LEGISLATIVE COUNCIL — 23 June 1997
1
OFFICIAL RECORD OF PROCEEDINGS
Monday, 23 June 1997
The Council met at Nine 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.
DR THE HONOURABLE DAVID LI KWOK-PO, O.B.E., LL.D. (CANTAB),
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.
2
LEGISLATIVE COUNCIL — 23 June 1997
THE HONOURABLE ALBERT CHAN WAI-YIP
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, J.P.
THE HONOURABLE LEE WING-TAT
THE HONOURABLE ERIC LI KA-CHEUNG, O.B.E., 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 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 — 23 June 1997
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, J.P.
THE HONOURABLE CHENG YIU-TONG
DR 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, J.P.
THE HONOURABLE AMBROSE LAU HON-CHUEN, J.P.
DR THE HONOURABLE LAW CHEUNG-KWOK
THE HONOURABLE LAW CHI-KWONG
THE HONOURABLE LEE KAI-MING
THE HONOURABLE LEUNG YIU-CHUNG
THE HONOURABLE BRUCE LIU SING-LEE
3
4
LEGISLATIVE COUNCIL — 23 June 1997
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
PUBLIC OFFICERS ATTENDING
THE HONOURABLE MRS ANSON CHAN, C.B.E., J.P.
CHIEF SECRETARY
MR GORDON SIU KWING-CHUE, C.B.E., J.P.
SECRETARY FOR TRANSPORT
MR DOMINIC WONG SHING-WAH, O.B.E., J.P.
SECRETARY FOR HOUSING
MR JOSEPH WONG WING-PING, J.P.
SECRETARY FOR EDUCATION AND MANPOWER
MR PETER LAI HING-LING, C.B.E., J.P.
SECRETARY FOR SECURITY
LEGISLATIVE COUNCIL — 23 June 1997
5
MR BOWEN LEUNG PO-WING, C.B.E., J.P.
SECRETARY FOR PLANNING, ENVIRONMENT AND LANDS
MR KWONG HON-SANG, J.P.
SECRETARY FOR WORKS
CLERKS IN ATTENDANCE
MR RICKY FUNG CHOI-CHEUNG, J.P., SECRETARY GENERAL
MR LAW KAM-SANG, J.P., DEPUTY SECRETARY GENERAL
MRS JUSTINA LAM CHENG BO-LING, ASSISTANT SECRETARY
GENERAL
LEGISLATIVE COUNCIL — 23 June 1997
6
PAPERS
The following papers were laid on the table pursuant to Standing Order 14(2):
Subject
Subsidiary Legislation
L.N. No.
Prisons (Amendment) Order 1997............................................
336/97
Commodities Trading (Trading Limits and Position
Limits) (Amendment) Rules 1997 ..................................
337/97
Securities (Exchange  Traded Stock Options)
(Amendment) Rules 1997 ..............................................
338/97
Patents (General) Rules ........................................................
339/97
Registered Designs Rules .....................................................
340/97
Hong Kong Royal Instructions 1917 to 1993
(Nos. 1 and 2) - Ending of the 1996/97
Session of the Legislative Council of
Hong Kong Notice 1997 ...........................................
341/97
Prevention of Bribery (Miscellaneous Provisions)
Ordinance 1996 (48 of 1996) (Commencement)
Notice 1997 ...............................................................
342/97
New Territories Land Exchange Entitlements
(Redemption) Ordinance (70 of 1996)
(Commencement) Notice 1997 .................................
343/97
Volunteer and Naval Volunteer Pensions
(Amendment) Ordinance 1997 (56 of 1997)
(Commencement) Notice 1997 .................................
344/97
LEGISLATIVE COUNCIL — 23 June 1997
7
Waste Disposal (Designated Waste Disposal
Facility) Regulation (L.N. 197 of 1997)
(Commencement) Notice 1997 .................................
345/97
Fugitive Offenders (Netherlands) Order
(L.N. 198 of 1997) (Commencement)
Notice 1997 ...............................................................
346/97
Fugitive Offenders (Philippines) Order
(L.N. 202 of 1997) (Commencement)
Notice 1997 ...............................................................
347/97
Hong Kong Airport (Control of Obstructions) Order 1997
(Amendment) Order 1997 (L.N. 217 of 1997)
(Commencement) Notice 1997 ..................................
348/97
Hong Kong Airport (Control of Obstructions)
(No. 2) Order 1997 (L.N. 218 of 1997)
(Commencement) Notice 1997 .................................
349/97
Import and Export (General) Regulations
(Amendment of Schedules) Order 1997
(L.N. 246 of 1997) (Commencement)
Notice 1997 ...............................................................
350/97
Import and Export (Strategic Commodities)
Regulations (Amendment of Schedules 1 and 2)
Order 1997 (L.N. 247 of 1997) (Commencement)
Notice 1997 ...............................................................
351/97
Non-local Higher and Professional Education
(Regulation) Ordinance (50 of 1996)
(Commencement) Notice 1997 .................................
352/97
Non-local Higher and Professional Education
(Regulation) Rules (L.N. 265 of 1997)
(Commencement) Notice 1997 .................................
353/97
LEGISLATIVE COUNCIL — 23 June 1997
8
Sessional Papers 1996-97
No. 110
─
Report on the Administration of the
Immigration Service Welfare Fund prepared by the
Director of Immigration in accordance with Regulation 10
No. 111
─
Sir David Trench Fund for
Recreation Trustee's Report 1996 - 97
No. 112
─
Hong Kong Trade Development Council
Annual Report 1996 - 1997
No. 113
─
Hong Kong Export Credit Insurance Corporation
Annual Report 1996 - 97
No. 114
─
J.E. Joseph Trust Fund Report
for the period 1 April 1996 to 31 March 1997
No. 115
─
Kadoorie Agricultural Aid Loan Fund Report
for the period 1 April 1996 to 31 March 1997
No. 116
─
Sir Robert Black Trust Fund Annual Report
for the period 1 April 1996 to 31 March 1997
No. 117
─
The Ninth Annual Report of the Ombudsman of
Hong Kong June 1997
No. 118
─
Statement of Accounts of the Welfare Fund
Prepared by the Commissioner of Customs and Excise
in accordance with Regulation 10
No. 119
─
Traffic Accident Victims Assistance Fund Annual Report
by the Director of Social Welfare Incorporated
for the year from 1 April 1995 to 31 March 1996
LEGISLATIVE COUNCIL — 23 June 1997
No. 120
─
Report on the Administration of the Fire Services
Welfare Fund for the year ended 31 March 1996
No. 121
─
Securities and Futures Commission
Annual Report 1996 - 97
No. 122
─
Hong Kong Airport Authority
Annual Report 1996 - 1997
9
Miscellaneous
Report by the United Kingdom of Great Britain and Northern Ireland in
respect of Hong Kong under the Convention on the Rights of the Child
ORAL ANSWERS TO QUESTIONS
Environmental Impact of Stationary but Operating Vehicles
1.
MR JAMES TIEN (in Cantonese): Mr President, will the Government
inform this Council, regarding the situation in which drivers leave the vehicle
engines and the air-conditioning systems running while the vehicles are
stationary:
(a)
whether any legislation is in place to prohibit such practice; if not,
whether the Government will immediately enact legislation to this
effect; and
(b)
whether any study has been conducted to examine the impact of
such practice on the environment and the health of pedestrians?
SECRETARY FOR PLANNING, ENVIRONMENT AND LANDS (in
Cantonese): Mr President,
(a)
there is no legislation at present to require drivers to switch off their
LEGISLATIVE COUNCIL — 23 June 1997
10
vehicles while waiting. We have recently completed a survey on
practices adopted in overseas countries to deal with emissions from
idling vehicles. The findings shows that while some cities in
Canada and the United States have implemented regulatory controls
to prevent prolonged idling of vehicles, few countries apply such
controls nation-wide in view of different operating environments
and transport requirements. We shall shortly start consultation
with the transport trades and interested bodies on the need and
acceptability of introducing legislative controls on idling vehicles.
(b)
Apart from a number of preliminary surveys, no detailed study has
been conducted to assess the health and environmental impacts of
emissions from idling engines. We are considering whether and
how further investigations would need to be done.
MR JAMES TIEN (in Cantonese): Mr President, as Canada and the United
States are big countries with abundant resources, emissions from vehicles are
not of much concern. Hong Kong is, however, a small city. My original
question does not direct at private cars, petrol cars or taxis, but at diesel-driven
lorries and coaches which usually have to wait for a very long time. May I ask
the Government, after consulting the transport trades, if it will first consider
prohibiting these two types of vehicles from leaving the vehicle engines and the
air-conditioning systems running while they are stationary?
SECRETARY FOR PLANNING, ENVIRONMENT AND LANDS (in
Cantonese): Mr President, we have not finalized the details for the consultation
yet. As I have said in my main reply, we shall consult the transport trades to see
their responses and opinions in this aspect. If necessary, of course we will deal
with vehicles causing bigger problems first.
MR HOWARD YOUNG (in Cantonese): Mr President, about three years ago,
the Asian-Pacific Tourism Council (Hong Kong Chapter) gave directions to the
drivers through travel agencies to request them to switch off the diesel engines
especially while waiting at Kai Tak Airport. Leaflets were also distributed to
the visitors to explain the reasons of doing so. May I ask the Government if
LEGISLATIVE COUNCIL — 23 June 1997
11
there is any information showing the effectiveness of such actions, especially
those taken at Kai Tak Airport?
SECRETARY FOR PLANNING, ENVIRONMENT AND LANDS (in
Cantonese): Mr President, we have in fact published many leaflets and
distributed them to related trades. Franchised bus companies and other
tourism-related trades have already received these leaflets.
The bus companies have directed the drivers not to run the bus engines for
over five minutes while waiting. For the tourism trade, this will depend on the
actual situations at different locations. For example, at the airport, when the
tourists have got on a vehicle, the driver will have to switch on the
air-conditioning. We have not obtained statistics on the waiting time of each
vehicle, but we may study this issue further when we conduct surveys in future.
Besides buses and coaches, we hope that other vehicles such as private
cars, nanny light buses and mini-buses can switch off the engines while waiting,
if possible. Therefore, we have also launched promotion campaigns on the
mass media and on television. We will assess the results in conjunction with
the transport trades and the Hong Kong Tourist Association soon.
DR JOHN TSE (in Cantonese): Mr President, nearly all environmental
protection groups in Hong Kong, as far as I know, support that the engines have
to be switched off while the vehicles are waiting. May I ask the Secretary for
Planning, Environment and Lands the practical reasons for the Government's
reluctance to implement policies to provide that motorists must switch off the
engines of idling vehicles?
SECRETARY FOR PLANNING, ENVIRONMENT AND LANDS (in
Cantonese): Mr President, there are different cases for individual places. We
know that even though legislation is in place in some foreign cities, cities, I
emphasize, not countries, great difficulties may arise in enforcement. Examples
of such difficulties are how to decide the time for which the vehicles have been
waiting and the engines have started, details of the enforcement such as whether
the evidence will be accepted by the court, and other practical situations.
In Hong Kong, if there are passengers in a vehicle and it has to wait for
12
LEGISLATIVE COUNCIL — 23 June 1997
other passengers, the air-conditioning must be switched on. If the engines are
switched off, it is certain that there are ventilation problems inside the vehicles.
In some countries with colder climates, vehicles may experience difficulties in
restarting the engines under extremely cold weather if they are switched off.
Therefore, some cities with such legislation make a lot of exemption
arrangements for vehicles not to be restricted under many circumstances.
Therefore, we must examine in detail if it is technically feasible to enforce
such legislation and consult the transport trades on these issues in future.
MISS EMILY LAU (in Cantonese): Mr President, the Secretary for Planning,
Environment and Lands has said that related trades and organizaions will be
consulted, and Mr John Tse has mentioned that the environmental protection
groups will certainly support this approach. However, I believe that if vehicle
engines are not switched off, the public will be victimized, and the Government
should also know this quite well. Why does the Government consult the
transport trades only? Of course, it will affect them because they have to
switch off the engines, but in fact everyone will be affected. Does the
Government know that the general public find this condition very disgusting?
May I ask how all the victims can be consulted during the process of
consultation?
SECRETARY FOR PLANNING, ENVIRONMENT AND LANDS (in
Cantonese): Mr President, of course it is impossible for us to consult all the
victims, but I believe that the Honourable Members should understand some
basic scientific or technical information. As a vehicle emits more exhausts
while it is moving than while it is stationary, the exhausts from a moving vehicle
have greater impact than a stationary vehicle with the engines switched on,
unless it is inside an enclosed area.
Nonetheless, we know that the community at large is very concerned about
this issue and we have taken some measures. For example, the Electrical and
Mechanical Services Department and the Environmental Protection Department
(EPD) have stipulated new design and standards for ventilation systems of bus
terminals. Subsequently, new bus terminals will adopt these new standards.
The departments concerned will consider how to improve the present ventilation
facilities in bus terminals.
LEGISLATIVE COUNCIL — 23 June 1997
13
However, as I have said, regarding vehicles parked at the roadside, we
have to study issues concerning enforcement and control, and consider the
general flow of traffic. Even though emissions from stationary vehicles may
affect the general public, it is only when they are very close to the vehicles that
they will be serious affected. Otherwise, the exhausts from moving vehicles
have greater effects on the general public.
MISS EMILY LAU (in Cantonese): Mr President, the Secretary for Planning,
Environment and Lands has not replied my question. My question is very
simple: How will all the victims be consulted? The Secretary for Planning,
Environment and Lands has said it iss very difficult to do so. Does it mean that
he will not conduct any consultation except asking the opinions of the transport
trades?
SECRETARY FOR PLANNING, ENVIRONMENT AND LANDS (in
Cantonese): Mr President, I have just said that we cannot consult all members of
the public because in principle everyone in Hong Kong is victimized. The
Honourable Members should notice that all citizens in Hong Kong are more
affected by the exhausts from moving vehicles than vehicles with engines still
running slowly while they are stationary. Hence we should consider the overall
situation instead of looking at the problem from a narrow perspective.
MR HOWARD YOUNG (in Cantonese): Mr President, several weeks ago, the
media widely reported that it would be particularly harmful to students when the
parents stopped their vehicles near schools and switched on the engines. Later,
the EPD replied that such effects were less serious than the exhausts from
moving vehicles. This is also the reply given by the Government just now. In
respect of the absolute volume of emissions, however, has the Government
studied whether vehicles with their engines running while they are stationary
cause higer exhaust concentration than vehicles moving on the road at a specific
time and in a specific area?
SECRETARY FOR PLANNING, ENVIRONMENT AND LANDS (in
Cantonese): Mr President, if a member of the public is very close to the exhaust
14
LEGISLATIVE COUNCIL — 23 June 1997
pipe of a vehicle, he will of course be intensely affected by the emissions. But
the problem is that when compared with the exhausts from a vehicle which stops
temporarily only, such as a school bus which will leave after the students have
got off, the exhausts from a moving vehicle will have a greater impact because it
burns more fuel and gives out more exhausts. I accept the saying that if a
certain place does not have much traffic, a vehicle suddenly stops there without
its engine switched off will probably cause a higher conentration of exhausts
there. Therefore, if we are to conduct a further study, we will consider its
impact on public health and the overall quality of the atmosphere.
MR FRED LI (in Cantonese): Mr President, may I ask the Secretary for
Planning, Environment and Lands whether the Government requires that its
vehicles, including those of the Urban Council and the Urban Services
Department, should switch off the air-conditioning and engines while they are
stationary? If so, it is good that it has taken the lead. If not, will it consider
starting to do so?
SECRETARY FOR PLANNING, ENVIRONMENT AND LANDS (in
Cantonese): Mr President, we usually instruct our drivers not to wait with the
engines on, but in reality, we cannot confirm whether all our drivers will do so.
Perhaps I will discuss with the government departments concerned to see how to
make government vehicles do so first.
MR JAMES TIEN (in Cantonese): The Secretary for Planning, Environment
and Lands has mentioned that the Government has done a lot in education and
promotion before the legislation is introduced, and I truly support this approach.
May I ask the Government to consider distributing the leaflets which the
Secretary for the Planning, Environment and Lands was holding not long ago at
locations with more tourists and shops, such as Tsim Sha Tsui, Mongkok and
Causeway Bay, and distribute them to drivers of government departments?
SECRETARY FOR PLANNING, ENVIRONMENT AND LANDS (in
Cantonese): Mr President, I will do so.
LEGISLATIVE COUNCIL — 23 June 1997
15
MR WONG WAI-YIN (in Cantonese): Mr President, as the Secretary for
Planning, Environment and Lands mentioned just now, some leaflets and
directions have been given to the franchised bus companies to direct their
drivers to switch off the engines inside the semi-enclosed bus terminals at
commercial and residential buildings, but the results are less than expected.
May I ask if any government departments such as the EPD or the Transport
Department are responsible for monitoring whether bus drivers follow the
directions? Has the Government effected supervision in this respect?
SECRETARY FOR PLANNING, ENVIRONMENT AND LANDS (in
Cantonese): Mr President, the leaflet is not an instruction. It is only an advice
to ask drivers to switch off the engines while the vehicles are stationary. We
explain to them the problems which may arise from idling engines. In reality, as
I have said, passengers start to get on a bus at the terminal, and if the bus is
air-conditioned, the engine has to be started for proper air-conditioning in the
vehicle. At present, this is the biggest problem they encounter. According to
our observation, many drivers have already adopted the practice to switch off the
engine of a stationary bus which is not air-conditioned. How to deal with
air-conditioned vehicles is our biggest problem now.
Hong Kong's Capacity in International Labour Conventions after 1 July
2.
MR LEE CHEUK-YAN (in Cantonese): Mr President, regarding the
participation of Hong Kong in the International Labour Organization (ILO) and
the fulfilment of its obligations under the International Labour Conventions
(ILCs) after 1 July this year, will the Government inform this Council:
(a)
as China has signed 18 ILCs among which six are not yet applicable
to the territory (including the Minimum Wage-Fixing Machinery
Convention, the Equal Remuneration Convention and the
Vocational Rehabilitation and Employment (Disabled Persons)
Convention), whether the Administration has considered discussing
with the Chinese Government so that these six conventions can be
applied in Hong Kong after 1 July;
(b)
of the approximately 50 ILCs currently applicable to the territory,
LEGISLATIVE COUNCIL — 23 June 1997
16
which of them will no longer be applicable because of the change of
sovereignty over Hong Kong, and what remedial measures the
Administration has in hand;
(c)
as the ILCs provide that signatories are required to submit reports
regularly, whether it is aware how this obligation will be fulfilled by
Hong Kong after 1 July; and
(d)
whether it is aware of the capacity in which Hong Kong
representatives will attend conferences organized by the ILO after 1
July and whether they will become part of China's delegation?
SECRETARY FOR EDUCATION AND MANPOWER (in Cantonese): Mr
President,
(a)
As stipulated under the first section of Article 153 of the Basic
Law,"The application to the Hong Kong Special Administrative
Region of international agreements to which the People's Republic
of China is or becomes a party shall be decided by the Central
People's Government (CPG), in accordance with the circumstances
and needs of the Region, and after seeking the views of the
Government of the Region."
It will be up to the future Hong Kong Special Administrative Region
(SAR) Government to discuss with the CPG on whether those ILCs
ratified by China should be applied in Hong Kong.
(b)
Currently, a total of 49 ILCs are applicable in Hong Kong. After
the handover, since Hong Kong will cease to be a non-metropolitan
territory (NMT), three ILCs which carry NMT implication, will not
be applicable anymore. The three ILCs are No. 82 ─ Right of
Association (Non-Metropolitan Territories) Convention; No. 84 ─
Right of Association (Non-Metropolitan Territories) Convention
and No. 86 ─ Contracts of Employment (Indigenous Workers)
Convention.
LEGISLATIVE COUNCIL — 23 June 1997
17
Although the above three ILCs will cease to become applicable in
Hong Kong; however, the Administration has already implemented
the relevant articles of the ILCs through relevant legislation
provisions and administrative measures. As such, there will not be
any substantive effect on the rights and benefits of local employees.
(c)
After 30 June 1997, the SAR Government will submit reports on
ILCs to the ILO via the CPG.
(d)
Article 152 of the Basic Law stated that "Representatives of the
Government of the SAR may, as members of delegations of the
People's Republic of China, participate in international
organizations or conferences in appropriate fields limiting to states
and affecting the Region, or may attend in such other capacity as
may be permitted by the CPG and the international organizations or
conference concerned, and may express their views using the name
'Hong Kong, China'." Therefore, representatives of the SAR
Government can participate in ILO activities including the
International Labour Conference, as members of the delegation of
the People's Republic of China.
MR LEE CHEUK-YAN (in Cantonese): Mr President, in its reply, the
Administration says that it will be up to the future SAR Government to discuss
with the CPG on whether those ILCs ratified by China should be applied in
Hong Kong. May I ask the Secretary whether the Administration has any plan
to discuss with the Chinese Government that it is time for a particular ILC to be
applied in Hong Kong? Thank you, Mr President.
SECRETARY FOR EDUCATION AND MANPOWER (in Cantonese): Mr
President, the Administration does not have such intention at the moment. But
the future SAR Government can examine the relevant ILCs in detail at
appropriate time.
MR LEUNG YIU-CHUNG (in Cantonese): Mr President, in part (d) of its
18
LEGISLATIVE COUNCIL — 23 June 1997
reply, the Administration points out that representatives of the SAR Government
can participate in the ILO activities as members of the delegation of the People's
Republic of China (PRC) after 30 July 1997. May I ask the Secretary whether
this is the understanding of the Hong Kong Government or a knowledge based
on a concrete reply from the authority that such arrangement will surely be
implemented?
SECRETARY FOR EDUCATION AND MANPOWER (in Cantonese): Mr
President, such arrangement has been clearly stated in the Basic Law, details of
which is also set out in part (d) of my main reply. So I think this arrangement is
totally beyond doubt.
MR LEUNG YIU-CHUNG (in Cantonese): Mr President, my question is
whether this is an understanding on the part of the Secretary or the Hong Kong
Government, or whether this is based on a concrete reply that such arrangement
will be put in place.
SECRETARY FOR EDUCATION AND MANPOWER (in Cantonese): Mr
President, maybe I can add that this arrangement has also been discussed by the
Joint Liaison Group and so this is not a question at all.
MR LEE CHEUK-YAN (in Cantonese): Mr President, in part (d) of the reply,
to which the Honourable LEUNG Yiu-chung's question is related, it is said that
the future representatives of the SAR will participate in ILO activities as
members of the delegation of the PRC. Has the Administration discussed with
the ILO or the Chinese Government that Hong Kong can participate in the
activities as a separate delegation under the name "Hong Kong, China" as we do
in the World Trade Organization, rather than as members of the PRC
delegation? I want to know whether or not the Administration has discussed
this issue with the ILO and the Chinese Government. Thank you.
SECRETARY FOR EDUCATION AND MANPOWER (in Cantonese): Mr
President, the ILO is composed of member states and Hong Kong now
participates in its activities as members of the Britain's delegation. It is
therefore totally appropriate for representatives of the future SAR to take part in
LEGISLATIVE COUNCIL — 23 June 1997
19
the ILO activities as members of the PRC's delegation.
MR MICHAEL HO (in Cantonese): Mr President, may I ask whether our
Education and Manpower Branch, which is in transition to the SAR Government,
will conduct studies on the ILCs which are currently applicable to Hong Kong
and make suggestions to the SAR Government as to what changes should be
made to these conventions; if so, what is the timetable; if not, why not?
SECRETARY FOR EDUCATION AND MANPOWER (in Cantonese): Mr
President, I do not rule out the possibility of carrying out studies into ILCs
ratified by China but not yet applied in Hong Kong as to whether there is a
practical need to adopt these conventions in Hong Kong. But at present, I
cannot undertake a concrete timetable for that.
Foreign Domestic Helpers Taking up Part-time Jobs
3.
MISS CHAN YUEN-HAN (in Cantonese): Mr President, at present, it is
an offence for foreign domestic helpers to take up part-time jobs and both they
and the persons who employ them are liable to prosecution. However, there
have been cases in which the foreign domestic helpers were prosecuted for
taking up part-time job, whereas the persons who employed them were not. In
this connection, will the Government inform this Council:
(a)
of the number of foreign domestic helpers prosecuted for working
illegally in each of the past three years;
(b)
of the number of employers prosecuted for employing such foreign
domestic helpers illegally in each of the past three years; and
(c)
if foreign domestic helpers are convicted for taking up part-time job,
whether the employers who employed them will accordingly be
prosecuted; if not, what the reasons are?
SECRETARY FOR SECURITY (in Cantonese): Mr President, in 1994, 1995
and 1996, there were a total of 162, 528 and 351 foreign domestic helpers
prosecuted for working illegally respectively. The number of employers
prosecuted for employing the helpers illegally were 38, 185 and 131 in the
20
LEGISLATIVE COUNCIL — 23 June 1997
corresponding years.
In determining whether to prosecute the employer of a convicted foreign
domestic helper, we have to consider amongst other things whether there is
sufficient evidence to prove the existence of an employment relationship between
the helper and the suspect employer and whether the employer has taken any
practicable steps to avoid hiring the illegal domestic helper concerned.
Prosecution will normally be instituted against the alleged employer if there is
sufficient evidence.
It should however be emphasized that the conviction of a foreign domestic
helper for taking up part-time job alone will not necessarily lead to a
corresponding prosecution of her employer. This is because of the need to have
other independent evidence to prove the existence of a contract of employment.
For example, the helper may be unwilling to testify against her employer or she
might not be able to identify who the real employer is. Another prosecution
difficulty was the claim of the employer that practicable steps had already been
taken to ensure that the person was a lawfully employable person through
checking her Identity Card.
In line with our efforts to combat illegal employment of foreign domestic
helpers, we have taken measures to enhance the prosecution rate of employers.
Legislative amendments were introduced in October 1996 to redefine the
definition of lawfully employable persons to exclude foreign domestic helpers
who have breached the condition of stay. An employer is also now required to
inspect the travel document of his potential employee who holds a
non-permanent identity card before employing him. These measures help
prevent unscrupulous employers from making the excuse that they were unaware
that the foreign domestic helpers were not lawfully employable. In January
1996, we also increased the level of fines on convicted employers and employees
for greater deterrent effect.
MISS CHAN YUEN-HAN (in Cantonese): Mr President, the Secretary for
Security has told us that if the domestic helper does not testify against her
employer, it will be difficult to prosecute the employer. My question is that
suppose I see my neighbours hiring domestic helpers on a part-time basis and I
will testify against them, will that be an evidence?
LEGISLATIVE COUNCIL — 23 June 1997
21
SECRETARY FOR SECURITY: Mr President, since I am not a lawyer, I
would not be able to say whether such is sufficient evidence. Obviously such
evidence, if available, would be taken into account by the prosecuting authorities.
The ultimate judgment is one of whether there is a reasonable case for
prosecution and whether there is a reasonable chance of success. In all these,
our colleagues in the Immigration Department take account of all the evidence,
all the statements that are available to them, and where necessary, they would
seek the advice from the Legal Department.
MR JAMES TO (in Cantonese): Mr President, the Secretary for Security has
mentioned in paragraph 2 of his reply that there are two possibilities which will
make it difficult to have evidence. One of them is that foreign domestic helpers
may not be willing to testify against their employers. He has given us the
impression that the foreign domestic helpers who are arrested for unlawful
employment are generally unwilling to testify their employers. Has the
Administration conducted a simple analysis to see which types of foreign
domestic helpers have a larger number or have made prior arrangement with
their employers that they will not testify against the employers even if they are
arrested? Moreover, will the Administration consider amendments to the
legislation, such as prescribing presumptions based on the payment of wages,
within reasonable limits, of course, to facilitate prosecution against these
unscrupulous employers?
SECRETARY FOR SECURITY: Mr President, we always encourage the
foreign domestic helper concerned to testify against the alleged employer. In
1996, for example, a total of 59 foreign domestic helpers were granted immunity
by the Attorney General, or his approval in principle, to testify against such
employers or agencies. At the same time, the current presumption available
under the Immigration Ordinance enables the court to presume the existence of
an employment contract if there are other employees employed by the same
employer at the place of employment.
From a legal point of view, there is little other convenient way to further
remedy the situation without undermining the importance of the principle of a
fair trial, but obviously, we would be prepared to take into account any
suggestions that may be practicable from Honourable Members.
22
LEGISLATIVE COUNCIL — 23 June 1997
MRS SELINA CHOW (in Cantonese): Mr President, will the Government
inform this Council of the number of foreign domestic helpers prosecuted who
are waiting for the trial of their cases against their employers by the Labour
Tribunal and because they are waiting for the trial, they have to get other
employment in order to make a living?
SECRETARY FOR SECURITY: Mr President, I do not have such information
or statistics at hand, but I will check whether such information is readily
available and will give a written answer to the Honourable Member. (Annex I)
MR CHOY KAN-PUI (in Cantonese): Mr President, can the Government
inform this Council what types of people mostly employ domestic helpers to
undertake illegal part-time jobs?
SECRETARY FOR SECURITY: Mr President, we do not have such an
analysis.
MR HOWARD YOUNG (in Cantonese): Mr President, the community
generally feel that the retail trade and the catering industry are more likely to
employ unlawfully part-time foreign domestic helpers. The Government has
taken measures to combat this. But there is another phenomenon in Hong Kong
that domestic helpers may work for the relatives or neighbours of their own
employers and get remuneration for that. Would this be considered a breach of
law? In paragraph one of the Secretary's reply, there is mention about the
prosecution figures. Do these figures cover these so-called occasional
part-timers?
SECRETARY FOR SECURITY: Mr President, a foreign domestic helper is
only admitted to work for a specific contract for a specific employer. If he takes
up unauthorized job, whether part-time or full-time with any other employer he
or she contravenes section 41 of the Immigration Ordinance and breaches the
condition of stay. He or she is liable upon conviction to a fine of $50,000 and
LEGISLATIVE COUNCIL — 23 June 1997
23
to imprisonment for two years.
MR HOWARD YOUNG (in Cantonese): Mr President, my question is whether
the figures in paragraph one cover prosecutions of foreign domestic helpers who
work occasionally for people other than their own employers?
SECRETARY FOR SECURITY: Mr President, I do not have a breakdown of
the global figures which I mentioned in my main reply, but if there were such
prosecutions they would have been included in it.
MR LEE CHEUK-YAN (in Cantonese): Mr President, in his reply, the
Secretary has mentioned that new legislative amendments were introduced in
October 1996. What about the prosecution figures in 1997? Has it increased
or decreased? Is it true that because of the new legislative amendment, it has
become easier to prosecute the employers for hiring part-time foreign domestic
helpers, or more prosecutions have been initiated as a result?
SECRETARY FOR SECURITY: Mr President, I do have the prosecution
figures but if you would allow me just to switch to the appropriate page. In
respect of the employers of foreign domestic helpers, the number of employers
prosecuted in 1996 was 131. In the first five months of 1997, the number of
employers of foreign domestic helpers prosecuted were 43. I do not think we
can, on the basis of those figures, draw any particular conclusion. But I am told
by my colleagues in the Immigration Department and in the Attorney General's
Chambers that the amendment that we introduced in 1996 and subsequently
enacted by this Council had at least enabled the successful prosecution of five
cases of employers who would not have been liable to prosecution before those
amendments were enacted.
LEGISLATIVE COUNCIL — 23 June 1997
24
MR JAMES TIEN (in Cantonese): Mr President, foreign domestic helpers in
Hong Kong are easily identifiable because most of them are non-Chinese. May
I ask the Secretary whether it is true to say that we can report to the authorities
if anyone of us in the street sees foreign domestic helpers, who do not look like
Chinese, being engaged in retail trade or other jobs?
SECRETARY FOR SECURITY: Mr President, the Government welcomes any
report of evidence of foreign domestic helpers doing part-time job or other forms
of illegal workers. We welcome report by any member of the community to the
Immigration Department.
I have to make just one minor point which is that someone who may look
like a foreign domestic helper may not always be a foreign domestic helper. I
think it goes without saying that a large number of foreign domestic helpers in
Hong Kong are of the Filipino community. There are, of course, Filipino
persons who are in Hong Kong not as foreign domestic helpers but are otherwise
in Hong Kong for residence, for settlement, or for employment in other fields,
and it is not always true to say that those who look like a Filipino or Filipina are
foreign domestic helpers.
Safety of Three Government Slopes
4.
MR CHAN WING-CHAN (in Cantonese): It is reported that there are
three slopes belonging to the Government in the vicinity of Grenville House, the
future official residence of the Chief Executive of the Hong Kong Special
Administrative Region, which have been classified as dangerous slopes, with
maintenance works scheduled for July this year. In this connection, will the
Government inform this Council:
(a)
of the safety standards and risk category classifications in respect of
slopes in the territory;
(b)
of the respective safety factors of the three slopes mentioned above
and the risk categories to which they belong;
LEGISLATIVE COUNCIL — 23 June 1997
25
(c)
of the number of existing slopes in the territory with the same safety
factors or risk categories as the above three slopes, and their
geographical distribution;
(d)
when it was decided that maintenance works should be carried out
to the above three slopes, and whether other slopes belonging to the
Government with the same safety factors or risk categories as these
slopes will be included in the maintenance programme for the same
period; if not, why not; and
(e)
whether there are any slopes belonging to the Government which
are at higher risk (including potential risk) than the three slopes,
but have not yet been scheduled for maintenance; if so, what the
reasons are?
SECRETARY FOR WORKS (in Cantonese): Mr President,
(a)
The safety standards in respect of slopes depend on many factors,
including the type of slope (for examples, fill slopes, cut slopes and
retaining walls), consequences in the event of failure and
construction history (existing or newly constructed). The required
factor of safety for the stability of slopes generally varies between
1.1 and 1.4.
According to the severity of their consequence-to-life in the event of
failure, slopes are classified into three categories as illustrated in the
attached Table 1. Categories 1 and 2 are relevant to relatively
higher consequence-to-life affecting occupied buildings and busy
roads respectively, whereas Category 3 is relevant to relatively
lower consequence-to-life affecting, for example, country parks.
The details of the safety standards for slopes are prescribed in the
Geotechnical Manual for Slopes published by the Government.
A slope is classified as a "substandard slope" if it does not meet the
required factor of safety prescribed in the Geotechnical Manual.
LEGISLATIVE COUNCIL — 23 June 1997
26
(b)
The slopes directly affecting Grenville House are private slopes
owned by the owners of Grenville House. We believe the three
government slopes under this Question are not likely to affect
Grenville House in the event of failure. They are in fact located
along the Peak Tram track and to the west of Grenville House, and
could affect a Peak Tram station at Macdonnell Road in the case of
failure. They belong to category 1 of the consequence-to-life
classification and the required factor of safety for these existing
slopes is 1.2. The overall stability of these slopes are found to
have a factor of safety marginally exceeding 1.0. Therefore, they
are substandard and have been included in a works contract for
upgrading under the Landslip Preventive Measures (LPM)
Programme.
(c)
Many old man-made slopes, particularly those in the New
Territories, were not included in the original 1997-1998 Catalogue
of Slopes. We are preparing a new catalogue of slopes registering
all sizeable man-made slopes in Hong Kong. Not until completion
of the new catalogue and the subsequent detailed studies to the
slopes therein, we do not have an exact figure of how many slopes in
Hong Kong are substandard. However, according to the results of
some 1 900 detailed studies carried out in the past 20 years for all
the Government and private slopes registered in the original
1997-78 Catalogue, a total of 899 government slopes were found to
be substandard. Among these, 754 substandard government slopes
have been upgraded under the LPM Programme and the remaining
145 have been included in 14 current works contracts for upgrading.
The distribution of these slopes under current works contracts over
the 18 District Board areas is shown in the attached Table 2.
Also as a result of the detailed studies a total of 619 substandard
private slopes have been served with Dangerous Hillside (DH)
Orders. DH Orders on 405 of these private slopes have been
discharged, leaving 214 private slopes with the relevant or necessary
works in progress.
(d)
The three government slopes concerned were found to be
substandard in December 1994 and were included together with 17
other substandard slopes in a current LPM contract No. GE/96/01
LEGISLATIVE COUNCIL — 23 June 1997
27
for upgrading. The actual upgrading works for these three slopes
are scheduled to commence in July 1997 and will take about one
year to complete.
All the remaining 145 substandard government slopes as
summarized in Table 2 have been included in 14 current LPM works
contracts for upgrading.
(e)
There is no government slope which is found to be substandard but
has not yet been scheduled for upgrading work under the LPM
Programme. In fact, whenever a government slope is found to be
substandard by detailed study under the LPM Programme, it will be
included in a works contract for upgrading. As mentioned in (c)
above, all of the 145 substandard government slopes so far
identified are included in current LPM works contracts for
upgrading.
Table 1 - Typical Examples of Slope Failures in Each Consequence-to-life
Category
CONSEQUENCE-TO-LIFE
Example
(1)
Failures affecting occupied buildings (for
examples, residential, education, commercial or
Category 1
Category 2

industrial buildings, bus shelters, railway
platforms)
(2)
Failures affecting buildings storing dangerous
goods.
(3)
Failures affecting densely used open spaces and
recreational facilities (for examples, sitting-out
areas, playgrounds, car parks).



(4)
Failures affecting road with high vehicular or
Category 3
LEGISLATIVE COUNCIL — 23 June 1997
28
pedestrian traffic density.

(5)
Failures affecting public waiting areas (for
examples, bus stops, petrol stations).
(6)
Failures affecting country parks and lightly used
open air recreation areas.

(7)
Failures affecting roads with low traffic density.

(8)
Failures affecting storage compounds
(non-dangerous goods)

Table 2:
Number of Substandard Government Slopes located in each District
Board area (as at 31 March 1997)
District Board
Central and Western
Wan Chai
Eastern
Southern
Yau Tsim Mong
Sham Shui Po
Kowloon City
Wong Tai Sin
Kwun Tong
Tsuen Wan
Tuen Mun
Yuen Long
North
Tai Po
Sai Kung
Sha Tin
Number of Substandard Government Slopes
36
15
13
7
2
4
4
2
7
6
2
0
2
20
13
3
LEGISLATIVE COUNCIL — 23 June 1997
Kwai Tsing
Islands
29
5
4
Total
145
MR CHAN WING-CHAN (in Cantonese): Mr President, in answering part (c)
of the question, the Secretary has pointed out there are 214 substandard private
slopes pending repair. As it is the rainy season now, how will the Governement
further expedite the necessary checking and maintenance of private and
government slopes with problems in order to safeguard the safety of our people,
such as measures to avoid the recurrence of the incident in which residential
flats were flooded with water and mud when a water pipe under a slope burst, or
other similar dangerous accidents?
SECRETARY FOR WORKS (in Cantonese): Mr President, the Government
will keep a close watch on the progress of the upgrading works for the remaining
214 private slopes. However, we may say the slopes, substandard as they are,
will not cause immediate danger. We are just saying the present condition of
the slopes are not up to the required factor of safety. Of course, both the
Government and private owner bodies we have contacted are very clear about the
situation and hope to finish all improvement works, which the Government will
watch closely.
Over the past one or two years we have paid much attention to failures due
to burst water pipes hidden under slopes. Thus the relevant Government
departments, including the Housing Authority, have started work on the
inspection and investigation of water pipes hidden in slopes.
The
Administration expects to finish all the work by the end of this year. We will
carry out the necessary works according to the severity of the problems. The
number of spots involved will certainly be very large and we will prioritize
according to the severity of each case. At any rate, however, we want to
complete the work early. Thank you, Mr President.
MR EDWARD HO (in Cantonese): Mr President, according to the
30
LEGISLATIVE COUNCIL — 23 June 1997
Government's reply, the three slopes at Granville House are private slopes which
have been included for upgrading under the LPM Programme. My question is
that since the three slopes are private slopes, why the owners do not upgrade
them according to a DH Order issued by the Government. Furthermore, when
did the Administration find out the problem and why have the works not started
yet?
SECRETARY FOR WORKS (in Cantonese): Mr President, I think the report
could be misleading. The slope adjacent to the back of Granville House is
private property, but we find that the three substandard slopes are Government
slopes, which are located to the west of Granville House. It is the Peak Tram
Station that may be affected. We found in as early as October 1994 that the
three slopes were not up to our requirements at all and we have included them in
the LMP Programme. Relevant works will start next month and will take about
a year to complete. Thank you, Mr President.
MR LO SHUK-CHING (in Cantonese): The Government has mentioned that
there are 214 outstanding cases. Is that due to the fact that some private
owners cannot afford the costs of the repair works? If so, what will the
Government do?
SECRETARY FOR WORKS (in Cantonese): Mr President, we have not
received such information up to the present. As I have said, not all substandard
slopes will pose immediate danger. If the relevant private owners cannot afford
the repair or do not carry out the repair immediately for some reason, but the
substandard slope does not pose immeidate danger, the Government will keep a
close watch on the progress of the situation. Once the slopes are found to pose
serious danger or consequences, the Government will follow the usual practice to
carry out upgrading work first and then recover all the costs from the owners.
Thank you, Mr President.
MR JAMES TO (in Cantonese): Mr President, since the Chief Executive has
decided to choose Granville House as his official residence and the relevant
private slope is now found not up to standard, will the Government give advice to
the Chief Executive so that he can take this into consideration when deciding
LEGISLATIVE COUNCIL — 23 June 1997
31
whether or not to use Granville House as his official residence? And in making
a decision on the choice of his official residence, has the Chief Executive
considered whether the owners of Granville House have taken active measures to
repair the relevant private slopes?
PRESIDENT (in Cantonese): Mr TO, I am afraid your question has gone beyond
the original question and answer. Could you change the second part of your
supplemenatry question slightly?
MR JAMES TO (in Cantonese): Mr President, in that case I just ask the first
part of it.
PRESIDENT (in Cantonese): If you could amend the second part of your
supplemenatry question, the Secretary could perhaps answer it.
MR JAMES TO (in Cantonese): Mr President, in that case I just ask the first
part.
PRESIDENT (in Cantonese): Even the first part is beyond the original question.
MR JAMES TO (in Cantonese): Mr President, I will amend the part which is
beyond the original question.
As we are talking about the repair of private slopes, I would like to know
whether the Government will give advice or consider carrying out repair works
when substandard slopes are found near the residence of senior civil servants or
even that of the Chief Executive. Does the Government intend to give advice on
safety in relation to the repair of the relevant slopes?
PRESIDENT (in Cantonese): Mr TO, what is the main point of your question?
Are you asking whether the Government will provide special information
32
LEGISLATIVE COUNCIL — 23 June 1997
to senior officials when they want to buy flats, or whether the Government will
consider the possible danger in providing residence for senior officials? What
is your main point?
MR JAMES TO (in Cantonese): Mr President, my main point is whether, in
assessing the danger posed by the relevant slopes or the progress of repair
works to facilitate law enforcement or the execution of the relevant provisions,
the Administration will take into consideration the fact that senior civil servants
are dwelling in the premises affected so that it will decide on the pace of the
works; or it treats all cases equally as all lives are equally precious.
SECRETARY FOR WORKS (in Cantonese): Mr President, let me try to
answer the Member's question by referring to two kinds of slopes of different
nature. If Government slopes are involved, we will assign priority according to
the factor of safety and the extent of danger posed. If private slopes are
involved, obviously private owners are responsible for upgrading the slopes.
Our existing practice dictates that we will issue DH Orders according to existing
laws when we find there are slopes in need of repair. The way the
Administartion handles slopes is the same for all slopes, whether their ownership
belong to the Chief Executive, civil servants or the common people. As far as
I know, many of our colleagues have received DH Orders for the places where
they live, and they have to carry out the necessary upgrading work according to
the usual time-table and the regulations.
Thank you, Mr President.
PRESIDENT (in Cantonese): Will the Government expedite repair works at
densely-populated areas?
SECRETARY FOR WORKS (in Cantonese): Mr President, the factor for
safety is set according to the severity of the slopes' consequence-to-life in the
event of failure. So, we will certainly treat slopes at densely-populated areas as
more urgent cases. Thank you, Mr President.
LEGISLATIVE COUNCIL — 23 June 1997
33
MR LEE WING-TAT (in Cantonese): Mr President, why is the slope so
well-known? We knew nothing about it in the past, if not for the fact that the
Chief Executive has chosen Granville House as his official residence. I am also
particularly interested in the Secretary's reply because the public are very
sensitive about preference given to places just because senior civil servants live
there. I trust that the private slope at Granville House has been included in the
LPM Programme, as shown in paragraph (b) of the main reply, but no mention
has been made about when the DH Order was issued. After receiving the DH
Order, did the owners carry out the upgrading works? That was a question
Members raised. I would like to ask the Secretary for Works whether the
Government will consider submitting detailed information to us about the private
slope at the back of Granville House, after today's questions. Will the Secretary
mention in his reply when the DH Order was issued, whether upgrading works
have been done and what the Government will do next. Thank you, Mr
President.
SECRETARY FOR WORKS (in Cantonese): Mr President, I will provide Mr
LEE with the information in writing. Thank you, Mr President. (Annex II)
Rates of Increase in Price Indices of Private Residential Properties
5.
MR LEE WING-TAT (in Cantonese): Will the Government inform this
Council:
(a)
of the rates of increase in the price indices for each of the four types
of private residential properties during the past year (that is, from
June 1996 to May 1997);
(b)
of the effects achieved by the series of measures, announced in April
this year, to curb property prices; and
(c)
whether other measures to curb property prices will be drawn up,
having regard to the further rise in property prices in May?
SECRETARY FOR HOUSING (in Cantonese): Mr President, according to the
Price Indices for Selected Residential Developments compiled by the Rating and
Valuation Department, in comparing May 1997 with June 1996, prices for small
and medium-sized flats (that is, flats with saleable area of less than 100 sq m)
34
LEGISLATIVE COUNCIL — 23 June 1997
increased by about 38%, and prices for large flats (that is, flats with saleable area
of 100 sq m or more) rose by about 34%, with the increases becoming more
noticeable in recent months. Further breakdown by flat types for the same
period is not available for comparison.
As regards part (b) of the question, the series of measures to dampen
property speculation and to increase residential flat supply, announced by the
Government on 26 March and 16 April 1997, have been effective. The property
market has become more stable. Sales are conducted in an orderly manner.
Information on the sale of residential flats has also become more transparent.
Property prices in May 1997 dropped by 3% to 20% as compared to that in April.
Speculators have suffered and the supply of residential flats has increased.
As regards part (c) of the question, the Government's policy is to allow the
residential property market to operate as freely as possible, and would intervene
only if it becomes necessary. We will continue to supply land for building flats
and monitor closely developments in the property market.
MR LEE WING-TAT (in Cantonese): Mr President, Mr LEUNG Chun-ying,
Member of the Executive Council of the Hong Kong Special Administrative
Region (SAR), has drafted a report concerning land supply and property price
recently. I would like to know whether Mr LEUNG has discussed with the
Secretary for Housing on one of the proposals which is rumoured to be
considered, that is, to levy transaction tax on short-term non-self-residential
flats. If so, what is the Government's opinion?
SECRETARY FOR HOUSING (in Cantonese): Mr President, concerning the
rumour about the report submitted by Mr LEUNG Chun-ying, I have neither read
nor received it at all. As regards the aforesaid proposal on transaction tax on
short-term flats, we have come across nothing on this proposal in any special
reports submitted to the Chief Executive's Office. It is only a rumour. Of
course, such rumour is spread among some Members and the public. Mr
LEUNG Chun-ying and I have also pointed out that such proposal has been
raised. However, he has not given me any special comment on the feasibility of
this proposal. Thank you, Mr President.
LEGISLATIVE COUNCIL — 23 June 1997
35
MR RONALD ARCULLI (in Cantonese): Thank you, Mr President. Will the
Government inform this Council of whether the Government's policy is, in fact, to
suppress "speculation" or property prices?
SECRETARY FOR HOUSING (in Cantonese): Mr President, the measures
adopted by the Government during the three years since mid 1994 have all along
just aimed at curbing speculations and not suppressing property prices directly.
It is because in principle, property prices are affected by various factors in the
market and it is not easy for the Government to suppress them. However, as
regards measures to dampen speculation, the Government has determined to
implement them continuously after the announcement and will also review them
regularly. We will consider measures which are genuinely required when
necessary. Thank you, Mr President.
MR FRED LI (in Cantonese): Mr President, the Government and the Secretary
for Housing have said earlier that only the price of luxury properties would rise
and those of small and medium-sized flats would not be involved. However,
according to the information provided by the Government at present, the price
rise of small and medium-sized flats in the past year is even higher than that of
luxury ones. In the third paragraph of the answer, the Government has pointed
out that intervention measures will be adopted whenever necessary. Over the
past one year, the prices of small and medium-sized flats have increased by 38%.
From the assessment of the Government, is it necessary to adopt those measures
at this moment?
SECRETARY FOR HOUSING (in Cantonese): Mr President, as what I have
mentioned, property prices are affected by different factors in the market,
including the public's responses and their confidence toward the prospect of
Hong Kong or the future of the property market. From our point of view, it is
really necessary for the Government to adopt various measures, which are proved
to be effective. Under this situation, the Government still has to continue to
monitor the development of the property market. If the administrative measures
can keep back property speculations, I think we would allow the market to
36
LEGISLATIVE COUNCIL — 23 June 1997
operate as freely as possible within a feasible extent. Thank you, Mr President.
PRESIDENT (in Cantonese): There are still four Members who want to raise
supplementary questions. I will draw a line there.
MR CHOY KAN-PUI (in Cantonese): Mr President, will the Government
inform this Council of whether it will make a forecast on the annual price indices
for residential properties? If not, what are the reasons? If so, how will the
forecast affect the Government's housing policy?
SECRETARY FOR HOUSING (in Cantonese): Mr President, the Government
should not forecast the future property prices in advance. The Government can
only forecast the annual land supply and building capacity. And this kind of
forecast can only be restricted to a short term. Property prices are affected by a
lot of factors, including the overall economy. Therefore, the Government
should not forecast property prices in advance. However, we will closely
monitor what has already happened, that is the change and tendency of property
prices in the past. We will pay special attention to it. Thank you, Mr
President.
MISS CHAN YUEN-HAN (in Cantonese): Mr President, according to the reply
given by the Secretary for Housing, prices of small and medium-sized flats have
increased by 38% during the period from June 1996 to May 1997, with an
increase up to 40% within a year. The investment yield is very considerable.
This shows that there do exist "speculations" objectively. As property prices
rise again recently and flats, a necessity of the community, are always exploited
as a means of speculation, will the Government inform of this Council whether it
will set an index of intervention? For example, in 1993, even if a university
graduate did not eat and live, it would take him or her 15 years to be able to buy
a flat; at present, it would take 24 years. Will the Government set an index, that
is, a level of property prices at which it will adopt more active measures to curb
property prices from soaring? Thank you, Mr President.
SECRETARY FOR HOUSING (in Cantonese): Mr President, my reply is that
LEGISLATIVE COUNCIL — 23 June 1997
37
the Government does not have this kind of index. However, the Government
has all along been very concerned about "speculation". If it is considered that
the overall market is really affected, the Government will adopt some measures
to dampen the situation and curb speculations. I reiterate that over the past
three years, the Government has handled the problem on the property market
cautiously and has curbed property speculations for four times with effective
results. We should not raise new measures rashly to curb speculations just
because we hear an urge. Thank you, Mr President.
PRESIDENT (in Cantonese): It is wrong for me to say that there are still four
Members who want to raise questions. It should be five. There are still four
Members and I will draw a line there.
MR ERIC LI (in Cantonese): Mr President, I would also like to raise a question
on the need for intervention because I am not quite satisfied although Mr
Dominic WONG has replied several times. If an index of intervention is set to
allow the Government to decide whether it is necessary to intervene, does it give
too much room for the Government to decide when intervention is necessary and
when it is not? In fact, can the Government explain more clearly what index
can show the need of intervention?
In practice, is it possible to mark
reasonable prices for property? Can the Government's policy decide when
speculation can be regarded as excessive? At present, as there is no means to
set these reasonable indices, the Government has given us a feeling that it only
deals with its short-term political needs.
SECRETARY FOR HOUSING (in Cantonese): Mr President, the Government
does not have any special indices such as prices or other similar information to
decide when it is necessary to adopt special measures to intervene. However,
the Government will consider the overall situation. Therefore, before adopting
measures each time, the Government will first consider the problems that have
especially led to speculation at that time. In this aspect, the Government can
adopt some appropriate measures to curb speculations each time. Therefore,
over the past three years, we have really adopted different measures four times to
curb all means of "speculation". Of course, we cannot say that the Government
can fully anticipate the means to be adopted by the "speculators". However, up
till now, we know that we have plugged most of the speculation means through
38
LEGISLATIVE COUNCIL — 23 June 1997
different actions and measures. Thank you, Mr President.
MISS CHAN YUEN-HAN (in Cantonese): Mr President, can I raise a question
again? If so, I still have one. Mr President, I will raise it now. Thank you.
As regards what has been mentioned by the Secretary for Housing, I still
want to have a follow-up. We see that "speculations" occur once every two or
three years and they are more frequent recently. Therefore, will the
Government summarize the situation so as to formulate more effective measures
than the present ones? The Secretary for Housing has said a lot but I still
consider that he has not solved this problem of concern of the whole community.
Housing is a necessity. However, the example in the past shows that the
"speculation period" is shortened. The interval between the peaks of property
prices becomes shorter and the ampliude of fluctuation in property prices is also
larger each time. Should the Government think of some new methods and not to
quote the lengthy details you have just replied? Thank you, Mr President.
SECRETARY FOR HOUSING (in Cantonese): Mr President, the Government
has all along been very concerned about the housing problem. I do not agree
with Miss CHAN that the Government has only adopted some measures to settle
the matter, resulting in "speculations" occuring again every two or three years.
In fact, the problem does not lie in the ineffectiveness of our administrative
measures. The main reason is that as less land was granted in the past few
years, and building and completion of flats in the recent two years decreased
relatively. On the other hand, as we adopted some very keen measures to curb
property speculations three years ago, the economy of Hong Kong was affected
and the building capacity also decreased. Therefore, we should consider and
handle the problem cautiously and bear in mind that every measure may lead to
other different effects. If we have to solve this problem conscientiously and in a
long term, as what we have pointed out several times, we have to continue to
have sufficient land supply for building flats. At the same time, the procedure
of house-building should be speeded up so that flats can be built more quickly.
The Government knows that this is the way to solve the problem in the long term.
And the Government has also taken the initiative and announced that more land,
about 570 hectares, will be granted in the coming five years. Thank you, Mr
President.
LEGISLATIVE COUNCIL — 23 June 1997
39
MR LEE WING-TAT (in Cantonese): Mr President, when Mr LEUNG
Chun-ying, Member of the Executive Council of the SAR, was appointed by the
Chief Executive, the Honourable Mr TUNG Che-hwa, to conduct the housing
research in April, I remembered that the Secretary for Housing, Mr Dominic
Wong, and the Secretary for Planning, Environment and Lands, Mr Bowen
LEUNG, attended a press conference together. It gave the public an impression
that they completed the report and conducted the research jointly. After
hearing the reply given by the Secretary for Housing just now, I am very shocked
that he has not read the report. I would like to raise a question in this respect.
Is it very strange that there seems a sideway devolution of authority as the
Secretary for Housing designate has not read the proposals of the report? On
the other hand, part (c) of the reply given by the Secretary for Housing today is
different from what has been said by Mr LEUNG Chun-ying in public. Will this
give us an impression that there is a great difference in the opinions between
Members of the Executive Council and the Secretary for Housing in future, and
the public do not know what our future Government intends to do? I would like
to ask what are the opinions of the Secretary for Housing about this impression.
Thank you, Mr President.
SECRETARY FOR HOUSING (in Cantonese): Mr President, Mr LI has
pointed out that he has an impression that Mr LEUNG Chun-ying, the Secretary
for Housing and the Secretary for Planning, Environment and Lands drafted a
report together and then submitted it to the Chief Executive. This impression is
not created by the Government itself and I believe that we have not decided to
draft a report together and then submitted it to the Chief Executive. The Chief
Executive has only appointed Mr LEUNG to conduct the research and then he
submitted a report on it. Before Mr LEUNG prepared this report, we had
promised to give him our opinions. Therefore, we maintained frequent contacts
and had profound understanding and communication.
As regards the
understanding, communication and frequent contacts, we had all put in effort.
However, up till now, I still do not know the matter about the submission of this
report. Therefore, I cannot make any guess in this respect. Thank you, Mr
President.
MR RONALD ACRULLI (in Cantonese): Thank you, Mr President. The
question raised by Mr LEE Wing-tat is about the increase of property prices
during the period from June last year to May this year. I would like to ask the
Secretary for Housing the actual increase of private property prices since June
LEGISLATIVE COUNCIL — 23 June 1997
40
1994 till May this year, 1997.
SECRETARY FOR HOUSING (in Cantonese): Mr President, as for the long
term situation, the trend of the property prices over the past three years,
according to my memory and information, the index for residential property
prices in May 1997 exceeds that of the peak in April 1994 by 21%. However, if
we turn this percentage into a real growth, the figure just exceeds that of the peak
in April 1994 by 2%. This is only a comparative figure. Thank you, Mr
President.
WRITTEN ANSWERS TO QUESTIONS
Chinese Medicine Bodies
6.
MR MOK YING-FAN asked (in Chinese): Will the Government inform
this Council of:
(a)
the number of Chinese medicine bodies currently registered under
the Societies Ordinance;
(b)
the number of Chinese medicine bodies currently registered under
the Companies Ordinance; and
(c)
the number of training or research programmes in Chinese
medicine organized by the tertiary institutions, and the number of
persons applying for enrolment in such programmes, in each of the
past three years?
SECRETARY FOR HEALTH AND WELFARE (in Chinese): Mr President,
(a)
There are currently 15 Chinese medical practitioners societies and
one Chinese medicine society which have notified the Police of their
establishment in accordance with the Societies Ordinance.
LEGISLATIVE COUNCIL — 23 June 1997
(b)
41
According to the records kept under the Companies Ordinance, there
is a total of 180 companies registered with characters " 中 醫 ",
" 中 藥 ", " 中 國 醫 ", " 中 國 藥 " as part of their company titles.
However, since the Companies Registry does not categorize the
registered companies according to their nature of business, it is not
possible to distinguish which of these registered companies are
Chinese medicine bodies (中 醫 藥 團 體 ) and not companies trading
in Chinese medicine.
Upon payment of a fee, members of the public may obtain
information on these registered companies.
(c)
During the past three academic years, Hong Kong Baptist University
(HKBU), the Chinese University of Hong Kong (CUHK) and the
University of Hong Kong (HKU) all had training courses in Chinese
medicine. These courses were organized by their Continuing and
Professional Education Units on a self-financing basis.
The School of Continuing Education of HKBU started offering a
short Chinese medicine course in the 1996-97 academic year.
50 participants attended the course. It also organized nine lectures
on this subject attended by a total of 1 506 persons.
The School of Continuing Studies of CUHK started offering
Chinese medicine courses in 1996. In that year, it offered six short
courses and enrolled a total of 233 persons. In addition, the School
also offered a Certificate Programme in Chinese medicine in
collaboration with Chengdu University in 1996. Twenty-seven
students were enrolled in this programme.
The School of Professional and Continuing Education of HKU
offers certificate courses and short courses in Chinese medicine. The
enrolment figures in each of past three academic years are as
follows:
1994-95
1995-96
1996-972
LEGISLATIVE COUNCIL — 23 June 1997
42
No. Of certificate courses
Enrolment
No. of short courses
Enrolment
8
7
11
362
326
575
31
3
2
331
51
59
Note 1: A seminar attended by 285 persons was organized in
1994-95
Note 2: Position as at 19 June 1997
None of the University Grants Committee-funded institutions
offered any research programmes in Chinese medicine for enrolment
during the past three academic years.
Education for Immigrant Children from Mainland
7.
DR ANTHONY CHEUNG asked (in Chinese): With effect from 1 July
this year, Hong Kong permanent residents' children born in the Mainland will
automatically become permanent residents of the Hong Kong Special
Administrative Region and will be entitled to settle in Hong Kong. As children
aged 15 or below have the right to receive elementary school education, will the
Government inform this Council, when the new school year begins on 1
September this year:
(a)
how many new primary and secondary schools will come into
operation, and how many whole-day and half-day primary and
secondary schools will be in the territory by then;
(b)
how many classes will be available at each of the levels from
Primary One to Form Three of all schools in the territory;
LEGISLATIVE COUNCIL — 23 June 1997
43
(c)
of the maximum accommodation at each of the levels mentioned
above in terms of normal class size, and the total number of students
at these levels at present; and
(d)
of the maximum intake of immigrant children from the Mainland by
schools at both primary and junior secondary levels, on the basis of
the above figures?
SECRETARY FOR EDUCATION AND MANPOWER (in Chinese): Mr
President,
(a)
Before the commencement of the 1997-98 school year, six new
primary and six new secondary schools will be completed. By
then, there will be 206 whole-day and 545 half-day primary schools
and 377 secondary schools in the public sector.
(b)
The Education Department anticipates that for the 1997-98 school
year, government and aided schools will operate the following
numbers of classes:
Primary
P1
P2
P3
P4
P5
P6
Total
2 044
2 052
2 114
2 267
2 172
1 929
12 578
Secondary
(c)
S1
S2
S3
Total
2 043
2 067
2 144
6 254
The present enrolment and the projected provision of school places
in government and aided schools for the 1997-98 school year are as
follows:
Primary
LEGISLATIVE COUNCIL — 23 June 1997
44
1996-97 school
year enrolment
Projected
provision for
1997-98 school
year
P1
P2
P3
P4
P5
P6
Total
66 684 67 682 71 000 68 054 67 845 72 131 413 396
66 430 66 690 68 706 73 678 70 590 72 338 418 432
Secondary
1996-97 school
year enrolment
Projected
provision for
S1
82 648
S2
85 732
S3
83 115
Total
251 495
81 720
82 680
85 760
250 160
1997-98 school
year
(d)
The projected numbers of operating classes for the 1997-98 school
year ((b) above) have taken into account the demand for school
places of local and new arrival children. We cannot derive from
the figures in (c) above the accurate number of additional new
arrival children that can be absorbed by the government and aided
schools. However the Government will ensure adequate provision
of school places for new arrival children. Where necessary, the
Education Department will increase the number of operating classes
or make other arrangements to provide school places for them.
Building Safety Inspection Scheme
8.
MR AMBROSE LAU asked (in Chinese): Regarding the Building Safety
Inspection Scheme (BSIS) recently introduced by the Buildings Department (BD),
will the Government inform this Council:
LEGISLATIVE COUNCIL — 23 June 1997
45
(a)
of the number to date of advice letters which have been issued to
property owners; whether any of the property owners concerned
have indicated that they will arrange to have their premises
inspected; if so, of the number of such property owners; and
(b)
of the plans in place to enhance awareness among owners of old
buildings of building safety; and whether there is a comprehensive
plan to promote the BSIS with a view to encouraging more property
owners to participate?
SECRETARY FOR PLANNING, ENVIRONMENT AND LANDS (in
Chinese): Mr President,
(a)
Since the introduction of the voluntary BSIS in late April this year, 3
653 advice letters covering 69 buildings have been issued. So far,
owners/owners' corporations of 13 buildings have enquired about
further details of the scheme. The BD is still awaiting indications
from recipients of its letters and will issue reminders in due course.
(b)
The BD disseminates information on the importance of building
safety among building owners mainly through publicity pamphlets
made available at District Offices and the mass media.
Announcement of public interests to promote building safety has
been regularly aired on television and radio since May 1997.
Apart from intensifying current publicity to synchronize with the
public consultation of the mandatory BSIS which will start in July
1997, the BD is arranging seminars/discussion forums with owners'
corporations, mutual aid committees and other concerned groups to
encourage participation in the scheme. Moreover, it is directly
contacting the building owners to which advice letters have been
sent to follow up each case actively.
Hospital Services Expansion in Kowloon East
LEGISLATIVE COUNCIL — 23 June 1997
46
9.
MR FRED LI asked (in Chinese): The number of hospital beds in
Kowloon East (including Kwun Tong District, Tseung Kwan O and Sai Kung) is
the lowest among the eight hospital clusters under the Hospital Authority. It is
learnt that the Government, in order to cope with the continuous growth in the
future population and to resolve the problem of land shortage for residential
developments, is planning to keep enlarging the planned population for Tseung
Kwan O and along Anderson Road. As a result, the population of Kowloon
East will exceed 1.3 million by 2011. Nevertheless, upon the completion of a
number of projects in 2001, such as the extension of the United Christian
Hospital and the construction of Tseung Kwan O Hospital, there is so far no
other approved projects to further increase the number of acute wards for
hospitals in the districts. In this regard, will the Government inform this
Council:
(a)
whether there are any plans to expand the hospital facilities and
increase the number of hospital beds in the above districts after
2001; if so, what the concrete plans are; if not, how it will cope with
the needs arising from the continuous growth of population in the
districts;
(b)
of the respective ratios of beds per 1 000 population in 2001, 2006
and 2110 in the above districts; and whether the planning standard
of providing 5.5 beds per 1 000 population as laid down in the Hong
Kong Planning Standards and Guidelines, which the Government
has been adopting, can be met; if not, when the above standard is
expected to be met; and
(c)
how it will assess, upon the relocation of the Kai Tak Airport, the
pressure on medical services in the districts in the neighbourhood of
Kwun Tong, brought about by a population of some 300 000 on the
future reclamation site; and whether it will reconsider the East
Kowloon Hospital project which has been shelved, so as to cope
with the long term medical needs of Kwun Tong and its
neighbouring districts; if not, why not?
LEGISLATIVE COUNCIL — 23 June 1997
47
SECRETARY FOR HEALTH AND WELFARE (in Chinese): Mr President,
(a)
Following the completion of the United Christian Hospital
Extension, the Haven of Hope Hospital Redevelopment and the
Tseung Kwan O Hospital construction, the number of hospital beds
in the Kowloon East hospital cluster will increase to 2 300 by an
additional provision of 970 beds by the year 2000. This increased
capacity will be able to meet the prevailing needs for medical
services in East Kowloon. For the years beyond 2001, new
hospital projects will be planned and developed in line with
population increases in the district. We shall monitor the situation
closely.
(b)
The planning ratio of 5.5 beds per 1 000 population laid down in the
Hong Kong Planning Standards and Guidelines refers to the
planning target of all hospital beds for the whole territory of Hong
Kong, including both general and psychiatric beds, as well as public
and private hospital beds. It is not appropriate to apply the ratio to
the provision of public hospital beds on a district basis.
(c)
As explained in part (a) above, new hospital projects are developed
in conjunction with population growth. We shall pay close
attention to the future development plans for Kai Tak Airport and its
adjoining districts, review the situation regularly and make plans for
the provision of additional medical services in a timely manner.
There is presently no plans to proceed with an East Kowloon
Hospital.
Operation of Government Clinics from 28 June to 2 July 1997
10. DR DAVID LI asked: It is reported that in view of the number of people
expected to attend the accident and emergency departments in public hospitals
during the holidays from 28 June to 2 July 1997, the Hospital Authority will
increase the staffing level in these departments by 10% by requesting staff
members to work extra shifts during that period. Moreover, private doctors are
being urged by the Hong Kong Medical Association to keep their clinics open
during that period to ease the burden of public hospitals. In this connection,
LEGISLATIVE COUNCIL — 23 June 1997
48
will the Government inform this Council whether the Department of Health will
consider opening all the clinics under its management from 9 am to 5 pm during
the holidays?
SECRETARY FOR HEALTH AND WELFARE: Mr President, the
Department of Health (DH) has made arrangement to open the following general
out-patient clinics during the period of 28 June 1997 to 2 July 1997, from 9 am to
1 pm and from 2 pm to 5 pm:
Hong Kong Island
1.
2.
Violet Peel Health Centre
Shau Kei Wan Jockey Club Polyclinic
Kowloon
3.
4.
5.
Robert Black Health Centre
Yau Ma Tei Jockey Club Polyclinic
Kwun Tong Jockey Club Health Centre
New Territories
6.
7.
8.
9.
10.
Lady Trench Polyclinic
Shek Wu Hui Jockey Club Clinic
Lek Yuen Health Centre
Yuen Long Jockey Club Health Centre
Tuen Mun Clinic
Altogether, these clinics will be able to provide 3 360 consultations per
day.
DH will publicize the above services through telephone hotlines, messages
displayed on pagers, television announcements, and posters put up at DH clinics,
public hospitals, Housing Department offices and Home Affairs Department
District Offices.
Departure Taxes
11. MR WONG WAI-YIN asked (in Chinese): Will the Government inform
this Council:
LEGISLATIVE COUNCIL — 23 June 1997
49
(a)
of the respective amounts of departure taxes which passengers are
required to pay when they depart the territory by sea or by air;
(b)
of the criteria used in determining these two types of departure tax;
(c)
why the sea passenger departure tax is levied at a proportion higher
than the air passenger departure tax, against the respective fares
which the passengers pay; and
(d)
why departure tax is not collected from passengers who depart the
territory by means of land transport?
SECRETARY FOR THE TREASURY (in Chinese): Mr President,
(a)
An air passenger departure tax (APDT) of $100 is payable by every
passenger aged 12 or above leaving Hong Kong by air. We have
not levied a departure tax on passengers who depart Hong Kong by
sea. An embarkation fee of $25 is however payable by the owner
of a ferry vessel in respect of each passenger embarking on the
vessel at a ferry terminal. The owner passes this charge on to the
passenger.
(b)
APDT is a tax which is imposed to raise revenue. The embarkation
fee is a fee intended to enable Government to recover the costs of
providing and operating the marine ferry terminal facilities.
(c)
Since APDT and the embarkation fee are different in nature and are
levied for different purposes, it is not appropriate to compare them
as a proportion of the respective fares which passengers pay.
(d)
The policy of not charging a departure tax on passengers who depart
by land transport is in line with the practice of many other places
which have also imposed a departure tax or a similar charge on
LEGISLATIVE COUNCIL — 23 June 1997
50
passengers departing by air but have not imposed a similar tax or
charge on passengers departing by land transport. There is also no
fiscal reason for us to impose a tax on departure by land transport,
and the Government services provided at Border Crossing Points do
not justify the imposition of a charge in this respect.
Entry and Exit of Container Trucks and Drivers from the Mainland
12. MR LEE CHEUK-YAN asked (in Chinese): Regarding the entry of
container trucks and container truck drivers from mainland China to the
territory, will the Government inform this Council:
(a)
of the average monthly number of vehicular trips made by the
Mainland drivers to and from the territory in the past two years;
(b)
of the annual number of Mainland drivers possessing the Closed
Road Permit and Notice issued by the Immigration Department for
entering Hong Kong in the past two years; and
(c)
of the detailed procedures and criteria adopted for issuing the
documents mentioned in (b) above?
SECRETARY FOR SECURITY (in Chinese): Mr President,
(a)
The average monthly number of cross-border vehicular trips made
by Mainland drivers in 1995 and 1996 are 28 000 and 34 000
respectively.
(b)
We do not have readily available figures on the number of crossings
made by individual Mainland drivers with "Closed Road Permits"
and "Notices" in the past two years. As at 15 June 1997, there are a
total of 779 Mainland drivers who have valid "Closed Road
Permits" and "Notices".
LEGISLATIVE COUNCIL — 23 June 1997
(c)
51
The conditions for issuance of "Notice" and "Closed Road Permit"
are the same for both local and Mainland drivers. The driver must
be employed by a local company with investment in China, in
possession of driving licenses for the two places and with
authorizations from the Chinese Public Security Bureau. However,
for a Mainland driver, he must also have a valid employment visa
issued by the Immigration Department. The application for the two
documents will be dealt with in one application form, to be
submitted by the employer of the driver with relevant documentary
proof.
New Arrivals from the Mainland
13. MISS CHAN YUEN-HAN asked (in Chinese): Will the Government
provide this Council with:
(a)
the total number of new arrivals from the Mainland in 1986, 1991
and 1996; and the respective numbers among these new arrivals
who are economically active and those who are non-economically
active;
(b)
the data in respect of the non-economically active population among
new arrivals from the Mainland in 1986, 1991 and 1996, by "sex
and age" and "age and education level";
(c)
the data by "sex and age", "age and education level", "education
level and industry", "education level and position held", "age and
industry", "age and position held" and "working hours" in respect
of the following income groups in the working population among
new arrivals from the Mainland in 1986, 1991 and 1996:
(i)
$3,999 or below
(ii)
$4,000 - 4,999
LEGISLATIVE COUNCIL — 23 June 1997
52
(iii)
$5,000 - 5,999
(iv)
$6,000 - 6,999
(v)
$7,000 - 7,999
(vi)
$8,000 - 8,999
(vii) $9,000 - 9,999
(viii) $10,000 - 10,999
(ix)
$11,000 - 11,999
(x)
$12,000 or above; and
if the above information is not available, what the reasons are; and
whether it will consider collecting such information and publishing
it on a regular basis?
SECRETARY FOR FINANCIAL SERVICES (in Chinese): Mr President, the
1991 Population Census and 1996 Population By-census included questions on
"Place of birth", "Nationality" and "Duration of residence in Hong Kong". If
persons who meet the following criteria are regarded as new arrivals from the
Mainland (those less than seven years' residency in the territory) (hereafter
referred to as new immigrants), namely:
(1)
place of birth in China;
(2)
nationality is "Chinese (place of domicile - Hong Kong)"; and
(3)
have stayed in Hong Kong for less than seven years,
then the number of new immigrants can be estimated and their
characteristics analysed.
LEGISLATIVE COUNCIL — 23 June 1997
53
As the 1986 Population By-census did not collect information on
"Nationality" and "Duration of residence in Hong Kong", new immigrants cannot
be identified from the data.
The estimated number of new immigrants based on the above criteria may
differ from the actual number of one-way permit holders who entered Hong
Kong. This is because the one-way permit holders after arriving Hong Kong
may have returned to China, emigrated to other countries, obtained other
nationalities, died, or they might have error due to memory lapse in answering
the question on duration of residence in Hong Kong. Hence, statistics related to
new immigrants compiled from the 1991 Population Census and 1996 Population
By-census findings should be used for reference only.
(a) The number of economically active and economically inactive new
immigrants compiled based on the 1991 Population Census and 1996 Population
By-census are given below:
1991 Population 1996 Population
Census
By-census
Economically active new immigrants
65 491
65 228
Economically inactive new immigrants
78 453
104 091
143 944
169 319
Total
(b)
(c)
The number of economically inactive new immigrants by "age and
sex" and "age and educational attainment" are given in Tables 1 and
2 respectively.
Table 1:
Number of economically inactive new immigrants by
age and sex.
Table 2:
Number of economically inactive new immigrants by
age and educational attainment.
The number of new immigrant working population by "sex and age",
"age and educational attainment", "educational attainment and
industry", "educational attainment and occupation", "age and
industry" and "age and occupation" are presented in Tables 3 to 8.
54
LEGISLATIVE COUNCIL — 23 June 1997
Table 3:
Number of new immigrant employed persons by
monthly earnings from main employment, age and sex.
Table 4:
Number of new immigrant employed persons by
monthly earnings from main employment, age and
educational attainment.
Table 5:
Number of new immigrant employed persons by
monthly earnings from main employment, industry and
educational attainment.
Table 6:
Number of new immigrant employed persons by
monthly earnings from main employment, occupation
and educational attainment.
Table 7:
Number of new immigrant employed persons by
monthly earnings from main employment, industry and
age.
Table 8:
Number of new immigrant employed persons by
monthly earnings from main employment, occupation
and age.
As information on "working hours" was not collected in the
population census/by-census, the number of new immigrant
employed persons by working hours was not available.
The above eight tables are compiled based on findings of the 1991
Population Census and 1996 Population By-census. The monthly
earnings from main employment in Tables 3 to 8 refer to the total amount
earned from main employment excluding New Year bonus and double pay.
Total 40 pages
LEGISLATIVE COUNCIL — 23 June 1997
55
56
LEGISLATIVE COUNCIL — 23 June 1997
LEGISLATIVE COUNCIL — 23 June 1997
57
58
LEGISLATIVE COUNCIL — 23 June 1997
LEGISLATIVE COUNCIL — 23 June 1997
59
60
LEGISLATIVE COUNCIL — 23 June 1997
LEGISLATIVE COUNCIL — 23 June 1997
61
62
LEGISLATIVE COUNCIL — 23 June 1997
LEGISLATIVE COUNCIL — 23 June 1997
63
64
LEGISLATIVE COUNCIL — 23 June 1997
LEGISLATIVE COUNCIL — 23 June 1997
65
66
LEGISLATIVE COUNCIL — 23 June 1997
LEGISLATIVE COUNCIL — 23 June 1997
67
68
LEGISLATIVE COUNCIL — 23 June 1997
LEGISLATIVE COUNCIL — 23 June 1997
69
70
LEGISLATIVE COUNCIL — 23 June 1997
LEGISLATIVE COUNCIL — 23 June 1997
71
72
LEGISLATIVE COUNCIL — 23 June 1997
LEGISLATIVE COUNCIL — 23 June 1997
73
74
LEGISLATIVE COUNCIL — 23 June 1997
LEGISLATIVE COUNCIL — 23 June 1997
75
76
LEGISLATIVE COUNCIL — 23 June 1997
LEGISLATIVE COUNCIL — 23 June 1997
77
78
LEGISLATIVE COUNCIL — 23 June 1997
LEGISLATIVE COUNCIL — 23 June 1997
79
80
LEGISLATIVE COUNCIL — 23 June 1997
LEGISLATIVE COUNCIL — 23 June 1997
81
82
LEGISLATIVE COUNCIL — 23 June 1997
LEGISLATIVE COUNCIL — 23 June 1997
83
84
LEGISLATIVE COUNCIL — 23 June 1997
LEGISLATIVE COUNCIL — 23 June 1997
85
86
LEGISLATIVE COUNCIL — 23 June 1997
LEGISLATIVE COUNCIL — 23 June 1997
87
88
LEGISLATIVE COUNCIL — 23 June 1997
LEGISLATIVE COUNCIL — 23 June 1997
89
90
LEGISLATIVE COUNCIL — 23 June 1997
LEGISLATIVE COUNCIL — 23 June 1997
91
92
LEGISLATIVE COUNCIL — 23 June 1997
LEGISLATIVE COUNCIL — 23 June 1997
93
LEGISLATIVE COUNCIL — 23 June 1997
94
Legal Aid Department Expenditure
14. MR HENRY TANG asked (in Chinese): Will the Government inform this
Council:
(a)
of the actual annual expenditure of the Legal Aid Department,
together with a detailed breakdown, in each of the past three years;
and
(b)
of the number of litigation cases handled by the Legal Aid
Department in each of the past three years:
CHIEF SECRETARY (in Chinese): Mr President,
(a)
The actual expenditure of the Legal Aid Department in each of the
past three years is as follows:
1994-95
$M
1995-96
$M
1996-97
$M
124.7
140.7
165.0
4.7
6.0
8.3
Legal Aid Costs
247.4
279.0
343.2
Total Expenditure
376.8
425.7
516.5
Personal Emoluments
Departmental Expenses
(b)
The number of litigation cases handled by the Legal Aid Department
in each of the past three years is as follows:
1994-95
1995-96
1996-97
Applications received
25 295
26 521
31 174
Legal aid granted
10 452
10 904
12 243
LEGISLATIVE COUNCIL — 23 June 1997
95
Octopus Card
15. MR WONG WAI-YIN asked (in Chinese): It is learnt that the Octopus
Card will be formally launched in September this year. In this connection, will
the Government inform this Council whether it is aware:
(a)
of the reasons why the District Boards concerned have not been
consulted on this scheme to date; whether it will requires the
relevant bodies to consult the District Boards before launching the
scheme;
(b)
of the specific details and arrangements of the scheme;
(c)
as certain transport companies such as the Light Rail and the Hong
Kong Ferry issue concessionary monthly tickets to frequent riders,
whether these concessionary monthly tickets will be retained after
the Octopus Card has been launched; if not, what the reasons are;
and how will concessionary measures be provided under the new
scheme; and
(d)
it is learnt that a deposit of $50 and a handling charge of $20 have
to be paid upon applying for an Octopus Card with a face value of
$100, why the above fees are to be charged and how they are
determined?
SECRETARY FOR TRANSPORT (in Chinese): Mr President, the Octopus
Card will provide the travelling public with a modern ticketing system which has
a significantly improved level of convenience, reliability, flexibility and security.
Since May this year, 5 000 passengers have been participating in a trial scheme
and the results so far have been very satisfactory. The scheme will be officially
implemented on 1 September 1997 and the Octopus Card can be used by
passengers of the Mass Transit Railway (MTR), the Kowloon-Canton Railway
(KCR), the Light Rail Transit system (LRT), franchised cross harbour services of
Kowloon Motor Bus and Citybus, and some of the outlying island and new town
services of Hongkong and Yaumati Ferry Company (HYF).
96
LEGISLATIVE COUNCIL — 23 June 1997
Creative Star Limited, a joint venture company formed by several public
transport operators to develop the Octopus Card, has been publicizing the scheme
through the media. In the next two months, Creative Star as well as the
participating companies will launch campaigns to promote the Octopus Card.
In addition, individual operators have their own programmes to promote the
Octopus Card. The HYF has consulted the Islands District Board. The
Kowloon-Canton Railway Corporation is currently explaining the smart card
system to residents and District Boards along the KCR and the LRT routes.
Some operators will introduce the Octopus Card as an additional fare
payment system while maintaining the existing fare collection methods. For
instance, the coin boxes will be retained by the franchised bus and ferry
companies, and passengers will have a choice between using the smart card and
staying with the existing form of payment. HYF will retain a monthly ticket
fare system and also incorporate the monthly ticket function into the smart card.
The two railway corporations will continue to allow passengers to use the
Common Stored Value Tickets for some time and retain the use of the Single
Journey Tickets on a permanent basis.
For the LRT, single ride tickets will continue to be used but monthly
passes, weekly passes, and student season passes will be withdrawn when the
Octopus Card is introduced in September this year. The Octopus Card deducts
fares on the basis of the number of trips taken and actual distance travelled.
There will be a bonus scheme which provides discounts to frequent passengers
and enables them to receive similar fare concessions as before. Children,
students and the elderly will continue to enjoy fare concessions after the
implementation of the Octopus Card.
A deposit of $50 is required for the purchase of an Octopus Card. This
deposit is refundable any time the card is returned in good condition. Part of
the deposit covers the cost of the card, which is about $30. The other purpose
of the deposit is to enable a passenger to complete a journey even if the
remaining value of the card is not enough to pay for that trip, and the deposit
serves to cover the deficit until the card is reloaded with a positive value.
As an optional feature which provides the user with additional protection
against the loss of his card, the Octopus Card can be issued in a personalized
form, that is, with the user's name and other personal data incorporated in the
LEGISLATIVE COUNCIL — 23 June 1997
97
card. A personalized card is not transferable and a lost or stolen card may be
replaced by a new card with the remaining value added to it. A personalized
card also enables the holder to enjoy any bonus scheme that may be introduced
by the relevant operator for the benefit of frequent travellers. The cost of
processing personalized data on an Octopus Card is $20 on top of the $50
deposit. Passengers who do not wish to have the personalized features can use
an ordinary Octopus Card instead.
The LRT is now inviting its existing monthly and season pass users to
apply for personalized Octopus cards so that they may enjoy a frequent-user
bonus from 1 September 1997. To encourage early applications, the $20
processing fee will be waived.
Old People's Homes in Zhongshan and Zhaoqing
16. MR AMBROSE LAU asked (in Chinese): It is reported that the Hong
Kong Jockey Club (HKJC) has funded voluntary agencies to set up two old
people's homes in Zhongshan and Zhaoqing for accommodating the elderly from
Hong Kong who have settled in the Mainland while continuing to receive the
Comprehensive Social Security Assistance. In this connection, will the
Government inform this Council:
(a)
of the other voluntary agencies in the territory, apart from those
funded by the HKJC, which have planned to set up old people's
homes in the Mainland for the above-mentioned purpose;
(b)
whether it will provide financial support and resources for
voluntary agencies which are willing to set up old people's homes of
the above-mentioned nature in the Mainland, if so, what the details
are, if not, why not; and
(c)
given that the elderly who have settled in the Mainland often
encounter problems in the areas of housing and medical care, and
are left unattended, whether the Government will encourage more
voluntary agencies to set up old people's homes of the
above-mentioned nature for these elderly people, so that they will be
better taken care of in the Mainland?
LEGISLATIVE COUNCIL — 23 June 1997
98
SECRETARY FOR HEALTH AND WELFARE (in Chinese): Mr President,
(a)
Government is not aware of other voluntary agencies in Hong Kong
which have concrete plans to set up elderly homes in mainland
China.
(b)
As far as current government policy is concerned, there are no plans
to provide financial support to voluntary agencies to operate homes
for the elderly in mainland China. Moreover, the legislative
control which Government exercises over the residential care homes
in Hong Kong cannot be extended to homes outside the territory.
(c)
Following on (b) above, there are no plans to take positive steps to
encourage voluntary agencies to set up elderly homes in China.
Queen's Head Coins Circulation
17. MRS SELINA CHOW asked (in Chinese): As some coin dealers have
started collecting coins featuring the Queen's head and many people also keep
such coins as souvenirs, will the Government inform this Council:
(a)
whether the above situation will result in a sudden decrease in the
number of coins currently in circulation;
(b)
of the number of coins featuring the Queen's head currently in
circulation and its proportion to those featuring a bauhinia pattern
in circulation;
(c)
whether consideration will be given to increasing the quantity of
bauhinia coins to be issued or issuing such coins ahead of time, in
order to make up for the gradual depletion of coins featuring the
Queen's head in circulation; and
(d)
in view of the Hong Kong Monetary Authority's indication that the
old coins will only be retrieved in an ordinary manner, of the
anticipated timetable for the completion of the retrieval of coins
LEGISLATIVE COUNCIL — 23 June 1997
99
featuring the Queen's head?
SECRETARY FOR FINANCIAL SERVICES (in Chinese): Mr President,
(a)
If a very substantial number of coins are kept by the public and not
recirculated, it will naturally reduce the number of coins in
circulation. However, a sustained shortage of coins is unlikely as
the Government has ample stock of coins to offset the number of
coins that may have been hoarded by the public.
(b)
As at end of May 1997, the numbers of Bauhinia coins and Queen's
Head coins in circulation were 1.54 billion and 2.17 billion
respectively. The ratio is 1:1.4.
(c)
The issuance of Bauhinia coins is a programme designed to replace
the Queen's Head coins. In planning new coin requirements for
each year, the Government has taken into account the estimated
number of Queen's Head coins to be replaced.
(d)
The rate of replacement of Queen's Head coins by Bauhinia coins is
expected to accelerate with time. We expect that Bauhinia coins
will account for over 80% of the total denominated value of coins in
circulation by 1999. It is envisaged that not all Queen's Head coins
will be retrieved as a certain number of them will be kept by the
public for collection.
Revaluations of Rateable Value since 1984
18. MR HENRY TANG asked (in Chinese): Will the Government inform this
Council of:
(a)
the number of revaluations of rateable value conducted since 1984;
(b)
the respective total rateable value of residential, industrial and
commercial properties after each revaluation; and
(c)
the respective cumulative increases in the total rateable value of
residential, industrial and commercial properties since 1984?
LEGISLATIVE COUNCIL — 23 June 1997
100
SECRETARY FOR THE TREASURY (in Chinese): Mr President,
(a)
Since 1984, the Rating and Valuation Department has conducted
five general revaluations of rateable value, and the results took
effect from 1 April of 1984, 1988, 1991, 1994 and 1997
respectively.
(b)
The total rateable values of domestic, industrial and commercial
premises after each general revaluation since 1984 are:
Rateable Value ($ million)
1 April 1984 1 April 1988 1 April 1991 1 April 1994 1 April 1997
(i)
Private domestic
21,098
29,291
58,369
93,970
134,686
7,810
9,353
18,573
25,234
31,870
5,307
7,414
19,152
25,557
24,635
10,062
13,663
28,898
44,317
52,028
3,797
5,926
18,969
25,831
31,832
premises
(ii)
Public domestic
premises
(iii)
Industrial premises
(factories and storage
facilities)
(iv)
Commercial premises
(shops and other
commercial premises
except offices)
(v)
Office premises
LEGISLATIVE COUNCIL — 23 June 1997
(c)
101
Based on the figures as set out in (b) above, the cumulative increases in
rateable value of various types of premises since 1 April 1984 are:
Premises Type
(i)
(ii)
(iii)
(iv)
(v)
Private domestic premises
Public domestic premises
Industrial premises
Commercial premises
Office premises
Cumulative Increase
since 1 April 1984
538%
308%
364%
417%
738%
The increases reflect changes in rental value, increases in the number of
assessments and improvements in the quality of premises.
Western Corridor Railway
19. MR NGAN KAM-CHUEN asked (in Chinese): Regarding the Western
Corridor Railway (WCR) project, will the Government inform this Council:
(a)
as the original plan of publishing the scheme of the railway project
in the Gazette in the middle of this year has been deferred to early
next year, what measures the Government has to ensure that the
WCR section running from West Kowloon to Yuen Long will be
completed on schedule by the end of 2002 and that the WCR
extension to Tuen Mun will be completed by September 2003;
(b)
as the Kowloon-Canton Railway Corporation has recently decided
to revise the alignment of the WCR section running from Tin Shui
Wai to Tuen Mun, what measures the Government has to minimize
the possible impacts of the newly revised Tuen Mun alignment on
the public facilities to be constructed by the Regional Council in the
area; and
LEGISLATIVE COUNCIL — 23 June 1997
102
(c)
as the WCR project will involve the resumption of land located in
different compensation zones, when the Government will decide
whether a uniform rate of compensation for land resumption will be
applied across all the land located in the non-country park areas
within different compensation zones?
SECRETARY FOR TRANSPORT (in Chinese): Mr President,
(a)
There is no intention to defer the publication of the scheme of the
Western Corridor Railway (WCR) to next year. We are still aiming
to gazette the railway scheme of the WCR around August 1997.
This is in line with the original project programme. Every effort
will be made to ensure that the WCR is completed on schedule, that
is, by the end of 2002 from West Kowloon to Yuen Long and by
September 2003 to Tuen Mun.
(b)
Subsequent to the submission of its original proposal on the WCR to
Government in November 1995, the Kowloon-Canton Railway
Corporation (KCRC) has been refining the railway alignment in an
effort to minimize the land requirement and to enhance the overall
cost-effectiveness of the project.
KCRC's latest alignment running from Tin Shui Wai to Tuen Mun
represents the best option for that section in terms of engineering
feasibility, operational desirability, interchanging convenience with
the Light Rail Transit and cost-effectiveness.
However, this alignment involves interface issues concerning some
existing and new Regional Council (RC) facilities (cycle track,
walkway, fitness facilities, public toilets and so on) on the west bank
of the Tuen Mun nullah. We have been discussing with KCRC and
the Regional Services Department on how best to minimize the
impact on such facilities and on reprovisioning arrangements.
KCRC is formulating measures to resolve the interface problems.
We will ensure that:
LEGISLATIVE COUNCIL — 23 June 1997
103
(i)
the affected facilities are not taken away permanently and are
reprovisioned by KCRC following completion of the railway;
(ii)
the reprovisioned facilities are properly designed to blend in
with the design of the railway;
(iii)
the noise impact is within acceptable standards; and
(iv)
all existing pedestrian links across the nullah are maintained.
We will keep the RC and the relevant District Boards informed of
the development of the project. We will also consult them about
KCRC's proposed measures in detail during our next round of
consultations which will commence soon.
(c)
Under the existing ex-gratia zonal compensation procedure, a
uniform rate would generally be applied to resumption for a single
project where large portions of the private land falls within one
zone, but very small portions of private land are in adjoining zones.
However, exceptions arise where a project occupies a long stretch of
land and land crossing different zones. A recent example is
Route 3, where different zonal rates applied.
The Secretary for Planning, Environment and Lands is of the view
that the WCR is similar to the Route 3 project in that both are
infrastructure projects occupying long stretches of land crossing
different compensation rate zones. It is therefore appropriate that
different compensation zonal rates should apply. There may be a
need to make minor adjustments to some of the zonal boundaries,
and for that purpose, the Lands Department will carry out a review
towards the end of 1997.
LEGISLATIVE COUNCIL — 23 June 1997
104
Chemical Waste Treatment Centre on Tsing Yi Island
20. DR JOHN TSE asked (in Chinese): In respect of the operation of the
Chemical Waste Treatment Centre (CWTC) on Tsing Yi Island, will the
Government inform this Council:
(a)
of the income and expenditure of the Centre in each of the past three
years; and
(b)
the measures which have been put in place to improve the financial
position of the Centre?
SECRETARY FOR PLANNING, ENVIRONMENT AND LANDS (in
Chinese): Mr President,
(a)
(b)
In each of the past three years the income from fees and the payment
to the CWTC contractor by the Government under the Design, Build
and Operate (DBO) contract have been as follows:
Year
Fee Income
($ million)
Payment to CWTC Operator
($ million)
1994-95
1995-96
1996-97
0.0
53.3
63.5
429.1
510.5
490.7
It is Government's stated policy to gradually increase the chemical
and MARPOL waste charges in order to achieve 100% recovery of
the variable operating costs. The latest increase in chemical waste
charges will take effect from 27 June. A consultancy study is also
in hand to examine the DBO contract and to recommend whether,
any changes to the existing arrangements are necessary.
LEGISLATIVE COUNCIL — 23 June 1997
105
GOVERNMENT MOTIONS
MAGISTRATES ORDINANCE
THE CHIEF SECRETARY to move the following motion:
"That the Magistrates (Forms) (Amendment) Rules 1997 made by the
Acting Chief Justice on 12 June 1997, be approved."
She said: Mr President, I move the resolution standing in my name on the Order
Paper.
Section 133 of the Magistrates Ordinance provides that the Chief Justice,
with the approval by resolution of the Legislative Council, may make rules for
the carrying into effect of the Ordinance and for any matter ancillary thereto.
The Magistrates (Forms) Rules were first made by the Chief Justice in 1967 and
they prescribe the forms for the purpose of the Magistrates Ordinance.
The Acting Chief Justice has, under section 133 of the Ordinance, made
the Magistrates (Forms) (Amendment) Rules. The Amendment Rules are
technical in nature. They seek to modernize the language used in various court
forms by removing or updating outdated colonial expressions.
In accordance with section 133 of the Magistrates Ordinance, the Rules
now require the approval of this Council.
Mr President, I beg to move.
Question on the motion proposed, put and agreed to.
MAGISTRATES ORDINANCE
THE SECRETARY FOR TRANSPORT to move the following motion:
106
LEGISLATIVE COUNCIL — 23 June 1997
"That the Third Schedule to the Magistrates Ordinance be amended by
adding -
"13. Eastern Harbour Crossing
Any offence against the Eastern Harbour Crossing Road
Tunnel By-laws (Cap. 215 sub. leg.).
14. Tate's Cairn Tunnel
Any offence against the Tate's Cairn Tunnel By-laws (Cap. 393
sub. leg.).
15. Western Harbour Crossing
Any offence against the Western Harbour Crossing Bylaw
(L.N. 162 of 1997).
16. Tsing Ma Control Area
(1)
Any offence against the Tsing Ma Control Area
(General) Regulation (L.N. 244 of 1997).
(2)
Any offence against the Tsing Ma Control Area (Tolls,
Fees and Charges) Regulation (L.N. 137 of 1997).".
SECRETARY FOR TRANSPORT (in Cantonese): Mr President, I move that
the Third Schedule to the Magistrates Ordinance be amended.
The amendment aims to include offences against the Eastern Harbour
Crossing Road Tunnel By-laws, the Tate's Cairn Tunnel By-laws, the Western
Harbour Tunnel Bylaw, the Tsing Ma Control Area (General) Regulation, and
the Tsing Ma Control Area (Tolls, Fees and Charges) Regulation as offences for
which a defendant may plead guilty by letter. Allowing plea of guilty by letter
would simplify the process of handling these cases. This would save the time of
defendants and resources of departments concerned, including Transport
Department and the Judiciary. At present, drivers having committed offences
against the Cross-Harbour Tunnel By-laws or the Road Tunnels (Government)
Ordinance can plead guilty by letter.
LEGISLATIVE COUNCIL — 23 June 1997
107
Mr President, with these remarks, I commend the amendment to Members.
Question on the motion proposed, put and agreed to.
INTERPRETATION AND GENERAL CLAUSES ORDINANCE
THE SECRETARY FOR SECURITY to move the following motion:
"That the Auxiliary Medical Service Regulation, published as Legal Notice
No. 316 of 1997 and laid on the table of the Legislative Council on 17 June
1997, be amended (1)
in section 8, by repealing "Services" and substituting "Service";
(2)
in section 15, by repealing "30(2)" and substituting "32(2)"."
He said: Mr President, I move the first motion which has been printed on the
Order Paper. This motion seeks to amend the Auxiliary Medical Service
Regulation. The proposed amendments are minor and technical in nature.
Mr President, I beg to move.
Question on the motion proposed, put and agreed to.
INTERPRETATION AND GENERAL CLAUSES ORDINANCE
THE SECRETARY FOR SECURITY to move the following motion:
"That the Civil Aid Service Regulation, published as Legal Notice No. 317 of
1997 and laid on the table of the Legislative Council on 17 June 1997, be
amended in section 15, by repealing "30(2)" and substituting "32(2)"."
He said: Mr President, I move the second motion which has been printed on the
Order Paper. This motion seeks to amend the Civil Aid Service Regulation.
The proposed amendments are minor and technical in nature.
108
LEGISLATIVE COUNCIL — 23 June 1997
Mr President, I beg to move.
Question on the motion proposed, put and agreed to.
GOVERNMENT BILLS
Second Reading of Bills
Resumption of Second Reading Debate on Bill
INDEPENDENT POLICE COMPLAINTS COUNCIL BILL
Resumption of debate on Second Reading which was moved on 10 July 1996
MR WONG WAI-YIN (in Cantonese): Mr President, the Government tabled the
Independent Police Complaints Council Bill to this Council on 10 July 1996.
The Bills Committee (the Committee) under my chairmanship was set up by this
Council afterwards to study the Bill. The Committee was activated on 22
November last year and has held 13 meetings with the Administration. It has
met the chairman of the existing Independent Police Complaints Council (IPCC)
and representatives from various concerned groups.
The Bill seeks to make the existing IPCC a statutory body to provide the
legal basis for the IPCC to discharge its functions of monitoring and reviewing
investigations by the Complaints Against Police Office (CAPO), which deals
with all complaints against police officers.
While welcoming the tabling of this Bill by the Administration, the Bills
Committee has expressed deep concern whether the Bill will bring about any
significant improvements to enhance the credibility of, and public confidence in,
the entire system for handling and monitoring complaints against the police.
The Committee has deliberated over whether the IPCC should be
empowered to conduct investigations but members' views are divided. Some
members are of the opinion that without the power to conduct independent
investigations, the IPCC remains practically a "toothless tiger". They consider
LEGISLATIVE COUNCIL — 23 June 1997
109
that in situations where the IPCC is not satisfied with the CAPO's investigation
findings, the IPCC should have the power to conduct an independent
investigation. This would allow the IPCC to discharge its monitoring function
more effectively, thus enhancing the public confidence in the existing system.
Some members, however, have reservations about and opposition to the IPCC's
investigative power.
The Administration objects to empowering the IPCC to undertake
investigations, citing that the investigations require specialized skills and to
enable people without the professional expertise and experience to conduct
investigations may lead to duplication of efforts; and hence it would be
inappropriate for non-police personnel to take over criminal investigations. The
Administration's present policy is for the CAPO to conduct investigations and the
IPCC to perform the monitoring and reviewing functions. But the above
practice will lead to confusion of roles, duplication of efforts and even
interference with the police's investigation. If the IPCC has any queries about
the findings of the CAPO's investigation, it can require re-investigation of the
case.
Without such an investigation power, Mr James TO doubts whether the
IPCC could effectively monitor the handling of complaints by the CAPO. He
will move Committee stage amendments (CSA) to empower the IPCC to
investigate or re-investigate any complaint where the IPCC has queries over the
results of the CAPO's investigation. I personally agree to this point.
To enhance its monitoring role, the Committee has proposed that the IPCC
should be empowered to engage appropriate personnel such as experienced
investigators and legal experts to inspect or observe the CAPO's investigations.
In view of the difficulties in recruiting full-time IPCC observers with the
right calibre, the Administration has proposed to expand the IPCC Observers
Scheme by co-opting former IPCC members and community leaders to observe
the police's handling of complaints. The Administration would make the
provisions through subsidiary legislation when detailed arrangements are in
hand.
The Committee considers it necessary to specify in the Bills the power of
the IPCC to engage such persons to observe the handling of complaints against
the police by the CAPO. I will move a CSA to this effect on behalf of the
Committee later on.
110
LEGISLATIVE COUNCIL — 23 June 1997
Another item of concern to the Committee is whether the IPCC should
make decisions on the findings of any investigations.
Some members opine
that the IPCC should have the power to determine whether or not a complaint is
substantiated based on its own judgement on the case. Mr James TO will move
a CSA to specify that the IPCC may determine the findings and the results of any
investigation of a complaint and the action to be taken in connection with that
complaint. The Administration does not agree with the CSA as this should be
the responsibility of the Commissioner of Police. In the event that the IPCC
does not agree to the decision of the Commissioner of Police, it may make
recommendations to the Governor, who may give direction to the Commissioner.
As for Mr James TO's suggestion of empowering the IPCC to refer any
matters relating to a complaint to the Independent Commission Against
Corruption (ICAC), the Administration holds an opposite view. The police will
forward corruption-related complaints to the ICAC but it is inappropriate to refer
non-corruption related complaints or unresolved cases to the ICAC for
investigation or re-investigation. The Administration has advised that the ICAC
would not wish to extend its powers to investigate non-corruption related cases
and the IPCC does not agree to this proposal either. Some members have
expressed objections to or reservations over Mr James TO's amendment in this
regard.
Mr President, clause 10 of the Bill provides that at any time after the
Commissioner of Police has submitted an investigation report in respect of a
complaint to the IPCC, the IPCC or its members may interview any witness in
connection with the complaint. Under the request of the Committee, the
Administration agrees to move a CSA to make it explicit that the IPCC may
interview witnesses, including those who have not been interviewed by the
CAPO during the investigation and independent expert witnesses.
The Committee considers that flexibility should be allowed for the IPCC to
interview witnesses, where appropriate, after a complaint has been filed rather
than only after the police have submitted the investigation report as specified in
the Bill.
The Administration has explained that the purpose of the IPCC
Interviewing Witness Scheme is to enable the IPCC to clarify areas of doubt on
the part of the CAPO's investigation.
Without the completion of an
LEGISLATIVE COUNCIL — 23 June 1997
111
investigation report, the IPCC would not be in a position to know what aspect of
the investigation needs to be clarified.
Some members remain of the view that the IPCC should be allowed to
interview witnesses after a complaint has been made in order for it to fulfil its
monitoring and reviewing functions but some have reservations over this. Mr
James TO will move the CSAs concerned to provide for the interview of
witnesses to be conducted by members of the IPCC or anyone designated by it
after a complaint has been filed for the purpose of monitoring or reviewing the
complaint.
The Administration objects to the amendment and considers that the
interview is to be conducted by members of the IPCC and none else, and to
enable the IPCC to interview witnesses prior to the completion of an
investigation may impede the investigation process. The Administration has
agreed to move CSAs to empower the IPCC to interview witnesses after receipt
of an interim report with the consent of the Commissioner of Police.
To enable a witness to give statements with complete frankness, the
Committee has agreed to add a provision to the effect that no part of the
statements made by the witness during the interview are to be used to incriminate
him in court proceedings in which he is a defendant. I will move the relevant
CSA on behalf of the Bills Committee.
Since the IPCC is an independent body, the Bills Committee is of the view
that the IPCC should be given the power to appoint its secretary and staff of its
secretariat, including the legal advisor, so as to enhance the public perception of
the independence of the IPCC.
The Administration agrees that the IPCC may appoint its secretary and
legal advisor and will move a CSA accordingly.
Nevertheless, the
Administration does not agree to the IPCC's extending the appointment of
non-civil servants to the secretariat.
The Bills Committee thinks that there must be provisions allowing the
IPCC flexibility to appoint technical, professional personnel and other staff in the
secretariat to assist the IPCC in carrying out its functions and powers. I will
112
LEGISLATIVE COUNCIL — 23 June 1997
move the relevant CSAs on behalf of the Bills Committee.
Mr President, the Bills Committee is particularly concerned about the
provisions on secrecy. Clause 11(3) of the Bill provides that IPCC should
disclose any matter in its report made under the Ordinance, other than matters
which are certified by the Governor that its disclosure might prejudice security,
defence or international relations in respect of Hong Kong or would otherwise be
contrary to the public interest. The Committee considers it necessary to provide
that every time the Governor has made such a certification, it should be made
public to safeguard the public's right to know the exercise of such power by the
Governor.
The Administration has responded that the purpose of this provision is to
enable the Governor to deal with extremely rare situations. It would be up to
the IPCC to decide whether and how this fact should be disclosed in its report.
Mr James TO will move a CSA in respect of this.
The Administration has accepted the Bills Committee's suggestion to
specify that the Governor may arrange the tabling of other special reports or parts
of the reports submitted to him by the IPCC to this Council and will move a CSA
on that.
Mr President, the public have never had much confidence in the CAPO,
citing that the police's way of dealing with complaints against police officers
cannot be considered transparent and justified. The Bills Committee has also
deliberated on this issue. As regards the proposal by the existing IPCC to
appoint a non-police personnel as head of the CAPO, some members and I do
hope that the Administration will give it careful consideration. This is the
fundamental factor of enhancing the public confidence in the police complaints
system. In addition, "tipping off" to the police officers being complained
against should be made a criminal offence as only treating it as a disciplinary
offence will not create adequate deterrent effect.
Mr President, other than the CSAs that I have said to move on behalf of
the Bills Committee, the Administration and Mr James TO will also move other
CSAs. With these remarks, I support the Bill. I also hope to take this
opportunity to thank the Administration and members of the Bills Committee for
their contributions, without which we would not be able to complete the scrutiny
of the Bill.
LEGISLATIVE COUNCIL — 23 June 1997
113
Thank you, Mr President.
MR JAMES TO (in Cantonese): Mr President, this Bill seeks not only to make
the Independent Police Complaints Council (IPCC) a statutory body. If we read
the relevant papers of the Legislative Council, we will notice that the
Government, in fact, fully recognizes that the existing system for monitoring
police complaints is grossly inadequate. Therefore, apart from enacting laws to
give the IPCC statutory power, the Government should also make improvements
on some administrative measures. The problem is, no matter what the situation
is, the existing system for investigating police complaints totally fails to convince
us that it is fair.
Over the past two decades, from the time when the police themselves were
responsible for investigating corruption cases involving the police till the
establishment of the Independent Commission Against Corruption (ICAC), we
can see clearly that the approach for investigations of police cases to be handled
by the police is hardly convincing. The main principle lies not in the
independence of the IPCC but in the independence of the Complaints Against
Police Office (CAPO). The Government, however, dispproves of it.
In 1992, the Council passed a motion moved by me. I would like to
remind the Government that about four or five appointed Members voted for my
motion then. When I came across them today, they still asked me to keep
striving for it. These appointed Member, who supported the Government on a
lot of motions in the past, now recognize how serious the problem is. They
notice that if this system is not changed substantially, it will be impossible to
strike a balance among public confidence, effective investigations and the
existing system.
The IPCC is a government appointed body at the frontline to monitor the
CAPO. Over the past three years, while its membership has changed with
different combinations for three successive terms, the IPCC insists that the
CAPO should be headed by a non-police officer. As the Government cares to
reject the proposals put forward by its entrusted frontline body under different
chairmanship and with different membership in several consecutive years, I
would like to ask the Honourable colleagues to judge the Government's sincerity
in making reforms.
114
LEGISLATIVE COUNCIL — 23 June 1997
I know that some committee members and Members have faced great
pressure from the Government. Even the Chief Secretary, the Financial
Secretary and their boss have imposed pressure on them over the phone or by
other means. Can we find the slightest intention and sincerity on the part of the
Government for reforms? The IPCC has been dissatisfied with the investigation
results of the CAPO and so they want to conduct investigations themselves.
Yet the Government disapproves of it.
I reiterate that I have made some concession for which I am reproved by
many people. My amendment is that the police will conduct investigations first.
In fact, to a certain extent, the Government's request to retain the morale of the
police has been considered. When the IPCC was not satisfied with the
Government's report, it told members of the IPCC that the matter had better be
adjudicated by the Governor. Some of them told me a few months ago that the
Governor's adjudication might be that the Government would allow the IPCC to
conduct investigations, or the Government would have other means like asking
some non-police officers to conduct investigations.
Even if the IPCC is not satisfied with a report submitted by the CAPO, it is
not allowed by the Government to conduct investigations. While persuading
the Government recently, some Members asked whether the IPCC could conduct
investigations with the approval by the Governor. However, the Government
rejected the idea. The matter is very simple. On the one hand, the
Government says that cases can be passed to the Governor for adjudication. On
the other hand, the law stipulates that investigations should not be conducted by
the IPCC even with the permission of the Governor. That is to say, cases
passed to the CAPO should all along be investigated by it. Even if the results
are unsatisfactory, they should still be re-investigated by the CAPO. Even the
results passed to the care of the Governor are to be passed back to the CAPO for
re-investigation. Is it a fair system?
Please take a look at the figures of the past few years. If you have been
living in Hong Kong for twenty to thirty years, your experience will tell you not
to believe that the figures of the IPCC or the CAPO reflect the truth. Over the
past few years, how many cases of police assaults have gone through the IPCC
and the CAPO and then decisions have been made by the Legal Department to
charge the police officers concerned? I tell you that there are only three or four
cases. One of them is that an off-duty Customs officer saw the police assault a
drug addict and he thought that it was unreasonable for the police to abuse their
LEGISLATIVE COUNCIL — 23 June 1997
115
power. Later, a whole team of the Police Tactical Unit arrived at the scene and
beat the man fiercely. The two disciplinary forces could not settle the matter.
If the one being assaulted was an ordinary member of the public, the matter
might have been settled secretly in lots of ways. As a Customs officer was
involved, how could the matter be settled? Would it mean that the two
disciplinary forces could not co-operate in future? At last, the matter was
handled through official channels. The second case is about a detective of the
Organized and Serious Crimes Group (OSCG) who acted as an undercover agent
at a site in Chai Wan. As the detective was so lifelike when the Regional Crime
Unit took actions against the triad society in the Eastern District, he was beaten
fiercely. The matter could not be settled under table. As far as I know, the
Police Headquarters held a meeting on this case and the Commander of the
Eastern District challenged whether the OSCG officers had never assaulted
others before. As the detective was so lifelike, they mistook him as a bad guy
and beat him fiercely. His successful acting made them think that he was really
a bad guy.
Apart from these, I would like the Government to tell me whether there are
other cases of successful prosecution. Does it mean that there are only these
few cases of assault by the police in our society over the past five years? The
anger of the public will only keep on accumulating. Neither can their anger be
vented nor a fair answer be found.
For several times the United Nations Commission on Human Rights has
cited the International Convenant on Civil and Political Rights to criticize the
existing system in Hong Kong for failing to keep in line with the International
Convenant on Human Rights. They urge the Government to appoint non-police
officers to take part in investigations and not simply to monitor the situation.
The Government neither allows the CAPO to be independent nor the
CAPO to be headed by a police officer. The IPCC is not allowed to conduct
investigations on reports of the CAPO with which it is not satisfied. Even some
procedural reforms concerning the CAPO and the IPCC are not allowed.
For example, a member of the CAPO disclosing information to the person
being complained should at least be taken as a criminal offence. If a member of
the IPCC, including the deputy chairmen sitting here today, disperse the
information, he has committed a criminal offence. Why it is not a criminal
offence if a complaints officer discloses information to other people? Why
116
LEGISLATIVE COUNCIL — 23 June 1997
should such act be taken as a contravention with the internal regulations only and
the case is subjected to an internal investigation only?
The police are, after all, very important. However, their importance
should not lead to the Government's fear for them. The police force must not
become an independent domain and we should not allow them to have
completely uncontrolled power. The rule of law does not operate like this. If
it reaches a situation that even the Government of civilian officers dare not move
against the police, how can the Government run effectively?
During these years, I have tried to break through this black hole through
different channels. When amending the Commissioner for Administrative
Complaints Ordinance, I proposed that non-criminal cases should be passed to
the Commissioner for Administrative Complaints for investigation. However,
the Government proposed to withdraw it and it was approved narrowly by one
vote. At that time, a few Members who had shown their support for me told me
that as the discussion at that time was about investigating non-criminal cases,
they would only support me when it came to the bills concerning the IPCC so as
to force the Government to effect a substantial reform.
I hope those Members can see clearly in this context that the Bill can only
do very little for the public under the present establishment of the IPCC.
Everyone will remember the stipulation of the Basic Law that after 1997,
no private bills can be proposed without the consent of the Chief Executive of
the Special Administrative Region (the Chief Executive). I believe that if the
amendments to the Bill moved by me are not carried, the IPCC will never have
the investigation authority. The Chief Executive will have to attach much
importance to the police. A system without creditability will not last forever.
At a certain stage, thousands of people or victims, or those annoyed, including
me, will hold demonstrations, protests and petitions at the entrance of the Police
Headquarters to urge the police to look into the problems of black sheep in the
force. To conclude, the police force is quite good. Over the past 15 years,
public order has been at its ebb. A lot of people think that crime will be a big
problem upon the arrival of 1997. However, the performance of the police force
is still very good at present. Why should we not eliminate these black sheep to
improve our system and vent the anger of the public?
I hope that Members will consider this point seriously. I know that the
Government has tried to persuade Members behind the scene, saying that if they
LEGISLATIVE COUNCIL — 23 June 1997
117
support the parts proposed by me concerning re-investigation, the Government
will withdraw the Bill. To withdraw a bill is not simple as it affects the
credibility of the Government. The sittings in these few days are the last ones in
this Legislative session. The Government has deferred this Bill for several
years. The Human Rights Commission has also criticized that the Bill is not in
line with the International Convenant on Human Rights.
I hope the
Government will not go its own way stubbornly.
In fact, the last choice of the Government is that if the Government
considers it unacceptable to pass the amendments concerning the investigation
power, it can pass it to the Members to move the third reading and there is no
need to withdraw the Bill. I hope the Government will consider this choice and
allow Members to express opinions on the Bill so as to improve the life of the
people.
THE PRESIDENT'S DEPUTY, DR LEONG CHE-HUNG, took the Chair.
MR ERIC LI (in Cantonese): Mr Deputy, I would like to declare that I am the
incumbent vice-chairman of the Independent Police Complaints Council (IPCC)
but I do not have any personal interests in that position and I will not speak on
behalf of the IPCC. I will only speak for myself.
This Bill is rather complicated. I still recall that when the Bills
Committee (Committee) first engaged in the scrutiny of the Bill, there was a
rather big difference between the opinions of this Council and those of the
Administration's. Over the entire scrutiny process, we have had great respect
for the opinions of all members, especially the different views of the Honourable
James TO and the Security Branch. With the sincerity of everyone, we have
been able to attain an understanding among all Committee members, gradually
narrowing down the differences, and the initial proposal put forward by the
Government has also been greatly improved. And now, the Committee and the
Government have reached concensus that many of the suggestions will make the
IPCC more independent and in a better position to act on its own. No matter
what the voting result will be today, I believe that Mr James TO's efforts have
not been wasted as the Bill has been greatly improved.
118
LEGISLATIVE COUNCIL — 23 June 1997
Nevertheless, perhaps it is due to the rather limited time or perhaps it is the
Government's attitude, there remain several controversial amendments
concerning which the various sides have yet to reach a consensus. Particularly
regarding the amendments to clauses 7(1)(e), 7(1)(f) and 8(1)(ba) that Mr James
TO is about to move, I have directly or indirectly come to understand the rather
strong reactions of the police officers. They think that these amendments will
turn the IPCC from a monitoring body to one which initiates operations.
I will look at Mr James TO's amendments from two perspectives. First, I
will consider whether the amendments are reasonable. I firmly believe that in
moving his amendments, Mr James TO has sufficient grounds to back up his
arguments and I also hope the Government would understand that in people's
minds, under the present system, there are problems with the Complaints Against
Police Office (CAPO) and they do have doubts about the system. From the
standpoint of the people, Mr James TO's amendments are absolutely reasonable
and I also believe that Mr James TO does move these amendments out of good
intentions, hoping to solve these problems for the Government.
However, as a member of the IPCC, I also need to consider whether this
system reform will work for the frontline police officers and whether the
practical effect will actually turn out to be what we have expected; in Mr TO's
own words, whether it will convince all police officers and have the best results.
Should the Legislative Council resolve the credibility problem in place of
the Government or should the Government initiate it? My view in this respect
is somewhat different from Mr TO's. I have considered the points raised by the
chairman and members of the IPCC during the discussion and I very much agree
with all members of the IPCC that there is already a very good common ground
now and the IPCC has already made a big stride forward in the direction of
gaining independence.
I also believe that from the perspective of operation, if there is a good
consensus to allow the police to adapt to the new environment first and then go
on to make further amendments, the effect may be better. In particular, given
the highly limited power and resources of the IPCC, we still have to depend on
the CAPO's co-operation in every aspect of our work. If we one-sidedly impose
our wishes on them and try to convince them, we may not achieve the best effects
in operation in the end.
LEGISLATIVE COUNCIL — 23 June 1997
119
If the police are like any of the civilian bodies or professional bodies such
as the Law Society, I believe that the Legislative Council will certainly respect
their wishes and consider their professional dignity within the scope of their
work, and will take into account their situation, especially before making a
significant structural reform. However, from what we see, the Legislative
Council seems to treat government departments in a stricter and harsher manner.
This practice may not be wrong and I also very much agree to Mr James TO's
view and thoughts.
No matter how important a disciplinary force the police is, its culture of
accountability to the public and manners in handling matters are far too
conservative and there is much room for positive improvement. I say it once
again that I wish Mr James TO will not be frustrated. No matter how the voting
result will turn out today, I still hope that he will continue with his efforts.
After saying so much, I wish I have been able to make it clear that
although I may not vote in the same way as Mr James TO on every amendment, I
still firmly believe that with a base of consensus, whether this Bill will be passed
or not, it will bring the IPCC a big stride forward. Nevertheless, we still need to
continue to work hard.
Thank you, Mr Deputy.
THE PRESIDENT resumed the Chair.
MRS SELINA CHOW: On behalf of the Liberal Party, I rise to support the
Second Reading of the Independent Police Complaints Council Bill.
I have made it clear on more than one occasion that the Liberal Party
believes that the role of the Independent Police Complaints Council (IPCC)
should be that of a monitor and not an investigator. It is quite evident that in
this respect we are at one with the Administration and differ fundamentally and
philosophically from the basic premise of the Democratic Party which has
maintained that the Council should have a part to play as an overseeing
investigator to Complaints Against Police Office (CAPO). We do not agree this
is the right way forward. To vest an investigative power in the Council will
120
LEGISLATIVE COUNCIL — 23 June 1997
mean the establishment of yet another highly professional team of investigators
which will duplicate the functions of CAPO.
The more cost-effective and efficient way would be to remove the
investigative powers presently undertaken by CAPO to a body outside the police
force, which was the subject of another debate during which all arguments have
more or less been exhausted so I would not repeat them as they can easily be
found in the Hansard. It suffices to say that the Administration has decided not
to adopt that course of action and the Liberal Party agrees with that decision.
Financial considerations apart, we do not share the view that effective
monitoring can only be achieved by investigation. This Council performs its
monitoring role quite satisfactorily without any investigative powers or
functions. So long as the body entrusted with the duty to monitor is given the
right to resources, information and is allowed to deliberate and report
independently, it could perform its functions quite effectively. We are,
therefore generally speaking not in favour of the Honourable James TO's
amendments. They have the effect of providing for the Council to become a
second investigative body through the back door, and we oppose this direction.
We would, however, like to see the Council given the flexibility to engage
its own staff and not be restricted to government secondments. I cannot
understand why the Administration is so reluctant to relax on this point as this
will certainly enhance the independence of the Council both in fact and in
perception. The Administration's move to allow the Secretary and the Legal
Advisor to be recruited outside of the Government is a step in the right direction,
but I would have preferred an enabling provision leaving it to the Council to
decide. They may borrow from the experience of the Commission for
Administrative Complaints which currently has a mixture of seconded as well as
recruited staff. I do not accept the Administration's argument that the lack of
career prospects will present difficulties to recruitment as the terms, which would
no doubt be comparable to government terms, would be quite competitive and
the work could also be quite interesting and challenging.
Unfortunately, the amendment to be moved by the Honourable WONG
Wai-yin on behalf of the Bills Committee gives total carte blanche to the Council
with no requirement on accountability. In addition, a resolution of this Council
LEGISLATIVE COUNCIL — 23 June 1997
121
is required to trigger the operation of this power to engage its own staff, which is
contrary to normal practice.
We will, however, support Mr WONG's amendment on behalf of the Bills
Committee to render statements by a witness to the IPCC inadmissible as
evidence against him in a criminal proceeding as we believe this will enable
witnesses to speak more freely and fearlessly.
In the course of scrutinizing the Bill, our attention was drawn to the fact
that tipping off is not a criminal offence, although the Police General Order is
being amended to make it a disciplinary offence. I am of the view that such
actions are highly damaging to the integrity of the entire police complaints
system and should be subjected to much more serious punishment than is
currently the case. I call on the Force and the Administration to review this
important matter and to take all steps to prevent tipping off as can be reasonably
imposed so as to strengthen public confidence in the system. I also urge the
Administration to consider the possibility of introducing legislative amendments
to render the action a criminal offence.
Mr President, I support the motion.
MR MARTIN LEE: Mr President, it is important that we ask ourselves what
message do we want to send to the community about our police force. Are we
to tell them that the great, great majority of our police officers are working within
the law which they carry out, or are we going to tell them that in fact the majority
are the black sheep, so that there is actually a lot of truth in the complaints about
police brutality which are raised in the courts?
Mr President, if I were a member of the police force and if I know that I
am innocent, then clearly I want any unjustified complaint against me to be
investigated by as independent a body as possibly can, so that when I am
exonerated from blame, I can tell the whole world, "look, this complaint was
entirely baseless, and now I have been exonerated by an independent body."
Surely that is the correct way of dealing with it, unless I am totally wrong, and
unless the great majority of the complaints are legitimate. Then it is a different
122
LEGISLATIVE COUNCIL — 23 June 1997
story. But is that what the Administration is telling us? I hope not. And if
that is not the truth, that means if the black sheep are indeed a small number of
policemen and women, then what is there for them to fear?
So, Mr President, what message do we want the Hong Kong people to
have about our police force as we brave our future which is already full of so
many uncertainties? Are we to tell them that we can work with the police force
because we trust them, or are we to tell the people, well, really there are a lot of
black sheep there and that is why the complaints of the public cannot be fairly
dealt with? So, that is a point I want Members to take into consideration.
DR LEONG CHE-HUNG: Mr President, I rise to speak in support of the Bill
and some of the amendments to be moved at a later stage. Again, like my
Honourable friend, Mr Eric LI, I would like to declare my interests as one of the
vice-chairmen of the current Indpendent Police Complaints Council (IPCC)
which this Bill aims to give it a statutory effect. Likely more so, what I should
be expressing is not the views of the IPCC in total but rather most of them are my
personal views.
Mr President, few would dispute in this community that we have one of the
finest police forces in the world, both in relation to its effectiveness and honesty.
Yet, like all organizations, especially large ones, and as my Honourable friend,
Mr Martin LEE said, there could be black sheep.
To assure that any possible abuse of power will be looked into, a body
known as Complaints Against Police Office (CAPO) is established within the
police force, and to oversee this body, the IPCC is appointed by the Governor as
an independent advisory body to monitor and review the investigations of public
complaints after the investigation work carried out by CAPO. In short, Mr
President, any public complaint of the police will be investigated by a police
team, CAPO, and its findings further reviewed and vetted by a non-police body,
the IPCC.
Mr President, whilst as a vice-chairman of the IPCC I can boast that we
have a very efficient body and some extremely dedicated members and that the
current modus operandi has been most effective in monitoring and even
unearthing areas missed by CAPO, the fact that a public complaint against the
police is investigated by a team constituted entirely by police force, responsible
to the Commissioner for Police and the overseeing body, IPCC, is but just an
LEGISLATIVE COUNCIL — 23 June 1997
123
advisory body with no teeth, raises concern, and justifiably so amongst the public
and the legislators.
It was in this area, Mr President, that heated and meaningful debates
developed in the Bills Committee and where the Administration and some
Members are unable to compromise. Mr President, basically there are two areas
on which the Bills Committee has laboured on most. Firstly, should the
structure of CAPO be changed to include lay persons, perhaps having a lay
chairman? Whilst many excellent ideas have been forthcoming, the matter
concerning CAPO, obviously, came from outside the remit of this Bill and was
not taken into consideration, but recommendations were made for the
Government to have a second look and few would disagree with this
recommendation.
Secondly, should the IPCC be given an independent investigative power?
Mr President, much has been said one way or the other by the Chairman of the
Bills Committee, Mr WONG and other Honourable Members, and I do not want
to be redundant. Suffice it to say that I would like to express some of my
personal feelings. Mr President, it has often been said that only the police force
have the know-how to conduct investigations in line with the nature of
complaints brought to the attention of CAPO, and that any other body given the
investigative right will erode the morale of the police force. Mr President, I
totally disagree.
There is nothing to stop IPCC in engaging former senior police personnel
to carry out the investigation if so permitted, tapping their know-how, and their
expertise. Let me state also, in no uncertain terms, that giving their power to an
outside team to investigate occasionally should never be seen as eroding into and
jeopardizing the morale of the police force. Instead the police force should
welcome the idea and let others confirm that justice is being done and seen to be
done.
Let us look at it from another angle and in the subsequent Committee stage
amendments Members will realize that the Administration has actually agreed the
IPCC will be able to interview new witnesses should the IPCC feel that these
witnesses can contribute to the decisions of their deliberation. This to me is
already the first step and the beginning of an independent investigation. The
only difference is that the word "investigation" would not appear in the function
nor the power of the IPCC.
124
LEGISLATIVE COUNCIL — 23 June 1997
Mr President, yet we are in special times not ordinary times, when the high
morale of the police force must be given the full consideration. I have therefore
taken the advice of the Administration and will vote in the line decided by the
IPCC, which is, the Bill must be passed as soon as possible. Yet, the
suggestions of the Honourable James TO is no doubt a move in a positive
direction. I would strongly urge the Administration to introduce proper
education if needed to the police force to ensure that they could in the course of
time accept a different culture and I personally would like to see a push for a
more open CAPO and a more powerful and independent IPCC in the course of
my term in this legislature and in the IPCC.
With those remarks, Mr President, I support the Second Reading of the
Bill.
MR IP KWOK-HIM (in Cantonese): Mr President, an efficient and well-run
Police Force contributes much to maintaining law and order in Hong Kong so
that residents can live in peace and security. However, as the saying goes,
"there are rotten branches in big trees and beggars in big tribes". During the
past few years, the Complaints Against Police Office (CAPO) received quite a
number of complaints against the Police, including abuse of power by police
officers and discourtesy to the public. Since its establishment in 1986, the
Independent Police Complaints Council (IPCC) has exercised the function of
monitoring and reviewing investigations by the CAPO. This Bill makes the
IPCC a statutory body so that it can monitor and review investigations into
complaints against the Police more effectively, as well as conduct independent
reviews on the procedures of the CAPO. The Democratic Alliance for the
Betterment of Hong Kong (DAB) very much agrees with some of the proposals
in the Bill, such as improving the procedures for interviewing witnesses,
increasing transparency and enhancing the publicity of the IPCC, as well as the
its spirit and directions. We think that harmonious development of the society
depends on a divison of labour so that each can give play to his strength.
Since its establishment, the IPCC has mainly played a monitoring and
reviewing role. Therefore, the DAB has strong reservations about Mr James
TO's amendment, especially about his proposal to give the IPCC actual
investigative power. The proposal that the IPCC should have investigative
power will undoubtedly bring fundamental changes to the present police
LEGISLATIVE COUNCIL — 23 June 1997
125
complaints system. While approving that the public should have highly
transparent and open channels for complaining against the police, the DAB
considers that as a civilian body which independently monitors and reviews
complaints dealt with by the CAPO, the IPCC should not be empowered to
investigate the relevant complaints.
Non-police personnel may lack the professional expertise required, since
the investigations often involve complaints about criminal offences or the police
disciplinary and complaints procedures. Moreover, the Police Force itself has
the statutory obligation to investigate criminal cases, including criminal cases
which involve police officers. If the IPCC is allowed to investigate, it may
double the effort of the investigations by the police, especially since some very
serious complaints, such as assault or fabrication of evidence, are often of a
criminal nature. Besides, the present police complaints mechanism in Hong
Kong operates quite well. Hong Kong's police complaints system is by no
means out of step with that of the police jurisdictions of other regions.
The DAB thinks that there is no need to make fundamental changes to the
powers of the IPCC. Besides, unneccessary restrictions or reductions of the
powers of the Police might not be beneficial to the maintenance of law and order
in Hong Kong. Furthermore, we do not think it is appropriate to have
representatives from the Independent Commission Against Corruption (ICAC) in
the IPCC, as proposed by Mr TO. The ICAC also has no wish to extend its
powers to investigations about police officers who are not involved in corruption
cases.
On these premises, the DAB does not think there should be changes in this
area. These are my remarks.
PRESIDENT (in Cantonese): Mr James TO, is there a point of order?
MR JAMES TO (in Cantonese): Mr President, my speech has been
misunderstood, or my amendment has been misunderstood.
PRESIDENT (in Cantonese): Sorry, I could not hear you clearly.
126
LEGISLATIVE COUNCIL — 23 June 1997
MR JAMES TO (in Cantonese): Mr IP Kwok-him has misunderstood my
amendment. I do not demand in my amendment that the Independent
Commission Against Corruption ......
PRESIDENT (in Cantonese): You are allowed to interrupt only to clarify the
part of your speech that has been misunderstood. As for the amendment, you
should speak on it during the time for reponses to the amendment.
MRS ELIZABETH WONG: Mr President, I rise to support the resumption of
the Second Reading debate for the Independent Police Complaints Council
(IPCC) Bill. I think that this is a very good step forward, and at a personal level
it has indirectly fulfilled my election commitment in 1995. I was calling very
urgently for the Government to have statutory provisions to govern the operation
of the IPCC. I feel that this is a very good way to proceed forward and to
provide the statutory legal basis for the IPCC to discharge its principal function
of monitoring and reviewing police investigation into complaints against police
officers.
I support many of the proposals made by the Honourable James TO but
there are two points in respect of which I have reservation at this juncture and I
will explain why. First of all, for IPCC to conduct investigations independently
of the police might put a very difficult situation operationally both on the police
and also on the IPCC. As a civilian oversight body which monitors and reviews
the CAPO's investigations it would in fact involve tremendous manpower, almost
like a duplication of the police force, for the IPCC to investigate complaints if
such power were to be given to the IPCC and might lead to confusion of roles
here and certainly would have operational difficulties. I mean, these are the
practical issues.
First of all, I feel that many people look to the Hong Kong Police Force as
a force of integrity. For the IPCC to determine findings of investigation would
necessitate the IPCC to do the investigation itself and, since I have not supported
the IPCC to conduct independent investigation, I find it very difficult to
determine the IPCC for it to investigate the findings of investigations.
Furthermore, I think we have to believe in somebody in Hong Kong. I
LEGISLATIVE COUNCIL — 23 June 1997
127
believe in the Police Force. I believe in the Commissioner. I think that Hong
Kong generally has a very viable police force and has a Commissioner who
knows what his job is about. So, with a lot of respect for the credibility and the
viability of the disciplined force, I feel that the current state should be improved
and monitored. And I trust that my confidence will not be misplaced because
this confidence and this trust will have to be verified. The eyes of Hong Kong,
like the eyes of this Council, are watching the future behaviour of the Police
Force and the Commissioner, which is its authority, which has the authority to
decide on a lot of the things which happen in the Force.
With this exception, I support entirely the other proposals made by
Mr James TO.
DR LAW CHEUNG-KWOK (in Cantonese): Mr President, the Independent
Police Complaints Commission (IPCC) is the highest body to protect the people's
interests and to monitor the police's abuse of power. This Bill has already
provided a great breakthrough in respect of improvements on the checks and
balance of the system, including expanding the observer system, specifying the
inclusion of Legislative Councillors, appointing the secretary by the IPCC itself
as well as ensuring the sources of financial funding. The complainants may
raise their complaints again directly to members of the IPCC, and after receiving
the interim report, IPCC members may also interview the witnesses. Yet, are
these arrangements adequate?
The Honourable James TO has proposed in his amendments that in
situations where the IPCC is not satisfied with the findings of an investigation by
the Complaints Against Police Office (CAPO), the IPCC may conduct
independent investigations after going through strict procedures.
The
Association for Democracy and People's Livelihood (ADPL) does support this
proposal. In fact, there is still a big difference between this proposal and the
proposal put forward by the ADPL in 1993 for a totally independent CAPO.
Although the Government stresses that Mr James TO's proposal will deal a blow
to the morale of the police, we believe that this is purely an assumption which
may also be exaggerated. Even if such a situation really appears, I believe that
it will only last a very short while.
We consider Mr TO's amendments very important for protecting public
interests and even for enhancing the credibility of the police. Thank you, Mr
President.
128
LEGISLATIVE COUNCIL — 23 June 1997
MISS EMILY LAU (in Cantonese): President, I rise to support the Second
Reading of the Independent Police Complaints Council Bill. The main purpose
of this Bill is to make the Independent Police Complaints Council (IPCC) a
statutory body, as well as to enhance its functions of monitoring and reviewing
the work of the Complaints Against Police Office (CAPO). Most important of
all, it enhances the credibility of the IPCC so that the public will have confidence
in the police complaints system.
Mr President, I have been a Legislative Councillor for six years. Like
many Members, I have received many complaints addressed to Councillors in my
district. I have said several times that the biggest problem is housing. More
than one-third of the complaints raised by the residents are about housing.
Another issue that bothers me most is complaints against the police.
Many such cases have been presented to me. However, almost every
time, I have to tell the complainant that I will direct his letter to the
Commissioner of Police or the Secretary for Security, or even to the Governor.
But in my opinion, with the police investigating the police officers, very often the
result is rather dubious and sometimes the cases will be delayed for a long time.
The Legislative Council has discussed this several times over these few
years. Since many complaints were eventually ignored, the public have no
confidence in this system. Therefore, if the Government wants to do something
to increase people's confidence, it is right to change the police complaints
system. Unfortunately, I believe that the Bill we have to pass today will be
unable to achieve this.
Mr President, why did Dr LEUNG Che-hung keep reminding us in the
Bills Committee that we were not discussing the CAPO and we should leave the
CAPO alone and concentrate on the IPCC? We were aware of that. But it was
all because the Government refused to change the CAPO that we took it out on
the IPCC.
Mr President, other Members and you, I believe, understand that we
actually want to deal with the CAPO. But the Government disagreed by saying
that with a little effort on this, confidence could be increased. I have not been
convinced by the Government. Of course, we feel that it is a good thing to
LEGISLATIVE COUNCIL — 23 June 1997
129
propose this Bill today. But we will not fool ourselves, or even the public, with
the idea that the police complaints system will surely command the confidence of
the public in future since we are doing so much now.
While we are not to dismiss the work of the IPCC, we do not think that the
IPCC can really provide the right remedy to the problem. Therefore, just now
Mr James TO also pointed out that even the IPCC had proposed several times to
have non-police officers lead the CAPO. This will by no means satisfy the
demand of the majority of Members and the public. We hope to have an
independent organization so that cases involving police officers will not be
investigated by the police. However, the IPCC goes back several steps and only
asks for non-police officers to head this office.
I feel that the Government has really gone too far. Is it true that the
police are so powerful, as some Members suggested, that not even the Secretaries
and other persons can convince them? I believe that this does no good to the
credibility of the police at all.
We have mentioned several times that among the many cases investigated
by the Commissioner for Administrative Complaints, some were successful while
others were rejected. Of course, some members of the public also complain
against the Commissioner. But basically, people feel that he is more credible,
he makes independent investigations and explains the process of investigation
very clearly. In the past, the CAPO rarely explained to the public and only
pointed out that a certain complaint had been rejected. This is really
infuriating! Therefore, as many Members have said, this system is very
problematic.
Very soon, we will have to step down. If we pass this "wishy-washy" Bill
today, I feel that we might not be able to satisfy the public. I have no idea
whether the whole system will be more transparent and have greater
accountability and whether it will be better than now. However, I repeat that it
is a good thing to have this Bill, and I will support the amendments to be moved
by Mr James TO at the Committee stage later on.
Also, Mr TO has mentioned going back tens of thousands of steps. The
Government will not let non-police officers head the office, and will not allow
any full-time monitors or observers. Mr President, I do not wish to offend the
members of the IPCC. Several of them are here and I know they are all very
130
LEGISLATIVE COUNCIL — 23 June 1997
busy. Actually, the Government has suggested that we attend the relevant
meetings as observers. Dr LAW Cheung-Kwok did attend a relevant meeting
for three hours and said he had a hard time. Since all those meetings clashed
with the sittings of the Legislative Council, I did not have time to attend any of
them. Did Mr Eric LI, Mr Bruce LIU and Dr LEUNG Che-hung have time to
observe carefully how the investigations were conducted? I think this is a
sham. They might occasionally have time to attend. Therefore, we say we
need to employ some full-time staff to assist in the monitoring and some
non-police officers to monitor the investigations and to report to the IPCC.
Still, this is opposed by some people. I do not know whether the Honourable
WONG Wai-yin will object to this on behalf of the Committee later on, but I fear
that the odds are against us. However, at least we have taken a small step.
Mr President, I would like to talk about the Legislative Council
Secretariat. We are all members of the Legislative Council Commission. Over
the past few years, we fought very hard for an independent secretariat. We all
know that the Secretariat can be very influential. I thought that the Secretary
General and Legal Advisor of the Secretariat could be recruited from outside the
Legislative Council, although it was not certain whether suitable persons could
be recuited. I felt that the Secretariat should be independent and the
Government should give the Secretariat the resources so that it could attract some
high-calibre people to join it. I feel that these are the most basic conditions. If
these conditions are not fulfilled, the Government cannot expect the public to
believe that there is a more independent mechanism to assist the CAPO.
Lastly, Mr President, I welcome the Government's acceptance of the
proposal to give remuneration or allowances to members of the IPCC. I feel
this is very important. The Government often resorted to "taking advantage of
people" and was unwilling to spend money on getting assistance. I think the
Government has always asked assistance from very well-off people, who do not
mind money very much. However, now we want an open system. We hope
that we will have people from different sectors not only in the IPCC, but also in
other committees to give support to the Government.
All those people who are appointed by the Government have a very heavy
workload. Even the Government admits that the workload can be very heavy.
LEGISLATIVE COUNCIL — 23 June 1997
131
If the work load is heavy, the people should be remunerated. I am glad that the
Government will do this and I hope that it will give reasonable remuneration to
the people concerned.
If members of the IPCC are given reasonable remuneration, the
Government has all the more reason to expect them to do their job well, instead
of failing to attend meetings all the time and failing to follow up cases. I hope
the IPCC can regularly release reports and tell the public how hard they are
working to monitor the operation of the CAPO.
With these remarks, I support the Second Reading of this Bill.
MR ALBERT HO (in Cantonese): Mr President, the Democratic Party supports
the Independent Police Complaints Council Bill not because we consider that it is
a miraculous cure or the best way to solve problems with handling police
complaints. In fact, it is because a lot of Members have urged for several times
that the Complaints Against Police Office (CAPO) should be fully independent
but their request has been rejected by the Government. Under the present
situation, as the Government has raised this Bill, we think that some progress has
been made as compared to the existing arrangement and so, we have no
alternative but to accept it. However, the crux of the issue is that Mr James TO
has proposed to allow the Independent Police Complaints Council (IPCC) to
have an independent investigation power. We hope to respond to the questions
raised by some Honourable colleagues to see whether it is a redundancy and a
waste of resources as the CAPO has already conducted investigations but the
IPCC has to re-investigate them. Will it be a waste of time and money?
Mr President, I believe that if our colleagues trust the judgment and
wisdom of the members of the IPCC, who will not act rashly, they should believe
that the IPCC will not re-investigate every case unnecessarily. We think that
the IPCC should be empowered to make judgment themselves. When the IPCC
notices many unresolved doubts in an important and controversial case of wide
public concern, and a direct investigation is inevitable for the answer, we all
hope that the IPCC can really intervene to get a clear picture.
If the approach of the police or the CAPO is fully correct, the IPCC will
132
LEGISLATIVE COUNCIL — 23 June 1997
prove that they are blameless. If they are at fault and remedies should be made,
the IPCC can uphold justice for the complainants. What is wrong in this?
Therefore, we should trust the colleagues of the IPCC and believe that they have
good judgment and will not re-investigate every case.
I consider that it is absolutely ridiculous to allege that the establishment of
the IPCC is a redundancy or a waste of resources. Such worries are totally
unnecessary. Moreover, there are queries about the ability of the IPCC
members to handle the cases concerned and undertake frontline investigations, as
they are not police officers. Mr President, there are in fact several solutions.
Firstly, consultants can be included in the IPCC. Secondly, experienced
personnel can be invited to join the IPCC. Lastly, I do not believe that only
investigators with many years of service in the police force can conduct
investigations fairly and reasonably.
If only practitioners were to investigate cases in the fields concerned, a lot
could be queried about the Judge who investigated the fire at Garley Building.
Did he understand the situation? Was the Judge at a loss about the opinions
expressed by so many scientists and engineers? Therefore, I believe that it will
do as long as the IPCC members have some assistance and exercise their own
judgment. Many members of the IPCC come from different professions, and
the cases to be investigated may involved more than the code of practice of the
police. For example, medical evidence may also be involved. Are police
officers acknowledgeable in this field? Is it appropriate for them to assess
medical evidence? Therefore, the IPCC should have professionals from
different fields for mutual support and assistance. With other people who are
familiar with the code of practice of the disciplinary forces to supplement the
efforts of the IPCC members, we believe that no technical problems will arise in
the investigations.
Mr President, morale of the police is often the Government's concern. If
another body is appointed to investigate the police force, does it show that we do
not trust the police force? Why can't the CAPO conduct investigations itself?
In fact, there is a similar question. What is the purpose for setting up the
Independent Commission Against Corruption (ICAC)? Isn't it jeopardizing the
morale? Why don't we disband the ICAC? It is because in the early 1970s, as
the problem of corruption was not handled properly, a corrupt police force was
formed. Hence it was necessary to set up the ICAC and it won the support of
our society. In the opinion of the public, the existing problem about police
LEGISLATIVE COUNCIL — 23 June 1997
133
complaints is not handled properly. Thus, we consider that we should enhance
the confidence of the public. Moreover, we have to give fair judgment to the
persons involved, who need not be the complainant; maybe they are the police
officer being complained. Therefore, I believe that as long as we have a clear
goal, the best thing is to make the CAPO independent. Even if this is
impossible, we do not think that it will greatly affect the morale of the police if
the IPCC is empowered to conduct independent investigations.
Mr President, I was surprised by the two points made by Mr IP Kwok-him
of the DAB, who said that the existing system was operating well. I hope that
Mr IP can take a look at these figures. Only a few out of several thousand cases
have been justified. Does it mean that the complainants in the remaining 98%
or 99.8% have all slandered the police? Or whether Mr IP considers that the
system is operating well exactly because so few cases have been justified? As a
further increase in the figure will show that the system is not operating well, he
does not want it to increase. Shall we adopt this approach to ensure that only
eight or ten out of a thousand cases are justified, so as to prove that the system is
operating well, to show that the police force is well-disciplined and there is no
abuse of power or illegal punishment? I believe and also hope that this is not
Mr IP's intention. I think an organization with high transparency and
independence to conduct investigations is needed to show that this system is
really operating well. If it cannot conduct frontline investigations, it should at
least be empowered to monitor the investigations, and take part in them when
necessary. Only in this way can we prove that the system is really operating
well. We should not be satisfied with the current figures.
Mr IP has also mentioned that the power of the police should not be
restricted or weakened rashly. This is where our opinion differs from that of the
DAB. Frankly speaking, we do not worry about the power of the police being
too weak or the authority of the Government being too little. The DAB seems
to think that the more the administrative power the better because it wants an
executive-led government. It does not matter even if the power of the police is
greater. We think that the question should not be viewed this way.
Being Members elected by the public, we strongly believe that human
rights should be sufficiently safeguarded and the power of the police should be
reasonably monitored. In fact, the law has granted the police very great
investigation power. As the Police Force is a well-trained disciplinary team,
134
LEGISLATIVE COUNCIL — 23 June 1997
police officers can cope easily with investigations and giving evidence in court.
When the general public have contacts or conflicts with the police, they are often
at a disadvantage and their rights are not sufficiently protected. These are what
we concern about. We believe that Members elected by the public should all
look at the issue from this perspective.
Mr President, these are my remarks. I hope the Honourable colleagues
can support Mr James TO's amendment. Thank you.
MR LEUNG YIU-CHUNG (in Cantonese): Mr President, in the debate today,
the issue of jeopardizing the morale of the police has become the focus of the
discussion. For many years, this issue has posed great problems to the
Complaints Against Police Force (CAPO) and even the Independent Police
Complaints Council (IPCC), in both their composition and operation. The
question is, when we talk about jeopardizing the morale of the police, have we
explained the aspects in which the morale of the police is affected, and why the
moral of the police is jeopardized?
Actually, in many cases in the past, what was most affected was the morale
of the Members, instead of the police's. Miss Emily LAU has cited an example.
She said that a great number of cases she dealt with were complaints about
assaults by police officers. Afterwards, Miss LAU could only help those people
write letters of complaint. However, even she had no idea what the letters of
complaint could achieve. Generally speaking, she did not expect to achieve any
results. These matters all affect Members' morale.
This does not limit to Miss LAU. Many elected Members here, I guess,
have handled similar cases. I have handled such cases myself. I remember
one case which happened in Tsing Yi. A 13-year-old boy, who was very short
and small, was badly beaten up by some police officers. The boy, however, was
later accused of assaulting police officers and resisting arrest. Later, I made a
big scandal out of it by starting a signature drive and organizing a demonstration.
Finally, the police put an end to the matter by instituting prosecution without
evidence.
Also, in 1989, members of the April Fifth Movement were beaten up by
the police on the night of 29 September. Many reporters were present and
LEGISLATIVE COUNCIL — 23 June 1997
135
photographs were taken. Even so, the complaints did not achieve any results.
These are the things that jeopardize our morale!
What jeopardizes public morale is that while we have ample evidence to
support our complaints, it is of little help. Instead, we often fail to achieve any
results.
We find it inconceivable to continue to encourage such morale of tyranny
and bullying. I believe that in a civilized society, what we long for is justice
and fairness, instead of coercing and bullying people with superior power. If
one has done nothing wrong, what is there to be afraid of? Let others
investigate as they please, just as Members might be subject to investigations all
the time. Our finances, work and conduct are subject to investigation at any
time. Even during elections, people would conduct investigations to see if we
have been bribed or done anything illegal.
Is our morale jeopardized by the fact that Members are subject to
investigation? No, our morale is not affected. Instead, we participate in
elections even if we lose every time. Why? Because we want to establish a
corruption-free system and make Hong Kong a just society.
If police officers really feel they are upright, why should they be afraid of
being investigated? I do not understand. Mr President, I hope to ask the
Government a question through you: why would a group of people feel that their
morale will be jeopardized if they are investigated, when they consider
themselves to be upright? I would really like to know why.
Of course, what we are discussing today is not the CAPO, but the IPCC.
However, as Miss LAU has said, we feel very helpless today. Since we cannot
discuss the CAPO, we can only discuss the IPCC. Actually, we have always
criticized the CAPO. As Mr Albert HO has said just now, there are on average
over 3 000 complaints from members of the public each year, but only less than
ten cases, or even eight cases have led to disciplinary action or prosecution after
enough evidence has been found. The discrepancy between over 3 000 cases
and eight or ten cases is too great. If we do not confront these figures, how can
we explain to the public?
Before I became a Legislative Councillor, I was once asked to produce my
identity card by a police officer when I was walking on the street one day. I
showed him my identity card, but he was really rude. As a result, I made a
136
LEGISLATIVE COUNCIL — 23 June 1997
complaint against that police officer. Later, an inspector interviewed me and
spent three hours taking my statement. I saw no problem in that and spent three
hours giving a statement. In the end, they said there was inadequate evidence.
However, the police officer was really very rude. Even though I made the
complaint based on the truth, it turned out that there was inadequate evidence.
Of course, I am not saying that all police officers are rude towards
members of the public. Actually, I was a teacher for many years and some of
my students have become police officers. Once, when we had dinner together, I
told them that some members of the public complained about being assaulted by
police officers. They told me that it was different and discipline was stricter
and that very few police officers would assault members of the public. I believe
this is true. Police officers now are really different from those before and their
quality is much better. This is a fact. I know that one cannot generalize and
say that all police officers are bad. Actually, I have to praise the great
improvement in the discipline of police officers. However, we cannot exclude
and prevent that there will be some "rotten branches." Therefore, we need a
sound mechanism. We hope that the CAPO and the IPCC will provide a sound
monitoring mechanism to prevent a good tree from being destroyed by pests.
Therefore, I hope that the Government can really take this matter seriously.
Although we are discussing the IPCC today, we hope to turn the direction a little
bit and focus on the CAPO, so that the CAPO can change too. If this does not
happen, the public concern will only increase, especially after 1997.
Mr President, these are my remarks.
MR BRUCE LIU (in Cantonese): Mr President, I will speak on behalf of the
Hong Kong Association for Democracy and People's Livelihood (ADPL). But
first, I have to declare interests that I am a member of the Independent Police
Complaints Council (IPCC). But today I am speaking on behalf of the ADPL.
I would like to add four points.
First, the reasons that we hold against vesting the investigative power in
the IPCC as suggested by Mr James TO are, mainly, first, a blow to the morale,
and second, confusion of roles. Mr LEUNG Yiu-chung has already talked
about the blow to the morale and I do not intend to repeat. But when I
discussed the Commissioner for Administrative Complaints Bill last time, I
LEGISLATIVE COUNCIL — 23 June 1997
137
already pointed out that "there are black sheep in every fold". As regards the
blow to the morale, if we have a well-conceived system, actually we would not
deal a blow to the morale but will boost it instead. For the black sheep, they are
exactly what we want to eliminate. This involves more than the issue of morale.
As long as there is a sound system, public trust in the police can be enhanced.
The second is confusion of roles. I think that the Security Branch has all
along pointed out that it is for the Complaints Against Police Office (CAPO) to
undertake the investigation work and the IPCC to review it after the CAPO
finishes the investigation, and when the IPCC is dissatisfied after reviewing the
report, it may demand a re-investigation by the CAPO. The Security Branch has
insisted that the investigation should be undertaken by the police while the IPCC
is to discharge its function of monitoring; and with such a division of labour,
there will not be confusion of roles.
The amendments put forward by Mr James TO this time will exactly
eliminate the confusion of roles because there are very strict procedures
preventing the confusion of roles. I would like to ask Members to read the
amendments carefully. It is stated in the amendments that the Commissioner
will have to submit the investigation report to the IPCC for discussion. As
whether the IPCC is satisfied with or accepts the results of the report, it will be
decided by the majority of IPCC members through voting or other means passed
at the IPCC meeting after reviewing the report. If the members are not satisfied
with the report, they will then consider exercising their investigative power.
This highlights the question of whether there is trust. The IPCC members
are appointed by the Government. The Government has commended these
members as cream of society, responsible, reasonable and having a social
conscience and indicated that these people are all able to monitor the entire
complaints system for the community. We must trust them. Over the entire
process of the meeting, if faults and deficiencies are found after the details of a
case have been studied carefully, the IPCC members will discuss the situation,
with possibly prior discussion with the police, and may request the police to
re-investigate. Only when the police do not want to re-investigate or maintain
that the case actually happened like that, will the IPCC members indicate their
dissatisfaction and decide to exercise their investigative power by resolution.
If the Government trusts the IPCC, it should be confident that its decisions
are reasonable and responsible and the issue of confusion of roles has been
138
LEGISLATIVE COUNCIL — 23 June 1997
resolved. When exercising this power, the IPCC seeks to discourage the black
sheep rather than jeopardizing the morale of the police.
The third point I would like to add is this: Suppose the item on the final
investigative power could not be passed, I think we still have to grant this
investigative power sooner or later because we have to "face the music after all".
When designing a monitoring mechanism for handling complaints against the
police, we have to face the core of the problem, which is that the public have no
confidence in the police investigating the police. Therefore, we wish to set up a
mechanism to involve more independent personnel in the process of
investigation, especially for cases with particularly unsatisfactory results.
Why should we do that? In fact, history has told us all about this. Let
us look at the history about the establishment of the Independent Commission
Against Corruption. Initially, corruption in the Police Force was investigated
by the police, but the public had no confidence in this because they felt that the
system was, by nature, not independent. To establish an independent system,
we must allow non-police officers to participate in the investigation and seek a
breakthrough in the system. Today, we are not discussing the independence of
the CAPO but our demand for an independent monitoring mechanism is very
clear.
Fourthly, the requests of the public cannot be resisted. Over the last 10
days or so, the Security Branch has been lobbying me and three other Members
of the ADPL with many reasons in a very friendly manner. I have considered
these reasons very carefully but the reply of the Security Branch has made me
realize that the public have a higher demand on the role I am playing than what
the Security Branch expects from my role. Over the years of contact with the
public, I have come to realize that an independent mechanism is needed to
monitor the police in case they may do something wrong. I think that the
existing monitoring mechanism is inadequate. Therefore, it is a very good
chance today for me to call for a body vested with the investigative power and I
believe that this body has to follow very strict procedures when exercising its
investigative power and this is an appropriate arrangement.
As such, regarding the efforts and friendly lobbying of the Security
Branch, I can only say that I am sorry and I will support Mr James TO's
amendments. Thank you, Mr President.
LEGISLATIVE COUNCIL — 23 June 1997
139
SECRETARY FOR SECURITY: Mr President, the Independent Police
Complaints Council Bill was introduced into this Council for its First and Second
Readings on 10 July 1996.
The Bill seeks to provide a statutory basis for the Independent Police
Complaints Council (IPCC) to discharge its functions of monitoring and
reviewing the investigation of complaints against the police.
I am grateful to the Honourable WONG Wai-yin, the Chairman of the Bills
Committee, and other Members of the Bills Committee for their thorough and
careful study of the Bill and their valuable suggestions. This process has helped
the Administration to fine-tune the Bill considerably, which we believe will
enhance the credibility and accountability of the IPCC.
Specifically, I would like to highlight the following major amendments
which I shall move at the Committee stage.
The first amendment relates to clause 2 of the Bill. We have noted
Members' concern and the definitions of "complaint" and "witness".
Accordingly, we propose to widen the definition of "complaint" to include the
conduct of any member of the Police Force which may be regarded as an abuse of
his position or identity as a member of the Police Force. We also propose to
amend the definition of "witness" to mean any person who in the opinion of the
IPCC may be able to provide information or other assistance to the IPCC.
The amendment to clause 4 of the Bill specifies that any person who is a
member of the Police Force should not be appointed by the Governor as an IPCC
Member. This is already the existing practice but we have agreed to make it
explicit at the suggestion of Members. The other amendment to clause 4 is
consequential to the enactment of the Commissioner for Administrative
Complaints Ordinance 1996 which changes the title of Commissioner for
Administrative Complaints to that of the Ombudsman.
The amendment to clause 6 empowers the IPCC to appoint its own
Secretary and Legal Adviser. The Bills Committee felt that the IPCC should be
empowered to appoint its own staff to enhance the independent image of the
IPCC. Both the IPCC Secretary and Legal Adviser play a pivotal role in
assisting the IPCC to discharge its functions and its duties. Their appointment
140
LEGISLATIVE COUNCIL — 23 June 1997
by the IPCC would therefore greatly enhance the independent image of the IPCC.
We do not however see any need to burden the IPCC with the administrative
duties of recruiting and managing other supporting staff in the Secretariat.
The amendment to clause 8 adds two statutory powers to the IPCC. One
is to empower the IPCC to require the Commissioner of Police to notify the
complainant of the findings and the results of investigation of his complaint.
The other is to empower the IPCC to require the Commissioner of Police to
submit to the IPCC a report on any action taken by the police in respect of the
IPCC's recommendation. These are in fact the existing practice of the police
and we have agreed to make them explicit.
The amendment to clause 9 relates to the procedures governing the
submission of investigation reports by the police for the IPCC's endorsement. It
expands the scope of what the IPCC may submit to the Governor. It also
provide that the IPCC may request the Commissioner of Police to submit an
interim report on the progress of the investigation of a complaint within six
months of the request. The IPCC may advise the Commissioner of Police in
relation to any matter referred to in the interim report. Some Members were
concerned that the investigation report mentioned in the proposed section 9(1)
might not include the findings of investigation. We wish to assure Members
that both in law and in practice the investigation report to be submitted by the
police under this section will include the findings of investigation.
The amendment to clause 10 mainly provides that the IPCC may interview
any witness after the police have submitted an interim report, unless the
Commissioner of Police is of the opinion that such interview would likely
prejudice the investigation of any crime or complaint.
The amendment to clause 13 enables the Governor to cause any special
report in whole or in part to be laid in front of the Legislative Council.
There were other aspects of the Bill which were of particular concern to
Members of the Bills Committee.
Some Members have suggested to empower the IPCC to appoint full time
salaried staff to observe the investigation of the Complaints Against Police
Office (CAPO). We have explained to Members the impracticability of
recruiting and retaining salaried staff with the right calibre to perform this task
LEGISLATIVE COUNCIL — 23 June 1997
141
due to inadequate job content and promotion prospect. We have however
undertaken to expand the existing IPCC Observer Scheme by appointing
non-IPCC members to become IPCC Observers, and to seek to provide both the
IPCC members and the Observers with suitable honorarium. We believe the
pool of observers should be sufficiently large so that it could adequately reflect
the views of different walks of life in the community on the findings of
complaints against the police.
Members have suggested that a provision should be added to specify that
any statement made by a witness during an interview with the IPCC shall not be
admissible as evidence against him in criminal proceedings in which the witness
is a defendant. I want to make it clear that the IPCC Interviewing Witness
Scheme is a voluntary process. No one, including the complainant and the
complainee, can be forced to be interviewed by the IPCC or forced to reply to
any questions asked by IPCC members during the interview. This is made clear
to the witness before the interview and the witness may choose to have his
lawyer present during the interview. We therefore do not see any need for a
provision as proposed by Members. On the contrary, such a provision could
mean that if a witness chooses to confess to a crime during the interview, nothing
he says can be used against him. We therefore do not agree with such a
proposal.
Another question raised by some Members of the Bills Committee was
whether the Governor or the IPCC should make regulations for the IPCC. Some
Members were concerned that the Governor may make regulations which would
inhibit the IPCC from discharging its functions and duties under the main
Ordinance. This cannot be so. Under the Interpretation and General Clauses
Ordinance (Cap. 1), no subsidiary legislation shall be inconsistent with the
provisions of any Ordinance; where any Ordinance confers power on any person
to make subsidiary legislation for any special purpose, the enumeration of the
special purposes shall not be deemed to derogate from the generality of the
powers conferred with reference to the general purpose. As part of the
improvement measures to enhance the credibility of the existing complaints
system, the police is amending the Police General Orders to make "tipping off" to
officers being complained a disciplinary offence. The Honourable Mrs Selina
CHOW, a member of the Bills Committee has suggested to make tipping off a
criminal offence. I wish to draw Members' attention to the fact that officers
committing "tipping off" may be prosecuted with criminal charges such as
perverting the cause of public justice under the Common Law. Existing
142
LEGISLATIVE COUNCIL — 23 June 1997
offenders or concealing offences under the Criminal rocedure Ordinance in
complaints that do not involve any criminal element the Administration is of the
view that tipping off should be a disciplinary offence and which is commensurate
with the nature and the severity of the complaint.
Mr President, the Administration has been as responsive as possible to
meet the concerns of the Bills Committee, and have accepted a considerable
number of their suggestions in proposing the amendments I have just mentioned.
However, I am disappointed that some Members are still not satisfied, and will
propose their own Committee stage amendments, to which the Administration
objects strongly.
The Honourable James TO will move a number of Committee stage
amendments which would disrupt the effective operation of the existing system
and are unacceptable to the Administration. I shall go into more details on the
specific reasons why they are unacceptable during the Committee stage.
I just wish to highlight at this stage one set of amendments to be moved by
Mr James TO which the Administration cannot possibly accept. This relates to
his amendment to clauses 7 and 8 of the Bill which would empower the IPCC to
investigate any complaint where it is not satisfied with the CAPO's investigation,
and to determine the acceptability of the findings and results of the investigation
of all complaints. These amendments would cause fundamental and in our view
adverse changes to the existing system.
The IPCC is a civilian oversight body. Its role is to monitor and to
review the investigation of complaints against the police conducted by the
CAPO. If it is not satisfied with the CAPO's investigation, the Bill already
provides that the IPCC may ask the CAPO to reinvestigate or the IPCC may refer
the complaint to the Governor's attention. To empower the IPCC to investigate
complaints would confuse its role as an oversight body and turn the existing
police complaints system on its head.
The proposal is also not practicable as the IPCC does not have any
investigative powers similar to those of the police. We must bear in mind that
most serious complaints against the police, for example assault and fabrication of
evidence, are criminal in nature. To investigate into such complaints would
require statutory powers such as the authority to conduct search and seizure of
LEGISLATIVE COUNCIL — 23 June 1997
143
evidence, to detain and to arrest suspects, which the IPCC does not have. To
enable the IPCC to conduct investigation would only interfere with police
investigation into such complaints without necessarily achieving any tangible
results.
Mr President, we have in recent years introduced numerous improvement
measures to the existing system. We are also implementing a further package of
improvement measures aimed at enhancing the credibility and the transparency
of the police complaints system. Judging from our comparative study of police
complaints systems in other countries, our Hong Kong police complaints system
is not out of step with other overseas police jurisdictions. Indeed, ours is one of
the most sophisticated systems in Asia; and there are countries for which there is
no civilian oversight body at all. We therefore believe the best way forward is
to enact the Bill as amended by the Administration. We believe in progressive
improvements to a system which by and large have worked well, rather than to
alter it radically and risk ending up with something which does not work, or not
as well as the present system. We are, as always, prepared to review the need
for further improvements in the light of the operation of the Bill.
The Administration believes strongly that to introduce unnecessary
fundamental changes to the existing system, such as those proposed by Mr James
TO which I have highlighted, would have serious consequences which would
hamper the effective operation of the existing police complaints system. There
are therefore totally unacceptable to the Administration. Let me repeat,
Mr President that our efforts to improve the complaints against the police system
did not begin with this Bill nor would it end with this Bill. We are committed
to continue to review the operation of the system, in particular, the effectiveness
of the additional powers given to the IPCC in this Bill. We will want to make it
more transparent, more effective and more creditable to the community. I know
the Commissioner of Police has committed to work hard towards changing the
culture of and injecting a sense of vision into the Police Force. But we believe
as I said in progressive step-by-step improvements, not fundamental and radical
changes, especially at the sensitive time of the transition when it is particularly
important to maintain the high morale of the Police Force.
I therefore urge Honourable Members to support my Committee stage
amendments, and to vote against the Committee stage amendments proposed by
Mr James TO and Mr WONG Wai-yin.
Thank you, Mr President.
LEGISLATIVE COUNCIL — 23 June 1997
144
Question on the Second Reading of the Bill put and agreed to.
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.
INDEPENDENT POLICE COMPLAINTS COUNCIL BILL
Clauses 1, 3, 12 and 15 were agreed to.
Clauses 2 and 5
SECRETARY FOR SECURITY: Mr Chairman, I move that clauses 2 and 5 be
amended as set out in the paper circularized to Members. The amendments are
made in response to the Bills Committee's suggestions to widen the definitions of
complaint and witness, and to enable papers under circulation for decision by the
Independent Police Complaints Council to be discussed if Members so requested.
Mr Chairman, I beg to move.
Proposed amendments
Clause 2 (see Annex III)
Clause 5 (see Annex III)
MR JAMES TO (in Cantonese): Mr Chairman, I support the amendments
moved by the Secretary for Security. But I wish to make it clear that although
LEGISLATIVE COUNCIL — 23 June 1997
145
the Secretary has said just now that he has accepted many proposals of the Bills
Committee, if Members look at those provisions carefully, they will find that the
provisions should mean such although they were not explicit. And now the
amendments are only clarifying those points. It does not mean that the
Government has made any concession. The Secretary says that the scope of the
definition has been expanded but Members should not be misled and think that
the investigative power, scrutinizing power or monitoring power has been
expanded. It is only an expansion to a sentence that should have been there.
As for clause 5, it is I who put it forward. This is for the case that the
Independent Police Complaints Council has already made a written resolution
but two or more members may think that they should discuss it because
sometimes when they exchange ideas, one side may be convinced by the other.
Therefore, if a discussion cannot be held, it may seem that some colleagues will
agree. I feel that this proposal was meant to do so and this is neither a
concession nor improvement made by the Government.
Therefore, I hope that Members can see it clearly that many of these
amendments are simply technical amendments.
Question on the amendments put and agreed to.
Question on clauses 2 and 5, as amended, put and agreed to.
Clause 4
MR JAMES TO (in Cantonese): Mr Chairman, I move the amendment to clause
4(1)(a) and the addition of subclause (1)(c) to clause 4, as set out in the paper
circularized to Members.
Mr Chairman, in the amendment to clause 4(1)(a), I suggest that the
Governor, when appointing members to the Independent Police Complaints
Council (IPCC), include at least two Members of this Council. There is actually
only one argument held by the Government in opposition to this suggestion,
which is its intention to get the best person for the job. It wants every member
to be appointed on an ad personam basis to avoid imposing too many restrictions
146
LEGISLATIVE COUNCIL — 23 June 1997
on the Governor with regard to such appointments.
However, let me discuss some points with Members here. First,
technically, what is the difference between the existence of this provision and
otherwise? Without this provision, the Government can choose, on theoretical
or legal grounds, not to appoint even one Legislative Councillor to the IPCC. In
other words, the Government retains the right of not appointing a single Member
of this Council to the IPCC. As far as I know, the Honourable Bruce LIU has
recently been appointed the Vice-Chairman of the IPCC and therefore actually a
total of three Legislative Councillors have been appointed. However, it has
been a long standing practice for a Legislative Councillor to be the
Vice-Chairman of the IPCC. Therefore, the provision I propose to add in fact
imposes no restriction on the appointments made by the Governor.
Moreover, Members can also look at its historical connections. Its
monitor role was first undertaken by the Office of Members of the Executive and
Legislative Councils and then more recently by the Office of Members of the
Legislative Council. It was subsequently restructured and became the Police
Complaints Council and was ultimately renamed as the IPCC. In fact, this
Council does have historical and institutional connection with this monitoring
body. I find it unacceptable for the Government to retain the right of not
appointing any Legislative Councillor to the IPCC.
In addition, the Government talks about appointing the best person. I
wonder if it is implying that in due course, the Government will find it not worth
appointing even one Legislative Councillor to it. In fact, Members of this
Council are elected representatives of the community and they are trusted by the
public. This appointment will allow representatives of the general public in the
IPCC and will in turn boost public confidence in it. I find it impossible that not
even one out of the 60 Members is worth the appointment. As Legislative
Councillors are returned by election, they play a vital role in maintaining
credibility of the IPCC.
Therefore, I hope that Honourable colleagues will understand that this is
only a very minor amendment. My original suggestion was to have the two
representatives returned by election among Members of this Council but now I
have amended it to having at least two Legislative Members in the IPCC as a
constitutional arrangement. I hope that Members will support my amendment.
LEGISLATIVE COUNCIL — 23 June 1997
147
Proposed amendment
Clause 4 (see Annex III)
SECRETARY FOR SECURITY: Mr Chairman, the Administration does not
support the amendment moved by the Honourable James TO. His proposed
amendment to specify the appointment of at least two Legislative Council
Members to the Independent Police Complaints Council (IPCC) will introduce
undue rigidity in the existing appointment system. The appointment of IPCC
members is made on an ad personam basis. The objective is to select the best
person for the job, having regard to the individual's ability, expertise and
commitment to public service.
While the Administration may appoint
Legislative Council Members in their personal capacity to sit on the IPCC, as we
do now, the existing system leaves sufficient flexibility to allow the appointment
of the best person for the job. We therefore cannot agree with Mr TO's
proposed amendment.
Mr TO's proposed amendment to appoint the Commissioner for the
Independent Commission Against Corruption (ICAC) to sit on the IPCC is also
not supported. The ICAC should not be distracted from its principal objective of
fighting corruption by getting involved in the monitoring and reviewing of
non-corruption related complaints against the police.
MR JAMES TO (in Cantonese): Mr Chairman, I have forgotten to speak on
subclause (1)(c), should I speak on clause 4(1)(c) now?
CHAIRMAN (in Cantonese): Yes.
MR JAMES TO (in Cantonese): Sorry, Members. I hope that one of the ex
officio member of the Independent Police Complaints Council (IPCC) will be the
Commissioner for the Independent Commission Against Corruption (ICAC).
Under the present ordinance, the Commissioner for Administrative Complaints is
an ex officio member of the IPCC and hence I wish that the Commissioner for
the ICAC will be an ex officio member too. Some colleagues have
misunderstood me and think that I wish to involve the whole ICAC. This is not
148
LEGISLATIVE COUNCIL — 23 June 1997
what I want. I think that the Commissioner for the ICAC is already a person of
credibility. As I have just said, I think that there should be two Legislative
Councillors on the IPCC because Members of this Council are returned by
election. The Commissioner for the ICAC is appointed by the Governor. He
is independent and does not belong to any other organization. If he joins the
IPCC, it will enhance its credibility among the community.
Second, his department, that is the ICAC, has a well-founded professional
status. The Commissioner is very clear about cases under investigation and has
the ability to handle very complicated ones. Decisions to search premises or
detain identity papers of suspects by the ICAC are ultimately made by the
Commissioner. Therefore, he is very familiar with investigation work and
knows what should be done to balance the evidence. Besides, the ICAC
receives every year a certain number of complaints against the abuse of power or
corruption involving police officers. In fact quite a large number of cases are
forwarded to the IPCC by the ICAC. Hence, the Commissioner for the ICAC
fully understands the overall situation and knows how many black sheep there
are in the police who may be involved in corruption or abuse of power. He is a
very shrewd man in this respect.
Third, we will not involve the entire ICAC. By the same token, as the
Commissioner for Administrative Complaints is a member of the IPCC, does that
mean the entire Office of the Commissioner for Administrative Complaints is
involved? Moreover, the Commissioner of Police also participates in some
bodies for investigating cases or monitoring the situation about abuse of power in
the police, including the Operations Review Committee of the ICAC which
monitors some very important daily work of the ICAC. Hence, it is nothing
new that the Commissioner of Police also participates in the Operations Review
Committee of the ICAC. With so much information on hand and such good
knowledge of the situation, the Commissioner for the ICAC will give valuable
advice to the IPCC and allow it to understand the overall situation if he sits on
the IPCC. He has better knowledge and more information about corruption in
the police than other people do. Therefore, his membership in the IPCC can
enhance public confidence and he will give the IPCC much valuable advice.
MRS SELINA CHOW: I did not in fact speak on his amendment concerning
clause 4(1)(c). In fact I did not choose to speak either.
LEGISLATIVE COUNCIL — 23 June 1997
149
CHAIRMAN: I did not take that to be a reply.
MRS SELINA CHOW: Oh, good. May I speak?
CHAIRMAN: The debate is now open.
MRS SELINA CHOW: Thank you very much, Mr Chairman. I would just like
to, on behalf of the Liberal Party, express our opposition to Mr TO's amendment
on this clause in view of the fact that we do not agree that the Commissioner,
Independent Commission Against Corruption (ICAC) should be obligated by law
to sit in the Independent Police Complaints Council (IPCC).
During the deliberations of the Bills Committee, I have in fact expressed the
grave reservation that the Commissioner, ICAC should be involved in any way in
the overseeing of complaints against police officers in view of the fact that we
have actually been very careful about exactly what the ICAC and the role of the
Commissioner ought to be in terms of their investigative powers and so on, and I
do not believe that to have the Commissioner sit on the IPCC would in fact help
with that problem. In fact it would go the other way. It would actually involve
the Commissioner in matters relating to police complaints which have absolutely
nothing to do with the investigation of corruption, and therefore we are against
this amendment.
CHAIRMAN (in Cantonese): You will have a chance to reply. I will let other
Members speak first.
MR BRUCE LIU (in Cantonese): Mr Chairman, I would like to raise a point of
order. When voting on clauses 4(1)(a) and 4(1)(c) later on, may we have a
separate vote on each clause because we support clause 4(1)(a) but not clause
4(1)(c)?
CHAIRMAN (in Cantonese): Let me think about it first. I will make a decision
after the debate.
150
LEGISLATIVE COUNCIL — 23 June 1997
MR BRUCE LIU (in Cantonese): We, the Association for Democracy and
People's Livelihood, have discussed whether the Commissioner for the
Independent Commission Against Corruption (ICAC) or his representative
should sit on the Independent Police Complaints Council (IPCC) and we have
concluded that it is not necessary. There are two reasons for this. First,
concerning the division of labour, the IPCC is to deal with the reports of the
Complaints Against Police Office and abuse of power by the police. Of course,
some of the power abuse cases may involve corruption but most of the cases
handled by the IPCC do not.
Second, for any cases involving corruption, the public or anyone will
complain to the ICAC directly. Basically, they consider the ICAC a very
extensive independent investigative mechanism and therefore they will report to
the ICAC directly. We do not see the need to mix up the two monitoring
mechanisms. If the Commission for the ICAC also sits on the IPCC, it will
confuse the public. Hence we think that such arrangement is unnecessary.
As for clause 4(1)(a) regarding the appointment of at least two Legislative
Council Members to the IPCC, we are in support of it.
MRS ELIZABETH WONG: Mr Chairman, I support both amendments
proposed by the Honourable James TO for very good reasons. I feel that the
involvement of Legislative Council Members would enhance community
participation and also the involvement of Independent Commission Against
Corruption would improve cross-fertilization of information and ideas and would
enhance the independent nature of the Independent Police Complaints Council.
I so support.
CHAIRMAN (in Cantonese): Secretary for Security, do you wish to speak
further on clause 4(1)(c) proposed by Mr James TO?
SECRETARY FOR SECURITY: Mr Chairman, I have already explained the
Administration's position, that we are opposed to both amendments proposed by
the Honourable James TO.
LEGISLATIVE COUNCIL — 23 June 1997
151
MR JAMES TO (in Cantonese): Mr Chairman, I would like to respond briefly
to Mr Bruce LIU's point about division of labour. In fact there is a clear
division of labour. No confusion will arise. For cases of corruption, the
people will go straight to the Commissioner of the Independent Commission
Against Corruption (ICAC) to lodge their complaints.
Why then do I suggest that the ICAC Commissioner or a person specified
by him should sit on the Independent Police Complaints Council (IPCC)? The
reason is that the ICAC is receiving a number of complaints related not to
corruption but to abuse of power by the police. Why does that happen? It is
simply because the people do not trust the Complaints Against Police Office
(CAPO) and therefore they go straight to the ICAC. Some members of the
public told me that they would feel more secure even if the cases reported to the
ICAC were eventually referred to the CAPO by the ICAC, or even by Mr Bruce
LIU. They would think at least more people know about these cases of
injustice. In fact, under the existing system, the CAPO investigates and the
IPCC supervises.
Why can the Commissioner of the ICAC play a supervisory role well?
This is because on receiving complaints not related to corruption, the
Commissioner may see the whole picture more clearly. He or she then comes to
know policemen of which ranks get more complaints within a certain framework.
For example, policemen engaged in search work or anti-drug operations are more
likely to be complained. In fact the information obtained by the Commissioner
and other departments helps monitor the CAPO and abuse of power by the
police, cases of which, I mean, are unrelated to corruption. That is our
rationale. Hence there is no confusion. Some Members may think the ICAC
Commissioner will be carried away by anti-corruption thoughts, even if he or she
is a member of the IPCC. That is not the case. The Commissioner is there to
deal with complaints not related to corruption. Indeed the Commissioner is in a
position to do well due to his or her professional background or knowledge.
CHAIRMAN (in Cantonese): I have decided to ask Members to vote separately
on clauses 4(1)(a) and 4(1)(c).
Question on Mr James TO's amendment to clause 4(1)(a)put and agreed to.
152
LEGISLATIVE COUNCIL — 23 June 1997
Question on Mr James TO's amendment to clause 4, by adding subclause (1)(c),
put.
Voice vote taken.
CHAIRMAN (in Cantonese): Committee will now proceed to a division.
CHAIRMAN (in Cantonese): I would like to remind Members that they are now
called upon to vote on the question: That the amendment move by Mr James TO
to add paragraph (c) to clasue 4(1) be approved.
Will Members please first register their presence by pressing the top button
and then proceed to cast their votes by pressing one of the three buttons below?
CHAIRMAN (in Cantonese): Members may wish to check their votes. Are
there any queries? The result will now be displayed.
Mr Martin LEE, Mr SZETO Wah, Mr Albert CHAN, Mr CHEUNG Man-kwong,
Mr CHIM Pui-chung, 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, Miss Christine LOH, Mr LEE Cheuk-Yan, Mr Andrew CHENG, Dr
Anthony CHEUNG, Mr Albert HO, Mr LAU Chin-shek, Mr LAW Chi-kwong,
Mr LEUNG Yiu-chung, 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 Allen LEE, Mrs Selina CHOW, Mr NGAI Shiu-kit, Mr Edward HO, Mr
Ronald ARCULLI, Mrs Miriam LAU, Dr LEONG Che-hung, Mr Frederick
FUNG, Mr Eric LI, Mr Henry TANG, Dr Philip WONG, Mr Howard YOUNG,
Mr James TIEN, Mr CHAN Kam-lam, Mr CHAN Wing-chan, Miss CHAN
Yuen-han, Mr Paul CHENG, Mr CHENG Yiu-tong, Mr CHEUNG Hon-chung,
LEGISLATIVE COUNCIL — 23 June 1997
153
Mr CHOY Kan-pui, Mr David CHU, Mr IP Kwok-him, Mr Ambrose LAU, Dr
LAW Cheung-kwok, Mr LEE Kai-ming, Mr Bruce LIU, Mr LO Suk-ching, Mr
MOK Ying-fan and Mr NGAN Kam-chuen voted against the amendment.
THE CHAIRMAN announced that there were 27 votes in favour of the
amendment and 29 votes against it. He therefore declared that the amendment
was negatived.
DR LEONG CHE-HUNG (in Cantonese): Under Order number 37(4) of the
Standing Orders, I move that in the event of further divisions being claimed in
respect of any amendments to the Independent Police Complaints Council Bill at
this sitting, the Committee of the whole Council do proceed to each of such
divisions immediately after the division bell has been rung for one minute.
Question on the motion proposed, put and agreed to.
SECRETARY FOR SECURITY: Mr Chairman, I move that clause 4(1)(b) be
further amended as set out in the paper circularized to Members. The
amendment is consequential to the enactment of the Commissioner for
Administrative Complaints Ordinance 1996 which changes the title of the
Commissioner for Administrative Complaints to The Ombudsman.
Mr Chairman, I beg to move.
Proposed amendment
Clause 4 (see Annex III)
Question on the amendment put and agreed to.
CHAIRMAN (in Cantonese): Both the Secretary for Security and Mr James TO
have separately given notices to propose amendments to clause 4 by the addition
154
LEGISLATIVE COUNCIL — 23 June 1997
of subclause (1A) to the clause.
I propose that the amendments proposed separately by the Secretary for
Security and Mr James TO be debated together in a joint debate.
Committee shall debate the amendments in a joint debate. I will call
upon the Secretary for Security to move his amendment, as he is the public
officer in charge of the Bill.
SECRETARY FOR SECURITY: Mr Chairman, I move that clause 4 be
amended by the addition of subclause (1A) as set out in the paper circularized to
Members. The amendment is in response to the Bills Committee's proposal to
exclude any serving member of the Police Force from being appointed to the
Independent Police Complaints Council (IPCC). As I pointed out in my speech
on resumption of Second Reading debate, this is already the existing practice and
the amendment serves to make it explicit.
Mr TO's proposed amendment to exclude the appointment of former
members of the Police Force to sit on the IPCC is objected by some Members of
the Bills Committee as this would reduce the flexibility in appointing someone
who has previously served as a member of the Police Force, but who has left it
for some time and is found to be a very suitable person for appointment.
Mr Chairman, I beg to move.
Proposed amendment
Clause 4 (see Annex III)
CHAIRMAN (in Cantonese): I will call upon Mr James TO to speak on the
amendment moved by the Secretary for Security as well as his own proposed
amendment, but I will not ask Mr TO to move his amendment unless the
Secretary for Security's amendment has been negatived. If the Secretary for
Security's amendment is agreed, that will by implication mean that Mr TO's
LEGISLATIVE COUNCIL — 23 June 1997
155
proposed amendment is not approved.
MR JAMES TO (in Cantonese): Mr Chairman, I have to explain one point to
Members first. My amendment is different from that of the Government in only
one point. The Secretary for Security has just said that the Government will
certainly not appoint a serving police officer to the Independent Police
Complaints Council (IPCC). Of course this is impossible. My amendment in
fact proposes that no former police officers should become members of the IPPC,
no matter whether they retired yesterday or 10 years ago. Anyone who has
served as a police officer can never become an IPCC member.
I raise my proposal for several reasons. First, which is more important
under the existing IPCC system, "professionalism" or "perception"? If we must
choose one of them, I think "perception" will surely outweigh "professionalism".
The crux of the issue is that the public do not trust the practice of having police
officers carrying out investigation on their peers. If former police officers were
appointed to the IPCC, how could fairness be perceived?
Some colleagues may say people who were police officer 10 years ago
should have no connection with the police. But we should bear in mind that
whether he or she is connected depends on his perceived fairness. For example,
someone who used to be a chief superintendent 10 years ago may still have some
former colleagues who are chief superintendents, or former subordinates who are
now chief inspectors. If a case of complaint involves a former subordinate, can
we rule out the possibility that sympathy is given to him or her, who used to go
through thick and thin with the ex-officer? Will the public worry about this? I
hope everyone can consider this point.
As regards the Government, under the existing policies, I do not believe
that it will appoint former police officers to the IPCC. However, a former
police officer may contribute in a number of ways. He or she may act as a
full-time observer or even an investigator at a level below the IPCC but can
never be justifiably be appointed to a level with the final decision, that is, the
IPCC.
Moreover, if the Government is acting in good faith, it should pose some
156
LEGISLATIVE COUNCIL — 23 June 1997
reasonable restrictions. Why should we discriminate against those who served
as police officers a long time ago, say 30 years ago? The Government may well
have stated a time limit, such as 10 or 20 years, beyond which a former police
officer can also be appointed to the IPCC. In that case, a police officer who
retired several months or several years ago would not be appointed. But the
Government has not put forward this kind of amendment. In other words, the
Government reserves the power to appoint someone who has just retired. If
Members vote against my amendment, that could be the consequence. In that
case, could we trust the Government any more?
Please do not forget that we are talking about legislation, about enacting
law for the IPCC. We cannot let the above situation arise. If the Government
would compromise, it could specify a time limit of, say five or 10 years; that is, a
person may use his or her professional knowledge to serve the community after
having retired for a certain period of time. The Government should put forward
an amendment, but it has not done so.
I hope that Members will support my amendment.
CHAIRMAN (in Cantonese): Members may now debate the amendment moved
by the Secretary for Security as well as the amendment proposed by Mr James
TO. Mrs Selina CHOW.
MRS SELINA CHOW: Mr Chairman, I am in fact one of the members on the
Bills Committee who felt it is unnecessary to restrict the flexibility of
appointment vis a vis police officers because it is quite obvious that the
Administration would not be appointing any existing or present police officers,
and so the amendment being moved by the Administration is really stating the
obvious. But then again we cannot really object to it because it is something
which the public expects is going to happen.
We object to Mr TO's amendment because we believe that it is
unnecessarily restrictive. Not only is it unnecessarily restrictive, it can actually
work against the effectiveness of the Council. Just now Mr TO said, "Well, is
perception more important or professionalism more important?". I would like to
LEGISLATIVE COUNCIL — 23 June 1997
157
think that both are very important, but I think at the end of the day it is the person
who is being appointed that speaks for itself.
If the person is a symbol of integrity, it is accepted as someone who is
widely respected, as an ex-police officer who has the integrity and who is
respected, as someone who would be impartial and fair, then why should he be
excluded from membership of the Council? In fact the Council would definitely
benefit from someone who is experienced and who has the integrity, who is
fair-minded. In fact, it would add to the image of the Council. But I think at
the end of the day what we need to consider is what best is available for the
Council, experience plus, you know, a flexibility for appointment.
So, we support the Government's amendment and oppose Mr TO's
amendment.
MR CHEUNG MAN-KWONG (in Cantonese): Mr Chairman, I would like to
respond to the Honourable Mrs Selina CHOW in respect of the amendment of the
Honourable James TO. Mrs Selina CHOW has just said that flexibility is very
important but I think that there is a very important point in Mr James TO's
amendment, which is, flexibility cannot override impartiality. At present, it is
very obvious that serving police officers may not be appointed to the
Independent Police Complaints Council (IPCC). The crux of the issue,
however, is whether resigned or retired police officers may become its members.
Under such a system, Mr James TO's suggests otherwise because it involves
implicit impartiality. Quite often, resigned or retired police officers will,
because of their former relationship with other police officers in respect of their
work, friendship, duty or subordination, face queries or challenges about their
impartiality, which in turn undermines the credibility of the IPCC in the
community. Therefore, Mr James TO has brought up a very crucial point which
is that flexibility should not transcend impartiality.
Mrs Selina CHOW has also mentioned that too many restrictions will
affect efficiency but I just cannot see how it can tie in with this. Efficiency
depends on the appointees, on the system of the IPCC, rather than ......
MRS SELINA CHOW: Mr Chairman, I did not mention anything about
LEGISLATIVE COUNCIL — 23 June 1997
158
efficiency.
MR CHEUNG MAN-KWONG (in Cantonese): I jotted down her ideas while I
was listening to her speech.
I feel that even though there are such restrictions and members of the IPCC
are appointed under such restrictions, if the organization is efficient, it is
efficient; if not, then it is not. It has little to do with who they are.
Thank you, Mr Chairman.
MRS SELINA CHOW: Mr Chairman, I did not mention anything about
efficiency. I would like to draw that to Mr CHEUNG's attention.
CHAIRMAN: What word did you use? Did you use "effectiveness"?
MRS SELINA CHOW (in Cantonese): "Effectiveness" means the ability or
power to bring about a certain desired result, which is totally different from
"efficiency".
MR BRUCE LIU (in Cantonese): Mr Chairman, I am also a member of the Bills
Committee. While studying the Bill, we concentrated our discussion on
whether former police officers should become members of the Independent
Police Complaints Council (IPCC). I felt that the discussion had something to
do with perception and so-called professionalism or effectiveness.
My opinion is that if the IPCC consists entirely of former police officers, it
would give a very bad perception. I quite agree with Mr TO on this.
However, if the majority of its members are not retired police officers, and only
one or two members are former police officers who have a good reputation, I feel
that it would enhance the image of the IPCC. If one says that no former police
officer may assume the responsibility of monitoring the police, even if he has
retired for ten, twenty years, it is too rigid and undesirable. For instance, in
advising people against using drugs, rehabilitated drug addicts are very effective.
In any case, we are not talking about drug addiction, but whether retired police
officers who have a good reputation can join the IPCC after some time, say, eight
LEGISLATIVE COUNCIL — 23 June 1997
159
or ten years. Should we have this flexibility? Second, it might be better for
the IPCC to have one or two retired or resigned police officers, since it would let
the CAPO know that there are people in the IPCC who are acknowledgeable
about the overall operation of the police. This would help the operation and
effectiveness of the IPCC.
Of course, according to the existing Government policy, former police
officers will not be appointed as members of the IPCC. However, I think we
should reserve this flexibility. In the process of appointment, it is best to
consult the IPCC and the appointments should be made very carefully. In this
way, I believe Mr TO's concerns will be allayed.
Thank you, Mr Chairman.
MR JAMES TO (in Cantonese): Mr Chairman, I would like to give a simple
response to Mr Bruce LIU's opinions.
First, I feel it is rather strange to appoint other members of the Independent
Police Complaints Council (IPCC) through the IPCC itself. This is also
inconsistent with what the Government said just now. This should be a decision
of the Governor. Of course, what Mr LIU said about consulting the IPCC also
makes sense, since very often the Chairman of the IPCC will be consulted on
appointment matters.
Mr LIU talked about having former drug addicts counsel drug addicts. I
do not think it has anything to do with what we are discussing now. We are
discussing the role of adjudication and monitoring, not counselling. The IPCC
does not play a counselling role.
The Honourable Mrs Selina CHOW mentioned the question of "integrity."
I admit that many police officers have a very good image. But even if they had
very good conduct and image in the past, their work in the IPCC is not public and
even the votes that they cast are not made public.
Mr LIU said its members could not all be retired police officers since that
would harm its image, but one or two members could be retired police officers.
However, when a decision has to be made and the voting result is six versus five
or seven versus six, then the decision will depend on the one vote. Besides, no
one knows how he makes the decision and whether he has always been fair. We
160
LEGISLATIVE COUNCIL — 23 June 1997
only know that the result is six versus five. We also have no idea about his
voting position. No doubt, he has integrity. However, neither his integrity nor
his impartiality can be seen.
Therefore, when it comes to these cases of extreme opposition, public
perception of the IPCC is obviously of crucial importance.
MRS SELINA CHOW (in Cantonese): Mr Chairman, I feel that the Honourable
James TO's view is based on one assumption, and that is "assuming that everyone
is just as bad". If one has been a police officer, one is bound to protect the
interests of the police. Regardless of justice, one would protect "one's own
peers". He has forgotten that police officers are just like everyone of us.
There might be many officers in the Police Force who want to maintain the
credibility and highest ethical standards of the police and resent the black sheep
very much. They hope to help get rid of those black sheep and bring them to
justice. Actually they know many tricks and would therefore be able to monitor
police officers using foul means.
I do not think we should "assume that everyone is just as bad" and make it
impossible for the Independent Police Complaints Council to enlist the help of
these experienced and righteous people who have served in the Police Force.
DR YEUNG SUM (in Cantonese): Mr Chairman, just now the Honourable Mrs
Selina CHOW said that retired police officers could also handle matters justly.
I do not exclude this possibility. Many people can act in many different ways in
the same environment. Therefore, I feel that Mrs CHOW's argument is tenable.
However, I hope colleagues will note that the Police Force bears a special
characteristic.
They place great emphasis on the relationship between
colleagues. Maybe because they always investigate cases and go through thick
and thin together, they have developed a special spirit, which is quite different
from the case of desk work staff. This kind of relationship between colleagues
has given a deep impression to the public, who feel that they might be partial
towards former "brothers", thus affecting justice. Mr Chairman, I am not saying
that they are bound to be unjust. But since the public know that members of the
Police Force have such a close relationship with one another, they might feel that
even a very just person might not be able to handle cases justly.
LEGISLATIVE COUNCIL — 23 June 1997
161
Thank you, Mr Chairman.
MR JAMES TO (in Cantonese): Mr Chairman, I would like to clarify a point.
I want to make it clear that if I have given Members this impression ......
CHAIRMAN (in Cantonese): While Members may speak several times, please
do not repeat issues that have been raised.
MR JAMES TO (in Cantonese): Mr Chairman, this will be a new issue. I
understand as I am also a man of discipline.
Mr Chairman, I do not mean that all police officers will favour their
colleagues. My point is that from the perspective of the public, they cannot
believe completely that police officers will never favour their colleagues.
Therefore they are not completely convinced that police officers are all just and
impartial. I do not mean police officers will favour their colleagues, and it fact
they may have never done so.
MR CHEUNG MAN-KWONG (in Cantonese): Mr Chairman, there is one
point that I have to make. When we were discussing whether representatives of
the Independent Commission Against Corruption (ICAC) could become
members of the Independent Police Complaints Council (IPCC), many Members
were against it. Actually, one of the reasons behind our suggestion to have
representatives of the ICAC serve as members of the IPCC is that they are very
familiar with many matters of the Police Force and even things about police
officers.
CHAIRMAN (in Cantonese): Mr CHEUNG Man-kwong, please do not repeat
an issue that we have voted upon.
MR CHEUNG MAN-KWONG (in Cantonese): Mr Chairman, I am not
repeating. I have some new points to make. That was the reason why we
LEGISLATIVE COUNCIL — 23 June 1997
162
proposed to appoint them as members. Now, we are discussing whether some
retired police officers should be appointed as members. The reasons for
agreeing to this is that they are very familiar with matters of the Police Force.
In my view, even if such a person is familiar with police matters, he does have a
conflict of interest as mentioned before. Since people would think that he
would try to protect the interest of the police, he should not be a member of the
IPCC. This is our opinion.
SECRETARY FOR SECURITY: Mr Chairman, surely there must be some
degree of trust, I hope, that the Administration would not, in the area of
appointing members of the Independent Police Complaints Council (IPCC),
ignore either the consideration of a conflict of interests or the consideration of
credibility of the IPCC to the community.
Very obviously I will not be recommending that someone who has just left
the Police Force last month or even last year be appointed a member of the IPCC.
But do we really have to be so restrictive to the extent that perhaps someone who
has been in the Police Force for a year or two and left it for 20 or 30 years would
be barred from appointment to the IPCC, no matter how suitable he is, for the rest
of his life? Is service in the Police Force such a potent contagion that anybody
who has served in the Police Force for any length of time seems to carry with him
a deadly virus for the rest of his life?
Mr Chairman, I do not think that we need to be so restrictive. I hope that
Members of this Council and the community will, at the very least on the basis of
our past record, accept that the Administration in the matter of appointment of
members of the IPCC acts with prudence.
I should add, Mr Chairman, that our position, that we do not need to be so
restrictive on the question of membership, is supported by the IPCC itself.
Thank you, Mr Chairman.
Question on the amendment put.
Voice vote taken.
LEGISLATIVE COUNCIL — 23 June 1997
163
CHAIRMAN (in Cantonese): Committee will now proceed to a division. The
division bell will only be rung for one minute.
CHAIRMAN (in Cantonese): I would like to remind Members that they are now
called upon to vote on the question that the amendment to clause 4 moved by the
Secretary for Security, that is, the addition of subclause (1A) to the clause, be
approved.
If Members support Mr James TO's amendment, it will mean the Secretary
for Security's amendment is objected to. If the Secretary for Security's
amendment is supported, even though it is eventually negatived, Members have
to object to Mr James TO's amendment.
Will Members please register their presence by pressing the top button and
then proceed to vote by pressing one of the three buttons below?
CHAIRMAN (in Cantonese): Still one short of the head count. Members may
wish to check their votes. The result will now be displayed.
Mr Allen LEE, Mrs Selina CHOW, Mr NGAI Shiu-kit, Mr Edward HO, Mr
Ronald ARCULLI, Mrs Miriam LAU, Mr Frederick FUNG, Mr Henry TANG,
Dr Philip WONG, Mr Howard YOUNG, Mr James TIEN, Mr CHAN Kam-lam,
Mr CHAN Wing-chan, Miss CHAN Yuen-han, Mr Paul CHENG, Mr CHENG
Yiu-tong, Mr CHEUNG Hon-chung, Mr CHOY Kan-pui, Mr David CHU, Mr IP
Kwok-him, Mr Ambrose LAU, Dr LAW Cheung-kwok, Mr LEE Kai-ming, Mr
Bruce LIU, Mr LO Suk-ching, Mr MOK Ying-fan, Miss Margaret NG and Mr
NGAN Kam-chuen voted for the amendment.
Mr Martin LEE, Mr SZETO Wah, Dr LEONG Che-hung, Mr Albert CHAN, Mr
CHEUNG Man-kwong, Mr CHIM Pui-chung, Mr Michael HO, Miss Emily
LAU, Mr LEE Wing-tat, Mr Fred LI, Mr James TO, Dr YEUNG Sum, Mr
WONG Wai-Yin, Miss Christine LOH, Mr LEE Cheuk-Yan, Mr Andrew
CHENG, Dr Anthony CHEUNG, Mr Albert HO, Mr LAU Chin-shek, Mr LAW
Chi-kwong, Mr LEUNG Yiu-chung, Mr SIN Chung-kai, Mr TSANG Kin-shing,
Dr John TSE, Mrs Elizabeth WONG and Mr YUM Sin-ling voted against the
amendment.
164
LEGISLATIVE COUNCIL — 23 June 1997
Mr Eric LI abstained.
THE CHAIRMAN announced that there were 28 votes in favour of the
amendment and 26 votes against it. He therefore declared that the amendment
was carried.
CHAIRMAN (in Cantonese): Mr James TO, as the addition of subclause (1A) to
clause 4 proposed by the Secretary for Security has been agreed, you may not
move the addition of your subclause (1A) to the same clause as it is inconsistent
with the decision already taken.
Question on clause 4, as amended, put and agreed to.
12.57 pm
CHAIRMAN (in Cantonese): I will now suspend the sitting. Lunch time will
last for one hour. This Council will resume at two o'clock sharp.
Sitting suspended.
2.02 pm
Council then resumed.
CHAIRMAN (in Cantonese); I now resume the sitting. The Council goes into
Committee.
Clauses 6 and 11
SECRETARY FOR SECURITY: Mr Chairman, I move the amendment to
LEGISLATIVE COUNCIL — 23 June 1997
165
clause 6(1) as set out in the paper circularized to Members. The amendment
addresses the Bills Committee's concern on the need to enhance the public
perception of the independent image of the Secretariat of the Independent Police
Complaints Council (IPCC) and proposes to empower the IPCC to appoint its
own Secretary and Legal Adviser, the two most pivotal posts in the Secretariat.
Mr Chairman, I beg to move.
Proposed amendments
Clause 6 (see Annex III)
Clause 11 (see Annex III)
MR JAMES TO (in Cantonese): Mr Chairman, I agree to the proposal of the
Government, as it is not imperative that this proposal and the proposed
amendments to be moved by me and the Honourable WONG Wai-yin are
mutually exclusive. However, the Government is only prepared to let the
Independent Police Complaints Council (IPCC) appoint a Secretary and a Legal
Adviser as its supporting staff. Actually, in the Bills Committee, we pointed out
that if the Government could let the IPCC appoint the other staff, the possibility
of appointing civil servants would still exist. Therefore, there is no need for the
Government to stipulate that apart from the above-mentioned two posts, the other
staff must be civil servants. If the other staff are all civil servants, it would be
similar to the previous situation of the Legislative Council Secretariat, as the
Honourable Miss Emily LAU pointed out clearly just now. As we all know, it
involves the question of independence, efficiency and professionalism. We
think that the Government's proposal is not enough. However, we agree that at
least these two posts must be taken up by independent persons.
MISS EMILY LAU (in Cantonese): Mr Chairman, I share the views expressed
by the Honourable James TO just now. I think the Government's proposal is the
minimum requirement. However, I hope that the Government will not regard
the few non-civil servants working in the Independent Police Complaints Council
(IPCC) as a message to tell the public that the Secretariat of the IPCC is already
independent and its credibility should not be queried. If the Secretary for
166
LEGISLATIVE COUNCIL — 23 June 1997
Security really thinks so, he is wrong. He may have taken a step in the right
direction, but what we want to see is a totally independent Secretariat. Since
the Secretariat is very small, I do not see that there will be any overwhelming
changes in its operation. In my opinion, since the Government will not let the
Complaints Against Police Office go independent, it is a mininum concession to
accept this proposal. The Government must convey the message to the public
that it has allowed the IPCC to operate completely independently. Of course,
the IPCC should do a bit more and set up a commission to supervise the
Secretariat. What we want is its total independent operation. This is just a
small step and it is not enough.
Thank you, Mr Chairman.
MRS SELINA CHOW: Mr Chairman, may I raise a query as to why the
amendment being moved by Mr WONG Wai-yin for the same clause does not
have a charging effect? I do not know whether I should raise it here or
elsewhere, but I think I have already put our position forward.
As far as the Liberal Party is concerned, we believe that the Administration
is taking a step in the right direction, although eventually and ultimately we
would like very much for the Council to have freedom to take on staff outside of
Government. But that is not to say that such recruitment should not be
subjected to certain accountability and certain rules.
So, we actually are in support of the Government's amendment and we
oppose Mr WONG's amendment, but if I may, I do not know whether it is
appropriate for me to, raise that question here?
Thank you, Mr Chairman.
CHAIRMAN (in Cantonese): It seems that during the scrutiny of this Bill, no
one has asked whether there would be a charging effect. Miss Margaret NG, do
you have a point of order?
LEGISLATIVE COUNCIL — 23 June 1997
167
MISS MARGARET NG: Mr Chairman, if I may help. By looking at the
clause, the amendment being proposed by Mr WONG Wai-yin, one of the
subclauses to be added as subclause (4), which says: "Subsection (3) shall come
into operation on a day to be appointed by a resolution of the Legislative
Council", so, Mr Chairman, I wonder if it is correct that the charging effect
would actually take place at the time when the resolution is passed, and that
would be a separate matter, Mr Chairman.
CHAIRMAN (in Cantonese): Thank you, Miss Margaret NG. Mr James TO,
do you have a point of order?
MR JAMES TO (in Cantonese): Mr Chairman, we are considering clause (6)(1),
instead of clause (6)(3) and clause (6)(4), that is, we are considering the
amendment proposed by the Secretary for Security, which has no charging effect.
CHAIRMAN (in Cantonese): I know. I thought what Mrs Selina CHOW
meant was whether the amendment to be proposed by Mr WONG Wai-yin would
have a charging effect. It seems that no one else has asked me about this. Just
now, Miss Margaret NG clarified it already. I have looked at the clause, which
says that its date of coming into operation is to be appointed by the Government.
Therefore, at this stage, there is no charging effect.
MRS SELINA CHOW (in Cantonese): Mr Chairman, the date of its coming into
operation is not to be appointed by the Government. Instead, it is decided by
resolution of the Legislative Council. Therefore, it is not up to the Government
to decide whether there will be a charging effect. However, I agree with what
Mr James TO has said. What we are considering is all related. It seems that
the amendment moved by the Secretary for Security can be considered
independently. However, in considering it, we must also consider other
relevant matters.
CHAIRMAN (in Cantonese): Miss Emily LAU, do you have a point of order or
do you wish to join in the discussion? I have already made a ruling.
168
LEGISLATIVE COUNCIL — 23 June 1997
MISS EMILY LAU (in Cantonese): Is there no question of a charging effect?
If there is, can we ask the Government to explain?
CHAIRMAN (in Cantonese): I will explain again why there is no charging
effect. I do not have to look into the law book now to decide whether such a
resolution must be put forward by the Government or it can be proposed by
Members. Even if it could be proposed by Members, there would be a charging
effect when they do so. When the motion is raised, there would be a charging
effect, but not at this stage.
MISS EMILY LAU (in Cantonese): It should be fine if there is no charging
effect. Otherwise, the Government will have to explain it, since it has not
mentioned it.
SECRETARY FOR SECURITY: Mr Chairman, I shall respond to the
Honourable James TO's remarks when it comes to his turn to move amendments
to clause 6(3) and 6(4).
Question on the Secretary for Security's amendment put and agreed to.
CHAIRMAN (in Cantonese): Both Mr James TO and Mr WONG Wai-yin have
separately given notices to move amendments to clause 6 by amending the
heading of clause 6 and the addition of subclauses (3) and (4) to the clause.
I propose that the amendments, proposed separately by Mr James TO and
Mr WONG Wai-yin, be debated together in a joint debate.
Committee shall debate the amendments in a joint debate. I will first call
upon Mr James TO to move his amendment by virtue of his seniority.
MR JAMES TO (in Cantonese): Mr Chairman, I move that the heading of
LEGISLATIVE COUNCIL — 23 June 1997
169
clause 6 be amended and that clause 6 be amended by adding subclauses (3) and
(4), as set out in the paper circularized to Members.
Mr Chairman, we have already discussed at the meetings of the Bills
Committee that other than the Secretary or Secretary General and Legal Advisor,
as mentioned in the amendment to clause 6(1) by the Government, other staff
ranging from typists, clerks to professionals or technical personnel such as
medical advisors are needed to work for the Secretariat of the Independent Police
Complaints Council (IPCC). Some colleagues have also mentioned that under a
certain circumstances, we may even need experts in other fields. In addition,
we also agree that there may be a need for a professional observers scheme,
which is very important. Miss Emily LAU has also discussed this in detail in
her speech. Why is this so important? Even if time is not considered, as I
presume that they are all full-time observers or they will all be full-time in due
course, professional know-how in relevant fields will help one way or the other
in observing investigations. I objected to having present or former police
officers on the IPCC not long ago but now we have passed that they should not
be excluded. Let us imagine that if someone who has worked as the person in
charge of a crime squad for 20 or 30 years and now the IPCC appoints him as a
professional observer, trusting his integrity, reputation and his impartiality, I
believe that when he observes a certain investigation, he will find some minor
flaws and problematic spots. Let us also imagine that the IPCC commissions a
barrister who has dealt with criminal cases for 20 years to be a professional
observer and this person works every day as an attorney in court dealing with
criminal cases. An example is the Crown Prosecutor Mr Peter NGUYEN
Van-tu, QC, who is about to leave the Legal Department. If he is appointed as a
professional observer to conduct ad hoc observation of certain investigations,
following up on them, seeing how the statements are taken and how evidence is
collected, it will definitely enhance the observation power of the IPCC. I am
talking about monitoring rather than investigating. He can also give us very
good professional advice, suggesting how we can design the monitoring
framework or how to conduct ad hoc observations or what we should look for
and what are the important points to take note of when conducting ad hoc
observations. In fact, the expertise of these professionals is very important.
I hope that all colleagues will give their support this amendment, which
does not bar the appointment of civil servants such as administration personnel to
provide their assistance to the IPCC. Therefore, it does not involve tremendous
manpower, personnel or recruitment problems right from the very beginning as
170
LEGISLATIVE COUNCIL — 23 June 1997
described by the Government. The IPCC will also have a secretariat similar to
that of the Legislative Council Secretariat, in which the Secretary General is
responsible for recruitment of staff ever since its establishment. I think that this
is absolutely viable and helpful.
Proposed amendment
Clause 6 (see Annex III)
CHAIRMAN (in Cantonese): I will call upon Mr WONG Wai-yin to speak on
the amendments proposed by Mr James TO as well as his own proposed
amendments, but I will not ask Mr WONG to move his amendments unless Mr
TO's amendments have been negatived. If Mr James TO's amendments are
agreed, that will by implication mean that Mr WONG's proposed amendments are
not approved.
MR WONG WAI-YIN (in Cantonese): Mr Chairman, this Council has just
passed the amendments moved by the Secretary for Security to empower the
Independent Police Complaints Council (IPCC) to appoint its own Secretary and
Legal Adviser.
In fact, in the course of scrutinizing the Bill, Members of the Bills
Committee expressed the hope that the whole Secretariat could become
independent, because this would be the only way for the IPCC to become truly
independent. However, for some objective reasons, the Administration only
agreed to move amendments to allow the IPCC to appoint its own Secretary and
Legal Adviser. The independence of the Secretariat was to be dealt with
through amendments proposed by the Bills Committee.
Members of the Bills Committee did not raise any objections to the
proposed amendments at the Bills Committee meetings and we were all in favour
of an independent Secretariat. However, during the Second Reading of the Bill
and our debate on this Bill, it seems to me that some colleagues have "changed
their opinions" and that is, they have "changed their position". Therefore,
though the Bills Committee has unanimously agreed that as the Chairman, I
should move the amendments on their behalf. I think now the matter will have to
be put to vote.
LEGISLATIVE COUNCIL — 23 June 1997
171
As many colleagues have indicated, we hope that the whole Complaints
Against Police Office (CAPO) can become independent. However, this Bill is
not related to the CAPO, and we can only consider how to amend the IPCC Bill
to enable the IPCC to become more independent, and to enable the IPCC to gain
the recognition of the public as an independent body.
Therefore, I think the IPCC should be given the power to appoint its own
Secretary and Legal Adviser as well as other technical and professional staff, so
as to give true expression to its independence, and to enable it to exercise its
functions and powers in accordance with the provisions of the Bill. In order to
allow the IPCC to make flexible arrangements, it should be given the power to
decide whether such staff are to be seconded from the civil service or to be
recruited from outside the civil service. Moreover, the IPCC should only be
allowed to exercise this power starting from the date specified in the resolution
of this Council.
In fact, in the course of scrutinizing the Bill, the Administration has not
opposed to the independence of the IPCC Secretariat in principle. The reasons
cited by the Administration for not supporting our amendment were mostly based
on administrative and technical grounds, and the Administration is also worried
that the Secretariat may not be able to employ qualified staff due to its small
establishment. As many of my colleagues have pointed out, at present, apart
from the Secretariat of this Council, the Office of the Privacy Commissioner for
Personal Data Secretariat and the Office of the Ombudsman Secretariat have also
become independent. Though these secretariats are not big establishments, it
seems that they have all been able to employ an adequate number of qualified
staff to support the Commissioners in discharging their duties and enforcing the
provisions of the related Ordinances.
On the other hand, we believe that within the community, there are people
who may be very interested in this type of work. They may want to contribute
to this cause, and will be willing to join the Secretariat regardless of the rank and
promotion prospects of the job or even the remuneration. However, the
Administration is not even willing to give the public a chance to see whether they
want to participate in this kind of work. We believe there will be members of
the public who are willing to contribute to the furtherance of justice and
protection of public rights. Therefore, we do not need to worry that the
Secretariat will not be able to employ its own staff after it becomes independent.
172
LEGISLATIVE COUNCIL — 23 June 1997
Moreover, we have also explained that after the amendments are made, the IPCC
can still choose between recruiting staff from outside the civil service or to retain
the serving civil servants by way of secondment. After the amendments are
made, the only change is that the Chairman of the IPCC will be entrusted with
the power of making decisions.
I hope Members will support the amendment which I am going to move on
behalf of the Bills Committee, and that the Administration will not oppose it.
Thank you, Mr Chairman.
MRS SELINA CHOW: Mr Chairman, I do not wish to waste Members' time to
reiterate the arguments which I have already expressed during the Second
Reading of the Bill.
I only want to say that our objection to Mr TO's amendment is based on the
fact that it goes even further than the amendment proposed by Mr WONG in the
sense that only the Chairman is given that power to appoint. And we believe
that it is not appropriate to have the Chairman assume this power without any
conditions of accountability or terms attached to that.
So, we oppose the amendment.
MISS EMILY LAU (in Cantonese): Mr President, I would like to respond to the
Honourable WONG Wai-yin's remarks just now. He has said that we can allow
the Independent Police Complaints Council (IPCC) to flexibly choose civil
servants or non-civil servants. Actually, I disagree with this view. In my
opinion, no staff of the IPCC should be civil servants. From this, Mr Chairman,
we can see how much compromise Members have made in the process.
However, the Government does not appreciate this at all and it remains as
stubborn as ever. I really have to tell the Secretary for Security that the public
will not be fooled by him. He should not think that people will be deceived to
believe that it is independent just because of the appointment of one or two top
people. The public never yield. As pointed out by some Members, if they
cannnot achieve their goal today, they will strive on until the establishment of an
LEGISLATIVE COUNCIL — 23 June 1997
173
independent mechanism, so that the IPCC can really conduct independent
investigations and be fair to the complainants and the Police Force alike. This
is already a large concession. It is a hard thing for me to support this
amendment.
MR ALBERT HO (in Cantonese): Mr Chairman, I would also like to reiterate
that this Bill represents only a partial reform. With this so-called partial reform,
the so-called independence of the Independent Police Complaints Council
(IPCC) will substitute for an independent Complaints Against Police Office
(CAPO). This is actually an unacceptable proposal. However, under the
present circumstances, we can only take this step first. At the same time, I have
to stress that our ultimate goal is an independent CAPO. Now, although we
have accepted the partial reform and the IPCC as a substitute, the Government is
still against the establishment of an independent Secretariat. People cannot help
wondering whether we are really determined to enable it to operate
independently and help it gain credibility and public confidence. Actually, we
only hope that such a system can help regain the confidence of some members of
the public.
I really do not understand why the Government resists the idea so
vehemently and has such strong reservations about whether the Chairman of the
IPCC should be a civil servant or not, or whether the incumbent Chairman should
remain in office. Actually, this will not have much impact on the Government.
The Government has mentioned a few major principles, such as not to affect the
morale of the police and cause much operational confusion. However, this
matter has nothing to do with these major principles at all. We are just
considering an important principle, which is giving the IPCC an independent, or
at least a seemingly independent secretariat. If the Government is not going to
allow this, how can we trust the sincerity of the Government in establishing a
credible IPCC? This is really very disappointing. I hope that after everyone of
us has expressed such strong views, the Government will reconsider whether it
should resist every step so strongly. Should it not give more independence to
the IPCC? Second, I very much hope that members of the Bills Committee will
support this, although they are unable to agree on some important issues, such as
the issue of investigative power. I know that members of the Bills Committee
still have fundamental differences about this. However, I really do not think
there are strong objections to this matter. Actually, with independent statutory
bodies, the establishment of an independent secretariat is merely a general and
174
LEGISLATIVE COUNCIL — 23 June 1997
basic requirement. If this cannot be done, one must explain why. We should
not make some feeble excuses to resist the establishment of an independent
secretariat. Therefore, I repeat that I hope Members will support the
amendment of the Bills Committee, and that the Government will support the
majority view of the Bills Committee, and no longer strongly oppose the
establishment of an independent secretariat.
MISS EMILY LAU (in Cantonese): Mr Chairman, I have some more points to
make. The more strongly the Government opposes the proposal, the more
clearly I see it — the Independent Police Complaints Council (IPCC) will never
become independent. The Government would not allow this because it is not
supposed to become independent. This is very wrong. Look at the Secretary
General and Assistant Secretary Generals of this Council who are here. They
work independently. If their staff were all civil servants, I believe they would
most probably resign, because they would know that they could not work
properly. Who would those civil servants be accountable to? To the big boss,
of course. Why would they listen to their heads sitting here who are so-called
non-civil servants? Therefore, I am seeing more and more clearly the genuine
intention of the Government. It is saying, "Fine, I will let you off once. What
is there to be afraid of? All the people are mine anyway." What a sham. Mr
Chairman, I am not saying that you are a sham. I am saying that the
Government is a sham.
CHAIRMAN (in Cantonese): Mr James TO, I suggest that you combine your
speech with your reply after the Secretary for Security has spoken.
MR WONG WAI-YIN (in Cantonese): Thank you, Mr Chairman. As the
Honourable Emily LAU said, 13 meetings had been held during the scrutiny of
the Bill. I can summarize our situation as being "servile for survival". At the
early stage, the Administration revealed that should this Council move any major
amendment, it would withdraw the Bill. We were afraid that we could achieve
nothing at the end of the day. However, during the scrutiny process, we came to
realize that if the Administration refused to make a concession, we could achieve
nothing either. In the end, we might be unable to uphold public justice.
Possibly, the number of assault cases would still stand over one thousand each
LEGISLATIVE COUNCIL — 23 June 1997
175
year. If so, what was the point of passing this Bill? So we earnestly hoped
that we could maintain dialogue with the Administration through the Bills
Committee in order to ......
CHAIRMAN (in Cantonese): Mr WONG Wai-yin, please speak on this
particular clause.
MR WONG WAI-YIN (in Cantonese): Mr Chairman, I just want to point out
that we have made a lot of compromise in order to arrive at the amendment we
now have. As Chairman of the Bills Committee, I am obliged to urge for
Members' support to the amendment proposed by the Committee. But I do not
know whether the Committee has to entreat Members to do so. But during the
Second Reading debate, the Honourable Eric LI, as the vice-chairman of the
Independent Police Complaints Council ......
CHAIRMAN (in Cantonese): Mr WONG Wai-yin, please do not go beyond the
scope of the debate. Please speak on the amendment.
MR WONG WAI-YIN (in Cantonese): Mr Chairman, please let me finish my
last sentence. Just now, Mr Eric LI said that he strongly supported what Mr
James TO had been fighting for in this direction and even if he lost, he should
keep on fighting for that. However, he would not support the amendment of the
Committee. I do not understand what Mr LI meant by that. What we propose
is to empower the Independent Police Complaints Council (IPCC) to appoint its
own staff. Do the three Members of the Legislative Council who are also the
vice-chairmen of the IPCC think that even if such power is conferred on them,
they do not want it? I am very puzzled. We propose to empower the IPCC to
appoint its staff but they do not want the power. I would like to listen to the
views of the three Members who are vice-chairmen of the IPCC as to why they
do not want such power despite the proposal of this Council to grant them such
power.
Thank you, Mr Chairman.
176
LEGISLATIVE COUNCIL — 23 June 1997
MR BRUCE LIU (in Cantonese): Mr Chairman, I speak on behalf of the Hong
Kong Association for Democracy and People's Livelihood (ADPL). With
regard to this amendment, the ADPL supports that the Independent Police
Complaints Council (IPCC) should set up a secretariat, which should be staffed
by professionals and suitable persons to assist the IPCC in discharging its
functions and powers. There are two reasons. First, as a matter of logic, we
should support the Honourable James TO's amendment. If we support the IPCC
to have its own investigative power and implement the IPCC Observers Scheme,
then when the interim report of the Administration is found to be unsatisfactory
and witnesses have to be interviewed, we need suitable people to do the job.
Who should do the job for us? Of course, it should be the secretariat which is
manned by reliable, sufficient and suitable personnel. Is it possible for the
IPCC members to do the job themselves? Basically this is impossible unless
they are employed on a full-time basis. So, logically an effective secretariat is
needed. This is the first point. Secondly, the wording of the amendment is to
avoid a charging effect. So if this amendment is endorsed, I hope the
Administration can propose an effective date so that it can become effective as
soon as it is passed by this Council. Thank you, Mr Chairman.
SECRETARY FOR SECURITY: Mr Chairman, the Administration does not
support the amendment moved by the Honourable James TO or a similar
amendment proposed by the Honourable WONG Wai-yin.
Either of these amendments would unnecessarily burden the IPCC with the
responsibility of recruiting and managing supporting staff in the Secretariat.
The Bills Committee did not, as far as I know, disagree with the Administration
that the existing arrangements of seconding civil servants to the IPCC Secretariat
had not in practice affected the independence of the IPCC. I do not think I can
accept the assertion by the Honourable Miss Emily LAU that all civil servants
are biased towards the police.
To address Members' concern regarding the need to enhance the public
perception of the independent image of the IPCC, we have agreed to empower
the IPCC to appoint its own Secretary and Legal Advisor. This should go a
long way in addressing Members' concern. It is, therefore, unnecessary to
empower the IPCC to appoint other supporting staff who report to the Secretary.
LEGISLATIVE COUNCIL — 23 June 1997
177
Members should note that, unlike other secretariats of statutory bodies, the
IPCC does not have a full-time chairman or executive as its head. To empower
the IPCC to appoint all staff of the Secretariat and to look after their career, pay,
terms and conditions of service, and so on, would impose an unnecessary
administrative burden on the IPCC or its Chairman.
Thank you, Mr Chairman.
MR JAMES TO (in Cantonese): Mr Chairman, I would like to respond to the
Honourable Selina CHOW's remarks and explain, for Members' benefit, the
difference between the Honourable WONG Wai-yin's amendment and mine.
CHAIRMAN (in Cantonese): Mr James TO, it is time for you to reply and you
can reply to all issues.
MR JAMES TO (in Cantonese): I know. Perhaps Members would compare
my amendment with Mr WONG Wai-yin's. Initially I supported Mr WONG's
amendment. But according to the legal advice I sought afterwards, if the whole
Independent Police Complaints Council (IPCC) takes part in the staff recruitment
exercise, then it would need the whole IPCC to pass a resolution, be it a written
one, to employ, say, a typist. If that were the case, the Administration might
worry that this would be too cumbersome. But if the appointment power is
conferred on the Chairman alone, Mrs Selina CHOW would say, "Oh, no, the
Chairman has too much power indeed." Certainly, when important appointment
is to be made, it should involve all IPCC members. But as for many minor
employment terms and conditions, the Chairman and the Secretary can handle
them without bothering the whole IPCC. So my amendment is worded in such a
way that the Chairman is conferred with the power for staff appointments. It
does not matter which amendment Members consider correct. If Members think
that an independent secretariat should be set up as a matter of principle, it is fine
even if you do not support my amendment. But I hope you would support Mr
WONG Wai-yin's.
Question on Mr James TO's amendment put.
178
LEGISLATIVE COUNCIL — 23 June 1997
Voice vote taken.
THE CHAIRMAN said he thought the "Ayes" had it.
Mr IP Kwok-him, Mr Ronald ARCULLI and Dr Philip WONG claimed a
division.
CHAIRMAN (in Cantonese): Committee will now proceed to a division. The
division bell will be rung for one minute.
CHAIRMAN (in Cantonese): I would like to remind Members that they are now
called upon to vote on the question that the addition of subclauses (3) and (4)
moved by Mr James TO be approved.
Will Members please register their presence by pressing the top button and
then proceed to vote by pressing one of the three buttons below?
CHAIRMAN (in Cantonese): Before I declare the result, Members may wish to
check their votes. Are there any queries? The result will now be displayed.
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 Eric LI, Mr Fred LI, Mr James TO, Dr
YEUNG Sum, Mr WONG Wai-Yin, Miss Christine LOH, Mr LEE Cheuk-Yan,
Mr Andrew CHENG, Dr Anthony CHEUNG, Mr Albert HO, Mr LAU
Chin-shek, Dr LAW Cheung-kwok, 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.
LEGISLATIVE COUNCIL — 23 June 1997
179
Mr Allen LEE, Mrs Selina CHOW, Mr LAU Wong-fat, Mr Edward HO, Mr
Ronald ARCULLI, Mrs Miriam LAU, Mr Henry TANG, Dr Philip WONG, Mr
Howard YOUNG, Mr James TIEN, Mr CHAN Kam-lam, Mr CHAN Wing-chan,
Miss CHAN Yuen-han, Mr Paul CHENG, Mr CHENG Yiu-tong, Mr CHEUNG
Hon-chung, Mr CHOY Kan-pui, Mr David CHU, Mr IP Kwok-him, Mr Ambrose
LAU, Mr LEE Kai-ming, Mr LO Suk-ching and Mr NGAN Kam-chuen voted
against the amendment.
THE CHAIRMAN announced that there were 30 votes in favour of Mr James
TO's amendment and 23 votes against it. He therefore declared that the
amendment was carried.
CHAIRMAN (in Cantonese): Mr WONG Wai-yin, as Mr James TO's
amendment has been agreed, you may not move your amendment as it is
inconsistent with the decision already taken.
Now it is time for Mr WONG Wai-yin to move an amendment to the
heading. Mr WONG Wai-yin, are you prepared for that? Do you need a
five-minute break because there is no such arrangement in the script.
MR WONG WAI-YIN (in Cantonese): Mr Chairman, let us have a five-minute
break.
2.39 pm
Sitting suspended.
2.43 pm
Committee then resumed.
CHAIRMAN (in Cantonese): My apology, Members. No amendment is
needed because Mr James TO has already moved an amendment to the heading.
180
LEGISLATIVE COUNCIL — 23 June 1997
Secretary for Security, as the amendment to the heading of clause 6 and
other amendments proposed by Mr James TO have been agreed, you may not
move your amendment to the heading of clause 6.
Clause 11
MR JAMES TO (in Cantonese): Mr Chairman, I move the amendments to
clauses 11(3) and (4) as set out in the paper circularized to Members.
Mr Chairman, the two amendments can be divided into two parts. The
first part is concerned with the situation when the Independent Police Complaints
Council (IPCC) has to be accountable to the public or disclose certain
information in its annual report which is considered to be necessary in order to be
accountable. As for some complaint cases, names of the parties may be deleted
before they are published in its annual report. However, even though the names
have been deleted, the Governor can exercise his power to prevent the disclosure
of such information which he considers may prejudice security.
In this connection, I propose to substitute the word "will" for "might" in
order to set a higher trigger point so that the Governor can only prevent the
disclosure only when he believes that such disclosure will prejudice security of
Hong Kong. Why does the word "might" have to be substituted by "will"? In
fact, what we are discussing is the scenario in which the IPCC still comes to a
view that the information should be disclosed after having considered all factors.
In other words, the IPCC is of the view that these cases are so serious that they
should be disclosed. If the Governor still thinks that such information should
be kept under wraps, I believe the trigger point should be of a higher standard.
The second part deals with clause 11(4), which is concerned with
unauthorized disclosure of information. I insert the phrase "without lawful
excuse or reason" because we may not be able to think of all scenarios in detail
when we draft these offence clauses. This phrase is commonly used in secrecy
provisions or offence clauses because we may not be able to think of all
exceptional cases when we draft these provisions. The addition of the phrase
"without lawful excuse or reason" in the provision will enable the courts to
LEGISLATIVE COUNCIL — 23 June 1997
181
exempt certain offences and absolve relevant parties based on technical reasons,
for example, in its final deliberation. So, the premise is that the courts will
make reference to and base on many precedents and will not give a broad
interpretation to the phrase "lawful excuse". Furthermore, if the defendant tries
to make use of this as a ground for defence, under Chapter 1, Laws of Hong
Kong, the onus of proof will lie with him.
Proposed amendment
Clause 11 (see Annex III)
SECRETARY FOR SECURITY: Mr Chairman, the Administration does not
support the amendments moved by the Honourable James TO because they
would defeat the very purpose of the secrecy provision. It is important that
Independent Police Complaints Council (IPCC) Members should maintain strict
confidentiality over information which come to their knowledge in the course of
discharging their duties to monitor complaints against police cases except in the
circumstances as set out in clause 11(2) of the Bill. This is to ensure public
confidence that confidential information, particularly of a personal nature, will be
protected by everyone.
Mr TO's proposed amendment to clause 11(3) would also fetter the
discretionary power of the Governor to prevent the disclosure of matters which
may prejudice security, defence or international relations or would be contrary to
public interest if disclosed. Given the importance of the matters concerned, we
are strongly opposed to such an amendment.
Question on the amendment put.
Voice vote taken.
THE CHAIRMAN said he thought the "Ayes" had it.
Mr IP Kwok-him and Mr Ronald ARCULLI claimed a division.
182
LEGISLATIVE COUNCIL — 23 June 1997
CHAIRMAN (in Cantonese): Committee will now proceed to a division.
CHAIRMAN (in Cantonese): I would like to remind Members that they are now
called upon to vote on the question that the amendment to clause 11(3) and (4)
moved by Mr James TO be approved.
Will Members please register their presence by pressing the top button and
then proceed to vote by pressing one of the three buttons below?
CHAIRMAN (in Cantonese): 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, Mr Albert CHAN, Mr CHEUNG Man-kwong,
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, Miss Christine
LOH, Mr LEE Cheuk-Yan, Mr Andrew CHENG, Dr Anthony CHEUNG, Mr
Albert HO, Mr LAU Chin-shek, Mr LEUNG Yiu-chung, 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 Allen LEE, Mrs Selina CHOW, Mr NGAI Shiu-kit, Mr LAU Wong-fat, Mr
Edward HO, Mr Ronald ARCULLI, Mrs Miriam LAU, Dr LEONG Che-hung,
Mr Frederick FUNG, Mr Eric LI, Mr Henry TANG, Dr Philip WONG, Mr
Howard YOUNG, Mr James TIEN, Mr CHAN Kam-lam, Mr CHAN Wing-chan,
Miss CHAN Yuen-han, Mr Paul CHENG, Mr CHENG Yiu-tong, Mr CHEUNG
Hon-chung, Mr CHOY Kan-pui, Mr David CHU, Mr IP Kwok-him, Mr Ambrose
LAU, Dr LAW Cheung-kwok, Mr LEE Kai-ming, Mr Bruce LIU, Mr LO
Suk-ching, Mr MOK Ying-fan and Mr NGAN Kam-chuen voted against the
amendment.
THE CHAIRMAN announced that there were 25 votes in favour of the
amendment and 30 votes against it. He therefore declared that the amendment
was negatived.
CHAIRMAN (in Cantonese): Mr James TO, still on clause 11, please.
LEGISLATIVE COUNCIL — 23 June 1997
183
MR JAMES TO (in Cantonese): Mr Chairman, I move that clause 11 be
amended by adding subclause (4A), as set out in the paper circularized to
Members.
Mr Chairman, this is a defence provision which is copied from section 30,
Prevention of Bribery Ordinance. We have debates on this over the past years
and the Honourable Christine LOH is quite familiar with it. This provision
stipulates the grounds for defence when a person is charged of disclosure of
information. Subclause (4A) stipulates that the members of the Independent
Police Complaints Council (IPCC) should respect confidentiality because they
have access to information which is related to investigation of cases or security
matters. Like many other secrecy provisions, this provision has provided for the
possibility of an extreme situation where the police or other institutions (the
IPCC mainly deals with the police) is found to be engaged in unlawful activities,
abuse of power, serious neglect of duty or other serious misconduct or activities
that pose a serious threat to public order or to the security of Hong Kong or to the
health or safety of the public. This wording is not written by me. It is set out
in section 30, Prevention of Bribery Ordinance. The Government thinks that
such wording is unequivocal and terms with broad meaning like "public interest",
which is always subject to debate, will not be adopted by the courts in deciding
whether the defendant can make use of it for defence. In view of this, the
provision is very specific and not loose because there are many precedents to
illustrate what is an unlawful activity, abuse of power, serious neglect of duty or
a serious threat to the security of Hong Kong. This is unlike the public interest
provision in the Official Secret Act on which debates were held some time ago.
Members considered this term carrying very broad meaning. Athough I
disagree with them, I have further narrowed down the term "public interest"
under subclause (4A) to "certain kinds of public interest" to make it
unambiguous and enforceable.
In my opinion, the IPCC members should respect confidentiality under
general circumstances. But subclause (4A) enables a proper balance to be
struck in those situations.
After having considered the Government's
suggestion, we allow the insertion of an exceptional provision as a defence for
the informer even for cases which are considered strictly confidential like
investigations being conducted by the Independent Commission Against
184
LEGISLATIVE COUNCIL — 23 June 1997
Corruption. As the onus of proof lies with the defendant inistead of the
Government, I am sure the provision will not be abused. On top of that, all
IPCC members are learnt people who are appointed by the Government and
command the respect and confidence of the community, as the Honourable Bruce
LIU said. If, under certain circumstances, they think they have no alternative
but to reveal serious neglect of duty and unlawful activities committed by the
Government, I am sure they will take it cautiously. So, I hope Members can
support this defence provision because precedents have already been set by the
Government.
Proposed amendment
Clause 11 (see Annex III)
MR BRUCE LIU (in Cantonese): Mr Chairman, on behalf of the Hong Kong
Association for Democracy and People's Livelihood (ADPL), I speak in support
of the defence provision in subclause (4A) moved by the Honourable James TO.
The major principle is that members of the Independent Police Complaints
Council (IPCC) have to respect confidentiality because the matters they deal with
are very sensitive. The public lodge complaints to the IPCC because they trust
it and the IPCC is responsible for monitoring any neglect of duty committed by
the entire Police Force. So the information they have access to is highly
sensitive and should be kept confidential. But exceptional situation should be
allowed so that the defendants can defend themselves and explain why they have
to reveal the information. The wording of Mr TO's amendment is copied from
section 30 of the Prevention of Bribery Ordinance, which had been thoroughly
debated when it was enacted. These are suitable grounds of defence which have
been stated unambiguously and would not be abused. After all, it is a matter of
trust. The Government places much trust in the operational personnel of the
Independent Commission Against Corruption that they will not disclose
information arbitrarily. I also hope that the Government would trust the IPCC
members that they will not arbitrarily disclose such important information unless
they have a ground for defence. We support the amendment.
Thank you, Mr Chairman.
MRS SELINA CHOW: Mr Chairman, the Liberal Party opposes this
amendment because we believe that this amendment would in fact allow the
integrity of the Council to be somewhat compromised. It seems that it would in
fact be up to the member of the Council to decide whether this disclosure is
justified. And we believe that if the Council is going to function effectively in a
LEGISLATIVE COUNCIL — 23 June 1997
185
secure manner, in terms of taking evidence and deliberating, they should be
doing so under circumstances where no disclosure, no public disclosure would
actually threaten such frankness.
SECRETARY FOR SECURITY: Mr Chairman, the Administration does not
support the proposed amendment moved by the Honourable James TO.
The proposed amendment would allow the use of very broad grounds as a
defence for unauthorized disclosure of confidential information which may
include information of a personal nature pertaining to the complainant, the
complainee or witness, whose privacy should be respected. This would be
contrary to the purpose of a secrecy provision and would adversely affect public
confidence on the integrity of the IPCC system.
For these reasons we are strongly opposed to it.
Question on the amendment put.
Voice vote taken.
THE CHAIRMAN said he thought the "Ayes" had it.
Mr IP Kwok-him and Mr Ronald ARCULLI claimed a division.
CHAIRMAN (in Cantonese): Committee will now proceed to a division.
CHAIRMAN (in Cantonese): I would like to remind Members that they are now
called upon to vote on the question that the amendment to clause 11 by the
addition of subclause (4A) moved by Mr James TO be approved.
Will Members please register their presence by pressing the top button and
then proceed to vote by pressing one of the three buttons below?
186
LEGISLATIVE COUNCIL — 23 June 1997
CHAIRMAN (in Cantonese): 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 Eric LI, Mr Fred LI, Mr James
TO, Dr YEUNG Sum, Mr WONG Wai-Yin, Miss Christine LOH, Mr LEE
Cheuk-Yan, Mr Andrew CHENG, Dr Anthony CHEUNG, Mr Albert HO, Mr
LAU Chin-shek, Dr LAW Cheung-kwok, 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 Allen LEE, Mrs Selina CHOW, Mr NGAI Shiu-kit, Mr LAU Wong-fat, Mr
Edward HO, Mr Ronald ARCULLI, Mrs Miriam LAU, Mr Henry TANG, Dr
Philip WONG, Mr Howard YOUNG, Mr James TIEN, Mr CHAN Kam-lam, Mr
CHAN Wing-chan, Miss CHAN Yuen-han, Mr Paul CHENG, Mr CHENG
Yiu-tong, Mr CHEUNG Hon-chung, Mr CHOY Kan-pui, Mr David CHU, Mr IP
Kwok-him, Mr Ambrose LAU, Mr LEE Kai-ming, Mr LO Suk-ching and Mr
NGAN Kam-chuen voted against the amendment.
THE CHAIRMAN announced that there were 31 votes in favour of the
amendment and 24 votes against it. He therefore declared that the amendment
was carried.
CHAIRMAN (in Cantonese): Both the Secretary for Security and Mr James TO
have separately given notices to move amendments to clause 11 by the addition
of subclause (5) to the clause.
I propose that the amendments, proposed separately by the Secretary for
Security and Mr James TO, be debated together in a joint debate.
Committee shall debate the amendments. I will first call upon the Secretary
for Security to move his amendment as he is the public officer in charge of the
Bill.
LEGISLATIVE COUNCIL — 23 June 1997
187
SECRETARY FOR SECURITY: Mr Chairman, I move that clause 11 be
amended by adding subclause (5) as set out in the paper circularized to Members.
This clause is mainly consequential to the amendment to clause 6(1).
Since the Honourable James TO's proposed amendment to clauses 6(3) and (4)
have been passed, the Administration therefore has no objection to his proposed
amendment which would extend the coverage of the secrecy provision to other
staff of the Secretariat.
Mr Chairman, I beg to move.
Proposed amendment
Clause 11 (see Annex III)
CHAIRMAN (in Cantonese): I will call upon Mr James TO to speak on the
amendment moved by the Secretary for Security as well as his own proposed
amendment, but will not ask Mr TO to move his amendment unless the Secretary
for Security's amendment has been negatived.
MR JAMES TO (in Cantonese): Mr Chairman, this amendment seeks to extend
the secrecy provision to the independent secretariat I mentioned earlier because
some of its staff may not be civil servants. Civil servants are subject to the
provisions of the Official Secret Acts, but it is necessary to extend the coverage
to staff of the secretariat who are not in the Civil Service, such as those recruited
from other sectors. My amendments and those of the Administration are
different in that those of the Administration are made under the assumption that
Members voted against an independent secretariat. In that case, the provision
on secrecy would not cover those staff who are not civil servants. However,
since Members have agreed to set up an independent secretariat which can
appoint staff from the Civil Service and other sectors, the secrecy clause should
be extended to cover the staff of the secretariat. Otherwise employees who are
not civil servants will not be subject to any secrecy provisions.
Question on the Secretary for Security's amendment put.
188
LEGISLATIVE COUNCIL — 23 June 1997
Voice vote taken.
THE CHAIRMAN said he thought the "Ayes" had it.
Mr James TO claimed a division.
CHAIRMAN (in Cantonese): Committee will now proceed to a division.
CHAIRMAN (in Cantonese): Mr James TO, do you have a point of order?
MR JAMES TO (in Cantonese): No, Mr Chairman, I just want to point out that
if Members support my amendment, they will have to vote against the
amendment moved by the Secretary of Security because his amendment has
already been moved.
CHAIRMAN (in Cantonese): Perhaps there are some ambiguities. Mr James
TO, did the Secretary for Security say that he supports your amendment?
MR JAMES TO (in Cantonese): Mr Chairman, if he supports my amendment,
this amendment should be negatived, but he has now moved this amendment.
Everything will be in order if he has not moved this amendment, but since he has
done so now, we have to vote against it before we can move on to my
amendment.
CHAIRMAN (in Cantonese): Members, let me explain this. Both the Secretary
for Security and Mr James TO have moved to amend clause 11(5), but the
amendment of the Secretary is narrower in scope while that of Mr James TO is
wider. The Secretary for Security has mentioned in his speech that due to what
LEGISLATIVE COUNCIL — 23 June 1997
189
has just happened, he will not object to the amendment which has a wider scope.
However, we have already arranged the order for moving the amendments, so we
will have to vote on the amendment of the Secretary for Security first. Mr
James TO, although the Secretary for Security does not object to your
amendment, it does not necessarily mean that he would support it. If you wish
to win, you have to defeat his amendments. One minute is almost up. Is
everything clear now?
I would like to remind Members that they are now called upon to vote on
the question that the amendments moved by the Secretary for Security to add
subclause (5) to clause 11 be approved.
Will Members please register their presence by pressing the top button and
then proceed to vote by pressing one of the three buttons below?
CHAIRMAN (in Cantonese): Still many 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 Edward HO, Mr Ronald ARCULLI, Mrs
Miriam LAU, Mr Henry TANG, Dr Philip WONG and Mr Howard YOUNG
voted for the amendment.
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 Eric LI, Mr Fred LI, Mr James
TO, Dr YEUNG Sum, Mr WONG Wai-Yin, Miss Christine LOH, Mr LEE
Cheuk-Yan, Mr Andrew CHENG, Dr Anthony CHEUNG, Mr CHEUNG
Hon-chung, Mr Albert HO, Mr LAU Chin-shek, Dr LAW Cheung-kwok, Mr
LEE Kai-ming, 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 against the amendment.
THE CHAIRMAN announced that there were eight votes in favour of the
amendment and 33 votes against it. He therefore declared that the amendment
was negatived.
190
LEGISLATIVE COUNCIL — 23 June 1997
CHAIRMAN (in Cantonese): As the amendment moved by the Secretary for
Security has been negatived, I now call upon Mr James TO to move his
amendment.
MR JAMES TO (in Cantonese): Mr Chairman, I move that clause 11 be
amended by adding subclause (5), as set out in the paper circularized to
Members.
As I explained earlier, it is necessary to ensure that the provision will
cover staff of the secretariat who may not be civil servants.
Proposed amendment
Clause 11 (see Annex III)
Question on the amendment put and agreed to.
Question on clause 11, as amended, put and agreed to.
Clauses 7 and 8
SECRETARY FOR SECURITY: Mr Chairman, I move that clause 7 be
amended as set out in the papers circularized to Members.
The amendment to clause 7(a) makes it explicit that the functions of the
IPCC is to monitor and to review, not just where it considers it appropriate, but
each and every complaint, the manner in which complaints are handled by the
police.
LEGISLATIVE COUNCIL — 23 June 1997
191
The amendment to clause 7(aa) and 7(d) make it explicit that the functions
of the IPCC is to review the findings of the investigations conducted by the
police in respect of complaints and to make recommendations in respect of such
findings.
The amendments are made in response to the Bills Committee's suggestion
to clarify the monitoring and reviewing functions of the Independent Police
Complaints Council Bill.
Mr Chairman, I beg to move.
Proposed amendment
Clause 7 (see Annex III)
MR JAMES TO (in Cantonese): Mr Chairman, the amendments to clause 7 are
indeed made in response to the suggestion of the Bills Committee. I support the
Secretary's amendments as they are independent and do not exclude Mr WONG
Wai-yin's amendment or the amendment to clause 7 I am going to move later.
Part of the amendment is of a technical nature, but it does serve to clarify some
ambiguities in the wording of the original provision.
Question on the Secretary for Security's amendment to clause 7 put and agreed
to.
MR JAMES TO (in Cantonese): Mr Chairman, I move the amendment to clause
7 and the amendments to clause 8 by adding subclause (1)(ba) and subclause
(1A), and move the first part of the amendment to clause 8(2), as set out in the
paper circularized to Members.
Mr Chairman, I believe that this is the most controversial provision in
today's debate. I do not know if the Government will withdraw this Bill
because of this provision, but there is no such indication so far. Some
Honourable Members pointed out that my proposal to add subclause (e) to clause
7 was to determine the investigation results in advance. The Honourable Mrs
Elizabeth WONG has further expressed her concern about it as she regards that
whether a complaint case is justified should be decided by the Commissioner of
192
LEGISLATIVE COUNCIL — 23 June 1997
Police, and not by the Independent Police Complaints Council (IPCC). As such
misunderstanding has arisen, I think that I have to explain it clearly. Some
Members may disapprove that the IPCC can investigate again after the
Complaints Against Police Office (CAPO) has finished an investigation. It
should be fine even if the IPCC cannot investigate again because there will at
least be some investigation reports. The so-called "to decide a result" means
that if the IPCC members notice any inconsistence while reading the
investigation report, such as whether assaults or frame up are involved, they will
consult legal advisers such as the Legal Adviser of the Secretariat of this Council
or those of the Legal Department. With such evidence and the onus of proof
applicable, whether the case concerned, that is, the complaint case, is justified
can be decided.
Of course, the CAPO will have its views and consider that the case in
question is not justified. But with the same proof, the IPCC members may take
a different view. Therefore, the IPCC should be allowed to express its opinion
about the investigation report and considers that the complaint should be
justified.
I can tell Honourable Members that in many of the previous cases, the
IPCC and the CAPO often had arguments about whether certain complaint cases
should be justified. The vice-chairmen of the IPCC now present should be very
clear about it. However the arguments do not rule out the possibility that the
IPCC still maintains its own opinion. The provision I move now only points out
that the IPCC may decide its own views, inclination and judgement, and has the
power to believe that a case is justified or otherwise.
Lastly, I hope Members understand that even if the IPCC believes the case
to be justified, the provision I move now only states that the IPCC will advise the
Commissioner of Police on the ways to follow up the case. It is just an advice,
not an order. Honourable Members should note that I do not order the
Commissioner of Police to take disciplinary actions, or order the Attorney
General to proceed with the prosecution. It is not the case at all. The Attorney
General acts in accordance with the laws, and the Commissioner of Police
decides if actions should be taken in accordance with the standard of proof
required in the disciplinary procedures or subject to relevant policies. I am
absolutely not saying that the IPCC can replace the Commissioner of Police who
possesses the power to decide whether a case is justified. I only say that the
LEGISLATIVE COUNCIL — 23 June 1997
193
IPCC may have its own decision after considering the cases in the investigation
report, while the Commissioner of Police may make a different decision.
As regards whether the decision of the IPCC is morally binding, I believe
that the views or conclusion on a case expressed by the IPCC, which is appointed
by the Governor, will surely influence the opinion of the Commissioner of
Police. However, it is just an influence and not an instruction that he must
follow. This is the first point.
Subclause (f) of clause 7 states that if the IPCC is not satisfied with the
investigation report submitted by the CAPO, it can conduct its own
investigations. I am not going to repeat the relevant arguments here. I just
want to tell the IPCC, especially its members, that the Government has in fact
told the IPCC if there are opposing views, the Governor can be invited to make
the final decision on how it should be handled. I have added this provision to
specify that the IPCC can initiate investigations of its own accord on any
complaint.
During the debate, some Members have suggested to the
Government that each side make some concession. For example, the IPCC can
only start its investigation with the Governor's consent. If the Government still
takes a firm stance and says "no", there is nothing we can help!
I hope we can see clearly that the Administration even refuses to add the
provision under which the IPCC must have the consent of the Governor before
carrying out any investigation. The Government obviously has an idea in mind:
if the IPCC is dissatisfied with an investigation conducted by the CAPO, it will
return the case to the CAPO for re-investigation; if it is still dissatisfied, the
CAPO will investigate again.
In fact, some IPCC members, who do not belong to the democratic camp,
have complained to me over the past few years that they feel tedious and
unhappy because of the extended and continuous seesaw battles in the IPCC.
Though the IPCC members obtain information such as medical reports, the
evidence and conclusion received after the Government has made investigation is
still the same. If the IPCC expresses that it is not satisfied, the Administration
will investigate again. This has made the IPCC bear no effect at all.
Therefore, I hope that we can resolve this so-called "fast knot" before
investigations are made.
194
LEGISLATIVE COUNCIL — 23 June 1997
In addition, the amendment to clause 8 about power and responsibilities
echos with the amendment to clause 7 moved just now. I hope that Members
will make a decision that will take a step forward.
Proposed amendments
Clause 7 (see Annex III)
Clause 8 (see Annex III)
SECRETARY FOR SECURITY: Mr Chairman, the Administration strongly
opposes the amendments moved by the Honourable James TO. I have given in
my speech at the resumption of Second Reading the reasons for opposing this
proposed amendment to empower the IPCC to investigate any complaint where it
is not satisfied with the investigation report of the police and to determine the
acceptability of findings and results of investigation. I will not repeat them
here.
I would, however, like to add that in the event the IPCC is not satisfied that
the investigation of a complaint by the police, the IPCC may make a report to the
Governor. The Governor may direct the Commissioner of Police as he sees fit
or the Governor may set up a commission of inquiry to look into the handling of
a complaint.
Mr TO's proposed amendments are unnecessary and highly inappropriate.
There should be no illusion that these amendments are totally, totally
unacceptable to the Administration. I therefore urge Members to consider
seriously the implication of such amendments being enacted. I strongly urge
Members to reject them.
Thank you, Mr Chairman.
MR JAMES TO (in Cantonese): Mr Chairman, the Secretary for Security has
said that there is a way out when the IPCC and the CAPO have opposing views,
namely the Governor may set up a commission of inquiry to look into the case.
I really cannot understand why the Secretary for Security has said so. The
LEGISLATIVE COUNCIL — 23 June 1997
195
general principle of the Government is that investigations on certain cases must
be conducted by professionals with adequate support. But how can the
commission of inquiry manage to do so? To take the Honourable Mr Justice
WOO's inquiry in the Garley Building fire incident as an example, there are just
several members in the investigation group, which may be smaller than the IPCC.
Besides, the IPCC has its own secretariat and some professionals appointed for
technical support. Therefore, I cannot really see why the Government cannot
assign the investigation to the IPCC, and instead, it thinks that the commission of
inquiry can conduct professional investigations and make fair conclusions.
In fact, the IPCC has a wide range of choices in appointing personnel to
take up the investigation work. For example, if we think that the Police Force
cannot take up the job, or we do not want to appoint them, or we are not satisfied
with the investigation report of the CAPO, we can invite overseas expert
consultants to make an investigation. There have been cases where some small
countries which lack professionals in the field invited the FBI of the United
States to assist in DNA analysis and asked the fingerprint specialist from the
Scotland Yard of Britain for assistance. To take MTR Corporation (MTRC) as
an example, the company has in fact appointed overseas experts, including the
mass transit railway consultants in Britain, to study the causes of train derail
incidents. Therefore, in practice, the IPCC can appoint professionals of all
fields to carry out intensive and extensive investigations. Moreover, I have
stated in related provisions that the IPCC reserves its right to cooperate with the
Commissioner of Police, such as to submit reports under certain circumstances,
or to re-examine blood, semen or hair samples. In fact, with the consent of the
Government and resources support, the IPCC can carry out fair and professional
investigations.
Question on Mr James TO's amendments to clauses 7 and 8 put.
Voice vote taken.
Mr TSANG Kin-shing claimed a division.
CHAIRMAN (in Cantonese): Committee will now proceed to a division.
196
LEGISLATIVE COUNCIL — 23 June 1997
CHAIRMAN (in Cantonese): I would like to remind Members that they are now
called upon to vote on the question that amendments to clauses 7 and 8, or
simply the "investigation rights", moved by Mr James TO be approved.
Will Members please register their presence by pressing the top button and
then proceed to vote by pressing one of the three buttons below?
CHAIRMAN (in Cantonese): Members may wish to check their votes. Are
there any queries? The result will now be displayed.
Mr Martin LEE, Mr SZETO Wah, Mr Albert CHAN, Mr CHEUNG Man-kwong,
Mr CHIM Pui-chung, 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, Miss Christine LOH, Mr Andrew CHENG,
Dr 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
and Dr John TSE voted for the amendment.
Mr Allen LEE, Mrs Selina CHOW, Mr NGAI Shiu-kit, Mr LAU Wong-fat, Mr
Edward HO, Mr Ronald ARCULLI, Mrs Miriam LAU, Dr LEONG Che-hung,
Mr Eric LI, Mr Henry TANG, Dr Philip WONG, Mr Howard YOUNG, Mr James
TIEN, Mr CHAN Kam-lam, Mr CHAN Wing-chan, Miss CHAN Yuen-han, Mr
Paul CHENG, Mr CHENG Yiu-tong, Mr CHEUNG Hon-chung, Mr CHOY
Kan-pui, Mr David CHU, Mr IP Kwok-him, Mr Ambrose LAU, Mr LEE
Kai-ming, Mr LO Suk-ching, Mr NGAN Kam-chuen and Mrs Elizabeth WONG
voted against the amendment.
Mr YUM Sin-ling abstained.
THE CHAIRMAN announced that there were 28 votes in favour of Mr James
TO's amendments and 27 votes against them. He therefore declared that the
amendments were carried.
LEGISLATIVE COUNCIL — 23 June 1997
197
SECRETARY FOR SECURITY: Mr Chairman, I move that clause 8 be further
amended as set out in the paper circularized to Members.
The amendments are made in response to the Bills Committee's
suggestions to make it explicit two existing practices of the police. One is to
empower the Independent Police Complaints Council (IPCC) to require the
Commissioner of Police to notify the complainant of the findings and the results
of the investigation of the complaint. The other is to empower the IPCC to
require the Commissioner to submit to the IPCC any report on any action taken
in respect of the recommendations made by the IPCC on a complaint.
Mr Chairman, I beg to move.
Proposed amendment
Clause 8 (see Annex III)
MR JAMES TO (in Cantonese): Mr President, I agree to amend these two
provisions. In fact, these two amendments were proposed by the Bills
Committee.
The clause (da) mentioned by the Secretary for Security just now stipulates
that the person who made the complaint has to be notified of the findings and the
results of the investigation in respect of his complaint, and the Government
alleges that it is doing so at present. I want to tell Members that, even though
this is really the Administration's practice at the moment, this clause was only
added to the Bill when Members asked the Secretary for Security to do so during
the examination by the Bills Committee. However, he is telling Members now
that he will move an important amendment, that is, the complainant will be
notified of the investigation result. Is it normal not to notify a complainant of
the result of his complaint? This is in fact legalizing an indispensible
procedure, but the Administration makes the addition of this clause sound like an
amendment and a further concession.
Clause (db) sets out that if the Independent Police Complaints Council
(IPCC) has proposed how the disciplinary proceedings against a police officer
concerned should be taken for an established complaint case, it will require the
Commissioner of Police (the Commissioner) to notify it of the action taken. So
198
LEGISLATIVE COUNCIL — 23 June 1997
now the Government alleges again that the Administration has clearly required
the Commissioner to notify the IPCC. However, please do not take things as
that simple. In fact, it is the result of the IPCC members' hard strives over the
last two to three years. It is only after many arguements that the Commissioner
is willing to notify the IPCC, but not Members of this Council or the
complainant, of the ruling or the result of the disciplinary inquiry. In other
words, the IPCC may think that the condition of abuse of power is very serious,
but three years ago, it had no right to know and it took it lots of struggling to
achieve this.
Mr Chairman, there is still one important point which the Government has
not included in the Bill. In these few days, we have been discussing about
abuse of power by police officers in a Subcommittee of the Panel on Security.
At present, the Administration would notify the IPCC of the result of a hearing,
such as whether a certain police officer will be punished by oral warning,
demotion or removal from office if the complaint against him is established.
The complainant, however, will not be notified at all. In other words, if a
member of the public lodges a complaint, the Complaints Against Police Office
will only give him a written reply, stating that his complaint is established and
the IPCC subscribes to the result of the investigation and thinks that the
complaint case is founded. Yet the complainant does not know that the
Commissioner will not notify him in future. Even if the behaviour of the police
officer concerned is found to be very serious and is eventually removed from
office, the Government will not notify the complainant even of such a simple
result. Why? The Government gave a very simple argument: it has to protect
privacy. I was in the meeting then, but all the Members present did not
understand this argument. Why? Suppose a police officer has done something
commendable, the Administration will hold a press conference and invite all the
reporters to come and take photographs. In the press conference, it will be
announced when police officer PC37084 rendered meritorious service, so now
the Commissioner is awarding him a medal, and then the case will be recounted
in detail, and so on and so forth. Strictly speaking, this is also the privacy of
that particular police officer. Even though he has done a deed of merit, this is
still his privacy and he need not tell anybody. However, only good news such
as a police officer awarded a medal for his courage will be released. Should he
be complained by a member of the public, saying that he has breached certain
rules, the Administration would avoid mentioning the case, even though it is so
serious that the police officer involved has to be given a written warning. Not
only the public are not informed, the complainant himself is not notified. You
LEGISLATIVE COUNCIL — 23 June 1997
199
can imagine how angry the complainant will be if he knows about the result that
such a serious assault only ends up in an oral warning! Yet this is the fact. In
the written question raised by the Honourable WONG Wai-yin in April this year,
it was pointed out that there were really complaint cases about fabricated
evidences. The results of the investigations in the end were just two words
written in black and white: oral warning.
We will, of course, agree to the amendments made by the Government in
these two clauses. But in fact, if the subcommittee under the Panel on Security
had discussed the issue earlier, I would have proposed to further amend them.
The Commissioner of Police would then have to notify not only the IPCC but
also the complainant of the results of the investigation, because this is normal
and reasonable. I hope that after the Ordinance is amended, the Government
will implement executive measures and notify the complainant of the relevant
results immediately after the investigation is completed.
Question on Secretary for Security's amendment to clause 8 put and agreed to.
MR WONG WAI-YIN (in Cantonese): Mr Chairman, I move that clause 8 of
the Bill be further amended as set out in the paper circularized to Members.
Mr Chairman, as I have briefly explained the background to this
amendment during the resumption of the Second Reading debate of the Bill, I
will now give some details on our proposal. The existing Independent Police
Complaints Council (IPCC) has since April 1996 implemented the IPCC
Observers Scheme. Under the Scheme, IPCC members may observe the
investigations of the Complaints Against Police Office (CAPO), both in scene
visit and statement taking through scheduled or ad hoc visits. Mr Chairman, it
is time-consuming to observe the investigations of CAPO. IPCC members, who
are already heavily involved with the regular work of IPCC, may not have the
time necessary to participate in the exercise regularly. The Bills Committee
considers that to assist the IPCC in performing its monitoring role, some other
observers, who are not IPCC members, should be engaged to observe the
investigations of CAPO. These persons, responsible to the IPCC, can be
experienced investigators, law experts or community leaders. Ideally, they
should be employed on a permanent full-time basis and are at liberty at any time
to inspect or observe the handling of complaints against the police by CAPO.
Regular reports on their observations would be submitted to IPCC. With these
200
LEGISLATIVE COUNCIL — 23 June 1997
measures in place, we firmly believe that public confidence in the whole police
complaints system would be greatly enhanced.
Mr Chairman, with these remarks, I propose this amendment on behalf of
the Bills Committee.
Proposed amendment
Clause 8 (see Annex III)
SECRETARY FOR SECURITY: Mr Chairman, the Administration does not
support the proposed amendment moved by the Honourable WONG Wai-yin.
We have already explained to the Bills Committee that we intend to
expand the IPCC Observer Scheme through appointing non-IPCC members to
assist the IPCC in observing the investigation of complaints by the police. We
have proposed to address this in a subsidiary legislation when the plan has been
finalised. It would therefore not be appropriate to make such a provision before
we have finalized the details.
Thank you, Mr Chairman.
MR WONG WAI-YIN (in Cantonese): Mr Chairman, in fact, when the Bill was
being scrutinized, the Secretary for Security had already made the point that it
was difficult to recruit suitable full-time observers. But the Bills Committee
Members did not agree with the Administration and all Members present at the
meetings supported the amendment I moved on their behalf.
When the Bill was under discussion, the Bills Committee members and the
Government entered into a dispute. Finally, the Government agreed that Bills
Committee members could participate in an interim observers scheme resembling
the IPCC Observers Scheme. It was open to the Bills Committee members and I
was one of participants. I visited different Complaints Against Police Offices
(CAPO) to read some case records. I also requested to be in attendance as an
observer when the complainants were being interviewed.
LEGISLATIVE COUNCIL — 23 June 1997
201
According to our experience, certain cases were so complicated that the
written records measured almost one or two feet in thickness. Members can
image the amount of information to go through for a particular case. And the
IPCC has to go through 20 to 30 cases a week. There will be some 3 000 cases
next year. Although most of the cases are relatively simple, some complicated
ones may require reference to the relevant information. My personal experience
as an interim observer tells that the work of an observer is rather
time-consuming. I had sat there for several hours yet the CAPO officer did not
even manage to take one sentence as part of the statement from the complainant.
As pointed out by many Members, there are many community leaders who are
very capable and the Government is willing to appoint them as members of some
advisory bodies or members of the IPCC. But they are already engaged in their
own business or other committee work which are arduous enough for them. To
sit on the IPCC will be much more arduous as its members have to go through
some written reports. I do not think part-time members can perform their
monitoring role comprehensively and effectively. In view of this, the Bills
Committee finally agreed that the Government should recruit professional and
full-time observers who would have sufficient time to effectively discharge the
monitoring function of the IPCC. I therefore urge for Members' support to the
amendment I propose on the behalf of the Bills Committee. Thank you,
Chairman.
Question on Mr WONG Wai-yin's amendment to clause 8 put and agreed to.
CHAIRMAN (in Cantonese): Mr James TO, still on clause 8 please.
MR JAMES TO (in Cantonese): Mr Chairman, may I ask if clauses 8(1)(fa) and
8(1)(fb) can be voted separately, or if I can first move the amendment and leave
you to decide? As the two amendments do not necessarily conflict or relate to
each other, perhaps I may move and speak on the amendments first and then you
will take a decision.
CHAIRMAN (in Cantonese): You can proceed with your speech first.
202
LEGISLATIVE COUNCIL — 23 June 1997
MR JAMES TO (in Cantonese): Mr Chairman, I move that clause 8 be amended
by adding subclauses (1)(fa) and (1)(fb), as set out in the paper circularized to
Members.
Regarding subclause (fa), my main objective is to state clearly that the
IPCC may refer cases to the Attorney General and the Independent Commission
Against Corruption (ICAC) for follow up, no matter what complaints it has
encountered. I want to explain why I consider it necessary to propose these
referrals. There are worries that the IPCC may pass all cases to the
Commissioner of ICAC or even the Attorney General without first making any
investigations itself. Of course the worries are unwarranted. Firstly, the Legal
Department is a department of law and it is not responsible for investigations;
secondly, the Attorney General will base on law and evidence to decide whether
prosection should be instituted in a case. He must act in accordance with the
law absolutely. It is even simpler for the ICAC or its Commissioner, as their
power is bound by the Independent Commission Against Corruption Ordinance,
the Prevention of Bribery Ordinance or related legislation, to look into corruption
cases, or crimes related to corruption. If the IPCC refers cases outside their
respective ambit, they have no power to conduct investigations, even if they wish
to do so. Why should it be stipulated clearly on the legislation? As the whole
organization is a statutory body now, I hope that existing non-statutory practices
can be stated in the legislation and become part of the Ordinance.
In addition, there are also worries that the IPCC will refer cases arbitrarily
after this clause is added. In fact, this will never happen. The IPCC has its
own legal advisers. He will study the cases before referring them to the ICAC.
If the statutory body is not authorized to look into the cases, it will be of no use
even if the cases are referred to it.. When a case is referred to the Attorney
General by the IPCC and even its legal adviser also think that there is no
possibility of any prosecution, it is again useless to refer the case to the Attorney
General, because he will not institute a prosecution. Therefore, our provisions
are worth adding.
Subclause (fb) states that the IPCC is entitled to ask the Commissioner of
Police to consult its opinions before making amendments to the internal codes of
practice or the Police Headquarter Order about handling complaints. My
argument of moving this amendment is very simple. Firstly, it is reasonable
because we are not talking about all the Police General Orders or Headquarter
Order. We just deal with the handling of complaints. Since handling
LEGISLATIVE COUNCIL — 23 June 1997
203
complaints against police officers is the duty of IPCC, it is unreasonable for the
police not to inform the IPCC when they have decided how to handle the
complaints. In addition, the amendment we have passed states that it will still
be investigated by the CAPO at the initial stage. Therefore how they will
handle the case, or what procedures they will take are obviously relevant to the
IPCC. Secondly, the Government claims that the existing approach also
includes the consultation of the IPCC when there is a need for amendment, but it
thinks that it is not desirable to put it down in writing. It is hard for us to
understand. If this is a standing practice, why is it impossible to write it down
as a provision? In the persuasion letter of the Administration addressed to
Honourable Members, the only reason given is that it is afraid that it will waste
the time of the IPCC if minor or peripheral amendments still require the IPCC to
conduct investigations or consultation. In fact, the IPCC has a practice of Paper
Resolution. When simple amendments are made to the Police General Orders, it
will only take the IPCC several days to arraive at a "Paper Resolution" after the
case is referred to the IPCC unless two committee members propose to discuss
those amendments. In other words, the process of amendment to the Orders by
the Commissioner of Police will not be unnecessarily delayed. Moreover, there
is normally a period of internal development before the Orders are amended. In
fact, the Administration may take the IPCC as one of the necessary consultation
bodies during the period of internal development. Similar to our normal
practice to submit the amendment to the Human Resources Department or the
Security Branch for study, it is now submitted to an additional organization, the
IPCC, for scrutiny. I think that the mechanism for statutory consultation will
not hold up relevant work, nor will it undermine the power of the Commissioner
of Police.
Proposed amendment
Clause 8 (see Annex III)
SECRETARY FOR SECURITY: Mr Chairman, first of all, I do not think there
is any particular point prolonging this debate in having separate voting for these
two subclauses. In any case the Administration does not support the proposed
amendment moved by the Honourable James TO to empower the Independent
Police Complaints Council (IPCC) to refer any matter in respect of a complaint to
the Attorney General and to the Independent Commission Against Corruption
(ICAC).
204
LEGISLATIVE COUNCIL — 23 June 1997
Referral to the Attorney General is unnecessary as the IPCC may already
do so under clause 8(1)(g). The proposed amendment to empower the IPCC to
refer any matter in respect of a complaint to the ICAC is inappropriate as the
ICAC should not be involved in the handling of non-corruption related
complaints.
The proposed amendment to empower the IPCC to require the
Commissioner of Police to consult the IPCC on any amendment to be made to the
Police General Orders or Headquarters Orders in respect of the handling of
complaints is not supported because it would mean that the Commissioner must
consult the IPCC on even the most trivial amendment.
Thank you, Mr Chairman.
MR JAMES TO (in Cantonese): Mr Chairman, I have to rebut the Government's
argument that we are trying to get the Independent Commission Against
Corruption (ICAC) involved in the investigation or handling of non-corruption
related complaints.
In fact, in my previous speech, I have already pointed out clearly that if the
case is neither related to corruption nor the Prevention of Bribery Ordinance, nor
the Independent Commission Against Corruption Ordinance, then even if the
case is referred to the ICAC, it has no statutory power to take any follow-up
action. I do not know whether the Government, by saying so, is misleading the
Councillors. I see the Honourable Ronald ARCULLI is shaking his head. I
would like to listen to his wisdom. I really want to know how the IPCC can
refer a non-corruption related complaint to the ICAC, which can then follow up
the case which is outside its jurisdiction. In my opinion, this is impossible.
CHAIRMAN (in Cantonese): I do not regard Mr James TO's speech as a reply.
MR RONALD ARCULLI (in Cantonese): Mr Chairman, to my understanding,
the Independent Commission Against Corruption (ICAC) would follow up on
each and every complaint they receive. It would not only follow up on
complaints of corruption nature, but also on non-corruption-related cases.
LEGISLATIVE COUNCIL — 23 June 1997
205
CHAIRMAN (in Cantonese): Does any other Member wish to speak? If not, I
would like to invite Mr James TO to make a final reply.
MR JAMES TO (in Cantonese): Mr Chairman, I just want to respond to Mr
Ronald ARCULLI's remark. Since Mr ARCULLI has been a member of the
Independent Commission Against Corruption (ICAC) Advisory Committee on
Corruption for so many years, I do not understand why he made that remark.
As a matter of fact, clear stipulations are found in both the Independent
Commission Against Corruption Ordinance and the Prevention of Bribery
Ordinance that the ICAC shall follow up complaints or referred complaints
explicitly related to corruption. The word "shall" in the provisions denotes that
the ICAC has to undertake investigation or follow-up action. But if the case is
not related to corruption, no follow-up action would be taken, as re-confirmed by
three ICAC Commissioners in response to our queries at the meetings of the
ICAC Review Committee and the Panel on Security of the Legislative Council
over the past few years.
Question on Mr James TO's amendment put.
MR JAMES TO (in Cantonese): Mr Chairman, can these clauses be voted
separately?
CHAIRMAN (in Cantonese): If Members do not mix the two clauses up, I do
not recommend a separate voting, though it is possible. For the sake of
convenience, many clauses are voted together at one time. Mr TO, do you
expect some Members will vote for subclause (1)(fa) but then vote against
subclause (1)(fb)?
MR JAMES TO (in Cantonese): Mr Chairman, that is exactly what I heard
earlier. But maybe they do not express their views because they are not in this
Chamber at the moment.
206
LEGISLATIVE COUNCIL — 23 June 1997
CHAIRMAN (in Cantonese): All right, let us have separate voting.
Question on the amendment to clause 8, by adding subclause (1)(fa), put and
agreed to.
Question on the amendment to clause 8, by adding subclause (1)(fb), put and
agreed to.
MR JAMES TO (in Cantonese): Mr Chairman, I move the second part of the
amendment to clause 8(2) as set out in the paper circularized to Members be
approved.
Mr Chairman, this part is concerned with the stipulation that the Governor
shall cause the two reports referred to in the original clause and submitted to him
by the Independent Police Complaints Council (IPCC) to be laid before the
Legislative Council. One of the two reports is the annual report referred to in
clause 8(1A), which is also received by us annually. The other clause is ......
Mr Chairman, can I read my paper first? It is a bit confusing.
CHAIRMAN (in Cantonese): By deleting "unless he is satisfied that compliance
with the requirement would likely prejudice" and substituting by "unless the
Governor certifies that such compliance will prejudice". You have already
spoken on that point during the Second Reading debate.
MR JAMES TO (in Cantonese): Mr Chairman, so I am not going to repeat what
I have said.
Proposed amendment
Clause 8 (see Annex III)
LEGISLATIVE COUNCIL — 23 June 1997
207
SECRETARY FOR SECURITY: Mr Chairman, the Administration does not
support the proposed amendment moved by the Honourable James TO.
The Commissioner of Police is best placed to determine whether any
compliance with the requirements of the Independent Police Complaints Council
(IPCC) might prejudice the security of Hong Kong or the investigation of any
crime. In the event he is unable to comply with the IPCC's requirements he
will, of course, explain to the IPCC on his decision. If disagree, the IPCC may
make a report to the Governor who may direct the Commissioner as he sees fit.
I therefore urge Honourable Members to reject the proposed amendment.
MR JAMES TO (in Cantonese): Mr Chairman, the Secretary for Security has
just said that the Commissioner for Police is best placed to determine matters
related to compliance with the requirements of the Independent Police
Complaints Council (IPCC) under clause 8.
I hope that Members will pay very close attention. There are two points
in clause 8 of the Bill that we may raise objection to. The first is the situation
that might affect or prejudice the security of Hong Kong and the second is the
investigation of any crime. Concerning the prejudice to the security of Hong
Kong, actually when we earlier on discussed clause 11(3) of the Bill, which is the
provision about secrecy, it was already stated that any matters which might
prejudice the security, defence or international relations of Hong Kong were to
be determined by the Governor and not the Commissioner of Police. Therefore,
if this clause is to be consistent with clause 11(3), the matter should be for the
Governor to determine. Besides, a more serious problem will arise if the
Commissioner of Police may decide whether clause 8 should be complied on
account of the investigation of any crime. Why? I believe that colleagues in
the IPCC would know it even better. The several thousand cases, particularly
the one thousand odd cases involving battery, are very often related to a certain
corresponding crimes, such as resisting arrest or assaulting police officers, like
the cases cited by the Honourable LEUNG Yiu-chung earlier. If the
Commissioner of Police is allowed to determine that because it is related to any
of the crimes and therefore the IPCC may not investigate or may not even request
for a report on that, even a request for assistance is out of the question. In that
case, I am afraid that for every complaint about battery, even though there are
altogether over a thousand such cases, the Commissioner may choose not to
co-operate. Moreover, in the provision we can only find the term "satisfied" but
208
LEGISLATIVE COUNCIL — 23 June 1997
there is no mention of terms such as "seriously affecting the investigation" and
the like.
Actually, the IPCC and the Commissioner will have different views on
matters such as certain procedures, monitoring, conclusion and reports, but why
is this provision so distinctly in favour of the Commissioner and allows him to
override the requirements of the IPCC? Very obviously, this issue should be
determined by a person in a higher rank, who is naturally, the Governor. After
gathering and studying the points of the IPCC and the Commissioner's views
about how security would be prejudiced and his arguments about the
investigation of the crime, if the Governor considers the problem very serious, he
may determine that the Commissioner needs not comply with the requirements of
the IPCC; otherwise, if he thinks that it is not the case and it is only a general
matter or the crime concerned is not relevant to the complaint, he may determine
to go ahead with the investigation and follow-up.
Question on the amendment put.
Voice vote taken.
THE CHAIRMAN said he thought the "Ayes" had it.
Mr IP Kwok-him claimed a division.
CHAIRMAN (in Cantonese): Committee will now proceed to a division.
CHAIRMAN (in Cantonese): I would like to remind Members that they are now
called upon to vote on the question that the amendment to clause 8 by adding
subclauses (1)(fa) and (1)(fb), and other proposals mainly concerning the person
to be vested with the investigative power should be the Governor instead of the
Commissioner of Police, as moved by Mr James TO, be approved.
Will Members please register their presence by pressing the top button
and then proceed to cast their votes by pressing one of the three buttons below?
LEGISLATIVE COUNCIL — 23 June 1997
209
CHAIRMAN (in Cantonese): 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, Mr Albert CHAN, Mr CHEUNG Man-kwong,
Mr CHIM Pui-chung, 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, Miss Christine LOH, Mr LEE Cheuk-Yan, Mr Andrew CHENG, Dr
Anthony CHEUNG, Mr Albert HO, Mr LAU Chin-shek, Mr LAW Chi-kwong,
Mr LEUNG Yiu-chung, Miss Margaret NG, Mr SIN Chung-kai, Mr TSANG
Kin-shing, Dr John TSE and Mr YUM Sin-ling voted for the amendment.
Mr Allen LEE, Mrs Selina CHOW, Mr NGAI Shiu-kit, Mr LAU Wong-fat, Mr
Edward HO, Mr Ronald ARCULLI, Mrs Miriam LAU, Dr LEONG Che-hung,
Mr Frederick FUNG, Mr Eric LI, Mr Henry TANG, Dr Philip WONG, Mr
Howard YOUNG, Mr CHAN Kam-lam, Mr CHAN Wing-chan, Miss CHAN
Yuen-han, Mr Paul CHENG, Mr CHENG Yiu-tong, Mr CHEUNG Hon-chung,
Mr CHOY Kan-pui, Mr David CHU, Mr IP Kwok-him, Mr Ambrose LAU, Dr
LAW Cheung-kwok, Mr LEE Kai-ming, Mr Bruce LIU, Mr LO Suk-ching, Mr
MOK Ying-fan and Mr NGAN Kam-chuen voted against the amendment.
THE CHAIRMAN announced that there were 26 votes in favour of the
amendment and 29 votes against it. He therefore declared that the amendment
was negatived.
Question on clauses 7 and 8, as amended, put.
Voice vote taken.
THE CHAIRMAN said he thought the "Ayes" had it.
Mr Ronald ARCULLI and Mrs Selina CHOW claimed a division.
210
LEGISLATIVE COUNCIL — 23 June 1997
CHAIRMAN (in Cantonese): Committee will now proceed to a division.
CHAIRMAN (in Cantonese): I would like to remind Members that they are now
called upon to vote on the question that clauses 7 and 8 stand part of the Bill.
Will Members please register their presence by pressing the top button
and then cast their votes by pressing one of the three buttons below?
CHAIRMAN (in Cantonese): Members may wish to check their votes. Are
there any queries? The result will now be displayed.
Mr Martin LEE, Mr SZETO Wah, Mr Albert CHAN, Mr CHEUNG Man-kwong,
Mr CHIM Pui-chung, 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, Miss Christine LOH, Mr LEE Cheuk-Yan,
Mr Andrew CHENG, Dr 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 and Mr YUM Sin-ling voted for
the motion.
Mr Allen LEE, Mrs Selina CHOW, Mr NGAI Shiu-kit, Mr LAU Wong-fat, Mr
Edward HO, Mr Ronald ARCULLI, Mrs Miriam LAU, Dr LEONG Che-hung,
Mr Eric LI, Mr Henry TANG, Dr Philip WONG, Mr Howard YOUNG, Mr
CHAN Kam-lam, Mr CHAN Wing-chan, Miss CHAN Yuen-han, Mr Paul
CHENG, Mr CHENG Yiu-tong, Mr CHEUNG Hon-chung, Mr CHOY Kan-pui,
Mr David CHU, Mr IP Kwok-him, Mr Ambrose LAU, Mr LEE Kai-ming, Mr LO
Suk-ching and Mr NGAN Kam-chuen voted against the motion.
THE CHAIRMAN announced that there were 30 votes in favour of the motion
and 25 votes against it. He therefore declared that the motion was carried.
Clause 9
LEGISLATIVE COUNCIL — 23 June 1997
211
SECRETARY FOR SECURITY: Mr Chairman, I move that clauses 9(2)(c) and
9(3) be amended as set out in the paper circularized to Members.
These amendments involve drafting points which we have agreed to make
at the suggestion of the Bills Committee.
Mr Chairman, I beg to move.
Proposed amendment
Clause 9 (see Annex III)
Question on the Secretary for Security's amendment put and agreed to.
CHAIRMAN (in Cantonese) : Both the Secretary for Security and Mr James TO
have separately given notices to move amendments to clause 9 by adding
subclause (5) to the clause.
I propose that the amendments to clause 9 by adding subclause (5) to the
clause, proposed separately by the Secretary for Security and Mr James TO, be
debated together in a joint debate.
Committee shall debate the amendments in a joint debate. I will first call
upon the Secretary for Security to move his amendments, as he is the public
officer in charge of the Bill.
SECRETARY FOR SECURITY: Mr Chairman, the amendment is to address
the Bills Committee's concern about possible delay in the completion of the
investigation of complaints by the police leading to an inability of the IPCC to
fully discharge its monitoring function.
As the investigation of serious complaints invariably takes some time to
complete we propose that the IPCC may ask the police for an interim report on
the progress of investigation within six months to facilitate the IPCC in
monitoring the investigation of such complaints.
212
LEGISLATIVE COUNCIL — 23 June 1997
The Administration does not support the proposed amendment to be moved
by the Honourable James TO. His proposed amendment is impracticable as it
refers to those matters in clause 9(2) which are specific to the final investigation
report, not an interim report submitted by the Commissioner of Police.
Thank you, Mr Chairman.
Proposed amendment
Clause 9 (see Annex III)
CHAIRMAN (in Cantonese): I will call upon Mr James TO to speak on the
amedment proposed by the Secretary for Security as well as his own proposed
amendment, but will not ask Mr TO to move his amendment unless the Secretary
for Security's amendment has been negatived.
MR JAMES TO (in Cantonese): Mr Chairman, you have granted me approval to
change the original subclause (2A) to paragraph (5); is that correct? We should
be dealing with the amendment to this part. I am afraid other Members may not
know which clause we are talking about.
Mr Chairman, the only difference between my amendment and that of the
Government is that my amendment does not specify a time within which the
Commissioner of Police must submit an interim report; while the amendment of
the Government specifies that the report must be submitted within six months of
the request being made. Moreover, I think the request by the Independent
Police Complaints Council (IPCC) should cover the rest of clause 9, as the
monitoring by the IPCC on the investigation carried out by the Complaints
Against Police Office and any progress related thereto should be on-going. If
the IPCC is deprived of the right to request for information, it can never monitor
or review the relevant investigation work and its progress.
Question on the Secretary for Security's amendment put.
LEGISLATIVE COUNCIL — 23 June 1997
213
Voice vote taken.
CHAIRMAN (in Cantonese): Committee will now proceed to a division.
CHAIRMAN (in Cantonese): By the way, due to an additional subclause, as Mr
TO suggested, his original subclause 9(2A) becomes clause 9(5). As subclause
(5) has been added to clause 9, there is no need to insert subclause (2A) between
subclauses (2) and (3).
I would like to remind Members that they are now called upon to vote on
the question that the amendment moved by the Secretary for Security to add
subcluase (5) to clause 9 be approved.
Will Members please first register their presence by pressing the top button
and then proceed to cast their votes by pressing one of the three buttons below?
CHAIRMAN (in Cantonese): Members may wish to check their votes. Are
there any queries? The result will now be displayed.
Mr Allen LEE, Mrs Selina CHOW, Mr NGAI Shiu-kit, Mr LAU Wong-fat, Mr
Edward HO, Mr Ronald ARCULLI, Mrs Miriam LAU, Dr LEONG Che-hung,
Mr Frederick FUNG, Mr Eric LI, Mr Henry TANG, Dr Philip WONG, Mr
Howard YOUNG, Mr James TIEN, Mr CHAN Kam-lam, Miss CHAN Yuen-han,
Mr Paul CHENG, Mr CHENG Yiu-tong, Mr CHEUNG Hon-chung, Mr CHOY
Kan-pui, Mr David CHU, Mr IP Kwok-him, Mr Ambrose LAU, Dr LAW
Cheung-kwok, Mr LEE Kai-ming, Mr Bruce LIU, Mr LO Suk-ching, Mr MOK
Ying-fan and Mr NGAN Kam-chuen voted for the amendment.
Mr Martin LEE, Mr SZETO Wah, Mr Albert CHAN, Mr CHEUNG Man-kwong,
Mr CHIM Pui-chung, 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, Miss Christine LOH, Mr LEE Cheuk-Yan, Mr Andrew CHENG, Dr
Anthony CHEUNG, Mr Albert HO, Mr LAU Chin-shek, Mr LAW Chi-kwong,
Mr LEUNG Yiu-chung, Miss Margaret NG, Mr SIN Chung-kai, Mr TSANG
Kin-shing, Dr John TSE and Mr YUM Sin-ling voted against the amendment.
214
LEGISLATIVE COUNCIL — 23 June 1997
THE CHAIRMAN announced that there were 29 votes in favour of the Secretary
for Security's amendment and 26 votes against it. He therefore declared that the
amendment was carried.
CHAIRMAN (in Cantonese): Mr James TO, as the Secretary for Security's
amendment has been agreed, you may not move your proposed amendment as it
is inconsistent with the decision already taken.
Question on clause 9, as amended, put and agreed to.
Clause 10
CHAIRMAN (in Cantonese): Both Mr James TO and the Secretary for Security
have separately given notices to move amendments to clause 10.
I propose that the amendments to clause 10, proposed separately by Mr
James TO and the Secretary for Security, be debated together in a joint debate.
Committee shall debate the amendments to clause 10. I will first call
upon Mr James TO to move his amendments in accordance with Standing Order
25(4).
MR JAMES TO (in Cantonese): Mr Chairman, I move that clause 10 be
amended as set out in the paper circularized to Members.
About clause 10, earlier, we already debated the point about the right of
the Independent Police Complaints Council (IPCC) to interview witnesses, which
is a fairly important point in this Bill. The controversy is that according to the
original clause, the IPCC may only interview witnesses in the review after the
Complaints Against Police Office (CAPO) has submitted an investigation report.
The Government's explanation is that if the IPCC and CAPO interview witnesses
at the same time, the former for the purpose of monitoring and the latter for the
purpose of investigation, members of the public or the witnesses will be
confused.
LEGISLATIVE COUNCIL — 23 June 1997
215
My first argument is that generally speaking, unless the witness can
provide a very good reason to convince members of the IPCC, the IPCC will not
interview a witness while the police are conducting investigations. I cited some
examples during the Bills Committee meetings. For instance, after a witness
has been interviewed by the CAPO, he might think that the CAPO evaded a
crucial point or was not impartial during the interview, or deliberately led him to
give a particular version of the truth. Of course, the Government would say that
this is impossible, since their testimonies are taped. However, please remember
that there might be arrangements outside the camera, at the hospital, at the
witness' home and in many places. Some quarters might have convinced the
witness or said something to him so that he would "obediently" testify according
to instructions in the official testimony. The witness might regret afterwards
and, thinking that it was inappropriate, and decided to inform the IPCC about
this. The IPCC would have to interview him, possibly with the presence of
legal experts to cross examine him, in order to determine whether he is lying or
deliberately attacking CAPO. The IPCC would have to check the taped
testimony of CAPO. Therefore, one does not necessarily have to wait until the
investigation is over before one interviews the witnesses.
Obviously, the Government is worried that if the IPCC is allowed to
interview witnesses at any time, the IPCC will act like CAPO and interview all
the witnesses first, and not after CAPO has finished its interim report. Since I
am afraid that Colleagues might have this concern, I have added a clause
stipulating that if the IPCC wants to interview witnesses, it must be "for the
purposes of monitoring or reviewing ......", and not for the purpose of
re-investigation. In other words, I have made these conditions against the
Government's arguments about parallel investigations and confusion, and to allay
Colleagues' concern.
Clause 10(2) mentions what persons can be present at an interview with
witness. In our preceding debate, we mentioned that the IPCC can employ
some professional observers. Therefore, an interview with witness can be
conducted by members of the IPCC, or under certain circumstances, by
professional observers, legal advisers, or professional investigators of the IPCC.
The interview with witness can only be made for the purposes of reviewing or
monitoring the relevant investigations, and not for the purpose of carrying out a
parallel investigation.
LEGISLATIVE COUNCIL — 23 June 1997
216
Thank you.
Proposed amendment
Clause 10 (see Annex III)
CHAIRMAN (in Cantonese): I will call upon the Secretary for Security to speak
on the amendment moved by Mr James TO as well as his own proposed
amendment, but will not ask the Secretary for Security to move his amendments
unless Mr James TO's amendments have been negatived. If Mr James TO's
amendments are agreed, that will by implication mean that the Secretary for
Security's proposed amendments are not approved.
SECRETARY FOR SECURITY: Mr Chairman, the Administration objects
strongly to the amendment moved by the Honourable James TO which would
enable the IPCC to interview any witness after a complaint has been made.
The purpose of the interview of witness by the IPCC is to enable the IPCC
to clarify areas of doubt on the part of CAPO's investigation. Without the
police investigation report or at least an interim investigation report, we fail to
see how this purpose could be served. Worse still, such a proposal could
interfere with police investigation of the complaint, particularly if the witness is
interviewed by the IPCC before the police have an opportunity to do so, or if the
witness is confused about who is conducting the investigation of his complaint.
We believe our proposed amendment to enable the IPCC to interview a
witness after the submission of an interim report is more appropriate and would
enable the IPCC to make better use of the interview.
Mr James TO's amendments to other parts of clause 10 to enable the IPCC
to designate other persons to conduct the interview is also inappropriate. The
intention of the IPCC Interviewing Witness Scheme is to enable IPCC members
to clarify any areas of doubt on CAPO's investigation. It would defeat the
purpose if persons other than IPCC members could conduct the interview. If
the IPCC decides that persons other than IPCC members should be present at the
interview it can invite such persons under clause 10(2) of the Bill.
LEGISLATIVE COUNCIL — 23 June 1997
217
The Administration's amendments are to enable the IPCC to interview any
witness after the Commissioner of Police has submitted an interim report on the
progress of investigation of a complaint, unless the Commissioner is of the
opinion that the interview would likely prejudice the investigation of any crime
or complaint.
I believe the proposed amendments should address Members' concern
while ensuring that the investigation of complaints by the police will not be
impeded.
I urge Honourable Members to reject the amendments moved by the
Honourable James TO and to support the Administration's amendments.
Thank you, Mr Chairman.
MR BRUCE LIU (in Cantonese): Mr Chairman, about this point, while making
deliberations on the Bill, the Bills Committee actually discussed the issue of
parallel investigations and the division of labour between the IPCC and the
CAPO. Mr TO's amendment stipulates that the IPCC may by resolution
interview any witness for the purposes of monitoring or reviewing the
investigation of a complaint. This provision in fact allows the IPCC to
interview witnesses at any time before CAPO starts its investigation or when
CAPO is in the process of investigating. But then a loophole may arise and
there is the issue of parallel investigations. That was why I proposed a
compromise then: for review purposes, witnesses may be interviewed under two
conditions. One is after CAPO has completed a certain stage in its investigation
and has submitted an interim report at the request of or upon resolution by the
IPCC. This is the stage referred to in subclause (5) proposed a moment ago to
be added to clause 9. If the IPCC is not satisfied , it may by resolution exercise
its power to interview the public and conduct a review. This arrangement can
prevent the problem of parallel investigations. This may also allow a clear
division of labour between the IPCC and the CAPO. This arrangement clearly
states that the CAPO must start the investigation at the initial and important
stage. This is a more appropriate arrangement. The Government has accepted
this opinion and is therefore making a proposal to add subclauses (1A) and (1B)
to clause 10 of the Bill, both of which are closely linked to subclause (5) of
218
LEGISLATIVE COUNCIL — 23 June 1997
clause 9. Since the Administration has adopted views of the members of the
Bills Committee, I think it is an appropriate arrangement. Hence the Hong
Kong Association for Democracy and People's Livelihood supports the
amendment made to clause 10 by the Secretary for Security. Thank you, Mr
Chairman.
MR JAMES TO (in Cantonese): Mr Chairman, I would like to remind Members
that the Government's proposal to insert paragraphs (1A) and (1B) to clause 10
serves to prohibit non-IPCC members from interviewing witnesses alone. In
other words, the professionals and technicians of the secretariat we mentioned
earlier on would not be able to interview witnesses. But we can envisage
situations in which witnesses can be interviewed by professional investigators or
observers in the absence of IPCC members, and then reports are submitted to the
IPCC for discussion. An IPCC member is not necessarily required to be present
at the interview.
Question on Mr James TO's amendment put.
Voice vote taken.
CHAIRMAN (in Cantonese): Committee will now proceed to a division.
CHAIRMAN (in Cantonese): I would like to remind Members that they are now
called upon to vote on the question that Mr TO' amendment to clause 10 be
approved.
Will Members please first register their presence by pressing the top button
and then proceed to cast their votes by pressing one of the three buttons below.
CHAIRMAN (in Cantonese): Members may wish to check their votes. Are
there any queries? The result will now be displayed.
LEGISLATIVE COUNCIL — 23 June 1997
219
Mr Martin LEE, Mr SZETO Wah, Mr Albert CHAN, Mr CHEUNG Man-kwong,
Mr CHIM Pui-chung, 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, Miss Christine LOH, Mr LEE Cheuk-Yan, Mr Andrew CHENG, Dr
Anthony CHEUNG, Mr Albert HO, Mr LAU Chin-shek, Mr LAW Chi-kwong,
Mr LEUNG Yiu-chung, Miss Margaret NG, Mr SIN Chung-kai, Mr TSANG
Kin-shing, Dr John TSE and Mr YUM Sin-ling voted for the amendment.
Mr Allen LEE, Mrs Selina CHOW, Mr NGAI Shiu-kit, Mr LAU Wong-fat, Mr
Edward HO, Mr Ronald ARCULLI, Mrs Miriam LAU, Dr LEONG Che-hung,
Mr Frederick FUNG, Mr Eric LI, Mr Henry TANG, Dr Philip WONG, Mr
Howard YOUNG, Mr James TIEN, Mr CHAN Kam-lam, Mr CHAN Wing-chan,
Miss CHAN Yuen-han, Mr Paul CHENG, Mr CHENG Yiu-tong, Mr CHEUNG
Hon-chung, Mr CHOY Kan-pui, Mr David CHU, Mr IP Kwok-him, Mr Ambrose
LAU, Dr LAW Cheung-kwok, Mr LEE Kai-ming, Mr Bruce LIU, Mr LO
Suk-ching, Mr MOK Ying-fan and Mr NGAN Kam-chuen voted against the
amendment.
THE CHAIRMAN announced that there were 26 votes in favour of Mr James
TO's amendment and 30 votes against it. He therefore declared that the
amendment was negatived.
CHAIRMAN (in Cantonese): As the amendment to clause 10 moved by Mr
James TO has been negatived, I now call upon the Secretary for Security to move
his amendment.
SECRETARY FOR SECURITY: Mr Chairman, I move that clause 10 can be
amended as set out in the paper circularized to Members.
Proposed amendment
Clause 10 (see Annex III)
Question on the Secretary for Security's amendment put and agreed to.
220
LEGISLATIVE COUNCIL — 23 June 1997
MR WONG WAI-YIN (in Cantonese): Mr Chairman, I move that clause 10 be
further amended as set out in the paper circulated to Members.
Mr Chairman, the arrangement for IPCC to interview witnesses is an
effective and important measure for the IPCC to review the work of the CAPO.
The statements made by witnesses are important materials that the IPCC must
study carefully when making decisions about complaints.
To allow witnesses to make completely frank statements, the Bills
Committee proposes to add one clause so that any information revealed by
witnesses at interviews will not in future be used in legal proceedings against
them as evidence leading to their imprisonment. The arrangement is meant to
put witnesses at ease so that they can provide information relating to complaints.
Mr Chairman, on behalf of the Bills Committee, I beg to move.
Proposed amendment
Clause 10 (see Annex III)
SECRETARY FOR SECURITY: Mr Chairman, the Administration does not
support the amendment moved by the Honourable WONG Wai-yin.
The Independent Police Complaints Council Interviewing Witness Scheme
is an entirely voluntary scheme and no witness can be forced to attend the
interview or to reply to any question during the interview. A witness may
choose to have his lawyer present during the interview. However, we do not
agree that a blanket immunity clause should be provided as this would mean that
anything the witness said during the interview, including a confession to a crime
which may be totally unrelated to the complaint, cannot be used against him.
Thank you, Mr Chairman.
MR WONG WAI-YIN (in Cantonese): Mr Chairman, while the Bills Committee
was scrutinizing the Bill, amendments which were not agreed upon unanimously
by its members were those put forward by Mr James TO. The amendment I am
LEGISLATIVE COUNCIL — 23 June 1997
221
moving has been agreed unanimously by members of the Bills Committee . I
urge that Members support my amendment. Thank you.
Question on Mr WONG Wai-yin's amendment put and agreed to.
Question on clause 10, as amended, put and agreed to.
Clause 13
SECRETARY FOR SECURITY: Mr Chairman, I move that clause 13 be
amended as set out in the paper circularized to Members. The amendment is
made in response to the Bills Committee's suggestion that the Governor may
consider causing reports other than the annual report made by the Independent
Police Complaints Council to be laid in front of the Legislative Council.
Mr Chairman, I beg to move.
Proposed amendment
Clause 13 (see Annex III)
Question on the amendment put and agreed to.
Question on clause 13, as amended, put and agreed to.
Clause 14
MR JAMES TO (in Cantonese): Mr Chairman, I move that clause 14 be
amended as set out in the paper circularized to Members.
Mr Chairman, this amendment has to do with the formulation of by-laws.
The main issue involved is whether the by-laws should be made by the Governor
or the Independent Police Complaints Council (IPCC). In fact, the main
difference between the two is whether the Governor should make the by-laws
after consulting the IPCC or the other way round. Mr Chairman, this is in fact
the crux of the problem.
The Administration is saying that, apart from
222
LEGISLATIVE COUNCIL — 23 June 1997
monitoring the police, the work of the IPCC may also cover other persons, and
therefore it should be up to the Governor to make such by-laws. At the
meetings of the Bills Committee, Mr Eric LI presented a forceful argument,
saying that a lot of legislation and examples can be quoted by both sides as
precedent cases in support of their stance. I can also quote one here. I think
the Mass Transit Railway Corporation (MTRC) can serve as a very good
example. The MTRC is empowered to make its own by-laws, including laying
down penalties for criminal offences. For example, offences like bending,
folding, flicking or scratching train tickets will be subjected to a fine of $2,000.
In fact, such acts constitute criminal offences within the premises of the MTR.
The MTRC is a statutory body and so will be the IPCC in future, but there are no
penalty clauses in the existing by-laws. Actually, if penalty clauses for criminal
offences are involved, the cases should be much more serious, and the by-laws
should have been made by the Secretary for Transport. I do not see why the
MTRC or its Board of Directors should be empowered to do so. However, the
MTRC by-laws on penalty clauses were actually made by the Board of Directors
of the MTRC. Under such circumstances, I do not see why the IPCC should not
make their own by-laws.
Why do I disapprove of the approach in which the by-laws are made by the
Governor? It is because the IPCC is responsible for monitoring the work of the
Complaints Against Police Office (CAPO). How it exercises its power or
makes by-laws in the process will be subjected to the final approval of the
Legislative Council, and the situation will still be the same even if the Governor
is responsible for making the by-laws. With the Legislative Council acting as
the goalkeeper, both the Administration and I have scored a point. Moreover,
the power for making by-laws can hardly be abused since we have an elected
legislature as the goalkeeper. In fact, under the provisions of the existing
legislation, these are only two of the different views on this issue. On the one
hand, there is the view that statutory bodies should be able to make their own
by-laws. On the other hand, I am also aware that the provisions of some
legislation even disallows statutory bodies to make their own by-laws and it has
to be done by the Governor. Therefore, I hope that Members will consider the
nature of the IPCC before they choose how to vote. I will not say that either
side is totally in the wrong, or that it is altogether wrong for the Governor to
make the by-laws. I can only say that bearing in mind the nature of the IPCC,
we should be able to strike a balance if the IPCC can make its own by-laws after
consulting the Governor and with an-elected legislature acting as the goalkeeper.
LEGISLATIVE COUNCIL — 23 June 1997
223
Proposed amendment
Clause 14 (see Annex III)
SECRETARY FOR SECURITY: Mr Chairman, I do not support the proposed
amendments moved by the Honourable James TO to empower the Independent
Police Complaints Council (IPCC) to make regulations. The IPCC is part of the
police complaints system and any regulations made would have an effect on the
system as a whole. It would therefore be appropriate for the Governor as the
authority to whom the IPCC is responsible to make the regulations having regard
to the system as a whole.
Thank you, Mr Chairman.
Question on the amendment put.
Voice vote taken.
CHAIRMAN (in Cantonese): Committee will now proceed to a division.
CHAIRMAN (in Cantonese): I would like to remind Members that they are now
called upon to vote on the question that the amendment to clause 14 moved by
Mr James TO be approved.
Will Members please register their presence by pressing the top button and
then proceed to vote by pressing one of the three buttons below?
CHAIRMAN (in Cantonese): Several 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, Mr Albert CHAN, Mr CHEUNG Man-kwong,
Mr CHIM Pui-chung, Mr Frederick FUNG, Mr Michael HO, Dr HUANG
224
LEGISLATIVE COUNCIL — 23 June 1997
Chen-ya, Miss Emily LAU, Mr LEE Wing-tat, Mr Eric LI, Mr Fred LI, Mr James
TO, Dr YEUNG Sum, Mr WONG Wai-Yin, Miss Christine LOH, Mr LEE
Cheuk-Yan, Mr Andrew CHENG, Dr 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, Mr SIN Chung-kai, Mr TSANG
Kin-shing, Dr John TSE and Mr YUM Sin-ling voted for the amendment.
Mr Allen LEE, Mrs Selina CHOW, Mr NGAI Shiu-kit, Mr LAU Wong-fat, Mr
Edward HO, Mrs Miriam LAU, Mr Henry TANG, Mr Howard YOUNG, Mr
James TIEN, Mr CHAN Kam-lam, Mr CHAN Wing-chan, Miss CHAN
Yuen-han, Mr Paul CHENG, Mr CHENG Yiu-tong, Mr CHEUNG Hon-chung,
Mr CHOY Kan-pui, Mr David CHU, Mr IP Kwok-him, Mr Ambrose LAU, Mr
LEE Kai-ming, Mr LO Suk-ching, Miss Margaret NG and Mr NGAN
Kam-chuen voted against the amendment.
THE CHAIRMAN announced that there were 30 votes in favour of Mr James
TO's amendment and 23 votes against it. He therefore declared that the
amendment was carried.
SECRETARY FOR SECURITY: Mr Chairman, I move that clause 14 be
further amended as set out in the paper circularized to Members.
The amendments are made to address the Bills Committee's concern to
make it clear that the regulations will only be made to facilitate the IPCC to
discharge its functions and duties.
Mr Chairman, I beg to move.
Proposed amendment
Clause 14 (see Annex III)
Question on the Secretary for Security's amendment put and agreed to.
Question on clause 14, as amended, put and agreed to.
LEGISLATIVE COUNCIL — 23 June 1997
225
Council then resumed.
Third Reading of Bill
INDEPENDENT POLICE COMPLAINTS COUNCIL BILL
SECRTARY FOR SECURITY: With regrets, Mr President, I withdraw the
Independent Police Complaints Council Bill.
PRESIDENT (in Cantonese): In accordance with Standing Order 52, the
Member or public officer in charge of a bill may, by announcement in Council at
the beginning of proceedings for its Second or Third Reading, withdraw or
postpone the bill. As the Secretary for Security has withdrawn the Bill, no
further proceedings will be taken. A point of order, Mr James TO?
MR JAMES TO (in Cantonese): Mr President, would you allow Members to
speak about the withdrawal, or would you request the Secretary to explain why
he withdrew the Bill in such an irresponsible manner?
PRESIDENT (in Cantonese): You last question is not a point of order. You
spoke. I do not think it is appropriate not to allow the Secretary to respond but
there is no point in arguing further in this way. Every Member may decide
when to proceed further, and when not to. It is with regret that this Council
must not discuss the matter further.
MR JAMES TO (in Cantonese): A point of order.
PRESIDENT (in Cantonese): Please state your point of order.
226
LEGISLATIVE COUNCIL — 23 June 1997
MR JAMES TO (in Cantonese): Mr President, there were similar cases in the
past. The President allowed Members to speak on the withdrawal of a bill,
including that case in which Mr LAU Chin-shek resigned from the former
Council. At that time, the President allowed Mr LAU to speak about his
resignation. I am not sure if someone would resign this time, but, Mr President,
if nobody is allowed to speak on the withdrawal, I find it strange why the ruling
this time is different from that in the past. Could you explain?
PRESIDENT (in Cantonese): If it is a point of order, I will make a ruling. Dr
YEUNG Sum also wants to raise a point of order. If he cannot strengthen his
ground, I do not want to discuss further about a point of order. I will rule on a
point of order. Dr YEUNG, is yours the same point of order or a fresh one?
DR YEUNG SUM (in Cantonese): Mr President, the point of order I would like
to raise is that we have been discussing the matter from 10 o'clock this morning
to 4.25 pm now. Would you request the Secretary for Security to explain why
the Government withdrew the Bill ?
MISS EMILY LAU (in Cantonese): Mr President, are you empowered under
Standing Orders to allow Members to debate on this matter? As this is a very
important matter, Mr President, and you should know that, if you are empowered
to do so, can you exercise your power? Thank you.
MR MARTIN LEE (in Cantonese): Mr President, I would like to know which
clause the Secretary for Security is not happy about. If he was not happy about
a certain clause, why did he not withdraw it on the spot ? We have spent a lot
of time on the matter and we have several days' meeting ahead of us. We have
no idea about his next moves. I do not know what to do. Should we take him
on?
PRESIDENT (in Cantonese): If you think there is a precedent, I will go over
past records to look into the precedent. I do not think it is a very good
precedent. Please do not say I am prejudiced, but a debate on the matter is out
LEGISLATIVE COUNCIL — 23 June 1997
of the question.
transpired.
227
I will have to check on the precedent first and see what
MR NGAI SHIU-KIT (in Cantonese): A point of order.
PRESIDENT (in Cantonese): I intend to suspend the sitting. Is there anything
you would like to add? Please go ahead.
MR NGAI SHIU-KIT (in Cantonese): Mr President, you have the freedom to
check past records before making a ruling. But since you have the power to
rule, you can rule as you please. You are acting according to the Standing
Orders and you need not do any checking.
PRESIDENT (in Cantonese): I recall there was a precedent but I am not sure
what transpired is similar to what is happening now when the President at the
time allowed a debate. Even if that is the case I have not decided yet on
whether I will rule according to the precedent. I will suspend the sitting for 10
minutes.
4.27 pm
Sitting suspended
4.40 pm
Council then resumed.
PRESIDENT (in Cantonese): Council is now resumed. I have checked the
previous records and found an incident which occurred during the examination of
the Employment (Amendment) Bill 1994 on 14 December 1994.
228
LEGISLATIVE COUNCIL — 23 June 1997
At the Committee stage, Mr Michael LEUNG, the Secretary for Education
and Manpower at that time, said in his address that "Regrettably we will have no
choice but to withdraw this Bill if the amendments were carried at the Committee
stage." The Chairman at that time asked Members to be disciplined as lots of
them were talking about the issue, similar to the situation just now. It was then
followed by Mr LAU Chin-shek's address and he ended with "Mr Michael
LEUNG has just said that he would withdraw the Bill if the amendments were
carried. If the Government repeats its tactics of withdrawing the Bill so that the
Third Reading of the Bill could not proceed, or if the Bill has been negatived
during its Third Reading, rendering it impossible to improve the severance and
long service payments, I am willing to take up the responsibility and tender my
resignation immediately. Mr Chairman, I so submit."
When the amendments were really carried at the Committee stage, the
Secretary for Education and Manpower drew a conclusion in the Third Reading
after stating various reasons that "Because of this fundamental principle I
withdraw the Bill." There was no progress afterwards. It is because if a bill is
withdrawn in the Third Reading, there will be no progress. Therefore, Mr
James TO's comment that there was a precedent is wrong. There is no such
precedent.
MR JAMES TO (in Cantonese): Mr President, I would like to raise a question.
The Government considers that there is something unacceptable and thus, the bill
should be withdrawn. I would like to ask if the Standing Orders allow another
Member in attendance to move the Third Reading? What I mean is that it will
no longer be a government bill and it will become a member's bill. One of the
Members, such as Mr WONG Wai-yin, may move the Third Reading so that the
bill can still be carried.
PRESIDENT (in Cantonese): According to my understanding of the Standing
Orders, the progress of the bill is determined by the Council. For example, if
the Clerk has read out the short title once, it means that this Council should
proceed to the Second Reading. If the Committee stage is passed, it means that
the bill should proceed to the Third Reading. However, at any time, Members
or public officers who raise the bill will take up the responsibility. If he wants
to withdraw it, others cannot take it over. However, at present, the Standing
LEGISLATIVE COUNCIL — 23 June 1997
229
Orders have been amended. In theory, bills can only be withdrawn under two
conditions. In fact, further development now dictates that the bill can only be
withdrawn under one situation. As we proceeded to the Second Reading once
after the First Reading, there was only an introductory Second Reading at that
time. Therefore, after so many developments, the Third Reading is the only
stage to withdraw the bill at the beginning of the procedure. Regrettably we
cannot handle it as you wish.
MISS MARGARET NG: Mr President, I would like to seek clarification on the
Standing Orders. Is there any necessity of giving notification before the Bill
can be withdrawn at the Third Reading?
PRESIDENT (in Cantonese): I have already read out the related provision —
there is no need for a notice in advance. I would like to read it out one more
time, "The Member or public officer in charge of a bill may, by announcement in
Council at the beginning of proceedings — not before the proceedings but at the
beginning of proceedings — for its second or third reading, withdraw or
postpone the bill." Perhaps I should also read it out in English again, "The
Member or public officer in charge of a bill may, by announcement in Council at
the beginning of proceedings for its second or third reading, withdraw or
postpone the bill." Hence, there is no need for a notice in advance.
Miss Emily LAU, a point of order?
MISS EMILY LAU (in Cantonese): Mr President, concerning the point of order
that I raised to you just now, can you allow us to proceed with a debate in
accordance with the Standing Orders, because this is a very controversial issue
and we also hope that the Secretary for Security would explain to this Council
why he should do that? But you have not answered my question. Thank you,
Mr President.
230
LEGISLATIVE COUNCIL — 23 June 1997
PRESIDENT (in Cantonese): I have made a ruling that I am not willing to allow
Members to put forward a substantial motion in respect to an important issue
without giving a notice in advance.
MR CHEUNG MAN-KWONG (in Cantonese): Mr President, I do understand
the rationale of your ruling or your viewpoint, but I would request that you
exercise your discretion by considering one very important point. As we all
know, this sitting is the last one before 1 July 1997. In other words, this is the
last chance for many of us to debate in this Council. If you do not allow a
debate, then many of us would never have the chance to do so again. In the
past, however, we might restart debates on some motions. So would you, Mr
President, consider this special factor and allow us a chance to debate?
PRESIDENT (in Cantonese): While some issues can be easily dealt with
according to the House Rules, such as the number of debates at a meeting, in the
present situation, would it be better if we try to look for an opportunity when you
can sort things out with me after the close of play today but before tomorrow?
MR JAMES TO (in Cantonese): Mr President, I would like to follow up on
Miss Emily LAU's question. You said you were very reluctant to allow a
speech or debate without notification. But, Mr President, the Secretary for
Security has not given any notification for his withdrawal. You ruled that he
had the right to do so. Well, he had the right, but the point is that the
withdrawal came all of a sudden and that happened just a short while ago.
PRESIDENT(in Cantonese): Mr TO, as I said, there could be a way out. If a
ruling is required, we can make it through a discussion. The ruling may not
necessarily be made in this Chamber. I am reluctant to give a ruling here and
now. If all of you want me to consider the matter, I can do so but I am reluctant
to rule immediately.
LEGISLATIVE COUNCIL — 23 June 1997
231
MR LEE WING-TAT (in Cantonese): Mr President, Standing Order 68 states
that "A motion which has the object or effect of suspending a standing order shall
not be moved except after notice or with the consent of the President." In other
words, Mr President, you have the full power to suspend certain or all provisions
in the Standing Orders. Therefore I request that you suspend all of the Standing
Orders and grant us leave to debate now on the appropriateness of the Secretary
for Security's withdrawal of the Bill at the Third Reading. Would you consider
my request?
PRESIDENT (in Cantonese): Please repeat that, I do not quite catch what you
have said. Have you wrongly quoted Standing Order 68?
MR LEE WING-TAT (in Cantonese): Mr President, according to Standing
Order 68, you have the power to suspend one or all of the Standing Orders.
That is why I would like you to exercise the power as President to so suspend,
without notice, so that you can let the Legislative Council debate in public the
proposal of the Secretary for Security to withdraw the Bill at the Third Reading.
Thank you, Mr President.
PRESIDENT (in Cantonese): Standing Order 68 does not have that meaning.
It means instead I can dispense with the notice required and let Members put
forward a motion to suspend a Standing Order to achieve a certain objective. I
do not have the power to suspend the Standing Orders.
MR LEE WING-TAT (in Cantonese): Mr President, then I request that you
allow us or Mr TO to dispense with the notice for the proposal to suspend all of
the Standing Orders so that we can debate on the matter about the Secretary for
Security's withdrawal of the Third Reading of the Bill. The motion, if proposed
by Mr TO, would be without notice and you have the right to allow him to so
move. Thank you, Mr President.
PRESIDENT (in Cantonese): I wish you were not making that request. Just
now, in responding to Miss Emily LAU's request, I said I was reluctant to
dispense with the notice required. Last time I had to dispense with the notice
232
LEGISLATIVE COUNCIL — 23 June 1997
for suspending the Standing Orders and I did that with great reluctance. I
would be even more reluctant to do something similar for an actual motion.
You are asking me to take two steps: to dispense with the notice and then to
allow Members to move a motion to suspend a certain Standing Order. Maybe I
do have the power to dispense with the notice and allow you to move an actual
motion, but I an unwilling to do either of them. I said I would consider the
matter but please do not ask me to give you a definite answer at this sitting.
MR RONALD ARCULLI: Mr President, is it in order for a Member to make a
request off the chair after we adjourn the sitting today to have a motion debate on
the matters that have been related to by some of our colleagues without adequate
notice during this sitting?
PRESIDENT: I have said to that effect.
MR JAMES TO (in Cantonese): Mr President, I hope you will consider the
matter along the lines you have said, and tell us your decision during the few
days while the sitting is still in progress.
PRESIDENT(in Cantonese): I have said that already.
MR JAMES TO (in Cantonese): I would make a formal request.
MISS MARGARET NG: Mr President, in the precedent that you have cited, the
Secretary on that occasion had given certain explanations for withdrawal. I
wonder if under the present Standing Orders, Mr President, you could invite the
Secretary to at least inform this Council of his reasons for withdrawing the Bill.
PRESIDENT (in Cantonese): Whether he would say a lot or just briefly, or
whether what he says is reasonable or not , is not for me to judge. I am
LEGISLATIVE COUNCIL — 23 June 1997
233
reluctant to ask him to say more if someone says he is being too brief. When he
says too much, he would be criticized. He would have to be responsible. That
is his responsibility. When he says too little, he would be criticized too. It is
still his responsibility. The President cannot rule on that, otherwise I would be
involved in political judgement.
MISS MARGARET NG: Mr President, I understand that. But I do wonder if
the Secretary has given any reason at all. So it is just an invitation to him to
give any reason that he considers appropriate.
PRESIDENT (in Cantonese): I would treat this as a request for my
consideration. But I will not make a quick decision today.
MISS EMILY LAU (in Cantonese): Mr President, I understand you do not want
to decide now. Maybe if later at the request of Members you will consider
allowing us to debate the matter either tomorrow or some other time. But I
think you would understand everybody is expecting a continuous discussion.
As the matter is still fresh in our minds, we would like you to allow us to finish
the matter quickly, instead of delaying it till tomorrow. Mr President, that is
what I wish. I believe you will let us hold a debate tomorrow.
PRESIDENT (in Cantonese): Miss LAU, my ruling now is: owing to the
withdrawal of the Bill, a Third Reading debate cannot proceed. If Members
would like to have a debate on the matter or would want an explanation from the
Secretary for Security, they may send in a request to that effect for my
consideration. But I would not consider the matter at once. I suspended the
sitting a while ago because Mr TO said there was a precedent. After some
research I do not think the case referred to is a precedent for this situation. To
expedite our proceedings, Members should not raise points of order any more.
Rather I would want you to think in terms of what arrangement would be most
reasonable. I have made the ruling and I think the arrangement is what is most
reasonable. Even if you are not satisfied with my decision, you should not
continue to argue, as that would amount to commenting on my ruling. To
comment on my ruling, a Member must put forward an actual motion for the
234
LEGISLATIVE COUNCIL — 23 June 1997
purpose. If I allowed you to further discuss on matters of points of order, only
similar points would be raised and this Council would be less than orderly.
MR LEE WING-TAT (in Cantonese): Mr President, I would like some
clarification about Stand Order 69, which states that "In any matter not provided
for in these Standing Orders, the practice and procedure to be followed in the
Council shall be such as may be decided by the President who may, as he thinks
fit, be guided by the practice and procedure of the House of Commons of the
United Kingdom", that is the Erskine May practice you have always been
referring to. May I ask Mr President whether you would spend more time to
look at the Erskine May practice again to see if there were cases in which
Government officers in the House of Commons withdrew motions and then
followed by approval given to debate. Thank you, Mr President.
PRESIDENT (in Cantonese): I would consider your request. I would certainly
do that. You were right when you cited Standing Order 69. The citation of
Standing Order 68 just now was totally incorrect. Let us continue with our
proceedings.
Resumption of Second Reading Debate on Bill
LONG-TERM PRISON SENTENCES REVIEW BILL
Resumption of debate on Second Reading which was moved on 19 March
1997
MR RONALD ARCULLI: As Chairman of the Bills Committee on the
Long-term Prisons Sentences Review Bill, I wish to report to Honourable
Members the major issues discussed by the Bills Committee on this Bill.
The purpose of this bill is to make statutory provision for the composition
and functions of the Long-term Prisons Sentences Review Board in place of the
existing Administrative arrangements for review of long-term prison sentences,
including detention at her Majesty's pleasure, carried out by the Board of Review
(Long-term Prison Sentences).
LEGISLATIVE COUNCIL — 23 June 1997
235
Under the Administration's proposals in reviewing the sentences for three
existing categories of prisoners, namely, HMP prisoners, young murderers
sentenced to mandatory life sentence since 1993, and other discretionary life
prisoners, the Chief Justice would make recommendations to the Governor for
approval on the appropriate minimum punitive term to be served.
The prisoner is provided with an opportunity to make written
representations to the Governor on the minimum punitive term to be set before
the Governor takes a final decision. At the end of the minimum term the Board
would consider making recommendations to the Governor on whether the
prisoners' sentences should be changed. For discretionary life cases sentenced
after the commencement of this bill, the trial judge would specify in open court
as part of the discretionary sentence a punitive minimum term to be served and
would submit a written report to the Governor setting out any special
considerations or circumstances to be taken into account in future reviews.
To provide greater fairness to existing prisoners serving discretionary life
sentences or HMP prisoners, the Administration has agreed to the suggestion of
the Bills Committee of providing the prisoner an opportunity to make written
representation to the Chief Justice for the Chief Justice to take into account when
making recommendations. This is in addition to the prisoner's opportunity to
make representations to the Governor. The Administration will, during the
Committee stage, move an amendment to this effect.
To bring in line with the treatment accorded to new cases, the
Administration has agreed in response to the Bills Committee to add a provision
to require that the Chief Justice's report to the Governor in respect of existing
discretionary life sentence cases should set out any special considerations or
circumstances to be taken into account in future reviews. The relevant
amendments will be introduced by the Administration.
As regards the Committee's other suggestion of providing an appeal
channel for existing prisoners aggrieved by the decision of the Governor on the
length of the minimum term similar to that for new cases, the Administration has
explained that the differential in treatment in respect of existing cases and new
cases is inevitable since the trial and sentencing in respect of the existing cases
are over.
236
LEGISLATIVE COUNCIL — 23 June 1997
When the Governor determines the minimum terms for existing cases his
decisions are administrative and cannot be subject to the appeal mechanism
applicable to the judicial decisions in the new cases. Since a prisoner would
now be given two opportunities to make representations, there are sufficient
safeguards to protect the interests of the prisoner. Further appeal channel is
therefore unnecessary.
The Committee accepts the Administration's
explanation.
The Bills Committee is concerned whether it is practical for the statutory
Board to conduct review on the sentences of the prisoners as provided under the
bill, particularly now that the Board would be given new powers to order
post-release supervision and conditional release under supervision without
compromising the quality of review. The Administration has explained to us
how the existing Board of Review long-term sentences operates. I hope the
Board could, in the light of experience, review its mode of operation and conduct
more meetings if necessary.
The Administration will be working on the regulations for the carrying out
of the purposes of the Bill. They will be subject to the Legislative Council
approval by resolution. An amendment to this effect will be made by the
Administration. The Committee is concerned about the timetable to implement
these regulations. In this regard, I should be glad if the Secretary for Security
could say a few words on his plan.
In response to the Committee's concern, the Administration has clarified
that the courts ruling of a recent judicial review case brought by an HMP
prisoner does not affect the proposals in the bill. Arising from this particular
case, the Administration has conducted a fresh review of twenty HMP cases. I
am glad to know that as a result, four HMP prisoners were granted release on
licence and two had their indeterminate sentences commuted to determinate
sentence. The remaining cases will continue to be reviewed regularly by the
Board. To ensure that the arrangements for their release are consistent with the
provisions in the bill, the Administration will move an amendment deeming these
released prisoners to have been conditionally released under the bill.
I wish to thank the Administration for taking on board many of the
suggestions put forward by Members of the Committee. The Committee stage
amendments to be moved by the Administration is a concerted effort of Members
and the Administration.
LEGISLATIVE COUNCIL — 23 June 1997
237
Mr President, with these remarks and subject to the agreed amendments to
be made by the Secretary, I commend this Bill to the Council.
MR LEUNG YIU-CHUNG (in Cantonese): Mr President, no one would object
that a person who has committed a crime should be appropriately punished.
However, modern society has more and more realized the need to give a chance
to a prisoner or criminal to mend his ways. Therefore, I very much support that
the prisoners' sentence terms should be reviewed regularly. We should also try
as much as the situation allows to substitute the imprisonment by other means
such as a conditional release. The proposal put forward in the Bill is working
towards this civilized direction. Its intention should be given positive support.
However, as regards the functions and composition of the statutory
Long-term Prison Sentences Review Board (the Board), there is much room for
improvement.
What I worry most is whether adequate supportive resources are available
to allow the Board to review the large number of long-term imprisonment cases
effectively. At present, the Board holds a meeting every three months and has
to take care of 110 cases at each meeting. With such a large number of cases to
handle every time, I am afraid that the Board's handling procedures will be too
cursory for it to see everything and it is impossible to have an in-depth study of
the unique situation of each case. With the review done this way, will it be fair
to the prisoners under review? At the same time, if the Board only looks at the
files and papers at the meeting rather than having an on-the-spot understanding
of the prisoners' situation, it will tend to have idle theories and the result will
naturally be dissatisfactory and the review will become mere formality and
routine work. I urge the Government to seriously consider the above problems
and set down specific and strict review procedures when formulating the
subsidiary legislation and formally establishing the statutory Review Board to
ensure that the review is "a substantial review" rather than mere formality. At
the same time, the Government should also consider increasing the number of
supporting staff for the Board to handle the large number of review cases
effectively.
Moreover, in respect of the composition of the Board, I welcome that the
the Secretary for Security has accepted the proposal of the Bills Committee to
amend clause 6(2) of the Bill, which specifies that at least one member of the
238
LEGISLATIVE COUNCIL — 23 June 1997
Board must be a person who has expertise and experience in the rehabilitation of
prisoners. I believe that the more such people with extensive experience in
helping released prisoners joining the Board, the more effective the reviews will
be. I hope that when appointing members to the Board in future, the
Administration will appoint, as many as possible, people with relevant
experience.
Mr President, other than laying down the way to handle future
imprisonment cases and the mechanism for reviewing the punitive terms, the Bill
also sets a new sentence review mechanism for certain categories of prisoners,
including juvenile prisoners detained at Her Majesty's pleasure (HMP). My
greatest concern is how to effectively and within the shortest time possible set
specific sentences to prisoners who have been imprisoned for a long time.
Article 5(4) of the Hong Kong Bill or Rights states, "Anyone who is deprived of
his liberty by arrest or detention shall be entitled to take proceedings before a
court, in order that that court may decide without delay on the lawfulness of his
detention and order his release if the detention is not lawful." Therefore, I feel
that the 23 existing HMP juvenile prisoner cases are obviously in breach of the
requirement of the Bill or Rights that the length of the detention shall be decided
without delay.
The Bill proposes that young murderers already sentenced, including cases
sentenced before and after the abolition of the capital punishment in 1993, should
be handled as follows, "Other than discretionary life prisoners, the Chief Justice
shall make recommendation to the Governor for approval on the appropriate
minimum punitive term to be served for the prisoners detained at Her Majesty's
pleasure. Then the Board may review their cases and consider whether they
shall be released after they have served their term."
The Bill's proposal has undoubtedly set down a more distinct mechanism
for reviewing the sentences of those prisoners but there are still inadequacies in
the proposal which are worth scrutinizing.
First of all, in respect of the sentenced cases, especailly HMP juvenile
prisoner cases, the Bill does not require the affected prisoners to be given the
right to make representations to the Chief Justice before the Chief Justice makes
a recommendation to the Governor for his final decision on the appropriate term
to be set. It is worth noting that the Administration suggests that the sentence
terms of future cases be decided by the trial judge, allowing the defendant to
LEGISLATIVE COUNCIL — 23 June 1997
239
make representations about the term of sentence immediately. Therefore, if the
affected people in the past cases are not given the right to make representations
before the Chief Justice makes a recommendation on their prison terms, it will
certainly create unfairness. In fact, to deprive the affected people the
opportunity to express his views, make representations or present any factors for
consideration for the remission of his prison term to the court is a serious
violation to the principle of "natural justice". Concerning this, I very much
welcome the Committee stage amendment to be moved by the Secretary for
Security to give the prisoner an opportunity to make written representations to
the Chief Justice for the Chief Justice to take into account in making
recommendations.
My second concern is the proposal in the Bill to set a "minimum punitive
term" and the Board may only decide whether to release a prisoner after he has
served such term in full. This arrangement is certainly a heavy blow to the
young prisoners trying to turn over a new leaf. I believe that it is necessary to
distinguish juvenile criminals from adult criminals mainly because most of the
juvenile criminals are immature psychologically and mentally when they commit
crimes, and therefore the society should allow them more chances to mend their
ways. Hence if the Board considers that they are truly repentant and should be
released early, the law should give them the chance and I believe that this will
not pose a threat to the public. I hope that in its actual operation in future, the
Board should be flexible as whether to consider recommending to the future
Chief Executive to give individual prisoners an early release while they are still
serving their "minimum punitive term".
Not too long ago, an HMP juvenile prisoner who had been detained for
over 19 years successfully received a judiciary review in which the High Court
applied section 70(3) of the Criminal Procedure Ordinance (Cap. 221) in its
ruling to request the Governor to give a direct order indicating when and under
what conditions juvenile prisoners are to be released. Last week, after
considering the 20 cases, Mr PATTEN, the Governor, announced that only four
of the prisoners are granted a conditional release, a determinate term has been set
for another two while he had to wait for this Council to passed the Bill before he
sets the determinate term for the remaining 14 under the new legislation. I feel
that such an arrangement is inappropriate. On the one hand, even if this
Council passes this Bill today, which I believe so, it is still unknown when the
proposals are to be effected as the composition process of the Board is still
underway. On the other hand, since they are HMP juvenile prisoners, the Hong
240
LEGISLATIVE COUNCIL — 23 June 1997
Kong Government has the moral responsibility to take immediate action to settle
their cases before the changeover of the sovereignty; otherwise, this problem will
have to be carried over to the Chinese government, particularly the Hong Kong
Special Administrative Region (SAR) Government. Yet it is unreasonable for
the Chinese Government to deal with those cases. At the same time, I also
worry that after its establishment, the HKSAR Government will be too busy with
the executive work and will not give priority to dealing with these juvenile
prisoners. Therefore, I hope that the Government will consider this problem
very carefully.
Nevertheless, no matter what means will be adopted, my only hope is to
see these juvenile prisoners given to know, as soon as possible, their definite
sentence term so that they and their families can free themselves of the anxieties
that have been troubling them for all this time.
Mr President, with these remarks, I support the draft Bill.
SECRETARY FOR SECURITY: Mr President, the Bill before us seeks to
further enhance the transparency, efficiency and fairness of our prison sentence
review and remission system. It will ensure, among other things, that the
procedures for reviewing the long-term prison sentences are governed by
statutory procedures. These improvements will benefit prisoners and their
families, as well as the whole community.
I am grateful to the Honourable Ronald ARCULLI and members of the
Bills Committee for the time and care they took to study the Bill since it was
introduced into this Council in March.
They have made very useful
suggestions, which helped us improve the Bill in a number of areas.
Mr Ronald ARCULLI has just summed up the views of the Bills
Committee, which the Administration generally accepts. The Bills Committee
has also forwarded to us comments from The Hong Kong Bar Association, the
Society for The Rehabilitation of Offenders Hong Kong, and Hong Kong
Christian Kun Sun Association Limited. We have carefully considered these
organizations' views and have reflected them in the Bill as far as possible.
I should also mention that arising from a fresh review of the cases of 20
prisoners serving sentences at Her Majesty's pleasure by the Governor, four of
them have been released on licence pursuant to the repealed section 70(3) of the
LEGISLATIVE COUNCIL — 23 June 1997
241
Criminal Procedure Ordinance. However, as this section did not set out in
detail the release arrangements, we had to rely on the provisions on conditional
release in the Bill as guidelines for implementing their release. One of the
concerns of The Hong Kong Bar Association was how their release could tie in
with the Bill. To address this concern, we have, with the agreement of the Bills
Committee, included a Committee stage amendment deeming persons released on
licence under section 70(3) of the Criminal Procedure Ordinance to have been
conditionally released under the proposed legislation.
Regarding the outcome of the fresh reviews, I should point out that the
reviews followed the same procedures as the regular reviews undertaken by the
Board of Review, Long Term Prison Sentences, but with an additional option
considered, which is release on licence pursuant to section 70(3) of the Criminal
Procedure Ordinance. The final decision taken by the Governor was based on
recommendations from the Board, which considered a range of factors in the
review process, including the nature of the offence, the prisoner's progress and
prospects in terms of rehabilitation, the need to protect the community from
possible harm that could be inflicted by the prisoner, and so forth. The Board
also considered all the relevant reports concerning the prisoners, and all the
representations and petitions submitted by the prisoners themselves and by other
people on their behalf. The cases of HMP prisoners still serving indeterminate
sentences will continue to be reviewed by the Board on a regular basis. Within
six months after the commencement of the proposed legislation, the minimum
terms of HMP prisoners with indeterminate sentences will be determined. Mr
President, notwithstanding the different views between the Honourable LEUNG
Yiu-chung and the Administration, let me take the opportunity to express my
admiration for the untiring efforts of Mr LEUNG to speak for these HMP cases.
The principal amendments in respect of the Bill which I will propose at the
Committee stage are:
(a)
firstly, to specify that at least one member of the statutory Board
must be a person who has expertise and experience in the
rehabilitation of prisoners;
(b)
secondly, to require the statutory Board to also consider, in the
review process, whether the prisoner has served the punitive part of
his sentence;
LEGISLATIVE COUNCIL — 23 June 1997
242
(c)
thirdly, to repeal rule 69A of the Prison Rules, which provides a
statutory basis for regular reviews of prison sentences, and to
re-establish this statutory basis in the Long-term Prison Sentences
Review Ordinance;
(d)
fourthly, to give the prisoners concerned at least 14 days, rather than
seven days, to look at the relevant materials to be considered by the
statutory Board;
(e)
fifthly, to state explicitly that persons released on licence under the
repealed section 70(3) of the Criminal Procedure Ordinance are
deemed to have been conditionally released under the proposed
legislation;
(f)
sixthly, to stipulate that the associated Regulations would be subject
to the approval of the Legislative Council;
(g)
seventhly, to empower the Governor to remove any member from
the statutory Board who has been convicted of an offence
punishable by imprisonment, irrespective of the length of
imprisonment;
(h)
eighthly, to allow prisoners to make written representations both
before the Chief Justice makes recommendations on the minimum
terms of their sentences and before the Governor takes a final view;
and
(i)
ninthly, to specify that when the Chief Justice makes
recommendations to the Governor on the minimum terms, he should
also set out any special considerations or circumstances to be taken
into account in future reviews.
The Bills Committee has suggested the possibility of including provisions
on oral representations. The proposed Bill does not itself provide for oral
hearings but it allows prisoners to make written representations before their cases
are reviewed by the statutory Board. The existing Board has been consulted on
whether oral hearing procedures should be adopted in the review proceedings.
The Board considers that oral hearings represent a major departure from the
existing practice, and we should examine all the relevant issues carefully before
LEGISLATIVE COUNCIL — 23 June 1997
243
deciding on the best way to proceed. The Board is also concerned that there are
already a number of new elements in the Bill and the Board will need time to
make a transition to the new mode of operation. Therefore, they have suggested
that we should deal with the question of making further provision for oral
hearings in slower time, after the primary legislation has been enacted and after
the Board has been given some time to adjust to the new mode of operation.
Moreover, section 12(5) would give the statutory Board a discretion to allow oral
representations in particular cases. In other words, the existing Board believes
in a step-by-step approach and is of the view that the statutory Board should have
the discretion to introduce oral hearings in a gradual manner. We agree with the
Board's view.
I understand that the Bills Committee has also expressed concern on when
the Regulations will be made. Let me assure Honourable Members that we are
giving priority to the preparation of the Regulations, with a view to completing
the drafting work in about August and submitting the Regulations to the
legislature as soon as possible thereafter if possible by September or October.
Mr President, I recommend the Long-term Prison Sentences Review Bill to
this Council.
Question on the Second Reading of the Bill put and agreed to.
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.
LONG-TERM PRISON SENTENCES REVIEW BILL
244
LEGISLATIVE COUNCIL — 23 June 1997
Clauses 1, 3, 5, 7, 9, 10, 16 to 20, 22, 24, 25, 26, 28 to 33, 35, 36, 37, 39 to 42, 44
and 45 were agreed to.
Clauses 2, 4, 6, 8, 11 to 15, 21, 23, 27, 34, 38 and 43
SECRETARY FOR SECURITY: Mr Chairman, I move that clauses 2, 4, 6, 8,
11 to 15, 21, 23, 27, 34, 38 and 43 be amended as set out in the paper circularized
to Members.
The amendments contain the principal improvements to the Long-term
Prison Sentences Review Bill which I have already referred to in the Second
Reading Debate. They have been discussed in detail by the Bills Committee
and have received the Committee's endorsement.
Mr Chairman, I beg to move.
Proposed amendments
Clause 2 (see Annex IV)
Clause 4 (see Annex IV)
Clause 6 (see Annex IV)
Clause 8 (see Annex IV)
Clause 11 (see Annex IV)
Clause 12 (see Annex IV)
Clause 13 (see Annex IV)
LEGISLATIVE COUNCIL — 23 June 1997
245
Clause 14 (see Annex IV)
Clause 15 (see Annex IV)
Clause 21 (see Annex IV)
Clause 23 (see Annex IV)
Clause 27 (see Annex IV)
Clause 34 (see Annex IV)
Clause 38 (see Annex IV)
Clause 43 (see Annex IV)
Question on the amendments put and agreed to.
Question on clauses 2, 4, 6, 8, 11 to 15, 21, 23, 27, 34, 38 and 43, as amended,
put and agreed to.
Schedules 1 and 2
SECRETARY FOR SECURITY: Mr Chairman, I move that Schedule 1 and
Schedule 2 be amended as set out in the paper circularized to Members.
The amendments contain other improvements to the Long-term Prison
Sentences Review Bill which I have already referred to in the Second Reading
246
LEGISLATIVE COUNCIL — 23 June 1997
debate. They have been discussed in detail by the Bills Committee and have
received the Committee's endorsement.
Mr Chairman, I beg to move.
Proposed amendments
Schedule 1 (see Annex IV)
Schedule 2 (see Annex IV)
Question on the amendments put and agreed to.
Question on Schedules 1 and 2, as amended, put and agreed to.
Council then resumed.
Third Reading of Bill
THE SECRETARY FOR SECURITY reported that the
LONG-TERM PRISON SENTENCES REVIEW BILL
had passed through Committee with amendments. He moved the Third Reading
of the Bill.
Question on the Third Reading of the Bill proposed, put and agreed to.
Bill read the Third time and passed.
Resumption of Second Reading Debate on Bill
MUTUAL LEGAL ASSISTANCE IN CRIMINAL MATTERS BILL
Resumption of debate on Second Reading which was moved on 23 April
1997
LEGISLATIVE COUNCIL — 23 June 1997
247
MR ERIC LI: Mr President, no one can question the aim of enhancing
inter-government co-operation in the fight against serious cross border crimes.
It is the scope of this Bill and the very broad terms in which it was
originally drafted that has given rise to concern from the accounting profession
and others, for example, the Hong Kong Association of Banks.
In principle, the Hong Kong Society of Accountants (HKSA) believes that
tax investigations should be excluded from the scope of mutual legal assistance
legislation and treaty agreements. Enforcement of tax laws is very much a
domestic matter. Tax regimes differ widely throughout the world. Hong Kong
is acknowledged to have a straightforward, uncomplicated regime which does not
impose taxation on its citizens on a worldwide basis. At the same time,
countless foreign nationals and foreign corporations have chosen to live and
invest here because of our simple, readily-understandable tax system in
operation. These investments have brought significant contribution to Hong
Kong's growing prosperity. There are significant dangers inherent in giving
assistance to enforcing foreign tax laws in Hong Kong which could have
implications for Hong Kong's attractiveness as a place to invest.
Given the simple, domestically-oriented tax system we have here, I am
convinced that Hong Kong has more to lose then to gain in opening the door to
"possible fishing expeditions" in the territory by foreign governments against
their taxpayers. This is why I argued for matters relating to tax investigations to
be taken out of the Bill and, in principle, for mutual assistance in tax matters to
be considered separately by competent tax authorities and professionals rather
than diplomats, where the pros and cons can be more carefully evaluated and
balanced. This is in fact the more common international practice.
However, the accounting profession recognizes that the constraints of time
and of certain recently signed agreements in mutual legal assistance have put
considerable pressure both on the Bills Committee and the Administration. I
therefore accept that, under the circumstances, the Government has taken
sufficient steps through the Committee stage amendments to preserve and protect
as far as possible the existing level of confidentiality in communications between
tax advisers, auditors and their clients. The accounting profession welcome
these proposals and, although they do not go as far as we originally proposed,
that is, to reintroduce the same proposed Committee stage amendments of the
248
LEGISLATIVE COUNCIL — 23 June 1997
Administration for the now withdrawn Evidence (Amendment) Bill which would
have the effect of disapplying the whole Bill to tax investigations.
Notwithstanding the above, I would still wish to register concern in respect
of a few aspects of the Bill that may need to be reviewed at the earliest possible
time in future.
Both the HKSA and the Law Society expressed concern about the low
threshold for what constitutes an "external offence" and an "external serious
offence" in relation to which a request from another government for assistance
will be triggered. Much of the Bill depends on these definitions because it is an
investigation into or prosecution of such offences that could lead to witnesses
being compelled to give evidence, to disclose confidential material, or to
premises being searched or property being seized and sent out of Hong Kong.
Originally an "external serious offence" was defined as an "external
offence punishable with imprisonment for more than 12 months or any greater
punishment". Following representations to the Bills Committee, the threshold
has been increased to a maximum penalty of not less than 24 months (or death).
There is concern that external offences which carry a maximum prison term of 24
months may not necessary be the kinds of major international crime that warrant
the invoking of the extensive and strong powers of this Bill. As regards the
definition of "external offence" which is a sufficient trigger point for many of the
provisions of this Bill to be employed, this has not been amended and remains
simply "an offence against a law of place outside Hong Kong". While there are
certain safeguards in the Bill, for example, against self-incrimination and to
discourage investigations which are primarily "fishing expeditions", I believe
there is still a need to sound this note of caution.
Another point that should be noted is that the Bill provides no specific
protection for innocent third parties whose property is transmitted overseas for
the purposes of evidence, where that property is subsequently damaged or lost.
It is true that the Committee stage amendments will make it harder for a
requesting party to demand that the original of a thing be sent overseas. The
Attorney General will need to be satisfied that the original rather than a duplicate
is essential, and he or she will be able to require an unqualified undertaking that,
if sent, the original will be returned at the conclusion of proceedings. However,
this does not address in full all the concerns expressed. Apart from the issue of
LEGISLATIVE COUNCIL — 23 June 1997
249
loss or damage, proceedings following an investigation may, of course, drag on
for a very considerable long time.
Finally, there are various places in the Bill where the Attorney General is
given the discretion to determine a very important issues, for example, under
clause 15(9) in relation to the disclosure of information that is bound by a
secrecy obligation or duty of confidentiality under other legislation or elsewhere.
Under a Committee stage amendment, the Attorney General must determine first
whether it is in the public interest of Hong Kong to override existing secrecy
provisions. Also, under clause 5(1), the Attorney General must refuse a request
for assistance if, in his or her opinion, it is of a particular kind or would be likely
to lead to certain consequences. Examples are if the request relates to "an
offence of a political character" or if "the granting of the request would seriously
impair the essential interests of Hong Kong".
While the Administration has assured us that such decisions by the
Attorney General would be subject to judicial review (and while I would, in any
case, hesitate to question the judgement of the Attorney General), concern was
nevertheless expressed that it would be of more comfort if a specific appeal to
the Court against such decisions was provided for in the Bill.
Mr President, the present Bill in front of the Council is by no means a
perfect one. But given its worthy aim and the unusual circumstances. I will
support the resumption of the Second Reading of the Mutual Legal Assistance in
Criminal Matters Bill, with these additional remarks and notes of caution, Mr
President.
MR RONALD ARCULLI: Mr President, whilst I agree that as a responsible
member of the international finance and commercial fraternity, Hong Kong
should play its role in giving and indeed receiving legal assistance in criminal
matters, however, there are two areas that are of particular concern to the Liberal
Party.
The first involves the giving of mutual legal assistance during an
investigation stage of a criminal case. The concern here, Mr President, is that
we must guard against fishing expeditions by authorities outside Hong Kong.
We are told that we need not have such fears simply because our system of
criminal justice, under the common law, is somewhat different from those
countries that operate under their own criminal code. In those instances the
investigation process is part of the prosecution procedure. Mr President, I
250
LEGISLATIVE COUNCIL — 23 June 1997
simply want to put a marker down of the Liberal Party's concern. We caution
against any enlargement of the definition of "criminal matter" in the Bill.
The second point, Mr President, involves the scope of any mutual legal
assistance agreement. By scope I mean the type of criminal offences included
in any mutual legal assistance agreement. Of particular concern is the inclusion
in any such agreement of any matters involving taxation or revenue matters.
We have been shown, for instance, a copy of the agreement already entered
into by the Hong Kong and the United States Governments which has yet to be
ratified by this Council. However, as presently advised, I would need an awful
lot of persuasion for me to vote in favour of the Hong Kong/United States MLA
agreement as it includes taxation, duties or other revenue matters. I would be
extremely reluctant to expose our community, our businesses, our banks for
instance, and our professional people to the rigours of a request for assistance in
a run-of-the-mill tax offence or any similar type of offence from the United
States.
Mr President, Mr Eric LI has spoken with great eloquence on the tax and
other issues and I do not propose to repeat his arguments. However, as a
lawyer, I cannot say I share his level of confidence but I do take some comfort in
the fact that this Council will be the guardian of Hong Kong's overall interests.
With those remarks, Mr President, we support the Second Reading of the
Bill.
MISS MARGARET NG: Mr President, I support the Second Reading of the
Bill. I should like to elaborate on one point in the speech of the Honourable
James TO as Chairman of the Bills Committee. I refer to the question of the
right of silence. This right has been recently confirmed in the Court of Appeal.
Under the common law system in Hong Kong, a person does not have to
answer any question by a police officer or any other officer investigating a crime
if he does not wish to do so. He does not have to make any statement. Of
course, he cannot be compelled to answer a question if it tends to incriminate
him. But whether or not it tends to incriminate him, he does not have to answer
the question unless he wishes to do so. This is his right of silence. When he is
LEGISLATIVE COUNCIL — 23 June 1997
251
called as a witness in the trial, it is somewhat different. He may be compelled to
answer all relevant questions unless the answer tends to incriminate him.
This right of silence is preserved under the present Evidence Ordinance
which allows a foreign authority to make a request to the Attorney General to
take evidence from a person in Hong Kong because he can only do so if criminal
proceedings have started to take place or are likely to take place. The person
who is compelled to give evidence for a foreign court has the same right as if he
is giving evidence for a court in Hong Kong, that is, he may be compelled to
answer all relevant questions except when they tend to incriminate him.
The problem created by this Bill arises from the fact that it allows evidence
to be taken for a foreign authority at the investigating stage, whereas one cannot
be compelled to answer any questions at this stage in Hong Kong. Now, one
can only refuse to do so if the answer itself is incriminating. This is a
diminishment of his right of silence. Moreover, it creates the anomaly that
where a person does not have to answer the questions of a Hong Kong police
officer he does have to answer those of a foreign investigating authority.
Mr President, we are told that this right of silence is not a huge right.
Apart from the right against self-incrimination what remains may not mean very
much. Nevertheless, there we have a right and it is entitled to protection.
Further, while the right may be restricted by law if there is sufficient justification,
we have to first assure ourselves that it is fully justified and that effect of the
restriction is reduced to a minimum. Obviously, it is important for Hong Kong's
public interests to establish international and mutual legal assistance to deal with
crime.
I am glad to say that in the end an acceptable solution has been found, and
I commend the diligence and ingenuity of the Administration team. Mr
President, as reported by Mr James TO, the proposed safeguards include the
following:
(a)
a person questioned will be protected by all the protections available
to him in a trial proceeding in Hong Kong, including against
self-incrimination;
LEGISLATIVE COUNCIL — 23 June 1997
252
(b)
he cannot be compelled to give any evidence which he cannot be
compelled to give under the law of the foreign jurisdiction from
which a request is made;
(c)
the evidence which is taken can only be used for the prior specified
investigation of the foreign authority and cannot be used in Hong
Kong in any way or for any proceedings at all, criminal, civil or
disciplinary, save for perjury and contempt of court in respect of the
evidence he gives;
(d)
where his safety or interests justifies it, the court may order to have
the evidence taken in camera.
With these safeguards, even if the right of silence is not left intact, at least
very little of practical significance to the person concerned is given away.
Mr President, I would urge Members to support the Bill and all of the
amendments the Administration will be moving at the Committee stage.
Thank you, Mr President.
MR JAMES TO (in Cantonese): Mr President, as Chairman of the Bills
Committee, I would like to report to Members the deliberations and results of the
work of the Bills Committee on the Mutual Legal Assistance in Criminal Matters
Bill.
The objective of the Bill is to provide comprehensive legislation to
regulate the giving and obtaining of assistance in criminal matters by and
between officials in Hong Kong and places outside Hong Kong.
Members of the Bills Committee in general agreed that there was a need
for the Administartion to cooperate with places outside Hong Kong in the fight
against criminal activities. At the same time, however, they held the view that
the rights of the persons giving evidence in Hong Kong should be fully protected
and that the persons themselves should be protected as well. After consulting
with the Law Society of Hong Kong and the Hong Kong Society of Accountants
(HKSA), the Bills Committee held lengthy discussions with the Administration
LEGISLATIVE COUNCIL — 23 June 1997
253
on the measures to take to ensure the right of silence of persons giving evidence,
especially at the investigating stage, is not infringed.
Members stressed that a balance should be struck between public interest
and the individual's right of silence in giving evidence. There have been
positive responses from the Administration to matters of concern to Members
and a number of proposals were made to safeguard the right of silence of persons
giving evidence. With the proposed extra protection, persons required to give
evidence may refuse to answer questions which they could refuse to answer
under Hong Kong law if the proceedings were Hong Kong proceedings. They
are also entitled to the right against self-incrimination. The production of
materials and evidence is restricted to those specified by the magistrate for the
relevant proceedings. The questions asked must be related to the criminal
matters under investigation. Evidence obtained by overseas jurisdications
cannot be used in Hong Kong in any way or for any proceedings at all, save for
perjury and contempt of court in respect of the evidence a person gives. Where
the person's interests justify it, the magistarte may order to have proceedings
taken in camera.
As regards the production of materials, the Administration will propose
Committee stage amendments to ensure, by means of an unqualified undertaking,
that the originals of the materials are safely transmitted and returned . Despite
the protection proposed, the HKSA is still concerned that the Bill may open the
door to overseas tax control officers, enabling them to enforce the disclosure of
customer information and thus conduct tax investigation in Hong Kong. This
will undermine the competitiveness of Hong Kong as a financial centre with low
tax rate and high confidentiality for information. The HKSA is also worried
that the convenience provided by the Bill may be used by overseas jurisdictions
to collect tax, because requests for investigations of tax offences and those for
tax collection are hard to differentiate. In the light of Members' concerns, the
Administration put forward extra Committee stage amendments to keep tax
information confidential and prevent overseas jurisdictions from abusing the
system to achieve tax collection purposes. To further alleviate the fears of the
HKSA, the Administration made reference to the relevant British laws on
professional exemption for tax advisers in giving evidence regarding tax offences
or overseas investigation work, or in providing information from tax documents
which have become their property.
254
LEGISLATIVE COUNCIL — 23 June 1997
The Administration also agrees to make amendments to the Bill to the
effect that orders implementing bilateral agreements require the approval from
the Legislative Council, instead of negative vetting as originally proposed.
Furthermore, the agreements must be substantially in conformity with the
provisions of the Bill. After the Bill has been significantly amended, persons
who need to provide evidence and information on criminal matters at the request
of overseas jurisdictions may gain better protection. The Administration have
dealt carefully with the relevant amendments to ensure they may still be effective
in providing a basis for cooperation in the fight against international crime
activities, as well as preventing overseas jurisdictions from abusing the
mechanism.
I would take this opportunity to thank the Administration for its open
attitude in accommodating Members' opinions and making positive responses to
their concerns.
With these remarks, I urge Members to support the Bill and all the
Committee stage amendments put forward by the Government.
MR IP KWOK-HIM (in Cantonese): Mr President, since Hong Kong is an
international city with extremely frequent communications with other places,
there is a need to set up mutual assistances of different forms with other
countries.
In particular, in a time when crimes are becoming more
internationalized, the arrangements concerning mutual assistance in criminal
matters are even more indispensable. In the existing laws of Hong Kong,
certain provisions in the Evidence Ordinance and the Drug Trafficking
(Recovery of Proceeds) Ordinance empower the Hong Kong Government to
provide foreign governments with legal assistances, but such assistances are
limited and unidirectional.
This Bill provides the legal basis for mutual legal assistance in criminal
matters between the Hong Kong Government and the foreign authorities
concerned. The Bill confers on the foreign authorities concerned the power to
compel witnesses to give evidence and produce exhibits during the investigating
stage, which is a power not easily exercised by the law-enforcing authorities in
Hong Kong. However, at the Committee stage, the Government will move a
number of amendments to strengthen the protection of the witnesses against
being compelled to give evidence at the investigating stage. Any evidence
LEGISLATIVE COUNCIL — 23 June 1997
255
given to foreign authorities as assistance cannot be used in any way in Hong
Kong. At the same time, the magistrate has the power to conduct a proceeding
in camera with sufficient justification, and he can demand the guarantee of
returning the exhibits from the other party when the exhibits are produced. The
Democratic Alliance for the Betterment of Hong Kong (DAB) finds this
arrangement acceptable.
Mr President, another issue of concern is taxation. The Bill provides that
a foreign government can ask Hong Kong for assistance in serious tax offence
cases. But it is very difficult to draw a line between the assessment, collection
of tax and a serious tax offence. Therefore, the DAB is worried whether this
particular provision will eventually be reduced to a tool for foreign governments
to tax their businessmen investing in Hong Kong. This will definitely
jeopardize their confidence in making investments in Hong Kong. Lastly, the
Government proposes a number of amendments which exempt certain
professionals and documents from this Bill. The DAB thinks that this is
somewhat a makeshift solution, although it is not the most effective and may
create new prerogatives in some professions as well as chaotic situations in
which other professional associations also ask for exemption, it can avoid these
professionals from being compelled to give evidence or produce exhibits at the
investigating stage.
Mr President, the Bills Committee faced a lot of restrictions and
difficulties during the examination of the Bill. Before the Government
submitted the Bill, Hong Kong had already signed some agreements of mutual
assistance in criminal matters with the United States and Australia, and the
present Bill was drafted on the basis of the terms in these two agreements.
Unfortunately, when the Hong Kong Government signed the agreements, the
public, especially the Bar Association, the Law Society and the Society of
Accountants, were not consulted. As a result, the Bill submitted to this Council
was restricted by the above-mentioned agreements and gave rise to the problems
of taxation and witnesses being compelled to give evidence. During the
scrutiny of the Bill, Honourable colleagues had to maintain the credibility of
Hong Kong in the international community and strive to protect the interests of
Hong Kong people from being harmed unduly. Therefore, the DAB hopes that
the Government will consult different parties and organizations before it signs
mutual assistance agreements with other countries in future to avoid unnecessary
chaos and apprehension.
256
LEGISLATIVE COUNCIL — 23 June 1997
Mr President, with these remarks, I support the Bill and the amendments
on behalf of the DAB.
SECRETARY FOR SECURITY: Mr President, I would like to thank the
Chairman of the Bills Committee, the Honourable James TO, and other members
of the Committee for their careful, and speedy, examination of the Bill. I am
also grateful to the Committee for their support of the principles of the Bill, and
for the constructive suggestions which they have made to further refine the
provisions of the Bill. In the light of their suggestions, I will move amendments
to the Bill at the Committee stage.
The Bill provides a statutory framework to implement the bilateral
agreements on mutual legal assistance which we are concluding with other
jurisdictions. It sets out conditions and procedures for providing assistance in
the areas of taking of evidence, search and seizure, production of material,
transfer of persons to give evidence and confiscation of the proceeds of crime.
This Bill is important in enabling Hong Kong to co-operate with other
jurisdictions in the fight against international crime.
As I mentioned earlier, members have made suggestions to further refine
the Bill. We have responded positively to these suggestions and I will move
relevant amendments at the Committee stage. I shall explain the major
amendments here.
Firstly, the Bill gives power to take evidence at the investigation stage.
The Bills Committee was concerned that under the Bill, a person compelled to
give evidence at this stage should have appropriate protections. To better
protect individual's rights, we will introduce more safeguards by way of
amendments to subclauses (2A), (9), (11) and (12) of clause 10. These
amendments will enable witnesses to refuse to answer questions which they
could refuse to answer under Hong Kong law if the proceedings were Hong
Kong proceedings, in particular, the privilege against self-incrimination is
preserved. Evidence obtained at foreign request will not be able to be used in
Hong Kong proceedings except for the offences of perjury or contempt of court.
We believe the amendments strike the right balance between the need to provide
assistance to foreign investigations and protection of the basic right of
individuals.
LEGISLATIVE COUNCIL — 23 June 1997
257
Secondly, on investigation into tax offences, the existing Bill is only
intended to allow assistance to be given if the requests relate to offences and not
the assessment or collection of tax. However, it was pointed out by Members
that it was very difficult to differentiate between requests for investigations of tax
offences and those for tax assessment or collection. In view of this, I will move
amendments to clause 3(3) to put it beyond doubt that the Bill cannot override
the secrecy provisions of the Inland Revenue Ordinance. Additionally, a new
clause 5(1A) places a positive duty on the Attorney General to refuse a request in
relation to an investigation into a taxation offence if the requesting jurisdiction is
not a prescribed place or if he is satisfied that the primary purpose of the request
is the assessment or collection of tax. Amendments to clauses 10(10), 12(12)
and 15(9)(aa) provide that tax advisers or auditors are not required to give
evidence which is or relates to tax documents or subject any tax documents to
search and seizure or production orders.
Thirdly, the Bill provides that Orders implementing bilateral agreements
can modify the Bill. The Administration is of the view that modifications in
these Orders are necessary as mutual legal assistance practices varies from
jurisdiction to jurisdiction. However, I shall move amendments to clause 4 to
put it beyond doubt that the bilateral agreements must be substantially in
conformity with the provisions of the Bill. All the modifications will be
summarized in a schedule to the Order for the Legislative Council to consider.
Further amendments will require that such Orders will not be able to operate
unless they are positively approved by this Council.
Fourthly, on the transmission of original documents to foreign
jurisdictions, I shall move amendments to clause 10 to restrict the transmission of
original documents to the requesting jurisdiction unless the Attorney General is
given an unqualified undertaking that the original will be returned. This
amendment will protect individuals in Hong Kong.
Finally, the Bill does not prohibit the rendering of assistance to countries
with which Hong Kong does not have a bilateral agreement. On the advice of
the Bills Committee, we will introduce an amendment to the effect that where
there is no bilateral agreement assistance shall be refused unless sufficient
assurances of reciprocity for future requests by Hong Kong are received.
These amendments are designed to ensure that the basic rights of
individuals in Hong Kong affected by requests by foreign jurisdiction are
appropriately safeguarded, while at the same time permitting Hong Kong to be
258
LEGISLATIVE COUNCIL — 23 June 1997
able to co-operate with our law enforcement partners overseas in combating
trans-boundary crime. It is important that the Bill be enacted so that Hong
Kong can discharge its obligations under the bilateral agreements we are
concluding.
Mr President, with these remarks, I recommend the Bill to this Council.
Question on the Second Reading of the Bill put and agreed to.
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.
MUTUAL LEGAL ASSISTANCE IN CRIMINAL MATTERS BILL
Clauses 1, 6, 7, 11, 13, 16, 18, 20, 21, 22, 24 to 34 and 36 were agreed to.
Clauses 2 to 5, 8, 9, 10, 12, 14, 15, 17, 19, 23 and 35
SECRETARY FOR SECURITY: Mr Chairman, I move that the clauses
specified be amended as set out in the paper circularized to Members.
Apart from the key proposals which I have referred to in my Second
Reading debate speech, most of the amendments are drafting and technical in
nature. They serve to remove ambiguities, and introduce minor procedural
changes to better protect the rights of persons providing assistance. All the
proposed amendments have been agreed by the Bills Committee.
Mr Chairman, I beg to move.
Proposed amendments
LEGISLATIVE COUNCIL — 23 June 1997
Clause 2 (see Annex V)
Clause 3 (see Annex V)
Clause 4 (see Annex V)
Clause 5 (see Annex V)
Clause 8 (see Annex V)
Clause 9 (see Annex V)
Clause 10 (see Annex V)
Clause 12 (see Annex V)
Clause 14 (see Annex V)
Clause 15 (see Annex V)
Clause 17 (see Annex V)
Clause 19 (see Annex V)
Clause 23 (see Annex V)
259
LEGISLATIVE COUNCIL — 23 June 1997
260
Clause 35 (see Annex V)
Question on the amendments put and agreed to.
Question on clauses 2 to 5, 8, 9, 10, 12, 14, 15, 17, 19, 23 and 35, as amended,
put and agreed to.
Schedules 1 and 2
SECRETARY FOR SECURITY: Mr Chairman, I move that Schedules 1 and 2
be amended as set out in the paper circularized to Members.
These form part of the Committee stage amendments which have been
endorsed by the Bills Committee.
Mr Chairman, I beg to move.
Proposed amendments
Schedule 1 (see Annex V)
Schedule 2 (see Annex V)
Question on the amendments put and agreed to.
Question on Schedules 1 and 2, as amended, put and agreed to.
New Schedule 1A
Schedule read the First time and ordered to be set down for Second Reading
pursuant to Standing Order 46(7).
LEGISLATIVE COUNCIL — 23 June 1997
261
SECRETARY FOR SECURITY: Mr Chairman, I move that new Schedule 1A
as set out in the paper circularized to Members be read the Second time.
This forms part of Committee stage amendments which have been
endorsed by the Bills Committee.
Mr Chairman, I beg to move.
Question on the Second Reading of the Schedule proposed, put and agreed to.
Schedule read the Second time.
SECRETARY FOR SECURITY: Mr Chairman, I move that Schedule 1A be
added to the Bill.
Proposed addition
New schedule 1A (see Annex V)
Question on the addition of the new Schedule proposed, put and agreed to.
Council then resumed.
Third Reading of Bill
THE SECRETARY FOR SECURITY reported that the
MUTUAL LEGAL ASSISTANCE IN CRIMINAL MATTERS BILL
had passed through Committee with amendments. He moved the Third Reading
of the Bill.
Question on the Third Reading of the Bill proposed, put and agreed to.
Bill read the Third time and passed.
262
LEGISLATIVE COUNCIL — 23 June 1997
Resumption of Second Reading Debate on Bill
IMMIGRATION (AMENDMENT) BILL 1997
Resumption of debate on Second Reading which was moved on 19 February
1997
MRS SELINA CHOW: On behalf of the Liberal Party, I support the Second
Reading of the Bill. When the Bill was first introduced I had reservations about
taking away an acquired right which is the right to land enjoyed exclusively by
British nationals who have lived here for seven years under the law. I had no
difficulty with any newcomers from Britain in view of the change in our
constitutional links with the United Kingdom on 1 July 1997. My concern was
that those who have already acquired the right would not be able to ascertain
their right to remain here as a resident after that date.
The situation has now changed. Although the British and the Chinese
sides have failed to agree 100% on the issue of permanent residence after the
changeover, public announcement on both sides as well as the Bill on the matter
considered by the provisional legislature have clarified the position for all those
concerned. Those who have the right to land and have been living here in Hong
Kong immediately before the handover would be in a position to apply for
permanent residence status if they wish. Those who do not choose to apply
would still be allowed unconditional stay administratively.
Furthermore, according to the resolution of the National People's Congress
of the People's Republic of China, all provisions granting privileges to British
Commonwealth citizens which are not reciprocated will be null and void on 1
July.
It is, therefore, preferable that those who hold the right to land will be
assured of the permission to unconditional stay rather than to be left with the
uncertainty of their status if this Bill is not passed.
Mr President, the Administration's amendment should be supported as it
does provide for certainty. Mr James TO's amendment, on the other hand, does
not. Furthermore, it provides for the commencement by resolution of this
Council, which is contrary to convention and unnecessarily begs questions of
LEGISLATIVE COUNCIL — 23 June 1997
263
when, how and why in the guise of flexibility. We therefore oppose Mr TO's
amendment.
Mr President, we support the motion.
MISS CHAN YUEN-HAN (in Cantonese): Mr President, this Bill is concerned
with the removal of the privileges enjoyed by British people. We think this is a
subject which our Government should have dealt with soon after the Sino-British
Joint Declaration was signed. But, it is a pity that the Government did not have
any intention of dealing with this subject until the Hong Kong Federation of
Trade Unions (FTU) received a number of complaints last year, saying that a
large number of British foreign workers were engaged in manual labour at the
Tsing Ma Bridge and the new airport sites. The FTU requested us to question
the Government and follow-up on this issue. The Security Branch admitted that
under the provisions of section 61(2) of the Immigration Ordinance, the Director
of Immigration can allow British nationals to work in Hong Kong visa-free, but it
indicated that the Government has no intention to amend this Ordinance before 1
July 1997.
Mr President, we, therefore, started to work on drafting our own bill and
indicated that we would put forward a private Members' bill to amend Section 61
of the Immigration Ordinance. We proposed that, apart from certain persons
who could be granted permission to visit Hong Kong without visas, for example,
foreign diplomats and one-way permit holders, restrictions should be imposed on
the Director of Immigration in exercising his discretion to allow anyone to come
to Hong Kong visa-free under the provisions of section 61(2), and a condition of
stay should be added, stating that those people should not be allowed to work in
Hong Kong. I hope that, in addition to removing the British people's right to
land, we can also plug the loopholes in the legislation, so that the Government
cannot import foreign workers in the guise of granting visa-free entries.
As a result of our perseverance, the Government was forced to put forward
a government bill. Both the government bill, that is the Immigration
(Amendment) Bill 1997 and my bill were gazetted on 14 February 1997. The
government bill proposes that right to land of British citizens would be removed
with effect from 1 April 1997. Although the amendment has not touched on
section 61(2) of the Immigration Ordinance, it is better than nothing. Moreover,
264
LEGISLATIVE COUNCIL — 23 June 1997
the privileges of British people should be removed after 1 July 1997, and the
Government cannot evade dealing with this issue.
Mr President, both my bill and the government bill attracted a lot of
attention and arguments in the community when they were first put forward.
There were some specious comments to say that should my bill go through, all
foreigners would face great difficulties when they enter and leave Hong Kong,
and Hong Kong's status as an international city would be placed in jeopardy.
But as a matter of fact, nothing can be further from the truth. We think that
British nationals should no longer enjoy any privileges. In addition to the fact
that this is the consensus of most colleagues of this Council, all foreign nationals
in Hong Kong would also be granted equal treatments in this manner. I think
Hong Kong would only be able to maintain the characteristics of a truly
pluralistic international city by upholding a fair and reasonable principle.
Mr President, the government bill and my bill are both striving towards the
same objective. The government bill mainly seeks to remove the privileges of
British nationals but it has not dealt with the source of the privileges, and that is,
section 61(2) of the Ordinance. This will give rise to trouble. As I said a
moment ago, there should be provisions under the Immigration Ordinance to
safeguard the job opportunities of local "employees", and I believe that this is the
common practice of other countries and places. Some people ask me why I
have no faith in the Government nor in its administrative measures. I think this
is not a question of faith, but just that since there is such a loophole in the
Ordinance, we have to amend it to safeguard the interests of local workers. I am
confident that even if the amendments are passed, it will not affect the status of
Hong Kong as an international city. Nor will it present any difficulties to
foreign investors in Hong Kong.
Mr President, I am glad that my views have been echoed by the Secretary
for Justice designate of the SAR Government. Mr President, ......
PRESIDENT (in Cantonese): Miss CHAN Yuen-han, please sit down. Mr
James TO, please raise your point of order.
LEGISLATIVE COUNCIL — 23 June 1997
265
MR JAMES TO (in Cantonese): We are now debating on the bill to remove the
right to land. The Honourable Miss CHAN Yuen-han has already withdrawn
her bill and she has also stated the relationship between the two bills, but then
her whole speech was still focused on this matter. Mr President, would you
allow this in the debate?
MR PRESIDENT (in Cantonese): Mr James TO, I would usually allow a
latitude in discussions during the Second Reading Debate, because as a matter of
fact, there had been two bills. Miss CHAN Yuen-han, please continue.
MISS CHAN YUEN-HAN (in Cantonese): Mr President, thanks for your ruling.
Mr President, as you said a moment ago, there were two bills and both bills
were striving towards the same objective, and they were initiated by the
complaints of local "workers", saying that some British workers have taken away
their jobs. That is why the Government and I have put forward our amendments
to the Ordinance.
Mr President, I am very pleased that our views are shared by the future
SAR Government. However, we would continue to monitor the situation to see
whether the future Government would abuse section 61(2) of the Immigration
Ordinance to grant privileges to nationals of foreign countries, and allow them to
come to Hong Kong visa-free and work in Hong Kong without work permits.
The FTU will continue to monitor the future Government. Thank you, Mr
President.
MR JAMES TO (in Cantonese): Mr President, I speak in the capacity of the
Chairman of the Bills Committee on Immigration (Amendment) Bill 1997. The
Bills Committee has held six meetings with the Administration, including two
with the organizations concerned, and has also studied 12 submissions. I will
focus on the contents and results of the discussions in the Bills Committee.
First of all, I would like to briefly introduce the background of the Bill.
At present, due to Hong Kong's special constitutional links with the United
Kingdom, British citizens enjoy immigration privileges which include their right
to land in the territory. The British citizens who ordinarily reside in Hong Kong
266
LEGISLATIVE COUNCIL — 23 June 1997
for a continuous period of not less than seven years are entitled to this right to
land, which means they are not restricted by any period or condition of stay.
While they cannot be removed, they can be deported. According to the
Administration's data, the British citizens who have already obtained the right to
land amount to around 22 000, but part of them are not in Hong Kong at the
moment.
To bring the immigration status of the British citizens into line with those
of citizens of other countries, the Administration proposes to adopt a series of
legislative and administrative measures. As Members all know, some of the
administrative measures have already come into effect since 1 April 1997 (such
as stipulating that the British citizens who come to Hong Kong for employment,
residence or study must hold an appropriate visa). The present Bill submitted
for Members' consideration include the proposal of legislating to revoke the
British citizens' right to land. By virtue of a transitional provision in the Bill,
the British citizens having the right to land will be granted unconditional stay.
Let me briefly explain the difference between the right to land and unconditional
stay. The former is a statutory right. People owning this right will not be
restricted by any conditions of stay and can only be deported from Hong Kong by
a specified procedure. The latter is essentially an administrative arrangement.
If a person of such a status is to keep the status, he has to return to Hong Kong
within 12 months after his departure from the territory. Besides, it is simpler to
deport these people.
The Administration thinks that the proposed amendment can solve this
problem in a clear-cut manner once and for all, and it will not leave any
ambiguity after 1 July 1997. Furthermore, after the enactment of local laws
required for the implementation of Article 24(2) and (4) of the Basic Law
concerning the right of abode of persons not of Chinese nationality, the British
citizens who are qualified will have the right of abode.
The Bills Committee does not object to the proposal of treating equally the
British citizens who have not yet acquired the right to land and the nationals of
other countries. However, as to how to deal with the British citizens who have
already acquired the right to land, the views of the Bills Committee members
differ. Some members think that the people who have already acquired the right
to land should be allowed to retain the right. They are of the view that since the
people with the status of unconditional stay will lose the status if they leave
Hong Kong for more than 12 months, it is inappropriate to replace the right to
LEGISLATIVE COUNCIL — 23 June 1997
267
land by unconditional stay. They find it unacceptable to deprive the British
citizens of a statutory right which they have already acquired and try to replace it
with a right of abode which is not yet certain. Most of the submissions received
by the Bills Committee express the same opinion. Other members believe it is
only logical that the immigration privileges enjoyed by British citizens be
revoked with the change of the special relationship between Hong Kong and the
United Kingdom on 1 July 1997.
As members held different views, the Administration and the Bills
Committee agreed at the end of March that the scrutiny of the Bill should be
procrastinated until the arrangement for the right of abode is made. When the
Bills Committee started to work again in early June, the Administration briefed
the Bills Committee on the latest development of the right of abode (I believe
that Honourable Members are already aware of this) and reiterated its stance, that
is, the Bill should be enacted before 1 July 1997. In brief, the Administration
thinks that the arrangement for right of abode announced recently has already
included 95% of the details of the agreement, and so doubts in this aspect should
be dismissed. The enactment of the Bill before 1 July 1997 can dodge
ambiguities after the transfer of sovereignty. The Administration also points
out that, if the Bill cannot be passed before 1 July 1997, British citizens will be
qualified to apply for the right to land or the right of abode on 1 July 1997.
This implies that the privileges enjoyed by British citizens will go on after 1 July
1997. The original intention of the Administration the policy will be destroyed
and the purpose of bringing the immigration status of the British citizens into line
with those of citizens of other countries will be defeated. It is not certain
whether the Hong Kong Special Administrative Region (SAR) Government will
accept this or not. Since there is a need to render the relevant policy clear,
definite and consistent, the Bill must be enacted before 1 July 1997.
If the legislation for the right of abode is not yet enacted on 1 July 1997,
some members are concerned with the status of the British citizens who lose their
right to land after the enactment of the bill. The Administration says although it
will be most ideal if the legislation for the right of abode can be enacted before 1
July 1997, it is not absolutely essential to do so. On 1 July 1997, the Basic Law
will become part of the Hong Kong laws. In accordance with Article 24 of the
Basic Law, the Director of Immigration has the discretion to decide who has the
right of abode. Should detailed local legislation is not yet enacted, the Director
of Immigration can make decision in the light of the general interpretation of
Article 24 of the Basic Law. In fact, it takes time for the Administration to deal
268
LEGISLATIVE COUNCIL — 23 June 1997
with the statements and information submitted in connection with the application
of the right of abode by non-Chinese nationals pursuant to Article 24 of the Basic
Law. If the legislation enacted locally takes effect before the Director of
Immigration makes the final decision on a certain case, the Director of
Immigration can make final decision according to the provisions in that particular
ordinance.
When the Bills Committee finsihed its works, its members were still
unable to reach a consensus on the Bill. I will let individual Members or
political party elaborate their own stances later in the debate.
I will now turn to the Committee stage amendments of the Bill. The only
amendment proposed by the Administration is about the commencement date of
the Bill. The commencement date specified in the Bill is 1 April 1997. The
Administration will move an amendment to change it to 30 June 1997. I will
wait and let the Secretary for Security speak on this issue.
I will also move, in my personal capacity, a Committee stage amendment
to change the commencement date in the Bill to "a day to be appointed by a
resolution of this Council". I will explain the influences of this amendment in
detail when I move the amendment in the Committee stage.
Mr President, I will now put forward the views on behalf of the
Democratic Party. The Democratic Party subscribes to the revocation of the
provision about the right to land because we agree that this provision is related to
our special constitutional link with the United Kingdom and so there is a need to
revoke it.
Now we are discussing an issue of time. If the right to land of the people
who have acquired such a right legitimately is to be taken away, especially when
some of them are not in Hong Kong and may be in the United Kingdom or other
countries at the moment, there should not be a vacuum period which renders
them unable to immediately acquire the right of abode stipulated in Article 24 of
the Basic Law. Of course, I am also aware that certain people having the right
to land may not be capable of implementing and satisfying the stipulations in
Article 24(4) of the Basic Law so as to acquire the right of abode. But the
problem is that we do not want this Council to first revoke the statutory right to
land while it does not have the power to examine this piece of law and cannot
LEGISLATIVE COUNCIL — 23 June 1997
269
give careful consideration to it in order to ensure continuity and grant the people
concerned the right to land under the Basic Law at the same time.
I know that the Government may soon draw up certain forms in accordance
with Article 24 of the Basic Law so that they can make their applications as soon
as possible. However, we still have to consider that on 30 June, the amended
commencement date proposed by the Government, Hong Kong actually does not
have an effective and binding legislation. It seems too loose if we just apply
Article 24 of the Basic Law. We feel that the relevant details of the legislation,
the information to be filled in the form, the relevant proofs required by the
information, or the standard of the proofs are all related to whether or not the
applicant can provide the information and proof, and when he can submit such
information to the Immigration Department. We can definitely not talk about
revocation on the one hand, and work without effective legislation on the other,
if we are to enable them to apply for the right of abode pursuant to Article 24 of
the Basic Law.
The amendment I move can in fact allow this Council or the future
legislature to propose a time limit for revoking the right to land at the same time
(when they think that the legislation for the right of abode can be implemented
and that it is satisfactory to a certain degree). We can imagine that, even after a
certain period subsequent to 1 July 1997, maybe one, two or several weeks, the
existence of the so-called right to land itself is not something outrageous or
unbearable. Although we cannot and should not be sentimentally attached to
the remnants of the colony, we do not have to revoke them before appropriate
arrangements are made, that is, before we can vest the people who need to apply
for the right of abode with the legal rights and clearly draw up the laws. Should
we want to go to such an extreme, many existing things should be destroyed.
For example, certain emblems of this Council or certain so-called historical
traces outside this door may all have to be shattered as in "the movements against
the three sins and five devils". Are we going to smash all of them on 1 July?
We will not do so. We will do things in a rational way.
I reiterate that the Democratic Party definitely supports the revocation of
the right to land. Therefore, we agree in principle to the passing of the Bill so
that the future legislature will be able to revoke this legislation for the right to
land at the same time as satisfactory new legislation for the right of abode is
enforced.
Mr President, with these remarks, I urge Members to support the Bill.
270
LEGISLATIVE COUNCIL — 23 June 1997
MR IP KWOK-HIM (in Cantonese): Mr President, one hundred and fifty years
ago, Hong Kong became a British colony. Since then, the British have had a
superior status in Hong Kong. As time goes by, the situation that the British
can be entitled to privileges has gradually faded away. However, on some
issues, they can still enjoy special benefits. The convenience in the arrangement
of immigration is an example. In the past, when British citizens came to Hong
Kong, they were entitled to a visa-free stay of twelve months and could even
work, study and live in Hong Kong unconditionally during their stay. After
residence of seven years, they could acquire the statutory right to land. On the
contrary, other foreign citizens who came to work, study and live in Hong Kong
have to apply for visas. After residence of seven years, they could only acquire
the administrative arrangement of staying here unconditionally. In comparison,
the status enjoyed by the British is undoubtedly more superior. However, this
superior status is due to the fact that Hong Kong is a British colony. Mr
President, the Administration also admits that British citizens' right to land and
immigration benefits are solely based on the special status of the British in Hong
Kong.
With the return of the sovereignty of Hong Kong to China, the privileges
enjoyed by the British citizens in the past should vanish into history. On 1
April this year, the Administration shortened the visa-free period for the British
from the original twelve months to six months through administrative
arrangements. The British people who work, study and live in Hong Kong
should apply for visas like other foreign citizens. This shows clearly that the
Administration is aware that corresponding arrangements should be made with
the change in history. Therefore, under the situation that the spirits of the
clauses for granting the right to land to the British citizens is about to disappear,
there is no point in keeping their privileges. In fact, the fading out and
withdrawal of the colonial authority is reflected not only in the immigration
arrangement but also in the transitional adaptations in other privileges with
colonial flavour. The hot topic of discussion among the public in Hong Kong
recently is the issue on the exemption of the professional examination for those
Commonwealth student doctors who come to work in Hong Kong. It clearly
shows the appropriate arrangement made on the original policy by this principle.
Those British citizens who have the right to land will not suffer from the
amendment of the Ordinance and lose their right to reside in Hong Kong. They
LEGISLATIVE COUNCIL — 23 June 1997
271
still have the right of abode unconditionally as a transitional arrangement.
Moreover, the pending specific arrangement on the right of abode has been
further clarified. As a whole, these arrangements are very loose and it is
believed that these British citizens will be willing to take Hong Kong as their
permanent home. As for acquiring a more superior, protective and beneficial
right of abode, it is not difficult to achieve. Therefore, basically, the problem of
depriving the rights of these people does not exist. On the contrary, it shows
the principle of a consistent treatment for British and other foreigners after the
handover of sovereignty.
Mr President, the amendment of this Ordinance is made in line with the
changes in history and sovereignty, which is different from a normal change in
policy for withdrawing the rights of some people. Frankly speaking, the
amendment has also mentioned a lot of transitional arrangements so that these
British citizens who have the right to land will not be affected seriously and can
have sufficient time to apply for a better right of abode as replacement.
As for Mr James TO's amendment, the Democratic Alliance for the
Betterment of Hong Kong (DAB) considers that this Bill should be approved and
put into effect expeditiously, so that foreigners, particularly those being affected,
can get a clear message and understand the changed immigration policy. Any
groundless delays will only create more uncertainties, putting those being
affected at a loss.
Mr President, with these remarks, I support the Bill and the
Administration's amendment on behalf of the DAB.
MR HOWARD YOUNG (in Cantonese): Mr President, when the Legislative
Council discussed the Immigration (Amendment) Bill 1997, we received a lot of
opinions from all walks of life. In our discussions, many people, in particular
the legal sector and those who are directly affected, queried whether we should,
by legislative means, change the existing rights of certain people, that is, the
British citizens who used to have the right to land. In fact, since 1 April this
year, the Immigration Department has introduced a series of measures to deal
with problems concerning the privileges which the British citizens once enjoyed
due to the status of Hong Kong being a British colony. Some of these
privileges have in fact been removed.
272
LEGISLATIVE COUNCIL — 23 June 1997
My colleagues of the Liberal Party have discussed the Bill repeatedly, and
the Honourable Mrs Selina CHOW has just expounded our latest stand. We
support the passing of the Bill. Since the commencement date proposed by the
Government is 30 June, theoretically, this prerogative will be null and void in a
few days' time and I believe the problem will diminish or even disappear
naturally. Many chambers of commerce in Hong Kong, including those of
which the members are mostly British or even the British Chamber of Commerce
itself, expressed their support for the Bill. The company for which I work also
has many British expatriates, but none of them feels that the Bill is unfair to
them.
However, Mr President, I would like to raise a point here to which this
Council did not pay much attention during the discussion of the Bill. Some
indigenous residents of the New Territories told us that they have been residing
in the New Territories for generations. Although they might have moved to the
United Kingdom, their children have naturally been able to return to Hong Kong
as permanent residents. However, they will be deprived of this right if the Bill
is passed. They point out that the Bill is meant to be directed against the
prerogatives of the British citizens, but in reality, some of the indigenous
residents' rights will be taken away. That is their argument.
Mr President, I have given the matter a lot of thoughts. The indigenous
residents of the New Territories do have their rights which we should sympathize
with and recognize. If we take a look at the world, there are not many races that
have such a concept of nativity about their countries of origin. The two races I
could name are the Israeli and the Chinese. No matter how many generations
have gone by, no matter where they have gone, they still want to return to where
they are rooted. Other races such as the British or the Scottish who moved to
the United States or Africa, do not have this strong sense of attachment to their
homeland. So Chinese is very special. Some people do not agree and say that
Hungarians are just like Israeli or Chinese in this respect, but I have not studied
this in depth.
Mr President, with regard to this issue, we must work in a reasonable and
lawful manner. From the legal point of view alone, if we come up with
provisions in the Bill stipulating that the indigenous residents of the New
Territories will not be affected, we can hardly say it is lawful, although it may be
LEGISLATIVE COUNCIL — 23 June 1997
273
regarded as reasonable. So how do we solve this dilemma? The Immigration
Department has given me a reply which states that the first generation of the New
Territories emmigrants to the United Kingdom is not affected. Even the second
generation is not affected because the second generation has already been born,
and they still have proofs showing that they are related to Hong Kong as British
Dependent Territory Citizens. But the third generation may face problems. I
think that, other than legal problems, there are also practical problems.
Mr President, while most of the indigenous residents of the New
Territories emigrate to the United Kingdom, others emigrate to the United States
or different countries. For the second or third generations of these emigrants,
provincialism has already faded away. Many of the third generation emigrants
in the United States would think of themselves as Americans rather than Chinese.
So how can we expect them to be nostalgic and feel attached to their country of
origin forever? Therefore, we must solve the problem both reasonably and
legally.
Mr President, if the indigenous residents of the New Territories have a
strong sense of provincialism, want to keep their relationship with Hong Kong
generations after generations and hope that their descendants have the
opportunity to acquire the right of abode in the territory, they can do so through
other means, and not necessarily under this Bill.
I also proposed this option in the Provisional Legislative Council meeting
last week. According to the Nationality Law of China, other than those people
who were born overseas and have acquired foreign nationalities, who are
naturally not Chinese citizens, there are actually provisions in the Nationality
Law stating that foreigners can also become Chinese. Upon the implementation
of the Nationality Law, the National People's Congress said that the power to
deal with the change of nationality in the Hong Kong Special Administrative
Region (SAR) was conferred on the Immigration Department. The Immigration
Department of Hong Kong will be the department responsible. Should we look
further ahead, I hope that the Secretary for Security, who will retain his post in
the future SAR, will work more in the aspect of how the Immigration Department
can deal with the issue of changing nationality.
People can change their nationality to Chinese, but it seems that a clear
method or procedure of acquisition and approval has never been laid down. In
the history, there have only been rare precedents. For example, a famous
274
LEGISLATIVE COUNCIL — 23 June 1997
foreigner MA Haide, who was a follower of the revolutions of the Communist
Party and the Red Army, was accepted as a Chinese national under very special
circumstances. A New Zealander and several Americans also acquired Chinese
nationality. However, generally speaking, nobody knows how a foreigner can
become a Chinese. I think that, after the change of sovereignty, China should
first accept the fact that having Chinese nationality and the right of abode does
not necessarily mean the person is ethnic Chinese. A person having Chinese
nationality is not necessarily of the Han race; he can be of other races and may
not even know the Chinese language.
I think that we can make reference to this condition and consider whether
we can solve the problems for the third and fourth generations of the indigenous
residents of the New Territories who want to return to reside in Hong Kong.
For those people who will be born in the United Kingdom, although their
grandfathers are indigenous residents of Hong Kong, they will not be regarded as
Chinese nationals under the law. But if they really intend to come back to Hong
Kong, can we let them apply for Chinese nationality here? For the descendants
of indigenous residents of the New Territories, can we give them more points
under a point system so that they can apply more easily? After their
applications are approved, a channel will be opened up for them to regain the
status of permanent resident in Hong Kong. By doing so, the passing of this
Bill will not dash the hope of many New Territories residents.
I hope that this issue can be taken into account when the Government
studies how to deal with the Nationality Law and change of nationality for
individuals in future.
MISS MARGARET NG: Mr President, I oppose the Second Reading of the
Bill. This Bill does one thing and one thing only: it removes the right to land of
resident British citizens and provisions directly related to this right. If this Bill
is passed, not only will no British citizen be able to acquire the right to land in
future, which I accept in view of the change of sovereignty, but those who have
already acquired the right will have their right stripped from them, which I
oppose. Because it is unconscionable, and because it offends the most
fundamental principles.
Let me explain in as few words as I can.
LEGISLATIVE COUNCIL — 23 June 1997
275
A "British citizen" is not an ethnic Briton. It is a person who is a British
citizen within the meaning of the British Nationality Act 1997. So he may well
be a Hong Kong ethnic Chinese who has acquired British citizenship.
A "resident British citizen" is a British citizen who has ordinarily resided
in Hong Kong for a continuous period of not less than seven years.
Under section 8 of the present Immigration Ordinance, such a person has
the right to land in Hong Kong. This means he has the right to enter, live and
work in Hong Kong, free from immigration control. He can be removed from
Hong Kong only by a specified procedure under the Immigration Ordinance.
According to the Government's rough estimate, there are about 22 000
British citizens with the right to land. An unknown proportion of them have
settled here for decades. There are also those who, having served long in Hong
Kong's civil service disciplinary forces and acquired the right to land, now live
elsewhere but return to Hong Kong regularly.
Living in Hong Kong year round or not, these people are very much part of
the Hong Kong community. They have contributed to the life here, and Hong
Kong has become their home.
If this Bill is passed today, these people will lose their right without that
right being replaced by any other right.
Instead, they are promised
"unconditional stay". The difference between the two is enormous and
fundamental. Although on the face of it, both allow one to enter, live and work
in Hong Kong without a visa or work permit, the former is a statutory right,
while the latter is only an administrative arrangement.
What is given by administrative arrangement can be cancelled by
administrative discretion. Indeed, an unconditional stay is lost if one is away
from Hong Kong for more than 12 months unless one can convince an
immigration officer of special circumstances. With the right to land, one can
always come back to Hong Kong no matter how long one has been away. In
human terms, the difference is between security and insecurity, between being a
belonger and an outsider, between being here by right and being here on
sufferance.
It is said that in the past, a resident British citizen can acquire the right to
land because of the special relationship between Britain and Hong Kong. When
276
LEGISLATIVE COUNCIL — 23 June 1997
that special relationship ends, this "privilege" of the British should also come to
an end. This argument may address the question of not allowing British citizens
to acquire such a right in future. It does not address the inequity of depriving
those who have already acquired that right of their right.
In an attempt to meet this criticism, the Administration cites the United
Kingdom 1971 Immigration Act as an example where the previous right of Hong
Kong British subjects to enter the United Kingdom was removed. A
requirement of "patriality" was imposed. Non-patrials have no right of abode,
for example, no right to land or settle.
Hong Kong people had reacted strongly against the 1971 Act. It will
always remain as a blot on Britain's record. Yet that Act did not go so far as to
interfere with those Hong Kong British subject who had entered and settled in
the United Kingdom. Indeed, under the 1971 Act, these non-United Kingdom
British citizens were expressly given the right of abode, although the gate was
closed against those who had not entered and settled before the Act came into
effect in 1973.
What we have strongly criticized in others we should not do to others
ourselves. I should be shocked and shamed if this Council connives with the
Administration to do even worse than the 1971 United Kingdom Act.
Mr President, the Bill is equally unacceptable from the view of policy.
Under Article 24(4) of the Basic Law, non-Chinese nationals who have
ordinarily resided in Hong Kong for not less than seven years and have taken
Hong Kong to be their home, will qualify for the even better right of abode as
permanent Hong Kong residents. It is an extraordinary thing to do, to deprive a
person of the right to land he has acquired, when he may well be eligible for a
much better right in a matter of days.
I would have much less difficulty supporting this Bill, had legislation been
passed by this Council to secure the eligibility of the right of abode of the people
affected. However, in spite of the great efforts made in this Council, no such
legislation was introduced, and will never be passed now by this Council. Since
the future rights of the people affected are still left in limbo, to pass this Bill will
be an act of the utmost irresponsibility.
LEGISLATIVE COUNCIL — 23 June 1997
277
Mr President, I am aware that the Office of the Chief Executive
(Designate) has published a Bill on 6 June 1997 to amend the Immigration
Ordinance to incorporate and give effect to Article 24 of the Basic Law. There
is no chance for the thorough consultation and scrutiny crucial to such
legislation. The legal profession, whose views have been invited, is studying it
under great pressure of time. But anyone who cares to read the Bill will see that
many provisions require clarification, perhaps substantial amendment. An
example relevant to Article 24(4) of the Basic Law is paragraph 3 of that Bill.
This appears to qualify Article 24(4) in a number of ways. Under paragraph
3(2), it appears that a person who may have the status of permanent resident has
to apply to the Director of Immigration for his approval. In other words, his
right is subject to approval. This certainly sounds strange. Moreover, there
are no provisions in that Bill as to how the Director may exercise his power of
approval. Paragraph 6 on transitional provisions exempt one from application but
it does not apply to anyone who is not already a permanent Hong Kong resident.
Mr President, can it be right to throw these people into the anguish of
uncertainty by depriving them of their right to land right now? What great harm
can be done by allowing this very small number of people to keep their present
right until the right of abode law with respect to them becomes clear and
established? We have been told China "does not object" to the present Bill
removing the right to land. Even China has not expressed a strong wish for its
immediate removal. What can be the compelling reason for us to do such
a thing? Mr President, I cannot and will not do it. I object to this Bill.
Thank you.
MR ALBERT HO (in Cantonese): Mr President, over the past two years, I have
participated in many debates of this Council. Whenever the issue about
sovereignty is touched on, many people would feel that it is most lofty and many
things have to give way. Whenever the term colony is brought up, many people
would feel that many things are unfair and ugly and have to be replaced and any
trace of these things is intolerable. Mr President, when debating this motion
today, these politically exaggerated issues all surface. Of course, the right to
land enjoyed by British people is purely the result of the special relationship
between the United Kingdom and Hong Kong. This special relationship
accords the British people this privilege and preferential treatment, thus revealing
the discrimination against people of non-British nationalities or races. Many
278
LEGISLATIVE COUNCIL — 23 June 1997
people feel that this privilege should be cancelled immediately and the legislation
concerned has to be effected before the transfer of sovereignty.
Mr President, we, the Democratic Party, agree that those privileges and
preferential treatments left by colonialism should be done away with but we have
to handle it in a fair, more reasonable and humanistic manner. We should not
just suddenly deprive these people of such important rights and leave them at a
loss as what to do or what choice they have in future. Of course, some
colleagues would say that the Basic Law has already been published and they
should know how to apply for the right of abode and some of them may even
have obtained the application forms in advance. But I have to stress that this
involves not only the right of abode but also the issue of the right to land. First,
the law concerning the right of abode is not passed yet, and second, the law is not
yet able to settle all problems involving the handling of the right to land. We
very much look forward for a set of well-conceived laws that take care of the
problems involving the right of abode and the right to land, and even inform the
affected British people of their choices and rights and people of other
nationalities or the minority groups their positions. Therefore, Mr President, we
would support this Bill in principle and policy but we do not agree that it has to
be effected immediately or on 30 June.
In fact, I am somewhat wondering why some colleagues, including those
of the Democratic Alliance for the Betterment of Hong Kong (DAB), are so
anxious about and so strongly advocating the passing of this Bill and bringing it
into effect before the transfer of sovereignty. Actually, our colleagues,
especially those of the DAB, always say that matters involving constitutional
arrangements for the implementation of the Basic Law, particularly the
legislation to be effected after 1 July, should not be dealt with by the present
Legislative Council. They should be handed over to the Provisional Legislative
Council or the Hong Kong Special Administrative Region Government. Then
why have these laws concerning the implementation of the constitution have to
be passed by this Council and in such a great haste? Of course, we do not agree
to the arguments just mentioned but we can also see a double standard here.
Since these laws are to be implemented after 1 July and will have an impact on
the situation after 1 July, has the Chinese side agreed on this? I do not think
that the Chinese and British sides have reached an agreement that Hong Kong
should legislate on this.
LEGISLATIVE COUNCIL — 23 June 1997
279
Overall speaking, Mr President, I have to stress that this privilege which
now enjoyed by the British people, as we always say, is a problem left by the
history. While many people are psychologically prepared for his sudden
change, this Bill is released in a great hurry. There is need for more
arrangements. Just now, the Honourable Howard YOUNG has raised another
problem which is worth looking into. The so-called foreign people are not
necessarily fair-skinned and blond that everyone immediately think of.
Actually, many of them may be Hong Kong people who have emigrated overseas,
like the indigenous residents of the New Territories that Mr Howard YOUNG has
mentioned. They also wish to know that other than the rights provided in the
Basic Law and announced by the Provisional Legislative Council, what other
arrangements there are as regards their landing in future. For example, how
their right to land are to be dealt with. Will there be another system, some other
principles or conditions? These are all very important to those who would be
affected.
Therefore, even if we have to allow these so-called privileges to remain for
a longer while, it would not be a big problem. I have to stress that we have to
handle this with sympathy and understanding. Therefore, we hope that this
should wait for the future legislature to pass and then set the effective day. We
strongly request the Administration to wait till proper arrangements for the
comprehensive immigration laws are available before putting this Bill into effect,
so that the people who would be affected would know what course to take.
With these remarks, I support the Second Reading of the Bill and the
Honourable James TO's amendment.
MR BRUCE LIU (in Cantonese): Mr President, I speak on behalf of the Hong
Kong Association for Democracy and People's Livelihood (ADPL) in support of
the Second Reading and Third Reading of the Bill.
First of all, I think the privileges of the British should end when the
colonial rule comes to an end, and the British nationals should be put on a par
with other nationals of foreign countries. At present, the British nationals are
given the right to land due to the constitutional link between Britain and Hong
Kong, and so with the end of the colonial rule and the special relationship
between Hong Kong and Britain, the privileges of the British should also come to
an end.
280
LEGISLATIVE COUNCIL — 23 June 1997
As to whether there is any precedence regarding the removal of this
statutory right, I raised this question when we scrutinized the Bill. We know
that there is precedence, but the point is that when we remove any statutory right,
we have to go through a legal procedure. As the Honourable Miss Margaret NG
has pointed out, the United Kingdom has also done this before. What the
United Kingdom did was being criticized, but will Hong Kong also be criticized
if we do this now? I think there will be criticisms, but it will not be many for
the colonial rule has come to an end, and it is up to us to deal with this problem
which has been left behind by history. This privilege will be removed sooner or
later and it is only a matter of time. I think it is very reasonable for us to replace
this special statutory right to land with "unconditional stay".
I do not think that it would be possible for us to have any reservations, for
I understand that the Office of the Chief Executive has declared that if we do not
legislate to remove the right to land, it will put the matter to the legislature of the
SAR Government. So, the right of land will be removed anyway.
The Honourable James TO has moved an amendment to propose that this
question should be decided by the future legislature through a resolution and we
do not have to make a decision today, for the amendment proposals of the
Administration will come into effect on 30 June 1997. I would like to ask Mr
James TO, the mover of this proposal, two questions. First, does he wish to
hand over this matter to the first legislature of the SAR Government, that is, the
legislature to be in place in 1998? As that will be more than a year from now,
it seems that it is a bit too long, and I do not think that this is his intention.
Second, if that is not the case, then it means he will be handing this matter over
to the Provisional Legislative Council, and that is not in keeping with the stance
of the Democratic Party, which does not wish to hand over any work to the
Provisional Legislative Council.
But then, why would they want the
Provisional Legislative Council to make this resolution? So, I do not think the
Democratic Party is being consistent.
I think we should settle this question in this Council once and for all, and
no loose ends should be left. The Legislative Council should really remove the
privileges of the British nationals in a decisive manner.
We support the amendments to be moved by the Secretary for Security at a
later stage. Thank you, Mr President.
LEGISLATIVE COUNCIL — 23 June 1997
281
6.45 pm
THE PRESIDENT'S DEPUTY, DR LEONG CHE-HUNG, took the Chair.
SECRETARY FOR SECURITY: Mr Deputy, the Bill before us seeks to amend
the Immigration Ordinance to bring the immigration status of British citizens into
line with that of nationals of other foreign countries.
I am grateful to the Honourable James TO and Members of the Bills
Committee for the great care they have taken in scrutinizing the Bill.
As I explained when I moved the Second Reading of the Bill in February
this year, naturally there has to be changes to the special immigration status of
British citizens as the special relationship between Hong Kong and the United
Kingdom comes to an end on 1 July 1997. The British community here have
expressed a wish for such changes to be clarified, decided and put in place well
in advance of 1 July 1997. The package of measures we introduced in April,
which included both legislative and administrative changes, was to address such
concerns.
The Bills Committee expressed considerable concern that as far as
possible, there should be no time gap between the abolition of the right to land
under our Bill, and the acquisition of the right of abode by those British citizens
who are eligible to claim permanent resident status under Article 24(2)(4) of the
Basic Law. We take this point. I shall therefore move a Committee stage
amendment to change the commencement date of the Bill to 30 June 1997.
The Bill, as amended by the Committee stage amendments which I shall
propose, will give certainty to the status of British citizens in the future, as well
as minimizes the gap between the loss of the right to land and the acquisition of
the right of abode. I believe that this is the best arrangement that can be put in
place to address Members' concern.
The Honourable Miss Margaret NG holds the view that any given right
should not be taken away. While we agree that this should be the case in
normal process change, we hope Honourable Members will appreciate that the
current changes are brought about by the unique circumstances of the change of
Hong Kong sovereignty. We believe that the changes we propose are
282
LEGISLATIVE COUNCIL — 23 June 1997
appropriate in these circumstances and are generally acceptable to the British
community here.
With these remarks, Mr Deputy, I recommend the Immigration
(Amendment) Bill 1997 to this Council.
Question on the Second Reading of the Bill put.
Voice vote taken.
THE PRESIDENT'S DEPUTY said he thought the "Ayes" had it.
Miss Margaret NG claimed a division.
DEPUTY PRESIDENT (in Cantonese): Council will now proceed to a division.
The division bell will be rung for three minutes.
6.53 pm
THE PRESIDENT resumes the Chair.
PRESIDENT (in Cantonese): I would like to remind Members that they are now
called upon to vote on the question that the Immigration (Amendment) Bill 1997
be read the Second time.
Will Members please register their presence by pressing the top button and
then proceed to vote by pressing one of the three buttons below?
PRESIDENT (in Cantonese): Before I declare the result, Members may wish to
check their votes. Are there any queries? The result will now be displayed.
LEGISLATIVE COUNCIL — 23 June 1997
283
Mrs Selina CHOW, Mr Martin LEE, Mr NGAI Shiu-kit, Mr SZETO Wah, Mr
LAU Wong-fat, 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 James TO, Dr Philip WONG, Dr YEUNG
Sum, Mr Howard YOUNG, 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 Paul CHENG, Mr CHENG Yiu-tong, Dr
Anthony CHEUNG, Mr CHEUNG Hon-chung, Mr CHOY Kan-pui, Mr David
CHU, Mr Albert HO, Mr IP Kwok-him, Mr LAU Chin-shek, Mr Ambrose LAU,
Dr LAW Cheung-kwok, Mr LAW Chi-kwong, Mr LEE Kai-ming, Mr LEUNG
Yiu-chung, Mr Bruce LIU, Mr LO Suk-ching, Mr MOK Ying-fan, Mr NGAN
Kam-chuen, Mr TSANG Kin-shing, Dr John TSE, Mrs Elizabeth WONG and Mr
YUM Sin-ling voted for the motion.
Miss Margaret NG voted against the motion.
THE PRESIDENT announced that there were 51 votes in favour of the motion
and one vote against it. He therefore declared that the motion was carried.
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.
IMMIGRATION (AMENDMENT) BILL 1997
Clause 1
284
LEGISLATIVE COUNCIL — 23 June 1997
CHAIRMAN (in Cantonese): Both the Secretary for Security and Mr James TO
have separately given notices to move amendments to clause 1.
I propose that the amendments to clause 1, proposed separately by the
Secretary for Security and Mr James TO, be debated together in a joint debate.
Committee will now proceed to a joint debate. I will first call upon the
Secretary for Security to move his amendment, as he is the public officer in
charge of the Bill.
SECRETARY FOR SECURITY: Mr Chairman, I move that the clauses
specified be amended as set out in the paper circularized to Members.
These amendments contain the change to the commencement date of the
Immigration (Amendment) Bill 1997 which I have already referred to in the
Second Reading debate, and also some technical amendments consequential to
the amendment of the commencement date of the Bill.
I understand that the Honourable James TO will move a Committee stage
amendment to change the commencement date of this Bill to a day to be
appointed by a resolution of this Council. I can see two disadvantages with
such an approach.
First, there is practically no time for the current Legislative Council to pass
a resolution to specify the commencement date of the Bill. If we leave this to
the future legislature to decide then there is no guarantee when such a decision
will be taken. It does not give the British community the certainty which they
would like to have now.
Secondly, for practical reasons the date to be specified by a resolution of
the Special Administration Region legislature can only be after 1 July 1997 by
which time the provisions under Article 24, sub-paragraph 2, sub-paragraph 4 of
the Basic Law will have come into operation. It will in effect allow the right to
land status currently enjoyed by British citizens to perpetuate beyond 1 July
1997. This will give rise to a situation, albeit probably for a short while,
whereby British citizens who have resided in Hong Kong for seven years will be
entitled to both the right to land status as well as being eligible for the right of
abode status at the same time.
LEGISLATIVE COUNCIL — 23 June 1997
285
The Administration believes that the commencement date of 30 June
should be clearly specified rather than being left to a future unspecified date.
This will provide certainty for British citizens affected and it is entirely within
the spirit of the Basic Law.
Mr Chairman, I beg to move.
Proposed amendment
Clause 1 (see Annex VI)
CHAIRMAN (in Cantonese): I will call upon Mr James TO to speak on the
amendment proposed by the Secretary for Security as well as his own proposed
amendment, but will not ask Mr TO to move his amendment unless the Secretary
for Security's amendment has been negatived.
MR JAMES TO (in Cantonese): Mr Chairman, if my amendment is approved, I
hope that the Government will not withdraw this Bill. If it withdraws this Bill
and does not abolish the right to land, it would be treacherous indeed.
Just now the Secretary for Security has said that if my amendment is
approved, there will be two disadvantages. I find them very ridiculous and
ludicrous. First, the Secretary for Security said that this Council would have no
time to discuss the relevant resolution and there was no guarantee when the
legislature after 1 July would make an amendment or a decision. Therefore,
certainty was very important and we needed that certainty now. However, the
second argument he offered directly contradicts his first argument. He said that
if it was not abolished by 30 June, they would have both the right to land, as well
as being eligible for the right of abode status under Article 24, sub-paragraph 4
of the Basic Law.
His second argument directly refutes his first, since if they are entitled to
both rights, there will not be any uncertainty. If they are entitled to both rights,
they can obtain either of them if their applications are approved. For instance,
if the right to land is abolished on 20 July, then from 1 to 20 July, they would
know that they can exercise their right to land, as well as apply for the right of
abode under Article 24, sub-paragraph 4 of the Basic Law. In fact, the
Secretary for Security's second point defeats the logic of his first point.
286
LEGISLATIVE COUNCIL — 23 June 1997
Besides, what is meant by certainty? The answer is that they will lose
their right with immediate effect. We, the Democratic Party, do not agree with
the Honourable Miss Margaret NG's talk about rights. However, we do feel that
some people will lose their right with immediate effect, while the law does not
say when there will be a substitute. Why then do we support the Second
Reading of the Bill? Because we believe that under Article 24, sub-paragraph 4
of the Basic Law, they can make up for some of their rights. The problem is,
there is no detailed legislation which is binding and satisfactory to specify this
right. Actually, the talk about certainty in terms of the abolition of the right is
hypocritical. They only have the certainty of losing their right, but not how to
get it back. Therefore, the uncertainty described by the Secretary for Security is
in fact not an uncertainty for them at all. Rather, they have an extra right and
two alternatives. The Secretary for Security's second point has answered his
own question. We need not discuss it any further.
I hope that Members will support a kind of continuity. When some
people lose their right, we can simultaneously offer them another right to
substitute for it. As some people say, it is a right of an even higher level, since
the right to land would become the right of abode. This is the responsible
course to take.
Question on the Secretary for Security's amendment put.
Voice vote taken.
THE CHAIRMAN said he thought the "Noes" had it.
Mr IP Kwok-him, Bruce LIU and Mr Howard YOUNG claimed a division.
CHAIRMAN (in Cantonese): Committee will proceed to a division.
CHAIRMAN (in Cantonese): I would like to remind Members that they are now
called upon to vote on the question that the amendment to clause 1 moved by the
Secretary for Security be approved.
LEGISLATIVE COUNCIL — 23 June 1997
287
CHAIRMAN (in Cantonese): The question put is: That the amendment to clause
1 moved by the Secretary for Security be approved. In other words, if the
Secretary for Security's amendment is agreed, there will be no voting on Mr
James TO's amendment. Understand?
Will Members please register their presence by pressing the top button and
then proceed to vote by pressing one of the three buttons below?
CHAIRMAN (in Cantonese): Before I declare the result, Members may wish to
check their votes. Are there any queries? The result will now be displayed.
Mrs Selina CHOW, Mr NGAI Shiu-kit, Mr LAU Wong-fat, Mr Edward HO, Mr
Ronald ARCULLI, Mrs Miriam LAU, Dr LEONG Che-hung, Mr Frederick
FUNG, Mr Eric LI, Dr Philip WONG, Mr Howard YOUNG, Miss Christine
LOH, Mr LEE Cheuk-Yan, Mr CHAN Kam-lam, Mr CHAN Wing-chan, Miss
CHAN Yuen-han, Mr Paul CHENG, Mr CHENG Yiu-tong, Mr CHEUNG
Hon-chung, Mr CHOY Kan-pui, Mr David CHU, Mr IP Kwok-him, Mr Ambrose
LAU, Dr LAW Cheung-kwok, Mr LEE Kai-ming, Mr LEUNG Yiu-chung, Mr
Bruce LIU, Mr LO Suk-ching, Mr MOK Ying-fan, Mr NGAN Kam-chuen and
Mr YUM Sin-ling voted for the amendment.
Mr Martin LEE, Mr SZETO Wah, Mr Albert CHAN, Mr CHEUNG Man-kwong,
Mr CHIM Pui-chung, 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 Andrew CHENG, Dr Anthony CHEUNG, Mr Albert HO, Mr LAU
Chin-shek, Mr LAW Chi-kwong, Miss Margaret NG, Mr TSANG Kin-shing, Dr
John TSE and Mrs Elizabeth WONG voted against the amendment.
THE CHAIRMAN announced that there were 31 votes in favour of the Secretary
for Security's amendment and 22 votes against it. He therefore declared that the
amendment was carried.
LEGISLATIVE COUNCIL — 23 June 1997
288
CHAIRMAN (in Cantonese): Mr James TO, as the Secretary for Security's
amendment to clause 1 has been agreed, you may not move your proposed
amendment to clause 1 as it is inconsistent with the decision already taken.
Question on clause 1, as amended, put and agreed to.
Clause 23
SECRETARY FOR SECURITY: Mr Chairman, I move that clause 23 be
amended as set out in the paper circularized to Members. This is a technical
amendment consequent to my amendment to put the effective date of the Bill at
30 June.
Mr Chairman, I beg to move.
Proposed amendment
Clause 23 (see Annex VI)
Question on the amendment put and agreed to.
Question on clause 23, as amended, put and agreed to.
Clauses 2 to 22, 24, 25 and 26 were agreed to.
Council then resumed.
Third Reading of Bill
THE SECRETARY FOR SECURITY reported that the
IMMIGRATION (AMENDMENT) BILL 1997
LEGISLATIVE COUNCIL — 23 June 1997
289
had passed through Committee with amendments. He moved the Third Reading
of the Bill.
Question on the Third Reading of the Bill proposed, put and agreed to.
Bill read the Third time and passed.
Resumption of Second Reading Debate on Bill
CRIMES (AMENDMENT) (NO. 2) BILL 1996
Resumption of debate on Second Reading which was moved on 4 December
1996
MR ALBERT HO (in Cantonese): Mr President, I wish to raise a point of
procedure because I think it may at least take two or three hours for us to reach a
decision on this Bill. I am aware that the Secretary for Security has been sitting
here since lunch, and if we carry on, he may not be able to have supper until 10
pm or 11pm. Although many of us present today are not happy with the
Secretary, we do not want him to go without supper. Will Mr President
consider suspending the sitting for a while so that the Secretary can take a short
break, since the Secretary for Security is the only official present today to take
charge of this Bill?
PRESIDENT (in Cantonese): Mr Albert HO, please be seated. Someone
passed me a note just now and asked me to make some decisions. Though I
have never said that all sittings for every day of this week will end at 8 pm, since
the House Committee recommended that we hold our meetings from 9 am to
around 8 pm, I have thought that I would try to end the meeting at around 8 pm
on the first day, but if we have started discussions on a bill before 8pm, it will be
better for us to deal with it on the same day. We cannot always end a meeting at
8pm. These are my views at the moment. If we were still dealing with the
Independent Police Complaints Council Bill or if we were side-tracked or had to
start on a new debate, then I would not be able to tell when we can finish the
290
LEGISLATIVE COUNCIL — 23 June 1997
sitting tomorrow. I cannot say whether it will be 8 pm, 9 pm, 10 pm, 11 pm,
12 am or we may even run into the small hours in the morning. Otherwise, we
may not be able to conclude all our businesses within five days. At present, I
hope that we can finish our work on this Bill as soon as possible. As for the
time needed, it is now 7.10 pm, and it really depends on what Members decide to
do. Some Members's position are already quite clear, and they have decided
what they have to say, whether they have to deliver long speeches, or they can
just highlight their main points. I think we are going to do this.
If the Secretary for Security does not mind, he can use the Secretary
General 's room to take a break and order something to eat. He can still watch
the progress of our sitting on the television monitor in the Secretary General's
room. If the Secretary for Security wishes to have dinner, we can still make the
same arrangement.
SECRETARY FOR SECURITY: For everybody's concerned, I think I will be
perfectly content to carry on.
MR ALBERT HO (in Cantonese): Mr President, Article 23 of the Basic Law
provides that the Hong Kong Special Administrative Region (SAR) shall enact
laws on its own to prohibit, inter alia, any acts of treason, secession, sedition and
subversion against the Central People's Government. The Legislative Council
Brief on the Bill has provided the Administration's account of the consultation
with the Chinese side of the Joint Liaison Group on the proposals of the Bill and
the justifications for introducing the Bill.
The main objectives of the Bill are to add the offences of subversion and
secession to Part I of the Crimes Ordinance to bring it in line with Article 23 and
to amend the existing provisions relating to the offences of treason and sedition
in the Ordinance to reflect the common law position as far as possible.
After this Bill had been tabled, many Members of this Council
representing different groups indicated that they would not participate in the
scrutiny of this Bill. As far as I understand, they consider that such legislation
LEGISLATIVE COUNCIL — 23 June 1997
291
is to tie in with the implementation of the Basic Law and is to be applied to the
SAR. Therefore, it should not be scrutinized or passed by the present
Legislative Council. Instead, it should be handled by the legislature of the SAR
after its establishment.
Mr President, members of the Bills Committee and I do not agree with this.
We feel that this Council has full and adequate powers to examine the existing
legislation. Of course, if the legislature of the future SAR should find anything
amiss and need to make amendments or even repeal it, it is fully entitled to do so.
The Bill scrutinized by this Council also has to be consistent with the Basic Law,
or else the National People's Congress can exercise the power conferred by
Article 160 of the Basic Law to repeal the law. We have scrutinized this Bill
according to this principle. We also believe that the Bill scrutinized by us
according to this principle will be consistent with the Basic Law. We hope this
Bill will continue to apply in the SAR after the transfer of sovereignty.
7.11 pm
THE PRESIDENT'S DEPUTY, DR LEONG CHE-HUNG, took the Chair.
MR ALBERT HO (in Cantonese): Mr Deputy, the Bills Committee chaired by
me has altogether held 13 meetings. In addition to meetings with the
Administration, the Bills Committee has met representatives of the Hong Kong
Bar Association (the Bar Association), the Law Society of Hong Kong (the Law
Society), Justice International, Hong Kong Human Rights Monitor and the Hong
Kong Journalists Association to listen to their views on the Bill and has sought
their comments on the amendments proposed by the Bills Committee.
I will now briefly report on the main deliberations of the Bills Committee.
The Administration believes that it has proposed realistic, reasonable and
workable amendments to the Crimes Ordinance, which are, within the context of
the Basic Law, consistent with the International Covenant on Civil and Political
Rights (ICCPR) and local legislation. The Administration also believes that the
duly amended legislation, after adaptation, could in principle straddle the
handover. At the same time, it emphasizes that it does not intend to bring about
any degradation in the existing rights and freedom enjoyed in Hong Kong as a
result of the introduction of the Bill.
LEGISLATIVE COUNCIL — 23 June 1997
292
The majority of the deputations' view, on the other hand, is that Article 23
of the Basic Law merely imposes a constitutional duty on the SAR to enact laws
to prohibit any act of treason, secession, sedition and subversion and that it does
not create statutory offences or prohibit the acts of subversion and secession. In
the absence of clear statutory provisions on the offences of subversion and
secession, there could not be such offences.
I will first report on the deliberations on the offences of subversion and
secession. The legal profession and other deputations do not support the
creation of the offence of subversion on the following grounds:
(a)
It is neither obligatory nor necessary for the Hong Kong
Government to legislate on the offence. There is no such offence
as subversion and secession in other common law jurisdictions;
(b)
Public order is sufficiently safeguarded by a variety of measures and
offences including those in the Public Order Ordinance; and
(c)
Section 2 of the Crimes Ordinance, in its unamended but
appropriately adapted form, contains elements of subversion and
secession as proposed in the new sections 5 and 5A.
With regard to the offence of secession, the Law Society, while not
directly rejecting the need for legislation, suggests that if the offence is to be
created, exclusion provisions should be provided to clarify the areas of activity
which are not liable for prosecution and overt acts referred to in the provision
should be qualified by the need to establish "clear and present danger" in order to
prove the offence. The other deputations do not support the creation of the
offence for the same reasons as the offence of subversion. In addition, the Bar
Association has pointed out that it is not a criminal offence to plan to supplant
the lawful authority of the Government of the United Kingdom by force in
respect of any part of the United Kingdom or any dependant territory other than
in a treasonable context. The Hong Kong Journalists Association considers that
Article 23 should be amended to excise the concepts of subversion and secession
which would pose serious threats to freedom of expression.
In the light of the deputations' views and after deliberations, a majority of
members conclude that the offences of subversion and secession should not be
LEGISLATIVE COUNCIL — 23 June 1997
293
created. Following further discussion, the Bills Committee unanimously agree
to move amendments to delete clauses 4 and 5 of the Bill. Some members note
that in accordance with Article 8 of the Basic Law, the laws previously in force
in Hong Kong, inter alia, common law, shall be maintained after the transfer of
sovereignty. Since Hong Kong and most of the other common law jurisdictions
do not have such offences and the offensive acts under the proposed provisions
can be dealt with under the existing legislation, it is not necessary to add the two
offences into the statute.
Although the Democratic Party does not agree to create the two new
offences set out in the Bill and maintains that Article 23 of the Basic Law should
be amended as soon as possible to take out subversion and secession, it
nevertheless proposes to make reasonable legislation and incorporate the
concepts of subversion and secession into the provisions on treasonable offences,
taking into consideration the political reality and the fact that the Provisional
Legislative Council will inevitably legislate in this area. The Democratic Party
considers that the proposal must be in full compliance with the ICCPR and the
amendments to the Hong Kong Bill of Rights Ordinance (BORO). After due
adaptation, the provisions will remain workable after the transfer of sovereignty.
Therefore, the future legislature of the SAR need not legislate on these two
offences again. This would remove the uncertainty that the present freedom and
rights enjoyed in Hong Kong, in particular, freedom of expression, may be
limited or taken away by future legislation. Later on, members of the
Democratic Party will explain its position and its proposed amendments in
greater detail.
Other members consider that there is no need to set benchmarks or
concede the principle for the sake of satisfying the requirements of Article 23
alone. They agree that Article 23 on its own does not have the effect of creating
the offences and no case has been made for an immediate need to add such
offences in the statute. Furthermore, full and searching discussions in the Bills
Committee have failed to reveal any formulation of these offences which does
not endanger the rights and freedom of Hong Kong people.
With regard to the provisions on treason and treasonable offences,
members note that although the Bar Association and Hong Kong Human Rights
Monitor support, in principle, the liberalisation of the existing law on treason,
Justice International considers that the modernization and liberalization of the
provisions will do more harm than good because the provisions, once amended,
294
LEGISLATIVE COUNCIL — 23 June 1997
will be regarded as new legislation and as a result, the benefit of past judicial
interpretations and precedents may not be available to an accused person.
Members generally agree that the provisions on treason and treasonable
offences should not be reformed because of the constraint of time and resources.
Such work should be done by a law reform commission instead of a bills
committee. If it is impossible to set up a law reform commission in this regard,
the Administration's proposals, which are relatively minor and which would not
cause major changes to or have a significant impact on the existing
understanding of the legal concepts, should be adopted.
In order to prepare the legislation for easy adaptation, the Administration
proposes in clause 2 to replace the inapplicable reference to Her Majesty by the
reference to the state, that is the United Kingdom, in section 2(1)(c). The
majority of members support the proposal. However, one member considers
that section 2(1)(c)(i) should remain intact because the meaning of the
substitution is not clear and therefore its legal effects are uncertain. The
majority of members agree that section 2(1)(d) and (f) and section 2(2) should
remain unchanged while the reference to Her Majesty in section 2(1)(e) should
likewise be replaced by the reference to the United Kingdom as proposed by the
Administration.
Members note that under the existing section 3, the manifestation of an
intention to effect any one of the purposes set out in subsection (1)(a) to (c) by an
overt act or by publishing any printing or writing shall be guilty of an offence.
Since the intention cannot simply be deduced from an overt act and the provision
criminalizes speech or writing, the majority of members agree to repeal the
section.
With regard to the offence of sedition, Members note that the Bar
Association, the Law Society and the Hong Kong Journalists Association support
the repeal of sections 9 and 10 on seditious intention and offences because they
are in contravention of the basic rights enshrined in the ICCPR. In addition,
both the Law Society and Justice International consider that the offence of
sedition is archaic, has notorious colonial connotations and is contrary to the
development of democracy. It criminalizes speech or writing and may be used
as a weapon against legitimate criticism of the Government.
Justice
International points out that the offence of sedition has been progressively
LEGISLATIVE COUNCIL — 23 June 1997
295
narrowed by judicial interpretations over the years and that the Administration's
proposed addition of the new element to section 10, that is, an intention to cause
violence, create public disorder or public disturbance, makes the provision more
restrictive.
Following deliberations in the Bills Committee, the Honourable Miss
Emily LAU proposes to repeal sections 9 and 10 because the offence is outdated
and draconian. They criminalize expression and the provision on seditious
intention can be so broadly interpreted that it is threatening to human rights.
She also considers that the Public Order Ordinance already contains adequate
provisions on public meetings and processions for the maintenance of public
order. Her proposal is supported by the Honourable Miss Christine LOH, the
Honourable Miss Margaret NG and the Honourable Mrs Elizabeth WONG.
Members of the Democratic Party and the Hong Kong Association for
Democracy and People's Livelihood (ADPL) hold different views about this.
Although the Democratic Party supports, in principle, the amendment of Article
23 of the Basic Law in order to delete the offence, in view of the reality that the
Provisional Legislative Council or the legislature of the SAR would legislate on
the offence, we are prepared to incorporate some protective measures and
concepts of common law jurisdictions to improve the provision on the offence of
sedition. The Democratic Party considers it desirable to formulate the baseline
for the offence which complies with the ICCPR and the BORO. It therefore
proposes that the provision should not be deleted at the present stage but should
instead be amended by:
(a)
narrowing the definition of seditious intention in section 9;
(b)
providing an additional element of having the purpose of disturbing
the "constituted authority" to make prosecutions more difficult; and
(c)
incorporating Principle 6 of the Johannesburg Principles on National
Security, Freedom of Expression and Access to Information in
section 10 for better protection of human rights.
The buzzer sounded a continuous beep.
296
LEGISLATIVE COUNCIL — 23 June 1997
DEPUTY PRESIDENT(in Cantonese): Mr Albert HO, your 15 minutes are up.
MR ALBERT HO (in Cantonese): With these remarks, I urge Members to
support the resumption of the Second Reading of this Bill.
Thank you, Mr Deputy.
MR CHEUNG MAN-KWONG (in Cantonese): Mr Deputy, before we move on
to discuss the content of the Bill, I have to state the position of the Democratic
Party.
First of all, though we support the Government in introducing this Bill to
the Legislative Council, it does not mean that we fully agree with the content of
the Bill, particularly in respect of the offences of subversion and secession, and
our views are greatly different from those of the Government. We support the
introduction of the Bill because we hope that through open discussions of elected
Members, the very sensitive offences of subversion and secession can be
incorporated into the Crimes Ordinance, and if those offences are not removed
from Article 23 of the Basic Law, the spirit of common law should be introduced.
However, I must reiterate that I strongly oppose to Article 23 of the Basic Law,
which states that the HKSAR shall enact laws on its own to prohibit any act of
subversion and secession, because such offences are not found in common law.
A more important reason for my objection is that, for a country like China, which
has a long history of criminalizing speeches, these are very serious offences
because the government can use them to suppress and slaughter dissidents.
Therefore, in order to ensure that members of the public can speak freely against
the Government and voice their concerns in a free and peaceful manner under the
provisions of the law, I think the offences of subversion and secession should be
deleted from Article 23 of the Basic Law. I think Hong Kong people should
launch a constitutional amendment campaign after 1997 to amend Article 23 of
the Basic Law, so that freedoms of speech and expression can be fully
safeguarded.
Before Article 23 of the Basic Law is removed, we would make every
effort to draw references from case laws and protection clauses of common law
LEGISLATIVE COUNCIL — 23 June 1997
297
jurisdictions to lay down the most explicit, generous and liberal definitions for
subversion and secession, so as to avoid speeches from being criminalized and to
prevent the Government from abusing its power in suppressing and slaughtering
dissidents. Even if the future provisional legislature or the legislature
controlled by China amends the legislation or enacts new legislation on
subversion and secession, they will not be able to totally ignore the legislation
and arguments which we make today. So, our efforts would not be wasted and
we would be setting a rational model for the future legislature.
Our main concern, therefore, is not whether the offences of subversion and
secession as proposed by the Government can be endorsed or whether they can
straddle 1997. When we see that the SAR Government is trying every means to
repeal the Public Order Ordinance and the Societies Ordinance, and when we feel
that it is tightening its grip on freedom of expression, how can we be so naive as
to think that the Chinese side will allow this elected legislature to pass the
Crimes Ordinance according to the common law principles and let it straddle
1997? The acts of subversion and secession as stated in Article 23 of the Basic
Law refer to those targeted at the Central People's Government and not the SAR
Government. So, how can I be so naive as to think that the Chinese side will
allow the future legislature to enact laws freely according to the common law
principles to prevent speeches being criminalized?
Mr Deputy, my real concern is that when the future SAR Government
enacts laws under Article 23 of the Basic Law, it will adopt the Chinese
Government's definitions on subversion, sedition and secession. While WEI
Jingsheng, WANG Dan and other democrats were convicted of subversion and
sedition, deprived of their human rights and freedom and subjected to long-term
imprisonment just because of their speeches when no acts of violence or
substantial threats to the Government had been involved, my worries are
justified. Therefore, my biggest concern, as I pointed out earlier, is to send to
the public a clear message that we have to fight for the amendment of Article 23
of the Basic Law and we have to remove the restrictions on human rights and
freedom. This will be our long-term and major objective in striving for
constitutional amendments in future.
Based on this belief, I think that the scrutiny of this Bill will be
instrumental in protecting freedoms of speech, assembly and association of the
public in future. Mr Deputy, I do not agree with some Members who think that
the scrutiny of this Bill is redundant. As Members of the Legislative Council,
298
LEGISLATIVE COUNCIL — 23 June 1997
we are duty-bound to scrutinize legislation during our term of office; and if there
are other provisions in the Crimes Ordinance which are not in line with the
development of a civilized society, amendments should also be made. Some
Members of this Council are scared out of their wits in the face of China's wrath,
and they have totally forgotten their responsibilities. They even twisted the fact
and said that the Bill was against the Basic Law. They have ignored the fact
that the Hong Kong Government still has the statutory power to amend
legislation before 1 July 1997. Such legislators are not fit to be called
legislators and they have failed the trust of their voters. According to the Law
Society, Article 23 of the Basic Law provides that the future SAR Government
can enact its own laws, but it has not prevented the existing Government from
enacting or amending laws in respect of these offences. Therefore, these
Members are actually trying to nip this Bill in the bud under the fine-sounding
name of boycotting its scrutiny.
Mr Deputy, I am not surprised that some pro-Chinese groups are opposed
to this Bill. But, apart from these voices, many social organizations and legal
groups have carried out detailed studies and rational analysis on this Bill. By
looking at the Bill from the legal perspective, these people are unanimously
against the introduction of subversion and secession into our legislation both
before and after 1997, because the offences of subversion and secession are not
found in common law jurisdictions. These offences could easily be used as
weapons to suppress freedoms of speech and expression. We are also aware
that laws with loopholes will become draconian.
Hence we have exercised extreme caution in scrutinizing this Bill. We
have not only referred to case laws of other common law jurisdictions, similar
legal provisions, human rights reports and international covenants, but also
consulted relevant professional bodies and legal experts, so that we can come up
with a set of rigorous and feasible legislation, and give clear definitions to terms
like "intention", "force" and "government" and so on through thorough
discussions. We have also incorporated the Johannesburg Principles into the
legislation, and that is to say, someone will only be convicted if force is involved
or their actions constituted an immediate threat. We will also incorporate tests
based on American case laws. As we have to try to ensure that any changes to
the law will not affect the legal binding effect of case laws in common law, the
problem has become extremely difficult and complicated. After 5 months of
scrutiny, although Members of the Bills Committee are unanimously opposed to
LEGISLATIVE COUNCIL — 23 June 1997
299
clauses 5 and 5A proposed by the Government, we have to admit that the Bills
Committee has not been able to reach a consensus regarding the amendments.
Apart from clauses 5 and 5A, the Government has not proposed any other
major amendments, and most of the amendments proposed are related to
terminology. The Government has obviously done this out of political
consideration in order not to offend China. Therefore, even though there are
some inappropriate provisions which are in violation of the Human Rights
Ordinance and international covenants, the Government has not proposed any
amendments. Although the Bills Committee has spent a lot of time in
considering whether the provisions on subversion and secession should be
retained or abolished, another objective we hope to achieve in scrutinizing this
Bill is to ensure that the provisions on offences such as treason and sedition are
compatible with the values of a civilized society and the provisions of the
international covenants. We should not retain provisions which threaten
freedom of expression just because we want to accomodate the Basic law.
When we apply these principles in scrutinizing the Bill, we find that the
amendments moved by the Government to clause 3 on "treasonable offences" and
clause 9 on "seditious intention" as well as other related provisions of clause 10
are inadequate. According to the Law Society, these three amendments may
criminalize writings and speeches, and such provisions should not exist in a free
society. The Hong Kong Human Rights Monitor has also pointed out that the
provision on treasonable offences is in breach of Article 19 of the International
Covenant on Civil and Political Rights (ICCPR), for the expression of thought in
a peaceful manner and related political activities are being criminalized under
this provision. Therefore, further amendments have to be made in order to meet
the requirements of the International Covenant.
Mr Deputy, I hope that apart from scrutinizing the provisions on
subversion and secession, Members will also consider other outdated provisions
which are inconsistent with the convenant on human rights and make
amendments to tie in with social progresses. Although it is uncertain whether
the amendments can straddle 1997 even if they are passed, the public will at least
know that we have not failed them in our mission as elected legislators. We have
done our utmost in promoting democracy and freedom and in developing the rule
of law for a progressive society.
Mr Deputy, these are my remarks.
300
LEGISLATIVE COUNCIL — 23 June 1997
MISS EMILY LAU (in Cantonese): Mr Deputy, I speak in support of the
resumption of the Second Reading of the Crimes (Amendment) (No. 2) Bill
1996.
Mr Deputy, at the end of last year, the Administration submitted this Bill
to this Council, and proposed to introduce the offences of subversion and
secession to the existing legislation with the aim of helping the future SAR
Government in its work. The Government thinks that by enacting the
legislation now and making appropriate adaptations in future, this legislation can
remain in use after the transfer of sovereignty. Like other Members of the Bills
Committee, I support the Government's move in reviewing this outdated and
stringent legislation.
Mr Deputy, on 17 January, 1996, the Honourable Andrew CHENG of the
Democratic Party moved a motion asking the Government to immediately review
the existing legislation on treason, sedition and theft of state secrets, and to enact
legislation to prohibit any act of subversion to provide a basis for the future SAR
Government in enacting laws on its own to prohibit any acts of treason, sedition,
subversion and theft of state secrets, so as to protect the rights of Hong Kong
citizens. Mr Deputy, I believe you still recall that the voting result on that
motion was 31 votes in favour and 23 votes against, and therefore, the motion of
Mr Andrew CHENG was carried. The Government might have taken this
voting result to mean that most Members supported the Government in enacting
laws to prohibit any act of subversion.
Mr Deputy, though I was among the Members who supported Mr Andrew
CHENG at that time, I had pointed out in my speech that there was no such
offence as subversion in common law, and I had, therefore, called upon the
Government to persuade Beijing to remove this offence from Article 23 of the
Basic Law. I also mentioned that if the Final Court of Appeal of the SAR
Government invites judges from other common law jurisdictions to try cases in
future, the foreign judges will not know what to do when they come across cases
related to subversion. So, I believe that my stance was very clear and I did not
mislead the Government in any way.
As regards the offence of sedition, Mr Andrew CHENG's motion did not
touch on this, so the voting result would not have given the Government any
message in this regard. However, the Government feels aggrieved and says that
LEGISLATIVE COUNCIL — 23 June 1997
301
it has been misled, and that it submits the Crimes Bill to this Council for this
reason. Later on, Mr Andrew CHENG will also talk about whether the
Government has been misled.
Mr Deputy, the Government has so far failed to explain to us why the
offences of subversion and secession should be added to the Crimes Ordinance.
It is obvious that there is no such a need from the point of law or in reality, and
the only valid argument is that it has been stipulated in Article 23 of the Basic
Law. Without this stipulation, I believe we will not be having these discussions
today, or we will only be talking about how we can improve the existing Crimes
Ordinance.
Mr Deputy, the Chinese Government has clearly stated that it will not
allow the Legislative Council to enact legislation relating to Article 23 of the
Basic Law, and even if we have enacted such a law, the National People's
Congress will annul it. In fact, the Chinese Government will allow legislation
to be enacted if it is pleased; otherwise nothing can be done. Everyone knows
that the Chinese Government has allowed us to incorporate the provision of
Article 23 on theft of state secrets in the Official Secrets Act, but why has it
allowed us to do so? We are really at a loss, and there is no guidelines
whatsoever we can follow. It seems that the way in which the Chinese
Government acts is rather expedient.
As the Honourable CHEUNG
Man-kwong has said, some Members are "cutting their sails in accordance to the
Chinese wind" — and they would only do what the Chinese Government allows,
and would even criticize other Members for holding discussions on the Bill
because the Chinese Government does not allow them. Mr Deputy, I agree with
Mr CHEUNG that our efforts will not be wasted. We will find out what the
truth is after repeated discussions and I hope that through the efforts we made in
scrutinizing this Bill over the past few months and today's debate, the public will
clearly know whether Hong Kong needs such legislation.
Mr Deputy, under the Chinese socialist law, the offence of subversion can
be used to protect the proletariat dictatorship. Articles and speeches which are
regarded by Communist China as challenges to the proletariat dictatorship will
constitute offences of subversion. This concept goes against Hong Kong's
practice where we enjoy freedom of expression and protection by human rights.
Since the Chinese Government has already promised that Hong Kong will be
ruled under the principle of "one country, two systems", there is no need for
302
LEGISLATIVE COUNCIL — 23 June 1997
China to introduce legislation to the SAR which have strong Chinese socialist
characteristics.
WEI Jingsheng and Wang Dan, whom we know of, were imprisoned and
lost their freedom because they were convicted of subversion. The articles they
wrote displeased China and those articles were taken as evidences of their crime.
These cases show us that the Chinese Government will go to extreme in order to
suppress the people's right to express themselves.
As to the concept of secession, it is also directly against the right of self
determination for the people which is granted under the International Covenant
on Human Rights. In accordance with international laws, the people, even
those in the colonies, should have the right to decide on their own political status.
It is, therefore, against the international laws for Hong Kong to introduce the
offence of secession into our legislation. In another week's time, the British
Government will be seceding Hong Kong to China, and I think it is ridiculous
that we should be enacting legislation to prohibit the secession of any territory
from the United Kingdom at this point of time.
Mr LU Ping, the Director of the Hong Kong and Macau Office, has said
that any news reports and speeches on advocating "two China" will not be
allowed after 1997, and that means no one should advocate the independence of
Hong Kong and Taiwan. His comments have caused worries among Hong
Kong people and the press, and they are afraid that freedoms of press and
expression will be impeded. So, how can we agree to introduce the offences of
subversion and secession into the existing legislations? If we do, we will just
be asking for trouble and cause anxiety among the people of Hong Kong.
As pointed out by Mr Albert HO, the two law societies have told us that
there are no such offences as subversion and secession under common law.
However, the Government has adopted the legal provisions of other countries in
defining these two offences, and subversion is defined as "an attempt to
overthrow the Government by force". On the surface, it seems that any attempt
to overthrow the Government by force should be prohibited, but to determine
whether a person has committed the offence of subversion, we only need to prove
that the person has the"intention to incite or conspire with other persons to do
so", and then the person will be found guilty.
LEGISLATIVE COUNCIL — 23 June 1997
303
Some Members think that since there are such provisions in other common
law jurisdictions, it will be all right for us to introduce these provisions in our
legislation. However, we must bear in mind that even democratic countries may
have different interpretations on these provisions. It would not be wise for us to
transplant their legislation to Hong Kong, and it may also be very risky for us to
do so. It is not easy to lay down a clear definition for "an attempt to overthrow
the Government" by force. If we defined this offence, we would only provide
the people in power with the tools to suppress dissidents.
All bodies which we have consulted, including the two law societies, the
Hong Kong Association of Journalists, the international judicial body and the
Hong Kong Human Rights Monitor, indicate in their submissions that they are
opposed to the introduction of these offences. After considering the views of
these bodies and for the above reasons, all Members of the Frontier object to the
introduction of the offences of subversion and secession into our legislation.
Furthermore, the Government also suggests that we should amend the
provisions on treason and sedition. Mr Deputy, sedition is an outdated offence,
and in the past, this evil legislation was introduced by the British Government as
an effective weapon in the colonial rule to suppress nationalism and anti-colonial
sentiments. It is the common practice for the governments of those countries
which have enacted legislation on these offences to use this as a means to
suppress political or trade union activities.
I will move an amendment on behalf of the Frontier to delete the
provisions on sedition at the Committee amendment stage. As for the offence
of treason, we will support Mr Albert HO's amendment. Furthermore, the
Frontier objects to the amendment of the Democratic Party because their
amendment will be tantamount to introducing the idea of subversion and
secession in our legislation under the guise of "treasonable offence" and we do
not agree with this.
As Mr Albert HO said just now, the provisional legislative council will
certainly be enacting legislation for Article 23 of the Basic Law, but I think this
may not necessarily be the case, for many people are of the view that this
legislation should be dealt with by the first legislature of the SAR.
304
LEGISLATIVE COUNCIL — 23 June 1997
Furthermore, Mr Albert HO has also pointed out that though it is hard for us,
uncertainties can be removed with this legislation in place. Mr Deputy, we all
very well know that the next legislature may move amendments to legislation
passed by this legislature. In fact, each term of the legislature has the right to
amend laws endorsed by the previous legislatures. Therefore, I cannot see why
we should remove the so-called uncertainties. The question now should be
what else we can do.
Mr Deputy, we can state our principles and our position. I agree with Mr
CHEUNG Man-kwong. In fact, I share many of his views, and it is only his
conclusion which I cannot accept. We want to amend Article 23 of the Basic
Law and feel that it is the right thing to do, so we should not say that we want to
amend Article 23 on the one hand, but since we cannot do so, we will, on the
other hand, try to make a compromise so as to contain the actions of the future
legislature. The question is how we can achieve this objective. We do not
have more restrictions than the previous legislatures, and if we have sufficient
votes, we can amend laws which have been endorsed by the previous legislatures.
So, I hope that the Democratic Party can give this matter some more thought.
To sum up, Mr Deputy, the Frontier objects to introducing offences
relating to subversion and secession into the existing legislation. I will move
amendments to delete the offence of sedition, and we will do our best to amend
Article 23 of the Basic Law, to remove offences on subversion, secession and
sedition.
With these remarks, I support the Second Reading of the Bill.
MR RONALD ARCULLI: Mr Deputy, the Liberal Party's position on this Bill
is very clear. We consider it ill-advised for the Hong Kong Government to
introduce this Bill which deals with offences provided under Article 23 of the
Basic Law.
One would expect that a bill which deals with these offences which are
difficult, sensitive and obviously of concern to the community, would be given
every consideration not just as to its definition or scope but more importantly as
to whether it will survive the transition. We do not believe that the Bill, as it
has not been agreed to by the British and the Chinese Governments, will survive
the transition.
LEGISLATIVE COUNCIL — 23 June 1997
305
I hope in this respect my colleagues here today will respect our position as
we respect their position to give detailed consideration and deliberation to the
Bill, which they obviously have from the contents of their speech so far, but we
are unable to lend our support to this process or the Bill.
The Liberal Party, Mr Deputy, will vote against the Bill.
MISS MARGARET NG: Mr Deputy, on 17 January 1996, in a motion debate in
this Council on the protection of civil rights in Hong Kong, many Members
expressed concern about the uncertainty created by Article 23 of the Basic Law.
They urged the Administration to present the amendment bill on the Crimes
Ordinance, so that this Council can tackle the difficult question of legislating to
introduce such strange and new crimes as "subversion" and "secession" as soon
as possible. This the Administration did in December 1996, in spite of the
failure to reach agreement with the Chinese side. I thank the Administration for
its commendable response to this Council. The introduction of the Crimes
(Amendment) (No. 2) Bill provided the opportunity for this Council to consider
seriously the feasibility of such legislation in consultation with the public in a
democratic process.
The deliberations of the Bills Committee deserve to be consulted, whether
or not the Bill and its amendments are passed today. We have been told that
even if the amendments liberalizing the present law are passed, their life will be
no more than a few weeks or even days, before they are invalidated or repealed
by the Chinese authorities. We are, it is said, wasting valuable legislative time.
But, Mr Deputy, as Members elected to the legislature, our greatest fear is not
that we take too seriously something which might be short-lived. The greatest
fear is that we throw away important safeguards of liberty because we do not take
things sufficiently seriously.
In the rest of this speech, I will summarize the views I have reached, as a
matter of general principle, and then under each of the offences of treason,
treasonable offences, subversion, secession and sedition.
General principles
306
LEGISLATIVE COUNCIL — 23 June 1997
One of the most important views many of us adopted in the Bills
Committee was that given the development of human rights in recent times,
crimes against the state must be compatible with the International Covenant on
Civil and Political Rights (ICCPR), and that the law should be liberalized rather
than made harsher, less clear social wrongs justify harsher laws. I have been
given authoritative opinion that the laws to be enacted under Article 23 are
subject to the protection of the ICCPR under Article 39.
One thing crucial to my own deliberations on the Bill is the unanimous
view of the Bar and legal advice to the Administration, that Article 23 cannot be
directly applied as part of our criminal law. Its effect is to enable the Hong
Kong Special Administrative Region (SAR) to enact certain laws on its own, and
to place a duty on it to do so within a reasonable period. But until and unless
the SAR does so, there are no offences of subversion and secession in Hong
Kong. No one can be arrested, charged or convicted of subversion or secession
until and unless such offences are established by Hong Kong law. In other
words, Article 23 does not by itself necessitate our legislating on these new
offences.
We asked then, is there any other reason making the new offences
necessary? While members of the Bills Committee, myself included, agree that
offences against the state are necessary, we also agree that these type of offences
can easily become too vague and too broad, and open to abuse as political
weapons to curtail individual rights and freedoms. Legislation for offences
against the state must be each justified against the criterion of necessity, and
contain built-in safeguards against abuse. These considerations are applicable
not only to the proposed new offences of subversion and secession, but all the
offences in Parts I and II of the Crimes Ordinance touched upon in the Bill. The
two questions I have consistently asked of each and every offence therein are: Is
it necessary? Is it safe? If the answers are negative, then it must be rejected or
changed.
Subversion and secession
The Administration's proposed sections 5 and 5A provide for the new
offences of subversion and secession. Commendably, each includes, as a
necessary element, the use of force as a means to achieve a purpose. But even
LEGISLATIVE COUNCIL — 23 June 1997
307
so, the risk of someone being convicted merely for exercising his freedom of
speech remains. Take the example of subversion. By the proposed 5(b), a
person who "incites or conspires with any other person to overthrow the
Government of the United Kingdom by force" thereby commits an offence.
After 1 July, of course, this would refer to the Chinese Government. Now, in
1979, WEI Jingsheng was convicted under a similar offence in China, for writing
an article in which he allegedly incited people to "seize power" from those in
government. In 1995, he was convicted of "conspiring to subvert the
government" for writing a letter appealing for funds for the "democracy
movement", where a democracy movement was understood to be a "seizing of
government by force".
Mr President, in scrutinizing the language of clauses 5 and 5A, I am of
course aware that our courts, under the common law, are not entitled to make
such broad, sweeping interpretations against the defendant. But the public must
think that there is a risk, particularly after the change of sovereignty, and I cannot
assure them this is pure fancy. Moreover, the law serves also to regulate
conduct. If the executive authorities interpret broadly, as Chinese officials have
intimated from time to time, the public will be living under serious threat if such
laws were passed.
There is no need for such laws to be passed to protect the SAR or China.
As suggested by some Members, "subversion" may be characterized as the
overthrowing of the government by its own citizens, while "secession" may be
characterized, as the Chinese implies, as breaking off parts of the state into more
than one independent entity. Now, is there any reason why these aims, as aims,
should be subject to criminal sanction? In modern democratic thinking, the
answer must be "no". Individuals are the masters of their governments. They
have a right to debate and decide what kind of government organization they
should have, whether they are better off under one government or more, provided
the means they choose to debate or decide is lawful and peaceful, without
resorting to violence.
This being the case, all we are entitled to punish would be violence ─ the
use of force. But the unlawful use of force, and the incitement to use force
unlawfully, are already punishable under other legislation. There may be a case,
to mark by special criminal sanction as particularly serious, when unlawful force
is coupled with the aim of overthrowing or "supplanting" the government, but I
308
LEGISLATIVE COUNCIL — 23 June 1997
think not an easy case, and not to be accepted without the most far-reaching
study and consultation.
For the above reasons, my own position is to oppose clauses 5 and 5A and
any reincarnation in any guise, including under the Committee stage amendment
under "treasonable offences" to be moved by the Honourable James TO for the
Democratic Party.
Treason and treasonable offences
Mr Deputy, having dealt with the proposed new offences, members of the
Bills Committee also looked at the extant offences in Parts I and II. We noted
these are archaic offences based on concepts no longer applicable to modern
Hong Kong as we move towards the future. The Administration has merely
introduced technical changes, in order to facilitate future adaptation. These
amendments are acceptable to the Bills Committee. But other than that,
members took a broader view towards these parts. My own approach is that
provisions incompatible with human rights protection should be amended unless
it is safe to rely on the courts taking modern authorities into account and
restricting their interpretation.
Under this principle, the offence of treason, as amended by the Bill, is
acceptable to the Bills Committee. The offence realistically has to do with
"levying war" against the state or a part of the state, which of course ought to be
a crime.
On the other hand, "treasonable offences" as provided in section 3 are felt
to be too broad and therefore unacceptable. Here, the offence is not limited to
levying war, but the mere intention to do any one of a number of things including
levying war and instigating the invasion of a foreign force, coupled with an
unspecified overt act or publication showing such an intention. There is no
provision to stipulate that the nature of the act or publication is such as to have
any likelihood of promoting these events. The Bills Committee will be moving
a Committee stage amendment to delete section 3.
The Democratic Party, as I said earlier, is moving a Committee stage
amendment to amend rather than remove treasonable offences. The amendment
includes provisions for new offences reflecting "subversion" and "secession"
LEGISLATIVE COUNCIL — 23 June 1997
309
though not so named. For reasons I have already fully explained, I am unable to
support their amendment.
Sedition
I come finally to the extant offence of sedition provided under section 9 to
10 of the Ordinance, which was considered at great length in the Bills
Committee.
Sedition is defined in terms of doing or attempting or conspiring to do any
act, utter words or publish with a "seditious intention". "Seditious intention" is
defined by a hotch-potch list of things such as an intention "to bring into hatred
or contempt or to excite disaffection" against the government.
The opinion of legal experts making representation to the Bills Committee
was unanimous that this is a typical offence found in colonial administrations and
used by them or their immediate successors to censor dissenting political
opinion. The Bar doubts if Hong Kong needs such an offence. At any rate,
modern developments in the common law have substantially reduced the ambit of
sedition even where the offence is retained. The most significant development
is to require proof by evidence of the intention of causing violence or creating
public disorder or disturbance, before sedition can be established. It is one of
the clauses of the bill to amend section 10 of the Ordinance by adding this
requirement.
While I support this addition, I am of the view that even then it is not safe
to leave the rest of the present sections 9 and 10 as they are, because they invite
abuse. Along with the members of the Bills Committee, I tried to find ways to
amend these sections. However, unlike my colleagues, I am concerned that too
extensive tinkering with the Ordinance when the Bills Committee is severely
limited in time and expertize may be undesirable. We may thereby renounce the
benefit of modern case law while failing to write into the new provisions all the
necessary safeguards.
I cannot, indeed, support the Committee stage amendment on sections 9
and 10 to be moved by the Honourable Albert HO on behalf of the Bills
Committee, because, however well-meant, it is unsafe as drafted. One reading
of the Committee stage amendment may allow slogans such as "Down with LI
Peng" to be considered "seditious". In the end, I consider the only safe
LEGISLATIVE COUNCIL — 23 June 1997
310
alternative is to remove the offence of sedition altogether, and I will support the
amendment of the Honourable Miss Emily LAU to that effect.
Conclusion
Mr Deputy, I do not pretend we have found a satisfactory solution, even
with the Committee stage amendments. The exercise of the search has
demonstrated the urgent need for far-reaching reforms in this sensitive area of the
law. My recommendation to the Council is to pass the Bill with the safest
Committee stage amendments as a stop-gap measure, and then start a law reform
committee to search for the long-term solution most compatible with the modern
international human rights law.
With these words, I support the Second Reading of the Bill.
Thank you, Mr Deputy.
MISS CHRISTINE LOH: Mr Deputy, this Bill reminds me very much of the
Official Secrets Ordinance that we just passed a couple of weeks ago. The same
Members chose to be members of this particular Bills Committee. The same
two official members were chaperoning the Bill through the Bills Committee,
and indeed the vigorous debate that we had over the Official Secrets Ordinance
was replicated with this particular Bill, Mr Deputy.
I take some pride, actually, as a legislator that the Bills Committee spent so
much time discussing every aspect, and I will not go into the details because I
think a summary of our work has just been summarized by the Honourable Miss
Margaret NG. I just wish to say that the members who participated in this Bills
Committee show the same care and concern with this Bill as with other bills that
are introduced in this Council, and that the spirit in which we looked at this Bill
is one that I think Legislators should pay attention to.
It is with much regret that, of course, the people who opposed this Bill, or
amendments to this Bill did not bother to show up to the Bills Committee
discussions at all. So in the short time that was available, we had many, many
meetings and at each of the meetings each of the points that are being raised
today was vigorously discussed and debated.
LEGISLATIVE COUNCIL — 23 June 1997
311
So, I would also like to support the second reading of this Bill and my
votes on the various Committee stage amendments will be the same as Miss
Margaret NG's.
8.05 pm
THE PRESIDENT resumed the Chair.
MR ANDREW CHENG (in Cantonese): Mr President, originally I did not
intend to speak today. But just now, the Honourable Miss Emily LAU referred
to the motion debate I moved and urged me to clarify whether or not I had misled
the Government. So, I would like to share with Members my views about the
Bill introduced by the Administration and my views when the Bill was being
scrutinized.
Mr President, when Miss Emily LAU mentioned secession, she said that in
a few days' time Hong Kong would be seceded to China. I wonder why Miss
LAU or Members of the Frontier adopt the concept of secession in this matter.
In the motion debate I moved in January, we did not mention secession, but we
did hope that the Administration could introduce a bill on Article 23 of the Basic
Law as soon as possible. At any rate, Hong Kong is to be returned to its
motherland, not to be seceded to China.
As regards the 31 to 23 voting result, I think this is a beautiful but wrong
expectation on the part of the Administration. If, after the resumption of the
Second Reading, we have a chance to vote again, what is the intention of the 31
Members who voted for my motion, including those from the Democratic Party?
Will there be 31 votes for the Bill proposed by the Administration? I do not
think those Members who voted for my motion will necessarily vote for the Bill
proposed by the Administration. I am very clear about that.
My motion debate was moved against a background of WEI Jingsheng's
second imprisonment following the dismissal of his appeal. An objective of the
motion was to call for his release. Although the 31 to 23 voting result
demonstrates a common intention of this Council, this does not mean that the
Administration's amendment will win our full support.
312
LEGISLATIVE COUNCIL — 23 June 1997
Mr President, I often refer to Article 23 and Article 39 of the Basic Law.
Under Article 39, the International Covenant on Civil and Political Rights
(ICCPR) as applied to Hong Kong shall remain in force. But our view is that
Article 23 may be incompatible with Article 39 and the ICCPR. I am sure many
Members will express their views on the Basic Law again in the motion debate to
be held within a few days. But why do we have Article 23? We feel that after
the June 4 incident in 1989, the Basic Law Drafting Committee was of the view
that it was necessary to introduce provisions for secession, sedition, treason and
subversion against the Central People's Government in the Basic Law. Hence,
we are of the view that if there were no WEI Jingsheng or WANG Dan, we might
not have that motion debate. Had the June 4 incident not happened, there might
not be Article 23 in the Basic Law. The question is how to face the reality that
Article 23 does exist. I hope we can find the solution through our discussion
today and the full deliberation on the Bill by the Bills Committee. I strongly
agree with the Honourable Miss Christine LOH's point that Members who
oppose this Bill, especially those who have joined the Provisional Legislative
Council, apart from the Honourable Bruce LIU and the Honourable Frederick
FUNG, did not bother to show up in the Bills Committee discussions. They
oppose the Bill, but they do not face up to their legislative powers in a positive
way.
Mr President, I do not want to say any more. Miss Emily LAU said that
we could not impose any constraint on the future provisional legislature or the
first legislature, but, after all, the existing Legislative Council was returned by
election in 1995. It was elected by over one million voters. Through
discussion, we can at least see how the Administration defines subversion and
secession by introducing the term "use of force". I think the most important
thing is that this will encourage public discussion. Even if the provisional
legislative council or the first legislature would think that we had not imposed
pressure, the discussion by this elected assembly would at least make the public
aware that the offence of "subversion" does not exist in common law and the
issue had gone through deliberation by this Council. If the future provisional
legislature or the first legislature enacts harsh or stringent laws on subversion, the
public can make their own judgement.
Mr President, though this is a beautiful but wrong expectation, it can still
be submitted to this Council for discussion.
LEGISLATIVE COUNCIL — 23 June 1997
313
I hope Members would support the resumption of the Second Reading.
Thank you, Mr President.
MR BRUCE LIU (in Cantonese): Mr President, on behalf of the Hong Kong
Association for Democracy and People's Livelihood (ADPL), I support all the
amendments of the Bills Committee.
First, let me talk about my views on the Bill as a whole. The Bill intends
to enact laws on four offences. Among them, subversion and secession are
offences not found in Hong Kong in the past, and the other two offences, treason
and sedition, are covered by existing criminal laws.
The ADPL opposes the enactment of laws on two of the offences:
subversion and secession. Our reasons for opposing are slightly different from
those of the Democratic Party. Firstly, Article 23 of the Basic Law states that
the Hong Kong Special Administrative Region (SAR) shall enact laws on the two
offences. According to our understanding, enactment of those laws should be
left to the SAR. Of course, we may choose to conduct consultation without
enacting laws in the course of our discussion. That is to say, we need not
specify those two offences. The wording of the Basic Law, however, imposes
on us the obligation to enact laws. Our view is that the existing Public Order
Ordinance is sufficient to deal with acts such as subversion and secession. If
laws were to be enacted, they had better be dealt with by the first Legislative
Council of the SAR (the first legislature), which is to be returned by election, and
not by a provisional legislature. It would be better for the smooth transition of
Hong Kong if this Council does not enact the relevant legislation.
Second, a number of laws are waiting to be scrutinized by this Council.
So, it is more appropriate for us not to enact laws on the two offences. We
should leave the matter to the first legislature after the transition so that it can
have in-depth examination, or even conduct a territory-wide survey to see if the
public think the two offences should be included as criminal offences in Hong
Kong laws. I do not envisage the public, if allowed to decide, would agree that
they should. The two law associations also hold the same view. Although
there is provision in the Basic Law for laws concerning the two offences to be
enacted by the SAR, the possibility of not to enact such laws after deliberation is
not ruled out.
314
LEGISLATIVE COUNCIL — 23 June 1997
Third, we have the right to make suitable amendments to existing criminal
offences and modernize them to adapt to the Hong Kong context. If the future
legislature feels that the amendments are suitable for the Hong Kong community,
it can take all of them. It all depends on whether we can enact suitable laws
through discussion, which is what I hope to achieve. Certainly, as it is
sometimes reported, even if the amendments are passed today through proper
enactment procedures, the Standing Committee of the National People's
Congress may repeal them in future. But I think the Standing Committee
should understand clearly that the Bill we are going to pass today in fact serves
to incorporate modern amendments to the two existing offences.
In the Bills Committee, the ADPL made some comments on treason and
sedition. Although the ADPL does not think that substantial amendments
should be made to the existing treason offences, I personally think suitable
amendments are required. The Democratic Party, however, thinks otherwise.
They want to incorporate the concepts of subversion and secession into treason
offences, but this will make certain precedents inapplicable. This is a price to
pay and the major drawback of the Democratic Party's proposed amendments.
That means if we need to retain certain precedents in common law juridictions
or countries for reference by Hong Kong law courts in future, we should not
make changes to the key words. It is impossible to keep precedents for
reference and at the same time merge all offences into one. If we do so, we
cannot keep the merits of the law. Furthermore, the Government wants to
obviate the necessity of future enactment by merging the offences, but a
conceptual problem is involved here. Punishment has to be stated for offences
including treason, subversion, secession and sedition. If a new offence, called
"offence A" is established, and its elements contain elements of the four said
offences, confusion may arise. Law enactment for the new offence is not
appropriate. A better way to deal with the matter is to define each offence
clearly, if we think we need to specify each offence and want everyone to refrain
from committing it.
The Frontier thinks sedition offences should be deleted. I understand
they think if the offence is deleted, clarity is achieved because no one will be
incriminated for his or her words. But it all depends on the circumstances of
individual regions or countries. If the behaviour of certain people has the
intention of causing violence or present danger, such behaviour in whatever
name should be prohibited. So, we need to formulate suitable laws. We
should not just delete the offences; otherwise we would have no laws for this
LEGISLATIVE COUNCIL — 23 June 1997
315
situation. How can we do better? In paragraph 21 of the report, the ADPL
points out that we should not delete the provisions about sedition. Instead, we
should incorporate principle 6 of the Johannesburg Principles to suitably amend
the relevant clause so that it is consistent with the International Covenant on
Civil and Political Rights, because the Johannesburg Principles clearly rules out
the possibility of incriminating someone for his or her words. The principle was
incorporated into the amendment after a lot of hard work by the Bills Committee.
In this connection, I hope Members can support the amendment. Further
amendments should be left to the legislature of the SAR in future.
I want to explain clearly our position in voting on this Bill. We do not
want to see the Standing Committee of the National People's Congress repeal the
Bill just because we pass the amendment today. If amendments are required, I
hope the matter can be dealt with by the first legislature after the transition.
Mr President, I so submit.
MR IP KWOK-HIM (in Cantonese): Mr President, it is obvious that the Hong
Kong Government should not have unilaterally proposed amendments to the
Crimes Ordinance to enact legislation on offences of subversion and secession,
and passed the Bill to this Council for scrutiny.
With regard to the offences on subversion and secession, Article 23 of the
Basic Law has clearly stipulated that it should be dealt with by the SAR
Government. That is to say, to lay down definitions for the offences of
subversion and secession is the right of the SAR Government and this is also
something which should be done after the sovereignty of Hong Kong is handed
over to China on 1 July 1997. What the Hong Kong government is doing now
can be interpreted as a challenge to the Basic Law.
Moreover, at present, there is no urgent need for Hong Kong to enact
legislation on subversion and sedition. This unilateral amendment shows that
the Hong Kong Government distrusts the future SAR Government, and it is
trying to do the job of the SAR Government. The Democratic Alliance for the
Betterment of Hong Kong (DAB) is never one to subscribe to the conspiracy
theory, but the fact that the Hong Kong Government has chosen to introduce this
Bill just before the handover reveals the motive of Britain.
316
LEGISLATIVE COUNCIL — 23 June 1997
Article 23 of the Basic Law was already in place when the Sino-British
Joint Declaration was signed on 4 April 1984 and when the Basic Law was
promulgated on 4 April 1990. If the Hong Kong Government thinks that it is
necessary to lay down the relevant provisions, why did it not declare its intention
to do so then? What is the motive of the Hong Kong Government to move the
amendments right before the transfer of sovereignty? Does it mean that the
Hong Kong Government feels that early introduction of the Amendment Bill may
render it unable to bring the culprit to justice by applying the relevant provisions,
in case unexpected social disorders should arise? If we look at the papers
submitted by the Hong Kong Government which said "to help in the work of the
SAR Government" and that by enacting the law first, "only minor adaptations are
necessary in future " and that the law can "remain in use after the transition", we
can see that the Hong Kong Government does have such a motive in mind.
The DAB thinks that it is in the best interests of the Hong Kong people for
us to retain the existing legislation for the time being. We should conduct an
extensive consultation exercise after the first legislature of the SAR Government
is elected, and then introduce legislation on the offences of subversion and
sedition in the light of the prevailing circumstances and in accordance with the
stipulations of the Basic Law. Therefore, we think there is no need for Hong
Kong to introduce this Bill at this stage.
It is the intention of the Hong Kong Government to force the future SAR
Government to accept this legislation by presenting a fait accompli. However,
such an act would only be counter-productive, and would neither contribute to
the stability of Hong Kong nor work in the interests of Hong Kong people.
Therefore, for the long-term interests of Hong Kong people, the DAB has
decided not to participate in the work of scrutinizing this Bill.
With these remarks, I oppose to this Bill on behalf of the DAB.
MR JAMES TO (in Cantonese): Mr President, on behalf of the Democratic
Party, I would like to give my response to the remarks of some Members. The
Honourable IP Kwok-him has said just now that this Bill is not urgent. I want
to explain why I think it is urgent. The provisions about treason in the Crimes
Ordinance are very draconian, so there is an urgent need for this Bill. I believe
that, in the past decades, all the tortures, interrogations and even persecutions
suffered by the leftists in Hong Kong, which are in fact the pro-China elements,
LEGISLATIVE COUNCIL — 23 June 1997
317
were instituted by the Special Branch of the Hong Kong Government and the
basis was the Crimes Ordinance.
In recent years, although the enforcement of the colonial draconian laws
has been relaxed a bit, as compared with the past, these laws are still very harsh
from the legal point of view.
Now we are going to reunite with our motherland. When the United
Kingdom was ruling Hong Kong, the British Government thought that Hong
Kong people were aliens and thus would not be submissive. That was why they
ruled with a high-pressure policy and a harsh legal system which we have to
censure. I believe we have all suffered in the last few decades under the
draconian laws. We should not treat our own people like the British
Government did, which was ruling this colony by harsh laws. From the legal
point of view, there is in fact an urgency for the present Bill.
Just as Mr IP Kwok-him said, neither the British Hong Kong Government
nor the Government of the United Kingdom made any amendments. This is
inappropriate. We have always been of the view that the Government should
propose amendments. I remembered that in 1992, when nobody talked about
Article 23 of the Basic Law at all, I was already urging in this Council the
Government to amend the relevant laws as soon as possible. The amendments
are not to take effect on 1 July 1997, but to be enforced right away. I have
pressed the Government for years, but it is not until now that they finally
introduce the amendments!
In fact, the Democratic Party and the people fighting for democracy,
liberty and human rights have all along been asking the British Government to
amend the the colonial laws. It does not mean that we are antagonistic to China.
Please take a look at the provisions to which the Democratic Party agrees. For
example, we subscribe to the concept of one state so we find it unacceptable to
divide the country by force. We also concur that the definition of "secession"
should be concrete and substantive. Of course, some people may think that a
mere oral agreement will do, but this is something we cannot accept. We do
have divergences in views to a certain extent, and some may think these are
divergences in principles. However, the most important thing is that we
acknowledge the concept of "state". The so-called treason and sedition should
be concretely defined. For example, using force to overthrow the government
should be criminalized. However, if a mentally disordered person or an
emotionally disturbed person raves, and if his behaviour does not constitute
318
LEGISLATIVE COUNCIL — 23 June 1997
"overthrow of a government" or "secession of a country", then even if he shouts
slogans for independence, secession or self-determination, he is just talking to
himself. In this society which has always been free, is there a need to imprison
such a person for eight or 10 years? We will absolutely disagree.
Therefore, we have added in our amendments provisions of involving two
or more individuals in substantial planning and organization (we have made
reference to the Organized and Serious Crimes Ordinance about this point). We
hope to strike a balance between the two. Under the concept of state, certain
activities have to be prohibited.
Some Members query what good these provisions are if sedition, armed
rebellion, secession or subversion really happen. I think that Article 23 of the
Basci Law is just a framework. We have to study carefully what activities are
considered anti-government or anti-state and must be prohibited or criminalized.
The contents of the amendments have to be substantive, but of course different
people have different views about what substantive contents are. In this elected
Council, we can hold discussions and move amendments, though I think the
present amendments are a little belated. In 1992, I strived for what I advocated
and urged the Government to make amendments. If my memory is correct, the
public officer answered my question at that time was the acting Secretary for
Security — Mr MORRIS.
For a long time, the Democratic Party and the supporters of the former
United Democrats of Hong Kong and Meeting Point have been urging the
Government to amend the draconian laws of the colony. We are not doing it for
1 July 1997.
I would like to respond to certain viewpoints of the Honourable Bruce
LIU. He alleged that the Democratic Party's amendments are half-baked and are
just a melange of the things it wants to amend. That is not the fact. In the
amendments, we have clearly divided the activities to be prohibited into several
categories. As to whether it will mean that common law cases cannot be
invoked for reference, I suggest Members turn to clause 3. You will find that
the original treasonable offence has already been deleted by us because it is too
harsh. I delete the whole provision because I think that, for this offence,
common law cases do not have to be invoked. Besdies, I have incorporated
subversion and secession into treasonable offences. Although we do not use
such a term, I think we should define such offences concretely.
LEGISLATIVE COUNCIL — 23 June 1997
319
With regard to clause 2 of Part 1 about treason, what we intend to delete is
actually an outdated provision, such as the archaic concept of declaring war. As
Mr Bruce LIU said, we should only retain the modernized concepts. For
example, only "collusion with the enemy" or assisting the enemy in times of war
should constitute treason. What we are talking about is treason against the
nation, not against a certain party, the ruling party or an individual. The Queen
is only a product under the monarchy system. In the present government system
of China, we do not have the concept of king or monarch. Say, for example, the
President of China should not be considered as someone who needs to be
protected as under the monarchy system. Hurting him is not equivalent to
hurting a symbol of unity or the authority of a nation. In the modern society or
in view of the present condition of China, we do not have such a concept at all.
Furthermore, I would like to respond to part of the Honourable Miss Emily
LAU's speech. As to why there is a need to legislate against secession, she has
said that, according to the laws of the United Nations or the international laws,
people have the right for self-determination. My response is actually very
simple: does the right for self-determination mean that people have the right to
use force to overthrow a Government? I myself have reservation about this.
In fact, I think this is a very interesting offence. It people use force to
overthrow a government successfully, the matter will not be pursued in law.
However, if the overthrow fails, the authority will pursue and prosecute those
involved for certain offences. So if someone succeeds in overthrowing a
Government or splitting a country by force, he will not be liable and the
international community may revalue the situation and regard him as the new
leader of that particular country. But we also find it acceptable if such
behaviours are considered as offences.
As to whether the Bill will achieve continuity if it is passed, I think that, in
today's debate, no matter what views we hold, no matter whether we follow the
Johannesburg Principle or adopt concepts such as an obvious and clear intention
or immediate and obvious consequences, no matter whether we use wording such
as "force" or "violence", the discussion today will still be of high reference value
to the formulation of provisions pursuant to Article 23 of the Basic Law in the
future legislature.
In formulating provisions which suit Hong Kong and are in line with
international covenants, I believe the elected Members of the legislature have
320
LEGISLATIVE COUNCIL — 23 June 1997
responsibility to strike a balance basing on the important principles of
safeguarding people's rights and the overall integrity of the country. I believe
there will naturally be further heated debates on this issue in future. I hope that
the Honourable colleagues who have spoken in today's debate and the members
who have thoroughly studied the issue in the Bills Committee will not throw
away their data and materials as such information will be very useful for future
reference.
Thank you, Mr President.
MR MARTIN LEE (in Cantonese): Mr President, I just only wish to put my
speech on record. When I was working with the Basic Law Drafting
Committee, the expressions of 'subversion against the Central People's
Government' were present in the first draft of the Basic Law, but this had created
a great turmoil within the community at that time, and a lot of people were of the
opinion that these expressions which are not clearly defined should not be
allowed in the Basic Law, and many people, in particular those of the legal
profession, had voiced objections. Therefore, the expressions of 'subversion
against the Central People's Government' were deleted from the second draft of
the Basic Law. This showed that the Central Government could actually accept
that it was not necessary to enact laws in this respect in future. But,
unfortunately, the third draft of the Basic Law, and that is the last draft, has not
only retained these expressions but also added "to prohibit foreign political
organizations or bodies from conducting political activities in SAR, and to
prohibit political organizations or bodies of the SAR from establishing ties with
foreign political organizations or bodies" to that Article. Regarding this point, I
think that it is actually not necessary for the Central Government to enact laws on
acts like subversion against the Central Government.
DR YEUNG SUM (in Cantonese): Mr President, I wish to give a brief reply to
the Honourable IP Kwok-him's speech.
Mr IP Kwok-him has said that the fact that this Council is discussing this
Bill is a challenge to the Basic Law. Mr President, I think there is nothing
wrong even if we are challenging the Basic Law! In fact, every law will be
challenged in changing times.
LEGISLATIVE COUNCIL — 23 June 1997
321
I remember that in the early '70s, three persons gathering together at one
place might be charged with illegal assembly. There was a case where a group
of social workers led the boat people on a petition, and they were charged with
illegal assembly when the bus they took arrived at the entrance of the tunnel.
And we were also dispersed by the police when we had an assembly at Victoria
Park when I was a university student in the early '70s. But, is it not true that
these laws have now been changed?
So, laws change according to the needs of the time. Laws should also be
changed in accordance with the changing times. At present, three persons
getting together will no longer constitute an offence of illegal assembly in Hong
Kong, and the Public Order Ordinance has also been amended accordingly.
Mr President, very often laws are challenged by reason, and people may
have different concepts or demands in respect to human rights and their own
rights.
After the Second World War, the United Nations passed the
International Covenant on Human Rights. Everyone knows that people have
come to cherish their human rights even more after the war. After the human
rights covenant was formulated, the civil rights and political rights covenants
were also formulated respectively, and the Hong Kong Bills of Rights Ordinance
was also enacted in Hong Kong. So, as the society changes, people's idea of
their own rights also changes, and the laws should also be amended in
accordance with the different demands on the quality of life and the different
concepts of human rights.
Therefore, it is only natural for the Basic Law to accept these challenges
and there is nothing wrong with it. Members should not think that we are
discussing this Bill in the Legislative Council because we want to make laws for
the SAR Government, and this point has been mentioned many times in previous
debates. The laws we pass in this Chamber is for our future society, so
Members should not think that we are discussing this law here today because we
want to enact laws for the SAR Government. If we do not pass these laws now,
there will be even more problems for the SAR in future.
Mr President, I would like to state clearly that the Democratic Party is not
trying to challenge the Basic Law, and we will be striving to amend the Basic
Law as soon as possible, but the amendments are only restricted to Article 23!
322
LEGISLATIVE COUNCIL — 23 June 1997
Thank you, Mr President.
SECRETARY FOR SECURITY: Mr President, in the interest of time, I shall
be brief.
The Crimes (Amendment) (No. 2) Bill was introduced into the Legislative
Council on 4 December 1996 in response to the community's wish to see early
and clear legislation dealing with the concepts of treason, sedition, secession and
subversion, which are concepts set out in Article 23 of the Basic Law.
The background for introducing this Bill has been explained clearly in my
speech on 4 December last year, and I do not wish to repeat it again. I would
like to stress only two points. Firstly, what we have proposed is largely in
response to what the community wanted, as reflected by views expressed in this
Council. Members will recall that on 17 January 1996, this Council carried a
motion in its debate on "Protection of Civil Rights", and subsequently reiterated
its desire that the Administration should take early action on the concepts set out
in Article 23 of the Basic Law.
Secondly, the Bill we put forward to the Council meets not only the
requirements of Article 23 of the Basic Law, but also provides a framework
which is consistent with the Basic Law, the Joint Declaration, the Bill of Rights
and the International Convenant on Civil and Political Rights. The Bill has
been drafted in such a way as to allow the Hong Kong Special Administrative
Region, as required by Article 23 of the Basic Law, to make laws on its own with
the minimum of adaptation.
The Bills Committee has been painstaking in its scrutiny of the Bill. The
public and concerned organizations were given full opportunity to express their
views. Quite apart from its educational value, this process has clearly generated
new approaches to Members' thinking on what the Bill itself should contain.
LEGISLATIVE COUNCIL — 23 June 1997
323
The Administration sees no need to propose any amendment to the Bill, nor do
we see any need for any of the proposed amendments.
Mr President, I recommend the Crimes (Amendment) (No. 2) Bill 1996 to
this Council.
Question on the Second Reading of the Bill put.
Voice vote taken.
PRESIDENT (in Cantonese): Council will now proceed to a division.
PRESIDENT (in Cantonese): I would like to remind Members that they are now
called upon to vote on the question that the Crimes (Amendment) (No.2) Bill
1996 be read the Second time.
Will Members please register their presence by pressing the top button and
then proceed to vote by pressing one of the three buttons below?
PRESIDENT (in Cantonese): Before I declare the result, Members may wish to
check their votes. Are there any queries? The result will now be displayed.
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,
Miss Christine LOH, Mr LEE Cheuk-Yan, Mr Andrew CHENG, Dr 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 TSANG Kin-shing, Dr John TSE and Mr YUM Sin-ling
voted for the motion.
Mr NGAI Shiu-kit, Mr LAU Wong-fat, Mr Edward HO, Mr Ronald ARCULLI,
Mrs Miriam LAU, Dr LEONG Che-hung, Mr CHIM Pui-chung, Mr Eric LI, Dr
324
LEGISLATIVE COUNCIL — 23 June 1997
Philip WONG, Mr Howard YOUNG, Mr James TIEN, Mr CHAN Kam-lam, Mr
CHAN Wing-chan, Miss CHAN Yuen-han, Mr Paul CHENG, Mr CHENG
Yiu-tong, Mr CHEUNG Hon-chung, Mr CHOY Kan-pui, Mr David CHU, Mr IP
Kwok-him, Mr Ambrose LAU, Mr LEE Kai-ming, Mr LO Suk-ching and Mr
NGAN Kam-chuen voted against the motion.
THE PRESIDENT announced that there were 27 votes in favour of the motion
and 24 votes against it. He therefore declared that the motion was carried.
Bill read the Second time.
Bill committed to a Committee of the whole Council pursuant to Standing Order
43(1).
DR LEONG CHE-HUNG (in Cantonese): Mr President, I move that in the
development of further divisions being claimed in respect of the remaining issues
at the Committee stage of the Crimes (Amendment) (No.2) Bill at this sitting, the
Committee do proceed to each of such division immediately after the division
bell has rung for one minute.
Question on the motion porposed, put and agreed to.
Committee stage of Bill
Council went into Committee.
CRIMES (AMENDMENT) (NO. 2) BILL 1996
Clauses 1, 6, 10, 11 and 13
Question on the clauses stand part of the Bill proposed and put.
Voice vote taken.
THE CHAIRMAN said he thought the "Ayes" had it.
LEGISLATIVE COUNCIL — 23 June 1997
325
Mr IP Kwok-him and Mr Howard YOUNG claimed a division.
CHAIRMAN (in Cantonese): Committee will now proceed to a division.
CHAIRMAN (in Cantonese): I would like to remind Members that they are now
called upon to vote on the question that clauses 1, 6, 10, 11 and 13 stand part of
the Bill.
Will Members please register their presence by pressing the top button and
then proceed to vote by pressing one of the three buttons below?
CHAIRMAN (in Cantonese): Before I declare the result, Members may wish to
check their votes. Are there any queries? The result will now be displayed.
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,
Miss Christine LOH, Mr LEE Cheuk-Yan, Mr Andrew CHENG, Dr 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 TSANG Kin-shing, Dr John TSE and Mr YUM Sin-ling
voted for the motion.
Mr NGAI Shiu-kit, 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, Mr CHAN Kam-lam, Mr CHAN
Wing-chan, Miss CHAN Yuen-han, Mr Paul CHENG, Mr CHENG Yiu-tong, Mr
CHEUNG Hon-chung, Mr CHOY Kan-pui, Mr David CHU, Mr IP Kwok-him,
Mr Ambrose LAU, Mr LEE Kai-ming, Mr LO Suk-ching and Mr NGAN
Kam-chuen voted against the motion.
326
LEGISLATIVE COUNCIL — 23 June 1997
THE CHAIRMAN announced that there were 27 votes in favour of the motion
and 24 votes against it. He therefore declared that the motion was carried.
Clause 2
MR JAMES TO (in Cantonese): Mr Chairman, I move that clause 2 be amended
as set out in the paper circularized to Members.
Mr Chairman, I have mentioned the main principle during the Second
Reading. Perhaps I can briefly explain the content of clause 2. It is about
"rebellion" or "treason" and we propose to delete some systems which are too
old-fashioned and outdated. They include paragraphs (a), (b), (c) and (f).
Paragraph (a) refers to conspiracy to harm the Queen or cause her bodily
harm. As I have said, this provision originates from the idea that a monarch is a
representation of sovereignty in the monarchy system. It is very hard for me to
imagine that after China has resumed the sovereignty over Hong Kong after 1
July any person or symbol can be in the same position to be harmed or replaced.
Hence I think that the paragraph should be deleted.
The provisions in paragraph (b) are very loose. The so-called intention
and overt act of an offence of rebellion is indeed very loose.
Paragraph (c) refers to declaration of war against the Queen or against
Britain. We think that it is a rather old-fashioned clause.
We consider that the remaining provisions bear substantial contents.
There should be substantial meaning when a country resumes its sovereignty.
This is about inducing an enemy country or foreigners to attack a country with
force, and such inducement or direction may lead to attack or invasion. We find
that we have to add the latter part because if a crazy man asks others to attack his
sovereign country, no one will pay attention to him, because objectively speaking
it is absolutely impossible to lead to such consequence, and it is considered as
strange behaviours. We find that it should not constitute a criminal offence.
For part (f), we have deleted "by any means" from "helping the foreign
enemies in war", that is to say, to assist the enemies substantially when fighting
in a war, we find that one should respects not only the country, but also its
LEGISLATIVE COUNCIL — 23 June 1997
327
territories and people. We find that in order to be in line with the system
acceptable to us after China resumes its sovereignty over Hong Kong in the
future, we should make amendments in this direction and take into account the
concept of one country and the part of the present International Covenant on
Human Rights implemented in Hong Kong.
Proposed amendment
Clause 2 (see Annex VII)
Question on the amendment put.
Voice vote taken.
CHAIRMAN (in Cantonese): Committee will now proceed to a division.
CHAIRMAN (in Cantonese): I would like to remind Members that they are now
called upon to vote on the question that the amendment to clause 2 moved by Mr
James TO be approved.
Will Members please register their presence by pressing the top button and
then proceed to vote by pressing one of the three buttons below?
CHAIRMAN (in Cantonese): Before I declare the result, Members may wish to
check their votes. Are there any queries? The result will now be displayed.
Mr SZETO Wah, Dr LEONG Che-hung, Mr Albert CHAN, Mr CHEUNG
Man-kwong, Mr Michael HO, Dr HUANG Chen-ya, Mr LEE Wing-tat, Mr Fred
LI, Mr James TO, Dr YEUNG Sum, Mr WONG Wai-Yin, Mr Andrew CHENG,
Dr Anthony CHEUNG, Mr Albert HO, Mr LAW Chi-kwong, Mr TSANG
Kin-shing, Dr John TSE and Mr YUM Sin-ling voted for the amendment.
Mr NGAI Shiu-kit, Mr LAU Wong-fat, Mr Edward HO, Mr Ronald ARCULLI,
Mrs Miriam LAU, Mr CHIM Pui-chung, Mr Frederick FUNG, Miss Emily LAU,
Mr Eric LI, Mr Henry TANG, Dr Philip WONG, Mr Howard YOUNG, Miss
328
LEGISLATIVE COUNCIL — 23 June 1997
Christine LOH, Mr LEE Cheuk-Yan, Mr CHAN Kam-lam, Mr CHAN
Wing-chan, Miss CHAN Yuen-han, Mr Paul CHENG, Mr CHENG Yiu-tong, Mr
CHEUNG Hon-chung, Mr CHOY Kan-pui, Mr David CHU, Mr IP Kwok-him,
Mr LAU Chin-shek, Mr Ambrose LAU, Dr LAW Cheung-kwok, Mr LEE
Kai-ming, Mr LEUNG Yiu-chung, Mr Bruce LIU, Mr LO Suk-ching, Mr MOK
Ying-fan, Miss Margaret NG and Mr NGAN Kam-chuen voted against the
amendment.
THE CHAIRMAN announced that there were 18 votes in favour of the
amendment and 33 votes against it. He therefore declared that the amendment
was negatived.
Question on the original clause 2 put.
Voice vote taken.
THE CHAIRMAN said he thought the "Noes" had it and declared the "Noes"
have it.
CHAIRMAN (in Cantonese): Excuse me, is it a point of order?
MR JAMES TO (in Cantonese) : Mr Chairman, when you lowered your head to
ponder just now, the Honourable Bruce LIU stood up.
MR BRUCE LIU (in Cantonese): I have claimed a division.
CHAIRMAN (in Cantonese): I am sorry, but the time for claiming a division is
up. You should have stood up and said "Mr President, I claim a division."
You may say it out loud, but it is not necessary for you to put up your hand. It
is also the same if you stand up and say "point of order", but you can choose not
to put up your hand because that is your right.
LEGISLATIVE COUNCIL — 23 June 1997
329
MR BRUCE LIU (in Cantonese): I did stand up, but I did not say anything, and
that was why you did not see me.
CHAIRMAN (in Cantonese): It is not possible for me to see everyone at the
same time. Last week, the same thing happened to Mrs Selina CHOW.
Clause 3
CHAIRMAN (in Cantonese): Both Mr James TO and Mr Albert HO have
separately given notices to move amendments to clause 3.
I propose that the amendments to clause 3, proposed separately by Mr
James TO and Mr Albert HO, be debated together in a joint debate.
If there are no objections, Committee shall debate the amendments in a
joint debate. I will first call upon Mr James TO to move his amendment by
virtue of his seniority, although he is younger in age.
MR JAMES TO (in Cantonese): Mr Chairman, I move that clause 3 be amended
as set out in the paper circularized to Members.
Mr Chairman, the amendment to be moved by the Honourable Mr Albert
HO on behalf of the Bills Committee is very simple. No matter from what angle
you look at it, the definition of the so-called "treasonable offences" in the
existing law is very broad. Therefore, he wants the provision repealed. I
know that Members of the Hong Kong Association for Democracy and People's
Livelihood (ADPL) also agrees to this amendment. My amendment is not to
reinstate the original content of the "treasonable offences". As the Honourable
Miss Christine LOH said, my amendment is to take out sections 5 and 5(A),
which originally contain the Government's proposed provision on subversion and
secession, and give them another heading. Of course, it is more than changing
the heading. Since the meanings of "subversion" and "secession" are quite
broad, I have narrowed them down.
330
LEGISLATIVE COUNCIL — 23 June 1997
Perhaps I will explain it briefly. The effect of my amendment is to
narrow down the meaning of "subversion" to mean using force with an intention
to to overthrow the Government. We agree that within a country, it is right to
criminalize such offences. As for using force for secession, we also feel that it
should be criminalized. Just now the Honourable Miss Emily LAU said that
although some Commonwealth countries also have such legislation, we have
copied the legislation without copying the whole democratic system. I think
that is her main point. Let me say a few words about this. In our opinion,
Hong Kong follows the principle of "one country, two systems". Although we
cannot borrow the whole democratic system, according to the Basic Law, we will
ultimately have a democratically elected Legislative Council and a Government
returned by election. Of course, we still need to fight for the amendment of the
Basic Law and the pace of democratization that it has specified. Hong Kong
also has another system, such as the freedom of the media, which the
international community is quite concerned about, and economic activities.
Therefore, we need to make an amendment to narrow this down to acts which
involve the activities of two or more persons and which involve planning and
organization etc. In addition, since we also have the Bill of Rights Ordinance
(BORO) and Article 39 of the Basic Law, the interpretations of these two
provisions cannot exceed the interpretation of BORO and Article 39 of the Basic
Law. In this form, we think we could just accept them.
Proposed amendment
Clause 3 (see Annex VII)
CHAIRMAN (in Cantonese): I will call upon Mr Albert HO to speak on the
amendment proposed by Mr James TO as well as his own proposed amendment,
but will not ask Mr HO to move his amendment unless Mr James TO's
amendment has been negatived.
MR ALBERT HO (in Cantonese): Mr Chairman, my proposed amendment has
the unanimous support of the Bills Committee.
The amendments we move are not in contradiction with Mr James TO's
original amendments.
Of course Members can choose to support my
amendments or to veto Mr James TO's amendment but there are actually no
conflicts between the two amendments. Mr James TO's amendment is mainly to
legislate on treasonable offenses, and according to the way we have drafted our
LEGISLATIVE COUNCIL — 23 June 1997
331
amendment, the concepts of "subversion" and "secession" have been
encompassed in the treasonable offences. As Mr James TO said, we have tried
to add as many human rights protection mechanisms as possible, narrow down
the definition for the offences, and increase the onus of proof on the part of the
prosecution. If the concept of secession is involved, it will be taken to mean to
supplant the lawful authority of the government, or seize control of the territory
under the rule of the government or control in respect of any part of the country,
and this is the concept of "secession".
And "subversion" chiefly involves the use of force. Of course, both
"secession and subversion" involve the use of force but "subversion" is about
using force to overthrow the government. It may not involve an outside enemy
or lead to a war, but at least force is used in overthrowing a lawful authority of
the government and this is the concept of "subversion".
However, there are several particularly important points in Mr James TO's
amendment. First, it is about the proof on objective possibility, and that is not
to say that if it can be proved that someone has taken certain actions or has the
intention, that person can be convicted. In fact, clause 3 (2) of the amendment
states that there must be a "likelihood" that such actions will lead to success of
control before it will constitute a crime, so the elements of objective possibility
and the likelihood to succeed must be present. This is the first point.
Furthermore, clause 4 also states that no person shall be convicted unless
the acts are committed in a manner which involves the activities of two or more
persons associated together, and where substantial planning and organization are
involved. In order to convict a person of subversion and secession, apart from
proving that the element of force is involved, and such acts are directed against
the government with the intent of overthrowing or supplanting its control over
part of the territory, these so-called actions of force must to a certain extent result
in some consequences, and it means that there is an objective possibility that
some consequences will be resulted from such actions, and that such
consequences may not be achieved by one or two persons, and that organization
and planning must be involved. Therefore, we hope to narrow down Mr James
TO's definition and make it more clear, so that it can meet the requirements of the
covenant, and a person will not be convicted just simply because of his speeches
and publications.
332
LEGISLATIVE COUNCIL — 23 June 1997
Apart from the amendments which Mr James TO has made on behalf of the
Democratic Party, I have moved an amendment on behalf of the Bills Committee.
We wish to amend section 3 of the existing Ordinance because we find it totally
unacceptable. The reason is very simple. As many Members have mentioned
during the resumption of the Second Reading debate, the wording of this section
poses great danger for thought or intent to be criminalized. At present this
Section is written in such a way that a person can be convicted if he has the intent
to overthrow the Queen, or instigate a war against his country, which now refers
to the United Kingdom and China in future, or to instigate a foreign enemy to
invade his country, which now refers to the United Kingdom and China in future
after adaptations are made. It said if you have such intentions, that is to start a
war or instigate a foreign enemy to invade the country, and such intentions are
manifested by an overt act , and this overt act may take the form of publications
or public speeches, then you may be convicted. This is quite dangerous for
some people may actually have such thoughts, such as to overthrow a certain
government, but this may just be a thought and will only remain part of a purely
subjective thinking process. They may have put it in writing or simply said
something to that effect, then they will be convicted of a serious offence — the
treasonable offence, and the highest penalty will be 10 years of imprisonment.
We think that this is in contravention to the principles of the international human
rights covenant, because a person will not be incriminated simply because of his
thoughts, or even if he has publicized his thoughts in writings or speeches,
because his thoughts could never be materialized. He is simply saying
something without using any actual force, without the intention of using force, or
poses any threats of using force, and such speeches will not result in treason.
Therefore, under such circumstances, we cannot accept the way this Section is
writte. Yet since we cannot make any appropriate amendments, we have
unanimously agreed to have this section repealed.
In view of the above reasons, I hope Members can consider my
amendment and Mr James TO's amendment separately. Of course, if Mr James
TO's amendment is carried, then the Democratic Party's proposal on treasonable
offence can replace the existing section 3, but even if Mr James TO's amendment
is negatived, I hope Members can support the Bills Committee's amendment to
repeal section 3 because this section is obviously in contravention to the human
rights covenant and the Bills of Right.
Thank you, Mr Chairman.
LEGISLATIVE COUNCIL — 23 June 1997
333
MISS MARGARET NG: Mr Chairman, I urge Members to vote against the
Honourable James TO's amendment. I know that Mr TO has tried his best, but
his amendments were hastily put together. This is a reincarnation of the
offences of subversion and secession and each exposes someone to 10 years'
imprisonment. I urge Members to vote against it.
It is only when Mr James TO's amendment is defeated that we can go to the
amendment of the Bills Committee and then Members can consider whether they
want to do away with treasonable offences altogether, or if they think that that is
too extreme they can fall back on the original clause in the Bill which is a slight
amendment.
Thank you, Mr Chairman. Please vote against this amendment.
MISS EMILY LAU (in Cantonese): Mr Chairman, I speak to support the
amendment raised by Mr Albert HO on behalf of the Bills Committee to delete
clause 3, "Treasonable offences". However, I also agree with what Miss
Margaret NG has said and object to Mr James TO's amendment.
Mr Chairman, as Mr James TO has said, he reincarnated the offences of
subversion and secession in the name of this treasonable offence. Although he
said the scope was narrowed, I believe that we, the Frontier, will not support
these two offences in principles. I have already mentioned this point in the
Second Reading and do not want to repeat it. However, we mainly feel that
subversion may be used to control those opposing us. We totally do not
consider that any civilized society should have this offence. As for secession, it
even contravenes the human rights convenant and infringes the right of
self-determination by the public. Therefore, no matter how narrow the
definition is, and no matter what other protections are, we will not support the
amendment. Thus, we only support Mr Albert HO's amendment and object to
Mr James TO's.
MR JAMES TO (in Cantonese): Mr Chairman, I consider that this is a place for
rational debates. I particularly hope that all of you can raise more opinions this
time.
LEGISLATIVE COUNCIL — 23 June 1997
334
The name at present is neither subversion nor secession. In fact, some
so-called "prohibited acts" have clear indication. I would like to ask the
Member who objects to my amendment what she has in mind. Does she think
that the act to overthrow by force which will very likely lead to overthrowing the
Government should not be a criminal offence; or no imprisonment of 10 years
should be allowed; or the restrictions are not sufficient; or to overthrow the
Government by force is the right of the public?
I hope the Member concerned can give us some ideas, if possible.
Question on Mr James TO's amendment put.
Voice vote taken.
THE CHAIRMAN said he thought the "Noes" had it.
Mr Albert HO and Mr James TO claimed a division.
CHAIRMAN (in Cantonese): Committee will now proceed to a division.
CHAIRMAN (in Cantonese): I would like to remind Members that they are now
called upon to vote on the question that the amendment to clause 3 moved by Mr
James TO be approved.
Will Members please register their presence by pressing the top button and
proceed to vote by pressing one of the three buttons below?
CHAIRMAN (in Cantonese): Before I declare the result, please check your
votes. Are there any queries? The result will now be displayed.
LEGISLATIVE COUNCIL — 23 June 1997
335
Mr SZETO Wah, Mr Albert CHAN, Mr CHEUNG Man-kwong, Mr Michael HO,
Dr HUANG Chen-ya, Mr LEE Wing-tat, Mr Fred LI, Mr James TO, Dr YEUNG
Sum, Mr WONG Wai-Yin, Mr Andrew CHENG, Dr Anthony CHEUNG, Mr
Albert HO, Mr LAW Chi-kwong, Mr TSANG Kin-shing, Dr John TSE and Mr
YUM Sin-ling voted for the amendment.
Mr NGAI Shiu-kit, Mr LAU Wong-fat, Mr Edward HO, Mr Ronald ARCULLI,
Mrs Miriam LAU, Dr LEONG Che-hung, Mr Frederick FUNG, Miss Emily
LAU, Mr Eric LI, Mr Henry TANG, Dr Philip WONG, Mr Howard YOUNG,
Miss Christine LOH, Mr LEE Cheuk-Yan, Mr CHAN Kam-lam, Mr CHAN
Wing-chan, Miss CHAN Yuen-han, Mr Paul CHENG, Mr CHENG Yiu-tong, Mr
CHEUNG Hon-chung, Mr CHOY Kan-pui, Mr David CHU, Mr IP Kwok-him,
Mr LAU Chin-shek, Mr Ambrose LAU, Dr LAW Cheung-kwok, Mr LEE
Kai-ming, Mr LEUNG Yiu-chung, Mr Bruce LIU, Mr LO Suk-ching, Mr MOK
Ying-fan, Miss Margaret NG and Mr NGAN Kam-chuen voted against the
amendment.
THE CHAIRMAN announced that there were 17 votes in favour of Mr James
TO's amendment and 33 votes against it. He therefore declared that the
amendment was negatived.
CHAIRMAN (in Cantonese): As the amendment to clause 3 proposed by Mr
James TO has been negatived, I now call upon Mr Albert HO to move his
amendment to clause 3.
MR ALBERT HO (in Cantonese): Mr Chairman, I move that clause 3 be
amended as set out in the paper circularized to Members.
Proposed amendment
Clause 3 (see Annex VII)
Question on Mr Albert HO’s amendment put.
Voice vote taken.
336
LEGISLATIVE COUNCIL — 23 June 1997
THE CHAIRMAN said he thought the "Noes" had it.
Mr Albert HO and Miss Emily LAU claimed a division.
CHAIRMAN (in Cantonese): Committee will now proceed to a division.
CHAIRMAN (in Cantonese): I would like to remind Members that they are now
called upon to vote on the question that the amendment to clause 3 moved by Mr
Albert HO be approved.
Will Members please register their presence by pressing the top button
and proceed to vote by pressing one of the three buttons below?
CHAIRMAN (in Cantonese): Before I declare the result, Members may wish to
check their votes. Are there any queries? The result will now be displayed.
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,
Miss Christine LOH, Mr LEE Cheuk-Yan, Mr Andrew CHENG, Dr 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 TSANG Kin-shing, Dr John TSE and Mr YUM Sin-ling
voted for the amendment.
Mr NGAI Shiu-kit, 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 Philip WONG, Mr Howard YOUNG, Mr CHAN Kam-lam, Mr
CHAN Wing-chan, Miss CHAN Yuen-han, Mr Paul CHENG, Mr CHENG
Yiu-tong, Mr CHEUNG Hon-chung, Mr CHOY Kan-pui, Mr David CHU, Mr IP
LEGISLATIVE COUNCIL — 23 June 1997
337
Kwok-him, Mr LEE Kai-ming, Mr LO Suk-ching and Mr NGAN Kam-chuen
voted against the amendment.
THE CHAIRMAN announced that there were 27 votes in favour of Mr Albert
HO's amendment and 23 votes against it. He therefore declared that the
amendment was carried.
Question on clause 3, as amended, put.
Voice vote taken.
THE CHAIRMAN said he thought the "Noes" had it.
Mr Albert HO claimed a division.
CHAIRMAN (in Cantonese): Committee will now proceed to a division.
CHAIRMAN (in Cantonese): I would like to remind Members that they are now
called upon to vote on the question that clause 3 as amended stands part of the
Bill.
Will Members please register their presence by pressing the top button and
then proceed to vote by pressing one of the three buttons below?
CHAIRMAN (in Cantonese): Before I declare the result, Members may wish to
check their votes. Are there any queries? The result will now be displayed.
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,
Miss Christine LOH, Mr LEE Cheuk-Yan, Mr Andrew CHENG, Dr Anthony
CHEUNG, Mr Albert HO, Mr LAU Chin-shek, Dr LAW Cheung-kwok, Mr
338
LEGISLATIVE COUNCIL — 23 June 1997
LAW Chi-kwong, Mr LEUNG Yiu-chung, Mr Bruce LIU, Mr MOK Ying-fan,
Miss Margaret NG, Mr TSANG Kin-shing, Dr John TSE and Mr YUM Sin-ling
voted for the motion.
Mr NGAI Shiu-kit, 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 Philip WONG, Mr Howard YOUNG, Mr CHAN Kam-lam, Mr
CHAN Wing-chan, Miss CHAN Yuen-han, Mr Paul CHENG, Mr CHENG
Yiu-tong, Mr CHEUNG Hon-chung, Mr CHOY Kan-pui, Mr David CHU, Mr IP
Kwok-him, Mr Ambrose LAU, Mr LEE Kai-ming, Mr LO Suk-ching and Mr
NGAN Kam-chuen voted against the motion.
THE CHAIRMAN announced that there were 27 votes in favour of the motion
and 24 votes against it. He therefore declared that the motion was carried.
Clause 4
MR ALBERT HO (in Cantonese): Mr Chairman, I move that clause 4 be
amended as set out in the paper circularized to Members.
Mr Chairman, my amendment is first, to repeal "assaults on the Queen" as
an offence in this Ordinance; and second, to repeal clause 5 of the Bill and add
another clause 5 for enactment of the offence concerning secession.
Mr Chairman, I will address on behalf of the Bills Committee first.
Basically, it is the consensus of the Committee not to object to the addition of
offences concerning secession or subversion. This is the unanimous opinion of
the Committee. As for the Democratic Party, an amendment has just been
raised but not approved. Although the amendment raised by Mr James TO
includes some ideas and concepts of secession, we consider that the drafting in
its present form is not comprehensive enough. The reason is that it is not
sufficient for the Government to add only an element of the intention of using
force. We consider that only highly organized and planned acts and the
so-called "acts by using force" which will very likely lead to an objective effect
of secession will constitute this offence.
LEGISLATIVE COUNCIL — 23 June 1997
339
As this drafting by the Government is not comprehensive enough, the
Democratic Party objects to it for different reasons. I hope the Honourable
colleagues can support this amendment by the Bills Committee and vote for my
amendment.
Proposed amendment
Clause 4 (see Annex VII)
MISS MARGARET NG: Mr Chairman, clause 4 of the Bill does two things.
One, it repeals section 5, Assault on the Queen. Two, it adds the offence of
subversion. So, if Members want to remove the offence of assault on the Queen
but do not agree to put in the new offence of subversion, then they should vote in
favour of the amendment by the Honourable Albert HO.
If they vote against this amendment they then go to the Government's
amendment, that is the clause in the Bill, and this would mean that although they
get to remove the assault on the Queen as an offence they would now acquire a
new offence of subversion.
So, I urge Members to vote in favour of this amendment.
MR JAMES TO (in Cantonese): Mr Chairman, I believe that in this voting, the
"ayes" should be the overwhelming majority. It is because even the pro-China
and pro-Communist Members and Members of the provisional legislature will all
support it. If not, as what Miss Margaret NG has said, this will become voting
for the reversion of the original definition of "subversion" by the Government.
This would be a weird consequence. Please check carefully before you vote.
If you cast a vote wrongly, I think we will be very embarrassed.
MR IP KWOK-HIM (in Cantonese): Mr Chairman, I would like to respond that
I am in opposition to this Bill and so, there will be no embarrassment. Even this
amendment is approved, we will still oppose to the subsequent ones.
Question on the amendment put.
340
LEGISLATIVE COUNCIL — 23 June 1997
Voice vote taken.
THE CHAIRMAN said he thought the "Noes" had it.
Mr Albert HO and Mr Michael HO claimed a division.
CHAIRMAN (in Cantonese): Committee will now proceed to a division.
CHAIRMAN (in Cantonese): I would like to remind Members that they are now
called upon to vote on the question that the amendment to clause 4 moved by Mr
Albert HO be approved.
Will Members please register their presence by pressing the top button and
then proceed to vote by pressing one of the three buttons below?
CHAIRMAN (in Cantonese): Before I declare the result, Members may wish to
check their votes. Are there any queries? The result will now be displayed.
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 YEUNG Sum, Mr
WONG Wai-Yin, Miss Christine LOH, Mr LEE Cheuk-Yan, Mr Andrew
CHENG, Dr 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 TSANG Kin-shing, Dr John TSE and Mr
YUM Sin-ling voted for the amendment.
Mr NGAI Shiu-kit, Mr LAU Wong-fat, Mr Edward HO, Mr Ronald ARCULLI,
Mrs Miriam LAU, Mr CHIM Pui-chung, Mr Henry TANG, Dr Philip WONG,
Mr Howard YOUNG, Mr CHAN Kam-lam, Mr CHAN Wing-chan, Miss CHAN
Yuen-han, Mr Paul CHENG, Mr CHENG Yiu-tong, Mr CHEUNG Hon-chung,
Mr CHOY Kan-pui, Mr David CHU, Mr IP Kwok-him, Mr Ambrose LAU, Mr
LEE Kai-ming, Mr LO Suk-ching and Mr NGAN Kam-chuen voted against the
amendment.
LEGISLATIVE COUNCIL — 23 June 1997
341
Mr Eric LI abstained.
THE CHAIRMAN announced that there were 28 votes in favour of the
amendment and 22 votes against it. He therefore declared that the amendment
was carried.
Question on clause 4, as amended, put.
Voice vote taken.
Mr Albert HO claimed a division.
CHAIRMAN (in Cantonese): Committee will now proceed to a division.
CHAIRMAN (in Cantonese): I would like to remind Members that they are now
called upon to vote on the question that clause 4 as amended by Mr Albert HO
stands part of the Bill.
Will Members please register their presence by pressing the top button and
then proceed to vote by pressing one of the three buttons below?
CHAIRMAN (in Cantonese): Before I declare the result, Members may wish to
check their votes. Are there any queries? It seems that there is still one short
of the head count. The result will now be displayed.
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 YEUNG Sum, Mr
342
LEGISLATIVE COUNCIL — 23 June 1997
WONG Wai-Yin, Miss Christine LOH, Mr LEE Cheuk-Yan, Mr Andrew
CHENG, Dr 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 TSANG Kin-shing, Dr John TSE and Mr
YUM Sin-ling voted for the motion.
Mr NGAI Shiu-kit, 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 CHAN Kam-lam, Mr CHAN Wing-chan,
Miss CHAN Yuen-han, Mr Paul CHENG, Mr CHENG Yiu-tong, Mr CHEUNG
Hon-chung, Mr CHOY Kan-pui, Mr David CHU, Mr IP Kwok-him, Mr Ambrose
LAU, Mr LEE Kai-ming, Mr LO Suk-ching and Mr NGAN Kam-chuen voted
against the motion.
THE CHAIRMAN announced that there were 28 votes in favour of the motion
and 23 votes against it. He therefore declared that the motion was carried.
Clause 5
MR ALBERT HO (in Cantonese): Mr Chairman, I move that clause 5 be
amended as set out in the paper circularized to Members.
Mr Chairman, this amendment is also proposed by me on behalf of the
Bills Committee. The Bills Committee unanimously think that the offence of
"secession" should not be introduced again. The previous clause refers to the
offence of "subversion" whilst this one refers to that of "secession", which
should not be introduced by the Government through legislation. As what I
have just mentioned, members of the Bills Committee are of two opinions. One
opinion is that in principle we should not have this offence. The opinion of the
Democratic Party is that even we accept this way of drafting, it is still not
comprehensive enough. We consider that it may still induce some legal
proceedings and infringe human rights.
We consider that a more comprehensive way of drafting is to add "the
objective possibility of secession caused by acts, and these acts should be highly
organized and planned". Therefore, if the Government solely adds this
restriction of "using force", there is no sufficient protection on human rights.
LEGISLATIVE COUNCIL — 23 June 1997
343
Due to this point, we urge Members to support the proposed amendment raised
by the Bills Committee.
Proposed amendment
Clause 5 (see Annex VII)
MISS MARGARET NG: Mr Chairman,I urge Members to vote in favour of the
amendment. If Members do not wish to have the new offence of secession, they
should vote in favour of the Honourable Albert HO's amendment. If
unfortunately this amendment is defeated, then I would urge them to vote against
the motion that clause 5 should stand part of the Bill.
Thank you, Mr Chairman.
Question on the amendment put.
Voice vote taken.
CHAIRMAN (in Cantonese): Committee will now proceed to a division.
CHAIRMAN (in Cantonese): I would like to remind Members that they are now
called upon to vote on the question that the amendment to clause 5 moved by Mr
Albert HO be approved. The amendment is to delete the clause.
Will Members please register their presence by pressing the top button and
then proceed to vote by pressing one of the three buttons below?
CHAIRMAN (in Cantonese): Before I declare the result, Members may wish to
check their votes. Are there any queries? The result will now be displayed.
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 YEUNG Sum, Mr
WONG Wai-Yin, Miss Christine LOH, Mr LEE Cheuk-Yan, Mr Andrew
344
LEGISLATIVE COUNCIL — 23 June 1997
CHENG, Dr 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 TSANG Kin-shing, Dr John TSE and Mr
YUM Sin-ling voted for the amendment.
Mr NGAI Shiu-kit, 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 CHAN Kam-lam, Mr CHAN Wing-chan,
Miss CHAN Yuen-han, Mr Paul CHENG, Mr CHENG Yiu-tong, Mr CHEUNG
Hon-chung, Mr CHOY Kan-pui, Mr David CHU, Mr IP Kwok-him, Mr Ambrose
LAU, Mr LEE Kai-ming, Mr LO Suk-ching and Mr NGAN Kam-chuen voted
against the amendment.
THE CHAIRMAN announced that there were 28 votes in favour of the
amendment and 23 votes against it. He therefore declared that the amendment
was carried.
CHAIRMAN (in Cantonese): As the amendment to delete clause 5 has been
agreed, clause 5 will not stand part of the Bill and should be deleted.
Clause 7
CHAIRMAN (in Cantonese): Both Miss Emily LAU and Mr Albert HO have
separately given notices to move amendments to clause 7.
I propose that the amendments to clause 7, proposed separately by Miss
Emily LAU and Mr Albert HO, be debated together in a joint debate.
Committee shall debate the two amendments in a joint debate. I will first
call upon Miss Emily LAU to speak and move her amendment, in accordance
with Standing Order 25(4).
MISS EMILY LAU (in Cantonese): Mr Chairman, I move that clause 7 be
amended as set out in the paper circularized to Members. The amendment is to
LEGISLATIVE COUNCIL — 23 June 1997
345
delete clauses concerning the legal proceedings of "seditious intention" and the
power to remove seditious publications.
Mr Chairman, as I pointed out during the Second Reading a moment ago,
the offence of "sedition" is an outdated and serious offence which was made to
enhance colonial rule. When the colonial rule is about to end, it is the most
appropriate time to delete this offence. I urge those Members who object to this
amendment to explain their standpoints clearly. Do they support the idea that
Hong Kong should continute to be under colonial rule, only with the national
flag changed from that of Britain to that of China?
Mr Chairman, freedom of expression, freedom of political discussion, and
even the freedom to criticize the Government and the Chief Executive of the
Special Administrative Region, are basic rights generally recognized in modern
societies. How can we protect this inborn freedom of human rights from being
removed easily? To delete laws which threaten these rights is the most basic
approach.
However, Mr Albert HO will propose to amend the offence of "sedition"
today. As Members of the Democratic Party and the Hong Kong Association
for Democracy and People's Livelihood (ADPL) make up the majority of the
Bills Committee, he proposes the amendment on behalf of the Committee. The
reason for them to propose the amendment is that they want to avoid stricter laws
after the transfer of sovereignty. However, as the Legislative Council has the
authority to enact a new offence today, the legislature in future will also have the
authority to make amendments. How can we make restrictions on the
legislature in future?
Moreover, the greatest problem to propose a
compromising plan is that it will mislead the public to think we also agree that
those offences are necessary.
Although both the Democratic Party and the ADPL proposed that only a
person "with an intention to cause violence" can be convicted and the
Johannesburg Principles should also be added. However, no matter what
amendments are made to the clause, the offence of "sedition" can be formed
simply by discussion or written deduction. Therefore, freedom of expression is
still facing a great threat if this offence is kept. Mr Chairman, the existing
Public Order Ordinance has given sufficient and even too much protection on
346
public order.
"sedition"?
LEGISLATIVE COUNCIL — 23 June 1997
Why should we still keep this ordinance concerning the offence of
Why should we keep these strict laws? One reason I have heard of is that
this is stipulated in Article 23 of the Basic Law. Mr Chairman, we should not
forget that the Basic Law was enacted by a small group of people only. Most
people in Hong Kong did not have the right to be involved or vote for it. Man
is active while laws are passive. Why should we not strive for an amendment of
Article 23 of the Basic Law and have to be restricted in the frame set by people
in authority? Is it the case that if someone draws a circle on the ground and
limit your freedom, you will be willing to move around within that circle? If so,
what prospect shall we have?
I would like to urge again those Members who claim to be supporters of
freedom and human rights to support the deletion of the offence of "sedition" and
to strive actively for the amendment of Article 23 of the Basic Law. Thank you,
Mr Chairman.
Proposed amendment
Clause 7 (see Annex VII)
CHAIRMAN (in Cantonese): I will call upon Mr Albert HO to speak on the
amendment proposed by Miss Emily LAU as well as his own proposed
amendments, but will not ask Mr HO to move his amendments unless Miss Emily
LAU's amendment has been negatived.
MR ALBERT HO (in Cantonese): Mr Chairman, as the Honourable Miss Emily
LAU said earlier, there are two different views in the Bills Committee. One
view supports the total deletion of the offences because the existence of such
offences would pose a threat to human rights. When they are deleted, the threat
will be removed altogether. There is another view, which is also the majority
view, that the deletion of the offences is, of course, the simplest solution. But
as everyone can see, such offences have already been laid down in the Basic
Law. We can expect that legislation on these offences in the future is necessary,
unless and until the Basic Law is amended and the offences are repealed. At
this juncture, we hope that through an in-depth discussion on the content and
LEGISLATIVE COUNCIL — 23 June 1997
347
concept of these offences, we can come to certain amendments so that there are
sufficient and reasonable safeguards to protect the human rights of those affected
even if these offences remain in the laws. We would also try to narrow down
the ambit of the definition of these offences and set out the grounds for defence
in detail and in a sensible way. In my opinion, this is a possible approach.
Only through such discussion can we have a deeper insight and access to more
expert advice for reference of the future legislature and its members.
In fact, when we met some deputations, including the Hong Kong
Journalists Association, we shared the same feeling. The Honourable Miss
Emily LAU and I shared the same feeling that it would be ideal if this legislation
were not needed. But let us consider this: as long as this piece of legislation is
to appear in our statute book, how should the legislation be drafted so that it is
acceptable to all Hong Kong people? We then started to consider the issue from
this angle, with a view to put an amendment as it is as an alternative for
Members' deliberation.
Mr Chairman, clause 7 is mainly concerned with "seditious intention" and
clause 8 is mainly concerned with the offence. Moved on behalf of the Bills
Committee, my amendment to "seditious intention" is to add the following
defence: a speech or publication is not seditious if it intends to show policy
mistakes of the Government, or to point out errors or defects in the government
or constitution of Hong Kong established by law or in the administration of
justice, with a view to rectifying such errors or defects.
Another defence is to persuade Hong Kong residents to attempt to procure
by lawful means the alteration of a matter in Hong Kong as by law established; or
to point out, with a view to their removal, any matters which are producing or
have a tendency to produce feelings of ill-will and enmity between different
classes of the population of Hong Kong.
Mr Chairman, as long as there is a motive to do the above-mentioned acts,
even if the view is unwise, or flawed, or even biased, there is no offence of
"sedition", even if there is such intention, no matter how unacceptable or utterly
groundless the expression is in the eyes of many people, or unwise or erroneous
as I said. There is no offence of seditious intention as long as there is an
intention to achieve the above-mentioned purposes.
348
LEGISLATIVE COUNCIL — 23 June 1997
Besides, I also move some addition to the original clause 9 (1)(b) and (e),
in which certain speeches may constitute "seditious intention", for example,
exciting residents to effect changes in the Government through unlawful means,
or to effect hatred or contempt to the judicial system.
The two intentions mentioned above will amount to "seditious intention"
only under the following circumstances which are specifically added to my
amendments after I have made reference to the constitutions of overseas
countries. I introduce subclause (d)(3), that is, unless the purpose for exciting
Hong Kong residents or raising discontent or disaffection amongst Hong Kong
residents is to disturb the lawful functioning of a constituted authority in Hong
Kong. The key point is the "lawful functioning of a constituted authority". The
term "constituted authority" is also found in other countries like Australia.
Under this provision, an offence will be committed by raising disaffection among
the residents against the lawful authority established by the Government.
There were some discussions after we had drafted this clause. Some
human rights groups or the Law Society thought that it was not clear enough.
So, after seeking legal advice, we came to the above-mentioned amendment and
the idea of "constituted authority". The so-called "constituted authority" must
be a body representing the Government, be it an individual or an organization.
If it is an individual, he or she must act in the capacity of the Government by
holding public office or discharging certain public functions. As for "disturbing
the lawful functioning of a constituted authority", it means that when the alleged
offence is committed, the individual or the organization concerned is discharging
his or its duties on behalf of the Government. I know this definition may be
subject to criticizm because it may not be perfect or free from ambiguity or
narrow enough to make it hard to associate with any scenario where a person's
act, such as an act against the leadership of the Government, may constitute the
offence of "sedition". Although the clause is not perfectly clear, I think I have
done our best to narrow down the ambit of this clause. But I have to stress that
the clause should not be read in isolation. It must be read in conjunction with
clause 8, which is about the Johannesburg Principles. In accordance with the
Principles, even if a person has seditious intention, it must be coupled with an act
which will pose immediate and present danger. And there must be an objective
connection between the act of incitement and the consequence arising from it.
Apart from that, the offender must possess a seditious intention. So, clauses 7
and 8 must be read together.
LEGISLATIVE COUNCIL — 23 June 1997
349
I would like to thank the Honourable Miss Margaret NG's advice. She
expressed her grave concern that under the definition of constituted authority, the
chanting of a slogan "Down with LI Peng" might be considered an act which
disturbs the function of the Government represented by the official leaders or, as
I mentioned just now, the "lawful functioning" of a constituted authority, and
therefore amount to an offence of sedition. It is my view that we should not
look at clause 7 alone but should also look at clause 8, which is about the
Johannesburg Principles. In accordance with the Johannesburg Principles, an
offence is committed when the intention is coupled with the use of force, or the
incitement of imminent violence, or posing of immediate danger. And there
must be an objective connection between the expression and the occurrence of
such violence. The presence of all these elements will constitute the offence.
After having carefully considered Miss NG's views, I think we can rest assured.
To sum up, as many Members said, there is no case laws for reference in
common law jurisdictions. Would the way I put the amendments cause people's
concern? While scrutinizing the Bill, we met deputations of human rights
groups and we sought advice from the legal profession to see if there were
precedents for reference. But we found that there were not many cases.
Perhaps, as some Members said, it is very rare to invoke this kind of offence in
modern countries. But even if there is no such case for reference, we try to put
our thought into writing clearly and carefully. We think the safety coefficient
is quite high. No matter how many interpretations there are, there is still an
element of objectivity in the wording adopted and there will not be too much
deviation.
Having considered these amendments very carefully, I recommend these
amendments drafted by our legal adviser on behalf of the Bills Committee to
Members and urge for their support.
As regards Miss LAU's amendment, the Democratic Party will abstain. If
Miss LAU's amendment is negatived, I hope Members can support the
amendment of the Bills Committee, in which "seditious intention" is given
clearer and more precise definition while grounds for defence are also set out in
greater detail.
Thank you, Mr Chairman.
350
LEGISLATIVE COUNCIL — 23 June 1997
MISS MARGARET NG: Mr Chairman, I support the amendment of the
Honourable Emily LAU which removes the offence of sedition. I do not know
why anyone wants to keep such an offence, but even if the amendment of Miss
Emily LAU is defeated, I would still urge Members to vote against the
amendment of the Honourable Albert HO. The drafting is untested and
questionable. We are borrowing here and there from other jurisdictions with
different government systems. It may inadvertently create problems.
Mr Chairman, I strongly believe that it would be safer to keep the original
clause 7 and rely on the common law in case Miss Emily LAU's amendment is
defeated. We have tested this view, that is, to keep the original clause 7, that is,
keeping the original offence and rely on the common law, we have tested this
against lawyers' groups who made representations to the Bills Committee, and
this accords with the views of some of these organizations. So, Mr Chairman, I
urge Members to vote in favour of the amendment of Miss Emily LAU and
against the amendment of Mr Albert HO.
MISS EMILY LAU (in Cantonese): Mr Chairman, I believe that I have to say
something to the Democratic Party. We think that there is no need to have this
offence. This is the most important point. The Democratic Party has also said
that it would be the best if there is no such offence. All deputations we met said
that they did not want it. However, if these provisions are to be written in the
statute, we have to do something to put restrictions on them.
I would like to tell Members of the Democratic Party that we are now the
legislators. It is up to us to decide what should be put in the statute. We
should not appear to be so miserable. Although there are only a few days left,
we should stick to the principle that unnecessary laws should be deleted.
Maybe there is some reason to think that this provision necessary but sufficient
protection should be given. However, it will be hardly convincing if we put the
two ideas together. On the one hand, it says that the best way is not to have it,
and on the other hand, it states what to do if we have it. However, shall we vote
by principles or go ahead under a miserable and suppressive situation?
Actually, we do not want to have such offence.
LEGISLATIVE COUNCIL — 23 June 1997
351
Mr Chairman, I think the argument of Mr Albert HO seems to be the latter,
which makes me feel very strange. I would like to thank you for saying not in
opposition to me but I urge you to support my amendment actively.
Question on Miss Emily LAU's amendment put.
Voice vote taken.
Miss Emily LAU claimed a division.
CHAIRMAN (in Cantonese): Committee will now proceed to a division.
CHAIRMAN (in Cantonese): I would like to remind Members that they are now
called upon to vote on the question that the amendment to clause 7 moved by
Miss Emily LAU be approved.
Will Members please register their presence by pressing the top button and
then proceed to vote by pressing one of the three buttons below?
CHAIRMAN (in Cantonese): Before I declare the result, Members may wish to
check their votes. Are there any queries? The result will now be displayed.
Miss Emily LAU, Miss Christine LOH, Mr LEE Cheuk-Yan, Mr LAU
Chin-shek, Dr LAW Cheung-kwok, Mr LEUNG Yiu-chung, Miss Margaret NG
and Mr YUM Sin-ling voted for the amendment.
Mr NGAI Shiu-kit, Mr LAU Wong-fat, Mr Edward HO, Mr Ronald ARCULLI,
Mrs Miriam LAU, Dr LEONG Che-hung, Mr CHIM Pui-chung, Mr Frederick
FUNG, Mr Eric LI, Mr Henry TANG, Dr Philip WONG, Mr Howard YOUNG,
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 LEE Kai-ming, Mr Bruce LIU, Mr LO
352
LEGISLATIVE COUNCIL — 23 June 1997
Suk-ching, Mr MOK Ying-fan and Mr NGAN Kam-chuen voted against the
amendment.
Mr SZETO Wah, Mr Albert CHAN, Mr CHEUNG Man-kwong, Mr Michael HO,
Dr HUANG Chen-ya, Mr LEE Wing-tat, Mr Fred LI, Mr James TO, Dr YEUNG
Sum, Mr WONG Wai-Yin, Mr Andrew CHENG, Dr Anthony CHEUNG, Mr
Albert HO, Mr LAW Chi-kwong, Mr TSANG Kin-shing and Dr John TSE
abstained.
THE CHAIRMAN announced that there were eight votes in favour of Miss
Emily LAU's amendment and 26 votes against it. He therefore declared that the
amendment was negatived.
CHAIRMAN (in Cantonese): As the amendment to clause 7 proposed by Miss
Emily LAU has been negatived, I now call upon Mr Albert HO to move his
amendment to clause 7.
MR ALBERT HO (in Cantonese): Mr Chairman, I move that clause 7 be
amended as set out in the paper circularized to Members.
Proposed amendment
Clause 7 (see Annex VII)
Question on Mr Albert HO's amendment put.
Voice vote taken.
Mr Albert HO and Mr TSANG Kin-shing claimed a division.
CHAIRMAN (in Cantonese): Committee will now proceed to a division.
LEGISLATIVE COUNCIL — 23 June 1997
353
CHAIRMAN (in Cantonese): I would like to remind Members that they are now
called upon to vote on the question that the amendment to clause 7 moved by Mr
Albert HO be approved.
Will Members please register their presence by pressing the top button and
then proceed to vote by pressing one of the three buttons below?
CHAIRMAN (in Cantonese): Before I declare the result, Members may wish to
check their votes. Are there any queries? It seems that there are three short of
the head count. The result will now be displayed.
Mr SZETO Wah, Mr Albert CHAN, Mr CHEUNG Man-kwong, Mr Frederick
FUNG, Mr Michael HO, Dr HUANG Chen-ya, Mr LEE Wing-tat, Mr Fred LI,
Mr James TO, Dr YEUNG Sum, Mr WONG Wai-Yin, Mr Andrew CHENG, Dr
Anthony CHEUNG, Mr Albert HO, Mr LAU Chin-shek, Dr LAW Cheung-kwok,
Mr LAW Chi-kwong, Mr Bruce LIU, Mr MOK Ying-fan, Mr TSANG Kin-shing,
Dr John TSE and Mr YUM Sin-ling voted for the amendment.
Mr NGAI Shiu-kit, Mr LAU Wong-fat, Mr Edward HO, Mr Ronald ARCULLI,
Mrs Miriam LAU, Dr LEONG Che-hung, Mr CHIM Pui-chung, Miss Emily
LAU, Mr Eric LI, Mr Henry TANG, Dr Philip WONG, Mr Howard YOUNG, Mr
LEE Cheuk-Yan, 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 LEE Kai-ming, Mr
LEUNG Yiu-chung, Mr LO Suk-ching, Miss Margaret NG and Mr NGAN
Kam-chuen voted against the amendment.
Miss Christine LOH abstained.
THE CHAIRMAN announced that there were 22 votes in favour of Mr Albert
HO's amendment and 27 votes against it. He therefore declared that the
amendment was negatived.
Question on the original clause 7 put and negatived.
LEGISLATIVE COUNCIL — 23 June 1997
354
CHAIRMAN (in Cantonese): Perhaps I have to explain it briefly. Same as the
previous clause 2, no matter it has been amended or not, if the question that the
clause stands part of the Bill is not approved, the effect will be that the clause
should be deleted from the Bill. The same applies to clause 7, which should
also be deleted. Please ask yourself whether it is really what you intend to
achieve. I can neither tell you what I intend to achieve, nor teach you what to
fight for. Later, I may suspense the sitting for five or 10 minutes to tell you
what the Bill will eventually become after it has passed through the Committee
stage.
Clause 8
CHAIRMAN (in Cantonese): Both Miss Emily LAU and Mr Albert HO have
separately given notices to move amendments to clause 8.
Same as clause 7, I propose to proceed to a joint debate.
Committee will now proceed to a joint debate. I will first call upon Miss
Emily LAU to move her amendment, by virtue of her seniority.
MISS EMILY LAU (in Cantonese): Mr Chairman, you are right. I do not
know whether I am one month older than Mr Albert HO or vice versa. It is only
one or two months in difference.
Mr Chairman, I move that clause 8 be amended as set out in the paper
circularized to Members. This amendment is about repealing the offense of "a
seditious intention". The reasons have just been mentioned. As it is very late
now, I do not want to hold the Honourable colleagues. Please support my
amendment.
Proposed amendment
Clause 8 (see Annex VII)
LEGISLATIVE COUNCIL — 23 June 1997
355
CHAIRMAN (in Cantonese): I now call upon Mr Albert HO to speak on the
amendment proposed by Miss Emily LAU and his own proposed amendment.
As we all know, we can only choose one from the two.
MR ALBERT HO (in Cantonese): Mr Chairman, in fact, it is very simple. I
just want to say a couple of sentences that this amendment is to add one more
clause to the offence of sedition, and that is, several important elements in the
Johannesburg Principles should be proved first. Apart from violence, there
should be immediate dangers and the intention of causing violence. Violence
and immediate dangers have a definite objective relationship and thus, it will be
relatively difficult in giving evidence of seditious offences. The Johannesburg
Principles have won a unanimous support from journalists, scholars and legal
practitioners in many countries.
Although the amendment concerning the intention of seditious offences
has been defeated just now, I hope to take this opportunity to continue to
improve this clause. Therefore, I hope Members can support the amendment
proposed by the Bills Committee and the Democratic Party will still cast an
abstention vote to Miss Emily LAU's amendment.
MISS MARGARET NG: Mr Chairman, I suppose the amendments of Miss
Emily LAU and Mr Albert HO will be defeated, may I urge Members to support
clause 8 of the original Bill because it contains a very important additional
element to the offence, which is that you cannot be convicted of sedition unless
you have the intention of causing violence or creating public disorder or public
disturbance.
So, please support clause 8.
MISS EMILY LAU (in Cantonese): Mr Chairman, I would like to respond to
Mr Albert HO. The Johannesburg Principles are of course good, but it is more
essential that if we think this offence should not exist at all, there is no use
adding those principles to the Bill. Nor do we believe that it will provide
356
LEGISLATIVE COUNCIL — 23 June 1997
sufficient protection.
amendment.
Therefore, we will vote against Mr Albert HO's
Question on Miss Emily LAU's amendment put.
Voice vote taken.
Miss Emily LAU claimed a division.
CHAIRMAN (in Cantonese): Committee will now proceed to a division.
CHAIRMAN (in Cantonese): I would like to remind Members that they are now
called upon to vote on the question that the amendment to clause 8 moved by
Miss Emily LAU be approved.
Will Members please register their presence by pressing the top button and
then proceed to vote by pressing one of the three buttons below?
CHAIRMAN (in Cantonese): Before I declare the result, Members may wish to
check their votes. It seems that there is still one short of the head count. Are
there any queries? The result will now be displayed.
Miss Emily LAU, Miss Christine LOH, Mr LEE Cheuk-Yan, Mr LAU
Chin-shek, Mr LEUNG Yiu-chung, Miss Margaret NG and Mr YUM Sin-ling
voted for the amendment.
Mr NGAI Shiu-kit, Mr LAU Wong-fat, Mr Edward HO, Mr Ronald ARCULLI,
Mrs Miriam LAU, Dr LEONG Che-hung, Mr CHIM Pui-chung, Mr Frederick
FUNG, Mr Eric LI, Mr Henry TANG, Dr Philip WONG, Mr Howard YOUNG,
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, Dr LAW Cheung-kwok, Mr LEE Kai-ming, Mr
LEGISLATIVE COUNCIL — 23 June 1997
357
Bruce LIU, Mr LO Suk-ching, Mr MOK Ying-fan and Mr NGAN Kam-chuen
voted against the amendment.
Mr SZETO Wah, Mr Albert CHAN, Mr CHEUNG Man-kwong, Mr Michael HO,
Dr HUANG Chen-ya, Mr LEE Wing-tat, Mr Fred LI, Mr James TO, Dr YEUNG
Sum, Mr WONG Wai-Yin, Mr Andrew CHENG, Dr Anthony CHEUNG, Mr
Albert HO, Mr LAW Chi-kwong, Mr TSANG Kin-shing and Dr John TSE
abstained.
THE CHAIRMAN announced that there were seven votes in favour of Miss
Emily LAU's amendment and 27 votes against it. He therefore declared that the
amendment was negatived.
CHAIRMAN (in Cantonese): As the amendment to clause 8 proposed by Miss
Emily LAU has been negatived, I now call upon Mr Albert HO to move his
amendment to clause 8.
MR ALBERT HO (in Cantonese): Mr Chairman, I move that clause 8 be
amended as set out in the paper circularized to Members.
Proposed amendment
Clause 8 (see Annex VII)
CHAIRMAN (in Cantonese): Mr James TO, is there a point of order?
MR JAMES TO (in Cantonese): Sorry, please speak first.
CHAIRMAN (in Cantonese): The joint debate is over, you cannot speak again.
I have already proposed the question and now I have to immediately put the
question to you.
358
LEGISLATIVE COUNCIL — 23 June 1997
Question on Mr Albert HO's amendment put.
Voice vote taken
THE CHAIRMAN said he thought the "Noes" had it.
Mr Albert HO and Mr TSANG Kin-shing claimed a division.
CHAIRMAN (in Cantonese): Committee will now proceed to a division.
CHAIRMAN (in Cantonese): I would like to remind Members that they are now
called upon to vote on the question that the amendment to clause 8 moved by Mr
Albert HO be approved.
Will Members please register their presence by pressing the top button and
then proceed to vote by pressing one of the three buttons below?
CHAIRMAN (in Cantonese): Before I declare the result, Members may wish to
check their votes. Are there any queries? Still one short of the head count.
The result will now be displayed.
Mr SZETO Wah, Mr Albert CHAN, Mr CHEUNG Man-kwong, Mr Frederick
FUNG, Mr Michael HO, Dr HUANG Chen-ya, Mr LEE Wing-tat, Mr Fred LI,
Mr James TO, Dr YEUNG Sum, Mr WONG Wai-Yin, Mr Andrew CHENG, Dr
Anthony CHEUNG, Mr Albert HO, Mr LAU Chin-shek, Dr LAW Cheung-kwok,
Mr LAW Chi-kwong, Mr Bruce LIU, Mr MOK Ying-fan, Mr TSANG Kin-shing,
Dr John TSE and Mr YUM Sin-ling voted for the amendment.
Mr NGAI Shiu-kit, Mr LAU Wong-fat, Mr Edward HO, Mr Ronald ARCULLI,
Mrs Miriam LAU, Dr LEONG Che-hung, Mr CHIM Pui-chung, Miss Emily
LAU, Mr Eric LI, Mr Henry TANG, Dr Philip WONG, Mr Howard YOUNG, Mr
LEE Cheuk-Yan, Mr CHAN Kam-lam, Mr CHAN Wing-chan, Miss CHAN
LEGISLATIVE COUNCIL — 23 June 1997
359
Yuen-han, Mr Paul CHENG, Mr CHENG Yiu-tong, Mr CHOY Kan-pui, Mr
David CHU, Mr IP Kwok-him, Mr Ambrose LAU, Mr LEE Kai-ming, Mr
LEUNG Yiu-chung, Mr LO Suk-ching, Miss Margaret NG and Mr NGAN
Kam-chuen voted against the amendment.
Miss Christine LOH abstained.
THE CHAIRMAN announced that there were 22 votes in favour of Mr Albert
HO's amendment and 27 votes against it. He therefore declared that the
amendment was negatived.
Question on the original clause 8 put.
Voice vote taken.
THE CHAIRMAN said he thought the "Noes" had it.
Mr James TO and Miss Margaret NG claimed a division.
CHAIRMAN (in Cantonese): Committee will now proceed to a division.
CHAIRMAN (in Cantonese): I would like to remind Members that they are now
called upon to vote on the question that clause 8 stands part of the Bill.
Will Members please register their presence by pressing the top button and
then proceed to vote by pressing one of the three buttons below?
CHAIRMAN (in Cantonese): Before I declare the result, Members may wish to
check their votes. Are there any queries? The result will now be displayed.
360
LEGISLATIVE COUNCIL — 23 June 1997
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,
Miss Christine LOH, Mr LEE Cheuk-Yan, Mr Andrew CHENG, Dr 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 TSANG Kin-shing, Dr John TSE and Mr YUM Sin-ling
voted for the motion.
Mr NGAI Shiu-kit, 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 Philip WONG, Mr Howard YOUNG, 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 LEE Kai-ming, Mr LO Suk-ching and Mr NGAN Kam-chuen voted
against the motion.
THE CHAIRMAN announced that there were 27 votes in favour of the motion
and 23 votes against it. He therefore declared that the motion was carried.
Clause 9
MISS EMILY LAU (in Cantonese): Mr Chairman, I move that clause 9 be
amended as set out in the paper circularized to Memebers.
The amendment serves to establish the legal procedure for removing the
offence for "seditious intention". I have explained the reasons for this
amendment and I want to save Members' time by being brief. Thank you, Mr
Chairman.
Proposed amendment
Clause 9 (see Annex VII)
LEGISLATIVE COUNCIL — 23 June 1997
361
MISS MARGARET NG: Mr Chairman, I am just afraid it will be a nonsense if
we pass this particular amendment because the amendment moved by the
Honourable Miss Emily LAU is consequential upon her earlier amendments
being carried and that is because the amendment to clause 9 is an amendment to
section 11 of the Ordinance. So, if the earlier amendments are defeated, then
the amendment to clause 9 should not stand. I hope Miss Emily LAU would
clarify that point.
MISS EMILY LAU (in Cantonese): I believe what Miss Margaret NG says is
reasonable. We have to study this point. Mr Chairman, may I have a look?
CHAIRMAN (in Cantonese): If no Member wishes to speak anymore, we have
to continue with other parts unless I suspend the sitting for five minutes.
MISS EMILY LAU (in Cantonese): I believe that, according to Miss Margaret
NG, I have to withdraw this amendment because my earlier amendments were
defeated.
CHAIRMAN (in Cantonese): Are you thinking of withdrawing the amendment?
You may use another method. Last time when we dealt with the Housing
(Amendment) Bill, a Member invoked a point of order and asked for time to
consider.
MISS EMILY LAU (in Cantonese): There is no need, Mr Chairman. I believe
I should withdraw this amendment so as not to waste Members' time.
MISS MARGARET NG: Yes, I think that is all. I just want to stand up so that
I can state clear the process. But the original clause 9 in the Bill should be
supported because the original clause 9 makes certain technical amendments to
the Ordinance which is necessary, Mr Chairman. So, I urge Members to vote in
362
LEGISLATIVE COUNCIL — 23 June 1997
favour of clause 9 standing part of the Bill. I do not know why the Government
is not doing this.
MR RONALD ARCULLI: Mr Chairman, is it in order for me to object to the
withdrawal of the amendment proposed by Miss LAU?
CHAIRMAN (in Cantonese): Just now I did not ask Members whether you
agreed to the withdrawal because once a motion is moved, even the mover
himself or herself cannot withdraw it, so I did not rule if she could withdraw. I
have to wait till Miss Margaret NG finishes her speech. Now I see several
hands raised. Just now Mr ARCULLI was the first one to raise his hand, and
then there was Mr Albert HO. Do Members want me to suspend the sitting for
five minutes so that I can find out where the problem lies and come back to tell
you? Now at least one Member objects. Miss Margaret NG thinks the original
clause 9 is very important. But it can also be withdrawn.
CHAIRMAN (in Cantonese): Mr Albert HO, is there a point of order?
MR ALBERT HO (in Cantonese): I just want to say that Miss Emily LAU has
already said that she was going to withdraw the amendment and asked Members
not to support her amendment. I would like to state that the Government's
clause 9 is actually very important ......
CHAIRMAN (in Cantonese): If Miss Emily LAU withdraws the amendment
now, I have to immediately ask whether anyone objects to it. If there is no
objection, nobody should speak anymore since the amendment no longer exist.
Now I ask: does anyone object to the withdrawal? If there is no dissentient
voice, the amendment is withdrawn.
Question on the original clause 9 put.
Voice vote taken.
LEGISLATIVE COUNCIL — 23 June 1997
363
Miss Margaret NG and Mr IP Kwok-him claimed a division.
CHAIRMAN (in Cantonese): Committee will now proceed to a division.
CHAIRMAN (in Cantonese): I would like to remind Members that they are now
called upon to vote on the question that clause 9 stands part of the Bill.
Will Members please register their presence by pressing the top button and
then proceed to vote by pressing one of the three buttons below?
CHAIRMAN (in Cantonese): Before I declare the result, Members may wish to
check their votes. Are there any queries? It seems that there is still one short
of the head count. The result will now be displayed.
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 YEUNG Sum, Mr
WONG Wai-Yin, Miss Christine LOH, Mr LEE Cheuk-Yan, Mr Andrew
CHENG, Dr 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 TSANG Kin-shing, Dr John TSE and Mr
YUM Sin-ling voted for the motion.
Mr NGAI Shiu-kit, 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 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 LEE
Kai-ming, Mr LO Suk-ching and Mr NGAN Kam-chuen voted against the
motion.
THE CHAIRMAN announced that there were 28 votes in favour of the motion
and 22 votes against it. He therefore declared that the motion was carried.
364
LEGISLATIVE COUNCIL — 23 June 1997
Clause 12
MISS EMILY LAU (in Cantonese): Mr Chairman, I move that clause 12 be
amended as set out in the paper circularized to Memebers.
Mr Chairman, the amendment relates to the power to remove seditious
publications, that is section 14 of the Ordinance. I think if we do not want to
have the offence of sedition, we would not want to give the police the power to
enter premises or vehicles, vessels or even break open doors to remove
publications which the police consider seditious. I think such acts are a great
threat to freedom of speech, freedom of the press and other aspects of freedom.
I hope Members will vote in favour of my amendment.
Proposed amendment
Clause 12 (see Annex VII)
MISS MARGARET NG: Mr Chairman, I support the amendment of the
Honourable Miss Emily LAU, but in case her amendment is defeated, I would
strongly urge Members to support the original clause 12 of the Bill because that
clause removes the public officers from the kind of people who can exercise
power under section 14 of the Ordinance. As it is, the Ordinance reads that
"any police officer or public officer may enter any premises", and so on and so
forth. So, what the Bill does is to remove public officer so that only a police
officer can do that.
Mr Chairman, as I said, I support the amendment of the Honourable Miss
Emily LAU and I urge Members to do the same, but in case it is defeated please
support the original clause 12.
MR JAMES TO (in Cantonese): Mr Chairman, I speak in support of Miss Emily
LAU's amendment. In fact, I should be grateful to her because I have not
noticed this point.
LEGISLATIVE COUNCIL — 23 June 1997
365
The problem about section 14 of the original Ordinance is that, even
though the term "public officers" is deleted as proposed by the Government, the
power of the police is still too great if they can enter any premises and remove
any so-called seditious publications. Even after making amendments to the
power of the Independent Commission Against Corruption (ICAC) in 1993, 1994
and 1995, under many circumstances, the ICAC still has to apply to the court for
search warrants. Even if police officers enter a civilian's residence, they are
sometimes required to show their search warrant. However, this Bill confers on
the police an incredible power which allows many police officers to exercise
upon their entry of civilian residences. I can hardly imagine that, in this
century, in this era, a police officer is still allowed to enter any places and even
break all the doors and windows in order to remove by force anybody who is in
his way.
To be frank, we think that even if in specific conditions such as mopping
up gambling or drug dens which do serious harm to the society, most of the time,
search warrants still have to be signed by a police superintendent. Therefore, it
is difficult to conceive that even an ordinary police officer can exercise such a
power. This is totally incompatible with the whole of our laws.
I hope Members will support this amendment, in particular Honourable
colleagues of the Hong Kong Association for Democracy and People's
Livelihood.
MISS EMILY LAU (in Cantonese): Mr Chairman, I hope that all the
Democratic Party members and all people who love freedom will support the
amendment. I also hope that the Government will not withdraw the Bill only
because it has been amended.
Thank you, Mr Chairman.
Question on the amendment put.
Voice vote taken.
Mr IP Kwok-him claimed a division.
366
LEGISLATIVE COUNCIL — 23 June 1997
CHAIRMAN (in Cantonese): Committee will now proceed to a division.
CHAIRMAN (in Cantonese): I would like to remind Members that they are now
called upon to vote on the question that the amendment to clause 12 moved by
Miss Emily LAU be approved.
Will Members please register their presence by pressing the top button and
then proceed to vote by pressing one of the three buttons below?
CHAIRMAN (in Cantonese): Before I declare the result, Members may wish to
check their votes. Are there any queries? It seems that there are still three
short of the head count — two short of the head count. If you do not wish to
vote, you may abstain and press the "abstention" button. The result will now be
displayed.
Mr SZETO Wah, Dr LEONG Che-hung, Mr Albert CHAN, Mr CHEUNG
Man-kwong, 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,
Miss Christine LOH, Mr LEE Cheuk-Yan, Mr Andrew CHENG, Dr Anthony
CHEUNG, Mr Albert HO, Mr LAU Chin-shek, Mr LAW Chi-kwong, Mr
LEUNG Yiu-chung, Miss Margaret NG, Mr TSANG Kin-shing, Dr John TSE
and Mr YUM Sin-ling voted for the amendment.
Mr NGAI Shiu-kit, Mr LAU Wong-fat, Mr Edward HO, Mr Ronald ARCULLI,
Mrs Miriam LAU, Mr CHIM Pui-chung, Mr Frederick FUNG, Mr Eric LI, Mr
Henry TANG, Dr Philip WONG, Mr Howard YOUNG, 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, Dr LAW Cheung-kwok, Mr LEE Kai-ming, Mr Bruce LIU, Mr LO
Suk-ching, Mr MOK Ying-fan and Mr NGAN Kam-chuen voted against the
amendment.
THE CHAIRMAN announced that there were 24 votes in favour of the
amendment and 26 votes against it. He therefore declared that the amendment
was negatived.
LEGISLATIVE COUNCIL — 23 June 1997
367
Question on the original clause 12 put.
Voice vote taken.
THE CHAIRMAN said he thought the "Noes" had it.
Miss Margaret NG and Mr James TO claimed a division.
CHAIRMAN (in Cantonese): Committee will now proceed to a division.
CHAIRMAN (in Cantonese): I would like to remind Members that they are now
called upon to vote on the question that the original clause 12 stands part of the
Bill.
Will Members please register their presence by pressing the top button and
then proceed to vote by pressing one of the three buttons below?
CHAIRMAN (in Cantonese): Before I declare the result, Members may wish to
check their votes. Are there any queries? Still one short of the head count.
The result will now be displayed.
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 YEUNG Sum, Mr
WONG Wai-Yin, Miss Christine LOH, Mr LEE Cheuk-Yan, Mr Andrew
CHENG, Dr Anthony CHEUNG, Mr Albert HO, Mr LAU Chin-shek, Dr LAW
Cheung-kwok, Mr LEUNG Yiu-chung, Mr Bruce LIU, Mr MOK Ying-fan, Miss
Margaret NG, Mr TSANG Kin-shing, Dr John TSE and Mr YUM Sin-ling voted
for the motion.
LEGISLATIVE COUNCIL — 23 June 1997
368
Mr NGAI Shiu-kit, 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 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 LEE
Kai-ming, Mr LO Suk-ching and Mr NGAN Kam-chuen voted against the
motion.
THE CHAIRMAN announced that there were 27 votes in favour of the motion
and 22 votes against it. He therefore declared that the motion was carried.
New clause 4A
Limitations as to trial for treason, etc.
Clause read the First time and ordered to be set down for Second Reading
pursuant to Standing Order 46(6).
MR ALBERT HO (in Cantonese): Mr Chairman, I move that new clause 4A as
set out in the paper circularized to members be read the Second time.
Mr Chairman, clause 4A is a consequential amendment. Since clause 3 is
deleted pursuant to the voting result just now, paragraph 1 of clause 4 should be
amended accordingly and the "clause 3" mentioned in the paragraph should be
deleted.
I feel that this amendment is worth supporting.
Thank you, Mr Chairman.
Question on the Second Reading of the new clause put.
Voice vote taken.
THE CHAIRMAN said he thought the "Noes" had it.
LEGISLATIVE COUNCIL — 23 June 1997
369
Mr IP Kwok-him, Mr James TO and Mr CHEUNG Man-kwong claimed a
division.
CHAIRMAN (in Cantonese): Committee will now proceed to a division.
CHAIRMAN (in Cantonese): I would like to remind Members that they are now
called upon to vote on the question that new clause 4A moved by Mr Albert HO
be read the Second time.
Will Members please register their presence by pressing the top button and
then proceed to vote by pressing one of the three buttons below?
CHAIRMAN (in Cantonese): Before I declare the result, Members may wish to
check their votes. Are there any queries? The result will now be displayed.
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 YEUNG Sum, Mr
WONG Wai-Yin, Miss Christine LOH, Mr LEE Cheuk-Yan, Mr Andrew
CHENG, Dr 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 TSANG Kin-shing, Dr John TSE and Mr
YUM Sin-ling voted for the motion.
Mr NGAI Shiu-kit, 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 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 LEE
Kai-ming, Mr LO Suk-ching and Mr NGAN Kam-chuen voted against the
motion.
THE CHAIRMAN announced that there were 28 votes in favour of the motion
and 22 votes against it. He therefore declared that the motion was carried.
370
LEGISLATIVE COUNCIL — 23 June 1997
Clause read the Second time.
MR ALBERT HO (in Cantonese): Mr Chairman, I move that new clause 4A be
added to the Bill.
Proposed addition
New clause 4A (see Annex VII)
Question on the addition of the new clause proposed and put.
Voice vote taken.
Mr TSANG Kin-shing claimed a division.
CHAIRMAN (in Cantonese): Committee will now proceed to a division.
CHAIRMAN (in Cantonese): I would like to remind Members that they are now
called upon to vote on the question that new clause 4A be added to the Bill.
Will Members please register their presence by pressing the top button and
then proceed to vote by pressing one of the three buttons below?
CHAIRMAN (in Cantonese): Before I declare the result, Members may wish to
check their votes. Are there any queries? The result will now be displayed.
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 YEUNG Sum, Mr
WONG Wai-Yin, Miss Christine LOH, Mr LEE Cheuk-Yan, Mr Andrew
CHENG, Dr 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
LEGISLATIVE COUNCIL — 23 June 1997
371
MOK Ying-fan, Miss Margaret NG, Mr TSANG Kin-shing, Dr John TSE and Mr
YUM Sin-ling voted for the motion.
Mr NGAI Shiu-kit, 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 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 LEE
Kai-ming, Mr LO Suk-ching and Mr NGAN Kam-chuen voted against the
motion.
THE CHAIRMAN announced that there were 28 votes in favour of the motion
and 22 votes against it. He therefore declared that the motion was carried.
Council then resumed.
PRESIDENT (in Cantonese): The Secretary for Security and some other
Members request that the sitting be suspended for five minutes in order to make
sure what the Bill has become of up to now.
10.25pm
Sitting suspended.
10.47pm
Council then resumed.
SUSPENSION OF SITTING
372
LEGISLATIVE COUNCIL — 23 June 1997
PRESIDENT (in Cantonese): After studying the Committee stage amendments,
the Secretary for Security is still not very clear what the Bill has become of at
this moment. I think it would be best if we continue with the Third Reading
tomorrow. I now declare that the sitting is suspended until nine o'clock
tomorrow morning.
Suspended accordingly at twelve minutes to Eleven o'clock.