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Mass Transit Railway Bill
Provide for---
(a) the granting of a franchise to the MTR Corporation Limited,
a company incorporated under the Companies Ordinance
(Cap. 32), to operate the Mass Transit Railway and to construct and operate any extension;
(b) the regulation of the operation of the Mass Transit Railway under the franchise, including all aspects of safety on the railway;
(c) the repeal of the Mass Transit Railway Corporation Ordinance (Cap. 270), the dissolution of the Mass Transit Railway Corporation incorporated under that Ordinance and the vesting of the property, rights and liabilities of the Mass Transit Railway Corporation in the MTR Corporation Limited;
(d) matters relating to the incorporation of the MTR Corporation Limited, the allotment of shares of the company and the application of various enactments in relation to the company,
and for connected purposes.
Enacted by the Legislative Council.
PART I
Preliminary
1. Short title and commencement
(1) This Ordinance may be cited as the Mass Transit Railway Ordinance.
(2) This Ordinance shall come into operation on a day to be appointed by the Secretary for Transport by notice in the Gazette.
2. Interpretation
(1) In this Ordinance, unless the context requires otherwise---
"appointed day" (指定日期) means the day designated as the appointed day under section 3;
"Commissioner" (署長) means the Commissioner for Transport;
"Corporation" (地鐵公司) means the MTR Corporation Limited;
"extension" (延長部分) means, in relation to the railway, an extension to the railway provided for in a scheme authorized under the Railways Ordinance (Cap. 519);
"franchise" (專營權) means the franchise granted under section 4;
"franchise period" (專營期) means the period for which the franchise is granted under section 4, as extended under this Ordinance;
"inspector" (視察主任) means a person appointed as an inspector under
section 26;
"Mass Transit Railway" (地下鐵路) means the railway system known as the Mass Transit Railway and indicated on plans endorsed by the Secretary and deposited by the Corporation with the Land Registry from time to time, or any part of that system;
"Mass Transit Railway Corporation" (地下鐵路公司) means the entity of that name established by section 3(1) of the repealed Ordinance;
"MTR Corporation Limited" (地鐵有限公司) means the entity of that name incorporated under the Companies Ordinance (Cap. 32);
"MTRC" means the Mass Transit Railway Corporation;
"operating agreement" (營運協議) means the agreement or agreements specified in section 4(2) as having effect from time to time;
"railway" (鐵路) means the Mass Transit Railway;
"railway premises" (鐵路處所) means---
(a) any area, space or building occupied by the Corporation which is designed, equipped or set apart for the carriage of passengers by train or for affording facilities incidental to the carriage of passengers by train; and
(b) any train on premises specified in paragraph (a);
"repealed Ordinance" (已廢除條例) means the Mass Transit Railway Corporation Ordinance (Cap. 270);
"Secretary" (局長) means the Secretary for Transport;
"service" (服務) means railway service;
"transport interchange" (運輸交匯處) means any area, space or building delineated in plans certified by the Commissioner and deposited by the Corporation in the Land Registry under section 31.
(2) Reference in this Ordinance to construction of the railway is a reference to undertaking every stage of the process beginning with its design and planning and ending when the railway is brought into operation.
3. Appointed day
The Secretary may, by notice in the Gazette, designate a day to be the appointed day for the purposes of this Ordinance.
PART II
Grant and Extension of Franchise
4. Grant of franchise to Corporation to operate railway
(1) Subject to this Ordinance, the Corporation is granted the franchise, for a period of 50 years from the appointed day---
(a) to operate the Mass Transit Railway, including any extension;
(b) to construct any extension.
(2) The terms and conditions agreed between the Government and the Corporation as having effect with respect to the franchise granted under this section are those set out in one or more agreements entered into between the Government and the Corporation which are declared by their terms to be an operating agreement for the purposes of this Ordinance or to be an agreement amending or supplementing such an agreement.
5. Extension of franchise
(1) At any time or times during the franchise period, but not later than 5 years before the expiry of that period, the Corporation may apply to the Chief Executive in Council for an extension of the franchise.
(2) An application for extension of the franchise under this section---
(a) shall be made by notice to the Secretary; and
(b) shall be accompanied by all materials that the Corporation wishes to put forward in support of the application.
(3) The Secretary shall submit to the Chief Executive in Council a report setting out his recommendation as to whether, having regard to all relevant considerations (including any provision of the operating agreement relating to the extension of the franchise), the Corporation's franchise should be extended.
(4) The Chief Executive in Council may approve an extension of the franchise, but shall only do so if he is satisfied that the Corporation is capable of maintaining a proper and efficient service under this Ordinance and the operating agreement.
(5) Notice of any extension of the franchise granted under this section shall be published in the Gazette.
6. Restriction on transfer of franchise
The Corporation shall not transfer the franchise or any part of it without the approval of the Chief Executive in Council.
7. Directors of Corporation
Unless the Chief Executive in Council otherwise permits, a majority of those directors of the Corporation who are not additional directors appointed under section 8 must be persons ordinarily resident in Hong Kong.
8. Chief Executive may appoint additional directors
(1) The Chief Executive may appoint, for a period he directs, not more than 3 persons to be additional directors of the Corporation (in this section referred to as "additional director").
(2) An additional director may not be removed from office except by the Chief Executive.
(3) Subject to this Part, an additional director shall be treated for all purposes as if he had been appointed at a general meeting of the Corporation as a director of the Corporation.
(4) Without affecting the generality of subsection (3), an additional director shall, in the same manner and to the same extent as any other director of the Corporation, be entitled---
(a) to participate in meetings of the Corporation and the board of directors of the Corporation;
(b) to have access to all material concerning the affairs of the Corporation; and
(c) to be furnished with such information with respect to the affairs of the Corporation as he may specify.
(5) The Companies Ordinance (Cap. 32) and any other law, and any document, shall be construed subject to this section.
PART III
Performance under Franchise
9. Corporation to maintain proper and efficient service
The Corporation shall maintain a proper and efficient service at all times during the franchise period in accordance with this Ordinance and the operating agreement.
10. Secretary may obtain information
(1) The Secretary may, by notice in writing to the Corporation, require the Corporation---
(a) to afford the Secretary sufficient facilities for obtaining information with respect to the business and affairs of the Corporation in connection with the franchise; and
(b) in the manner and at the reasonable times specified in the notice, to furnish the Secretary with information with respect to the matters specified in paragraph (a) and afford to him facilities for the verification of that information,
and to do so within a period specified in the notice, being a period that is reasonable in the circumstances.
(2) In subsection (1), reference to information is a reference to information which the Secretary may reasonably require for verifying that the Corporation has complied with the provisions of this Ordinance, the operating agreement and any direction, specification or requirement given under this Ordinance or the operating agreement.
(3) If the Corporation, without reasonable excuse, fails to comply with a notice given under this section the Corporation commits an offence and is liable to a fine at level 4.
11. Records
(1) The Corporation shall keep, to the satisfaction of the Secretary, records in respect of the following matters relating to the railway---
(a) the number and carrying capacity of trains in use or under maintenance;
(b) the number of journeys undertaken and the total distance travelled;
(c) the number of passengers carried;
(d) the receipts;
(e) details of any incident causing a service breakdown of 20 minutes or more;
(f) the maintenance of trains;
(g) the number and types of trains, and their carrying capacity, on order or under construction together with details of the likely availability of such trains for use in the operation of the railway.
(2) The Secretary may, by notice in writing to the Corporation, require the Corporation---
(a) to furnish to the Secretary, at the reasonable times and in the form specified in the notice, copies of the records kept by the Corporation in accordance with subsection (1);
(b) to permit the Secretary, or any other person authorized in writing by him, to inspect at any reasonable time all records kept by the Corporation in accordance with subsection (1),
and to do so within a period specified in the notice, being a period that is reasonable in the circumstances.
(3) The Secretary or other person authorized by the Secretary may make copies of records inspected under subsection (2)(b).
(4) If the Corporation, without reasonable excuse, fails to comply with subsection (1), or with a notice given under subsection (2), the Corporation commits an offence and is liable to a fine at level 4.
12. Limitation on powers under sections 10 and 11
(1) Nothing in section 10 or 11 requires the Corporation or any other person---
(a) to produce any document which the Corporation or that other person could not be compelled to produce in civil proceedings in the High Court; or
(b) in complying with any requirement for the furnishing of information, to provide any information which the Corporation or that other person could not be compelled to provide in evidence in civil proceedings in the High Court.
(2) Neither the Secretary nor any other person shall disclose any information obtained pursuant to section 10 or 11 unless he has consulted the Corporation regarding his intention to do so.
13. Chief Executive in Council may give directions
(1) The Chief Executive in Council may, if he considers the public interest so requires, and after consultation between the Secretary and the Corporation, give directions in writing to the Corporation in relation to any matter concerning the franchise.
(2) The directions may be of a general character or related to a specific obligation of the Corporation under the franchise.
(3) The Corporation shall comply with any direction given, unless the direction is inconsistent with this Ordinance.
(4) The Government is liable to pay compensation to the Corporation for loss or damage of any kind (including consequential loss) sustained by the Corporation and in any way arising from or attributable to the Corporation's compliance with a direction under this section.
(5) Reference in subsection (4) to loss or damage includes reference to loss or damage arising from or attributable to the Corporation's compliance with a direction under this section that is contrary to prudent commercial principles.
14. Chief Executive in Council may impose
financial penalty
(1) The Chief Executive in Council may, on a reference by the Secretary, by notice in writing impose on the Corporation a financial penalty specified in the notice for any failure by the Corporation to comply with any provision of this Ordinance or the operating agreement, or with any direction, specification or requirement given under this Ordinance or the operating agreement.
(2) The Corporation shall not be found liable to the imposition of a penalty under subsection (1) unless---
(a) the Corporation has been given an opportunity to make representations to the Chief Executive in Council; and
(b) the Chief Executive in Council is satisfied---
(i) that the failure is substantial or is persistent in nature; and
(ii) where the obligation is one of a continuing nature, that the Corporation has had a reasonable opportunity of remedying the failure.
(3) A financial penalty imposed under this section shall not exceed---
(a) in respect of any failure---
(i) in the case of a first imposition of such a penalty, an amount equal to a fine at level 3;
(ii) in the case of a second imposition of such a penalty, an amount equal to a fine at level 4;
(iii) in the case of a third or subsequent imposition of such a penalty, an amount equal to a fine at level 5; and
(b) in respect of any failure which is of a continuing nature, $10,000 for each day on which the failure continues,
and in this subsection, reference to an amount equal to a fine at a certain level is a reference to the amount shown in Schedule 8 to the Criminal Procedure Ordinance (Cap. 221) as the amount of a fine of that level for an offence under an Ordinance.
(4) A financial penalty imposed under this section is recoverable by the Government as a civil debt.
(5) Where the Chief Executive in Council is considering the imposition of a penalty on the Corporation under this section, he shall not take into account any failure of the Corporation which was considered for the purposes of a previous imposition of a penalty on the Corporation under this section, unless the Corporation has failed to pay that previous penalty or to rectify any default that gave rise to the failure in question.
(6) This section does not apply to any provision of this Ordinance the contravention of which is an offence under this Ordinance.
PART IV
Suspension, Revocation and Expiry of Franchise, etc.
15. Suspension of franchise
(1) If, on a reference by the Secretary, the Chief Executive in Council considers that---
(a) an emergency exists or is likely to come into existence; or
(b) there is or is likely to be for any reason a substantial breakdown in the operation of the railway, other than a breakdown that appears to be capable of being remedied within a reasonable period,
and if he considers that it is in the public interest to do so, the Chief Executive in Council may order that the franchise be suspended either wholly or in part.
(2) Before making any reference to the Chief Executive in Council
under subsection (1)(b) the Secretary shall, as far as is practicable in the circumstances, consult the Corporation in relation to the proposed reference.
(3) An order for suspension under subsection (1) remains in effect until the Chief Executive in Council orders the suspension terminated.
(4) Notice in writing of any order made under subsection (1) or (3) shall be given to the Corporation.
(5) Where the franchise is suspended under subsection (1) (whether wholly or in part), the Government, its nominee or a third party designated by the Government---
(a) may take possession of any property used or kept by the Corporation for the purposes of or in connection with the suspended part of the franchise;
(b) during the course of the suspension, may retain any property taken possession of under paragraph (a) and may use that property in the operation of the railway as it thinks fit.
(6) The Government is liable to pay compensation---
(a) for the use of, loss of or damage to any property taken possession of under subsection (5); and
(b) except where a franchise is revoked under section 18, for loss or damage of any kind (including consequential loss) sustained by the Corporation and in any way arising from or attributable to the suspension of the franchise under subsection (1).
(7) The right conferred under subsection (5) to take possession of property and to use that property in the operation of the railway includes the right to keep or maintain the property in whatever condition, or to alter the property in whatever manner, is considered appropriate for that purpose and, without affecting any entitlement to compensation under subsection (6), nothing in this Ordinance or any other law imposes on the Government any obligation in relation to the condition in which property taken under subsection (5) is to be kept or returned.
16. Default under franchise
For the purposes of sections 17 and 18, the Corporation is in default under the franchise if---
(a) either of the following occurs---
(i) there has been a substantial failure by the Corporation to discharge an obligation under the operating agreement; or
(ii) the Corporation has failed or there is a likelihood of its failing substantially to operate the railway in accordance with this Ordinance,
and the failure (or likely failure) results in or is likely to result in---
(A) a substantial breakdown of the service;
(B) the safety of persons travelling on the railway or being on the railway premises being endangered in a manner likely to result in serious injury to those persons; or
(C) serious injury to or the death of persons travelling on the railway or being on the railway premises; or
(b) a voluntary winding up of the Corporation is commenced or a winding up order in respect of the Corporation is made,
and the expression "default" shall be construed accordingly.
17. Defaults capable of remedy
(1) Where it appears to the Secretary that the Corporation is in default, and that the default is one which is capable of being remedied, the Secretary may serve on the Corporation a notice calling upon the Corporation---
(a) to remedy the default or to take measures or make arrangements to the satisfaction of the Secretary to ensure that the default is remedied; and
(b) to do so within the period specified in the notice, being a period that is reasonable in the circumstances, or within a further period as the Secretary may allow.
(2) Unless the circumstances require otherwise, the period specified in a notice served under subsection (1) shall be a period of 28 days or more.
18. Revocation of franchise
(1) Where---
(a) the Secretary reports to the Chief Executive in Council that the Corporation has failed to comply with a notice served under section 17; or
(b) it appears to the Chief Executive in Council that the Corporation is in default, and the Secretary has reported to the Chief Executive in Council that the default is not one which is capable of being remedied,
the Chief Executive in Council may direct the Secretary to serve on the Corporation a notice requiring the Corporation to show cause why an order should not be made under subsection (5).
(2) A notice served under subsection (1) shall specify whether it is given in relation to subsection (1)(a) or subsection (1)(b) and shall, in addition---
(a) if given in relation to subsection (1)(a), give particulars of the notice referred to in that paragraph and brief particulars of the report of the Secretary;
(b) if given in relation to subsection (1)(b), specify the nature of the default.
(3) The Corporation may, within the period of 28 days from the date of service of the notice under subsection (1), or within a further period as the Chief Executive in Council may allow, make representations in writing to the Chief Executive in Council showing cause why an order should not be made under subsection (5).
(4) Before making an order under subsection (5) the Chief Executive in Council shall consider any representations made under subsection (3) and, if applicable, any matter referred to in subsection (6).
(5) Where the Chief Executive in Council is of the opinion that sufficient cause has not been shown as to why an order under this subsection should not be made, he may, by order---
(a) if it appears to him that the default is one which was capable of being remedied and that---
(i) a notice should have been served under section 17 and was not served, or that the terms of any notice served were unreasonable; and
(ii) the default is still capable of being remedied,
direct the Secretary to serve a notice, or a further notice, under section 17, in terms determined by the Chief Executive in Council; or
(b) in any other case, if it appears to him just and reasonable to do so, but subject to subsection (8), revoke the franchise.
(6) In exercising his powers under subsection (5), the Chief Executive in Council shall take into consideration the extent to which the default was or is occasioned by circumstances beyond the control of the Corporation.
(7) An order made---
(a) under subsection (5)(a) shall be sent to the Secretary and a copy of the order shall be attached to the Secretary's notice under section 17;
(b) under subsection (5)(b) shall be served on the Corporation and shall be published in the Gazette, as soon as practicable after that service.
(8) Where the proceedings described in this section relate to a matter which is the subject of an appeal under section 53(1), the Chief Executive in Council shall not make an order under subsection (5)(b) until the appeal has been determined or abandoned.
(9) The Government is not liable to pay any compensation in respect of the revocation of the franchise under this section, except for any compensation payable under section 20.
19. Use of railway property by Government
(1) Where the franchise is revoked under section 18 or has expired and has not been extended under section 5, the Government, its nominee or a third party designated by the Government may take possession of any property used or kept by the Corporation for the purposes of or in connection with the franchise and may use that property in the operation of the railway as it thinks fit.
(2) Property taken possession of under subsection (1) may be retained---
(a) for an initial period not exceeding 2 years, as may be determined by the Chief Executive in Council; and
(b) for such further successive periods not exceeding 6 months each as the Chief Executive in Council may determine,
and notice of any such determination shall be published in the Gazette.
(3) Subject to subsections (4) and (5), at any time during or upon the expiry of a period of retention under this section, property taken possession of under subsection (1) may be returned to the Corporation or may be otherwise disposed of in a manner and upon terms the Chief Executive in Council may think fit.
(4) At any time during the period for which any property is retained under subsection (2), the Corporation may by notice in writing to the Government inform the Government that the Corporation does not wish the property to be returned to the Corporation, and in that case the Government shall not return the property to the Corporation.
(5) The right conferred under subsection (1) to take possession of property and to use that property in the operation of the railway includes the right to keep or maintain the property in whatever condition, or to alter the property in whatever manner, is considered appropriate for that purpose and, without affecting any entitlement to compensation under section 20, nothing in this Ordinance or any other law imposes on the Government any obligation in relation to the condition in which property taken under subsection (1) is to be kept or returned.
(6) For the purpose of, and to the extent necessary to effect, the disposal under subsection (3) of any property taken possession of under subsection (1) (and for that purpose and to that extent only), title in the property is deemed to be vested in the Government.
20. Compensation for use of railway
property under section 19
(1) The Government is liable to pay compensation for the use of, loss of or damage to any property taken possession of under section 19.
(2) If property taken possession of under section 19 is disposed of under section 19(3) otherwise than by being returned to the Corporation, compensation is payable in accordance with subsection (1) to the extent that the property is not replaced or its loss compensated for in some other manner.
(3) Where property taken possession of under section 19 is property that is already in the possession of the Government, its nominee or a third party designated by the Government by virtue of the exercise of powers conferred under section 15(5), the amount of any compensation payable under section 15(6) shall be deducted from the amount of compensation that would otherwise be payable under this section.
(4) Notice given by the Corporation under section 19(4) does not affect the Corporation's entitlement to compensation under this section and, accordingly, the amount of any compensation payable under this section shall be calculated as if the Government had disposed of the property under section 19(3).
(5) The amount of any compensation payable to the Corporation under this section, shall be calculated in accordance with the provisions of the operating agreement relating to the calculation of compensation payable under this section.
21. Government may be required to take
possession of railway property
(1) Where there has been any occasion of exercise of the power conferred under section 19(1) to take possession of property used or kept by the Corporation for the purposes of or in connection with the franchise the Corporation may, by notice to the Government, request the Government to take possession of property which was property used or kept by the Corporation for the purposes of or in connection with the franchise but which was not taken possession of on that occasion.
(2) A notice under subsection (1) shall be given within a period of 6 months from the occasion on which the power conferred under section 19(1) was exercised and shall, as regards any property which the Government is requested to take possession of---
(a) specify the property and its location;
(b) contain information, or be accompanied by documents, verifying that the property was, on the occasion of the exercise of the power under section 19(1), property which was used or kept by the Corporation for the purposes of or in connection with the franchise; and
(c) contain all information necessary for the Government to gain access to and take possession of the property.
(3) Unless there is some legal impediment to its doing so, or it is unable to gain access to the property, the Government shall take possession of the property specified in the notice.
(4) A taking of possession of property by the Government under this section shall be treated for the purposes of section 20(1) and (2) as if it were a taking of possession of that property under section 19(1).
(5) For the purpose of, and to the extent necessary to effect, the disposal of any property taken possession of under subsection (3) (and for that purpose and to that extent only), title in the property is deemed to be vested in the Government.
(6) No action lies against the Government, in respect of any property taken possession of under this section, on the ground that the property was not property which the Government was entitled to take possession of under this section.
22. Power of entry
The Government, its nominee or a third party designated by the Government may, for the purpose of taking possession of property under this Part, enter upon any premises where it is reasonably necessary to do so for that purpose.
PART V
Compensation
23. Settlement or determination of claim
for compensation
(1) The Government may compromise or settle any claim for compensation under this Ordinance.
(2) In default of an agreement between the Government and a claimant as regards the amount of compensation, if any, payable to the claimant under this Ordinance, the compensation shall be determined by arbitration under the Arbitration Ordinance (Cap. 341).
(3) For the purposes of an arbitration under subsection (2), the Government and the claimant shall be regarded as having made an arbitration agreement within the meaning of the Arbitration Ordinance (Cap. 341) the terms of which include a provision that the compensation shall, in the absence of an agreement, be determined by a single arbitrator.
24. Provisional payment pending determination
of compensation
(1) Pending any determination of compensation by an arbitrator as provided in section 23, the Government may pay to a claimant an amount as a provisional payment of the amount, if any, payable under the arbitrator's determination.
(2) A payment by the Government under subsection (1) in respect of a claim does not prejudice the claim or the submission of the claim to, or its determination by, the arbitrator under this Part; but the amount of compensation payable under the arbitrator's determination in respect of the claim shall be reduced by the amount of the payment made.
(3) Where the amount of compensation payable under a determination of the arbitrator is reduced under subsection (2) by the amount of any payment made under subsection (1), only the amount of the compensation as so reduced bears interest for the purpose of section 25(1).
(4) Where the amount of a payment made by the Government under subsection (1) in respect of a claim exceeds the amount of the compensation determined by the arbitrator in respect of the claim, the amount of the excess is recoverable by the Government as a civil debt.
25. Interest on compensation
(1) Subject to this section and to section 24(3), a sum of money payable as compensation under this Ordinance bears interest as from the date on which the sum becomes payable until payment of the sum, calculated at a rate equal to the rate fixed by the Hong Kong Monetary Authority and known as the base rate, less 100 basis points.
(2) At any time after agreement or determination by an arbitrator of an amount of compensation to be paid under this Ordinance, the Government may, by notice published in the Gazette, require the claimant to collect the amount within the time and at the place specified in the notice, and in such case no interest is payable under this Ordinance in respect of the period after the expiry of the time so specified.
(3) No interest is payable under this Ordinance on any costs or remuneration in connection with the arbitration proceedings.
PART VI
Safety of Railway
26. Appointment of inspectors
(1) The Secretary may in writing appoint any person as an inspector for the purposes of this Part.
(2) An inspector who is not a public officer may be paid, as a fee for his services, an amount determined by the Financial Secretary, and that amount shall be paid out of moneys provided for the purpose by the Legislative Council.
(3) When exercising any power, an inspector shall produce evidence of his identity, and of his appointment, to any person who requests him to do so.
(4) An inspector may take with him other persons whom he reasonably requires to assist him in the exercise of his powers.
27. General powers of inspectors
(1) An inspector may---
(a) at all reasonable times enter upon premises to which this subsection applies;
(b) carry out on premises to which this subsection applies, or on any machinery, plant or equipment used in connection with the franchise, any test or inspection he considers expedient;
(c) require a person to whom this subsection applies---
(i) to do anything which the inspector reasonably considers to be necessary for facilitating any test or inspection;
(ii) to provide the inspector with information which the inspector specifies relating to the railway or any machinery, plant or equipment connected with the railway, and to answer any question or produce for inspection any document which is necessary for that purpose; and
(iii) to provide a copy of any document which the inspector
may require to be produced for inspection under subparagraph (ii).
(2) Subsection (1) applies to---
(a) the railway, the railway premises and the premises of any contractor or subcontractor who is carrying out or has carried out any work on the railway; and
(b) any employee of the Corporation and any contractor or subcontractor mentioned in paragraph (a) and his employees.
(3) The powers conferred by this section or by regulations made under section 33 may be exercised by an inspector only for the purpose of---
(a) ensuring the safety of the railway or railway premises; or
(b) investigating an accident which involved the railway or which occurred on the railway or on railway premises, when the inspector is directed to do so pursuant to those regulations,
and are exercisable in relation to an extension only if the extension has been brought into operation for public use.
(4) Nothing in this section requires any person---
(a) to produce any document which he could not be compelled to produce in civil proceedings in the High Court; or
(b) in complying with any requirement for the furnishing of information, to provide any information which he could not be compelled to provide in evidence in civil proceedings in the High Court.
(5) An inspector shall not disclose any information obtained pursuant to this section unless he has given reasonable notice to the Corporation beforehand.
(6) Any person who---
(a) without reasonable excuse, fails to comply with a requirement under subsection (1)(c);
(b) knowingly furnishes to an inspector acting under subsection (1)(c) information that is false or misleading in a material particular; or
(c) obstructs an inspector in the exercise of his powers under subsection (1),
commits an offence and is liable to a fine at level 2 and to imprisonment for 6 months.
28. Secretary may require Corporation to
carry out works in interest of safety
(1) Where in the opinion of the Secretary---
(a) the condition of a part of the railway which has been brought into operation, or of any machinery, plant or equipment of such part; or
(b) the manner in which the railway or a part of it is being operated,
is such as to cause, or to be likely to cause, a risk of injury to any person, the Secretary may require the Corporation to carry out work or to take steps to ensure that the condition or manner of operation in question will cease to cause or to be likely to cause any such risk.
(2) A requirement under subsection (1) shall be effected by notice in writing delivered to the Corporation, and the notice---
(a) shall specify the work or steps required to be carried out or taken;
(b) may specify the time before which the Corporation shall commence to carry out the work or take the steps and the time by which the work or steps must be completed.
(3) If the Corporation fails without reasonable excuse to comply with a notice given under this section the Corporation commits an offence and is liable to a fine at level 6 and to a further fine of $10,000 for each day during which it is proved that the failure to comply with the notice has continued without reasonable excuse.
(4) A copy of a document which purports to be a notice signed by the Secretary for the purposes of this section---
(a) is admissible in evidence in proceedings for an offence under subsection (3) on its production without further proof; and
(b) is sufficient evidence of the opinion of the Secretary and of the other matters contained in the document.
29. Offence of negligent act or omission by employee
(1) If---
(a) in connection with his duty, an employee of the Corporation negligently does or omits to do anything in relation to the condition or operation of a part of the railway or railway premises after that part has come into operation; and
(b) by that act or omission, the safety of a person being on the railway or on railway premises is endangered, or is likely to be endangered,
the employee commits an offence and is liable to a fine at level 2 and to imprisonment for 6 months.
(2) For the purposes of this section, negligence is the failure to exercise the care or skill that a reasonable employee in the situation would exercise.
30. Offence of wilfully endangering safety
If---
(a) a person wilfully does or omits to do anything in relation to the railway or railway premises; and
(b) by that act or omission, the safety of a person being on the railway or on railway premises is endangered, or is likely to be endangered,
the person commits an offence and is liable to a fine at level 6 and to imprisonment for 3 years.
PART VII
Transport Interchanges
31. Transport interchanges
(1) The Corporation shall set apart as a transport interchange the whole or a part of any area, space or building, as the Corporation thinks necessary or expedient for the purpose of effecting and facilitating interchange between the railway and any other mode of transport.
(2) The Corporation shall, with the agreement of the Commissioner, prepare plans delineating the boundaries of every transport interchange.
(3) The Corporation may, with the agreement of the Commissioner, vary the boundaries of a transport interchange from time to time.
(4) Where the boundaries of a transport interchange are varied under subsection (3), the Corporation shall prepare plans delineating the boundaries of the transport interchange as varied and those plans shall supersede any previous plans as from the day on which a notice relating to those plans is published under subsection (6), or as from any later date that may be specified in the notice.
(5) Plans prepared under subsection (2) or (4) shall be numbered, dated and signed and certified by the Commissioner as being plans of the transport interchange to which they relate, and shall be deposited by the Corporation in the Land Registry.
(6) The Corporation shall cause a notice of the deposit of plans under subsection (5) to be published in the Gazette.
32. Application of other Ordinances
(1) Subject to subsection (2), the Public Bus Services Ordinance (Cap. 230) and the Road Traffic Ordinance (Cap. 374) as it applies to private roads apply to and in relation to transport interchanges and roads in transport interchanges respectively.
(2) If there is any inconsistency between a regulation or bylaw made under this Ordinance in relation to a transport interchange and a provision of a law specified in subsection (1) then, to the extent of that inconsistency, the regulation or bylaw prevails.
PART VIII
Regulations and Bylaws
33. Regulations
(1) The Secretary may make regulations for anything that is necessary for the effective carrying out of this Ordinance, including but not limited to regulations for the purpose of any or all of the following---
(a) controlling and regulating---
(i) the maintenance and operation of the railway by the Corporation; and
(ii) the use of the railway by members of the public and their conduct while on railway premises;
(b) providing for the obtaining of information from the Corporation for the purpose of section 10;
(c) providing for the keeping of records by the Corporation for the purpose of section 11;
(d) providing for the safety of persons being on the railway or on railway premises;
(e) providing for the investigation of accidents on the railway or on railway premises, or in which the railway is involved;
(f) controlling and regulating the use of transport interchanges;
(g) regulating the disposal of lost property on the railway; and
(h) providing for anything which under this Ordinance is to be or may be prescribed.
(2) Regulations made for the purpose of subsection (1)(e)---
(a) may confer powers upon an inspector to compel the giving of information concerning accidents, including power to summon a person to attend before him for the purpose, and may make provision for the payment of persons so summoned; and
(b) may require compliance with a summons or requirement made by an inspector, and may prohibit the obstruction of an inspector, or the giving of false or misleading information.
(3) Regulations made for the purpose of subsection (1)(f) may, in relation to transport interchanges and their use---
(a) confer powers upon the Commissioner to give directions to the Corporation in respect of the control and regulation of vehicular and pedestrian traffic and the operation of public transport services, car parks and parking spaces;
(b) confer powers upon the Commissioner to do any act, or cause any act to be done, which the Corporation is required or directed to do under the regulations but has failed to do, and to recover any costs incurred by or incidental to such act from the Corporation as a civil debt;
(c) control and regulate the provision by the Corporation, subject to the approval of the Commissioner, of adequate, efficient, safe and continuous roads and facilities for---
(i) the use of transport interchanges by vehicles and members of the public;
(ii) the operation of public transport services;
(iii) the parking of vehicles;
(d) confer powers upon the Corporation---
(i) to erect or place traffic signs, road markings and light signals;
(ii) to establish zebra crossings and light signal crossings;
(iii) to alter, suspend or cancel anything done under regulations made for the purposes of this paragraph,
or to do so subject to the approval of the Commissioner;
(e) confer powers upon the Corporation---
(i) to designate bus stops, light bus stands, taxi ranks, restricted and prohibited zones, car parks and parking spaces;
(ii) to impose speed limits;
(iii) to alter, suspend or cancel anything done under regulations made for the purposes of this paragraph,
or to do so subject to the approval of the Commissioner;
(f) confer powers upon the Corporation or any person authorized by the Corporation in that behalf to issue permits, authorizations, passes and tickets for traffic control or parking purposes;
(g) provide for access to any transport interchange by vehicles and members of the public;
(h) in any case where the prior approval of the Commissioner is required under this Ordinance for the doing of any act, authorize the Corporation to do that act without obtaining that prior approval where it is impracticable to do so;
(i) provide for the powers of the employees of the Corporation, or other persons authorized by the Corporation in that regard, in controlling and regulating vehicular and pedestrian traffic; and
(j) provide that no compensation is payable to the Corporation for anything done or required to be done under or by virtue of those regulations which are for the benefit of the operation of the transport interchanges in serving the railway.
34. Bylaws
(1) The Corporation may, under its common seal, make bylaws for any or all of the following purposes---
(a) prescribing the terms and conditions relating to the use of its service;
(b) controlling and regulating---
(i) the conduct of members of the public using the railway or on railway premises;
(ii) a system for evidencing (whether by the issue of tickets or otherwise) the payment of fares on the railway and any contract of carriage of passengers on the railway;
(iii) advertising on railway premises; and
(iv) the custody and disposal of property found on railway premises;
(c) protecting the property of the Corporation on railway premises;
(d) in relation to a transport interchange---
(i) controlling and regulating classes of vehicular and pedestrian traffic as may be approved by the Commissioner;
(ii) controlling and regulating vehicles and the conduct of members of the public at bus stops, light bus stands and taxi ranks;
(iii) controlling and regulating vehicles and the conduct of members of the public in car parks and at parking spaces;
(iv) controlling and regulating the conduct of members of the public at other parts of a transport interchange;
(v) providing for any of the following things to be done subject to the approval of the Commissioner---
(A) erecting of placing traffic signs, road markings and light signals;
(B) establishing zebra crossings and light signal crossings;
(C) altering, suspending or cancelling anything done under bylaws made for the purposes of this subparagraph;
(vi) providing for the following things to be done subject to the approval of the Commissioner---
(A) designating bus stops, light bus stands, taxi ranks, restricted and prohibited zones, car parks and parking spaces;
(B) imposing speed limits;
(C) altering, suspending or cancelling anything done under bylaws made for the purposes of this subparagraph;
(vii) providing for the issuing of permits, authorizations, passes and tickets for traffic control or parking purposes and the imposing and collecting of charges for parking;
(viii) providing for---
(A) the towing away, impounding, removal and disposal of any vehicle or thing causing obstruction in a transport interchange;
(B) the imposition and collection of charges as approved by the Commissioner in respect of any such towage or removal and of any impounding, storage, detention or service of such vehicle or thing;
(ix) providing for the limitation or exclusion of liabilities of the Corporation in respect of any loss or damage to property;
(x) authorizing any person to act on its behalf for the purposes of this paragraph.
(2) Bylaws shall not be made under this section which are inconsistent with this Ordinance or regulations made under this Ordinance.
(3) Bylaws made under this section are subject to the approval of the Legislative Council.
(4) The Corporation shall cause printed copies of all bylaws made under this section to be kept at its registered office and to be available for sale to any person at a reasonable cost.
35. Further powers in relation to regulations and bylaws
(1) Regulations made under section 33 or bylaws made under section 34 may confer authority upon employees of the Corporation or persons authorized by the Corporation in that regard on railway premises or in transport interchanges---
(a) to detain any person reasonably suspected of having contravened this Ordinance, the regulations or bylaws and to take such other steps as may be provided for in the regulations or bylaws to ensure that the person is dealt with in accordance with law;
(b) to stop, search and detain any vehicle in connection with any contravention against this Ordinance, the regulations or bylaws.
(2) Regulations made under section 33(1)(f) or bylaws made under section 34 may confer powers upon an employee of the Corporation or any person authorized by the Corporation in that regard---
(a) to request a person suspected of having contravened this Ordinance, the regulations or bylaws to give his personal particulars to the requestor;
(b) if a vehicle is involved in that contravention, to request the registered owner of the vehicle to give the personal particulars of the driver of the vehicle at the material time to the requestor.
(3) Regulations made under section 33 or bylaws made under section 34 may provide that a contravention of a specified provision of the regulations or bylaws is an offence and may prescribe penalties for that contravention not exceeding a fine at level 2 and to imprisonment for 6 months.
(4) Regulations made under section 33 or bylaws made under section 34 which provide that hawking on railway premises is an offence may also provide that all or any part of sections 86, 86A, 86C and 86D of the Public Health and Municipal Services Ordinance (Cap. 132) are to apply as if that offence was a hawker offence within the meaning of section 83 of that Ordinance.
(5) Bylaws made under section 34(1)(d) may provide for a fixed penalty to be payable for contravention of any specified provision of the bylaws and for the recovery of that fixed penalty.
PART IX
Vesting Provisions and Transitional Arrangements
36. Interpretation
(1) In this Part, unless the context requires otherwise, "financial year" (財政年度) means a year ending with 31 December, and reference to the last complete financial year of MTRC is a reference to the last financial year of MTRC ending before the appointed day.
(2) Reference in this Part to property, rights and liabilities of MTRC is a reference to---
(a) property and assets of every description (whether tangible or intangible) and rights and liabilities of every description (whether present or future, actual or contingent);
(b) property wherever situated or rights and liabilities under the law of any place;
(c) all such property, rights and liabilities, whether or not capable of being transferred or assigned by MTRC.
Vesting
37. Property, etc. of MTRC to vest in Corporation
(1) On the appointed day all the property, rights and liabilities to which MTRC was entitled or subject immediately before that day become by virtue of this section property, rights and liabilities of the Corporation.
(2) Sections 38 to 41 are supplementary to this section and, accordingly, have effect on and from the appointed day subject to, and without limiting the generality of, subsection (1).
38. Agreements, transactions, etc. affecting MTRC
(1) Any agreement made, transaction effected or other thing done by, to or in relation to MTRC which is in force or effective immediately before the appointed day shall have effect as from that day as if made, effected or done by, to or in relation to the Corporation, in all respects as if the Corporation were the same person in law as MTRC.
(2) Accordingly, references (whether express or implied) to MTRC---
(a) in any agreement made, transaction effected or other thing done by, to or in relation to MTRC (whether or not in writing);
(b) in any process or other document issued, prepared or employed for the purpose of any proceedings before any court or other tribunal or authority;
(c) in any other document whatever (other than an enactment) relating to or affecting any property, right or liability of MTRC which vests by virtue of section 37 in the Corporation,
shall be taken as from the appointed day as referring to the Corporation.
(3) Where immediately before the appointed day there is in force or effective an agreement made, transaction effected or other thing done by, to or in relation to MTRC which refers (in whatever terms and whether expressly or by implication) to a person employed by or engaged in the business of MTRC, that agreement, transaction or other thing shall have effect, in relation to anything falling to be done on or after the appointed day, as if for that reference there were substituted a reference to such person as the Corporation may appoint or, in default of appointment, to the person employed by or engaged in the business of the Corporation who corresponds as nearly as may be to the person employed by or engaged in the business of MTRC in question.
(4) For the avoidance of doubt, reference in this Part to any agreement made, transaction effected or other thing done by, to or in relation to MTRC includes reference to---
(a) any guarantee, conveyance, deed, lease, licence, notice, permit, document granting or comprising any security, bond, mandate, instruction and other document or instrument entered into by, given to or by or addressed to MTRC;
(b) any instruction, order, direction, mandate, power of attorney, authority, undertaking or consent given to or by MTRC, whether alone or jointly with another person and whether in writing or not;
(c) any direction, order or notice made under any legislation;
(d) any contract to which MTRC was not a party;
(e) any entry on any register.
(5) Sections 39 to 41 are for the avoidance of doubt and do not affect the generality of this section.
39. Security
(1) Any security held immediately before the appointed day by MTRC, or by a person as nominee of, agent of or trustee for MTRC, shall be held by the Corporation, or by that person as nominee of, agent of or trustee for the Corporation (as the case may require), and shall be available to the Corporation (whether for its own benefit or for the benefit of any other person, as the case may be).
(2) In relation to any security vested in the Corporation by virtue of this Part and any liabilities secured by the security, the Corporation shall be entitled to the rights and priorities, and shall be subject to the obligations and incidents, which MTRC would have been entitled to and subject to if it had continued to hold the security.
(3) In this section, "security" (抵押) means any interest, legal or equitable, by means of which the payment or discharge of a debt or liability (whether present or future, actual or contingent) is secured, whether or not that interest is evidenced in writing.
40. Miscellaneous supplementary provisions
(1) The Corporation and all other persons have the same rights, powers and remedies for ascertaining, perfecting or enforcing any right or liability vested in the Corporation by virtue of this Part as they would have had if that right or liability had at all times been a right or liability of the Corporation; and in this subsection reference to rights and powers includes in particular a reference to rights and powers as to the taking or resisting of legal proceedings or the making or resisting of applications to any authority.
(2) Any legal proceedings or applications to any authority pending or commenced by or against MTRC shall be continued by or against the Corporation to the exclusion of MTRC.
(3) Any judgment or award obtained by or against MTRC and not fully satisfied before the appointed day is enforceable by or against the Corporation to the extent that it was enforceable by or against MTRC immediately before that date.
(4) The functions of MTRC under any Ordinance as in force immediately before the appointed day which---
(a) relates to any part of the business of MTRC; or
(b) authorizes the carrying out of works designed to be used in connection with any part of the business of MTRC or the acquisition of land for the purpose of carrying out any such works,
become the functions of the Corporation for the purposes of that Ordinance.
41. Employment-related matters
(1) The effect of section 37 in relation to any contract of employment with MTRC in force immediately before the appointed day is merely to modify that contract (as from that day) by substituting the Corporation for MTRC and, accordingly, employment with MTRC and the Corporation under a contract of employment to which that section applies is deemed for all purposes to be a single continuing employment.
(2) Section 37 is effective to vest in the Corporation the rights and liabilities of MTRC under any agreement made, transaction effected or other thing done by, to or in relation to MTRC for the payment of pensions, allowances or gratuities of every description along with all other rights and liabilities of MTRC and, accordingly---
(a) any deed, rule, certificate, registration, exemption or other document constituting or relating to the Mass Transit Railway Corporation Retirement Scheme, the Mass Transit Railway Corporation Retention Bonus Scheme and the U.K. Office Retirement Scheme established for the benefit of employees of MTRC or any other body corporate related to MTRC; or
(b) any entitlement to gratuity benefits payable by MTRC,
in force or effective immediately before the appointed day is construed and has effect, so far as the context allows, as if reference in that document to MTRC was a reference to the Corporation and as if that entitlement was payable by the Corporation.
(3) No member of the Board of MTRC or auditor of MTRC becomes by virtue only of section 37 or 38 a director or auditor of the Corporation.
Matters relating to Corporation as a company
42. Share capital
(1) The Corporation shall, on the appointed day, issue shares to the Financial Secretary Incorporated which shall be held by the Financial Secretary Incorporated in trust on behalf of the Government.
(2) Shares issued in pursuance of this section---
(a) shall each be of a par value of an amount that the Financial Secretary directs and shall carry such rights as he determines;
(b) shall be issued at par as fully paid and shall be treated as if they had been paid up in cash as to the par value; and
(c) shall have an aggregate par value of not more than the aggregate par value of the issued shares of MTRC immediately before the appointed day.
(3) Section 43(1) of the Companies Ordinance (Cap. 32) does not apply in relation to an allotment of shares pursuant to this section.
43. Accounts
(1) For the purpose of any accounts prepared by the Corporation for the purposes of the Companies Ordinance (Cap. 32)---
(a) the Corporation shall be treated, on and from the appointed day, as if it were the continuation of MTRC;
(b) the value of any asset and the amount of any liability of MTRC vested in the Corporation by virtue of this Part is taken to be the value assigned to that asset or the amount assigned to that liability in the audited accounts of MTRC for the last complete financial year of MTRC; and
(c) the amount to be included in respect of any item is determined as if anything done by MTRC (whether by way of acquiring, revaluing or disposing of any asset or incurring, revaluing or discharging any liability, or by carrying any amount to any provision or reserve, or otherwise) had been done by the Corporation.
(2) Accordingly (and without affecting the generality of subsection (1))---
(a) the amount to be included from time to time in any reserves of the Corporation as representing the Corporation's accumulated realised profits is determined as if the profits realised and retained by MTRC had been realised and retained by the Corporation;
(b) every other reserve or provision of MTRC becomes a reserve or provision of the Corporation; and
(c) the amount, description and character of every reserve or provision of the Corporation which becomes a reserve or provision of the Corporation pursuant to paragraph (b) is the same in all respects as those of the corresponding reserve or provision of MTRC immediately before the appointed day.
(3) Without affecting the generality of subsection (1), on and from the appointed day all profits or losses of MTRC earned or incurred after the beginning of the financial year of MTRC in which the appointed day occurs are treated as profits or losses of the Corporation.
(4) For the purposes of the accounts of the Corporation prepared for the purposes of the Companies Ordinance (Cap. 32), the vesting in the Corporation effected by virtue of this Part is taken---
(a) to have been effected immediately after the end of the last complete financial year of MTRC; and
(b) to have been a vesting of all the property, rights and liabilities to which MTRC was entitled or subject immediately before the end of the last complete financial year of MTRC.
(5) Section 122(1) of the Companies Ordinance (Cap. 32) applies to and in relation to the Corporation as if reference in that subsection to the period since the incorporation of the company was a reference to the period beginning immediately after the last complete financial year of MTRC.
44. Distribution of dividend
For the purpose of any distribution to which Part IIA of the Companies Ordinance (Cap. 32) applies and which is made by the Corporation during the financial year of the Corporation which includes the appointed day or at any time before any accounts are laid or filed in respect of that year---
(a) sections 79F to 79L of that Ordinance have effect as if---
(i) reference in those sections to the company's accounts is a reference to the accounts of MTRC; and
(ii) reference in those sections to the company's last annual accounts or to the initial accounts of the company is a reference to the accounts of MTRC prepared in accordance with section 16 of the repealed Ordinance in respect of the last complete financial year of MTRC;
(b) the accounts of MTRC mentioned in paragraph (a)(ii) are regarded as satisfying the requirements of sections 79G and 79I of that Ordinance.
Taxation and revenue matters
45. Taxation
(1) For the purposes of the Inland Revenue Ordinance (Cap. 112), on and from the appointed day the Corporation is treated as if it were the continuation of and the same person in law as MTRC.
(2) Accordingly (and without affecting the generality of subsection (1))---
(a) a vesting in the Corporation of any property, right or liability by virtue of this Part does not constitute a sale or other disposal of or a change in the nature of that property, right or liability for any purpose under the Inland Revenue Ordinance (Cap. 112);
(b) the aggregate amount of any losses sustained by MTRC which are capable of but have not been carried forward and set off against assessable profits of MTRC for the purposes of section 19C of the Inland Revenue Ordinance (Cap. 112) as at the end of the last complete financial year of MTRC are deemed to be losses of the Corporation and, accordingly, available for set off against the assessable profits of the Corporation (or the Corporation's share of assessable profits of a partnership in which it is a partner) for the purposes of that Ordinance.
(3) The profits of MTRC treated as profits of the Corporation in accordance with section 43(3)---
(a) shall not be taken into account for the purpose of computing the profits of MTRC which are chargeable to tax under Part IV
of the Inland Revenue Ordinance (Cap. 112) for any year of assessment; and
(b) shall be taken into account for the purpose of computing the profits of the Corporation which are chargeable to tax under Part IV of the Inland Revenue Ordinance (Cap. 112) for the year of assessment the basis period for which includes the appointed day.
46. Stamp duty
No stamp or other duty is chargeable in respect of the transfer or vesting of any property or rights taking effect by virtue of this Part.
Miscellaneous
47. Interests in land
The vesting in the Corporation of an interest in land by virtue of this Part does not---
(a) constitute an acquisition, disposal, assignment, transfer or parting with possession of that interest for the purposes of section 53(4)(a) or (7)(a), 119E(2) or 119H(1)(a) of the Landlord and Tenant (Consolidation) Ordinance (Cap. 7);
(b) constitute an assignment, transfer, devolution, parting with possession, dealing with or other disposition of that interest for the purposes of any instrument concerning or affecting that interest;
(c) operate as a breach of covenant or condition against alienation;
(d) give rise to any right of pre-emption, right of forfeiture, right of re-entry, option, damages or other right of action affecting land;
(e) invalidate or discharge any contract or security;
(f) operate so as to merge any leasehold interest in the reversion expectant on it;
(g) extinguish, affect, vary, diminish or postpone any priority of that interest, whether under the Land Registration Ordinance (Cap. 128), at law or in equity.
48. Perfection of vesting of foreign property,
rights and liabilities
(1) MTRC and the Corporation shall take, as and when the Corporation considers appropriate, all steps necessary or desirable for securing that the vesting in the Corporation under this Part of any foreign property, right or liability is effective under the relevant foreign law.
(2) Until the vesting of any foreign property, right or liability of MTRC in the Corporation becomes effective under the relevant foreign law, MTRC shall hold that property or right for the benefit of, and discharge that liability on behalf of, the Corporation.
(3) Any costs and expenses incurred by MTRC under this section shall be met by the Corporation.
(4) In this section, reference to any foreign property, right or liability is a reference to any property, right or liability in respect of which any issue arising in any proceedings would have to be determined (in accordance with the rules of private international law) by reference to the law of a place outside Hong Kong.
49. Evidence of vesting
(1) The production of a Government Printer's copy, or a document certified by a solicitor to be a true copy of a Government Printer's copy, of this Ordinance shall be conclusive evidence for all purposes of any vesting effected by virtue of this Part.
(2) Without affecting the generality of subsection (1), a certificate given by or on behalf of the Corporation on or after the appointed day that any property, right or liability specified in the certificate (being property or a right or liability which immediately before the appointed day was that of MTRC) is vested in the Corporation under this Part is conclusive evidence for all purposes of the fact so certified.
(3) The Corporation shall register or cause to be registered in the Land Registry a Government Printer's copy of this Ordinance in respect of the vesting of the properties of MTRC in the Corporation.
50. Waiver of prohibition of vesting
A provision contained in any deed, contract or other document---
(a) prohibiting or having the effect of prohibiting the vesting under this Part; or
(b) to the effect that a default shall occur or be deemed to occur, or any right or liability shall cease, as a result of the vesting under this Part,
and to which MTRC is a party, is deemed to have been waived.
51. Evidence: books and documents
(1) Books and other documents which would, before the appointed day, have been evidence in respect of any matter for or against MTRC are admissible in evidence in respect of the same matter for or against the Corporation.
(2) In this section "documents" (文件) has the same meaning as in section 55 of the Evidence Ordinance (Cap. 8).
52. MTRC to continue in existence until dissolved
(1) Despite the repeal effected by section 63, MTRC continues in existence after the appointed day until it is dissolved in accordance with subsection (3), and in this section the period of that continued existence is referred to as "the transitional period".
(2) During the transitional period, and despite the repeal effected by section 63---
(a) sections 4 and 9 of the repealed Ordinance, modified as set out in Schedule 1, continue to have effect to and in relation to MTRC;
(b) section 16 of the repealed Ordinance continues to apply in relation to the preparation and auditing of accounts in respect of the last complete financial year of MTRC, and MTRC shall prepare those accounts in accordance with that section,
as if section 63 had not been enacted.
(3) As soon as he is satisfied that nothing further remains to be done by MTRC under this Ordinance, and after consulting MTRC and the Corporation, the Secretary may, by notice published in the Gazette, dissolve MTRC on a day he specifies in the notice.
(4) The costs and expenses arising from the continuation of MTRC under this section and incurred by MTRC shall be borne by the Corporation.
PART X
Miscellaneous
53. Appeal to Chief Executive in Council
(1) This section applies to any decision of the Secretary or the Commissioner, or any person authorized by either of them, which is made under any provision of this Ordinance other than section 15(5), 19(1), 22, 26
or 33.
(2) If the Corporation is aggrieved by any decision to which this section applies the Corporation may, within 28 days after the making of the decision, appeal by petition to the Chief Executive in Council.
(3) The decision of the Chief Executive in Council on any appeal under this section is final.
(4) Where the Corporation appeals under this section, the decision under appeal shall not have effect until the appeal has been determined, unless the Chief Executive in Council directs otherwise.
(5) In this section, reference to a decision made by any person includes reference to a direction given or a requirement imposed by that person.
54. Application of certain laws to Corporation
(1) The Public Health and Municipal Services Ordinance (Cap. 132) does not apply to the Corporation, in relation to the provision of a service under the franchise, to the extent set out in Schedule 2.
(2) The Building Authority may---
(a) having regard to the exceptional nature of building or other works connected with the operation or construction of the railway; and
(b) on such conditions as he may specify, either generally or in any particular case,
exempt any of those works from any provision of the Buildings Ordinance (Cap. 123) as he thinks fit.
(3) Except as provided in subsection (2), the Buildings Ordinance (Cap. 123) applies to any building or other works carried out by or on behalf of the Corporation.
55. Railway premises are public places
For the avoidance of doubt, and without affecting any other Ordinance, it is declared that the railway premises and transport interchanges are public places for the purposes of the Public Order Ordinance (Cap. 245).
56. Corporation may prosecute in its name
Without affecting any Ordinance relating to the prosecution of criminal offences or the powers of the Secretary for Justice in relation to the prosecution of criminal offences, prosecutions for an offence under this Ordinance may be brought in the name of the Corporation.
57. No civil liability for breach of statutory duty
(1) No breach of any duty of the Corporation created by or pursuant to this Ordinance gives rise to any civil liability.
(2) Subsection (1) does not affect any civil liability of the Corporation for negligence or otherwise which arises apart from this Ordinance.
58. Proceeds from sale, etc. of Government's
shares in Corporation
(1) Except as provided in subsection (2), monies received by the Financial Secretary Incorporated as the person holding shares in the Corporation, or from the sale of or other dealing in shares in the Corporation which are held by the Financial Secretary Incorporated, form part of the general revenue.
(2) Expenses incurred by the Financial Secretary Incorporated in connection with---
(a) the acquisition of shares in the Corporation;
(b) the holding of shares in the Corporation, or the sale of or other dealing in shares in the Corporation held by the Financial Secretary Incorporated;
(c) the listing of any shares in the Corporation on the Unified Exchange (being the stock market established under section 27 of the Stock Exchanges Unification Ordinance (Cap. 361)) or
on a stock market specified in Schedule 2 to the Financial Resources Rules (Cap. 24 sub. leg.),
may be defrayed from the monies specified in subsection (1), and any amount applied or retained for that purpose does not form part of the general revenue for the purposes of section 3 of the Public Finance Ordinance (Cap. 2).
59. Securities of Corporation as authorized investment
(1) For the purposes of paragraph 1(a) of the Second Schedule to the Trustee Ordinance (Cap. 29), the Corporation is deemed to have paid a dividend as there mentioned in the calendar year in which the appointed day falls (whether or not the Corporation does in fact pay such a dividend in that year) and in each of the 5 years immediately preceding that year.
(2) For the purposes of paragraph 2 of the Second Schedule to the Trustee Ordinance (Cap. 29)---
(a) any debt security which was issued by, or the payment of principal and interest on which was guaranteed by, MTRC before the appointed day and which becomes vested in the Corporation by virtue of Part IX; or
(b) during any period for which the Government beneficially owns more than half in nominal value of the issued ordinary share capital of the Corporation, any debt security which is issued by, or the payment of principal and interest on which is guaranteed by, the Corporation,
is deemed to be a debt security which satisfies the requirements of that paragraph.
60. Corporation not a public body
Unless otherwise expressly provided for in any Ordinance, the Corporation is not a public body within the meaning of the Interpretation and General Clauses Ordinance (Cap. 1).
61. Requirement for Secretary to consult Corporation
For the avoidance of doubt, a provision of this Ordinance requiring or providing for the Secretary to consult with the Corporation or any other person in relation to any matter does not oblige the Secretary to obtain the agreement of the Corporation or that other person in relation to the matter.
62. Whether a notice, etc. is subsidiary legislation
A commencement notice issued under section 1(2), a regulation made under section 33 and a bylaw made under section 34 are all subsidiary legislation for the purposes of section 34(1) of the Interpretation and General Clauses Ordinance (Cap. 1); any other instrument issued under this Ordinance is not subsidiary legislation for those or any other purposes.
63. Repeal, etc.
(1) Subject to section 52 and this section, the Mass Transit Railway Corporation Ordinance (Cap. 270) is repealed as from the appointed day.
(2) With effect from the appointed day, the regulations made under the repealed Ordinance and the notices made under those regulations subsisting immediately before that day and specified in column 2 of Schedule 3 are, subject to the modifications specified in column 3 of that Schedule, adopted as and become regulations made under this Ordinance and notices made under those regulations respectively.
(3) With effect from the appointed day, the bylaws made under the repealed Ordinance subsisting immediately before that day and specified in column 2 of Schedule 4 are, subject to the modifications specified in column 3 of that Schedule, adopted as and become bylaws made under this Ordinance.
(4) With effect from the appointed day, the notices published under the repealed Ordinance subsisting immediately before that day and specified in column 2 of Schedule 5 are, subject to the modifications specified in column 3 of that Schedule, adopted as and become notices published under this Ordinance.
(5) Unless the context requires otherwise, a reference in any Ordinance or document in existence immediately before the appointed day to the repealed Ordinance or its provisions, or to a notice published under the repealed Ordinance, is deemed to be, in respect of the period on and after the appointed day, a reference to this Ordinance or its provisions or to a notice published under this Ordinance.
64. Consequential amendments
Subject to any notice issued under section 1(2), the consequential amendments set out in Schedule 6 have effect on and from the appointed day.
SCHEDULE 1 [s. 52(2)(a)]
Sections 4 and 9 of the Repealed Ordinance
Sections 4 and 9 of the repealed Ordinance, as modified for the purposes of section 52(2)(a), are as follows---
"4. Board of MTRC
(1) The Board of the Mass Transit Railway Corporation ("MTRC") comprises---
(a) a chairman appointed by the Chief Executive; and
(b) such one or more other persons as the Chief Executive may appoint.
(2) The Board is the governing body of MTRC with authority, in the name of MTRC, to exercise and perform the powers, functions and duties conferred or imposed on MTRC by or under Part IX of the Mass Transit Railway Ordinance ( of 1999) and to do such things as it considers expedient for or conducive to the attainment of such powers, functions and duties or for any purpose it considers reasonably incidental to or consequential upon such powers, functions and duties.
(3) The Chairman and any person appointed under subsection (1)(b) may---
(a) resign his office by notice to the Chief Executive; or
(b) be removed from office by the Chief Executive.
(4) Arrangements relating to meetings of the Board, and the procedure at meetings of the Board, shall be such as the Board may determine.
9. Documents of MTRC
(1) The Mass Transit Railway Corporation ("MTRC") may make and execute all such documents as may be considered by the Board to be expedient for or conducive to the attainment of the objects of Part IX of the Mass Transit Railway Ordinance ( of 1999) or to be reasonably incidental to or consequential upon the attainment of those objects.
(2) A document made by MTRC is deemed to be duly executed---
(a) if sealed with the seal of MTRC in the presence of a member of its Board; or
(b) if signed on behalf of MTRC by a member of its Board.
(3) Any document purporting to be executed in accordance with subsection (2) is, unless the contrary is proved, deemed to have been duly executed.
(4) A document executed by MTRC in accordance with subsection (2)(b) is not ineffectual in law by reason only of the fact that, apart from this subsection, it would be required by law to be executed under seal.".
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SCHEDULE 2 [s. 54(1)]
Provisions of Public Health and Municipal Services
Ordinance Disapplied
1. No remedy lies against the Corporation under section 127 of the Public Health and Municipal Services Ordinance (Cap. 132) ("PHMSO") in respect of a nuisance described in section 12(1)(g) of the PHMSO.
2. Section 22 of the PHMSO does not apply to anything done by or on behalf of the Corporation in the course of constructing an extension.
3. Regulations made under section 29 or 35 of the PHMSO as to the suitability, sufficiency or mode of construction of latrines or latrine accommodation, or the licensing thereof, do not apply to railway premises.
4. Sections 30 and 36 of the PHMSO do not apply to railway premises.
5. Regulations made under section 88 of the PHMSO do not apply to railway premises.
6. Part IX and any regulations made under section 104 of the PHMSO do not apply to any sign or advertisement erected by or on behalf of the Corporation on the railway or on railway premises.
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SCHEDULE 3 [s. 63(2)]
Regulations, etc. Adopted under Section 63(2)
of this Ordinance
Item Regulation Modification
1. Mass Transit Railway Regulations In regulations 4(1), (2) and (3), 5(1), (3) and
(Cap. 270 sub. leg.) (4) and 9(c), by repealing "Chief Secretary
for Administration" wherever it appears and substituting "Secretary".
2. Mass Transit Railway (Transport In section 18, by repealing "section 24" and
Interchange) Regulation (Cap. 270 substituting "section 33".
sub. leg.)
3. Mass Transit Railway (Transport
Interchange) (Designation of Car Park)
Notice (Cap. 270 sub. leg.)
4. Mass Transit Railway (Transport
Interchange) (Designation of Prohibited
and Restricted Zones) Notice (Cap. 270
sub. leg.)
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SCHEDULE 4 [s. 63(3)]
Bylaws Adopted under Section 63(3)
of this Ordinance
Item Bylaw Modification
1. Mass Transit Railway By-laws In by-law 2---
(Cap. 270 sub. leg.) (a) by repealing the definition of "Corporation" and substituting---
""Corporation" (地鐵公司) means the MTR Corporation Limited;";
(b) by repealing the definition of "railway" and substituting---
""railway" (鐵路) means the Mass Transit Railway;".
2. Mass Transit Railway (Transport (a) In section 2(1), by repealing "section
Interchange) Bylaw (Cap. 270 sub. leg.) 24A" and substituting "section 31".
(b) In Schedule 1---
(i) in Figure Nos. 1 and 2, by repealing "MASS TRANSIT RAILWAY CORPORATION ORDINANCE (CAP. 270)" and substituting "MASS TRANSIT RAILWAY ORDINANCE
( of 1999)";
(ii) in Figure No. 18, by repealing
"MASS TRANSIT RAILWAY CORPORATION" and substituting "MTR CORPORATION LIMITED".
(c) In Schedule 3---
(i) in Form 1---
(A) by repealing "Hong Kong
Special Administrative Region Government" and substituting "Government of the HKSAR";
(B) by repealing "Mass Transit Railway Corporation" and substituting "MTR Corporation Limited";
(ii) in Form 2---
(A) by repealing "Mass Transit Railway Corporation" wherever it appears and substituting "MTR Corporation Limited";
(B) by repealing "Hong Kong Special Administrative Region Government" and substituting "Government of the HKSAR";
(C) by repealing "Mass Transit Railway Corporation" and substituting "MTR Corporation Limited";
(iii) in Forms 3, 4 and 5, by repealing "Mass Transit Railway Corporation" wherever it appears and substituting "MTR Corporation Limited".
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SCHEDULE 5 [s. 63(4)]
Notices Adopted under Section 63(4) of this Ordinance
Item Notice Modification
1. Mass Transit Railway (Transport In section 1(1) and (2)---
Interchange) (Deposit of Plans) (a) by repealing "section 24A(2)" and
Notice (Cap. 270 sub. leg.) substituting "section 31(2)";
(b) by repealing "by the Commissioner" and substituting "by the Corporation";
(c) by repealing "section 24A(5)" and substituting "section 31(5)".
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SCHEDULE 6 [s. 64]
Consequential Amendments
Capital Investment Fund
1. Paragraph amended
Paragraph 3 of the Capital Investment Fund (Cap. 2 sub. leg.) is amended---
(a) by repealing subparagraph (a) and substituting---
"(a) the shares in the MTR Corporation Limited issued to the Financial Secretary Incorporated and held by the Financial Secretary Incorporated on behalf of the Government;";
(b) in subparagraph (f), by repealing "Mass Transit Railway Corporation Ordinance (Cap. 270)" and substituting "Mass Transit Railway Ordinance ( of 1999)".
Factories and Industrial Undertakings
(Electricity) Regulations
2. Application
Regulation 3(2)(e) of the Factories and Industrial Undertakings (Electricity) Regulations (Cap. 59 sub. leg.) is amended by repealing "Mass Transit Railway Corporation Ordinance (Cap. 270)" and substituting "Mass Transit Railway Ordinance ( of 1999)".
Inland Revenue (Qualifying Debt Instruments) Order
3. Sections amended
Sections 1 and 2 of the Inland Revenue (Qualifying Debt Instruments) Order (Cap. 112 sub. leg.) are amended by repealing "wholly-owned" and substituting "wholly- or partly-owned".
4. Schedule amended
The Schedule is amended, in item 1, by repealing "Mass Transit Railway Corporation" and substituting "MTR Corporation Limited, for as long as the Government beneficially owns more than half in nominal value of the issued ordinary share capital of the company for the time being".
New Territories Leases (Extension) Ordinance
5. Interpretation
Section 3(1) of the New Territories Leases (Extension) Ordinance (Cap. 150) is amended, in the definition of "lease for special purposes", in paragraph (a)(iii), by repealing "Mass Transit Railway Corporation" and substituting "MTR Corporation Limited".
Banking Ordinance
6. Capital Adequacy Ratio
The Third Schedule to the Banking Ordinance (Cap. 155) is amended, in paragraph 1, in the definition of "public sector entity in Hong Kong", by repealing "Mass Transit Railway Corporation" and substituting "MTR Corporation Limited".
Banking Ordinance (Designation of Public
Statutory Corporation) Notice
7. Repeal
The Banking Ordinance (Designation of Public Statutory Corporation) Notice (Cap. 155 sub. leg.) is repealed.
Banking Ordinance (Declaration under section 2(14)(d))
(No. 2) Notice 1997
8. Schedule amended
The Schedule to the Banking Ordinance (Declaration under section 2(14)(d)) (No. 2) Notice 1997 (Cap. 155 sub. leg.) is amended, in Part 1, in paragraph 1(a), by repealing "Mass Transit Railway Corporation" and substituting "MTR Corporation Limited".
Prevention of Bribery Ordinance
9. Public bodies
Schedule 1 to the Prevention of Bribery Ordinance (Cap. 201) is amended, in item 37, by repealing "Mass Transit Railway Corporation" and substituting "MTR Corporation Limited".
Eastern Harbour Crossing Ordinance
10. Interpretation
Section 2 of the Eastern Harbour Crossing Ordinance (Cap. 215) is amended---
(a) in subsection (1), in the definition of "Mass Transit Railway Corporation" and "Corporation", by adding ", subject to subsection (5)(a)," after "mean";
(b) by adding---
"(5) In relation to the period on and after the day which is the appointed day for the purposes of section 3 of the Mass Transit Railway Ordinance
( of 1999) (in this section referred to as the "1999 Ordinance"), a reference in this Ordinance or in any notice or other document made under this Ordinance---
(a) to the Mass Transit Railway Corporation or the Corporation is a reference to the MTR Corporation Limited as defined in section 2(1) of the 1999 Ordinance;
(b) to the Mass Transit Railway Corporation Ordinance (Cap. 270) or a provision of that Ordinance is a reference to the 1999 Ordinance or the provision to corresponding effect in the 1999 Ordinance.".
Motor Vehicles Insurance (Third Party Risks) Ordinance
11. Obligation on users of motor vehicles to be
insured against third party risks
Section 4(4)(bc) of the Motor Vehicles Insurance (Third Party Risks) Ordinance (Cap. 272) is amended by repealing "Mass Transit Railway Corporation" and substituting "MTR Corporation Limited".
Securities (Miscellaneous) Rules
12. Interpretation
Rule 2 of the Securities (Miscellaneous) Rules (Cap. 333 sub. leg.) is amended, in the definition of "specified instrument", by repealing "Mass Transit Railway Corporation" and substituting "MTR Corporation Limited".
Protection of Investors Ordinance
13. Schedule amended
Part IVA of the Schedule to the Protection of Investors Ordinance (Cap. 335) is amended by repealing item 7.
Smoking (Public Health) Ordinance
14. Public transport carriers where
smoking is prohibited
Schedule 1 to the Smoking (Public Health) Ordinance (Cap. 371) is amended, in item 5, by repealing "Mass Transit Railway Corporation Ordinance (Cap. 270)" and substituting "Mass Transit Railway Ordinance ( of 1999)".
The Ombudsman Ordinance
15. Organizations to which this Ordinance applies
Schedule 1 to The Ombudsman Ordinance (Cap. 397) is amended, in Part I, by repealing "Mass Transit Railway Corporation.".
Noise Control Ordinance
16. Application of section 13 to MTR Corporation
Limited and Kowloon-Canton
Railway Corporation
Section 37 of the Noise Control Ordinance (Cap. 400) is amended by repealing "Mass Transit Railway Corporation" and substituting "MTR Corporation Limited".
Tai Lam Tunnel and Yuen Long Approach Road Regulation
17. The Company's obligations
Section 2(7) of the Tai Lam Tunnel and Yuen Long Approach Road Regulation (Cap. 474 sub. leg.) is amended, in the definition of "Tsing Ma Control Area", by repealing "Mass Transit Railway Corporation" and substituting "MTR Corporation Limited".
Airport Authority Bylaw
18. Interpretation
Section 2 of the Airport Authority Bylaw (Cap. 483 sub. leg.) is amended, in the definition
of "MTR Area", by repealing "Mass Transit Railway Corporation" and substituting "MTR Corporation Limited".
Tsing Ma Control Area Ordinance
19. Interpretation
Section 2 of the Tsing Ma Control Area Ordinance (Cap. 498) is amended, in the definition of "Tsing Ma Control Area", by repealing "Mass Transit Railway Corporation" and substituting "MTR Corporation Limited".
Legislative Council (Amendment)
Ordinance 1999
20. Schedules substituted
Section 43 of the Legislative Council (Amendment) Ordinance 1999 (48 of 1999) is amended, in new Schedule 1A, in item 93, by repealing "Mass Transit Railway Corporation" and substituting "MTR Corporation Limited".
Explanatory Memorandum
This Bill provides for---
(a) the grant of a franchise to the MTR Corporation Limited ("the Corporation") to operate the Mass Transit Railway;
(b) the regulation of the operation of the railway under the franchise; and
(c) the vesting in the Corporation of the whole of the property, rights and liabilities of the Mass Transit Railway Corporation ("MTRC").
Part I: Preliminary
2. Clause 1 provides for the short title and commencement of the Bill as enacted. Clause 2 provides for the definition of certain terms used in the Bill. Clause 3 provides for the designation by the Secretary for Transport ("Secretary") of a day to be the appointed day for the purpose of certain provisions of the Bill.
Part II: Grant and Extension of Franchise
3. Clause 4 provides for the grant of a franchise to the Corporation to operate the railway for a period of 50 years and to construct any extension. This provision also makes reference to an operating agreement entered into between the Government and the Corporation which contains the agreed terms and conditions of the franchise. Clause 5 provides for the extension of the Corporation's franchise by the Chief Executive in Council, and for the publication of notice of such extension in the Gazette.
Part III: Performance under Franchise
4. Clause 9 requires the Corporation to maintain a proper and efficient service at all times in accordance with the Ordinance and the operating agreement. The Secretary is empowered to ask for information (clause 10) and records (clause 11) to enable him to monitor the Corporation's compliance with its obligations under the Bill and the operating agreement.
5. The Chief Executive in Council is given the authority to give directions to the Corporation, which is entitled to compensation for any loss or damage resulting from its compliance with such directions (clause 13). Clause 14 allows the Chief Executive in Council to impose financial penalties on the Corporation for any substantial or persistent breach of the Ordinance or the operating agreement.
Part IV: Suspension, Revocation and Expiry of Franchise
6. Clause 15 provides for the suspension of the franchise in the case of an emergency or substantial breakdown in the operation of the railway and for the compensation payable to the Corporation in that event. Clauses 16, 17 and 18 provide for the revocation of the franchise in the event of default by the Corporation as defined in those provisions.
7. Clause 19 authorizes the Government to take possession of railway property kept by the Corporation upon revocation or expiry of the franchise and to use or dispose of such property as it sees fit. The purpose of this provision is to give the Government the powers necessary to ensure the minimum disruption to railway services in the event of revocation or expiry of the Corporation's franchise. Clause 20 provides for the compensation payable in respect of railway property taken or used under clause 19. Clause 21 allows the Corporation to require the Government to take from it any further railway property not already taken under clause 19.
Part V: Compensation
8. Part V provides for the determination of compensation by an arbitrator should the Government and a claimant fail to agree on the amount of compensation due to the claimant, and for matters related to payment of such compensation.
Part VI: Safety of Railway
9. Clauses 26 and 27 provide for the appointment, duties and powers of railway inspectors. Clause 28 provides for the Secretary to require the Corporation to remedy defects on the railway which are likely to cause a risk of injury to any person.
Part VII: Transport Interchanges
10. Clauses 31 and 32 provide for the delineation and management of transport interchanges by the Corporation.
Part VIII: Regulations and Bylaws
11. Clause 33 provides for the making of subsidiary legislation by the Secretary to regulate matters under the Bill. Clause 34 provides for the making of bylaws by the Corporation to regulate the conduct of passengers using the railway.
Part IX: Vesting Provisions and Transitional Arrangements
12. Clause 37 provides for the vesting of the whole of the property, rights and liabilities of MTRC in the Corporation. Clauses 38 to 41 provide for the Corporation to be treated, in relation to property, etc. so vested, in all respects as if it were MTRC; and similar provision is made in respect of company accounts (clause 43), taxation matters (clause 45) and interests in land (clause 47). Consistent with this approach, clause 46 exempts the Corporation from stamp duty in respect of property, etc. vested under Part IX.
13. Clause 42 provides for the holding of shares in the Corporation by the Financial Secretary Incorporated. Clause 52 provides for the dissolution of MTRC at an appropriate time.
Part X: Miscellaneous
14. Clause 53 provides for a right of appeal to the Chief Executive in Council against decisions of the Secretary and other public officers made under
certain provisions of the Ordinance. Clause 54 and Schedule 2 exempt the Corporation from the operation of certain laws. Clause 58 allows for the costs related to the sale of shares in the Corporation or the listing of shares in the Corporation on a stock exchange to be deducted from the proceeds of the sale or listing before being paid into general revenue. Clause 59 allows the Corporation's shares and debt securities to be treated as authorized investments for the purposes of the Trustee Ordinance (Cap. 29).
15. Clause 63 provides for the repeal of the Mass Transit Railway Corporation Ordinance (Cap. 270) and for the subsidiary legislation and notices under that Ordinance as set out in Schedules 3, 4 and 5 to be adopted as subsidiary legislation and notices under the Bill. Clause 64 and Schedule 6 provide for consequential amendments to other enactments.
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