LC Paper No. CB(2) 170/98-99

Ref : CB2/H/5

Minutes of the Special House Committee Meeting
held at Conference Room A of the Legislative Council Building
at 10:45 am on Wednesday, 5 August 1998

Members present :

Dr Hon LEONG Che-hung, JP, House Committee Chairman (in the chair)
Dr Hon YEUNG Sum, House Committee Deputy Chairman
Hon Kenneth TING Woo-shou, JP
Hon James TIEN Pei-chun, JP
Hon Cyd HO Sau-lan
Hon Albert HO Chun-yan
Hon LEE Wing-tat
Hon Martin LEE Chu-ming, SC, JP
Hon LEE Kai-ming, JP
Dr Hon David LI Kwok-po, JP
Dr Hon LUI Ming-wah, JP
Hon NG Leung-sing
Prof Hon NG Ching-fai
Hon Margaret NG Ngoi-yee
Hon MA Fung-kwok
Hon James TO Kun-sun
Hon Ambrose CHEUNG Wing-sum, JP
Hon CHAN Kwok-keung
Hon CHAN Yuen-han
Hon CHAN Wing-chan
Hon Mrs Sophie LEUNG LAU Yau-fun, JP
Hon LEUNG Yiu-chung
Hon Gary CHENG Kai-nam
Hon Andrew WONG Wang-fat, JP
Hon WONG Yung-kan
Hon Jasper TSANG Yok-sing, JP
Hon Howard YOUNG, JP
Hon LAU Kong-wah
Hon Ambrose LAU Hon-chuen, JP
Hon SZETO Wah
Hon LAW Chi-kwong, JP
Hon TAM Yiu-chung, JP

Members absent :

Hon David CHU Yu-lin
Hon HO Sai-chu, JP
Hon Edward HO Sing-tin, JP
Hon Michael HO Mun-ka
Dr Hon Raymond HO Chung-tai, JP
Hon LEE Cheuk-yan
Hon Eric LI Ka-cheung, JP
Hon Fred LI Wah-ming
Hon Mrs Selina CHOW LIANG Shuk-yee, JP
Hon Ronald ARCULLI, JP
Hon CHEUNG Man-kwong
Hon HUI Cheung-ching
Hon Christine LOH Kung-wai
Hon Bernard CHAN
Hon CHAN Kam-lam
Hon SIN Chung-kai
Dr Hon Philip WONG Yu-Hong
Hon YEUNG Yiu-chung
Hon CHIM Pui-chung
Hon LAU Chin-shek, JP
Hon LAU Wong-fat, GBS, JP
Hon Mrs Miriam LAU Kin-yee, JP
Hon Emily LAU Wai-hing, JP
Dr Hon TANG Siu-tong, JP
Hon CHOY So-yuk
Hon Andrew CHENG Kar-foo
Hon Timothy FOK Tsun-ting, JP

Clerk in attendance :

Mrs Justina LAM

Clerk to the House Committee

Staff in attendance :

Mr Ricky C C FUNG, JP

Secretary General

Mr Jimmy MA, JP

Legal Adviser

Mr LAW Kam-sang, JP

Deputy Secretary General

Mr LEE Yu-sung

Senior Assistant Legal Adviser

Ms Pauline NG

Assistant Secretary General 1

Mrs Betty LEUNG

Assistant Secretary General 3 (Acting)

Miss Kathleen LAU

Chief Public Information Officer

Mr LAW Wing-lok

Chief Assistant Secretary (2)5

Miss Mary SO

Senior Assistant Secretary (2)8

1.The Chairman suggested and members agreed to ask Hon Mrs Sophie LEUNG and Hon LAU Chin-shek, members of the Disaster Relief Fund Advisory Committee, to request the committee to consider providing aid to flood victims in the Mainland.	Disaster Relief Fund

2. The Chairman said that the purpose of the special meeting was to discuss the case of Hon CHIM Pui-chung who had been convicted of conspiracy to forge and was sentenced to imprisonment for three years on 3 August 1998.

3. The Chairman further said that under previous electoral legislation, a Legislative Council (LegCo) Member would be removed from office immediately if he or she was convicted of a criminal offence and sentenced to imprisonment for three months or more. However, under Article 79(6) of the Basic Law, the President would declare that a LegCo Member was no longer qualified to hold office if he or she was sentenced to imprisonment for one month or more for a criminal offence and was relieved of his or her duties as a LegCo Member by a motion passed by two-thirds of the LegCo Members present. He added that as Mr CHIM's case had aroused wide public concern, it was important that Members should expeditiously consider Mr CHIM's case under Article 79(6) in order to maintain the integrity and dignity of the Council.

4. The Chairman asked the Legal Adviser to provide clarifications on the procedure to remove a LegCo Member from office under Article 79(6), particularly in regard to the following aspects -

1. whether Mr CHIM could be removed from office while pending an appeal hearing;

2. what voting methods should be adopted on a Member's motion to relieve Mr CHIM of his duties as a LegCo Member; and

3. whether Mr CHIM would continue to enjoy his rights and privileges as a LegCo Member before he was removed from office.

5. As regards paragraph 4(a), the Legal Adviser explained that there was no stipulation in Article 79(6) as to when a motion to relieve a convicted LegCo Member of his or her duties should be moved. It would be up to Members to determine whether, and if so when, such a motion should be moved to relieve Mr CHIM of his LegCo duties. The Legal Adviser further said that a motion under the Article could be moved even though an appeal had been lodged by the Member concerned.

6. As regards paragraph 4(b), the Legal Adviser said that Annex II of the Basic Law stipulated that unless otherwise provided for in the Basic Law, the passage of motions introduced by individual Members would require a simple majority vote of each of the following two groups of Members present -

1. Members returned by functional constituencies;

2. Members returned by geographical constituencies through direct elections and by the Election Committee.

The Legal Adviser was of the view that the above-quoted voting method set out in Annex II was displaced by the provision in Article 79(6) in respect of a motion to relieve a Member of his or her duties. The expression "a motion passed by two-thirds of the Members of the Legislative Council present" fell within the category of provisions "otherwise provided for" as specified in Annex II. It had the effect of displacing the Annex II requirement of a simple majority vote of each of the two groups of Members present. The Legal Adviser added that the Rules of Procedure had not, however, set out the voting procedure for a Member's motion moved under the Article.

7. As regards paragraph 4(c), the Legal Adviser said that Mr CHIM would continue to enjoy the rights and privileges of a LegCo Member so long as he was still a LegCo Member. He added that Mr CHIM could speak at the debate if a motion in respect of his case was moved under Article 79(6), provided that he was granted leave of absence by the authority concerned to attend the Council meeting.

8. In response to Mr Albert HO, the Legal Adviser said that the moving of a motion to disqualify a Member under Article 79(6) was not mandatory. It would be up to Members to determine whether such a motion should be moved having regard to the circumstances of the case in question. If such a motion was moved and passed by two-thirds of the Members present, the President would then have to declare that the Member concerned was no longer qualified for the office in accordance with the Article. In reply to Mr HO's further enquiry about a case of a disqualified District Board member who was successful in his election petition, the Legal Adviser said that he did not have ready information about the case. Mr Albert HO also expressed the view that Mr CHIM should be permitted to engage a legal representative to speak on his behalf, or to make written representations to the Council, when a motion to disqualify him was debated at a meeting of the Council.

9. Mr Martin LEE said that he held a different view to that of the Legal Adviser regarding the voting method for a motion moved under Article 79(6). He considered that the two-thirds majority vote required under Article 79(6) and the voting method for Members' motions in Annex II might not be mutually exclusive. Article 79(6) did not have the effect of displacing Annex II in its entirety but only in relation to those parts which were contrary to Article 79(6). He added that the Rules of Procedure did not specify the voting procedure for the removal of a Member from office. He cautioned that a decision made by the Council on a motion moved under Article 79(6) could be challenged in court. Miss Cyd HO shared Mr LEE's view.

The Legal Adviser responded that he shared Mr LEE's view that the Rules of Procedure had not provided the procedure in respect of a motion to remove a Member from office under Article 79(6). He added, however, that the Council could make its own rules to deal with such a situation, provided that the rules did not contravene the Basic Law.

10. Messrs TAM Yiu-chung and CHENG Kai-nam expressed agreement with the Legal Adviser's interpretation of Article 79(6). They said that the provisions set out respectively in the Article, in Annex II of the Basic Law and in Rule 46 of the Rules of Procedure were sufficiently clear to indicate that the passage of a Member's motion to remove a Member from office required a two-thirds majority of the Members present.

11. In reply to Mr TAM Yiu-chung, the Legal Adviser said that the moving of a motion to relieve Mr CHIM of his duties as a LegCo Member pending the outcome of his appeal would not set a binding precedent, given that the circumstances of this case and future cases, if any, would be different. Mr CHIM's case would simply provide Members with a useful reference should there be the need to deal with other cases under Article 79(6) in the future.

12. Miss Margaret NG said that where a Member was convicted of a criminal offence and sentenced to imprisonment for one month or more, a motion should be moved to disqualify the Member in order to maintain the integrity of the Council and to ensure that the operation of the Council would not be affected in any way. In her view, the moving of such a motion was not a discretionary matter and there was no reason to delay the moving of a motion in respect of Mr CHIM's case in accordance with Article 79(6).

13. Mr TAM Yiu-chung said that the moving of a motion to remove a Member from office should not be regarded as mandatory. To safeguard the interests of individual Members, Members should have the discretion to determine whether, in the light of the circumstances of the case in question, a motion should be moved to disqualify a Member convicted of a criminal offence and sentenced to imprisonment for one month or more.

14. Mr Howard YOUNG said that if there was general agreement amongst Members that a motion should be moved to remove Mr CHIM from office, consideration could be given to asking the Administration to move such a motion. Annex II of the Basic Law stipulated clearly that the passage of a Government motion required a simple majority vote of the Members present, hence the question of whether the bicameral voting method would apply would not therefore arise. He added that he agreed with Mr Martin LEE that the Council should avoid taking a decision, which could be subject to legal challenge, in haste.

15. Mr Albert HO asked whether a motion to disqualify a LegCo Member under Article 79(6) could be moved by a public officer. In response, the Legal Adviser explained that Article 79(6) did not prohibit a public officer from moving a motion to relieve a Member of his or her duties as a LegCo Member. However, whether it would be appropriate for a public officer to do so would be a matter for Members and for the Administration to consider.

16. Mr Ambrose CHEUNG said that voting methods had been stipulated in Articles 49, 52(2), 73(9), 79(6) and (7) and 159 of the Basic Law which were included as exceptions in Rule 46 of the Rules of Procedure. However, no specific voting method was prescribed in Article 90 which concerned the endorsement of appointment or removal of judges of the court by the Council. He asked whether this could be interpreted to mean that the passage of motions under Article 90 should follow the voting method set out in Annex II of the Basic Law and therefore Article 90 was not included as one of the exceptions in Rule 46 of the Rules of Procedure.

17. The Legal Adviser referred members to Article 73(7) and explained that as such appointments would normally be presented to the Council in the form of resolutions by the Administration, the voting method for Government bills stipulated in Annex II of the Basic Law and reflected in Rule 46(1) of the Rules of Procedure would apply.

18. Mr LEE Wing-tat said that he did not consider it appropriate for Members to defer action on dealing with Mr CHIM's case pending his appeal. He asked whether the procedure for dealing with a motion under Article 79(6) should be set out in the Rules of Procedure before Members proceeded with making arrangements to hold the debate. He also asked whether the President could, under Rule 92 of the Rules of Procedure, determine the procedure to be adopted.

19. In response, the Legal Adviser said that an ideal situation would be for the procedural arrangements to be provided for in the Rules of Procedure. Nevertheless, Rule 92 already stipulated that in any matter not provided for in the Rules of Procedure, the practice and procedure to be followed in the Council would be such as would be decided by the President. He added that the President would take into account Members' views in determining the detailed procedure to be adopted.

20. Mr SZETO Wah said that the Council itself had no discretionary power to determine whether or not a motion should be moved to remove a Member from office under Article 79(6). Such discretionary power vested with individual Members. Upon a Member giving notice to move such a motion, the Council had to deal with the motion in accordance with the procedure as prescribed in the Basic Law and the Rules of Procedure.

21. Mr SZETO Wah further said that the transcript of the verdict should be provided to Members for reference before the motion to remove Mr CHIM from office was debated at a Council meeting. Mr Martin LEE said that it was necessary to also obtain the transcript of the reasons for sentencing. The Chairman said that the indictment and transcript of the verdict and reasons for sentencing were being obtained by the LegCo Secretariat. They would be circulated to Members for the purpose of considering Mr CHIM's case under Article 79(6). Members agreed.

22. Mr Andrew WONG sought clarifications on the following points -

1. whether a motion to disqualify a convicted Member could be moved if the Member was given a suspended sentence;

2. whether a motion to remove a Member from office was amendable and if so, what voting method should be used for the amendment(s); and

3. whether the sub judice rule in Rule 41(2) of the Rules of Procedure would apply to the wording of the motion to remove Mr CHIM from office, to the wording of any amendment to the motion and to the content of Members' speeches delivered at the debate.

23. As regards paragraph 23(a), the Legal Adviser explained that a motion could be moved to remove a Member from office if he or she was convicted of a criminal offence and sentenced to imprisonment for one month or more, irrespective of whether the Member was given a suspended sentence.

24. As regards paragraph 23(b), the Legal Adviser said that Members could draw reference to Rule 66(7) of the Rules of Procedure which stated that a bill returned by the Chief Executive for reconsideration by the Council was not subject to amendment. He considered that it would be more efficient for the Council to deal with such a motion if the motion was not amendable.

25. As regards paragraph 23(c), the Legal Adviser explained that the sub judice rule as reflected in Rule 41(2) was not a rule of law. But, according to the terms of Rule 41(2), Members should not make comments which might prejudice a case pending in a court of law. In debating a motion to relieve a Member of his LegCo duties under Article 79(6), Members should refer to facts, such as those set out in the indictment or transcript of verdict, but not details of the court case in question as this could be regarded as outside the scope of the motion.

26. Professor NG Ching-fai asked whether, in the event of a Member giving notice to move a motion to remove Mr CHIM from office, guidelines would be given to Members so that they could avoid making comments that could prejudice Mr CHIM's case which was now under appeal. The Legal Adviser replied that relevant guidelines were already provided in Rule 41 of the Rules of Procedure. The Rule stated that Members should not make reference to a case pending in a court of law nor should they make any comments about the conduct of judges or other persons performing judicial functions.

27. Mr James TIEN said that the Liberal Party would send a letter to Mr CHIM to urge him to resign as a LegCo Member.

28. In response to Mr CHAN Wing-chan, the Legal Adviser said the Chairman could move a motion on behalf of the House Committee to remove Mr CHIM from office if the House Committee so decided and if the Chairman agreed to do so. Dr YEUNG Sum said that it would be more appropriate for such a motion to be moved by the Chairman instead of by an individual Member.

29. Members agreed that a motion should be moved to relieve Mr CHIM of his duties as a LegCo Member under Article 79(6) of the Basic Law and that the Chairman should move the motion on behalf of the House Committee.

30. Dr YEUNG Sum said that although Mr CHIM's case should be dealt with expeditiously to maintain the Council's integrity, a motion debate to disqualify a Member was a very serious matter. It should not take place when a large number of Members were away on holiday. Dr YEUNG suggested and members agreed that the debate on the motion should take place at the Council meeting on 9 September 1998 after the summer break.

31. Mr SZETO Wah agreed that the removal of a Member from office was a very serious matter and added that Mr CHIM's case should be handled with caution and dignity. Messrs SZETO Wah and Albert HO suggested that a subcommittee be formed to consider all the procedural arrangements and other relevant issues involved and submit a report to the House Committee.

32. Miss Margaret NG asked whether it would be more appropriate for the Committee on Rules of Procedure to take on the task.

33. The Chairman suggested and members agreed that the Committee on Rules of Procedure be asked to study the procedural arrangements and other relevant matters taking into account members' view expressed at the meeting, and present its recommendations to the House Committee at the next meeting on 4 September 1998.	ASG1

34. The meeting ended at 12:25 pm.

Legislative Council Secretariat
3 September 1998