LEGISLATIVE COUNCIL — 15 November 1995
OFFICIAL RECORD OF PROCEEDINGS
Wednesday, 15 November 1995
The Council met at half-past Two o'clock
MEMBERS PRESENT
THE PRESIDENT
THE HONOURABLE ANDREW WONG WANG-FAT, O.B.E., J.P.
THE HONOURABLE ALLEN LEE PENG-FEI, C.B.E., J.P.
THE HONOURABLE MRS SELINA CHOW LIANG SHUK-YEE, O.B.E., J.P.
THE HONOURABLE MARTIN LEE CHU-MING, Q.C., J.P.
THE HONOURABLE NGAI SHIU-KIT, O.B.E., J.P.
THE HONOURABLE SZETO WAH
THE HONOURABLE LAU WONG-FAT, O.B.E., J.P.
THE HONOURABLE EDWARD HO SING-TIN, O.B.E., J.P.
THE HONOURABLE RONALD JOSEPH ARCULLI, O.B.E., J.P.
THE HONOURABLE MRS MIRIAM LAU KIN-YEE, O.B.E., J.P.
DR THE HONOURABLE EDWARD LEONG CHE-HUNG, O.B.E., J.P.
THE HONOURABLE ALBERT CHAN WAI-YIP
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LEGISLATIVE COUNCIL — 15 November 1995
THE HONOURABLE CHEUNG MAN-KWONG
THE HONOURABLE CHIM PUI-CHUNG
THE HONOURABLE FREDERICK FUNG KIN-KEE
THE HONOURABLE MICHAEL HO MUN-KA
DR THE HONOURABLE HUANG CHEN-YA, M.B.E.
THE HONOURABLE EMILY LAU WAI-HING
THE HONOURABLE LEE WING-TAT
THE HONOURABLE ERIC LI KA-CHEUNG, J.P.
THE HONOURABLE FRED LI WAH-MING
THE HONOURABLE HENRY TANG YING-YEN, J.P.
THE HONOURABLE JAMES TO KUN-SUN
DR THE HONOURABLE SAMUEL WONG PING-WAI, M.B.E., F.Eng., J.P.
DR THE HONOURABLE PHILIP WONG YU-HONG
DR THE HONOURABLE YEUNG SUM
THE HONOURABLE HOWARD YOUNG, J.P.
THE HONOURABLE ZACHARY WONG WAI-YIN
THE HONOURABLE CHRISTINE LOH KUNG-WAI
THE HONOURABLE JAMES TIEN PEI-CHUN, O.B.E., J.P.
THE HONOURABLE LEE CHEUK-YAN
LEGISLATIVE COUNCIL — 15 November 1995
THE HONOURABLE CHAN KAM-LAM
THE HONOURABLE CHAN WING-CHAN
THE HONOURABLE CHAN YUEN-HAN
THE HONOURABLE ANDREW CHENG KAR-FOO
THE HONOURABLE PAUL CHENG MING-FUN
THE HONOURABLE CHENG YIU-TONG
THE HONOURABLE ANTHONY CHEUNG BING-LEUNG
THE HONOURABLE CHEUNG HON-CHUNG
THE HONOURABLE CHOY KAN-PUI, J.P.
THE HONOURABLE DAVID CHU YU-LIN
THE HONOURABLE ALBERT HO CHUN-YAN
THE HONOURABLE IP KWOK-HIM
THE HONOURABLE LAU CHIN-SHEK
THE HONOURABLE AMBROSE LAU HON-CHUEN, J.P.
DR THE HONOURABLE LAW CHEUNG-KWOK
THE HONOURABLE LAW CHI-KWONG
THE HONOURABLE LEE KAI-MING
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LEGISLATIVE COUNCIL — 15 November 1995
THE HONOURABLE LEUNG YIU-CHUNG
THE HONOURABLE BRUCE LIU SING-LEE
THE HONOURABLE LO SUK-CHING
THE HONOURABLE MOK YING-FAN
THE HONOURABLE MARGARET NG
THE HONOURABLE NGAN KAM-CHUEN
THE HONOURABLE SIN CHUNG-KAI
THE HONOURABLE TSANG KIN-SHING
DR THE HONOURABLE JOHN TSE WING-LING
THE HONOURABLE MRS ELIZABETH WONG CHIEN CHI-LIEN, C.B.E.,
I.S.O., J.P.
THE HONOURABLE LAWRENCE YUM SIN-LING
MEMBER ABSENT
DR THE HONOURABLE DAVID LI KWOK-PO, O.B.E., LL.D. (CANTAB),
J.P.
PUBLIC OFFICERS ATTENDING
THE HONOURABLE MRS ANSON CHAN, C.B.E., J.P.
LEGISLATIVE COUNCIL — 15 November 1995
CHIEF SECRETARY
THE HONOURABLE DONALD TSANG YAM-KUEN, O.B.E., J.P.
FINANCIAL SECRETARY
MR IAN WINGFIELD, J.P.
ATTORNEY GENERAL
MR MICHAEL SUEN MING-YEUNG, C.B.E., J.P.
SECRETARY FOR HOME AFFAIRS
MR HAIDER HATIM TYEBJEE BARMA, I.S.O., J.P.
SECRETARY FOR TRANSPORT
MR GORDON SIU KWING-CHUE, J.P.
SECRETARY FOR ECONOMIC SERVICES
MR DOMINIC WONG SHING-WAH, O.B.E., J.P.
SECRETARY FOR HOUSING
MRS KATHERINE FOK LO SHIU-CHING, O.B.E., J.P.
SECRETARY FOR HEALTH AND WELFARE
MR RAFAEL HUI SI-YAN, J.P.
SECRETARY FOR FINANCIAL SERVICES
MR JOSEPH WONG WING-PING, J.P.
SECRETARY FOR EDUCATION AND MANPOWER
MR PETER LAI HING-LING, J.P.
SECRETARY FOR SECURITY
MR BOWEN LEUNG PO-WING, J.P.
SECRETARY FOR PLANNING, ENVIRONMENT AND LANDS
MR KWONG KI-CHI, J.P.
SECRETARY FOR THE TREASURY
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MR STEPHEN LAM SUI-LUNG
SECRETARY FOR CONSTITUTIONAL AFFAIRS
CLERKS IN ATTENDANCE
MR RICKY FUNG CHOI-CHEUNG, SECRECARY GENERAL
MR LAW KAM-SANG, DEPUTY SECRETARY GENERAL
MISS PAULINE NG MAN-WAH, ASSISTANT SECRETARY GENERAL
PAPERS
The following papers were laid on the table pursuant to Standing Order 14(2):
Subject
Subsidiary Legislation
L.N. No.
Banking (Amendment) Ordinance 1995 (49 of 1995)
(Commencement) Notice 1995 ..................................
515/95
Official Languages (Authentic Chinese Text)
(Customs and Excise Service Ordinance) Order ........
(C) 96/95
Official Languages (Authentic Chinese Text)
(Insurance Companies Ordinance) Order ...................
(C) 97/95
Sessional Papers 1995-96
No. 24
─
Report of Changes to the Approved Estimates of
Expenditure Approved during the First Quarter of 1995-96
LEGISLATIVE COUNCIL — 15 November 1995
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Public Finance Ordinance : Section 8
No. 25
─
Open Learning Institute of Hong Kong
Annual Report 1994-1995
ADDRESSES
PRESIDENT: We will start the sitting with three addresses. May I remind
Members that under Standing Order 14(5), no debate may arise on the addresses,
but I may permit after each address short questions seeking elucidation of the
addresses.
Open Learning Institute of Hong Kong Annual Report 1994-1995
Mr MICHAEL HO (in Cantonese): Mr President, on behalf of the Council of
the Open Learning Institute of Hong Kong (OLI), I am pleased to present the
sixth annual report and the audited account for the year ended 31 March 1995
which are tabled before this Council.
As the annual report shows, the Institute has completed another year of
steady growth and development on a healthy scale. Working adults are provided
with more opportunities to receive more training and to enhance their intellectual
power so as to equip themselves to meet the challenge of economic shift and
technology advances.
In a short span of four years after the establishment of the OLI in 1989, our
society was reaping the benefits from its investment. It is glad to see that a
group of industrious and talented people striving for self-enhancement are able to
receive the education and training they need. In 1993, there were 161 graduates
at the first congregation of the Institute. In 1994, the number of graduates
reached 547 representing a more than three-fold increase from the previous year.
We expect there will be some 1 100 graduates at the next congregation on 13
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LEGISLATIVE COUNCIL — 15 November 1995
December this year.
The graduates testify to the founding philosophy of the Institute that
learning will not be out of reach for those aspiring to it. Certainly, this could not
have been accomplished without their hard work, the sacrifices of their families,
the dedication of the staff of the Institute and the standing support of the
employers.
This year saw the rapid development of the Institute. The scope of the
programmes has further widened to include a Bachelor of Nursing (Hons) degree
programme and a Bachelor of Education (Hons) degree programme which are
especially designed to upgrade the qualification of the in-service nurses and
teachers. And the preparatory work for launching the first postgraduate
programme for a Master of Business Administration degree has entered the final
stage. This programme was successfully introduced this October in order to
meet the acute demand of our society.
These developments enable more adult learners to take advantage. In the
new semester, more than 20 000 students have registered in different degree
programmes, master degree programmes and sub-degree courses.
Elderly students are able to enjoy a tuition fee discount of 30%. The
disabled students can make use of the special equipment provided by the Institute.
A special fund for prison inmates has been set up to help finance their study at the
OLI.
At a time of rapid growth, the supervision and maintenance of quality is
especially important. Aware of this, the OLI has established a Quality
Improvement Team this year aiming at helping individual units assess their
current standards of quality. Besides, the Academic Board opens its doors to
tutors and representatives of students so that they can participate in the Institute‘s
policy process.
Financially, the Institute has buckled down to operating on a self-financing
LEGISLATIVE COUNCIL — 15 November 1995
9
basis. This year the operating deficit is $3.8 million, representing a 78%
decrease compared with the previous year. Although the Institute has to make
saving, yet it still manages to set aside a small sum to set up a fund for Research
and Development to support research projects at various academic levels.
Despite the above, however, the Institute must obtain firm support from the
Government and the community in order to fulfill its mission of promoting
education on an equal and open basis.
In this regard, the Government has provided a grant of $50 million to the
Institute in setting up a loan scheme for the needy students.
Last year, the Institute obtained generous donations from all sectors, among
which the most significant support came from the Hong Kong Jockey Club
Charities Trust. The Trust has made an important donation which will ensure
that the construction of the permanent campus of the Institute in Ho Man Tin will
progress smoothly on schedule.
We are much impressed by the Institute's development in a short span of
six years. As shown by the stamps on the annual report, the early chapter of the
Institute’s history is drawing to a close and the Institute is gradually reaching full
maturity to become a reputable, independent and efficient education resource,
which many of us are proud of. The Hong Kong Council for Aademic
Accreditation (HKCAA) commended the Institute on its performance after the
HKCAA's validation visit this June. This has further proved that our comments
above are correct.
As recommended by the HKCAA, I hope the Institute will reach another
milestone after it gets the self-accrediting status next year. I firmly believe that
the Institute will report its various substantial developments in the near future.
PRESIDENT: I have also given consent to Dr HUANG Chen-ya, who was the
Chairman of the Subcommittee appointed by the House Committee to study the
Leveraged Foreign Exchange Trading (Calls) Rules, and the Secretary for
Financial Services to address the Council on the Rules which were tabled in this
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LEGISLATIVE COUNCIL — 15 November 1995
Council on 11 October 1995. Dr HUANG and the Secretary will be making two
separate addresses on the Rules.
Leveraged Foreign Exchange Trading (Calls) Rules
DR HUANG CHEN-YA (in Cantonese): Mr President, the Leveraged Foreign
Exchange Trading (Calls) Rules, published as Legal Notice No. 370 of 1995, was
laid on the table of the Legislative Council on 11 October 1995. The Rules
seeks to permit banks and other financial institutions authorized under the
Banking Ordinance to make unappointed calls to potential clients (or target
clients) for the purpose of canvassing leveraged foreign exchange trading orders,
provided these Calls comply with the requirements set out in the Guideline (the
Guideline) issued by the Hong Kong Monetary Authority (MA) in July 1995.
A Subcommittee of the Legislative Council of which I was the chairman
was formed to study the Rules. The Subcommittee had held a total of three
meetings with the Administration, the Securities and Futures Commission (SFC)
and representatives of the MA.
The Subcommittee is most concerned with paragraph 4(b) of the Guideline.
This provision permits authorized institutions to make calls to anyone, provided
that on the day of the call the person has deposited over $500,000 with the
institution concerned, or that the asset he has entrusted with the institution for
management is over $500,000. Some Members are of the view that people who
have deposited over $500,000 are conservative people, and therefore are not the
right kind of people who will take the high risk in such leveraged foreign
exchange tradings. Members are worried that such kind of provisions would
lead to banking staff whose income depends largely on commission gaining
trying to persuade people to engage in this kind of tradings.
In order to remove Members' apprehension, the MA informed the
Subcommittee that it would send the banks letters and ask them not to become too
aggressive in trying to promote sales of this kind of transactions with unsuitable
clients as well as to have control on sales managers who are responsible for the
sales of this kind of products.
LEGISLATIVE COUNCIL — 15 November 1995
11
After the second meeting held on 7 November 1995, most Members were
still having reservations on paragraph 4(b) of the Guideline, and they asked the
MA to provide information on the definition of "high net asset value clients" with
reference to the usual practice in the markets of New York, Tokyo and Singapore
for Members' consideration of the Hong Kong situation and assessing the
suitability for permitting the demarcation at $500,00 for the people concerned to
make calls without prior arrangements.
Having considered the additional information submitted in the third
meeting by the authorities, the Subcommittee asked to have the demarcation of
$500,000 set at a higher level. The Administration agreed to this request and
proposed to adjust the demarcation at $750,000. All parties of the meeting
agreed that the MA should issue a new Guideline and set the demarcation at
$750,000 in the place of the $500,000 set out in paragraph 4(b) of the current
Guideline. The Chariman of the SFC promised that enactment would be in
place in November for the amendment of the Rules so as to enable the new
Guideline to take effect.
I had served prior notice on 8 November 1995 to move a motion to repeal
the Rules; however, since the Chairman of the SFC has already made the
promise, the Subcommittee agreed that the relevant motion which was scheduled
to be moved in the meeting in this Council today be withdrawn. My purpose of
briefing this Council is to seek to put on record the agreement the Subcommittee
had reached in its third meeting with the SFC and the MA on 11 November 1995
and ask the head of the policy branch concerned to confirm that all the work will
be carried out according to the agreement.
SECRETARY FOR FINANCIAL SERVICES (in Cantonese): Mr President, I
would like, first of all, thank Dr the Honourable HUANG Chen-ya and other
Members of the Subcommittee, which was specially convened to consider the
Leveraged Foreign Exchange Trading (Calls) Rules, for the careful consideration
they have given to the Rules.
Dr HUANG has just now explained in great details the guidelines,
particularly paragraph 4(b) thereof, issued by the Hong Kong Monetary Authority
(HKMA) and I am not going to repeat the explanation here. In considering the
LEGISLATIVE COUNCIL — 15 November 1995
12
Rules, Members of the Subcommittee have noted:
(a)
the practice of other major international financial centres in relation
to the marketing of leveraged foreign exchange trading;
(b)
the prudential supervision regime of the HKMA; and
(c)
HKMA's undertaking to reinforce this by issuing a further guideline
on customer suitability.
The Guidelines recommend, inter alia, that banks should not cold call
customers without first considering whether leveraged forex is suitable product
for them. Having regard to these factors, Members agreed that auffiorised
institutions should be allowed to make unsolicited calls for the marketing of
leveraged forex but that the threshold of $500,000 should be raised for better
protection of small investors.
I am grateful to Members for their understanding and for the
consideration they had for the maintenance of Hong Kong as an international
financial centre. To meet Members' concern about the threshold, we have agreed
with members to raise this to $750,000. In this connection, the HKMA will
publish on the 17 November 1995 in the Government Gazette a new Guideline to
raise the specified amount from $500,000 to $750,000. The Chairman of
Securities and Futures Commission has also assured me that he will seek the
Commission's approval for the making of the necessary rules within this month.
Thank you, Mr President.
ORAL ANSWERS TO QUESTIONS
Report on Human Rights
1.
MISS EMILY LAU asked (in Cantonese): In regard to the British
Government's Fourth Periodic Report in respect of Hong Kong submitted under
LEGISLATIVE COUNCIL — 15 November 1995
13
the International Covenant on Civil and Political Rights (ICCPR) to the United
Nations Human Rights Committee and its attendance at the United Nations
hearing on the report, will the Government inform this Council:
(a)
how the Government will follow up on the United Nations Human
Rights Committee's recommendations regarding the report; and
(b)
whether the Government will consider requesting the British
Government to submit further reports under the ICCPR to the United
Nations Human Rights Committee before July 1997?
SECRETARY FOR HOME AFFAIRS (in Cantonese): Mr President, the
United Nations Human Rights Committee examined the United Kingdom
Government's Fourth Periodic Report on Hong Kong under the International
Covenant on Civil and Political Rights (ICCPR) on 19-20 October 1995. The
Committee's Concluding Observations were published on 3 November 1995.
(a)
The Human Rights Committee's observations covered a wide range
of positive aspects and areas of concern. The single most important
area raised by the Committee was its clear statement on the
importance of the continued application of the ICCPR in Hong Kong
and the submission of reports after 1997.
The United Kingdom Government has explained to the Chinese
Government how it presently fulfils the reporting obligation and
made its views known as to how China could fulfil this obligation
after 1997. The United Kingdom Government will continue to
work for a satisfactory resolution of this question with China.
The Human Rights Committee's views on domestic issues cover a
wide area and will be carefully considered by the responsible Policy
Branches. The Committee's recommendations are not binding but
they will be taken very seriously. All the issues raised will be
addressed.
LEGISLATIVE COUNCIL — 15 November 1995
14
(b)
The Human Rights Committee has requested that the United
Kingdom Government submit a brief report on Hong Kong by 31
May 1996 on new developments in respect of the Committee's
Concluding Observations. This request will be met. The Hong
Kong Government will of course be involved in the preparation of
the report. The Committee has stated that it will consider the report
at its 58th session to be held in Geneva from 21 October to 8
November 1996.
MISS EMILY LAU (in Cantonese): Mr President, in his reply the Secretary for
Home Affairs has mentioned that the Human Rights Committee's
recommendations are not binding. I wonder if he is suggesting that the
Government may not comply with them? Moreover, I think the Government
should have noticed that in paragraph 25 of the Concluding Observations
released by the Committee on 3 November, the Committee levelled severe
criticisms on the Government's electoral system and said that the present
electoral system of Hong Kong is not in keeping with Articles 21, 22 and 25 of the
Covenant. The Committee has requested that the Government should take
immediate actions to amend the relevant legislation on election. It is true the
Government has indicated that discussions would be held, but at this stage, can
the Secretary for Home Affairs inform us whether or not discussions on these
legislation would really be held, and whether it is true that the Government may
not comply with the Committee's recommendations since they are not binding in
most circumstances?
SECRETARY FOR HOME AFFAIRS (in Cantonese): Mr President, it is true
that the views of the Committee are not binding. However, I have made it clear
in my reply that they will be taken very seriously, and all the issues raised by the
Committee will be addressed. Members will be aware that when we have to
submit reports on these international covenants, we will deal with them very
seriously. If there is a need to make improvements, our past performance has
demonstrated that we will try our best to do so.
As for the electoral system of the functional constituencies, our view is that
LEGISLATIVE COUNCIL — 15 November 1995
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having functional constituencies is not in contravention of the ICCPR. In 1985
when we introduced this concept of functional constituencies for the first election
of the Legislative Council, we did so because this system would make it possible
for representatives of various professions to take part in the Legislative Council
elections. Over the years, the electoral system of Hong Kong was revised once
and improvements have continued to be made. Regarding the functional
constituency elections, in order to meet Hong Kong's needs, we have expanded
the scope of voters in this year's Legislative Council elections by changing the
previous mode of corporate voting into one of individual voting. The scope of
voters has also been extended from the old functional constituencies to the new
functional constituencies, and the new functional constituencies have covered all
the working population. Of course, we must not be complacent about this. In
fact, the electoral system of Hong Kong has been evolving. In the light of the
Basic Law, we know that functional constituency elections is just a transitional
arrangement with popular election as the ultimate goal. Provisions on this have
been made in the Basic Law, but the time for its implementation has not been
specified, though. In fact, when Britain introduced this International Covenant
into Hong Kong, it already preserved Article 25(b) of the Covenant for Hong
Kong such that both the Executive Council and the Legislative Council are to be
returned by elections. And as we have preserved this right, I therefore think that
contravention does not exist in this respect.
MR LEE WING-TAT (in Cantonese): Mr President, the Chinese Government
has been emphasizing that China is not a signatory of the ICCPR and therefore is
not under any obligation to submit any report to the United Nations. Regarding
this remark, can the Government say whether or not it is correct, and whether or
not it is in keeping with the Joint Declaration? If the Chinese and the British
Governments cannot resolve this reporting obligation in the near future, would
the British Government consider taking this issue to the United Nations or the
International Court of Justice for arbitration?
SECRETARY FOR HOME AFFAIRS (in Cantonese): Mr President, in my
main reply I have made it clear that the British Government has explained clearly
how it presently fulfils this obligation and made its views known as to how China
could fulfil this obligation after 1997. Our basis in this respect is Article 39 of
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LEGISLATIVE COUNCIL — 15 November 1995
the Basic Law. This article states that all provisions of the ICCPR that are
applicable to Hong Kong will continue to be valid, and they include Article 40 of
the ICCPR on the obligation to submit reports. In fact, China has also made
such a declaration in the Sino-British Joint Declaration. Therefore, it is our
view that China does have the obligation to submit reports for Hong Kong in
compliance with the ICCPR after 1997. What we are talking about is how
China should fulfil her obligation to actually submit the reports after 1997. On
various occasions, for example, in the Sino-British Joint Liaison Group (JLG) or
through normal diplomatic channels, we have proposed time and again feasible
ways to China. We will continue our efforts in this respect.
PRESIDENT: I have two more names on the list for supplementaries and I will
draw a line there.
MR LEE WING-TAT (in Cantonese): Mr President, the Secretary for Home
Affairs has not answered the second part of my question, and that is on the issue
of whether or not the Special Administration Region Government or the Chinese
Government is required to submit reports, if the Chinese Government and the
British Government continue to hold different views, would the British
Government take this issue to the United Nations or the International Court of
Justice for arbitration?
SECRETARY FOR HOME AFFAIRS (in Cantonese): Mr President, although
I have not directly replied to the question, I did mention that we would continue
our efforts in this respect. Given that we continue our contacts in this respect, it
should not be anticipated that the talks will yield no results, because it is our hope
that results can be achieved.
MR ANDREW CHENG (in Cantonese): Mr President, I would like to follow up
on the question the Honourable LEE Wing-tat has just asked. In the second
paragraph of part (a) of the Government's main reply, it was stated that contacts
with China would continue in order to strive for a satisfactory resolution. Mr
President, has the British Government any specific content or timetable, or even
LEGISLATIVE COUNCIL — 15 November 1995
17
some reserve plans? Since the time is pressing from now to 31 May 1996, the
date for another brief report to be submitted, if the Chinese Government still
insists that the human rights situation is the internal affair of a country, what
specific work will the British Government do to make Hong Kong people feel that
the Government will secure a satisfactory solution?
SECRETARY FOR HOME AFFAIRS (in Cantonese): Mr President, on the
question of time, as the Honourable Andrew CHENG has said, the Human Rights
Committee of the United Nations (UNHRC) asks us to submit our report by 31
May next year. This naturally will impose a time limit on our work. As to the
question of content and how we put forth to China in reality. I have said that we
would continue to negotiate with China through the JLG and normal diplomatic
channels. I hope Members can understand that not everything discussed in the
JLG or through other normal diplomatic channels can be disclosed. However, I
can assure Members that we will continue our work in this respect.
Furthermore, we also understand that we have to submit another report by 31
May next year to present an account to the UNHRC in this respect.
MR FREDERICK FUNG (in Cantonese): Mr President, in the second
paragraph of part (a), the Secretary for Home Affairs said, "...... and made its
views known as to how China could fulfil this obligation after 1997." That is to
say, the obligation to submit reports on human rights. What it says here is a
way, in other words, how to submit. But the statement made by the Chinese
Government stressed that China is not a signatory of the Covenant, and therefore
is not required to submit reports. Here it is a matter of principle. So how can
the question of how to fulfil related to the matter of principle in any way? If the
Chinese Government insists that it has no obligation to submit reports, then how
can we show it the way to do that?
SECRETARY FOR HOME AFFAIRS (in Cantonese): Mr President, just now
when I answered the follow-up question of the Honourable Miss Emily LAU, I
said that we could arrive at this conclusion on the basis of the provisions of the
Basic Law and the Sino-British Joint Declaration. This means that as a matter
of fact China does have the obligation. Apart from this, there are also other
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LEGISLATIVE COUNCIL — 15 November 1995
means, such as for China to adopt the Covenant herself, and the problem can be
solved. For this reason, we will continue our discussions with China on the
various means.
MISS EMILY LAU (in Cantonese): Mr President, I would like to follow up on
the electoral system of the Legislative Council. The Secretary for Home Affairs
has answered just now that in Article 25(b) of the Covenant, the Government has
preserved the provision. However, from paragraph 19 of the Committee's
Concluding Observations released in September this year, one has already learnt
that the Government has preserved it. However, as soon as we have instituted a
fully elected Legislative Council, the electoral system should be in keeping with
the Covenant. So I hope that the Government will not hide behind the preserved
provision because the Committee has already provided the explanation. At
present, the Government and the Committee are holding different views, that is to
say, the Government is of the opinion that the current electoral system ─ the
electoral system that is discriminatory both within the coterie and in various
aspects ─ is not in contravention of the ICCPR. Mr President, I hope the
Government can offer an explanation as to whether it is the Hong Kong
Government or the UNHRC that has the highest authority on the question of
human rights?
SECRETARY FOR HOME AFFAIRS (in Cantonese): Mr President, may I
defer to the Secretary for Constitutional Affairs to answer this question?
SECRETARY FOR CONSTITUTIONAL AFFAIRS (in Cantonese): Mr
President, the Basic Law provides that our ultimate goal is to produce a
Legislative Council with Members coming entirely from popular election. Just
now the Secretary for Home Affairs has explained it very clearly that when the
British Government introduced the ICCPR into Hong Kong, it made a statement
and certain reservations which would allow Hong Kong to have a certain degree
of flexibility in constitutional developments. In view of the fact that by the end
of this month, the Court will hear a case on functional constituencies and the
existing electoral system, we therefore shall not make any further comments at
this stage.
LEGISLATIVE COUNCIL — 15 November 1995
19
PRESIDENT: Before I invite Mrs CHOW to ask the second question, I would
like to advise Members that it has previously been agreed amongst Members
themselves that Question Time should normally ─ and I repeat, normally ─
be limited to one hour. I therefore suggest that in order to make the best out of
Question Time, Members should keep their supplementary questions as short and
precise as possible.
Cigarette Smuggling
2.
MRS SELINA CHOW asked (in Cantonese): Will the Government inform
this Council:
(a)
of the manpower and resources which the Government has deployed
in each of the past five years (1990-91 to 1994-95) to combat
cigarette smuggling since the drastic increase in tobacco tax;
(b)
of the respective numbers of cigarette smuggling cases and persons
prosecuted, as well as the quantity of cigarettes seized, in each of the
past five years; of the cases which resulted in prosecution, what is
the conviction rate and what are the penalties imposed on those
convicted; and
(c)
whether the Government has made an estimate of the average daily
quantity of dutiable cigarettes smuggled into the territory in the past
five years; if so, what is the percentage of such quantity when
compared with the average daily total quantity of cigarettes
imported to the territory; and what is the estimated loss to the
Government in duty revenue and to tobacco dealers respectively, in
the same period?
SECRETARY FOR THE TREASURY (in Cantonese): Mr President, my reply
to Mrs Selina CHOW's question consists of three parts as follows:
LEGISLATIVE COUNCIL — 15 November 1995
20
(a)
The Customs and Excise Department is responsible for the detection
and prevention of smuggling of contraband, including narcotics,
cigarettes and other dutiable commodities. Prior to July 1993, there
was no separate dedicated teams deployed on combating cigarette
smuggling. Rather, action against cigarette smuggling is an integral
part of the enforcement duties of customs officers deployed at
control points, on land and maritime patrol, and in investigation and
other anti-smuggling activities. The numbers of customs officers
deployed for such duties in the past five years were:
Financial year
Staff number
1990-91
1991-92
1992-93
1993-94
1994-95
2 381
2 381
2 307
2 323
2 587
In July 1993, the Department set up a 12-man Cigarette Action Team
to tackle specifically cigarette smuggling.
In May 1994, the Department expanded this to a 40-man strong
Anti-Cigarette Smuggling Task Force. Other customs officers
carrying out normal control and enforcement work will continue to
assist in anti-smuggling of cigarettes in the course of their normal
duties.
(b)
Before 1991-92, enforcement statistics were collected in respect of
smuggling activities in general and there was no separate breakdown
for cigarette smuggling cases exclusively, except for the quantity of
cigarettes seized. As for conviction statistics, a separate breakdown
for cigarette smuggling cases was only available from 1993-94.
The relevant statistics on enforcement and conviction are very
complicated and I do not want to talk about them one by one. The
details are set out in my written reply to Members:
LEGISLATIVE COUNCIL — 15 November 1995
No. of cases of seizure (3)
Year
No. of persons Cigarettes
prosecuted
No. of counts Conviction
21
Sentences
rate (4)
seized (pieces) successfully
prosecuted (3)
with arrest
without arrest
Fines
Custodial
sentence
1990-91
NA*
NA
NA
7.4 million
NA
NA
NA
1991-92
1 344
763
1 438
24.4 million
NA
NA
NA
1992-93
1 355
478
881
42.5 million
NA
NA
NA
1993-94
2 555
1 142
2 196
179.0
4 213
98.50%
million(2)
1994-95
1 816
1 132
1 890
82.2 million
3 033
95.32%
$50 -
1 day to 12
$130,500
months
$100 -
1 day to 12
$100,000
months
Note:
(1)
Cases detected in the specified period.
(2)
This included a large seizure in February 1994 of some 100 million pieces of cigarettes.
(3)
Counts successfully prosecuted in the specified period.
Number of offences upon which defendants were
(4)
Conviction rate =
convicted during the specified period
----------------------------------------------------------------------------------------------------------Total number of offences prosecuted during the specified period
*
NA = Not Available.
Breakdown of the sentences by suitable intervals are set out in my written reply to
Members:
Quantity of
Fines
Custodial Sentence
cigarettes seized
Offenders
Range of fine
Offenders
Range of imprisonment
LEGISLATIVE COUNCIL — 15 November 1995
22
fined
($)
sentenced
1993-94
<5 000
1 799
100 - 12,000
31
1 day - 6 months
5 001 - 50 000
497
50 - 50,000
37
6 days - 5 months
50 001 - 100 000
42
500 - 80,000
11
1 month - 12 months
100 001 - 500 000
31
100 - 130,500
14
6 days - 6 months
6
1,000 - 50,000
17
2 months - 9 months
2 375
50 - 130,500
110
1 day - 12 months
1 166
100 - 10,000
123
1 day - 4 months
5 001 - 50 000
291
100 - 40,000
68
1 day - 6 months
50 001 - 100 000
20
1,000 - 40,000
16
1 month - 6 months
100 001 - 500 000
40
1,000 - 100,000
32
1 month - 10 months
19
5,000 - 90,000
34
1 month - 12 months
100 - 10,000
273
1 day - 12 months
>500 000
Overall
1994-95
<50 000
>500 000
Overall
1 536
(c)
Year
We do not have the information to work out an estimate of the daily
quantity of dutiable cigarettes smuggled into the territory. We can
only assess the potential loss in duty revenue based on the quantity
of cigarettes seized. The statistics are set out in my written reply to
Members:
Average daily Average daily Average daily Percentage of Duty potential
quantity of
quantity of
quantity of
cigarettes
of cigarettes
cigarettes
cigarettes
cigarettes
seized over
seized
seized
imported #
imported and
cigarettes
(per day)
(pieces) (A)
(pieces)
retained for
domestic
consumption
(pieces) (B)
imported
(A/B%)
1990-91
20 000
170.4 million
11.55 million
0.17%
$4,858
1991-92
67 000
202.4 million
33.64 million
0.20%
$32,053
1992-93
117 000
194.6 million
16.33 million
0.72%
$61,749
LEGISLATIVE COUNCIL — 15 November 1995
23
1993-94
491 000
166.6 million
8.65 million
5.68%
$284,538
1994-95
225 000
165.5 million
8.79 million
2.56%
$130,606
#:
Cigarettes imported include all cigarettes imported for domestic consumption and for
subseqent re-export.
We also do not have the information to work out an estimate of the loss
caused by contraband cigarettes to tabacco dealers.
MRS SELINA CHOW (in Cantonese): From the reply of the Secretary for the
Treasury, there was a total loss of $150 million in tobacco tax from 1993 to 1995.
This figure is derived from the quantity of contraband cigarettes seized and it is
not known as to the number of those which were successfully smuggled. There
have also been reports saying that the sale of contraband cigarettes is controlled
by crime syndicates. Can the Administration inform this Council what actions
the Independent Commission Against Corruption, the police and the Customs and
Excise Department will take as a concerted effort to combat, by means of more
effective measures, the establishment of spheres of influence openly for the sale of
contraband cigarettes?
SECRETARY FOR THE TREASURY (in Cantonese): Mr President, the law
enforcement agencies concerned will, of course, exchange information on
anti-smuggling initiatives regularly in order to combat smuggling activities more
effectively. Insofar as the fight against smuggling activities is concerned, we are
of the view that it is most effective to take target-oriented actions. That is,
gathering relevant intelligence and launching operations accordingly. The
results of these operations are shown as part of the information that I have
submitted to Members. For example, in 1993-94, a total of 179 million
cigarettes were seized, of which 100 million were seized in an operation
supported by gathering target-oriented intelligence.
LEGISLATIVE COUNCIL — 15 November 1995
24
MR HOWARD YOUNG (in Cantonese): Mr President, in its written reply the
Government mentioned that there was a large seizure of 100 million cigarettes in
February 1994. However, it was also shown that the heaviest penalty imposed
in the same year was 12 months' imprisonment. My view is that the penalty
seems to be out of line with the quantity of cigarettes and the seriousness of the
case. May I ask if there is any problem with the sentencing system which makes
it difficult for the Government to curb cigarette smuggling activities? Does this
entail a lack of deterrent effect?
SECRETARY FOR THE TREASURY (in Cantonese): Mr President, under our
law the maximum penalty for such offence is a fine of $1 million and two years'
imprisonment. The actual penalty imposed is, of course, decided by the court
depending on the seriousness and the individual circumstances of the case.
MRS MIRIAM LAU (in Cantonese): Mr President, can the Secretary for the
Treasury inform this Council where do the cigarettes that have been seized
mainly come from? Has the Government taken steps to work with the officials of
those countries to positively identify a solution to the problem with a view to
block the smuggling of contraband cigarettes?
SECRETARY FOR THE TREASURY (in Cantonese): Mr President, I regret
that I do not have details in this regard. I hope the Honourable Mrs Miriam
LAU would allow me to reply in writing. (Annex I)
Waiting Time for Public Housing
3.
MR LEE WING-TAT asked (in Cantonese): Mr President, as the
Governor has pledged in his policy address this year that the Government will
reduce the average waiting time for public rental flats to five years by 2001, will
the Government inform this Council:
(a)
whether, in working out the above-mentioned waiting time for public
rental flats, it has taken into account such factors as the estimated
number of public rental flats to be vacated by public housing tenants
LEGISLATIVE COUNCIL — 15 November 1995
25
who are successful in their applications for Home Ownership
Scheme (HOS) flats, the prices of HOS flats, and the chances of
allocation of public rental flats; if so, how are such figures arrived
at; and
(b)
whether, in view of the fact that there are different categories of
applicants on the waiting list, private housing tenants who apply for
public rental flats will also be allocated public housing units within
five years?
SECRETARY FOR HOUSING (in Cantonese): Mr President, we estimate that
the supply of public rental housing in the six years between April 1995 and April
2001 will be in the region of 241 000 flats. This figure comprises the 141 000
new flats to which we are committed, and about 100 000 flats to be vacated by
tenants of flats not subject to redevelopment, including those who are going to
purchase Home Ownership Scheme flats (about 88 000 flats), those who will
benefit from the Home Purchase Loan Scheme (about 6 000 flats), and those who
will move into private sector accommodation, emigrate or otherwise move out
voluntarily (about 6 000 flats).
After meeting estimated demand during these six years arising from public
housing redevelopment (about 84 000 flats), squatter area and Temporary
Housing Area clearances (about 35 500 flats), and other committed categories
such as emergency rehousing, compassionate rehousing and housing for junior
civil servants (about 27 500 flats), we estimate that 94 000 flats will be available
for allocation to eligible applicants on the General Waiting List during this
period, or an average of over 15 000 flats per year.
At the end of September 1995, the number of applicants on the General
Waiting List stood at about 149 000. Despite our initiative to increase home
ownership, we expert to continue to receive new applications to join the Waiting
List at the rate of 1 900 households a month in the foreseeable future. This will
add about 125 000 households to the Waiting List between now and April 2001,
making in theory a grand total of 274 000 by that date. However, as I said in my
speech in this Council on 2 November during the debate on the Motion of Thanks
to the Governor, we shall be helped in dealing with this large number of
26
LEGISLATIVE COUNCIL — 15 November 1995
applicants by the historical trend that many of those persons who join the Waiting
List are eventually found not eligible, or are rehoused through other schemes or
quotas. And this accounts for nearly half of all applicants on the Waiting List.
On past trends, the percentage of eligible applicants who actually take up
public rental flats in about 54% of the total. We can therefore reduce the figure
of 274 000 on the Waiting List by 46% to give a total of about 148 000 effective
applicants. From this we can subtract the figure of 92 000 new and refurbished
flats which we intend to make available to applicants during the period between
October 1995 and April 2001. This will leave us with an effective Waiting List
in April 2001 of about 56 000, compared with an effective Waiting List of about
80 400 at the end of September 1995. The waiting time after 2001 will be
proportionately reduced by 30% from seven years to under five years. This
implies, of course, that the Government and the Housing Authority will continue
to make adequate provision for new housing production in the years after 2001.
The average waiting time for different categories of applicants on the
Waiting List, including private housing tenants, is the same. The commitment
to a waiting time of less than five years is an average in respect of all eligible
applicants.
MR LEE WING-TAT (in Cantonese): I am grateful to the Secretary for
providing detailed information on the actual demand for public rental housing.
As the Secretary has indicated in his reply, according to the calculation of the
Housing Branch, in the coming five years, the actual demand will be at a
minimum of 148 000 flats while the actual supply will be in the region of only
92 000 flats. The Housing Branch has also acknowledged that there will be a
shortage of 56 000 public rental units. Since the Housing Branch can now
predict that there will be a shortage of 56 000 public rental units in the coming
five years, will the Housing Branch consider allocating about 80 hectares of land
to clear the queue of applicants on the Waiting List, so that all of them can be
allocated public rental units by 2001? Has the Secretary ever taken this
suggestion into consideration?
SECRETARY FOR HOUSING (in Cantonese): If we seek to further reduce
LEGISLATIVE COUNCIL — 15 November 1995
27
the waiting time on the General Waiting List up to 2001, it would of course be an
even heavier commitment. The Governor has shown its determination in his
recently published policy address of reducing the existing waiting time of seven
years to an average of less than five years. As the Governor has said, it will be
no easy task. In fact, it is very difficult. However, the Housing Branch is
committed to working towards this target.
As for the Honourable LEE Wing-tat's suggestion of further shortening the
waiting time after 2001, we will proceed to review the Long Term Housing
Strategy shortly. We would take into consideration the implementation of the
Strategy after 2001 when the review is underway, to see if the waiting time can be
shortened or some other work can be done.
MR EDWARD HO (in Cantonese): There are a lot of assumptions in the
Secretary‘s reply, for example, on the quantity of supply, it is assumed that the
Government can provide adequate land to the Housing Authority on time for the
building of public housing. I am aware that the Government has set up an
interdepartmental working group to review the supply and demand of housing
and it has been claimed that the relevant task should be accomplished by the third
quarter of this year. Will the Secretary inform us whether or not the working
group has finished the report and when the result will be released? Is the land
provided to the Housing Authority suitable?
SECRETARY FOR HOUSING (in Cantonese): The estimate on housing
demand is nearly finished and we will come to a preliminary conclusion on
housing demand within a short time. Of course, the Government will undertake
an internal study and we will then decide on the ways to deal with these new
housing demand in the future. In view of this situation, we may incorporate into
the Long Term Housing Strategy Review the estimates on housing demand, so as
to facilitate the Government's planning beyond 2001, including the provision of
more land to the Housing Authority to build more public housing. However, we
are, so far, not in a position to promise how much land will be allocated to the
Housing Authority. The Government has promised that
141 000 public
rental units will be built by 2001. We have already allocated the land required
for the building of these flats to the Housing Authority so that the Housing
28
LEGISLATIVE COUNCIL — 15 November 1995
Authority may proceed with its public housing building plans.
PRESIDENT: I have five more names on my list for supplementaries. I will
draw a line there.
MR ANTHONY CHEUNG (in Cantonese): Mr President, the Secretary
mentioned in the main reply the commitment that the waiting time for public
rental units in 2001 can be reduced to less than five years and that is an average
waiting time in respect of all eligible applicants. However, as far as we know,
insofar as the supply of public housing units is concerned, units for singletons
and two-member families have always been lacking. Will the Secretary inform
us if the commitment to a waiting time of five years is also applicable to
singletons and two-member families? If it is not applicable, what will be their
waiting time?
SECRETARY FOR HOUSING (in Cantonese): Mr President, the waiting time
that I have mentioned certainly refers to all categories of persons in general,
including singletons, two-member families and families of larger size. Of
course, there are a lot of other factors that may affect the waiting time, for
example, the choice indicated by some of the applicants on the Waiting List. If
they choose those units located at the more remote areas in the New Territories,
their competition with other applicants will be less keen. Generally speaking, it
takes only three to four years to be allocated public rental units there. But for
those who choose to reside in urban units, their waiting time may be somewhat
longer, ranging from seven years to eight or 10 years. Such being the case, we
cannot say that there is a set waiting time for a certain category of persons. The
waiting time that I have been mentioning refers to the general waiting time in
respect of all categories of persons.
MR CHEUNG HON-CHUNG (in Cantonese): Mr President, is fact, the
Honourable Anthony CHEUNG has asked a large part of the question that I
intend to raise. I want to follow up the meaning of the average waiting time of
five years. "Average" means that some applicants may have to wait for three or
four years while some others may have to wait for eight or nine years. Will the
Government inform this Council how many people have to wait for a
LEGISLATIVE COUNCIL — 15 November 1995
shorter-than-average period
longer-than-average period?
and
how
many
have
to
29
wait
for
a
SECRETARY FOR HOUSING (in Cantonese): Mr President, the existing
waiting time of course refers to a general of seven years. Maybe I can provide
Members with some simple figures. Among all applicants, almost over 13 000
have to wait for more than seven years.
MR FREDERICK FUNG (in Cantonese): Mr Dominic WONG has just quoted a
figure in his main reply and that is a very important figure. I doubt and I worry
that it is wrong. He said in paragraph four of his main reply that "On past
trends (I assume that past means before today), the percentage of eligible
applicants who actually take up public rental flats is about 54% of the total. We
can therefore reduce the figure of 274 000 on the Waiting List by 46% to give a
total of about 148 000 effective applicants." This is the most basic figure
because the first three paragraphs, have set out the number of units that will be
built and that could not possibly be changed. The only variable therefore is the
Government's estimation that only 54% of all applicants are eligible for public
housing. However, that estimation is based on the information before today.
Has the Secretary taken into consideration all the factual information beyond
today? It is necessary because it is certain that the data after today would be
quite different from the data before today. The most important difference lies in
the increased daily quota for immigrants from China from 105 to 150, which was
a decision made six months ago, and the quota will be on the rise. Therefore, if
the Secretary, based on past data, estimated that 46% of all applicants will not be
eligible for public housing, then has he taken into account the factor of new
immigrants? If not, how can the Secretary guarantee that only 54% of all
applicants will be eligible for public housing? I therefore reckon that the
Secretary's estimates may be wrong.
SECRETARY FOR HOUSING (in Cantonese): In simple terms, the estimate of
effective applicants at 54% has taken into account the public housing tenants who
apply for transfer of housing units, squatter area residents and Temporary
Housing Area (THA) residents. Since there are some other applicants who are
30
LEGISLATIVE COUNCIL — 15 November 1995
entirely ineligible; therefore, after discounting those people, about 54% of all
applicants are eligible for public housing. With respect to new immigrants,
generally speaking, it has been stipulated that applicants must reside in Hong
Kong for a minimum of seven years before they are eligible for the allocation of
public housing units. Therefore, from a short-term perspective, we do not need
to worry too much. However, in the long run, say, after seven or 10 years, we
must be very cautious about this figure. Therefore, Mr President, when we
review the Long Term Housing Strategy, we will pay close attention to this
problem.
One thing I want to emphasize is that we have made reference to past
trends to arrive at the figure of 54% for our effective applicants. If we do not
make assumption upon past trends, I believe that we will have nothing as our
basis to plan for our future. Therefore, we could only make reference to past
trends and I believe this is a relatively reliable means.
MR FRED LI (in Cantonese): I would also like to follow up Mr Anthony
CHEUNG's supplementary, and that is the question in relation to the situation of
singletons and two-member families. The Secretary has just replied that the
average waiting time is five years. This means that it is expected that the
waiting time can be reduced from seven years to five years. However, I
understand that for those singletons who are not old enough, that is, who are not
yet 60 years old, they may not have the opportunity to be allocated a unit from the
day they submit an application until today. By dividing singletons and
two-member families into two groups, can the Secretary provide us with some
figures over the respective waiting times for those over 60 years old and those
under 60 years old?
SECRETARY FOR HOUSING (in Cantonese): Mr President, I have some
simple figures in hand regarding the waiting time for singletons. Generally
speaking, there are around 20 000 persons waiting for public housing units for
less than six years but there were only very few people waiting for more than
seven years, only about 3 085 persons. Our information shows that they have to
wait for that long because most of them choose to reside in urban public housing
units. In view of the small number of public housing units available in the urban
LEGISLATIVE COUNCIL — 15 November 1995
31
area, the aspirations of those residents in estates which are to be redeveloped must
come first. Only after we have taken into account the interests of those residents
affected by redevelopment will we turn to meet the demand of new applicants on
the Waiting List. Therefore, if they continue to apply for units in the urban area,
they certainly will have to wait for a longer period.
Mr President, I do not have any information in hand regarding two-member
families. I will give a written reply. (Annex II)
MR LEE WING-TAT (in Cantonese): Mr President, I also want to talk about
the trend. The Deputy Secretary for Housing told me at a gathering that the
existing waiting time had been improved. However, I have a paper in hand
issued by the Management and Operations Committee of the Housing Authority.
The information contained therein seems to differ from what the Secretary has
been telling us. Mr President, please allow me to quote some of the information.
The paper points out that the waiting time for units in the Hong Kong area is
reduced from seven to nine years to seven or eight years, that is, the waiting time
is reduced by one year. The waiting time for units in the Kowloon area is
reduced from nine to 12 years to seven or eight years, that is, reduced by three
years. However, the waiting time for units in Tseung Kwan O, Tsuen Wan, Sha
Tin, Tai Po, Fanling , Sheung Shui, Tuen Mun, Yuen Long and Tin Shui Wai will
all be lengthened. This paper is numbered 98/95 issued by the Management and
Operations Committee of the Housing Authority. The Secretary may take a look
at this paper is due course. In other words, is view of the fact that the units that
may be provided to applicants are all located in the New Territories, that means
at the present stage, the waiting time for public housing units is not going to be
reduced but in fact is going to be lengthened. So how could the Secretary be so
optimistic?
SECRETARY FOR HOUSING (in Cantonese): Mr President, Mr LEE has
rightly pointed out that the waiting time in fact depends on the number of public
housing units available in a certain district. In the urban areas, we of course
cannot satisfy so many applicants. As for other districts, the information in hand
shows that the existing waiting time ranges from six or seven years to three or
four years. That varies from district to district. Generally speaking, the
LEGISLATIVE COUNCIL — 15 November 1995
32
waiting time for public housing in the New Territories is shorter and the waiting
time for units in the urban areas is longer. So far, we can only make forecast on
the basis of the past trends. We will continue our endeavour to achieve this
particular target.
Railway Development Strategy Projects
4.
MR LAU CHIN-SHEK asked (in Cantonese): Mr President, in regard to
the Railway Development Strategy, will the Government inform this Council of
the following:
(a)
what will be the actual benefits arising from the KCR extension from
Hung Hom to Tsim Sha Tsui as recommended in the Strategy, and
whether the proposed extension will result in an increase of
passenger flow at the already overloaded Tsim Sha Tsui MTR
station;
(b)
whether the Government will consider the feasibility of extending the
MTR to Kowloon City in view of the proposed extension from Hung
Hom to Tsim Sha Tsui; and
(c)
whether, apart from the high priority projects of the three railway
networks recommended in the Strategy, the Government will study
the construction of other new railway networks in the near future?
SECRETARY FOR TRANSPORT: Mr President, the proposed
Kowloon-Canton Railway (KCR) extension from Hung Hom to Tsim Sha Tsui
will be of distinct benefit to tens of thousands of commuters. Residents from
Sha Tin and the other townships in Northeast New Territories whose destination
is Tsim Sha Tsui will have direct rail access, via the KCR. They will no longer
have to change to the Mass Transit Railway (MTR) at Kowloon Tong Station,
and then switch trains by crossing the platform at Mongkok Station to reach Tsim
Sha Tsui. In turn, this will reduce the existing journey time considerably.
Since commuters can stay on the KCR, this will also greatly relieve congestion
LEGISLATIVE COUNCIL — 15 November 1995
33
along the Nathan Road Corridor.
The Hung Hom to Tsim Sha Tsui loop is also a fundamental component of
the proposed intermediate capacity rail system between Ma On Shan and Tai
Wai. Without this loop, all passengers bound for urban Kowloon and Hong
Kong would have little choice but to change trains at Kowloon Tong. This
would severely aggravate the congestion problem at this station.
Turning now to Tsim Sha Tsui station, it is, indeed, a very busy station
during peak hours. The Honourable LAU Chin-shek is quite right in pointing
out that the proposed KCR loop will result in an increase in passenger flow since
commuters would have to switch to the MTR at this station to cross the harbour
to Hong Kong. This is obviously an area which requires attention and will be
investigated in depth in the engineering feasibility study recently commissioned
by the Government. Both the MTRC and KCRC will provide input for this
study.
To summarise, the Hung Hom - Tsim Sha Tsui loop will support further
development in the Northeast New Territories and will help to relieve pressure on
the Kowloon Tong interchange and the MTR Nathan Road Corridor. It will, thus,
strengthen our railway network.
In addition to the proposed KCR extension to Hung Hom, the Railway
Development Strategy (RDS) also envisages that, dependent upon the scale and
programme for land development in the Southeast Kowloon and the Kai Tak site
when the airport has been relocated, an Intermediate Capacity System (ICS) from
Diamond Hill to Hung Hom may be required to serve that area. This is currently
under investigation under the Southeast Kowloon Reclamation Development
Study. Any link to Kowloon City will have to be examined in that context.
Mr President, may I now briefly comment on the Administration’s plans
regarding the construction of new railway lines.
The three high priority railways identified in the RDS are all massive
projects. Together with the two railway corporations and our own consultants,
we are now conducting detailed feasibility studies to see how best they can be
34
LEGISLATIVE COUNCIL — 15 November 1995
implemented by 2001. Taking into account the multi-billion dollar capital costs
involved, the land resumption requirements as well as the staffing and other
resource implications, it would be totally unrealistic to commit ourselves to, let
alone embark on the construction of, yet more railway projects, all at the same
time.
Notwithstanding this, the Administration will continue to look forward and
plan ahead. Indeed the RDS has identified many longer-term railway proposals
to match development and population growth. These proposals, together with
any others that may be put forward, will be carefully assessed and regularly
reviewed so that timely decisions on their implementation can be taken.
MR LAU CHIN-SHEK (in Cantonese): Urban districts like South Kowloon
including Kowloon City, To Kwa Wan, Hung Hom and Whampoa as well as West
Point are the few ones without the MTR. The residents in these few areas have
long been suffering from the agonies and harassment of traffic congestion. They
have been waiting for the MTR for more than 20 years. Today, the Secretary for
Transport remarked that their request for constructing MTR extensions to these
areas was impractical. I think the residents concerned will all be very
disappointed. In fact, upon completion of the Airport Railway, there should be a
large number of professionals in the MTRC experienced in building the MTR.
They can be responsible for the development of other railway networks.
Besides, judging from the current credit performance of the MTRC, financing is
definitely not a problem. Can the Government consider encouraging the MTRC
to conduct feasibility studies on the MTR networks in South Kowloon and Sheung
Wan so as to speed up the construction of these new railway networks? If so,
when is it possible? If not, why not?
SECRETARY FOR TRANSPORT: Mr President, I, of course, accept that
given unlimited resources, it is desirable to have railways to all major population
centres. But as I have explained, we have decided on our top three priorities.
The line to Kowloon City will be examined again in the context of the Study to
which I have referred. Certainly, the Administration welcomes any initiative
that the MTRC or KCRC may take to look at new railway lines and in this
connection, I understand that indeed the MTRC is looking at, in a very
preliminary manner, the possibility of an extension to Sheung Wan. But these
LEGISLATIVE COUNCIL — 15 November 1995
35
are just exploratory studies. It is far too early to say that they are detailed
proposals and certainly they have not been submitted to the Government for
consideration. But as and when the Corporations come up with such proposals,
we will be happy to look at them. But as I have said in my main reply, the three
major projects which we have are extremely expensive. There are financial
constraints, there are staff constraints and there are land resumption problems.
We simply cannot undertake umpteen projects all at the same time.
MR CHOY KAN-PUI (in Cantonese): Mr President, can the Government
inform this Council that other than the MTRC and the KCRC, are there also
submissions received by the Government from other organizations for railway
projects? If so, how many organizations have submitted proposals, and what is
the Government's attitude towards them? Besides, now that the KCR extension
from Hung Hom to Tsim Sha Tsui is recommended in the Railway Development
Strategy, does that recommendation imply that the Government has no intention
to construct a second railway line from Sha Tin to the urban areas?
SECRETARY FOR TRANSPORT: Mr President, in reply to the first question,
yes, there have been submissions by private organizations for railway projects.
In the past, proposals had been put forward, for example, to connect Aberdeen to
the Central District and more recently, another consortium did put forward
proposals on what is well known as the Cheung Ma Railway. The Government
did consider these proposals very carefully, but because of other plans which
have now been identified in the RDS, these were not pursued at that time.
Certainly, if private consortia put forward proposals, we will look at them to see
how they can fit into our overall transport strategy.
As regards the second question, I have already dealt with this. As I have
explained, the loop between Hung Hom and Tsim Sha Tsui is part and parcel of
the plans to provide an Intermediate Capacity System between Ma On Shan and
Tai Wai. This is to facilitate passenger flow. The Hung Hom loop does not
necessarily mean that we have to extend this further, all at the same time, to other
population centres such as Kowloon City, but we will look at this in the light of
the Study which is now being conducted into Southeast Kowloon.
PRESIDENT: I have four more names on my list for supplementaries. I will
36
LEGISLATIVE COUNCIL — 15 November 1995
draw a line there. May I again remind Members to keep their supplementaries
short and precise, that is, without very long preambles.
MR WONG WAI-YIN (in Cantonese): Mr President, the MTR and the KCR,
especially the KCR, are now developed on linear alignments, that is, from one
end to another. We think that from the point of view of effectiveness, they should
consider how to develop the railway into a loop system. Under a loop system,
even if there is an accident on the railway, service can still go on without
interruption. In regard to the railway study, has the Secretary for Transport
considered how to build more extensions to the existing railway so that they will
form a loop system? For example, when studying the KCR extension to Tsim
Sha Tsui, can they also look at the feasibility of extending to Hong Kong Island?
Or when studying the extension of the Northwest Railway to Tuen Mun Town
Centre, will there be any study on a long-term extension from the Airport Railway
to Yam O so as to make the whole railway system more comprehensive?
SECRETARY FOR TRANSPORT: Mr President, I do not think it is totally
correct to say that our railway systems are now all on linear alignments. There
are several connections on the MTRC, for example, between Island Line and the
Tsuen Wan Line, and later, to the proposed extension to Tseung Kwan O. And
indeed, it is now possible to do a loop to go to Northeast Kowloon, Lam Tin and
Quarry Bay. So there is certainly not just a linear system.
Insofar as our future proposals are concerned, as I have said, we must take
the proposals one at a time. We cannot embark on totally ambitious railway
projects without taking into account the cost. In the RDS, certainly the
longer-term proposals have identified possible alignments, for example, linking
Lantau Island to Hong Kong. Certainly, Mr WONG Wai-yin's proposals will be
borne in mind. But Honourable Members should understand and appreciate
that, given the constraints which I have outlined in my main reply, it is not
possible to conduct and implement all railway projects at the same time.
LEGISLATIVE COUNCIL — 15 November 1995
37
MRS MIRIAM LAU (in Cantonese): Mr President, in the main reply, it was
mentioned that the KCR extension to Tsim Sha Tsui would greatly relieve the
pressure on the MTR Nathan Road Corridor. However, Tsim Sha Tsui is not the
only station that is congested on the MTR Nathan Road Corridor. The
passenger flow is also heavy crossing the harbour. Under the circumstances,
why does the Government not consider extending the KCR to Wan Chai or
Central in Hong Kong Island?
SECRETARY FOR TRANSPORT: Mr President, of course with the Airport
Railway we will have a third cross-harbour crossing. The proposals regarding
the possibility of providing a railway link between Hung Hom and, for example,
the Convention Centre or other parts of Northeast Hong Kong are longer-term
proposals. These will be pursued in our review of the strategy.
MR LEE CHEUK-YAN (in Cantonese): In the main reply, the Secretary for
Transport said that a lot of questions have to be studied, for example, when to
provide a railway link between Diamond Hill and Hung Hom. I really want to
know when will those so-called studies be completed and when will there be a
formal decision, so that the residents in areas like Kowloon City and Hung Hom
are able to know whether the Government intends to construct a railway link
between Diamond Hill and Hung Hom?
SECRETARY FOR TRANSPORT: Mr President, long-term proposals of
course have to be investigated and studied. The RDS in fact has identified some
100 possible railway alignments and these have been categorized into three broad
categories. Group A covers the three main priority sailways, the Western
Corridor Railway Project, the Tseung Kwan O extension and the Ma On Shan Tai Wai and the Hung Hom - Tsim Sha Tsui loop. The other alignment have
been identified or classified as Group B and Group C projects. There is no
specific timing for these studies, but as and when territorial development strategy
studies are carried out and as and when planning briefs for specific areas are
LEGISLATIVE COUNCIL — 15 November 1995
38
conducted, the need for infrastructure projects including railways will be included
in these studies.
MR LAU CHIN-SHEK (in Cantonese): As a matter of fact, the Secretary for
Transport has also pointed out in his main reply that the KCR extension to Tsim
Sha Tsui would increase passenger flow. He also mentioned that the proposal
of KCR extension to the Convention Centre had been considered. There is in
fact an important question here. If the new Convention Centre is not accessible
by either the MTR or other railways, it will really be very inconvenient. At
present, there are actually ways we can connect the Convention Centre with the
KCR and then link up with the MTR in South Kowloon. In that respect, may I
ask the Secretary for Transport whether the Government has any timetable to
take this into consideration? Or is the Government not going to consider the
proposal until the Tsim Sha Tsui station is over-congested with passengers or
until the new Convention Centre is completed and when visitors carrying their
luggage have to flock around at the new MTR station?
SECRETARY FOR TRANSPORT: Mr President, as I said, it is not possible for
me today to give a definitive timetable as to when these other links which
Members have asked for will be provided. The studies are on-going. Certainly
we will not wait until the existing systems are totally congested and incapable of
accommodating more passengers, but the Council and Honourable Members must
realize that railway projects are extremely cost-intensive projects. They take
time to implement and it is simply not possible to undertake more than the top
three priorities, which the Government has identified, at present.
New Territories Land for Open Storage
5.
MRS MIRIAM LAU asked (in Cantonese): Mr President, will the
Government inform this Council:
(a)
how much land in the New Territories has been planned for open
LEGISLATIVE COUNCIL — 15 November 1995
39
storage use, and of which how much has actually been used as
container yards and container truck parking lots;
(b)
what measures has the Government put in place to resolve the
problem of shortage of parking spaces for container trucks, bearing
in mind that according to sources from the trade, there is a shortage
of parking spaces for at least 2 000 container trucks and their
trailers; and
(c)
what measures does the Government have to ensure that the land
which has been planned for open storage use can actually be used as
container truck parking lots and container yards, having regard to
the fact that the majority of such land is privately-owned?
SECRETARY FOR PLANNING, ENVIRONMENT AND LANDS (in
Cantonese): Mr President,
(a)
About 330 hectares of land have been zoned either "Open Storage"
or "Other Specified Uses (Container Back-up Uses)" on the statutory
town plans. About 110 hectares are being used for various types of
open storage and workshops, including 4 hectares for container yards
and 7 hectares for container truck parking.
(b)
There are about 11 000 parking spaces available for container
vehicle parking. These include about 2 000 spaces on short term
tenancy sites; about 7 000 spaces on open storage sites; and about 2
000 spaces in industrial and commercial private developments.
In the short term, efforts will continue to be made to identify short
term tenancy sites for container lorry parking and to seek the
granting of planning permission for such uses by the Town Planning
Board. In this connection, nine applications involving 15 hectares
LEGISLATIVE COUNCIL — 15 November 1995
40
of temporary container trailer parking areas in San Tin with a total
capacity of 900 parking spaces have been approved by the Town
Planning Board.
To cater for the longer term demand for parking container trucks, the
possibility of developing a multi-storey container lorry park at Kwai
Chung for 1 400 container lorries is being examined. The study
result is expected to be available in early 1996. Moreover, with a
view to examining the overall vehicle parking problem, a Parking
Demand Study was commissioned by the Transport Department and
it will be completed in December this year. The results of this
study will provide an indication of existing and future parking
related problems for all vehicles and will recommend measures to
meet the parking demand in Hong Kong.
(c)
As the Honourable Member has rightly pointed out, most of the land
zoned as open storage is private land. It is therefore difficult for the
Government to direct that such land should be used only as container
truck parking lots and container yards. What the Administration
aims to do is to step up enforcement actions on unauthorized
development, as well as publicity, so as to induce operators to move
from unauthorized sites to areas properly designated for open storage
and container parking purposes. Another factor to consider is that
open storage of containers and tractor and trailer parks would be a
relatively viable operation in terms of capital investment and in
comparison to agricultural uses. Landowners would take the
opportunity to use the land for such purposes if they could realize a
better financial return.
MRS MIRIAM LAU (in Cantonese): Mr President, out of the 330 hectares of
land which the Government has planned for open storage use, altogether only 11
hectares have been used as container truck parking lots and container yards.
What is the difference between the number of hectares actually demanded and
these 11 hectares? Besides, the majority of land which has been planned for
open storage is privately owned. The Government has no way to ensure that
such land be used as container truck parking lots only. Does the Government
LEGISLATIVE COUNCIL — 15 November 1995
41
know why such private land has not been used as container truck parking lots?
Can the Government inform us why stepping up enforcement actions
against unauthorized development can do any better than the Government in
inducing owners of private land to use their land as container truck parking lots?
SECRETARY FOR PLANNING, ENVIRONMENT AND LANDS (in
Cantonese): Earlier on, I have mentioned how much land has been planned for
use as container truck and container trailer parking areas. In fact, the
Government hopes that by means of short-term tenancy arrangements, more land
would be made available for parking container trucks or for containers in order to
meet market demand. According to our present record, not only are there 330
hectares drawn on the plans for open storage, but an additional 74 hectares of
land has also been allocated as short-term tenancy sites for container operators to
use as container yards and container cargo storage areas. In addition, 39
hectares are similarly allocated as short-term tenancy sites for parking container
tractors and trailers.
The other thing is the question asked by the Honourable Mrs Miriam LAU
earlier on concerning how much the shortage of land is. Such calculations are
difficult for the Government partly because such land is only used for parking
tractors or trailers and therefore the two items need to be calculated separately
and partly because in some cases, containers or trailers are stacked one on top of
the other so that there are layers of them and it is therefore difficult to give an
accurate estimate given the limit of time. However, we will pay attention to the
market demand. If we receive any application from the operators, we will
allocate land by means of short-term tenancy agreements and, as regards land
which has not been planned for parking containers, container tractors or trailers
but is being used for such purposes, we will consider the possibility of
implementing alleviating measures or providing basic services so that permission
can be granted to alter the use of such land to one of container storage.
Just now I have said that stepping up enforcement actions will enable
greater use of zoned land. I have also said that I hope more efforts can be put in
education and publicity. In fact, we cannot say that sites in the New Territories
which have been zoned as open storage areas cannot serve their purposes. Mrs
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LEGISLATIVE COUNCIL — 15 November 1995
LAU's question is concerned with container trucks only. Nevertheless, owners
of the 330 hectares of land have placed other items on their land as well, for
instance, vehicles awaiting to be dismantled and old tyres. It is not true that
only 11 hectares out of the 330 hectares have been put into use. However, I
hope to negotiate with more owners of land which has been zoned for open
storage and persuade them to convert their land for the planned purposes if they
are not using them for agricultural purposes. Besides, after enforcement actions
on unauthorized land use have been stepped up, those who used to place tractors
on land without authority will turn to rent from sites which have formally been
zoned for container yards or container truck parking lots.
MR EDWARD HO (in Cantonese): Mr President, it has been reported that the
Government is considering the idea of setting up a well-serviced container truck
centre in Yuen Long to meet the needs of parking cross-border container trucks
as well as other needs in the future. Can the Government inform this Council
whether there is in fact such a plan? If so, when will the plan be implemented
and what are its details? If not, why did the Government reject such a
proposal?
SECRETARY FOR PLANNING, ENVIRONMENT AND LANDS (in
Cantonese): Mr President, the Government is thinking of identifying more land
which is suitable for providing logistic services for the port. The idea involves
identifying a site of about 60 hectares in San Tin to provide logistic services for
the port including the storage of containers, container trucks and trailers at the
same place. At present, the study on this idea is still under way. One of the
main reasons is that we have to obtain information as to what supportive facilities
are needed in such a site and what impact they will have on the environment. In
particular, there are now some fish ponds in the area and therefore we have to
study what will be the environmental implications if we fill the fish ponds before
we can determine whether that is an appropriate site. Hence, no final decision
has yet been made, but we do have such an idea.
PRESIDENT: I have two more names on my list. I will draw a line there.
LEGISLATIVE COUNCIL — 15 November 1995
43
MR CHEUNG HON-CHUNG (in Cantonese): Mr President, it is an undeniable
fact that a shortage of container truck parking lots exists. However, this
situation has caused a rather serious problem on the border in the New
Territories, namely, roads and open car-parks in the New Territories have been
wrongfully occupied by some container trailers and that poses a danger to the
safety of other road-users. The police can do nothing about it because those are
trailers and not vehicles. Even if the trailers are to be removed, there is
nowhere to place them. Does the Government have any measures to rectify such
improper actions?
SECRETARY FOR PLANNING, ENVIRONMENT AND LANDS (in
Cantonese): Mr President, can I defer to the Secretary for Transport?
SECRETARY FOR TRANSPORT: Mr President, the Honourable Member is
right. Indeed, the illegal parking of container trucks and lorries in certain parts
of the New Territories sometimes does cause congestion and undermines safety.
Where necessary, police take enforcement action. Separately, there is an
understanding with our colleagues in the Lands Department that as and when
temporary sites which are now being used for parking are relinquished, they will
notify us in advance so that in conjunction with my colleague, the Secretary for
Planning, Environment and Lands, we can try to identify more sites. But the
short answer is that enforcement action is taken where there are obvious hazards
on the roads.
MR CHEUNG HON-CHUNG (in Cantonese): Mr President, my question has
been misunderstood. I was referring to tractors and trailers only.
SECRETARY FOR TRANSPORT: Mr President, I think the answer is the
same. Indeed if tractors or the trailers are left alone and they obstruct usage of
roads, action will be taken to remove them as best as we can.
44
LEGISLATIVE COUNCIL — 15 November 1995
MRS SELINA CHOW (in Cantonese): Mr President, first, I would like to
express may admiration towards the Secretary for Planning, Environment and
Lands because his reply to the Honourable Mrs Miriam LAU's question earlier
on is just like those in the script of "Yes, Minister".
Part (b) of the main question pointed out that the pressing problem is the
lack of parking lots for more than 2 000 container trucks. In paragraph two of
part (b) of the main reply, it was mentioned that 900 parking spaces would be
allotted in San Tin in the short term. It would seem that there would be no
storage space for the other 1 100 trailers at all. I wish to ask the Secretary for
Planning, Environment and Lands that given such a pressing problem, what
initiatives will be taken to allot parking spaces for the 1 100 trailers in urgent
need?
SECRETARY FOR PLANNING, ENVIRONMENT AND LANDS (in
Cantonese): Mr President, first of all, I would like to thank the Honourable Mrs
Selina CHOW and I was flattered for being associated with characters in such a
famous novel. As regards the 2 000 trailers which have no parking spaces, the
first thing we have to do is to examine the problem and that is exactly the main
purpose of the Parking Demand Study commissioned by the Transport Branch
which is now under way. The Study, which is expected to be completed next
month, will work out solutions to this problem. Secondly, some trailers are now
parked near the port facilities. We are also planning to allocate a piece of land
near the Kwai Chung Container Terminal 8 for this purpose soon. However, do
we actually have 2 000 tractors and trailers placed together or should we have
tractors and trailers placed separately? How do we meet the demand? Can the
problem be solved by means of short-term tenancy agreements? What about the
long-term solution? The Study will be completed in a few weeks. I believe we
have to wait until the Government has completed its analysis before there can be
a better solution.
PRESIDENT: I will allow one more supplementary.
DR PHILIP WONG (in Cantonese): Mr President, is there a requirement for the
owner of a vehicle to possess a parking space before his vehicle can be licensed
by the Government? Or has my memory failed me? I would like to seek
clarification on this point.
LEGISLATIVE COUNCIL — 15 November 1995
45
SECRETARY FOR TRANSPORT: Mr President, there is no legal requirement
for the owner of a vehicle to possess a parking space before his vehicle can be
licensed.
Absence Regulation on Old Age Allowance
6.
MR CHEUNG HON-CHUNG asked (in Cantonese): Will the
Government inform this Council:
(a)
of the number of cases in which senior citizens who were former
recipients of the Old Age Allowance but were either disqualified
from receiving the allowance or required to refund the allowance
owing to their failure to comply with the rule on the period of
absence from the territory, as well as the amount which the
Government has saved as result of such disqualification and refund,
in each of the past three years;
(b)
whether the Government has assessed the effects of such a rule on
the livelihood of senior citizens; if so, what those effects are; and
(c)
whether the Government has examined the feasibility of relaxing the
rule; if so, what is the progress and when its recommendations are
expected to be released?
SECRETARY FOR HEALTH AND WELFARE (in Cantonese): Mr President,
the Old Age Allowance (OAA) is a non-means-tested and non-contributory
welfare payment for which all persons over 70 years of age are eligible and for
which all persons between 65 and 70 years of age are eligible subject to a simple
income declaration. An OAA recipient will continue to receive OAA payments
for so long as he or she does not leave Hong Kong for more than 180 days ─ or
46
LEGISLATIVE COUNCIL — 15 November 1995
about six months ─ in any one year. The purpose of this rule is to allow
recipients the freedom to travel overseas for pleasure and to spend time with
relatives and friends outside Hong Kong. At the discretion of the Director of
Social Welfare, a longer period of absence may be permitted if the recipient needs
to receive medical treatment outside Hong Kong. Subject to documentary proof,
any absence from Hong Kong necessitated by work can also be disregarded for
the purposes of retaining eligibility for OAA.
Prior to April 1994, OAA records were kept manually and it would thus be
difficult and very time-consuming to identify OAA recipients whose absence
from Hong Kong for more than 180 days made them ineligible for the allowance.
But since April 1994, OAA records have been computerized. According to
these records, about 1.7% out of the total number of 420 000 OAA cases have
exceeded the permitted absence limit in 1994-95.
When a recipient's absence from Hong Kong exceeds the permitted limit,
his or her OAA payment is temporarily suspended. Records of the amounts not
paid as a result of the suspension of payments are not kept and it would be
difficult and time-consuming to calculate them. But according to records
available, the number of cases involving over-payment as a result of a breach of
this absence rule was over 3 200 in 1994-95.
OAA is not granted in recognition of any assessed financial need. The
existing absence regulation of about six months in any one year is more than
adequate to allow OAA recipients to exercise their freedom to travel overseas for
whatever reason. I cannot see how the absence rule can be said to have any
adverse effect on the livelihood of the recipients. Since the Director of Social
Welfare already has the power to permit a longer period of absence under certain
circumstances, we can see no case for any further general relaxation of this rule.
MR CHEUNG HON-CHUNG (in Cantonese): Mr President, in the main reply,
the Secretary for Health and Welfare mentioned that she did not see that the rule
on the period of absence from the territory could have any adverse effects on the
livelihood of the OAA recipients, which I believe is true. It is because the
Secretary has also mentioned earlier that recipients of the comprehensive social
security assistance payments of between $50 and $60 could still save up some
LEGISLATIVE COUNCIL — 15 November 1995
47
money. I very much believe that she can really not see the public grievances.
As a matter of fact, I would like to ask whether this assessment has taken into
account the traditional Chinese concept of spending the twilight years in one's
home town, and the economic factor that the elderly persons' living conditions
may be better if they spend their twilight years in the Mainland? I thus hope
that the Government can seriously conduct a comprehensive assessment. The
assessment of these two aspects was, however, not mentioned in the main reply.
I hope that the Secretary for Health and Welfare can, on account of this factor,
reassess the needs of the elderly as well as the need to relax the rule.
SECRETARY FOR HEALTH AND WELFARE (in Cantonese): I think that it
is not necessary to relax the regulation generally at the present stage. However,
I will follow up the Honourable CHEUNG Hon-chung's proposal and will
consider this question.
MR CHOY KAN-PUI (in Cantonese): Mr President, will the Government
inform this Council whether the rule on the period of absence from the territory is
intended to disallow the elderly receiving the welfare allowance, or is it intended
to deprive the elderly of their right to choose their own ways of living and of their
freedom?
SECRETARY FOR HEALTH AND WELFARE (in Cantonese): Mr President,
we definitely do not intend to deprive the elderly of their entitled OAA payments.
The existing rule on the period of absence from the territory has already been
relaxed gradually over a period of time. Perhaps I can briefly talk about how we
formulated the allowed absence of 180 days. At the time when we first designed
the OAA, the period of absence allowed was rather short. It was then being
adjusted annually and has now been extended to 180 days. We also think that
the absence regulation of 180 days is appropriate and is long enough for the
elderly to leave the territory for travelling for pleasure or for visiting friends.
MR ERIC LI (in Cantonese): Mr President, the Secretary for Health and
LEGISLATIVE COUNCIL — 15 November 1995
48
Welfare mentioned that as present, at the discretion of the Director of Social
Welfare, a longer period of absence may be permitted but only if the recipient
needs to receive medical treatment outside Hong Kong. I would like to ask if the
recipient is to go back to the Mainland to join his family members and to receive
the most proper care from them, and that he can also prove that he has such a
need financially (perhaps the applicant can be subject to financial monitoring),
will the Secretary for Health and Welfare think that these are two valid reasons to
enable this case to be individually considered?
SECRETARY FOR HEALTH AND WELFARE (in Cantonese): Mr President
other than receiving medical treatment, there is another reason within our
consideration, and that is leaving the territory for working purpose. I will relay
the Honourable Member's proposal to the Director of Social Welfare, who can
reconsider the other reasons to which this kind of discretion may be applied.
WRITTEN ANSWERS TO QUESTIONS
Bill of Rights Legislation
7.
MR LEE CHEUK-YAN asked (in Chinese): In his recent briefing for
Members of this Council on the Government's policy commitments, the Secretary
for Home Affairs stated that he would continue to co-ordinate the review of
legislation to ensure its compliance with the Bill of Rights, and that the
Government would introduce draft amendments to four Ordinances in the current
legislative session. On the other hand, the Chinese Government has indicated
that the Hong Kong Government should not make any major changes to existing
legislation before 1997. In this connection, will the Government inform this
Council:
(a)
of the four Ordinances to which the Government intends to introduce
amendment bills in the current legislative session; and
(b)
whether the Government will give up its efforts in continuing to
revise legislation which contravenes the Bill of Rights in view of the
LEGISLATIVE COUNCIL — 15 November 1995
49
Chinese Government's stance mentioned above?
SECRETARY FOR HOME AFFAIRS: Mr President,
(a)
(b)
The four ordinances involve:
(i)
the relaxation of restrictions on prisoners' correspondence and
the release of information by Correctional Services staff under
the Prison Rules (subsidiary legislation to the Prison
Ordinance);
(ii)
specifying more clearly the conditions under which a medical
superintendent may superintend activities of patients in mental
hospitals or their communications with outsiders as provided
for in the Mental Health Regulations (subsidiary legislation to
the Mental Health Ordinance);
(iii)
ensuring that both parents have the same rights where consent
to a child's marriage is required under the Marriage
Ordinance; and
(iv)
making it clear that the offence of transmitting a message
known to be false, section 28 of the Telecommunication
Ordinance, relates only to false distress signals. Also, in the
same Ordinance, to amend section 13C which gives the
Broadcasting Authority far-reaching powers which are no
longer considered appropriate.
As stated in the Policy Commitments, I will continue to co-ordinate
the on-going review of legislation to ensure consistency with the Bill
of Rights Ordinance and to take into account developing
LEGISLATIVE COUNCIL — 15 November 1995
50
jurisprudence in this area of law.
Green Island Dumping Site
8.
MR IP KWOK-HIM asked (in Chinese): In the past, there were a number
of cases in which a reclamation area was initially designated as a dumping site.
According to the papers provided to the Central and Western District Board by
the Government, the Green Island public dump covers 20% of the proposed
Green Island Reclamation area, and this has aroused public concern as to
whether the Government intends to start the reclamation project on the dumping
site. In view of this, will the Government inform this Council:
(a)
whether any objections to the Green Island Dumping Project have
been received; if so, whether consideration will be given to shelving
the project;
(b)
how many dumping sites will be designated in the next two years;
and,
(c)
whether any of such sites will be situated within the areas of other
reclamation projects?
SECRETARY FOR PLANNING, ENVIRONMENT AND LANDS: Mr
President, the proposed Green Island Public Dump project was gazetted under the
Foreshore and Seabed (Reclamations) Ordinance on 13 October 1995 to invite
public views for a period of two months. Up to 14 November, four objections
under the Ordinance have been received. The Administration has also noted the
views made by other organizations and individuals through other forums. We
shall consider all objections before making a decision on the project.
Four other proposed public dump projects have been found feasible
following impact assessment and engineering feasibility studies. They are
Tseung Kwan O Area 137, Tseung Kwan O Area 86, Tseung Kwan O Town
LEGISLATIVE COUNCIL — 15 November 1995
51
Centre Phase III and Pak Shek Kok. Plans are to start their operation in the next
two years.
The gazetting procedure under the Foreshore and Seabed
(Reclamations) Ordinance for the proposed Pak Shek Kok project is in progress.
Each of the three proposed public dump sites in Tseung Kwan O will
eventually form part of the Tseung Kwan O New Town Development. The
proposed Pak Shek Kok project is not part of any associated reclamation.
Vietnamese Migrants
9.
MR AMBROSE LAU asked (in Chinese): Will the Government inform
this Council of the details and progress of the various programmes for the
repatriation of Vietnamese migrants (VMs), as well as the estimated time when
all the VMs stranded in the territory will be repatriated?
SECRETARY FOR SECURITY: Mr President, under the Comprehensive Plan
of Action, all Vietnamese migrants who have been determined to be non-refugees
must return to Vietnam. They may return under the voluntary repatriation
programme (Volrep) which is administered by the United Nations High
Commissioner for Refugees. If they do not volunteer, they will be repatriated
under the Orderly Repatriation Programme (ORP) which is operated by the Hong
Kong Government. To date, over 47 000 Vietnamese migrants have returned
to Vietnam under these two programmes:
Year
Volrep
ORP
1989
1990
1991
1992
867
5 429
7 660
12 332
87
249
Yearly total
867
5 429
7 747
12 581
LEGISLATIVE COUNCIL — 15 November 1995
52
1993
1994
1995*
Total
12 301
5 581
1 389
45 559
399
250
639
1 624
12 700
5 831
2 028
47 183
(* as at 8 November 1995)
The Administration is committed to the repatriation of all the Vietnamese
migrants as soon as possible.
Hong Kong Currency in Circulation in China
10. MR ALLEN LEE asked (in Chinese): In view of growing economic
activities between China and the territory, the total amount of Hong Kong
currency circulating in China over the years has accumulated to a substantial
level, which can impose a significant effect on the economy of the territory. In
this connection, will the Government inform this Council of:
(a)
the total value of Hong Kong currency in circulation in China in
each of the past three years, together with its percentage to the total
currency circulation in the territory;
(b)
the anticipated circulation of Hong Kong currency in China in the
next three years; and
(c)
the anticipated effect the circulation of Hong Kong currency in
China on the inflation rate and the economic conditions in the
territory?
SECRETARY FOR FINANCIAL SERVICES: Mr President,
(a) There are no official statistics on the actual size of the amount of
Hong Kong dollar banknotes circulating outside the territory. One
LEGISLATIVE COUNCIL — 15 November 1995
53
estimate puts the figure in the range from about 30% to 35% of the
total amount of currency in circulation, that is, between HK$20 to 25
billion out of a total of HK$70 billion. The bulk of this is likely to
be circulating in China.
(b) While we do not have any clear and official basis to estimate the
future demand for the Hong Kong currency in China, we believe that
this would depend on China's policy towards allowing currencies
other than the Renminbi to circulate in China and the enforcement of
that policy.
(c)
To the extent that part of the Hong Kong dollar banknotes
circulating in China is likely to be associated with Hong Kong’s
business dealings with China and if the circulation actually
facilitates such business dealings, its effect on the Hong Kong
economy should tend to be positive. Since Hong Kong dollar
circulating in China would by definition be circulating outside Hong
Kong, such circulation should not have any appreciable effect on the
inflation rate in Hong Kong. In any case, the amount only
represents well under 5% of the Hong Kong dollar broad money
supply.
Enrolment in Local Tertiary Institutions
11. MR ANTHONY CHEUNG asked (in Chinese): Regarding the student
intake of local tertiary institutions in 1994-95, will the Government provide this
Council with the following information:
(a)
the breakdown of intake figures by number of students who have
applied, number of students who have been admitted, and number of
students who have enrolled, in each of the seven tertiary institutions
funded by the University Grants Committee and the Hong Kong
Institute of Education;
(b)
of the students admitted to the Hong Kong Institute of Education,
what is the percentage of those who have obtained a pass in both
English Language and Chinese Language in the Hong Kong
Certificate of Education Examination (HKCEE), and how many have
LEGISLATIVE COUNCIL — 15 November 1995
54
satisfied the Institute's minimum entrance requirement with HKCEE
results obtained from more than one attempt; and
(c)
the number of students admitted to each of the above-mentioned
tertiary institutions whose results in English Language and Chinese
Language in the HKCEE or Use of Language in the Hong Kong
Advanced Level Examination are below the minimum entrance
requirement of the institution concerned?
SECRETARY FOR EDUCATION AND MANPOWER: Mr President,
(a)
A total of 25 140 applicants applied for admission to programmes
offered by the seven University Grants Committee (UGC)-funded
institutions in 1994-95 through the Joint University Programmes
Admission Scheme. 11 867 offers were made of which 11 716
were accepted. A further 689 places were filled subsequently in
clearing rounds. A breakdown of the number of JUPAS offers,
acceptances and intakes of first year first degree (FYFD) courses by
each of the seven UGC-funded institutions in 1994-95 are attached at
Annexes A and B respectively. The intake figures in Annex B
represent the total enrolments including places retained by the
institutions to offer to non JUPAS applicants, for example, mature
applicants and those applying for admission on the strength of
qualifications other than results in Hong Kong Advanced Level
Examinations.
As regards the Hong Kong Institute of Education (HKIEd), the
Institute received a total of 9 808 applications for its full-time
Certificate in Education (CE) courses in 1994-95. 1 796 offers
were subsequently made and the enrolment figure as at October 1995
was 1 170.
(b)
All 1 170 students admitted to the HKIEd's CE courses have
obtained a pass in Chinese Language in the Hong Kong Certificate
LEGISLATIVE COUNCIL — 15 November 1995
55
of Education Examination (HKCEE). 1 129 (96.5%) of them have
obtained Grade E or above in the HKCEE English Language
(Syllabus B) and the remaining 41 (3.5%) have possessed Grade E or
above in the HKCEE English Language (Syllabus A). Of the 1 170
students registered at the beginning of the 1994-95 academic year,
1 153 (98.5%) met the entry requirements on the basis of one
examination sitting, 12 on the basis of two sittings, and five on the
basis of other equivalent qualifications.
(c)
The total number of first year first degree (FYFD) intakes in 1994-95
who did not meet the requisite requirements set by the relevant
programmes/Departments in the UGC-funded institutions concerned
regarding the Advanced Supplementary (AS) Use of English subject
was 58. The corresponding figure for the AS Chinese Language
and Culture subject was 25. A breakdown of the figures by
institutions is attached at Annex C. As regards the HKIEd, none of
the students admitted to the HKIEd courses have results in English
Language and Chinese Language in the HKCEE that are below the
minimum entry requirements of the Institute.
Annex A
Number of offers issued, accepted and declined
in the 1994 JUPAS Main Offer Round
Institution
Places
Available
through JUPAS*
Offers
Issued
Offers
Accepted
Offers
Declined
City U
1 910
1 643
1 616
27
HKBU
1 271
1 271
1 252
19
LEGISLATIVE COUNCIL — 15 November 1995
56
LC
706
706
659
47
CUHK
2 647
2 528
2 513
15
PolyU
1 909
1 807
1 792
15
HKUST
1 804
1 610
1 599
11
HKU
2 552
2 302
2 285
17
12 826
11 867
11 716
151
TOTAL
City U
-
City University of Hong Kong
HKBU
-
Hong Kong Baptist University
LC
-
Lingnan College
CUHK
-
Chinese University of Hong Kong
PolyU
-
Hong Kong Polytechnic University
HKUST
-
Hong Kong University of Science and Technology
HKU
-
University of Hong Kong
*
Remaining FYFD places are filled by direct recruitment by the
institutions, for example, mature students or students with
qualifications which are considered equivalent.
Annex B
Number of intakes
on first year first degree courses
Institution
Number of students
LEGISLATIVE COUNCIL — 15 November 1995
City U
HKBU
LC
CHHK
PolyU
HKUST
HKU
2 163
1 293
705
2 796
2 439
1 896
2 822
TOTAL
14 114
57
Annex C
Institution
City U
Institution
FYFD intakes (1994-95) from
JUPAS Applications who did not
meet the minimum requirements
of the specific programmes/
Departments
AS Use of
English
(UE)
AS Chinese
Language and
Culture (CLC)
-
4
FYFD intakes (1994-95) from
JUPAS Applications who did not
meet the minimum requirements
of the specific programmes/
Departments
AS Use of
English
AS Chinese
Language and
Remarks
The 4 students were admitted
to the Faculty of Science and
Technology with the Chinese
Language requirement waived
as exceptional cases.
(Minimum requirement is
Grade E)
Remarks
58
LEGISLATIVE COUNCIL — 15 November 1995
(UE)
Culture (CLC)
HKBU
10
-
The 10 students all had grade D
in AS UE. They were enrolled
in the BA in Translation
programme which required
Grade C in AS-level UE. The
general rule for entry is Grade
E in two of the following 3
AS-level subjects: UE, CLC
and Liberal Studies. For the
Bachelor of Science in
Combined Science (except
Computing Science option)
students are allowed to
substitute one of the three
AS-level subject by another
AS-level subject.
PolyU
11
-
Applications who marginally
failed AS UE may be
exceptionally admitted
provided that they have good
results in other AL and AS
subjects and will pursue an
English Enhancement
Programme in their first year of
study at the end of which
assessments were made to
ensure their English
competence.
(The minimum requirement is
Grade E)
Institution
FYFD intakes (1994-95) from
JUPAS Applications who did not
meet the minimum requirements
of the specific programmes/
Departments
AS Use of
AS Chinese
Remarks
LEGISLATIVE COUNCIL — 15 November 1995
59
English
(UE)
Language and
Culture (CLC)
LC
5
4
These students had obtained
other qualifications deemed
equivalent by the Department
concerned.
(The minimum requirement is
Grade E)
CUHK
13
-
The 13 were
"Chinese-medium" students
who obtained only Grade F in
UE but had successfully
completed the Intensive
English programme and passed
the Supplementary English
Examinations arranged by ED.
(The minimum requirements is
Grade E)
HKUST
-
1
Special approval was granted
on the basis of outstanding
performance in all other
subjects to admit the 1 student
who did not meet the minimum
entry requirement for HKCEE
Chinese Language which is
Grade E.
Institution
FYFD intakes (1994-95) from
JUPAS Applications who did not
meet the minimum requirements
of the specific programmes/
Departments
Remarks
LEGISLATIVE COUNCIL — 15 November 1995
60
AS Use of
English
(UE)
AS Chinese
Language and
Culture (CLC)
HKU
19
16
TOTAL
58
25
The students were granted
waiver of the requirements on
the strength of their
performance in other subjects
or in view of their special
circumstances.
(The minimum requirements is
Grade D for AS UE and Grade
E for AS CLC)
Increasing Race Meets
12. MR ALBERT CHAN asked (in Chinese): In view of the upward trend in
the number of horse races held annually in recent years, will the Government
inform this Council of the criteria for approving the Royal Hong Kong Jockey
Club's application for increasing the number of races held in a year?
SECRETARY FOR HOME AFFAIRS: Mr President, there is a maximum
number of horse races that can be held by the Royal Hong Kong Jockey Club (the
Club) in every racing season (the period from 1 September to 15 June). In
September this year, the maximum number was revised from 70 races per season,
which had been in place since 1986, to 75. In setting the current maximum
number, we took into account the following factors:
(i)
the additional races will benefit Hong Kong in terms of additional
betting duty receivable and an increase in the allocation to local
LEGISLATIVE COUNCIL — 15 November 1995
61
charities;
(ii)
the number of free Wednesdays within the racing season which can
be used for holding additional races;
(iii)
whether an increase in race meetings would help combat
opportunities for illegal gambling on horse races held outside Hong
Kong on those days, and
(iv)
a genuine demand for more racing from the racing public.
The Club plans to hold only 72 race meetings in the 1995-96 season.
Student Counselling Services
13. DR JOHN TSE asked (in Chinese): As the problem of students committing
suicide in the territory has become serious in the recent years, will the
Government inform this Council:
(a)
whether the Government has provided any counselling and related
supporting service to prevent students form committing suicide; if so,
how many counsellors and supporting staff are engaged in such
service and what training is given to them;
(b)
what types of moral education courses does the Government provide
to schools to complement this type of counselling service; and
(c)
what long-term strategy and measures does the Government have to
solve this problem?
SECRETARY FOR EDUCATION AND MANPOWER: Mr President, it
should be emphasized that the causes of suicides committed by youngsters who
are also students are multifaceted and often prove difficult to pinpoint. Broadly
LEGISLATIVE COUNCIL — 15 November 1995
62
such suicides are the tragic outcome of failure on the part of our youngsters to
adjust themselves to the pressures of growing up, and to their changing
environment. Pressure of school work or examinations may or may not feature
in the whole process. It is important, therefore, that the problem should be
addressed not only from the school point of view but also from the total
environment of the youngsters including, in particular, their home which they
look to as the major source of support, understanding and assistance outside
school.
Insofar as the Education Department is concerned, we advocate a Whole
School Approach to Guidance whereby all school staff, under the leadership of
the principal, are involved to create a positive and caring school environment for
the holistic development of students. A positive school environment can
enhance students' self esteem and enable students to cope with their problems.
To date, 260 (about 60%) secondary schools and 650 (about 79%) primary
schools have adopted this approach.
(a)
In addition to the whole school approach on guidance, the
Department has taken a wide range of measures to prevent student
suicide, including:
-
Conducting seminars and workshops for guidance teachers on
crisis management; issuing a resource package on
"Understanding Student Suicide" with emphasis on detection
and prevention of suicide; setting up telephone hotlines for
teachers on handling crisis; and providing professional support
to back up teachers on the management of students at risk.
-
Strengthening student's coping skills by arranging regular talks
by doctors on mental health and stress management;
encouraging schools to run student group programmes on
family life education, peer support programmes, and so on,
with the help of education psychologists and education
counsellors; producing video tapes and guidance materials for
discussion with students; and producing a curriculum kit on
parent-child relationship.
LEGISLATIVE COUNCIL — 15 November 1995
63
-
Strengthening parental support by issuing a series of leaflets on
parenting to enhance parents' awareness of proper method of
communication with their children; funding the production of a
special TV drama series to enhance parents' awareness and
distributing such video tapes to all schools; and encouraging
schools to set up parent teacher associations and promote
parent education. At present, 320 schools have set up parent
teacher associations. Another 47 are in the process of setting
up similar associations.
-
By providing, through its team of education psychologists (26)
and education counsellors (10), specialist guidance and
counselling service to schools including support to the schools'
own counselling staff. These latter staff comprise 194 Student
Guidance Teachers (SGTs)/Student Guidance Officers (SGOs)
for the primary schools, and 250 school social worker (SSWs)
and some 400 guidance teachers (GTs) for the secondary
schools. Educational psychologists and counsellors hold
professional qualifications in education psychology or social
work. SGOs, SGTs and GTs undertake in-service training
courses of varying duration from four months to one year,
while SSWs hold degrees in social work. In addition, all
attend professional development courses or training on a
continuing basis.
(b)
Moral education is promoted in schools through a cross-curricular
approach to complement counselling services to prevent student
suicide. Related themes such as positive attitudes toward life and
understanding oneself are conveyed through subjects like Social
Studies, History, Chinese Language and Religious Education.
Teaching kits and reference materials are provided to convey these
themes through classroom teaching and extra-curricular activities.
(c)
A Task Group has been formed by the Education Department since
1992 to look into the question of student suicide. The Task Group
meets regularly to follow up on the recommendations made by the
Coroner’s Court and the Board of Education Advisory Committee on
School Guidance and Support Services to streamline the
LEGISLATIVE COUNCIL — 15 November 1995
64
co-ordination and the departmental procedures in dealing with
student suicide. The Group also advises on how the specific
measures mentioned in paragraph (a) above should be reinforced or
strengthened.
Compassionate Rehousing for Divorced Women
14. MR WONG WAI-YIN asked (in Chinese): Regarding the application for
compassionate rehousing by divorced women, will the Government inform this
Council of the following:
(a)
how many divorced women have applied for compassionate
rehousing over the past three years; of this, how many have failed in
their applications, and what the reasons are;
(b)
how long it will normally take for an applicant to obtain rehousing;
and
(c)
whether the existing application criteria for compassionate
rehousing will be reviewed and whether consideration will be given
to increasing the number of units provided for this purpose?
SECRETARY FOR HEALTH AND WELFARE: Mr President, the aim of the
compassionate rehousing scheme is to help individuals and families who have a
genuine and immediate housing need.
Applications for compassionate
rehousing are first assessed by the Social Welfare Department (SWD) which then
recommends eligible cases to the Housing Department (HD) for the allocation of
units. In assessing eligibility, factors taken into account by the SWD include the
housing need, the financial and residential status of the family concerned and
relevant social and medical grounds.
(a)
The number of applications for compassionate rehousing by
divorced women which were referred by the SWD to the HD in the
past three years are 140 in 1992-93, 269 in 1993-94 and 212 in
1994-95. We do not have readily available data on the number of
LEGISLATIVE COUNCIL — 15 November 1995
65
applications from divorced women which were found to be ineligible
on assessment by the SWD. The most common reasons for turning
down such applications were a lack of need for rehousing or
applicants having incomes which were too high.
(b)
Provided that all the relevant information is furnished at the time of
application, a case can normally be processed by the SWD in about
six weeks. It will then take about four weeks for the HD to identify
and allocate a public housing unit to the applicant. This can take
longer if the applicant is slow in producing the necessary
documentation or is choosy regarding the acceptability of the units
offered.
(c)
The eligibility criteria of the compassionate rehousing scheme are
kept under review to ensure that they meet the genuine and
immediate housing needs of applicants. Each year, a number of
public housing units are reserved to serve the scheme, by reference
to the estimated demand. In 1995-96, a quota of 2 000 units has
been set aside for this purpose. The quota set is for planning
purposes only and does not create a cap on the number of units
available. For example, in 1994-95, a total of 2 049 units were
actually allocated for compassionate rehousing, a number which
exceeded the quota of 2 000 units originally reserved for the scheme
in that year.
Charges on International Calls
15. MR LAU CHIN-SHEK asked (in Chinese): Regarding the charges for
international telecommunications services, will the Government inform this
Council:
(a)
of the breakdown, by region, of the percentage increase or decrease
in the international telephone charges for calls from Hong Kong to
overseas countries and territories in each of the past three years;
LEGISLATIVE COUNCIL — 15 November 1995
66
(b)
of the differences between the international telephone charges levied
by Hongkong Telecom International Limited and those levied by
other companies offering similar services in each of the past three
years;
(c)
whether the Government has any plan to negotiate with Hongkong
Telecom International Limited to secure a further reduction in
international telephone charges levied by the company; and
(d)
whether the Government and Hongkong Telecom International
Limited have formulated any specific measures to reduce the
international telephone charges for calls between Hong Kong and
mainland China?
SECRETARY FOR ECONOMIC SERVICES: Mr President,
(a)
A breakdown by region of the percentage changes to the
international telephone charges for calls from Hong Kong to
overseas countries and territories during the past three years is at
Annex A.
(b)
Within the Hong Kong Telecom Group, IDD charges are collected
by the Hong Kong Telephone Company (HKTC). Details of the
differences between the international telephone charges levied by
HKTC and those levied during the past three years by other
companies offering similar services in respect of the more popular
routes is at Annex B.
(c)
The Government considers that reduction in international telephone
charges through market competition is more effective than through
regulatory action.
Under its licence condition, the Hong Kong
LEGISLATIVE COUNCIL — 15 November 1995
67
Telecom International's (HKTI) exclusive right is restricted to the
delivery of external telephone traffic from the Hong Kong
international gateway to places outside Hong Kong, and places
outside Hong Kong to the international gateway. The HKTI is not
permitted to deliver telephone traffic directly to customers in Hong
Kong and must rely on a local Fixed Telecommunication Network
Service (FTNS) operator, such as its sister company, the HKTC, to
deliver calls to the customers. The local FTNS operator charges the
customer for the IDD call and retains a share of it (the delivery fee)
for providing the connection between HKTI's gateway and the
customer's home or office. From 1 August 1993, all the mobile
telephone operators are also permitted to deliver telephone traffic
directly from the HKTI international gateway to their own mobile
phone customers. Following the introduction of FTNS competition
on 1 July 1995, the three new FTNS operators are providing IDD
service in competition with HKTC and are offering very competitive
rates.
Further, with effect from 1 October 1995, the
Telecommunications Authority (TA) has revised the delivery fees.
The new delivery fees are more favourable to the FTNS operators on
outgoing calls and give them a higher margin which enables them to
offer further IDD reductions to customers. Local mobile phone
operators also receive the same delivery fee from HKTI on the
delivery of international telephone calls and are also offering
competitive IDD charges to their customers. In addition, in March
1995 the TA confirmed his ruling that call-back services are legal in
Hong Kong. There are now a large number of companies providing
IDD call-back services in competition with HKTC/HKTI and the
three FTNS operators. The TA will continue to monitor the market
situation and review the effects of competition.
(d)
As explained in (c) above, the Government considers competition to
be more effective than negotiations with HKTI to reduce
international telephone charges.
The revised delivery fees
introduced in October 1995 will give local FTNS operators a
significant margin over IDD rates to China and it is expected that
LEGISLATIVE COUNCIL — 15 November 1995
68
they will pass some of this margin back to the consumers through
competition. The effect of increased competition is expected to be
seen in the next few months. For the time being, some call-back
operators are already providing competitive charges on calls to
China, for example, a charge of $8.50 compared with $9.50 from
HKTC for calls to Beijing, Shanghai and other cities outside
Guangdong. As competitive market pressures are taking effect, it is
premature to consider intervening in HKTI’s rates through
regulatory action.
Annex A
Changes in IDD Standard Rates of Hong Kong Telephone Company
From 1993 to 1995
Total
before
after
Change
after
Change
after
Change
Change
1/8/93
1/8/93
in %
1/8/94
in %
1/8/95
in %
in %
($/min)
($/min)
(Vs 92)
($/min)
(Vs 93)
($/min)
(Vs 94)
(Vs 93)
Australia
12.3
8.1
-3.4%
7.2
-11%
7.2
0%
-41%
New Zealand
12.3
8.1
-34%
8.1
0%
8.1
0%
-34%
Canada
11.7
8.9
-24%
7.9
-11%
6.7
-15%
-43%
United States
12.3
9.8
-21%
8.6
-12%
6.8
-21%
-45%
Germany
15.8
12.5
-21%
12.5
0%
12.5
0%
-21%
France
15.8
12.5
-21%
12.5
0%
12.5
0%
-21%
Netherlands
15.8
12.5
-21%
12.5
0%
12.5
0%
-21%
United Kingdom
10.5
9.8
-7%
8.8
-10%
8.8
0%
-16%
Countries
Oceania
America
Europe
LEGISLATIVE COUNCIL — 15 November 1995
69
Africa
South Africa
15.8
14
-11%
14
0%
14
0%
-11%
Egypt
24
21
-13%
21
0%
21
0%
-13%
Singapore
7
6.9
-1%
6.9
0%
6.9
0%
-1%
Japan
7.9
7.9
0%
7.9
0%
7.9
0%
0%
Philippines
7.9
7.9
0%
7.9
0%
7.9
0%
0%
Taiwan
7.9
7.9
0%
7.9
0%
7.9
0%
0%
Shenzhen
2.4
2.4
0%
2.4
0%
2.4
0%
0%
Guangdong
3.7
3.7
0%
3.7
0%
3.7
0%
0%
Rest of China
9.5
9.5
0%
9.5
0%
9.5
0%
0%
Asia
China
Annex B
International Telephone Rates 1993
Hong Kong Telephone
Company
City Telecome (HK)
Limited
Country
Peak
Non-Peak
Peak
Non-Peak
United States
$9.80
$8.00
$8.33
$7.04
Canada
$8.90
$7.80
$7.57
$6.86
United Kindom
$9.80
$8.50
$14.22
$13.38
Australia
$8.10
$6.60
$15.46
$14.55
$27.03
$27.03
$27.03
$23.32
$23.32
$23.32
China -
Shenzhen
Guangdong
Rest
$2.40
$3.70
$9.50
International Telephone Rates 1994
LEGISLATIVE COUNCIL — 15 November 1995
70
Hong Kong Telephone
Company
City Telecome (HK)
Limited
Country
Peak
Non-Peak
Peak
Stored value
Non-Peak
Stored value
United States
$8.60
$6.90
$7.31
$6.94
$6.07
$5.77
Canada
$7.90
$6.90
$6.72
$6.38
$6.07
$5.77
United Kindom
$8.80
$8.20
$7.48
$7.11
$7.48
$7.11
Australia
$7.20
$6.50
$6.48
$6.16
$6.48
$6.16
China -
table
Shenzhen
Guangdong
Rest
$2.40
$3.70
$9.50
$27.03
$27.03
$27.03
$23.32
$23.32
$23.32
LEGISLATIVE COUNCIL — 15 November 1995
71
Clearance of Temporary Housing Areas
16. MR LEE WING-TAT asked (in Chinese): With regard to the clearance of
Temporary Housing Areas (THAs), will the Government inform this Council:
(a)
whether the decision to retain 13 THA's as announced by the
Housing Authority is in contravention of its policy on THA's made
previously;
(b)
how the rehousing arrangements of those residents living in the
above-mentioned THA's which are not yet scheduled for demolition
compare with those who living in THA's with firm clearance dates;
and
(c)
what environmental improvement programmes will be implemented
by the Government for these 13 THA's, and what the estimated cost
is?
SECRETARY FOR HOUSING: Mr President, the number and location of
Temporary Housing Areas (THAs) required to meet changing demand is subject
to periodic review. The purpose of retaining 13 existing THAs beyond 1997 is
to meet future demand arising from clearance programmes and immigration from
China.
The Govemment's commitment to offer permanent rehousing in public
rental estates, before the end of 1997, to all authorized persons living in THAs as
at the end of 1993 remains unchanged. Indeed we will go one step further: by the
end of 1997, all authorized persons living in THAs as at the end of September
1995 will be offered rehousing in public rental estates.
The rehousing arrangements for existing residents of the 13 THAs will be
similar to those for residents of THAs which have firm clearance dates. Eligible
households will be offered public rental housing by the end of 1997. They will
also be entitled to apply, with priority Green Form status, for the purchase of
Home Ownership Scheme flats or for assistance under the Home Purchase Loan
LEGISLATIVE COUNCIL — 15 November 1995
72
Scheme.
The units in the 13 THAs will be refurbished by the Housing Authority
before reallocation. Work has already started on vacated units. The cost in
each case varies, depending on the size and condition of the unit and the
renovation work required. The average cost for each unit is estimated at $8,000.
Charter for Safety in the Workplace
17. MRS SELINA CHOW asked (in Chinese): At present, many occupational
diseases afflict employees in the retail industry as well as general office workers.
There is however no legislation to protect them against health hazards arising
from their employment. In this year's policy address, the Governor make
reference to proposal to publish a "Charter for Safety in the Workplace" (the
Charter). In this connection, will the Government inform this Council:
(a)
What is the time frame planned for the full implementation of the
Charter; and
(b)
whether the Charter will provide safeguards for the occupational
safety and health of employees in the retail industry and office
workers; if so, who the Charter will be able to improve the
occupational safety and health of these employees and office
workers?
SECRETARY FOR EDUCATION AND MANPOWER: Mr President, it is the
Government's intention to publish and implement the "Charter for Safety in the
Workplace" in the middle of 1996. To this end, the Labor Department has set
up a working group to draft the Charter. The Legislative Council Panel on
Manpower, employers' associations, employees' unions and the professional
bodies concerned will be consulted at a later stage.
The Charter will cover the whole range of occupational safety and health
LEGISLATIVE COUNCIL — 15 November 1995
73
issues for employees in both industrial and non-industrial sectors, including
employees in the retail trades as well as office workers. The Charter will make
clear the rights of the worker to enjoy a safe working environment and the
employer's obligations to prevent deaths and injuries. It will also emphasize the
responsibility of the employees to co-operate with his employer in following
safety working practices and reporting workplace hazards.
Implementation of the Charter will enhance the safety awareness of the
employers and employees. We believe that if employers and employees abide
by the Charter, use appropriate personal protective equipment and follow
operational manuals and guidelines, the standard of occupational safety and
health will be greatly enhanced.
Underground Marble Caverns in Ma On Shan
18. MISS EMILY LAU asked: It is reported that a Housing Department
development project in Area 90 of Ma On Shan is several months behind
schedule. According to the report, the piling contractor of the project blamed the
delay on the discovery of underground marble caverns but this was denied by the
Chairman of the Building Committee of the Housing Authority. The piling
contractor further accused the Chairman of the Building Committee of having a
"substantial conflict of interest" because he is also a senior partner of the
architectural firm which designed the development project. In this connection,
will the Administration inform this Council:
(a)
whether the problem of underground marble caverns was
anticipated and whether allowance for such problem was made in
the design of the project;
(b)
whether there are other reasons for the delay in the project; if so,
what those reasons are;
(c)
how much more money the project will cost;
(d)
whether the accusation of conflict of interest has been investigated;
and
LEGISLATIVE COUNCIL — 15 November 1995
74
(e)
when the project is expected to be completed?
SECRETARY FOR HOUSING: Mr President, the Government was aware of
the marble caverns in Ma On Shan Area 90 before the commencement of the
housing project. As Area 90 is a Scheduled Area under the Buildings
Ordinance, detailed investigations, which covered all six phases of the project,
were conducted by geological and engineering sub-consultants engaged by the
Housing Departrnent's consultants between 1989 and 1993 in consultation with
the Housing Department. The dispute in question relates to the piling contract
for Phase 5.
Owing to minor localized subsidence, the piling contractor for Phase 5 has
made an allegation that it would be unsafe to carry on with the work. The
Housing Department's consultants are firmly of the view that it is safe to continue
according to the specialist design of the piling work and the detailed technical
requirements specified in the contract. Foundation work was already about
seven months behind schedule before the subsidence occurred. The Housing
Department's consultants have ascribed the delay to the piling contractor's use of
inadequate plant and machinery and insufficiently experienced workers.
It is not possible at this stage to provide an estimate of additional cost for
the project since much will depend on how quickly and in what manner the piling
work will be carried out in future. The contractor is liable for liquidated
damages in respect of any delay.
Members of the Housing Authority are required to declare their interests at
meetings, including those concerning the appointment of consultants and the
award of contracts and consultancies, and to refrain from discussing such matters.
This requirement has been complied with in respect of this project.
If the piling contractor continues to work at his present pace, piling will be
completed in January 1998. The Housing Department is exploring with the
consultants and the contractor ways and means of expediting the work. The
revised completion date for Phase 5 of the project is June 2000.
LEGISLATIVE COUNCIL — 15 November 1995
75
Health Hazards at Petrol Filling Stations
19. DR JOHN TSE asked (in Chinese): Will the Government inform this
Council what measures the Government has to: (a) protect those workers at
petrol filling stations and residents nearby against health risk and even chronic
illness which may be cause by the inhaling of gases such as benzene over a long
period of time; and (b) safeguard the occupational safety of the workers and the
health of the residents?
SECRETARY FOR PLANNING, ENVIRONMENT AND LANDS: Mr
President,
(a)
The adverse impacts of petrol filling stations are minimized through
land use planning and statutory control over emissions. Under the
Hong Kong Planning Standards and Guidelines, all new petrol filling
stations have to be located on open ground with specified distance
from neighbouring buildings. Oil companies are also required to
keep the benzene level in petrol within the European Community
standard of 5%. So far, the average benzene content in Hong Kong
has been maintained at about 3.2% to 3.4%, and recent surveys have
confirmed that workers in petrol filling stations are not exposed to
air-borne concentrations of the chemicals in excess of the relevant
occupational hygiene standards. Under the Air Pollution Control
Ordinance, the Environmental Protection Department also ensures
that petrol filling stations comply with specified emission levels for
toxic chemicals.
(b)
In addition to the planning controls referred to in (a), administrative
and engineering controls such as proper work practice to avoid
spillage and the provision of bottom loading system for road tankers
are implemented to safeguard the health of workers in petrol filling
stations. In addition, a study on toxic air pollution in Hong Kong is
being conducted, which will also address the question of controls on
benzene from petrol filling stations, and will be completed at the end
of 1995. The Administration will consider the findings carefully to
LEGISLATIVE COUNCIL — 15 November 1995
76
see whether further control measures will be necessary.
Flood Protection Schemes
20. MR WONG WAI-YIN asled (in Chinese): In his 1994 policy address the
Governor pledged that a sum of 190 million would be spent over the next three
years on flood protection schemes for some 12 villages which were particularly
vulnerable to flooding. However, it is learnt that the schemes are now running
behind schedule because the time taken for land resumption has been longer than
expected. In this connection, will the Government inform this Council:
(a)
of the villages where the flood protection schemes are running
behind schedule, and how far have these schemes fallen behind the
original schedule;
(b)
what measures does the Government have to ensure that there will
be no further delay in land resumption; and
(c)
whether inadequate manpower in the Lands Department is a factor
contributing to the delay in land resumption; if so, whether the
Government will consider increasing the Lands Department’s
manpower?
SECRETARY FOR PLANNING, ENVIRONMENT AND LANDS: Mr
President, the answers to the three-part question are as follows:
(a)
The construction of three flood protection schemes covering nine
villages, originally scheduled to start in 1995-96, will begin in
1996-97. The slippage is about 10 months. The villages are Sha
Po Tsuen, Chau Tau Tsuen, and seven villages at San Tin: Tsing
Lung Tsuen, Wing Ping Tsuen, San Lung Tsuen, Fan Tin Tsuen, On
Lung Tsuen, Tung Chan Wai and Yan Shau Wai. The schemes for
Pok Wai Tsuen and Chuk Yuen will be delayed by about 12 months.
LEGISLATIVE COUNCIL — 15 November 1995
77
(b)
The Drainage Services Department is working closely with the
District Lands Offices on land resumption and clearances required
for the implementation of the village protection schemes. We have
also set up a special committee comprising representatives from all
relevant offices to review what can be done to overcome the
problems encountered and to speed up the necessary procedures so
that work can begin as quickly as possible. However, the
Government has to proceed carefully with land resumption because
it involves the property rights of land owners. This may sometimes
mean taking longer than expected to complete the process.
(c)
Manpower in the Lands Department is only one of the factors.
Other factors such as statutory procedures and the time required to
deal with objections are also relevant. We are looking at ways to
streamline the procedures and improve efficiency. We are also
reviewing the priorities of the various activities undertaken by the
Lands Department.
BILLS
First Reading of Bills
MERCHANT SHIPPING (REGISTRATION) (AMENDMENT) BILL 1995
LAND REGISTRATION (AMENDMENT) BILL 1995
TOWN PLANNING (AMENDMENT) BILL 1995
Bills read the First time and ordered to be set down for Second Reading pursuant
to Standing Order 41(3).
Second Reading of Bills
MERCHANT SHIPPING (REGISTRATION) (AMENDMENT) BILL 1995
THE SECRETARY FOR ECONOMIC SERVICES to move the Second
Reading of: "A Bill to amend the Merchant Shipping (Registration)
Ordinance."
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He said (in Cantonese): Mr President, I move that the Merchant Shipping
(Registration) (Amendment) Bill 1995 be read the Second time.
The Bill seeks to plug a potential legal loophole in the Merchant Shipping
(Registration) Ordinance. Under the existing law, where the Registrar of Ships
receives a notice that a ship has ceased to be registrable by virtue, for example, of
its change of ownership or termination of its demise charter, and if the Registrar
is satisfied that the ship has indeed ceased to be registrable, he will close the
registration of the ship. In case where notice of unregistrability is received from
the representative person or the demise charterer, a ship may be de-registered
from the Hong Kong Register of Ships without the knowledge of its owner or
mortgagee. Although under present administrative practice this is unlikely
because the Registrar will normally notify the owner and any outstanding
mortgagee on receipt of the notice before closing the registration of a ship, the
loophole is that there is no statutory obligation for the Registrar to give such
notification.
There is concern in the industry and amongst banks that this loophole may
provide an opportunity for fraud if the demise charterer submits a notice of
unregistrability and transfers the ship's registration without any outstanding
mortgage first being cleared.
The Bill aims to plug this loophole by requiring the Registrar, on receipt of
a notice of unregistrability, to give 30 days' notice to the owner and any registered
mortgagee before the closure of the ship's registration is effected. This will give
sufficient time for the existing owner or mortgagee to take any appropriate action
to protect their interests and thereby eliminate the opportunity for fraud.
Thank you, Mr President.
Question on the motion on the Second Reading of the Bill proposed.
Debate on the motion adjourned and Bill referred to the House Committee
pursuant to Standing Order 42(3A).
LEGISLATIVE COUNCIL — 15 November 1995
79
LAND REGISTRATION (AMENDMENT) BILL 1995
THE SECRETARY FOR PLANNING, ENVIRONMENT AND LANDS to
move the Second Reading of: "A Bill to amend the Land Registration
Ordinance."
He said: Mr President, I move that Land Registration (Amendment) Bill 1995 be
read a Second time.
Land registration in both the urban areas and the New Territories is
governed by the Land Registration Ordinance and the Land Registration
Regulations.
To improve its services to the public, the Land Registry will introduce a
Document Imaging System in mid-1996. This is basically a new method of
storage and retrieval of land records, whereby the memorials or registered
instruments are scanned and the information recorded in them is converted into
electronic images which are stored on electronic storage media such as optical
disks. The information can then be speedily retrieved for viewing on screen and
printing onto paper.
In order that the image record of memorials retained on the disk can be
treated for all purposes as an original copy of the memorial as with the microfilm
records, a new provision similar to section 29 of the Land Registration Ordinance
is necessary. Amendment to section 26A(1) of the Ordinance is also required to
make clear that a document purporting to be a copy, print or extract of or from
an image record after certification by the Land Registrar will be admissible in
evidence in court proceedings. The imaging method should also be added to the
Land Registration Regulations as an additional method of recording memorials
and registered instruments.
Separately, the Land Registry is launching a project to record the register
cards in the urban area on microfilm. Register cards in the New Territories are
also being converted into computerized records. The Register cards will serve
no practical use afterwards. We therefore propose that the Land Registrar
should be able to destroy or otherwise dispose of them so as to achieve savings in
having to store them. Regulation 19 of the Land Registration Regulations needs
LEGISLATIVE COUNCIL — 15 November 1995
80
to be amended to reflect this.
Under section 22 of the Land Registration Ordinance, a person can deposit
at the Land Registry any deed, conveyance, power of attorney or other instrument
in writing for safe custody until he requires them back again. It is uneconomical
for the Land Registry to continue providing this service in view of the cost
involved and the fact that safe deposit services are widely available from banks.
We therefore propose that this section should be deleted, but the Land Registry
will keep safe custody of the deeds already deposited with it
The main proposals of the Land Registration (Amendment) Bill 1995 are:
(a)
clause 2 defines the terms "image", "image record", "imaging",
"imaging method" and "register card";
(b)
clause 3 repeals section 22 of the Ordinance such that the Land
Registry will not further accept deposit of any deeds or conveyances
for safe custody. Notwithstanding this, the Land Registrar will
continue to keep safe custody of the deeds and conveyances
deposited with him until such deeds and conveyances are delivered
back to the person depositing them;
(c)
clause 5 makes it clear that a document purporting to be a copy, print
or extract of or from an image record after certification by the Land
Registrar will be admissible in evidence in court proceedings. The
use of printed signature of the Land Registrar or of any person
authorized by him for certification purposes is allowed;
(d)
clause 6 enables regulations to be made in respect of the use of the
imaging method;
(e)
clause 7 provides that the microfilm record of register cards, the
image record of memorials, and the image record of the microfilm
record of the memorials be treated for all purposes as the original
register cards or memorials.
LEGISLATIVE COUNCIL — 15 November 1995
81
Mr President, the Land Registration (Amendment) Bill 1995 will enhance
the compatibility of the recording system of memorials and registered instruments
with new information technology and improve the economic efficiency of the
registration process. I recommend it to Members for favourable consideration.
Subject to the enactment of the Bill, the (Amendment) Regulation will be made
by the Land Registrar.
Thank you, Mr President.
Question on the motion on the Second Reading of the Bill proposed.
Debate on the motion adjourned and Bill referred to the House Committee
pursuant to Standing Order 42(3A).
TOWN PLANNING (AMENDMENT) BILL 1995
THE SECRETARY FOR PLANNING, ENVIRONMENT AND LANDS to
moved the Second Reading of: "A Bill to amend the Town Planning
Ordinance."
He said (in Cantonese): Mr President, I move that the Town planning
(Amendment) Bill 1995 be read a Second time.
There is now a considerable backlog of cases concerning objections to draft
plans and planning appeals to be heard by the Town Planning Board and the
Town Planning Appeal Board respectively. The appointment of judges to the
Appeal Board panel and the interpretation of continuing offence under the Town
Planning Ordinance also need clarification.
The existing Town Planning Ordinance provides that the Town Planning
Board will give preliminary consideration to an objection to a draft plan in the
absence of the objector. If the objector refuses to withdraw the objection after
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being notified of the Board's view, he has the right to attend a hearing before the
Town Planning Board.
At present, the Town Planning Board may delegate some of its powers
and functions to a committee appointed by the Governor, but review of the
Board's decisions on planning applications and consideration of objections are
two of the matters that cannot be delegated to a committee and must be dealt with
by the Board itself.
Up till mid September 1995, the Town Planning Board has yet to give
preliminary consideration to some 3 089 objections and to hear 1 150 outstanding
objections. We estimate that if the objections are to be heard by the Board
according to the present hearing procedure, it would take several years to clear
the backlog.
The Bill will enable the Town Planning Board to appoint its members to
form committees to hear objections to the draft plans. Such committees will
each consists of not less than five members drawn from the Board. The majority
of committee members shall not be public officers. It is expected that the
hearing of objections can be expedited when these committees are in operation.
The Town Planning Ordinance provides that an applicant for planning
permission who is aggrieved by a decision of the Town Planning Board on review
may lodge an appeal to the Town Planning Appeal Board. Upon receipt of a
notice of appeal, the Chairman or the Deputy Chairman of the Appeal Board
panel shall nominate an Appeal Board to hear the appeal. The Appeal Board
shall consist of the Chairman or the Deputy Chairman of the panel and four other
members.
In recent years, there has been a significant increase in the number of
appeals. Up till mid September 1995, there are 29 outstanding appeals yet to be
heard by the Appeal Board. The present constitution of the Appeal Board only
allows two hearings to be held concurrently, as only the Chairman or the Deputy
Chairman of the Appeal Board panel can act as Chairman of the Appeal Board.
The Bill will enable the Governor to appoint more than one Deputy
Chairman to the Appeal Board panel, so that additional Appeal Boards may sit
LEGISLATIVE COUNCIL — 15 November 1995
83
simultaneously.
The Appeal Board panel was created in 1991 by way of an amendment to
the Town Planning Ordinance. When the amendment was debated in this
Council in July 1991, the ad hoc group studying the bill expressed the view that
the Chairman of the Appeal Board panel should be drawn from the judiciary.
However, due to the shortage of judges, a senior lawyer was appointed by the
Governor to be its Chairman when the Appeal Board panel was first constituted.
He was subsequently appointed as a judge in the Court of Appeal but continues to
serve as Chairman of the Appeal Board panel. The validity of his appointment
and the validity of the decisions made by the Appeal Boards under his
chairmanship is currently subject to legal challenge on the ground that a judge is a
public officer. Legal advice obtained by the Administration is that "public
officer", viewed in the context of the Ordinance, does not include a judge.
However, if the court challenge is successful, any decisions of the Appeal Boards
made under his chairmanship subsequent to the validity of his appointment first
being raised would be affected. The validity of his appointment was first raised
in May 1995, so there are a number of such decisions. As it is the intention of
the Administration that the Chairman of the Appeal Board panel would continue
to be able to be drawn from the judiciary, the problem will continue.
To put it beyond doubt that a judge may be appointed to the Appeal Board
panel, it is proposed that a new subsection should be added to the Ordinance to
define that "public officer" does not include a judge. In addition, a new section
is proposed to validate decisions made by an Appeal Board of which a judge was
a member unless the validity of the judge's appointment was challenged in court
on or before 31 October 1995. The latter exception ensures that proceedings
currently before the court will not be interfered with.
To clarify the nature of a continuing offence under section 23 of the
Ordinance, the Bill provides for a daily fine to be charged for continuing offence
on each day after the date in a notice served under section 23, during which the
convicted offender continues to fail to comply with the requirements of such
notice.
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The Bill will improve the efficiency and operation of the Town Planning
Board and Town Planning Appeal Board. I recommend it to Members.
Thank you, Mr President.
Question on the motion on the Second Reading of the Bill proposed.
Debate on the motion adjourned and Bill referred to the House Committee
pursuant to Standing Order 42(3A).
AIR PASSENGER DEPARTURE TAX (AMENDMENT) BILL 1995
Resumption of debate on Second Reading which was moved on 18 October
1995
Question on Second Reading proposed.
MR HOWARD YOUNG (in Cantonese): Mr President, the Air Passenger
Departure Tax (Amendment) Bill 1995 seeks to enable visitors to pay for the
departure tax in advance at places such as hotels. I fully support and agree to
this proposal for the convenience of visitors.
There have been times when visitors touring Hong Kong would find to
their surprise that they do not have enough money in Hong Kong currency to pay
for the departure tax after they have bought souvenirs, other consumer goods,
gifts and so on, and I believe that the chance of such embarrassment will be
reduced following the introduction of this new measure. I would also suggest
that visitors should be allowed to buy the tax coupons at such places as travel
agencies other than hotels because travel agencies may be fully responsible for
making travel arrangements for some visitors.
Besides, some visitors coming to Hong Kong may not reside in hotels. If
visitors who stay in hotels can buy tax coupons in advance while those who do
LEGISLATIVE COUNCIL — 15 November 1995
85
not stay in hotels cannot, it may give a wrong impression that visitors who do not
check in at a hotel are not welcomed in Hong Kong.
Yet, Mr President, in the long term, it is still my hope that the Government
would consider abandoning the concept of departure tax. Air passengers are the
main users of the airport. The departure tax that passengers are required to pay
now merely constitutes an additional income to the Treasury and, quite on the
contrary, payers cannot enjoy any additional service in paying this tax. This
seems to be rather unfair to departing passengers. The Government has long
advocated the "user pays" principle, which also forms part of the bedrock of
Hong Kong's financial philosophy. If the Government considers it necessary to
charge departing passengers a fee, I think it would be more appropriate to change
the concept from an airport tax or a departure tax to an airport service charge.
The fees collected can be spent on improving the services, maintenance and
facilities of the airport, in which case departing passengers will find it worthwhile
to pay such fees. In so doing, the spirit of "user pays" will be realized and the
Airport Authority will be able to attain better development in its finance with its
competitive edge further enhanced in future. I believe that this will be beneficial
to the development of tourism in Hong Kong in the long run.
Mr President, I support this Bill.
SECRETARY FOR THE TREASURY (in Cantonese): Mr President, I am very
grateful to the Honourable Howard YOUNG for his support for the Bill. I am
prepared to consider Mr YOUNG's proposal, that is, the selling of tax coupons by
organizations other than hotels.
Mr YOUNG put forward some ideas about Air Passenger Departure Tax.
I believe Mr YOUNG will understand that the Financial Secretary is consulting
Legislative Council Members on tax matters. We will certainly consider Mr
YOUNG's ideas.
Question on the Second Reading of the Bill put and agreed to.
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LEGISLATIVE COUNCIL — 15 November 1995
Bill read the Second time.
Bill committed to a Committee of the whole Council pursuant to Standing Order
43(1).
Committee Stage of Bill
Council went into Committee.
AIR PASSENGER DEPARTURE TAX (AMENDMENT) BILL 1995
Clauses 1 to 6 were agreed to.
Council then resumed.
Third Reading of Bill
THE SECRETARY FOR THE TREASURY reported that the
AIR PASSENGER DEPARTURE TAX (AMENDMENT) BILL 1995
had passed through Committee without amendment.
Reading of the Bill.
He moved the Third
Question on the Third Reading of the Bill proposed, put and agreed to.
Bill read the Third time and passed.
LEGISLATIVE COUNCIL — 15 November 1995
87
MEMBER'S MOTIONS
INTERPRETATION AND GENERAL CLAUSES ORDINANCE
MR EDWARD HO to move the following motion:
"That the Marine Fish Culture (Amendment) Regulation 1995, published as
Legal Notice No. 467 of 1995 and laid on the table of the Legislative
Council on 25 October 1995, be repealed."
MR EDWARD HO: Mr President, I move the motion standing in my name on
the Order Paper.
The Marine Fish Culture (Amendment) Regulation 1995 seeks to increase
the fee for the grant or renewal of a marine fish culture licence for 12 months
from $7.40 per sq m of the site area to $8.80 per sq m.
A Subcommittee under my chairmanship was formed to study this
Regulation and the Building (Administration) (Amendment) (No. 3) Regulation
1995. The Subcommittee has met the Administration and received a submission
from the Hong Kong Federation of Hong Kong Aquaculture Associations which
raises objection to the increase in licence fee. The Subcommittee has noted the
Administration's explanation that the existing fee, which represents 84% of the
cost calculated at 1995-96 prices, was last revised in October 1994 under a
phased programme aimed at achieving full-cost recovery in 1995-96. The
Administration therefore proposes to increase the fee by about 19% to recover the
full costs in issuing licences. The Administration envisages that the proposed
new fee should not cause hardship to mariculturists as it would represent less than
1% of the total operating expenses of a typical fish farm.
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LEGISLATIVE COUNCIL — 15 November 1995
Nevertheless, in the light of the information provided by the
Administration that the net income of a typical marine fish culture farm only
amounts to an average of $120,000 per year, the Subcommittee considers the
proposed increase inappropriate as it would adversely affect the livelihood of the
mariculturists. The existing fee level has already been set at recovering more
than 80% of the costs, the Subcommittee expresses doubt on the necessity to
recover the full costs within a short period of time. The Subcommittee therefore
agrees that the licence fee should remain at the existing level and the Regulation
setting out the fee increase should be repealed.
Mr President, I beg to move.
Question on the motion proposed.
SECRETARY FOR ECONOMIC SERVICES (in Cantonese): Before
Honourable Members consider this motion, I would like to give two brief
explanations only.
Firstly, the basic principle underlying the Government's proposal of
increasing the existing fee from $7.40 per sq m to $8.80 per sq m is to recover the
full costs. As the Honourable Edward HO said, the licence fee of $7.40 was set
13 months ago. At that time, 93% of the administrative costs could be
recovered. However, due to inflation since October 1994, this level of licence
fee can now only recover 84% of the existing costs. Before the Government
introduced this proposal, the Agriculture and Fisheries Department had consulted
the Aquaculture Subcommittee of the Advisory Committee for Agriculture and
Fisheries. The Subcommittee did not object to the cost recovery principle at that
time. Mr President, thus from the angle of principle, the Government can see no
reason why it should not recover all the costs incidental to the marine fish culture
licences. Since the enactment of the Marine Fish Culture Ordinance, this level
of licence fee has always been lower than the full cost level.
Secondly, in regard to the impact of this licence fee on fish farms, I would
like to quote a simple example. For a fish farm with an average area of 180 sq
m, the annual licence fee is about $1,300 according to the existing rate, which is a
little lower than 1% of the operation cost of the fish farm. If, according to the
LEGISLATIVE COUNCIL — 15 November 1995
89
present proposal of the Government, the fee of this type of marine fish culture
licences will be increased by $250 per year, the increase will be equal to one fifth
of the above-mentioned 1% operation cost. After considering that the estimated
total annual operation cost of this kind of fish farms is as high as $162,000, this
rate of increase, that is $250, will indeed be negligible. This low level of licence
fee increase should not cause any financial difficulties to the licence holders, or
have any appreciable effect on the consumers in respect of the fish prices.
Thank you, Mr President.
MR CHEUNG HON-CHUNG (in Cantonese): Mr President, before I make a
decision as to whether or not I should support the Honourable Edward HO's
motion, I need to pose a question. Whom has the Government consulted?
Representatives of the 42 members of the Hong Kong Federation of Hong Kong
Aquaculture Associations have pointed out that it appears the Government has
never consulted them. However, according to the documents the Government
gave us, mariculturists are agreeable to the revised fees. I need to ask further
whether the 42 organizations I mentioned were among those consulted. Is the
Government trying to mislead us? Thank you, Mr President.
SECRETARY FOR ECONOMIC SERVICES (in Cantonese): Mr President,
do you allow me to answer the question just raised?
PRESIDENT: Go ahead, Secretary for Economic Services. It is a point of
elucidation.
SECRETARY FOR ECONOMIC SERVICES (in Cantonese): Thank you, Mr
President. I just want to clarify a fact. I have mentioned in my speech that
when the Agriculture and Fisheries Department proposed to revise the licence fee
to $7.4 per sq m in 1994, that is, well before the fee was proposed to be revised to
$8.8, the Aquaculture Subcommittee of the Advisory Committee on Agriculture
and Fisheries had already been consulted. Some of the members of the Joint
Conference do sit on this Subcommittee. I could only say that "some" of the
Members do sit on it because the membership list of this Joint Conference as
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tabled to the Members today is very long.
Thank you, Mr President.
SECRETARY FOR THE TREASURY (in Cantonese): Earlier on, the
Secretary for Economic Services has explained in detail the background of and
the grounds for the adjustment of this fee. I hope that Members can understand
that the Government's proposal on the fee is a reasonable one. When discussing
the present proposal concerning this licence fee, some Members have expressed
doubts about the Government's cost supervision and I would like to take this
opportunity to respond.
First, I would reiterate that the Government has a healthy system to ensure
that users can obtain services that are cost effective. Every government
department and the policy branch to which it is answerable would regularly
review their work in order to simplify their operation and reduce costs as far as
possible. Generally speaking, the departments and policy branches have to cope
with the increase of demand for their services with the current level of resources
provided to them. If a policy branch wishes to ask for an increase of resources
in order to expand or improve their services, they will have to compete against
similar proposals made by other policy branches in the resource allocation
exercise carried out every year. The purpose of these arrangements is to urge
the departments and policy branches concerned to review their efficiency. At
the same time, the Efficiency Unit under the Chief Secretary's Office would also
give assistance to the departments and policy branches concerned so that the
departments can function and use their resources more efficiently.
Besides, the Director of Audit would also employ the value-for-money
audit method and provide independent information and proposals to the
Legislative Council in relation to the economic effectiveness and efficiency of the
policy branches and the government departments as well as the results they have
achieved. After the Public Accounts Committee has scrutinized the reports
submitted to the Legislative Council by the Director of Audit, it has the power to
summon public officers to testify. The Government attaches a lot of importance
to Members' opinions and would adopt them as far as possible in order to improve
its efficiency and cost effectiveness.
LEGISLATIVE COUNCIL — 15 November 1995
91
We have already submitted a paper on the principles and mechanism of
adjustment of government charges to the Economic Services Panel of the
Legislative Council. In the meeting of the Panel held last Friday, we discussed
the matter with Members. I am very pleased to know that many Members
actually agree with the "user pays" principle of cost recovery. I also understand
why Members are concerned about the Government's supervision of the costs of
its services. I hope that the measures to monitor cost effectiveness that I have
mentioned just now can allay Members' worries in this respect.
The
Government will certainly not let up on its efforts in this regard.
I would again call on Members to oppose this motion.
Question on the motion put and agreed to.
INTERPRETATION AND GENERAL CLAUSES ORDINANCE
MR EDWARD HO to move the following motion:
"That in relation to the Building (Administration) (Amendment) (No. 3)
Regulation 1995, published as Legal Notice No. 466 of 1995 and laid on
the table of the Legislative Council on 25 October 1995, the period referred
to in section 34(2) of the Interpretation and General Clauses Ordinance for
amending subsidiary legislation be extended under section 34(4) of that
Ordinance until 29 November 1995."
MR EDWARD HO: Mr President, I move the motion standing in my name on
the Order Paper.
The Building (Administration) (Amendment) (No. 3) Regulation 1995
seeks to increase the fees for the inclusion, retention or restoration of names in
the Authorized Persons' Register, the Structural Engineers' Register, the
Contractors' Register or the Register of Ventilation Contractors by about 9%.
The Subcommittee formed to study this Regulation and the Marine Fish
Culture (Amendment) Regulation 1995 has identified some issues of concern, in
particular, the total costs incurred by the Administration in relation to such
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registrations. To allow time for the Subcommittee to consider further
information from the Administration on the issues identified, it is necessary to
extend the time allowed for making amendment to the subsidiary legislation until
29 November 1995.
Mr President, I beg to move.
Question on the motion proposed, put and agreed to.
INTERPRETATION AND GENERAL CLAUSES ORDINANCE
MR EDWARD HO to move the following motion:
"That the Building (Administration) (Amendment) (No. 3) Regulation
1995, published as Legal Notice No. 466 of 1995 and laid on the table of
the Legislative Council on 25 October 1995, be amended in section 1 by
repealing "23 November 1995" and substituting "1 December 1995"."
MR EDWARD HO: Mr President, I move the motion standing in my name on
the Order Paper. The motion seeks to extend the commencement date of the
Building (Administration) (Amendment) (No. 3) Regulation 1995 until 1
December 1995.
Under section 1 of the said Regulation, the fee increase will come into
operation on 23 November 1995. As we have earlier extended the period for
amending the subsidiary legislation until 29 November 1995, the fee increase will
take place before this Council decides whether to amend the Regulation or not.
To avoid an anomaly that the Regulation will become effective during the
extension period, and to allow sufficient time for any amending resolution to be
published in the Gazette, it is necessary to defer the commencement date of the
Regulation to 1 December 1995.
Mr President, I beg to move.
Question on the motion proposed, put and agreed to.
LEGISLATIVE COUNCIL — 15 November 1995
93
PRESIDENT: I have accepted the recommendations of the House Committee as
to the time limits on speeches for the motion debates and Members were
informed by circular on 13 November. The movers of the motions will have 15
minutes for their speeches including their replies and another five minutes to
speak on the proposed amendments. Other Members, including the movers of
the amendments, will have seven minutes for their speeches. Under Standing
Order 27A, I am required to direct any Member speaking in excess of the
specified time to discontinue his speech.
URBAN RENEWAL POLICY
MR JAMES TO to move the following motion:
"That this Council expresses deep regret at the failure of the Government to
set out in its consultation paper on "Urban Renewal" a comprehensive
policy in resolving the long-standing problems in urban renewal, and
therefore requests the Government to expeditiously formulate a
comprehensive policy to speed up the pace of urban renewal and improve
the living standard of people residing in old urban districts, with due
emphasis on tackling the problems relating to the acquisition of properties
by developers and ensuring that residents affected will be rehoused in the
same locality and reasonably compensated."
MR JAMES TO (in Cantonese): Mr President, I move the motion standing in my
name on the Order Paper.
This is the fourth time I have moved a motion on urban renewal in this
Council.
The Democratic Party is extremely discontented with the
Government's failure over the years to put forward a substantive urban renewal
policy and its inability to solve the long-standing problems arising from urban
renewal. Over three years had lapsed before the Government finally issued a
consultation document on urban renewal. Three years ago when I moved that
motion, Members received a sleeping mat when they entered this Council. Two
years ago, I received a floor mop. The local residents gave us a mop to mean
that the Government had always been procrastinating. Today, what I have
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received is a large pile of policy papers on urban renewal. However, what we
can see in this large pile, according to the inner voice of the public, is a set of
"window dressing" papers, lacking substance and going wide of the mark. The
consultation document is devoid of content, failing to propose a directional and
forward-looking policy on overall urban renewal for the future and unable to offer
specific solutions to the core problem of urban renewal, that is, how the private
developers should compensate and rehouse the tenants. The Government only
seeks to elaborate on the problems of urban renewal and stops at that. It then
invites the public to give their opinions. We do not object to the practice of
collecting views, but the Government bears some responsibilities on the problem
of urban renewal and it should offer solutions.
Let us, in the first place, consider the objectives of urban renewal. The
Government has all along been focusing on improving the physical environment
and has been targeting at the economic benefits that this will bring. However,
the Government has turned a blind eye to the affected residents' right of
residence, their right to rehousing and the tenants' right to rent and live. In the
eyes of the Government, urban renewal is simply "demolishing the old
community and erecting new buildings". The developers reap the profits and the
Government is glorified for "beautifying" the environment. The ones who suffer
and make sacrifices are the low-salaried tenants and the unit owners who have not
been adequately rehoused and are forced to move away from the original
community. The prevailing so-called urban renewal policy relies only on
market mechanism so that the developers may erect new buildings, thereby
providing more capital for commercial and industrial development. This is not a
"people-oriented" urban renewal policy.
The Democratic Party finds it difficult to agree to the Government's
concept of urban renewal. We believe we should focus on the benefits of the
whole community when launching any urban renewal programme, that is, we
should improve community environment and upgrade the residential quality of
the people. When such programme is launched, the rights of residence and of
property of the owners must be respected and protected so as to, as far as
possible, ensure that their original living environment, community network and
neighbourhood relationship can be preserved. For the tenants, their right to rent
and live must be protected so that they will not become homeless, nor will they
have to endure the pressure of high rental.
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95
The difficulties as highlighted by the Government in the Public
Consultation Document on Urban Renewal are the high costs and enormous
administrative difficulties, which have hindered private developers from
launching major redevelopment projects. The Government is also adamant that
it is difficult to rehouse the residents and the tenants, but it does not look into the
problem of what rehousing arrangement the private developers should provide to
the tenants. That was actually the major reason behind the motion I moved in
1992. The Government only suggests in the consultation document that the
statutory compensation to be offered to the tenants of smaller units should be
raised and that land should be allocated to the Land Development Corporation
(LDC) at one-third of the premium in order to facilitate rehousing. Does the
Government mean to say that this can solve the problem of rehousing?
In fact, most of the urban renewal projects are taken up by private
developers. On commercial grounds and for the purpose of reaping windfall
profits they often, displace the original residents from the old community. The
lives of the elderly residing alone and the singletons are even more desolate
because they often have to move away from their original districts or may be even
rendered homeless. With the meagre amount of compensation in hand, the
tenants could only afford to rent a place for about two to three months in view of
the high rental level prevailing in the market. They will then have to move to
another building and be forced to move away for another time or they may be
forced to become street sleepers. Are these "public interests" or the "economic
benefits" of the private developers? I am sure everyone can tell. If urban
renewal is reduced to a tool for the developers to reap commercial benefits
instead of a principle for improving community environment and ensuring that all
residents can share the fruit of redevelopment and upgrade their living conditions,
"urban renewal" will become nothing but an euphemistic term for "demolishing
old buildings, erecting new buildings and benefiting the developers".
We should not just satisfy ourselves with erecting new buildings, nor
should we brush aside the residents' and the tenants' right to rehousing. We
think that the rehousing policy must set its target at rehousing the residents in the
same locality and respecting the private property ownership of the owners. At
present, the tenants in the old districts are often the victims of "urban renewal".
The amounts of compensation offered to tenants in urban renewal projects
undertaken by the Government, the LDC, the Hong Kong Housing Society (HS)
and private developers differ in great magnitude. The compensation offered by
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private developers is only enough for several months' rental and after that, the
tenants are left to themselves. Their fate therefore is determined by which
redevelopment agency undertakes the project. Such rehousing policy is
tantamount to determining the fate of the tenants by tossing a coin. It is
ridiculous. We suggest that the redevelopment compensation be significantly
raised from the current level of 1.7 times the rateable value of the premises to five
times the rateable value, for the purpose of mitigating the difficulties that the
tenants face during the transition period of moving from one unit to another and
at the same time providing some assistance to those tenants who have to live in
premises at higher rentals. At present, when the LDC undertakes a renewal
project, the compensation offered to the tenants is generally set at five times the
rateable value and that provides some sort of protection for the tenants' right to
rent and live. That should help them to tide over some difficulties. We believe
the private developers should bear the responsibility of rehousing the tenants, but
the Government is silent on this point in the consultation document, trying to
evade the biggest difficulty. The West Kowloon Development Statement
published by the Planning Department also mentions that when private
enterprises undertake renewal projects, they have to provide affordable rehousing
arrangement in the same locality for the residents of West Kowloon. It is also
mentioned in the Statement that land has been identified in the district to meet the
need of rehousing the residents of West Kowloon in the same locality. In other
words, in the Development Plan of West Kowloon, the Government, or at least
the Planning Department, recognizes the importance of in situ rehousing and
providing rehousing for residents at an affordable level. To ensure that the
rehousing programme is in line with public interests, we suggest that
redevelopment agencies submit rehousing plans to the Government at the time
when they submit redevelopment plans. The Government should assess each
and every rehousing plan under open and concrete guidelines. One of the
principles should be that the conditions of the rehousing units shall not be worse
than the conditions of the units the tenants currently are residing in.
On the strategy of redevelopment, the HS and the LDC should enjoy
priority, but at the same time, the support for and the supervision over them must
be strengthened. The Government should allocate more land to the LDC and the
HS to rehouse the affected residents and should supervise the way in which their
profits are used. It should be provided that the LDC and the HS should use the
profits derived from redevelopment on redevelopment. Therefore, we welcome
the idea that the Government grants land to the LDC at one-third of the premium
LEGISLATIVE COUNCIL — 15 November 1995
97
for the purpose of rehousing the residents affected by redevelopment projects
undertaken by the LDC alone. We also welcome the arrangement that tenants
affected by the LDC's redevelopment projects be rehoused through the HS.
The Government suggests in the consultation document that "Where a
developer has a scheme which offers significant planning gains but is unable to
acquire all of the properties needed to implement it, he should be able to approach
the LDC with a view to taking the project forward as a joint venture." However,
the Government does not define the term "significant planning gains", nor has it
specified the responsibility of the developers on compensation and rehousing
when developers approach the LDC and when the Crown Lands Resumption
Ordinance is to be invoked. This provides no protection for the residents' rights
of residence and of rehousing.
In the past, some people boldly suggested that the Government should
assist private developers to resume land for the purpose of redevelopment by
invoking the Crown Lands Resumption Ordinance. The Democratic Party
believes that this would be seen as using the powers of the Government to serve
the benefits of private enterprises. Therefore, we object to this proposal in
principle, except for the case where non-price factors, such as unclear ownership
status or failure to get in touch with the owners, are the factors behind the
developers' inability to procure the properties.
When resuming property, the developers usually would encounter the
problem that the owners do not accept the procuring arrangement or that the
ownership of the property is problem-plagued, thereby hindering the
redevelopment plans from making headway. In an extreme case, although the
developers have set aside some of the redevelopment profits for the owners, a few
owners would still ask for an extremely unreasonable price, preventing the
redevelopment plans from moving forward. Public interests are therefore
jeopardized. As far as I know, there was a case in which an owner operating in a
corporate capacity asked for $50 million for a flat of 600 square feet. Although
such cases are rare, it is sufficient to adversely affect the pace of redevelopment.
The Democratic Party believes that the Government has the responsibility
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to expedite the pace of urban renewal. In particular, at the time when market
mechanism can no longer effectively solve the problem, the Government should
introduce a problem-solving mechanism. Meanwhile, the Government must
protect the interests of the unit owners. To solve this problem, the Democratic
Party has come up with an enterprising proposal. We believe that the
Government may amend the laws so that when the developers succeed in
procuring a significant majority of ownership but fail to reach an agreement with
the remaining owners, they may apply for a court order to put the ownership and
development right of the entire building on public auction. We believe this
mechanism can take care of the overall benefits of the community and protect all
owners (whether the owner of the building or the unit owners) to ensure that they
will get the highest price in the market and are poised to share the potential
benefits of land redevelopment. The owners may share the auction price
according to the assessed value of the building and according to their
proportionate shares in ownership. This can ensure that all parties get a fair
share of the benefits. When considering the application from developers, the
court shall consider the public interests involved in the redevelopment plans and
decide whether or not the application should be approved. If the Government
still does not take a proactive approach to overcome the difficulties and solve the
problems arising from urban renewal, urban renewal will make no progress in the
days to come.
To put in a nutshell, when launching redevelopment projects, the
Government must attach due importance to the residents' right of residence and
their right to rehousing, as well as the tenants' right to rent and live. It should
not focus only on the economic benefits brought about by urban renewal, but
should commit itself to improving the living conditions of the residents residing
in the old district. In respect of the protection offered to the property right and
the right of residence of the unit owners, we suggest that the proposal of public
auction be adopted to solve the problem of "owners sticking to their old
premises". On rehousing the tenants, we hold that the developers have the
responsibility to rehouse the tenants in the same locality. Specifically, we
suggest the establishment of a fund to solve the problem of rehousing the tenants
and we agree that more land should be allocated by the Government to the LDC
and to the HS for the purpose of rehousing. Only in so doing may a
redevelopment project take into account both community benefits and other
interests.
LEGISLATIVE COUNCIL — 15 November 1995
99
We cannot agree to the amendment moved by the Honourable Edward HO
because from the viewpoint of the residents, moving to other districts will entail
social, economic and cultural impacts on the original district, for example, they
will be severed from the original community support network and the
neighbourhood relationship. Redeveloping an old district and rehousing the
original residents in separate districts is tantamount to forcing apart an
inter-supportive community that has been built up with flesh and blood. It is
already not an easy thing for youngsters to attune themselves to a totally new
environment. Therefore, it would be even more difficult for the elderly to adjust
themselves if they lose their old neighbours, good friends and the support
network in one go. In view of this, we hold that for the residents to be
"rehoused according to the principle of equity as applied to all" simply means that
they should be "rehoused in the same locality".
In addition, we believe that if residents cannot be rehoused in the same
locality, then the overall benefits so created are just derived through sacrificing
the minority's interests. This is something not permitted in a democratic society.
Mr President, with these remarks, I so move.
Question on the motion proposed.
PRESIDENT: Miss Christine LOH and Mr Edward HO have given notice to
move separate amendments to this motion.
Since then, Miss LOH advised, shortly before the sitting, that the
amendment to the motion was drafted originally in English and therefore the
English version of the amendment reflects accurately what she intended to say in
the amendment. However, the Chinese version of the amendment does not
represent truly her intention. She therefore would like to change the terms of the
Chinese version of the amendment.
Under Standing Order 22(1)A , a notice of amendment to a motion shall be
in English if the motion is in English and shall be in Chinese if the motion is in
Chinese. As Mr James TO's motion was submitted in Chinese, the Chinese
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version of Miss LOH's amendment should therefore be regarded as the original
version. Therefore, Miss LOH's request for change to the terms of the Chinese
version of the amendment is not merely a request to change the translation of the
amendment, but amounts to a change of the terms of the amendment. As Miss
LOH's request is to enable the Chinese version of her amendment to tally with the
English version and as no new matter will be introduced by the change, I have
decided to give approval to Miss LOH to change the terms of the Chinese version
of her amendment to Mr TO's motion. The old version and the revised version
of Miss LOH's amendment have been tabled for Members' perusal.
As Members were informed by circular on 10 November, under Standing
Order 25(4) I shall ask Miss Christine LOH to speak first, to be followed by Mr
Edward HO; but no amendments are to be moved at this stage. Members may
therefore debate the main motion as well as the two amendments listed on the
Order Paper.
MISS CHRISTINE LOH: Mr President, I would like to thank you first of all for
allowing the indulgence to allow me to make the amendment. I would also like
to thank the staff of your office for being very helpful, and I would also, of
course, like to thank Mr TO and Mr HO for their understanding. I hope I will
not be causing too much inconvenience to other Members of the Council who had
perhaps looked at the Chinese translation earlier.
Having said that, this is the third time that this Council is debating urban
renewal in the last two years. Each time we implored the Administration to
formulate a comprehensive urban renewal policy, but each time we are
disappointed with the response. I am proposing an amendment to the
Honourable James TO's motion in order to set out more specifically the changes
necessary to speed up urban renewal. If we continue to be unspecific, the
Administration will remain unspecific ─ no help to anyone. My amendment
aims to propose a policy direction that is fairer, more open and still expeditious.
The Government's consultation paper states that urban renewal is plagued
by two difficulties. The first is consolidating property ownership to allow for
redevelopment. The second is the need to compensate residents and businesses
affected by redevelopment. These are, of course, competing interests. Urban
LEGISLATIVE COUNCIL — 15 November 1995
101
renewal is a resource-intensive and time-consuming process. Therefore we have
to be careful not to water down the incentive to the private sector. Thus, on the
one hand, in order to prevent an indefinite delay caused by the unreasonable
demands of perhaps a single owner, we need to increase the powers of resumption
to speed up the process of urban renewal.
Let me first make clear what I mean by increased powers of land
resumption. Mr James TO has led the debate on this issue with the idea of
forced auction adapted from company law which compels minority shareholders
to sell at the highest market price. The Government proposes to allow the Land
Development Corporation to team up with private developers to force minority
shareholders to sell. These ideas are not dissimilar and deserve further
consideration. The first part of my amendment is simply an endorsement of this
principle to speed up urban renewal. I am not suggesting to increase the powers
of the Executive Council and I hope this is made clear to Mr James TO.
But on the other hand, we cannot belittle the interests of the tenants. Mr
James TO's motion rightly highlights the fears of people affected by urban
renewal. For them, it is a bitter experience made worse by a system that uproots
them and yet shuts them out of the decisions that disrupt their lives. Anyone
who has visited areas scheduled for urban renewal knows that those who will be
kicked out are the most vulnerable in society. They include the elderly, single
parents and struggling families with young children. The crumbling, low-rise
buildings provide the only housing option for those who cannot get into Hong
Kong's over-burdened public housing system. Tenants are likely to be paying
rents that range from $500 to $2,000 per month. Legal compensation is a mere
1.7 times the rateable value. Almost always, this amount is nowhere near
enough to secure alternative space and I think this is unfair.
The goal of urban renewal must be to use the redevelopment value of land
to fund comprehensive urban upgrading. This should include better housing for
those affected. My amendment calls for an increase to the minimum level of
compensation paid to tenants. The Government's paper proposes a ceiling on
compensation payments. What is needed, Mr President, is a floor. Land is a
community asset. Those who are uprooted by redevelopment deserve to be able
to adequately resettle themselves. The Land Development Corporation pays at
least five times the rateable value, so why should it be different for private
developers? Why should there be a double standard?
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I want to make a further point about the current planning process. The
Town Planning Board is composed of appointed members. It has the power to
decide all building applications and rezoning for redevelopment, and yet the
entire decision-making process is shut off from the public. The Board meets in
secret.
Its minutes and agenda are mostly confidential.
All building
applications are withheld from the public, even after approval. Citizens can file
written objections to rezoning decisions but these are virtually always overruled
by the Executive Council and there is no right of appeal. It is, therefore,
impossible for the public to learn what deals are struck between the Government,
the Town Planning Board, the Land Development Corporation and private
developers. It is impossible to learn what other financing options were available
or profits granted in rezoning and redevelopment. The lack of accountability of
the system poses a danger that our community resources may be unfairly traded
away in secret.
That is why my amendment also calls for a more open and accountable
planning system. Furthermore, the Town Planning Board should have open
meetings except in rare and well-defined circumstances. The public must have a
statutory right to planning information, to be consulted at the initial stages of
planning and to appeal decisions to an independent tribunal. It must be
recognized that a more open planning system checks the priorities of
decision-makers against the concerns of those affected and invariably brings full
assessment of the impact, alternatives and uncertainties of development projects.
Mr President, the changes proposed in my amendment are modest and I
believe fair. They recognize that urban renewal requires an accountable
planning system to balance the competing interests mentioned above. I urge this
Council to support my amendment.
MR EDWARD HO (in Cantonese): Mr President, the resumption of land
necessitated by urban renewal has forced people to give up their private property
rights. Domestic tenants and occupants of commercial premises are forced to
leave their familiar locality. These are very drastic actions and the Government
should be very careful in dealing with them. These actions should be carried out
LEGISLATIVE COUNCIL — 15 November 1995
103
in the interests of the public, consideration has to be given to the pressing needs
of the people and reasonable compensation has to be offered to those affected.
Although I support the spirit of the motion moved by the Honourable
James TO, resettlement in the same locality may not be practicable and I would
therefore propose an amendment. I would like to emphasize that I am not ruling
out the arrangement of resettlement in the same locality. Rehousing those
affected in the same urban districts is undoubtedly a more preferable arrangement
because it will avoid public anxiety. However, the question we have to consider
is whether we should stop carrying out the Urban Renewal Scheme just because
resettlement in the same locality cannot be achieved.
At present, the areas which need urban renewal most are often densely
populated and their hygiene conditions are poor. It is most difficult to carry out
resettlement in the same locality in these areas. Therefore, we have to adopt the
most feasible method in the public interest so that the Urban Renewal Scheme
can be carried out smoothly. My colleague, the Honourable Mrs Selina CHOW,
will put forward a fair and reasonable proposal in connection with the question of
resettlement.
I oppose the amendment proposed by the Honourable Miss Christine LOH.
Miss LOH asks for an increase in transparency of the Town Planning Board
(TPB), but in fact, the minutes of the TPB are made public. However, I think
that the public should not be allowed to sit in on the meetings of the TPB because
questions like land use and restrictions on building density will often be discussed
in the meetings. These are very sensitive issues which will greatly affect the
price of private property. If Miss Christine LOH's amendment is carried, my
colleagues from the Liberal Party and I will have no choice but to oppose Mr
James TO's motion as amended.
Besides, I would like to say that urban redevelopment is not the only way
to renew the urban ares. Many countries renew their old districts by improving
the conditions of the buildings and maintaining premises which have cultural and
historical value. This method will not only avoid moving a large number of
residents of the locality away from their community, it will also keep places of
cultural and historical interests intact. These policies would certainly have to be
implemented with mandatory measures and public resources may also be
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involved to give people monetary compensation or subsidies.
At present, many buildings in Hong Kong are awaiting refurbishment or
renewal not because of their age, but because of the lack of suitable repair and
maintenance. The Government should consider seriously whether legislation
should be enacted to impose a duty on owners to carry out suitable repair to
maintain the structure and appearance of buildings.
Development which proceeds according to proper procedures and with
high efficiency would be most beneficial to all concerned. The amount of
compensation payable to owners and tenants affected usually constitutes a major
problem. Since they are officially forced to leave, I think the Government
should be benevolent in this respect and follow the principle of increasing the
amount of compensation as far as it is reasonable.
Another controversial issue is whether the small owners can share the
profits arising from redevelopment and, if so, how much. I think it is
impracticable for the small owners to participate in the redevelopment projects
which may even bring considerable risks to them. However, I would put
forward a practicable proposal, namely, when the profits arising from land
resumption or redevelopment projects by the Government exceed a certain extent
or amount, the small owners can share part of the profits. That will avoid
criticisms such as collusion between the Government and businessmen and so on.
Mr President, in a debate speech which lasts less than seven minutes, one
cannot really discuss the very complicated issue of urban renewal. It is even
more difficult to discuss this consultative paper concerning urban renewal within
such a limit of time. This "long-awaited" consultative paper, as Mr James TO
put it, should contain a list of specific proposals so that the public can give their
comments after they have referred to it. However, what this consultative paper
has listed are the "ifs" and "buts". How then can the public make any specific
suggestions? This consultative paper shows that the Government's thinking on
the question of urban renewal is fragmented. Apparently, there is a need for the
Government to set up the Urban Renewal Board which will compose of
representatives from various government departments, professional bodies and
private organizations concerned to formulate a comprehensive policy and to set
out a clear guideline concerning urban renewal.
LEGISLATIVE COUNCIL — 15 November 1995
105
Mr President, with these remarks, I hope that Members will support my
amendment under the circumstance that it is in no way contradictory to Mr James
TO's original motion.
DR HUANG CHEN-YA (in Cantonese): Mr President, "urban renewal" is not
merely a matter of "policy" but also a matter of "implementation". Therefore, I
would like to talk about the aspect of implementation during this motion debate.
Since the Hong Kong Government has to entrust others to do the work, it
usually appears to be fairly weak during the "implementation" of the Renewal
Scheme. Part of the Renewal Scheme, from delimitation of the comprehensive
redevelopment areas to demolition of the buildings, is always delayed. A typical
example is the comprehensive redevelopment project relating to the five streets in
Western District of Hong Kong Island.
This example is worth mentioning. It is because the focus of the
Honourable James TO is on private participation in the Urban Renewal Scheme,
while I will talk about the problems exposed in the course of public organizations'
involvement in the Urban Renewal Scheme. Although the Government marked
the five streets in Western District as the comprehensive redevelopment area as
early as 1988, while the Town Planning Board also approved the implementation
of the Renewal Scheme by the Hong Kong Housing Society (HS) in 1992, no
work has ever been done to date. Besides, not only is the implementation date
unknown, but the landlords and the tenants have also not yet entered into
negotiation with regard to the issues of compensation and rehousing. Since the
HS and the Hong Kong Government are still attempting to lay the financial
responsibility at the door of each other, the residents become the victims as a
consequence.
Most of the buildings in the comprehensive redevelopment areas are very
old. Mr President, the age of these old buildings is similar to yours and mine.
During the rainy season this year, we carried out a door-to-door inspection of the
five streets. We found that the ceilings of 70% of the flats had concrete spalling
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problem, half of the buildings had their steel rods exposed to the air, and rain
water seepage almost happened to every flat. Just like the residents, I would
think that the original intention of comprehensive redevelopment is to improve
the living environment, but the result is just the opposite.
Last week, I paid a site visit to the area again. To my surprise, I found a
tree growing inside a building. In fact, the many residents should not have been
living inside the buildings. There is a family who have to sleep under the bunk
bed owing to incessant spalling from the ceiling. Why have such situations
happened? Obviously, it is because the tenants cannot afford to move away
from these low rental buildings, while the landlords are not willing to refurbish
these buildings. The landlords are not interested in refurbishing the buildings
because they think that the buildings will be demolished at any time and yet they
do not know how much the compensation will be. Besides, since these
buildings are within the redevelopment area where the Renewal Scheme will be
implemented by the HS, although the HS does not acquire the property from the
landlords, the landlords cannot sell the old buildings to other developers. Such
being the case, everybody can only keep on waiting.
Here, I would like to urge the Government again that while implementing
urban redevelopment, it cannot only emphasize the regulatory policy but should
also consider the policy on implementation. Apart from working out the
regulatory policy, it also has to complete its duty of monitoring the organization
concerned to make sure that redevelopment is being done on time, so as not to
repeat the example of the redevelopment project relating to the five streets in
Western District which is being procrastinated endlessly. It is particularly
obvious that at present there is no intention to get on with the project. Neither
the HS nor the government department concerned is willing to meet the residents.
Even when the Legislative Members' Offices request to discuss the case with
them, they seem unwilling to hold meetings again. This kind of attitude is
extremely abominable. We can thus see that not only do various kinds of flaws
and hitches occur during the acquisition of property by private developers for
urban renewal purpose, but projects undertaken by the Government or public
bodies will also have different kinds of adverse effects. Hence, I hope that the
Government can change this approach.
LEGISLATIVE COUNCIL — 15 November 1995
107
Finally, I would like to remind the Government not to forget the urban
comprehensive redevelopment projects in hand which are being delayed,
including the projects of the five streets in Western District and the seven streets
in Tsuen Wan District. This is to prevent any redevelopment projects "falling
flat" halfway through or to prevent giving people the impression that this
Government is also "falling flat" halfway through.
With these remarks, I support the motion of Mr James TO.
MISS CHAN YUEN-HAN (in Cantonese): Mr President, I have observed that in
the past numerous problems, including rehousing and compensation problems,
would emerge during the acquisition of properties in old urban districts whether
the acquisition be undertaken by some private developers, the Land Development
Corporation (LDC) or the Hong Kong Housing Society (HS), and that these
problems were always caused by the improper prearrangement under the
Government's policies concerned. I am, therefore, totally in support of the
Honourable James TO’s opinions in that respect.
Besides, I would like to point out another problem. Apart from property
acquisition by the LDC and the HS, when some private companies are also
involved in the urban renewal projects, quite a number of illegal means will
usually be adopted. In order to acquire the properties, these private developers
will resort to some illegal measures, including threatening the residents and even
using some triad tactics. This will cause a lot of troubles to the residents
concerned. When these situations occurred in the past, we did, from time to
time, lodge complaints with the Government. But unfortunately, the present
consultation paper fails to mention any concrete measures to tackle these
problems. Therefore, I think that the Government should work out some
strategies in respect of the overall renewal programme, with due emphasis on
tackling the illegal problems which used to emerge when private participation
was also involved. I very much hope that the Government can pay more
attention to the problems in that regard.
Thank you, Mr President.
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MR LEUNG YIU-CHUNG (in Cantonese): Mr President, numerous residents
residing in the old areas have to bear the brunt of urban renewal. The elderly
singletons, new immigrants and those fringe-group families who do not qualify
for public housing are being troubled the most. Many Members of this Council
have criticized and resented the past practice of the Government in the area of
urban renewal because government policy in this area cannot address the genuine
needs of the people. As a result, many people might ultimately be forced to
sleep in the streets. I believe that the plight of the hundreds of thousands of
elderly persons or residents residing in the old areas would worsen.
Today, I would not raise too many specific proposals because many of my
colleagues will be voicing their opinions. I just want to make use of this time
slot to reflect the sentiment of those residents who have been affected by the
redevelopment of the old areas, in particular the elderly singletons. They wrote
an "Elegy on Urban Renewal" to spell out their sorrow. I would like to take this
opportunity to read that elegy out. I hope that Members of this Council and
government officials will share that sentiment. This is how it goes:
"With urban renewal come new flats,
Leaving poor elderly persons just like that;
Cash compensation what of it,
The elderly's need is a housing unit.
Building Hong Kong I shared the toil,
Relocating the elderly to me a ploy;
Far far I have to go for no conceivable goal,
Abandon me like junk that is old.
Send me far from my district, that is my end,
Relocate me from my home, woe of woe;
Government and developer joining to reap the gold,
Chase away the elderly, how heartless and cold.
Giving no rehousing, arousing people's hatred,
Causing in people sickness and dizziness;
Tigers devour human, spit out the bone,
Government devours people, no sign is shown."
LEGISLATIVE COUNCIL — 15 November 1995
109
I hope that the Government can show more understanding of the situation
of those elderly persons living in the old areas, so that they can be rehoused as
soon as possible. We, in particular, hope that they can be rehoused in the same
locality.
Thank you, Mr President.
MR FREDERICK FUNG (in Cantonese): Mr President, the consultation
document on urban renewal released by the Government in July can be said to be
the worst paper I have ever seen. That the Government which has an enormous
amount of resources and a vast pool of talent should have produced such a
slapdash 12-page document to pass for an assignment duly completed at the
request of Members is incredible! Not only is the document lacking in
substance, but also in embellishment. As the paper has offered no statistics, the
public has no idea what areas or number of people will be involved in the future
renewal projects. There is also no specific mention of what responsibilities the
Government should take up, and this shows that the Government is in a "shirking
responsibility" state of mind.
Renewal is an important social project. It involves the relocation of
environment, regional economy and community culture. In some countries, and
particularly a place like Hong Kong where there are communities which have
their own political culture, renewal will even affect the geo-political power of
some political parties. If the Government is bent on being partial to the interests
of private developers without having laid down a comprehensive renewal policy
and codes for developers to comply with and without having struck a balance
between the interests of the Government, the developers and the public, then what
we will find at the end of the day will be this: Although the new communities
after renewal look better than what they were, they are probably communities put
together with money and are merely places for overseas visitors to roam about
and where lower class people are nowhere to be found. Those who cannot
afford to live in the new communities will be squeezed out by market forces and
constrained to live in some remote places of the urban area where slums will
form, a common sight in western countries.
Paragraph 13 of the document clearly states: "The only way to ensure site
assembly is to resume properties which cannot be acquired." And in paragraph
16, a proposal that worries the residents is put forward: "Where a developer has a
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scheme which offers significant planning gains but is unable to acquire all the
properties needed to implement it, he should be able to approach the LDC with a
view to taking the project forward on a joint venture." This implies that if
developers are unable to acquire properties, once they join forces with the Land
Development Corporation (LDC) to share the profits, they can apply the Crown
Lands Resumption Ordinance (CLRO) to "get their way" with the property
owners and tenants.
The application of the CLRO has all along been a controversial issue.
Now, the document has gone even so far as to depict vividly the scenario of
"collusion between government officials and businessmen" without any
reservation. Blinded by greed, the Government has even shown no respect for
people's property rights. The document has made no mention of the length of
time required in land acquisition before the Ordinance can be applied, and this
could easily lead to the adverse consequence of having the Ordinance abused, the
prospect of which frightens the ordinary citizens day and night.
As to the concept of a linked site, it is intended that the LDC may subsidize
one site with the profits of another site in order that the operation will not be a
money-losing deal. Of course, for private developers, profit-making is their
prime target, and if renewal projects cannot generate profits, it is understandable
that they will not carry out any renewal project. But if the Government also has
profit-making as its target, then whenever there is no ideal linked site, it would
imply, would it not, that some areas will be accorded very low priority so that
some old areas will be left to rot, which will eventually become a concentration
camp for the poor? The Government will have to consider this very carefully.
There is another nettle to grasp as regards renewal and that is rehousing in
the same locality. However, from the point of view of justice, unless residents
themselves request that they be rehoused in some other locality, their forced
removal for various reasons will import a sense of unfairness, unwillingness and
wrongful treatment. Moreover, the existing level of compensation prescribed by
the law for the households involved is really too low and a somewhat higher level
of compensation is not being offered for removal, which shows even further that
residents are being forced out by developers willy-nilly. If the Government does
not work out a more reasonable compensation package, its failure to do so will
smack of connivance at developers' effort to drive out the residents.
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111
I am making the following two recommendations and I hope that affected
residents will be rehoused in the same locality. In fact, areas requiring renewal
and which are below the flight path, including Hung Hom, Kowloon City, Sham
Shui Po and To Kwa Wan, are areas where rehousing in the same locality will be
highly feasible. In these areas, the buildings do not have too many storeys and
the number of households is not large, so that the gains as a result of renewal will
be high. This is because for buildings of three or four storeys to be demolished,
new buildings of 30 to 40 storeys will be put up after the renewal. In such
circumstances, guidelines should be set down in the renewal policy to the effect
that whenever developers are unable to rehouse affected tenants, they are required
to sell a certain number of units to the Housing Society (HS) at preferential
prices, and the HS will in turn rent out these units to affected tenants with these
units being managed by the HS. Such an arrangement will have several
advantages: (1) It will solve the developers' nightmare of having to rehouse
residents; (2) it will solve the problem of having to rehouse people in the same
locality; (3) residents will be able to rent the units at prices lower than the market
rate. Another way would be, in my opinion, for the Government to allocate to
developers more land in areas below the flight path at preferential prices, and
developers will rehouse residents in the same locality in return for that.
As for the original motion and the amendments, the Hong Kong
Association for Democracy and People's Livelihood (ADPL), having weighed up
the matter, will not support in the first place the amendment motion put forth by
the Honourable Edward HO because Mr HO has deleted the phrase "rehoused in
the same locality". Mr HO proposes to add the phrase "rehoused according to
the principle of equity as applied to all", and I think this is really a striking phrase.
The way the principle of equity is applied and interpreted very often depends on
how policy-makers understand it. In our opinion, urban renewal not only seeks
to renew buildings; what is more, it seeks to improve the residents' living
environment in their original locality. Therefore, we cannot agree having the
basic principle of "rehousing in the same locality" left out.
As to the amendment motion put forth by the Honourable Miss Christine
LOH, having considered it carefully, the ADPL finds that it cannot be supported
as it would enhance the land resumption power. And as I have said, it is no
different from investing the Government, the LDC or certain developers with a
discretionary power. Since I have expressed my worries, I shall not repeat them
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any more. As to the other views expressed by Miss LOH, I find them
acceptable. Therefore I shall abstain from voting on her amendment.
MRS SELINA CHOW (in Cantonese): Mr President, two weeks later, it will be
six months since the last motion debate on urban renewal was held. At the time
of the debate, a consensus was reached to the effect that we were all dissatified
with the Government's lack of determination and courage in its implementation of
urban renewal.
I remember that the only superficial divergence of views in the last motion
debate is that I put forth an amendment to urge for rehousing in the same locality
as far as possible. The Honourable James TO said that he could not support the
amendment. But in delivering his concluding remarks, he said that he was
willing to arrive at a compromise. He said, I quote, "Frankly, I hope I can
persuade other Members. I am in fact trying to force the Government to speed
up its work and to rehouse the affected people in the same district. If the
Government cannot achieve this objective, it should explain it to us and try to
convince us. By the time when the percentage of same-district rehousing is as
high as 90% or 80%, a compromise, to a certain extent, will have been reached."
In fact, his stance is not much different from ours. But his motion was
purely based on strategic consideration and did not allow for flexibility in the
wording of his motion. We think this is not a pragmatic approach.
We all agree that the prime objective of urban renewal is to improve the
poor environmental conditions which are the result of high population density in
the old areas. Some old areas, such as Tai Kok Tsui, have made the best use of
plot ratio, and any urban redevelopment will bring about a reduction of
population density. For instance, 20 to 30 residents are now living in a
500-square-foot flat. A flat with the same area will probably accommodate 5 to
10 people after redevelopment. Can all the displaced people be rehoused in the
same district? Can they find accommodation in the same locality? This is a
question of reality which should not be glossed over lightly.
Perhaps, Mr James TO is waiting for the Government's counter-proposal to
his proposal of same-district rehousing in his motion today. However, we do
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113
not want to send out a wrong message to the people because, in so doing, we will
be raising the expectation of the people who will suffer a bitter disappointment
which will in turn lead to social unrest.
The Honourable Edward HO is seeking to amend the motion by adding the
words "fairly compensated, and rehoused according to the principle of equity as
applied to all". I hope there will not be any misleading statement like: this
amendment is to sacrifice the interests of the displaced residents. I have to
emphasize that social equity is a macro point of view. Individual interests
should not override the interests of the public. Nor should individuals be
deprived of their interests arbitrarily.
In relation to the rehousing of domestic tenants, I think the Land
Development Corporation (LDC) should not be responsible for rehousing any
more. I suggest that the Housing Authority (HA) should step into the shoes of
the LDC and provide rehousing for the eligible tenants.
The Government should allot to the HA the land which is originally
earmarked for allocation to the LDC for rehousing purpose. The LDC will then
calculate how much one rehousing unit will cost and provide the equivalent
amount in cash to the HA. In other words, the HA will be responsible for
rehousing while the LDC will have to reimburse the HA the cost of rehousing.
For those tenants who are affected by LDC's redevelopment programme, I
think there should be an eligibility test in respect of their rehousing in public
rental housing. Since the rehousing of these people in the public housing estates
will mean years of housing subsidies in the future, the eligibility test can be
formulated in the light of the criteria set for the squatter dwellers and the
applicants on the general waiting list. For instance, they should have been living
in the area subject to renewal before the redevelopment programme is officially
announced; most of the family members have lived in Hong Kong for at least
seven years or were born in Hong Kong; and they do not own any property but
comply with the income limits criteria for public rental housing.
The Housing Society is operating well in regard to redevelopment and
rehousing. We consider that there is no need to change just for the sake of
change. Neither should it take up rehousing work for the LDC.
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It is impractical to require those private developers who have taken up
urban renewal projects to provide rehousing for displaced residents, because the
Government cannot provide them with any extra land to do so. Instead of
making an unrealistic attempt to strive for this, we suggest that the Government
should raise the minimum compensation amount from 1.7 times the current
rateable value to a higher amount by taking into consideration the actual situation.
And that amount should be the minimum compensation for the displaced tenants.
Some would say that it would be unfair to the displaced tenants if they are
required to pass the same eligibility test set for the applicants on the general
waiting list.
I am of the opinion that cash compensation provided by the LDC can be
increased when necessary in order to reflect the loss of right to low rentals
enjoyed by these people and to subsidize their extra financial burden for a certain
period of time in the future.
In regard to rehousing the displaced residents in public rental housing, as
this issue involves the 150 000 families on the waiting list for public rental
housing, it will be unfair to these families and those Temporary Housing Areas
residents if displaced residents can be rehoused immediately regardless of their
eligibility. A balance should be struck between the public's interests and the
interests of the minority.
On the other hand, eligible displaced residents should be given special
treatment. So I would propose that those who are aged 50 or above or those
who have special needs should be rehoused immediately in the same locality as
far as possible, subject to resources being available. There is a greater need for
the singletons who are aged 60 or above to be rehoused in the same locality
because this is our special commitment to ensure that these elderly people will
continue to live and go about their daily activities the way they have been doing.
Those displaced tenants who comply with the income limits criteria for
public rental housing should be presumed to have been on the HA's waiting list
LEGISLATIVE COUNCIL — 15 November 1995
115
for six months. Even though they are new arrivals and not eligible for public
rental housing for the time being, they should be allowed to reserve these six
months' eligibility. When they become eligible, they are presumed to have been
on the waiting list for six months. As far as I know, 45% of the tenants who
demand rehousing by the LDC are new immigrants. If they obtain immediate
rehousing, will it be fair to all other applicants on the waiting list?
Mr President, there is a lack of orientation and direction in the
Government's consultation paper on redevelopment. It has made short shrift of
executive-led government. In fact, there is much for the Government to do in
this issue which does not pose any political difficulty at all. On the contrary, it
will certainly bring a lot of benefits to the people's livelihood and the community
as a whole.
MR LAU CHIN-CHEK (in Cantonese): Mr President, it can be said that having
a comfortable place to live in is an ideal for the lower class. However, at present
in Hong Kong, this is almost an unattainable ideal for many people.
At present, hundreds of thousands of people are still living in extremely
poor conditions which include squatter huts, temporary housing units, cage
apartments, rooftop structures, pre-war tenement units and so on. These
residents have been hoping to move into public housing units as soon as possible
so that their living conditions can be improved. However, in recent years, the
public housing policy has been inclined towards the market-led approach and the
needs of those on the Waiting List who are now living in private premises have
not been taken care of adequately. Some residents are not even allocated a flat
after they have waited for more than 10 years. In recent years, property prices
have been soaring and the speed of the redevelopment process in the old districts
has been quickened. However, the living conditions of residents of the old
districts have not been improved. Sometimes, their living environment would
even worsen because of redevelopment.
Hung Hom is a typical old district and a lot of old private premises are
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situated in the Wuhu Street area. The problems faced by residents of the old
districts are exemplified by Mrs CHENG's experience. Mrs CHENG has been
living in a tenement in Wuhu Street for more than 10 years. She has applied for
allocation of a public housing unit for many years and has still not succeeded.
In recent years, a property developer wishes to redevelop the building she has
been living in and has expressed an intention to recover possession of the
premises. Although Mrs CHENG is not earning a high salary, she has decided
to apply for a Home Ownership Scheme flat so that she can move earlier.
However, she has only been picked by ballot in the Home Ownership Scheme in
the beginning of this year and she can only occupy the flat in mid-1997.
Unfortunately, pleasant hours fly fast. Mrs CHENG finally has to give up
possession of the unit she has been living in in the middle of this year and Mrs
CHENG has no choice but to move to a unit in another old tenement in the same
street. Not only are the living conditions there poorer, the rent is also higher
than before.
Speaking on the redevelopment of the old area of Wuhu Street, the present
situation of "one street, two systems" very specifically reflects the drawbacks of
the present policy of urban redevelopment. Recovery of possession of the
buildings with odd street numbers in Wuhu Street is now being sought by private
property developers who often only give the affected residents the minimum
amount of compensation stipulated by law which is 1.7 times the rateable value
and there will be no rehousing arrangement for the tenants affected. However,
on the opposite side of the same street, the Land Development Corporation is now
considering acquiring and redeveloping the buildings with even street numbers.
Therefore, the amount of compensation will be five to six times the rateable value
and there will be resettlement in the same locality. The situation of "one street,
two systems" for similar buildings in the same street has arisen because the
Government favours the private developers. That is something which is really
very unreasonable.
I would reiterate that having a reasonable place to live in is a right of the
public.
The Government should provide, by means of legislation, for
resettlement in the same locality and a substantial increase in the amount of
compensation for those who are affected by redevelopment.
Mr President, with these remarks, I support the Honourable James TO's
motion.
LEGISLATIVE COUNCIL — 15 November 1995
117
Thank you.
DR SAMUEL WONG (in Cantonese): Mr President, from 1986 to 1987 I was
appointed a Member of the provisional Managing Board of the Land
Development Corporation (LDC) and from 1990 to 1992, I was a Board Member
of the LDC. All along, I have been very concerned about urban redevelopment
projects. However, I am greatly disappointed by the resources and support that
the Government has provided for urban redevelopment.
The Government has finally completed the review of urban renewal after
spending some three years' time on it and under pressure repeatedly brought to
bear by Members. Having read the consultation paper, I think the Government
is now playing the role of a "fire fighter" which means implementing stopgap
measures to deal with problems and does not have any long-term objective and
overall strategy at all in respect of urban renewal. What is more, the
Government is reluctant to make any commitment in this respect and has shifted
the responsibilities onto the LDC or private developers instead.
As we all know, many old districts in Hong Kong are decaying
continuously. The living environment there is appalling and other than this,
many social problems have also cropped up. Urban redevelopment is indeed a
task which can brook no delay. Regrettably, while the Government, on the one
hand, undertook to attach importance to this issue, on the other hand, the attitude
it has adopted cannot be regarded as positive by any standard. As far as I know,
the LDC has two major redevelopment projects being held up for more than two
years with no progress being made at all because its application for resumption
has yet to be processed by the Government. Even if we put aside the economic
losses caused by the delay, the livelihood of the residents has been seriously
affected and the conditions of premises and the living environment in the
redevelopment districts are also deteriorating. While the Government has set up
the LDC and assigned to it the responsibility to implement urban redevelopment
projects, it has failed to work in concert with the LDC. The Government has
only paid lip service to its commitment to "attach importance to the LDC" and
remained indifferent to the ordeal of the people. This attitude is definitely not
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the attitude that a responsible government should have.
On the other hand, although the Government has made some suggestions
on urban renewal, it has expressly stated in the consultation paper when speaking
of government resources that "the ability of Government to devote the necessary
resources to the public works programme will therefore to some extent dictate the
pace and extent of urban renewal". It is evident that the Government is reluctant
to pledge any commitment in respect of urban redevelopment. It is indeed
questionable that the Government is determined to take vigorous steps to
facilitate urban redevelopment.
All along, the Government has been unwilling to provide additional
resources to assist urban renewal. Even with the establishment of the LDC, the
Government has only provided a stand-by loan to the tune of $100 million to the
LDC. Apart from assisting the establishment of the LDC, this so-called
"capital" is not in the least conducive to the implementation of the urban renewal
scheme. The Government simply "sits idly and reaps others' benefits" by
collecting an enormous amount of premium. It is not totally unfounded to
criticize the Government for being minded to carry out "zero-cost
redevelopment".
I am of the view that the institutions concerned should share the work of
urban redevelopment in order to make good use of the resources. Under this
circumstance, the LDC should make an effort to provide impetus for urban
redevelopment. The Housing Authority, which supplies the most rehousing
units, should be responsible for tackling the rehousing problem that goes with
redevelopment and the cost involved should be borne by the LDC.
The Government stated in the consultation paper that it may consider
allocating land for the construction of premises for rehousing purpose in an effort
to redress the difficulties that the LDC has long faced. While on the surface this
proposal is quite attractive, I dare to ask the Government these questions: Does it
have any timetable for the implementation of the proposals? After the
consultation is completed, how many more years will be required before the
Government can formulate policies for subsequent implementation?
The question of urban renewal is giving cause for increasing concern. I
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119
urge the Government not to give us empty talk any more. It should take actions
in earnest to assist the implementation of urban redevelopment so that not only
residents of old urban areas will be benefited, the environment in Hong Kong will
also be improved as a whole.
Thank you, Mr President.
MR ALBERT CHAN (in Cantonese): Mr President, there is a well-known
saying by the famous German philosopher, Immanuel KANT, that "concept
without percept is empty, percept without concept is blind". Urban renewal in
Hong Kong is both empty and blind because the Government has neither a
comprehensive plan nor a specific objective for it. The Consultative Paper on
Urban Renewal published in July 1995 lacks substance and far-sightedness. If
this is regarded as a consultative exercise in respect of the Government's policy,
then it can be regarded as a preposterous joke.
Urban renewal gives people an impression that old buildings are torn down
and new buildings are put up. The urban renewal which has been taking place
for years in Hong Kong is merely a product of pragmatism. But I must point out
that urban renewal should be a living and continuous process of communal
development and social evolution, just like the processes of birth, ageing, illness
and death of a human being. The existence of a community often has its own
value and needs. When the buildings of a community begin to age and
deteriorate, it does not mean that the community as a whole will be doomed.
What it needs is a chance of rejuvenation. But it is a pity that when our
community is facing the above problems, it will not have such a chance. What it
will get instead is the fate of extermination.
Even though the redevelopment of old buildings in a resilient old district in
Hong Kong will bring huge economic benefits, the original residents in that area
will not get a share. On the contrary, these aged and weak people are forced to
quit and uprooted from the community which they are familiar with. This is a
painful feeling and experience.
Urban renewal in Hong Kong is undertaken under a fine-sounding name of
environmental enhancement of the old areas. But in fact, the Government and
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some big syndicates are making use of their powers given by some unfair
legislation to deprive the residents in the old areas of social and political rights
either by hook or by crook.
Private developers who have taken up
redevelopment projects in the old areas are not required to rehouse the affected
residents. Further, compensation is merely based on 1.7 times the rateable value
of the units. Whenever they encounter any obstruction in land resumption, the
government-subvented Housing Society and the Land Development Corporation
(LDC) can invoke the Crown Lands Resumption Ordinance, which is as powerful
as an imperial sword, to make the residents in the old areas submit.
Nevertheless, the residents will not share any economic benefits generated from
property redevelopment. They are the vulnerable and the victims of urban
renewal!
When talking about urban renewal, we have to mention the LDC, which
has been established for years and criticized by people from all walks of life. It
has been criticized for being an agent to facilitate the collusion between the
officials and the businessmen. It has been called the "last big brother" or the
Khmer Rouge by some academics. The Government established the LDC to
help accelerate urban redevelopment. This was well-intended. However, a lot
of variables appeared during the formation and growing up process of the LDC,
which has eventually become an "alien" over the past seven-odd years. Those
affected residents, commercial tenants, small flat owners, and even those who are
rich and influential, such as the Honourable CHMI Pui-chung, have shown great
dissatisfaction with the LDC, even though it is difficult to find somebody who
will see eye to eye with Mr CHIM. This is an interesting phenomenon, yet it is
tragic.
The LDC was established on 10 December 1987 under the Land
Development Corporation Ordinance (Cap. 15) and commenced operation on 15
January 1988. The principal activities of the Corporation are to improve the
standard of housing and the environment in Hong Kong as well as to achieve
better quality development by undertaking and promoting urban renewal on the
basis of prudent commercial principles. In the Corporation's 1990/1991 Annual
Report, the four key objectives of the Corporation were outlined: (1)
Environmental enhancement; (2) Social enhancement; (3) Optimum use of land;
(4) Better quality development. Its operation over the last seven years can show
that it has maximized its profits from optimum use of land although the profits
have only gone to the pocket of the developers and the LDC. The residents in
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121
the old areas hardly get a share. For the other three objectives, superficial
improvement has been made, yet the residents in the old areas have benefited
from nothing.
Let us look the LDC's financial situation and how it implements its
development projects. The total gross floor area generated from projects under
planning and completed projects is 867 808 sq m. Yet, area for commercial
purpose has taken up 651 952 sq m, representing 75.1% of the total development
area; whereas the number of residential units is only 3 314, providing a total of
172 128 sq m of residential space (19.8% of the total development area). For
those projects under construction, it is surprising to find that there will be only 26
residential units, providing 1 242 sq m of space, which represents 0.5% of the
total project area. This figure is really too trivial to mention.
The objective of setting up the LDC is to help rejuvenate the old areas so
that the residents in the old areas can enjoy enhanced living conditions and catch
up with the modern life. However, the LDC abuses its powers and co-operates
with the private developers. The residents in the old areas are forced to move
away while the history of the old areas is destroyed. The traditions of the old
areas are abandoned and the interests of the residents are sacrificed. Making use
of its privilege and special status in town planning, the LDC put up commercial
buildings on sites of old residential buildings in order to make huge profits. I
would cite an example to show that my criticism is not calculated to please the
audience with claptrap. The site area for the redevelopment project at Queen's
Road Central/Jubilee Street is 8 816 sq m. While the gross floor area of offices
is 118 268 sq m, the gross floor area for residential purpose is zero. This project
alone will generate an income of not less than $8 billion for the LDC.
Mr President, urban renewal is not to destroy the history nor to reform a
soulless community. Neither is it to create a "brave new world". I hope the
LDC and the Government will be awake to realize that urban renewal should be
predicated on the well-being of the people.
Thank you, Mr President.
MR LO SUK-CHING (in Cantonese): Mr President, I have to point out , in
particular, the following.
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(1)
Under the urban renewal scheme, tenants who are not owners of
properties and in particular, the domestic tenants, are most affected.
Tenants of these dilapidated low-cost domestic premises are very
often the lower class or grassroots people. Many of them are on the
Waiting List of public housing and have yet to be allocated a
housing unit.
(2)
These tenants will lose their homes once the old premises that they
reside in are demolished.
Many will be forced to rent
accommodation in private premises and, unfortunately, it is usually
difficult for them to rent a flat at the original rental level. As they
do not hold any title to property, they will only receive a limited
amount of compensation. The compensation they can get is just 1.7
times the rateable value, which is indeed inadequate to cover the
expensive rent that they have to pay in renting accommodation in
other private premises.
(3)
For these reasons, the tenants have fallen victim to urban renewal.
On the contrary, the Land Development Corporation (LDC) is
making a profit in the implementation of urban redevelopment
projects. Such being the case, the LDC or the Government should
give the tenants more reasonable compensation and, in particular,
more resources should be allocated to subsidize the tenants to find a
new home.
(4)
There are three ways to help them find a new home:
(a)
To rehouse the affected tenants as soon as possible in public
housing estates. However, those who are now on the
Waiting List may find this unfair unless the Government
provides, aside from the existing public housing programme,
additional land for the construction of public housing estates
to rehouse them.
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(5)
123
(b)
The Government can provide additional land for the Housing
Society or the LDC to build premises to rehouse the tenants.
The Housing Society can be made responsible for the
management of these premises.
(c)
Given that the disposal of land for the construction of
rehousing units takes time, the LDC may consider acquiring or
renting private premises and then renting them to the affected
tenants at a lower rental level in order to cope with the
pressing need. In setting the rental level, consideration may
be given to two factors:
(1)
The income of tenants and their affordability. The
rental level of public housing units under the Housing
Authority, which is around 8% of the income, may be
considered.
(2)
The original rental that the tenants paid for renting the
old premises can be used as a standard.
With a view to plugging loopholes, the LDC should have the right to
freeze the number of tenants of the premises concerned as soon as it
announces the redevelopment plan in a particular district and upon
the completion of the vetting of the tenants' status. This is to
prevent new tenants purposely moving in the premises to gain an
advantage, hence burdening the LDC to a greater extent with the
rehousing arrangements. If the powers of the LDC can be further
strengthened, it will help speed up the progress of urban renewal.
Thank you, Mr President.
MR TSANG KIN-SHING (in Cantonese): Mr President, this consultation
document of merely 12 pages, produced by the inter-departmental group headed
by the Planning, Environment and Lands Branch after three whole years and with
a tremendous amount of input in terms of government resources and professional
knowledge, is both slapdash and lacking in foresight.
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Not only has this consultation document on urban renewal failed to outline
the blueprint for the future overall urban land use, but it also has neglected to deal
with the various problems as a result of renewing old areas, for example, the
criteria for land resumption, compensation, rehousing and so on. This paper is
hardly convincing.
This consultation document focuses mainly on probing the role played by
the Land Development Corporation (LDC). But it has overlooked the fact that
most of the urban renewal projects are taken up by private developers, and
affected households can only get the compensation prescribed by the law, that is
to say, 1.7 times the current rateable value, and there is no rehousing on offer.
This document has ignored the needs of tenants belonging to the lower classes,
such as elderly people who live alone, cage home tenants and new immigrants.
They are the most helpless group of people who worked their whole life for Hong
Kong. Yet at the end not only are they not able to enjoy the fruits of economic
success, but they also become victims of the urban renewal programme. Both
the LDC and the Government have arranged to rehouse these tenants, but private
developers would not do anything to rehouse them. Government policies are
permitting the existence of such double standards. Is it a practice of
favouritism?
Mr President, the fact that this document focuses on the discussion of the
role played by the LDC in future renewal matters gives residents the false
impression that only the LDC takes part in the renewal of the old areas of Hong
Kong. Actually, in doing so, it has disregarded the disastrous consequences
caused by private developers to tenants. Also, the document has proposed to
allow joint ventures by private developers and the LDC and to speed up land
resumption and the renewal process by resorting to the Crown Lands Resumption
Ordinance. This would in effect be murdering people with a borrowed knife and
a collusion between government officials and businessmen. This has shown that
the Government only looks after the interests of developers but ignores the needs
of the residents.
On the 10th of this month, Mr MAK Chun-fong, Deputy Secretary for
Planning, Environment and Lands, told the press that if it should be made
mandatory that private developers should provide rehousing in the same way the
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125
LDC does, it would only reduce the profit margin of developers and, as a result,
they would not be willing to take part in the old areas renewal programme and the
progress of old areas renewal would be slowed down. I think it is an absolutely
preposterous statement. We must bear in mind that apart from making profits,
businessmen should also have morality and conscience and that they should
cherish their social conscience and bear their own social responsibility. Are we
to let restaurant proprietors discharge sewage into the sea for fear that they cannot
make money if we do not let them? Never! For the same reason, are we to let
developers bully the helpless tenants and drive them onto the streets for fear that
the developers cannot make money if we do not let them? Never!
Mr President, in the final analysis, problems have arisen from the current
urban renewal programme because the Government's renewal policy is oriented in
favour of the Government itself and the businessmen instead of the people. In
order to solve the renewal problem as a whole, the Government will have to work
out an "urban renewal programme with the people as the basic consideration"
which not only takes economic benefits into consideration, but also shows respect
for the needs of the individual and the culture, lifestyle and inter-personal
connections unique to every community. Once these elements are undermined,
urban renewal would only degrade into a term synonymous with the grabbing of
land, profiteering and expoitation of the residents by the consortia and the
Government.
Mr President, I would also like to mention three cases. The first case is
about the intervention by the Government in the process of possession of property
by a private developer. This is a case that I have dealt with, and the location
concerned is in the vicinity of Marsh Road and Lockhart Road. In 1993, a squad
of Special Duties Unit carried out a drill without prior notice to the residents. It
was at a time when the residents were negotiating with the developer on the
question of compensation, and the drill carried out by the squad of course scared
the life out of the residents.
The second case occurred at an old building near Tin Lok Lane. In that
case, the developer sealed the whole building with bamboo scaffolding and nylon
sheets before the residents had all moved out, so that they were unable to have
fresh air in those summer days. And, what was more, the developer even cut the
supply of water and electricity. Such practice not only involved triad activities
interfering with the possession process, the Government also directly played a
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126
part in it.
Of the many cases of old area renewal that I dealt with, there are residents
that I have become familiar with. This is because these are the people who have
moved from one old area to another old area as they are unable to afford renting
new units, the market rents of which are beyond their means.
With these remarks, I support the Honourable James TO' motion.
MR CHAN KAM-LAM (in Cantonese): Mr President,
Government Should Have An Overall Planning First
Urban renewal and its progress in Hong Kong have always been the subject
of criticism. And it has caused disappointment to numerous residents who are
looking forward to environmental improvement through redevelopment. The
crux of the problem is the lack of a macro and overall planning in respect of
urban renewal on the part of the Government. It is necessary to make changes to
this phenomenon.
The Consultative Paper on Urban Renewal was published in July 1995.
The public has been looking forward to a policy put forth by the Government to
solve the difficulties encountered in urban renewal. However, the Government,
having pointed out all the "technical" difficulties, fails to explain a question
which has aroused public concern: How is the Government going to implement
communal improvement in the old areas step by step? And how far will
improvement in old areas go? It seems that the Administration is still at a loss
as to how it should proceed with urban renewal.
In this year's policy commitments, the Secretary for Planning, Environment
and Lands promised at long last that a new team which will focus on formulating
an integrated urban renewal strategy will be established in 1996-97. The
Democratic Alliance for the Betterment of Hong Kong (DAB) hopes that the
Administration will have the team established as soon as possible and delegate to
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127
the team the responsibility of briefing the public on the blueprints of
redevelopment projects.
The Principle of Compensation
Mr President, the Consultative Paper has also discussed different methods
of compensation to encourage the owners and the tenants to surrender their
properties. Yet it fails to propose a clear criteria for compensation. It is our
long-held opinion that the most reasonable and the most effective solution for
compensation is "flat-for-flat" and "shop-for-shop".
Besides, if the residents demand same-district rehousing, the Government
should do its best to finds suitable accommodation in the same district for them,
especially for those who have been living or conducting business for years in the
district concerned.
Clarify the Definition of "Public Use" As Soon As Possible
The Consultative Paper has also emphasized the importance of resumption
powers to the operations of the Land Development Corporation (LDC). It has
also pointed out that "the only way to ensure site assembly is to resume properties
which cannot be acquired."
The DAB is worried that when the pace of redevelopment accelerates, there
will be more occasions for the LDC and the Government to invoke the Crown
Lands Resumption Ordinance, which confers on the Government the power to
resume land on the basis of "public use". Yet the definition of "public use" is far
from clear and there is no protection for the public. The DAB is of the opinion
that the Government should make clarification on this point immediately and it
should suspend invoking the Ordinance before there is any clear and reasonable
definition.
Co-operation between Private Developers and the LDC
The document also recommends that the LDC can accept joint ventures
proposed by private developers in order to assist private developers in acquiring
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properties and rehousing the affected residents. The DAB is of the opinion that
this suggestion can help solve a lot of difficulties faced by the LDC. However
as the LDC is conferred with the power of land resumption through the Crown
Lands Resumption Ordinance, it is worrying that improper exercise of this power
will lead to collusion between the Government and the business sector or that this
power will be used by private developers as a tool to bring pressure to bear on the
people.
Although the Paper has indicated that the Government will work out the
criteria for acceptance of joint ventures by the LDC, and the government
members of the LDC Board will ensure that the criteria are applied, these are just
empty talk. It will not put the mind of the people at ease nor persuade the
people to support the Government's proposals.
To avert people's worries, the DAB is of the opinion that the Government
should first of all come up with clear and acceptable criteria for joint ventures
before the question whether the LDC can co-operate with private developers is
decided. The criteria should clearly stipulate that the LDC will not consider
co-operating with private developers unless the latter can successfully acquire a
certain proportion of property interests on their own. And this proportion should
not be lower than the LDC's own standard.
Further, the unfairness arising from discrepancies in compensation to
affected residents offered by private developers and the LDC has not been
addressed by the consultation document. We urge the Government to responds
as soon as possible. The DAB is of the opinion that the Government should
stipulate that the compensation offered by private developers should be on a par
with that offered by the LDC.
The co-operation between the private developers and the LDC will also
give rise to the problem of rehousing of the affected residents. The Housing
Authority and the Government have insisted that since it is a private matter
involving the private developers and the tenants, there is no justifiable ground on
which the Government, instead of the profit-making private organizations, should
be responsible for rehousing the tenants.
But we think that this is only the authorities' excuse. Mr President, the
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Government is bound to play a more active role in rehousing so that whether it is
the LDC or the Housing Society or private developers, the one which has taken
up redevelopment will provide proper rehousing or compensation to the affected
tenants. This is to show respect for the residents' right to accommodation and to
minimize the impact on the life of the people in the concerned district.
Resources Required for Urban Renewal
Huge expenditures will be incurred in respect of site assembly, rehousing
and compensation for the residents in the course of redevelopment. But we find
that apart from a promise of devoting resources to the Public Works Programme,
the Government has not provided sufficient financial support to urban renewal
projects. For instance, apart from a $100 million equity injection in 1988 to
cover its initial running costs, the LDC has to consider the returns and the costs of
its development projects. As a result, communal facility projects which will
yield a low return are not carried out.
The DAB is of the opinion that, in addition to the "linked site" approach as
suggested in the consultative document, more resources should be injected by the
Government into the organizations concerned for the redevelopment of
communal amenities in the old areas.
Mr President, urban renewal schemes play an important role in improving
the living standard of Hong Kong people. This requires the authorities'
determination and adoption of prudent policy to ensure that the pace of urban
renewal can be accelerated and the living standard of the people in the old areas
can be improved.
I so submit.
MR LEE WING-TAT (in Cantonese): Mr President, colleagues from the
Democratic Party have put forth a number of views on the urban renewal
document. I only wish to discuss three points.
First of all, when we are discussing the document, we should firstly find
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out whether or not the Government has set out the direction in which the urban
renewal programme as a whole is to proceed. If we cannot resolve this matter
and concentrate on some detailed and specific means, it would be difficult for us
to reach any unanimous conclusion. In fact, even the Government does not wish
to give an answer to this question. And the question is: from the Government's
point of view, exactly how important the role of urban renewal is; exactly what
kind of arrangement and what social resources the Government is prepared to
provide for the sake of improving the old urban areas; if there is any essential
responsibility the Government has towards the land owners, property owners and
tenants; and what conclusion has been drawn in the discussion on the balance to
be struck between the interests of private developers and those of the community.
My view is that the consultation document has attempted no discussion of the
above-mentioned points. Instead, it has merely put forth some measures the
Government thought would work. But if the above-mentioned principles have
not been worked out, I believe it will be very difficult for us to reach an
agreement just by debating the various measures.
Secondly, it is the question of strategy as related to this document. The
paper adopts a very fragmented approach and we are unable to see the overall
picture. I wonder if the Government has any confidence or ambition to renew
the urban areas within a certain period of time. For example, has it given any
consideration to renewing the urban area within 30 or 50 years so that there will
be a new community environment approved of and accepted by us? The
document discloses no such direction or strategy, nor does it suggest any steps or
options so that we will know how the Government is going to implement the
programme.
Moreover, the whole document discusses at great length the Land
Development Corporation (LDC) and the Housing Society (HS). Just as some
colleagues have said, 80% to 90% of the entire urban renewal programme is to be
taken up by private developers, and unless there is a change in the Government's
strategy, work in future will mainly be taken up by statutory bodies established by
the Government, for example the LDC or the HS. Otherwise, it would simply
be putting the cart before the horse if we do not focus on the urban renewal work
done by private developers. We see that problems concerning urban renewal
over the past few years are mainly problems in connection with compensation for
property owners and rehousing for tenants. Apart from a number of adjustments
with regard to the question of compensation, the document has not addressed the
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131
long-standing problem of rehousing, rehousing in the same locality or the housing
problem of residents as evidenced by its failure to suggest any option for
consideration. Therefore, if the Government does not address this old problem
but thinks that private developers will be able to carry out the urban renewal work
in the new environment, it would be no different from fishing in the air. It is
beyond my understanding why the policy branches concerned are unwilling to
tackle this knotty problem that has been in existence for years.
Thirdly, I would like to talk about the role played by the Housing Authority
(HA). Should the HA play a role in the urban renewal work? My view is that
it should. Years ago, I had said that the duty of the HA was to provide housing
to the needy. However, I have also commented on many occassions that the
scope of service of the HA at present is confined to some committed categories,
that is to say, redevelopment of public housing or applicants on the Waiting List.
Should it not also provide service to people who are in need, including tenants of
cage homes, households affected by urban renewal and people who live in
partitioned units in private property? I think there is the need. A feasible way
is to dispose extra land in favour of the HA so that this experienced and capable
housing organization will be able to work in joint ventures with the LDC and the
HS to build some rental housing units. What I want to stress is that the work
must be carried out subject to extra land being made available. Otherwise, the
proposition will not be workable with the existing land disposal arrangements and
housing construction programme.
There are merits in the proposition to have the HA carry out this work. It
is because the HA has housing units in all the districts; moreover, the units are of
various types, for example, old units as well as new units, and there are also units
for single persons, two persons and large households. Furthermore, the HA is
certainly experienced both in housing construction and housing management.
Therefore, I hope that when views with regard to this consultation document are
collated and summarized, the policy branches concerned will consider whether or
not the HA can assume a more positive role in the event of extra land being
disposed in its favour.
Finally, I would like to talk about the crux of the urban renewal problem.
I think that the problem before us is not just one that relates to the concept of
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"renewal without invested capital" as Dr the Honourable Samuel WONG has put
it. Rather, it is one that relates to the concept of the Government "generating
interest without having to put in any money" in the urban renewal programme.
No government in the world can carry out urban renewal efficiently and
humanely according to plan when resources, mainly land, are not being
adequately provided. The Government makes a mere $100 million (actually it is
less than $100 million) so-called capital injection and then lets the LDC as well as
other corporations carry out the work and run on their own. I think this is sheer
fantasy. I wonder how we can achieve this "interest generating business without
capital injection" mode of urban renewal as this will only bring about myriads of
problems, and the projects will be tangled up and delayed, so that both
developers, property owners and tenants will end up unhappy. Mr President, I
hope that in its conclusion to be drawn with regard to the whole urban renewal
programme, the Government will, from the angle of public interest, propose how
much resources it should committed itself to, the resources being mainly land
resources for the urban renewal programme. Just as we have to think of how
many hectares of land ought to be disposed of every year in order to address the
housing problem of the grassroots people, the Government faces the same
problem on the question of urban renewal.
My last point, which is a finer one, is that in carrying out the urban renewal
programme, it can be observed that in those areas marked for renewal the
population would generally increase. Thus I agree with the Honourable LO
Suk-ching that the Government or the development body ought to have certain
powers to freeze the population when it first announces the renewal, otherwise,
no development body will be interested in or capable of rehousing the residents in
the same locality.
Thank you, Mr President.
THE PRESIDENT'S DEPUTY, DR LEONG CHE-HUNG, took the Chair.
MR CHIM PUI-CHUNG (in Cantonese): Mr Deputy, in this debate today, I
very much hope that the Government can learn a lesson in earnest with a serious
attitude and spirit and give us a final comment on this issue and complete the
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133
final consultation.
We have had motion debates on this issue in the past few years but so far
only Members have spoken. We have also expressed a diversity of opinions on
the Crown Lands Resumption Ordinance (Cap.124) but the Government has not
taken any action. This attitude of the Government has precisely reflected the
mentality of a colonial government.
To begin with, the Land Development Corporation (LDC) must not be
excluded in the discussion over the renewal issue. I have to declare a minor
interest here. Although the matter concerned is settled, no decision has yet been
reached as to which side, the LDC or myself, shall be liable for the legal fees and
charges incurred. For this reason, I must declare an interest.
Dr the Honourable Samuel WONG, a former Board Member of the LDC,
spoke of the position of the LDC earlier. It seems that the LDC has indirectly
lodged a protest against the Government through the speech of Dr WONG,
pointing out that with a provision of less than $100 million from the Government
the LDC has now gained a profit of over $10 billion and that if the Government
does not implement policies to further empower the LDC, the LDC will be unable
to proceed with the resumption of land.
This shows that the relationship between the Government and the LDC
ought to be defined in clear terms. At present, with the privileges granted by the
Government, the LDC has been making profits out of the several tens of millions
of dollars and its foreseeable profit in future will be over $10 billion. Could it
be that the profit is taken out from the pocket of Mr Abraham RAZACK? It is
perfectly reasonable that Mr RAZACK gets paid every month and he deserves
what he gets. However, this can well prove that under the renewal scheme the
LDC is making money out of the public and owners of properties in old urban
areas. I think the Government must review and admit this.
We have two observations about land resumption and they are worth
serious consideration by the LDC. First, the LDC is supercilious and works
arrogantly. For example, in respect of a case of which the hearing has not been
concluded and which is pending court decision, the LDC went so far as to hold on
its own the "ribbon-cutting" ceremony. This is indeed contempt of court. I
think the Government should conduct a review in this regard.
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Secondly, for fruit stalls located adjacent to properties owned by big
landlords, the operators of these fruit stalls, who are unquestionably licensed
hawkers, are guaranteed continual operation subsequent to demolition actions
carried out by other government departments. However, the private owners of
the adjoining premises do not have the right to express their views when their
premises are resumed by the LDC. Some owners may refuse to accept
compensation at first but when they agree to the compensation in the end, the
LDC says that the consent of other owners should also be obtained before the
relevant formalities can be carried out collectively to grant compensations.
What attitude is this? It is outrageous that the LDC can do this. We know that
not all of the owners are like CHIM Pui-chung who has the means to resort to
legal proceedings and appeal to the Privy Council in a bid to solve the problem;
and not all of the owners are like CHIM Pui-chung who can hire the Honourable
Martin LEE, QC. I hope that the Government will review this attitude of the
LDC seriously. Many colleagues have put forth their brilliant ideas earlier and I
hope the Government can take them into consideration. Of course, the LDC has
its own merits but the Government must examine its administrative measures.
Recently, I have been reminding the LDC time and again that the
Government will definitely disagree with the invocation of the Crown Lands
Resumption Ordinance for the purpose of land resumption before the matter is
settled. Under the circumstance, some major construction projects on the Island
and in Kowloon are unable to proceed. This can also prove that the LDC is not
genuinely working for the development of districts. So long as the LDC finds
out after calculation that the project is far from profitable or difficulties are
envisaged, the LDC will invariably "beat a retreat" and shelve the project. This
simply runs counter to the grand objective that the LDC always speaks of.
Being residents in the old urban areas in Hong Kong, we will definitely
stand by the renewal scheme. As a matter of fact, I am in full support of the
Kowloon Walled City project personally. There were complaints from many
residents at that time. I even tried to convince them that the Government was
doing the right thing and asked them to put up with it with an appropriate degree
of tolerance. As a result, the residents gave way. Therefore, I think the
problem must be handled separately.
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135
My view is that in the first place, it is obvious that the Government should
amend the Crown Lands Resumption Ordinance. This Ordinance sets out the
four circumstances under which land can be resumed. (1) Such places are unfit
for habitation; (2) The renewal scheme affects other projects; (3) In times of war;
(4) Lastly and most importantly, the resumption is in the public interest.
However, we have to realize that the LDC invokes the Crown Lands
Resumption Ordinance to resume land not for the benefit of members of the
public, but in light of the private interests of the LDC and the developers. In this
connection, while we do not oppose the continual invocation of this Ordinance by
the Government, we hope that the Government can amend this Ordinance to
make it more explicit by, for instance, defining "public interest" clearly and
unequivocally to prevent the term from being abused.
Just now many colleagues have put forward many constructive opinions
but somehow the Government has pointed out that private developers can also
make use of the Crown Lands Resumption Ordinance. As the LDC has already
been criticized for invoking this Ordinance, I do not see why private developers
are in a position to make use of this Ordinance. Personally, I support the
proposal of the mover of this motion, the Honourable James TO, of putting up the
resumed land for auction. A special condition which accords priority to the
LDC or big landlords can be laid down subsequent to the auction as the LDC or
big landlords may find the successful bid in the auction too expensive. But if
they are given a cooling-off period to give some thoughts to the matter and are
given priority, I think it will be a very reasonable arrangement.
Of course, there are still many other details which need to be straightened
out. I very much hope that the Government and the policy branches concerned
can deal with the matter sincerely and should not brush aside the matter, giving
the LDC a free hand in handling the matter or letting the matter drag on. This is
a very wrong attitude.
Moreover, I have reservations about the proposal of local rehousing
because, in order to gain a greater profit, it is only natural to convert residential
premises into commercial ones which means the ratio will be increased eight
times, 10 times or even 15 times in the reconstruction. This is something that
we know perfectly well. Under these circumstances, it is, in fact, very difficult
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to provide local rehousing.
My view is that developers and the Government must deal with this issue
sincerely under all circumstances and the original owners should not be regarded
as exploiters because they are also the victims.
Mr President, these are my remarks.
DR JOHN TSE (in Cantonese): Mr Deputy, I would like to analyse today's
motion from the perspective of human rights. On the development of land use,
it is of paramount importance that the affected residents can participate in the
process of land utilization, so that their right of residence can be safeguarded.
Paragraph 1 of article 11 of the International Covenant on Economic, Social and
Cultural Rights recognizes the right of everyone to an adequate standard of living,
including to the continuous improvement of living conditions.
The right to an adequate standard of living is part of basic human rights.
In the process of urban renewal, the Government indeed has the responsibility of
taking care of the interests of those who are affected. This consultation paper on
urban renewal lacks not only a comprehensive and long-term redevelopment
policy, but also the sincerity to upgrade the standard of living of the people
through urban renewal.
The entire consultation paper has put urban renewal on a par with the issue
of property repossession. It focuses on economic benefits rather than the
original residents' right to domestic accommodation. Urban renewal has not
brought improvement to the living environment of the tenants of old premises.
Rather, it has made their living conditions even worse. The meagre cash
compensation can at most cover the rental for several months and making ends
meet afterwards will remain a problem. At the end of the day, the people
affected will have to move from big rooms to medium rooms, from medium
rooms to small rooms, from small rooms to bedspaces, and from bedspaces to
caged homes. Basically, their right of residence is being exploited. The
prevailing cash compensation is hardly adequate to meet the exorbitant rental.
The consultation paper has failed to discuss the existing measures designed
LEGISLATIVE COUNCIL — 15 November 1995
137
to tackle illegal repossession of property and the issue of penalty. On the
contrary, it mentioned in paragraph 25 that to avoid the question of illegal
repossession of property, compensation should be subject to an overall
compensation cap. This reflects that the Government has no idea of the rule of
law at all and it is willing to bow to the pressure of the forces of evil. In a case
that took place in Causeway Bay, the tenants were forced to move out by the
developers who employed the dirty tactic of damaging the staircases, making it
difficult for the tenants to enter and leave the building. In fact, in the process of
urban renewal, the right of private property ownership is always being trampled
upon.
After the Town Planning Board approves the redevelopment plans
submitted by the Land Development Corporation (LDC) and the Housing Society
(HS), the nightmare of the owners begins. Being completely stripped of the
opportunity to develop their own property, the owners are at the mercy of others.
At present, the LDC enjoys substantial land resumption power and small owners
have essentially no say at all. The fact that the right of private property
ownership has been unreasonably trampled upon also reflects that the
Government's redevelopment plans belittle the basic human rights of the owners.
Obviously, the existing legislation is grossly inadequate with regard to
supervising the Town Planning Board and the LDC. Surprisingly, the
consultation paper has done nothing to deal with this problem. In the process of
formulating urban development plans, small owners have absolutely no say at all.
To ensure the representativeness, accountability and operational transparency of
statutory bodies is indeed a matter that cannot be neglected.
On the other hand, in empowering the LDC to invoke the Crown Lands
Resumption Ordinance for land resumption, the Land Development Corporation
Ordinance has not established any compensation criteria. In fact, the legislation
in relation to the Mass Transit Railway and public reclamation works does
prescribe the compensation criteria for land resumption. Why is there none for
urban renewal? The only explanation is that in order to enable the LDC to have
more bargaining power, the Government has done nothing at all to protect the
interests of small owners.
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Lastly, as I cannot see in the consultation paper any comprehensive,
long-term and specific redevelopment policies, I would like to reiterate that the
Democratic Party requests the Government not to focus its attention merely on
the economic benefits of urban renewal. Instead, it should make a bigger
commitment and show greater resolution by expeditiously formulating a set of
comprehensive urban renewal strategies which is "people-oriented" to improve
the livelihood of the residents. At present, the right of residence of the affected
residents is being exploited and their right to participate has also been slashed in
the course of urban renewal. I hope the Government can take care of the basic
human rights of the tenants and the small owners so as to protect them from being
exploited.
I so submit.
MR IP KWOK-HIM (in Cantonese): Mr Deputy, I am a new Member to the
Legislative Council, and yet when going over Hansard, I can see that motion
debates on urban renewal have been held a number of times. This shows that
the Government has all along failed to tackle the problem effectively and has
failed to formulate a proper policy in dealing with this issue. As a result, debate
after debate was held.
The objective of urban renewal is not only to redevelop buildings, but also
to improve the transport, cultural, recreational and social facilities. Only in this
way will it be able to improve the life of our people and the environment.
However, most of the urban renewal projects are undertaken by the Land
Development Corporation or private developers. Hence, a macro view is
impossible and not much improvement to the infrastructure can be made. It is
therefore necessary to effect changes.
The crux of this problem is a lack of positive commitment on the part of
the Government in urban renewal. On the other hand, it allows private
developers to adhere to commercial principle and redevelop buildings in different
districts. There is a lack of a specific direction in urban renewal and a lack of
co-ordination and planning arrangement.
LEGISLATIVE COUNCIL — 15 November 1995
139
In July this year, the Government published the consultation paper on
urban renewal, which we have long been looking forward to. Incidentally, today
is the last day of the consultation period. This paper has pointed out the
technical issues relating to urban renewal which include the resumption of land,
rehousing and compensation for the affected residents.
But to our
disappointment, it fails to explain how the Government will implement step by
step the improvement of the old districts and it also fails to tell us how far
improvement work for old areas will go.
Presently a number of old districts are facing varying degrees of difficulty
in redevelopment. Take the five streets in Kennedy Town in Western District as
an example, the Town Planning Board in 1988 decided to undertake urban
renewal in this area. In early 1992, the project was announced in the District
Board and the Housing Society was specifically appointed to take up the project.
The Housing Society then planned to start clearance and redevelopment in early
1996. However, no progress is seen so far. Because of the above reasons,
most residents are at a loss to decide what to do in regard to their accommodation
problem. The buildings in the five streets are in bad repair and in poor
conditions. Rainwater will seep through the buildings in rainy days and leakage
of electricity will occur. As the plan for redevelopment is not clear, residents
there cannot make any long-term planning in relation to employment, education
of their children and purchase of property. There are 350 affected units in the
five streets and the 1 500 affected residents are living there as long as they can.
In other old areas, similar examples of urban renewal are too numerous to
recount.
To solve the urban renewal problem completely, the Government is duty
bound to formulate a comprehensive urban renewal policy expeditiously and to
find a solution for the land resumption problem faced by developers. Besides,
affected residents should be provided with rehousing in the same district and with
reasonable compensation. Since the Government is willing to inject huge
resources into its metro plan, it should not let people live in constant fear of being
housed in "dangerous buildings".
I so submit.
MR RONALD ARCULLI: Mr Deputy, I cannot remember how many times this
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Council has debated this issue. All I can say is that the frustration and the
disappointment of Members with the lack of a comprehensive policy for urban
renewal from the Administration is quite understandable. It seems that if the
Administration is determined to pursue a given policy, however controversial, it
will pray in aid of public interests and as well as, of course, our executive-led
Government.
The fact that the subject under discussion has over the years attracted a
whole range of views because of the different interests and expectations is not, in
my view, a reason for our executive-led Government to shy away from the issue.
Why then, I ask, does the Administration appear to turn its back on the problem?
The answer may comprise a few factors, but I suspect that it is because housing is
a pretty emotional issue. A second reason could be that the Administration does
not know, or worse still, cannot be bothered to assess the cost to the community
as a whole.
One example, Mr Deputy, is that I have on many occasions asked the
Administration to let this Council have the facts. How many tenants are we
talking about? What resources, land and otherwise, do we need to rehouse
tenants? Is rehousing in the same district feasible? If yes, what is the cost? If
not, where else and again, at what cost? What is a realistic time frame to
achieve urban renewal? What impact will it have on the provision of land,
whether in our urban areas or otherwise, on our public as well as our private
housing programmes? Do we have one queue or more than one? The
community, I believe, is entitled to the answers to these very basic questions
before it can indicate its support or otherwise for any urban renewal programme.
THE PRESIDENT resumed the Chair.
Mr President, I would like now to offer a few comments on today's motion,
firstly, as to compensation. A few Members today continue to berate the
property industry for the allegedly low level of compensation when compared to
that paid by the Land Development Corporation (LDC). Members need hardly
be reminded that the purpose and the function of the LDC and the property
industry are wholly different. That having been said, the Real Estate Developers
Association (REDA) have no problem for a reasonable increase in the current
level of statutory compensation because developers, by and large, pay
LEGISLATIVE COUNCIL — 15 November 1995
141
compensation in excess of the statutory compensation level, but the industry
needs a speedier process and greater flexibility.
The second point that I would like to deal with is rehousing. I believe that
rehousing in the same district is unattainable, but if that is so, let the
Administration explain to us why it is not attainable. The sooner we know the
sooner those expectations will subside.
Mr President, the REDA, I believe, has put forward a sensible proposal for
rehousing, and, that is, for the Housing Authority to obtain quicker release of
public rental units by encouraging the better-off tenants to buy flats from the
Authority. Another REDA solution could be to encourage the redevelopment of
our decaying industrial areas into residential projects which, coupled with a
judicious use of bonus plot ratio, could well produce residential units for
rehousing some of the families displaced by urban renewal programmes.
Mr President, I believe we are about to be handed a golden opportunity to
plan for a fair and workable urban renewal programme when Kai Tak Airport is
decommissioned. I believe we must plan ahead, and plan ahead with a bold
vision. We can use that to plan not just for urban renewal, but also for renewal
of our decaying industrial districts like San Po Kong and Kwun Tong and the
like. Furthermore we can also redevelop some of our decaying public housing
estates. What I have suggested, Mr President, requires an Administration with
determination and vision. I ask the Administration not to disappoint Hong
Kong.
SECRETARY FOR PLANNING, ENVIRONMENT AND LANDS (in
Cantonese): Mr President, I have listened carefully to Members' views on urban
renewal. In particular, I have noted their concern over the progress of the policy
review, which is understandable, since the pace of urban renewal has a profound
impact on the urban environment and the quality of life of the community. I can
assure Members that the Administration is committed to expediting urban
renewal.
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I welcome today's motion debate as it enables the Administration to listen
to the views of this Council to mark the completion on of the public consultation
an urban renewal. However I must say I am disappointed with the strong wording
of the motion, which expresses deep regret at the failure of the Government to set
out a comprehensive policy of renewal in the consultation document. With due
respect, Mr President, I find the wording a little odd and feel that it reflects
Members' misunderstanding of the purpose of the consultation paper. It is
believed that Members have clearly read the public consultation document, which
we published in July this year. The document contains a comprehensive package
of proposals to facilitate urban renewal. Its aim was, as always, to encourage
discussion on the subject and invite comments from the general public, interested
professional and other bodies and, of course Members of this Council, on the
Administrations proposals so that different views might be taken into account
before a policy is formulated. The public consultation period has been extended
partly, at the request of Members of this Council.
Having listened carefully to what Members have said, I find that many of
their views are basically in contradiction with the definition of urban renewal as
contained on page two of our consultation document. And that is, I believe, one
of the reasons why we hold different views on this issue. Members have just
now expressed various views in connection with the redevelopment of old
buildings, but the issue under discussion is urban renewal. If, according to the
views of certain Members, residents affected by the redevelopment f some old
buildings have to be rehoused in the same locality, then the redevelopment of a
three-storey or four-storey building by a few small property owners will become
involved in this issue.
Other Members have touched on the question of how the Land
Development Corporation (LDC) should have rehoused the affected residents. I
believe that these Members are still not fully in the picture. The LDC has so far
undertaken a number of redevelopment schemes, and all the residents affected by
such schemes have been rehoused. The LDC has not just paid them
compensation and asked them to vacate the buildings. Some Members said that
since the LDC and pulled down the old buildings to make way for office
buildings, there were no more resident buildings available to the affected
residents. They have, however, failed to take into account that the LDC has in
fact acquired houses in other districts to accommodate the affected residents.
Never has there been any case of residents finding themselves homeless as a
LEGISLATIVE COUNCIL — 15 November 1995
143
result of redevelopment project undertaken by the LDC.
I would carefully study the constructive views of some Members in this
Council, very much with the expectation that I would be able to take into account
the solution they have proposed to solve the very complex problems of urban
renewal. I hope that we shall be able to set out a set of policy soon which will
have the support of this Council and the community.
We have now received the views of a broad cross-section of the community
and in a moment I shall give Members a brief summary of the main comments.
Our task now is to draw conclusions from those comments and consolidate a
policy on how to bring urban renewal forward. We will then turn to the specific
details of implementation.
The motion asks us to formulate expeditiously a comprehensive policy to
speed up the pace of urban renewal. Mr President, this is exactly what the
Administration intends to do. The Honourable James TO's motion and the
Honourable Miss Christine LOH's amendment also urge us to give due emphasis
to ensuring that residents affected will be rehoused in the same locality and
reasonably compensated. It surely goes without saying that the compensation
should be reasonable. We have debated many times, both in this Council and
elsewhere, the question of "same-district" rehousing. We recognize that many
residents of older buildings which have to be redeveloped want to remain close to
their communities, employment and schools. But we are also acutely aware that
same district rehousing is simply not possible in many cases, if only because one
of the primary aims of urban renewal is to lower the development and population
densities of overcrowded areas. In its projects to date, the Land Development
Corporation has been able to offer rehousing in the urban area and to make
available limited rehousing in the same districts for allocation on a priority basis
to those who would otherwise face genuine hardship. That is the best that can
be practically achieved. I am grateful that some Members have recognized this
in their speeches today and in previous debates.
Mr President, I said that I would give a brief summary of the main results
of our consultation. I do so for Members' information and to illustrate in
particular that there are diverse views on this important issue in the community.
Members will no doubt note that some of the comments we have received are
mutually conflicting and difficult to reconcile.
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First, there was unanimous support for accelerating urban renewal.
Respondents generally wished the Government to inject more resources into the
process. However, most of them also believed that more should be done to
address the problems encountered in private sector redevelopment schemes, since
private developers would continue to be one of the principal agents in urban
renewal, instead of having the Government to identify resources to help them.
Second, view on the Administration's resumption proposal to overcome the
site assembly problem were mixed. While some acknowledged that resumption
was the only practical means to ensure site assembly, other considered that
private property rights should be respected and resumption should only be
resorted to under exceptional circumstances, such as when redevelopment would
bring significant benefits to the community.
Third, some respondents had reservations on the suggestion of expanding
the role of the Land Development Corporation to include that of acting as a
facilitator of private sector schemes, mainly owing to concern over the interests
of small property owners. Others supported the idea, provided there were
adequate "checks and balances" and Government supervision of such joint
ventures between the Corporation and private developers.
Turning to the relocation of affected tenants, a clear majority of the
respondents welcomed the Administration's proposal to grant land at
concessionary premium to the LDC or the Housing Society (HS) for the
construction of rehousing units. They also supported making the HS as a
rehousing agent in LDC's redevelopment schemes.
The provisions of "same-district" rehousing in all redevelopment projects
was advocated by some respondents. Others, however, considered that the idea
was not always practical, particularly when a change in land use, or a thinning out
of population density, is envisaged for planning reasons.
As regards how to assist affected domestic and commercial tenants to
relocate, most of the views received called for a suitable increase in the relevant
statutory compensation and ex-gratia allowances.
LEGISLATIVE COUNCIL — 15 November 1995
145
Finally, most respondents considered the proposed "linked site" concept a
sound approach in addressing the financial viability problem in urban renewal.
The pubic have expressed their views and wishes on urban renewal. It is
now time for the Administration to fully such views and make the necessary
decisions. In doing so, we will aim at balancing the interests of different parties:
the affected owners and tenants, the developers and the community as a whole.
We will, of course, also take into account the views of this Council.
As promised in our 1995 Policy Commitments, we will aim to finalize the
way forward by the end of this year. We will announce the appropriate policies
on urban renewal as soon as possible afterwards and set up a new dedicated urban
renewal team in the Planning, Environment and Lands Branch to work on their
implementation.
Mr President, I am grateful to Members for the views they have expressed
in this debate and elsewhere and, in particular, to the Housing Panel and the
Planning, Lands and Works Panel of the previous and current Legislative Council
for the opportunities they have given us to discuss the issue with them. I would
also like to thank publicly those bodies and individuals, who have taken the time
and trouble to write to us with their comments.
PRESIDENT: As I said at the beginning of this debate, two Members, Miss
Christine LOH and Mr Edward HO, have submitted separate amendments to this
motion and their amendments have just been debated together with the motion.
I now call upon Miss Christine LOH to formally move her amendment first so
that Members may take a vote on it.
MISS CHRISTINE LOH's amendment to MR JAMES TO's motion:
"To delete "expeditiously formulate a comprehensive policy" and substitute
with "take forward proposals to increase powers of land resumption in
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conjunction with measures to increase the transparency and accountability
of the Town Planning Board, increase minimum levels of statutory
compensation to tenants with the aim of increasing payments to the poorest
tenants forced out by urban renewal, and increase the availability of public
resources, especially land, in order" and to delete "with due emphasis on
tackling the problems relating to the acquisition of properties by developers
and ensuring" and substitute with "and to ensure"."
MISS CHRISTINE LOH: Mr President, I move that Mr James TO's motion be
amended by my amendment as set out on the Order Paper which has just been
revised.
Question on Miss Christine LOH's amendment proposed.
PRESIDENT: Mr James TO, do you wish to speak? You have a total of five
minutes to speak on the two amendments.
MR JAMES TO (in Cantonese): Mr President, I have stated that I do not support
the amendment motion proposed by the Honourable Edward HO. However, I
have not stated whether I support or oppose the amendment motion moved by the
Honourable Miss Christine LOH when I rose to speak just now. It is because I
want to have a better understanding of her amendment motion, especially those
ambiguous parts, before I make up my mind. After listening to her speech, I
now have a clear picture of her concept. Even though we have a better
understanding of her motion after she has explained wording such as "increase
powers of land resumption", we still fear that it will be interpreted as increasing
the Government's powers to resume land. It is because different people may
have different interpretation of the same wording. I think it will be dangerous if
Members accept such ambiguous wording and allow the Government to interpret
it. Therefore, we will vote against Miss Christine LOH's amendment motion.
Nevertheless, the Democratic Party does agree to a number of points raised
by Miss Christine LOH. One of these points which we heartily agree to is that
the Government should increase the availability of public resources, especially
LEGISLATIVE COUNCIL — 15 November 1995
147
land. Many Members mentioned just now that it was impossible for the
Government to "carry out redevelopment without paying any cost" or, as the
Honourable LEE Wing-tat has said, it was impossible for the Government to
"make profit without paying any cost". We also agree to the principle of
increasing the transparency of the Town Planning Board. In addition, we are
also in support of the call for more compensation to tenants. I think, except the
Honourable Ronald ARCULLI, most of the Members who spoke just now will
agree to increasing the levels of compensation. I hope ......
MR RONALD ARCULLI: Mr President, a point of elucidation.
PRESIDENT: Do you want to explain that part of speech which has been
misunderstood or do you wish to seek Mr James TO's elucidation on a point he
was making?
MR RONALD ARCULLI: Either one will do, Mr President.
PRESIDENT: Are you saying that you have been misunderstood?
MR RONALD ARCULLI: Certainly, from the context in which Mr TO is
speaking now.
PRESIDENT: Mr TO, are you prepared to yield to Mr ARCULLI so that he can
make his explanation?
MR JAMES TO: Yes, if I have misunderstood him.
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MR RONALD ARCULLI: In my speech, I made it very clear that the Real
Estate Developers Association's position was that a reasonable increase in the
current level of statutory compensation was acceptable. So I do not understand
why Mr TO is suggesting that I said otherwise.
MR JAMES TO (in Cantonese): Mr President, it is probably because 18
Members have spoken on this subject that I have omitted to jot down that
argument of the Honourable Ronald ARCULLI when scribbling my notes. For
that, I would like to apologize to Mr ARCULLI and the association to which he
belongs.
This will be even better. That means it is the wish of all Honourable
Members that the Government increase the amount of compensation. I hope
that the Government will implement this proposal in the near future, within the
coming few months if possible. Otherwise, the Democratic Party or the other
Members will exert greater pressure on the Government. We have prepared a
Private Member’s Bill which will be moved at any time if the Government does
not implement this proposal. I believe that many Members will give their
support to it.
Question on Miss Christine LOH's amendment put and negatived.
PRESIDENT: Now that we have disposed of Miss LOH's amendment, Mr
Edward HO may formally move his amendment now so that Members may take a
vote on it.
MR EDWARD HO's amendment to MR JAMES TO's motion:
"To delete "rehoused in the same locality and reasonably compensated."
and substitute with "fairly compensated, and rehoused according to the
LEGISLATIVE COUNCIL — 15 November 1995
149
principle of equity as applied to all"."
MR EDWARD HO: Mr President, I move that Mr James TO's motion be
amended as set out under my name in the Order Paper.
Question on Mr Edward HO's amendment proposed.
PRESIDENT: Mr James TO, do you wish to speak on Mr HO's amendment?
You have a balance of 1 minute 52 seconds.
Question on Mr Edward HO's amendment put.
Voice vote taken.
THE PRESIDENT said he thought the "Noes" had it.
Mrs Selina CHOW claimed a division.
PRESIDENT: Council shall proceed to a division.
PRESIDENT: May I now remind Members that they are now called upon to vote
on the question that Mr Edward HO's amendment be made to Mr James TO's
motion. Will Members first register their presence by pressing the top button in
the voting units on their respective desks and cast their votes by selecting one of
the three buttons below?
PRESIDENT: One short of the head count. We are voting on the question that
Mr Edward HO's amendment be made to Mr James TO's motion. Before I
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declare the result, Members may wish to check their votes.
queries? The result will now be displayed.
Are there any
Mr Allen LEE, Mrs Selina CHOW, Mr LAU Wong-fat, Mr Edward HO, Mr
Ronald ARCULLI, Mrs Miriam LAU, Dr LEONG Che-hung, Mr CHIM
Pui-chung, Mr Eric LI, Mr Henry TANG, Dr Samuel WONG, Dr Philip WONG,
Mr Howard YOUNG, Miss Christine LOH, Mr James TIEN, Mr Paul CHENG,
Mr CHOY Kan-pui, Mr David CHU and Mr Ambrose LAU voted for the
amendment.
Mr Martin LEE, Mr SZETO Wah, Mr Albert CHAN, Mr CHEUNG Man-kwong,
Mr Frederick FUNG, Mr Michael HO, Dr HUANG Chen-ya, Miss Emily LAU,
Mr LEE Wing-tat, Mr Fred LI, Mr James TO, Dr YEUNG Sum, Mr WONG
Wai-yin, Mr LEE Cheuk-yan, Mr CHAN Kam-lam, Mr CHAN Wing-chan, Miss
CHAN Yuen-han, Mr Andrew CHENG, Mr CHENG Yiu-tong, Mr Anthony
CHEUNG, Mr CHEUNG Hon-chung, Mr Albert HO, Mr IP Kwok-him, Mr LAU
Chin-shek, Dr LAW Cheung-kwok, Mr LAW Chi-kwong, Mr LEUNG
Yiu-chung, Mr Bruce LIU, Mr MOK Ying-fan, Mr NGAN Kam-chuen, Mr SIN
Chung-kai, Mr TSANG Kin-shing, Dr John TSE, Mrs Elizabeth WONG and Mr
YUM Sin-ling voted against the amendment.
Mr LO Suk-ching and Miss Margaret NG abstained.
THE PRESIDENT announced that there were 19 votes in favour of the
amendment and 35 votes against it. He therefore declared that the amendment
was negatived.
PRESIDENT: Mr James TO, you are now entitled to reply and you have four
minutes six seconds out of your original 15 minutes.
LEGISLATIVE COUNCIL — 15 November 1995
151
MR JAMES TO (in Cantonese): Just now the Government said that it was
grateful to many Members. As a matter of fact, I also have to thank Members
because we had debated this issue numerous times. However, many Members
or the organizations or bodies they belong to have really put forward a lot more
substantive suggestions this time. Whilst the means as suggested may be
different, we do have plenty of common ground amongst us. This time we
surely can point to a direction and offer views for consideration by the
Government.
First of all, I would like to respond to some of the views of the
Government. The Government is of the view that this is merely a consultation
exercise and therefore views of Members are being sought. For this reason, the
Secretary for Planning, Environment and Lands has found it strange that we
should have criticized the document for being a mere 12-page one. However, I
hope he will understand that for the purpose of consultation, there are the
so-called blank options as well as substantive options. For example, as regards
transport, the Government makes numerous points in a consultation paper on how
the problem of traffic congestion can be solved. In spite of the fact that some of
them are quite controversial, nevertheless, the Government is bold and resolute; it
has got a sense of direction and broadmindedness on the matter, to say the least,
and it is of the view that the traffic congestion problem can be solved. But now
on the question of urban renewal, the Government is only conducting a
consultation exercise on some blank options, that is to say, there is no offered
option at all, particularly when it comes to joint ventures with private developers
on the renewal projects. Just as the Honourable Ronald ARCULLI remarked
that they looked forward to the speeding up of the renewal works, members of the
public also hope that more reasonable terms in respect of compensation and
rehousing can be offered. The Government should have appreciated that there is
a conflict of interests in these two aspects. And it should be bold and
broadminded to suggest some options. I think if the Government had done so,
views presented by members of the public would have been a lot more
substantive, and they could have made it clear whether they would support certain
views or not.
Just now the Secretary for Planning, Environment and Lands said that the
Land Development Corporation (LDC) had all along been making arrangements
to rehouse affected residents, and that the rehousing rate was 100%. In fact we
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can see this point, too. That is why we have spoken well of it since basically we
concur with this mode of the LDC in dealing with matters, and we think that such
kind of rehousing is good. However, what many Members are concerned with
now is the question of private developers. This document mentions the increase
of compensation only, and there is absolutely no mention of rehousing. But it is
interesting to note that the document does mention the difficulties faced by the
residents, and the substance of the document is almost exactly the same as a
speech of mine delivered three or four years ago. The Government is also of the
view that the residents do have difficulties, but at the end it merely states that the
compensation is to be set at 1.7 times the rateable value of the premises, or a bit
higher at the discretion of the authorities concerned. I think this simply has not
solved the problem of rehousing.
Today many Members are wrangling over the question of whether or not
rehousing in the same district is feasible. Perhaps let me respond to the views in
this respect. My view is that rehousing in the same district is feasible, and my
reasons are as follows:
Firstly, there is a lot of land the plot ratio of which has not been fully
utilized. The Honourable Frederick FUNG spoke of the land below the flight
path. What we are talking about is not just a block or two but the entire area the
plot ratio of which has not been fully utilized. However, the Secretary for
Planning, Environment and Lands said that if Members recommended the full
utilization of the plot ratio, there would not be any improvement to the
environment as the density of those areas had already been very high, and if the
density was to be increased any further, the environment would then be worse
than what it was now.
This brings me to the second reason that I would like to put forth, which is
that we have an expansive area of reclaimed land. Just now Mr ARCULLI also
mentioned the land at Kai Tak as well as, for example, land for industrial use.
At the time when the Government was in the process of planning, it should have
realized, in view of the industrial situation of Hong Kong, whether or not such
land should be reserved for that purpose and, whether or not we had other land to
ease the density problem as a result of the urban renewal, and so on.
Thirdly, most of the problems we are having are actually the result of some
LEGISLATIVE COUNCIL — 15 November 1995
153
developers having altered the use of land from one of residential use to
commercial use.
Fourthly, as a matter of fact, there are examples of success in same-district
rehousing for those larger areas of land. For example, the six streets of Yau Ma
Ti and Li Chit Street of Wan Chai, and so on. We very much agree with the
Honourable LO Suk-ching's idea of freezing the number of tenants. This is
because if the number of tenants is not frozen, once the Government announces
that a certain area is to be renewed, a large number of people will rush into that
area, and the number of residents to be rehoused in the same area will likely be
several times more, which is not fair since we must not allow people to rush there
suddenly.
There are such a myriad of views that I find it impossible to respond to
each and every one of them. However, in a nutshell, I think the Government
ought to be bold and resolute in dealing with this matter and put forth some
constructive recommendations for us to consider.
Question on Mr James TO's motion put.
Voice vote taken.
THE PRESIDENT said he thought the "Ayes" had it.
Mr James TIEN and Mrs Miriam LAU claimed a division.
PRESIDENT: Council shall now proceed to a division.
PRESIDENT: Will Members please register their presence by pressing the top
button in the voting units and cast their votes by selecting one of the three buttons
below?
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PRESIDENT: Three short of the head count. Before I declare the result,
Members may wish to check their votes. Are there any queries? The result
will now be displayed.
Mr Martin LEE, Mr SZETO Wah, Dr LEONG Che-hung, Mr Albert CHAN, Mr
CHEUNG Man-kwong, Mr Frederick FUNG, Mr Michael HO, Dr HUANG
Chen-ya, Miss Emily LAU, Mr LEE Wing-tat, Mr Fred LI, Mr James TO, Dr
Samuel WONG, Dr YEUNG Sum, Mr WONG Wai-yin, Miss Christine LOH, Mr
LEE Cheuk-yan, Mr CHAN Kam-lam, Mr CHAN Wing-chan, Miss CHAN
Yuen-han, Mr Andrew CHENG, Mr CHENG Yiu-tong, Mr Anthony CHEUNG,
Mr CHEUNG Hon-chung, Mr CHOY Kan-pui, Mr David CHU, Mr Albert HO,
Mr IP Kwok-him, Mr LAU Chin-shek, Dr LAW Cheung-kwok, Mr LAW
Chi-kwong, Mr LEUNG Yiu-chung, Mr Bruce LIU, Mr LO Suk-ching, Mr MOK
Ying-fan, Mr NGAN Kam-chuen, Mr SIN Chung-kai, Mr TSANG Kin-shing, Dr
John TSE, Mrs Elizabeth WONG and Mr YUM Sin-ling voted for the motion.
Mr Paul CHENG and Mr Ambrose LAU voted against the motion.
Mr Allen LEE, Mrs Selina CHOW, Mr LAU Wong-fat, Mr Edward HO, Mr
Ronald ARCULLI, Mrs Miriam LAU, Mr CHIM Pui-chung, Mr Eric LI, Mr
Henry TANG, Dr Philip WONG, Mr Howard YOUNG, Mr James TIEN and
Miss Margaret NG abstained.
THE PRESIDENT announced that there were 41 votes in favour of the motion
and two votes against it. He therefore declared that the motion was carried.
PROPOSALS OF THE LEGAL SUBGROUP OF THE PRELIMINARY
WORKING COMMITTEE
MR ALBERT HO to move the following motion:
LEGISLATIVE COUNCIL — 15 November 1995
155
"That this Council strongly objects to the proposal by the Legal Subgroup
of the Preliminary Working Committee to repeal in 1997 certain provisions
of the Bill of Rights Ordinance as well as to reinstate laws amended by this
Council to comply with the Bill of Rights; and urges the Government to
review immediately existing laws and present to this Council for
amendment those laws which are in breach of the Bill of Rights, so as to
enhance the protection of human rights in Hong Kong."
MR ALBERT HO (in Cantonese): Mr President, I rise to move the motion
standing in my name on the Order Paper.
Mr President, in modern civilization, people should enjoy a high degree of
freedom and rights. This exemplifies the lofty political aspiration of "acting in
the interest of the people". This is also the goal that every democracy should
pursue. Nowadays, any country or regime that seeks to manipulate the people
by exploiting and trampling on their human rights is bound to be despised and
held in contempt by the international community, despite the fact that they may
thus attain economic growth and strong military might.
In fact, the International Covenant on Civil and Political Rights and the
International Covenant on Economic, Social and Cultural Rights only set out the
minimum standard of the fundamental freedoms and rights of individuals. The
Bill of Rights Ordinance (BRO) is enacted only to extend to the Laws of Hong
Kong this minimum standard that Hong Kong should observe after 1997.
However, in order to safeguard human rights, we cannot simply depend on a
piece of paper, thinking that the matter is settled once and for all. It is just the
beginning of a long-lasting task and is definitely not the end. The BRO only
sets out the bottom line that is generally accepted internationally in the protection
of human rights. It is definitely not an absolute guarantee of human rights.
With regard to the protection of human rights, the international community
has clearly expressed their concern about human rights in different parts of the
world through the Charter of the United Nations, the Universal Declaration of
Human Rights and the two international covenants on human rights. At present,
a close to 100 countries have signed the two covenants on human rights,
undertaking to safeguard human rights in their home countries in accordance with
the covenants. As a matter of fact, the international community has reached a
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consensus, rendering the defending and safeguarding of human rights a common
goal to pursue in this century and over the next century.
Mr President, although the two international covenants on human rights
were brought into effect in Hong Kong as early as in 1976, the Government has
as yet taken any positive step to formulate legislation and make amendments
accordingly. Such being the case, in 1989 when the Governor announced the
formulation of the BRO, public opinion at the time generally regarded this
commitment 13 years overdue! In fact, the BRO has its deficiency in the
protection of human rights. For instance, the BRO binds only the Government
and public authorities but excludes dealings among members of the public and
under BRO, there are reservations about certain provisions of the covenants,
which are subsequently excluded from implementation.
Besides, the
Government has always dragged its heels in reviewing laws for consistency with
the BRO and worked conservatively. Therefore, in order to improve human
rights, we must keep up our efforts and remain vigilant. To improve human
rights in Hong Kong is one of our important tasks spanning this century and the
21st century.
Mr President, it is utterly regrettable that at this point in time, the Legal
Subgroup of the Preliminary Working Committee (PWC) has gone so far as to
rest on their laurels, turn the clock back and take a retrograde step by arbitrarily
reinstating some obsolete colonial laws.
First, the Subgroup holds that sections 2(3), 3 and 4 of the BRO contravene
Articles 8, 11 and 39 of the Basic Law, and suggests that the National People's
Congress (NPC) should have them repealed. Secondly, the Subgroup has
specifically opined that the amendments made by the Legislative Council to the
six ordinances to comply with the BRO, namely the Societies (Amendment)
Ordinance 1992, Television (Amendment) Ordinance 1993, Public Order
(Amendment) Ordinance 1995, the 1993 amendments of the Telecommunication
Ordinance, the 1993 amendments of the Broadcasting Authority Ordinance and
those in respect of the subsidiary legislation of the Emergency Regulations
Ordinance in 1995 are in breach of the principle of the Sino-British Joint
Declaration that the original laws of Hong Kong shall remain basically
unchanged, thus undermining the executive power and also jeopardizing the
stability of Hong Kong. The Subgroup has also suggested that the Standing
Committee of the NPC should exclude them from the laws of the Special
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157
Administrative Region (SAR) and restore the ordinances to their earlier forms
before amendments were made.
Mr President, in fact, the Subgroup has also claimed that the BRO in its
entirety as well as many other ordinances, including the New Territories Land
(Exemption) (Amendment) Ordinance 1994 and the Legislative Council
Commission Ordinance, are packed with problems. No suggestion has been
made for the time being in regard to these ordinance just because they can be left
to the SAR Government to handle. In our view, the Legal Subgroup's
suggestion is totally devoid of legal basis and has no regard for the wish and
rights of the Hong Kong people. We must express our strong opposition to it.
I have found it distressing that all the six ordinances which the Legal
Subgroup specifically earmarked for reinstatement have a bearing on the civil and
political rights and the right to gain access to information. The Subgroup's
suggestion that the NPC should reinstate these laws has aroused suspicion in the
community that the Legal Subgroup is actually calling on the Standing
Committee of the NPC to ignore the provisions of the Basic Law and directly
formulate laws for the future SAR on its won. These two points have given a
very bad message to the people of Hong Kong and have aroused an enormous
furore.
In fact, of the six ordinances earmarked for reinstatement, the Societies
Ordinance, the Emergency Regulations Ordinance and its subsidiary legislation
are originally formulated by the British-Hong Kong Government in the 1960s to
counteract the leftist activities. Now, in making such suggestion, are the Legal
Subgroup and the Chinese side thinking to control the people of Hong Kong and
clamp down on the democrats and dissidents after 1997 by laws originally
designed to contain the leftist? This is grossly ironical!
Mr President, both China and Britain have expressly stated in the Joint
Declaration that the International Covenants on Human Rights shall "remain in
force" in Hong Kong. Article 39 of the Basic Law also stipulates that the
covenants on human rights shall be "implemented through the laws of the Hong
Kong Special Administrative Region". This is precisely the very legal basis on
which BRO is formulated. Therefore, in the light of the Basic Law, the BRO
can be taken as a piece of consequential legislation formulated on explicit
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jurisprudence grounds.
Any debate on the question of supremacy is indeed unwarranted. This is
due to the difference in the perceptions of the status and the specific operation of
the BRO. In terms of legislative procedure and the formulation of law, the BRO
is, in fact, no more than a piece of ordinary legislation. The fact that it can
repeal pre-existing laws is premised on the legal principle of "the later laws being
superior to the earlier ones". Where possible, legislation made after the
enactment of the BRO must be construed in such a way as to be consistent with
the BRO and this is also in line with the basic principle of the interpretation of the
existing laws. The Letters Patent has adopted the provisions of the second
paragraph of Article 39 of the Basic Law which stipulates that any laws intended
to restrict the rights and freedoms of the people must comply with the two
covenants on human rights and this largely explains the reason why legislation
made after the enactment of BRO must be consistent with the BRO.
Given that the BRO embodies the provisions of the covenants on human
rights, it is, therefore, reinforced by the Letters Patent today and will be equally
safeguarded by the Basic Law in future to ensure that the later laws are consistent
with the BRO. Only in this sense that the BRO is deemed overriding. We
cannot simply say that the BRO is therefore running counter to the Basic Law.
In short, given that the unique status and power of the BRO are derived from the
Basic Law, the BRO cannot possibly override the Basic Law after 1997. The
Basic Law should provide an all-embracing protection on human rights. It must
also accommodate and tolerate the BRO.
Where the overall operation is concerned, while the Government has
proposed a series of amendments in law after the BRO came into operation, the
standard of the BRO has yet been fully met so far. On the whole, there are still
not many pieces of legislation ruled by the court as inconsistent with the BRO.
The legal profession generally thinks that the rulings are justified and that
reasonable improvements have been made in the protection of human rights,
entailing a progress in the development. After the BRO was brought into effect,
our legal system has been functioning in a completely normal manner.
I believe that the Government, the Legislative Council, the court and the
LEGISLATIVE COUNCIL — 15 November 1995
159
general public all agree that the BRO has been working well and has not caused
the Government or the executive branches any problems in the governance of the
territory. We do not see the public order of Hong Kong has become chaotic.
Nor do we see that the territory has become a haven for criminals to lie low. On
the contrary, it is worth noting that the restoration of laws in their earlier forms
conveys a very bad message, manifesting the intention of the Chinese side to
stifle public opinion and control the political activities of the public. This will
give rise to even more frequent instances of confrontation between the
Government and the general public in future, thus compelling the police and law
enforcing agencies to frequently engage in unnecessary conflicts with peaceful
petitioners, which is extremely detrimental to Hong Kong.
Mr President, in fact, the BRO has conferred to the court the ultimate
monitoring power over the protection of human rights.
It seeks to
counterbalance and check not only the executive, but also the legislature. It
seeks to prevent the legislature to use a transient majority vote to formulate
draconian laws to suppress the minority or even individuals. Under the BRO,
the court is empowered to make a ruling as to whether certain ordinances, policies
and acts of the Government are in breach of the BRO, thus rendering the court the
ultimate monitoring agent in the protection of human rights. Under the
circumstance, the freedoms and rights of individuals will be brought under
independent judicial protection. This is the important principle based on which
the BRO functions.
In all fairness, the BRO is a new experience to Hong Kong and many
modern countries. Through the accumulation of experiences in judicial
operation, Hong Kong can establish a culture and a jurisprudence tradition of
protecting human rights. It is our hope that the idea and a culture of respecting
human rights can be extended effectively to all sectors in the community and
become part of our lives and the social culture. In the long run, a genuinely free
and democratic country with the rule of law prevails has to build on a culture
which upholds the protection of human rights.
We are of the view that the BRO and the Basic Law are compatible and are
vitally important to the protection of human rights in Hong Kong. Now that the
suggestion of the Legal Subgroup of PWC has brought them into conflict, this has
prompted the community to cast doubt on the authority and the legality of the
Basic Law. It even gives the impression that the Basic Law is in contravention
of the two international covenants on human rights.
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In making such suggestion, the Legal Subgroup is thinking to "recolonize"
Hong Kong by restoring colonial laws which are draconian and which impinge on
human rights. This has reflected the fear of the Chinese side for the insufficient
credibility of the SAR Government and its inability to face up to public
monitoring and criticisms. Therefore, it has to emasculate the BRO to attain the
purpose of securing political control.
All in all, the BRO carries symbolic significance and constitutes an
important foundation for the development of Hong Kong to sustain. If we give
up this bottom line of a BRO and cease to defend our freedoms and rights, then
the success of Hong Kong, the prosperity of Hong Kong and our lifestyles will
vanish altogether. In future, more and more draconian laws will be restored and
Hong Kong will return to the time when it was under colonial rule several
decades ago. We will be gradually deprived of our rights. Freedom will
suffocate slowly and eventually wither completely! As a body representing the
people, the Legislative Council cannot shirk its responsibilities. I sincerely urge
Members to support my motion.
I so submit. Thank you, Mr President.
Question on the motion proposed.
PRESIDENT: Miss Christine LOH has given notice to move an amendment to
the motion. Miss LOH's amendment has been printed on the Order Paper and
circularized to Members. I propose to call on her to speak and to move her
amendment now so that Members may debate the motion and the amendment
together.
MISS CHRISTINE LOH's amendment to MR ALBERT HO's motion:
"To add after "to comply with the Bill of Rights" the following: ", to repeal
the New Territories Land (Exemption) Ordinance which has the effect of
providing all indigenous inhabitants of the New Territories to enjoy equal
inheritance rights to rural land, as well as to dissolve the Legislative
LEGISLATIVE COUNCIL — 15 November 1995
161
Council Commission"."
MISS CHRISTINE LOH: Mr President, when the Legal Subgroup of the
Preliminary Working Committee (PWC) turned its attention to human rights law,
there were ways in which it could have contributed positively to legal
development. It could have initiated real, detailed discussion about the Basic
Law itself which one would expect to be the PWC's natural area of expertise.
PWC members often assert that Chapter III of the Basic Law sets out Hong Kong
people's fundamental rights so comprehensively that any other legal protection is
unnecessary. But Chapter III, like the Bill of Rights, is phrased in general terms
so that we have no idea how it will be interpreted and applied in practice after
1997.
Had the PWC and its subgroup directed their attention to these matters, its
comments and proposals might have been welcomed. The subgroup, however,
failed to take the constructive high road. Instead it opted for a low road
characterized by relentless and strident attacks on existing human rights
protection, along with direct efforts to undermine the Bill of Rights. The
subgroup has recommended that six laws, separately amended to meet
internationally-accepted human rights standards, be restored to their pre-Bill of
Rights state.
Different sources in and close to the subgroup have offered a rather
haphazard variety of explanations for these proposals, but the most plausible
explanation can be discerned if we examine the subgroup's choice of which laws
to target among the several dozen that have to date been changed to conform with
the Bill of Rights. The six targeted laws all restrict the Government's powers to
control some aspect of political expression and behaviour, ranging from
television and radio broadcasting to public assembly and demonstration, to
private, social and political organization. That the Legal Subgroup has chosen
to attack these reforms in particular suggests that its concern is not really law but
power, specifically, the removal of any fetters on the power of the future Special
Administration Region Government should it desire to do so, to suppress
criticism and dissent.
The proposals create the impression that the subgroup is little more than a
tool serving a future regime that wants very much to reserve the right to be
heavy-handed. The subgroup's proposals have already been declared by some
Chinese officials to represent official thinking, even though the proposals have
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not yet even been endorsed by the full PWC for formal transmission to the
National People's Congress in Peking.
Unfortunately, PWC members appear to be unable to stand up to, or
disinterested in standing up to, the harsher winds that blow occasionally from the
North. It is clear, if there was ever much doubt, that the public cannot rely on
the PWC to articulate and defend Hong Kong's interests as 1997 approaches. It
is, therefore, essential that this Council expresses itself clearly and strongly on
behalf of the public as this motion does.
While I strongly support this motion, I am amending it because I believe
that it leaves certain important matters unaddressed. The motion focuses on the
subgroup's attack on the Bill of Rights itself and on the six specific laws that the
subgroup wants restored to their pre-Bill of Rights shape. These have drawn the
most public attention, but it should not be forgotten that the subgroup has at the
same time launched equally ill-conceived and regressive attacks on two other
important items of legislation. First, the subgroup has recommended that certain
parts of the New Territories Land (Exemption) Ordinance be repealed after 1997.
This Ordinance gives women in the New Territories the same rights to inherit
land as everyone else by overturning antiquated customary laws. A more
retrogressive move than the subgroup's proposed restoration of Ching Dynasty
inheritance law in the New Territories is scarcely imaginable.
Second, the subgroup has called for repeal of the entire Legislative Council
Commission Ordinance and consequent dissolution of the Commission. No
justification has been offered for this startling proposal except the bare
observation that the Commission originated from the Governor's political reform
package. The Commission is far too important to allow it to be thrown away so
casually. This Council cannot be a truly independent and effective monitor of
the Administration unless we have the equally independent administrative support
that the Commission provides. We owe it to ourselves to speak up for our
Commission. As this motion is now worded, I am afraid that the subgroup's
retrograde proposals in respect of these two important laws may slip through
today's debate without ever really coming under the spotlight.
This motion will likely represent our one definitive response to the
subgroup's proposals, and it should be complete and unambiguous. We cannot
overlook threats made against the equality of inheritance rights for which so
many people fought vigorously for last term, or against the independence of this
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163
Council itself. I am therefore moving an amendment that makes clear that this
Council also deplores the subgroup's attack on the New Territories Land
(Exemption) Ordinance and the Legislative Council Commission Ordinance.
Mr President, I urge Members to support the amendment.
Question on Miss Christine LOH's amendment proposed.
MR CHEUNG HON-CHUNG (in Cantonese): Mr President, the Legal
Subgroup of the Preliminary Working Committee has proposed recently to repeal
certain provisions of the Bill of Rights Ordinance (BORO) and to reinstate laws
amended by this Council to comply with the BORO. Its proposal has aroused
much discussion among the people of Hong Kong. Many professionals from the
legal field and some people who claim to be expert have expressed their opinions
about this proposal. They hold different and opposing views as regards the
overriding nature of the BORO and the reinstatement of the six ordinances.
As a member of the general public, I will think that I am not an expert and I
do not understand the overriding nature of the BORO or the significance of
reinstating the laws. But one thing I am sure is that the proposal of the Legal
Subgroup of the Preliminary Working Committee (PWC) has provoked a new
political conflict. Hong Kong people were confident about the transfer of
sovereignty in 1997. However, with the incessant political conflicts and
arguments in recent years, Hong Kong people have lost all their confidence.
Sino-British relations which had become better are once again strained as a result
of this row. This does not help the smooth transition of Hong Kong. However,
as human rights issues have a significant impact, it is necessary to discuss these
issues in a rational manner. It cannot help us solve the problem if we cause it to
become a political issue. It will only add to the complexity of the problem.
Mr President, if the public can enjoy better protection in terms of human
rights, it is natural that the Government's administrative power will be reduced
and those who are responsible for the enforcement of law will find themselves
bound. The overemphasis of human rights may lead to anarchy. However,
inadequate protection of human rights may lead to the emergence of an
authoritarian government. We have to get the right balance between human
rights and the Government's authority according to the situation of Hong Kong.
The balance between the two should be based on the two international covenants
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relating to human rights. The BORO should be consistent with the principles
laid down by these two covenants. Therefore, Hong Kong people should uphold
the BORO. Although ever since its implementation the BORO has caused some
changes to Hong Kong's legal system and has had an impact on the law
enforcement departments, the daily life of the general public is not much affected.
In the past hundred years or more with Hong Kong under British rule, people's
voices were being suppressed. We did not enjoy a greater measure of freedom
of speech until recently. Hong Kong people are not interested in guessing the
intention of the Hong Kong-British Government in proposing the BORO.
However, they do welcome greater protection of human rights.
Mr President, as the BORO has been implemented for a period of time, I
think it is high time to hold discussions and conduct a review of the impact it has
on society as a whole. Therefore, the Democratic Alliance for the Betterment of
Hong Kong (DAB) cannot agree to the motion moved by the Honourable Albert
HO which calls on the Government "to review immediately existing laws and
present to this Council for amendment those laws which are in breach of the Bill
of Rights ......". We should, first of all, review the BORO.
The Chinese Government states that it has reservations about the BORO
and reserves the right to repeal the same in 1997. I believe that the Chinese
Government does have the right to do this politically. However, is it really
necessary to exercise this right?
If the proposal put forward by the Legal Subgroup of the PWC is accepted
by the Chinese Government, Hong Kong people will become desperate and doubt
whether the promise of "Hong Kong people ruling Hong Kong" will realize. In
fact, our future government should not think that the BORO is in any way
frightening. What it will have to do is only to pay attention to the public's
opinion and to understand their needs. On the contrary, if a government
practises authoritarian rule, no law can ensure social stability. Ever since the
signing of the Sino-British Joint Declaration, Hong Kong people have become
increasingly aware of political issues. Hong Kong people have paid attention to
the political argument between the British and the Chinese Governments. They
have thought over it and memorized it. They know who is right and who is
wrong.
The DAB urges the Chinese Government to become the signatory of the
two international covenants relating to human rights. We hope the Chinese
LEGISLATIVE COUNCIL — 15 November 1995
165
Government will not refuse to become the signatory of these two covenants on
the grounds that the United States of America (USA) has double standards
towards human rights issues (for example, immediate repatriation of the Haiti
boat people illustrates the double standards adopted by the USA) and the British
Government refuses to allow the people of Northern Ireland to enjoy
self-determination. Also, it should not offer the excuse that China has unique
social and cultural backgrounds and so it will not sign the covenants. We
understand the position of the Chinese Government. If it really becomes one of
the signatories, it can no longer implement the one-child policy to control
population growth and the results of China's recent development will vanish as
the population grows incessantly. However, we hope that the Chinese
Government can adopt other administrative measures to control population
growth and become one of the signatories of the two covenants as soon as
possible. There is no difference between countries or races as regards human
rights. No matter what colour a person is, he, as a human being, should have the
rights that a human being should have. No government can disregard these
rights.
Mr President, we should wait for the legislature of the future government to
discuss the proposal put forward by the Legal Subgroup of the PWC and to make
the relevant decision. Only by doing this will the principle of "one country, two
systems "and" Hong Kong people ruling Hong Kong" be implemented. With
the withdrawal of the colonial government, laws which were once used to serve
the purpose of suppressing the people should be eradicated and more enlightened
legislation should be adopted instead. If things are done in a perverse way, the
government will only lose the support of the people. What is the difference
between "Hong Kong people ruling Hong Kong" and to be ruled by a colonial
government if things happen in such a way? I sincerely hope the Chinese
Government can understand that most Hong Kong people take it as an honour to
reunite with their mother country. We urge the Chinese Government to strictly
implement the principles of "one country, two systems" and "Hong Kong people
ruling Hong Kong". We are expecting not only the return of sovereignty to our
mother country but also the return of the people's confidence and support.
Mr President, these are my remarks.
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MR ALLEN LEE (in Cantonese): Mr President, the Liberal Party is in support
of the Honourable Albert HO's motion and the Honourable Miss Christine LOH's
amendment. As for the original motion, the Liberal Party considers that the
successful incorporation of the Bill of Rights as part and parcel of Hong Kong's
laws and the widespread support and recognition given to it by the public is
because its introduction conformed to the traditional pattern of legislative
enactment in Hong Kong. At that time, to meet the need of society, we
established a Bills Committee for the Bill of Rights in 1990 with the Honourable
Mrs Selina CHOW and the Honourable Ronald ARCULLI as the chairman and
vice-chairman respectively to gather opinions throughout the territory. The Bill
was then submitted to and endorsed by this Council and later officially enacted as
the law of Hong Kong. From the drafting to the examination of the Bill, all
concerned bodies and the general public put forward abundant ideas and the Bill
was finally amended and passed. The introduction of the Bill was to cater to the
needs of the Hong Kong people and this has been recognized by society and
enshrined in the law.
Mr President, to maintain the people's confidence in "Hong Kong people
ruling Hong Kong" and a high degree of autonomy, it will not do just by paying
lip service. It requires continued efforts on the part of China, Britain and Hong
Kong and all three parties must prove to the people of Hong Kong through
positive action that after 1997 the freedoms and legal system that the people have
always enjoyed will not be lightly disposed of. In general, the people of Hong
Kong may not have a deep understanding of the Bill of Rights but they do
understand that it is a basic concept built upon the two major international human
rights covenants. The people of Hong Kong have generally, in their ideology,
accepted the Bill of Rights, believing that it will safeguard human rights and have
a certain balancing effect in terms of how the territory will be administered and
governed. To repeal the Bill of Rights or reinstate the old provisions rashly will,
I can clearly say, dampen the people's confidence and will not be conducive to the
prosperity and stability of Hong Kong.
Mr President, about a year ago, Mr Ronald ARCULLI, the Honourable
James TIEN and I visited Director LU Ping in Beijing. We asked about and
explained the Legislative Council Commission Ordinance because the Secretary
General of the Legislative Council Secretariat, Mr Ricky FUNG, was very much
concerned about it at that time. Director LU gave us a very clear reply that
nothing in that respect needed to be changed. Therefore, we told Mr Ricky
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167
FUNG about that when we came back. We had also asked about the provisional
legislature and Director LU Ping answered that under the circumstance that the
political systems could not converge, it would either be the Standing Committee
of the National People's Congress (SCNPC) or the Preliminary Working
Committee (PWC) who would legislate for Hong Kong. If neither was the case,
then it would be the Chief Executive who would do so. On the other hand, as a
compromise, another option would be a provisional legislature. He indicated
that in the absence of convergence of the political systems, that would be the only
feasible option. The worst scenario would be to have the SCNPC legislate for
Hong Kong. I also quoted Article 160 of the Basic Law at that time. Under
this provision, if any laws are found to be in contravention of the Basic Law after
the establishment of the Hong Kong Special Administrative Region, they shall be
amended or ceased to have force in accordance with the procedure as prescribed
by the Basic Law. Therefore, are we to do that now? Why has the PWC made
such a suggestion? I am really baffled. If we accept the explanation of
Director LU Ping of the Hong Kong and Macao Affairs Office, then we will have
to wait till after the establishment of the Hong Kong Special Administrative
Region Government to decide whether to amend any law having regard to the
situation then prevailing.
Recently, three legal experts from China came to Hong Kong to hold a
seminar to which many NPC delegates and Hong Kong affairs advisers were
invited. We attended the seminar and listened to their explanations for one and
a half to two hours. We did not hear the legal experts point out how the Bill of
Rights actually contravened or overrode the Basic Law. They only talked about
some political factors as well as the disputes between China and Britain. We
have seen enough of the disputes between China and Britain and every time it is
us, the people of Hong Kong, who suffer the consequences.
They also talked about the Opium War but that had happened over one and
half centuries ago. Would anyone look back on what happened in China since
1949? Hence, I felt that I had to ask about this matter. Very fortunately, I was
the first one to grab the microphone to speak. I stated my disagreement with
their points and hoped that they would understand the heartfelt views of the
people of Hong Kong. What matter most are the views of the people of Hong
Kong. I want to tell the PWC members in this Council: If you do not agree with
the suggestion of the Legal Sub-group, you should reflect it to the Chinese
leadership frankly. Hong Kong people ruling Hong Kong will be no easy
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matter. The Bill of Rights is part of our law. The people of Hong Kong have
accepted this Bill and they support and uphold this Bill. You should not follow
the PWC's views just because others have agreed to the repeal or reinstatement of
the ordinances concerned. I have many friends in the PWC and I hope that they
will remember firmly that no matter what they do, they have to be fair to the
people of Hong Kong.
MR LAU CHIN-SHEK (in Cantonese): Mr President, now I rise to do my bit to
defend human rights. I know that the defence of human rights will turn into a
massive long-term struggle and this debate today has a crucial part to play.
The Bill of Rights Ordinance (BORO) must be defended because the law is
meant to protect the people, safeguard the individuals and stand up for dissidents.
It is not meant to enable the powers-that-be to control the people more easily,
bully the individuals arbitrarily and deprive the community of the freedom of
ideology and freedom of speech. Hong Kong is a conspicuous example. In the
heyday of the overbearing colonial rule, there was no BORO. It was when
decolonization began and when Hong Kong started on the process of gradually
breaking away from the colonial yoke that BORO took shape. Now, some
people have gone so far as to call for the restoration of colonial laws. What is
their intention? Are they thinking of depriving Hong Kong people of the honour
to become legitimate Chinese nationals?
It is my hope that this Council will support the Honourable Albert HO's
motion to denounce the Preliminary Working Committee (PWC), in particular its
Hong Kong members. This is a Legislative Council elected by the people and
so it must live up to the wishes of the people. It must go by integrity and put
across a message and that is, PWC must not do bad things in haughty disregard of
others.
These are my remarks. Thank you.
DR PHILIP WONG (in Cantonese): Mr President, after the suggestions of the
Preliminary Working Committee (PWC) Legal Sub-group were made public,
heated discussions among the community have been aroused. In fact, when the
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169
Government passed the Hong Kong Bill of Rights Ordinance (BORO) in 1991,
many voiced their disapproval. It is common knowledge that the Chinese
government repeatedly indicated that they did not accept it. As early as a year
before the passing of the Bill, the then Director of the Hong Kong and Macao
Affairs Office, Mr JI Pengfei, already queried why the British did not introduce it
in their own territory but had to do so in Hong Kong; and why they had not done
it earlier but had to do it when the end of their rule in Hong Kong was pending.
This is worth pondering. Since Article 2(3), 3 and 4 violate the Sino-British
Joint Declaration and the Sino-British agreements, are in breach of the Basic
Law, and will have a negative impact on the thorough implementation of the
Basic Law by the future Special Administrative Region (SAR) Government, the
PWC Legal Sub-group should of course put forward suggestions on how this is to
be handled. Their suggestion is to retain the BORO but not to adopt the three
provisions against the Joint Declaration and the Basic Law; in other words, to
repeal the part overriding the Basic Law. This suggestion has solid legal
grounds which many legal professionals have already talked about. I suggest
Members take a serious look at the article in the 1 November issue of Wen Wei
Po written by legal expert WU Jianfan.
Here I would like to talk about one point, which is, the Standing
Committee of the National People's Congress has the right and need to deal with
the BORO and other related laws. Under Article 3(3) of the Joint Declaration,
"the laws currently in force in Hong Kong will remain basically unchanged".
The laws currently in force refer to those in force at the time when the Joint
Declaration, signed on 19 December 1984, later came into effect. That the laws
currently in force remain basically unchanged is a principle which both the
Chinese and British sides are obliged to follow. It is not the obligation of the
Chinese side or the future SAR Government only. Under normal circumstances,
there is no problem with the retention, repeal, amendment and enactment of a
law. If there is indeed such necessity, a law can be amended after discussions
have been held with the Chinese side and their approval obtained. The problem
now is that, in this transitional period, the British unilaterally introduced and
implement the BORO and has accordingly made substantial alteration to the
existing laws of Hong Kong. This act has violated the above principle of the
Joint Declaration. From the point of view of international covenants, the
Chinese have the right not to recognize these substantial changes. Under Article
160 of the Basic Law, the Standing Committee of the National People's Congress
has the right to adopt the laws previously in force in Hong Kong as the laws of
the SAR and it also has the right to declare those laws to be in contravention of
the Basic Law and not to adopt them. If things are indeed according to the
desire of some, that is, before the withdrawal of the British, they can alter the
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laws of Hong Kong as much as they please and China, as the sovereign state, can
only accept them in full, will that be very astonishing?
The BORO is in many ways in contravention of the Basic Law. The
Chinese Government could have repealed the whole Ordinance altogether. And
now the Legal Sub-group only proposes not to adopt the three articles which may
jeopardize social stability but retain most parts of the Ordinance, letting the SAR
Government handle the rest of the Ordinance apart from the three provisions. I
feel that this way of handling the BORO is very restrained and showing good
sense. As for the six ordinances which have been altered significantly in
accordance with the BORO, the Standing Committee of the National People's
Congress has the right to adopt their original form "currently in force" at the time
when the Joint Declaration came into effect so as to avoid any legal vacuum and
to guarantee a smooth transition. This act suits the practical situation of Hong
Kong well and is very reasonable.
Mr President, I will not comment on the motive of today's motion. But I
want to stress one point: Section 6 of the BORO vests considerable power with a
court or tribunal which can strike down at any time any legal provisions which
the Executive Council tabled to the Legislative Council and the Legislative
Council read three times and passed. This is a major alteration to the existing
legal system which infringes upon and saps the power which is originally vested
in the legislature. Why has the Democratic Party failed to question this?
By the way, I would like to mention that two years ago when I criticized
the BORO as "the friend of the criminal" in this Council, I already pointed out
that human rights are not exclusively owned by the west and we have no need to
dance to the westerners' human rights music. If we allow an individual's rights
to expand without limit, they are bound to infringe upon others' rights which will
heighten a society's instability and the individual will finally have to eat his own
bitter fruit. I agree to the enhancement of civic education in Hong Kong and
protection and promotion of the people's basic rights. However, when some
seize upon this opportunity and attempt to make use of the BORO to jeopardize
the stability and prosperity of Hong Kong, I will not agree to that.
Mr President, if I describe the ones waving the banner of "democracy" and
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171
"human rights" as those who are slow to accomplish anything but are quick to
botch things up, I am sure most people will agree. The reason is very simple ─
they cannot communicate with the Chinese side as they fail to gain the latter's
trust. I want to ask: Of all the motions that they have moved all these years, is
there any one that can really benefit the country and the people and thus gain the
approval and praise of the Chinese? This is not a question that bears on the
presence or absence of democracy or human rights. Rather, it is an issue
regarding the national consciousness, an issue regarding the sincerity in striving
for the well-being of the Hong Kong people as well as an issue regarding whether
an objective stance and a correct way of doing things have been taken. The
people of Hong Kong should have seen very clearly that, even an apparently
routine matter, if it is for these people to strive for, the chances of success will be
lowered substantially.
Mr President, these are my remarks.
DR YEUNG SUM (in Cantonese): Mr President, during this transitional period
of 600 days or so, we have seen with our own eyes people calling a stag a horse
and distorting the facts. It is even more intolerable that some professionals have
breached their professional ethics for political advantages and made specious
judgements. These situations have occurred frequently in the Preliminary
Working Committee (PWC).
Mr President, the recent proposal made by the Legal Subgroup of the PWC
to reinstate laws which have been found to be inconsistent with the Bill of Rights
Ordinance (BORO) has provoked on outcry from the media and the public and
has, once again, aggravated the negative feelings of the people of Hong Kong
towards the PWC.
First of all, the proposal made by the Chinese Government and the Legal
Subgroup of the PWC together with the declaration of their stance borders on
irrationality and they are close to being impervious to reason. They are so
impervious to reason that their behaviour can almost be described as hysterical.
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Both the spokesman for the Chinese Government and the representative of
the Legal Subgroup of the PWC have strongly opposed the overriding status of
the BORO over the Basic Law. Although China can look at the question of the
purported supremacy of the BORO from the point of view of legal binding force
and substantive effect, I would question whether it is necessary to deny or negate
in its entirety the impact from such purported supremacy. Is it necessary to
mobilize so much manpower and resources in an all-out effort to oppose it?
From the point of view of the people of Hong Kong, it is most important
that human rights will be protected, especially after 1997. If the BORO can
better protect the human rights of the people of Hong Kong, I believe the people
of Hong Kong will support it and they will continue to support it and strongly
oppose the proposal made by the Legal Subgroup of the PWC. A few days ago,
I read an article written by Mr ZHANG Xin, an expert in Chinese law. He
pointed out that the protection of the freedom of thought provided by the BORO
is very much wider and more thorough than that provided by the Basic Law.
This view contradicts the argument of the representative of the Chinese
Government who thinks that the Basic Law has already provided complete
protection for the human rights of the people of Hong Kong.
Mr ZHANG pointed out in his article that since China puts much emphasis
on the thoughts of MAO Zedong and Marxism-Leninism, there is no provision in
the Basic Law to protect the freedom of thought. It was also pointed out in the
article that during the anti-rightist Cultural Revolution in China, many people
were convicted because of the speeches they had made and the thoughts they had
expressed. As a result, there was a vast number of casualties and the dignity and
freedom of the people were severely crushed.
Mr President, considering this particular part of history, do we think that it
is even more important for us to insist on supporting the BORO in order to
protect the human rights and freedoms of the Hong Kong people and oppose the
stance taken by the Legal Subgroup of the PWC and the representative of the
Chinese Government? Besides, as we all understand, the power to interpret the
Basic Law will eventually rest with the National People's Congress.
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173
Second, Mr President, I do not understand why the Chinese Government
and the Legal Subgroup of the PWC have to adopt such a negative attitude
towards the BORO. According to Article 39 of the Basic Law,
"The provisions of the International Covenant of Civil and Political Rights,
the International Covenant on Economic, Social and Cultural Rights and
International Labour Conventions as applied to Hong Kong shall remain in force
and shall be implemented through the laws of the Hong Kong Special
Administrative Region.
The rights and freedoms enjoyed by Hong Kong residents shall not be
restricted unless as prescribed by law. Such restrictions shall not contravene the
provisions of the preceding paragraph of this Article."
Mr President, the above provisions and the BORO simply provide that the
two international covenants covered by the Basic Law shall be implemented
through the laws of Hong Kong. Why is it such a shock to the Chinese
Government and the Legal Subgroup of the PWC? The two international
covenants have already been accepted by the Basic Law.
Do the Chinese Government and the Legal Subgroup of the PWC wish to
indicate to the people of Hong Kong that the pledge to implement the two
international covenants contained in Article 39 of the Basic Law can be wiped
away? If that is the case, they may as well clarify whether the provisions of
Article 39 of the Basic Law can be wiped away as if they were words written on a
blackboard. If so, please make it clearer. If that is the case, can be Basic Law
serve any purpose at all?
The Chinese Government gives people the impression that its policy
towards Hong Kong has been inconsistent. Why did it say that the Basic Law
provides complete protection for human rights? Why did it also say that the
BORO is a contravention of the Basic Law? These remarks are really baffling.
Mr President and Members of the Legislative Council, whatever your
political views may be, you would at least understand that the BORO is simply a
reproduction of the two international covenants which has been scrutinized and
passed by the Legislative Council. However, the Chinese Government and the
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Legal Subgroup of the PWC have openly and repeatedly pointed out that BORO
is a contravention of the Basic Law. How else would one describe it if it is not a
distortion of facts and calling a stag a horse?
Finally, Mr President, we should not have too much fantasies about the
future. To apply the principle of "one country, two systems" is not easy at all,
and it seems that it is becoming even more difficult now because the Chinese
Government and its appointed followers have often acted according to their own
ideas contrary to the wishes of the people of Hong Kong. Members of the PWC
who lack representativeness and acceptability will certainly be glad that they may
become Members of the Preparatory Committee. However, I believe Members
seated here know only too well what influence the PWC members will have on
Hong Kong.
Mr President, the principle of "one country, two systems" can only be
applied well in the future if it is formulated on the basis of democracy and the
rule of law. To maintain and develop the more reasonable systems of Hong
Kong, to protect the human rights and freedoms of the people of Hong Kong and
to show China a good example in the future, we have to uphold our principles and
pool our efforts in fighting for human rights and democracy.
Mr President, with these remarks, I support the Honourable Albert HO's
motion.
MR DAVID CHU: Mr President, our civil liberties were well protected before
the Bill of Rights as they are today. They will certainly be protected in the SAR,
the Basic Law of which commits us to United Nation's accepted standards of
human rights. Guarantees for our freedoms are also insured in a clutch of Basic
Law clauses, among them Articles 28, 39 and 87.
Our rights will not be endangered simply because we will go from British
rule to rule by Hong Kong people. We will indeed enjoy rights never before
available to us ─ the right to be chosen for the highest office now reserved for a
Briton, the right to be tried in the Chinese language, the right to hold our heads up
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175
high because ours will no longer be a colony.
So, Mr President, the current controversy is about politics and fear, a fear
that is being fanned by some who hope to gain from a nervous society and from
divisions within that society.
We have many practical problems to solve and a lot of work to do. So let
us not blow things out of proportion.
We know the history leading up to the Bill of Rights, a Bill which even the
United Kingdom has not adopted. Britain in its haste to deliver the Bill, at a
time when it had imposed diplomatic sanctions on China, also ignored the Joint
Declaration. Annex II, paragraph 5, states, and I quote:
"The two Governments have agreed that in the second half of the period
between the establishment of the Joint Liaison Group and 1 July 1997 there
will be need for closer cooperation which will therefore be intensified
during that period. "
May I humbly remind Members that the British side of the JLG had
consistently refused to discuss the Bill with China even though it was sure to have
an impact on the legal system of the SAR. China, therefore, will not take the
charge as fait accompli.
Defenders of the Bill say it has been running smoothly and so must be left
intact. The evidence, however, suggests just the opposite. The Bill has already
caused disruptions to the law and afforded a shield for those who break the law.
The Bill has also fostered excessive leniency to the point of indulgence for
criminals in the courts. The Judiciary has in the name of the Bill sided with
Vietnamese migrants in their suits against the Government and thus delayed the
repatriation of these people. The Bill has induced one judge to rule against a key
Independent Commission Against Corruption power to compel a civil servant
who lives beyond his means to prove that his unexplained wealth is legally
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obtained.
The Attorney General's Chambers now hesitates to prosecute some cases
because of the four provisions in the 1991 Bill. Customs authority filed 206
drug trafficking charges in 1991 but only 70 in the very next year. Also in 1991,
the police charged on the average between 300 to 400 drug dealers a month but
only 100 a month one year later. What happened? Does that mean fewer people
are taking illegal drugs? No. The Governor has said recently addiction is on
the rise and earlier this year held a crisis summit on this issue.
The Immigration Department also may not stop and detain a tax dodger
upon exit from Hong Kong. The heritage of indigenous people in the New
Territories has been assaulted in violation of the Joint Declaration and the Basic
Law which endorse rural traditions.
Today the legal profession and the Judiciary have different opinions on the
Bill. Should we not be trying dialogue instead of monologue and working with
rather than fighting against China? We still have time, more than a year, to
work things out about the Bill. I suggest that the legal community, the future
Preparatory Committee, and the two sovereign powers through the JLG resolve
the contentions in an atmosphere of mutual respect and with the interests of the
Hong Kong people in mind. As long as our goal is the same, we could reach a
consensus.
We are today at another crucial junction, 16 months after the previous
Legislative Council passed, by one vote, the "reform" package. Unless this
Council backs away from more confrontation, such as that implied in today's
motion, it may also halt the other train, the legal through train.
Mr President, I was in Beijing for a week when the orchestrated hysteria
directed at China and the PWC over the Bill was at its worst. Believe me, the
threats against the future sovereign and the war cries for the British Hong Kong
Government to amend even more laws regardless are counter-productive. They
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177
can only bring the opposite results.
We legislators have to face the reality that the future sovereign is China
which has the constitutional authority to ensure that the Basic Law is observed.
Let me emphasize that Councilors had miscalculated in June 1994, and let me
plead with them now ─ not to miscalculate again in November 1995. Thank
you.
MISS MARGARET NG: Mr President, better protection of human rights is an
acknowledged aim of the whole world, and the clear aspiration of the people of
Hong Kong. The proposals of the Legal Subgroup of the PWC are therefore to
be deplored, in that they attempt to weaken the present framework of human
rights protection in Hong Kong, and moreover, raise serious doubts about China's
attitude towards human rights protection after 1997.
This is not all. The way in which these proposals are meant to be
implemented is itself extremely worrying. It has been suggested that the
Standing Committee of the National People's Congress is empowered under
Article 160 of the Basic Law not only to repeal certain sections of the Bill of
Rights Ordinance, but also reinstate laws amended by this Council.
This is hitherto unsuspected use of Article 160. The autonomy of the law
and legal system of the Hong Kong SAR is protected under the Basic Law, see
particularly Articles 11, 17, 18 and 73 subparagraph 1. Article 160 assures us,
quite clearly, that "the laws previously in force in Hong Kong" shall continue to
be in force after 1997, except for those which are declared by the Standing
Committee of the NPC to be in contravention of the Basic Law. So the Standing
Committee is empowered only to repeal; and moreover, it can repeal a Hong
Kong law on one ground only: that it contravenes the Basic Law.
In other words, it has no power to repeal any Hong Kong law on any other
ground ─ for example, that it "weakens the power of the executive", and it has
no power whatsoever to reinstate a law which has been amended. To do so
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requires re-enactment of the unamended law, and only the Hong Kong legislature
has the power to do so under the Basic Law.
In this respect, Article 17 is instructive. There, it is provided that the
Hong Kong SAR shall be vested with legislative power. If a law enacted by the
Hong Kong legislature is considered by the Standing Committee of the NPC not
to be in conformity with the Basic Law, the Standing Committee "may return the
law in question but shall not amend it."
It is argued on behalf of the Chinese authorities that, under Article 160, the
Standing Committee of the NPC can both repeal a Hong Kong law and to
re-instate another in its place, in order to "avoid a legal vacuum". If Article 160
were to be given this interpretation, then some very serious implications would
follow for the law and legal system in Hong Kong.
Once the precedent is set, that a Hong Kong law can be repealed on vague
political grounds, for example, that it was passed as a result of a British plot, or
that it represented too great a change to the laws of Hong Kong, then no law is
immune from repeal by the NPC. This, coupled with the power to choose to
re-instate any law already amended or repealed by the Hong Kong legislature,
would mean that the effective law-making body for the SAR is the Standing
Committee of the NPC, not the Hong Kong legislature.
In other words, the autonomy of the Hong Kong legislature will be
completely undermined. Moreover, it would mean an executive body in the
Central People's Government will legislate for Hong Kong as and when it wishes.
Since the criterion for repeal and reinstatement can be political rather than legal,
it would also mean that what is, or is not, Hong Kong law after 1997 will be
totally uncertain. This will, without doubt, deal a terrific blow to Hong Kong's
stability which is founded on the certainty of its laws and its legal system.
The apparent arbitrary and ad hoc manner in which Article 160 is given
this interpretation also gives cause for the deepest concern. There is no serious
attempt to justify such an interpretation, which is fundamentally contrary to the
whole spirit and purpose of the Basic Law, apart from the vague reference to
"legal vacuum". In any event, any "legal vacuum" can be dealt with by the SAR
legislature.
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179
The aim of such an interpretation is not in doubt. It has been stated that
the matter is treated as a political contest between China and Britain, and the aim
is to stop the British administration from "unilaterally making extensive
amendment to the present laws of Hong Kong". Unfortunately, it seems what
counts as "extensive amendment" is unilaterally decided by China.
Thus, the proposals of the Legal Subgroup aims at interfering with the
Hong Kong legislature and the legislative process now, even before 1997, and the
protection of human rights is remorselessly sacrificed in that exercise.
Mr President, it is difficult to imagine a more serious blow to the
confidence of the people of Hong Kong so very close to the date of the transfer of
sovereignty. I would therefore most strongly oppose and deplore these proposals
of the Legal Subgroup, and urge the Chinese authorities to re-consider their
position given the implications I have outlined above.
Thank you.
MR PAUL CHENG: Mr President, which of us here today is not for human
rights? No-one, I am sure. Human rights is a subject we all feel very strongly
about. Therefore, the very name "Bill of Rights" is guaranteed to stir emotions
and create a highly-charged atmosphere, which, unfortunately can hinder rational
debate, and emotions have certainly been running high in recent weeks.
It is particularly unfortunate that, just as we were seeing signs of improved
relations between Britain and China, another disagreement flares up over
different interpretations of the Bill of Rights. There are even inconsistencies
and disagreements amongst members of our own legal profession.
The crux of the current debate seems to be more about legal technicalities
regarding the relative supremacy of the Bill of Rights vis-a-vis the Basic Law,
and whether or not certain legislation will make Hong Kong less governable after
the 1997 transition.
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Of course, the Bill of Rights does carry with it a fair amount of political
baggage. China objected to the Bill's enactment, and vowed to repeal the entire
Ordinance come 1 July 1997.
There are those of us who have argued that, in the light of China's past
stance on the Bill of Rights, for the Ordinance to survive at all through the
transition would be a victory for moderation and common sense.
The main focus of attention now, however, seems to be on what might not
be included in the Bill of Rights after 1997. Yet we should not lose sight of the
fact that, if the proposals referred to in today's motion are accepted by the
Chinese, Hong Kong will still have a Bill of Rights after the transition.
And then there is the Basic Law, our framework for the future, a document
which guarantees Hong Kong people the rights and freedom to which they have
all been accustomed. I feel we should start to have rather more faith in this.
Unlike some of my honourable colleagues here today, I do not have a legal
background, so I shall leave the debate on the technical legal points to them.
On top of which, the Chief Justice has said he will shortly be submitting his
views on the issue to the Chief Secretary. I trust his report will clarify matters in
a rational and balanced way for the people of Hong Kong, and also for the
broader international community, who will doubtless be following developments
with interest and concern.
Indeed, what must those watching from the sidelines be thinking of us at
this moment in time ─ the international community, the multinational
corporation, the potential investors? I am sure those of our regional neighbours
hoping to benefit from any loss of international confidence in Hong Kong must
be rubbing their hands in gleeful anticipation.
I must again appeal to all sides involved in Hong Kong's transition to keep
in mind the bigger picture. International perceptions of Hong Kong have a
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181
major impact on our economic well-being, our prosperity and, ultimately, our
stability.
As I have said before in this Council, now is the time for as much certainty
as possible, and as little change; the time for rational debate, not emotional
outbursts.
Human rights is an issue of absolutely fundamental importance to us all.
Like all Hong Kong people, I want to see my rights and those of my fellow
citizens protected, but I am rather concerned with the way some of my
honourable colleagues believe we should go about this. I do not agree with the
"Let's change as much as possible before China takes over" approach. That will
not make for a smooth and stable transition.
Yet the second part of the motion is exactly that type of approach, calling
for legislation to be amendment or introduced with almost indecent haste.
Therefore, Mr President, I cannot support either the motion or the
amendment.
MRS SELINA CHOW (in Cantonese): Mr President, the proposal by the Legal
Subgroup of the Preliminary Working Committee (PWC) to reinstate after 1997
six ordinances which have been amended to comply with the Bill of Rights has
aroused excessive reaction in society.
It is obvious that the response of the community was not expected by the
Legal Subgroup. They thought that it was already a very mild proposal not to
repeal the Bill of Rights. However, it has never occurred to them that the Hong
Kong people are so insatiable and even regard the PWC as nothing. As a result,
the mud-slinging has escalated into a political struggle. The pro and anti camps
are pitted against each other in a struggle that is getting fiercer and fiercer. In
these few days, with the disclosure of the "Zhang-Yang private conversation
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incident", the mass media are having a field day.
I believe that no one will object that the Legal Subgroup of the PWC has
the absolute right and obligation to make proposals. During the earlier public
consultation and discussion of the Bill of Rights, the Chinese side already, from
time to time, stated that it retained the right to review the Bill of Rights to make
sure that it was in line with the Basic Law. The PWC is now only fulfilling the
intention of the Chinese side then. No wonder the Chinese side, knowing that it
has a good case, is so bold and assured in respect of this proposal of
reinstatement. It even regards the voices of opposition as coming from those
who are bent on waging a struggle. The Hong Kong people are indeed
unfortunate enough to be misunderstood.
As the convenor of the ad hoc group on the White Bill on the Bill of Rights
and the Bill of Rights Bill years ago, I have to request the Chinese leaders, when
considering the proposal of the Legal Subgroup, to get to understand thoroughly
how the Legislative Council exhaustively deliberated and amended the Bill then
in order to make sure that the Bill of Rights eventually passed would not in any
way override the status of the Basic Law. This viewpoint was also recognized
by not a few present PWC members when they, as Legislative Council Members
at that time, participated in the deliberation work and the Second Reading Debate
of the Bill. This is also the view expressed recently by a few respected legal
professionals, including Mr Johannes CHAN and Miss Elsie LEUNG, as well as
Dr J, the expert on human rights.
There are some comments to the effect that the Bill of Rights will weaken
the power of the Government and threaten the stability of Hong Kong. This
worry actually aroused much public concern during the examination of the Bill.
Therefore, the ad hoc group in charge took great pains in discussing the Bill
exhaustively in order to strike a balance between human rights protection and
effective governance. The amended Bill was passed in the Legislative Council
with Members' full support. And since the Bill of Rights Ordinance came into
effect, there has not been any social disturbance or unrest. This proves that the
decision of this Council at that time was right.
In a free and open society, nothing is absolute. Opinions are bound to
differ. And the Bill of Rights is no exception. However, I hope that the
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183
leaders in Beijing can see the truth behind this incident. The truth is: the fear of
1997 is still existent among the Hong Kong people and the Bill of Rights is just
like a safety blanket. Now that there is strident talk from people in authority that
this safety blanket is not even useless but harmful and should be taken away, how
is it possible that we would not react strongly? What we do not understand is
that since China has already undertaken in Article 39 of the Basic Law that the
International Covenant on Civil and Political Rights be implemented in Hong
Kong, and as the Bill of Rights is totally in line with the International Covenant,
why should the Chinese side be so mean? What baffles the Hong Kong people
even more is that the Chinese, Hong Kong and British sides insisted respectively
that the row is not directed against the Hong Kong people. However, the fact is
that the Bill of Rights was born in Hong Kong, has gone through comprehensive
public discussion and is supported by the Hong Kong people. The Hong Kong
people will definitely not be convinced and prevailed upon to abandon the Bill
simply by a couple of arguments. The argumentation has really disappointed us
in terms of our perception of the Chinese side's attitude. And the attitude as
perceived is that the Chinese side takes things personal and lacks objectively and
magnanimity.
Mr President, there are 594 days before Hong Kong will revert to China.
Is it possible that all those Hong Kong people who object to the proposal of the
Legal Subgroup, including those who love the country and love Hong Kong, have
set themselves against China and participated in an anti-China conspiracy? This
is absolutely not the fact. We are only disappointed with the PWC which is
unable to understand and represent our thoughts and sentiments. Now we can
only hope that Beijing can really accept Hong Kong people's demand by not
regarding those holding different views from the Legal Subgroup as traitors.
We hope that Beijing will accept the conclusion reached by the Hong Kong
people through the Legislative Council's wide consultation, respect the kind of
freedom most treasured by the Hong Kong people, abandon the patriarchal
mentality, and trust that we have the determination and the ability to provide the
most favourable arrangement for Hong Kong. The way the Chinese side deals
with the Bill of Rights crisis is relevant not just to this particular ordinance or the
related ordinances, it also reflects the stance of the Chinese side towards this
Council, the Hong Kong Government and the Hong Kong people. If only the
Chinese side can let the future legislature and the Special Administrative Region
Government deal with the incident on a logical, reasonable and legal basis as well
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184
as in accordance with social interests and needs, I believe that the Hong Kong
people will adopt a changed view towards this incident and will pay tribute to
China.
Mr President, up till now, the Bill of Rights row has already dampened
considerably the Hong Kong people's confidence in their future. If it goes on
like this, what the Chinese side will take back will not be the present society
which derives its dynamism from freedom and openness, but a society with an
atmosphere of absolute obedience, hypocrisy and dullness. This is exactly what
the enemies of China want to see. The leading characters of the tragedy will be
the Hong Kong people, while the big loser will, however, be China.
With these remarks, I support the motion.
MR NGAI SHIU-KIT (in Cantonese): Mr President, today, when there are only
594 days left in the run-up to Hong Kong becoming a Special Administrative
Region (SAR) of China, we need a smooth transition rather than erratic
dissension. China and Britain signed the Sino-British Joint Declaration in 1984.
In accordance with the basic content of the Joint Declaration and with a view to
honouring the pledge of "one country two systems with Hong Kong people ruling
Hong Kong", the Chinese Government formulated the constitution of the SAR,
namely the Basic Law, which contains three major magic tools:
(1)
The capitalistic system in Hong Kong will continue.
(2)
The way of living of the Hong Kong people will be preserved.
(3)
The common law, which is consistently well-tried, will continue on
the premise that the laws in force at the time remains unchanged
basically.
There have been great changes to the original laws of Hong Kong since
1991 when the Bill of Rights Ordinance (BORO) was enacted in Hong Kong. It
is because the BORO empowers the judges to strike down or amend drastically
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185
any existing piece of legislation which they consider to be in contravention of the
Bill of Rights.
The Hong Kong Government has amended 47 ordinances and newly
enacted 10 ordinances since the enactment of the BORO in 1991. Another three
ordinances will also be enacted this legislative year. Moreover, several tens of
ordinances have been struck down by the judges in the 230-odd hearings in which
the BORO was invoked. Should things go on this way, will the legal system of
Hong Kong not be "riddled with holes and sores"?
Some laws, which were originally compatible with the Basic Law,
nevertheless became inconsistent with the Basic Law in principle after
amendments were made. While Hong Kong is an international financial city, it
should not be a centre for overseas political activities. The Societies Ordinance,
which was amended to tie in with the BORO, has removed limitations on political
activities carried out by overseas political organizations in Hong Kong and on the
connection between local societies and overseas political organizations. This
has virtually turned Hong Kong into an open international battlefield for political
wrangles, which is disastrous to the stability of society. Another example is the
amended Public Order Ordinance which provides that prior notification, rather
than prior application and approval, is required for processions to be launched
and which limits the powers of the police in dealing with public meetings.
Besides, tax dodgers are able to leave Hong Kong under the protection of the Bill
of Rights. The Dangerous Drugs Ordinance is stripped of the power to fight
drug traffickers. The Drug Trafficking (Recovery of Proceeds) Ordinance fails
to confiscate effectively the property of drug traffickers, hence making Hong
Kong a money-laundering paradise for international drug traffickers. And
under the Police Force Ordinance, the power of arrest exercisable by police
officers is also limited, thus undermining the competence of the police in
maintaining law and order. The overriding power of the BORO has been
degraded to become "a protection umbrella for criminals". Such being the case,
the Bill of Rights is unable to attain the original objective of safeguarding the
rights of the people. Is our legal system, which has always been running well,
not being trampled on in its entirety? This is not something that members of the
public wish to see. The industrial and commercial sector is even worried that
social instability will impact on society, in which case the overall interests of
society will be jeopardized.
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Honourable Members, I believe that no one in the world would oppose the
protection of human rights. Yet, we cannot let some people do evil in the name
of "human rights". Again, the Preliminary Working Committee (PWC) has not
raised any objection to the Bill of Rights. The PWC only takes exception to
changing the original laws drastically with the use of the BORO, which will give
rise to social chaos and anxieties. As a matter of fact, as some Members have
mentioned earlier, Article 39 of the Basic Law has clearly provided for the
protection of human rights for subsequent implementation by the future SAR.
Mr President, some High Court judges have pointed out that the Bill of
Rights has overriding power over the original laws and this can be destructive to
the legal system of Hong Kong. Some High Court judges are of the view that
the BORO will have enormous adverse effects on criminal and civil proceedings
and that it will constitute a primary attack on the administration of justice,
jurisprudence, procedures and law enforcement agencies.
Under the
circumstance, the powers of these agencies in maintaining law and order will be
undermined indirectly. Even earlier, a judge of the District Court described the
BORO as "a can of worms ordinance" which means that the BORO is like
scattering tens of thousands of worms over the legal system, continuously eating
away the original statute books. Are these honest remarks made by experts not
convincing enough to command our vigilance?
What is more, Lord WOOLF, a Law Lord of the Privy Council of Britain,
has sincerely made these remarks: "While the Hong Kong Judiciary should be
zealous in upholding an individual's rights under the Bill, it is also necessary to
ensure that disputes as to the effect of the Bill are not allowed to get out of hand.
...... If this is not done, the Bill will become a source of injustice rather than
justice and it will be debased in the eyes of the public." Mr President, could it
be that it is not worthwhile to draw on these honest words that legal professionals
said on various occasions?
The above explains why there is only one or two countries, of the many
signatories of the International Covenant on Human Rights, which have enacted
an independent code or set of legislation on human rights while the others,
particularly countries which have adopted the common law system, generally
implement legislation on human rights through the constitution. It is also
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187
because of this reason that Britain does not have an independent code on human
rights. Then why is this to be tested just in Hong Kong in only a few years'
time?
What I oppose is the use of the Bill of Rights by some people as the
weapon to effect drastic changes to legislation.
With these remarks, I oppose the motion and the amendment.
MR MARTIN LEE (in Cantonese): Mr President, in the face of the imminent
transfer of sovereignty in 1997, the colonization of Hong Kong will soon become
history. At this critical point in time, it is my greatest wish that Hong Kong will
be blessed will a good legal system, which will continue beyond 1997. What the
people in Hong Kong treasure most is the existing right to enjoy legal protection
because a good and independent legal system is the cornerstone to safeguard
freedom and human rights of the citizens.
To maintain judicial independence in Hong Kong, a very important
tradition must be upheld ─ that is, judicial officers should refrain from making
known their stance on controversial political issues. For once they are parted
from the protection of the judicial system, they will be subject to criticism by the
public and public opinions, no matter what stance they will take, thereby affecting
the independence and the impartiality of judicial officers.
Chief Justice, Sir T L YANG, revealed in private his views on the Bill of
Rights Ordinance (BORO) to the Deputy Director of the New China News
Agency. On 13 November, Wen Wei Po reported that another Justice of Appeal,
Mr Justice LIU criticized that the BORO had adverse effects on both civil and
criminal litigations. He also stated that Lord Goff of the Judicial Committee of
the Privy Council has privately expressed that the Hong Kong BORO has had
contraventions with the Basic Law.
As for the effect of the BORO on Hong Kong, it is inevitable that its
introduction will have impact to a certain extent on the legal system in Hong
Kong. However, impact as such will arise sooner or later because even if the
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BORO were not passed in 1991, in accordance with Article 39 of the Basic Law,
the Hong Kong Special Administrative Region would have to implement the two
International Covenants through legislations. As a matter of fact, subsequent to
the passage of the BORO, there are about 50 law cases on an average in relation
to this Bill annually. According to a survey, the total number of court cases in
1992, 1993 and 1994 are 609 188, 661 946 and 690 305 respectively, and among
them, 76, 56 and 43 respectively are related to the BORO, contributing to a
percentage of 0.0125, 0.0085 and 0.006 respectively. These figures demonstrate
that the Hong Kong BORO has not been abused in any way, and rather, it has
even protected the human rights of the citizens. The legal profession, Judiciary
and the Legal Department do not think the BORO will bring about any adverse
effect on Hong Kong either. Hence, I would like to ask my colleagues ─ what
are we afraid of?
Concerning the report on the quote made by Mr Justice LIU of the words of
Lord Goff, I have specifically written to Lord Goff to confirm the case. In his
reply, he said, "it is simply inconceivable that I have expressed this kind of idea."
The present "ZHANG YANG incident" has exposed another important
issue, which is, what is the attitude that senior government officials should adopt
when they meet the Chinese officials? I am convinced that they being public
officers would understand that they have a responsibility towards the people of
Hong Kong and those of China. If they only tell the Chinese officials the things
which they would like to hear, and do not make use of the chance to speak the
truth and express public opinions, they will have failed in being accountable to
the compatriots in Hong Kong and China.
We can see the spread of such sycophancy among high ranking
government officials towards their Chinese counterparts. In view of 1997, If
senior government officials, confronted with the issue of 1997, are always
engaged in making assessments as to whether or not they can make a smooth
transition, how then can they be expected to rise in protection of the interests of
Hong Kong?
There is a saying in the Bible that, "One man cannot serve two masters."
If government officials cannot do their job well, how can they convince
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189
their future master that they will be able to make a better performance then?
If the government officials cannot show their loyalty to their present
master, how can they convince their future master that they will pledge their
loyalty to him then?
To resolve this knot of conscience, the only way is to consider neither the
British nor the Chinese Government as their master, and instead, take the people
of Hong Kong as their master and show loyalty to the people of Hong Kong. It
is only by doing so then we will not suffer from "dissociation of personality" or
"schizophrenia".
Mr President, for the past few years, I have tried my best to prevent China
from intervening with the spirit of legalism in Hong Kong and have worked
strenuously to maintain the independence of the judiciary in Hong Kong.
Ironically, starting from last Sunday, it was first disclosed that Chief
Justice, Sir T L YANG, mentioned to a Chinese official in private about his attack
on the BORO. On the following Monday, Wen Wei Po reported that Mr Justice
LIU criticized the BORO. Lastly, on Tuesday, the Chief Secretary requested
Chief Justice, Sir T L YANG, to make a submission. For three days, they made
up a nightmare to the judicial circle in Hong Kong, one after another, the
incidents have shattered the public's confidence on our judicial independence.
Why do our Government and the Judiciary have to ruin the long standing
independence of the judiciary with their own hands? Once this long standing
faith is shattered, what else can we rely on to maintain our confidence in the legal
system?
Mr President, despite the above, most of the judicial officers in Hong Kong
still are impartial and just. They will adhere closely to the tradition of the
judicial officers and refrain from making known their stance on controversial
political issues. I would like to call upon the legal profession, every political
party, every Member to come out and to prove, in a concerted effort, our will to
protect human rights and freedom. Meanwhile, it is hoped that views of this
Council could be clearly stated by way of this debate, which hopefully can give
fortify the morale of the Judiciary, so that they can be encouraged to try their best
to stand in defence of judicial independence. The Judiciary is our hope to
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safeguard human rights and freedom because the public has great expectation on
them and will certainly lend them their support.
Lastly, I hope the Chinese Government can listen to the voices of this
Council and the people in Hong Kong, and reject the proposal of the legal
sub-group of the Preliminary Working Committee to castrate the Hong Kong
BORO.
With these remarks, I support the motion and the amendment.
MR LAU WONG-FAT (in Cantonese): Mr President, when the Hong
Kong-British Government unilaterally enacted the Bill of Rights Ordinance
(BORO) in Hong Kong in 1991 in defiance of the position that the Chinese side
repeatedly elucidated at the time, the Chinese Government explicitly stated its
strong objection and disapproval, pointing out that the BORO was inconsistent
with the Joint Declaration and the Basic Law. On 7 June 1991 the Ministry of
Foreign Affairs even specifically issued a declaration in which it was stressed that
China reserved the right to scrutinize the existing laws of Hong Kong, including
the BORO, in accordance with the relevant provisions of the Basic Law after
1997. Therefore, we should be psychologically well prepared as regards the fate
of the BORO. This is similar to the case of the constitutional reform where the
Hong Kong-British Government, without reaching an agreement with the Chinese
side, unilaterally came up with proposals concerning the political system, which, I
believe, does not stand much chance of straddling 1997.
The proposals that the Legal Subgroup of the Preliminary Working
Committee (PWC) announced recently are, in fact, not shocking at all.
Speaking from an objective point of view, the proposals of the Subgroup are
practical and comparatively restrained. I have to point out that the Subgroup is
not asking for the repeal of the BORO. All it is suggesting is the exclusion of
sections 2(3), 3 and 4 from the laws of the Special Administrative Region (SAR)
Government because these provisions are contrary to the Joint Declaration and
the Basic Law. Besides, the Subgroup also proposed that laws which had
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191
undergone significant changes should not be adopted as the laws of the SAR after
1997 and, instead, the original versions of these laws before amendments were
made are to be reinstated. This proposal is also made to meet the actual needs.
Some people rashly raised objections as soon as they heard of the proposals
of the Legal Subgroup, completely ignoring the underlying reasons and
subsequent effects of these proposals as well as the explanation given by the
Subgroup and even from other authoritative sources. This is not helping the
situation at all. It is natural that people with different backgrounds and different
political persuasion will hold different views but, anyhow, the majority of people
will find certain objective criterion acceptable. In a long article published days
ago, a legal expert, Mr WU Jianfan gave a detailed account of the background of
this issue and made, with substantial corroboration, an in-depth analysis of
BORO provisions that specifically contradict the Joint Declaration and the Basic
Law. The arguments are well-founded and profoundly convincing. There have
been controversies over many aspects of the BORO and I will speak on two such
aspects due to the time constraint.
Mr President, it is difficult to refute the argument that the BORO is
inconsistent with the Joint Declaration because, under the Joint Declaration, it is
stipulated that the existing laws of Hong Kong will remain basically unchanged
and that the provisions of the two covenants on human rights as applied to Hong
Kong will also remain in force. That is to say, the two covenants on human
rights will be implemented in Hong Kong continuously through the existing laws
in such a way as they have been implemented in the past. However, with the
enactment of the BORO, the provisions of the covenants are directly extended to
Hong Kong and become part of the laws of Hong Kong. Moreover, the Hong
Kong Government has made drastic changes to the existing laws of Hong Kong
on the basis of the BORO since its enactment. This is obviously in
contravention of the stipulation in the Joint Declaration about keeping the
existing laws of Hong Kong basically unchanged.
It is also difficult to deny the fact that the BORO has overriding status.
Over the past few years, Hong Kong has consistently amended numerous pieces
of legislation to tie in with the BORO. They include the New Territories
(Exemption) Ordinance, which is strong evidence to substantiate the present
argument. Besides, the report on human rights in Hong Kong that Britain
submitted to the United Nations in 1995 also admitted that the overriding status
of the BORO will affect the implementation of the Basic Law. If this problem
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remains unsolved, it will be detrimental to the governance of Hong Kong as well
as the maintenance of the territory's stability and prosperity.
Mr President, some days ago a newspaper quoted the words of an
experienced High Court judge that the hasty implementation of the BORO in
Hong Kong has had a profound impact on the conduct of criminal and civil
proceedings and constituted a primary attack on the administration of justice,
jurisprudence and the law enforcement agencies, in which case the powers of
these agencies in preserving law and order will be indirectly undermined.
Mr President, experienced High Court judges in Hong Kong in general
rarely air their views and any comment they made is naturally invaluable advice.
It is most worthwhile that we draw on their advice to enlighten ourselves.
With these remarks, I oppose the motion and the amendment.
MR ANTHONY CHEUNG (in Cantonese): Mr President, with regard to the
motion moved by the Honourable Albert HO today, I would like to talk about
three basic questions related to the Bill of Rights.
(1) Is the Hong Kong Bill of Rights Ordinance (HKBORO)enacted in Hong Kong
in 1991 directed against the Chinese Government?
The Chinese side always thinks that the Hong Kong British Government's
introduction of the Bill of Rights is directed against China, and is thus determined
to have it overturned. This conspiracy argument is based on the various
measures or the three magic weapons introduced by both the British Government
and the Hong Kong British Government after the "June 4th" Incident in 1989 in
order to save the teetering confidence of the Hong Kong people (including the
proposal to expedite democratization of the political system, the right of abode in
the United Kingdom and the Bill of Rights).
Whether the British Government ever adjusted, and if so, the way it
adjusted, its policy towards the Chinese Government after the "June 4th" Incident
is immaterial as far as the Bill of Rights issue is concerned. No matter what the
British Government might have thought, it is very true that quite many Hong
Kong people are really disappointed with and have lost confidence in the Chinese
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193
Government after the "June 4th" Incident. They are really worried that after
China resumes sovereignty over Hong Kong in 1997, it will restrict and interfere
in the lifestyles and freedoms now enjoyed by the Hong Kong people.
Therefore, any measure which could serve to restrain any outside force from
interfering in the rights and freedoms of the Hong Kong people would bear
special urgency during the confidence crisis at that time. From that point of
view, the Bill of Rights is really directed against the Chinese Government in its
political aspect. But this is not unusual. At the time when the Chinese
Government expressed its intention to resume sovereignty over Hong Kong in
1997, was it not the case that quite a number of Hong Kong people were worried
lest the Communist Party would transfer its system and administrative policies in
the Mainland to Hong Kong? It was not until the Chinese side announced that
the policies of one country, two systems and Hong Kong people ruling Hong
Kong be implemented in Hong Kong, and had these policies enshrined in the
Sino-British Joint Declaration that the Hong Kong people could temporarily set
their heart at ease. From the point of view of the Hong Kong people, one
country, two systems, the Sino-British Joint Declaration and so on are all directed
against the Chinese Government. This is an unavoidable fact during the process
of Hong Kong's reversion to Chinese rule.
The Chinese Government should show respect for history and be pragmatic
when it deals with the Bill of Rights issue. That the British did not introduce the
two international covenants on human rights as part of Hong Kong's domestic law
or the British Government has never introduced human rights legislation in the
United Kingdom does not constitute any reason for overturning human rights
legislation in Hong Kong. Similarly, although China is not a signatory of the
two international covenants at present, this should not be a reason for not
allowing human rights legislation to be introduced in Hong Kong.
(2)
The Bill of Rights is directed against all forms of authoritarian rule
Mr President, in fact, not only does the Bill of Rights address the Hong
Kong people's worries with regard to the future. Leaving aside the specific
political circumstances which gave rise to the HKBORO, a Bill of Rights is also
very much needed in a stable and democratic society. Its purpose is to provide
the most basic protection to some of the rights and freedoms which are regarded
as "basic human rights" so that they will not be encroached upon by momentary
vagaries of public sentiments or prejudices. The Bill of Rights is directed
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against all forms of authoritarian rule, including the privileges enjoyed by "the
majority" or "the groups in power". Hong Kong has long been a colony. A
substantial number of laws were to serve the authoritarian rule of the colonial
government in the past. With the reversion of Hong Kong to China in 1997,
Hong Kong people ruling Hong Kong should mark the end of colonial
authoritarian rule. Therefore, the enactment of the Bill of Rights and the
corresponding amendments to other domestic laws can rectify not only various
authoritarian and outdated laws, it can also help promote a new people-oriented
political order.
(3)
The Bill of Rights is not in violation of the Basic Law
Both the Sino-British Joint Declaration and the Basic Law have confirmed
that the provisions of the two international covenants as applied to Hong Kong
shall remain in force. And Article 39 of the Basic Law even stipulates that these
provisions "shall be implemented through the laws of the Hong Kong Special
Administrative Region."
Therefore, the introduction of human rights legislation is totally in line with
the requirements of the Sino-British Joint Declaration and the Basic Law and will
not constitute any challenge to the sovereignty of China. The implementation of
the Bill of Rights indeed has significance of a directory nature. However, this is
not founded on the basis of whatever supremacy over other laws that the
HKBORO may purport to have. Under the legal system customarily practised in
Hong Kong, no law can override or restrict future legislation. And the Basic
Law has not provided for different tiers of laws with varying degrees of legal
force or effect. Nor has it provided for different legislative processes with
varying degrees of effectiveness. The HKBORO alone cannot bind or fetter
future legislation which may contravene human rights, nor can it prevent its own
repeal by the legislature.
Nevertheless, the kind of human rights protection that can be provided by
the HKBORO still has a reinforcing and overriding nature of its own. Both
natures are in fact derived from the provisions of the Basic Law. The second
paragraph of Article 39 provides in clear terms that "The rights and freedoms
enjoyed by Hong Kong residents shall not be restricted unless as prescribed by
law. Such restrictions shall not contravene the provisions of the preceding
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195
paragraph of this Article." And the preceding paragraph stipulates that the
provisions of the two international covenants on human rights and international
labour conventions as applied to Hong Kong shall remain in force and shall be
implemented through the laws of the Special Administrative Region.
Mr President, it is totally logical, reasonable and legitimate that this
Council passed the Bill of Rights in 1991. Now the proposal of the Legal
Subgroup of the Preliminary Working Committee to emasculate the HKBORO
and to "reinstate" the six oppressive and unreasonable laws which have been
amended to comply with the Bill of Rights is not only a retrogressive move that
flies in the face of social progress and history, it also amounts to turning a blind
eye to the provisions of the Sino-British Joint Declaration and the Basic Law.
Any attack on the HKBORO under the excuse that it has not been agreed by both
the Chinese and the British Governments or that the right of legal interpretation
rests with the National People's Congress is in fact a move to override
jurisprudence with political force, to sacrifice Hong Kong people's interests
during the Sino-British row, and to set a most abominable and alarming precedent
prior to Hong Kong's reversion to Chinese rule in 1997. Members of this
Council and members of the public in Hong Kong cannot remain silent and
passive, nor can we just take it as cast in stone and accept it simply because some
Chinese officials have said something and spelt out their stance. If that is the
case, what grounds do the Hong Kong people have to defend the high degree of
autonomy, freedoms, human rights and the rule of law to be enjoyed by Hong
Kong under the principle of one country, two systems?
Mr President, with these remarks, I support the motion moved by Mr
Albert HO.
MR CHIM PUI-CHUNG (in Cantonese): Mr President, as many Members have
rightly said a while ago, there are still 594 days left before the territory is to be
returned to China in 1997. Naturally, in the 594 days ahead, there are going to
be a lot of debates and expressions of different political viewpoints. A number
of events involving politics will also take place. The 60 Members present,
including you, Mr President, may have different goals, backgrounds or even the
support of different forces. All of them may want to contribute politically in a
manner they deem very clever and decisive. I very much hope that everyone is
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determined to search for the truth through debates. If one gets too carried away
in boasting of his or her views, one may one day discover that the views hold are
entirely wrong. This is because politics changes with space. In Hong Kong, in
particular, in which one or two sets of political circumstances are at play, even the
unthinkable may take place. Recently, many of us have probably watched a
television drama series. A number of ideas depicted in the drama series are
worthy of our study and discussion.
Mr President, our subject for debate today is the Bill of Rights Ordinance
(BORO). Indeed there are nine Members in this Council who come from the
legal sector. One other person may be said to be quasi-legal. So, altogether,
there are 10 of them, amounting to 15% of the whole Legislative Council. To
say the BORO does not override other statutes is gross hypocrisy.
We need to point out clearly that the BORO does have a status superior to
other ordinances. Previous and future laws must not contravene the BORO.
As I pointed out at a certain meeting, we should not accuse each other.
However, after saying that I was criticized for having accused others without
letting others say anything against me. In this case, I was not overriding but I
had probably contravened certain principles. Since the BORO was enacted,
many court cases have been decided on the basis of the BORO. As a matter of
fact, many judges have had different interpretations of the BORO and applied the
same with varying degrees of strictness. Now, this is very dangerous. Laws on
human rights should be absolutely clear and the BORO should be clearly spelt
out. Thus it can be seen what the disputes are all about. After the enactment of
the BORO, many statutes have been amended only to comply with the BORO.
If this is not overriding, what is? Although I am not from the legal sector, I pay
much attention to law and I know something about it.
So, we know the BORO overrides other statutes. How can one say that it
does not? The reason why it is overriding has been explained clearly by a
number of Members earlier on. The BORO was intended to provide checks and
balances against influence or intervention from the Chinese Government. It was
feared that after 1997, the Chinese Government under the "one country, two
systems" policy would introduce communist ideas into or influence the
administrative policy of Hong Kong. The BORO was thus enacted with ulterior
motives.
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We need to understand that only in recent years was the BORO passed. It
was passed in 1991, only four years ago. Since then, it has indeed caused a
great impact on Hong Kong laws. Of course, we know most of the people are
law-abiding. As long as they do not violate any law, the human rights issue
would not bother them. Now that the issue is raised, people are just joining the
discussion and give their views.
The Legal Subgroup of the Preliminary Working Committee (PWC)
certainly has its own views on the BORO, just as those who proposed the debate
today have theirs. If I were asked to say who is right and who is wrong, I could
only say that all of them have grounds for what they think. The PWC's ideas are
given pursuant to the powers conferred by Article 160 of the Basic Law. People
holding a different political viewpoint will have other ideas basing on their own
grounds. People somehow will not put forward ideas without any reason behind
them. Of course, people are free to comment on these ideas the ways they like.
As I said earlier, it is more important for politicians to know how to assess and
interpret the way ahead and the facts laid before them.
Mr President, my personal view is that the BORO has been brought up at
this moment as some kind of alternative constitutional reform package. For the
benefit of the majority of Hong Kong people who do not understand the BORO or
why it has attracted so much controversies, here is why: As we all know, the
constitutional package was adopted on 29 June last year with 29 votes for and 28
against it. We all know that on 30 June 1997, all the 60 of us will surely have to
"get off the train". This is a fact that we must accept, though a number of us are
reluctant to do so. That is also the time for the BORO to cease to have effect.
We should let the public know that not the entire legislation but a small part of
the BORO will cease to have effect. This is related to diplomatic issues.
Although China and Britain have not gone through 17 rounds of talks on it, both
sides are having discussions with mutual understanding.
However, no
consensus could be reached and so the BORO cannot make its way through 1997.
Therefore, I do hope to take this opportunity to let the public know the key
points in a straightforward manner. People have often criticized me and said
that my theories are incorrect. Nevertheless, I am not doing this to lobby for
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support ─ between now and 1997, there will not be another chance for me to
canvass more votes anyway.
Mr President, it is my conviction that the Chinese Government is prepared
to grant powers to Hong Kong to implement the "one country, two systems"
concept. This is almost equivalent to confirming that all the Hong Kong
Government needs to do is take proper care of its own affairs. If Hong Kong
can co-operate with the Chinese Government on all fronts, the development of
Hong Kong will go one step further. The Chinese Government will surely not
insist on denying Hong Kong a Bill of Rights. On the contrary, it very much
wants Hong Kong to have a more comprehensive Bill of Rights. But personally,
I think it is pure fantasy or wishful thinking to try to use international influence or
external pressure to effect changes in China's policy or to use external forces to
compromise China's rule. We should never try to do that.
We really hope to put forward ideas for the Chinese Government to give
Hong Kong assistance so that both China and the future Special Administrative
Region will have a brighter prospect. I do not want anyone to bring in
international influence to add pressure on Hong Kong and China. Therefore, the
gist of our discussion today will form part of our future discussions.
Mr President, I am very much against the original motion and the
amendment. I so submit.
DR LEONG CHE-HUNG: Mr President, may I start by stating my support both
to the original motion and the amendments and to support the call for moving
further legislations in line with the aspirations of the people of Hong Kong, and
that in no way that the protection of the public through promulgation of laws be
halted because of threat.
Mr President, much has been said to substantiate the fallacies of the recent
recommendations of the Preliminary Working Committee (PWC) Legal Subgroup
which was accepted by China to ad nauseam, and I am sure more will be coming
today. Being no legal expert, I thought I would present my thought in a
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199
simplistic way and from another angle. In short, Mr president, I am concerned
with the reasons put forth by the PWC subgroup in making their
recommendations and the implications it may have on the future of Hong Kong.
Let me assure Mr David CHU that has nothing to do with fear.
Mr President, when the Joint Declaration was signed, the people of Hong
Kong were told that there will be no change for 50 years and that the laws in
force in Hong Kong, which we all are so used to, will be applicable after 1997.
Article 3(3) of the Joint Declaration specified: "The laws currently in force in
Hong Kong will remain basically unchanged."
I daresay that the majority of Hong Kong people interpret this as 50 years
after 1997. Little do we know and little do we realize that count-down of 50
years of no change started in 1984 when the Joint Declaration was signed, as
China's mouthpieces say nowadays; and that any laws or amendments to the then
existing laws promulgated after 1984 are subject to scrutiny and may be
completely denounced by the National People's Congress by July 1997.
Yes, Mr President, laws are flexible and should meet the needs of the
people and changing times. Any law could be repealed or amended and no laws
should be set in concrete, be they promulgated before or after the signing of the
Joint Declaration. Yet, if this were to be done after 1997, should the process not
be done with initiative of the Special Administrative Region Government through
careful and detailed debate of the then legislature? To take this prerogative and
power out of the future legislature and to impose a decree by the National
People's Congress to repeal and discard any law passed by the current legislature
makes a joke, if not a mockery, of the concept of "Hong Kong people ruling
Hong Kong" and the principle that the SAR Government shall be in charge of
everything other than foreign affairs and defence.
The recommendation to repeal the Legislative Council Commission
Ordinance opens yet another area of concern. It has been reported that the
recommendation of the PWC in this area was based on the concern that the
independent Legislative Council Secretariat essentially diminishes administrative
control over the legislature, or to put it another way, weakens the power of the
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executive. This, Mr President, is exactly at variance with the setting up of this
Commission which seeks to ensure the complete functional autonomy of the
Legislative Council. It is ironic to have a body entrusted with the monitoring of
the Government's activities and efficiency when that body is staffed by personnel
from the Government itself.
Article 73 of the Basic Law empowers the future legislature to impeach the
Chief Executive, and Article 50 states the situation under which the Chief
Executive can dissolve the legislature. These simply imply that the executive
administration and the legislature are to check and balance one another. How
could this be made effective if the two organizations are not independent of each
other?
The question remains therefore: Did Britain and China have a different
interpretation of the Joint Declaration and the Basic Law from the word go? Or
did either party move the goal posts as we move to the final leg of transition?
Mr President, on a practical basis and as a member of the Legislative
Council Commission, I would urge this Administration, and hopefully in
consultation with China, on a contingency plan from either of them for the current
secretariat staff, many of whom have left their previous employment to devote to
the Legislative Council and most have contracts with the Commission that extend
beyond 1997.
With these remarks, I support both the amendment and the original motion.
MR LEE CHEUK YAN (in Cantonese): Mr President, in my opinion, today's
motion is very important not only because the incident under debate is concerned
with the reinstatement of the six pieces of legislation, but it also reflects the
Chinese attitude towards the politics of Hong Kong. And this attitude is
worrying me very much.
Recently, I read the Wen Wei Po more often than before. But the more I
read, the more I am worried. So I would like to discuss the Chinese stance
vis-a-vis the politics of Hong Kong which is reflected by the way this incident has
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201
been handled by the Chinese side.
The first attitude, I think, is still inseparable from the "conspiracy theory".
There is a commentary from the press, that is the Wen Wei Po, that the debate we
are holding today is "orchestrated by Chris PATTEN who pulls strings behind the
scenes, and the Legislative Council coordinates with him on the front stage". If
every debate concerning the Chinese approach towards Hong Kong held by the
Legislative Council is so criticized, I think it is entirely meaningless. In so
doing, not only the integrity of the Legislative Council Members is affronted but
also it is assumed that we have no independent thinking, that we are mere parrots
and Chris PATTEN's puppets. But obviously we are not. Our mandate comes
from the voters, and absolutely not from the British Hong Kong Government.
Does it mean that such remarks from the Chinese side just represents their
mentality: that the reinstatement of the legislation is manipulated by Chinese
authorities backstage while the Preliminary Working Committee Legal Sub-group
is the front-stage player. Is it because this that the Chinese side imposes its
own way of handling affairs on the Legislative Council and on Chris PATTEN?
I think such kind of remarks is unwholesome. Once again, I urge the Chinese
side not to include any such remarks as "PATTEN is backstage manipulator" in
its discussions on the politics of Hong Kong in the future.
The second point that worries me is the explanation given by the Chinese
side as to why such proposal is put forth. According to their explanation, the
Hong Kong Bill of Rights Ordinance (BORO) and the amendment of the six
pieces of legislation as a result of the BORO are contrary to the stipulation of the
Sino-British Joint Declaration that the laws currently in force in Hong Kong will
remain basically unchanged. In my understanding, or according to my
understanding based on the advice of my friends in the legal profession, "the laws
currently in force in Hong Kong will remain basically unchanged" means that the
legal system and the spirit of the rule of law will remain unchanged. But the
understanding of the Chinese side can be reflected by the commentary in Wen
Wei Po today which says: "How to treat unchange and change". The article
points out that "the laws currently in force in Hong Kong will remain basically
unchanged", of course, does not mean that no change is allowed. Some
legislation can be changed because of social development and evolution. But
change should be subject to certain criteria. As the Joint Declaration has
stipulated that the laws will remain basically unchanged, then should there be any
change, it must be minor change instead of substantial or major change. And
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according to the Joint Declaration, any affairs that straddle 1997 should be
subject to the consultation of the two Governments. According to the article,
"the laws will basically remain unchanged" means that it is the legal provisions
that will remain unchanged, not the legal system. If it is so, then the impact will
be far-reaching. If the provisions remain unchanged, then all ordinances that
were passed during the period from 1984 to 30 June 1997 are not the original
laws and should not be able to straddle 1997, just like the fate of this Legislative
Council. Aren't they?
To ensure continuity of Hong Kong laws after 1 July 1997, then time
should go back to 13 years ago. If so, all the 20 to 30 amendments made to the
Employment Ordinance since 1984 should be scrapped. Numerous ordinances
that were enacted after 1984, such as legislation to protect the consumers or
combat organized and serious crimes, or legislation concerning film censorship or
indecent and obscene articles, or legislation seeking to establish the Land
Development Corporation, the Hospital Authority, the Hong Kong University of
Science and Technology or even the Court of Final Appeal Ordinance and the
Mandatory Provident Fund Schemes Ordinance that have been passed recently,
are not the original laws. Should all these pieces of legislation be dealt with in
such a way as to restore the original position before they were passed? Should
we freeze our history in 1984?
Most unfortunately, Hong Kong people do not know which ordinance will
be reinstated and which one will not. They have no idea which ordinance can
straddle 1997 and which one cannot. Neither do they know why some
ordinances cannot be changed nor do they understand what change can be made
and what change is disallowed.
Based on the logic of the Chinese attitude towards the politics of Hong
Kong, we can see that China wishes to have the colonial system as in 1984
frozen. In other words, it would be glad to see the revival of the colonial system
after 1997, which we have been so much opposed to.
Hong Kong people are opposed to the colonial system. We do not want to
see the colonial system survive after 1997. In recent years, we feel that there is
some change. The original colonial system will hopefully go through a
democratic process. But now the Chinese side seems to be telling us that Hong
Kong has to go back to the past, that Hong Kong has to go back to the pre-1984
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203
system. I think this will cause us great anxiety. Our efforts in trying to change
the colonial system over the past 10 years will be in vain. I think this is one of
the reasons why the Chinese attitude towards this incident is so worrying.
Thirdly, the whole incident reflects the lack of trust on the part of the
Chinese side in Hong Kong people. Nor does it have trust in the concept of
"Hong Kong people ruling Hong Kong". It seems to impose the Chinese
approach on the politics of Hong Kong. The Chinese approach means that
patriarchal consciousness overrides public opinion. If the Chinese approach is
imposed on the politics of Hong Kong, there will not be any room for
participation by Hong Kong people and the concept of Hong Kong people ruling
Hong Kong cannot be implemented. If we extend this logic, either at present or
in the future, the basis for Hong Kong people to participate in social affairs will
become shaky. So I hope the Chinese side is not imposing its mentality on the
politics of Hong Kong as I said. Thank you, Mr President.
MR CHOY KAN-PUI (in Cantonese): Mr President, the Honourable Albert HO
initiates a motion debate on the proposal of the Legal Subgroup of the
Preliminary Working Committee (PWC). Since it is a basic consensus among
the people of Hong Kong that the human rights of the people of Hong Kong have
to be protected, I would not dwell on this particular point at any length.
When we talk about the freedom of speech, we should also respect the
freedom of speech enjoyed by those people who are outside the Legislative
Council. If the Legislative Council holds lengthy debates on whatever views
expressed outside of this Council that we disapprove of, I am worried that some
of the substantive business of the Legislative Council may be affected.
In recent days, the proposal of repealing certain provisions of the Bill of
Rights Ordinance (BORO) and reinstating some of the original laws has already
caused a storm. If we seek to intensify such wrangles, it will not help in
improving people's livelihood but will only arouse much more public unease.
On the contrary, we should focus our attention on and devote our efforts to
strengthening our economy with a view to resolving the unemployment problem
and improving people's livelihood, so that the people of Hong Kong would enjoy
better lives. I oppose flame fanning and I hope that we can always be
pragmatic.
Amendment to the Honourable Albert HO's motion as moved by the Honourable
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Miss Christine LOH
Mr President, by taking a retrospective look at the entire history of the
development of the New Territories, we would observe that the indigenous
inhabitants of the New Territories have already established their own cultural
characteristics and unique living style. Throughout the history of the colonial
era, they have also contributed to the territory's development and made numerous
sacrifices.
Today, the indigenous inhabitants in the New Territories do not intend to
become the privileged class. They respect the living style of non-indigenous
inhabitants and are willing to co-operate and live together with non-indigenous
inhabitants, so that the two can join hands to work for the well-being of Hong
Kong. They do not want to see the delineation between urban and rural areas,
instead, they cherish the hope that other people will respect their traditions.
As to the right of inheritance, estates should be distributed in accordance
with the wish of the individuals concerned. The law should keep its interference
into family affairs at a minimum. In addition, we should also encourage our
citizens to distribute their estates to their successors through the making of wills.
This will give more flexibility. In rectifying the concept of "men are superior to
women", we should start from civic education and should not seek to impose
compulsory changes by means of enacting laws.
In addition, Article 40 of the Basic Law has laid down in clear terms that
the lawful traditional rights and interests of the indigenous inhabitants of the
"New Territories" shall be protected.
In view of this, the repealing of the relevant legislation on exemption will
be in contravention of the spirit of Article 40 of the Basic Law.
Mr President, with these remarks, I oppose the amendment moved by Miss
Christine LOH. I will not support the original motion either. Thank you, Mr
President.
MR IP KWOK-HIM (in Cantonese): Mr President, on behalf of the Democratic
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205
Alliance for the Betterment of Hong Kong (DAB), I would give an account of the
position of the DAB on the Honourable Albert HO's motion. The focus of the
recent controversy over the Hong Kong Bill of Rights Ordinance (BORO) lies in
whether the BORO has an overriding status. Before the enactment of the
BORO, all laws enjoyed equal status under the original legal system and no law
could override other laws. From 1 July 1997 onwards, the Basic Law will be the
only law in Hong Kong which has constitutional status and no other laws will
have overriding power. It is on the basis of this principle that the Legal
Subgroup of the Preliminary Working Committee (PWC) proposed to remove
from the BORO provisions which enable the BORO to override other laws.
The provisions that the Legal Subgroup of the PWC proposed to delete
do not touch on any rights and freedoms under the International Covenant on
Civil and Political Rights (ICCPR) as incorporated in the BORO. The
provisions to be deleted merely provide for the relationship between the BORO
and other laws of Hong Kong. Some claimed, on the one hand, that the BORO
does not have overriding status and so it is consistent with the Basic Law but, on
the other hand, they pointed out that the deletion of those provisions will be
tantamount to "castrating" the BORO. This, we think, is self-contradictory.
The DAB is of the view that if those controversial provisions will indeed
make the BORO overriding, then it is reasonable for the PWC to propose the
deletion of those provisions. On the contrary, if the BORO, just as the Legal
Department of Hong Kong pointed out, does not have overriding status, then the
status of the BORO will not be in the least affected even if some provisions are
repealed.
In 1991 when the BORO was enacted, the Chinese side, in fact, expressly
stated their objection at the time. Now the Legal Subgroup of the PWC is
proposing to repeal certain provisions of the BORO and reinstate the six laws
which were amended to tie in with the BORO. It is believed that this proposal is
made after the Chinese side has taken into consideration the views of the people
of Hong Kong. But from another point of view, the proposal of the PWC has
precisely reflected that China recognizes the BORO and is therefore willing to
preserve the BORO for continual implementation in Hong Kong after 1997.
While it is proposed that certain provisions will have to be repealed, the spirit of
the BORO, that is, protecting the human rights of the people of Hong Kong, will
not be undermined. Nor will the implementation of the BORO be affected.
Therefore, this proposal of the PWC cannot be described as a devastation of the
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BORO.
According to the Basic Law, the Standing Committee of the National
People's Congress has the right to declare the exclusion of existing laws which
are inconsistent with the Basic Law from the laws of the Special Administrative
Region (SAR) Government. However, the DAB is of the view that if there is
any aspect in the laws of Hong Kong that the Chinese side wants to comment on,
it should be left directly to the SAR, subsequent to its establishment, for it to
discuss and handle and make amendments where necessary. It is because laws
cannot be amended, and are impossible to be amended, without taking into
account the social environment. The question of how to strike a balance
between the rights of individuals and the right of the Government to rightly
govern must also be handled carefully. In this connection, if the matter can be
passed onto the future SAR Government which can then make amendments in the
law that correlate with the circumstances at that time after taking into account the
actual situation and listening to the views of all sectors in the community, it will
be more advantageous to the effective operation of the SAR Government and the
protection of citizens of Hong Kong. Therefore, we disagree with the first half
of Mr Albert HO's motion.
Mr President, while the BORO has been in force for more than four years,
the Hong Kong Government has not made any specific and detailed assessment of
the implementation of the BORO to see whether the BORO has been properly
invoked and whether it has actually performed the function of safeguarding the
human rights of the people of Hong Kong. Recently, inmates at the Stanley
Prison filed a lawsuit against the Government to seek to restrain officers of the
Correctional Services Department from taking out the racing page from
newspaper. The Association of Expatriate Civil Servants of Hong Kong also
filed a lawsuit against the Government on account of the localization of the Civil
Service. In the end, the Hong Kong Government won one case and lost the
other. In the past few years, the Hong Kong Government has made drastic
changes in many pieces of legislation which were considered to be inconsistent
with the BORO following court decisions made in favour of the BORO. The
DAB thinks that provisions under the ICCPR as applied to Hong Kong must be
safeguarded and laws which are contrary to the ICCPR should be amended.
Yet, as the ICCPR has been extended to Hong Kong for years and the laws
concerned have long been adopted, it is indeed unreasonable that drastic changes
are to be made so hastily now. The DAB is of the view that those contentious
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207
laws amended in recent years should be dealt with by the SAR according to the
Basic Law after 1997. As for other laws which may also be affected, they
should be dealt with in a discreet manner after a review has been conducted in
regard to the impact of the BORO, which has been implemented for several years,
on the laws of Hong Kong and the administration of justice. Therefore, we
oppose the latter part of Mr Albert HO's motion.
With these remarks, I oppose the motion of Mr Albert HO and the
amendment of the Honourable Miss Christine LOH.
MR LEUNG YIU-CHUNG (in Cantonese): Thank you, Mr President. When
the Legal Sub-group of the Preliminary Working Committee (PWC) suggested
repealing some of the provisions of the Bill of Rights, I was shocked to hear of it
as, I believe, most of the people in Hong Kong were. It was because these
suggestions could reduce, in the twinkling of an eye, the originally most powerful
weapon for the protection of our human rights to nothing and deprive the people
of Hong Kong of their basic rights that they could have enjoyed. But when one
finds out whom these suggestions were put forward by, one will have no
difficulty seeing the "dreadfulness" of these suggestions. We all know that these
suggestions have been put forward by a body which is neither legal nor
reasonable. I say that the PWC is illegal because its establishment had no legal
basis whatsoever. Even in the Basic Law which was created under an extremely
undemocratic procedure imposed by China, nothing is ever mentioned about the
setting up of the PWC to prepare for the Preparatory Committee before the latter's
establishment. Therefore, the PWC has failed even to conform to the legal basis
as set out in the Basic Law. When I say that it is unreasonable, that is because
all members of the PWC have been appointed by the Chinese Government.
They are in no way able to represent the interests of the majority of the people
here and therefore they do not command the people's recognition and acceptance.
As all its members are appointed by China, the PWC is made up of three
kinds of people only. The first are the "mutes" who will not speak for Hong
Kong people's interests; the second are those who wish that China will intervene
less but will only wag their tails ingratiatingly like a "pekinese"; and the last kind
are those "yes-men" who, in order to protect their own vested interests, spare no
efforts in fawning on the Chinese Government. Therefore, it is not difficult to
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imagine why the PWC can, in just two years' time, put forward such astounding
and sensational suggestions as the "provisional legislature" which the people of
Hong Kong will neither recognize nor accept and the "reinstatement of laws
amended pursuant to the Bill of Rights". In fact, the sole purpose of this group
of advisers in the PWC is to keep Hong Kong under colonial rule unchanged for
50 years and turn Hong Kong into a colony of China.
I believe that it is Hong Kong's freedom of the press and of speech which
will be most affected by the PWC's reinstatement suggestion. Some of the
suggestions will directly or indirectly curtail the freedom of speech which the
people of Hong Kong have gained from the Government after years of striving.
Take the Television Ordinance as an example. If this Ordinance is reinstated,
the Special Administrative Region (SAR) Government will be empowered to
pre-censor or even ban any television programmes. For instance, the popular
current affairs programmes or programmes containing direct or indirect criticisms
against the future SAR Government or the Chinese Government will be
pre-censored or banned. In fact, who can guarantee that the Chief Executive
will not abuse the powers that these ordinances have vested with him to suppress
the freedom of speech that we, the people of Hong Kong, enjoy?
And there is also the Public Order Ordinance. If it is reinstated, the
various former restraints on processions and protests will be revived.
Consequently, the processions and protests that the people stage to voice their
grievances against the future SAR Government or the central government will
come under great restrictions. In fact, the fruit of the numerous efforts of us, the
people of Hong Kong, in fighting for our rights will all turn into bubbles in just a
second and our basic right of expression will again be pushed to the edge of a
fiery pit.
Of course, the PWC has their own political purpose in their selective
amendment of these ordinances, which, borrowing a term frequently used by the
Chinese Government, is "having an axe to grind". In fact, in the past, these
ordinances to be reinstated or may be reinstated were used to suppress the leftists
who were against the rule of the British Hong Kong colonial government. The
Chinese Government also understands well the special effect of these ordinances;
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209
today it is treating us as the British treated them before and is seeking to retain
this effective tool to suppress the dissidents. On the face of it, the reason is to
maintain the status quo for 50 years but their real intent is to have the people of
Hong Kong succumb to the future SAR Government and the central government.
Mr President, what I want to emphasize is: all these ordinances now
proposed to be reinstated had only been amended as a result of years of efforts
made by us, the people of Hong Kong, and many civic bodies. Although there
are still imperfections within these ordinances, the direction in which we
successfully proceeded to amend them is, after all, favoured by the public.
Going against this direction will be like countering public opinion and it will not
be accepted by the people of Hong Kong.
Therefore, as the pooling point of public opinion in Hong Kong, the
Legislative Council has the responsibility to censure any suggestion that
jeopardizes human rights in Hong Kong. At the same time, I also call upon
those colleagues here today who suffered such suppressions before to join all the
people of Hong Kong in censuring these unreasonable suggestions of the PWC!
I also hope that some will forsake what is wrong and support what is right and
cast their efforts to further the cause of Hong Kong people ruling Hong Kong.
Mr President, I so submit. Thank you.
MISS EMILY LAU (in Cantonese): I speak in support of the original motion
and the amendment. However, I could not understand why the Honourable
Albert HO has amended his own motion. He had used the word "deplores" at
first, and just now when the Honourable LEUNG Yiu-chung used the word
"denounces", he then changed it to "objects to". I think the proper word should
be "protests". So perhaps this shows a mild side of the Democratic Party. But
Mr President, I believe we are going to see a lot more greater scenes later on.
Mr President, I believe that since the Hong Kong Bill of Rights Ordinance
(BORO) was promulgated in 1991, it has been an "eyesore" or "the thorn in the
Chinese Government's flesh", and the Chinese Government has been saying that
it will deal with the Ordinance. That is why some Members from the
Preliminary Working Committee (PWC) have told us just now that as the Chinese
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Government had forewarned people, it should not be surprising if it made the
move now. I think the Chinese Government must have found it strange why the
Hong Kong people should be reacting so strongly and violently.
Very often, Hong Kong people will speak out only when they are "at
death's door". Over the years, the Chinese Government has kept stating the
matter, yet the people of Hong Kong has made no response to it. A good
example is the application for British National (Overseas) (BNO) passports.
They had been doing nothing until the last two days when they flocked to the
Immigration Department for that matter. So now when Hong Kong people are
reacting so strongly, I hope that both the PWC members and the Chinese
Government will listen hard to them. I say so because many Hong Kong people
are not Democratic Party members, nor are they democrats. But they are the
backbone elements of Hong Kong; they will stay in Hong Kong and build Hong
Kong. Therefore, it is my hope that we respect the wishes of these 6 million
people. Mr President, just now the Honourable IP Kwok-him said that what the
Chinese Government has done seemed to be quite positive towards the BORO. I
do not know Mr IP Kwok-him well. But during these few weeks I have found
that he is in fact a very reasonable man. I myself have witnessed Members from
the Democratic Alliance for the Betterment of Hong Kong (DAB) joining the
Legislative Council to work together with other colleagues. Although he is not a
Member returned through direct election, I do hope he will become a Member
from direct election. However, I wonder why he has made such remarks today.
Regarding the way this law is to be dealt with, some people have described it as
"castration", and there are various kinds of remarks made by others, too. In a
word, this a very bad approach. Yet, he actually said that this was a "positive"
way of doing it. If that was a "positive" way of doing it, then we would rather
that it was "not positive". If it should become more "positive", we would be
scared to death because what the Chinese Government is doing now is to destroy
Hong Kong people's faith in human rights and the rule of law. Hong Kong
people may not be yearning very much for western-style democracy. But it is
my belief that they are supportive of democratic elections, and both human rights
and the rule of law are invaluable to them. Now what the Chinese Government
is doing will give people the impression that the Chinese Government does not
really have any respect for our freedom. Many people are now worrying that
their freedom in future will be eroded.
Furthermore, what is the cornerstone of our freedom? It is the rule of
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211
law! But we can see a small handful of people who have done some mysterious
thing behind closed doors, and after they would say, "There will not be any law
that you ask for." They amend the laws in ways that are absolutely unknown to
the people of Hong Kong; as it is, how can they make the people understand,
identify with and accept the law? Mr President, this will, will it not, all the more
strongly frighten and disappoint them?
Just now quite a few pro-China Members or Members from the PWC have
mentioned history. But of course such history starts with the Beijing massacre.
In fact, Hong Kong people had been asking for the BORO to be hammered out
even before the massacre. But the British Government gave Hong Kong people
the piece of paper, the law only after it had seen the massacre, in the hope that we
would not feel frightened. The point is that the British should also be
condemned. This is because in the 1980s, they deceived people, and they also
deceived the United Nations Human Rights Committee since they told the
Committee that Hong Kong did not need the legislation and that the laws of Hong
Kong were not in contravention of the International Covenant on Human Rights
(ICHR). But of course after the enactment of the legislation, what they said was
another story. Also, it would involve the amendment of a large number of laws
because many laws in Hong Kong are in contravention of the BORO. However,
previously when they were in contravention of the BORO, the Government did
not have to do anything. Mr President, the point is that what we have seen here
is a replica of the situation in 1990 which involved the row over the seven
diplomatic letters, as the Chinese and British Governments had talked over
matters unknown to us behind closed doors. The seven diplomatic letters were
about political reform, and the situation before us is about the BORO, about
freedom arising from our human rights. I do not know whether it was true or
not (perhaps the Secretary for Home Affairs can explain to us) that the British had
told China there was nothing to fear, because in spite of the fact that the ICHR is
applicable in Hong Kong, it was uneventful and there was no need to enact local
laws. Later when there was the massacre, the British amended the laws hastily.
The Chinese Government could say to the British, "You deceived us then."
However, if Hong Kong people were allowed to take a good look at the truth, the
whole matter would be just like the seven diplomatic letters, which were all
meant to deceive and betray us. If Hong Kong people were in the know of all
these, including the negotiations on political reform and on human rights, they
would never accept them. So, the Chinese Government should not speak so
plausibly and at length. This is the account between you and the British, and
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you had better settle it yourselves. But as matters so stand, Hong Kong people
have reasons to demand that the Chinese and the British Governments make a
clean breast of everything and tell us what had been discussed behind closed
doors. In fact, I believe the people of Hong Kong will find, in the 590 days or
so to come, that probably a lot of things will be brought to light. Many people
have spoken to the Chinese Government in private. At some suitable time,
things including those uttered by members of the PWC will be brought to light.
They would do things at all costs and anyone can be sacrificed. Some people
say "This does, does it not, show how concerned the Chinese Government is
about the BORO?" Perhaps they are right. But the point is whether they know
that we, the people of Hong Kong are also concerned about it? We have no
intention to be embroiled in the scramble for positions and power. Some people
yearn for the position of Chief Executive, whilst other people want this or that.
But what the people of Hong Kong want are some very basic things. We just
hope that our present free life style can be safeguarded. But we have been
awakened from this dream by the proposal of the PWC. Therefore, Mr
President, it is my hope that most of the Members of this Council, with the
exception of those Members from the PWC (it would be even better if they do),
can support this motion so as to deliver a message to the Chinese Government.
Finally, I would like to say something about the question of repealing the
Legislative Council Commission Ordinance. Our civil servants are already
worrying whether or not they can get through the transition. We may well say
that they are on tenterhooks. There are about 300 colleagues, I mean 300 staff
members, in the Legislative Council. I do not want to see them on tenterhooks
too. Just now the Honourable CHEUNG Hon-chung has put it well that the
return of sovereignty should not be just a "glorious return", it is also necessary to
regain people's hearts. On this, I would like to ask Members, especially those
pro-China Members, whether or not they think that the Chinese Government will
be able to regain the Hong Kong people's hearts, and that it will be a glorious
return of Hong Kong. I do hope that Members can give it some serious
thinking. Thank you, Mr President.
MR SZETO WAH (in Cantonese): Mr President, the proposal of the Preliminary
Working Committee (PWC) to castrate the Bill of Rights Ordinance (BORO) and
to reinstate the six draconian laws attacks Hong Kong just like a low pressure,
stirring up massive rainstorms in the town. Amid such low pressure and storm,
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213
some break their backbones, others sway, but some till maintain a firm footing.
For the voters who have recently cast their votes, please observe clearly how the
people to whom you give your support would vote today.
In Annex I of the Joint Declaration, that is, "Elaboration by the
Government of the People's Republic of China of its Basic Policies Regarding
Hong Kong", it is spelt out clearly in black and white that the provisions of the
two International Covenants as applied to Hong Kong shall remain in force.
Article 39 of the Basic Law spells out in black and white that the
provisions of the two International Covenants as applied to Hong Kong shall
remain in force and shall be implemented through the laws. Meanwhile, even
legislations restricting the rights and freedoms enjoyed by Hong Kong residents
shall not contravene the above provisions of this Article.
Article 159 of the Basic Law spells out in black and white that no
amendment to the Basic Law shall contravene the established basic policies
regarding Hong Kong.
According to the above provisions, spelt out in black and white, the BORO
only implements Article 39 of the Basic Law, enabling the provisions of the two
International Covenants as applied to Hong Kong to remain in force and to be
operated through the laws of Hong Kong. Any legislation relating to the rights
and freedoms enjoyed by Hong Kong residents shall not contravene the
provisions of the two International Covenants as applied to Hong Kong laws,
which in effect is the BORO. Even if the Basic Law were to be amended, no
amendment could be made to the BORO because it will contravene the
established basic policies regarding Hong Kong. Some people say the BORO
has overridden the Basic Law, I would again like to quote the second paragraph
of Article 39 of the Basic Law, which says: "The rights and freedoms enjoyed by
Hong Kong residents shall not be restricted unless as prescribed by law. Such
restrictions shall not contravene the provisions of the preceding paragraph of this
Article." The preceding paragraph of this Article is the one which states that the
provisions of the two International Covenants as applied to Hong Kong shall be
implemented through the laws of the Hong Kong Special Administrative Region.
If this is the so-called overriding (with the status given by the Basic Law), and if
even so can be called overriding, then it means, in other words, one is overriding
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himself, and it means that his buttocks are resting on top of his head.
The question which we have to put to the PWC is: which section in the
BORO constitutes a contravention of the provisions of the two International
Covenants as applied to Hong Kong? Is the BORO not a piece of legislation to
implement the provisions of the two International Covenants as applied to Hong
Kong? Do the six vicious legislations which you are striving to revive
contravene the provisions of the two International Covenants as applied to Hong
Kong in many respects? Are you trying to relegate human rights in Hong Kong
to only the right of life which even creatures are entitled to?
On the one hand, the attempted revival of the six vicious legislations is
targeted at the freedom of speech and of the press, and the rights of association,
assembly, parade and demonstration. On the other hand, the PWC also proposes
to amend the electoral provisions in order to limit, weaken and root out the
strength of democracy in the constitutional establishment. If we put the two
aspects together, we can see the concealed vicious motives. Within and without
the constitutional establishment, efforts to the fullest extent have been made to
suppress, combat and destroy dissenting voices, with the intent of turning Hong
Kong into a pool of stagnant water, a pool of stagnant water that can only breed
flies, and that is the kind of "stability" they are aspiring to.
The PWC is but the legendary fox whose clout finds its backing from the
tiger's might, and the PWC is also extending the tiger's paws; we have, however
already heard the roaring of the tiger in the background, too.
Mr President, with these remarks, I support the motion and the amendment.
MR AMBROSE LAU (in Cantonese): Mr President, the dispute over the Bill of
Rights (the Bill) has caused great concern in the community. Hong Kong
residents are naturally concerned about human rights, and that is why Article 39
of the Basic Law states that the provisions of human rights covenants as applied
to Hong Kong shall remain in force and shall be implemented through the laws of
the Hong Kong Special Administrative Region (SAR). During the past few
weeks, what the residents have been reading in the press or listening to over the
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215
radio are such alarming allegations as the emasculation of the Bill, the human
rights being trampled on, the revival of draconian colonial laws and so on. How
can they not worry?
The Hong Kong Government took the lead in raising objections to the way
the Legal Subgroup of the Preliminary Working Committee (PWC) has dealt will
the Bill. This is understandable as persons and political parties with different
political beliefs do hold different views. Despite the fact that varied political
stances and views exist in the community, Hong Kong residents have a general
agreement that the rule of law should be upheld. I hope Hong Kong residents
and Members in this Council would deal with this legal issue from a legal
viewpoint and with an objective and rational attitude.
Mr President, the Legal Subgroup of the PWC proposes not to adopt as part
of SAR laws three sections in the Hong Kong Bill of Rights Ordinance (BORO)
and the six ordinances which have been substantially altered because the above
sections and ordinances are inconsistent with the Basic Law. The Basic Law is
the only law with superior status in the future SAR. However, the BORO has
been given that status by virtue of sections 3 and 4 contained therein, and the six
substantially amended ordinances have undermined the executive and
administrative powers. This is not conducive to the maintenance of a stable
Hong Kong. This is inconsistent with those provisions in the Joint Declaration
and the Basic Law, which stipulate that the current social system and life-styles of
Hong Kong shall remain unchanged, and that the laws currently in force in Hong
Kong shall remain basically unchanged. How can the current social system and
life-styles in Hong Kong remain unchanged if the executive powers of the
Government are severely undermined, the stability of the society jeopardized, and
the laws totally altered?
Mr President, the British Government has signed two covenants on human
rights. In the 10 years between 1976 and 1986, the British Parliament had
discussions on four versions of the Bill of Rights but none of them was adopted in
the end. As a result, no Bill of Rights has so far been enacted in British law.
Does it follow that there are no human rights in Britain? Only a few countries in
the world have their Bill of Rights and they all put the Bill in a justified position
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rather than an overriding one. Section 4 of the New Zealand Bill of Rights Act
1990 provides that: "no court shall, in relation to any enactment (whether passed
or made before or after the commencement of this Bill of Rights), hold any
provision of the enactment to be impliedly repealed or revoked, or to be in any
way invalid or ineffective; or decline to apply any provision of the enactment ─
by reason only that the provision is inconsistent with any provision of this Bill of
Rights." Section 5 therein contained provides that: "subject to section 4 of this
Bill of Rights, the rights and freedoms contained in this Bill of Rights may be
subject only to such reasonable limits prescribed by law as can be demonstrably
justified in a free and democratic society." Regrettably, the Hong Kong
Government is totally oblivious of the New Zealand practice.
Are the countries mentioned above emasculating the Bill of Rights? As
regards the United States, she is not a party to the two covenants on human rights,
but the principles of the Universal Declaration of Human Rights are enshrined in
her constitution, just as these principles are enshrined in the Basic Law. Do
human rights thus not exist in the United States?
Mr President, some people have denied the overriding status of the BORO.
However, the heading of the relevant bill was originally : "Ordinance to override
existing law". The Fourth Periodic Report submitted by the British Government
in July this year to the Human Rights Committee of the United Nations still
admits that the BORO "overrides any existing law that cannot be so construed (as
to conform to it)." So, the BORO is said to be overriding on the one hand but on
the other hand its overriding status is denied.
In this deliberate
misrepresentation or self-contradiction? I hope everyone can remove their
prejudices and think carefully about the reasons behind the matter. Some others
say that section 3 is not meant to override. It was just the common law principle
of "subsequent legislation being better than pre-existing legislation". However,
section 4 contained therein reveals a complete reversal : "pre-existing legislation
is better than subsequent legislation". Hence, both "pre-existing legislation and
subsequent legislation are just as good". This is really confusing. I wish to
categorically point out that when the enactment of the Bill was discussed in
Britain, Lord Denning, an utmost authority in the British judicial community, was
of the view that if the implementation of the Bill conferred judges the right to
repeal the legislative power of Parliament, judges would become politicized, and
their appointment would hinge on political incentives, thereby adversely affecting
the goodwill of the judiciary.
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217
Mr President, in the motion there is mention of the proposal by the Legal
Subgroup of the PWC to repeal in 1997 certain provisions of the BORO. The
notion of "repeal" is wrong, as Article 160 of the Basic Law states that "upon the
establishment of the Hong Kong SAR, the laws previously in force in Hong Kong
shall be adopted as laws of the Region except for those which the Standing
Committee of the National Congress declares to be in contravention of the Basic
Law. Because certain laws in force will be in contravention of the Basic Law,
the PWC proposes not to adopt the same as laws of the SAR, under Article 160
aforesaid. Since these laws never exist in the laws of the SAR, how can they be
"repealed" at all?
Mr President, the Basic Law has provided protection of rights and
freedoms not only in Chapter III but also through the various provisions in other
Chapters and Articles therein. I hope Hong Kong residents will understand that
after 1997 their human rights will not only be protected through covenants on
human rights as applied to Hong Kong but also be better protected through the
Basic Law.
Mr Presient, I so submit.
MR ANDREW CHENG (in Cantonese): Mr President, I would like to begin my
speech with a joke on the judiciary of China in a bid to harmonize the
atmosphere. A young lawyer who had just entered into the legal profession was
defending his client eloquently with an alibi. His eloquency could not impress
the judge at all, but his eagerness to help the defendant had convinced the judge
that he was in collusion with the defendant and so he was convicted as well. As
regard the fate of the defendant, I believe there is no need for me to tell you here.
There is tear in the laughter. I do not intend to see that the important officials of
the judiciary of the future Hong Kong Special Administrative Region (SAR)
Government will be like the protagonist of the above story, but it seems such
worry is quite understandable. Justice YEUNG and Justice LIU of the Judiciary
recently have made some criticisms on the Bill of Rights Ordinance, and Justice
LIU even said the Bill of Rights Ordinance would make it difficult for the
law-enforcing agency to collect evidences. These comments are in fact
countered with the tradition of providing adequate evidences on the prosecution
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of the defendant by the plaintiff. How can we stop worrying if Justice LIU uses
this kind of logic to handle cases?
Mr President, the retrogressive proposal of the Legal Subgroups of the
Preliminary Working Committee (PWC) has become a political issue. Justice
YEUNG also participated in this discussion and he spoke in one way but actually
aimed at something different. It is doubted that the officials of the Judiciary
who are supposed to be neutral in tradition will join the queue of political
opportunists to get close to the centre of power, creating a crisis in the Hong
Kong legal system. As 1997 is drawing near, officials of the Judiciary should
keep to their own line and work hard to safeguard the "righteousness" and
"fairness" of the legal system and the Bill of Rights Ordinance. They should not
exercise excessive internal self-restraint or excessive self-inflation in view of the
change of sovereignty. Otherwise, no matter how hard we defend the Bill of
Rights Ordinance, it will finally fall victim to the politically-oriented officials and
become political rubbish.
Mr President, I would like to raise some objections to the reasons of the
PWC's retrogressive proposals. Considering that the Bill of Rights Ordinance
has gravely undermined the administrative power of the Government, the Legal
Subgroup of the PWC has decided to amend some legislations in order to revive
the same administrative power as the Hong Kong British colonial regime for the
future Special Administrative Region (SAR) Government. Mr President, human
rights are the most invaluable natural gifts given to human beings. It is just like
clouds in the blue sky and fresh air which belong to us naturally. We do not
have to fight for it, and if we have to do so, it is because we have been deprived
of this right or we have lost it. Also, the general public has been deprived of
their rights and the special right is in the hands of the ruling class who have many
vested interests. At present, the privileged class who once owned many vested
interests is leaving and they are handing out the original right to the public.
Regrettably, the members of the PWC, who are a new breed of the privileged
class, are worried that they cannot continue to enjoy the privileges and have made
some irresponsible remarks. These comments have rendered the "high degree of
autonomy" and "one country, two systems" of the future SAR Government sheer
nonsense. Mr President, the development of human rights is a trend of
international concern, and it is also a historical trend that cannot be resisted.
Members of the PWC should understand this very fact; they should not just take
care of their vested interests and ignore the needs of the public and their
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219
aspirations for the return of human rights. The Democratic Party recently has
collected tens of thousands signatures in a short time to inform the Hong Kong
British Government that human rights cannot be stripped away.
Moreover, Mr President, the Legal Subgroup of the PWC also mentioned
that to amend the Bill of Rights Ordinance does not mean that we are going to
have no human rights in Hong Kong. This point seems reasonable, but on
second thoughts, we have found that it can only be convincing in an utopian
society. In a society where everyone is equal, everyone is contended with their
status and there is no deprivation of human rights, the existence of legislations
will be meaningless and valueless. This is because the enacting of any law is to
counteract social unfairness and injustices with an independent legal system.
However, a goal is just a goal; there are still many cases of unfairness and
injustice in Hong Kong. If we do not have a set of comprehensive Bill of Rights
Ordinance to protect human rights, it is not going to get us anywhere. If the Bill
of Rights Ordinance is amended to provide special right to people who have
vested interests, it is actually trampling on human rights.
Mr President, I would like to respond to the proposal of the Democratic
Alliance for Betterment of Hong Kong (DAB) to leave the amendment of the Bill
of Rights Ordinance to the SAR Government. It is just an attempt to bury their
heads in the sand, but I can read between the lines that members of the DAB do,
to a certain degree, acknowledge amendments to the Bill of Rights Ordinance.
However, the DAB may consider that the amendments should be proposed, not
by an illegitimate body, that is, the PWC, but by a legitimate body of the future
SAR Government. However, Mr President, this will do Hong Kong people no
good at all.
Mr President, with these remarks, I support both the original and the
amended motion.
MR LO SUK-CHING (in Cantonese): Mr President, the controversies caused by
the proposal of the Legal Subgroup of the Preliminary Working Committee
(PWC) have gone beyond legal arguments to become political debates.
Actually, the Legal Subgroup's recommendations did not call for amending Part II
of the Hong Kong Bill of Rights Ordinance (BORO). In other words, it has not
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asked the Standing Committee of the National People's Congress (NPC) not to
adopt any provision of Part II of the BORO. It has only recommended to delete
some of the provisions in the Preliminary which give supremacy to the BORO.
Such a move will not undermine the implementation of the BORO in Hong Kong.
In fact, the question of how human rights should be safegarded in Hong
Kong has already been dealt with in the Sino-British Joint Declaration, and
further specific stipulations have also been provided in the Basic Law. Section
XIII of Annex I of the Joint Declaration stipulates that the provisions of the
International Covenant on Civil and Political Rights and the International
Covenant on Economic, Social and Cultural Rights as applied to Hong Kong shall
remain in force. Besides giving effect to these two covenants, Article 39 of the
Basic Law further provides that international labour conventions shall remain in
force.
During the Sino-British negotiations in 1984, the British side informed the
Chinese side that the two international covenants were directly applicable to
Britian (including Hong Kong) through existing English laws. The report
submitted by the United Kingdom in 1978 to the Human Rights Commission of
the United Nations also mentioned this point, saying that it was unnecessary to
incorporate the international covenants into the English laws. Indeed, the
United Kingdom has so far not enacted any bill of rights. When enacting the
Basic Law, China accepted some of the advice put forth by Britian. The two
Governments have reached a consensus that the laws of Hong Kong should
basically remain unchanged. Apart from stipulating that the two covenants as
applied in Hong Kong shall remain in force, the Basic Law further elaborates that
these covenants "shall be implemented through the laws of the Hong Kong
Special Administrative Region".
The antecedent of the controversies over the BORO was the breach of the
Sino-British Joint Declaration on the part of the British side. In 1989, Britian
changed its China policy and on 28 June of the same year, the second report on
Hong Kong was published by the Foreign Affairs Committee of the House of
Commons of the United Kingdom in which it was suggested that the Hong Kong
Government should enact a bill of rights and amend the existing laws.
Subsequently, the BORO was passed in the Legislative Council.
LEGISLATIVE COUNCIL — 15 November 1995
221
Sections 2 and 3 of the Preliminary of the BORO stipulate that "the
purpose of this Ordinance is to provide for the incorporation into the law of Hong
Kong of provisions of the International Covenant on Civil and Political Rights as
applied to Hong Kong". By "incorporation into the law of Hong Kong", it
means turning the provisions of the covenant into the law of Hong Kong so that it
can be directly implemented in Hong Kong. This is totally different from the
Sino-British consensus that these covenants "shall be implemented through the
laws of the Hong Kong Special Administrative Region" and is divorced from the
practice of Britian that these covenants are implemented through its existing laws.
More obviously, these sections have contravened Article 39 of the Basic Law and
shall therefore be discarded in accordance with the Basic Law. Such a
fundamental change has given rise to political rows, as there have been no prior
consultations with China and China's strong opposition has also been ignored.
Obviously, sections 3 and 4 of the Preliminary of Part I of the BORO give
supremacy to this ordinance. The Government's assertion that the BORO enjoys
the same status as other legislations and does not prevail over the others is
therefore misleading. In 1995, the British Government, in its fourth regular
report on the human rights in Hong Kong submitted to the Human Rights
Commission of the United Nations, also admitted that the BORO prevailed over
any legislation which was not capable of being construed in the same manner as
the BORO.
Subsection 3 of Article 11 of the Basic Law provides that the Basic Law is
supreme. After 1997, laws relating to safeguarding the rights and freedoms of
the residents in the Hong Kong Special Administrative Region shall be based on
the provisions of the Basic Law, instead of the BORO. If supremacy of the
BORO is recognized, there will be confusion in the interpretation, which will
undermine the implementation of the Basic Law or even erode the Basic Law.
In view of the fact that sections 3 and 4 of the Preliminary of the BORO give
supremacy to this ordinance which is contravening the Basic Law, it is therefore
reasonable to have these sections deleted in accordance with the Basic Law.
Mr President, since the enactment of the BORO in 1991, more than 50
ordinances have been amended for contravening the BORO and quite a number of
applications for judicial review have been submitted in accordance with the
BORO. Besides, a lot of precedents have been established, which will be
overriding as they are products of the overriding BORO. This will cause a lot of
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adverse impact on our legal system.
The BORO has unprecedentedly
empowered the courts at all levels to declare that certain legislations contravene
the BORO and should be invalid. Obviously, this is contrary to the spirit that
"existing laws shall remain basically unchanged".
Mr President, I would take this opportunity to recommend that this Council
should urge the Government to review our existing laws and that those which are
in breach of the Basic Law should be put before this Council for amendment as
soon as possible so as to strengthen the constitutional status of the Basic Law.
This is to avert the problem of legal discontinuity when more legislations are
found to be not capable of being adopted by the NPC for breaching the Basic
Law. Such a move will conform with the spirit of "Hong Kong people ruling
Hong Kong".
I so submit.
MRS ELIZABETH WONG: Mr President, I share the views of all Honourable
Members, in particular the Honourable Miss Emily LAU, who has spoken before
me so eloquently and clearly in the interests of Hong Kong people. I shall not
repeat what has been said but, as a humble human being, I do care about human
rights. I believe human rights issues affect the very fabric of our society and the
well-being of every single individual.
Human rights initiatives should be of concern to all of us, to government
officials and citizens alike, as these issues permeate through every aspect of our
daily lives. Simple things that we take for granted should illustrate for us the
importance of adhering to human rights under the rule of law here. For
example, little things like do we have freedom of speech to say what we want to
say without disappearing into the night? Do we have public accountability or
are we subjected to unpredictable and obscure reversals of laws or policies?
Can we live predictably within the framework of law, or are we beaten with a
stick and subjected to abuses?
Many of us actually live in fear of an uncertain future which becomes more
uncertain as we argue about demolition all the time. We talk about demolishing
this legislature, demolishing the law and the rules that have been accepted and
passed. But we should be talking about smooth transition, about construction,
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223
not about demolition. For we know deep down inside that the value of our
human rights will not be diminished even if we dismantle all our laws or limit
them to attune to the wishes of our future masters. We are asked to face certain
hard realities, are we not, here today?
On the threshold of the 21st century, I must say I find it very hard to
believe that today some of us who claim to be leaders of our society are still
blinkered with 18th century blinkers. We have heard arguments today which
justify a reversal to the good old days of the past. These arguments may sound
soothing to some ears and even plausible, but there is a time-honoured saying in
Chinese that if you want to find fault with anything you will find the right words
to fit it. But what is clear is that human rights initiatives present a challenge to
all of us here today. To succeed, we must keep in view the essential linkage
between democracy, the rule of law and human development as a whole. The
retention of human rights in Hong Kong calls for a concerted effort by the
legislature, by the executive and an active citizenry to cultivate the fragile flower
of human rights. We must allow that flower to grow. We do it for our own
sake. We owe it to our children, to the next generation to look to the sun and let
the shadows of the past fall behind us.
But I think, Mr President, we are in a right old mess. If what is reported
in the media is anything to go by, the independence of the Judiciary is
compromised, the separation of powers between the Judiciary and the executive is
also being compromised by the very people who should know better. The
Government might even run the risk of being called schizophrenic. We want a
Government, a system which is transparent, which is accountable. We want to
fight against arbitrary, discretionary, discriminatory, repressive reversals of
policies, we do not want to go back to old laws. Those who live in the past have
no future. We might as well know that. We are going to be in the 21st
century. We should not adopt an 18th century mentality. We should abandon
the hapless inertia of the past. We should address and redress injustices.
History tells us that when human beings are suppressed there will be social
disorder. And in extreme cases, these disorders will degenerate into violent
confrontation and horrific civil war. Positive lessons are to be learned from
experiences gained elsewhere. So, let us speak for the well-being of the people
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here. Let us protect for them what is rightfully theirs. Let us preserve what is
already in our law and let us pursue the goals, legitimate goals of the Sino-British
Joint Declaration, of a high degree of autonomy and Hong Kong people
governing Hong Kong under Chinese sovereignty. Without that, you can kiss
the future of Hong Kong goodbye.
With these remarks, I support both the motion and the amendment
proposed.
MR BRUCE LIU (in Cantonese): Mr President, I speak on behalf of the Hong
Kong Association for Democracy and People's Livelihood (ADPL) so that
Members' time can be saved by three times.
The Legal Subgroup of the Preliminary Working Committee (PWC)
recently proposed to repeal some of the provisions of the Bill Of Rights
Ordinance (BORO), to repeal two ordinances which have already been passed by
this Council and to reinstate six pieces of legislation which were amended for the
reason that they are in breach of the BORO. The ADPL thinks that this proposal
is not acceptable.
The proposal of the Legal Subgroup of the PWC can well be described as a
"three-destruction" proposal:
Firstly, it destroys the commitment to the Hong Kong Special
Administrative Region (SAR) as enshrined in the Sino-British Joint
Declaration and the Basic Law, that the provisions of the two international
human rights treaties shall be implemented.
Secondly, it destroys the provisions in the Sino-British Joint Declaration
and the Basic Law that provide for the Hong Kong SAR independent
legislative power.
Thirdly, it destroys the commitment of the Chinese Government to the
Hong Kong SAR that there will be a high degree of autonomy and that
Hong Kong people will rule Hong Kong, thereby seriously undermining
the confidence of Hong Kong people in the protection of human rights in
the future SAR.
This argument over the BORO has seriously
disappointed the people of Hong Kong with far-reaching repercussions.
LEGISLATIVE COUNCIL — 15 November 1995
225
Some people are of the opinion that if this incident were to occur before 17
September this year, that is, before the Legislative Council election, even
the Honourable Miss CHAN Yuen-han, whom I appreciate very much,
might not have been elected to this Council.
The PWC proposes that certain provisions of the BORO should be repealed
for the reason that the BORO is in breach of the Basic Law. However, the first
paragraph of Article 39 of the Basic Law stipulates that "The provisions of the
International Covenant on Civil and Political Rights, ..... as applied to Hong Kong
shall remain in force and shall be implemented through the laws of the Hong
Kong Special Administrative Region." Since the BORO is to provide for the
incorporation into the law of Hong Kong of provisions of this international
covenant, the enactment of the BORO is absolutely in line with the Basic Law.
The enactment of the BORO aims at buying more time for the judiciary of Hong
Kong to attune itself and to keep itself up to the standard of international human
rights. That would also allow the establishment of more cases for future trial
reference. If we do not have several years' time to accumulate experience and
cases, the courts of the future SAR will have no time and experience to
practically implement the provision as laid down in Article 39 of the Basic Law.
In view of this, the BORO not only does not contravene the Basic Law, but is
conducive to the implementation and enforcement of the Basic Law.
The PWC also proposes to reinstate the six pieces of legislation which have
been amended in accordance with the BORO so that they would revert to their
pre-amendment versions. The ADPL thinks that this "reinstatement" suggestion
has seriously damaged the provisions of the Sino-British Joint Declaration and
the Basic Law whereby the SAR shall have legislative power.
The
pre-amendment version of the six pieces of legislation have "died" in the legal
context and the only means to revive them is for the legislature to re-legislate and
pass them into laws again. Only by such means can these pre-amendment
versions be revived. However, the PWC proposes to adopt the pre-amendment
versions. This is tantamount to suggesting the Standing Committee of the
National People's Congress (NPC) to directly interfere with the independent
legislative power of the SAR. This would set a very bad precedent whereby the
NPC interferes with the legislative affairs of the future SAR, thereby dealing a
heavy blow to the legal system of the future SAR and undermining our
confidence in Hong Kong people ruling Hong Kong.
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Furthermore, as I have already mentioned, the original provisions of the
amended ordinances have died in the legal context. They cannot be revived
unless proper legislative channels and procedures have been gone through. If
the amended ordinances were to be repealed while the original versions of these
ordinances could not take their places in accordance with the proposals of the
PWC, then a legal vacuum would arise in Hong Kong. Therefore, it is basically
an option which asks for troubles because it is proposing a scenario under which a
legal vacuum would arise. Therefore, the ADPL suggests to the Standing
Committee of the NPC: if it is found that some of the laws of Hong Kong are in
breach of the Basic Law and have to be amended, they should be handed back to
the Legislative Council of the future HKSAR to handle.
The PWC proposes to reinstate the six pieces of legislation which have
already been amended subsequent to the implementation of the BORO. Once
these laws are reinstated, that would be tantamount to reverting Hong Kong's
human rights situation to the situation before the enactment of the BORO. This
is a kind of retrogression and is not acceptable to the people of Hong Kong. At
the same time, the obsolete "Societies Ordinance" and the "Public Order
Ordinance" are colonial laws and should be amended. The proposal of the PWC
only reflects their colonial mentality. This is really disappointing.
It is shocking to learn that the Legal Subgroup of the PWC proposes to
repeal two ordinances. The repealing of the "The Legislative Council
Commission Ordinance" will bring no benefit to anybody but would only bring
disaster to the fish in the moat. It is all the more astonishing that the Legal
Subgroup of the PWC only proposes to repeal the "The Legislative Council
Commission Ordinance" while no remedial suggestion is made: demolition but no
construction.
Since the implementation of the BORO, some of the laws of Hong Kong
have been amended to comply with the international human rights standards.
The ADPL holds that the work in this area is commendable. However, right
now, there are still a lot of legislation which is in breach of the BORO and some
Hong Kong laws still have a long distance to go if they were to come in line with
international human rights standard. The ADPL urges the Government to
continue with its review over such legislation and to submit legislative
amendment proposals to this Council for scrutiny with a view to strengthening the
protection for human rights. The ADPL also urges the British Government to
work through diplomatic channels and seeks to conduct discussions with the
LEGISLATIVE COUNCIL — 15 November 1995
227
Chinese Government over this incident so that the opinions of this Council can be
reflected.
I so submit.
MR CHEUNG MAN-KWONG (in Cantonese):
Refutation of the theory of re-instatement of laws to their 1984 position
Mr President, today I am going to refute some opinions that exist both
within and outside this Chamber. The Honourable Ambrose LAU and Dr the
Honourable Philip WONG said that, according to the Sino-British Joint
Declaration, laws currently in force in Hong Kong will remain basically
unchanged, and that "laws currently in force" refers to those laws in force as at
1984. They further argued that as the Bill of Rights (the Bill) was enacted after
1984, the National People's Congress might well refuse to accept it. This kind
of opinion is playing tricks with words, a political sophistry. Just let us consider
this. In the 13 years between 1984 and 1997, how can any society have laws
that remain unchanged? Even on the Chinese side, in Annex III of the Basic
Law, laws directly applicable to Hong Kong regarding the national flag and
national emblem were altered in 1990. Why can Chinese laws involving the
Basic Law be altered but local Hong Kong laws of Hong Kong cannot be altered
according to the human rights covenants introduced through Article 39 of the
Basic Law? This is self-contradictory. Is this not double standards allowing
Beijing to burn down houses but forbidding Hong Kong even to light lamps?
Refutation of the theory of mildness and restraint exercised by the Preliminary
Working Committee
In fact, the Preliminary Working Committee (PWC) has always been
politically-oriented in its proposal to re-instate laws or to take or leave certain
laws. Dr. Philip WONG asserted that the PWC has not abandoned the Bill
altogether, saying that it has been mild and self-restraining in that it has proposed
re-instating only six out of 50 ordinances involving human rights. However, it
can clearly be seen that the six ordinances to be re-instated are all related to the
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freedom of assembly, procession, association, speech and so on. So, the most
important political end for emasculating the Bill, and re-instating bad colonial
laws is to suppress mass movements and freedom of speech. All in all, the
proposal stems from a distrust of Hong Kong residents, fearing that they might
lose control of their speeches and actions. So, the Bill is being treated as a
serpent, whose poisonous teeth must be extracted to have it emasculated.
Refutation of the theory of targeting at the British
Mr SHAO Tianren, legal subgroup convener of the PWC for the Chinese
side said that re-instating laws are done mainly to target at the British, and that
Hong Kong residents being brothers, they are entitled to negotiations in future. I
do not agree with such a view. The re-instatement of laws is in reality targeted
at Hong Kong residents. I am afraid more than half of the Honourable Members
present, including perhaps pro-China friends, have in the past been trodden upon
by these six bad colonial laws, which have done great humiliation to us in our
activities involving assembly, procession, and association. Today, have those
who support emasculation of the Bill forgotten their past? Have they forgotten
how many of their friends have been humiliated by these laws? One should not
forget bitter past experiences simply because times have changed and the day for
assuming power is nearing. Indeed, Britain will no longer be Hong Kong's
sovereign state after 1997, and so will not be harmed at all then by the
emasculation of the Bill. How can the British be targeted at? If Hong Kong
residents are brothers after 1997, and are therefore entitled to negotiations, why
are they not so entitled before then? Are Hong Kong residents not brothers
before 1997? Are only pro-China rising stars brothers? Why should human
rights in Hong Kong be emasculated by actions that are targeted at the British?
Refutation of the theory that the Legislative Council is not in a position to
criticize the PWC
One view holds that the Legislative Council is not in a position to discuss
the PWC's proposal to amend the Bill. Mr ZHENG Guoxiong of the New China
New Agency even described the debate as "ridiculous". Mr President, the
Legislative Council is a council elected by residents. Every Member has sworn
allegiance to Hong Kong residents. Are we supposed to renege on our promises
within less than two months of taking office, and to forget completely about the
trust our electors have put in us? Recent polls and public opinions have revealed
LEGISLATIVE COUNCIL — 15 November 1995
229
great resentment towards the PWC's act of emasculating the Bill. It would be
negligent of duty and disappointing to electors for an elected councillor, being a
residents' representative in the Legislative Council, not to criticize the PWC.
Indeed, even the post-1997 legislature is entitled under Article 73 of the Basic
Law to debate any issue relating to public interest. How can one say this is
ridiculous? So, to say that the Legislative Council is not in a position to criticize
the PWC or to unduly involve other Members in the matter is, put simply, a
pretext to exercise self-restraint and impress the future boss. This is exactly the
constraint enlightened pro-China persons are subjected to: Whenever material
issues such as mistakes committed by China are involved, such persons either
become silent or dodge. How can this kind of behaviour reflect the hopes and
fears of Hong Kong residents or pave the way for democracy?
Refutation of the theory of postponing the issue for the Special Administrative
Region (SAR)
Another idea to eschew the issue is put forward by the Honourable
CHEUNG Hon-chung and the Honourable IP Kowk-him of the Democratic
Alliance for the Betterment of Hong Kong: leave the amendment of the Bill to the
SAR. This is a familiar argument, used in avoiding problems. In the past,
whenever the June 4th incident was mentioned, some said: let history decide.
Now, when human rights is mentioned, some say: let the matter be dealt with in
1997. But one must face the music anyway at the end of the day. Arguments
for human rights are crystal clear. Why should we postpone the issue? One
should be loyal to one's boss. Nowadays, by "boss" it is meant the public. If
all difficult issues were to be put off until 1997, why bother to campaign for an
election? Why not be a member of the provisional legislature in 1997 when the
Bill will be emasculated more completely?
A regime that causes amnesia
Mr President, amnesia is in fashion. Recently, amnesia has occurred to
the defendant, the witness and even the Chief Justice. The story of a forgetful
Chief Justice Ti-liang YANG is one that in the eyes of many is laughable,
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pathetic and detestable. But what gave rise to the story is frightening. If not
for the Sino-British bickering and the totalitarian policy the Chinese Government
has adopted, would the honourable Mr Justice have resorted to please with a
deceitful personality so as to survive post-1997 days? Hence, in criticizing the
Chief Justice, one should at the same time criticize more forcefully a regime that
makes people forget things; otherwise throwing more stones at the Chief Justice
can only result in more scornful laughs from a regime following an extremely
leftist line. Therefore, if we are still sufficiently moral and courageous, we
should give the Bill our support, and unequivocally, tell the Chinese Government
through the Legislative Council what Hong Kong residents think.
Mr President, with these remarks, I support the Honourable Albert HO's
motion.
MR TSANG KIN-SHING (in Cantonese):
Let Me Refute Some of the Gossipy Remarks
Mr President, Mr ZHENG Guo-xiong, the Deputy Director of the New
China News Agency said, "This motion itself is both inappropriate and absurd."
Possibly, he implies that the Legislative Council has no right at all to discuss the
proposal of the Preliminary Working Committee (PWC), and that it is nothing but
a rubber stamp. However, can Mr ZHENG inform the Hong Kong people when
and where the Chinese Government has undertaken that we can hold discussions
and make decisions in regard to the politics, economy and social livelihood of
Hong Kong?
As regards the Sino-British Joint Declaration and the Basic Law which are
valued highly by the Chinese Government, have the Hong Kong people ever been
permitted to select their own representatives to participate in the enactment?
One can still argue that the Sino-British Joint Declaration is related to foreign
affairs. However, one cannot deny that we have the right to participate in the
enactment of the Basic Law. The whole process was undertaken by the Chinese
Government while the Hong Kong people have no say at all. Subsequently,
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231
there is the so-called PWC which was also born in a similar way. Mr ZHENG
remarked that the motion was absurd. But has he ever asked himself that
through what channels can the Hong Kong people reflect their views? In regard
to the creation of the PWC, it is "an illicit transfer". As regards its operation, it
is "operation in the black box". For its composition, it is "autocracy of money
authority".
Laws are to Serve the Ruling Class
Mr President, it is simply because of this that we hold this debate today.
The PWC has never dared to present full grounds to justify itself. Is the purpose
of legislation to serve the ruling class just as what Karl MARX said, or to protect
the democracy, liberty and human rights of the masses? May I ask the PWC and
the Chinese Government that if we take one step back, can we have a brighter
future? As long as the laws are made by the British Government, they are
colonial laws and are "political cards". Such being the case, why do you have to
retain and even to revive the old colonial laws?
The Conspiracy Theory of Ruling Hong Kong
Mr President, all along, the Chinese Government's way of ruling Hong
Kong has been on the basis of struggles. It has even adopted the "conspiracy
theory" to deal with the British as well as the Hong Kong British Governments.
Their guiding rule is to check the motives in every single issue. How can it be
beneficial to the Hong Kong people?
Of course, we cannot blame our "great motherland", because this is a kind
of rebound on her weaknesses in foreign affairs during the past century. She has
now gone from one extreme to another, from being self-abased to being
self-conceited.
To the Hong Kong people, nothing is more precious than freedom and
democracy. "Administration back to China" and "Administration back to
people" do not make any difference to us, unless the Chinese Government does
not recognize us as members of the Chinese family or the masses are not the
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masters of our China.
Does the Democratic Alliance for the Betterment of Hong Kong (DAB) have the
Sincerity to Serve Hong Kong?
Mr President, I would like to talk about whether the DAB is sincere in
fighting for the Hong Kong people or whether it is actually deceiving the Hong
Kong people. During the critical moment, they are still unable to openly defend
the Bill of Rights, they are still speaking in favour of the PWC and the Chinese
Government. I hope that a stag is a stag and a horse is a horse. Now that the
real dragon has come, should they still behave like tortoises by hiding their heads
in the shells? As a matter of fact, the proposal of reinstating the six old laws is
by no means a coincidence. It is but a prelude of the chorus between the
Chinese Government and those Hong Kong people with vested interests for
grasping securely the power by means of a political tool called the PWC. Has
the PWC not revealed this intention even more expressly before? Have the
Chinese Government and the PWC not proposed the method of creating the
so-called Provisional Legislature which is to be self-directed and performed by
400 people? On the one hand, they are skillfully taking away the democratic
elections and the right to run elections from the Hong Kong people. On the
other hand, they are also seizing the right of assembly, demonstration, speech,
association, access to information and so on from the people.
From the PWC, the Preparatory Committee to the Chief Executive and the
Provisional Legislature
Mr President, however, I would not like to reproach the PWC any more.
As a tool, its mission is almost finished. Very soon, it will become the core of
the Preparatory Committee. The existing farce of calling a stag a horse will only
be transformed into a scramble for cakes. The epitaph of the noble is noble,
while the epitaph of the contemptible is contemptible. Nevertheless, the spirits
of these nasty ghosts will not disperse. They will be alive again by taking the
form of the Preparatory Committee, the Provisional Legislature and the Chief
Executive designate. To tighten up legislation in order to restrict freedom of the
people is merely a reflection of their fragile nature. From the PWC, the
Preparatory Committee to the Chief Executive and the Provisional Legislature, to
criticize them is only the very first step of a long fight. I am not a member of
the opposition camp in the organizational system. Instead, I am a member of the
resistance camp fighting inside and outside of the system. There will be hope
LEGISLATIVE COUNCIL — 15 November 1995
233
only if we can assemble the power of the public and co-ordinate the forces from
both within and without. I would like to make use of the Legislative Council as
the forum and do my modest part for the democratic movement.
The Story of the "Fire Bulls"
Mr President, I am also nicknamed "the Bull" which reminds me of an
ancient story in China called the "fire bulls". When the enemies are gradually
eating away the democratic power and freedom of the people and when our city is
being encircled ring upon ring, I am willing to become a bull with my horns set
on fire which can then rush out to fight against the enemies. Are the rights and
interests of the Hong Kong people not being taken away bit by bit in these few
years? I would like to be a fire bull and rush out for our defence.
Mr President, with these remarks, I support the motion.
MR NGAN KAM-CHUEN (in Cantonese): Mr President, because of shortage of
time, the Honourable IP Kwok-him was not able to state the stance of the
Democratic Alliance for Betterment of Hong Kong (DAB) completely. I now
continue with the DAB's stance from where he has left off.
Respect for human rights is an indication of the advancement and
development of a society. The protection of the rights and freedoms of the
Hong Kong residents also comprises a major part of the Chinese Government's
basic general and specific policies towards Hong Kong. All these have been set
down in the Sino-British Joint Declaration and the Basic Law. Through the
implementation of the Basic Law, the rights and freedoms of the Hong Kong
people will receive full and proper protection. It is no doubt that in the latter
part of the transitional period, the implementation of the Bill of Rights can, in the
face of so many uncertainties, provide the people with an extra kind of legal
protection which will bring in greater stability in the community and more
confidence in the part of the investors in Hong Kong. To allow Hong Kong to
continue maintaining this environment where people can feel at ease, the DAB
considers that the implementation of the Bill of Rights should remain in Hong
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Kong after 1997.
Regarding the Honourable Miss Christine LOH's amendment, although the
DAB always supports the equality between the two sexes, we feel that this must
be achieved through an education process so that the whole plan of building up a
concept of equality can be set in the people's mind. This cannot be achieved by
simply supporting the amendment of a bill. Besides, we also have to consider
and respect the will of most of the indigenous residents of the New Territories
who are not ready to have their customs changed for the time being.
To sum up, we believe that whether the provisions are to be reinstated or
repealed should be decided by the Special Administrative Region Government
itself.
These are my remarks and I oppose Mr Albert HO's motion and Miss
Christine LOH's amendment.
DR HUANG CHEN-YA (in Cantonese): Mr President, some Members say that
many western countries do not have a comparable Bill of Rights; in other words,
they wonder why Hong Kong should have this Bill. Is it that since no western
countries have it, we should not have it either? Is it that since there are abundant
cases of violation of human rights in the west, we should violate human rights
too? Why should we belittle ourselves and feel so inferior as to think that we
can only follow the lead of other countries? Why cannot we, the people of Hong
Kong, make a Bill of Rights which is better than that of many western countries
and let our people enjoy the human rights which westerners are yet to enjoy?
Some Members say that we should not dance after the western human rights.
This is correct. Human rights are not the product of the west, nor are they
exclusively owned by the west. Westerners have human rights and so should the
people of Hong Kong. The people of Hong Kong are not second class world
citizens and neither should the Chinese be. This Council supports the Bill of
Rights because we the people of Hong Kong and China should enjoy the rights
and dignity given to us by the Bill of Rights. When those Members who support
the stance of the Preliminary Working Committee (PWC) and the Chinese
Government speak, why have they not the guts to affirm the demand for human
rights by the Hong Kong people? Why do they not dare to emphasize the
human rights that Hong Kong people should have? They say that there are
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235
imperfections with the present Bill of Rights, and that, after the implementation
of the one-country-two-systems policy and the Hong Kong people ruling Hong
Kong after 1997, if the Hong Kong Government and the legislature still find that
there are problems, they can always amend the laws until perfection is reached.
There is absolutely no need for the PWC to speak out of turn and for China to
intervene, they maintain. When the PWC performed the sword dance, did they
have something else in minds? Is it their purpose to weaken the Hong Kong
people's power of ruling Hong Kong and set a precedent for Beijing to rule Hong
Kong? Hong Kong is now experiencing an economic downturn and the people
lack confidence in both consumption and investment. One of the most
important factors is that China is now taking the ultra-leftist line and goes on
dampening Hong Kong people's confidence. Such fierce bombardments on the
Bill of Rights may serve as a typical example.
Someone says the Bill of Rights has been passed with indecent haste. No,
indeed, Mr President; on the contrary; the attack on the Bill of Rights is an
indecent act which should be rebuked. Everyone knows many laws in Hong
Kong were initially made with the aim to safeguard the rule of the colonial
government and to facilitate their trampling on the rights of the Hong Kong
people. Is 150 years not long enough to have our rights trampled on? Is it
really incorrect and too hasty to repeal these laws which trample on the Hong
Kong people's human rights? That the PWC and the Beijing Government revive
these vicious laws in such a hurry to deprive Hong Kong people of their human
rights once again is apparently an indecent and hasty act. It is indecent indeed to
turn Hong Kong into a colony without the colonial rule of the British after 1997.
The Bill of Rights may weaken the administration of the colonial government and
it may also weaken the administration of an autocratic government, but what is
the government of a democratic society afraid of?
The current articles attacking the Bill of Rights are all counting the wrongs
of the British Government. But do remember that whether you bombard the
British or not, they will withdraw on 1 July 1997 anyway. No matter how fierce
the bombardments are, they will not hurt the British. These bombardments will
only break the Hong Kong people's hearts, hurt their feelings and ruin their trust
in China. If this is not betraying the interests of China and Hong Kong, what
else is it? If you are really patriotic to China, please do not mislead the Beijing
Government. If you are really patriotic to China, please do not lie with a view to
rationalizing the wrongs of the Chinese Government. If you are really patriotic
to China, please tell the truth for the Hong Kong people.
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Mr President, in only 600 days comes 1997; why are the bureaucrats in
Beijing today still turning against the Hong Kong people by denying them their
demand for democracy and freedom and their demand for human rights?
Instead of just beating about the bush and talking only about whether the Bill of
Rights is in breach of the Basic Law, why should they never dare to acknowledge
the importance of human rights to the Hong Kong people and affirm the
indispensability of human rights to them? I again call upon the Chinese
Government to abolish the ultra-leftist line it is currently taking and to stop
attacking the Bill of Rights so as to respect the Hong Kong people's reasonable
demand.
Mr President, with these remarks, I support the Honourable Albert HO's
motion.
MISS CHAN YUEN-HAN (in Cantonese): Mr President, I am very glad today
to have heard my colleagues in this Chamber mention my name and the
organization to which I belong. Originally, I did not intend to speak.
However, under the circumstances, I am now prepared to voice my opinions.
First of all, I would like to respond to the remarks made by the Honourable
Bruce LIU earlier. He believes that had the Preliminary Working Committee
(PWC) made the proposal to extract certain parts of the Bill of Rights on 17
September, Miss CHAN Yuen-han would not have been elected to this Council.
I think that Mr Bruce LIU has underestimated the decision of the Hong Kong
voters. I think that when the Hong Kong voters decide whether to vote for a
candidate, they are not merely looking at a certain period of service, or a certain
deed, of the candidate, but whether this candidate can serve the Hong Kong
people for a long time, as well as what the standpoint of that candidate will be in
case of any contradictions between the Chinese and the Hong Kong
Governments. I deeply believe that the voters decided to vote in favour of my
entering the Legislative Council only after they had observed CHAN Yuen-han
for a long time. I hope that Mr LIU will respect the decisions made by our
voters.
The second question is that not a few colleagues have talked about the
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237
Democratic Alliance for the Betterment of Hong Kong (DAB) earlier. I also
respect deeply the love and care of our colleagues towards us. However, I
would like to raise a question. We should be able to understand that when a
political party raises an idea, it is hoped that the idea can be studied thoroughly
and systematically. Now let me turn to the DAB's point of view in respect of the
PWC's proposal to extract certain parts from the Bill of Rights. As a matter of
fact, when the proposal first came out, Mr TAM Yiu-chung, the Vice-Chairman
of the DAB, also shared the worries of the Hong Kong people in regard to the
extraction of certain parts from the Bill of Rights and he voiced his opinions to
the PWC Subgroup accordingly. He was against the proposal at that time.
However, within a subgroup, it is inevitable that the minority is subordinate to the
majority. Thus, under the circumstances Mr TAM Yiu-chung reiterated his
point of view to the mass media, spelling out at the same time what our worries
were.
Firstly, we think that the PWC itself is an organization and what it has put
forward is but a proposal. If the legitimate channel is to be followed, this
proposal should be discussed by the Preparatory Committee of the Special
Administrative Region (SAR) in future. If it is finally decided that amendment
has to be made to certain parts of the present Hong Kong Bill of Rights
Ordinance which, according to the PWC, does not comply with the Basic Law,
that decision can only be made by the Basic Law Committee of the future SAR,
which will then submit its decision to the National People's Congress for approval
before any amendment can be made. It is on this basis that we have suggested
the proposal of the PWC should be left to the future SAR Government for
discussion. I very much hope that my colleagues in this Council can really
understand this suggestion of the DAB, and will not denounce the DAB with very
simple reasoning for making such a decision.
I also hope that we can respect each other during the discussion. I think
that this is indeed necessary. Of course, whenever a political party raises an
idea, it is my view that it should be discussed by the people concerned on the
basis of mutual respect. As a matter of fact, in regard to the Bill of Rights, I
cannot see that the viewpoint of the DAB is different from that of the other
political parties in this Council. The greatest difference may be that some
colleagues hope that this motion can be carried during the debate today, while our
point of view is that this motion should be decided after 1997. According to
jurisprudence, this is after all a post-1997 matter. I, therefore, think that this is
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possibly where our difference lies. However, even if our opinions are different
from those of some other political parties, it does not mean that the DAB is
against the human rights of Hong Kong and is obstructing the progress of
democracy in Hong Kong. I think that this kind of remarks is extremely unfair
to us.
Mr President, during the transition period, we think that we can make use
of various kinds of discussions to reflect the different opinions of the community.
In this connection, my colleagues and I share the same view. However, we are a
bit worried because the present situation is so tense, if we want to have a better
future development of Hong Kong, shall we discuss this issue again after the
fervour? This is our thought behind the argument. Some of the colleagues in
this Council, of course, may not agree with us. But we will still show respect
for them.
Mr President, I have explained earlier why, confronted with the worries of
the Hong Kong people, we have to leave this issue to the future SAR Government
for discussion. This is because the proposal of the PWC has to be discussed by
the Preparatory Committee of the SAR in future. Even if any discussion is to
take place in the future, the issue will still be subject to examination by the Basic
Law Committee in the course of the formation of the future SAR Government.
After examination, the Committee will decide whether it should be submitted to
the National People's Congress. In view of the above, we do not support the
motion of the Honourable Albert HO today. Thank you.
THE PRESIDENT'S DEPUTY, DR LEONG CHE-HUNG, took the Chair.
MR FRED LI (in Cantonese): Mr Deputy, it has been a very long time since I
last made an impromptu response, without any prewritten script, to my
colleagues' speeches. I am going to try this once again today.
After listening to the speeches of quite a number of my colleagues, I would
like to make an immediate response to what the Honourable Miss CHAN
Yuen-han has said. Miss CHAN Yuen-han managed to get elected to this
Council because of her excellent packaging. This is where her success lies.
LEGISLATIVE COUNCIL — 15 November 1995
239
However, there are some key areas which we have to point out. When the
debate is focused on some political directions, it is undeniable that the
Democratic Alliance for the Betterment of Hong Kong (DAB) always has to
follow the stance of the Chinese Government. When she mentioned the
proposal of the Preliminary Working Committee (PWC) just now, she only
touched on it lightly and kept it in a very low key. She said that the decision
could be made by the Provisional Legislature of the future Special Administrative
Region (SAR). However, Mr WANG Feng-chao of the Hong Kong and Macao
Affairs Office has already stated clearly that the opinions of the PWC could fully
reflect and represent the standpoint of the Chinese Government. It was certainly
not the case that a group of people talking aloof among themselves and that the
Chinese Government found their points acceptable. In our view, the PWC is
merely a tool for expressing the standpoint of the Chinese Government.
In regard to our discussion of this issue today, some colleagues from the
PWC remarked that it had been politicized or that the original discussion on
jurisprudence had been elevated to a politicized discussion, which they felt
extremely sorry. But when we look at the discussion today comprehensively,
how much of it is related to jurisprudence? What are those six ordinances?
Have we discussed whether they should be reinstated? The answer is in the
negative. Have we discussed the contents of the ordinances? The answer is
also in the negative. Who is the first one to elevate this incident to political
issue? The Honourable LO Suk-ching, it is the Chinese Government which has
elevated this issue to a political tug-of-war. It has even got the Chief Justice
involved. This is a typical political tug-of-war which has turned our motion
debate into a pro-British, anti-Chinese conspiracy. The discussion on the Bill of
Rights has rendered the Chinese side a firm impression that we are against or are
condemning the proposal of the PWC. It thinks that we are not in the position to
discuss the issue, and that the Legislative Council should not discuss it. All
these remarks are in fact politicized enough. We are here to voice our opinions
because we are supported by the voters. We are returned by the voters. I think
that we have the full representation to speak on the proposals of the PWC,
because they will affect our human rights, freedom and rule of law in the future.
To leave the issue for decision by the Provisional Legislature of the SAR
Government in 1997 is the opinion strongly emphasized by the Honourable TAM
Yiu-chung. As a PWC Member who holds a different view from the others, he
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belongs to the minority. It is not the view of the main stream and has possibly
been vetoed. But do not forget that when we leave the issue to the Government
in 1997, how will the Government deal with it? At the end, it is only the
National People's Congress which can decide whether these six ordinances are in
violation of the Basic Law. I hope that Hong Kong Government should get a
clear picture of the situation now. Things have in fact been confirmed now.
The Chinese Government has already expressed through various channels that the
six ordinances are confirmed to be in violation of the Basic Law. A lot of
Members of this Council were also following this way in saying that the Basic
Law had been violated when they spoke today. What will the SAR Government
do after 1997? Will it also toe the line? As a matter of fact, what is the point
of leaving this issue until 1997?
Everyone knows that before 1997, the Chinese Government or the Standing
Committee of the National People's Congress, the PWC and the Preparatory
Committee will not alter the ordinances enacted before 1997. This is obviously
because Hong Kong is still under the rule of the Hong Kong British Government
before 1997. Then what is the point of making this remark? In my view, this
is only a trick to deceive people. It has never touched upon the core of the
question. Shall the colleagues from the DAB answer me that among the six
ordinances, which provisions contravene the Basic Law? Which amendments of
the ordinances will you disagree? The Broadcasting Authority Ordinance?
The Public Order Ordinance? Which amendments do you think are not
appropriate, are in violation of the Basic Law and have impact on our future?
Are you against the motion of the Honourable Albert HO Chun-yan because you
agree with the reinstatement of these ordinances? I think that you have to
account for all these facts.
Instead of starting a quarrel here today, I would rather hear your opinions.
Up till now, I have never heard of any pro-China party, PWC Members, DAB
members, Hong Kong Affairs Advisers and so on pointing out which provisions
among the six ordinances are in violation of the Basic Law. How are these six
ordinances related to national defence and foreign affairs? Or is it merely an
internal affair of Hong Kong? It is very obvious that the issue concerning these
six ordinances is an internal affair of Hong Kong. Apart from the Societies
Ordinance from which you may find "colluding with foreign countries"
controversial, what about the other five ordinances? All these are in connection
with the internal administrative affairs of Hong Kong. Why are you so anxious
LEGISLATIVE COUNCIL — 15 November 1995
241
about it? Why do you have to conclude so early that they have weakened the
administrative power and damaged the executive-led system of Hong Kong, and
will damage the administrative ability of the future Hong Kong SAR Government
in that they may invite processions? On many issues, the DAB and the Hong
Kong Federation of Workers share the same stance with the public. From time
to time, we also demonstrate and present petitions to the authorities concerned.
Do we have to give back the authority to the police on each occasion? In order
to obtain approval, how many days in advance of the demonstration should an
application be submitted? Do you wish that the freedom of assembly and
association be subject to the colonial regulations of the old days? I think you
will not want to see that happen. I think you will agree to giving more freedom
of assembly, association, procession and expression to the public, even beyond
1997. I think that you cannot avoid but have to answer these questions. I hope
in the future, not today, I can hear you answer directly these questions in this
Chamber so as to clear the doubts and worries in my mind. If you reckon that
the opinions of the PWC are correct, why do you not start a signature campaign in
order to solicit public support for the PWC's proposal in reinstating the six
ordinances, and see how many members of the public will give their support?
This is fair in my view. I hereby appeal to them and hope that they will give
their due consideration to it.
Mr Deputy, I so submit.
MR LEE WING-TAT (in Cantonese): Mr Deputy, the editorial of today's Wen
Wei Po criticizes the debate proposed by the Honourable HO Chun-yan as an
intervention of China's internal affairs and an infringement of its sovereignty.
Mr President, over the past four years, whenever debates involving political
arguments with China take place in the Legislative Council, China would hit us
with the club of sovereignty. I wonder whether the officials of the central
Government or the New China News Agency (NCNA) understand that
sovereignty rests with the people. In fact, China's sovereignty belongs to its 1.2
billion people (including myself), not exclusively to the officials of the Chinese
Government, the NCNA or the Communist Party. I hope they can understand
this concept fully. I hope they will express their opinions by way of discussion
and will not intimidate the people of Hong Kong with sovereignty whenever they
are confronted with different political viewpoints.
Mr Deputy, earlier on, some Members of the Preliminary Working
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Committee (PWC) have expressed their opinions. One colleague has also
pointed out that the Bill of Rights Ordinance has caused fundamental changes to
the laws of Hong Kong. He said that section 3(3) of the Joint Declaration
provides that the laws currently in force in Hong Kong will remain unchanged.
China and Members of the PWC even said that the laws in force at the time when
the Joint Declaration was signed in 1984 will remain basically unchanged.
According to the opinions of China and Members of the PWC, there should not
be changes to any of the laws after 1984. If that is the case, how can our society
progress? Besides, if amendments made to the laws after 1984 are equivalent to
fundamental changes to the laws and contrventions of the Joint Declaration and
the Basic Law, then have our Honourable Members, Dr Philip WONG, Mr NGAI
Siu-kit contravened the Basic Law and the Joint Declaration because over the past
few years, they have amended many pieces of law with us, including the
Broadcasting Authority Ordinance and the Legislative Council Commission
Ordinance? Actually I sympathize with the two of them. Although they
clearly know that what is said is illogical and wrong, they cannot do anything
about it. China is now saying that such a move is in contravention of the Joint
Declaration and the Basic Law, and therefore everyone who has taken part in the
passing of the laws (including the Public Order Ordinance) over these few years
has contravened the Joint Declaration and the Basic Law.
We are not worried about the performance of certain people among us, we
are worried because people are confounding right and wrong and are turning
things upside down under such a political climate. The Honourable Ambrose
LAU, a Member of the PWC, has gone one step further and said that the Bill of
Rights Ordinance has not only changed the provisions of the Basic Law, he said it
has also changed our lifestyles in general. Mr President, I am very scared. I
am afraid that Members of the PWC will later require us to wear the bell-bottoms
of 1984 or to sing the Mandarin songs of YIU So-yung and will not allow us to
sing the songs of CHAN Wai-han (not the Honourable Miss CHAN Yuen-han) or
Faye WONG in karaokes. In that case, how can our society progress? Mr
Ambrose LAU has spent a lot of time explaining from an academic point of view
why he supports the decision of the PWC. After hearing the many speeches
made by Members, I think Mr LAU's speech is preferable because it is
comparatively well-founded. I think he should be commended, but it is pity that
despite his wordy speech and his status as former Chairman of the Law Society,
even the Law Society does not support him, not to mention the Bar Association.
He should therefore reflect on the reasons why he is not supported. As former
Chairman of the Society, even his fellow members do not support him. What is
he going to do?
LEGISLATIVE COUNCIL — 15 November 1995
243
Mr Deputy, I think we should have a debate on the question of the
Democratic Alliance for the Betterment of Hong Kong (DAB). I do not wish to
provoke any conflicts and I hope Miss CHAN Yuen-han will not misunderstand
me. However, as the Honourable CHEUNG Man-kwong said, over these two
months, we have seen that the stance taken by many of our friends in the DAB
has been very similar to ours on issues relating to the livelihood of the people and
they have spoken the truth on many issues. However, sometimes there are
things we cannot avoid, especially in regard to cardinal issues of right and wrong.
The public would ask why we have to leave discussion of this issue to 1997. If
the DAB thinks that the PWC and China are right, it should lend its unequivocal
support to them openly, like what Dr Philip WONG and Mr Ambrose LAU have
done. There is no need to be evasive. Perhaps it can even give its comments
by copying what is said from the editorials of the Wen Wei Po and the Ta Kung
Pao and read them out verbatim in order to show its loyalty, just like what some
Members of the PWC have done. If the PWC is wrong, the DAB can rise to
raise its objections, why should it be evasive? Will the matter be dealt with any
better after 1997? After 1997, we will have the provisional legislature, but will
it do any better than the present legislature? Will it be more representative than
the present legislature? I do not wish to give such sarcastic remarks, but I feel
that it is now the wish of the people of Hong Kong that the elected representatives
in the Legislative Council (and all of us are elected Members) will voice their
heartfelt wishes on their behalf. Our friends of the DAB can try and conduct a
survey (and it is not necessary for them to carry out a signature drive), ask the
people of Hong Kong and decide for themselves according to the voices of the
1990s, whether the people of Hong Kong wish them to reflect their opinions after
the election held on 17 September. According to what is written on your
election signboards, it is your political platform to adhere to the principle of
reasonableness; if that is true, do you think it is in the interests of the people of
Hong Kong to deal with the matter now? Is your approach heading towards a
democratic and liberal direction? Actually, there are bound to be success and
failure in any political election, but the most important thing is to live up to the
expectations of one's constituents.
Mr Deputy, today's debate may only be the prelude to many more political
debates to come in the next two years. On this occasion concerning the Bill of
Rights Ordinance, what is most shocking to me is not that the democratic groups
have been criticized by the Chinese authorities, but that many whom China has
once considered to be her trusted followers and friends "within the circle" have
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also been criticized and classified to be "outside the circle". We can ask
ourselves how big that "circle" will be in the future. Will the circle be drawn to
include only members of the Communist Party and a few officials of the NCNA?
Will these people represent the opinions of the people of Hong Kong? Today,
the public wishes us to voice their opinions. Mr President, I will lend my
unequivocal support to the Honourable HO CHUN-yan's motion and the
Honourable Miss Christine LOH's amendment. Thank you, Mr Deputy.
THE PRESIDENT resumed the Chair.
MR HOWARD YOUNG (in Cantonese): Mr President, the issue of human
rights is very sensitive. The views of China on human rights are particularly
different from those of many western countries. It could easily be construed as a
means of confrontation adopted by western countries against China or a concept
with an international conspiracy.
In fact, I believe that today's debate has brought out many questions. It
has also reflected that discussions in this Council may easily involve political
stances or may even lead to some kind of political struggle. Sometimes, such
situation would even overwhelm rational debates.
Recently, we can see on the streets many banners with slogans such as
"The Preliminary Working Committee sells Hong Kong people out",
"Reinstatement of draconian laws", and so on. We cannot but feel that this is a
kind of "playing up" stunt, for it will not help to bring about a rational discussion,
or an objective analysis, of the issue of whether the Bill of Rights Ordinance
(BORO) is a legal problem or a political one.
During our visit to Beijing last week, the Honourable Allen LEE and I took
the opportunity to talk with Vice-Chairman WANG Han bin over this problem.
I observe that Mr WANG would like to send to us a message: it would be better
to cool the issue down to a mere legal problem to study. Although I am not a
lawyer, I feel that it is quite a specious argument to accuse the BORO as
overriding the Basic Law or overriding other laws. Even after careful scrutiny, I
still cannot convince myself that the BORO has extreme supremacy. I do not
LEGISLATIVE COUNCIL — 15 November 1995
245
think that the BORO really overrides the Basic Law. However, upon comparing
the Basic Law with the BORO, we could find that subsequent to the enactment of
the BORO, some laws have to be amended. In certain cases, some people may
feel that there are contradictions in law that may pose problems for future trial
rulings. That may be the case. Take for example the Societies Ordinance.
Some colleagues even advocate that according to the International Covenant on
Civil and Political Rights, any society shall have the right to establish relationship
with any international political forces. However, I can see that the provision in
the Basic Law is quite different because it is specified that such relationship is not
permitted. If a case is brought before the court for trial concerning whether it is
in breach of the law for a particular political organization to establish relationship
with a foreign political organization. I personally think that if an act is deemed
legal under the Societies Ordinance but is rendered illegal under the Basic Law,
then the solution is simple, for the Basic Law always prevails. In view of this, I
do not think that we need to be over-cautious. The dispute has arisen simply
because some legislation have been amended and the Chinese side thinks that it
would bring a lot of troubles and would undermine their power to govern or that
the problem of some laws overriding the Basic Law may arise.
In today's discussion, we have been concentrating on the issue of
supremacy. However, actually, there is one more point about which the people
of Hong Kong are very concerned, although it has hardly been mentioned by
Members today. It is the question of tabling reports to the United Nations on the
implementation and enforcement of the International Covenant on Civil and
Political Rights in Hong Kong.
Recently, a certain Member published an article asserting that the
protection of human rights and the tabling of reports are two different things. I
agree to this opinion. However, does it mean that the two bear no relationship to
each other even if they are two different things? I think that they do bear some
sort of relationship. I have recently attended the United Nations Human Rights
Committee hearing. I did not feel at the hearing that the discussion of human
rights was a kind of international conspiracy or any sort of confrontation against
China. On the contrary, I found that most signatories to the human rights
treaties are third world countries, and they have not lost their power to control or
to govern at all. Some Chinese leaders and members of the Preliminary
Working Committee (PWC) pointed out that China did not have the responsibility
to table a report to the United Nations. I think that if we emphasize this point, it
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would not help to restore the confidence of the people of Hong Kong, nor would
it be conducive to our situation in the future.
I think that China need to be honest. In fact, I agree that in the legal
context, China is not a signatory to these human rights treaties and therefore it
does not have the obligation to file a report. This is the fact. However, I would
ask, does it mean that you do not need to bother about it because you do not have
the obligation? Can China table a report on a voluntary basis or through other
means? I think that this can absolutely be done. For example, after 1997, if
China keeps pace with the development of the world and sign the human rights
treaties, then there will be no problem at all. Or, when a country signs the
human rights treaties, it may make reservations as in the case for the United
Kingdom. In the future, when China signs such treaties, it may also make
reservations. This is one of the alternatives.
As a third alternative, since China promised in the Sino-British Joint
Declaration and the Basic Law that the human rights treaties as applied to Hong
Kong shall remain force, China may as well sign the treaties and declare that they
are applicable to Hong Kong only but not to the other parts of the Mainland.
This is also a viable alternative.
The fourth alternative would be for China to point out that in the legal
context, China does not have the obligation to table a human rights report to the
United Nations, but on a voluntary basis, China may authorize its regional
governments to table some sort of reports. As to whether this practice is
acceptable, it would be up to the discretion of individual organization. If this
practice is found acceptable, then it would also be a kind of viable alternative.
Although I may not vote in line with members of the PWC or with the
Democratic Alliance for Betterment of Hong Kong (DAB), I think that one of
their points is commendable, that is, the issue may be left to the future Special
Administrative Region (SAR) Government. If the future SAR Government
thinks that the legislation amended in accordance with the BORO do jeopardize
the governing ability of the SAR Government, then amendment to the relevant
legislation may be made at that juncture. I believe this is also one of the
acceptable alternatives for the people of Hong Kong.
LEGISLATIVE COUNCIL — 15 November 1995
247
Mr President, I so submit.
SECRETARY FOR HOME AFFAIRS: It is clear from today's debate and the
response across the community that the proposals of the Legal Subgroup of the
Preliminary Working Committee (PWC) have given cause for deep concern
amongst many people in Hong Kong. Many Members speaking today, the Hong
Kong Bar Association, the Law Society of Hong Kong, the Hong Kong
Journalists Association and many other groups and individuals, have offered a
chorus of support for the Bill of Rights Ordinance (BRO).
The British and Hong Kong Governments share these sentiments and have
taken every opportunity to reflect to China the depth of the community's concern
and our views on the mistaken nature of the PWC's proposals. The matter has
been raised not only in the Joint Liaison Group(JLG) but also with the Chinese
authority through other diplomatic channels and during the visit of the Attorney
General to China. It will continue to be pursued through both formal and
informal channels.
The Government is in no doubt that the BRO and the laws which have been
amended are fully consistent with the Joint Declaration and the Basic Law. The
BRO was drawn up in the full knowledge of the provisions of the Basic Law.
Both the Joint Declaration and the Basic Law stipulate that the International
Covenant on Civil and Political Rights(ICCPR), as applied to Hong Kong, shall
remain in force after 1997. Moreover, Article 39 of the Basic Law states that
the provisions of the ICCPR as applied to Hong Kong shall be implemented
through the laws of the Hong Kong Special Administrative Region.
This is precisely what the BRO does. It provides for the incorporation
into the laws of Hong Kong of the provisions of the ICCPR as applied to Hong
Kong. It follows that the BRO is fully consistent with Article 39 of the Basic
Law. The BRO has a status no different from that of any other ordinance.
Like other ordinances, it will be subject to the Basic Law. What is entrenched
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by the Letters Patent now and by the Basic Law after 30 June 1997 is the ICCPR,
not the BRO.
We do not accept the argument expressed by the Legal Subgroup of the
PWC that section 3 of the BRO makes it supreme over other laws. This is not
correct. Section 3 does no more than state expressly the common law principle
that where two pieces of legislation are inconsistent, the later one impliedly
reputes the earlier one to the extent of the inconsistency.
Some Members have cited, as support for their view that the BRO has an
overriding status, the description of the BRO included in the United Kingdom
Government's report to the United Nations on Hong Kong. The statement in
question is simply a reference to the repealing effect of the BRO on pre-existing
legislation, that is, laws which were in force prior to the enactment of the BRO in
1991. As I have said, this reflects the common law principle that where two
pieces of legislation are inconsistent the later one repeals the inconsistency in the
earlier one.
We do not consider section 2,(3) and section 4 of the BRO to be contrary to
the Basic Law. Section 2,(3) deals with the interpretation of the BRO and states
a principle that applies to all ordinances which implement treaties. Section 4
reflects an existing rule of interpretation that legislation should, if possible, be
construed in accordance with the relevant international obligations. Both these
sections are no more than a restatement of common law principles that apply to
all ordinances. It is our firm conclusion, therefore, that the PWC's proposals are
based on a misunderstanding of the legal effect of the BRO and we see no need to
amend it in the manner that has been suggested.
Such a move would give rise to serious concerns in Hong Kong and
overseas about the continued protection of human rights as well as the rule of law
in Hong Kong. The BRO enjoys widespread support within Hong Kong and the
international community. Most recently, the United Nations Human Rights
Committee has welcomed the enactment of the Ordinance and expressed its
appreciation for the progress that has been made in reviewing laws for
consistency with the BRO and therefore with the ICCPR.
Members will be aware that the United Nations Human Rights Committee
LEGISLATIVE COUNCIL — 15 November 1995
249
is deeply interested in the circumstances of Hong Kong. The Committee has
recognized the sound legal basis offered by the Joint Declaration for the
continued protection of rights provided for in the ICCPR. The Committee has
issued a clear statement on the importance of the continued application of the
ICCPR in Hong Kong and the submission of reports after 1997. It has taken the
view that human rights treaties evolve with territory and that states continue to be
bound by obligations under the covenant entered by the predecessor state. The
Committee points out that Britain and China have agreed in the Joint Declaration
that all the provisions of the covenant as applied to Hong Kong shall remain in
force after 1 July 1997. These provisions include reporting obligations under
Article 40. As the reporting requirements will continue to apply, the Committee
considers that it is competent to receive and review reports that must be submitted
in relation to Hong Kong.
The United Kingdom Government has explained to the Chinese
Government how it fulfils its obligations and makes its views known to China
through the JLG and other diplomatic channels. On how the reporting
obligation could be fulfilled after 1997, we will continue to work for a
satisfactory resolution of this question with the Chinese Government. On our
part we will continue to take the necessary steps to implement the Covenant as
applied to Hong Kong.
I now turn to say something about the review of legislation. Every society
must update its laws to take into account changing circumstances and developing
jurisprudence. New policies or international obligations lead to new legislation.
Existing laws need to be updated by the removal of anomalies and obsolete
provisions. This does not conflict with the Joint Declaration where it provides
that the laws currently in force in Hong Kong will remain basically unchanged.
The review of legislation for consistency with the BRO ensures that our laws are
consistent with the provision of the ICCPR as applied to Hong Kong.
It is worth restating that both the Joint Declaration and the Basic Law
stipulate that the provisions of the ICCPR as applied to Hong Kong shall remain
in force and that Article 39 of the Basic Law provides that restrictions on the
rights and freedoms enjoyed by Hong Kong residents shall not contravene the
ICCPR as applied to Hong Kong. Amendments to laws which ensure
consistency with the ICCPR are, therefore, consistent with both the Joint
Declaration and the Basic Law. To leave these laws untouched would bring
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them into conflict with Article 39 of the Basic Law after 1997.
Since 1991, this Council has enacted 36 amending ordinances or orders to
bring existing legislation into line with the BRO. The issues involved have been
approached with realism and good sense, and with a firm understanding of the
need to assess the impact of changes and to strike a balance between the
protection of human rights and other needs of society, including law enforcement.
A few Members have asserted that these amendments are detrimental to the
effective governance of Hong Kong. Let me put it on the record that the
amendments that have been made have not undermined the Government's
authority or ability to govern. Our Police Force and other law enforcement
agencies continue to exercise their powers effectively. The crime rate in Hong
Kong is still one of the lowest among international cities. The removal of
restrictions on press freedom and freedom of expression, many of which have
never been used or not been used for years, have not prompted our media to
forego its high standards of journalism. Rights of assembly and association are
not abused. People in Hong Kong have shown that they are well capable of
exercising the rights and freedoms provided for in the BRO and the ICCPR in a
responsible and civilized manner. It signifies a lack of trust to think otherwise.
All new legislation needs to be interpreted by the courts in order that its
application to particular situations can be precisely determined. As time goes by
and areas of difficulty are resolved, the effect of new legislation becomes settled.
The BRO is not different from other legislation in this respect. BRO challenges
have been primarily concerned with provisions of the criminal law which deviate
from the principle that it is for the prosecution to prove the accused's guilt beyond
reasonable doubt. Through decisions of the Court of Appeal and the Privy
Council, the principles applicable to such provisions are now well established.
In reaching these decisions, the Judiciary have followed the principle of
proportionality which is well-established in international human rights
jurisprudence, and in essence this principle allows for the protection of human
rights to be balanced against the public interests.
To cite an example, the Court of Appeal in April 1995 confirmed the
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251
legality of section 10 of the Prevention of Bribery Ordinance, which makes it an
offence for civil servants to maintain a standard of living not commensurate with
their income in the absence of a satisfactory explanation. The Court said that
the provision was dictated by the inherent difficulties in proving corruption, and
goes on further than necessary. The balance is right. Similarly, the Court of
Appeal decided in February 1993 to uphold the special investigatory powers of
the Securities and Futures Commission under section 33 of the Securities and
Futures Commission Ordinance.
Finally, there is of course the well-known case of the Attorney General vs.
Lei Kong-kat, 1993, concerning the Drug Trafficking (Recovery of Proceeds)
Ordinance where the Privy Council said that in order to maintain the balance
between the individual and society as a whole, rigid and inflexible standards
should not be imposed on the legislature's attempt to resolve the problems of
dealing with serious crime.
These are only examples, but they do demonstrate that the protection of
human rights in Hong Kong has contributed to a healthy development of
jurisprudence rather than lead to any uncertainty. The PWC's proposals to
restore six ordinances to an earlier form would mean the revival of legislation
which we have found to be inconsistent with the BRO and therefore with the
ICCPR. This would be a retrograde step and would bring the ordinances into
conflict with Artcile 39 of the basic Law. In particular the PWC proposals
would mean the re-adoption of absolute emergency powers from the 1950s' and
1960's which are unsuited to any situation which could arise in today's society,
re-instating executive powers to pre-censure television and radio broadcasts,
replacing the system of advance notification of public processions with the old
requirement to obtain a licence, removing the right to appeal over the prohibition
or imposition of conditions on public meetings or processions, prohibiting once
more the use of loud-hailers in processions and restoring the old system of
restricting societies.
I will not list all the issues but I will state that we see no need to re-adopt
any of these powers nor have we heard any convincing argument why this should
be done in respect of these six ordinances.
I share certain Members' concerns about the PWC Legal Subgroup's
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proposal to repeal the New Territories Land (Exemption) Ordinance and the
Legislative Council Commission Ordinance.
The New Territories Land
(Exemption) Ordinance does not remove the indigenous villagers' rights to
dispose of their property in the traditional way if they so wish. It only removes
the inhibition for women to inherit land in the New Territories in cases of
intestacy. We not consider that contravenes Article 40 of the Basic Law.
As regards the Legislative Council Commission Ordinance, Members all
know that the purpose of the Ordinance is to set up a Legislative Council
Commission to provide administrative support and services to the Legislative
Council Members through the Legislative Council Secretariat, to provide office
accommodation to Legislative Council Members and staff of the Legislative
Council Secretariat, and to supervise the operation of the Secretariat. This
Council needs to have a secretariat to provide administrative support and so will
the SAR legislature. Staff of the Legislative Council Secretariat are not civil
servants. They are employed by the Legislative Council Commission. The
PWC Legal Subgroup's proposal to repeal this Ordinance has created uncertainty
over the future of the Secretariat. If it is endorsed, it will seriously affect the
morale of the Legislative Council Secretariat staff and undermine the smooth
operation of the Secretariat. This will not benefit anyone.
Many Members have spoken of the need to push ahead with the
amendment of those remaining laws which are considered to be inconsistent with
the BRO. In my Policy Commitments, I have undertaken to monitor the
introduction of draft amendments to a further four ordinances: the Marriage
Ordinance, the Telecommunication Ordinance, and subsidiary legislation to the
Prison Ordinance and the Mental Health Ordinance in this Session. Members
will also be aware that we have put proposals to the Chinese in respect of treason
and sedition and the Official Secrets Act. Our proposals are fully consistent
with the BRO, the ICCPR and the need to ensure the safety and security of the
community here in Hong Kong.
Separately we are awaiting the report of the Law Reform Commission
relating to the interception of telecommunications and mail. The way forward
will be considered in the light of the Commission's recommendations and with
due regard to the BRO and the ICCPR.
LEGISLATIVE COUNCIL — 15 November 1995
253
We will continue to review laws for consistency with the BRO and to take
into account developing jurisprudence in this area of law. We will take every
opportunity to reflect the concern of this Council and the community, and to
explain to the Chinese Government the misconceived nature of the Legal
Subgroup's proposals. We will also urge the Chinese side to take full account of
Hong Kong's views, including those expressed in this Chamber tonight.
Thank you, Mr President.
PRESIDENT: Mr Albert HO, do you wish to speak? You have five minutes to
speak on the amendment.
MR ALBERT HO (in Cantonese): Mr President, I myself and members of the
Democratic Party would support the Honourable Miss Christine LOH's
amendment. I just want to add a short remark. Currently, the Legal Subgroup
of the Preliminary Working Committee (PWC) is proposing to re-instate six
ordinances and to repeal a number of others. In fact, the ordinances to be
repealed under the proposal are not only the New Territories Land (Exemption)
Ordinance and the Legislative Council Commission Ordinance. So, I hope we
will support the amendment, as this will serve to remind us that we shall have to
face more challenges of the PWC against other laws. In future, in the transition
to 1997, more laws may face threats of repeals. I hope, therefore, everyone will
bear this in mind. Thank you.
Question on Miss Christine LOH‘s amendment put.
Voice vote taken.
THE PRESIDENT said he thought the "Ayes" had it.
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Miss Christine LOH and Dr Philip WONG claimed a division.
PRESIDENT: Council will proceed to a division.
PRESIDENT: I would like to remind Members that they are now called upon to
vote on the question that the amendment moved by Miss Christine LOH be made
to Mr Albert HO's motion. Will Members please register their presence by
pressing the top button in their voting units and cast their votes by presssing one
of the three buttons below?
PRESIDENT: Before I declare the result, Members may wish to check their
votes. Are there any queries? The result will now be displayed.
Mr Allen LEE, Mrs Selina CHOW, Mr Martin LEE, Mr SZETO Wah, Mr
Edward HO, Mr Ronald ARCULLI, Mrs Miriam LAU, Dr LEONG Che-hung,
Mr Albert CHAN, Mr CHEUNG Man-kwong, Mr Frederick FUNG, Mr Michael
HO, Dr HUANG Chen-ya, Miss Emily LAU, Mr LEE Wing-tat, Mr Eric LI, Mr
Fred LI, Mr Henry TANG, Dr Samuel WONG, Dr YEUNG Sum, Mr Howard
YOUNG, Mr WONG Wai-yin, Miss Christine LOH, Mr James TIEN, Mr LEE
Cheuk-yan, Mr Andrew CHENG, Mr Anthony CHEUNG, Mr Albert HO, Mr
LAU Chin-shek, Dr LAW Cheung-kwok, Mr LAW Chi-kwong, Mr LEUNG
Yiu-chung, Mr Bruce LIU, Mr MOK Ying-fan, Miss Margaret NG, Mr SIN
Chung-kai, Mr TSANG Kin-shing, Dr John TSE, Mrs Elizabeth WONG and Mr
YUM Sin-ling voted for the amendment.
Mr NGAI Shiu-kit, Mr LAU Wong-fat, Mr CHIM Pui-chung, Dr Philip WONG,
Mr CHAN Kam-lam, Mr CHAN Wing-chan, Miss CHAN Yuen-han, Mr Paul
LEGISLATIVE COUNCIL — 15 November 1995
255
CHENG, Mr CHENG Yiu-tong, Mr CHOY Kan-pui, Mr David CHU, Mr IP
Kwok-him, Mr Ambrose LAU, Mr LO Suk-ching and Mr NGAN Kam-chuen
voted against the amendment.
THE PRESIDENT announced that there are 40 votes in favour of the amendment
and 15 votes against it. He therefore declared that the amendment was carried.
PRESIDENT: Mr Albert HO, you are now entitled to reply and you have two
minutes 25 seconds out of your original 15 minutes.
MR ALBERT HO (in Cantonese): I just want to briefly respond to the two
points raised by the Democratic Alliance for Betterment of Hong Kong (DAB) at
the debate. First of all, they held that the proposal of the Preliminary Working
Committee (PWC) would not have any bearing on human rights but would even
recognize the Bill Of Rights Ordinance (BORO). I am really amazed at this
viewpoint. It is actually their own wishful thinking and it is but a self-deluding
assertion. If that argument holds water, then why should Mr TAM Yiu-chung
be encumbered with so much worry that he has to express reservations in the
PWC? I believe that even they themselves could not trust their own words.
Secondly, they always stress that law amendment work or review on laws
need not to be done at the present moment because they may be left to the future
Special Administrative Region (SAR) Government. However, we must not
forget that the present practice as suggested by the PWC is for the Standing
Committee of the National People's Congress (NPC) to, on the day of handover
and by virtue of the power conferred upon by Article 160 of the Basic Law,
repeal certain Hong Kong laws that are deemed to be necessary to be repealed
(including the BORO) and to reinstate some of the laws that they claim their
amended versions are in breach of the Basic Law.
Therefore, it would be much too late if we leave the problem to the SAR
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Government because by that time, that would be fait accompli and that political
choice would no longer exist. Is it not a mirror of their intention to evade that
big challenge and to evade the cardinal questions of right and wrong? The
Honourable Ambrose LAU mentioned that we did not need the BORO as our
protection because many advanced countries also did not have BORO. In fact, I
will not dwell on the last point because the last point is not valid at all. In fact,
many advanced countries do have legislation on human rights and that is
incorporated into their constitution. Not only do these provisions have
supremacy, but they are also being constantly and regularly invoked to exercise
checks and balances between the executive and the legislature. Furthermore,
what harm will it do if more protection is offered by the BORO? If we took the
deliberate step to repeal the BORO which is already in place, what does it imply?
Therefore, we should not use any pretext to cover up the truth that the Chinese
side finds it unacceptable for us to enjoy many human rights. On the contrary, it
wants Hong Kong to retrogress to the old colonial era of aristocracy.
Lastly, I have not heard that anyone can point out why it is illegal for the
BORO to enjoy supremacy, if any. Does the Basic Law specify that there
should be no law that can override other laws? We have to bear in mind that
this Ordinance is derived primarily from the Basic Law. I did not hear any
argument in this regard. I therefore hope that the Members can support my
motion.
Thank you, Mr President.
The digital timer showed 2.25
PRESIDENT: I am obliged to ask you to discontinue your speech.
Question on Mr Albert HO's motion as amended by Miss Christine LOH put.
Voice vote taken.
THE PRESIDENT said he thought the "Ayes" had it.
LEGISLATIVE COUNCIL — 15 November 1995
257
Dr Philip WONG claimed a division.
PRESIDENT: Council shall proceed to a division.
PRESIDENT: Members may wish to be reminded that they are now called upon
to vote on the question that the motion moved by Mr Albert HO as amended by
Miss Christine LOH be approved.
PRESIDENT: Will Members please register their presence by pressing the top
button in voting their units and cast their votes by selecting one of the three
buttons below?
PRESIDENT: Still one short of the head count. Before I declare the result,
Members may wish to check their votes. Are there any queries? The result
will now be displayed.
Mr Allen LEE, Mrs Selina CHOW, Mr Martin LEE, Mr SZETO Wah, Mr
Edward HO, Mr Ronald ARCULLI, Mrs Miriam LAU, Dr LEONG Che-hung,
Mr Albert CHAN, Mr CHEUNG Man-kwong, Mr Frederick FUNG, Mr Michael
HO, Dr HUANG Chen-ya, Miss Emily LAU, Mr LEE Wing-tat, Mr Eric LI, Mr
Fred LI, Mr Henry TANG, Dr Samuel WONG, Dr YEUNG Sum, Mr Howard
YOUNG, Mr WONG Wai-yin, Miss Christine LOH, Mr James TIEN, Mr LEE
Cheuk-yan, Mr Andrew CHENG, Mr Anthony CHEUNG, Mr Albert HO, Mr
LAU Chin-shek, Dr LAW Cheung-kwok, Mr LAW Chi-kwong, Mr LEUNG
Yiu-chung, Mr Bruce LIU, Mr MOK Ying-fan, Miss Margaret NG, Mr SIN
Chung-kai, Mr TSANG Kin-shing, Dr John TSE, Mrs Elizabeth WONG and Mr
YUM Sin-ling voted for the amended motion.
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Mr NGAI Shiu-kit, Mr LAU Wong-fat, Mr CHIM Pui-chung, Dr Philip WONG,
Mr CHAN Kam-lam, Mr CHAN Wing-chan, Miss CHAN Yuen-han, Mr Paul
CHENG, Mr CHENG Yiu-tong, Mr CHOY Kan-pui, Mr David CHU, Mr IP
Kwok-him, Mr Ambrose LAU, Mr LO Suk-ching and Mr NGAN Kam-chuen
voted against the amended motion.
THE PRESIDENT announced that there were 40 votes in favour of the amended
motion and 15 votes against it. He therefore declared that the amended motion
was carried.
ADJOURNMENT AND NEXT SITTING
PRESIDENT: In accordance with Standing Orders, I now adjourn the Council
until 2.30 pm on Thursday 16 November 1995.
Adjourned accordingly at twenty-six minutes to Twelve o'clock.
Note: The short titles of the Bills/motions listed in the Hansard, with the exception of the
Merchant Shipping (Registration) (Amendment) Bill 1995 and Air Passenger Departure
Tax (Amendment) Bill 1995 have been translated into Chinese for information and
guidance only; they do not have authoritative effect in Chinese.