LC Paper No. CB(2) 1550/98-99
(These minutes have been seen
by the Administration)
Ref : CB2/H/5
Minutes of the Special House Committee Meeting
held in the Legislative Council Chamber
at 8:30 am on Tuesday, 2 March 1999
Members present :
Dr Hon LEONG Che-hung, JP (Chairman)
Hon Kenneth TING Woo-shou, JP
Hon David CHU Yu-lin
Hon HO Sai-chu, JP
Hon Cyd HO Sau-lan
Hon Albert HO Chun-yan
Dr Hon Raymond HO Chung-tai, JP
Hon Martin LEE Chu-ming, SC, JP
Hon LEE Kai-ming, JP
Dr Hon LUI Ming-wah, JP
Hon NG Leung-sing
Hon Margaret NG Ngoi-yee
Hon James TO Kun-sun
Hon CHEUNG Man-kwong
Hon HUI Cheung-ching
Hon CHAN Kwok-keung
Hon CHAN Yuen-han
Hon Bernard CHAN
Hon CHAN Wing-chan
Hon CHAN Kam-lam
Hon LEUNG Yiu-chung
Hon Gary CHENG Kai-nam
Hon SIN Chung-kai
Dr Hon Philip WONG Yu-hong
Hon Jasper TSANG Yok-sing, JP
Hon Howard YOUNG, JP
Hon YEUNG Yiu-chung
Hon Mrs Miriam LAU Kin-yee, JP
Hon Emily LAU Wai-hing, JP
Hon CHOY So-yuk
Hon Andrew CHENG Kar-foo
Hon Timothy FOK Tsun-ting, JP
Hon LAW Chi-kwong, JP
Hon FUNG Chi-kin
Dr Hon TANG Siu-tong, JP
Members absent :
Dr Hon YEUNG Sum (Deputy Chairman)
Hon James TIEN Pei-chun, JP
Hon Edward HO Sing-tin, JP
Hon Michael HO Mun-ka
Hon LEE Wing-tat
Hon LEE Cheuk-yan
Hon Eric LI Ka-cheung, JP
Dr Hon David LI Kwok-po, JP
Hon Fred LI Wah-ming
Prof Hon NG Ching-fai
Hon Mrs Selina CHOW LIANG Shuk-yee, JP
Hon Ronald ARCULLI, JP
Hon MA Fung-kwok
Hon Ambrose CHEUNG Wing-sum, JP
Hon Christine LOH Kung-wai
Hon Mrs Sophie LEUNG LAU Yau-fun, JP
Hon Andrew WONG Wang-fat, JP
Hon WONG Yung-kan
Hon LAU Chin-shek, JP
Hon LAU Kong-wah
Hon LAU Wong-fat, GBS, JP
Hon Ambrose LAU Hon-chuen, JP
Hon SZETO Wah
Hon TAM Yiu-chung, JP
Public Officers attending :
- Mrs Regina IP, JP
- Secretary for Security
- Mr Ambrose LEE, JP
- Director of Immigration
- Mr Ian WINGFIELD
- Law Officer (Civil Law)
- Mr F W H HO, JP
- Commissioner for Census and Statistics
- Mr Timothy TONG
- Deputy Secretary for Security
- Miss Cathy CHU
- Principal Assistant Secretary for Security
Clerk in attendance :- Mrs Justina LAM
- Clerk to the House Committee
Staff in attendance :- Mr Jimmy MA,
- JP Legal Adviser
- Mr LEE Yu-sung
- Senior Assistant Legal Adviser
- Mr LAW Wing-lok
- Chief Assistant Secretary (2)5
- Miss Mary SO
- Senior Assistant Secretary (2)8
1. The Chairman welcomed representatives from the Administration to the meeting. He said that the Secretary for Justice (SJ) had extended her apology through the Director of Administration (D of Adm) for not being able to attend the meeting to brief members on her recent trip to Beijing and the judgment of the Court of Final Appeal (CFA) delivered on 26 February 1999 because she had to attend the meeting of the Executive Council (ExCo).
2. Law Officer (Civil Law) (LO(CL)) tabled the transcript of the statement made by SJ at the airport on her return from Beijing in the evening of 13 February 1999 and said that he had nothing further to add. However, he would be happy to answer questions regarding the Government's application to the CFA for clarification of the parts of the judgment relating to the National People's Congress and its Standing Committee.
3. Miss Emily LAU expressed regret and anger over SJ's absence. She said that given the wide public concern, it was incumbent upon SJ to explain to the people of Hong Kong what the Government's stance was on the CFA's judgment and what had been discussed during her recent trip to Beijing. The fact that SJ had merely provided members with a transcript of her press statement, rather than coming to the meeting to brief members, showed the Administration's blatant disrespect for the legislature.
4. In response, LO(CL) pointed out that the date suggested by the Administration for the special meeting was 3 March 1999 rather than 2 March 1999, as the latter coincided with the date of the meeting of ExCo.
5. The Chairman clarified that he was not aware of the 3 March 1999 date proposed by the Administration. He further said that immediately after the House Committee meeting on 26 February 1999, he had approached the Administration suggesting that the special meeting be held on 27 February 1999. The Administration agreed to consider the proposed date, but eventually turned it down. At about noon on 27 February 1999, the Administration informed him that 1 March 1999 was also not possible. It was not until about 2:25 pm on 1 March 1999 that D of Adm confirmed that the special meeting could be held in the morning of 2 March 1999.
6. Assistant Secretary General 2 added that in the course of her discussion with D of Adm in the morning of 1 March 1999 over the date for the special meeting, D of Adm did mention the morning of 3 March 1999 as a possible date to hold the special meeting. However, no mention was made by D of Adm that the date would be acceptable to SJ. Assistant Secretary General 2 further explained that D of Adm was told that there were other committee meetings already scheduled for the morning of 3 March 1999.
7. The Chairman suggested that as LO(CL) was present at the meeting, discussion on SJ's recent trip to Beijing and the CFA's judgment delivered on 26 February 1999 should be proceeded with.
8. Miss Margaret NG disagreed with the Chairman's suggestion. She considered that questions concerning SJ's recent trip to Beijing and her contacts with the Chief Justice before the motion for clarification had been filed with the CFA could only be answered by SJ herself. Miss NG was of the view that discussion on these two topics should be postponed until such time when SJ was able to come to brief members.
9. Miss Emily LAU proposed that LO(CL) should brief members on the Government's application to the court for clarification since he was involved in filing the application. Mr James TO expressed support.
10. Miss NG responded that it was a matter of principle that no other public officer should speak on SJ's behalf on these two topics. She further pointed out that if discussion on Government's application for clarification was held now, this might give SJ an excuse for not answering certain questions on the grounds that they had already been answered.
11. Mr CHEUNG Man-kwong concurred with Miss NG. He further remarked that SJ had displayed reluctance to attend committee meetings of the Council. This was evidenced by the fact that it was not until repeated requests had been made by the Panel on Administration of Justice and Legal Services that SJ agreed to appear before the Panel to explain her decision not to prosecute Madam Sally AW in the Hong Kong Standard case.
12. The Chairman suggested and members agreed to put to vote the question of whether discussion on the two items of SJ's visit to Beijing and the CFA's judgment of 26 February 1999 should be deferred. The result was 17 members voted in favour of deferral and none voted against.
13. Mr Martin LEE suggested that the Administration should be asked to give a definite date for SJ to come to brief members, before the conclusion of the meeting. Members agreed. The Chairman instructed the Secretariat to approach the Administration immediately.
[Note : The Administration was unable to provide a definite date by the time the meeting closed at 10:40 am.]
14. The Chairman then proceeded to invite the Secretary for Security (S for S) to brief members on the work progress of the special task force headed by the Chief Secretary for Administration.
15. S for S said that the priority tasks of the special task force were to work out the new Certificate of Entitlement (C of E) application procedures, ascertain the number of Mainland persons eligible for right of abode (ROA) in Hong Kong, and assess the implications of their entry on the provision of services and other infrastructure facilities. In order to come up with a reliable estimate on the number of eligible persons, the Census and Statistics Department (C&SD) would conduct a household survey on the number of Mainland children and spouses of Hong Kong residents from March to May 1999. S for S then asked the Commissioner for Census and Statistics (C for C&S) to brief members on the implementational details of the survey.
16. C for C&S said that the C&SD would conduct a special enquiry on the number of Mainland children and spouses of Hong Kong residents via the General Household Survey (GHS) from 1 March to end of May 1999. The GHS was conducted on a continuous basis to collect information on the labour force, unemployment and underemployment. Concurrently, in order to cater for the data needs of other government departments and policy bureaux, the C&SD also regularly conducted special topic enquiries to collect specifically required data via the GHS.
17. C for C&S explained that about 20 000 households would be selected for the special enquiry. The selected households would first be asked questions in the core part of the GHS before coming to the special enquiry part. The objective of the special enquiry was to find out the number and personal particulars of Hong Kong residents with spouses/children in the Mainland, and to collect information on the spouses and children such as their age, sex, education level and occupation. If these Mainland children also had their own children living in the Mainland, information on the latter would be collected as well.
18. C for C&S said that two approaches would be adopted in asking the question on children born out of wedlock. The first was the direct questioning approach which would be used on one half of the respondents in the sample. In adopting this approach, the enumerators would try their best to conduct the interviews with the respondents in a private environment in order that the respondents could answer the questions freely.
19. C for C&S further said that the other approach, which would be used on the other half of the respondents in the sample to collect simple information on Mainland children born out of wedlock, was the relatively sophisticated statistical method called the "randomized response technique". Under this technique, a respondent would go through a random process to first determine whether he/she would answer the "sensitive" question on children born out of wedlock or another "non-sensitive" question on an ordinary matter such as the number of taxi rides taken in the previous week. There was no need for the respondent to inform the interviewer which question he/she was answering, so that the interviewer would not know the meaning of the answer provided by the respondent. Hence, the respondent would feel comfortable to provide true information. The aggregate pattern pertaining to the "sensitive" question based on responses to the "sensitive" and "non-sensitive" questions could be derived statistically from the data provided by all respondents. Based on the information provided by the enumerated households, the situation related to the entire population could be inferred.
20. Mr CHEUNG Man-kwong expressed concern about the accuracy of information being collected on children born out of wedlock. C for C&S responded that it was very difficult to attain 100% accuracy in any statistical survey, but he believed that specially trained and well-experienced enumerators using the randomized response technique would be able to collect reasonably reliable data.
21. The Chairman enquired whether respondents were required by law to provide true information. C for C&S responded that the C&SD relied on the cooperation of respondents to furnish accurate information. It would be very difficult to prosecute successfully someone for providing false or inaccurate information. A better approach would be to educate the public that it was their civic responsibility to cooperate. The skills of the enumerators to put the respondents at ease would also help to reduce the respondents' inhibitions in providing true information. He added that the C&SD would keep all information collected in strict confidence and would not disclose it to any other government departments or outside parties.
22. In reply to the Chairman's enquiry about the survey method used in similar surveys being conducted in the Mainland, S for S said that the Administration would approach the Mainland authorities to obtain more details about their survey method.
23. The Chairman further asked when the bill to amend the Immigration Ordinance to reflect the CFA's judgment would be introduced. S for S replied that it would not be necessary to amend the Ordinance. However, the new C of E application procedures would be published in the form of a Notice in the Gazette. She pointed out that new legislative measures might need to be introduced requiring Mainland children born out of wedlock to undergo DNA tests to establish the child-parent relation with their resident parents in Hong Kong.
24. In reply to Mr Howard YOUNG's enquiry about the measures to be adopted by the Administration to facilitate the orderly entry of C of E holders, S for S said that the Government had to admit eligible Mainland residents within a reasonable timeframe in compliance with the CFA's judgment. Hitherto, the Government had relied on the 150 daily quota under the One-way Permit (OWP) system to regulate the inflow of Mainland migrants. The current daily quota of 150 could no longer be enforced in the wake of the CFA's judgment, as the Government would be open to legal challenge if it used administrative measures to delay the entry of eligible persons. She further said that consideration would be given to according priority to young children and children who were not being looked after by either of their parents.
25. Mr YOUNG further enquired whether the Administration would impose additional eligibility criteria on the new arrivals in order to lessen the pressure on the provision of services in the social welfare and housing fields. S for S said that she would convey Mr YOUNG's view to the special task force for consideration.
26. Mr CHAN Kam-lam enquired whether the number of Mainland residents eligible for ROA would be as high as one million to three million as reported in the press. S for S responded that she could not confirm the accuracy of such reports which, in her view, were pure speculation.
27. In reply to Mr CHAN's further enquiry about the legal status of Mainland children born out of wedlock to Hong Kong residents, S for S said that these children would enjoy the same rights as those of children born in wedlock. LO(CL) supplemented that under the Parent and Child Ordinance, there was no problem with the legal status of children born out of wedlock. A matter of concern might be the question of custody if the resident father in Hong Kong did not want to have custody of the child upon his/her arrival in Hong Kong.
28. Mr LAW Chi-kwong said that in conducting the household survey, the C&SD should take into account that many Hong Kong residents with spouses and very young children in the Mainland were elderly persons living in singleton homes and cubicles. Moreover, the C&SD should not assume that Hong Kong residents with children in the Mainland were all male. C for C&S noted Mr LAW's views and said that the survey would also cover female Hong Kong residents.
29. Referring to Article 36 of the Basic Law (BL), Mr LAW was of the view that Mainland residents eligible for ROA who arrived in Hong Kong should have the same right to social welfare as that enjoyed by Hong Kong residents. He added that all C of E applications must be dealt with in strict confidence.
30. S for S responded that all immigration matters were treated in the strictest confidence and it was Government's policy to abide by the six data protection principles stipulated in the Personal Data (Privacy) Ordinance. She further said that she would convey to the relevant bureaux Mr LAW's views on the provision of services to the new arrivals.
31. Mr James TO said that as a large number of DNA tests would have to be undertaken, he was doubtful whether the Government Laboratory had the capacity to cope with the workload. He added that tight security measures should be put in place to ensure that DNA samples would not be tampered with while they were being delivered from the Mainland to the Immigration Department (ImmD).
32. S for S responded that consideration would be given to engaging outside laboratories through the open-tender system to undertake DNA tests as the capacity of the Government Laboratory was limited. The question of whether a C of E applicant would be required to pay a fee to meet the cost of the DNA test would also be considered. She agreed with Mr TO's view that there should be tight security measures to prevent the tampering of DNA samples and said that detailed DNA testing procedures to be adopted were being worked out.
33. The Director of Immigration (D of Imm) said that the most up-to-date DNA testing equipment available in the market, which involved the testing of saliva samples instead of blood samples, could perform several hundred tests in a day. Such a technique would produce fast and accurate results if the saliva samples of the child and parents were obtained. He added that new legislation might need to be introduced to provide penalty for submitting falsified samples for testing.
34. Mr TO further suggested that the ImmD should consider setting up offices in the Mainland to take saliva samples from C of E applicants. S for S replied that she had already explained at the special House Committee meeting on 5 February 1999 why a similar proposal put forward by another Member was not practical. She emphasized that there was a need to coordinate with the Mainland authorities to work out the DNA test procedures.
35. Mr Albert HO asked whether there had been a noticeable increase in the number of C of E applications following the CFA's judgment. S for S responded that the CFA's judgment was not widely publicized in Guangdong, Fukien and other provinces in the Mainland. D of Imm added that as the C of E application procedures published in July 1997 had been nullified by the CFA's judgment, the ImmD had asked the Mainland authorities not to accept C of E applications until the new procedures had been formulated. In the meantime, the ImmD would continue to process the 16 000 applications received prior to the CFA's judgment.
36. Mr HO also asked when the Administration would be able to announce a preliminary plan for the provision of services to cater for the orderly intake of eligible Mainland residents in the coming years. S for S replied that the Administration would need to await the findings of the C&SD survey before it was in a position to formulate long term plans. Notwithstanding this, the policy bureaux concerned would use the findings of the C&SD survey conducted from November 1995 to January 1996 as the basis and start making projections on the worst-case and best-case scenarios of the impact of the new arrivals on existing programmes and services,.
37. Mr HO further asked whether there had been an increase in the number of illegal immigrants or Mainland ROA claimants with Two-way Permits overstaying in Hong Kong since the delivery of the CFA's judgment. In reply, S for S said that the Hong Kong Police Force had been working closely with its counterparts in the Mainland in stepping up surveillance on both sides of the border. No sign of an upsurge in the number of Mainland residents entering Hong Kong illegally had so far been detected. She emphasized that illegal migrants who were caught would be repatriated back to the Mainland in accordance with the existing policy. Removal orders would be made requiring overstayers to return to the Mainland.
38. Miss Emily LAU asked whether the Administration was considering to amend the Basic Law to the effect that fewer Mainland residents would be eligible for ROA. S for S responded that the Administration had not discussed this issue. S for S added that she could not rule out the possibility that after the number of eligible persons had been ascertained and comprehensive assessments of the impact on the provision of services made, the special task force would consider long term solutions to tackle the problem.
39. Miss Emily LAU said that there might well be some Hong Kong residents who wished to provide details on their Mainland children and spouses voluntarily. She asked whether the C&SD would include such persons in the household survey.
40. C for C&S explained that the sample of the survey covered about 20 000 households which were selected in accordance with a scientifically designed sampling scheme. In addition to the questions on the number and personal particulars of Mainland children and spouses of Hong Kong residents, the respondents would also be asked questions as to whether they wished their eligible children/grandchildren to come to Hong Kong, as well as questions on their perception of the intention of their eligible children/grandchildren to come to Hong Kong. He further said that the information provided by persons outside the sample would not be of much use as they were not selected from a scientifically designed sample.
41. In reply to Miss LAU's further enquiry on whether the ImmD would start accepting new C of E applications, S for S said that the new C of E application procedures were still being worked out and a further meeting with the Mainland authorities would be held later in the month.
42. Miss CHAN Yuen-han said that under the CFA's judgment, eligible Mainland children born to Hong Kong permanent residents would be eligible for ROA. She was of the view that the Administration should consider requesting the Mainland authorities to give priority to the mothers under the OWP system to arrive earlier for family reunion reasons. She also asked whether the Administration had considered introducing legislation to tackle the problem of Hong Kong men who already had wives in Hong Kong marrying Chinese women in the Mainland.
43. In reply, S for S said that currently out of the 150 daily quota under the OWP system, 60 were reserved for children with ROA and 30 for long-separated spouses. Whether some special arrangements would be made to enable the mothers of eligible Mainland children to arrive earlier would depend on the number of eligible persons and the ability of the Government to cope. She further said that bigamy was a criminal offence under Hong Kong law.
44. Miss CHAN further said that some of the Mainland children born to Hong Kong permanent residents were adults and asked whether the Administration had considered the impact of their arrival on the employment situation in Hong Kong. S for S responded that the special task force would address the implications of the arrival of eligible Mainland persons on the labour market.
45. Mr CHAN Wing-chan said that several hundreds of thousand of Mainland ROA claimants would be expected to apply for a C of E following the announcement of new application procedures. However, the Mainland authorities might not have adequate resources to deal with such a large number of applications within a reasonable period of time. This might lead to the institution of legal proceedings against the Government for not taking appropriate measures to ensure that eligible Mainland children would be able to arrive in an orderly and timely manner. He asked whether the Administration would coordinate with the Mainland authorities to tackle the problem. S for S replied that the Administration would put in place new procedures to facilitate the processing of C of E applications within a reasonable period of time in compliance with the CFA's judgment. She added that the D of Imm would hold further discussions with the Mainland authorities to work out the detailed arrangements to be adopted.
46. Mr Andrew CHENG hoped that on the next occasion when S for S reported to Members the work progress of the special task force, she would be able to give a clear timeframe for the formulation of concrete plans for the provision of services in the housing, education, employment and medical fields.
47. Mr CHENG also asked C for C&S to explain how the "non-sensitive" question on the number of taxi rides mentioned earlier by him would be related to the "sensitive" question on the number of Mainland children born out of wedlock. C for C&S explained that there was no relationship between the two questions. According to the statistical theory underlying the randomized response technique, the C&SD could derive, with appropriate computational formulae, the aggregate pattern pertaining to the sensitive question based on responses to the "sensitive" and "non-sensitive" questions.
48. Dr Philip WONG asked whether the C&SD would assess the number of children born to those Mainland residents who were born to Hong Kong residents out of wedlock, as well as the annual growth rate of Mainland children born to Hong Kong residents out of wedlock.
49. In reply, C for C&S said that enumerators using the direct questioning approach would, in addition to asking the question on children born out of wedlock, also ask the respondents to answer a question on whether their Mainland children born of wedlock had children of their own. Data obtained from this approach was likely to be underestimated. However, other factors such as the birth rate of Mainland residents would also be taken into account in assessing the total number of eligible persons. He reiterated that the findings of any survey could not be 100% accurate.
50. C for C&S further said that the C&SD would not have any data on the annual growth rate of Mainland children born to Hong Kong residents out of wedlock. He reckoned that the number of eligible Mainland residents totalling one million to three million as speculated in the media could well be conceptually the aggregate estimate of several generations of eligible and to-be-eligible Mainland offsprings added together.
51. Miss Margaret NG was of the view that the DNA tests should not be used as the only means to establish the relationship between Mainland children born out of wedlock and their resident parents in Hong Kong, because such a verification procedure might be subject to legal challenge. She further said that the Administration should formulate the new C of E application procedures as soon as possible, and that once these procedures had been promulgated, measures should be put in place to ensure that the applications would be determined within a reasonable period of time in compliance with the CFA's judgment. She pointed out that not much progress had been made in this regard since the delivery of the CFA's judgment on 29 January 1999 and asked whether the Administration was stalling the matter while contemplating to amend the Basic Law.
52. S for S shared Miss NG's view that a new set of lawful and reasonable application procedures should be put in place as soon as possible. She stressed that the drawing up of the new application procedures was not being delayed and that the D of Imm had been working closely with the Mainland authorities to work out the details. Further meetings with the Mainland authorities would be held after the Lunar New Year holidays and the conclusion of the annual session of the National People's Congress. D of Imm added that it would take time for the ImmD and the Mainland authorities to work out the new application and verification procedures for the two new categories of persons who became eligible for ROA as a result of the CFA's judgment.
53. Miss NG asked whether any legislative amendments were necessary to give effect to the CFA's judgment. The Legal Adviser responded that in its judgment delivered on 29 January 1999, the CFA had declared certain provisions in the Immigration (Amendment) No.2 Ordinance and the Immigration (Amendment) No.3 Ordinance null and void. He added that where the application of certain provisions of a legislative measure had changed, such changes should be made through the normal legislative process. In response to Miss NG's request that a list of the nullified parts of the No.2 and No.3 Ordinances be set out in a paper for members' reference, the Legal Adviser said that the Legal Service Division would provide marked-up copies of the relevant sections in the Immigration Ordinance for members' information.
54. Mr CHENG Kai-nam said that under BL 36, the new arrivals would enjoy the same right to social welfare as that enjoyed by Hong Kong residents. However, unlike Hong Kong residents, the new arrivals had to meet the seven-year residency rule before they would become eligible for public rental housing. He asked whether the special task force had considered the problem arising from the disparity in treatment of two categories of permanent residents in the planning the provision of services. He further suggested that the bureau secretaries concerned should separately explain to Members how this problem would be addressed.
55. Mr Martin LEE echoed Mr CHENG's view and pointed out that BL 36 stipulated that Hong Kong residents would have the right to social welfare. Mr LEE added that according to BL 24, Hong Kong residents included permanent residents and non-permanent residents. However under BL 26, only permanent residents of HKSAR would have the right to vote and the right to stand for election. Mr LEE was of the view that the Administration should look into the problem concerning the rights of permanent residents and non-permanent residents.
56. Mr LEE further said that the court case regarding the ROA issue under BL 24(3) commenced sometime in 1997. The Administration should have made contingency plans at that time for the provision of housing, education and other services to cater for the phased intake of eligible Mainland residents, in anticipation of the possibility that the Court might not rule in the Government's favour, particularly in view of the retrospectivity issue. He expressed disappointment that the response of the Chief Executive and other bureau secretaries to the CFA's judgment had not been as positive and forthcoming as that of the S for S, which had led to the public becoming displeased with the CFA's judgment.
57. S for S replied that the Administration had considered the possibility that the Court would rule the retrospective provision in the No.3 Ordinance unconstitutional and it had therefore taken the 1000-odd persons concerned into account in formulating its plans for the provision of services when the C of E Scheme was introduced. The Administration had also worked closely with the Mainland authorities to strengthen border surveillance to prevent an influx of Mainland residents entering Hong Kong illegally.
58. S for S further said that the Administration did not have an estimate of the number of Mainland children whose resident parents in Hong Kong only acquired permanent resident status after their birth, nor did it have any data on the number of Mainland children born out of wedlock to Hong Kong permanent residents. It was therefore not possible to formulate any contingency plans to cater for the intake of these two categories of persons. Moreover, the Administration considered it inappropriate to conduct household surveys on the number of these Mainland children in the absence of a court ruling that such children were eligible for ROA under BL 24(3).
59. Miss Cyd HO said that many Mainland residents had waited for a long time but their C of E applications had still not been determined. She suggested that the Administration should discuss with the Mainland authorities how the application procedures could be better coordinated in order that eligible Mainland residents would be able to come to Hong Kong within a reasonable period of time. She further suggested that the Administration should consider setting an office in the Mainland to handle appeals or complaints by Mainland residents regarding their C of E and OWP applications. She was also of the view that in formulating the new C of E application procedures, the Administration should ensure that there were adequate checks to prevent corruption opportunities.
60. In reply, S for S said that the Administration would hold further discussions with the Mainland authorities to work out the detailed arrangements for handling the expected large number of application from Mainland ROA claimants. She added that we would consider whether, and if so how, priority should be given to certain categories of applicants on humanaritian grounds, and that we aimed to put in place as soon as possible a set of new application procedures with a high degree of transparency. S for S further said that Mainland C of E applicants could make enquiries or lodge appeals to the ImmD in Hong Kong regarding the progress of their applications. LO(CL) added that a Mainland C of E applicant could appoint someone in Hong Kong to act or lodge an appeal on the applicant's behalf.
61. Miss Margaret NG said there might be legal challenge if the issuance of C of Es was linked to the granting of OWPs. She added that the CFA's judgment did not impose an obligation on the Government to introduce measures to enable eligible Mainland residents to enter Hong Kong as soon as possible. The CFA's judgment simply stated that C of E applications should be processed within a reasonable period of time.
62. LO(CL) responded that it was the responsibility of the D of Imm to ensure that effective application procedures would be adopted by the Mainland authorities, which would act as an agent of the Imm D, to implement the CFA's judgment. The Chairman added that it was mentioned in the judgment that if there was unlawful delay by the Director in coming to a decision whether to accept or reject an application, the person concerned, although in the Mainland, could invoke public law remedies in Hong Kong's courts.
63. There being no further questions from members, the Chairman thanked the representatives of the Administration for attending the special meeting.
64. The Chairman informed members that the Secretariat would continue to liaise with the Administration on a date and time convenient to SJ to brief Members on her recent trip to Beijing and the CFA's judgment delivered on 26 February 1999.
65. The meeting ended at 10:40 am.
Legislative Council Secretariat
25 March 1999
