LC Paper No. CB(2) 1388/98-99

Ref : CB2/H/5

Members present :

Dr Hon LEONG Che-hung, JP (Chairman)
Dr Hon YEUNG Sum (Deputy Chairman)
Hon Kenneth TING Woo-shou, JP
Hon James TIEN Pei-chun, JP
Hon David CHU Yu-lin
Hon HO Sai-chu, JP
Hon Cyd HO Sau-lan
Hon Michael HO Mun-ka
Dr Hon Raymond HO Chung-tai, JP
Hon LEE Wing-tat
Hon Martin LEE Chu-ming, SC, JP
Hon LEE Kai-ming, JP
Hon Mrs Selina CHOW LIANG Shuk-yee, JP
Hon Ronald ARCULLI, JP
Hon James TO Kun-sun
Hon CHEUNG Man-kwong
Hon HUI Cheung-ching
Hon Christine LOH Kung-wai
Hon CHAN Yuen-han
Hon Bernard CHAN
Hon CHAN Wing-chan
Hon Mrs Sophie LEUNG LAU Yau-fun, JP
Hon LEUNG Yiu-chung
Hon Andrew WONG Wang-fat, JP
Dr Hon Philip WONG Yu-hong
Hon WONG Yung-kan
Hon Jasper TSANG Yok-sing, JP
Hon LAU Chin-shek, JP
Hon LAU Kong-wah
Hon LAU Wong-fat, GBS, JP
Hon Mrs Miriam LAU Kin-yee, JP
Hon Ambrose LAU Hon-chuen, JP
Hon Emily LAU Wai-hing, JP
Hon SZETO Wah
Hon Timothy FOK Tsun-ting, JP
Hon LAW Chi-kwong, JP
Hon FUNG Chi-kin
Dr Hon TANG Siu-tong, JP

Members absent :

Hon Edward HO Sing-tin, JP
Hon Albert HO Chun-yan
Hon LEE Cheuk-yan
Hon Eric LI Ka-cheung, JP
Dr Hon David LI Kwok-po, JP
Hon Fred LI Wah-ming
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 Ambrose CHEUNG Wing-sum, JP
Hon CHAN Kwok-keung
Hon CHAN Kam-lam
Hon Gary CHENG Kai-nam
Hon SIN Chung-kai
Hon Howard YOUNG, JP
Hon YEUNG Yiu-chung
Hon CHOY So-yuk
Hon Andrew CHENG Kar-foo
Hon TAM Yiu-chung, 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

Miss Polly YEUNG

Assistant Secretary General 1 (Acting)

Mr Ray CHAN

Assistant Secretary General 3

Miss Anita HO

Assistant Legal Adviser 2

Miss Connie FUNG

Assistant Legal Adviser 3

Mr Stephen LAM

Assistant Legal Adviser 4

Mr Arthur CHEUNG

Assistant Legal Adviser 5

Mr KAU Kin-wah

Assistant Legal Adviser 6

Mrs Anna LO

Chief Assistant Secretary (Complaints)

Miss Kathleen LAU

Chief Public Information Officer

Ms LEUNG Siu-kum

Chief Assistant Secretary (1)2

Mr LAW Wing-lok

Chief Assistant Secretary (2)5

Mrs Betty LEUNG

Chief Assistant Secretary (3)1

Miss Mary SO

Senior Assistant Secretary (2)8

1. The Chairman informed members that according to the most up-to-date 1998/99 Legislative Programme provided by the Administration in February 1999, 25 bills had been added to, and three bills had been taken out from, the Programme. Of the bills added were several major legislative proposals such as the Land Titles Bill, Town Planning Bill and Broadcasting Bill. He said that a list of the 28 bills in question would be compiled and sent to members for reference.

I. Confirmation of the minutes of the 22nd meeting held on 5 February 1999
(LC Paper No. CB(2) 1337/98-99)

2. The minutes were confirmed.

II. Matters arising

(a) Report by the Chairman on his meeting with the Chief Secretary for Administration (CS)

3. The Chairman said that he had reflected to the Administration the view of the Subcommittee on the Ozone Layer Protection (Controlled Refrigerants) Regulation (Commencement) Notice 1998. The Director of Administration (D of Adm) had responded that the Administration was considering suitable remedial action to remove the confusion arising from the co-existence of the 1998 Commencement Notice and the original Commencement Notice made in 1993.

4. Regarding the exclusion of certain persons from the current instruments designating officials to attend meetings of the Council and its committees, the Chairman informed members that CS had explained that the designations made by the Chief Executive (CE) in June 1998 were not entirely correct because the provisions in the Basic Law had not been taken into consideration.

5. Mr LEE Wing-tat asked whether the current instruments were in compliance with the Basic Law. The Legal Adviser responded that the instruments were made by CE as head of the Government of the Hong Kong Special Administrative Region (HKSARG) under Article 62(6) of the Basic Law, which stipulated that the HKSARG had the power "to designate officials to sit in on the meetings of the Legislative Council and to speak on behalf of the government". The current instruments replaced the previous ones made in June 1998 which included persons who were not officials of the Government. The Legal Adviser added that in his view, the Chief Executive of the Hong Kong Monetary Authority (HKMA) was not an official (官員) of the Government.

6. Mr LEE Wing-tat said that given that the Chief Executive of HKMA could be designated to speak on behalf of the Government, he saw no reasons why the responsible persons of certain statutory public bodies such as the Hospital Authority, Airport Authority and Housing Authority could not be so designated. He asked whether the term "government official" was defined in the Interpretation and General Clauses Ordinance (Cap. 1). The Legal Adviser replied that the Ordinance did not apply to the Basic Law.

7. Dr YEUNG Sum said that at the meeting with CS on 10 February 1999, D of Adm had explained that as the Chief Executive of HKMA was directly responsible to CE and had to speak on the latter's behalf on banking and monetary policies, the designation of the Chief Executive of HKMA as an official to attend meetings of the Council's committees was appropriate. The Chairman added that the D of Adm had also pointed out that the Chief Executive of Hospital Authority and the Chairperson of Housing Authority were not government officials and were therefore excluded from the designations set out in the current instruments. Moreover, as the relevant Government bureaux were responsible for the policy aspects of health services and housing matters, there was no need to designate the responsible persons of these two statutory bodies to attend meetings of the Council's committees.

8. Mr LEE Wing-tat expressed dissatisfaction at the explanation given by the Administration and said that who was or who was not an official of the Government within the terms of Article 62(6) of the Basic Law should not be left to CE to interpret. Miss Emily LAU echoed Mr LEE's view.

9. The Chairman suggested that the Administration be asked to provide a written reply setting out the reasons for the inclusion of the Chief Executive of HKMA, but not other responsible persons of certain statutory public bodies, in the current instruments. Members agreed.

(b) The Chief Executive's reply (dated 15 February 1999) to the Chairman's letter of 2 February 1999 inviting the Chief Executive to attend a meeting with LegCo Members to discuss the three inquiry reports on the opening of the new airport
(Copies of Chief Executive's reply and the Chairman's letter were sent to Members on 15 February 1999)

10. Referring to CE's letter, the Chairman said that CE had set out in detail the reasons why he did not see a need for him to discuss the three inquiry reports with Members at a meeting of the Council. The Chairman informed members that CE had personally told him that he had studied the three reports and concluded that while the Government's handling of the new airport project warranted criticism in a number of areas, no individual civil servants should be disciplined as the officers concerned had all performed their duties with due diligence. As regards the recommendations made in the reports, actions had been or were being taken by the Government to implement them, where appropriate. CE had also said that it was important for all the parties involved to work together to bring about improvements to airport operations, now that the problems in the initial operation of the new airport had been overcome.

11. Miss Emily LAU said that despite what CE had said to the Chairman, there was no mention in CE's letter about the Government admitting its mistakes. Instead, CE simply stated that officers involved in the airport project had all performed their duties "in good faith" to refute allegations of negligence or dereliction of duties on the part of the officers concerned. She expressed dissatisfaction at CE's reply and suggested that CE be invited again to attend a meeting of the Council to discuss the three reports with Members.

12. Mr LEE Wing-tat shared Miss LAU's views and asked whether bringing the civil service into disrepute as a result of an officer's action constituted sufficient ground for disciplinary action under the Civil Service Regulations (CSRs). The Legal Adviser responded that he was not in a position to comment as the CSRs were not legislation and they applied to the civil service only.

13. Mr Ronald ARCULLI opined that care should be taken in considering the question of sanctions against individual officers concerned. In his view, the Council's role should be to examine government policies and legislative proposals. It should not be involved in making recommendations for the imposition of sanctions on civil servants.

14. Miss Emily LAU pointed out that although the Select Committee resolved not to include sanctions in its report, it was the consensus of the Select Committee that certain officers were at fault. She considered it appropriate that the Council should follow up on whether the Administration would take any actions to discipline the officers concerned.

15. Mr James TO, Miss Christine LOH and Mr Martin LEE expressed support for Miss LAU's suggestion. Mr TO further suggested that consideration be given to summoning CE under the Legislative Council (Powers and Privileges) Ordinance to appear before the Council. Miss LOH was however of the view that a second invitation be extended to CE before considering Mr TO's suggestion. The Chairman said that he would again convey to CE members' request that he should attend a meeting of the Council to discuss the reports.

16. Miss Emily LAU sought members' views as to whether a subcommittee should be formed to follow up on the Administration's response to the findings and recommendations of the three reports. Mr LEE Wing-tat opined that the relevant issues should be followed up at an appropriate forum as soon as possible. The Chairman said that in his view, the issues relating to disciplinary action, operation of the airport and reorganisation of the Airport Authority, and the formulation of guidelines for implementing future major infrastructure projects should be followed up by the Panels on Public Service, Economic Services and Planning, Lands and Works respectively. Members agreed.

17. Dr Raymond HO suggested that the relevant Panels should also invite non-Panel members to attend Panel meetings at which issues arising from the three reports would be discussed. Members agreed.

18. The Chairman instructed that the Secretariat should prepare a checklist of the issues to be followed up by the relevant Panels.	LegCo Secretariat

(c) Legislative Council (Amendment) Bill 1999

19. The Chairman said that Dr YEUNG Sum and Mr CHAN Kam-lam had requested that they be allowed to join the Bills Committee on Legislative Council (Amendment) Bill 1999 as they were unable to signify membership before the deadline because of problems with the transmission of the reply slip. Members agreed that their requests be acceded to.

20. Mr LEE Wing-tat pointed out that rule 23 of the House Rules governing late membership of committees was over-restrictive. He suggested that the Committee on Rules of Procedure be invited to review the rule. Members agreed. The Chairman added that no re-election of the chairman and deputy chairman should be allowed on the ground that the Member who joined the committee after the deadline was not on the committee at the time of the election.

III. Business arising from previous Council meetings

(a) Legal Service Division's reports on bills referred to the House Committee in accordance with Rule 54(4)

(i) International Organizations (Privileges and Immunities) Bill
(LC Paper No. LS 97/98-99)

21. The Legal Adviser said that the main aim of the Bill was to replace the part of the existing International Organizations and Diplomatic Privileges Ordinance (Cap. 190) which dealt with privileges, immunities and legal capacities of certain international organizations. This would be achieved by giving the Chief Executive (CE) in Council power to declare, by order in the Gazette, the provisions relating to the status, privileges and immunities of an international organization and of persons connected with such an organization should have the force of law in Hong Kong; and by repealing the similar provisions contained in the Ordinance.

22. The Legal Adviser added that the existing Orders made under the Ordinance were subsidiary legislation subject to negative vetting by the Council. Under the Bill, Orders made by CE in Council were expressly excluded from the application of section 34 of the Interpretation and General Clauses Ordinance (Cap. 1) and therefore not subject to the scrutiny of the Council. The Administration had pointed out that such an arrangement was in accordance with the Basic Law as these privileges and immunities were matters of foreign and external affairs.

23. Mr LEUNG Yiu-chung was of the view that a Bills Committee should be formed to study the Bill as Orders made under the Bill might affect the community's interest. The Chairman suggested and members agreed to form a Bills Committee. The following members agreed to join : Miss Cyd HO Sau-lan, Mr LEE Cheuk-yan (as advised by Mr LEUNG Yiu-chung) and Mr James TO Kun-sun.

(ii) Adaptation of Laws (No.3) Bill 1999
(LC Paper No. LS 104/98-99)

(iii) Adaptation of Laws (No.2) Bill 1999
(LC Paper No. LS 103/98-99)

(iv) Adaptation of Laws (No.4) Bill 1999
(LC Paper No. LS 109/98-99)

24. The Legal Adviser explained the amendments proposed in the above three Adaptation of Laws Bills. Referring to the Adaptation of Laws (No. 2) Bill 1999, the Legal Adviser informed members that the Administration had advised that the relevant educational institutions and the Hong Kong Examinations Authority had been consulted on the proposed amendments. The Chairman added that the Legal Service Division was seeking clarification from the Administration on certain aspects of the Adaptation of Laws (No. 4) Bill 1999 relating to the qualifications of plumbers.

25. The Chairman said that as most of the amendments proposed in the three Adaptation of Laws Bills were along the same lines as some amendments proposed in the Adaptation of Laws Bill 1998 and Adaptation of Laws (No. 2) Bill 1998, he suggested that members should wait until the Bills Committees concerned had completed work before deciding how these three Bills should be dealt with. Members agreed.

(v) Disciplined Services Welfare Funds Legislation (Amendment) Bill 1999
(LC Paper No. LS 116/98-99)

26. The Legal Adviser said that the Bill sought to amend several ordinances relating to disciplined services in order to reconstitute the welfare funds established for members and former members of the Fire Services Department, the Police Force, the Correctional Services Department, the Immigration Service and the Customs and Excise Service and their dependants.

27. The Legal Adviser added that the Legal Service Division was seeking clarification from the Administration on certain technical aspects of the Bill and would submit a further report to the House Committee. The Chairman suggested and members agreed that decision on the Bill be deferred pending the Legal Service Division's further report.

(b) Legal Service Division's reports on subsidiary legislation tabled in Council on 10 February 1999 (gazetted on 5 February 1999) and subsidiary legislation to be tabled in Council on 3 March 1999 (gazetted on 12 & 19 February 1999)
(LC Papers No. LS 113, LS 118 and LS 123/98-99)

LC Paper No. LS 113/98-99

28. The Legal Adviser introduced the paper which detailed the eight items of subsidiary legislation gazetted on 5 February 1999. Referring to the Air Pollution Control (Motor Vehicle Fuel) (Amendment) Regulation 1999, the Legal Adviser said that the proposed amendments had been endorsed by the Advisory Council on the Environment. The Administration had also consulted the relevant organizations and they generally supported the Amendment Regulation.

29. Members did not raise any queries on the subsidiary legislation covered in the paper.

LC Paper No. LS 118/98-99

30. The Legal Adviser briefly explained the four items of subsidiary legislation gazetted on 12 February 1999.

31. Referring to the Clubs (Safety of Premises) (Exclusion) (Amendment) Order 1999, the Legal Adviser said that the Legal Service Division was awaiting the Administration's clarification as to whether the five Clubs concerned had applied for the Certificate of Compliance under the Clubs (Safety of Premises) Ordinance before the making of the Amendment Order.

32. Mr James TO asked whether it was Government's policy to exclude Government staff clubs from the application of the Clubs (Safety of Premises) Ordinance. The Legal Adviser responded that according to the Administration, Government's policy was to exclude staff clubs situated in Government premises from the application of the Ordinance. The Legal Adviser added that the non-inclusion of the five club houses in the Clubs (Safety of Premises) (Exclusion) Order was probably due to an oversight on the part of the Administration. Mr TO opined that the Administration should clearly explain that the Amendment Order was made to rectify an omission.

33. The Chairman suggested and members agreed to defer decision on the Amendment Order pending a further report from the Legal Service Division.

34. Members raised no queries on the remaining three items of subsidiary legislation covered in the paper.

LC Paper No. LS 123/98-99

35. The Legal Adviser introduced the paper which detailed the five items of subsidiary legislation gazetted on 19 February 1999.

36. Members raised no queries on the subsidiary legislation.

IV. Business for the Council meeting on 10 March 1999

(a) Questions
(LC Paper No. CB(3) 1275/98-99)

37. Members noted that 20 questions (six oral and 14 written) had been tentatively scheduled.

(b) Bills - First and Second Readings

(i) Interpretation of General Clauses (Amendment) Bill 1999

(ii) Companies (Amendment) Bill 1999

(iii) Adaptation of Laws (No.5) Bill 1999

(iv) Adaptation of Laws (No.6) Bill 1999

(v) Adaptation of Laws (No.7) Bill 1999
38. Members noted that the above five Bills would be introduced into the Council on 10 March 1999 and considered by the House Committee on 12 March 1999.

(c) Bills - resumption of debate on Second Reading, Committee Stage and Third Reading

(i) District Councils Bill

(ii) Film Censorship (Amendment) Bill 1998
39. The Chairman said that the Administration had given notices to resume the Second Reading debate on the two Bills at the Council meeting on 10 March 1999. The Bills Committees on these two Bills would report under agenda items V (c) and (d).

(d) Government motions

(i) Resolution under section 7 of the Factories and Industrial Undertakings Ordinance (Cap. 59) and section 35 of the Interpretation and General Clauses Ordinance (Cap. 1) - to be moved by Secretary for Education and Manpower

40. The Chairman informed members that the Administration had given notice to move a resolution at the Council meeting on 10 March 1999 to seek the Council's approval of the Construction Sites (Safety) (Amendment) Regulation 1998 made by the Commissioner for Labour under the Factories and Industrial Undertakings Ordinance. The subcommittee on regulations relating to occupational safety and health would report under agenda item V(e).

(ii) Resolution under section 7(1) of the Public Finance Ordinance (Cap.2) - to be moved by the Secretary for the Treasury
(LC Paper No. LS 117/98-99)

41. The Legal Adviser said that the purpose of the resolution was 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. The legal and drafting aspects of the resolution were in order.

42. Members raised no queries on the resolution.

(e) Members' motions

(i) Motion on "Civil service's culture and efficiency"

43. Members noted the draft wording of the above motion to be moved by Mr Eric LI Ka-cheung. The Chairman reminded members that at the meeting on 15 January 1999, members agreed that no amendments to the motion should be proposed.

(ii) Motion on "Vote of no confidence in the Secretary for Justice"

44. Members noted the draft wording of the above motion to be moved by Miss Margaret NG. The Chairman reminded members that the deadline for giving notice of amendments (if any) to the motion was 3 March 1999.

45. The Chairman said that the speaking time limits stipulated in rule 17(c) of the House Rules would apply to both motions.

V. Reports

(a) Position report on Bills Committees/subcommittees
(LC Paper No. CB(2) 1338/98-99)

46. The Chairman said that there were 14 Bills Committees and three subcommittees in action.

47. The Chairman further said that the Bills Committee on the Chinese Medicine Bill would be activated as there was one vacant Bills Committee slot.

(b) Report of the Bills Committee on Adaptation of Laws (No.3) Bill 1998

48. The Chairman suggested and members agreed to defer the item to the next meeting as Miss Margaret NG, Chairman of the Bills Committee, was not present to make a verbal report on the deliberations of the Bills Committee.

(c) Report of the Bills Committee on District Councils Bill
(LC Paper No. CB(2) 1326/98-99)

49. Mr Ambrose LAU, Chairman of the Bills Committee, introduced the paper which detailed the deliberations of the Bills Committee. He said that the Bills Committee had divergent views on some of the provisions in the Bill and that individual members of the Bills Committee had indicated that they would move Committee Stage amendments (CSAs) to the Bill. He asked that the script for the proceedings of the Council meeting on 10 March 1999 be issued earlier as there would be a large number of CSAs on the Bill. The Chairman reminded members that the deadline for giving notice of CSAs was midnight on 1 March 1999.

50. Miss Emily LAU suggested that the duration of the division bell should be shortened to one minute during the Committee Stage of the Bill. Members agreed.	Chairman

(d) Further report of the Bills Committee on Film Censorship (Amendment) Bill 1998
(LC Paper No. CB(1) 911/98-99)

51. On behalf of Mr Andrew CHENG, Chairman of the Bills Committee, Miss Cyd HO introduced the paper and said that the Administration had proposed further CSAs to include "or a laserdisc" in the relevant clauses of the Bill.

52. Members noted that the Second Reading debate on the Bill would be resumed at the Council meeting on 10 March 1999.

(e) Report of the Subcommittee on regulations relating to occupational safety and health
(LC Paper No. CB(2) 1317/98-99)

53. On behalf of Mr Andrew CHENG, Chairman of the subcommittee, Mr Ronald ARCULLI reported that most members of the subcommittee supported the resolution to be moved by the Secretary for Education and Manpower at the Council meeting on 10 March 1999 to seek the Council's approval of the Construction Sites (Safety) (Amendment) Regulation 1998 made by the Commissioner of Labour.

54. Miss Cyd HO added that the Hong Kong Federation of Trade Unions had expressed opposition to the Amendment Regulation.

55. Mr CHAN Wing-chan said that the Hong Kong Federation of Trade Unions considered that the introduction of the Amendment Regulation would affect the livelihood of some 200 workers. Mr CHAN added that he and Members of the Democratic Alliance for the Betterment of Hong Kong would vote against the resolution at the Council meeting on 10 March 1999.

56. Mr HO Sai-chu said that the introduction of the Amendment Regulation would affect the earnings of the workers concerned but would not put them out of work.

(f) Report of the Bills Committee on Adaptation of Laws (No.2) Bill 1998

57. Mr Andrew WONG, Chairman of the Bills Committee, reported that at the joint meeting with the Bills Committee on Adaptation of Laws Bill 1998 held in the morning, the Administration had advised that the original approach adopted in changing the reference to "Governor" to "Chief Executive in Council" to reflect the constitutional obligation under Article 56(2) of the Basic Law would not be used. Instead, the Administration had proposed to adapt all references to "Governor", in respect of making subordinate legislation and issuing administrative instruments, to "Chief Executive". CE's obligation to consult Executive Council when making subordinate legislation would be unaffected by such an approach. Where such consultation had taken place, it would be reflected in the heading of the subsidiary legislation. Mr WONG further said that a written report on the deliberations of the Bills Committee would be submitted for members' consideration.

VI. Any other business

Implications of the Judgment of the Court of Final Appeal on cases relating to the right of abode of persons born in the Mainland to Hong Kong permanent residents
(Judgment of the Court of Final Appeal delivered on 26 February 1999 tabled at the meeting)

58. Miss Emily LAU said that the Administration should brief members on the Secretary for Justice (SJ)'s recent trip to Beijing, the implications of the judgment of the Court of Final Appeal (CFA) and the work progress of the special task force headed by CS.

59. Miss LAU further said that she originally requested the Administration to make a statement on the CFA's Judgment at the Council meeting on 10 February 1999, but this was declined by the Administration. The request by Mr LEE Cheuk-yan to ask an urgent question at the Council meeting on 10 February 1999 was also turned down by the President. Subsequent requests made by her to hold a special House Committee meeting either on 12 or 15 February 1999 also failed to gain support from members. Miss LAU hoped that members would support her request this time.

60. The Chairman said that he agreed that such a briefing should be held. He had earlier consulted Members of different groupings and they were generally of the view that it would be more appropriate to convene a meeting after SJ had returned from Beijing. Dr YEUNG Sum added that Democratic Party Members agreed that a special House Committee meeting should not be convened on 15 February 1999, which was the Lunar New Year's eve, because many Members were not in town.

61. The Chairman proposed and members agreed to invite the Administration to give a briefing to members on the three topics referred to in paragraph 59 above at the earliest possible time. The Chairman said that he would approach the Administration immediately after the meeting.

62. The meeting ended at 3: 43 pm.


Legislative Council Secretariat
10 March 1999