LC Paper No. LS 136/98-99

Object(s) of the Bill

To adapt certain Ordinances and their subsidiary legislation to bring them into conformity with the Basic Law and with the status of Hong Kong as a Special Administrative Region of the People's Republic of China.

LegCo Brief Reference

2. L/M(1) to TBCR 1/3231/91 Pt.III dated 12 March 1999 issued by the Transport Bureau.

Date of First Reading

3. 31 March 1999.

Comments

4. A list of the Ordinances affected by the proposed amendments in the Bill and a summary of the amendments are at Annex A and B respectively. Members may note that the Ordinances set out at Annex A relate mainly to roads and tunnels. The proposed amendments are essentially technical changes to individual Ordinances.

5. If enacted, the Bill will take retrospective effect from 1 July 1997 to ensure that there is consistency in the interpretation of all laws on and after 1 July 1997.

6. The Bill proposes, among other things, the substitution of "Crown" by "State" in the context of "person or vehicle in the service/public service of the Crown" in various Ordinances and subsidiary legislation, such as the Cross-Harbour Tunnel By-laws (Cap. 203 sub. leg.), Eastern Harbour Crossing Tunnel By-laws (Cap. 215 sub. leg.), Tate's Cairn Tunnel By-laws (Cap. 393 sub. leg.), etc. and the substitution of "country outside Hong Kong" by "country or territory outside Hong Kong" in the Road Traffic Ordinance (Cap. 374). In respect of the proposed amendments, we have written to the Administration asking for clarification on the following matters :

1. The reference to "person or vehicle in the service/public service of the Crown" relates to exempting vehicles which carry persons in the public service of the Crown from the requirements imposed by the relevant Ordinances and subsidiary legislation, such as the payment of toll; saving the power or duty or the exercise or performance of any power or duty conferred or imposed by or under any law upon any person in the service of the Crown, etc. However, in the corresponding provisions in the Western Harbour Crossing Bylaw (Cap. 436 sub. leg.), the Tai Lam and Yuen Long Approach Road Bylaw (Cap. 474 sub. leg.) and the Tsing Ma Control Area Ordinance (Cap. 498), "Government" instead of "State" is used in the same context. We are asking the Administration to account for such inconsistency and explain why "Crown" is proposed to be adapted to "State" in this Bill; and
   
   
2. the references to "country outside Hong Kong" in Cap. 374 primarily relate to the issue of an international driving permit by Hong Kong or under the authority of a country outside Hong Kong which is a party to an international agreement for the time being in force in respect of Hong Kong and the registration of vehicles in a country outside Hong Kong. We are asking the Administration to explain why the proposed adaptation is necessary and why the proposed adaptation does not follow that of similar references in the Drug Trafficking (Recovery of Proceeds) Ordinance (Cap. 405) and the Occupational Retirement Schemes Ordinance (Cap. 426).

Public Consultation

7. There has not been any public consultation on the Bill.

Consultation with the LegCo Panel

8. No consultation with any LegCo Panel on the details of the Bill has been carried out.

Conclusion

9. Apart from the issues set out in paragraph 6 above, we are also seeking clarification from the Administration on other matters, including whether the Administration has consulted the tunnel companies that may be affected by the Bill. A further report will be issued in due course.


Encls.


Prepared by

FUNG Sau-kuen, Connie
Assistant Legal Adviser
Legislative Council Secretariat
12 April 1999

Annex A

Item No.	Ordinances and subsidiary legislation
1.	Cross-Harbour Tunnel Ordinance (Cap. 203) and its subsidiary legislation
2.	Eastern Harbour Crossing Ordinance (Cap. 215) and its subsidiary legislation
3.	Fixed Penalty (Traffic Contraventions) Ordinance (Cap. 237)
4.	Fixed Penalty (Criminal Proceedings) Ordinance (Cap. 240)
5.	Motor Vehicles Insurance (Third Party Risks) Ordinance (Cap. 272) and its subsidiary legislation
6.	Road Tunnels (Government) Ordinance (Cap. 368)
7.	Road (Works, Use and Compensation) Ordinance (Cap. 370)
8.	Road Traffic Ordinance (Cap. 374) and its subsidiary legislation
9.	Road Traffic (Driving-offence Points) Ordinance (Cap. 375)
10.	Tate's Cairn Tunnel Ordinance (Cap. 393) and its subsidiary legislation
11.	Western Harbour Crossing Ordinance (Cap. 436) and its subsidiary legislation
12.	Tai Lam Tunnel and Yuen Long Approach Road Ordinance (Cap. 474)
13.	Tsing Ma Control Area Ordinance (Cap. 498)
14.	Discovery Bay Tunnel Link Ordinance (Cap. 520)

Annex B

A. Amendments



B. Deletions

1. "fixed by the Crossing-Harbour Tunnel Company, Limited, and approved by the Governor in Council" in the Cross-Harbour Tunnel Tolls (Cap. 203 sub. leg.)

Notes:

1.This reference appears in the following Ordinances and subsidiary legislation -

• Cross-Harbour Tunnel By-laws (Cap. 203 sub. leg.)
  
  
• Eastern Harbour Crossing Road Tunnel By-laws (Cap. 215 sub. leg.)
  
  
• Fixed Penalty (Traffic Contraventions) Ordinance (Cap. 237)
  
  
• Road Tunnels (Government) Ordinance (Cap. 368)
  
  
• Road Traffic Ordinance (Cap. 374), Road Traffic (Driving Licences) Regulations, Road Traffic (Parking) Regulations, Road Traffic (Traffic Control) Regulations, Road Traffic (Parking on Private Roads) Regulations and Road Traffic (Expressway) Regulations (Cap. 374 sub. leg.)
  
  
• Road Traffic (Driving-offence Points) Ordinance (Cap. 375)
  
  
• Tate's Cairn Tunnel By-laws (Cap. 393 sub. leg.)

The reference to "person or vehicle in the service/public service of the Crown" in the above Ordinances and subsidiary legislation relate to the following matters:

1. exempting vehicles which carry persons in the public service of the Crown from the requirements imposed by the relevant Ordinances and subsidiary legislation, e.g. payment of toll;
   
   
2. saving the power or duty or the exercise or performance of any power or duty conferred or imposed by or under any law upon any person in the service of the Crown; and
   
   
3. application of the relevant Ordinances or subsidiary legislation to vehicles and persons in the public service of the Crown except where otherwise expressly provided.

2. This reference is found in section 34(2) of the Eastern Harbour Crossing Ordinance (Cap. 215). The section provides that the Director of Highways may at the request of the Road Company concerned divert, or permit the Road Company at its own expense to divert any utility that is under the control of the Government or any agency of the Crown.

3.This reference appears in section 4(4) of the Motor Vehicles Insurance (Third Party Risks) Ordinance (Cap. 272), which exempts motor vehicles which are the property of Her Majesty or the Government from the third party insurance requirement.

4. The references to "Crown" appear in -

• Road Tunnels (Government) Ordinance (Cap. 368) - unclaimed and abandoned vehicles in tunnels to be property of the Crown;
  
  
• Roads (Works, Use and Compensation) Ordinance (Cap. 370) -

1. payment by the Crown for inspection and preventive and remedial works on land and buildings; removal of projections or obstructions, etc;
   
   
2. claims against the Crown under the Ordinance; and
   
   
3. recovery of compensation from the Crown.

• Road Traffic Ordinance (Cap. 374) and its subsidiary legislation -
  

1. forfeiture of unclaimed and abandoned vehicles, unapproved traffic signs, etc. to the Crown;
   
   
2. exempting the Crown from proceedings in tort by reason only of the fact that a place is designated as a car testing centre or as a driving school; and
   
   
3. penalty payable under the Ordinance to be a debt owed to the Crown

5. This amendment is based on item 10 of Annex 3 of the Decision of the Standing Committee of the National People's Congress on Treatment of the Laws Previously in Force in Hong Kong in accordance with Article 160 of the Basic Law of the Hong Kong Special Administrative Region of the People's Republic of China. In that item, it is stated that:

"10. Any reference in any provision to "nothing in this Ordinance shall affect or be deemed to affect the rights of Her Majesty the Queen, Her Heirs or Successors" shall be construed as a reference to "nothing in this Ordinance shall affect or be deemed to affect the rights of the Central (People's Government) or the Government of the Hong Kong Special Administrative Region under the Basic Law or other laws.".

Such provision is now incorporated into item 21 of Schedule 8 to the Interpretation and General Clauses Ordinance (Cap. 1).　

6 & 7. These references relate to the issue of an international driving permit under the authority of a country outside Hong Kong which is a party to an international agreement for the time being in force in respect of Hong Kong and the registration of vehicles in a country outside Hong Kong.

8. This reference relates to the issue of an international driving permit by Hong Kong under the International Convention of April 24th, 1926 and the Convention on International Road Traffic of 1949.

9. This reference is found in the Eastern Harbour Crossing Ordinance (Cap. 215), Tate's Cairn Tunnel Ordinance (Cap. 393), Western Harbour Crossing Ordinance (Cap. 436) and Tai Lam Tunnel and Yuen Long Approach Road Ordinance (Cap. 474)