Panel on Administration of Justice and Legal Services ( Minutes ) 2 Nov 98

Legislative Council

LC Paper No. CB(2)861/98-99
(These minutes have been seen
by the Administration)

Ref : CB2/PL/AJLS

Legislative Council
Panel on Administration of Justice and Legal Services

Minutes of Special Meeting
held on Monday, 2 November 1998 at 4:30 pm
in Conference Room A of the Legislative Council Building

Members Present:

Hon Margaret NG (Chairman)
Hon Jasper TSANG Yok-sing, JP (Deputy Chairman)
Hon Martin LEE Chu-ming, SC, JP
Hon James TO Kun-sun
Hon Mrs Miriam LAU Kin-yee, JP
Hon Ambrose LAU Hon-chuen, JP
Hon Emily LAU Wai-hing, JP

Members Absent:

Hon Albert HO Chun-yan

Public Officers Attending :

Mr I G M WINGFIELD, JP: Law Officer (Civil Law)
Mr Tony YEN, JP: Law Draftsman
Mr R C ALLCOCK: Deputy Law Officer
Ms Carol YIP: Acting Deputy Secretary for Constitutional Affairs(1)
Ms Miranda CHIU: Acting Director of Administration
Ms Amy WONG: Assistant Secretary (Administration) (2)
Mr Llewellyn MUI: Senior Government Counsel, Legal Policy Division

Attendance by Invitation :

Hong Kong Bar Association: Mr Philip DYKES, SC; Mr Anthony N WATSON-BROWN
The Law Society of Hong Kong: Mr Anthony CHOW, President; Mr Raymond HO; Ms Patrick MOSS; Ms Joyce WONG

Clerk in Attendance :

Mrs Percy MA: Chief Assistant Secretary (2) 3

Staff in Attendance :

Mr Jimmy MA: Legal Adviser
Mr Paul WOO: Senior Assistant Secretary (2) 3

I. Review of ordinances binding on the Government but not on relevant PRC organs
(LC Paper Nos. CB(2)415/98-99(01); CB(2)415/98-99(02); CB(2)415/98-99(03); CB(2)436/98-99(02); CB(2)469/98-99(01) and CB(2)532/98-99(01))

At the invitation of the Chairman, the Administration took members through the four papers prepared in response to members' request at the meeting on 15 September 1998. The discussion of the meeting is summarised below.

Binding effect of Ordinances: legal and constitutional principles, and policy considerations - LC Paper No. CB(2)415/98-99(01)

2. Law Officer (Civil Law) ("LO(CL)") advised that the fundamental principle that every one was subject to the law did not mean that it was necessary or appropriate for every Ordinance to apply to every person or body. Where legislation was introduced, regard would be paid to the particular subject matter concerned to determine whether the legislation should or should not bind the Government or the State. He pointed out that although Article 22 of the Basic Law ("BL 22") provided that "all offices set up in the Hong Kong Special Administrative Region by departments of the Central Government, or by provinces, autonomous regions, or municipalities directly under the Central Government, and the personnel of these offices shall abide by the laws of the Region", it did not specify any guideline as to whether or not any particular Ordinance should bind these offices and their personnel. In reality, a large number of laws did not have any relevance to the activities of the State and hence it was generally inappropriate for those laws to bind the State. He advised that the legal presumption of exclusion of the State in relation to application of legislation was in accordance with common law principles applicable to other common law jurisdictions. It was not in contravention of the Basic Law.

3. Deputy Law Officer ("DLO") supplemented that the Administration was of the opinion that whether a particular Ordinance should or should not bind the State was subject to a number of considerations as set out in the paper. There was no single principle which one could apply.

Ordinances binding the State by necessary implication - LC Paper No. CB(2)415/98-99(02)

4. LO(CL) said that the test to determine whether there was an implied intention of an Ordinance to bind the State was whether the beneficial purpose would be wholly frustrated if the law did not apply to the State. To identify Ordinances which bound the State by necessary implication would be a difficult task because it would involve a review of all sections of these Ordinances.

The definition of "State" for the purposes of section 66 of Cap. 1 - LC Paper No. CB(2)415/98-99(03)

5. LO(CL) advised that the paper sought to clarify the meaning of "State" that applied to section 66 of the Interpretation and General Clauses Ordinance (Cap.1) ("Cap.1"). It also explained that a subordinate organ of the Central People's Government ("CPG") or of relevant Central Authorities fell within the definition only if it satisfied the following tests -

it carried out executive functions of the CPG, or functions for which the CPG had responsibility under the Basic Law;
it did not exercise commercial functions;
it was acting within the scope of the authority and functions delegated to it by the CPG or the relevant Central Authority.

6. LO(CL) said that offices set up in the Special Administrative Region of Hong Kong ("HKSAR") by provinces, autonomous regions, or municipalities directly under the Central Government would be outside the terms of the definition of "State" if such bodies did not carry out executive functions of the CPG or if they were engaged in commercial activities, hence they would not be entitled to the presumption of exclusion under section 66 of Cap. 1.

7. In response to the Chairman's question, LO(CL) said that there was no statutory definition of "Crown". Generally speaking, the expression covered emanations of the Crown which embraced all elements of the executive government. He added that there were references in pre-reunification legislation which distinguished between the Crown in the right of the Government of the UK and the Crown in the right of the Government of Hong Kong.

Classification of ordinances - LC Paper No. CB(2)436/98-99(02)

8. LO(CL) said that the list of Ordinances classified by way of whether they contained express provisions binding on or applying to "the Government" or "the Crown/State" was by no means exhaustive. The number of Ordinances given for each category was identified at a particular point in time and it might need to be adjusted. He advised that some Ordinances were applicable to the Government in whole or in part because they imposed certain statutory responsibilities on particular public officers, and as such these Ordinances did not necessarily bind the Government in the sense that was being discussed.

Subordinate organs of State

9. Referring to the three-fold functional tests described in paragraph 5 above, Mr James TO asked whether the Administration had knowledge of offices set up by Mainland authorities which might fall within the definition of "State", and the functions performed by them. He opined that a list setting out relevant subordinate organs performing executive functions of the Central Government would help address public concern. He further enquired about whether national security organs of the Mainland had been set up in the HKSAR, and if so, whether they came under the definition of "State" in Cap. 1.

10. The Administration responded that at present, there were three subordinate organs of the Central Government in the HKSAR, namely, the People's Liberation Army Garrison, the Commissioner's Office of the Ministry of the Foreign Affairs and the Xinhua News Agency (Hong Kong Branch). The three tests mentioned above were used to decide which particular authorities were, from time to time, within the meaning of "State" as defined in Cap. 1. LO(CL) said that, for example, an office set up in the HKSAR by the Central Government to deal with trade matters with other countries could be considered as performing executive functions of the Central Government and hence falling within the definition of "State". Acting Deputy Secretary for Constitutional Affairs (1) ("DS(CA)(Ag)") added that it would be for the organisations or their personnel to produce proof if they claimed to satisfy the definition of "State".

11. In reply to Mrs Miriam LAU, LO(CL) said that the first two criteria of the three-fold test set out the essential principles to determine whether certain Mainland subordinate bodies were within the definition. The third test came into play where it was necessary in the circumstances to look into the particular act in question to decide whether the body concerned was acting within the appropriate scope of its delegated functions and authority.

12. Members asked whether there was any formal mechanism in place whereby the public could have access to information about the existence of subordinate State organs in the HKSAR. The Administration replied that whenever new offices under the Central Government were set up in Hong Kong, their existence would become a matter of public knowledge as the events would be widely publicized through different channels such as media coverages and receptions to mark the occasions. Furthermore, the Government would answer any public enquiries directed to it on such matters.

13. Members shared the view that the Government should take the initiative to inform the public rather than for the public to ask for the information. In response to the Chairman, DS(CA)(Ag) promised that in case there were any other offices of State organs to be established in Hong Kong, the establishment of such offices would certainly be made known to the public.

Adm

Binding effect of ordinances

14. Ms Emily LAU noted that as a result of the preliminary review of the 17 Ordinances which expressly bound the Government, the Administration now concluded that as a matter of policy, 15 out of the 17 Ordinances should also apply to the State organs and their personnel, but that the review of the Personal Data (Privacy) Ordinance had yet to be completed. She enquired about the guiding principles which enabled the Government to come to such conclusion.

15. DLO advised that some general principles and policy considerations relating to binding effect of ordinances had been set out in LC Paper No. CB(2)415/98-99(01). There was however no single formula which one could apply. The Administration advised that the responsible policy bureaux were conducting in-depth review of each of the relevant Ordinances and a report would be made to the Panel to explain specific proposals to amend the Ordinances as soon as the reviews were completed. In reply to the Chairman, Acting Director of Administration undertook to as far as possible report back to the Panel at its meeting in December 1998 on the reasons for concluding that 15 out of the 17 Ordinances should also apply to the State organs and their personnel.

Adm

16. DLO further advised that the principles explained in LC Paper Nos. CB(2)415/98-99(01) and CB(2)532/98-99(01) concerned two separate issues. The former dealt with the policy question of whether an Ordinance should bind the State and whether new laws should be made or existing laws amended to give effect to policy decisions. The latter set out relevant principles of adaptation which were not related to any reform of the law but were used for the purposes of adapting references to the "Crown" in legislation previously in force to reflect the position after the reunification and to comply with the Basic Law.

17. Mr Martin LEE considered that as Hong Kong was no longer a British colony but an SAR of the PRC, it was a fundamental mistake to continue to apply the statutory presumption of exclusion of the Crown to HKSAR laws by way of adapting the reference to "Crown" to "State" in section 66 of Cap. 1, thereby allowing State organs not to be bound by certain Ordinances. He said that BL 64 and BL 22 spelt out in clear terms that the HKSAR Government and all offices set up by departments of the Central Government should abide by the laws. In his opinion, replacing "Crown" with "State" in section 66 of Cap. 1 clearly infringed the letter and spirit of the Basic Law. Mr LEE considered that section 66 of Cap. 1 should be repealed.

18. In response, LO(CL) said that what the relevant Basic Law provisions meant was that the SAR Government and the State organs should abide by such laws as the SAR legislature might enact and apply to them. The function of section 66 of Cap. 1 was to introduce a statutory presumption in relation to the application of legislation. He added that section 66 of Cap. 1 was not an exclusively colonial provision. There were common law equivalents applicable in other common law jurisdictions like Canada and Australia. In response to the proposal to repeal section 66 of Cap. 1, LO(CL) said that such question involved a policy decision of law reform in relation to State immunity rather than an adaptation of law issue. He advised that section 66 of Cap. 1 was considered to be consistent with the Basic Law, having regard to the principles adopted for treatment of laws previously in force under the Decision of the Standing Committee of the National People's Congress ("NPCSC") of 23 February 1997. If section 66 of Cap. 1 were to be repealed, the question of how to deal with the consequences must be seriously considered.

19. At the invitation of the Chairman, Mr Anthony CHOW informed the meeting that the position of the Law Society of Hong Kong ("the Society') was set out in LC Paper No. CB(2)469/98-99(01) and the Society's letter to the Secretary for Justice dated 3 April 1998 (previously circulated vide LC Paper No. CB(2)246/98-99(02)). The thrust of the Society's views was that it did not share the view of the Hong Kong Bar Association that BL 22 replaced the colonial presumption of exclusion of the Crown by a presumption of inclusion of PRC organs under the HKSAR laws. The Society submitted that the Decision of the NPCSC of 23 Feburary 1997 on the treatment of laws previously in force in Hong Kong constitutionally preserved the common law presumption of exclusion and applied it to the CPG or its competent authorities as well as the HKSAR Government. With regard to the substitution of "Crown" with "State", the Society queried the inclusion of "Central Authorities" in the definition of "State" as such reference did not exist in the Chinese version of the Basic Law. The Society also queried the inclusion of certain subordinate organs of the CPG to which the functional test applied. The Society felt that as "executive functions" were already clearly set out in the relevant provisions of the Basic Law, reference to subordinate organs' executive functions carried an implication that there were executive functions apart from those specified in the Basic Law, thus creating uncertainty.

20. In reply to the Chairman's question, Mr Raymond HO supplemented that he considered that the NPCSC's Decision which had been enacted as part of the local laws provided the guiding principles of interpretation on which references to the "Crown" in pre-reunification legislation should be adapted. Paragraph 10 of Annex 3 of the NPCSC's Decision preserved the presumption of exclusion of the Crown contained in the previous section 66 of Cap. 1. In further response to the Chairman, Mr Raymond HO said that he agreed to the inclusion of the President of the PRC in the definition of "State" in Cap. 1. He pointed out that the structure of the State as cited in The Constitution of the PRC comprised the President of the PRC.

21. In reply to the Chairman, Mr Philip DYKES said that in the UK, there were no statutory provisions similar to the terms of section 66 of Cap. 1. The notion of a right not to be bound by legislation was inconsistent with the principle of Parliamentary sovereignty under which the Crown had lost the right not to be bound by laws enacted by the UK Parliament for almost 300 years. Mr DYKES considered that section 66 of Cap. 1 merely reflected a common law principle of interpretation. He added that BL 22 was a substantive provision which set out in clear language the intention that the relevant State organs should be bound prima facie by legislation. Given the reunification and the difference in meaning between "Crown" and "State", one might doubt whether the presumption of exclusion should be retained and whether section 66 of Cap. 1 in its present form suited the Basic Law and the post-reunification situation in Hong Kong with a completely different constitutional setup.

22. In response to the Chairman, Mr WATSON-BROWN remarked that prior to the reunification, there was no necessity for a statutory definition of "Crown", apart from the reference to "Crown" in two different rights, i.e. "Crown in the right of the UK Government" and "Crown in the right of the Government of Hong Kong". Regarding the reference to "the President of the PRC", he opined that it quite nearly fit in with the meaning of "the sovereign" in the context of adaptation, but it did not equate with "the Queen". In reply to a further question from the Chairman, Mr WATSON- BROWN commented that the definition of "State" was as close as one could get to define the equivalent of the "Crown" as at 30 June 1997. Yet, he qualified that there was a difficulty trying to equate "State" and "Crown". The rights of the Crown in the UK and as they applied in Hong Kong prior to July 1997 were flexible in that they changed over time. There was no rigid definition of what the rights were. The rights of the State, on the other hand, were clearly established under the written Constitution of the PRC. He added that in so far as Hong Kong needed a new mechanism to adapt laws in force on or before 30 June 1997 to reflect the reunification, the Administration had not addressed the question of the binding effect of the laws on the State, in the light of the relevant provisions of the Basic Law.

23. The Chairman invited views on the point made by Mr Philip DYKES that there was no right of the Crown not to be bound by legislation. DLO opined that whether or not the Crown had such right was not a relevant issue. The key question was whether section 66 of Cap. 1 had been properly adapted to become the law of the HKSAR. Mr Patrick MOSS shared DLO's view.

24. The Chairman requested the Hong Kong Bar Association and the Law Society of Hong Kong to submit their views in writing on the issues discussed for further consideration of the Panel.

Bar/Law Society

Functions of State organs

25. Referring to the Law Society of Hong Kong's suggestion made in its submission that the functions of Xinhua should be clarified, Ms Emily LAU asked how the Society understood the role performed by Xinhua in Hong Kong. Mr Anthony CHOW responded that Xinhua was quoted as an example to illustrate the Society's concern that the roles of subordinate organs of the Central Government were generally unclear. The uncertainty should be removed to satisfy the public that such bodies were performing their functions within the sphere allowed for under the Basic Law, and to enable the public to identify subordinate organs falling within the definition of "State" from those which did not. Mr Raymond HO added that as the functions of State organs were not easily discernible, it would create a heavy burden of proof on litigants in judicial proceedings.

26. In response to Mr HO's point, LO(CL) explained that the onus would be on the subordinate organ concerned to prove to the satisfaction of the court its claim that it fell within the definition of "State" in a given case.

II. Adaptation of laws programme
(LC Paper Nos. CB(2)298/98-99(01); CB(2)478/98-99(01) and CB(2)532/98-99(01))

27. The Chairman drew members' attention to the following papers -

LC Paper No. CB(2)298/98-99(01) which set out the timetable of the Adaptation of Laws Bills to be introduced into the Legislative Council. At present, a total of 600-odd Ordinances which required adaptation were divided into 54 Adaptation Bills but the number could vary. Introduction of the Bills had started in October 1998 and the Government's intention was to have the entire Adaptation of Laws exercise completed within the 1998-99 legislative session.
LC Paper No. CB(2)478/98-99(01) - Extract of minutes of meeting of the Panel on Constitutional Affairs on 21 September 1998 which recorded that, among other things, the Administration had been urged to consult the legal profession on all Adaptation of Laws Bills.

28. At the invitation of the Chairman, Law Draftsman ("LD") briefed members on LC Paper No. CB(2)532/98-99(01) which explained the principles on which references to "the Crown" in certain Ordinances should be adapted. He advised that the NPCSC's Decision of 23 February 1997 set out a number of essential principles for interpreting and adapting the laws previously in force in Hong Kong (other than the 24 items not adopted by the NPCSC) which were maintained as the laws of the HKSAR. Such principles had been enacted as part of the local laws under the Hong Kong Reunification Ordinance (Ord. No. 110 of 1997) and were incorporated as section 2A and Schedule 8 in Cap. 1. In line with such general principles, more detailed principles of interpretation had been added to Cap. 1 by the amendments under the Adaptation of Laws (Interpretative Provisions) Ordinance (Ord. No. 26 of 1998). Regarding references to "the Crown", the relevant principles of interpretation were in sections 1, 2 and 21 of Schedule 8 and section 7 of Schedule 9 to Cap. 1.

29. The Chairman enquired about the difference between Schedule 8 and Schedule 9 to Cap. 1 in relation to law adaptation. LD answered that the two Schedules served different purposes. The former basically reflected the interpretation principles contained in the NPCSC's Decision and the Hong Kong Reunification Ordinance which governed how references to "the Crown" appearing in certain Ordinances previously in force should be adapted. Section 7 of Schedule 9 to Cap. 1 was related to how references to "the Crown" should be construed in the context of Ordinances applying to or binding on the Crown. In dealing with the adaptation of the reference to "the Crown" in section 66 of Cap. 1, the Administration was satisfied that under common law principles, "State" as presently defined was the closest substitute for "Crown" to reflect the post-reunification position as well as to preserve the original intention of the law previously in force. LD further advised that the majority of the existing Ordinances where references to "the Crown" existed did not impose any binding effect on the Crown. In most cases, having regard to the content of the particular Ordinance concerned, adaptation would involve purely technical amendments in accordance with the principle in section 2 of Schedule 8 to Cap. 1, i.e. to have references to "the Crown" adapted to "the Government of the Hong Kong Special Administrative Region".

30. The Chairman pointed out that "Crown" was a common law expression with complex meaning. It had no statutory definition and its meaning under specific circumstances might have to be determined by the court where necessary. She questioned whether, by replacing "Crown" with "State" and providing the latter with a clear definition in an enactment, the meaning of the law might have been substantially changed and the court had been deprived of its power of interpretation. Mr Martin LEE added that in his opinion, the definition of "State" was too rigid and its scope too wide, thus giving rise to more cases of exclusion than might otherwise be justified.

31. LD clarified that from the law drafting point of view, "State" under its present definition meant any one of the classifications stated in the definition. Where an Ordinance expressly made reference to a specific class within the definition e.g. the HKSAR Government, then others such as the relevant State organs would be precluded.

32. DLO supplemented that section 7 of Schedule 9 to Cap. 1 was a corollary of section 66 of Cap. 1 which carried the meaning that all provisions which applied to or bound the Crown should be construed as applying to or binding on the State. Where a reference to "the Crown" arose in contexts other than a binding provision, it would be adapted according to the principles of construction in Schedule 8 to Cap. 1.

33. The Legal Adviser said that adaptation of reference to "the Crown" in section 66 of Cap. 1 was done and enacted. As he saw it, the task of the present Adaptation of Laws exercise was to adapt all the other Ordinances largely under the guidance of the adaptation principles set out in Schedule 8 to Cap. 1. The Bills Committees responsible for scrutinizing the various Adaptation of Laws Bills could only examine the Bills in accordance with those principles. The question of whether or not the legal presumption of exclusion in section 66 of Cap. 1 was justified was a separate issue not related to law adaptation.

34. The Chairman invited the legal professional bodies to provide comments in writing on LC Paper No. CB(2)532/98-99(01) for further consideration of the Panel. She advised that the LC Paper could be circulated to various Bills Committees in due course as a reference document to facilitate their scrutiny of the Adaptation Bills.

Bar/Law Society

35. There being no other business, the meeting ended at 6:55 pm.

Legislative Council Secretariat
14 December 1998

Legislative Council

Legislative Council Panel on Administration of Justice and Legal Services Minutes of Special Meeting held on Monday, 2 November 1998 at 4:30 pm in Conference Room A of the Legislative Council Building

Legislative Council
Panel on Administration of Justice and Legal Services

Minutes of Special Meeting
held on Monday, 2 November 1998 at 4:30 pm
in Conference Room A of the Legislative Council Building