LC Paper No. LS 75/98-99

Object 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. LegCo Brief (File Ref.: LP 5039/19/3/1C) issued by the Department of Justice in December 1998.

Date of First Reading

3. 6 January 1999.

Comments

4. The Ordinances affected by these amendments are at Annex A. One of the main Ordinances to be adapted is the Criminal Procedure Ordinance (Cap. 221). A summary of the proposed amendments in the Bill is set out in Annex B. The Administration has also listed some proposed amendments that are not covered by, or which depart from, the Guideline Adaptations in Annex 2 to the LegCo Brief. Members may refer to this Annex as well as Annex 3 (Provisions Containing Historical References that need not be adapted or references of which adaptation is deferred) for details.

5. The Legal Service Division has sought clarification with the Administration on certain technical points. The Administration has agreed to move a Committee Stage amendment to change the word "Crown" to "Government" in Rule 71 of the Criminal Appeal Rules.

6. Under item 38 of Schedule 2 of the Bill, Rule 4 of the Indictment Rules should be amended to read as follows:

"Where the specific offence with which an accused person is charged in an indictment is one created by or under an Ordinance or a national law applying in Hong Kong, then, without prejudice to the generality of rule 3 -

(a) the statement of offence shall contain a reference to the provision in the Ordinance or national law applying in Hong Kong creating an offence;"(underlining added)

The Indictment Rules are made under section 9 of the Ordinance. Under section 9(3) (which is not proposed for amendment by this Bill), it is stated that:

"..... the practice and procedure in all criminal causes and matters (including trials for treason or misprison of treason) shall be, as nearly as possible, the same as the practice and procedure from time to time and for the time being in force for similar cases in England."

7. By virtue of Rule 4 of the Indictment Rules as would be amended and section 9(3) of the Ordinance, it would appear that the trial of criminal offences under a national law applying in Hong Kong shall adopt English practice and procedure. This, in our view, is a policy matter which warrants Members detailed consideration.

8. 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. The retrospective effect will not apply to provisions involving criminal offences or penalties.

Public Consultation

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

Consultation with the LegCo Panel

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

Conclusion

11. The Legal Service Division is of the view that the issue referred to in paragraphs 6 and 7 above should be of interest to Members and it is recommended that a Bills Committee be formed.


Prepared by

HO Ying-chu, Anita
Assistant Legal Adviser
Legislative Council Secretariat
4 January 1999

Annex A

1. Judicial Proceedings (Adjournment During Gale Warnings) Ordinance (Cap. 62)
   
   
2. Criminal Procedure Ordinance and its subsidiary legislation (Cap. 221)
   
   
3. Criminal Jurisdiction Ordinance and its subsidiary legislation (Cap. 461)
   
   
4. Costs in Criminal Cases Ordinance and its subsidiary legislation (Cap. 492)
   
   
5. Enduring Powers of Attorney (Prescribed Form) Regulation (Cap. 501 sub. leg.)
   
   
6. Revised Edition of the Laws Ordinance 1965 (53 of 1965)
   
   
7. Laws (Loose-leaf Publication) Ordinance 1990 (51 of 1990)

Annex B

Original Terms	Proposed Amendments
Crown*	Government
in the peace of the Queen	within the jurisdiction of the Hong Kong courts
Governor	Chief Executive
Governor in Council	Chief Executive in Council
Governor, in the name and on behalf of Her Majesty	Chief Executive
the Colony	Hong Kong
Her Majesty's prerogative of mercy or any prerogative of mercy vested in the Governor	the power vested in the Chief Executive to pardon offences or commute penalties
R./Reg.	HKSAR
Queen	Government
Privy Council	Court of Final Appeal
imperial enactment	national law applying in Hong Kong
High Court	Court of First Instance
Supreme Court	High Court
Hong Kong	Hong Kong Special Administrative Region

Note:

* The adaptation of the word "Crown" relates mainly to forfeiture to the "Crown" and that the Secretary for Justice appears for the "Crown" in criminal cases.