Legislative Council

LC Paper No. LS 151/98-99

Members may recall that the Legal Service Division made a report to the House Committee on 12 March 1999 on the Bill (LC Paper No. LS 119/98-99 refers). The purpose of the Bill is to adapt Ordinances and subsidiary legislation dealing with land and buildings 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. Members agreed to defer the decision on the Bill pending our enquiry with the Administration on the following :

The Aliens (Rights of Property) Ordinance (Cap. 185)

2. The Bill proposes to repeal the preamble and amend sections 2 and 3 of the Aliens (Rights of Property) Ordinance (Cap. 185) by replacing "Commonwealth citizen" with "Chinese citizen". The Administration has confirmed that the rights of a Commonwealth citizen residing in Hong Kong to hold and transfer immovable property herein prior to 1 July 1997 are the same as those of a Chinese citizen residing after that date. The Administration confirms that there is no policy change resulting from the proposed adaptation because an "alien" would enjoy the same rights before and after the adaptation is made.

3. The purpose of Cap. 185 is to remove doubts regarding the rights of aliens to hold and transfer immovable property in Hong Kong which had arisen pursuant to the Act of Parliament 10 and 11 Victoria, chapter 83, instituted "An Act for the Naturalization of Aliens" ("the Act"). The Act serves to validate all acts, statutes or ordinances enacted in British colonies or possessions imparting privileges of naturalisation to aliens residing there. A copy of the Act is attached at Annex A to the Administration's reply.

4. The Act has ceased to apply to Hong Kong after the reunification because Hong Kong is no longer a British colony. The purpose for enacting Cap. 185 has therefore become obsolete unless the Administration could provide information on any existing ordinance or subsidiary legislation imparting privileges of naturalization to aliens residing in Hong Kong.

5. The Administration confirms that the new definition of "alien" in the Interpretation and General Clauses Ordinance (Cap. 1) will apply to Cap. 185 and has agreed to amend the Chinese rendition for "alien" in Cap. 185 by way of a miscellaneous amendments bill.

The Lifts and Escalators (Safety) Ordinance (Cap. 327)

6. The Bill proposes to replace references to the government of any member of the Commonwealth with the Central People's Government in sections 3(1A)(a) and 46(1) of the Lifts and Escalators (Safety) Ordinance (Cap. 327). The Administration explains that the policy intent is to preserve the status quo in relation to the non-application of Cap. 327. Buildings belonging to the government of any member of the Commonwealth previously exempted from the application of Cap. 327 under section 3(1A)(a) will now be in the category of "government of a foreign country" and exempted under section 3(1A)(d). Buildings belonging to the Central People's Government exempted under section 3(1A)(d) prior to 1 July 1997 may now continue to be so exempted under section 3(1A)(a).

The Demolished Buildings (Re-development of Sites) Ordinance (Cap. 337)

7. The Bill proposes to amend section 12(3) of the Demolished Buildings (Re-development of Sites) Ordinance (Cap. 337) by repealing references to the powers and remedies of a mortgagee by deed under the Law of Property Act 1925 and the common law in England and substituting the powers and remedies of a mortgagee under a legal charge or equitable mortgage by deed under the Conveyancing and Property Ordinance (Cap. 219) and the common law in Hong Kong.

8. A comparison of the powers and remedies under the two legislation and common law systems is set out in Annex B to the Administration's reply. The Administration agrees with our view that the statutory powers and remedies under the Conveyancing and Property Ordinance (Cap. 219) are wider than those provided in the Law of Property Act 1925. However, they believe that it is appropriate to include the proposed adaptation in the Bill.

9. Copies of the correspondences exchanged are at the Appendix. Members may wish to consider whether a Bills Committee be formed to study the policy aspects of the Bill.


Encl
Prepared by
Wong Sze-man, Bernice
Assistant Legal Adviser
Legislative Council Secretariat
26 April 1999
Bill/Further/99adapt5/LS/B/54/98-99


L/M(H) in PLEBE(CR.)10/32/98
LS/B/54/98-99
2869 9204
2877 5029

	10 March 1999
Planning, Environment and Lands Bureau	BY FAX
9/F, Murray Building,	Fax no. : 28453489
Garden Road,	Total no. of pages : 2
Hong Kong.
(Attn. : Mr. Anthony Li
Assistant Secretary (Lands) 1)

Dear Mr. Li,




We are scrutinizing the above Bill with a view to advising Members on the legal and drafting aspects. I shall be grateful if you would clarify the following :

1. Section 30(1B) of the Land Registration Ordinance (Cap. 128)

Please explain the reason for adding section 30(1B) of the Land Registration Ordinance (Cap. 128) since textual amendments to the First Schedule of the Ordinance have been and will be made respectively by the Adaptation of Laws (Courts and Tribunals) Ordinance (25 of 1998) and the Bill.

2. Sections 2 and 3 of the Aliens (Rights of Property) Ordinance (Cap. 185)

Please explain whether the proposed repeal of the preamble of the Ordinance arises from the reference therein to the Act of Parliament 10 and 11 Victoria, chapter 83, intituled "An Act for the Naturalization of Aliens". Please supply us with a copy of that Act. Has the Administration considered that the preamble may be helpful in providing assistance in the interpretation of any ambiguities within the Ordinance? In particular, could the Administration clarify:

1. whether it has been the original intent for the repealed definition of "alien" in the Interpretation and General Clauses Ordinance (Cap. 1) to apply to this Ordinance prior to 1 July 1997? If so, how would the Administration reconcile the difference in the Chinese rendition for the term?
   
   
2. whether it is the policy for the new definition of "alien" in Cap. 1 to apply to this Ordinance, and if so, whether the Chinese rendition will be amended accordingly?

3. Section 3(1A)(a) and 46 of the Lifts and Escalators (Safety) Ordinance Cap. 327)

The LegCo Brief mentions that it is necessary to replace the references to the government of any member of the Commonwealth in this context by references to the Central People's Government. Please explain. Is it due to the fact that buildings belonging to the Central People's Government have been previously exempted from the application of the Ordinance under section 3(1A)(d) prior to 1 July 1997, but may not continue to be so exempted after that date? If a strict interpretation of adaptation is adopted, wouldn't a simple repeal of the reference to the government of any member of the Commonwealth suffice?

4. Section 12(3) of the Demolished Buildings (Re-development of Sites) Ordinance (Cap. 337)

It would assist Members if the Administration could let us have a comparison of the rights and remedies of a mortgagee by deed under the Law of Property Act 1925 and the common law in England with those of a mortgagee under a legal charge or equitable mortgage by deed under the Conveyancing and Property Ordinance (Cap. 219) and the common law in Hong Kong.

Your early reply will be appreciated.

Yours sincerely,


(Bernice Wong)
Assistant Legal Adviser

c.c. LA


L/M(H) in PELB(CR)10/32/98
LS/B/54/98-99
2869 9204
2877 5029

	15 March 1999
Planning, Environment and Lands Bureau	BY FAX
9/F, Murray Building,	Fax no. : 28453489
Garden Road,	Total no. of pages : 2
Hong Kong.
(Attn. : Mr. Anthony Li
Assistant Secretary (Lands) 1)

Dear Mr. Li,




I write further to my letter of 10 March 1999.

Sections 2 and 3 of the Aliens (Rights of Property) Ordinance (Cap. 185)

At the meeting of the House Committee last Friday, a Member asked for clarification of what special rights a Chinese citizen residing in Hong Kong would have to hold and transfer immovable property herein. In this connection, would the Administration also explain :

(a) whether the rights of a Commonwealth citizen residing in Hong Kong to hold and transfer immovable property herein prior to 1 July 1997 are the same as those of a Chinese citizen residing here after that date?

(B) the different categories of persons covered by the two definitions of "alien". Is there a change of policy resulting from the proposed adaptation?

Section 12(3) of the Demolished Buildings (Re-development of Sites) Ordinance (Cap. 337)

It is our view that the English and Chinese texts of the proposed amendment are different. Please clarify the policy intent, and in particular, explain the scope of powers and remedies "otherwise available in Hong Kong". If the phrase means the common law powers and remedies in Hong Kong, what does the Administration mean by "common law"?

Paragraph 5(e) of the LegCo Brief states that extensive research by the Lands Department and the advice of the Department of Justice reveal that the powers and remedies under the relevant English laws are sufficiently covered (italics added) by the Conveyancing and Property Ordinance (Cap. 219) and the common law. The result of our preliminary research indicates that the relevant statutory powers and remedies set out in the Conveyancing and Property Ordinance (Cap. 219) are wider than those provided in the Law of Property Act 1925. Would the Administration agree that the present proposal is not a straight-forward adaptation in that the amendment would widen the scope of the original provision?

Yours sincerely,


(Bernice Wong)
Assistant Legal Adviser

c.c. LA