lenient. This is of course far from being practical and realistic, and the matter is seriously politicized.
None of the witnesses and evidence as well as records in the case of inflating the circulation figures of the Hong Kong Standard proved that Ms AW was a party to the conspiracy. In her explanation, Miss LEUNG pointed out, "Some people think that, as Ms Sally AW is the beneficiary of the crime concerned, she should be held responsible. However, conspiracy is defined as two or more persons agreeing to commit an illegal act with the intention of actually carrying it out. The parties concerned must be fully aware that the agreed act is illegal, and have the intention of carrying out the illegal part of the act." With this criterion, none of the witnesses, evidence and records was against Ms AW, and Ms AW herself also denied that she was aware of the falsified account, claiming that had she known, she would not have allowed it. So it can be seen that there was not sufficient evidence to charge Ms AW for conspiring with her employees to commit a crime. As insufficiency of evidence was the primary and most important reason underpinning the decision not to prosecute Ms AW, why have some people been so bent on dwelling on side issues and raising "political factors" that are entirely unrelated to the case? Some people twisted the principle of "everybody is equal before the law" to insinuate that certain political figures enjoy the so-called "privilege of avoiding prosecution". Such insinuation is both groundless and very dangerous because in the Hong Kong Standard case, the key factor for not initiating prosecution against Ms AW was insufficiency of evidence, and it had strictly nothing to do with the political status of Ms AW.
Madam President, I am firmly against any privilege for anybody; but I am firmly against the inequitable attitude of having any form of discrimination against anybody. I think that regardless of political status, everybody is equal before the law. So long as the report submitted to Miss LEUNG by the ICAC did not contain sufficient evidence to prove Ms AW had conspired to commit a crime, and so long as Miss LEUNG decided, in a just and impartial manner that basing on the primary reason of insufficiency of evidence, not to prosecute Ms AW, it is consistent with the long-established prosecutorial policy of Hong Kong, and is in line with the spirit of the rule of law.
Madam President, when Miss LEUNG explained the reasons for her decision not to prosecute Ms AW, insufficiency of evidence was the primary and key reason, and the public interest consideration was secondary and ancillary. Some people have attacked one point to the neglect of the rest, making a big fuss about Miss LEUNG's consideration of the factor of public interest, raising the matter to the serious charge of "favouring the rich". This is also focusing on the trivial and forgetting the fundamental. If we carefully examine the public interest factor Miss LEUNG talked about, we can see that first of all, she thought that prosecuting Ms AW rashly could lead to the collapse of the Sing Tao group, resulting in unemployment of its employees, this is for the interest of the working people and not "favouring the rich"; secondly, besides the unemployment of the employees, she also considered the "bad message given to overseas media" by the prosecution, being concerned about Hong Kong's image in the freedom of the press and the media business amidst a wave of media company collapses at that time, this was to consider the overall interest of society. It can therefore be seen that the two elements of the public interest consideration do not in any way involve the factor of "favouring the rich".
Madam President, when Miss LEUNG explained her reasons for not prosecuting Ms AW, she was sincere and straightforward, disclosing the process and reasons in detail. This should have made certain people cease to guess, to "solely rely on guesswork", to rely on speculation rather than evidence. Miss LEUNG has tried her best to avoid politicizing the matter, and has been both sincere and giving full play to the spirit of the rule of law. She should be clearly understood by the public.
Furthermore, what I wish to stress is that when explaining the process of and reasons for deciding not to prosecute Ms AW, Miss LEUNG was not only sincere, but she also demonstrated the professional competence as befitting a Secretary for Justice. She emphasized that she had all along strictly adhered to the long-established prosecutorial policy of the Department of Justice and the provisions of Article 63 of the Basic Law. She insisted on the principle that without a reasonable prospect of securing a conviction, no prosecution would be initiated; and insisted also not to initiate prosecution on the basis of guesswork, or make any decision purely to avoid criticisms from the public. On these three counts, I think she has demonstrated her integrity and professional ability as the Secretary for Justice. What I wish to point out is that under media pressure resulting from leaked confidential information, Miss LEUNG did not buckle for fear of "public opinion", rather, she made her decision in a just, selfless, impartial and fearless manner, showing that she had absolute confidence in upholding our rule of law and the principle of "everybody is equal before the law". I have complete confidence in Miss LEUNG, confident that she will continue to exercise the power to initiate criminal prosecution given her by the Basic Law in a fair and strict manner.
Madam President, I so submit.
MISS CYD HO (in Cantonese): Madam President, I speak in support of the motion of Miss Margaret NG. Before I speak, let me declare my interest. I believe many who are present here know that from 1995 to 1997, I was an assistant to Miss NG. Though that was in the past, I still have to declare because it is my believe that "justice must not only be done, but must be manifestly seen to be done".
Today, many in this Chamber have alleged that this motion is "focused on the person, rather than the issue". Now let me tell you something about "focusing on the person". When the appointment of Miss Elsie LEUNG as the Secretary for Justice was announced and before her acceptance, many in the legal profession were rather worried, and some also made very unfair personal attacks. For example, Miss LEUNG was criticized for having no experience as a barrister, because she is only a solicitor; and her competence for the office was queried. Some of the wording used was really nasty. I still remember that an article appeared in the South China Morning Post with the title "A housewife turns the shaft". After that, another person wrote to defend her, pointing out that the Secretary should only be judged when her performance was observed; and that such personal and sexist attacks were not warranted. That article was written by Miss Margaret NG. I was a witness to this little episode, and I am really feeling bad. I hope that Miss LEUNG would also remember this matter.
Indeed, the motion today is one about confidence. I wish to ask why Hong Kong still has to keep someone who has been subject to doubt in the office of the Secretary for Justice. Regarding this issue, the community at large may still not have come to a consensus. But there are bound to be some people asking if there are no other candidates in Hong Kong for the post. When the ability of the incumbent Secretary for Justice is queried, should we not appoint another person to the office, so as to remove this public controversy? Indeed, this is no longer an issue regarding the integrity and ability of the Secretary, it is a matter of public confidence in her. Now, after so many things happened, if she remains in the office and therefore makes numerous decisions in the future, there are bound to be people, remembering the present controversies, who will query whether her decisions are just and fair. For this reason alone, Miss LEUNG is no longer qualified to independently handle criminal prosecution and implement the policy thereof.
The people of Hong Kong now greatly treasure the rule of law, because not much democracy is left, and we can only depend on the rule of law for justice. But I wish to point out that democracy and the rule of law are tightly entwined, one cannot exist without the other. Only in a democratic society is the government subject to checks and balances, can judges remain independent and free from interference by the executive authorities, and only then can the citizens feel safe to let holders of high offices exercise absolute powers. Only in such a society are there formal channels for the public to dismiss a high official when he or she makes mistakes, and without demanding explanations on every occasion. As a Member just pointed out, to require the Secretary to give explanations every time would be undesirable, bringing political pressure to bear upon her. So such a demand should not be repeated.
In a society that lacks democracy, not only is the rule of law easily shaken, but public opinions can also be easily played down and twisted, resulting in some Members making the wrong decision in their voting today. For example, Mr Ambrose CHEUNG said that his survey found that 24 members of his constituency were against the motion, and 22 in favour. All through last night and until this morning, we were discussing the question of representative government with an appointment system under which there is always the possibility that appointed members could be involved in political deals or would make decisions only to give face to some people. If we take away those appointed members of Mr Ambrose CHEUNG's constituency who oppose this motion, the remaining number would show very clearly the inclination of his constituency, and would not have put him in such a difficult position.
I also heard Mr CHAN Kam-lam said, "In present-day Hong Kong, there is confusion as to right and wrong, black and white". In fact this was the second time I heard such allegation in the last 24 hours. On both occasions, it was exactly the same. The first time I was informed by a reporter who interviewed a citizen outside this building who supported Miss LEUNG. The reporter asked why he came here to support Miss LEUNG. That citizen said that he came because some people wanted to "topple Miss LEUNG". When further asked if he supported "toppling Miss LEUNG" or against it, and whether he knew the reason for "toppling Miss LEUNG", he could not answer.
We can see that the results of today's voting would not be any exception. However, there is no way public opinions could be stifled. In fact, while the Legislative Council is today voting on the question of confidence in the Secretary for Justice, the citizens outside, I believe, have been given a chance to witness our overall as well as individual performance, and they will also be casting votes of confidence or otherwise on us.
Madam President, I support the motion of Miss Margaret NG.
MR CHAN KAM-LAM (in Cantonese): I wish to elucidate. Just now the Honourable Miss Cyd HO misquoted me. I wish to repeat my original sentence, which is, "Fortunately, Hong Kong has not degenerated into a place when there is confusion as to black and white, right and wrong".
MR JASPER TSANG (in Cantonese): Madam President, the speech of Miss Cyd HO just now sounded familiar to me. She said similar things about a month ago, though at that time, the subject was another Policy Secretary. It seems that such a way of speaking is her forte.
Madam President, we heard that Miss Elsie LEUNG was criticized for her inexperience, lack of the required experience to discharge her duties. I wish to know, who has such experience? Who has the experience to qualify for the office of the Secretary for Justice of the Hong Kong Special Administrative Region (SAR) of the People's Republic of China? Of all the allegations I have heard, charging Miss LEUNG of all the sins, I think the most complete list is the one given by the Honourable Miss Emily LAU. However, among all such sins, over half of them are related to the judicial system under the "one country, two systems" arrangement, and to the conflicts between two different systems of law. I wish to take this opportunity to make clear my views regarding the clarification by the Court of Final Appeal (CFA) as quoted by Miss Emily LAU. Miss LAU quoted me and said, "Mr Jasper TSANG expressed, the power to examine no longer exists, and we must in future never touch it". When I read the rectification of the CFA, I thought that there seemed to exist some contradiction, because after the CFA ruled in respect of the case of right of abode for the permitless children on 29 January, some people said that having learned the ruling, they were sure that the CFA had the power to examine whether the legislative acts of the National People's Congress (NPC) and its Standing Committee contravened the Basic Law, and to declare the same invalid if the CFA so ruled. This was what some people of the legal profession told us when the CFA made its ruling on 29 January.
However, a later version of the judgment of the CFA affirmed that the power of interpretation of the Basic Law of Hong Kong courts, including the CFA, were derived from the power delegated by the NPC Standing Committee, and also affirmed was the fact that the ultimate power of interpretation of the Basic Law was vested with the Standing Committee of the NPC. This in fact has given rise to a new question, one I think our jurists would find very interesting. Now, Hong Kong has the power of final adjudication by virtue of the Basic Law, and as final adjudication means just that, final, the ruling of the CFA is naturally final as far as Hong Kong is concerned. Its interpretation of the Basic Law is naturally authoritative in its own right. However, it is stipulated in the Basic Law, and acknowledged by the CFA, that the ultimate power of interpretation of the Basic Law is vested with the NPC Standing Committee. Therefore it is often asked, if the acts of the NPC Standing Committee violate the Basic Law, is it that our CFA cannot for that reason declare such acts invalid? If so, is it not that we have no protection at all? However, we should similarly ask, if a ruling of the CFA is deemed to have violated the Basic Law by the NPC Standing Committee, how will the Standing Committee handle the matter? In what manner can it do so? How do you give expression to the provision that the ultimate power of interpretation shall be vested with the NPC Standing Committee? If the CFA says that the NPC Standing Committee has made a legislative act that violates the Basic Law, it has to declare such a legislative act invalid; but on what basis does it so declare such an act invalid? Based on the provisions of the Basic Law, one may answer. But the ultimate power of interpretation of the Basic Law is vested with the NPC Standing Committee, so in that case, the CFA should ask the NPC Standing Committee if the latter thinks itself has violated the Basic Law, and its act is therefore invalid. So, should the one to rule if an act of the NPC and the NPC Standing Committee violates the Basic Law be the CFA of Hong Kong, or the NPC Standing Committee? I think that this question is not so clear as to enable us to say "we have the power to examine" as soon as we read the ruling of 29 January, or to say "we have not" when the clarification was issued. If it is the case, I would think that this interesting question will become a very dull one indeed.
As to the cases of CHEUNG Tsz-keung and the Telford Gardens, we all know that certain proceedings are in progress, and there is no disagreement. When Hong Kong people broke mainland laws on the Mainland, got arrested on the Mainland, and are tried by mainland courts, the mainland courts have jurisdiction over them. I do not think anybody would disagree. If it happens the other way round, that is, when mainland people broke Hong Kong laws in Hong Kong, got arrested in Hong Kong, Hong Kong courts have the judicial power to try them; I also believe nobody would disagree. When Hong Kong people committed crimes in Hong Kong, escaped to the mainland and got arrested there, they are repatriated to Hong Kong, to be tried by Hong Kong courts. This has always been the practice. The present issue is, certain mainlander committed crimes in Hong Kong, the Hong Kong authorities failed to arrest him (if arrested in Hong Kong, he would naturally be tried in a Hong Kong court), and he escaped back to the Mainland. In that case, do we request the mainland authorities to send him back to Hong Kong for trial? If the answer is yes, then when the opposite happens, that is, a Hong Kong person committed a crime on the Mainland and escaped back to Hong Kong, do we send him back to the Mainland? If we categorically deny such possibility, or say that is not to be discussed, or we have a ready reply, then I also think that a very interesting question has been turned into a dull one.
The issue of the Xinhua News Agency not having been spared prosecution is of course another of those problems concerning how the status of such organizations is defined according to the Basic Law under the "one country, two systems" arrangement. Therefore, all these issues involve the system of "one country, two systems". Just now, I heard that the word "unprecedented" was repeatedly used to describe "one country, two system". "One country, two systems" is in itself unprecedented, and where can we get one with the relevant experience to hold the office of the Secretary for Justice of Hong Kong under "one country, two systems"?
Madam President, right from the start, there has not been any fair, objective and calm debate on whether Ms AW should be prosecuted. It has been a trial by public opinion right from the very beginning, and it is the public opinion trying Ms AW and Miss LEUNG. It has been a trial by public opinion based on bias, presumption and conjecture, and there is conviction even before adjudication: That Ms AW must be guilty, she must have escaped prosecution because of her membership of the CPPCC and her connection with the Chief Executive; and the Secretary for Justice must have practised favouritism. Such conclusions were drawn right at the beginning.
The Democratic Alliance for the Betterment of Hong Kong (DAB) opposes the motion today, not because we think Miss LEUNG is a good person. Rather it is because we believe Miss LEUNG is competent in her office as the Secretary for Justice of the SAR.
Thank you.
MR LEE WING-TAT (in Cantonese): Madam President, I speak in support of the motion of Miss Margaret NG. Points of law regarding this issue have been covered by many Members of the Democratic Party, so I am not going to repeat them here. I wish to comment on certain views expressed by a number of Members.
There is an allegation that we have politicized the issue, approached the issue from a political angle. I have asked myself, are we politicizing the matter? Have we approached the issue from a political angle? I do not think so. Among the Members who have spoken today, including Dr LEONG Che-hung and Mr Bernard CHAN, many gave us their views. I do not believe Honourable colleagues in this Chamber, including Members from the Democratic Alliance for the Betterment of Hong Kong (DAB), will think that Dr LEONG and Mr CHAN had politicized the issue. Though Mr CHAN does not support the motion, he made it clear he thought that the Secretary for Justice made a wrong decision.
I felt deeply when I saw the way Mr Ronald ARCULLI spoke. I began working with him in this Council in 1991. Members all know that over many issues, his stance is different from mine; we have different political stances, different stances in respect of land and housing policies. Today is the first time I saw him in tears; he made me feel for the first time what it is meant by "there is no greater sorrow than losing all hopes". As a Member representing the business sector, he needs not do what we do and thus drawing criticisms that it is done for the purpose of getting votes; nor needs he subject himself to attacks, as we do, by various political parties for politicizing the issue. I personally sympathize with Members from the Liberal Party because they are under great pressure. I agree with the views of Mr ARCULLI. I hope that Members would look into their conscience, review what they said when they spoke. If Members think that Mr ARCULLI has withdrawn from this Chamber merely to draw the limelight to himself and to win political votes, then I have no more words to say. I believe he is under pressure more enormous than any of us here. According to South China Morning Post, the Chief Executive, his advisers and assistants all phoned personally the supporters of and contributors to the Liberal Party, lobbying them not to support this motion. There is no need for Mr ARCULLI to do what he did, or to withdraw from this Chamber. What is more, he is a Member who has over the many years co-operated with the Government, who has never adopted an adversarial attitude, and today he spoke his truly heart-felt views in this Chamber. It is common for the officials sitting on the other side to turn a completely deaf ear to our words. But, having witnessed the speech of Mr ARCULLI, I would ask the officials to put this question to themselves: What is the point even if a major victory is scored today? Is public support also won? As I am not too well versed in law, I have listened very carefully to every of the views. However, I do not believe Mr ARCULLI approached this debate from a political angle. I think his tears were shed for the rule of law, unless we do not trust him.
Further, many Members thought that if we spread the arguments and controversies that have appeared during today's debate, it would do harm to Hong Kong. I hope Members would think again, is it that diverse views, if spread, would bring harm? Have you ever thought that, the rule of law, once shaken, can be preserved forever, even if we hold our tongues today, next month and next year? The Bar Association and many members of the legal profession may hold different views regarding this no confidence motion, but they all have profound questions about this incident. What sort of introspection has our Government made? Apart from pulling out all the stops to defeat this motion, what has our Government done in terms of introspection and rejuvenation? Madam President, I have nothing more to say. I only want to ask, if authority gets the upper hand over truth, what hope is there for our rule of law? Thank you, Madam President.
MR ANDREW WONG (in Cantonese): Madam President, I was scheduled to chair an insurance brokers' disciplinary board meeting at eleven o'clock this morning, but I have already cancelled it because I do not want to miss this motion. I have a lunch appointment with the Honourable Frederick FUNG for one o'clock in the afternoon, and I have also cancelled it. I could of course easily stayed away from this storm. In fact, there is tremendous political pressure. Everybody knows this. However, I prefer to speak my mind, and to stay here to cast my vote. How I am going to vote has early been made public, and there has been no change.
I wish to say one thing, and that is, when I make any decision, I do not poll the opinions of my constituency, because I think that we should have more courage, should take some risk. This is a political decision, and a decision involving personal integrity. In the present incident, I greatly admire Miss Margaret NG who has moved such a motion in the midst of such a political atmosphere. It requires huge courage and commitment. I also admire greatly Miss Elsie LEUNG who under such difficult circumstances was still able to make a decision not to prosecute Ms Sally AW, a decision she was convinced was correct. That was also a very painful thing to do. Inside the Legislative Council, political parties are giving us, the middle-of-the-roaders, and those Members who only wish to work for the benefit of Hong Kong, a hard time. We therefore find it difficult whichever way we act. Some people have said that this is a political matter; obviously it is precisely that. In fact, everyone has his own stance, has a different view.
I now wish to talk about Mr Ronald ARCULLI; I do so not because of the moving speech of Mr LEE Wing-tat, but because of my own view about the whole affair being exactly the same as that of Mr ARCULLI. This affair is not about the integrity of Miss LEUNG, nor is it about her professional performance, professional competence or judgment. It is about the issues that arose following Miss LEUNG's decision on a certain matter, and about the way she handled the matter. Serious mishaps are sometimes not the fault of the decision-maker, but rather poor fortune of the person who happened to be in a particular position. For example, when the economy turns suddenly sour, people naturally lose confidence in him. Particularly under certain political circumstances, there will be people fanning the flames, telling people that they should lose confidence in him. If we understand this reason, we will know what all the things are about. Some people exaggerate the matter, but not I. In the present incident, the decision of the Secretary was not to prosecute Ms AW. Initially she did not give any reason for her decision; eventually she did, but only after repeated delays. The reasons she gave included public interest which was also clearly defined and explained. That is all about the whole incident, and I would not want to analyse its details. This matter causes worry because it is not known if Miss LEUNG would in future show similar judgment and do similar things, and not necessarily only in respect of legal matters. This is the crux of the issue.
When the draft Basic Law was published, I put forward some proposals at the Basic Law Study Committee of the Legislative and Executive Councils. I proposed that the post of Public Procurator General should be created to exercise the power of public prosecution, to be held by an independent semi- or quasi-judicial appointee, and not by the Secretary for Justice, or the Attorney General at that time, because anyone holding the office of the Secretary for Justice, whether he or she likes it or not, will be deemed a political figure. Miss LEUNG has the worst of luck, because before 1 July 1997, she was on special appointment; she was also a former deputy to the National People's Congress as well as a founding member of the Democratic Alliance for the Betterment of Hong Kong. With these various backgrounds, it is inevitable that people are led to think that this is a political incident. Therefore, if the office were held by other people, would it have been a bit easier? Suppose if Mr Tony YEN, the Law Draftsman, held the office, things would have turned out differently, though he is a civil servant, and it would not be easy for him. That cannot be helped because the matter is sure to arouse the suspicion of many people.
Therefore, I think that if at the beginning there were such thinking and arrangements so that the Secretary for Justice would be responsible for the general legal services, with a Public Procurator General, independent and not under the command of the Secretary, to handle all prosecution work, the problem would have been solved. In fact, this can still be arranged within the framework of the present Basic Law because Article 63 of which provides that "That Department of Justice of the Hong Kong Special Administrative Region shall control criminal prosecutions, free from any interference" where the Department of Justice refers to the department and not to the Secretary. I have also publicly said (not in relation to the present incident) that a wise way was to delegate the power of prosecution in its entirety to the Director of Public Prosecutions, that is, the gentleman now sitting beside the Secretary for Justice. It is not because he is British and so more trustworthy, but because if he were to hold the post by special appointment, many of the troubles could have been more easily solved. Perhaps what I am talking about is not merely related to this present incident, but at least it can help everybody here have a better understanding of the background.
Now as the Secretary for Justice is a public officer employed under a contract, she could be regarded as a political appointee, that is, she could quit her office at any time ─ mind you, I am not forcing anybody to resign ─ because with political appointments, the best way out is often voluntary resignation; and there is always a possibility of coming back, because I trust her, I do not believe she is incompetent, nor do I believe she lacks integrity. I only think that under certain circumstances, with serious mistakes having been made, it is perhaps best for her to step down voluntarily. To voluntarily resign from her office would be in the interest of the public. Therefore, as I said before, I would support a motion from Mr LEUNG Yiu-chung demanding the resignation of the Secretary for Justice, and I could support the present no confidence motion moved by Miss Margaret NG.
Thank you, Madam President.
PROF NG CHING-FAI (in Cantonese): Madam President, the motion we are debating this morning is moved by the Honourable Miss Margaret NG, calling for this Council to strongly censure the Secretary for Justice. What is the charge? The charge is the inappropriate consideration of the element of pubic interest by Miss LEUNG in deciding not to prosecute Ms Sally AW.
Naturally, other things were later included. As a matter of fact, when people both inside and outside this Chamber began to show doubts when Miss LEUNG did not prosecute the person named in the indictment regarding the Hong Kong Standard case, as a layman outside the legal profession, I had my share of doubts. Upon the conclusion of the Hong Kong Standard case, Miss LEUNG came to this Chamber to explain that the reasons for not prosecuting Ms AW were mainly the insufficiency of evidence, and secondarily public interest considerations. She also told this Council in a straightforward manner the details how she considered public interest. Many people, myself included, found the explanations of Miss LEUNG acceptable, but inside and outside this Chamber, there still were severe criticisms, a considerable amount of which even came from the legal profession. The media had a field day. In view of the fact that the criticisms are very strong and severe, comparing the judgment of Miss LEUNG to the damage to the important principle of "everybody is equal before the law", people have been led to believe her judgment has already undermined the cornerstone of the rule of law in Hong Kong. In the face of such diverse views, as a layman of law, I could not but try to better equip myself by doing some research in an attempt to see how the element of public interest is weighed when prosecutions are contemplated in common law jurisdictions.
Firstly, I got hold of a copy of the prosecution policy booklet of the Hong Kong Special Administrative Region (SAR), that is, the one held up by Mr Martin LEE. This policy in fact comes from the Crown Prosecution Policy used by the former Hong Kong British Government, being a version adapted for the SAR after the reunification. Both documents clearly point out that "public interest" is an extremely important factor to be considered when the prosecuting department of the Government decides to initiate prosecution or otherwise, and public interest covers "the interest of other parties". These two documents are available to all members of the public, and are nothing secret. I really fail to understand why Members from the legal profession have not acquainted us and the community at large with the prosecution policy that Britain and Hong Kong have all along used, so that we can be helped in forming our own judgment regarding such criticisms. Well, I am quite disappointed.
Madam President, whether or not one identifies with the way Miss LEUNG has considered public interest is a matter of opinion. But if Miss Margaret NG questioned the credibility of Miss LEUNG's judgment regarding the evidence concerned because of the allegedly distorted interpretation of "public interest", it is stretching the matter to an untenable limit, creating only a scary effect. I wish to also talk about my own feelings, as three Members already said they wanted to cry, so I should also share with you my feelings. I am not going to cry, though I am as heavy-hearted as they are. Miss LEUNG came to this Council to explain in detail after the conclusion of the Hong Kong Standard case. After that, some Members jubilantly said that there was in fact no need for her to say anything, she was too honest, said too much, revealing a problem with her professional competence. Such talks made people think that Miss LEUNG was ensnared, and it served her right. Such frivolous manner of our Honourable Members is diametrically opposite to their image as people who always talk about integrity. What a lamentable behaviour.
Madam President, I would also like to respond to the article written by Prof CHAN Wang-ngai as mentioned by Mr TAM Yiu-chung. That article explained in clear terms two different ways of handling which I am not going to repeat here. However, I am glad that I have obtained today some new information here from the eloquent arguments presented by Mr CROSS, the Director of Public Prosecutions. I am particularly glad that he had written to the prosecution departments of 13 common law jurisdictions, asking for their opinion about the elements of public interest as considered by Miss LEUNG and whether they were "not to be considered" as alleged by Miss Margaret NG. The feedback from his inquiry obviously shows that the "professional judgment" of Miss NG herself of was not at all beyond doubt. Naturally, I believe Miss NG has time left to respond to such authoritative views. The opinions obtained by Mr CROSS have eliminated the final bit of my misgivings, that is, apart from Hong Kong and Britain, other common law jurisdictions can similarly consider public interest. I would also like to express my respect to Mr CROSS, because as he said, he made known such opinions to Miss NG before today's debate, an apt demonstration of his openness and fairness, convincing us that his speech today and his and his colleagues' unreserved support for Miss LEUNG are out of genuine sincerity, rather than a run-of-the-mill attempt to defend Miss LEUNG.
Madam President, Hong Kong has been in its new era for only 20 months; there are still lots of questions we have to face, to iron out. We can all do without any fabricated scares. Before the reunification, we heard enough scary words, those were covered just now, and I have no need to repeat them. Madam President, we can also do without any groundless accusations against a diligent, duty-conscious, honest senior official of impeccable integrity. Such accusations are not only unfair to the official concerned, but also do nothing to benefit Hong Kong in its new era. What our society needs is a common goal, and that is, collective planning and concerted effort with common determination to build Hong Kong into an economically prosperous, fair, open, free, democratic and harmonious international metropolis.
Thank you, Madam President.
MR AMBROSE LAU (in Cantonese): Madam President, the criticisms or mistrust against the Secretary for Justice for her explanations regarding the reasons not to prosecute Ms Sally AW focus on two points: the first is that if evidence was really insufficient, there was basically no need and no reason to consider public interest; the second is that Miss LEUNG interpreted public interest in a "wrong way", in a way that "favoured the rich", so violating the principle of "everybody being equal before the law".
I do not agree with such views.
Regarding the first, the criminal prosecutorial policy of the Department of Justice states in clear terms that, "The Secretary for Justice should discharge his prosecution duties on the basis of public interest". The policy also quotes the words a British justice secretary said in 1951, "I am of the opinion that the real principle is, when the justice secretary decides to give or withhold consent to a prosecution, he has the duty to know all the facts, including the impact of the prosecution (successfully or otherwise) on public morals and order, and also to know any other elements of consideration that could affect public policies". As the Secretary for Justice has to use public interest as the basis when discharging her prosecution duties, and has the duty to know all the relevant facts, therefore, I am of the opinion that the two reasons for the Secretary for Justice not to prosecute Ms AW, that is, insufficiency of evidence and public interest, are in line with the established prosecutorial policy of Hong Kong and the guide to the criminal prosecutorial policy of the Department of Justice.
As pointed out by Prof CHAN Wang-ngai, Dean of the University of Hong Kong Law School, within the British jurisprudence academia, there also exist two schools regarding the mutual relationship between evidence and public interest in prosecutorial policy. The first school advocates that a decision to prosecute comprises two stages; if at the first stage, evidence is found insufficient, there is no need for the second stage regarding public interest consideration. However, according to the second school, any prosecution must be in line with public interest, with evidence perforce the primary consideration, but all elements of public interest can be juxtaposed with the evidence for the purpose of weighing one against the other. I think that the second school is more reasonable for the practical purpose of the law, because sufficiency of evidence is in fact inseparable from public interest elements. Mr Michael THOMAS, a former Attorney General, once pointed out, "If a case involves very high prosecution expenses and a prolonged trial, then it would not be in the interest of the public to initiate such a prosecution unless there is very sufficient evidence". So we can see that the strength of evidence is a matter of degree of sufficiency, and other elements of public interest can be considered together with evidence. Therefore, there is nothing improper for the Secretary for Justice to decide to withhold her consent to the prosecution on grounds of insufficient evidence and public interest.
Madam President, some people have criticized Miss LEUNG's interpretation of public interest in the Hong Kong Standard case, alleging that the elements of public interest covered only the old time interest of people such as young, old, feeble, mentally ill or marginalized defendants, and that the impact of the collapse of a media group and of the possible effect in the freedom of the press so soon after reunification on Hong Kong's international image, the possibility of new unemployment resulting from the collapse could not constitute public interest considerations under the common law. I do not agree with such views either. In fact, in common law jurisdictions including Britain, Hong Kong as well as Australia, there are three categories of public interest elements. The first concerns the characteristics of the suspects, including their age, state of health and even the effect of the prosecution that may have on their reputation; the second concerns the circumstances surrounding the commission of the suspected crimes, including the seriousness of the crimes, whether there are victims and extenuating circumstances; and the third concerns the social effects where the prosecuting authorities have to balance the merits and demerits of the prosecution, including factors involving social public policies. Miss LEUNG raised a question when she made her explanations, "Is the possible consequence of the prosecution commensurate with the seriousness of the alleged crime?" Miss LEUNG concluded that it was not, and therefore decided that prosecuting Ms AW would not be in public interest.
When Miss LEUNG further explained how she considered public interest when deciding whether to give consent to the prosecution, her explanation referred to the "social effects of the prosecution" as seen under the categorization of public interest elements as in common law jurisdictions like Hong Kong, Britain and Australia; it was not that the rich was favoured. This is in line with the principle that "the Secretary for Justice should discharge his prosecution duties on the basis of public interest".
I heard Members who support the motion argued that they do so because Miss LEUNG made professionally wrong judgments; some other Members quoted the views of the Bar Association. But we must not forget, another professional body, namely, the Hong Kong Law Society, holds different views. A no confidence motion is a serious censure. Unless Miss LEUNG erred seriously in her legal judgments, we should not support the "no confidence" motion.
With these remarks, Madam President, I oppose the motion.
SECRETARY FOR JUSTICE (in Cantonese): Madam President, in response to some Members' request that I should respond to specific points raised, I would like to give a summary clarification on some points which I did not mention in my previous speech.
First, the Honourable Martin LEE said that in the AW case, it would be unthinkable for the employer to know nothing about what was going on in her company when three of her staff members knew all about it. I am sure that Mr LEE will agree that we can not initiate a criminal prosecution purely on some insinuated evidence. We must possess sufficient evidence to prove the case is beyond reasonable doubt instead.
The second point concerns the Court of Final Appeal (CFA) ruling. I have been accused of altering the definition of a particular word in a dictionary. I believe we all understand the meaning of "rectification" and that is to "put right". I also want to clarify that it is the opinions of the relevant authorities in the Mainland rather than mine that this matter should be rectified. The Mainland has accepted the clarification subsequently made by the CFA. I therefore consider that this matter has been settled. In view of this, I think that such a clarification corresponds with the definition of rectification.
With regard to our decision not to prosecute the Xinhua News Agency as mentioned by the Honourable Miss Emily LAU, such a decision has been made in accordance with our long-standing prosecutorial policy. Our established policy is not to explain the reasons if we have made the decision not to initiate a prosecution. We have all along been upholding this principle. It is especially inappropriate of me to comment on this matter in view of the fact that Miss LAU is launching a private prosecution, which will be handled by the court. Meanwhile, Miss LAU thinks that we should make our position clear as to whether the CFA has the power to review legislative acts of the National People's Congress (NPC). We are not a suitable authority to interpret the law. In Hong Kong, such an authority is the court. The CFA has not only explained itself but also made clarification on this matter. I would like to ask Members to read the CFA rulings on 29 January 1999 and 26 February 1999. The question of whether the CFA has the power to review the legislative acts of the NPC and its Standing Committee is very clear.
A few Members mentioned both the cases of CHEUNG Tze-keung and LI Yu-hui, which I have explained to this Council before. As for the interpretation of "territory" in the context of jurisdiction, I do not think there is any dispute here. Regarding the CHEUNG Tze-keung case, it is very clear to all of us. The Guangdong Provincial Higher People’s Court has explained that, because some of the criminal acts occurred entirely in the Mainland while some of them occurred partly in Hong Kong and partly in the Mainland, they have jurisdiction over them according to the Criminal Law of China. As for the LI Yu-hui case which is being tried in Shantou, lawyers representing the defendant also agree that the mainland court has jurisdiction in this case. As a matter of fact, the criticism against me relating to this case is that I have not made any effort to bring back the defendant to stand trial in Hong Kong. Such criticism has neglected a fundamental legal point and that is: The SAR Government must first reach an agreement on rendition of fugitives with a place before it can formally request the surrender of a fugitive from that place. At present, no such an arrangement exists between Hong Kong and the Mainland. In other words, I have been criticized for not doing something which I am not legally empowered to do.
Regarding the question of "public interest", I just want to emphasize that it is our long-standing policy that we do not explain our decision not to prosecute no matter what the reasons are, be it, "public interest" or "insufficient evidence". I therefore fully appreciate Members doubt about what constitutes "public interest". My argument is based on the detailed explanation made earlier by Mr CROSS, SC.
Finally, I would like to point out that the criticism against me is more or less related to the Mainland. Some people say this is because I have adopted a basically incorrect policy on the sensitive issue concerning the administration of justice involving the Mainland. I take exception to such a view. I have handled these issues in accordance with the law, the tradition of the rule of law and the common law. What I am now worried about is the spread of some unfounded and inappropriate speculations as a result of the sensitive nature of matters related to the administration of justice in the Mainland, thereby creating the impression that the rule of law has been eroded. I fully subscribe to the saying that justice has not only to be done but also be seen to be done. However, I cannot abandon our long-standing prosecutorial policy simply because of the background of a suspect. I can not make a formal request to the Mainland for the surrender of a fugitive in the absence of any rendition agreement between the two places; nor should I have refused to seek clarification from the court because there is no such a precedent in Hong Kong or for fear of being misunderstood. I would like to remind Members that it is not unprecedented for us to seek clarification from the court. The Matimk case in the United States, which was of considerable concern to Members and about which I already explained to this Council earlier, is a case in point, in which a court in the United States ruled that Hong Kong companies did not have the right to initiate legal proceedings in that country. But two months after delivering the ruling, the judge rectified the ruling and clarified that the ruling was only related to the status of those companies before, but not after 1 July 1997. We have never heard of any one questioning the judge's rectification and clarification concerning his/her ruling in this case. An unprecedented relationship between Hong Kong and the Mainland will be established under the new constitutional structure. It is my firm belief that the concept of "one country, two systems" will be successfully implemented without eroding our long-cherished principle. I have done, and will continue to do, my utmost to uphold the rule of law, the spirit of "all are equal before the law" and the integrity of an independent judicial system. I urge Members to reject the accusations against me and vote against the motion. Thank you, Madam President.
CHIEF SECRETARY FOR ADMINISTRATION: Madam President, I have listened very carefully to the views expressed this morning and this afternoon. It is clear to me that there are strongly held views about the issues that are under debate. Whilst I do not agree with all the views expressed, I also understand that these views have been expressed out of a deep concern for the rule of law, and I hope to tackle this specific matter later on in my speech.
But I have to say at the outset that the Administration opposes this motion. We do so not because we dispute Honourable Members' right to move and debate it ─ I believe that this is the meat and drink of a free society ─ but because we find it unfounded and, frankly, unfair to a dedicated and diligent public servant. Moreover, some Members have brought into question the commitment of the Government of the Special Administrative Region (SAR) to the rule of law. I reject this charge outright.
Madam President, there are two main issues at the heart of this debate. The first is the Sally AW case and the argument as to whether or not she should have been prosecuted in the Hong Kong Standard conspiracy trial. The second revolves around the controversy which followed the ruling of the Court of Final Appeal (CFA) on 29 January on the right of abode case, and our approach to the CFA seeking clarification of certain parts of its ruling.
It is not for me to deal with these matters from a legal perspective. That has already been done by my colleagues, the Secretary for Justice and the Director of Public Prosecutions. I would only note that I would be the last to lightly brush aside the views of members of the legal profession on either issue. I believe that on important legal and constitutional issues, honest differences of opinion and robust exchanges between our lawyers are entirely healthy and should continue to be encouraged.
The Sally AW case is a good example of that. As I have made plain, I do not intend to add to the clear explanation given on this matter by the Secretary for Justice on this and several other occasions, other than to emphasize that her decision rested on insufficient evidence. But I do remind Honourable Members of her response to the allegation that her decision confirms that people in high places have received special treatment, or that there is one law for the rich and one for the poor. The Secretary for Justice vigorously affirmed that nothing could be more abhorrent to her. And whilst decisions on prosecutions are a matter for the Secretary for Justice alone, those sentiments are shared equally by the Administration. We need to be ever mindful of the principle which guided the late Lord DENNING when he said "Be you never so high, the law is above you."
In the final analysis, the Secretary for Justice's decision came down to a matter of judgment. The fact that others might have come to a different conclusion is neither here nor there. Neither I nor anyone else should second guess her judgment. Article 63 of the Basic Law makes it clear that the Department of Justice decides on prosecution, free from interference. We must observe this article to the letter.
Madam President, let me now deal with the CFA issue. In the potentially politically charged atmosphere which followed the CFA's ruling, the Secretary for Justice went to Beijing to reflect the views of Hong Kong people and the local legal profession, to explain the ruling and to seek a better understanding of the concerns of the mainland authorities. Was this the wrong thing to do? Would it have been better to shout at each other from opposite sides of the boundary, or worse still, to precipitate a constitutional crisis? I think not.
Last Friday, the Secretary for Justice gave a full account to the House Committee of this Council of her recent trip to Beijing and of the application to the CFA. She explained how she had reflected Hong Kong's concerns and comments to Beijing. She explained that the application for a clarification was properly made. There is nothing sinister in giving advance notice to the Chief Justice of our probable and then firm intention to do so. The Chief Justice, after all, needed time to assemble his court, including a distinguished judge from Australia.
The CFA has made it clear that it was acting within its inherent jurisdiction in issuing a clarification which did not depart from the original decision. The Secretary for Justice also made it absolutely clear that no political pressure whatsoever was applied to the CFA. The independence and impartiality of the CFA remain intact.
No one can seriously suggest that the eminent judges of our CFA would allow themselves to fall prey to political pressure from this Administration, or from anyone else for that matter. For myself, and I speak for the entire Administration, I have nothing but the deepest respect for the CFA. Indeed, shortly after the CFA has delivered its judgment on the right of abode issue, I made it clear in a public statement that we respected the CFA's decision and would act accordingly.
Madam President, as these matters, in particular the constitutional aspect of a CFA judgment, have created such interest and concern here, in the Mainland and internationally, I hope you will allow me a few moments to try and put this matter in its proper perspective.
It is but 20 short months since we became an SAR of the People's Republic of China under the principle of "one country, two systems", that some people thought would simply not work, notwithstanding the very detailed signposts so carefully put in place, firstly by the Joint Declaration and, then, the Basic Law. The Basic Law is, to all intents and purposes, our constitution. It is also, crucially, an instrument of the sovereign. It would be idle to pretend that the sovereign has no interest in its application.
I think we all agree that the Basic Law provides as firm a foundation as this community would wish to see our free and open society preserved and nourished. But it is not perfect. No constitution is. That is why there must be constitutional mechanisms to adjudicate where there is doubt or discrepancy or dispute. This fundamental point is further complicated when two such different socio-economic and legal systems exist within one country.
So, it should come as no surprise that in these circumstances, sooner or later an issue such as the CFA ruling would trigger the need for debate, explanation and, dare I say it, perhaps even clarification. The different reactions to the CFA judgment, both locally and in the Mainland, and our seeking the necessary clarification, are examples of how we are feeling our way and finding our own solutions in a totally new order, which involves sensitive political and constitutional interplay in this bold but novel concept of "one country, two systems".
At the very beginning of this speech, I rejected outright the notion that this Administration is not committed to the rule of law. We know precisely what is meant by the rule of law. We understand and accept that it means the subordination of the three arms of government, that is, the executive, the legislature and the judiciary, to legal process and equality before the law. It also means the absence of arbitrary executive power. The rule of law to Hong Kong is not a cliche or a slogan. It is the very foundation on which the community has been built. It has protected our freedom and underwritten our progress and prosperity.
That is why I can assure Honourable Members that in the matters at issue, we have acted out of principle, not expediency. We have acted not to undermine the rule of law, but to observe it, and we have acted not to challenge the independence of the Judiciary, but out of respect for it. It is only right that in a debate of this nature, we should consider the significant contribution that the Secretary for Justice has made to the smooth transition, to the faithful implementation of the Basic Law, to upholding the rule of law and the independence of the Judiciary.
Members should remember that the success of "one country, two systems" depends on each of the jurisdictions understanding the other's legal system. In this respect, the Secretary for Justice has played a key role. She has a deep understanding of both systems. She is able to explain our system to the mainland authorities and to understand how mainland system differs from ours. The process of developing mutual understanding and trust is difficult, but it must be undertaken. The Secretary for Justice has fulfilled this role with sensitivity and persistence. And I have no doubt that her work in this respect will be fruitful.
Madam President, this Council is not a court of law, but it is the place where we make our laws. It is also the place where we synthesize the views of the community in free and open debate. In that sense, it is a court of public opinion. We weigh our words carefully and Members cast their votes conscientiously, knowing that it is not just our own community, but the wider world outside that judges Hong Kong by these words and actions.
Madam President, a motion of no confidence in the Secretary for Justice is a most serious matter. Members should not vote in favour of it merely because they would personally have approached certain questions in a different manner from the Secretary for Justice. The Administration has full confidence in the integrity of the Secretary for Justice, and in her commitment to the rule of law.
Madam President, I urge Honourable Members to say "no" to this motion.
PRESIDENT (in Cantonese): Miss Margaret NG, you may now reply. You have four minutes two seconds out of your original 15 minutes.
MISS MARGARET NG: Madam President, I did not mean to make so many people cry.
I want to thank the Chief Secretary, the Director of Public Prosecutions and the Secretary for Justice for their response, and everyone who has spoken in this debate. Many of these are very strong speeches. I am sure the Administration will take note of them.
I want to thank those who have given me support, even though some may not be voting with me. Indeed, before a single vote is cast, the Administration has already lost. This is a simple motion over a clear issue. I have done no lobbying. The Administration's lobbying, quantum and method are a matter of public record. Why do they have to work so hard to convince Members to have confidence in the Secretary for Justice? Is not the answer obvious?
This is not the place or hour to answer legal or other debating points. This debate is about matters of principle and conscience. However, I would like to just respond to one point.
The Director of Public Prosecutions has done a survey of prosecuting authorities in other jurisdictions. I am not sure what it proves, because the question posed is quite different from the context we have been debating. But I note they asked to remain anonymous, and one just cannot follow up.
I have, however, tried to do my own bit of research, and those I asked are prepared to be named. Mr Dick THORNBURGH, former Attorney General of the United States says, "He knows of no such public interest grounds for non-prosecution in our federal system ...... I am aware of no Department of Justice guidance that would provide the kind of treatment which you referenced."
In the United Kingdom, "Fear of loss of jobs for other people" is not included under "common public interest factors against prosecution" in their Code for Crown Prosecutors. Professor ASHWORTH, the most learned man in criminal law in Oxford University, thinks that it is highly unlikely that this ground would be used against a prosecution in the United Kingdom. To his knowledge, it has never been so used.
Madam President, this debate goes beyond this Chamber and the voting results. The shock to confidence in the administration of justice is a fact. The legal profession's strong censure is a fact. These facts have to be faced even when the debate is over.
I hope, when this debate is over, the whole Administration will be as energetic and determined in rebuilding that confidence as they have been in lobbying against me, and will defend the highest standard in the rule of law with as much devotion as they have defended the Secretary for Justice.
Otherwise, the effect will soon be obvious in the deterioration of the rule of law. The international community will see it. They will note the change and realize that Hong Kong is not the place it was, and they would quietly withdraw from us.
How then would the Chief Executive explain his "victory" this morning? Perhaps, Madam President, as really a defeat?
Thank you, Madam President.
PRESIDENT (in Cantonese): I now put the question to you and that is: That the motion moved by Miss Margaret NG 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)
Miss Margaret NG rose to claim a division.
PRESIDENT (in Cantonese): Miss Margaret NG has claimed a division. The bell will ring for three minutes.
PRESIDENT (in Cantonese): Will Member please proceed to vote.
PRESIDENT (in Cantonese): Have all Members voted?
PRESIDENT (in Cantonese): We seem to have some technical problems here. The computer does not show the result of your voting. We shall have to count the votes manually. Can we try one more time? ...... Could Members try one more time, please first press the "present" button. ...... Has everybody pressed the "present" button?
PRESIDENT (in Cantonese): Now we have the display on the computer screen.
MISS EMILY LAU (in Cantonese): We do not know when this machine will get fixed, Madam President, could you just call out our names for us to tell you how we vote?
PRESIDENT (in Cantonese): We have a procedure for this when the machine is down, and we shall follow that procedure. It seems that though we have managed to sit through 24 hours, the computer could not. (Laughter)
PRESIDENT (in Cantonese): The procedure stipulates, "Those in favour and those against shall be recorded by the Clerk to the Legislative Council. The President of the Legislative Council shall first ask the Members in favour to raise their hands". Will those in favour please raise their hands? Please raise your hands a bit longer so that the Clerk can make a record on your seating plan.
PRESIDENT (in Cantonese): I now read out the names of Members who are in favour of the motion: Mr SZETO Wah, Mr Andrew CHENG, Mr Albert HO, Mr LAU Chin-shek, Mr James TO, Mr CHEUNG Man-kwong, Mr SIN Chung-kai, Mr LAW Chi-kwong, Mr Martin LEE, Dr YEUNG Sum, Mr LEE Wing-tat, Mr Fred LI, Mr Michael HO, Miss Margaret NG, Mr LEUNG Yiu-chung, Miss Christine LOH, Dr LEONG Che-hung, Mr LEE Cheuk-yan, Miss Emily LAU, Miss Cyd HO. Is there any Member who voted in favour and whose name I have not read? Mr Andrew WONG. Any other Member who voted in favour and whose name I have not read? Well, now, will those against please raise their hands?
PRESIDENT (in Cantonese): Hands down, please, and thank you. I now read out the names of Members who are against the motion: Mr Ambrose CHEUNG, Mr Timothy FOK, Dr Raymond HO, Dr David LI, Dr Philip WONG, Mr David CHU, Mr HUI Cheung-ching, Mr Ambrose LAU, Mr FUNG Chi-kin, Miss CHOY So-yuk, Mr WONG Yung-kan, Mr LAU Kong-wah, Mr Gary CHENG, Mr Jasper TSANG, Mr LEE Kai-ming, Dr TANG Siu-tong, Dr LUI Ming-wah, Mr TAM Yiu-chung, Mr YEUNG Yiu-chung, Mr CHAN Kam-lam, Mr CHAN Wing-chan, Miss CHAN Yuen-han, Mr CHAN Kwok-keung, Mr Eric LI, Mr NG Leung-sing, Mr MA Fung-kwok, Prof NG Ching-fai, Mr Bernard CHAN, Mr LAU Wong-fat. Is there any Member who voted against and whose name I have not read out. Good, will Members who abstain from voting please raise their hands?
PRESIDENT (in Cantonese): Members abstaining are: Mrs Selina CHOW, Mr James TIEN, Mrs Miriam LAU, Mr Edward HO, Mr Kenneth TING, Mrs Sohpie LEUNG, Mr HO Sai-chu, Mr Howard YOUNG. Is there any Member who abstained and whose name I have not read out? Is there any Member present who has not voted?
(Only the President raised her hand) (Laughter)
PRESIDENT (in Cantonese): Honourable Members, please bear with us while I tally the votes with the Clerk.
PRESIDENT (in Cantonese): I am sorry, Honourable Members, manual counting is a bit slow.
PRESIDENT (in Cantonese): A total of 59 Members are present. Thirty Members returned by geographical constituencies through direct elections and by the Election Committee are present, and among them 15 were in favour, 13 against, one abstained, and I cast no vote, therefore in this group, we do not have a majority in favour of the motion. The second group is Members returned by functional constituencies, a total of 29 are present, among them, six were in favour, 16 against, seven abstained, therefore, we also do not have a majority in favour. I now declare that the motion is negatived.
NEXT MEETING
PRESIDENT (in Cantonese): I now announce the good news, Council is adjourned until 2.30 pm on Wednesday, 24 March 1999.
Adjourned accordingly at 21 minutes to Three o'clock pm on 11 March 1999.
