Panel on Transport (Minutes) 9 Feb 99

Legislative Council

LC Paper No. CB(1) 1121/98-99
(These minutes have been seen
by the Administration)

Ref: CB1/PL/TP

LegCo Panel on Transport

Minutes of meeting held on Tuesday, 9 February 1999, at 10:00 am in Conference Room A of the Legislative Council Building

Members present :

Hon Mrs Miriam LAU Kin-yee, JP (Chairman)
Hon Edward HO Sing-tin, JP
Hon Albert HO Chun-yan
Dr Hon Raymond HO Chung-tai, JP
Hon LEE Wing-tat
Hon LEE Kai-ming, JP
Hon Mrs Selina CHOW LIANG Shuk-yee, JP
Hon CHAN Wing-chan
Hon CHAN Kam-lam
Hon LAU Chin-shek, JP
Hon Andrew CHENG Kar-foo
Hon FUNG Chi-kin
Dr Hon TANG Siu-tong, JP

Member attending :

Hon NG Leung-sing

Members absent :

Hon LAU Kong-wah (Deputy Chairman)
Hon Andrew WONG Wang-fat, JP
Hon TAM Yiu-chung, JP

Public officers attending:

Item IV
Mr Nicholas NG Wing-fui: Secretary for Transport
Ms Linda LAI: Deputy Secretary for Transport
Mr Brian LO: Principal Assistant Secretary for Transport
Mr Robert FOOTMAN: Commissioner for Transport
Mrs Dorothy CHAN: Deputy Commissioner for Transport
Ms Carolina YIP: Assistant Commissioner for Transport (Acting)
Mr Benedict LAI: Deputy Law Officer (Civil Law)
Item V
Mr Nicholas NG Wing-fui: Secretary for Transport
Mr Alex FONG: Deputy Secretary for Transport
Mr Robert FOOTMAN: Commissioner for Transport
Mrs Dorothy CHAN: Deputy Commissioner for Transport
Mr A S Y LUI: Assistant Commissioner for Transport
Mr Eric CROWTER: Chief Superintendent (Acting), Hong Kong Police Force
Mr Thomas LAW: Senior Government Counsel
Item VI
Mr Alex FONG: Deputy Secretary for Transport
Mr Robert FOOTMAN: Commissioner for Transport
Mr K K SIN: Chief Traffic Engineer, Transport Department

Attendance by invitation:

Item V
Motor Transport Workers General Union
Mr LI Wing-sang: Chairman
Mr CHEUK Siu-yee: Vice-chairman
The Kowloon Taxi Owners Association Ltd: Mr YAM Tai-ping
United Friendship Taxi Owners & Drivers Association Ltd: Mr LIU Wai-hung; Mr AU YEUNG Kan
The Hong Kong Union of Light Van Employees: Mr IP Moon-lam
Item VI
MTR Corporation
Mr Eddie SO: Transport Planning Manager
Kowloon-Canton Railway Corporation: Mr K K LEE
Director, East Rail

Clerk in attendance :

Mrs Vivian KAM,: Chief Assistant Secretary (1)5

Staff in attendance :

Mr Jimmy Y T MA, JP,: Legal Adviser
Miss Connie FUNG,: Assistant Legal Adviser 3
Mr Andy LAU,: Senior Assistant Secretary (1)6

I Confirmation of minutes and matters arising
(LC Paper No. CB(1) 813/98-99 -- Minutes of the meeting held on 18 December 1998)

The minutes of the meeting held on 18 December 1998 were confirmed.

II Information papers issued since last meeting

(LC Paper No. CB(1) 803/98-99	--	Central Kowloon Route - Consultants' design fees and site investigations
LC Paper No. CB(1) 863/98-99(01)	--	Creation of supernumerary posts in the Railway Development Office of the Highways Department
LC Paper No. CB(1) 863/98-99(02)	--	Creation of supernumerary posts in the Major Works Project Management Office of the Highways Department
LC Paper No. CB(1) 869/98-99	--	Bus services in Tuen Mun
LC Paper No. CB(1) 881/98-99	--	Time Square Traffic Management Scheme)

2. Members noted the information papers issued since the last meeting.

3. Referring to the two information papers on the creation of supernumerary directorate posts in the Highways Department for two to six years, the Chairman advised that since the papers were only received on 3 February 1999, it was not possible for the Panel to discuss the papers before they were put to the Establishment Subcommittee for consideration on 10 February 1999. The Chairman suggested and members agreed to express their views when the proposals were considered at the Establishment Subcommittee meeting.

III Items for discussion at the next meeting scheduled for 26 March 1999
(LC Paper No. CB(1) 866/98-99(01) -- List of outstanding items for discussion)

4. Members agreed to discuss the following items at the next meeting on 26 March 1999:

Traffic Management Measures to Improve Congestion in Central, Wanchai and Western Districts; and
Transitional Arrangements for Outlying Islands, New Town and Inter-Harbour Ferry Services.

5. Referring to the Second Railway Development Study, Mr LAU Chin-shek suggested that the Panel should set up a subcommittee to follow-up on the matter before consultants formulated their views. Since the subject matter had already been discussed at the last Panel meeting, the Chairman suggested as an alternative that the item be included on the agenda for a future meeting for further discussion. She invited members' views in this respect.

6. Mr CHAN Kam-lam pointed out that it might not be efficient and effective for the Panel to study in detail the various railway proposals unless the Panel worked hand-in-hand with the consultants. Furthermore, the recommendations of the consultants were not meant to be final and would be subject to detailed examination by the Administration. Given the large number of issues to be addressed by the Panel, he did not consider it desirable for a subcommittee to be formed at that stage. Mr CHAN was of the view that the Panel could examine the study findings with the Administration at a later stage, if necessary. Mr FUNG Chi-kin said that as the subject matter had been discussed by the Panel, he objected to the proposal for the item to be discussed again at that stage.

7. In view of members' reservations on Mr LAU's proposal, members agreed that Mr LAU should follow-up on the matter separately.

8. Members agreed to include an item "Exempted accessory under the Motor Vehicles (First Registration Tax) Ordinance (Cap. 330)" as proposed by Mrs Selina CHOW in the list of outstanding items for discussion.

IV Legal procedures in respect of the determination of maximum fares for licensed ferry services

(LC Paper No. CB(1) 785/98-99	--	Information paper provided by the Legal Service Division
LC Paper No. CB(1) 866/98-99(02)	--	Information paper provided by the Administration)

9. At the invitation of the Chairman, Assistant Legal Adviser 3 (ALA3) advised that since the meeting on 27 November 1998, the Legal Service Division had exchanged authorities with the Administration on the legal procedures for determining maximum fares for licensed ferry services. However, a common view on the matter could not be reached. The Legal Service Division maintained the view that a notice made under section 33(1) of the Ferry Services Ordinance (Cap. 104) (the Ordinance) was subsidiary legislation. Unless there was express provision to the contrary, the way an instrument was published in the form of "notice in the Gazette" might literally be construed as subsidiary legislation.

10. ALA3 further advised that although, subject to clear statutory provision, one of the criteria for determining whether an instrument had legislative effect was whether the instrument applied to individuals or the public or a sector thereof, it appeared that the Administration had adopted a narrow interpretation of the criterion. This was difficult to accept. ALA3 stressed that a notice made under section 33(1) of the Ordinance affected not only the interests of the licensee but also the interests of all members of the public who used or proposed to use the relevant licensed ferry service. As such, a notice made under section 33(1) did have legislative effect as it imposed a legal obligation on a licensee not to charge a fare exceeding the maximum fares as determined by the Commissioner for Transport, and was hence subsidiary legislation.

11. The Deputy Law Officer (Civil Law) (DLO/CL) briefed members on the Administration's position. On the basis of case references in other common law jurisdictions, a number of factors were relevant in determining whether an instrument had legislative effect and was subsidiary legislation:

there was an express provision identifying the instrument as being subsidiary legislation;
the instrument extended or amended existing legislation;
the instrument had general application to the public or a class, or to a significant section of the public as opposed to individuals;
the instrument formulated a general rule of conduct without reference to particular cases operating in the future; and
the legislative intent that the instrument was subsidiary legislation.

DLO/CL said that while legal advisers of the Administration and the Legislative Council Secretariat accepted the above criterion, the question was with the interpretation, in particular on whether the instrument applied to the public or a sector of the public as opposed to an individual.

12. In continuing, DLO/CL advised that through notices published in the Gazette in accordance with section 33(1) of the Ordinance, the Commissioner for Transport had determined "the maximum fares that may be charged for the carriage of passengers, baggage, goods and vehicles on any licensed service" by the licensee. Section 33(2) of the Ordinance clearly provided that "a licensee shall not charge a fare exceeding the maximum fare" determined by the Commissioner. A licensee who demanded a fare in excess of the fare so determined would contravene section 4 of the Ferry Service Regulations (Cap. 104) and commit an offence under section 30 of the same Regulations. As such, a notice made under section 33(1) of the Ordinance only applied or extended to, or otherwise bound, the licensee. It did not, and could not be so construed as to apply or extend to or otherwise bind people other than the licensee who had a statutory obligation to abide by the determination by the Commissioner. The rights and obligation of any person who used the services provided by the licensee clearly depended on the terms and conditions of the contract between them. Section 33(3) of the Ordinance expressly provided that nothing in section 33 "shall prevent a licensee from charging a fare lower than the maximum fare" determined by the Commissioner. The patron's rights and obligations under the contract had neither been extended nor reduced by the Ordinance. If the licensee demanded a fare exceeding the maximum fare determined by the Commissioner, the licensee would have acted in contravention of the Regulations and was liable to be prosecuted. The patron, however, had no statutory rights or obligations arising from the Commissioner's determination under section 33(1) and would certainly not commit an offence under the Ordinance by paying to the licensee a fare in excess of the maximum fare determined by the Commissioner.

13. DLO/CL further advised that taking into account the history leading to the passage of the Ferry Services Bill in 1982, it was clear that the legislative intent was to empower the Commissioner for Transport to determine maximum fare for licensed services by non legislative means. Since then, determinations of maximum fares for licensed ferry services had been effected as executive acts.

14. The Chairman enquired about the course of actions that could be taken by the legislature if notices which should be subject to negative vetting were not laid before the Legislative Council. ALA3 advised that under section 34(1) of the Interpretation and General Clauses Ordinance (Cap. 1), all subsidiary legislation should be laid on the table of the Legislative Council at the next meeting thereof after the publication in the Gazette of that subsidiary legislation. Although section 34(1) of Cap. 1 did not specify the person responsible for tabling the subsidiary legislation, she was of the view that the public officer or other authorized persons who made the relevant subsidiary legislation should be responsible for its tabling. Based on the above analysis, the legislature would not be in a position to table out of its own initiative any instrument which it considered as having legislative effect.

15. In response to the Chairman's further enquiry on the legal remedy arising from the non-tabling of subsidiary legislation, Legal Adviser (LA) advised that the requirement for the tabling of subsidiary legislation as stipulated in section 34 of Cap. 1 provided an unique and necessary mechanism for the Legislative Council to scrutinize subsidiary legislation made pursuant to delegated authority conferred in primary legislation. Although the power of interpretation of legislation did not rest with the legislature, the legislature could, in the course of enactment, include express provisions to reflect clearly the intent of the legislative proposal. Once a legislative proposal was passed into law, it was the responsibility of the Administration to implement laws passed by the Council. Decisions made by the Administration when exercising its power might be subject to challenge. In the case of disputes over the interpretation of legislation, as opposed to the original legislative intent, which might lead to one's beneficial interest being affected, the matter would be for the adjudication by the court.

16. Regarding the validity of an instrument which had not been published and laid before the Legislative Council for whatever reasons, or which had been published but not laid before the Council, LA advised that the issue had been examined in depth by the Subcommittee on the Ozone Layer Protection (Controlled Refrigerants) Regulation (Commencement) Notice 1998. The consensus was that such an instrument would still have legislative effect. In accordance with Article 64 of the Basic Law, the Government of the Hong Kong Special Administrative Region owed a duty to the Legislative Council to account for their own actions. LA further advised that if the omission was due to an interpretation of the legislative provisions different from the original legislative intent, one possible remedy would be for the Administration to introduce amendments to the relevant legislation by including an express provision to identify clearly the nature of such notice.

17. Referring to the authorities cited by legal advisers from both sides, LA advised that the legal opinions were not at all binding. The crux of the matter under discussion was whether members were prepared to accept, as a matter of policy, that determinations of maximum fares made by the Commissioner for Transport under section 33(1) of the Ordinance were administrative in nature. In this regard, members could exercise their power conferred by the Basic Law to request the Administration to give full justifications to account for their own actions and, if necessary, urge the Administration to amend the mechanism for the determination and adjustment of fares for licensed ferry services.

18. Regarding the clarity of statutory provisions, LA advised that for the purposes of determining fees and charges, there were numerous provisions in current legislation which contained references to "by notice in the Gazette". The general understanding was that such notice would be regarded as subsidiary legislation. The way that section 33(1) of Cap. 104 was drafted suggested that a notice made under section 33(1) of Cap. 104 was subsidiary legislation. If the Administration were to adopt a different approach in publishing and tabling such notices, the Administration should provide detailed justifications to account for the variation.

19. On the five criteria stipulated in paragraph 11 for determining whether an instrument had legislative effect, LA clarified that these criteria were only drawn up on the basis of judicial decisions and views expressed by writers in some common law jurisdictions. They were not at all binding. Furthermore, the Legislative Council had not discussed the criteria in detail nor had Members agreed on such "commonly adopted principle". Apart from the criteria of legislative intent which he would accept beyond doubt, the remaining four criteria would be subject to detailed examination before they could be adopted.

20. Mr Edward HO observed an inconsistency in the treatment of "notice in the Gazette" in the Road Traffic Ordinance (Cap. 374) and its subsidiary legislation as highlighted in paragraph 6 (a) of the paper provided by the Legal Service Division under LC Paper No. LS 101/98-99. He considered that the style or preference of a draftsman could not be accepted as an explanation to account for the inconsistency. If the Administration considered the existing legislation unclear, it should take the initiative to amend the legislation as appropriate. Given that the Administration had admitted that it was not always easy to draw a distinction between instruments of a legislative character and instruments of an executive character, he was of the view that the suggestion made by LA for the inclusion of an express provision in the legislation for the avoidance of doubt should be adopted.

21. The Chairman also pointed out that a clear distinction should be made in relevant legislation between instruments of a legislative character and instruments of an executive character, and that there should be consistency in drafting. DLO/CL advised that the subject matter was under examination by the Department of Justice. He agreed that one possible option was to include an express provision in the legislation to specify that a particular notice was not subsidiary legislation. But for the interpretation of existing legislation, the Administration would still need to apply the criteria as highlighted above to determine the status of such notices.

22. In response to Mr Edward HO's question as to the reason for having taken a different approach in handling notices made under section 40 of Cap. 374 at different times as highlighted in paragraph 6(a) of the information paper provided by the Legal Service Division, the Deputy Commissioner for Transport (DC for T) explained that there had only been one occasion where the Variation of Speed Limits Notice was published in the form of subsidiary legislation. This was in 1984 when the Road Traffic Ordinance was re-classified as Cap. 374 instead of Cap. 220, and during the which time the measuring unit of the prescribed speed limit was also changed from miles to kilometers. The Administration had taken the opportunity to publish the Variation of Speed Limits Notice in the form of a legal notice in one go. Since then, all other notices in relation to the variation of speed limit were published in the form of general notices in the Gazette.

23. Since speed limit affected all motorists, Mr Edward HO queried the reason for notices made under section 40 of Cap. 374 not being subsidiary legislation. DLO/CL said in response that as the subject matter was outside the agenda for the meeting, he had not undertaken detailed research on the matter but in general, the determination of whether an instrument had legislative effect should be based on the criteria discussed above, in particular the legislative intent of the legislation. As such, a simple conclusion could not be drawn based on a single factor.

24. Mr LAU Chin-shek suggested that in the light of a difference in legal opinions between the two sides, there was a need to examine the case for a judicial review on whether notices made under section 33(1) were subsidiary legislation. He added that the issue at stake was not purely a legal issue but a policy one. Mr LAU took the view that the Administration was deliberately depriving the Council of its inherent power to monitor ferry fares on behalf of the public.

25. Mr CHENG Kar-foo considered that a court decision in this respect would be the last resort. He emphasized that the right of Members of the Council in scrutinizing legislative proposals should not be compromised. Noting that the term "for the avoidance of doubt" had been included in Road Traffic Ordinance (Cap. 374) in a newly introduced amendment regulation, he enquired about the status of other notices made under Cap. 374. In this regard, the Chairman requested the Administration to provide a full list of all notices made under Cap. 374 and advise whether they were made in the form of subsidiary legislation or were administrative in nature.

Admin

26. Mr CHENG Kar-foo also enquired about the procedures for the Legislative Council to file a case for judicial review in the court. LA advised that the Legal Service Division had conducted researches on the subject matter with reference to judicial decisions on major Commonwealth jurisdictions, but were unable to identify any precedent cases in which the legislature had filed a case for judicial review out of its own initiative. However, this could not rule out the possibility of the Legislative Council of the Hong Kong Special Administrative Region taking such a course of action. LA also drew members' attention to the consideration that it might be difficult for the Council as a whole to come up with an unanimous view on the matter. Furthermore, without the benefit of precedent cases, any action would be done on a test basis. Under such circumstances, members would need to consider carefully the implications of such a course of action before deciding on the way forward. LA also pointed out that as the Administration should be accountable to the Legislative Council and implement laws passed by the Council, members could request the Administration to provide detailed justifications to account for their acts and to amend the fare adjustment mechanism where necessary through the established mechanism.

27. The Secretary for Transport (S for T) acknowledged that the Administration should be accountable to the Legislative Council. As such, the Administration was always prepared to explain in detail the fare determination mechanism and factors considered in the course of the examination of fare adjustment proposals from ferry operators.

28. The Chairman pointed out that the question at stake was that with the replacement of franchised ferry services by licensed ferry services, the Legislative Council would be deprived of the right to scrutinize fare adjustment proposals from ferry operators. In reply, S for T said that franchised ferry and licensed ferry services were essentially two different modes of operation which were subject to different fare controlling mechanisms under existing legislation. As such, it was not right to jump to the conclusion that the Legislative Council was deprived of the right to scrutinizing fare adjustment proposals for licensed ferry services. Mr LAU Chin-shek said that he could not accept such an explanation as this would undermine the right of the Legislative Council in scrutinizing proposals for fare adjustment. He suggested that the Panel should vote on a motion to urge the Administration to follow the procedure for subsidiary legislation, and table all future notices on the determination and adjustment of fares of licensed ferry services, including new licensed ferry services to be launched on 1 April 1999, for the scrutiny of the Legislative Council in the form of subsidization legislation.

29. Mr Edward HO pointed out that the crux of the matter was whether the Legislative Council had the right to scrutinize the maximum fares for licensed ferry services. He also remarked that there were numerous provisions in current legislation which contained references to "by notice in the Gazette" and the general understanding was that such notice would be regarded as subsidiary legislation. As the subject matter was not confined to transport-related legislation, he enquired whether it would be more appropriate for the House Committee to set up a subcommittee to follow-up on the issue. The Chairman advised that as there was a specific case arising from the determinations of maximum fares made by the Commissioner for Transport under section 33(1) of the Ferry Services Ordinance, the House Committee had referred the subject matter to the Transport Panel for initial examination. The Panel would make a report to the House Committee upon completion of deliberation.

30. In response to the Chairman, S for T confirmed that successful tenderers had been granted licences to operate the relevant ferry services as from 1 April 1999 with the fares stipulated in the annex to the licences. Given that the fare for the licensed services had already been set for the first two years of operation, members noted that there would not be any application for fare adjustment for these licensed ferry services in the near future.

31. Referring to the motion proposed by Mr LAU Chin-shek, the Chairman pointed out that as Mr LAU had not given advance notice of his intention to move a motion in this respect, members did not have sufficient time to consider the motion in detail. She suggested deferring consideration of the motion to the next meeting on 26 March 1999, and asked Mr LAU to submit the motion for members' consideration prior to the date of the next meeting.

(Post meeting note : A paper from Mr LAU Chin-shek on his intention to move a motion on the "Mechanism for approving future ferry fare increase proposals" at the meeting on 26 March 1999 was circulated to members vide LC Paper No. CB(1) 1021/98-99 dated 17 March 1999.)

32. Mr CHENG Kar-foo suggested that further researches be conducted on whether the Council had the right to file a case in court for judicial review. Independent legal advice would need to be sought, if necessary. In reply, LA advised that the Legal Service Division would be happy to assist if members wished to conduct researches in this respect. He, however, cautioned that the subject matter would touch on a number of fundamental issues including both technical and constitutional, and would not be confined simply to whether a particular provision was subsidiary legislation. These considerations would require further deliberation by the Council. The Chairman also enquired about whether parties other than the Legislative Council, for example, the Panel, an individual Council Member or a member of the public, had the right to file a case for judicial review in this respect. LA advised that if any individual who had a substantial interest in a matter which had been affected by an act or decision of the Administration could file a case in the court for judicial review.

33. In concluding deliberation, the Chairman said that as the subject matter would have significant implications, Members should discuss the case in detail at the next meeting before making a report to the House Committee.

V Review of reckless driving offence in Road Traffic Ordinance

Meeting with deputations

(LC Paper No. CB(1) 866/98-99(06)

Written submission from Motor Transport Workers General Union)

Meeting with the Administration

(LC Paper No. CB(1) 769/98-99(04)	--	Information paper provided by the Administration
LC Paper No. CB(1) 866/98-99(03)	--	Road Users' Code
LC Paper No. CB(1) 866/98-99(04)	--	Information paper provided by the Legal Service Division)

Meeting with deputations

Motor Transport Workers General Union

34. At the invitation of the Chairman, Mr LI Wing-sang, Chairman of the Motor Transport Workers General Union conveyed the views of the Union on proposals arising from the review. He said that the Union objected to both the new definition of dangerous driving and dangerous driving causing death as well as the proposed introduction of a new offence of careless driving causing death.

35. Mr LI was of the view that there were insufficient justifications for re-introducing the offences of dangerous driving. He said that the proposed test for dangerous driving on the basis of a standard expected of "competent and careful driver" would easily give rise to dispute as different police officers might have different perception on such standard. He pointed out that professional drivers would make every endeavour in any event to minimize the occurrence of accidents, and the proposal would simply impose extra financial burden on motorists.

36. Mr CHEUK Siu-yee, Vice-chairman of the Motor Transport Workers General Union, added that a driver would easily be convicted of careless driving even under existing legislation. For example, a driver might be charged with careless driving if a pedestrian who failed to look out for traffic was knocked down by the vehicle. If the pedestrian died, a more serious offence of careless driving causing death would be charged and this was unfair to motorists.

The Kowloon Taxi Owners Association Ltd

37. Mr YAM Tai-ping of the Kowloon Taxi Owners Association Ltd was in support of suitable penalties to deter motorists from dangerous driving as this would affect the safety of other road users. However, he considered existing penalties adequate for the purpose. He also disagreed with the view that there were difficulties in proving the mental state of drivers under the test of recklessness, and cited the example of the bus driver involved in the traffic accident in Tonnochy Road flyover on the third day of the Chinese New Year in 1998 being convicted of reckless driving causing death. Since there were no difficulties in enforcing the relevant provisions, the proposal for replacing reckless driving by dangerous driving was not justified.

38. On the standards expected of a "competent and careful driver", Mr YAM had reservations on the proposal to conduct tests for dangerous driving on the basis of the Road Users' Code. He pointed out that the Road Users' Code contained very stringent standards which were impractical and could not be followed easily by motorists.

39. As to the proposed introduction of a new offence of careless driving causing death, Mr YAM said that the proposal was unfair to motorists as it might be used as an alternative verdict for dangerous driving causing death in case the latter charge was acquitted. As traffic accidents might be caused by a number of factors including negligence of other road users, a driver ought not be held totally accountable for driving in a careless manner and be subject to extremely severe penalties.

United Friendship Taxi Owners & Drivers Association Ltd

40. Mr LIU Wai-hung of the United Friendship Taxi Owners & Drivers Association Ltd was of the view that motorists would be placed in an unfair position if the alternative verdict of careless driving causing death was applied in case charges for reckless driving causing death were acquitted. As traffic accidents might also be caused by the negligence of other road users, a driver should not be made to bear the brunt of the accidents.

41. Mr AU YEUNG Kan of the United Friendship Taxi Owners & Drivers Association Ltd queried the justifications for introducing a new offence of careless driving causing death. As the proposal was not accepted by the UK legislature, he questioned the rationale for implementing such in Hong Kong. The two alternatives of reckless driving causing death and careless driving causing death would pose a serious threat to motorists, bearing in mind variations in the standard of enforcement by different police officers. Since careless driving was not an intentional act, and as motorists would give due regard to road safety for their own benefits, there seemed to be inadequate justifications for the proposal. Furthermore, the proposed penalties were too harsh and would unduly affect the livelihood of professional drivers.

The Hong Kong Union of Light Van Employees

42. Mr IP Moon-lam of the Hong Kong Union of Light Van Employees shared the views expressed by other representatives. He was also concerned about the proposed mandatory disqualification for drivers as it would seriously affect the livelihood of professional drivers. Furthermore, he queried the justification for second time convicts for the offence of careless driving causing death to be subject to a penalty of mandatory disqualification from holding a driving licence for a permanent period, which was much more severe than that of second time convicts for the offence of dangerous driving causing death. DC for T noted the observation made by Mr IP and undertook to examine the matter further. Meeting with the Administration

43. At the invitation of the Chairman, DC for T briefed members on the proposed amendments to improve existing legislation on reckless driving and careless driving as set out in the paper.

44. Whilst supporting the initiative to enhance road safety, Mr CHENG Kar-foo stressed the need to address the concerns of the trade. He was of the view that the driving standards specified in the Road Users' Code were too stringent and outdated as to be used as the basis for determining whether a motorist was driving beyond the expected standards of a "competent and careful driver". He cited, for example, that the Road Users' Code prohibited smoking and listening to radio or cassette tapes while driving. He was worried that some offences which should have been charged with careless driving might eventually fall within the scope of dangerous driving. He therefore suggested that a separate code of practice specifying acts which constituted dangerous driving should be drawn up for reference and compliance by motorists.

45. The Senior Government Counsel advised that the proposed definition of dangerous driving had been drawn up by reference to the UK system. For benchmarking purpose, it was considered necessary to specify some objective criteria for easy reference by the court. He said that under the proposal, a person would only be regarded as driving dangerously if the manner of driving fell far below what would be expected of a competent and careful driver. As such, a minor deviation from the driving standards as set out in the Road Users' Code would not be tantamount to dangerous driving.

46. The Deputy Secretary for Transport (DS for T) added that the proposal to include an objective standard in the legislation to help determine whether a driver was driving in a manner which fell below the standard of a competent and careful driver was only a move to formalize existing practices. Even in the absence of such a provision, the court could make reference to the Road Users' Code as it saw fit. However, in the light of the member's comment, the Administration would review the need for drawing up a separate schedule to delineate behaviours considered dangerous. He stressed the need to strike a proper balance to ensure that the effectiveness of the legislation would not be compromised as a result.	Admin

47. Noting that an objective standard was not included in the UK legislation and having regard to the fact that it was already a practice for the court to refer to the Road Users' Code for determining whether a driver was in breach of offences for reckless or careless driving, the Chairman requested the Administration to review the need to include an express provision in the proposed legislation to this effect. She was worried that the variation in practice would create complications when reference was made to the practices in other common law jurisdictions.	Admin

48. Mr NG Leung-sing was concerned about a possible abuse of power, and enquired whether separate guidelines would be provided to front-line officers for enforcement. The Chief Superintendent of the Hong Kong Police Force (CS/HKPF) took note of Mr NG's comments and undertook to examine the need. He said that in many accidents, defendants were found guilty of the lesser offence of careless driving rather than the more serious offences of reckless driving or reckless driving causing death. As a result, the defendants were only fined a few thousand dollars. The situation had aroused wide public concerns and, following a review conducted by the Administration, a series of amendments to improve existing legislation on careless and reckless driving had been proposed.	Admin

49. On prosecution policy, CS/HKPF advised that all accidents involving fatalities and serious injuries were referred to the Department of Justice for follow-up after evidence had been collected by the police. Subject to the decision of the Department of Justice, prosecution would be made against motorists on the recommendation of the police. He did not envisage a sudden upsurge in prosecutions for dangerous driving upon enactment of the new legislation. As regards careless driving causing death, he advised that the numbers of related cases were about 200 per annum.

50. Mr HO Chun-yan was of the view that whilst the proposed definition of dangerous driving could help address the definitional problem in Hong Kong, there should be a proper balance to ensure that motorists would not fall inadvertently into the trap of being charged with a more serious offences of dangerous driving, or an alternative verdict of careless driving if the former was not successful. He enquired about the mechanism to prevent abuse, and queried the need to introduce a new offence of "careless driving causing death".

51. In reply, DC for T explained that if the court acquitted the defendant of reckless driving causing death or reckless driving, the only alternative verdict was careless driving. The Administration had made reference to practices adopted by other countries in tackling the problem and had learnt that the UK legislature had replaced reckless driving by dangerous driving. On this basis, an attempt was made to refine the UK' s definition of dangerous driving. In order to study whether the proposed definition could help address the definitional problem in Hong Kong, the Administration had applied the proposed definition to selected cases previously prosecuted for reckless driving causing death but which ended up with a lesser verdict of careless driving. The exercise showed that some of the controversial cases would not be caught under the proposed definition of dangerous driving. To enable the court to take into account the consequences of careless driving, proposals had been made to introduce a new offence of "careless driving causing death" so that the sentences would be commensurate with the seriousness of the act. At the request of Mr CHENG Kar-foo, the Administration undertook to provide an analysis on the application of the proposed definition to the selected cases previously prosecuted for reckless driving causing death but which ended up with a lesser verdict of careless driving.

Admin

52. Mr CHAN Wing-chan shared the concern of the Motor Transport Workers General Union over the ambiguity of the proposed legislation. As there might be different standards of enforcement, motorists would easily be charged with different offences under the proposed legislation.

53. On the proposed introduction of a new offence of "careless driving causing death", Mr Edward HO enquired whether the proposal was in contravention of the common law principle. ALA3 replied in the affirmative. She advised that one of the common law principles was that a person ought not be held accountable for carelessness. This was reflected in a case law where it was held that judgment on careless driving should have no regard of the tragic death which ensued. Following on from this advice, Mr Edward HO said that unlike reckless and dangerous driving, a person found guilty of careless driving did not really want to commit the offence. Given the wider implication of careless driving causing death and the resultant severe penalty, as well as the wider implications of the offence on other types of careless mistakes committed by professional drivers in the course of their duty, there was a need to conduct further examination on how far a driver should be held responsible for the death of victims caused by his carelessness.

54. Regarding existing penalties under sections 36, 37 and 38 of the Road Traffic Ordinance (Cap. 374), DC for T advised that the penalties had not been revised since 1982 and the sentences in previous cases for related offences were not commensurate with the seriousness of the consequence or the driving behaviour involved. In order to restore the deterrent effect of the legislation, there was a need to update the levels of pecuniary fines. It was also proposed that the court should be given the discretion to cancel the licence of a reckless driver on first conviction if the offence was committed with blatant disregard to the safety of other road users.

55. Regarding the legislative timetable of the proposal, DS for T advised that the Administration would further consult the trade and would be aiming to submit the revised proposals to the Council in two to three months' time. The Chairman requested the Administration to arrange for its further proposals to be discussed by the Panel before making formal legislative proposals.	Admin
56. In concluding discussion, the Chairman remarked that while members were concerned about road safety, the question at stake was whether the penalty and the regulatory framework were pitched at the appropriate level to achieve the highest level of safety. To facilitate members' consideration of the matter, she requested the Administration to review the need for introducing a new offence of "careless driving causing death", and the appropriateness of referring to the Road User's Code in determining the standard expected of a competent and careful drive. She also asked the Administration to consider drafting a new set of code of practice on dangerous driving.	Admin
57. In addition, the Chairman also requested the Administration to have regard to the following considerations which were taken into account by the UK legislature in objecting to the proposal for introducing a new offence of careless driving causing death:	Admin

the principle of looking at consequences rather than culpability was wrong;
the judgment on carelessness should have no regard of the consequences of the accidents if the fault element was purely carelessness; and
the penalties for "careless driving causing death" would serve no deterrent effect on motorists as careless driving was somewhat an unintentional behaviour.

VI Park and Ride Scheme
(LC Paper No. CB(1) 866/98-99(05) -- Information paper provided by the Administration)

58. The Chief Traffic Engineer of the Transport Department (CTE/TD) briefed members on the outcome of the trial Park and Ride (PnR) Scheme (the trial Scheme) at Choi Yuen Road in Sheung Shui, and the proposals for the future development of PnR Scheme in Hong Kong as set out in the information paper.

59. Noting that the trial Scheme had only attracted a daily average of 122 users, Mr LEE Wing-tat enquired about the reasons for the low utilization despite the offer of a concessionary parking fee at $3 per hour. The Director, East Rail of Kowloon-Canton Railway Corporation (D/KCRC) advised that since the trial site provided only a parking capacity of 170 spaces, the observed utilization was considered satisfactory. Furthermore, as the site was located at a distance of about three minutes walk from the Sheung Shui KCR Station and no covered walkway was provided, motorists might choose not to use the facility in case of bad weather.

60. In response to the Chairman and Mr LEE Wing-tat's further questions, DS for T advised that the great majority of PnR parkers used the facility during 8:00 am and 6:00 pm on weekdays for work-related trips. Hence, utilization on Sundays and public holidays was significantly lower than that of weekdays. As regards the duration of parking, CTE/TD advised that 22% of PnR parkers used the facility for more than 12 hours, 17% for 10 to 12 hours, 15% for eight to 10 hours, and 18% for six to eight hours.

61. In response to Mr Edward HO, DS for T said that the majority of PnR users originated from Sheung Shui, Yuen Long and Fanling. The destinations were varied with 48% of trips heading for Yau Tsim Mong, 18% for Kowloon, and 28% for Hong Kong Island.

62. Mr CHENG Kar-foo pointed out that there were criticisms on the existing arrangement where PnR parkers had to stamp their parking tickets again at one of the specified KCR stations and pick up the car within 90 minutes on their return journeys. He suggested relaxing the 90-minute requirement so as to enable PnR parkers to shop around before retrieving their vehicles. D/KCRC took note of the member's view and confirmed that KCRC would explore the suggestion in collaboration with the Government.

KCRC

63. On the possible abuse of PnR facility by other motorists, the Transport Planning Manager of MTR Corporation (TPM/MTRC) advised that the Corporation did not find such abuses a serious problem. He explained that MTR passengers who parked at the Kowloon or Tsing Yi Airport Express Line Station car parks and rode on the MTR lines were entitled to an hourly parking rate of $5. Passengers were required to stamp the car park tickets at the Customer Service Centres located in the paid area of the Tung Chung Line Concourse of Kowloon or Tsing Yi Station in order to enjoy the discount. The concessionary parking charge would also apply to the PnR Scheme for Airport Express customers who had to stamp their car park tickets at the Airport Station. As for Park and Greet users, they had to stamp their car park ticket at the station and leave the car park within an hour in order to be eligible for the concessionary rate of $10. Parking in excess of one hour would be calculated at normal rates.

64. Mr Edward HO was of the view that the Administration should take a more proactive approach to promote the use of PnR facility and identify additional sites for the provision of PnR facilities if PnR was considered to be an effective means for traffic management purpose. DS for T replied that the current PnR site at Choi Yuen Road in Sheung Shui was let out under a short term tenancy due to expire in late 1999. The Administration had identified a replacement site close to the station and was planning for a replacement PnR Scheme on this site for the Sheung Shui area from 1999 to 2001. A permanent PnR facility was being considered in the KCRC Sheung Shui Station Development Project. In the light of the experience of the trial Scheme in Sheung Shui, the Administration would review the planning parameters and other publicity strategies in planning for future PnR facilities.

65. The Chairman pointed out that a longer walking distance would deter motorists from using the PnR facility. She asked the Administration to take this into account in planning for future facilities. DS for T acknowledged that the location of PnR facility was an essential planning parameter. In fact, the Administration had tried to identify suitable sites along the railway alignments including the Tai Po and Shatin Stations. However, given that the principal reasons for using PnR facility were related to savings in travelling expenses and time, it would not be attractive if PnR facilities were provided at locations which were close to city centres. In the light of the above, the most desirable locations would be in the northern part of the New Territories such as Sheung Shui and Fanling.

66. Noting that a permanent PnR facility was being considered for the KCRC Sheung Shui Station Development project, Mr CHENG Kar-foo enquired about the financial requirement of the proposal as it might have implications on future fares of KCR. D/KCRC advised that the proposal formed part of the future West Rail (Phase II) project. Since detailed design was presently underway, no concrete financial projection was available for the time being. DS for T added that the provision of car parks above the railway station at Sheung Shui had all along been included in the planning brief of the West Rail project, and a number of parking spaces could be set aside for PnR purpose.

67. Noting that one of the benefits of PnR Scheme was to help relieve congestion, Mr LEE Wing-tat enquired whether it would be more cost effective to provide additional PnR facilities in different areas so as to save expenditure on road improvement projects, bearing in mind that most carriageways would be under-utilized during non-peak periods. DS for T advised that the Administration at present did not match the benefits of PnR Scheme versus cost savings for road expenditure. In practice, this would be difficult to quantify.

68. Mrs Selina CHOW enquired about the reason for not providing PnR facilities on Hong Kong Island such as Southern District, Sheung Wan and Chai Wan. DS for T pointed out that PnR facilities should be provided along existing and new railway stations which were far away from city centres. According to researches, the main reason for PnR patronage was the saving in travelling expenses and time. Against this background, it would not serve the purpose if PnR facilities were to be provided in the city centre. TPM/MTRC said that presently, parking spaces were already provided near the Tin Hau and Shau Kei Wan MTR Stations. He nevertheless undertook to consider the member's suggestion for the provision of PnR facilities in the districts concerned.

MTRC

69. The Chairman enquired whether the Administration had plans to allocate some Government car parking spaces for PnR purpose. DS for T advised that the present strategy was to use railway stations as transfer hubs for PnR Schemes and ongoing discussion were being held between Government and the two Railway Corporations to plan PnR facilities.

VII Any other business

70. There being no other business, the meeting ended at 12:55 pm.

Legislative Council Secretariat
22 April 1999