OFFICIAL RECORD OF PROCEEDINGS Wednesday, 23 ...

LEGISLATIVE COUNCIL ― 23 January 2019

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OFFICIAL RECORD OF PROCEEDINGS

Wednesday, 23 January 2019

The Council met at Eleven o'clock

MEMBERS PRESENT: THE PRESIDENT THE HONOURABLE ANDREW LEUNG KWAN-YUEN, G.B.S., J.P. THE HONOURABLE LEUNG YIU-CHUNG THE HONOURABLE ABRAHAM SHEK LAI-HIM, G.B.S., J.P. THE HONOURABLE TOMMY CHEUNG YU-YAN, G.B.S., J.P. PROF THE HONOURABLE JOSEPH LEE KOK-LONG, S.B.S., J.P. THE HONOURABLE JEFFREY LAM KIN-FUNG, G.B.S., J.P. THE HONOURABLE WONG TING-KWONG, G.B.S., J.P. THE HONOURABLE STARRY LEE WAI-KING, S.B.S., J.P. THE HONOURABLE CHAN HAK-KAN, B.B.S., J.P. THE HONOURABLE CHAN KIN-POR, G.B.S., J.P. DR THE HONOURABLE PRISCILLA LEUNG MEI-FUN, S.B.S., J.P. THE HONOURABLE WONG KWOK-KIN, S.B.S., J.P. THE HONOURABLE MRS REGINA IP LAU SUK-YEE, G.B.S., J.P.

LEGISLATIVE COUNCIL ― 23 January 2019 5474

THE HONOURABLE PAUL TSE WAI-CHUN, J.P. THE HONOURABLE CLAUDIA MO THE HONOURABLE STEVEN HO CHUN-YIN, B.B.S. THE HONOURABLE FRANKIE YICK CHI-MING, S.B.S., J.P. THE HONOURABLE WU CHI-WAI, M.H. THE HONOURABLE YIU SI-WING, B.B.S. THE HONOURABLE MA FUNG-KWOK, S.B.S., J.P. THE HONOURABLE CHARLES PETER MOK, J.P. THE HONOURABLE CHAN CHI-CHUEN THE HONOURABLE CHAN HAN-PAN, B.B.S., J.P. THE HONOURABLE LEUNG CHE-CHEUNG, S.B.S., M.H., J.P. THE HONOURABLE KENNETH LEUNG THE HONOURABLE ALICE MAK MEI-KUEN, B.B.S., J.P. DR THE HONOURABLE KWOK KA-KI THE HONOURABLE KWOK WAI-KEUNG, J.P. THE HONOURABLE DENNIS KWOK WING-HANG THE HONOURABLE CHRISTOPHER CHEUNG WAH-FUNG, S.B.S., J.P. DR THE HONOURABLE FERNANDO CHEUNG CHIU-HUNG DR THE HONOURABLE HELENA WONG PIK-WAN


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THE HONOURABLE IP KIN-YUEN DR THE HONOURABLE ELIZABETH QUAT, B.B.S., J.P. THE HONOURABLE MARTIN LIAO CHEUNG-KONG, S.B.S., J.P. THE HONOURABLE POON SIU-PING, B.B.S., M.H. DR THE HONOURABLE CHIANG LAI-WAN, S.B.S., J.P. IR DR THE HONOURABLE LO WAI-KWOK, S.B.S., M.H., J.P. THE HONOURABLE CHUNG KWOK-PAN THE HONOURABLE ALVIN YEUNG THE HONOURABLE ANDREW WAN SIU-KIN THE HONOURABLE CHU HOI-DICK THE HONOURABLE JIMMY NG WING-KA, J.P. DR THE HONOURABLE JUNIUS HO KWAN-YIU, J.P. THE HONOURABLE LAM CHEUK-TING THE HONOURABLE HOLDEN CHOW HO-DING THE HONOURABLE SHIU KA-FAI THE HONOURABLE SHIU KA-CHUN THE HONOURABLE WILSON OR CHONG-SHING, M.H. DR THE HONOURABLE PIERRE CHAN THE HONOURABLE CHAN CHUN-YING, J.P.


THE HONOURABLE TANYA CHAN THE HONOURABLE CHEUNG KWOK-KWAN, J.P. THE HONOURABLE HUI CHI-FUNG THE HONOURABLE LUK CHUNG-HUNG, J.P. THE HONOURABLE LAU KWOK-FAN, M.H. DR THE HONOURABLE CHENG CHUNG-TAI THE HONOURABLE KWONG CHUN-YU THE HONOURABLE JEREMY TAM MAN-HO THE HONOURABLE GARY FAN KWOK-WAI THE HONOURABLE AU NOK-HIN THE HONOURABLE VINCENT CHENG WING-SHUN, M.H. THE HONOURABLE TONY TSE WAI-CHUEN, B.B.S. THE HONOURABLE CHAN HOI-YAN MEMBERS ABSENT: THE HONOURABLE JAMES TO KUN-SUN THE HONOURABLE MICHAEL TIEN PUK-SUN, B.B.S., J.P. THE HONOURABLE HO KAI-MING THE HONOURABLE YUNG HOI-YAN THE HONOURABLE KENNETH LAU IP-KEUNG, B.B.S., M.H., J.P.


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PUBLIC OFFICERS ATTENDING: THE HONOURABLE MATTHEW CHEUNG KIN-CHUNG, G.B.M., G.B.S., J.P. CHIEF SECRETARY FOR ADMINISTRATION THE HONOURABLE MS TERESA CHENG YEUK-WAH, G.B.S., S.C., J.P. SECRETARY FOR JUSTICE MR SONNY AU CHI-KWONG, P.D.S.M., J.P. UNDER SECRETARY FOR SECURITY, AND SECRETARY FOR SECURITY THE HONOURABLE FRANK CHAN FAN, J.P. SECRETARY FOR TRANSPORT AND HOUSING PROF THE HONOURABLE SOPHIA CHAN SIU-CHEE, J.P. SECRETARY FOR FOOD AND HEALTH DR BERNARD CHAN PAK-LI, J.P. UNDER SECRETARY FOR COMMERCE AND ECONOMIC DEVELOPMENT, AND SECRETARY FOR COMMERCE AND ECONOMIC DEVELOPMENT THE HONOURABLE PATRICK NIP TAK-KUEN, J.P. SECRETARY FOR CONSTITUTIONAL AND MAINLAND AFFAIRS MR JACK CHAN JICK-CHI, J.P. UNDER SECRETARY FOR HOME AFFAIRS DR RAYMOND SO WAI-MAN, B.B.S., J.P. UNDER SECRETARY FOR TRANSPORT AND HOUSING CLERKS IN ATTENDANCE: MR KENNETH CHEN WEI-ON, S.B.S., SECRETARY GENERAL


MISS ODELIA LEUNG HING-YEE, DEPUTY SECRETARY GENERAL MS DORA WAI, ASSISTANT SECRETARY GENERAL MR MATTHEW LOO, ASSISTANT SECRETARY GENERAL


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PRESIDENT (in Cantonese): Good morning. Will the Clerk please ring the bell to summon Members to the Chamber. (After the summoning bell had been rung, a number of Members entered the Chamber) TABLING OF PAPERS The following papers were laid on the table under Rule 21(2) of the Rules of Procedure: Subsidiary Legislation/Instruments L.N. No.

Minimum Wage Ordinance (Amendment of Schedule 3) Notice 2019 ............................................................. 8/2019

Immigration (Amendment) Regulation 2019 ..................... 9/2019 Pharmacy and Poisons (Amendment) (No. 2) Regulation

2019 ........................................................................ 10/2019 Employment Ordinance (Amendment of Ninth Schedule)

Notice 2019 ............................................................. 11/2019 Other Papers

No. 67 ― Legal Aid Services Council Annual Report 2017/18

Report No. 9/18-19 of the House Committee on Consideration of Subsidiary Legislation and Other Instruments Report of the Bills Committee on Conservation of Antarctic Marine Living Resources Bill


ORAL ANSWERS TO QUESTIONS PRESIDENT (in Cantonese): Questions. First question. Protection of animal rights, interests and welfare 1. MR KWONG CHUN-YU (in Cantonese): President, regarding the protection of animal rights, interests and welfare, will the Government inform this Council:

(1) as it has been mentioned in the 2017 Policy Agenda that the Government would "study the existing legislation related to animal welfare, and explore introducing a concept of positive duty of care on animal keepers", of the latest progress of that task, the approach for amending the law, and the timetable for public consultation in this respect;

(2) given that while there are now over 540 000 cats and dogs being

kept as pets in Hong Kong according to an estimation made in a consultancy report, most means of public transport currently prohibit people carrying animals with them from boarding, whether the authorities have plans to explore with the relevant public transport operators permitting passengers to carry animals with them when travelling in designated train compartments and in franchised buses of certain routes, so as to make it more convenient for pets to travel with their owners; if so, of the details and timetable; if not, the reasons for that; and

(3) given that the Leisure and Cultural Services Department has

planned to turn six existing parks into "Inclusive Parks for Pets" and launched a one-year trial scheme this month, but some members of the public have criticized that the relevant facilities are unavailable in such parks, whether the authorities have plans to make improvements and expand the trial scheme to cover every District Council district; if so, of the details; if not, the reasons for that?


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SECRETARY FOR FOOD AND HEALTH (in Cantonese): President, having consulted the Transport and Housing Bureau and the Home Affairs Bureau, my reply to various parts of the question is as follows:

(1) To further safeguard animal welfare, we are mapping out the major direction and drawing up preliminary proposals for amending the existing legislation, including reviewing the maximum penalty levels and introducing a concept of positive duty of care on animal keepers, i.e. requiring animal keepers to take all necessary measures to protect the welfare of their animals, such as providing proper care and sufficient space for their animals and preventing them from disease, injury or suffering, etc. In the past few months, the Food and Health Bureau and the Agriculture, Fisheries and Conservation Department ("AFCD") met different stakeholders and introduced to them the preliminary legislative amendment proposals. At present, AFCD is considering views received and drafting the consultation document, with a view to consulting the public in the second quarter in 2019.

(2) Public transport services have heavy usage in Hong Kong, which

account for around 90% of all passenger journeys and carry over 12 million passenger trips per day on average. At present, the legislation regulating different modes of public transport allows the visually impaired to board with guide dogs. The legislation also allows operators of public light buses, taxis, non-franchised buses and ferries to decide themselves whether passengers are permitted to board with pets. The Transport Department ("TD") will continue to make use of the established liaison channels to encourage these operators to provide appropriate assistance to those who need to travel with pets.

As regards the railway and franchised buses, the by-laws and

regulations concerned prohibit passengers from boarding trains and franchised buses with pets, except for the visually impaired accompanied by guide dogs. As the patronage of MTR and franchised buses is high and the space in their compartments is limited, they can be rather congested most of the time. In considering whether passengers are to be permitted to use public transport services with pets, the Government has to balance the


needs of different stakeholders, including the perspective of protecting animal welfare, considering the reaction of pets in a crowded and confined environment as well as the impact on other passengers. The Government will continue to keep in view the public views on this issue so as to consider whether there should be any change to the existing arrangement.

(3) The Leisure and Cultural Services Department ("LCSD") is

open-minded about, and adopts a positive attitude to, suggestions of opening up its venues as pet gardens. LCSD has been in close liaison with District Councils in identifying suitable venues for designation as pet gardens. They are generally set up at the designated area of the parks. The number of venues with pet garden managed by LCSD has increased from 19 in 2010 to 49 at present.

In recent years, quite a number of members of the public hope that

LCSD can open up the parks in entirety for them to visit with pets. In response to requests from the public, the Trial Scheme of "Inclusive Park for Pets" ("the Trial Scheme") was launched by LCSD in January 2019, i.e. this year, under which six suitable parks (including Victoria Peak Garden in Central and Western District, Tong Yam Street Hillside Sitting-out Area in Sham Shui Po, Kai Tak Runway Park in Kowloon City, Shing Mun River Promenade Garden No. 3 (Area B) in Sha Tin, Wang Yip Street South Rest Garden in Yuen Long and Tai Wo Hau Road Playground in Kwai Tsing) were selected from various districts across the territory for opening up the whole venues for members of the public to enter and use the venues with pets, with a view to enabling the use of park facilities by different users in an inclusive environment. LCSD had consulted the District Councils concerned on the locations and the relevant arrangements of the Trial Scheme and obtained their support. LCSD will review the effectiveness of the Trial Scheme one year after its implementation with a view to considering whether to provide "Inclusive Park for Pets" in more districts.

As a new attempt of LCSD, the Trial Scheme aims at enabling park

users and members of the public who bring their pets into LCSD's parks to use park facilities together in an inclusive environment, thereby promoting exchanges and integration in the community.


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As the "Inclusive Parks for Pets" are not specifically designed for use by pets, there are less pet facilities provided compared with pet gardens. Nonetheless, additional dog excreta collection bins have been provided and cleansing efforts have been stepped up by LCSD in the "Inclusive Parks for Pets". At the same time, LCSD is actively examining the feasibility of providing hand-washing facilities in two "Inclusive Parks for Pets" which have not yet been provided with such facilities for the convenience of pet owners. LCSD will continue to listen to views of the public in an effort to enhance the supporting facilities in the "Inclusive Park for Pets".

MR KWONG CHUN-YU (in Cantonese): Secretaries, how long do the authorities need to keep their slow beat? The legislation on animal protection in Hong Kong is already seriously lagging behind. It was based on the blueprint of the United Kingdom legislation in 1911 and was only amended in 2006. At present, the maximum penalties are only imprisonment for three years and a fine of $200,000. In the main reply, the Secretary even only says that they are reviewing the maximum penalty levels, when the right thing they should do is to directly explore raising the penalty levels for cruelty to and brutal killing of animals. President, in these days, we often hear news reports about cruelty to and brutal killing of animals. A few days ago, there was a case of a pregnant dog being poisoned to death in Lau Fau Shan, and the suspect is still at large … PRESIDENT (in Cantonese): Mr KWONG, please raise your supplementary question directly. MR KWONG CHUN-YU (in Cantonese): President, I am about to raise my supplementary question. If the Secretary still thinks that the message from the public is not clear enough, we will launch a territory-wide signature campaign. My question is, if we collected a certain number of signatures in a letter and gave it to the Secretary, asking to raise the penalty levels for cruelty to and brutal killing of animals, would the Secretary be willing to receive the letter and immediately explore raising the penalty levels for cruelty to and brutal killing of animals?


SECRETARY FOR FOOD AND HEALTH (in Cantonese): President, I thank Mr KWONG for his supplementary question. All along, we have been very serious and proactive in dealing with this subject. As I mentioned earlier, over the past six months, we started meeting informally with various political parties, animal welfare groups, advisory bodies and people in the sector, and introduced to them the preliminary legislative amendment proposals. As I just said, we will mainly review the maximum penalty levels for cruelty to animals and introduce in the legislation a concept of positive duty of care on animal keepers. We are currently synthesizing the views received and drafting the consultation document, with a view to consulting the public in the second quarter of the year. Of course, after the consultation is finished, we will progress in the direction of amending the legislation. PRESIDENT (in Cantonese): Mr KWONG Chun-yu, which part of your supplementary question has not been answered? MR KWONG CHUN-YU (in Cantonese): President, the Secretary has not answered my supplementary question. Animals do not know how to submit a letter. I would like to ask whether she is willing to receive our letter. PRESIDENT (in Cantonese): Secretary, do you have anything to add? SECRETARY FOR FOOD AND HEALTH (in Cantonese): President, I believe that AFCD will accept views from any bodies and stakeholders and will analyse the views received, in order to explore what direction we should move in when amending the legislation.

MR JEFFREY LAM (in Cantonese): President, we are very concerned about this subject of animal protection, and also about the recent cases of wild pigs appearing in urban areas. The public are very mindful of wild pigs causing nuisance and even injuries to people and hope that the clashes between human beings and wild pigs can be reduced. Besides, the public are recently particularly worried about African swine fever. If it is confirmed that African swine fever can be spread by wild pigs, both the public and our pets like cats and


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dogs will also be threatened. AFCD has mentioned that it would introduce a contraception of wild pigs programme. However, we just see that the number of wild pigs has not decreased but is on the increase on the contrary … PRESIDENT (in Cantonese): Mr LAM, please raise your supplementary question directly. MR JEFFREY LAM (in Cantonese): … I will immediately raise my supplementary question. From the figures concerned, we can tell that this programme is ineffective. I would like to ask the Secretary whether the authorities will consider setting up a wild pigs conservation zone to restrict the activity area of wild pigs so that they cannot go everywhere, with a view to reducing the nuisance caused to the public and even preventing the spread of viruses to our pets. SECRETARY FOR FOOD AND HEALTH (in Cantonese): President, I thank Mr Jeffrey LAM for his supplementary question. In fact, the Prevention of Cruelty to Animals Ordinance is applicable to all animals. Anyone who causes unnecessary pain to animals has already violated the law and will be prosecuted. Concerning the nuisance problem caused by wild pigs as just mentioned by Mr LAM, AFCD has received some views and complaints in different districts. At the meeting of the Panel on Environmental Affairs to be held at the end of this month (i.e. next week), AFCD will put forward some proposals to resolve the nuisance problem caused by wild pigs and tackle the issue. Of course, we want to have these two issues handled separately. The first issue is about some animals causing nuisance to the community and this has to be handled. The other issue is about animal welfare. Since we do not want animals to be inflicted with unnecessary pain, we will review and amend the Prevention of Cruelty to Animals Ordinance. MR JEREMY TAM (in Cantonese): President, I know that there are train compartments for animals in many countries, and hence I have been proposing to the MTR Corporation Limited ("MTRCL") to turn the first or the last train compartment into an animal compartment during non-peak hours. In April and


June 2017, I asked MTRCL to conduct a feasibility study or survey on this proposal at the respective meetings of the Subcommittee on Matters Relating to Railways and the Subcommittee to Study Issues Relating to Animal Rights, but so far, no progress has been made. Besides, I have conducted an online survey … PRESIDENT (in Cantonese): Mr TAM, please raise your supplementary question directly. MR JEREMY TAM (in Cantonese): I will raise it very quickly. President, I will raise my supplementary question after that sentence is finished. According to the result of the online survey, over 26 000 respondents supported the provision of animal compartments that I just mentioned. May I ask the Secretary whether you will at least start the consultation on this proposal? I am only asking for a consultation exercise. SECRETARY FOR FOOD AND HEALTH (in Cantonese): I thank Mr Jeremy TAM for his question and views. As I said earlier, the daily patronage of the railway and franchised buses is high and the compartments are very congested. Therefore, taking into account the prevailing circumstances, the Government has to balance the needs of different stakeholders, including the perspective of protecting animal welfare, considering the reaction of pets in a crowded environment as well as the impact on other passengers. This of course falls within the remit of the Transport and Housing Bureau. The Under Secretary for Transport and Housing is also present today, and we shall see whether he has any other information to add. PRESIDENT (in Cantonese): Under Secretary for Transport and Housing, do you have anything to add? UNDER SECRETARY FOR TRANSPORT AND HOUSING (in Cantonese): First of all, I thank Mr Jeremy TAM for his supplementary question. Earlier on, the Secretary for Food and Health also mentioned about the difficulties, and at present, the Government does not have any plan to allow MTRCL to open up


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some compartments as animal compartments during non-peak hours. However, the Government and MTRCL will continue to be mindful of public opinions and views on this subject. MTRCL is aware of the views concerned and will follow up on the issue with Members at the meeting of the Legislative Council Subcommittee on Matters Relating to Railways to be held in June this year. MR LAU KWOK-FAN (in Cantonese): President, the rights and interests of animals in Hong Kong are indeed lagging behind and should be enhanced without delay. I would like to ask the Transport and Housing Bureau about travelling with pets on public transport. I have been communicating with quite a number of people in the sector, and a bus company has indicated its willingness to try allowing passengers to board with pets on, for example, Saturdays and Sundays. This would be a pilot scheme carried out with additional resources, without affecting the existing resources. In regions like Taiwan, some buses for pets or animals are already in operation, and there are even some additional bus routes for animals. My question to the Under Secretary is that since a bus company is willing to try this out, why is TD or the Transport and Housing Bureau still using various reasons or the provisions concerning franchised buses to impede the implementation of the proposal? If it was allowed under the legislation, I would not need the Government's help. The present situation is that the legislation does not allow while the Government is not willing to give it a try. May I ask the Secretary whether the Government will support and make complementary efforts if a bus company is willing to take a trial run with additional resources? PRESIDENT (in Cantonese): Which public officer will answer this supplementary question? MR LAU KWOK-FAN (in Cantonese): I am asking the Transport and Housing Bureau.


PRESIDENT (in Cantonese): Under Secretary for Transport and Housing, please reply. UNDER SECRETARY FOR TRANSPORT AND HOUSING (in Cantonese): First of all, I thank Mr LAU Kwok-fan for his views. Regarding the transportation in Hong Kong, while public means of transport carry 12 million passenger trips per day, a total of 80% of our population make use of major public transport such as franchised buses, whose daily capacity is about 4 million passenger trips, and railway. As we understand, the space in the compartments of MTR and franchised buses is relatively confined. In an MTR compartment, for example, actually when there are four people standing in every square metre, we already find it rather congested. Hence, if animals are allowed to board franchised buses, we have to consider the possible impact on other passengers, the reaction of animals in a crowded environment as well as the welfare of animals. We understand that there is such an aspiration from the community, and thus the Government and operators of franchised buses will continue to listen to the views of different stakeholders regarding passengers boarding buses with pets. The Government will explore the possibilities of various proposals within the scope of the existing legislation and under the premise of providing safe services. MS STARRY LEE (in Cantonese): President, I think the Bureau does not understand the crux of the matter. In fact, more and more people in the society of Hong Kong indeed want to travel with their beloved pets, but many places in Hong Kong do not allow entry of pets, such as public transport, parks and shopping malls. It is thus difficult for the public to spend quality time there with their beloved pets. Nevertheless, on the other hand, we also understand that some people are truly worried about the nuisance caused by animals. I thus reckon that the crux of the matter is how the Government seeks to bridge the gap between both parties. The Government has not done anything so far in this regard but only separates them, and this can do nothing to resolve the problem. To those people who are afraid of cats, dog or animals, they actually need to have actual contacts and proper knowledge of interaction with animals before they can be more accepting of animals.


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My question to the Secretary is, when enhancing the policy on animal welfare, will there be a programme to build an inclusive community for people, cats and dogs or for people and pets, so that the society of Hong Kong can have a harmonious living environment for people and cats, dogs or other pets? I actually highly appreciate the Secretary's proposal of "Inclusive Park for Pets", but only six parks are surely not enough. In my view, a comprehensive plan should be formulated to enable the public to have proper understanding in a gradual manner. SECRETARY FOR FOOD AND HEALTH (in Cantonese): I thank Ms Starry LEE for her views. In fact each year, AFCD organizes many activities to enhance people's understanding of animals and animal caring. There are a lot of activities organized either by AFCD itself or together with animal welfare groups, and I have participated in quite a number of such activities of different scales. While promoting this aspect of work, they have also been working on public education. Therefore, we will be mindful of the prevailing atmosphere, and will ask AFCD to pay attention to the situation and continue to conduct more education related activities. We understand that actually, many animal welfare groups also organize certain activities and work on their own. As I just said in the main reply, LCSD has been increasing the number of pet gardens, and the number has increased from 19 in 2010 to 49 at present. In January this year, six "Inclusive Parks for Pets" have also been opened. I think all these can promote integration between the public and pet lovers, as well as their understanding of pet facilities. PRESIDENT (in Cantonese): Second question. Implementation of the sanctions decided by the Security Council of the United Nations 2. MR KENNETH LEUNG (in Cantonese): President, section 3(1) of the United Nations Sanctions Ordinance stipulates that the Chief Executive shall make regulations to give effect to the instructions given by the Ministry of Foreign Affairs to the Chief Executive on the implementation of the sanctions decided by the Security Council of the United Nations ("sanctions regulations"). In this connection, will the Government inform this Council:


(1) of the government department(s) currently responsible for enforcing the various sanctions regulations, as well as the relevant staffing establishment; whether it, in view of the sanctions regulations being updated from time to time and the ever-changing international landscape, provides sufficient guidelines and training for the staff concerned on a regular basis; if so, of the details; if not, the reasons for that;

(2) of the number of reports received by the authorities on activities

suspected of violating the sanctions regulations, the respective numbers of such activities in respect of which the authorities monitored and investigated (with a breakdown by type), the number of activities involving violations of the sanctions regulations that they forestalled, as well as the respective numbers of the relevant prosecutions and convictions, in each of the past five years; and

(3) whether it will release regularly the details of the law enforcement

actions taken in relation to the sanctions regulations (including the number of cases and their summaries), so as to demonstrate to the public and the international community Hong Kong's strict enforcement of the sanctions; if so, of the details; if not, the reasons for that?

SECRETARY FOR COMMERCE AND ECONOMIC DEVELOPMENT (in Cantonese): President, according to the Charter of the United Nations ("UN"), Member States of UN (including the People's Republic of China ("PRC")) should apply measures decided by the UN Security Council ("UNSC") to maintain or restore international peace and security. As part of PRC, the Hong Kong Special Administrative Region ("HKSAR") implements UNSC sanctions pursuant to the instructions of the Ministry of Foreign Affairs to fulfil our international obligation. Currently, UNSC imposes sanctions or restrictions against 14 places and two organizations.(1)

(1) These 14 places are Afghanistan, Central African Republic, Democratic Republic of the

Congo, Democratic People's Republic of Korea ("DPRK"), Guinea-Bissau, Iran, Iraq, Lebanon, Libya, Mali, Somalia, South Sudan, Sudan and Yemen, and the two organizations are Islamic State in Iraq and the Levant and Al-Qaida.


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Generally speaking, the three most common types of measures imposed by UNSC are financial sanction, travel ban and arms embargo:

(1) financial sanction prohibits the making available of or dealing with the financial assets and economic resources of persons or entities designated by UNSC or its relevant Committees;

(2) travel ban prohibits the entry or transit of designated persons into or

through the territories of UN Member States;

(3) arms embargo prohibits the supply, sale or transfer of arms and related materiel, technical advice, assistance or training related to military activities, to places or organizations under sanction.

Apart from the three aforementioned types of sanction measures, UNSC may also impose other sanctions or restrictions having regard to the situation of individual places or organizations.(2)

Since Hong Kong's return to China, the HKSAR Government has, according to the principle of "one country, two systems", been implementing and strictly enforcing sanctions imposed by UNSC through local legislation, i.e. the United Nations Sanctions Ordinance (Cap. 537) ("the Ordinance") and the regulations made under the Ordinance by the Chief Executive. HKSAR has made regulations to implement UNSC sanctions or restrictions against the 14 places and two organizations respectively. Relevant law enforcement agencies have been acting in accordance with the law, without fear or favour, to follow up on suspected violations of the Ordinance. (2) For instance, UNSC prohibits Member States from:

(i) the supply or procurement of nuclear- and ballistic missile-related items to or from Iran or DPRK;

(ii) the supply of items such as aviation fuel, refined petroleum products, crude oil, industrial machinery and transport vehicles and certain luxury goods to DPRK, the procurement of items such as coal, iron, rare earth minerals, textiles, seafood, food and agricultural products from DPRK, conducting certain business activities of financial institutions in DPRK, provision of financial support for trade with persons connected with DPRK, and engaging in ship-to-ship transfers with DPRK-registered ships, etc.;

(iii) the import of charcoal from Somalia; and (iv) the transport or discharge of petroleum from Libya by vessels designated by the

relevant UNSC Committee, or engaging in financial transactions concerned, etc.


We note that certain countries may, based on their own considerations, impose unilateral sanctions against certain places. HKSAR does not have the responsibility nor the authority to enforce these unilateral sanctions or investigate related cases. My reply to the three-part question is as follows:

(1) The Hong Kong Police Force ("HKPF") and the Customs and Excise Department ("C&ED") are the law enforcement agencies of the Ordinance. Generally speaking, HKPF is mainly responsible for enforcement work related to the financial sanction mentioned above and sanctions on financial transactions or transfer of funds, while C&ED is mainly responsible for enforcement against the supply, sale or transfer of arms and other items under sanction.

As regards staffing establishment, the Financial Investigation

Division of the Narcotics Bureau of HKPF, with 69 staff members, is mainly responsible for investigating money laundering cases, including suspected violations of the Ordinance. As for C&ED, apart from the staff responsible for physical examination of cargoes at boundary control points, the Trade Controls Branch, with 47 staff members, is dedicated to the enforcement of strategic trade controls, the control of the provision of services to assist in the development of weapons of mass destruction, and the enforcement of the Ordinance. We do not have a breakdown of manpower for each duty concerned.

The Government has been closely monitoring the latest information

regarding UNSC, such as new resolutions adopted, updates to sanctions lists, and reports or announcements of the relevant committees or panels of experts under UNSC. Such information will be disseminated in a timely manner within the Government to keep officers of relevant bureaux, law enforcement agencies and other departments abreast of the latest information for follow-up actions. Besides, HKPF and C&ED organize in-house training and workshops, arrange overseas training programmes for their officers, and engage in exchanges with their overseas counterparts.


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(2) Our law enforcement agencies stay highly vigilant against suspected violations of the Ordinance. They also closely monitor reports published by relevant UNSC committees or panels of experts and other organizations, and actively investigate suspected cases involving Hong Kong. The law enforcement agencies have been following up these cases in accordance with the law, without fear or favour.

In the past five years, HKPF and C&ED investigated 201 and 99

suspected cases of sanctions violations respectively. Breakdowns by year are set out in the list below for Members' perusal.

Year Number of cases

investigated by HKPF Number of cases

investigated by C&ED 2014 3 10 2015 2 3 2016 7 7 2017 58 28 2018 131 51 Total 201 99

Notes: (1) HKPF and C&ED do not compile breakdowns of reported cases involving

UNSC sanctions. (2) A suspected case involving different sanction measures will be followed

up and investigated by both departments. Therefore, the figures may overlap. To ensure confidentiality of investigation work, we will not disclose detail of the cases.

Hong Kong has a robust system to implement sanctions imposed by

UNSC. Coupled with the investigation efforts of our law enforcement agencies which are vigilant and with deterrent effect, a number of alleged Hong Kong-registered companies have been struck off, and suspicious vessels have been denied entry into Hong Kong waters. All these are conducive to preventing attempts to make use of Hong Kong as a base to violate UNSC sanctions, and hence safeguarding the international reputation of Hong Kong.


There are currently no prosecution cases under the Ordinance. Hong Kong will continue to maintain a stringent system of implementing UNSC sanctions in accordance with the law. Exercising their statutory authorities, the law enforcement agencies will continue to proactively follow up on all suspected violations of UNSC sanctions, and will institute prosecution when there is sufficient evidence.

(3) Whenever the Chief Executive makes new regulations under the

Ordinance or amends existing regulations to implement new resolutions adopted by UNSC, representatives of the Government will attend meetings of the Legislative Council Subcommittee to Examine the Implementation in Hong Kong of Resolutions of the United Nations Security Council in relation to Sanctions, to brief Members on the regulations and answer Members' questions on the implementation and enforcement of the regulations. To ensure confidentiality of investigation work, we will only provide the total number of cases investigated, and will not disclose details of such cases.

On the international front, Hong Kong, as a member of the Financial

Action Task Force and the Asia/Pacific Group on Money Laundering, keeps the two organizations up-to-date on its efforts in anti-money laundering and counter-terrorist financing as well as implementation of UNSC sanctions.

MR KENNETH LEUNG (in Cantonese): The Secretary lists in the table of part (2) of his main reply the number of cases investigated by HKPF and C&ED. Within the short span of five years, the number of cases investigated by HKPF increased from a few cases in 2014 to 131 cases in 2018, while those investigated by C&ED increased from 10 cases to 51 cases. As pointed out by the Secretary in the main reply, quite a number of Hong Kong-registered companies suspected of being used for illegal purposes have been struck off, and suspicious vessels have been denied entry into Hong Kong waters. My supplementary question is as follows. Is the increase in numbers of cases attributable to our enhanced vigilance or the worsening of our situation? Also, does the Secretary have the specific numbers of suspected registered companies and vessels?


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SECRETARY FOR COMMERCE AND ECONOMIC DEVELOPMENT (in Cantonese): I thank Mr LEUNG for his supplementary question. First, regarding the increase in numbers of cases, UNSC has put more economies or countries under its radar in recent years and this is the reason why our numbers of investigated cases have correspondingly increased. As regards the action details or specific numbers of cases, I beg your pardon for not being able to share the information with Members here. However, I want to reiterate our spirit. Hong Kong has a robust system, and our law enforcement officers handle each suspected case without fear or favour to effectively deter unlawful elements from using Hong Kong as a base to conduct activities that violate the Ordinance. Precisely because of this robust system and our work attitudes, Hong Kong has maintained its good international reputation and outlaws are discouraged from using Hong Kong to conduct such activities. MR KENNETH LEUNG (in Cantonese): The Secretary points out in the main reply that the some registered companies have been struck off … PRESIDENT (in Cantonese): Mr LEUNG, the Secretary has already provided a full answer. If you wish to put another question, please press the "Request to speak" button and wait for your turn to speak. MR KENNETH LEUNG (in Cantonese): President, the Secretary has not provided the numbers to me. MR DENNIS KWOK (in Cantonese): President, I will put a question to follow up on the supplementary question raised by Mr Kenneth LEUNG just now. The Secretary has not provided in the main reply the actual numbers of prosecutions made. President, here is my question. How many prosecutions have been instituted in relation to UNSC sanctions against DPRK and Iran? I wish to know the numbers.


SECRETARY FOR COMMERCE AND ECONOMIC DEVELOPMENT (in Cantonese): I thank Mr KWOK for his supplementary question. First of all, regarding the number of prosecutions, although the number is zero, we all along have remained highly vigilant against any suspected violations of the Ordinance. Moreover, we have been mindful of the reports of UNSC committees or expert panels and other organizations, and actively investigating all suspected cases involving Hong Kong. Like I just said in the main reply, our system is robust and our law enforcement officers handle cases in accordance with the law, without fear or favour. This is the reason why we have denied entry of suspected vessels into Hong Kong waters and struck off suspected registered companies. MR DENNIS KWOK (in Cantonese): The Secretary is wasting our time. I asked for the numbers of investigations or prosecutions instituted against cases concerning UNSC sanctions on DPRK and Iran. I hope the Secretary can answer the question directly. PRESIDENT (in Cantonese): Secretary, do you have anything to add? SECRETARY FOR COMMERCE AND ECONOMIC DEVELOPMENT (in Cantonese): I have already answered the question just now. I do not have anything to add. MR HOLDEN CHOW (in Cantonese): President, Hong Kong has been following closely the international practice when it comes to UN resolutions on sanctions. As the Secretary explains in the main reply, the HKSAR Government will normally follow UNSC sanctions expeditiously and enforce them by means of local legislation. I have confidence in Hong Kong in this respect. President, the Secretary mentions in the main reply that currently 14 places have been imposed sanctions or restrictions by UNSC, including Afghanistan, Central African Republic, Democratic Republic of the Congo, DPRK, Iran, Iraq, etc. Regarding the enforcement manpower, do the authorities have different staffing establishments for different countries based on the extent of their


5497

violation? What I am asking is whether the authorities will deploy more manpower to specifically handle certain cases, such as those concerning DPRK, they simply do not have any special staffing arrangement? SECRETARY FOR COMMERCE AND ECONOMIC DEVELOPMENT (in Cantonese): I thank Mr CHOW for his supplementary question. In fact, when law enforcement agencies receive a report of sanction violation, they will investigate in several directions or several likely areas of violation. Regarding the staffing establishment, we all along are very concerned about whether law enforcement agencies have sufficient manpower and resources to handle cases concerning UN sanctions. We will continue to provide sufficient resources for these agencies as needed. As to whether we will divide the staffing establishment into groups to handle cases involving different countries, as I just said, any cases reported to us will be investigated in several directions. Currently, we do not separate the staffing establishment to handle individual cases. MR CHU HOI-DICK (in Cantonese): I found the main reply ridiculous after reading it. When the authorities receive information on a certain illegal cargo that is on the way to Hong Kong and on transit to other places, the authorities choose to strike off the registration of the company concerned or refuse entry of the vessel into Hong Kong waters. I believe if the cargo is drugs, the authorities will not deal with it this way. They will probably catch the offender red-handed and confiscate the illegal cargo once they receive information on the arrival of the drugs and smash the drug syndicate altogether. Their present approach is the same as "chopping off their toes to avoid insect bites". Are they trying to set free these countries which have violated UN sanctions or the power behind them? SECRETARY FOR COMMERCE AND ECONOMIC DEVELOPMENT (in Cantonese): I thank Mr CHU for his supplementary question; however, the situation he refers to is not true. We have been strictly enforcing UNSC sanctions. Regarding the deterrent effect, as I say in the main reply and in my replies to supplementary questions, many offenders back off because of our vigilant investigation and they choose not to use Hong Kong as a base for illegal activities.


MR KENNETH LEUNG (in Cantonese): President, I just want to know the numbers. As mentioned by the Secretary in part (2) of his main reply just now, some Hong Kong-registered companies have been struck off and suspicious vessels have been denied entry into Hong Kong waters. I am not asking for the details of these cases, I just want to know the numbers. For instance, how many such cases were recorded last year or the year before last? But the Secretary has yet to give us the numbers. I hope the Secretary can provide them in a written reply. SECRETARY FOR COMMERCE AND ECONOMIC DEVELOPMENT (in Cantonese): I thank the Member for his supplementary question. As I just said, we generally will not share the case details or the specific numbers with Members. But on the whole, we have made some efforts that are found to be effective, including efforts in the fields of prevention and investigation. MR PAUL TSE (in Cantonese): President, if Members want so much to know the numbers, all they need to do is to ask the countries they are very concerned about, such as the United States. That way, they will get the specific numbers and do not need to press the Secretary for an answer. President, just now, Mr CHU Hoi-dick described the authorities' approach as "chopping off their toes to avoid insect bites". In fact, I clearly remember Australia also has denied people entry into its waters in order to alleviate its refugee problem. There are many similar examples around the world. The Secretary says in the main reply that "certain countries may, based on their own considerations, impose unilateral sanctions against certain places". May I know which countries does the Secretary mean? Which are the countries that have imposed unilateral sanctions and Hong Kong does not have the responsibility to cooperate with or follow suit? SECRETARY FOR COMMERCE AND ECONOMIC DEVELOPMENT (in Cantonese): I thank Mr TSE for his supplementary question. I wish to stress that Hong Kong maintains its own set of laws irrespective of the changing political climate or the international stances, positions or attitudes of individual


5499

economies. We will conduct our enforcement work on the basis of this set of laws in a professional, serious and conscientious manner. We will not take any actions just because of some unilateral sanctions. We will stringently enforce the sanctions adopted by UNSC. MR PAUL TSE (in Cantonese): Any particular countries or examples? If the Secretary knows the answer, please provide us with the information. Or, is it not convenient to do so? SECRETARY FOR COMMERCE AND ECONOMIC DEVELOPMENT (in Cantonese): Actually, it is only a general statement. MR DENNIS KWOK (in Cantonese): President, I am baffled after listening to the Secretary's reply. I asked him whether the authorities have instituted any prosecution and he said there were zero prosecutions. Right? In other words, the authorities have the number of prosecution initiated, just that the number is zero. Is that correct? I just want him to clarify this point. SECRETARY FOR COMMERCE AND ECONOMIC DEVELOPMENT (in Cantonese): Yes, we have zero prosecutions. This is because we have conducted a large amount of investigation work. This situation is reflective of our robust system and also our conscientious work attitude. MR CHU HOI-DICK (in Cantonese): First, I do not understand why Mr Paul TSE is allowed to comment on my speech and the President has not stopped him. In fact, the Secretary's oral reply to my supplementary question was self-contradictory. He said that their present strategy was to conduct investigations to make offenders back off. To "back off" means that they give up voluntarily. However, the Secretary specifically states in part (2) of the main reply that, as Mr Paul TSE has pointed out, they have denied suspicious vessels entry into Hong Kong waters.


Here is my supplementary question. Do the authorities have other strategies apart from denying law-breakers entry into the territory to make it impossible for them to violate the laws here? Will they, upon receipt of intelligence, catch law-breakers red-handed after they have entered the territory? Do the authorities have this kind of enforcement strategy? SECRETARY FOR COMMERCE AND ECONOMIC DEVELOPMENT (in Cantonese): I thank the Member for his supplementary question. Certainly, we will institute prosecution when we have gathered sufficient evidence. But as I just said, because of the conscientious investigation efforts we have been making, and the international reputation of Hong Kong in relation to our robust system and rigorous law enforcement work, we have effectively deterred, stopped or prevented outlaws from using Hong Kong as a base for these activities. MR CHU HOI-DICK (in Cantonese): The Secretary has not answered my supplementary question. My question is about the strategies adopted by the authorities. I asked whether they would wait until the vessel entered Hong Kong waters to catch the offenders red-handed. PRESIDENT (in Cantonese): Mr CHU, you have pointed out the part of your supplementary question that has not been answered. Please sit down. Secretary, do you have anything to add? SECRETARY FOR COMMERCE AND ECONOMIC DEVELOPMENT (in Cantonese): We act in accordance with the law. As I just said, as long as we have gathered sufficient evidence, we will institute prosecution. PRESIDENT (in Cantonese): Third question.


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Sale of subsidized housing flats 3. MR TONY TSE (in Cantonese): President, in recent years, the various subsidized sale flats projects ("subsidized projects") launched by the Hong Kong Housing Authority, the Hong Kong Housing Society and the Urban Renewal Authority have received overwhelming responses and have often been oversubscribed by dozens or even hundreds of times, resulting in slim chances for applicants to purchase flats. It is learnt that quite a number of members of the public have, in recent years, subscribed for the flats of the various subsidized projects for a number of times but in vain, and their home ownership aspirations have turned into feelings of disappointment and even despair. In this connection, will the Government inform this Council:

(1) of the number of applications received from each category of applicants (such as Green Form applicants and White Form applicants), and the number and percentage of each category of applicants who purchased a flat, in each sale exercise for the various subsidized projects launched since 2014;

(2) whether the authorities concerned have kept records on the

cumulative number of times in the past that an applicant had made an application but was unsuccessful in purchasing a flat; if so, of the average and highest number of times in respect of the last sale exercise of each type of subsidized projects; if not, the reasons for that, and whether they will start keeping such figures; and

(3) whether the authorities concerned will suitably boost the chance to

purchase a flat for those applicants who repeatedly failed to do so, for example, by offering an applicant, whenever the number of times for which he was not invited to select and purchase a flat has accumulated to three, an additional application number when he makes the next application, so that such applicants will have a greater chance to purchase flats; if not, of the reasons for that?

SECRETARY FOR TRANSPORT AND HOUSING (in Cantonese): President, my consolidated reply to various parts of the question raised by Mr Tony TSE is as follows:


According to the Long Term Housing Strategy, public rental housing ("PRH") is to serve as a "safety net" for the grass roots who cannot afford private rental housing; while the main purpose of providing subsidized sale flats ("SSFs") is to enable low-to-middle-income families to meet their home ownership aspirations, and to provide an avenue for better-off PRH tenants to buy their own homes, thereby releasing their PRH units to those genuinely in need. To ensure the rational use of public resources, buyers of SSFs have to comply with the income and asset limits, while the pricing of SSFs is fixed in accordance with the new pricing mechanism, which was revised in June 2018. Under the revised pricing mechanism, the price discount based on the market value of SSFs is determined with reference to the affordability of eligible buyers. Since 2014, the Hong Kong Housing Authority ("HA") has put up four batches of sale under new Home Ownership Scheme ("HOS") and two batches of sale under Green Form Subsidized Home Ownership Scheme ("GSH") involving about 14 700 flats. Amongst HOS applicants, an average of 90% were White Form applicants whilst the percentage shares of buyers from different categories varied in different batches. Sales statistics on SSFs of HA, the Hong Kong Housing Society ("HKHS") and the Urban Renewal Authority ("URA") are summarized at Annex. In line with HA's established policy and procedures, its Subsidized Housing Committee ("SHC") will annually review the housing and non-housing expenditure required for an ordinary family to purchase a reasonably sized flat in the private sector annually in setting the latest HOS income and asset limits. SHC will then decide on the sale of HOS and GSH flats located at different districts and the selling prices of flats according to the pricing mechanism. Sales arrangements including priority of flat selection for applicants under different categories will also be drawn up based on operational experience and the latest situation in society. Since the resumption of the sale of HOS in 2014, HA has been according the highest priority to applicants affected by the Government's clearance programme(s), followed by applicants with elderly members, family applicants, and so on. As the income and asset limits of eligible HOS buyers for each year; the locations, the number of flats for sale as well as selling prices of HOS and GSH flats; and the priority of flat selection for various categories of buyers, differ each year, it has been HA's established practice to openly invite applications from eligible applicants of HOS and GSH and announce details of the sales and


5503

application arrangements in each sale exercise. Upon receipt of all applications, HA will conduct an open ballot to determine the priority of flat selection for the applicants. Similar sales arrangements are also adopted by HKHS and URA. HA, HKHS and URA have not kept records of the number of unsuccessful applications submitted by individual SSF applicants mainly because no priority has been accorded to this type of applicants. According to the findings of HA's surveys on applicants of the Sale of HOS Flats, each sale exercise covered both first-time applicants as well as those whose applications had been unsuccessful in previous round(s). Taking the Sale of HOS Flats 2017 as an example, among the unsuccessful applicants, 63% claimed that they had not applied for the Sale of HOS Flats 2014 and the Sale of HOS Flats 2016; 19% claimed that they had applied for the Sale of HOS Flats 2014 only; 7% claimed that they had applied for the Sale of HOS Flats 2016 only; while the remaining 10% claimed that they had applied for both. Such information has been uploaded onto HA's website. As to whether the number of times a buyer has applied for SSFs in the past should be adopted as a criterion for determining the buyer's priority for purchasing, our initial view is that the following factors should be considered:

(a) According a higher priority to applicants with more previous applications means a lower priority for applicants of other categories, such as those under the Priority Scheme for Families with Elderly Members and one-person applicants who did not apply in previous round(s). Is this arrangement in line with the principle of allocating public resources to those who with a greater need?

(b) According a higher priority to those with more previous applications

will attract more applicants for SSFs, including those who are less in need or less interested in purchasing SSFs, to submit their applications earlier in a bid to obtain a higher priority for purchase in the future. This will make it more difficult for families with a greater need for purchasing SSFs.

As mentioned above, HA will review the various arrangements of SSFs from time to time, and take into account views from various parties.


Annex

HA's SSFs

HOS 2014

HOS 2016*

GSH 2016

HOS 2017

HOS 2018

GSH 2018

SSF development

Mei Ying Court, Sha Tin Mei Pak Court, Sha Tin Sheung Chui Court, Tsuen Wan Ching Chun Court, Tsing Yi Wang Fu Court, Yuen Long

Ka Shun Court, Sha Tin Ping Yan Court, Yuen Long

King Tai Court, San Po Kong

Choi Hing Court, Kwun Tong Ngan Wai Court, Mui Wo Ngan Ho Court, Mui Wo

Hoi Lok Court, Cheung Sha Wan Kai Long Court, Kai Tak Yu Tai Court, Tung Chung

Lai Tsui Court, Cheung Sha Wan

Number of Green Form ("GF") applicants

11 500 4 100 16 200 12 500 36 000 (39 000)

Number of White Form ("WF") applicants

123 500 48 700 Not Applicable

92 100 235 800 Not Applicable

Total number of applicants

135 000 52 800 16 200 104 600 271 800 (39 000)

Number of GF buyers

1 296 813 857 861 Flat selection scheduled to commence in February 2019

Flat selection scheduled to commence in March 2019

Number of WF buyers

864 1 844 Not Applicable

1 259


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HOS 2014

HOS 2016*

GSH 2016

HOS 2017

HOS 2018

GSH 2018

Total number of flats sold

2 160 2 657 857 2 120# 4 431 2 545

Notes: Number of applicants is rounded to the nearest hundred * Joint application with the HKHS's SSFs projects (including 1 027 flats in Greenhill Villa

and Greenview Villa) # Including 63 resale flats from HOS 2014 () Figures subject to verification HKHS's SSFs Projects

2016 2017

SSF development Greenhill Villa, Sha Tin*

Terrace Concerto, Tuen Mun Mount Verdant, Tseung Kwan O

Number of GF applicants 4 100 6 000 Number of WF applicants 48 700 87 600 Total number of applicants 52 800 93 600 Number of GF buyers 342 320 Number of WF buyers 685 482 Total number of flats sold 1 027# 620 Notes: Number of applicants is rounded to the nearest hundred * Joint application with HA's HOS projects in 2016 # including seven resale flats of Greenhill Villa put up for sale in 2013


URA's SSFs Projects

2015 Project De Novo, Kai Tak Total number of applicants 12 600* Total number of flats sold 322# Notes: Number of applicants is rounded to the nearest hundred * Categorization of GF and WF applicants is not applicable for sale of SSFs in De Novo # URA did not sell all 338 SSFs during the sale exercise MR TONY TSE (in Cantonese): President, many people have remarked that the chance of applicants successfully purchasing HOS flats was even slimmer than that of winning the Mark Six Lottery, but I initially thought that this remark was merely a statement made with some exaggeration. However, I have done some researches and found that for the one-person White Form applicants applying to purchase HOS flats in 2017, the successful rate was only 0.09%, while the chance of winning the fifth prize of the Mark Six Lottery is 0.092%. Hence, the above remark has actually revealed the truth. The Secretary has just now said that due to various other reasons, consideration would not be given to boosting the chance of purchasing a flat for those applicants who have repeatedly applied in vain. As such and given that the Secretary has pointed out in the main reply that among applicants of HOS flats, basically over 90% were White Form applicants, I wish to ask whether the Government will consider selling a higher proportion of SSFs to this category of applicants. SECRETARY FOR TRANSPORT AND HOUSING (in Cantonese): I thank Mr TSE for his views. The objective of the Government's public housing policy is very clear, and that is, to provide PRH to meet the housing needs of the grass roots. As for SSFs, they are introduced to cater for the needs of both White Form and Green Form applicants. For example, GSH flats are mainly targeted


5507

at PRH tenants and even PRH applicants on the Waiting List, thereby offering Green Form applicants a chance to achieve home ownership if they can afford and have the aspiration to purchase a GSH flat. With regard to White Form applicants, the ratio for quota allocation between Green Form applicants and White Form applicants has been revised from 60:40 in the past to 50:50 at present. Through the White Form Secondary Market Scheme, we have also provided, on a yearly basis, an exclusive channel for White Form applicants to achieve home ownership. For instance, 2 500 quotas were provided last year for White Form applicants to purchase HOS flats with premium not yet paid in the secondary market. The measures mentioned above are examples to illustrate that we have already taken into account the housing needs of Hong Kong people of different financial means, providing not only PRH flats but also different channels for them to achieve home ownership according to their own choices. If we can identify more land supply options and expedite the progress, I am sure HA, HKHS and URA will endeavour to accelerate the building development process, so as to provide SSFs for people who have the need and the aspiration to buy their own homes. MR WU CHI-WAI (in Cantonese): It seems to me that in his reply to Mr Tony TSE's question on according a higher priority to certain groups of applicants, the Secretary has put forward some rather strange arguments. For example, under the existing ballot arrangements for purchasing HOS flats, applicants are categorized into three groups whereby they will respectively be accorded the first priority, second priority and third priority for purchase. Many HOS applicants may have repeatedly applied in previous rounds, and they may have waited for a very long time to purchase a flat. If some applicants have to repeatedly subscribe for HOS flats, does it occur to the Policy Bureau responsible for reviewing the relevant policy that these applicants are in greater need of purchasing SSFs than the first-time applicants? If so, it is indeed reasonable for the Government to put in place a fourth priority category for these applicants. However, as shown in the Secretary's reply as a whole, he has put the needs of repeated applicants on a par with first-time applicants, and I do not consider this reasonable. Hence, I would like to ask the Secretary whether he


will seriously consider the matter again and arrange a fourth priority category for those who have frequently and repeatedly subscribed in vain for HOS flats. SECRETARY FOR TRANSPORT AND HOUSING (in Cantonese): I thank Mr WU for his views. Due to tight supply of public resources, we inevitably have to determine an order of priority for purchasing SSFs. As mentioned by Mr WU and pointed out by me in the main reply just now, we are of the opinion that relatively speaking, applicants with elderly household members should be accorded a higher priority than one-person applicants. We also understand that many Hong Kong people have aspiration for home ownership, and in striking a balance, we have taken into account the fact that a home purchase decision actually involves factors in many various aspects. First of all, in the process of achieving home ownership, the situation of family applicants will change with the passage of time; besides, their financial conditions may also experience changes. Moreover, the locations and selling prices of HOS flats and other SSFs, as well as changes in the market, may also affect the aspiration to subscribe of different people. Therefore, the existing ballot arrangements applicable to HA, HKHS and URA have also been adopted by private developers, as the arrangements are simple, fair and reasonable. However, as mentioned by some Members just now, if some applicants have repeatedly subscribed for HOS flats, does that mean they have a keen demand for home ownership? We do not deny that this is a valid argument, but we have no way to ascertain whether applicants with elderly members or family applicants, when compared with the repeated applicants who are single, young, or under other categories, should be accorded a higher priority for purchase. It is really difficult for us to judge. As already stated in the main reply, when different batches of HOS or GSH flats are put up for sale in the future, HA will take into account the past experience and draw reference from the latest views in society. Hence, I hope Members can understand our approach and thoughts in this regard. Under the circumstances that public housing resources are limited, we still hope to achieve optimal use of such resources to cater to the needs of those who have the most urgent for housing and home ownership demands.


5509

MR WU CHI-WAI (in Cantonese): President, the Secretary has not answered my supplementary question. I have not contended with him over the order of priority accorded to other categories of applicants, but have only enquired if arrangements would be made to put in place a fourth priority category. He has not given a reply to this question. PRESIDENT (in Cantonese): Mr WU, please sit down. Secretary, do you have anything to add? MR WU CHI-WAI (in Cantonese): Will a fourth priority category be put in place? SECRETARY FOR TRANSPORT AND HOUSING (in Cantonese): President, I have already made it very clear at the ending part of the main reply that HA will review the various arrangements, the pricing criteria and arrangements for flat selection, and take into account views from various parties every time when SSFs are put up for sale. DR JUNIUS HO (in Cantonese): President, speaking of the issue of priority order discussed just now, I am of the view that when demand exceeds supply, no matter what measures are in place to distribute the resources among different parties, it will still not be possible to satisfy everyone. With regard to the long term housing policy of Hong Kong, although the Government is now striving to increase housing supply by 450 000 flats, the supply will still be inadequate to meet the demand because there are indeed too many applicants on the Waiting List, and the number has been on the increase year after year. The supplementary question I wish to raise focus on a different aspect. During the interim period when PRH flats and relevant support cannot be offered to applicants on the Waiting List, will the Government consider providing them with another "safety net", such as temporary housing and transitional housing, so as to meet their urgent needs? SECRETARY FOR TRANSPORT AND HOUSING (in Cantonese): I thank Dr HO for his supplementary question. With regard to the supply of public housing, I think we all know very clearly that we are now facing an acute


shortage of land supply, and that we have also encountered a lot of challenges in identifying and developing land sites for the construction of public housing. Nevertheless, our colleagues are working very hard on the development of land and land planning, and are endeavouring to expedite the construction process. The Government's public housing policy is very clear, and PRH is provided to serve as a "safety net" for families with housing difficulties. However, as the supply of PRH falls far short of the current number of applicants on the Waiting List, we are prepared to support and encourage the development of transitional housing by community efforts, and the provision of community housing through non-government initiatives. The Government announced the setting up of the Task Force on Transitional Housing in the middle of last year, with a view to stepping up efforts to implement the transitional arrangements referred to by Dr HO just now. Several officers have been tasked with the work of promoting efforts in this respect, and with the support from community members and enthusiastic people, they will expeditiously arrange to provide more transitional housing as soon as possible, so as to benefit those members of the public who are waiting for the allocation of PRH units. Nevertheless, during the process, it is also our hope to have the support of Members present and the relevant District Councils. When promoting transitional housing, there will be a need to identify temporarily idle Government land sites or private land in different districts for the construction of such housing units, and different communities may have different views on the problem of population growth or the provision of ancillary transport facilities. Hence, we hope members of the public will show more care and tolerance, and give support to the efforts to promote transitional housing, so that more can be done in this respect in a more efficient manner. MS ALICE MAK (in Cantonese): President, according to the information set out in the Annex to the main reply, over 100 000 applications were received every time SSFs were put up for sale, and the total number of HOS applications received in 2018 even amounted to over 200 000. Has the Government considered streamlining application procedures, and adopting electronic or online application arrangements? That way, not only the workload of HA can be reduced, the public can also enjoy greater convenience. Given that a lot of people would queue up overnight to obtain and submit application forms every


5511

time, will the Government consider adopting online application arrangements? Such arrangements have already been adopted by HKHS for selling SSFs, will the same arrangements be adopted by HA when HOS flats are put up for sale? SECRETARY FOR TRANSPORT AND HOUSING (in Cantonese): I thank Ms MAK for her supplementary question. Basically, we fully agree that we should make things more convenient as far as possible for those members of the public waiting for public housing, thereby achieving the objective of bringing convenience and benefits to the public. As Ms MAK has mentioned just now, members of the public who have housing needs or even aspiration for home ownership tend to put their heart and soul into the matter when an opportunity to apply for or purchase a SSF arises, and they can go so far as to queue up overnight to file their application. However, we consider that this should be avoided as far as possible. As such, HA is working on the matter with a view to making the application procedures and application arrangements more convenient to members of the public as far as possible in the future. Online submission of applications is a feasible option, and our colleagues in HA are examining the details in this regard. However, I have to make it clear here that as PRH or SSFs applications are subject to eligibility assessment procedures, including the income and asset assessments, applicants will inevitably be required to provide the relevant documents for verification. In addition, arrangements will be made as far as possible for online submission of applications. Apart from the procedures which all applicants have to go through at government offices in person, we will consider allowing applicants to complete all other steps online. This is the objective of both HA and the Government. PRESIDENT (in Cantonese): Fourth question. Bringing the Chief Executive within the ambit of sections 3 and 8 of the Prevention of Bribery Ordinance 4. MR DENNIS KWOK: President, the Independent Review Committee for the Prevention and Handling of Potential Conflicts of Interests ("the Review Committee") submitted its report to the Government in May 2012, recommending the enactment of legislation to provide that the Chief Executive ("CE") must


obtain permission from a statutory independent committee prior to the acceptance of advantages, so as to make the system under section 3 of the Prevention of Bribery Ordinance ("POBO") applicable to CE. In addition, the incumbent CE has undertaken in her election manifesto that she would "resolve as soon as possible those constitutional and legal issues aiming at amending the Prevention of Bribery Ordinance to extend the scope of sections 3 and 8 to cover the Chief Executive". In his reply to a question raised by a Member of this Council on 5 July 2017, the Chief Secretary for Administration ("CS") indicated that "[u]pon completion of the study on such constitutional and legal issues, the Government will initiate the legislative procedure as early as possible". CS also stated that, in respect of a relevant private bill proposed by me, the Government would "examine whether the bill involves public expenditure, the political system, government operation, and so on". Regarding the efforts to amend POBO, will the Government inform this Council:

(1) whether it will propose legislative amendments in accordance with the proposal made by the Review Committee; if not, of the reasons for that, and the alternative proposals under consideration;

(2) whether it will complete the legislative amendment exercise within

the current term of the Government; if so, of the legislative timetable; if not, the reasons for that; and

(3) whether it will undertake that it will, for the period from the present

to the time of submission of the proposed legislative amendments to this Council, report on a half-yearly basis the progress of the legislative amendment exercise to this Council or any of its committees; if not, of the reasons for that?

CHIEF SECRETARY FOR ADMINISTRATION: President, since the Independent Review Committee for the Prevention and Handling of Potential Conflicts of Interests ("the IRC") submitted its report in May 2012, the Government has been actively following up on the IRC's recommendations, with a view to enhancing the robustness of the system concerned to effectively prevent and properly deal with potential conflicts of interests involving public officials. The IRC recommended in its report that amendments be made to sections 3 and 8 of the Prevention of Bribery Ordinance (Cap. 201) ("POBO") to extend their application to the Chief Executive. As the head of the Hong Kong Special


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Administrative Region ("HKSAR") and the HKSAR Government, the Chief Executive must be a person of integrity and dedicated to his/her duties according to Article 47 of the Basic Law. The Chief Executive agrees that there should be a good system to maintain and strengthen public confidence in the integrity of the Government. At present, the Chief Executive observes the provisions in the Code for Officials under the Political Appointment System and the declaration system applicable to Members of the Executive Council ("ExCo") in declaring her financial and other interests. The open part of her declaration has been uploaded to the websites of the Chief Executive's Office and ExCo for public inspection. The information related to gifts presented to and sponsorships received by the Chief Executive has also been uploaded to the website of the Chief Executive's Office. According to section 3 of POBO, any "prescribed officer" (including politically appointed official and civil servant) who, without the Chief Executive's permission, solicits or accepts any advantage shall be guilty of a criminal offence. Also, section 8 of POBO stipulates that any person who, without lawful authority or reasonable excuse, while having dealings with any government department or public body, offers advantages to any "public servant" (including "prescribed officer") employed in that department or by that public body, shall be guilty of an offence. Amending these two sections for application to the Chief Executive has implications on the provisions about the political structure of HKSAR and the Chief Executive's constitutional status in HKSAR as prescribed in the Basic Law. The relevant constitutional and legal requirements as well as operational issues must be studied in a holistic manner. Under Articles 15 and 45 of the Basic Law, the Chief Executive shall be selected by election held in HKSAR and be appointed by the Central People's Government. Article 43 of the Basic Law stipulates that the Chief Executive shall be the head of HKSAR, and shall be accountable to the Central People's Government and HKSAR in accordance with the provisions of the Basic Law. Pursuant to Article 60 of the Basic Law, the Chief Executive shall also be the head of the Government of HKSAR. Hence, the Chief Executive is both the head of HKSAR and the head of the HKSAR Government. As indicated by the IRC in its report, any regime that gives permission to the Chief Executive for soliciting or accepting advantages shall take into account the unique constitutional status of the office of the Chief Executive under the Basic Law.


The IRC recommended that a specialized independent committee, with members jointly appointed by the Chief Justice and the President of the Legislative Council, should be set up to give general or special permission to the Chief Executive for soliciting and accepting advantages. This, however, may not be consistent with the Chief Executive's unique constitutional status. Furthermore, given that the Chief Executive is the head of the HKSAR Government, amending section 8 to make it applicable to the Chief Executive could have the effect of making it an offence potentially for any persons having dealings of any kind with any government department to offer an advantage to the Chief Executive. In this connection, the IRC recommended that the reach of the statutory provisions would not include any person offering an advantage to the Chief Executive where such acceptance of the advantage by the Chief Executive is covered by a given general permission. But again, if such general permission is to be granted by a specialized independent committee established according to the IRC's recommendation, the above mentioned constitutional and legal implications remain. In fact, the existing POBO already contains certain provisions which effectively regulate the alleged corrupt acts of the Chief Executive. Apart from such universally-applicable provisions as sections 6, 7 and 9 of POBO, sections 4, 5 and 10 are also applicable to the Chief Executive for regulating respectively any bribery acts of soliciting and accepting advantages and possession of unexplained properties. Under these provisions, any person who offers any bribe to the Chief Executive shall be guilty of an offence as well. Meanwhile, the Chief Executive is subject to the regulation of bribery offences under the common law, and the offence of "misconduct in public office" under the common law also applies to the Chief Executive. The Government is now studying carefully the relevant issues on amending POBO to extend the application of sections 3 and 8 to the Chief Executive in accordance with the constitutional framework set out in the Basic Law and the existing legal requirements. On completion of the study, the Government will report its findings to the Legislative Council as early as possible. Since the study is still in progress, the Government does not have a specific date for submitting the report or introducing the amendment bill on POBO to Legislative Council at this stage.


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MR DENNIS KWOK (in Cantonese): President, actually, I have raised this very question for seven years. Since the first day I became a Member, I have been asking the Government when amendments would be made to this ordinance, and I have even introduced relevant private bills. Nevertheless, the Government has done nothing as yet. Today, having read the reply made by the Chief Secretary, I finally got to know the reasons, as he was using LEUNG Chun-ying's wording back then, which is the unique constitutional status of the Chief Executive under the Basic Law. This is really impressive. Is it because of the unique constitutional status of the Chief Executive that the Government has been putting off amending POBO? CHIEF SECRETARY FOR ADMINISTRATION (in Cantonese): President, as I said in my main reply, this is a matter involving very complicated constitutional and legal issues. I have clearly indicated in my earlier reply that there would be implications on many legislative provisions, particularly those relating to our political structure, i.e. the constitutional requirements prescribed in the Basic Law and the status of the Chief Executive under the Basic Law. We are certainly not ignorant of the importance of this matter, and in fact, the Chief Executive is very concerned about it. As Members are aware, we are currently conducting an in-depth study, but it involves issues of great complexity. Meanwhile, I hope that Members will not have a false impression that there will be a gap before any legislative amendment exercise is carried out by the Government. As I have explained very clearly in the main reply, in fact, the existing POBO already contains certain provisions which effectively regulate the alleged corrupt acts of the Chief Executive. That is to say, certain regulations are already in place. Let me cite an example. In my main reply, I mentioned that the universally-applicable provisions under POBO (i.e. sections 6, 7 and 9) are also applicable to the Chief Executive. Section 6 concerns bribery acts relating to tenders; section 7 covers bribery relating to auctions; and section 9 is about bribery in relation to agents during the transaction process. In addition, sections 4, 5 and 10 are also applicable to the Chief Executive, with section 4 covering general bribery, section 5 dealing with bribery for giving assistance and so on in regard to contracts, and section 10 regarding possession of unexplained property. All these circumstances are subject to regulation, and in other words, there are clear regulations regarding the Chief Executive's any bribery acts of soliciting and accepting advantages, as well as possession of unexplained properties.


Moreover, as Members are aware, the common law contains certain regulations against bribery offences. For example, the offence of misconduct in public office under the common law is also applicable to the Chief Executive. This being the case, Members should not have a false impression that there will be an obvious gap while the study is still in progress. Such situation simply does not exist. MR LAM CHEUK-TING (in Cantonese): President, the Chief Secretary has mentioned earlier that there are other pieces of legislation governing the conduct of the Chief Executive to prevent him or her from accepting advantages. But then, let us look back at the case of LEUNG Chun-ying accepting advantages. If he had been subject to the regulation of section 3 of POBO, he would have been found guilty. President, the question I want to ask is this: seven years have elapsed since the Independent Review Committee for the Prevention and Handling of Potential Conflicts of Interests ("IRC") submitted its report, but so far no progress has been made in respect of the legislative amendment exercise. The Chief Secretary explained that as the unique constitutional status of the Chief Executive was involved, it was inconsistent with the constitutional arrangements. However, as the sayings go, "a sovereign who breaks the law shall be held liable like his subjects", and "equality before the law", does the Chief Secretary mean that the Chief Executive should be subject to another set of law because his or her status is transcendent and well above the law? Chief Secretary, is it the case that the Chief Executive does not intend to deliver her election pledges before the expiration of her term of office in 2022? Does she intend to renege on the pledge she made to the public? CHIEF SECRETARY FOR ADMINISTRATION (in Cantonese): President, I have made it clear in my main reply that this is a complicated matter. We have never used the term "transcendent", but merely referring to it as "unique", a unique constitutional status. There has been no mentioning of such a term as "transcendent". Also, I wish to emphasize that given the complexity of the matter, it will really take us some time to examine it thoroughly. I hope that Members can allow us more time to continue with our work in this regard. Upon completion of the study, we will, of course, give detailed explanations to Members.


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MR LAM CHEUK-TING (in Cantonese): The Chief Secretary has not answered my supplementary question. Will the Chief Executive undertake to deliver her election pledges before the expiration of her term of office in 2022? The Chief Secretary has not answered this question of mine. PRESIDENT (in Cantonese): Mr LAM, you have pointed out the part of your supplementary question not answered, so please sit down. Chief Secretary, do you have anything to add? CHIEF SECRETARY FOR ADMINISTRATION (in Cantonese): President, we will definitely work hard and try our best to race against time to complete this task. DR JUNIUS HO (in Cantonese): Earlier I heard the Chief Secretary making it clear in the second last paragraph of his main reply that the existing POBO already contained sufficient provisions to regulate any alleged bribery acts of soliciting and accepting advantages and possession of unexplained properties of the Chief Executive. This is sufficient enough. As regards any other political issues, if such issues go beyond the recommendations made by IRC in its report dated May 2012, which is extending the application of the relevant provisions to the Chief Executive, then under the existing constitutional framework, those that cannot be satisfied … simply go straight to the point, cut to the chase―I mean the Government just briefly explains that the IRC report published in May 2012 focuses on corruption, and that the existing legislation is capable of dealing with the relevant issues. The political issues beyond this scope are basically outside IRC's terms of reference. So, sorry to disappoint you, but nothing can be done. Tell them frankly and that will suffice. We need not be entangled in this matter. Seven years have passed and it is now 2019, but the Government still needs to conduct a careful study? What is it that needs to be studied? No need to study, and there is nothing to study either. CHIEF SECRETARY FOR ADMINISTRATION (in Cantonese): President, I am very grateful for Dr HO's analysis, but still, we need to carry on with the relevant study. As a matter of fact, Dr HO is right to say that the existing


legislation already contains certain forms of regulation regarding the relevant matters and so does the common law. Hence, there is no such thing as what they call a void or a gap. Of course, we still need to continue with our study. MR CHEUNG KWOK-KWAN (in Cantonese): President, the Democratic Alliance for the Betterment and Progress of Hong Kong ("DAB") concurs that it is necessary to amend the legislation to make sections 3 and 8 applicable to the Chief Executive, and we also hope that the Government will implement the recommendations proposed by IRC, provided that the constitutional and legal issues involved in those recommendations are resolved. For example, section 3 is a provision subjecting subordinates to the regulation of their superiors. Under the Basic Law, the Chief Executive is without doubt the head of the region, and the circumstances where there is a superior to give permission to him or her for accepting advantages just does not exist. That said, the relevant recommendation made by IRC seeks to set up an independent committee to give permission to the Chief Executive for soliciting and accepting advantages. In this connection, as IRC has not explained the relevant legal basis, may I ask what constitutional status this independent committee has? Pursuant to which article of the Basic Law does it become the superior or the boss of the Chief Executive, such that it can give permission to the Chief Executive? President, if this constitutional and legal issue remains unresolved, I believe, we really have difficulty dealing with the amendment to be made to section 3. CHIEF SECRETARY FOR ADMINISTRATION (in Cantonese): Mr CHEUNG's observations about the relevant provisions can be described as fairly accurate. The complexity of the matter precisely lies in the fact that it touches upon the constitutional status of the Chief Executive under the Basic Law, and the question of whom the Chief Executive should be accountable to as prescribed in the relevant legal provisions. As clearly stipulated in the Basic Law, it is unequivocal that the Chief Executive is the head of the HKSAR Government, and certainly, it has also stipulated that the appointment of the Chief Executive shall be confirmed by the Central Government after the Chief Executive is selected by election. All these are crucial constitutional issues which cannot be resolved with just a few words, and we therefore intend to examine them thoroughly to see whether there is any feasible option. Whatever outcome we are going to get, we will give a clear account to Members.


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MRS REGINA IP (in Cantonese): President, I would like to ask the Chief Secretary for Administration whether the Government has actually examined the practicability of the recommendations put forward by IRC. For example, according to the regulation on acceptance of advantages made under section 3 of POBO, "advantage" includes the passage by car, by vessel and by plane. That is to say, if there is any change to the itinerary of the Chief Executive's Mainland or overseas duty visit in the middle of it, say someone arranges for a car or a vessel to give the Chief Executive a ride, the Chief Executive may then get into trouble. In the light of this, does it mean that the Chief Executive has to consult a committee about accepting this kind of convenience provided to him or her, or about receiving a souvenir, even though the other party does it out of sheer goodwill? Is this practicable? If not, should the Government tell IRC that the recommendation is unrealistic? CHIEF SECRETARY FOR ADMINISTRATION (in Cantonese): President, I thank Mrs Regina IP. The question Mrs IP raised is precisely a difficulty we have to solve and analyse in a thorough and comprehensive manner. For this reason, we need to spend more time trying to seek a feasible option. As for the result, we really need some time and space to conduct our study. DR CHENG CHUNG-TAI (in Cantonese): Having listened to the reply by the Chief Secretary for Administration, I actually wish to ask a fundamental question. Under the existing POBO, a civil servant who, without permission, solicits or accepts any advantage is guilty of an offence; the relevant person who offers the advantage is also subject to the relevant criminal liability. At present, is the Chief Executive covered in this ordinance? To put it simply, according to the reply given by the Chief Secretary just now, there is neither a loophole nor a grey area. I hope that the Chief Secretary can clarify or explicate why this is not a loophole. CHIEF SECRETARY FOR ADMINISTRATION (in Cantonese): President, as I have emphasized earlier, we are currently conducting our study, and the absence of a clear view on sections 3 and 8 does not give rise to a void or a gap. That is what I mean. Of course, it is IRC's recommendation that sections 3 and 8 should be further tightened, so as to make them clearer. Therefore, the question hinges on whether we are able to act on the recommendation, and


whether it is feasible. Now that the legal and constitutional issues involved have been revealed, we know that the matter is not so straightforward. The situation is just this simple. DR CHENG CHUNG-TAI (in Cantonese): I want to clarify my question. I hope the Chief Secretary can explain clearly why that is not a gap or a loophole? PRESIDENT (in Cantonese): Dr CHENG, you have asked your supplementary question, and the Chief Secretary has already given you a reply. Please sit down. MR PAUL TSE (in Cantonese): President, we do understand that very often, the heads of states, including the royal family or its representative, the Governor of Hong Kong, once familiar to us, all have a transcendent status, but there is always a legal basis to deal with the issue in question. Anyway, seven years have been spent on a study. Such a duration is more than sufficient even for a study on a matter as complicated as political reform which involves constitutional issues. What I cannot quite follow or understand is whether the present stage … actually what stage is the study of the authorities at? Are the authorities examining Hong Kong's own problem or the issues involving the State and Hong Kong, something which is at the national level and pending approval by the State? CHIEF SECRETARY FOR ADMINISTRATION (in Cantonese): Thank you, Mr TSE. All I can say in reply is that we are really working hard, but the issues involved in the process are really of great complexity. As Members have learnt from my main reply, the reason that it has taken seven years is that the matter involves a lot of constitutional issues, and just now, some Members already pinpointed the crux of these issues, such as the constitutional status of the Chief Executive, the unique status of the Chief Executive, the legal requirements, etc. We must conduct a comprehensive review, rather than simply examining only one aspect. Therefore, we hope that we will have a little more time to look further into the matter, and then have the result ready as soon as possible. Whatever direction the result points at, we will report to Members.


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PRESIDENT (in Cantonese): Fifth question. Follow-up work on a traffic accident involving a non-franchised bus 5. MR HOLDEN CHOW (in Cantonese): President, on the early morning of 30 November last year, a serious traffic accident involving a non-franchised bus happened on Cheung Tsing Highway, resulting in a number of casualties. It has been reported that as the majority of the passengers on the bus concerned at the time of the accident were employees of an airline company but the bus had not been issued with an employees' service endorsement by the Transport Department, the operator concerned has allegedly breached the law. Regarding the follow-up work on the accident, will the Government inform this Council:

(1) how the authorities currently monitor the road safety of non-franchised buses providing transport service for employees;

(2) of the number of prosecutions instituted by the authorities in the past

five years against operators who had illegally provided transport service for employees; the new measures to be put in place to step up efforts to combat such unlawful act; and

(3) given that some people working at the airport have indicated that the

transport services between the urban areas and the airport during early morning hours are insufficient and limited in choice, and the situation will aggravate with an increase in job opportunities at the airport upon completion of the airport's third runway, of the measures the authorities have put in place to address such problems; whether they will request the various franchised bus companies to enhance overnight bus services, and discuss with the MTR Corporation Limited the extension of the Tung Chung Line to the airport island and the service hours of the Line, so as to facilitate residents in the urban areas and Tung Chung to take up employment at the airport?

SECRETARY FOR TRANSPORT AND HOUSING (in Cantonese): President, the Government attaches great importance to the operational safety of public transport services. In response to the serious traffic accident involving a


non-franchised bus that occurred in Tsing Yi last year, the Transport Department ("TD") has promptly held a special meeting with the trade to discuss various measures to enhance the operational safety of non-franchised buses, including installing and providing safety devices, applying new technologies, and drawing up guidelines on working hours and rest time for drivers. TD has also set up a special working group to further follow up and implement the measures. As regards the said accident, the Police are still investigating and TD is following it up in accordance with the established mechanism. My main reply to the various parts of Mr Holden CHOW's main question is as follows:

(1) The Government attaches importance to the road safety of non-franchised buses, focusing on the driving behaviour and vehicle safety in particular. On law enforcement, the Police have been taking stern and vigorous enforcement actions in recent years to combat improper driving behaviour with a view to reminding motorists to stay alert at all times, reducing the risk of traffic accidents and enhancing road safety. Roadside equipment such as red light cameras and speed enforcement cameras as well as mobile instruments such as laser guns are used for enforcement actions. At the same time, the Police are taking enforcement actions according to the "Selected Traffic Enforcement Priorities" (such as speeding, use of mobile phones/telecommunications equipment during driving, drink driving, and drug driving). The average number of prosecutions involving non-franchised buses in contravention of traffic regulations per annum over the past five years is about 5 887.

As regards vehicle safety, all non-franchised buses currently have to

undergo TD's vehicle type approval procedures to ensure that their designs and construction comply with the Road Traffic (Construction and Maintenance of Vehicles) Regulations, and then pass a pre-registration examination. All in-service non-franchised buses are also required to pass annual vehicle examinations for assurance of their roadworthiness before their vehicle licences can be renewed. TD also conducts spot checks. Vehicles which cannot comply with the standards will be classified as failing the inspection. For seriously non-compliant vehicles, their vehicle licences will be instantly suspended. TD will follow up with non-franchised bus operators where necessary matters concerning the maintenance and repair of the bus fleets.


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(2) As regards the regulation of non-franchised bus services, under the existing law, all operators of non-franchised bus services must hold valid Passenger Service Licences ("PSLs") and Passenger Service Licence Certificates. Operators or drivers are liable to prosecution if their vehicles carry passengers without PSLs.

As for non-franchised buses with PSLs, they should also obtain

relevant service endorsements. If the operators do not follow the conditions of PSLs when providing services (including operating certain type of service without obtaining the relevant service endorsements), the Commissioner for Transport may appoint a public officer to conduct an administrative inquiry under the existing law. If the inquiry confirms that there are irregularities for the relevant services, the Commissioner for Transport may impose penalty, such as suspending, cancelling or amending the PSLs concerned, depending on the actual circumstances and severity of each case. Since most irregularities concerning non-franchised buses involve the provision of services without obtaining the relevant valid service endorsements or violation of the conditions of PSLs, rather than providing services without any PSLs, as mentioned above, such irregularities will be handled through the inquiry procedures and prosecution will not be applicable, according to the existing law.

In the past five years, TD conducted inquiries into 159 cases of

operating unauthorized services by holders of PSLs for non-franchised buses and school private light buses, 12 of which involved employees' services.

To safeguard the effective operation of public transport services, TD

has been monitoring the operation of non-franchised bus services, including conducting on-site investigations. TD will continue to step up the investigation work, in particular targeting the black spots and complaint cases, and will maintain close communication with the trade. Meanwhile, TD will strive to shorten the time required for completing investigations and inquiries.


(3) TD has been mindful of the public transport services for the airport island. Apart from the Airport Express, there are at present 79 franchised bus routes(1) (including 28 overnight routes) and 285 employees' service routes (including 104 overnight routes) plying between the airport island and various areas in the territory. To facilitate the commuting of airport employees to and from work, TD has introduced express overnight bus services since mid-2015. The existing 37 day-time bus routes and two new routes to be introduced in 2019 have adopted a service timetable that includes the early morning hours (that is the first departure between 5:00 am and 6:00 am). TD will continue to closely monitor the public transport service arrangements on the airport island, review with the franchised bus operators in a timely manner, and will continue to process the applications for the employees' service routes in accordance with the established mechanism.

According to the information of the Development Bureau, the Civil

Engineering and Development Department is currently conducting the Study on Traffic, Transport and Capacity to Receive Visitors for Lantau. On the other hand, as the Government has invited the Airport Authority Hong Kong ("AAHK") to submit a proposal for the topside development at the Hong Kong Boundary Crossing Facilities Island, the Government will comprehensively review the need of transport connection and facilities among North Lantau, the airport island and the Hong Kong Boundary Crossing Facilities Island after AAHK submits the development proposal. To cope with the additional passenger demand arising from the commissioning of the third airport runway, TD will devise plans in a timely manner and discuss with the relevant public transport service operators (including the MTR Corporation Limited ("MTRCL") and franchised bus operators) where necessary on strengthening and adjusting the public transport services to satisfy passengers' needs.

(1) These include 23 "Airbus Services" routes ("A" routes), 18 "North Lantau External

Services" routes ("E" routes), 9 "North Lantau Shuttle Services" routes ("S" routes), one 24-hour route to and from the Hong Kong Port of the Hong Kong-Zhuhai-Macao Bridge ("B" route), and 28 overnight airport bus service routes ("N" or "NA" routes).


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MR HOLDEN CHOW (in Cantonese): President, the Secretary's main reply states that 159 cases are now under inquiry. But the number of cases involving penalties is unknown. How can the authorities possibly achieve any deterrent effects without imposing any penalties? Overnight transport services for airport employees involve safety concerns, and the demand for such services is rising. The Government should adjust more public bus services, so as to meet airport employees' demand for overnight transport services. Here is my supplementary question. The construction of the third airport runway will soon be completed, and the Government says in the main reply that it is examining the extension of the Tung Chung Line to the airport island. When will this be materialized? Perhaps, the Government may directly adopt mass transit systems (such as light rail) as a means of dealing with the commuting problems of airport employees in the future. May I ask whether the Government can tell Members categorically whether, when and how this will be materialized? SECRETARY FOR TRANSPORT AND HOUSING (in Cantonese): President, Mr CHOW's supplementary question asks about ancillary transport services for the airport island after the completion of the third runway. We are aware that the third airport runway will be completed in 2022 and commence operation in 2024. By 2030, the number of passengers handled by the airport will increase to 100 million. The relevant teams in the Government are now examining its overall ancillary transport services. As for the connection among Tung Chung, urban districts and the airport island, the existing ancillary road and transport facilities are able to offer such connection. Certainly, railway is also an option that can be considered. The existing employees' services are already a special arrangement for employees commuting from urban districts, the New Territories or even other regions to the airport, and the purpose is to dovetail with the 24-hour operation of the airport island. In fact, the existing employees' services are mainly provided by an employer in cooperation with a service operator. Nonetheless, various employers may actually join hands and commission a bus service operator to make arrangements for the provision of employees' services. In principle, various employers on the airport island may jointly provide such employees' services. This is an alternative or flexible arrangement for employees commuting to work.


In relation to the long-term development of Tung Chung East and Tung Chung West, and also other overall ancillary transport facilities, the Government will make a timely judgment in its strategic planning for primary distributor roads, railways and roads. MR FRANKIE YICK (in Cantonese): President, as pointed out in the Secretary's earlier reply, the Police is now investigating the accident. But I wish to point out here that this accident does not have any direct relationship with the possession or otherwise of an appropriate service endorsement. All companies providing services for people and visitors at the airport have invariably told me about their recruitment difficulties, and the Secretary may have also heard of their difficulties. What is the root cause of the problem? Long travelling distance. Besides, public transport arrangements for the airport island have already constituted a long-standing problem. Particularly, I do not think it is financially viable to rely on franchised bus companies to increase their service frequencies during off-peak times outside working hours. If this were viable, this would have been implemented long ago, right? May I ask the Secretary why the Government refuses to consider introducing new green minibus services? For example, for the journeys from Tsuen Wan to Tung Chung today, or from Tuen Mun to Tung Chung after the commissioning of the Tuen Mun-Chek Lap Kok Link in the future, the Government may consider the introduction of a circular route from the Tung Chung public transport interchange to the airport island as a means of solving the existing difficulties faced by those companies operating at the airport. SECRETARY FOR TRANSPORT AND HOUSING (in Cantonese): President, many thanks to Mr YICK for his supplementary question and views. In fact, hundreds of thousands of employees work on the airport island. They work in shifts to provide 24-hour services, and their commuting hours are different from those of general employees. For these reasons, employees' services are provided as a special arrangement. Besides, the relevant public transport operators also offer special fare concessions during normal commuting hours. For instance, the Citybus Limited and the Long Win Bus Company Limited offer fare concessions ranging from a 10% discount to a 43.8% discount for airport employees travelling on the 11 "A" routes and 22 overnight routes.


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Moreover, airport employees commuting to and from the airport island on MTRCL's Airport Express with an Octopus card may enjoy a 60% fare discount for journeys from Hong Kong Station to AsiaWorld-Expo Station, as the initial fare of $110 is reduced to $44.2. As for the fare for journeys from Kowloon Station to AsiaWorld-Expo Station, it will be reduced from $100 to $39.4. All such arrangements are put in place because we have factored in the actual transport needs of employees who need to commute to and from the airport as mentioned by Mr YICK just now. A moment ago, Mr YICK also asked whether we would consider the introduction of green minibus services. Green minibuses play a very important role in the authorities' public transport strategy. Franchised buses provide services for 4 million passengers a day, whereas minibuses also serve nearly 2 million passengers. We will certainly consider the Honourable Member's suggestion if actual needs arise. But I must say that employees' services are a fare-competitive mass transit option. Furthermore, the Public Transport Fare Subsidy Scheme already covers green minibuses and also employees' services. Therefore, I will say that the overall transport arrangements are already able to cater for the situation mentioned by Mr YICK just now. As for individual cases, we will give a response where appropriate based on actual arrangements and demands. PRESIDENT (in Cantonese): Mr Frankie YICK, which part of your supplementary question has not been answered? MR FRANKIE YICK (in Cantonese): The Secretary has not answered a straightforward question from me. Certainly, nobody will raise concern if there is no problem. Precisely because of the existing problems and certain constraints on the Secretary, he refuses to introduce green minibus services. Just now, the Secretary merely cited a bunch of figures without answering my supplementary question at all. PRESIDENT (in Cantonese): Mr YICK, you have pointed out the part of your supplementary question which has not been answered. Secretary, do you have anything to add?


SECRETARY FOR TRANSPORT AND HOUSING (in Cantonese): President, actually, I have already answered Mr YICK's supplementary question just now. Perhaps, my reply is not satisfactory to him. Basically, when actual demands for certain public transport services spring up, applicants who are interested in operating green minibus services, franchised bus services or even non-franchised bus services will actively approach TD and liaise with the department in this regard. In such cases, we will give consideration based on actual circumstances. MR POON SIU-PING (in Cantonese): President, the serious accident involving a coach with airport employees on board in November last year has not only revealed the overly long working hours of such drivers and problems with the protection of commuting employees, but also exposed the lack of ancillary transport services and support for airport employees during the small hours. Earlier on, certain companies operating at the airport would offer transport subsidies for their employees or even shuttle bus services during their commuting hours. But most of such initiatives have been cancelled by now. A moment ago, the Secretary asserted that the two bus companies already offered overnight bus services. However, their service frequencies and also midway stop locations are unable to meet employees' needs. This explains why airport employees often relay to trade unions their difficulties in obtaining transport services during the commuting hours, particularly when they are on overnight shifts. As Members all know, the airport is managed by AAHK. May I ask the Secretary whether the Government will instruct AAHK to discharge its duties and strive to resolve the transport problems faced by airport employees, including considering the idea of entrusting AAHK with the centralized provision of overnight shuttle bus services for airport employees? SECRETARY FOR TRANSPORT AND HOUSING (in Cantonese): President, many thanks to Mr POON for raising his concerns and supplementary question.


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We will provide appropriate ancillary transport services for employees working on the airport island as far as possible. As I have also explained clearly in my earlier replies to other Members' questions, employees' services basically can be provided through non-franchised buses under the joint arrangement of various employers. For instance, a company without the means to provide employees' services on its own due to its relatively small size may make the relevant arrangements jointly with other employers. Just now, Mr POON asked whether the Government could urge AAHK to increase its participation and intervene in the provision of the service concerned. We will relay this view to AAHK for their consideration. But then, I also wish to offer some flexibility. If appropriate employees' services can be provided for the employees concerned under employers' joint arrangements and thus basically achieve the purpose of providing a so-called "two-pronged" arrangement, then AAHK's participation will not be required. If any cases warrant AAHK's participation, we will relay the message to them. MR LEUNG CHE-CHEUNG (in Cantonese): President, this fatal traffic accident involving airport employees as well as the deadly traffic accident in Tai Po are both very saddening, and they have exposed the problems with franchised and non-franchised bus services alike. The resultant fatal traffic accidents have sounded the siren in this respect. While the Secretary's main reply today puts forth many measures for enhancing the regulation of non-franchised buses, the relevant measures are unable to fulfil the important function of preventing accidents. Hence, in the wake of the problem this time around, I believe the relevant departments should step up their efforts in reducing accidents. The Secretary says, "In the past five years, TD conducted inquiries into 159 cases of operating unauthorized services by holders of PSLs for non-franchised buses and school private light buses, 12 of which involved employees' services." As shown by the figures, if only 12 inquiries into employees' services have been conducted over the past five years, then I will say the reason may be that there are problems with the drivers, and the situation is not that serious … PRESIDENT (in Cantonese): Mr LEUNG, please raise your supplementary question directly.


MR LEUNG CHE-CHEUNG (in Cantonese): President, I know. While the situation is not that serious, what will the Government do to attain the goal of "zero" accidents? Will penalties be enhanced, just as a Member has asked in his question earlier on? SECRETARY FOR TRANSPORT AND HOUSING (in Cantonese): President, many thanks to Mr LEUNG for his supplementary question. We have checked our records and found that speaking of our inquiries into the 12 cases involving unauthorized provision of employees' services as mentioned by the Honourable Member just now, we have so far revoked the PSLs of 13 public buses and imposed licence suspension for a period ranging from seven days to two months as penalty. The financial loss incurred by the relevant penalties is very significant and is able to deter companies from providing unauthorized employees' services. Besides, we certainly agree with Mr LEUNG on one point. We are very concerned about public transport safety. As such, in the case of franchised and non-franchised buses, we wish to protect passengers' safety under exceptional circumstances through safety measures and devices. We also hope to improve safety through the application of technologies, such as vehicle stability control systems and automatic downhill speed reduction devices, and also through the formulation of guidelines on bus captains' working hours and operation. Following the traffic accident late last year, TD personnel promptly held a special meeting with non-franchised bus operators to explore the enhancement of the operational safety and road safety of non-franchised buses through some frank communication. In addition, a working group meeting was also held in mid-January. In the course of discussion, various parties considered that TD and the non-franchised bus trade should jointly form a dedicated working group, and this working group will explore the issues I mentioned a moment ago, such as safety devices, the number of working hours, rest time arrangements, training, publicity, and also the application of technologies. I hope to come up with some recommendations on improving the safety of non-franchised buses through communication and cooperation among the three sides concerned, namely employers, employees and the Government. PRESIDENT (in Cantonese): Last oral question.


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Mainland tourists affecting the daily lives of residents in certain districts 6. DR ELIZABETH QUAT (in Cantonese): President, it has been reported that the number of Mainland residents joining low-fare tours to Hong Kong for leisure travel has been increasing incessantly in recent years. As such tour groups arrange their tour group members to have meals and shop mainly at districts such as Kowloon City and Tung Chung, serious impacts are caused persistently on the daily lives of the residents and the traffic in those districts, and there has been a trend of such situation spreading to other districts. In this connection, will the Government inform this Council:

(1) given that travel agents are required, before taking their tour group members to designated shops for shopping, to register with the Travel Industry Council of Hong Kong ("TIC") the information of those shops, whether the Government will request TIC to stop processing the registrations for shops located at districts flooded with tourists or impose on them stricter registration conditions (such as the requirement that those shops which have repeatedly caused nuisances to the districts may have their registration cancelled), and coordinate the relocation of registered shops to other places for operation;

(2) given that quite a number of Mainland tour groups joining the

Victoria Harbour cruises gather mainly at certain piers for embarkation and disembarkation, thereby causing inconvenience to the residents nearby, whether the Government will adopt improvement measures, such as adjusting the berthing time, and stepping up traffic management on the streets near those piers; and

(3) whether it will discuss with the Mainland authorities the setting up of

a notification mechanism so as to grasp the daily number of inbound Mainland tour groups and that of tour group members, so as to formulate suitable policies and measures accordingly?

SECRETARY FOR COMMERCE AND ECONOMIC DEVELOPMENT (in Cantonese): President, the Government attaches great importance to the sustainable and healthy development of the tourism industry. Whilst ensuring


that the industry grows in a stable and orderly manner and brings about benefits to society, we continuously seek to minimize as far as possible the impact of tourist activities on the local community. The Government has been pragmatic in tackling problems brought about by inbound tour groups to local communities, and maintaining close liaison with the travel trade, Travel Industry Council of Hong Kong ("TIC"), district personalities and Legislative Council Members to implement various targeted mitigation measures. Such measures include encouraging tour coaches to use proper parking spaces, appealing to the trade to observe order when receiving tour groups and use information technology in strengthening control on visitor and vehicular flow, etc. The Tourism Commission, together with relevant government departments and TIC, meet with trade representatives from time to time to keep an eye on their arrangements in receiving inbound tour groups. In response to the question raised by Dr Elizabeth QUAT, after consultation with relevant bureaux/departments, my reply is as follows:

(1) Under the Refund Protection Scheme (Registered Shops) for Inbound Tour Group Shoppers ("Registered Shops Scheme") implemented by TIC at present, before taking tourists to any registered shop for shopping purposes, travel agents must register the information about the shop with TIC. The shop concerned must make pledges to TIC, including offering tourists refund protection, not coercing them into making purchases, etc. Any shop found in breach of any pledge after TIC's investigation and disciplinary proceedings can be subject to sanction, such as an advisory letter issued, demerits given, its registration suspended or even terminated.

To reduce the inconvenience caused by inbound tour groups to

certain districts, TIC is examining further enhancements to the Registered Shops Scheme by requiring registered shops serving inbound tour groups for designated shopping to put forward and implement visitor crowd management measures. Meanwhile, TIC will continue to reduce the impact brought about by inbound tour groups to local communities under a multi-pronged approach. TIC will issue notices and liaise with the trade from time to time to urge


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them to observe order and use information technology in strengthening control on visitor and vehicular flow, and to encourage coaches to use proper parking spaces. Furthermore, through on-site inspection, advisory letters, meetings, etc., TIC will follow up with the trade members concerned on their arrangements to receive inbound tour groups.

As regards the proposal of relocating shops to other places, the

Government keeps an open mind and, in tandem with TIC, has been actively coordinating with various stakeholders in driving the trade to divert inbound tour groups to other districts, and avoid arranging them to gather in certain districts within a short period of time and causing nuisance. Insofar as the Kai Tak Cruise Terminal ("KTCT") is concerned, all the seven shops of the ancillary commercial areas in the terminal building have been leased at present. Six of them are in operation whilst the remaining one has ceased operation due to its internal issues. The terminal operator is recovering the vacant possession of that shop from the sub-tenant through legal proceedings. The Government has urged the terminal operator to lease the shop as soon as possible upon completion of the relevant proceedings and recovering possession of the shop. Commercial organizations interested in operating at KTCT are welcome to approach the terminal operator directly to discuss the corresponding commercial arrangements.

(2) In general, public piers and public landing steps are public facilities

that are open all day, and vessels may use those facilities so long as they comply with the relevant marine regulations, particularly those in respect of safe embarkation and disembarkation of passengers. As regards the ferry piers for use by operators of franchised or licensed ferry services, the relevant ferry operators may apply for subletting the piers whilst the Government will consider individual applications made by them.

The Government understands that Mainland inbound tour groups

joining Victoria Harbour cruises will gather at some locations within certain periods of time for embarkation and disembarkation. We, in


tandem with TIC, have thus been actively coordinating with various stakeholders in driving the trade to divert inbound tour groups to different locations for embarkation and disembarkation. Yesterday, I paid a visit to other public piers and public landing steps together with TIC, relevant government departments, travel agent representatives and Victoria Harbour cruise operators, with a view to understanding the feasibility of embarkation and disembarkation at the locations concerned, ancillary transport facilities in the vicinity, etc.

Meanwhile, the Government will continue to monitor the usage of

the various piers and landing steps and step up marine patrols in the vicinity of such facilities to ensure the orderly berthing of vessels and smooth embarkation and disembarkation of passengers. The Government will also step up traffic management on the streets near the piers and landing steps to reduce any inconvenience caused to residents nearby. Currently, some of the road sections near Kowloon City Ferry Pier, including San Ma Tau Street and Kwei Chow Street, have been designated as "No-stopping Restriction Zone" and coaches can only pick up/drop off passengers in non-restricted zones. The Police will continue to take enforcement action at illegal coach parking black spots. The Transport Department will closely monitor traffic conditions and take appropriate traffic measures to ensure smooth traffic.

(3) At present, TIC enforces clear guidelines requiring that travel agents

in Hong Kong must, whenever receiving any Mainland inbound tour group, register with TIC and provide information about the tour group in advance. In this regard, the Government has been in close liaison with TIC to understand the situation of Mainland inbound tour groups visiting Hong Kong.

Furthermore, the Government and the Ministry of Culture and

Tourism, together with other tourism authorities in the Mainland, have been striving to strengthen the regulation of the tourism markets in Hong Kong and the Mainland. In August 2017, the Government and the then China National Tourism Administration


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entered into the Agreement on Further Enhancement of Tourism Cooperation between the Mainland and Hong Kong to jointly combat unreasonably low-priced group tours, as well as violations of laws and regulations, so as to drive the healthy and orderly development of the markets in both places.

The Tourism Commission will continue to keep a watch on the travel

trends of Mainland visitors and maintain close liaison with the Mainland tourism authorities. Before peak periods of Mainland visitor arrivals, including the Chinese New Year and National Day Golden Week, the Tourism Commission will convene inter-departmental meetings to strengthen visitor crowd control measures and endeavour to alleviate the impact brought about by tourist activities to local communities.

DR ELIZABETH QUAT (in Cantonese): President, the Secretary has just mentioned that the Government attaches great importance to the sustainable and healthy development of the tourism industry, but currently we do not see any healthy development of the tourism industry. He has also said that the Government would be pragmatic in avoiding the impact on local communities, but what we see now is serious impact on the lives of the residents in the communities. My question is very clear. Part (1) asks whether the Government will request TIC to stop processing the registrations for shops located at districts flooded with tourists. If the Government and TIC allow the shops to register at will without subjecting them to regulation, it is indeed impossible to solve the current acute problems. Therefore, the Government really needs a system or method and stop permitting such shops to be opened in these already crowded districts. The Secretary has mentioned about appealing to the shops to observe order and use information technology … PRESIDENT (in Cantonese): Dr QUAT, please raise the supplementary question directly.


DR ELIZABETH QUAT (in Cantonese): … and encouraging tour coaches to use proper parking spaces, but none of these is accomplished today. Therefore, President, the Secretary is just being perfunctory in giving the Council such a reply to the question. President, may I ask the Secretary to give a definite reply as to whether or not some solutions will be implemented? SECRETARY FOR COMMERCE AND ECONOMIC DEVELOPMENT (in Cantonese): I thank Dr QUAT for her supplementary question. As I have pointed out in the main reply, TIC is considering whether to carry out the initiatives mentioned by Dr QUAT just now. Just last week, TIC issued a document to the trade, pointing out that before approving the registration of a new designated shop, TIC will examine its visitor and vehicular flow control plan. This amounts precisely to the effort Dr QUAT referred to. That is to say, the existing entry threshold has been raised because new shops have to undergo additional procedures before registration. Also, I would like to add that the Travel Industry Authority ("TIA") to be set up in the future will also put in place administrative measures to implement the initiatives proposed by Dr QUAT earlier, including conducting a site inspection, prior to the applicant opening the shop, to see if the location is suitable for its operation, as well as requiring that a visitor and vehicular flow control plan be implemented to ensure that the residents' lives will not be affected. MR SHIU KA-CHUN (in Cantonese): The number of visitor arrivals in 2018 has exceeded 60 million and broken the record of Hong Kong since the territory was opened as a port, and 78% of such arrivals were from the Mainland. The constantly record-breaking number of visitors has seriously affected the daily lives of Hong Kong people and stuffed railways, buses, roads, shopping centres and toilets to bursting, thus deepening the conflicts between Hong Kong people and Mainland tourists. I would like to ask whether the authorities concerned have taken into consideration the visitor carrying capacity of urban areas and the feelings of Hong Kong people, and will correspondingly put a cap on the number of visitors to be received.


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SECRETARY FOR COMMERCE AND ECONOMIC DEVELOPMENT (in Cantonese): President, I thank the Member for his supplementary question. First of all, with regard to the number of visitors, as I have said in the main reply, we attach great importance to the sustainable and healthy development of the tourism industry and do not simply pursue the growth of the visitor figure. I would like to raise the point here that there has been a significant increase in the number of visitors from non-Mainland markets. For example, in the first 11 months of 2018, the numbers of visitors from Japan and the United States respectively recorded a year-on-year increase of about 4% and 7%, whilst overnight visitors in Hong Kong, namely the high-spending overnight visitors we wish to attract, also increased steadily from about 24 million in 2012 to about 28 million in 2017. Regarding the problems caused by tour groups to local communities, we have actually implemented many diversion measures, as set out in detail in my main reply. In addition, we issued the Development Blueprint for Hong Kong's Tourism Industry in 2017. One of the strategies is exactly to develop some tourism attractions with local characteristics, community culture and so on, including the local cultural attractions launched in Wan Chai and Sham Shui Po, as well as the characteristically creative, cultural and historical tourism attractions such as Tai Kwun, PMQ and Dr Sun Yat-sen Historical Trail in Central and Western District, which Members may have heard of in the past. We very much hope that the relevant strategies and new attractions can provide visitors with better experiences and divert them to other attractions in non-residential areas. We strive to minimize the impact on the residents' lives while creating economic benefits. MR SHIU KA-CHUN (in Cantonese): President. PRESIDENT (in Cantonese): Mr SHIU Ka-chun, which part of your supplementary question has not been answered? MR SHIU KA-CHUN (in Cantonese): My supplementary question is very clear. Will a cap be put on the number of visitors to be received? I urge the Secretary not to beat around the bush.


PRESIDENT (in Cantonese): Secretary, do you have anything to add? SECRETARY FOR COMMERCE AND ECONOMIC DEVELOPMENT (in Cantonese): Regarding the number of visitors, we will certainly maintain close communication with the relevant authorities in different economies, including the Mainland. At the same time, as far as the carrying capacities of different tourism initiatives are concerned, we will also strive to do a good job in improving infrastructure and stepping up tourist diversion measures. DR PRISCILLA LEUNG (in Cantonese): President, I am not sure whether the Secretary has visited areas such as Kowloon City Ferry Pier, Ma Tau Wai and Hung Hom, which are horribly jam-packed with low-fare tour groups. This is not the way to go forward, Secretary. Now that Members have raised questions on this issue over and over again, I would like to ask whether the authorities have seriously considered diverting the tourists or even providing them with specific areas which cater for different levels of spending, so that the tourists do not have to flood into several specific districts. In addition, can the Secretary earnestly respond to the question raised by a number of Members as to whether it is possible to set up specific spaces in the Kai Tak Cruise Terminal to cater for different spending brackets and introduce chocolate shops, jewelry shops, and even food establishments that are popular or differentiated by price levels? Is the Government determined to engage in planning for ancillary transport facilities? In my view, the responsibility does not lie with the visitors, nor should they be put in a confrontational position with local residents. It is indeed incumbent upon the Government and the tourism industry to plan for the management and diversion of visitors in this regard. SECRETARY FOR COMMERCE AND ECONOMIC DEVELOPMENT (in Cantonese): President, I thank Dr LEUNG for her supplementary question. First of all, regarding the vicinity of Kowloon City Ferry Pier, I have actually visited the area many times for firsthand understanding of the situation. As I said in the main reply, I paid a site visit yesterday together with members of the trade and relevant stakeholders. With regard to the current night tours, I would like to


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thank the trade for taking the initiative to implement solutions for diversion, including shifting some night tour groups to other places by means of discount offers, and allowing some harbour cruise participants to embark at Wan Chai Ferry Pier near Golden Bauhinia Square in Wan Chai. Furthermore, in respect of night tourism activities, it is learnt that the trade will arrange for tourists who do not join night harbour cruises to visit the Avenue of Stars in Tsim Sha Tsui and watch the light installations at Tamar Park, so as to further spread the flow of some visitors. Moreover, we have to solve the problem in a targeted manner. We have noticed that during lunch or dinner hours, many of these visitors actually flock to the Chinese restaurants in certain districts like To Kwa Wan and Kowloon City. In this connection, we are discussing with our friends in the trade the feasibility of slightly changing the itinerary, and the trade is discussing with The Boxes to let the tourists lunch there first, upon their arrival, before going to other districts for shopping. If it is possible to reduce the number of visitors to the urban areas during lunch hours, the situation can be greatly improved. Regarding Dr LEUNG's earlier query as to whether efforts will be made in connection with the Kai Tak Cruise Terminal, in fact, in the past, I have visited the cruise terminal together with the trade or some Members present and discussed with the shop operators in the cruise terminal whether arrangements can be made for tour groups to dine or shop. If any shop operators are interested in renting a space in the cruise terminal, I am more than willing and glad to contact the relevant stakeholders to help them liaise with the cruise terminal operator. Of course, it is a business decision whether the shops can eventually operate there, but we will continue making efforts in this area. DR PRISCILLA LEUNG (in Cantonese): On the transport front, is the Bureau determined to enhance the ancillary facilities? PRESIDENT (in Cantonese): Secretary, do you have anything to add?


SECRETARY FOR COMMERCE AND ECONOMIC DEVELOPMENT (in Cantonese): In relation to the transport front, we have actually made a lot of effort in cooperation with the District Offices, the Police and so on in the communities, such as To Kwa Wan and Kowloon City. For example, we have arranged cheaper car parks, namely temporary ones charging $6 per half hour, for the parking of tourist coaches, with a view to relieving road congestion. In addition, the Police have implemented an action charter to prohibit parking or picking up/dropping off passengers at different busy locations or black spots, including the black spots I mentioned a moment ago where the restaurants are located, and to relocate the pick-up/drop-off points away from residences. As I mentioned just now, we will continue making efforts in this area. DR PRISCILLA LEUNG (in Cantonese): When it comes to Kai Tak Cruise Terminal, ancillary facilities are what matter most. PRESIDENT (in Cantonese): Secretary, please answer briefly. SECRETARY FOR COMMERCE AND ECONOMIC DEVELOPMENT (in Cantonese): I thank the Member for her supplementary question. In fact, there is a lot of transport infrastructure … (A number of Members queried aloud in their seats why the President allowed Dr Priscilla LEUNG to raise three supplementary questions) PRESIDENT (in Cantonese): Dr Priscilla LEUNG has not raised three supplementary questions. It is just that the Secretary has not responded to her question about the connectivity of Kai Tak Cruise Terminal. Secretary, do you have anything to add?


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SECRETARY FOR COMMERCE AND ECONOMIC DEVELOPMENT (in Cantonese): We are, in fact, constantly working on the provision of road connections to the cruise terminal, and will continue to liaise with the Development Bureau and relevant departments in this regard with a view to speeding up the progress. DR HELENA WONG (in Cantonese): President, I have noticed the Secretary mentioning in the main reply "the Government has been … the Government has been …". Whilst he has mentioned "the Government has been" for four times, the measures so far have been far from effective, otherwise the pro-establishment Members would not have argued with the Bureau in this regard and the Members of the democratic camp would not have been in full cry. The authorities' existing regulatory tools are very weak. If they are to make use of the current Registered Shops Scheme, it must be noticed that the Scheme revolves mainly around shopping. But then, whilst the low-fare tour groups from the Mainland will have to eat upon their arrival in Hong Kong, are the food establishments subject to registration? When I visited the communities, I saw that they were absolutely unable to set the tables in time, and the visitors were queuing up in the street, and even around corners because one street is not long enough, leaving all the thus surrounded shops unable to do business. How does the Bureau regulate these food establishments? Has it put in place any measures to prevent those Mainland visitors who are waiting to dine from surrounding the whole street? SECRETARY FOR COMMERCE AND ECONOMIC DEVELOPMENT (in Cantonese): President, I thank Dr WONG for her supplementary question. Just yesterday I went to the districts with the colleagues from the Police to visit the black spots concerned. As for the queuing problem, we are also trying to identify locations that can be made available for visitors to queue up for dining. Regarding solutions, as I have pointed out earlier, we will have TIA in the long run, although its establishment will take a year or two. Meanwhile, we still have TIC. Actually, with the joint efforts of many Honourable Members present here, TIC will also require that, as indicated in the main reply, the shops applying


for new registration or already registered submit a visitor and vehicular flow control plan to TIC for examination. They must not bring about disruption to the residents' lives, by that I mean they should not cause street obstructions or traffic blockages. Only after examination will TIC decide whether to accept and list the shops in the register. As such, I believe the efforts in this regard can solve some of the problems. DR HELENA WONG (in Cantonese): The secretary has not yet answered the part regarding those food establishments entertaining low-fare tour groups from the Mainland, such as small restaurants and Chinese restaurants. Will the Bureau include them in the Registered Shops Scheme and monitor the visitor flow control of the food establishments concerned? PRESIDENT (in Cantonese): Secretary, do you have anything to add? SECRETARY FOR COMMERCE AND ECONOMIC DEVELOPMENT (in Cantonese): As I said earlier, all the new shops have to submit a visitor and vehicular flow control plan to TIC for examination. DR HELENA WONG (in Cantonese): Are you referring to those already registered? SECRETARY FOR COMMERCE AND ECONOMIC DEVELOPMENT (in Cantonese): As I said, both the shops applying for new registration and those existing have to submit a proposal to TIC for examination. TIA will also put in place similar regulatory requirements in the future. PRESIDENT (in Cantonese): Oral questions end here.


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WRITTEN ANSWERS TO QUESTIONS Factory canteens 7. MR TOMMY CHEUNG (in Chinese): President, under the Food Business Regulation (Cap. 132X), a factory canteen may only serve factory employees who work in the building where the canteen is located. The Food and Environmental Hygiene Department implemented new conditions for the Factory Canteen Licence ("FCL") in February 2018 to stipulate that (i) a licensee must display a notice reading "FACTORY EMPLOYEES OF THIS BUILDING ONLY" outside each entrance of the canteen, and (ii) a factory canteen may only serve persons who possess employee identity cards issued by their employers or other acceptable proof. Some proprietors of factory canteens have relayed that the aforesaid requirements have led to a plunge in their businesses. They had applied for converting their canteens into general restaurants but their applications were rejected on grounds that the industrial buildings in which their canteens were located did not meet the fire safety and building structure requirements applicable to general restaurants. They have also pointed out that with the gradual decline of industries in Hong Kong, the existing legislation that regulates factory canteens is obviously outdated. On the other hand, while the Government has, since 2010, implemented measures to revitalize industrial buildings under which owners are permitted to convert or redevelop some industrial buildings for non-industrial uses (such as offices, art studios, cultural and creative industries, light industries, logistics), the authorities have not correspondingly adjusted the licensing conditions of FCL to dovetail with such measures. In this connection, will the Government inform this Council:

(1) whether it will, in view of changing times and in order to dovetail with the measures to revitalize industrial buildings, amend the legislation to the effect that a factory canteen is permitted to serve, in addition to factory employees who work in the industrial building where the canteen is located, also other employees who work in the same industrial building as well as the employees of those organizations which have business dealings with the organizations situated in the industrial building; if so, of the details; if not, the reasons for that;


(2) of the respective numbers of applications for converting factory canteens into general restaurants received, approved and rejected by the authorities in the past eight years; if some applications were rejected, the main reasons for that; and the average processing time taken in respect of the approved applications;

(3) of the respective current numbers of industrial buildings and

licensed factory canteens in Hong Kong, and whether it knows the number of factories that are in active operation in industrial buildings and the number of their employees, with a breakdown by District Council district; and

(4) whether it has compiled statistics on the numbers of units in

industrial buildings used for non-industrial uses in each of the past three years and the numbers of employees involved; if so, of the details; if not, whether it will compile such statistics, so as to grasp the clientele size of factory canteens?

SECRETARY FOR FOOD AND HEALTH (in Chinese): President, having consulted the Development Bureau and the Labour and Welfare Bureau, our reply to the various parts of the question is as follows:

(1) Under the Food Business Regulation (Cap. 132X), a factory canteen licence ("FCL") must be obtained from the Food and Environmental Hygiene Department ("FEHD") for operation of food business in a factory building which involves the sale or supply of meals or drinks for consumption on the premises by persons employed in the factory building concerned. FCL was introduced to facilitate factory workers to take meals.

Industrial activities often involve the loading, unloading, storage and

use of dangerous goods. The risks of fire hazards and accidents are therefore far greater in factory buildings than in commercial/composite buildings. Members of the public who do not work in such factory buildings are not familiar with their interior


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settings. They may be exposed to heightened danger if they are allowed to patronize factory canteens given they may not realize the potential dangers and know the escape routes in a factory building.

In terms of food safety, licensed factory canteens are subject to less

stringent requirements than general restaurants with regard to the provision of food room and sanitary fitments as the types of food provided by factory canteens and their mode of operation are relatively simple. If factory canteens are allowed to serve members of the public, the existing provision of food room and sanitary fitments of a factory canteen may not be capable of coping with the substantial need for food storage and stock changes due to a vast increase in customers. The resulting food safety and hygiene implications will also constitute potential food safety hazards to customers.

In view of the above, we have no plan to relax the relevant licensing

requirement, in other words, a factory canteen can only serve employees in the factory building where the canteen is situated.

(2) The respective numbers of FCL and General Restaurant Licence

("GRL") applications received, approved, withdrawn/abandoned and rejected in the past eight years are set out at Annex 1. FEHD does not have the number of GRL applications lodged by licensed factory canteens.

(3) and (4) The distribution of factory buildings and licensed factory canteens in

various districts is set out at Annex 2 and Annex 3 respectively. The Development Bureau and the Labour and Welfare Bureau do not maintain the number of factories in operation currently, the number of factory units used for non-industrial purposes in factory buildings and the number of employees concerned.


Annex 1

FCL and GRL applications received, approved, withdrawn/abandoned and refused

Year Application for FCLs Application for GRLs

Received Approved Withdrawn/abandoned

Rejected Received Approved Withdrawn/abandoned

Rejected

2011 55 15 34 0 1 092 828 261 0 2012 52 20 28 0 1 261 849 274 0 2013 72 15 49 0 1 403 956 313 0 2014 90 23 44 0 1 490 1 051 408 0 2015 84 13 79 0 1 418 1 080 370 1 2016 69 11 51 0 1 367 1 098 292 0 2017 60 23 33 0 1 450 1 048 265 0 2018 37 20 30 0 1 283 1 195 317 0

Annex 2

Factory buildings in various districts (as at 30 September 2017)

District Number of factory buildingsNote

Central and Western 11 Eastern 88 Islands 11 Kowloon City 63 Kwai Tsing 220 Kwun Tong 282 North 113 Sai Kung 21 Sha Tin 68 Sham Shui Po 118 Southern 56 Tai Po 6 Tsuen Wan 138 Tuen Mun 92 Wan Chai 3


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District Number of factory buildingsNote Wong Tai Sin 59 Yau Tsim Mong 79 Yuen Long 66 Total 1 494

Note: The figures in this table are for reference only. Such industrial buildings ("IBs") refer to flatted factory buildings, industrial-office buildings and other buildings built for industrial uses, excluding special factories (such as those located in industrial estates) and those IBs which have land documents executed or pending execution under the previous revitalization scheme for IBs.

Annex 3

Licensed factory canteens in various districts (as at 31 December 2018)

District Number of licensed factory canteens

Central and Western 0 Eastern 19 Islands 6 Kowloon City 3 Kwai Tsing 85 Kwun Tong 149 North 9 Sai Kung 5 Sha Tin 46 Sham Shui Po 48 Southern 13 Tai Po 7 Tsuen Wan 28 Tuen Mun 37 Wan Chai 0 Wong Tai Sin 27 Yau Tsim Mong 0 Yuen Long 10 Total 492


Remittance service provided by money changers 8. MR CHUNG KWOK-PAN (in Chinese): President, at present, operators of money changers are required to possess a licence granted by the Commissioner of Customs and Excise for operating remittance and/or money changing service(s). It has been reported that recently, a member of the public entrusted a money changer to remit money to the Mainland but the designated recipient has still not received the money after a lapse of several days. That member of the public has sought, for a number of times, the assistance from the Police, the Consumer Council and the Customs and Excise Department, but to no avail. In this connection, will the Government inform this Council:

(1) of the number of complaints against money changers received (with a breakdown by the subject of the complaints) and, among such complaints, the number of those about money changers' failure to execute remittance instructions of their clients, in each month of the past three years; and

(2) how it monitors the remittance service provided by money changers

at present; whether it will step up efforts in monitoring this type of business; if so, of the details; if not, the reasons for that?

SECRETARY FOR FINANCIAL SERVICES AND THE TREASURY (in Chinese): President,

(1) From 2016 to 2018, the Consumer Council received a total of 197 complaints relating to money service operators ("MSOs"), amongst which 118 relate to money changing service, and the remaining 79 relates to remittance service. During the same period, the Customs and Excise Department ("C&ED") received a total of 37 complaints relating to MSOs, amongst which 18 relate to failure to complete remittance transactions for various reasons after MSOs received funds from customers.

(2) Hong Kong currently has a number of legislations regulating MSOs.


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To mitigate the money laundering risk faced by the money service business, the Anti-Money Laundering and Counter-Terrorist Financing Ordinance ("AMLO") (Cap. 615) stipulates that any person who operates a money service business (including money changing service and/or remittance service) in Hong Kong must obtain a licence from C&ED. C&ED may grant a licence to an MSO applicant only if it is satisfied that the applicant and ultimate owners (if any) are fit and proper persons to operate a money service business. If the applicant is a corporation or a partnership, all directors, partners, and ultimate owners (if any) must be fit and proper persons. In deciding whether a person is fit and proper, C&ED must have regard to whether the person has been convicted of an offence relating to money laundering or terrorist financing (including similar offences in other jurisdictions); whether he/she has persistently failed to comply with anti-money laundering/counter-terrorist financing ("AML/CFT") requirements stipulated under AMLO or the AML/CFT Guideline promulgated by C&ED; whether he/she has been convicted for an offence for which it was necessary to find that the person had acted fraudulently, corruptly or dishonestly; whether the person, being an individual, is an undischarged bankrupt or is the subject of any bankruptcy proceedings; and whether the person, being a corporation, is in liquidation or is the subject of a winding up order, etc. In addition to the above, C&ED may consider any other matter that it considers relevant in determining whether a person is fit and proper.

Further, MSOs must comply with other legislations, including those

relating to consumer protection, such as the Trade Descriptions Ordinance ("TDO") (Cap. 362) and the Money Changers Ordinance ("MCO") (Cap. 34). TDO stipulates that any trader (including MSOs) who applies a false trade description to a service supplied or offered to be supplied to a consumer; or supplies or offers to supply to a consumer a service to which a false trade description is applied, commits an offence. MCO requires MSOs which carry out an exchange transaction exceeding HK$100,000 to display net rates of exchange in a visible and legible manner and provide transaction


note to the customer in a prescribed form. MCO also prohibits MSOs from making a false or misleading statement as to the rate of exchange offered. Anyone who suspects an MSO of being involved in fraud or other criminal offences should also report to the Police.

Law enforcement agencies, including C&ED, will investigate

complaints relating to MSOs. Depending on the substance of complaints, matters for investigation may include whether the relevant MSO's mode of business violates TDO or MCO, or whether MSO has violated AMLO. Aside from criminal prosecution under the said Ordinances, if an MSO is convicted of an offence for which it was necessary to find that the person had acted fraudulently, corruptly, or dishonestly, C&ED will also consider whether the person remains a fit and proper person for operating a money service business under AMLO, and revoke MSO licence where appropriate.

Compliance checks and compliance investigations conducted by the Office of the Privacy Commissioner for Personal Data 9. MR LAM CHEUK-TING (in Chinese): President, Cathay Pacific Airways Limited announced on 24 October last year a leakage of the personal data of more than 9 million passengers. The Office of the Privacy Commissioner for Personal Data ("PCPD") announced on the following day and on 5 November respectively that it would initiate a compliance check on the incident and a compliance investigation against the company. Besides, there are comments that the number of compliance investigations initiated and the number of investigation reports published by PCPD in recent years have decreased drastically when compared with those before then. In response, PCPD stated that in accordance with the relevant legislation, a compliance investigation report would only be published where the Privacy Commissioner for Personal Data ("Privacy Commissioner") was of the opinion that it was in the public interest to do so. Upon the completion of significant compliance checks or compliance investigations, PCPD would issue press statements, and receive and respond to media enquiries, thereby achieving the same effect as publishing


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an investigation report without employing the practice of "naming and shaming" the party investigated. In this connection, will the Government inform this Council if it knows:

(1) the differences between a compliance check and a compliance investigation, including those in the areas of the relevant procedure and follow-up actions;

(2) the respective numbers and details (including the topics, the dates on

which the reports were published (if any) and the follow-up actions taken) of the compliance checks and compliance investigations completed by the incumbent Privacy Commissioner and the preceding two Privacy Commissioners during their terms of office;

(3) whether PCPD has assessed if its refrainment from adopting the

practice of naming the organizations that have breached the data protection principles has undermined the effect of making other organizations to stay vigilant that may be achieved by PCPD conducting checks or investigations; and

(4) the criteria adopted by the Privacy Commissioner for determining

whether it is in the public interest to publish a certain compliance investigation report?

SECRETARY FOR CONSTITUTIONAL AND MAINLAND AFFAIRS (in Chinese): President, the Hong Kong Special Administrative Region ("HKSAR") Government is highly concerned about the data breach incident of Cathay Pacific Airways. Currently, the Office of the Privacy Commissioner for Personal Data ("PCPD") has initiated a compliance investigation under section 38 of the Personal Data (Privacy) Ordinance ("PDPO") in the wake of the incident. After consulting PCPD, reply to various parts of the question is as follows:

(1) PCPD has developed a set of procedures for handling data breach incidents. Upon receiving notification on a data breach incident, PCPD will commence a compliance check to find out the facts and ascertain causes of the data leakage, and to evaluate the effectiveness of the remedial actions taken or to be taken by the organizations concerned. PCPD will also advise and assist the organizations


concerned in taking timely remedial measures to protect the interests of those who were affected. Having regard to the result of the compliance check, if the Privacy Commissioner for Personal Data ("Privacy Commissioner") has reasonable grounds to believe that there may be a contravention of the requirements under PDPO, he will initiate a compliance investigation under section 38 of the Ordinance. Privacy Commissioner is empowered under PDPO to summon relevant persons to furnish evidence, enter premises to inspect personal data systems and collect evidence, among others, for the conduct of compliance investigations. Depending on the result of the compliance investigation, PCPD may issue an enforcement notice to the organizations concerned.

(2) The numbers of compliance checks conducted from 2005-2006

onwards, as set out in Annex 1, are summarized as follows:

Compliance check Year Average number of cases per year

2005-2006 to 2009-2010 (5 years) 100

2010-2011 to 2014-2015 (5 years) 180

2015-2016 to 2018 (3 years and 9 months) 272

There are many different types of compliance check cases.

Generally speaking, these cases mainly involve the collection, accuracy, retention, use, access to and security of data in industries such as finance, education, retail, government departments and public organizations.

The numbers of compliance investigations from 2005-2006 onwards

and the investigation reports published in the same period are set out at Annex 2 and Annex 3 respectively. A summary is given below:

Compliance investigation

Year Average number of cases per year 2005-2006 to 2009-2010 (5 years) 4.4


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Compliance investigation Year Average number of cases per year

2010-2011 to 2014-2015 (5 years) 29.8

2015-2016 to 2018 (3 years and 9 months) 22.4

(3) The recent trend of data breach incidents has shifted from mostly

improper collection and use of data in the past to breach of data security, such as data leakage and hacker attacks. The former is more discernible in terms of the nature of and liability for data breach. To facilitate cooperation from the organizations concerned, PCPD has, since 2016, ceased to adopt the "naming and shaming" practice under normal circumstances. By doing so, PCPD has been able to understand the detailed facts as soon as possible and stands a better chance of ascertaining whether there are reasonable grounds for Privacy Commissioner to be of the opinion that there exists a contravention under the Ordinance before a compliance investigation is initiated. It also enables the organizations concerned to take remedial measures for safeguarding data privacy of individuals concerned (customers and consumers) at the earliest possible time. As a regulatory body, PCPD discharges its statutory duties through result-based approaches. Apart from enforcement and sanctions, PCPD also provide organizations with guidance, practical assistance and support on compliance and good practices of data protection.

(4) According to section 48(2) of PDPO, Privacy Commissioner may,

after completing an investigation and if he is of the opinion that it is in the public interest, publish a report setting out the result of the investigation, any recommendations or other comments arising from the investigation as he thinks fit to make. Since there is no definition of "public interest" in PDPO, Privacy Commissioner will, having regard to individual circumstances and section 48(2) of the Ordinance, deliberate on whether to publish an investigation report on compliance investigation while considering judgments and guidelines on relevant cases. Factors for consideration include but are not limited to the following:


(1) the nature and circumstances of the incident in question; (2) the severity of the incident in question, including the amount

and nature of personal data involved, the number of people affected and the impact on them;

(3) whether the incident in question is minor or technical in

nature; (4) the degree of culpability of the offender concerned; (5) whether there is cooperation between the offender and the

regulatory body and whether the offender has demonstrated remorse, made commitment, compensated the victim(s), etc.;

(6) the likely final disposition of the incident in question; (7) whether a new problem is embodied in the incident; (8) whether publishing a report can achieve an educational

purpose or a deterrent effect or prevent the recurrence of similar incidents;

(9) the availability and efficacy of alternatives to publishing a

report, such as cautions, undertakings or other acceptable approaches for handling the incident;

(10) information on the incident in question is available in the

public domain and publishing a report allows the public to learn the truth or play a monitoring role; and

(11) making public the report concerned is conducive to debate

about a matter of common concern. Apart from publishing a report on compliance investigation, PCPD

will also make public the result of completed compliance investigation through its annual report and/or media statements.


5555

Annex 1


Annex 2


5557

Annex 3

Number of Compliance Investigations and Compliance Investigation Reports Published

from 2005-2006 to end of 2018

Compliance Investigation

Compliance Investigation Reports Published by Privacy Commissioner

Year Number Title (Investigation under section 38(b) of the Ordinance) Issue Date

2005-2006 8 1. The practice of collection of employees' personal data by pinhole cameras without proper justification is excessive and unfair in the circumstances of the case

8 Dec 2005

2006-2007 1 1. Must Take Security Measures to Protect Personal Data when Engaging Outsourced Contractor

26 Oct 2006

2007-2008 0 1. Collection of Personal Data by Credit Provider for Business Promotion

21 Sep 2007

2008-2009 7 - - 2009-2010 6 1. Debt Collection Agency authorized

by a Finance Company Disclosed Personal Data of Debtor's Family Members During Debt Recovery

2. Bank Imposing Fee at a Flat Rate for Complying with a Data Access Request

24 Feb 2010

24 Feb 2010

2010-2011 11 1. The Collection and Use of Personal Data of Members under the Octopus Rewards Programme run by Octopus Rewards Limited

18 Oct 2010

2011-2012 9 1. Prolonged Retention of Customers' Bankruptcy Data by Hang Seng Bank Limited

2. Transfer of Customers' Personal Data by CITIC Bank International Limited to unconnected third parties for direct marketing purposes

15 Dec 2011

15 Dec 2011





2012-2013 14 1. The Collection and Use of Personal Data of Members Under the Mann Card Program run by The Dairy Farm Company Limited

2. The Collection and Use of Personal Data of Members Under the Fun Fun Card Program run by The China Resources Vanguard (Hong Kong) Company Limited

3. The Collection and Use of Personal Data of Members Under the MoneyBack Program run by A.S. Watson Group (HK) Limited through "PARKnSHOP"

4. The Collection and Use of Personal Data of Members Under the MoneyBack Program run by A.S. Watson Group (HK) Limited through "Watsons"

11 Oct 2012

11 Oct 2012

11 Oct 2012

11 Oct 2012

2013-2014 13 1. Hospital Authority's breach of data security in connection with disposal of patient records

2. The Hong Kong Police Force leaked internal documents containing personal data via Foxy

3. Hong Kong Police Force's Repeated Loss of Documents Containing Personal Data

24 Oct 2013

24 Oct 2013

24 Oct 2013

2014-2015 102 (71 were blind ad cases)

1. Unfair collection of personal data by the use of "blind" recruitment advertisement

2. Excessive Collection and Online Disclosure of Personal Data by Employment Agencies Placing Foreign Domestic Helpers

29 May 2014

20 Nov 2014


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3. Excessive Online collection of private tutors' personal data by tutorial service agency websites

4. Excessive Collection of Personal Data through the Mobile App "縱橫遊" and the Membership Programme "Worldwide Touring 翱翔天地" by Package Tours (Hong Kong) Limited and Worldwide Package Travel Service Limited

5. HKA Holidays Limited Leaked Customers' Personal Data through the Mobile Application "TravelBud"

20 Nov 2014

15 Dec 2014

15 Dec 2014

2015-2016 76 (59 were blind ad cases)

1. Unfair collection of personal data by the use of "blind" recruitment advertisements

21 Jul 2015

2016-2017 3 - - 2017-2018 1 1. Registration and Electoral

Office―Loss of Notebook Computers Containing Personal Data of Election Committee Members and Electors

12 Jun 2017

2018-2019 Up to 31 Dec 2018

4 - -

Development of the Hong Kong insurance trade in the Guangdong-Hong Kong-Macao Greater Bay Area 10. MR CHAN KIN-POR (in Chinese): President, the Government has indicated that it is committed to promoting the development of Hong Kong insurance trade and enhancing Hong Kong's competitiveness as an insurance


hub. Earlier on, the insurance trade has proposed that the Government establish a "Health Insurance Connect", an online medical insurance sales platform covering the entire Guangdong-Hong Kong-Macao Greater Bay Area ("the Greater Bay Area"), so that Mainland residents in the Greater Bay Area can complete the procedure for taking out insurance and lodging claims with Hong Kong insurance companies through the Internet without the need to come to Hong Kong. The platform is proposed to be a closed system under which the premiums paid by Mainland policyholders to Hong Kong insurance companies will be used in future as funds for settling such persons' claims or paying bonuses to them. This will ensure that such funds will be retained within the Mainland financial system, thereby addressing the Mainland authorities' concern about an outflow of funds. In this connection, will the Government inform this Council:

(1) of the progress of the study by and discussions between Hong Kong's and the Mainland's authorities concerning the Health Insurance Connect;

(2) of the new measures to assist Hong Kong insurance trade in

developing businesses in the Greater Bay Area, and the implementation timetable for such measures; and

(3) whether it will consider allocating additional resources to subsidize

the insurance trade in adopting innovative technologies and providing relevant staff training, so as to enhance the competitiveness of the industry?

SECRETARY FOR FINANCIAL SERVICES AND THE TREASURY (in Chinese): President, our response to the various parts of the question is as follows:

(1) and (2) We are committed to facilitating the Hong Kong insurance industry

to capitalize on the business opportunities arising from the Guangdong-Hong Kong-Macao Greater Bay Area ("GBA") development and better serve the needs of people in GBA. Taking into account the industry's views, we are pursuing with the relevant


5561

Mainland authorities the proposals of enabling Hong Kong insurance companies to set up insurance service centres and facilitating cross-boundary sale of Hong Kong insurance products including health insurance products in GBA through "Insurance Connect".

Currently, the Insurance Authority ("IA") is exploring with the China

Banking and Insurance Regulatory Commission the possible framework to implement the two proposals. There is no implementation table for the time being because it will take time to resolve the differences in the legal and regulatory systems of the two jurisdictions.

(3) IA has facilitated the adoption of innovation and technology by the

insurance industry through launching the Insurtech Sandbox and Fast Track in September 2017. Specifically, the Insurtech Sandbox allows authorized insurers to experiment innovative insurance technology and other technology projects on a pilot basis to collect data to demonstrate that the innovative application could broadly comply with the supervisory requirements of IA. The Fast Track offers an expedited and streamlined process in IA's authorization of new applications from insurers adopting solely digital distribution channels. In December 2018, IA granted the first authorization of a new insurer owning and operating solely digital distribution channels under the Fast Track.

In addition, there are existing government funding schemes to

promote the adoption of innovation technology which are open to the insurance sector. On training, under the Pilot Programme to Enhance Talent Training for the Insurance Sector, industry associations are welcome to apply for funds to organize training to enhance industry practitioners' capability to adopt innovation technology.

Commodities seized by the Customs and Excise Department 11. MR CHU HOI-DICK (in Chinese): President, the Import and Export Ordinance (Cap. 60) imposes controls on the import or export of strategic commodities. Moreover, in accordance with the United Nations Sanctions


Ordinance (Cap. 537) and the relevant regulations, Hong Kong enforces sanctions imposed by the Security Council of the United Nations against certain countries. It was reported that when the authorities of the United States ("US") announced, in 2016, the imposition of export restrictions on ZTE Corporation ("ZTE"), they had made public some internal confidential documents of ZTE which revealed ZTE's violation of US's export bans. It was mentioned in one of the documents that in 2008, as ZTE had violated Hong Kong's export control laws (made in line with the US laws), there were four separate occasions on which ZTE's cargos were seized and confiscated by the Customs and Excise Department ("C&ED") and ZTE was fined. In this connection, will the Government inform this Council:

(1) of the details of the aforesaid four occasions of cargo seizure (set out in Table 1);

Table 1

Date

of seizure

Details of commodities Ordinance allegedly violated

Penalty/amount of fine

Name of

owner of commodities

Description and model

number

Quantity and total value

Category of controlled

commodities

Place of

origin

Destination of export/ re-export

1 2 3 4

(2) of the respective numbers of cases of suspected violation of export

control requirements in respect of which C&ED (i) conducted investigations and (ii) instituted prosecutions in the past five years, and the details of such cases (set out in Table 2 and Table 3); and

Table 2: Details of investigation cases

Date

of

seizure

Details of commodities

Ordinance

allegedly

violated

Description

and model

number

Quantity

and total

value

Category

of

controlled

commodities

Place

of

origin

Destination

of

export/re-export


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Table 3: Details of prosecution cases

Date of

seizure

Details of commodities Ordinance allegedly violated/ found to

have violated

Details of penalty

(if convicted)

Name of owner of

commodities

Description and model

number

Quantity and total value

Category of controlled

commodities

Place of

origin

Destination of export/ re-export

(3) among the investigation and prosecution cases mentioned in (2), of

the number and details of those cases which involved the violation of the export requirements by exporting or re-exporting telecommunications products to Iran (set out in Table 4)?

Table 4

Date of

seizure

Description and model number of the

telecommunications products

Quantity and total value of the products

Place of

origin

SECRETARY FOR COMMERCE AND ECONOMIC DEVELOPMENT (in Chinese): President, Hong Kong implements strategic trade control in accordance with the Import and Export Ordinance (Cap. 60, Laws of Hong Kong) ("Ordinance"). The Ordinance stipulates that the import, export and transhipment of strategic commodities are subject to licensing control. More sensitive items, despite being article-in-transit, also require to be covered by import and export licences. Any person who imports or exports strategic commodities without a valid import or export licence commits an offence and is liable to an unlimited fine and to imprisonment for seven years on conviction. Offending strategic commodities seized are also subject to mandatory forfeiture. The Hong Kong strategic trade control lists are drawn up on the basis of the control lists adopted by relevant international non-proliferation regimes and conventions, and are set out in detail in the Schedules to the Import and Export (Strategic Commodities) Regulations (Cap. 60G, Laws of Hong Kong). The Government has all along implemented trade control on strategic goods in accordance with Hong Kong laws, and such efforts have been recognized and respected by our trading partners. Hong Kong will continue to maintain our


robust trade control system in accordance with the law. Our law enforcement agencies will continue to conduct investigation in an impartial manner and in accordance with the law on any cases of suspected violation of the Ordinance. Individual countries may, based on their own consideration, implement unilateral control against certain other countries on products not set out in Hong Kong's strategic trade control lists. Hong Kong does not have the responsibility nor the legal basis to implement such unilateral controls. Our replies to the three parts of the question are as follows:

(1) The Government does not comment on individual cases. (2) The Government does not comment on individual cases. Statistics on strategic commodity-related enforcement in the past

five years, i.e. 2014 to 2018, is tabulated below:

2014 2015 2016 2017 2018 Number of licence verifications 2 732 3 090 2 899 3 046 3 527 Number of investigation cases 204 179 192 231 285 Number of prosecution cases 23 62 45 33 49 Fine (in HK$ million) 0.85 3.58 1.18 0.75 0.94 Value of forfeited goods (in HK$ million)

0 0.98 10.93 1.17 1.45

(3) In the past five years, i.e. 2014 to 2018, there was no strategic

commodity-related prosecution case which involved export or re-export of telecommunication products to Iran.

Promoting the development of renewable energy 12. MR MARTIN LIAO (in Chinese): President, to promote the development of renewable energy ("RE"), the Government has introduced the Feed-in Tariff ("FiT"). It has been reported that following the authorities' relaxation of the height restriction on the solar photovoltaic ("PV") systems to be installed on rooftops of village houses, there has been a surge in the number of FiT


5565

applications. Nevertheless, quite a number of applications have been hindered by issues such as the proposed generating capacity has exceeded the current capacity of the power grids for supplying electricity to the customer or district concerned, resulting in certain FiT applications being approved with a lower generating capacity only. This has seriously upset the plans of the applicants and the relevant industries and even dampened their desire to develop RE for electricity generation. In this connection, will the Government inform this Council:

(1) if it knows, since the introduction of FiT, (i) the respective numbers of applications received by each power company, (ii) the vetting and approval status of the applications (including having been approved, being processed, having been rejected, etc.), (iii) the customer category to which the applicants belonged, (iv) the category of RE (i.e. solar energy or wind energy) involved, and (v) the number and details of the applications for which revisions to the scale of electricity generation were necessary (including the originally proposed generating capacity, the revised generating capacity as requested by the power company concerned, and the reasons for the revision);

(2) whether it envisaged, when considering and formulating FiT, the

issue that the generating capacities of some applications need to be lowered as appropriate because they are too large; if so, of the details (including the percentage of the relevant cases and their impact on the output of electricity to be generated by RE) and the solutions;

(3) whether targeted improvement measures are in place to address the

issues mentioned in (2); if so, of the details (including actions to be taken and the timetable); if not, the reasons for that; and

(4) as the Government has recognized that promoting the development

of RE is an integral part of mitigating climate change, whether the authorities will consider adopting more aggressive measures to encourage the installation of solar PV systems in all suitable buildings and promote the healthy development of local RE industries like the solar energy industry, such as by making reference to the policies and measures implemented in other countries and regions for supporting the development of the solar


power generation industry and streamlining the application procedure for installing solar PV systems on building rooftops under the premise of conformity with the safety principles, offering tax concessions to households which have installed such systems, promoting the development of the leasing market for such systems, and setting up investment funds for subscription by the public for developing RE industries; if so, of the details; if not, the reasons for that?

SECRETARY FOR THE ENVIRONMENT (in Chinese): President,

(1) CLP has started receiving applications for the Feed-in Tariff ("FiT") Scheme since May 2018, and officially commenced the Scheme since October 2018. According to the information provided by CLP, as at end 2018, CLP has received over 1 400 FiT applications among which 98% involve solar renewable energy ("RE") systems and the remaining 2% are wind and wind/solar hybrid RE systems. Among the applications received, over 70% involve installation of the RE systems at residential premises and over 20% involve that at non-residential premises. Among the above mentioned applications, the RE systems in 78 applications have already been connected to the CLP's network and FiT payment is being received for the electricity generated by such systems. For the remaining applications, CLP has initially approved(1) about 80% and has not rejected any applications as at today. In addition, among the applications received, the generating capacity approved in about 160 applications is lower than that applied with details as follows:

Reduction in the Generating

Capacity Approved when Compared to the Generating Capacity Applied

Percentage (About 160 Applications in

Total) >0%-≤40% 33% >40%-≤70% 30%

>70%-<100% 37% (1) Applications which have been initially approved refer to those applications which have

been accepted by the power companies and the applicants have been notified of the applicable FiT rates; and applicants can commence installing the RE systems.


5567

CLP needs to adjust the generating capacity in individual applications mainly due to the following three reasons:

(i) The systems under application are located outside the existing

network (such as uncultivated land). If a network has to be laid, the network may have to route through undeveloped land and road, and the works and applications involved will be complicated and time-consuming. Moreover, the addition of a network involves relatively large amount of investments, and must also take into account the maintenance of a safe and reliable power supply;

(ii) There are only basic power supply facilities (such as overhead

electricity lines) in the areas where the systems under application are located and the capacity for supplying electricity of the network concerned cannot support the capacity of the systems under application. Enhancement of the network may also be subject to physical constraints (such as in cases where electrical cables have to be laid on private land, consent of the owner(s) of the site(s) concerned have to be obtained; and there may not be sufficient space to accommodate electrical cables with higher capacity if the underground space concerned has already been fully occupied by the facilities of other public utilities, etc.); and

(iii) Connecting RE system with a larger capacity or many smaller

RE systems densely within the same area to a CLP's network will increase the supply voltage and may even exceed the allowable voltage limit of the existing power supply facilities within the area. This may result in voltage instability, and may ultimately affect the stability of power supply to other customers of the same area.

HEC has started receiving applications for FiT Scheme since August 2018, and officially commenced the Scheme since January 2019. According to the information provided by HEC, as at end 2018, HEC has received over 60 FiT applications among which 98% involve solar RE systems and the remaining 2% are wind/solar hybrid RE systems. Among the applications received, applications involving


installation of RE systems at residential and non-residential premises each accounts for about half of the applications. Among the above mentioned applications, the RE systems in seven applications have already been connected to the HEC's network and FiT payment is being received for the electricity generated by such systems. For the remaining applications, HEC has approved about 20%. As at today, HEC has neither rejected any applications nor adjusted the generating capacity of any applications.

(2) and (3)

FiT is a newly introduced measure in Hong Kong and there are inevitably some issues which have to be dealt with by the power companies in the initial period of implementation. In introducing the FiT Scheme, power companies also have to maintain the safe and reliable power supply at the same time; and those individuals and organizations interested in the FiT Scheme would also need some time to familiarize with the Scheme's and operational details.

Before the introduction of the FiT Scheme, CLP has already expected that the generating capacity in some individual cases may be too large and have to be adjusted. Therefore, CLP has already clearly stipulated the eligibility requirements in the application information on its FiT Scheme, including the total generating capacity of the RE systems to be connected to the network should be up to 1 MW; and the systems can be connected to the CLP's network without the need to increase the capacity of or reinforce the network by CLP, At present, the number of applications in which the generating capacity approved by CLP is lower than that applied amounts to about 10% of the total applications received. There are different reasons for having to adjust the generating capacity in different cases. CLP has already arranged dedicated customer service managers to follow up each application, and suggest different technical solutions with a view to resolving the matter, including carefully consider the electricity demand arising from the development of the areas concerned (including the demand for the RE development) having regard to individual circumstances, and


5569

consider whether and if so how to lay or reinforce network. If the solution involves laying or reinforcing the network, apart from considerations on cost-effectiveness and impact on tariff, the works and applications involved will be complicated and time-consuming, and will not be completed within a short time frame.

We have already expressed concern on CLP's adjustment of the generating capacity in individual FiT applications, and are further obtaining information on their approval criteria and follow-up work. We will continue to closely monitor the implementation of the FiT Scheme and solicit the views of stakeholders, and proactively discuss with the two power companies to address the relevant issues with a view to improving the arrangements of the Scheme such that the Scheme can assist in combating climate change through facilitating the private sector in developing RE.

(4) We have already announced under the 2018 Policy Address that the

Government will continue to take the lead to develop RE in a systematic manner so as to reduce carbon emissions thereby mitigating climate change.

For the public sector, we have earmarked $1 billion to support the development of small-scale RE projects by bureaux and departments. As for large-scale RE projects, we are taking forward installation of large-scale solar photovoltaic ("PV") systems at suitable locations in reservoirs and landfills.

For the private sector, we have been creating the conditions that are conducive to encouraging the private sector to consider adopting RE. Apart from providing financial incentives through the introduction of the FiT Scheme, we have also recently introduced a series of new initiatives to provide further support and facilitation to individuals and organizations who/which wish to develop RE. For example, we have suitably relaxed the restrictions such that subject to the fulfilment of specified conditions, solar PV systems including its supporting structures with height not higher than 2.5 m can be installed on the rooftop of New Territories Exempted Houses without seeking the permission from the Lands Department or the Buildings Department ("BD"). As for owners of other private


buildings, apart from erecting structures for supporting PV systems in accordance with the specific minor works items under the existing Minor Works Control System ("MWCS"), they may also appoint an Authorized Person to submit building plans for the BD's approval on the erection of PV system supporting structures if such exceed the 1.5 m height requirement under MWCS. Subject to the design and relevant circumstances, BD may consider disregarding the space occupied by the systems in the calculation of total gross floor area. In addition, we are pursuing legislative amendments to provide exemption from the requirements to apply for business registration and pay profits tax in respect of participation in and the payments received under the FiT Scheme, introducing a programme to assist schools (except government and profit-making schools) and non-governmental welfare organizations in installing small-scale RE systems, revamping the HK RE Net and setting up an enquiry hotline, etc. We have also noticed that there are companies providing individuals or organizations with different models of investment in solar PV systems. Individuals or organizations who/which wish to develop RE may consider different modes of participating in the FiT Scheme having regard to their own circumstances.

We will continue to encourage stakeholders to participate in the development of RE, and liaise with them to understand the concerns of different sectors and formulate further facilitation and support measures to address these concerns such that we may better encourage the realization of RE potential in different sectors of the community.

Use of force by police officers while discharging duties 13. DR CHENG CHUNG-TAI (in Chinese): President, it has been reported that in 2012, a taxi driver who became agitated and kept struggling when being arrested was dragged, by means of holding in a headlock, into a police car by police officers. The driver consequently suffered from a cervical vertebra dislocation and died after hospitalization for about one month. In October last year, a Coroner's Court held an inquest into the cause of death of that driver and the jury returned a verdict that he was "unlawfully killed". On the other hand,


5571

the Police have formed a working group dedicated to following up how the guidelines, procedures and training on the use of force can be improved. Regarding the use of force by police officers while discharging duties, will the Government inform this Council:

(1) given that the jury of the aforesaid death inquest has made four

recommendations, including installing closed-circuit television cameras with voice recording function inside Emergency Unit vehicles and providing police officers with training on the technique for transferring arrested persons to police cars, whether the Police will adopt these recommendations;

(2) whether the Police will enhance the training of police officers,

particularly young officers who have left the Police College not long ago, on how to control their emotions properly while discharging duties and exercise a high level of restraint in using force; and

(3) whether the Police will, in the light of the outcome of the aforesaid

death inquest, update and make public the guidelines for police officers on the use of force?

SECRETARY FOR SECURITY (in Chinese): President, with regard to the question by Dr CHENG Chung-tai, the reply of the Security Bureau is as follows:

(1) The jury of the death inquest made the following four recommendations:

(i) installing closed-circuit television with voice recording

function inside Emergency Unit vehicles; (ii) training police officers on the technique of carrying arrested

persons to police cars; (iii) unless refused by the arrested persons, the Police should

promptly inform their family members of their being arrested; and

(iv) in the course of arresting, should police officers become aware that they may have caused injury to the arrested persons, they should inform health care personnel and give details of the areas of possible injury as soon as possible.


Regarding the recommendation on installing closed-circuit television inside Emergency Unit vehicles, besides police officers and arrested persons, such vehicles are also used to transport other persons, such as witnesses and victims. Therefore, the Police must carefully assess the purpose and necessity of the measure as well as the consideration for privacy protection. The Police have set up a working group to further examine the recommendation. Meanwhile, the Police will also draw reference from relevant overseas experience and consult the Department of Justice where necessary.

Regarding the recommendation of providing police officers with training on the technique for carrying arrested persons, currently every newly recruited or serving police officer must undergo rigorous training on the use of force, including how to handle suspects resisting arrest as well as the basic technique and method for carrying arrested persons under normal situation. The Police will continue to explore the jury's recommendation in this regard with a view to catering for the officers' needs in handling different situations.

Lastly, the Coroner's Court recommended that the Police should inform the family members of the arrested persons as soon as possible and notify health care personnel promptly as and when necessary.

Currently, the Police have in place established procedures and guidelines on the handling of arrested persons. The Police will, as soon as possible, inform the arrested person of the fact that he/she is under arrest, as well as the factual grounds and the reasons for the arrest. A notice listing the rights of an arrested person will be served on and signed by every arrested person. It is also specified in the notice that an arrested person has the right of requesting the Police to inform his/her friends or relatives of his/her detention at a police station. An arrested person will also be given a reasonable opportunity to make a phone call to a friend or relative and be visited. An arrested person has the right to not inform his/her friend or relative, for example, an arrested person allegedly involved in sexual offence may choose not to inform his/her family member.


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The Police respect the rights of arrested persons and will ensure that they have the right of receiving medical attention. If an arrested person is injured on the spot or during the arrest, arrangement will be made to send him/her to the hospital directly. If he/she needs to be hospitalized and requests to inform his/her friends or relatives accordingly, appropriate arrangements will be made by the Police. If he/she has lapsed into a coma and is not accompanied by friends or relatives, the Police will normally ascertain his/her identity and try their best to notify his/her friends or relatives as early as possible.

Relevant formations of the Police will continue to study and follow up the recommendations of the Coroner's Court proactively.

(2) Starting from foundation training, new recruits are provided with

courses on policing psychology, emotion regulation and stress management. In addition, the Police also provide psychological competency training in development and promotion courses and training days conducted by respective formations, etc., which covers various aspects such as conflict management, emotion regulation and adjustment, and stress management.

To further strengthen the training, the Police College conducted workshops on Emotional Fitness for officers of the ranks from Police Constable to Commissioner Rank Officer on a comprehensive scale starting from 2014, with a view to promoting among officers resilience and good psychological quality. The Police College has produced a total of six training day packages, providing all police officers with continuous training in emotion management.

The Police's training in psychological quality and stress management has been incorporated into a number of courses and covers different ranks. The modes of teaching are also well diversified, covering lectures, tutorials, simulation training, e-learning, field training and mobile applications. The Police College will review from time to time the contents of training, and design and provide additional thematic training for police officers based on operational and training needs in a timely manner.


Regarding the use of force, every newly recruited or serving police officer has to go through rigorous training on the use of force, so that they may fully understand how to use different levels of force in a safe and effective manner, including the use of verbal advice/verbal control, empty-hand control, oleoresin capsicum foam, batons and firearms, as a means to achieve the relevant lawful purpose. Police officers will exercise a high level of restraint at all times and cease to use force once the purpose is achieved.

(3) The Police have established guidelines on the use of force. Police

officers will use minimum force as appropriate only when it is absolutely necessary and there are no other means to accomplish the lawful duty. Police officers will give verbal warning prior to the use of force as far as circumstances permit, while the person(s) being warned will be given every opportunity, whenever practicable, to obey police orders before force is used. Once that purpose is achieved, the Police will cease to use force.

The Police review their operational contingency strategies, guidelines and training from time to time. A working group led by an Assistant Commissioner and comprising staff and departmental representatives was formed in November 2017 to follow up matters relating to the modification of guidelines, procedures and training on the use of force. The work of the working group is currently in progress.

Since the Police's guidelines on the use of force involve operational details and the Police's tactical deployments, it is not appropriate for disclosure or else it may undermine the capability and efficacy of Police operations.

Employment of persons with disabilities 14. MR LEUNG CHE-CHEUNG (in Chinese): President, some groups have relayed to me that the employment support currently provided by the Government for persons with disabilities ("PWDs") is inadequate, and quite a number of PWDs have still been unsuccessful in securing employment several years after


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graduation from tertiary institutions. Moreover, quite a number of PWDs who had secured employment through the Work Orientation and Placement Scheme ("WOPS") were dismissed immediately after the end of the nine-month payment period of the government allowance. In this connection, will the Government inform this Council:

(1) whether it knows (i) the respective rates of employment, unemployment and underemployment of PWDs, and (ii) the number of PWDs with tertiary education qualifications and their respective rates of employment, unemployment and underemployment, in each of the past five years;

(2) of the top three government departments with the highest

percentages of the number of PWDs in the total number of employees in each of the past five years;

(3) of the respective numbers and percentages of government job

vacancies filled by PWDs who were (i) transferred from other posts in the Government and (ii) appointed through open recruitment processes, in each of the past five years;

(4) of the respective numbers of PWDs and employers who were

provided with employment and recruitment services by the Selective Placement Division of the Labour Department, and the number of PWDs who secured employment through such services, in each of the past five years;

(5) of the total amount of allowance granted under WOPS in each of the

past five years to employers who were employing PWDs; the number of PWDs in the past two years who stayed in employment for more than 10 months after securing employment through WOPS;

(6) of the number of PWDs who underwent productivity assessments and

were issued with a Certificate of Assessment on the Degree of Productivity each year since the implementation of the Statutory Minimum Wage ("SMW") regime in May 2011;


(7) given that a PWD may choose to reach an agreement with an employer under which he accepts the arrangement for undergoing a trial period of employment of not more than four weeks, and the level of the wage paid by the employer to such an employee during the period must not be lower than 50% of the SMW rate, whether the Government knows, among the PWDs mentioned in (6), the number of those who, based on the assessment results, were entitled to wages at a level higher than 50% of the SMW rate; and

(8) whether the Government will consider, by following the practices in

some Mainland provinces and municipalities and overseas countries, taking the lead in introducing an employment quota system for PWDs in government departments?

SECRETARY FOR LABOUR AND WELFARE (in Chinese): President, having consulted the relevant bureaux and departments, I provide a consolidated reply to the Member's question as follows:

(1) In accordance with a territory-wide survey conducted throughout 2013 by the Census and Statistics Department ("C&SD") on persons with disabilities and chronic diseases, it was estimated that 13.6% of persons with disabilities aged 15 and above were employed in that year, higher than the rate in 2006-2007 (11.8%). Besides, the unemployment rate of this group of persons was 6.0% in 2013, lower than that in 2006-2007 (10.5%). As the prevalence rate of persons with disabilities will not change drastically over a short period of time, C&SD conducts the above survey once every six to seven years. Owing to sample size constraint, information on the corresponding underemployment rate is not available from the survey.

In 2013, there were 43 900 persons with disabilities aged 15 and above holding post-secondary qualifications, of which 34.7% were employed. The corresponding figures in 2006-2007 were 22 400 persons and 36.7%. Owing to sample size constraint, information on the unemployment and underemployment rates of persons with disabilities holding post-secondary qualifications is not available from the survey.


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(2) The Agriculture, Fisheries and Conservation Department, Companies Registry and Drainage Services Department are the top three government departments with the highest rates of employing persons known to have disabilities (excluding colour blindness or defective colour perception) as civil servants in each of the past five years (i.e. from 2013-2014 to 2017-2018).

(3) There is no requirement for applicants for government jobs to

declare their disabilities, if any. The situation of applicants with disabilities is known to the Civil Service Bureau on the basis of the information available to bureaux/departments ("B/Ds") during the recruitment process (e.g. through requests of applicants made to recruiting B/Ds for making special arrangements during selection interview/test having regard to their disabilities). Hence, the figures obtained through the aforesaid channel by the Civil Service Bureau might be lower than the actual figures. According to the data collected from that channel, the number of new recruits known to have disabilities and their percentage in the total number of new recruits in each of the past five years (i.e. from 2013-2014 to 2017-2018) are set out below:

Year 2013-2014

2014-2015

2015-2016

2016-2017

2017-2018

Number of new recruits known to have disabilities*

80 58 83 49 74

Total number of new recruits in the civil service

8 460 7 717 9 854 8 947 12 041

Percentage 0.9% 0.8% 0.8% 0.5% 0.6% Note: * Excluding persons who declared to have colour blindness or defective

colour perception.

The above only covers the figures of new recruits in the civil service. The Government does not collect data about civil servants with disabilities on in-service transfer.


(4) The Labour Department ("LD") provides recruitment and employment services for employers and job seekers with disabilities who are suitable for open employment. In the past five years (i.e. from 2014 to 2018), there were respectively 4 560, 5 042, 5 306, 5 614 and 4 939 private organizations offering the LD job vacancies for persons with disabilities. During the same period, there were respectively 2 650, 2 720, 2 790, 2 833 and 2 766 job seekers with disabilities registering with LD for employment services, whereas LD recorded 2 464, 2 401, 2 250, 2 203 and 2 219 placements respectively for persons with disabilities.

(5) LD implements the Work Orientation and Placement Scheme

("WOPS") to encourage employers to hire job seekers with disabilities and provide them with coaching and support through the provision of an allowance. In the past five years (i.e. from 2014 to 2018), the annual total amounts of allowance payable to eligible employers under WOPS were $11.20 million, $12.22 million, $12.19 million, $13.11 million and $10.82 million respectively. Among the 802 WOPS placements in 2017(1), there were 263 cases where the employees with disabilities were employed for over 10 months.

According to the information available to LD, employment contracts under WOPS were terminated mostly owing to the resignation of employees with disabilities. Dismissal by employers only accounted for a minority of the termination cases, and there was no significant increase in the number of termination cases after the expiry of the allowance period. The main reasons for employees with disabilities to resign were their inability to adapt to the new job, their wish to change to a new working environment and their finding a better job. On the other hand, employers dismissed employees with disabilities mainly because of the latter's performance issues.

(1) As most of the employees with disabilities placed in 2018 are still being employed under

WOPS with employment period less than 10 months, the relevant information for 2018 is not yet available.


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(6) Figures on the number of employees with disabilities who completed the productivity assessment under the Statutory Minimum Wage ("SMW") regime with the award of the Certificate of Assessment on the Degree of Productivity of Persons with Disabilities ("the certificate") in each of the past five years (i.e. from 2014 to 2018) are set out below:

Year Number of employees with disabilities 2014 70 2015 79 2016 45 2017 41 2018 31

(7) Where an employee with disabilities has received the productivity

assessment under the SMW regime, the employer concerned is required under the Minimum Wage Ordinance to pay the employee a wage no less than the amount determined according to the wage rate commensurate with the degree of productivity stated in the certificate. Among the employees with disabilities mentioned in part (6) above, over 99% were assessed as having productivity of above 50%, i.e. they were entitled to wages at a level higher than 50% of the SMW rate.

(8) At present, the Civil Service Bureau has no plan to set an upper or

lower limit for employing persons with disabilities as civil servants. The Government's policy is to ensure that persons with disabilities, like other applicants, enjoy equal opportunities in applying for government jobs by putting in place appropriate measures to facilitate their participation in the recruitment process, and give them an appropriate degree of preference for appointment.

Shortage of public light bus drivers 15. MR FRANKIE YICK (in Chinese): President, some public light bus ("PLB") trade organizations have relayed that they are unable to recruit sufficient PLB drivers. As a result, the succession and ageing problems of the


drivers (whose current average age is 69) have become increasingly serious, and more than 10% of PLBs are left idle due to a lack of drivers, thereby affecting PLB services. Regarding the shortage of PLB drivers, will the Government inform this Council:

(1) of the number of holders of valid PLB driving licences and, among

them, the number of those who were new holders of the driving licence, at the end of each of the past five years, with a tabulated breakdown of such numbers by the age group (i.e. 29 or below, 30 to 39, 40 to 49, 50 to 59, 60 to 69, 70 to 79 and 80 or above) to which the holders belonged at that time;

(2) whether it will provide subsidies for the fees of PLB driving courses,

PLB driving tests and the pre-service course for PLB drivers, so as to attract new blood for the industry;

(3) of the measures taken by the Government in the past three years to

assist PLB operators in recruiting drivers, as well as the details and effectiveness of each of such measures; and

(4) whether it will consider, as a short-term measure to address the

problem of manpower shortage of drivers, allowing the PLB trade to import, at salaries not lower than those of local PLB drivers, drivers from outside Hong Kong to drive green minibuses; if so, of the details; if not, the reasons for that?

SECRETARY FOR TRANSPORT AND HOUSING (in Chinese): President, the Government has been highly concerned about the manpower situation of the transport industry, including the public light bus ("PLB") trade, and has been striving to assist the trade in improving the working environment and remuneration packages so as to attract new blood and alleviate the problem of manpower shortage. My reply to the various parts of Mr Frankie YICK's question is as follows:

(1) The number of holders and new holders of a PLB driving licence by age group as at 31 December in each of the past five years is tabulated at Annex.


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(2) to (4) As at 31 December 2018, there are a total of 3 295 green minibuses ("GMBs") and 1 028 red minibuses ("RMBs") in Hong Kong, while there are a total of around 175 000 holders of a valid full driving licence for PLB. Holders of a valid full driving licence for PLB may work as a GMB or RMB driver. The key to alleviating the problem of manpower shortage in the PLB trade lies in how to attract more people (especially younger people) to the trade.

In this connection, the GMB operators have been attracting new blood through different means, including improving salaries and benefits, and hiring part-time drivers to meet service demand during peak hours, etc. Meanwhile, the Government is committed to facilitating the overall development of the industry and assisting the trade in recruiting drivers. The Transport Department ("TD") has been proactively coordinating GMB operators to participate in job fairs organized by the Labour Department ("LD") since 2013. So far, about 21 such job fairs have been held. TD also assists in liaising with relevant support organizations and the Correctional Services Department with a view to encouraging the operators to employ members of the ethnic minorities and rehabilitated persons.

The rest time arrangements for drivers are equally important. In mid-August 2017, TD put into effect an updated version of the Guidelines on Working Hours of Green Minibus Drivers ("Guidelines"), providing guidance on the daily maximum duty hours and driving hours for drivers. From time to time, TD reminds operators of the importance of drawing up work arrangements for their drivers according to the Guidelines.

Moreover, TD also strives to improve the operating environment for the trade with a view to enabling the trade to offer better remuneration packages to attract new blood. Measures include increasing the maximum seating capacity of PLBs so as to raise the overall carrying capacity; relaxing or rescinding passenger pick-up/drop-off restricted zones and prohibited zones at certain locations in the light of the actual situation of the trade; allowing PLBs to park at PLB stands during non-peak periods; and extending the validity period of the PLB driver identity plates, etc. These


measures aim to improve the overall operating environment of the trade. If the PLB operators have to apply for fare increase on the account of rising costs (including cost of salaries), TD will consider the applications on individual merits.

Meanwhile, to attract more young drivers to join the industry, the Government proposes to relax the current requirement for applications of learners' or full driving licences for commercial vehicles to have held a valid driving licence of private car ("PC") or light goods vehicle ("LGV") for a period of at least three years to at least one year.(1) Earlier on, the Government consulted the transport industry, the Panel on Transport of the Legislative Council and the Road Safety Council on the proposal and their views were generally positive. The Government will introduce the relevant legislative proposal into the Legislative Council within 2018-2019 legislative session.

At present, the Employees Retraining Board runs a Pre-service Course for PLB Drivers under its "Skills Upgrading Scheme Plus". Eligible low-income applicants may apply for course fee subsidy under the Scheme.

On the suggestion to import labour, to ensure local workers enjoy priority in employment and to safeguard their salaries and benefits, in the event that employers are genuinely unable to recruit the necessary workforce locally, they may apply under the "Supplementary Labour Scheme" administered by LD to import workers at technician level or below. As the proposal to import labour will have implications on the livelihood of local drivers and the difference in the driving culture of foreign drivers may have potential implications on road safety, we must consider the case carefully.

(1) If an applicant needs to undergo the probationary driving period, he/she will be eligible to

apply for a learner's or full driving licence for commercial vehicles immediately upon issue of the full driving licence for PC or LGV after completion of the minimum one-year probationary driving period; if the applicant does not need to undergo probationary driving period (for example, persons who obtained full driving licences by direct issue), he will be eligible to apply for the two aforementioned types of commercial driving licences after having held the full driving licence for PC or LGV for at least one year.


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The Government is willing to formulate strategies together with the trade, and will facilitate the trade at policy level where practicable and desirable. We also hope that the trade will strive to improve the working environment and remuneration packages to improve the manpower situation.

Annex

Number of holders of valid full driving licence for public light bus in the past five years

(as at 31 December of each year)

Age Group 2014 2015 2016 2017 2018 29 or below 2 573 2 132 1 660 1 282 1 027 30-39 19 114 17 974 16 241 14 721 13 021 40-49 38 247 36 173 34 283 32 157 30 596 50-59 68 072 67 336 65 443 61 851 57 846 60-69 47 524 51 693 55 373 56 705 57 369 70-79 7 320 8 016 9 378 11 113 13 419 80 or above 791 932 1 078 1 210 1 338

Number of new holders of valid full driving licence for public light bus in the past five years

(as at 31 December of each year)

Age Group 2014 2015 2016 2017 2018 29 or below 556 363 138 162 198 30-39 932 678 262 308 364 40-49 875 576 355 361 449 50-59 609 462 342 347 352 60-69 75 64 89 75 62 70-79 2 1 3 3 0 80 or above 0 0 0 0 0


Importation of care workers under the Supplementary Labour Scheme 16. MR HO KAI-MING (in Chinese): President, will the Government inform this Council of the respective numbers of applications (i) received and (ii) approved in the past five years which were made under the Supplementary Labour Scheme for importation of care workers for residential care homes for the elderly; in respect of the applications approved, a breakdown of the number of care workers by education level and type of qualifications, as well as their current median monthly wage? SECRETARY FOR LABOUR AND WELFARE (in Chinese): President, my reply to Mr HO's question is as follows: From 2013 to 2017, employers of the elderly care service sector applied to import 1 069, 1 885, 1 361, 2 039 and 1 694 care workers respectively under the Supplementary Labour Scheme ("SLS"). The numbers of imported care workers approved in these five years were 651, 1 377, 1 035, 1 383 and 1 510 respectively. The collation of relevant statistics of 2018 will be completed in the first quarter of 2019. The vetting of applications received towards year-end may be completed in the following year, and hence the number of imported workers approved in the year does not correspond to the number of imported workers applied for in the same year. The Labour Department does not have information on the educational attainment or qualifications of imported care workers employed by employers. According to the requirements under SLS, employers should pay wages to imported workers at a level no less than the median monthly wages of local workers in comparable positions. According to statistics of the Census and Statistics Department, the current median monthly wage of care worker post is $13,000. Injuries sustained to an employee when travelling between his place of residence and his place of work 17. MR LUK CHUNG-HUNG (in Chinese): President, under the Employees' Compensation Ordinance (Cap. 282), when a Tropical Cyclone Warning Signal No. 8 or above or a Red/Black Rainstorm Warning Signal is in force, an employer


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is liable to pay compensation if his employee sustains an injury or dies as a result of an accident while travelling by a direct route from his place of residence to his place of work within a period of four hours before the time of commencement of his working hours for that day, or from his place of work to his place of residence within a period of four hours after the time of cessation of his working hours for that day. In this connection, will the Government inform this Council:

(1) whether the Labour Department will compile statistics on the

following: the respective numbers of accidents occurring to employees while (i) at work and (ii) commuting to and from work when the aforesaid warning signal(s) is/are in force, and a breakdown of those numbers by type of accidents as well as by the industry and type of work in which the employees are engaged; and

(2) given that the aforesaid requirement is applicable only to accidents

occurring while such warning signal(s) is/are in force but employees often need to, upon cancellation of the warning signal(s), commute to and from work when the safety of the roads has yet to be ascertained, whether the authorities will extend the ambit of the requirement concerned to cover accidents occurring within a period of four hours after the cancellation of the warning signal(s); if so, of the details; if not, the reasons for that?

SECRETARY FOR LABOUR AND WELFARE (in Chinese): President, my reply to the Member's question is as follows:

(1) The Labour Department does not keep statistics involving cases on injuries or fatalities sustained by employees as a result of accidents arising out of employment during the time when Tropical Cyclone Warning Signal No. 8 or above or a Red/Black Rainstorm Warning Signal is in force, or cases on accidents happened to employees whilst travelling to and from work.

(2) According to the Employees' Compensation Ordinance ("ECO"), if

an employee sustains an injury or dies as a result of an accident arising out of and in the course of employment, the employer is in general liable to pay compensation under ECO.


ECO provides that when Tropical Cyclone Warning Signal No. 8 or above or a Red/Black Rainstorm Warning Signal is in force, if an employee sustains an injury or dies as a result of an accident while travelling from his/her place of residence to his/her place of work by a direct route within a period of four hours before the time of commencement of his/her working hours for that day, or from his/her place of work to his/her place of residence within a period of four hours after the time of cessation of his/her working hours for that day, the accident shall be deemed to arise out of and in the course of employment. The employer is liable to pay compensation in accordance with ECO.

ECO adopts a "no-fault" principle, whereby employers are in general liable to pay compensation under the Ordinance even if their employees might have committed acts of faults or negligence when the accidents occurred. It is hence necessary to take into account the interests of employees and the affordability of employers concurrently in determining the statutory liability for compensation of employers. The suggestion of further extending the coverage of ECO to accidents happened to employees whilst travelling to and from work after the cancellation of the above mentioned warning signals would involve a significant change to the current employees' compensation system with far-reaching implications. We do not plan to pursue such an amendment to ECO at present.

Study on the risk factors associated with breast cancer for local women 18. DR CHIANG LAI-WAN (in Chinese): President, the Government has commissioned the University of Hong Kong ("HKU") to conduct a study on the risk factors associated with breast cancer for local women, so as to help formulate the future strategies for breast cancer screening in Hong Kong. The study is expected to be completed in the latter half of this year. Besides, some studies have pointed out that as compared with conventional 2D mammography, 3D mammography is more accurate and carry a lower dosage of radiation, and therefore is more suitable for carrying out breast cancer screening on Asian women (including Hong Kong women) who have a higher density of mammary glands. In this connection, will the Government inform this Council if it knows:


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(1) the membership list of the HKU team that is in charge of the aforesaid study and the professions to which the team members belong, as well as the scope and the latest progress of the study;

(2) whether the team will meet with relevant overseas organizations

(e.g. organizations in Taiwan and Singapore which advocate breast cancer screening) so as to learn from the experience of other countries or regions in implementing breast cancer screening; if the team will, of the details; if not, the reasons for that; and

(3) whether the team will, by making reference to medical papers on

mammography devices, put forward recommendations on the selection by the Government of mammography devices which will better meet the needs of Hong Kong women; if the team will, of the details; if not, the reasons for that?

SECRETARY FOR FOOD AND HEALTH (in Chinese): President,

(1) The commissioned study on the risk factors associated with breast cancer among local women is funded by the Health and Medical Research Fund administered under the Food and Health Bureau, and is approved by the Research Council after undergoing rigorous peer review and established procedures. This study is conducted by the research team led by Prof Gabriel LEUNG, School of Public Health of the University of Hong Kong. Other research team members include Prof Ava KWONG from Department of Surgery, Dr Irene WONG Oi-ling and Dr Wendy LAM Wing-tak from School of Public Health, Prof KHOO Ui-soon from Department of Pathology and Prof Roger NGAN Kai-cheong from the Department of Clinical Oncology of the University of Hong Kong.

The study aims at developing a breast cancer risk prediction model

for Hong Kong, identifying risk factors among the local population through a case-control study, as well as building a comprehensive tissue bank and clinical database. According to the latest progress report, the research team has obtained data from the Shanghai Breast Cancer Study research group, which would be used to develop the risk prediction model for women in Hong Kong. For the


case-control study, the research team has established collaboration with 15 public hospitals, seven private hospitals and six private practitioners to collect local breast cancer data and samples. As at 28 September 2018, 3 522 breast cancer cases and 2 653 control cases were recruited respectively. The research team is analysing the difference between the case patients and control subjects including the demographic characteristics, body mass index (BMI) ratio, physical activity, known breast cancer risk factors such as age at menarche, age at first live birth or nulliparous, family history of breast cancer and prior benign breast disease diagnosis. The study team will translate predicted risk values into recommendations on whether women in Hong Kong should undergo regular breast cancer screening.

Upon completion of the study, the research should develop a

personalized risk stratification tool for breast cancer in local women as well as determine and quantify potential breast cancer risk factors. The study is expected to be completed in the second half of 2019.

(2) and (3) The study aims at developing a local breast cancer risk prediction

model to identify the high-risk groups among the local population. The objectives of the commissioned study do not include discussion with overseas advocacy groups on experience in implementing the breast cancer screening programmes and selection of the most appropriate local breast cancer screening test.

The crime of placing caltrops on roads 19. MR ANDREW WAN (in Chinese): President, it has been reported that some drivers have recently found a number of metal nails commonly known as "caltrops" or "crow's feet" on the roads in the vicinity of Tsuen Wan and Sham Tseng. A number of vehicles had a blowout after running over such metal nails. Some members of the transport trade have pointed out that vehicles may lose control due to blowouts, which may subsequently cause traffic accidents. In this connection, will the Government inform this Council:


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(1) whether the Police have so far made any arrest in relation to the aforesaid incidents, and whether the Police will step up its efforts in monitoring and patrolling the roads concerned;

(2) of the legislation violated by the act of placing sharp object(s) on

roads; the number of persons who were prosecuted for that in the past five years; and

(3) whether caltrop is one type of "prohibited weapons" the possession

of which is prohibited under the Weapons Ordinance (Cap. 217); if so, of the number of persons prosecuted in the past five years for possession of caltrops; if not, whether any legislation is currently in place to regulate the possession, use and import of caltrops; if not, whether it will consider enacting such legislation?

SECRETARY FOR SECURITY (in Chinese): President, placing sharp object(s) on roads resulting in bodily harm to other persons or damage to property is a serious offence. Having consulted the Transport and Housing Bureau, a reply to all parts of the question is provided as follows:

(1) Regarding the suspected "caltrops" recently found on Tuen Mun Road and Castle Peak Road, the Police have so far received five reports and collected eight "caltrops" from the road sections concerned. These cases are classified as criminal damage and are now under investigation by the District Crime Squad of Tsuen Wan District. No person has been arrested so far. On the other hand, the Police have enhanced patrol to the above road sections to protect the safety of road users. For the time being, no more similar metal nails have been found by the Police.

(2) Placing sharp object(s) on roads may cause damage to passing

vehicles, or even endanger driving safety and cause casualties. Such acts may be liable to the offence of criminal damage under the Crimes Ordinance (Cap. 200), the offences of assault occasioning actual bodily harm and wounding with intent to do grievous bodily harm under the Offences against the Person Ordinance (Cap. 212). If death is caused by the incident, it may even be liable to murder or related offences.


As regards figures of prosecution relating to the placing of sharp object(s) on roads, the Police do not keep such figures.

(3) Under section 4 of the Weapons Ordinance (Cap. 217), "any person

who has possession of any prohibited weapon commits an offence and is liable to a fine of $10,000 and to imprisonment for 3 years". "Prohibited weapon" means any weapon specified in the Schedule to the Weapons Ordinance, i.e. Chinese-style throwing dart, gravity knife, gravity-operated steel baton, knuckleduster whether spiked or not and with or without blade, Chinese-style fighting iron, spring-loaded steel baton, any knife the blade of which is exposed by a spring or other mechanical or electric device, and any bladed or pointed weapon designed to be used in a fashion whereby the handle is held in a clenched fist and the blade or point protrudes between the fingers of the fist. "Caltrop" is not in the Schedule.

Nevertheless, depending on the actual circumstances of the case and

the evidence obtained, possession and/or use of "caltrop" may contravene other existing legislation.

Under the Summary Offences Ordinance (Cap. 228), any person who

has in his possession any instrument fit for unlawful purposes, with intent to use the same for unlawful purposes, shall be liable to a fine of $5,000 or to imprisonment for two years. In addition, under the Public Order Ordinance (Cap. 245), any person who, without lawful authority or reasonable excuse, has with him in any public place any offensive weapon shall be guilty of an offence and liable to imprisonment.

Under the Crimes Ordinance (Cap. 200), a person who without

lawful excuse destroys or damages any property belonging to another shall be liable to imprisonment for 10 years. Furthermore, under the Offences against the Person Ordinance (Cap. 212), assault occasioning actual bodily harm shall be liable to imprisonment for three years, and wounding with intent to do grievous bodily harm shall even be liable to imprisonment for life.

As mentioned above, possession and/or use of "caltrop" for illegal

purpose may contravene a number of existing legislative provisions. The existing legislation is adequate in regulating and penalizing such acts. As such, there is no need to enact laws against "caltrop".


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Payments made by sheltered workshops to trainees 20. MR SHIU KA-CHUN (in Chinese): President, at present, trainees with disabilities ("trainees") who receive vocational training at sheltered workshops may receive monthly incentive payments and training allowances. On the other hand, when calculating the amount of money payable to recipients of the Comprehensive Social Security Assistance ("CSSA"), the Social Welfare Department ("SWD") makes a deduction by some of the recipients' employment earnings; for people with disabilities, the first $1,200 of monthly earnings may be totally disregarded while half of the next $5,600 may be disregarded (i.e. the maximum total amount of disregarded earnings is $4,000 per month, and all earnings beyond $6,800 per month are not disregarded). As SWD regards the training allowances received by the trainees as employment earnings, some trainees temporarily stop going to sheltered workshops for training after they have earned a training allowance of $6,800 or more in a month. Besides, sheltered workshops are not required to pay trainees training allowances at a rate not lower than the statutory minimum wage ("SMW") rate. In this connection, will the Government inform this Council:

(1) of the mechanism for setting and adjusting the amount of the incentive payment; whether the amount was adjusted in the past five years; if so, of the number and magnitudes of adjustments; whether it has plans to review the amount; if so, of the details; if not, the reasons for that;

(2) whether it knows the maximum, minimum, average and median

amounts of monthly training allowances paid to the trainees at present;

(3) whether it has compiled statistics on the number of trainees in each

of the past five years who were CSSA recipients and were paid a training allowance of over $6,800 in certain month(s) of the year; if so, of the details; if not, whether it will compile such statistics expeditiously;

(4) why SWD, in calculating the amounts of CSSA payments payable to

trainees who are CSSA recipients, regards training allowances received by them as employment earnings, and whether SWD will


review and change that practice, so as to avoid trainees temporarily stopping to receive training lest their CSSA payments will be deducted; and

(5) as sheltered workshops receive purchase orders like a factory and

trainees are engaged in production work like factory workers, why the trainees are not protected under the SMW regime; how the authorities tell clearly whether the trainees are engaged in production work or are receiving training in a workshop, so as to prevent persons with disabilities from being exploited?

SECRETARY FOR LABOUR AND WELFARE (in Chinese): President, my consolidated reply to the Member's question is as follows:

(1) The purpose of incentive payment is mainly to encourage persons with disabilities to attend vocational rehabilitation training programmes. In 2008, the rate of incentive payment per day was $21 and has been increased to the current rate of $26.5 in November 2014. The formula for the adjustment of incentive payment endorsed by the Finance Committee of the Legislative Council is at the Annex.

Given that the service mode of sheltered workshops has been

adopted for many years, the Government announced in the 2018 Policy Agenda that the need and feasibility of developing a new service mode for sheltered workshops would be explored, with a view to better addressing the vocational training needs of service users.

(2) As at the end of March 2018, the average monthly training

allowance for each sheltered workshop trainee was about $850. The Social Welfare Department ("SWD") does not have statistical information on the minimum, maximum and median amounts of monthly training allowance for individual trainees.

(3) SWD does not have statistical information on the number of

sheltered workshop trainees who were Comprehensive Social Security Assistance ("CSSA") recipients and received a training allowance higher than $6,800 in certain month(s) of the year.


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(4) The CSSA Scheme provides a safety net of last resort for those who cannot support themselves financially so as to help them to meet their basic needs. In this regard, means tests are required under the scheme to ensure the prudent use of public funds. At the same time, the scheme caters for the special needs of persons with disabilities through the provision of higher standard rates, special grants and supplements.

Moreover, if sheltered workshop trainees are CSSA recipients, the

incentive payments received can be excluded from being counted as income. However, the amount of such payments can only be up to $26.5 per trainee per day. Other than the incentive payments, other amounts received from sheltered workshops can also be disregarded under the disregarding earnings ("DE") arrangement under the scheme, subject to a maximum of $2,500 per month. Furthermore, the Community Care Fund launched a three-year pilot scheme in October 2016 under which the maximum DE level for CSSA recipients with disabilities has been raised to further encourage them to secure employment. Together with DE of $2,500 mentioned above, the maximum level of DE for CSSA recipients with disabilities under the pilot scheme is $4,000 per month.

(5) Sheltered workshops aim to provide persons with disabilities who

are not yet able to take up open employment because of their physical or mental limitations with suitable vocational rehabilitation training in a specially designed environment, in which they can learn to adjust to normal work requirements, develop social skills and interpersonal relationships, explore economic potential and get prepared for potential advancement to supported or open employment in future. SWD allocates funding for incentive payment to service operators according to the number of service places provided by individual sheltered workshops. At present, trainees receiving training at sheltered workshops are offered an incentive payment so as to encourage their attendance and participation in training for their own benefit. Trainees receive incentive payments for attending the training at sheltered workshops. The incentive payments provided by SWD are not salaries.


Annex

Formula for Adjustment of Incentive Payment for Attending Vocational Rehabilitation Training Programmes

The formula for the adjustment of incentive payment endorsed by the Finance Committee of the Legislative Council in April 1974 is as follows: Current Annual Average Consumer Price Index (A) [CPI(A)](1) Last Revised Annual Average CPI(A) x Current Rate = Revised Rate The rate of incentive payment will be adjusted whenever there is an increase of more than 20% in the CPI(A). From July 2014(2) to November 2018, the CPI(A) has increased by around 14%, which is below the adjustment threshold. (1) The Modified Consumer Price Index, which was originally adopted for calculation, has

become obsolete long time ago and been replaced by the CPI(A). (2) The last adjustment to incentive payment was made by using the annual average CPI(A). Preventing the airport's operation from being affected by unmanned aircraft systems 21. MR JEREMY TAM (in Chinese): President, it has been reported that the flight movements at Gatwick Airport in London were suspended twice late last year due to the intrusion of unmanned aircraft systems ("UASs"), which in total lasted for over 30 hours and affected about 1 000 flights and 140 000 passengers. Despite the presence of legislation in the United Kingdom banning UASs from flying inside and within 1 000 metres surrounding the airport and from flying above 400 feet, the aforesaid incident still happened and the law enforcement agencies have failed to track down the perpetrators so far. After the aforesaid incident, the authority of the airport has procured an anti-UAS system at a cost of £5 million to deal with similar incidents in future. On preventing the operation of the Hong Kong International Airport from being affected by UASs, will the Government inform this Council:

(1) of (i) the number of reports received by the authorities concerning the illegal flying of UASs within the Bylaw Area prescribed in the Airport Authority Bylaw (Cap. 483 sub. leg. A), (ii) the respective


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numbers of persons arrested, prosecuted and convicted for illegally flying of UASs within the Bylaw Area, and (iii) the punishments imposed on those convicted, in each of the past five years;

(2) whether it has formulated measures for the expeditious handling of

the situation of UASs illegally flying within the Bylaw Area, so as to avoid disruptions to flight movements; if so, of the details (including the procedure for activating the contingency measures); if not, the reasons for that; and

(3) whether equipment with the following functions has been installed at

the Hong Kong International Airport: detecting UASs flying within the Bylaw Area, manipulating such UASs to land safely and stop operating, and tracking down the location of the person who has flown the UASs; if so, of the details, if not, the reasons for that?

SECRETARY FOR TRANSPORT AND HOUSING (in Chinese): President, unmanned aircraft systems ("UAS") are classified as aircraft and are governed, as far as aviation safety is concerned, by the civil aviation legislation. Article 48 of the Air Navigation (Hong Kong) Order 1995 (Cap. 448 sub. leg. C) stipulates that a person who recklessly or negligently causes or permits an aircraft (including an UAS and a model plane) to endanger any person or property is liable to prosecution, and upon conviction, to a fine and to imprisonment for two years. Moreover, under section 35 of the Airport Authority Bylaw (Cap. 483 sub. leg. A) ("the Bylaw"), no person shall, within the Bylaw Area,(1) fly a model plane (including UAS). Offenders shall be liable on conviction to a maximum penalty of a fine of HK$50,000 and imprisonment for six months. The Civil Aviation Department ("CAD") has initiated a review of the regulation of UAS, with a view to safeguarding public safety while accommodating the technological development and diversified uses of UAS. To facilitate the Government in reviewing the existing statutory requirements and exploring ways to refine the prevailing regulatory regime, CAD commissioned an

(1) Under section 3 of the Bylaw, the Bylaw Area shall comprise (i) all the Restricted Area;

(ii) all that portion of the Airport Area no part of which is either in the Restricted Area or on any road or length of road; and (iii) all the designated roads, but shall not include any area within an area referred to in paragraph (i), (ii) or (iii) which is also within the MTR Area.


overseas consultant to conduct a study on the regulation of UAS. In April 2018, CAD published the consultancy report and launched a three-month public consultation on the directions for regulating UAS. CAD is now drawing up detailed proposals for an enhanced regulatory regime of UAS taking into account the recommendations of the consultancy study and the views gathered during the consultation exercise. CAD planned to consult the Legislative Council on the proposed legislative amendments for the enhanced regime of UAS in 2019. Meanwhile, CAD will continue to work proactively to enhance the awareness of UAS operators on safe operation through different channels like television and radio, the Department's website, other relevant websites and publications. For instance, CAD has been promoting the safe operation of UAS through various television and radio programmes such as Police Magazine and Innovation GPS since May 2017. Meetings with UAS organizations and manufacturers are also held from time to time to strengthen cooperation on safety promotion. In view of the recent intrusions of UAS into Gatwick Airport in London, CAD immediately contacted local UAS organizations to remind UAS operators that flying UAS in the Bylaw Area and in the vicinity of the airport is prohibited. The Airport Authority Hong Kong ("AA") has already put up notices at appropriate positions in the Hong Kong International Airport ("HKIA") and will consider other channels including the AA's website to remind various sectors of the community about the legislation prohibiting the flying of model plane (including UAS) in those areas. My reply to the various parts of Mr Jeremy TAM's question is as follows:

(1) According to the record of AA, there was one case of illegal operation of UAS within the aforesaid Bylaw Area over the past five years which happened in July 2017. The offender was subsequently convicted of "causing or permitting an aircraft to endanger any person or property" under the Air Navigation (Hong Kong) Order 1995 (Cap. 448 sub. leg. C) and was fined HK$2,000.

(2) Pursuant to the Bylaw, no one shall fly a model plane (including

UAS) within the Bylaw Area. AA and the law enforcing agency will pay attention to UAS operation when they are on duty and patrolling the Airport Area. If AA is aware or notified of any illegal UAS operation within the Bylaw Area, it will immediately request the Police to follow up the incident and deploy its staff to


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search for UAS and its operator in the Airport Area. Under the existing communication mechanism between AA and CAD, if flight movements are affected by the operation of UAS, AA and CAD will discuss the matter and make appropriate arrangements. In case of flight disruptions, AA will liaise closely with the industry and disseminate real-time flight information to update the affected passengers and airlines on the latest situation. Having regard to the technological development of UAS, CAD and AA will review the coordination and handling procedures with the Police in a timely manner to strengthen the contingency measures.

(3) To ensure aviation safety, CAD and AA have been monitoring and

taking precautions against the operation of UAS in the Airport Area. Currently, HKIA is equipped with certain UAS detection system but the details of which could not be disclosed due to security reason. CAD and AA are making reference to the experience of and equipment adopted by other international airports and further exploring various viable technologies to be applied to HKIA in a bid to further enhance the monitoring and precautionary measures against illegal operation of UAS in the Airport Area, thereby minimizing the possible impact on airport operation and aviation safety.

Complaints and compensation claims arising from railway projects 22. MR VINCENT CHENG (in Chinese): President, some shop operators in Kowloon City have relayed to me that in order to implement the Shatin to Central Link ("SCL") project, the MTR Corporation Limited ("MTRCL") has since 2014 enclosed several large construction sites with wire fences on a number of roads in the district and closed several road sections (such as a lane of Nam Kok Road bound for Prince Edward Road East). Due to sight line obstructions, coupled with the dust and noise generated by the works, the shops located on numbers 4 to 24 Nam Kok Road have suffered a plunge in business. Although they have filed compensation claims in accordance with the Railways Ordinance (Cap. 519) ("the Ordinance") and submitted detailed information, none of the claims have been approved so far. Regarding complaints and compensation claims arising from railway projects, will the Government inform this Council:


(1) among the 26 compensation claims in respect of the SCL project received by the authorities in the past five years, of the number of those rejected and the reasons for the rejection, with a tabulated breakdown by type of claimants and District Council district;

(2) of the respective numbers of complaints received by the authorities

in each of the past five years involving the works carried out at Ma Tau Wai Road, Kiang Su Street, Lok Shan Road and Nam Kok Road under the SCL project, with a breakdown by the contents of the complaints; the measures taken by the authorities to mitigate the impact of the works on nearby shop operators and residents;

(3) of the anticipated time for (i) the completion of the works at the

roads mentioned in (2) under the SCL project, and (ii) the removal of the wire fences erected thereon for the purpose of the works; the expected commissioning dates of To Kwa Wan Station and Sung Wong Toi Station which are related to such works;

(4) of the respective numbers of compensation claims filed under the

Ordinance which were received, approved and rejected by the authorities, and the number of them referred to the Lands Tribunal (with a tabulated breakdown by the handling results and District Council district), in each of the past five years;

(5) given that the Government is a major shareholder of MTRCL,

whether the Government will refer the compensation claims arising from railway projects to an independent third-party organization or a committee comprising non-official members for assessments, in order to show impartiality; and

(6) whether it will review the Ordinance with a view to improving the

mechanism for compensation claims? SECRETARY FOR TRANSPORT AND HOUSING (in Chinese): President, our reply to the six parts of the question raised by Mr Vincent CHENG is as follows:

(1) In the past five years (from January 2014), a total of 26 compensation claims involving the Shatin to Central Link ("SCL") project were submitted to the Secretary for Transport and Housing


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under the Railways Ordinance. All the cases were referred to the Lands Department for follow-up and processing. Of the 26 cases, 15 cases were claims involving commercial properties lodged by owners or shop tenants and the remaining 11 cases were claims involving residential properties lodged by owners. Of these, 5 claims have been rejected and 21 claims are still being processed. The relevant figures are tabulated below:

District

Number of claims involving commercial

properties lodged by owners or shop tenants

Number of claims involving residential

properties lodged by owners

Wan Chai 2 0 Kowloon City 13 9 Wong Tai Sin 0 2 Total 15 11

According to the information submitted by the claimants, the five

rejected cases involved commercial properties in Kowloon City and the main head of claim is related to the temporary road closure arrangements. In handling the above five cases, the Lands Department has considered the relevant information submitted by the claimants and the relevant records of the department. Though there was obstruction to part of the footpath due to the construction, there was sufficient width of the footpath maintained. After seeking legal advice, the Lands Department considered that the access to the premises had not been adversely affected and did not constitute a claim for compensation under the Railways Ordinance. Therefore, the five compensation claims were not substantiated and were rejected.

(2) To tie in with the construction of To Kwa Wan Station and Sung

Wong Toi Station of SCL, the MTR Corporation Limited ("MTRCL") has to implement temporary traffic management measures in stages to facilitate the construction of the stations and their entrances/exits. The extent of the measures covers Ma Tau Wai Road, Kiang Su Street, Lok Shan Road and Nam Kok Road.

During the construction period, MTRCL and the contractors have

taken various measures to reduce the impact of the works on shop tenants and residents, including maintaining appropriate width of the


footpaths for public use; placing clear notices and signs; using translucent barriers and noise insulating equipment when practicable, with the names of the shop tenants printed on the barriers; beautifying the barriers on site as far as possible to improve the walking environment; and reducing a part of the works sites for maintaining loading and unloading bays during holidays, etc. In addition, during the implementation of large-scale temporary traffic management measures at Ma Tau Wai Road, MTRCL arranged caring ambassadors to assist residents in crossing roads and taking vehicles. As residents may feel slight vibrations during the excavation of tunnel, MTRCL has conducted safety monitoring on buildings in the vicinity of the tunnel area and has designated staff to conduct regular ground monitoring to ensure building and public safety. MTRCL has added noise insulation equipment to reduce the noise level with a view to minimizing the nuisance to the community arising from the construction.

Before the implementation of the temporary traffic management

measures and during the construction period, MTRCL and the contractors have maintained close communication with nearby shop tenants and residents. Apart from distributing notices, they have also met with the shop tenants and residents from time to time to explain the construction arrangement and related temporary traffic management measures. In addition, MTRCL has also reported to the Community Liaison Group (members including residents) meetings on construction progress and sought views on the temporary traffic management measures.

In the past five years (from January 2014), the complaints received

by the Highways Department in relation to the works under the SCL project in the vicinity of Ma Tau Wai Road, Kiang Su Street, Lok Shan Road and Nam Kok Road are tabulated below:

Year Classification of complaints received by Highways Department Total

Obstruction

to traffic/ pedestrian

Site Hygiene

Design and arrangement of temporary

traffic management

measures

Road defects

Building vibration, noise and

air pollution

Site safety Others

2014 8 1 5 0 14 1 5 34 2015 1 4 4 3 3 0 2 17


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Year Classification of complaints received by Highways Department Total

Obstruction

to traffic/ pedestrian

Site Hygiene

Design and arrangement of temporary

traffic management

measures

Road defects

Building vibration, noise and

air pollution

Site safety Others

2016 6 1 3 8 5 0 0 23 2017 0 2 1 2 2 0 2 9 2018 2 0 6 5 3 0 2 18

(3) To Kwa Wan Station of SCL is located underneath Ma Tau Wai

Road. Temporary traffic management measures are still being implemented on sections of the road. MTRCL envisages that traffic in three northbound and three southbound carriageways of Ma Tau Wai Road will be resumed progressively from the second half of 2019 and will be completed by early 2020.

The structural works, Electrical and Mechanical works and

fitting-out works of the entrances/exits of To Kwa Wan Station at Kiang Su Street and Lok Shan Road have been completed. The underground utility facilities are being reinstated in phases and the works for the carriageway and footpath are under way. MTRCL expects that the reinstatement works at Kiang Su Street and Lok Shan Road will be completed by the end of 2019. After the completion of reinstatement works, the barriers used for separating the works site will be removed.

Regarding the section of Nam Kok Road that connects to Sung

Wong Toi Station, the reinstatement works of the carriageways were completed in October 2018 and 11 metered car parking spaces along that road section were permanently reprovisioned for public use. The reinstatement works of the footpath are to be completed in the second quarter of 2019. MTRCL will maintain close communication with the relevant shop tenants to minimize the impact of the remaining works.

The Tai Wai to Hung Hom Section was originally scheduled for

commissioning in mid-2019. However, in view of the spate of incidents about the quality of the construction of Hung Hom Station and associated investigation work, the target commissioning date has to be reviewed.


As regards the partial commissioning of some stations and sections of the Tai Wai to Hung Hom Section, the Government has requested MTRCL to expedite the study on different options and make recommendations. The Government and MTRCL will actively continue exploring suitable options, with priority accorded to practical feasibility and safety. There is no decision at this stage.

(4) In the past five years (from January 2014), there were a total of 46

compensation claims submitted to the Secretary for Transport and Housing under the Railways Ordinance. The railway projects include SCL, the Hong Kong Section of Guangzhou-Shenzhen-Hong Kong Express Rail Link, the South Island Line (East), the Kwun Tong Line Extension and the West Island Line. All claims were referred to the Lands Department for follow-up and processing. Among the 46 cases, there were 6 successful claims and 11 rejected claims. The remaining 29 claims are still being processed. No cases have been referred to the Lands Tribunal. The relevant figures are tabulated as below:

Year of claims

received District

Number of cases

received

Number of cases

rejected

Number of successful

claims 2014 Central and Western 4 0 2 Southern 1 1 0 Yuen Long 1 0 0 Kowloon City 9 7 0 Wong Tai Sin 2 0 0 Kwai Tsing 1 1 0 2015 Central and Western 1 0 1 Wan Chai 1 0 0 Sham Shui Po 1 0 0 Kowloon City 6 0 0 Yuen Long 1 0 1 2016 Central and Western 1 0 1 Wan Chai 1 0 0 Southern 2 1 0 Sham Shui Po 1 0 1 Kowloon City 11 1 0 2017 Central and Western 1 0 0 Kowloon City 1 0 0


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Year of claims

received District

Number of cases

received

Number of cases

rejected

Number of successful

claims 2018 All districts 0 0 0 Total 46 11 6

(5) Under the Railways Ordinance, the claimant is required to serve his

claim for compensation to the Secretary for Transport and Housing. In general, the Bureau will refer the claims to the Lands Department for processing under the Railways Ordinance. The Lands Department will assign departmental professional officers (such as surveyors and accountants) to follow up each case. The responsible officers will also seek professional advice from relevant departments (such as the Highways Department, the Buildings Department and the Department of Justice) for giving comprehensive consideration.

Within six months of the service of a claim or the further particulars

requested from a claimant, the Administration will determine whether his claim is accepted or rejected, or a counter-offer is proposed. If the claimant does not agree with the result of his claim, the claimant may refer the claim to the Lands Tribunal for determination after the expiry of seven months from the receipt of the claim by the Administration. The Lands Tribunal is established under the Lands Tribunal Ordinance (Cap. 17). It has four professional judges including a President who is a Judge of the Court of First Instance of the High Court and three Presiding Officers, who are District Judges. There are also two Members of the Tribunal who are qualified surveyors. The President and a Presiding Officer may either sit alone or together with a Member in hearing cases. A Member may also sit alone in hearing cases. The Tribunal can determine the amount of compensation payable by the Government to a claimant for his claim.

(6) As mentioned in part (5), if the claimant does not agree with the

result of his claim, he may refer the claim to the Lands Tribunal to commence proceedings in accordance with section 34(7) of the Railways Ordinance for determination by the Lands Tribunal after the expiry of seven months from the receipt of his claim by the Administration. We have no plans to review the Ordinance at the moment.


GOVERNMENT BILLS First Reading and Second Reading of Government Bills First Reading of Government Bill PRESIDENT (in Cantonese): Government Bill: First Reading. NATIONAL ANTHEM BILL CLERK (in Cantonese): National Anthem Bill. (A number of Members chanted the slogan: "Objection to the National Anthem Bill!") Bill read the First time and ordered to be set down for Second Reading pursuant to Rule 53(3) of the Rules of Procedure. PRESIDENT (in Cantonese): Will Members please keep quiet. I will consider that your conduct is grossly disorderly if Members fail to keep quiet. (Mr CHAN Chi-chuen indicated to raise a point of order) PRESIDENT (in Cantonese): Mr CHAN Chi-chuen, what is your point of order? MR CHAN CHI-CHUEN (in Cantonese): I request a headcount. PRESIDENT (in Cantonese): Mr CHAN Chi-chuen has requested a headcount. Will the Clerk please ring the bell to summon Members back to the Chamber. (Members kept on shouting loudly)


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PRESIDENT (in Cantonese): I will consider that your conduct is grossly disorderly if Members keep on shouting loudly. This is the final warning. Any Member should leave the Chamber if he or she keeps on shouting loudly. (After the summoning bell had been rung, a number of Members returned to the Chamber) Second Reading of Government Bills PRESIDENT (in Cantonese): Government Bills: Second Reading. NATIONAL ANTHEM BILL SECRETARY FOR CONSTITUTIONAL AND MAINLAND AFFAIRS (in Cantonese): President, I move the Second Reading of the National Anthem Bill ("the Bill"). The Standing Committee of the 12th National People's Congress ("NPCSC") adopted the decision to add the National Anthem Law to Annex III to the Basic Law on 4 November 2017. According to Article 18 of the Basic Law, the national laws listed in Annex III to the Basic Law shall be applied locally by way of promulgation or legislation by the Hong Kong Special Administrative Region ("HKSAR"). It is thus the constitutional duty of the HKSAR Government to implement the National Anthem Law locally. Having regard to the common law system practised in Hong Kong, as well as the actual circumstances in Hong Kong, the HKSAR Government decides to implement the National Anthem Law in the HKSAR by local legislation, fully embodying the "one country, two systems" principle. We consulted the Panel on Constitutional Affairs of the Legislative Council on the outline of the proposed content of the Bill in March last year, and attended two special meetings of the Panel on Constitutional Affairs in April and May … (Ms Claudia MO indicated her wish to ask a question)


PRESIDENT (in Cantonese): Ms Claudia MO, what is your question? MS CLAUDIA MO (in Cantonese): I would like the Secretary to clarify what the actual circumstances in Hong Kong are. PRESIDENT (in Cantonese): Ms MO, please wait for a moment and let the Secretary finish his speech before raising the question again. Please sit down now. SECRETARY FOR CONSTITUTIONAL AND MAINLAND AFFAIRS (in Cantonese): … and attended two special meetings of the Panel on Constitutional Affairs in April and May respectively to listen to the views of the public and deputations. In the past year, we have also met with political parties, professional bodies and scholars, etc. with a view to listening to and incorporating their views. After vigilant deliberation and careful drafting, we formally submit the Bill to the Legislative Council today for First Reading and Second Reading, and for scrutiny by Members. (Mr AU Nok-hin indicated his wish to ask a question) PRESIDENT (in Cantonese): Mr AU Nok-hin, what is your point? MR AU NOK-HIN (in Cantonese): Secretary Patrick NIP said just now he had come to the Legislative Council to consult the Panel on Constitutional Affairs. Can he briefly relay to us the comments raised by the members at that time? PRESIDENT (in Cantonese): Please wait for a moment and let the Secretary finish his speech before raising the question again. Secretary, please continue with your speech.


5607

SECRETARY FOR CONSTITUTIONAL AND MAINLAND AFFAIRS (in Cantonese): The legislative principle of the National Anthem Bill is very clear: to fully reflect the legislative purpose and intent of the National Anthem Law, which is to preserve the dignity of the national anthem and promote respect for the national anthem; and at the same time to give due regard to the common law system practised in Hong Kong, as well as the actual circumstances in Hong Kong. The National Anthem Law consists of 16 articles. Apart from Articles 9, 14 and 16, all of the remaining 13 articles have been suitably adapted in the Bill. The focus of the Bill is two-pronged: firstly, to state that the national anthem is the symbol and sign of the People's Republic of China, and to promote respect for the national anthem by means of directional provisions; secondly, to impose penalties on people who publicly and intentionally insult the national anthem or misuse the national anthem. The directional provisions are in Part 2 of the Bill whereas the provisions on penalties are in Part 3. Part 2 of the Bill is "Playing and Singing of National Anthem", which provides the standard, etiquette and occasions for the playing and singing of the national anthem. All of these provisions are "directional" and do not carry any penalty. This part clarifies that the etiquette to be followed regarding the playing and singing of the national anthem only applies to persons who "take part in or attend" an occasion where the national anthem is played and sung. This should be able to dispel public concerns about "whether one should stand solemnly when the national anthem is broadcast on television" and other similar questions. This part also specifies that on each occasion set out in Schedule 3 of the Bill, the national anthem must be played and sung. These occasions include official occasions of the HKSAR Government, the oath-taking ceremonies of principal members of the executive authorities, legislature and judiciary when they assume office, national flag raising ceremonies, major sporting events held by the Government, and the Ceremonial Opening of the Legal Year. Part 3 of the Bill is "Protection of National Anthem", which prohibits misuse of the national anthem or its lyrics or score, as well as public and intentional insulting behaviours in relation to the national anthem. It also provides penalties for such behaviours. I understand that some may demand the Government to assess each and every scenario and comment if any of them will


contravene the law. In reality, the enforcement agency would, according to the actual circumstances and evidence collected in each case, make an assessment in accordance with the law, and the court will hand down judgment in accordance with the usual standard of handling criminal cases in Hong Kong. Nevertheless, our legislative intent is very clear, i.e. to prohibit public and intentional behaviours with an intent to insult the national anthem. We will use the above principles, which are commonly used in the common law system, as the basis of assessing whether a case contravenes the law. Therefore, there is absolutely no need for members of the public to worry about "inadvertently contravening the law" if they have no intention to insult the national anthem. It is worth mentioning that the Bill contains a provision (clause 7(5) of the Bill) to protect the publishing of materials to insult the national anthem with reasonable grounds (e.g. fair reporting by media, educational purposes by teachers, etc.), making it clear for the public that such acts of publishing with no intent to insult the national anthem will not constitute a criminal offence. Part 4 of the Bill is "Promotion of National Anthem", which requires the Secretary for Education to give directions for the inclusion of the national anthem in primary education and secondary education, which cover all primary and secondary schools. The Bill also requires domestic television programme service licensees and sound broadcasting service licensees to broadcast the national anthem as announcements in the public interest ("APIs") or material in the public interest pursuant to the existing terms and conditions in their respective licences. These two requirements have reflected the legislative intent of the National Anthem Law, and at the same time taken into account the actual circumstances of Hong Kong. They are actually similar to what is currently being done. The above is the main content of the Bill. Overall speaking, the main spirit of the Bill is "respect", which I believe is easy to understand and not hard to follow by the general public. For those with an intent to insult the national anthem, and publicly and intentionally perform acts to insult the national anthem, there is a need to introduce punitive provisions in the Bill to deter such behaviours. We believe that the majority of the public would respect the national anthem. Hence, the Bill will not have any impact on the daily lives of the general public.


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President, with these remarks, I call on Members to support the early passage of the Bill to fulfil the responsibility of Hong Kong to implement the National Anthem Law. Thank you, President. PRESIDENT (in Cantonese): Secretary, would you mind clarifying what Ms Claudia MO and Mr AU Nok-hin asked you to clarify just now? SECRETARY FOR CONSTITUTIONAL AND MAINLAND AFFAIRS (in Cantonese): President, with regard to the questions raised by Members just now, I believe Members will have plenty of chances in discussing the Bill at length when it is referred to a Bills Committee. President, you may like to consider my remark. (Mr AU Nok-hin indicated his wish to ask a question) PRESIDENT (in Cantonese): Mr AU Nok-hin, what is your question? MR AU NOK-HIN (in Cantonese): I asked the Secretary for clarification because there are many different positive or negative opinions in the committee, including my own concern which is representative of many from the democratic camp … PRESIDENT (in Cantonese): This is not what you have asked for clarification just now. Please sit down. This is not a debate session. PRESIDENT (in Cantonese): I now propose the question to you and that is: That the National Anthem Bill be read the Second time. In accordance with the Rules of Procedure, the Second Reading debate is adjourned and the Bill is referred to the House Committee.


Resumption of Second Reading Debate on Government Bill PRESIDENT (in Cantonese): This Council resumes the Second Reading debate on the Conservation of Antarctic Marine Living Resources Bill. CONSERVATION OF ANTARCTIC MARINE LIVING RESOURCES BILL Resumption of debate on Second Reading which was moved on 4 July 2018 PRESIDENT (in Cantonese): Dr Elizabeth QUAT, a member of the Bills Committee on the Bill, will first address the Council on the Committee's Report. DR ELIZABETH QUAT (in Cantonese): President, on behalf of the Bills Committee on Conservation of Antarctic Marine Living Resources Bill ("the Bills Committee"), I report on the deliberations of the Bills Committee. The Conservation of Antarctic Marine Living Resources Bill ("the Bill") seeks to implement the Convention on the Conservation of Antarctic Marine Living Resources ("the Convention") and its conservation measures in Hong Kong. The new law will authorize the Secretary for Food and Health to make regulations to implement six conservation measures relevant to Hong Kong. The Administration plans to make two regulations after the passage of the Bill in order to implement conservation measures on the Catch Documentation Scheme for Antarctic toothfish ("toothfish"), port inspections and control for fishing vessels. The Bills Committee held three meetings with the Administration. The major issues discussed by members of the Bills Committee included the impact of the implementation of the Convention to the industry; the future status of the Commission for the Conservation of Antarctic Marine Living Resources ("the Commission") in Hong Kong; application of the regulations to be made; the manpower and resources for enforcement of the new law; and the liability of employers and principals and so on. Members generally supported the implementation of the Convention in Hong Kong. The Administration advised that according to statistics compiled by the Commission, toothfish imported into Hong Kong in recent years represents


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about 10% of the total volume exported by Contracting Parties of the Convention. The trade generally considered that the introduction in Hong Kong of regulatory control over the trading of toothfish would not cause significant burden on their operations. Clause 3 of the Bill seeks to give the Commission in Hong Kong the legal personality which will enable the Commission to enjoy in Hong Kong the necessary legal capacity to perform its function under the Bill. Members had questioned the exact functions of the Commission as well as the necessity of giving the Commission a legal personality in Hong Kong. According to the Administration, there was an obligation on a Contracting Party to give the Commission a legal personality in the respective territory pursuant to Article VIII of the Convention. The Secretariat of the Commission is based in Australia without a presence in the Hong Kong Special Administrative Region ("HKSAR"). While the Administration does not anticipate that the Commission will actively perform its function in HKSAR, it is an obligation applicable to HKSAR once the Convention is extended to HKSAR. The term "necessary legal capacity" in clause 3(b) of the Bill referred to giving the Commission the legal personality of a body corporate and all the powers of a natural person of full age and capacity such that the Commission could enjoy the powers to enter into contracts, to acquire and dispose of movable and immovable properties, and to institute and defend legal proceedings in Hong Kong. Clauses 4 to 7 of the Bill seek to set out the regulation-making powers of the Secretary for Food and Health for implementing in Hong Kong the Convention and the relevant conservation measures. Members noted that under clause 4(2), the regulations to be made under clause 4 may be expressed to apply to (a) Hong Kong vessels (wherever they may be), and other vessels while they are within Hong Kong waters; and (b) Hong Kong persons (wherever they may be) and Hong Kong companies (wherever they may be acting), as well as other persons (including companies and bodies corporate that are not Hong Kong companies) acting in Hong Kong. While accepting the rationale behind the making of regulations with extra-territorial effect, members requested the Administration to provide, at the time when the regulations are tabled in the Legislative Council, the subcommittee studying the relevant regulations, if formed, with the framework concerning extra-territorial operations under clause 4(2) and explain in detail how the regulations would apply to "Hong Kong persons", "Hong Kong companies" and "other persons acting in Hong Kong".


Members expressed concerns about various law enforcement issues, including the manpower and resources required for implementing CM10-05 "Catch Documentation Scheme for Dissostichus spp." and the coordination among government departments in port inspection and control. According to the Administration, the Agriculture, Fisheries and Conservation Department ("AFCD") will be responsible for implementing the new licensing system for the toothfish trade and operating the electronic Catch Documentation Scheme under CM10-05 "Catch Documentation Scheme for Dissostichus spp.". The Customs and Excise Department will provide assistance to AFCD in detecting illegal shipments of toothfish, whereas the Government Laboratory will conduct testing of toothfish samples. Regarding port inspections of fishing vessels, AFCD will take the leading role with the support from the Marine Department in matters spanning over inspection of the subject vessels, denying port access and prohibiting landing or transhipping of catch of fishing vessels which have contravened the conservation measures in force. (THE PRESIDENT'S DEPUTY, MS STARRY LEE, took the Chair) The Administration also advised that about 300 samples would be tested annually in the first five years of implementation. Additional manpower will be required to cope with the increased workload, thus a team comprising several professional and technical staff under AFCD would be required. Another team of professional and technical staff of a similar scale under the Government Laboratory would also be needed to conduct testing of toothfish samples. Some members noted with concerns that among those licensed/authorized vessels eligible to operate in the Convention Area, only 10 had entered Hong Kong waters during the period from 2013-2014 to 2017-2018 for the purposes of bunkering and replenishment. In their views, the Administration should critically assess the need for creating two teams of professional and technical staff under AFCD and the Government Laboratory to carry out the additional workload and enforcement duties. Regarding the term "necessary force" in clause 15(3)(b), Members suggested that the Administration should consider stating expressly in the Bill that authorized officers would only use "reasonably necessary force" for the


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purpose of this provision, in order to achieve consistency in the use of expression with a similar reference in clause 19(3) (that is, "use any force that is reasonably necessary"). Members noted that the Administration had agreed to propose amendment to the Bill to make it clear that the "necessary force" is "reasonable". Clause 26 seeks to provide that, for implementing any provision in the Convention and its conservation measures, the Director of Agriculture, Fisheries and Conservation ("DAFC") may exchange any information, as reasonably required, with the Secretariat of the Commission or the competent authority of any place. As to the relevant requirements relating to information exchange, some members were concerned about the scope of information that might be exchanged, as "reasonably required" by the Secretariat of the Commission or competent authorities of other places; and whether personal data of individuals would be disclosed in the information exchange process. According to the Administration, the requirements relating to information exchange were set out in three conservation measures under the Convention. Information exchanged for such purposes would include, among others, those set out in the Convention's prescribed forms, such as names and contact details of vessels owners, vessel operators and importers/exporters of toothfish. The Administration assured members of the Bills Committee that when exchanging information with the Secretariat of the Commission or competent authorities of other places, DAFC would ensure compliance with data protection principles and the provisions of the Personal Data (Privacy) Ordinance (Cap. 486). Clause 31 seeks to provide for the liability of employers and principals in relation to acts done or omission made by employees and agents. With respect to the proposed defence under clause 31(4), members of the Bills Committee sought clarification on the relevant burden and standard of proof, in particular whether the burden on the defendant would only be an "evidential burden". Similarly, as clause 32 seeks to provide for the defence of an employee charged with an offence under the Bill for an act done or omission made by himself/herself, Members requested the Administration to clarify the applicable burden and standard of proof required under clause 32. The Administration explained that the policy intent was that the defendant would only be required to discharge an evidential burden to establish the proposed defence in clauses 31(4) and 32. As such, the defendant would need to


provide sufficient evidence to raise a potentially exculpatory issue and the legal burden would remain on the prosecution to disprove the alleged exculpatory matter and to prove the case beyond reasonable doubt. Taking into account members' views, the Administration will propose amendments to clauses 31(4) and 32 to make the above policy intent clearer. The Bills Committee had raised no objection to the Administration's proposed amendments. Deputy President, the above is the report concerning the work of the Bills Committee. I now express my personal views about the Bill. Deputy President, I support the Bill. In fact, as I have mentioned in my speech just now, since only 300 samples would be tested annually and only 10 vessels had entered Hong Kong waters in the past, I have reservations about the Government's proposal of setting up a team comprising several professional and technical staff under AFCD and another team of professional and technical staff of a similar scale under the Government Laboratory. I hope the Administration will provide an appropriate answer later on. I also hope the Government will consider whether such a small amount of work can be absorbed with internal resources. With regards to the laboratory work, in view of the small amount of samples, the Government can actually consider outsourcing the work in order to avoid a waste of resources. It is because I am especially concerned about the fact that we need to employ professional and technical people and set up a task force to deal with a small amount of work every year. With regards to other points, we consider them acceptable as the Administration will propose amendments taking into account various views put forward by us. Deputy President, the question that I was asked the most concerning the Bill was: "What is that fish?" As we have held three meetings on the Bill, many people asked us what exactly toothfish was? I have searched the Internet for some information about toothfish, and I have found that many people are cooking toothfish in these days. I have also found that there are videos teaching people how to cook toothfish. For that reason, I believe that the demand for toothfish will increase in future.


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When we were discussing this piece of new legislation, we also brought up the issue concerning the marine ecology in the Antarctic. Deputy President, I went to the Antarctic in 2010 with experts in climatic changes and some Antarctic marine biologists. At that time, we noted the huge impact of climatic changes on the ecology in the Antarctic, and we saw the melting of many glaciers, which would have a huge impact on seawater on the earth and result in a drastic change in the living environment for many marine species. Besides the impact of climatic changes on the Antarctic, we have seen that more and more big fishing vessels were sailing to the Antarctic to catch marine products. Besides toothfish, which is being discussed today, another marine creature that we concern very much is Antarctic krill. Antarctic krill is a very important marine creature in the Antarctic, because it is the staple food for whales, penguins and other marine creatures. Almost each layer of the marine food chain depends on krill as the major source of food. However, over-fishing has resulted in a decline in the fish catch for the vessels fishing in the Antarctic. In view of a decline in fish catch, these vessels have begun massive catch of Antarctic krills. Although a licensing regime has been put in place and there is a certain degree of regulatory oversight, we have seen large quantities of Antarctic krills being caught and it seems that no authorities in the world can put a check on such activities. But what does it concern Hong Kong? Deputy President, colleagues may note that a number of health products claim that they contain krill oil or Antarctic krill. Even some fishing baits have used frozen Antarctic krills as the baits. We can therefore see that more and more people will go to the Antarctic to catch Antarctic krills, and in the course of catching krills, they will also catch other marine creatures in the Antarctic, including toothfish. We had brought up such issues in the discussion of the amendments, but the Administration said that they had nothing to do with the Bill. Nonetheless, we consider that as a Contracting Party of the Convention, Hong Kong is obliged to fulfil its obligations under the Convention. For that reason, I consider the Administration is duty-bound to convey our concerns to Member states and cities of the Convention. Moreover, we should play a more proactive role in order to protect marine species in the Antarctic.


I consider that Hong Kong should not put herself in such a passive position that we only amend the relevant laws when problems arise. We should take the initiative to play a more active role to protect the marine ecology of the Antarctic and resist climate changes. Deputy President, I so submit. DEPUTY PRESIDENT (in Cantonese): Does any other Member wish to speak? MR HUI CHI-FUNG: Deputy President, I speak as a member of the Bills Committee on Conservation of Antarctic Marine Living Resources Bill ("the Bills Committee") and also as a member of our mother nature. The oceans cover about 70% of the earth and Hong Kong is a major beneficiary. Our city may be small in terms of land but we are fortunately surrounded by massive water. Our water holds an incredible number of diverse marine animals, specifically around 6 000 species as recorded by the Swire Institute of Marine Science at the University of Hong Kong. Our city holds more than one fourth of all marine species recorded in China. According to the same institute, the number of marine species in Hong Kong is disproportionately large compared to the area we have. This gives Hong Kong a huge responsibility in understanding, in raising people's awareness of the significance of our rich marine life, and more importantly in protecting it, as it is one of our greatest strengths. The ocean is the largest ecosystem on earth, it provides us with food, medicine, livelihood and at times even protects humans against the devastation caused by natural disasters. The diversity and productivity of the oceans are crucial to the security and survival of mankind. It is devastating how humans, out of a lack of awareness or due to selfishness, are overharvesting and taking advantage of the resources that the oceans are providing. We are destroying the marine ecosystem with our self-absorption. We have to put in our minds that whatever we throw to our environment will eventually come back to us. The damage we create and inflict to our environment is mostly irreversible. In fact, what we experience now is resulting in nothing but what our future generations would need to endure. Hence, we have to start taking actions.


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I support the introduction of the Conservation of Antarctic Marine Living Resources Bill ("the Bill"). One of its aims is to protect the survival of toothfish. Hong Kong's proximity to massive water also translates to the city's being prone to a significant level of exploitative, illegal, unreported and unregulated trading. As stated on the report of the Bills Committee, this proposal is supported by Article 153 of the Basic Law in relation to the application of international agreements to Hong Kong. Not only that Hong Kong is responsible for the water surrounding the city, surrounding the world, we also have a role in making sure we are living up to the requirements of international treaties and agreements. Like how we always push for democracy and human rights, we should also highlight the importance of what is giving us life―our environment. There are several local and international organizations in Hong Kong which are trying to help us with this battle, such as the World Wildlife Fund and Greenpeace. Our community is already speaking, so the Government should be doing a lot more. Climate change itself is already making its move to our oceans and is threatening biodiversity, we should start looking for concrete steps to protect what is left before it is completely gone. The Government should lead this mission to save our waters and marine life for the future generations. We will eventually reap what we sow. Deputy President, I hereby speak in support of the Bill proposed for Second Reading. Thank you. DEPUTY PRESIDENT (in Cantonese): Does any other Member wish to speak? (No Member indicated a wish to speak) DEPUTY PRESIDENT (in Cantonese): If not, I now call upon the Secretary to reply. Then, the debate will come to a close.


SECRETARY FOR FOOD AND HEALTH (in Cantonese): Deputy President, honourable Members, the Food and Health Bureau introduced into the Legislative Council in July last year the Conservation of Antarctic Marine Living Resources Bill ("the Bill"), which aims to provide the legal basis for implementing the Convention on the Conservation of Antarctic Marine Living Resources ("CCAMLR") and related Conservation Measures in Hong Kong. CCAMLR entered into force in 1982 with the objective of conserving Antarctic marine living resources and regulating the rational utilization and management of marine living resources in the Convention Area. China acceded to CCAMLR in 2006. Toothfish, one of the species harvested in the Antarctic Ocean as a table fish, has been experiencing illegal, unreported and unregulated fishing ("IUU fishing"). In recent years, some Contracting Parties have expressed concern about Hong Kong gradually becoming a major region for toothfish trading and requested us to consider implementing CCAMLR. Although Hong Kong has no fishing vessels operating in Antarctic waters, we also wish to fulfil our international responsibility by implementing CCAMLR to regulate toothfish trading in Hong Kong and taking measures to conserve marine living resources in a concerted effort with other places to protect marine resources. Upon consultation with the HKSAR Government, the Central Government has agreed in principle to extend the application of CCAMLR to Hong Kong. In order to comply with CCAMLR, we propose to enact the Bill to provide a legal framework and introduce provisions to empower the Secretary for Food and Health to make regulations for implementing the provisions of CCAMLR, and set out the enforcement powers of the Director and authorized officers of the Agriculture, Fisheries and Conservation Department ("AFCD"), including the powers to search for, seize, remove, carry out tests on and detain things, sell or dispose of forfeited things, arrest persons, and exchange information with the Marine Department and other competent authorities. The Bills Committee has held three meetings to discuss in depth and clarify the relevant provisions. Having listened to the Bills Committee's views, the Government has agreed to propose appropriate amendments to the Bill. I will propose them later. After the passage of the Bill by the Legislative Council, I will make two regulations by virtue of the powers conferred by the ordinance:


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Firstly, we will implement the Catch Documentation Scheme to regulate the import and export of toothfish. Each catch or shipment of toothfish, no matter imported to or exported from Hong Kong by sea, land or air, must be accompanied by a valid document issued in accordance with the provisions of CCAMLR. Through applications for the issuance of import/export documents, AFCD will ensure that toothfish trading through Hong Kong complies with the Conservation Measures. Secondly, we will formulate regulations for port inspection and control to regulate the entry of fishing vessels carrying Antarctic marine organizms to Hong Kong waters, including inspection of such vessels, and deny entry of vessels ever engaged in IUU fishing activities to Hong Kong waters (Annex C). These two regulations will be introduced to the Legislative Council for scrutiny after the Bill is passed by the Legislative Council. (THE PRESIDENT resumed the Chair) We also conducted a public consultation in early 2018 to gauge the views of stakeholders, including trading companies, representatives of seafood trade and catering associations, as well as environmental groups, on the implementation of CCAMLR and regulation of toothfish trading in Hong Kong. The trade generally considers that the relevant regulation will not cause significant burden on their daily operation. Environmental groups also support the proposal. We intend to officially implement the new regulatory regime about six months after the passage of the Bill and the two pieces of subsidiary legislation so that the trade has sufficient time to prepare. We do not expect that the new regulation will have a substantial impact on Hong Kong's overall trade. Earlier on, Dr Elizabeth QUAT raised a question about manpower. Actually, the Bureau will carefully assess the workload of AFCD and the Government Laboratory after the commencement of the ordinance. In the first five years of implementation of the legislation, about 300 samples will be tested each year. We have to increase the manpower. The Government Laboratory needs professional and technical staff to handle the samples, because prosecution may follow if necessary. Therefore, if our careful assessment indicates the need


for additional manpower or recurrent expenditure to enforce and implement the Conservation Measures under CCAMLR, we will make an estimate of the necessary manpower and resources after drawing up the implementation details, and apply for additional resources under the existing mechanism. Lastly, I would like to thank Mr Steven HO, Chairman of the Bills Committee, as well as the members who took part in the scrutiny, the Legislative Council Secretariat and the legal advisory team for successfully completing the scrutiny of the Bill. President, with these remarks, I implore Members to support the Bill and the Government's amendments that I will propose later. Thank you, President. PRESIDENT (in Cantonese): I now put the question to you and that is: That the Conservation of Antarctic Marine Living Resources Bill be read the Second time. Will those in favour please raise their hands? (Members raised their hands) PRESIDENT (in Cantonese): Those against please raise their hands. (No hands raised) PRESIDENT (in Cantonese): I think the question is agreed by a majority of the Members present. I declare the motion passed. CLERK (in Cantonese): Conservation of Antarctic Marine Living Resources Bill. Council became committee of the whole Council.


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Consideration by Committee of the Whole Council

CHAIRMAN (in Cantonese): Council now becomes committee of the whole Council to consider the Conservation of Antarctic Marine Living Resources Bill. Members may refer to the Appendix to the Script for the debate and voting arrangements for the Bill. CONSERVATION OF ANTARCTIC MARINE LIVING RESOURCES BILL CHAIRMAN (in Cantonese): I will first deal with the clauses with no amendment. I now propose the question to you and that is: That the following clauses stand part of the Bill. CLERK (in Cantonese): Clauses 1 to 14, 16 to 30 and 33. CHAIRMAN (in Cantonese): Does any Member wish to speak? (No Member indicated a wish to speak) CHAIRMAN (in Cantonese): I now put the question to you and that is: That the clauses read out by the Clerk stand part of the Bill. Will those in favour please raise their hands? (Members raised their hands) CHAIRMAN (in Cantonese): Those against please raise their hands. (No hands raised) CHAIRMAN (in Cantonese): I think the question is agreed by a majority of the Members present. I declare the motion passed.


CHAIRMAN (in Cantonese): This committee now deal with the clauses with amendments. I now propose the question to you and that is: That the following clauses stand part of the Bill. CLERK (in Cantonese): Clauses 15, 31 and 32. CHAIRMAN (in Cantonese): The Secretary will move amendments to amend the clauses just read out by the Clerk. Members may now proceed to a joint debate on the original clauses and the amendments. Secretary, you may move your amendments. SECRETARY FOR FOOD AND HEALTH (in Cantonese): Chairman, I move my amendments to amend the clauses just read out by the Clerk. Our proposed amendments, as set out in the paper circulated to Members, aim at clarifying the policy intent, so that the Bill can express more clearly the meaning of the provisions. I will now briefly explain the main contents of the amendments. Firstly, we propose to amend clause 15(3)(b) of the Bill by adding "reasonably" after "use", so as to make it clear that when an authorized officer enters or boards and searches any place or transport, the force used must be reasonably necessary. Secondly, we propose to amend clauses 31 and 32 of the Bill to expressly state that the defendant who wishes to invoke the relevant defence provisions under the Bill is only required to discharge evidential burden. In the case of prosecution involving the aforesaid provisions, the onus of proof still rests with the prosecution. Chairman, we have considered the views of the Bills Committee members and the Legal Advisers of the Legislative Council in drafting the amendments. The Bills Committee does not have any objection to the amendments. Chairman, with these remarks, I implore Members to support the amendments.


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Proposed amendments Clause 15 (See Annex I) Clause 31 (See Annex I) Clause 32 (See Annex I) CHAIRMAN (in Cantonese): I now propose the question to you and that is: That the amendments moved by the Secretary for Food and Health be passed. Does any Member wish to speak? (No Member indicated a wish to speak) CHAIRMAN (in Cantonese): I now put the question to you and that is: That the amendments moved by the Secretary for Food and Health be passed. Will those in favour please raise their hands? (Members raised their hands) CHAIRMAN (in Cantonese): Those against please raise their hands. (No hands raised) CHAIRMAN (in Cantonese): I think the question is agreed by a majority of the Members present. I declare the amendments passed. CLERK (in Cantonese): Clauses 15, 31 and 32 as amended. CHAIRMAN (in Cantonese): I now put the question to you and that is: That the clauses as amended just read out by the Clerk stand part of the Bill. Will those in favour please raise their hands? (Members raised their hands)


CHAIRMAN (in Cantonese): Those against please raise their hands. (No hands raised) CHAIRMAN (in Cantonese): I think the question is agreed by a majority of the Members present. I declare the motion passed. CHAIRMAN (in Cantonese): All the proceedings on the Conservation of Antarctic Marine Living Resources Bill have been concluded in committee of the whole Council. Council now resumes. Council then resumed. SECRETARY FOR FOOD AND HEALTH (in Cantonese): President, I now report to the Council: That the Conservation of Antarctic Marine Living Resources Bill has been passed by committee of the whole Council with amendments. I move the motion that "This Council adopts the report". PRESIDENT (in Cantonese): I now propose the question to you and that is: That the motion moved by the Secretary for Food and Health be passed. In accordance with the Rules of Procedure, this motion shall be voted on without amendment or debate. PRESIDENT (in Cantonese): I now put the question to you as stated. Will those in favour please raise their hands? (Members raised their hands)


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PRESIDENT (in Cantonese): Those against please raise their hands. (No hands raised) PRESIDENT (in Cantonese): I think the question is agreed by a majority of the Members present. I declare the motion passed. Third Reading of Government Bill PRESIDENT (in Cantonese): Government Bill: Third Reading. CONSERVATION OF ANTARCTIC MARINE LIVING RESOURCES BILL SECRETARY FOR FOOD AND HEALTH (in Cantonese): President, I move that the Conservation of Antarctic Marine Living Resources Bill be read the Third time and do pass. PRESIDENT (in Cantonese): I now propose the question to you and that is: That the Conservation of Antarctic Marine Living Resources Bill be read the Third time and do pass. Does any Member wish to speak? (No Member indicated a wish to speak) PRESIDENT (in Cantonese): I now put the question to you as stated. Will those in favour please raise their hands? (Members raised their hands)


PRESIDENT (in Cantonese): Those against please raise their hands. (No hands raised) PRESIDENT (in Cantonese): I think the question is agreed by a majority of the Members present. I declare the motion passed. CLERK (in Cantonese): Conservation of Antarctic Marine Living Resources Bill. MEMBERS' MOTIONS PRESIDENT (in Cantonese): Members' motions. Ms Starry LEE will move a motion under Rule 49E(2) of the Rules of Procedure to take note of the Fugitive Offenders (France) Order, which is included in Report No. 9/18-19 of the House Committee laid on the Table of this Council. PRESIDENT (in Cantonese): In this debate, each Member (including the mover of the motion) may only speak once and for up to 15 minutes. After Members have spoken, I will call upon the public officer to speak. Then, the debate will come to a close, and the motion will not be put to vote. Members who wish to speak please press the "Request to speak" button. I now call upon Ms Starry LEE to speak and move the motion. MOTION UNDER RULE 49E(2) OF THE RULES OF PROCEDURE MS STARRY LEE (in Cantonese): President, in my capacity as Chairman of the House Committee, I move the motion, as printed on the Agenda in accordance with Rule 49E(2) of the Rules of Procedure, be passed, so that Members can


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debate the Fugitive Offenders (France) Order as set out in Report No. 9/18-19 of the House Committee on Consideration of Subsidiary Legislation and Other Instruments. President, I so submit. Ms Starry LEE moved the following motion:

"That this Council takes note of Report No. 9/18-19 of the House Committee laid on the Table of the Council on 23 January 2019 in relation to the subsidiary legislation and instrument(s) as listed below:

Item Number

Title of Subsidiary Legislation or Instrument

(4) Fugitive Offenders (France) Order (L.N. 240/2018)." PRESIDENT (in Cantonese): I now propose the question to you and that is: That the motion moved by Ms Starry LEE be passed. MR DENNIS KWOK (in Cantonese): President, I am a Member of the Subcommittee on the Fugitive Offenders (France) Order. During the deliberation of the Subcommittee on the Fugitive Offenders (France) Order, Members had raised a series of questions, but I am not going to repeat them one by one. Nevertheless, I have to point out a part written in Article 13, sub-paragraph 3 of the Fugitive Offenders (France) Order (in Chinese): "在香港特別行政區方面，本條規定不影響香港特別行政區與中華人民共和國

的任何其他地方之間關於移交被控告或被定罪人士的安排 ". The English version is as follows: "For the Hong Kong Special Administrative Region, the provisions of this Article shall not affect the arrangements for the surrender of accused or convicted persons between the Hong Kong Special Administrative Region and any other part of the People's Republic of China." This part of the provision (that is, sub-paragraph 3 of Article 13) has caused lengthy discussion and debate among Subcommittee Members. Everyone knows that at present, no arrangement for the surrender of accused or convicted persons between Hong Kong and the People's Republic of China, commonly known as the Mainland, has been put in place. That is to say,


we have not put in place any agreement or arrangement for the surrender of fugitives. The content of this provision is virtually very interesting. Why is it specified that "the provisions of this Article shall not affect the arrangements for the surrender of accused or convicted persons between the Hong Kong Special Administrative Region and any other part of the People's Republic of China"? In fact, we have not put in place any arrangement with the Mainland. Why should this provision be specified in the first place? Does it mean that in future, we will make certain arrangements for the surrender of accused or convicted persons with the Mainland, and therefore we have to draft a provision in advance? We have asked the Administration about that and the Government replied that the Government was negotiating with Mainland authorities about the arrangements for the surrender of accused or convicted persons and it might conclude certain arrangements with the Mainland. We then questioned the progress and details of the negotiation as it was the concern of many Hong Kong people. (THE PRESIDENT'S DEPUTY, MS STARRY LEE, took the Chair) If the Administration has started the discussion and therefore it has to write down such provisions in the Fugitive Offenders (France) Order, I shall say the content is actually rather vague and it is a rather hasty approach. The reason is simple. If any fugitive order signed between Hong Kong and another overseas country should not affect the fugitive order signed or such arrangement made between Hong Kong and the Mainland in future so that the two orders or arrangements will not be in conflict with each other, then it will definitely create some objective results. In other words, if France asks Hong Kong to surrender accused or convicted persons to France, but according to the future arrangement made between Hong Kong and the Mainland, Hong Kong is asked to surrender the relevant person to the Mainland, then Hong Kong has to ignore the French Government's demand of surrendering the relevant person to the French Government and has to surrender the person to the Mainland authorities as per this provision. This is the objective result of the provision and it will bring about very serious consequences. That is, as an independent jurisdiction, Hong Kong should never reject any request from the Mainland concerning the surrender of a fugitive and it has to ignore the request made by any other foreign country―including France, which is under discussion―for the surrender of an


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accused or convicted person. In this connection, we cannot reject any request made by the Mainland and we have to comply with the Mainland's request of surrendering of an accused or convicted person. Why have we written down this provision or who has prompted us to write down such a provision? Certainly it is a policy decision made by a Government official or a senior public officer. But back then, representatives from the Department of Justice could not answer the relevant question about who had made such a decision. Who was the person who proposed that when we make the arrangement or decision or sign the agreement for the surrender of criminals with the Mainland in future, such arrangement, decision or agreement should supersede any fugitive order signed between Hong Kong and any other country or region? That is to say, as an independent jurisdiction, Hong Kong has to forsake all the power of discretion and considerations under the common law. Originally, if a request for surrendering a criminal is made by more than one country, say, France, the United States or any given two countries have made such a request for the surrender of a suspect, the Hong Kong court needs to see what crime has the person committed in the two countries which request his surrender, the severity of the crime he has committed, and if the offence he has committed is equivalent to any offence in Hong Kong and if such person is convicted, what maximum sentence he will get. Considerations will be given according to his background. The court will weight and decide each case individually to see if the person should be surrendered to France, the United States or any other country. However, the biggest problem of this provision is that a restriction is imposed on Hong Kong. If the Mainland asks for the surrender of a certain person in future, while France also asks for the surrender of this person, then Hong Kong is obliged to surrender the suspect or convicted person to Mainland as Hong Kong cannot take into account other considerations, including the court's power of discretion or considerations. The court cannot or need not take any of these into consideration. This approach is too hasty, as we do not know what agreement or arrangement will be made between Hong Kong and the Mainland. I believe that it will also cause huge controversy. If this provision is written down, it will necessitate stipulation of specified provisions when we sign any agreement relating to a fugitive order with any foreign places in future. It is because the


agreement or arrangement to be made between Hong Kong and the Mainland in future on the surrender of fugitive will supersede or supplant arrangements signed between Hong Kong and other foreign jurisdictions. In the first place, I must point out that the approach is groundless and too hasty. Unknowingly, we will surrender voluntarily the power of discretion entitled to an independent jurisdiction to the Mainland. Another question we have asked the Administration was about the basis on which the Government decided that the surrender arrangement of fugitives to be concluded between Hong Kong and the Mainland should supersede other arrangements made between Hong Kong and other countries or jurisdictions. The officer from Department of Justice replied that if a defendant was in Paris, France, while the city of Lyon requested the transfer of the suspect or defendant to the court in Lyon to stand a trial, the French Government would definitely transfer that person to Lyon and would ignore the simultaneous request made by Hong Kong for the surrender of that person to Hong Kong to stand a trial. The analogy sounds reasonable. However, if we think it over, under the framework of "One Country, Two Systems", it will not be the case that fits the actual situation of Hong Kong, and it is not a precise analogy. Why do I say so? It is because there is no "One Country, Two Systems" in France. She is one state and she only has one jurisdiction. In Hong Kong, under the framework of "One Country, Two Systems", Hong Kong is an independent jurisdiction and the jurisdiction of the Mainland is separated from that of Hong Kong. The two jurisdictions are not subordinated to each other, and they have no fundamental connection at all. Based on this inference, is the jurisdiction of Hong Kong subordinated to the jurisdiction of the Mainland according to this provision? Some people will of course think so, as they think the Constitution of the People's Republic of China ("the Constitution") is implemented in Hong Kong. Of course, we do not accept this and we will not discuss this issue at the present stage as to whether the Constitution should be fully implemented in Hong Kong. As far as the position of the Civic Party is concerned, it is impossible. If that is the case, why did the authorities not make it clear some 20 years ago? Certainly, we agree that the stipulations under Article 31 of the Basic Law of the Hong Kong Special Administrative Region of The People's Republic of China ("Basic Law"), "One Country, Two Systems" or "Hong Kong people


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administering Hong Kong", "a high degree of autonomy", as well as the Basic Law itself are derived from the Constitution. We will not question that and it is not necessary to debate on that. Nevertheless, if we say that Hong Kong as an independent jurisdiction has to throw away all its power of discretion and considerations under the Basic Law or the common law because it is going to conclude certain agreements with the Mainland in relation to the surrender of criminals, we shall say that we cannot accept such an arrangement. For that reason, in principle, we should point out that this provision will impose grave impact on Hong Kong as an international metropolis and an independent jurisdiction under the framework of "One Country, Two Systems". Therefore, we hope that the Administration should not include this provision in the drafting of the Fugitive Offenders (France) Order or any other fugitive orders to be concluded with other countries in future. It is because the provision is too vague and it is too hasty to include the provision in the Bill. The Administration has taken no heed to the actual situation of Hong Kong as an independent jurisdiction. Deputy President, I so submit. DEPUTY PRESIDENT (in Cantonese): Does any other Member wish to speak? (No Member indicated a wish to speak) DEPUTY PRESIDENT (in Cantonese): If not, I now call upon the public officer to speak. Then, the debate will come to a close. Secretary for Security, please speak. SECRETARY FOR SECURITY (in Cantonese): Deputy President, I wish to thank the Chairman of the Subcommittee and its members in deliberating the Fugitive Offenders (France) Order meticulously and providing invaluable comments.


Hong Kong has been giving its full support to reciprocal juridical assistance in the international arena and actively cooperating with other jurisdictions in combating criminal activities. Article 96 of the Basic Law provides that with the authorization of the Central People's Government, the Government of the Hong Kong Special Administrative Region may make bilateral agreements on the surrender of fugitive offenders. Such agreements may effective prevent criminals from evading judicial trials by absconding to foreign places. The agreement on the surrender of fugitive offenders was signed between Hong Kong and France in May 2017, which was one of the 20 bilateral agreements concluded by Hong Kong and other jurisdictions. The Fugitive Offenders (France) Order, which is made under section 3(1) of the Fugitive Offenders Ordinance, seeks to provide the legal basis for the surrender of fugitive offenders between Hong Kong and France. The Fugitive Offenders (France) Order has already set out the legal guarantees under the Fugitive Offenders Ordinance. These legal guarantees include: (1) the relevant act being committed is an offence under the laws of both parties, which is commonly known as the double criminality rule; (2) the same act should not be subject to double jeopardy; (3) the surrender should not be made for the purpose of prosecuting the relevant person on account of his/her race, religion, sex, nationality or political opinions; (4) the relevant person should not be surrendered to a third jurisdiction; and (5) persons on death row will not be transferred. All of these safeguards have been specified in the agreement concerning the surrender of fugitive offenders signed between Hong Kong and France, and they are applicable to every case concerning the surrender of fugitive offenders between Hong Kong and France in future. Hong Kong and France have all along been endeavouring in combating criminal activities through international cooperations. The bilateral agreement on the mutual legal assistance in criminal matters between the two sides had come into effect in 1999, and the agreement on the surrender of fugitive offenders was put into effect in 2008. The agreement concerning the surrender of fugitive offenders set out under the Fugitive Offenders (France) Order will help us to take a step forward in fortifying the bilateral cooperation in combating criminal matters between the two sides. I wish to thank Mr Dennis KWOK, a member of the Subcommittee, for speaking on the Order. Mr KWOK's major concern was about the formulation of the provision as set out in Article 13 of the Agreement between the


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Government of the Hong Kong Special Administrative Region of the People's Republic of China and the Government of the French Republic Concerning Surrender of Accused or Convicted Persons, which is attached to the Schedule of the Fugitive Offenders (France) Order in relation to concurrent requests being made for surrender for the same person from the other Party and a third State. It also stipulates that the requested party should take into account all the circumstances, including the applicable provisions in this regard in any agreements or arrangements in force, the relative seriousness and place of commission of the offences, the respective dates of the requests, the nationality and ordinary place of residence of the person and the possibility of subsequent surrender to another place. Articles 13(1) and 13(2) seek to provide what a requested party should do when it receives requests for surrender for the same person from the other party and a third state. Since Hong Kong is part of China, therefore Articles 13(1) and 13(2) are not applicable to requests made by any other part of the People's Republic of China. In this circumstance, the addition of Article 13(3) seeks to ensure that the operation of Article 13 will not affect future arrangements for the surrender of accused or convicted persons between Hong Kong and any other part of China. In fact, in the negotiation of similar arrangements with various places in the past, the specific provisions in those agreements were not entirely the same. It only reflects the understandings of the two parties that room should be reserved in order to deal with possible scenarios that may arise in future. Deputy President, the agreements for the surrender of accused or convicted persons signed by the Hong Kong Special Administrative Region with other regions highlights the advantage that only Hong Kong may enjoy under "one country, two systems" and the Basic Law. It may help Hong Kong's integration into the international community in the fight against crime. All of the stipulations comply with the requirements under the Fugitive Offenders Ordinance. The Fugitive Offenders (France) Order is no exception. I wish to thank once again for efforts made by Members in the deliberation of the Fugitive Offenders (France) Order. Thank you, Deputy President.


DEPUTY PRESIDENT (in Cantonese): In accordance with Rule 49E(9) of the Rules of Procedure, I will not put any question on the motion. DEPUTY PRESIDENT (in Cantonese): Motion under Article 73(5) and (10) of the Basic Law. Members who wish to speak please press the "Request to speak" button. I call upon Mr Dennis KWOK to speak and move the motion. MOTION UNDER ARTICLE 73(5) AND (10) OF THE BASIC LAW OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION OF THE PEOPLE'S REPUBLIC OF CHINA MR DENNIS KWOK (in Cantonese): Deputy President, I move that this motion on summoning the Secretary for Justice be passed. I believe those who have kept an eye on the recent happenings in Hong Kong should know very well the related background of the incident. However, I must clearly reiterate the background here in this Legislative Council meeting because this is the first formal motion debate on the Secretary for Justice's decision on whether or not to institute prosecution concerning Mr LEUNG Chun-ying's UGL case. Deputy President, I believe people who have small knowledge of the law should know that improper procedures will definitely be subject to public suspicion, no matter what the final decision or outcome of an incident is. Today, very regrettably, and very ironically also, we have to summon a public officer who should know best, in the entire Government, what procedural justice is and why it is so important and the public officer is the Secretary for Justice. We question her why, in the handling of the UGL case, she did not adhere to procedural justice, something that is well understood by the entire legal profession. The Department of Justice ("DoJ") has the practice of engaging outside counsel to provide the required legal services, such as to provide legal advice or act as the legal representative of the Government in criminal or civil litigation. I put a written question in a Legislative Council meeting regarding the policy and status of DoJ on briefing out legal services. Ms Teresa CHENG has not yet assumed the post of Secretary for Justice at the time. According to the Secretary


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for Justice at that time, DoJ generally may brief out cases in six situations: first, there is a need for expert assistance where the requisite skill is not available in DoJ; second, there is no suitable in-house counsel to appear in court for the Hong Kong Special Administrative Region; third, there is a need for advice or proceedings involving members of DoJ; fourth, there is a need for continuity and economy; fifth, for the sake of prudence, it is deemed appropriate to obtain independent outside counsel's advice or services to address possible perception of bias or issues of conflict of interests; and sixth, the size, complexity, quantum and length of a case so dictate. DoJ further elaborated on the fifth situation above in the Administration's paper on the briefing out of criminal and civil cases by DoJ for the meeting of our Panel on Administration of Justice and Legal Services in February last year. Two points are worth our attention. First, regarding the handling of controversial cases, DoJ advises that the majority of the prosecutions, including controversial cases, are conducted by in-house staff of DoJ. However, there is a need for briefing out the prosecution of some controversial cases where expert assistance is needed, or to avoid perception of bias or address issues of conflict of interests. DoJ will also consider the sensitivity of a case when it considers the need to seek the advice of outside Senior Counsel. Second, regarding the principles on briefing out cases to overseas counsel, DoJ says that in considering the necessity to brief out a case to overseas Senior Counsel for independent advice, DoJ will consider the complexity regarding the points of law, any significant constitutional, policy or financial implications or any major public interests, the sensitivity of the issues involved, the legal representation of the opposite party, etc. If we look at past history, I believe there is no way that the Secretary for Justice, Ms CHENG, is ignorant of the standing practice of DoJ and the precedents. If that is the case, I believe her subordinates would inform her of the six major cases which involved senior public officers and that all of the cases were briefed out to outside Senior Counsel for independent advice. The first case took place in 2003 involving the former Financial Secretary Mr Antony LEUNG who jumped the gun in purchasing a car shortly before a tax increase. DoJ said in a statement that in view of the complexity of the points of law involved and the level of public concern on the case, DoJ had sought advice from counsel in private practice in Hong Kong and England before it came to the decision that no prosecution should be brought against Mr LEUNG. We all


know this case. DoJ made a full and detailed explanation; and before it made the decision of not instituting prosecution, DoJ had sought independent advice from private members of the Bar of Hong Kong and England. Second, in 2006, former High Court Judge Mr Michael WONG was accused of alleged impropriety in connection with his applications to the Government for reimbursement of Leave Passage Allowance. DoJ said in a statement that in view of the sensitivity of the case, the nature of the evidence and the level of public concern, the Director of Public Prosecutions ("DPP") decided to instruct a Queen's Counsel in London to consider the allegations and the evidence, and made the decision of not instituting prosecution in the end. Even if a case involves a High Court Judge, the practice is still the same. After considering the level of public concern and the sensitivity of a case, DoJ decided to seek advice from a Queen's Counsel in London and then came to the decision of not prosecuting. So, the present case involves a pro-establishment Member of the Legislative Council and a former Chief Executive who, now being the vice-chairman of the National Committee of the Chinese People's Political Consultative Conference, is a state leader. If the incumbent Secretary for Justice tells me that this case does not have the required level of sensitivity and this incident is different from the incidents concerning the former High Court Judge Mr Michael WONG and the former Financial Secretary Mr Antony LEUNG, it will not be convincing. Third, in 2012, former Chief Secretary for Administration did not declare his acceptance of an advantage from Sun Hung Kai Properties Limited. Before the Secretary for Justice at that time decided to take prosecution action, he had issued a statement saying that in general, if there were sensitivities with regard to a particular case, delegating the prosecution decision to DPP or seeking independent advice from outside counsel or both were options available for consideration; and these options had been adopted in past cases. Later, at a Finance Committee meeting of the Legislative Council in which DoJ submitted a funding proposal for additional staffing to handle the case on Mr Rafael HUI, the DoJ representative said that advice had been sought from outside counsel on the case. This is the third example. If DoJ has sought outside legal advice on the case of the former Chief Secretary for Administration for the charge of corruption, why it is unnecessary to do so for the present case? She cannot explain herself.


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Fourth, in 2013, the former member of the Executive Council, Mr Franklin LAM, and his wife allegedly sold their property shortly before the launch of an anti-property speculation measure by the Government. DoJ also sought advice from outside counsel on the case and held that there was inadequate evidence to warrant a prosecution action and withdrew the charge against him. This is the fourth example. The fifth example took place in 2015. The former Chief Executive Mr Donald TSANG allegedly committed the offence of misconduct in public office and DoJ also engaged the services of not just one but several overseas Queen's Counsel for independent legal advice. DoJ finally decided to bring prosecution against Mr TSANG. If these five precedents are still insufficient, I can cite one more. The sixth example is Mr Timothy TONG, the former Commissioner of the Independent Commission Against Corruption ("ICAC"), who allegedly purchased Maotai, a kind of hard liquor, with public money and admitted using hard liquor to serve guests in several official entertainments. The Secretary for Justice and DPP of the time, respectively Mr Rimsky YUEN and Mr Keith YEUNG, said at a media session that due to the importance and sensitivity of the incident and the complexity of the legal issues involved, DoJ had instructed an overseas Queen's Council, Mr Jonathan CAPLAN, to provide independent advice before it decided not to institute prosecution. I wonder if the Secretary has been briefed by her colleagues on these six cases in the VIP room when she returned to Hong Kong. If they have not done so, I think she should dismiss them. If they have already done so but the Secretary still behaved so nonchalantly and publicly claimed that she was a responsible person and could make the decision by herself, dismissing the need to engage an outside counsel for advice, then would she please refer to the past practice. I believe we all know that the incumbent Secretary for Justice is not an expert in criminal proceedings. She has dealt with arbitration and civil cases. It is common sense that if the legal sector has to deal with such an important criminal case and the person to handle it is not well-experienced in this field, the person will not make any careless decision or use his or her half-baked knowledge to make any decision. Any responsible member of the legal profession who knows the past history and the importance of procedural justice


will definitely seek advice from criminal law experts before making any decision. The person will not pretend to be responsible and dogmatically make the decision. This is the first point. Second, please tell me which of these six incidents is more sensitive, or is of a higher level of public concern or involves the same or even more complex legal issues than this case concerning Mr LEUNG Chun-ying and Mr Holden CHOW. In handling Mr Franklin LAM's case for having jumped the gun in selling property, DoJ sought advice from an independent Senior Counsel. In considering whether or not DoJ should initiate criminal proceedings against a High Court Judge for his integrity issue, DoJ also engaged the service of a Senior Counsel. In handling the case concerning the former Financial Secretary who jumped the gun in purchasing a car, DoJ also instructed an independent Senior Counsel to provide advice. And in handling the case of the former Commissioner of ICAC Mr Timothy TONG who allegedly used public money to purchase liquor, DoJ also engaged the service of outside Senior Counsel. But now, regarding the alleged collusion between a former Chief Executive and a pro-establishment Member, in considering whether there is any corruption and misconduct in public office involved, the Secretary for Justice tells me that the incident is not politically sensitive. Actually, is this her apparent lack of political sensitivity? All Hong Kong people find the case very sensitive. It is of a high level of public concern. But the Secretary says to us that this is not politically sensitive and it is just an ordinary case. Will anyone find her decision convincing? Equally important is that this case involves quite many complex and major points of law that are constitution-related. For instance, Article 47(2) of the Basic Law provides that the Chief Executive, on assuming office, shall declare his or her assets to the Chief Justice of the Court of Final Appeal and the declaration shall be put on record. Is the Chief Executive required to declare any commercial contracts he has entered into before he assumes office and any interests generated therefrom, as well as advantages he has accepted during his office? This is a major constitutional issue yet to be explored. I believe the Senior Counsel concerned has to be very familiar with criminal laws and criminal cases; also, they have to know by heart the constitutional foundation of Hong Kong, as well as the history about the enactment of the Basic Law and its legal principles and basis. If the Secretary for Justice thinks that she is invincible and is an expert in the Constitution and criminal laws, apart from her specialty in arbitration and civil laws, and that she can shoulder all responsibility alone, I would have to commend her. However,


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if she says to me, or members of the legal profession or Hong Kong people, that she can make this important and complex decision alone without the need of instructing an outside Senior Counsel to handle the case, I think she is dreaming. Let us come back to the decision on the handling of the UGL case. I must mention a new problem that has recently sprung up. The Chief Executive has delayed confirming the substantive appointment of the incumbent DPP. I formally put a written question at the Legislative Council meeting on 8 January, questioning why the Chief Executive has taken so long to confirm the promotion of Mr David LEUNG to the substantive post of DPP. But then, a few days later, the Government quickly announced the substantive appointment of Mr LEUNG as DPP. Why is this so? It is an important appointment. Why did the Government not provide any reasons for the long delay in the formal appointment and why did it stall the appointment at will for a year before making the final decision? Why does the Government always come to a decision only after a problem has sprung up? I believe other colleagues will also ask this question, and the Secretary has to answer it. Deputy President, I so submit and move that the motion, as printed on the Agenda, be passed. Mr Dennis KWOK moved the following motion:

"That, pursuant to Article 73(5) and (10) of the Basic Law of the Hong Kong Special Administrative Region of the People's Republic of China, this Council summons the Secretary for Justice, Ms Teresa CHENG, S.C., to attend before the Council at its earliest meeting after the passage of this motion to produce all relevant papers, books, records or documents and to testify or give evidence on her handling of the case of alleged corruption and/or alleged misconduct in public office of former Chief Executive of the Hong Kong Special Administrative Region Mr LEUNG Chun-ying, her failure to comply with the Department of Justice's briefing out policy to seek legal advice from Queen's Counsel and/or Senior Counsel on the case, and her decision of not prosecuting Mr LEUNG Chun-ying, and relevant matters."

DEPUTY PRESIDENT (in Cantonese): I now propose the question to you and that is: That the motion moved by Mr Dennis KWOK be passed.


SECRETARY FOR JUSTICE (in Cantonese): Deputy President, I urge Members to reject today's motion moved by Mr KWOK pursuant to Article 73(5) and (10) of the Basic Law for three major reasons: First, with reference to Article 63 of the Basic Law and the case law of the Court of Appeal, passage of the motion may constitute interfering with or exerting influence on the prosecutorial independence of the Department of Justice ("DoJ") in carrying out criminal prosecution, thereby undermining the constitutional guarantee enshrined in Article 63 of the Basic Law, and this must be avoided in any case; Second, comprehensive disclosure of the evidence, reasons, relevant papers, books, records or documents for discussions at the Legislative Council may amount to a public trial and deprive the persons concerned of the safeguards which they are entitled to in the criminal justice process, and this is a violation of the most fundamental principles of the rule of law; Third, it is not a norm of the DoJ to seek outside legal advice in making a prosecutorial decision regarding a criminal case, but it is our usual practice to make prosecutorial decision by members of the DoJ. We will seek outside legal advice in case any member of the DoJ is involved in the proceedings as this is more appropriate to do so. As to individual cases, the DoJ will consider as necessary whether legal advice should be sought from outside counsel if the situation (as under the usual conditions set out in the relevant papers already submitted to the Legislative Council) so dictates. Deputy President, I would like to elaborate on the first point I have mentioned just now, namely the importance of Article 63 of the Basic Law. It provides, "The Department of Justice of the Hong Kong Special Administrative Region shall control criminal prosecutions, free from any interference." The constitutional responsibility and guarantee under Article 63 of the Basic Law are meant to ensure that the independence of competent criminal prosecution work must be maintained. And also, the court had submitted in the case law that in discharging this duty, the Secretary for Justice shall "act independently without the fear of political interference or improper or undue influence". Upholding the same principles without fear, favour or prejudice in processing the case to which today's motion refers, my colleagues in the DoJ and myself carry out our duties professionally based on evidence and in accordance with applicable law and the Prosecution Code promulgated by the DoJ which has long proven effective.


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I would also like to further elaborate on the second point mentioned just now. The Prosecution Code has set out clear guidelines on publication of reasons, which reads, "… the benefit of justice being seen to be done must not be allowed to result in justice not being done." Normally, it is understood that we will not engage in any further discussion upon making the decision to prosecute a person since the judicial process has commenced. Actually, we should be even more careful not to make other comments so lightly after a decision of not prosecuting a person is made. Even if the case is subject to public discussion, we must still have regards for the publication reasons for a prosecutorial decision and should not cause any undue impacts on the administration of justice, in particular in the case of a decision of not instituting prosecution is made. It is because it may amount to a public trial, where the persons involved in the case will be deprived of the safeguards which they are entitled to in the criminal justice process if too much information is provided for public discussion. Deputy President, the three points I have made just now are important principles which, I think, are sufficient to convince Members to veto the current motion. However, in respect of this very case, I wish to explain to both the Deputy President and Members that, as we all know, the court is now dealing with the application for leave for judicial review of the case to which the motion refers and which is processed by the DoJ. It is just inappropriate and impossible for me to further respond to or provide supplementary information regarding the details of the case in order not to prejudice the relevant judicial proceedings. In addition, as far as I understand, in accordance with Rule 41(2) of the Rules of Procedure of the Legislative Council, a Member shall not make reference to a case pending in a court of law in such a way as, in the opinion of the President or the Chairman, might prejudice that case. This is another crucial reason why we do not think that the Secretary for Justice should be required to disclose relevant information or any documents of the case, or to testify in respect of the case. I implore Members to veto this motion for the reasons stated above. Meanwhile, Deputy President, I will listen to Members' views on the motion before responding to them and making my concluding remarks in detail. Thank you, Deputy President.


MS TANYA CHAN (in Cantonese): Deputy President, I consider it a real disgrace for the Secretary for Justice to represent the judicial sector of Hong Kong. Since the scandal involving unauthorized structure found in her house was exposed around the time she took office up to the present … I have made this chart deliberately so that she could know what was going on. She took office in January last year, which was somewhat later than other secretaries and bureau directors, but her support rating was below zero, representing a negative net approval rating. Her support rating in December was -26.8%, but her recent support rating has become -48.4% after she was tasked to handle the UGL incident. Deputy President, why has her support rating seen a sudden nosedive? To be honest, Mr Dennis KWOK is rarely seen to be in such a state of anger as he is always decently dressed and gentleman-like―and I had better be a bit more lady-like so as to match up to his usual style. He has questioned just now whether the Secretary lacks sufficient sensitivity. In fact, she made the point on the very first day when she assumed office that she lacked political sensitivity. You may still recall her various explanations for the issue of unauthorized structure in her house, such as "I might have been too busy then", "I lack sufficient political sensitivity", "I was probably not alert enough", etc. Besides, she did not know what her husband was doing, nor did her husband know what she was doing. Well, what was she doing actually? In fact, the people of Hong Kong had no idea what she was doing either. What is more, although she is the co-author of the book entitled Construction Law and Practice in Hong Kong, her legal knowledge―take a look at the underground chamber (i.e. a basement) beneath her place at House 4, Villa de Mer, Tuen Mun. Seeing it with the naked eyes, one will find that even ordinary people who have no legal knowledge or background can tell that it must be an unauthorized structure. And she herself only needs to look at the building plan to find the redundant structure in the form of a basement. Yet, she simply ignored this and proceeded to borrow loans from the bank. Pecuniary interest is involved in this case. It is utterly inappropriate that her act of "obtaining pecuniary interest by deception" was not followed up by the Director of Public Prosecutions ("DPP") with independent legal advice sought in respect of this. Anyway, I have to come back to Mr Dennis KWOK's motion.


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The Secretary has mentioned three points just now. Referring to the Basic Law, she said that doing so might constitute an act of intervention, i.e. encroachment or interference. She then remarked that seeking outside legal advice when making prosecutorial decisions for criminal cases is not a usual practice. Well, we have heard such excuses of theirs repeatedly for nearly a month but we are still not convinced so far. Let us first talk about the issue of intervention before finding out why the Secretary thinks that the wording of Mr Dennis KWOK's motion has contravened the Basic Law. I wonder if the Secretary has read this paper of a dozen pages now being held in my hand, which is about the Antony LEUNG case in 2003. Mr Dennis KWOK has just now cited this case as an example. Then look at this single page in contrast, which is precisely the script of the speech on the investigation of the UGL incident (i.e. the press release) delivered by the Secretary for Justice to the public at the airport on 12 December. Look here, there is only one single page. The two are actually of the same page size, except that this single-page script/press release has a few more lines of words on it. Is it wrong for the authorities to provide some more background information? First of all, let us look at the information paper issued by the Administration on the Antony LEUNG case: The background of the incident is set out in the first place and followed by Mr LEUNG's statement and explanations, the procedures taken by the Department of Justice ("DoJ") in processing the case, including the selection of a Senior Counsel ("SC") for legal advice with reasons provided, the SC's finalized advice, the review of the case by the DPP, and finally the conclusion. Deputy President, could the provision of such information be possibly deemed a contravention of Article 63 of the Basic Law that has undermined the Basic Law? Does this imply that the Basic Law has long been undermined as it was already in force back then in 2003? Well, has she ever read the Basic Law actually? How come she would have uttered such "truths"? In addition, as Mr Dennis KWOK pointed out just now, the Secretary for Justice has previously sought outside legal advice on numerous politically sensitive cases or had those cases referred to the DPP instead of processing them himself or herself. Our Honourable Colleague Mr Jeffrey LAM―I do not mean to mock at Members of this Council, but it has something to do with facts. You may refer to relevant press releases and I have checked every single piece of those press releases myself―Mr LAM had a traffic accident back then which could be dealt with in two different ways. First, the Secretary for Justice referred the case to the DPP for processing in order to avoid arousing suspicion. Second, outside legal advice would be sought. Deputy President, I deliberately


reviewed the relevant records and learned that Mr Jeffrey LAM joined the Executive Council ("the ExCo") in October 2012 after Mr LEUNG Chun-ying assumed office of the Chief Executive. Then he had a traffic accident on 1 July 2013, the anniversary day of Hong Kong's reunification with China, and was suspected of careless driving. Consider this: Mr LAM was only an ExCo Member then and had worked with LEUNG for only a few months, but the incumbent Secretary for Justice at that time still thought it necessary to avoid arousing any suspicion. Yet, has the incumbent Secretary for Justice, i.e. Teresa CHENG, ever checked for how long she and LEUNG had worked together? LEUNG was the Convenor of the ExCo from 1999 to 2011 but Secretary CHENG said last week that she did not remember―she did not remember most of the things and I have no idea what she does remember―but I do remember that she had been the Chairman of the Transport Advisory Committee for six years altogether between 2004 and 2010. Maybe she can no longer remember her terms of reference―of course she had to advise and report on a regular basis then―perhaps the Deputy President have met the Chairman of the Traffic Advisory Committee during your service in the ExCo. Nevertheless, she made no effort to avoid arousing suspicion and even remarked that she did not remember during which years she and LEUNG were colleagues. The problem lies not in whether she remember which years but in that she should have attempted to avoid arousing any suspicion when it was necessary for her to deal with the UGL incident. There are numerous precedents in which the Secretary for Justice sought to avoid arousing suspicion. Deputy President, it is a norm that the Secretary for Justice seeks to avoid arousing suspicion on his/her initiative―I will tell Members something rather paradoxical later. For example, the then incumbent Secretary for Justice Ms Elsie LEUNG did not deal with the Antony LEUNG case herself in 2003 which was handled by the DPP instead. The Rafael HUI case was even more complicated, Deputy President. It took place during the term of office of Mr WONG Yan-lung, who was supposed to deal with the case, but Mr WONG had the case followed up by the then DPP Mr Kevin ZERVOS instead, and the case was handed over to Mr Keith YEUNG some time later who succeeded Mr ZERVOS who left the DoJ. Yet Mr YEUNG decided to let Mr Rimsky YUEN take over the case upon realizing that he himself was acquainted with Rafael HUI. Deputy President, all the above facts were recorded in official press releases with explanations provided. I have not finished yet, Deputy President. Apart from the above examples, there are also the traffic accident involving Mr Paul CHAN and another one involving Mr Jeffrey LAM which I have mentioned just now. Moreover, there are also instances in which the Secretary for Justice chose to keep his/her hands off the cases, including those involving "689", i.e. former Chief Executive LEUNG


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Chun-ying, LEW Mon-hung and Benny TAI. In these cases, both the then Secretary for Justice Mr Rimsky YUEN and the DPP Mr Kevin YEUNG had to step back for the sake of avoiding arousing suspicion as they were acquainted with the defendants of respective cases. Deputy President, the above cases and the respective years of occurrence have all been set out in the relevant press releases and members of the public can revisit their explanations on DoJ's website. They gave clear and lucid explanations, in which possible bias and improper influence (i.e. possibly causing public perception of miscarriage of justice) were also mentioned in addition to the issue of sensitivity. However, in response to my enquiry last week, the Secretary for Justice told Members not to worry and made reference to "apparent bias" and the relevant legal definition. Let me quote what she said: "A fair-minded and informed observer having taken all the relevant circumstances into account comes to review as to whether or not there is a real risk of bias." Yet, I do not have to respond because Prof Johannes CHAN, Honourable SC, whom we very much trust, has already made a response. According to him, there are two types of bias: one involves genuine conflict of interest―obviously, this type of bias is not the bone of contention as far as the UGL incident is concerned―the other being perceived bias, that is, the perception of procedural partiality by a reasonable person. Secretary Teresa CHENG reminded us last time that she actually had a legal background, but did her predecessors, namely Mr WONG Yan-lung, Mr Rimsky YUEN and Ms Elsie LEUNG, etc., not have such a background as well? They were all aware of the need to avoid arousing suspicion, but why not Secretary CHENG? Having worked with LEUNG Chun-ying for six years, she made no mention of it. Not only did she not seek to avoid arousing suspicion, she even said that she had forgotten how long they had worked together. Deputy President, the Secretary said that she had forgotten this, but is this a sound justification? She utterly lied knowingly. Moreover, Deputy President, she said nothing about the fact that she had worked with LEUNG for six years and continued to process the case. Is it up to her to decide not to institute prosecution against him? Deputy President, why do I have to make such an important point? Well, you may be surprised by the fact that it is not me who first brought up the issue but by Mr Paul TSE instead, who made this point in a radio programme earlier on. It is rather essential indeed. After the occurrence of the UGL incident, Mr Rimsky YUEN, the then Secretary


for Justice, issued a press release on 9 October 2014: "In response to media enquiries concerning the complaint made to the Independent Commission Against Corruption today against the Chief Executive, Mr LEUNG Chun-ying, a spokesman for the DoJ said today (9 October) that the Secretary for Justice, in order to avoid any possible perception of bias, partiality or improper influence―Deputy President, it is the 'perception' and not necessarily the fact that matters―after satisfying himself that the DPP Mr Keith YEUNG, SC, has no connection with any of the persons involved in the case, has delegated to the DPP the authority to handle the matter, including (should it eventually become necessary to do so) considering and deciding whether any prosecution action against any persons is warranted." This has already made it clear that Mr Rimsky YUEN had referred the case to Mr Keith YEUNG for processing. Yet, just now we have heard that ever since the appointment of Mr David LEUNG, SC, as the DPP, it is no longer possible for us to learn from the DoJ's homepage whether the case is still being handled by the DPP himself. All that we can see is, as I have shown you just now, the thin page of press release issued by Secretary CHENG on 12 December. After taking the vacation leave, she said she did not remember when her leave application was submitted. Well, Deputy President, once again she had forgotten things. How awesome that she can recall nothing at all! By the end of December, she answered questions from the press at the airport. I would rather not bother her since she has been giving replies in her capacity as the Secretary for Justice. It does not matter, however, because her superior Ms Carrie LAM also responded to media questions. According to Ms Carrie LAM, the decision in question was made by the Secretary for Justice herself and she did respect Secretary CHENG's decision. It is no lie. You may refer to the press release entitled "Transcript of remarks by CE at media session at Hong Kong International Airport" together with relevant video clipping issued on 28 December for the entire media session of that day. It is directly stated in the text of the press release: "As the Chief Executive, I support her decision (i.e. not to institute prosecution) based on her legal expertise … and so it is not incomprehensible that she has made such a decision." It was pointed out in the press release that the incident was under the sole responsibility of Secretary CHENG, but no press release has ever been issued to elaborate on this. However, "HK01" reported what had subsequently happened. She made a very interesting response: "It is impossible to comment given the ongoing legal proceedings regarding the case." Deputy President, why is it impossible for her to comment since we are dealing with facts? What is the


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problem in telling us when the case "changed hands", i.e. handed over by the former DPP to the new DPP but was later handed back to the Secretary for Justice for processing? Which part of this is deemed very sensitive? Should it be the case that nothing about this can be mentioned purely due to the ongoing judicial review, then the Guangzhou-Shenzhen-Hong Kong Express Rail Link (Co-location) Bill should not have been introduced into the Legislative Council because someone had proceeded to seek judicial review soon after the issuance of the papers on the "co-location arrangement" were issued. In that case, why did the Government still introduce the Bill to this Council, while the Secretary also attended the meeting of this Council to provide relevant explanations then? And so, has this anything to do with the judicial review? Furthermore, Deputy President, I have mentioned just now that press releases must be issued in respect of the repeated changing hands of the case as it is not the very first time for this to happen. Mr WONG Yan-lung was supposed to handle the Rafael HUI case back then, but perhaps because he was acquainted with Rafael HUI and for the sake of avoiding arousing suspicion, the then DPP Mr Kevin ZERVOS was tasked to process the case in the end. Upon the departure of Mr Kevin ZERVOS, the case was taken over by his successor Mr Keith YEUNG, SC. Nevertheless, the case had to be handed back to Mr Rimsky YUEN for processing since Mr Keith YEUNG was also acquainted with Rafael HUI. The chronicle showing the sequence of such developments is backed up by facts, where relevant press releases were issued between 2010 and 2013 and are absolutely traceable. Yet, the Secretary refused to comment, using the ongoing judicial review as an excuse. Is it true that she cannot even comment on facts? Or has she just forgotten all about it once again? If she has really forgotten, she should ask her colleagues to help check it out. Not being able to respond to people's questions, she will say something like "I have forgotten", "I am not politically sensitive" or ask to be given more space whenever she feels embarrassed or worried about falling into traps. Actually, we have already given her ample space. Hence, I hope Secretary CHENG will self-reflect and mull over whether herself is qualified to serve as Secretary for Justice. (The buzzer sounded) DEPUTY PRESIDENT (in Cantonese): Your speaking time is up. I remind Members to speak on the contents of the motion during the debate of a motion and not to digress from the question under debate.


MR LAM CHEUK-TING (in Cantonese): Deputy President, first of all, I am grateful to Mr Dennis KWOK for proposing this motion to press on with the UGL case. As we all know, under the Basic Law, criminal prosecution work of the Secretary for Justice is free from interference, but does it mean that we are not allowed to raise any question about the Secretary's decisions, or to demand his or her further explanation? Certainly not. If "free from interference" means that the Secretary may give no explanation at all for the decisions made, then it would have been unnecessary for the former Secretaries for Justice to provide detailed explanations about their decisions of not instituting prosecution in a number of cases involving senior officials. As we look back at some cases in the past, such as the case of Timothy TONG, the case of Franklin LAM, and the case of Antony LEUNG, fairly detailed explanations were provided by the then Secretaries for Justice. And just now, Ms Tanya CHAN also gave us some other examples. Let us look at one example, the most recent case concerning Franklin LAM. The then Secretary for Justice gave a clear account of the investigation by the Independent Commission Against Corruption ("ICAC") and the important results obtained. Also, a thorough analysis of the legal grounds with the subsequent conclusion was set out. The statement concerned consisted of five to six pages, at least. In contrast, for these two cases of LEUNG Chun-ying and Holden CHOW which involve altogether three allegations, how long is the statement concerned? Just slightly more than one page. Though totally three allegations are involved (i.e. the allegations of corruption and misconduct in public office against LEUNG Chun-ying, and the allegation of misconduct in public office against Holden CHOW), the relevant explanation only covers half a page, containing content which is not only scanty, but also shrouded with suspicions. Deputy President, let me cite a few examples. First, in respect of the case of LEUNG Chun-ying, the Department of Justice ("DoJ") stated that "the totality of the evidence is that as part of the arrangement of the takeover, DTZ had knowledge of Mr LEUNG entering into agreement with and accepting money from UGL for Mr LEUNG's non-compete, non-poach arrangements", and this is the finding of DoJ. But the aforementioned sentence alone already contains three doubtful points. Firstly, DTZ knew that there was an agreement, but the point was whether such knowledge amounted to consent. There are many things


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we know, say, I know that DoJ has made this decision, but this does not imply that I agree with DoJ's decision of not prosecuting LEUNG Chun-ying. Knowledge just does not imply consent. One important concept enshrined in the Prevention of Bribery Ordinance is that permission from one's principal is the necessary prerequisite for accepting any advantage relating to the business of the company. This being the case, does knowledge amount to permission then? Then comes the second doubtful point. DoJ asserted that DTZ had knowledge of LEUNG Chung-ying entering into that agreement and accepting money, but what was the amount? While DTZ knew that he had accepted money, things could be different depending on the amount received, say, £10,000, £100,000, or £4 million. For instance, if DTZ knew that he had received £100,000, the board of directors might consent to it. But it does not necessarily follow that the board of directors would give such consent if the amount was £4 million. So, did the board of directors know that the amount was £4 million? This is also something unclear. The third doubtful point concerns the "non-compete, non-poach arrangements". No doubt such arrangements form a part of the agreement, but are they all that it is about? Of course not, because it has been put in black and white on the agreement that he is required to act as an adviser and referee of UGL and DTZ in the future, and to promote that group. So, is this term of service equivalent to the "non-compete, non-poach arrangements"? Surely not. Even for just this point that DoJ raised, it is not acceptable according to the standard required for ICAC's prosecution file. From my experience, if the conclusion or the findings stated in a document submitted by an ICAC officer is presented in a way like this point, the document will definitely be rejected and returned by the officer's superior at once, and the superior will say, "With so many ambiguities in the document, you still submit it for my perusal. What on earth is going on with you?" What are the findings from the investigation? Why is there no mention of the findings in the document? Is it the case that DTZ did not give LEUNG Chun-ying permission to enter into the agreement? This is the key issue. The last part of this paragraph reads: "The evidence fell short of establishing DTZ did not consent to Mr LEUNG accepting the monies or that the conduct fell within the mischief of an agent accepting advantage charge within section 9 of the Prevention of Bribery Ordinance, Cap. 201. There is no


reasonable prospect of conviction of a corruption charge against Mr LEUNG." Firstly, here, it is not to say that he is free from suspicion, but rather under certain suspicion. It is only that the evidence is insufficient for instituting prosecution against him. Secondly, when the evidence fell short of establishing that DTZ did not consent, it conversely means the evidence failed to establish otherwise either. If the presence of such consent had been established, DoJ would have explicitly stated that DTZ consented to it. In other words, among the materials submitted to DoJ by ICAC after its protracted investigation, there was nothing to suggest that LEUNG Chun-ying had obtained DTZ's consent to the acceptance of the several million pounds. Given that this sum of several million pounds was an amount deducted from the purchase price of DTZ in the acquisition, have the interests of the creditors of DTZ been prejudiced? For all these doubts, does DoJ know full well the truth but refrains from explaining it clearly? Or is it that ICAC submitted the materials to DoJ without a thorough investigation? I do not believe that it is the latter case. I believe that ICAC is a professional investigatory body and it must have examined the basic information thoroughly before submitting anything to DoJ. Then, why did DoJ refrain from giving a clear account of the very basic information and explained things so vaguely? In mentioning the second allegation against LEUNG Chun-ying, that is misconduct in public office, DoJ said, "… since there is no conflict of interest on the part of Mr LEUNG, there was no legal requirement for him to make declaration of the amount that he was to receive under the agreement with UGL entered into before he became the Chief Executive." But, what does it mean by "no conflict of interest"? Why did DoJ come up with such a conclusion? Did DoJ do any analysis? The relevant conclusion should not be something emerging from nowhere, as if it has burst out from a rock. Nor should it sound like the story of creation in which everything was in disorder at the beginning but sky, light and land suddenly appeared at God's command. Whether there is any conflict of interest is not something for DoJ to determine. Why did DoJ still do that? Why can't the Secretary for Justice explain everything just like her predecessors did? Deputy President, the conclusion drawn for the case of Holden CHOW is all the more ridiculous. It is comprised of three points only. First, DoJ confirmed that the amendments to the major area of studies of the Select Committee set up by the Legislative Council for the UGL case originated from


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LEUNG Chun-ying. Second, DoJ concluded, for reasons unknown, that those amendments would not affect the proper functioning of the Select Committee. Mr Kenneth LEUNG and I were members of the Select Committee, but we never had this kind of discussion or made such conclusion. I do not know on what basis DoJ concluded that those amendment would not affect the proper functioning of the Select Committee. If that is really the case, why did Mr Holden CHOW need to apologize and resign? Why was it necessary for us to elect a new member, Mr Steven HO, into the Select Committee? Is this still normal? Or is it not abnormal enough? What on earth is going on? The concluding sentence of this paragraph also sounds strange: "There is insufficient evidence to prove that such misconduct was serious enough to establish the offence of MIPO." Secretary Teresa CHENG, we are now talking about the Chief Executive approaching a Legislative Council Member to interfere with the inquiry against him. Is it not serious enough? In the past, what kind of cases would be prosecuted for this offence of misconduct in public office? A number of civil servants who skived off work but claimed to be at work were charged with this offence. Doctors who had their family members moved to the head of the queue for faster access to medical consultation were charged with this offence. The present case is that the head of the Administration has interfered with the inquiry against him. Is it not serious enough? What will be regarded as serious enough? Is that only something similar to the Reichstag fire started by the Nazis will be regarded as serious enough? Teresa CHENG, what is wrong with you? Confronted with numerous queries, what did the Secretary do to deal with it? Going on leave. After her leave, what did she say? She said that in the absence of any explicit bias, it was not necessary to engage outside counsel for independent legal advice. What is explicit bias? While attending the Legislative Council, she then used the term "apparent bias", but nothing as such is written in the guidelines concerned. Perhaps, let me read it out, "to address possible perception of bias". It just refers to possible, rather than actual bias. Now, how many people would describe the Secretary of Justice as biased? Let me tell the Secretary about a public opinion poll conducted by the Public Opinion Programme of the University of Hong Kong, and read out the findings. A question asked is how much the respondents would agree with the saying that DoJ was biased as LEUNG Chun-ying is one of the state leaders, Vice Chairman of the National Committee of the Chinese People's Political Consultative


Conference, and the former Chief Executive, and that DoJ's decision, i.e. the decision of not instituting prosecution, was a biased one. Forty percent of the respondents agreed strongly with this view; 20% agreed slightly; 13% disagreed slightly; and another 13% disagreed strongly. That means 60% of the respondents agreed, either strongly or slightly, that the Secretary of Justice was biased. Then, the next question is whether the respondents thought that the Secretary of Justice should give a detailed account of the investigation results and the legal basis. Sixty-eight percent thought that it was really necessary; and 17% considered it quite necessary. In other words, 85% of the respondents found it really necessary or necessary for the Secretary of Justice to set out the legal basis and investigation results. Following that, respondents were further asked whether they thought DoJ should have engaged outside counsel for this UGL case before deciding whether to institute prosecution, as it had sought independent legal advice from outside counsel for the cases of Antony LEUNG, Donald TSANG, and Timothy TONG. Fifty-seven percent thought that it was really necessary; and 17% considered it quite necessary, thus making a total of 73%. Subsequent to that question, respondents were asked whether the Secretary for Justice's decision of not prosecuting LEUNG Chun-ying would affect people's confidence in the rule of law. Fifty-four percent thought that it had a negative impact, whereas 4% deemed that it had a positive impact. Secretary, all these people are reasonable men, right? The poll has interviewed not just 1 but 1 000 persons. The Secretary alone dictated whether there was bias, but her definition of "bias" seems to be different from what is generally understood.1 Moreover, the Secretary has put construction on―I am not talking about your residence, Secretary―the existing Prosecution Code which actually reads "possible perception of bias". Why did the Secretary change it to "apparent bias"? Why? When did the Secretary change it? On what basis did the Secretary change it? Why was there no announcement of such change afterwards? Was the change made for LEUNG Chun-ying's sake? If that is the case, is it true that double standards was adopted in handling his case? Was the change tailor-made for him? Is this contrary to the first objective of DoJ's Prosecution Code: "Promote consistency in prosecution practice, eliminating unwarranted disparity between cases"?2 Is this the case? 1 <https://www.hkupop.hku.hk/english/report/sj_ugl/content/freq.html> 2 <https://www.doj.gov.hk/eng/public/pubsoppapcon.html>

https://www.hkupop.hku.hk/english/report/sj_ugl/content/freq.html

https://www.doj.gov.hk/eng/public/pubsoppapcon.html


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What the Secretary has shown us now is that the case of LEUNG Chun-ying is the one single case that she does not dare to seek advice from outside counsel. Probably, the Secretary may respond that over the past three years, there was only one case where outside counsel was engaged for legal advice. However, it is meaningless simply to cite a figure. We need to draw a comparison with cases of a similar nature. In many of the cases involving senior officials, DoJ engaged outside counsel to provide legal advice. Why was the Secretary shy of doing so in LEUNG Chun-ying's case? Is it because the Secretary was afraid that the advice given by outside counsel would be unfavourable to LEUNG Chun-ying? If the advice was that prosecution should be instituted, the Secretary would then find herself in an awkward position, having no alternative but to institute prosecution. Is it right? Teresa CHENG, this is the view members of the public now hold: LEUNG Chun-ying is the former Chief Executive and a state leader, whereas the Secretary for Justice is the head responsible for prosecutions in the local government of the Hong Kong Special Administrative Region of the People's Republic of China. When the Secretary handles a criminal case involving a state leader, people will perceive it as a situation where a subordinate has to prosecute a political figure of a much senior rank, and this will result in the perception of bias, to say the least. For the sake of this issue alone, DoJ should have engaged outside counsel for independent advice. But why did the Secretary fail to do so? Why did the Secretary lack the courage to do so? Deputy President, this very case is undermining Hong Kong people's confidence in the rule of law, and dampening their confidence in Hong Kong's probity situation. Teresa CHENG, the Secretary for Justice, has interpreted and handled the case of LEUNG Chun-ying in a way different from our common understanding and DoJ's established practice. The rule of law in Hong Kong is thus seriously undermined. She is the culprit of the rule of law in Hong Kong. To me, she no longer has the credibility to stay in her position as the Secretary for Justice. I so submit. MS CLAUDIA MO: I seriously hate to get personal because we are not supposed to be discussing matters from too personal a perspective or targeting a certain person. But then, just now, it is almost miserable to hear our Secretary for Justice speak like almost a broken record, simply repeating herself. And it is indeed very sad that we would need such a motion at the local legislature to go against this particular case or two cases.


Now, I would like to register on the record that I harbour no personal animosity against the matter in hand. But then, I would also acknowledge that there are abundant popular bad feelings toward this person called LEUNG Chun-ying, who governed Hong Kong for four to five years from 2012 to 2017. You would say, "So, you are talking about populism, or simply public perception?" Maybe. I will come back to that later. But the word is "justice". Justice must not just be done; it must also be seen to be done. Your decision, Ms CHENG, not to seek outside comment, opinion, service or help in any way on this "CY LEUNG saga" is as ludicrous as it is offensive, because it is insulting. You are insulting the intelligence of Hong Kong people. Any Hongkonger with the right mind will tell you that this just does not sound right. And you have successfully put the entire Department of Justice's credibility on the line. Are you being fair as the Head of that department? I was talking about perception, and perception, you would say, is really not a judicial matter. But the fact is Ms CHENG herself gave us reasons that … well, when the Department of Justice would need to consider looking for outside help, on what grounds? One of them is when it is deemed appropriate to obtain independent outside counsel's advice or services so as to address possible perception of bias or issues of conflict of interests. Possible perception. It came from you. Perception is a huge factor in judicial justice, please. And please do not come to us and say, "You are merely selling this public, again, perception that the so-called judicial chief and her colleagues, minions, must have closed ranks to protect one of their own. It is a club they are operating and one of their own being a national leader called LEUNG Chun-ying." It is a perception, albeit unfortunate, and it addresses exactly what you were saying that, as a result, you should have sought outside counsel. She is slipping herself. And what is wrong with Hong Kong's rule of law or judicial independence for that matter? Some people would actually say that Ms CHENG could be experimenting some leniency or some judicial practice, with the hope that ultimately it would become a habit―without saying it, of course―that if it involves one of us, watch out, we can always claim that we just do not do it; we can decide on our own, full stop; and we can get away with it. So she thinks. If you think you were experimenting, it is a very miserable failed experiment, I mean, to the point that when they issued to the public that one-sheet explanation … decision, oh, no explanation, really, no details given altogether. They thought they would not need it. They do not need any details to make their one-page statement ring any


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bit of sincerity or truthfulness. They thought they could just get along and then get away with it. Can you believe that? This is just not right. The Basic Law guarantees that our judiciary is independent, for goodness' sake. Now, as a result, she prompted us and practically invited us to go on the attack, not just on this particular case but also on her integrity. It is a matter of integrity now, as a judicial professional, and it is very unfortunate. I hate it personally. You do not attack people for personal reasons. But how can you get out of it here, in this mess? She has exhibited a total legal disconnect, a judicial disconnect that she … "I am the law. I think it is not necessary. So, I do not do it." And that is sad. And people would say, "You guys keep focusing on technicalities. You should not. You should look at the facts of this 'CY LEUNG business'." We are not just looking at technicalities. We are looking for procedural justice. Technicality is her refusal to get external help or service. What is wrong with that? I would ask those who think there is nothing wrong with that to reply to us instead: Why do you think there is nothing wrong with that? Because as the Department of Justice says itself, they need to address issues of possible perception of bias or of conflict of interests. Or, maybe, Ms CHENG was hoping for inconsequentiality that the whole matter is not of consequence that, after a couple of days, people may go blah, blah, blah, and she could hide, first of all, behind her holidays, but ultimately she could hide behind all the gobbledygook of legalese, something the common men in the street would not understand, and she could bluff her way through. There will be nothing of consequence. Nothing will come of it, nothing bad, hopefully. You are quite wrong because, as I was saying, this perception that you people have apparently closed ranks to protect LEUNG Chun-ying, as one of you, as one of the rich and powerful and famous. This perception will not go away and will never go away. You think you can just get away with it. But Hong Kong people are not having any of it. DR KWOK KA-KI (in Cantonese): Deputy President, I rise to speak in support of Mr Dennis KWOK's motion under Article 73(5) and (10) of the Basic Law to summons Secretary for Justice Teresa CHENG to attend before the Council to explain why she refused to seek outside legal advice in handling the case of alleged corruption involving former Chief Executive LEUNG Chun-ying.


Deputy President, I listened attentively to Teresa CHENG's speech just now. According to her, her attendance before this Council will jeopardize the rule of law, and any further explanation from her will jeopardize the rule of law to an even greater extent. If one gives the answer "It is not Teresa CHENG" to the question of who is ruining Hong Kong's rule of law today, then I honestly cannot think of anybody else. In December, when the Government announced that it would not press any charges against LEUNG Chun-ying, ordinary people on the streets invariably burst out, "How can it be so outrageous?" "Greedy TSANG"―Donald TSANG―was put behind bars due to a small sum. After serving his one-year prison sentence, he was released recently. In the case of LEUNG Chun-ying, he allegedly accepted a bribe of $50 million. But he is able to get away. And, the Secretary for Justice has even argued that there is no need for any explanation. How can she possibly safeguard our rule of law? We find it most displeasing to see that Teresa CHENG showed an "I could not care less" attitude when speaking in the Legislative Council, in total disregard for Hong Kong people's distress. We do not mind who holds the office of Secretary for Justice; neither do we intend to cause her any hard time. If Teresa CHENG is not in her present post and therefore has no responsibility to defend the rule of law, I will not care about what she does, right? Do Legislative Council Members like to see her? Certainly not. But she is required by her present post to safeguard Hong Kong's rule of law. She is duty-bound to tell everybody why she refused to follow the relevant practice. And, we are not asking her to explain the details of the whole case, by the way. At a meeting of the Finance Committee last year, the representative of the Department of Justice ("DoJ") already explained everything very clearly in his reply to Mr Dennis KWOK's question about the criteria for determining the seeking or otherwise of legal advice from outside senior counsel. Of course, he is not like Teresa CHENG, in the sense that Teresa CHENG has made things up, merely saying that this course of action is necessary only when a case involves DoJ personnel. At the time, he asserted categorically that it was necessary if DoJ could not find any appropriate experts, the case involved public officers, or it was of a very sensitive nature. Did she not think that the LEUNG Chun-ying case was high-profile and sensitive enough? During his five years' tenure as Chief Executive, Hong Kong was on the verge of disintegration, and he was even involved in the UGL Limited ("UGL") case. People in Hong Kong all found him so very detestable, and everybody hoped that the case could be brought to


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court, so that the court might determine whether he had been involved in any corruption and whether he had done anything unacceptable to Hong Kong, and find out the truth of the case. As Members may still remember, as the UGL incident raged on, works problems with the Shatin to Central Link ("SCL") project were also brought to light. The SCL incident is actually related to the UGL case one way or another because of the intricate relationship between the two. For instance, even though LEUNG Chun-ying was well aware that Raymond CHIEN was a UGL director, he still appointed him as Board Chairman of the MTR Corporation Limited. Deputy President, I do not intend to stray too far from the present topic. But LEUNG Chun-ying himself and also his acceptance of the $50 million "parting fee" have honestly brought suspicion upon himself. Anyone with the slightest sensitivity will realize that all Hong Kong people are very concerned about this case. But as everybody expected Teresa CHENG to take action on this case, she nonetheless made the most appalling decision of refusing to seek legal advice from outside senior counsel, much to people's bewilderment. (THE PRESIDENT resumed the Chair) A look at Hong Kong's rule of law these days will … Well, I must say that this is actually not the first time. Since her assumption of office, she has put Hong Kong's rule of law on the line. Soon after she assumed office, she was already involved in an unauthorized building works ("UBWs") incident, and she was even unable to explain herself. She is an engineer, and she once published a book to teach people about Hong Kong's construction laws … PRESIDENT (in Cantonese): Dr KWOK Ka-ki, the topic under discussion is … DR KWOK KA-KI (in Cantonese): President, I am now speaking on the topic. I know what you want to say. PRESIDENT (in Cantonese): Please return to the topic of this debate.


DR KWOK KA-KI (in Cantonese): I now return to the topic under discussion. Her decision has led many people to lose confidence in her. So, we intend to give her an opportunity to show us how she will handle the case of alleged corruption involving LEUNG Chun-ying. But one thing can be certain and that is, she has not disappointed those behind her. Those behind her may think that she has done a good job as she refused to seek legal advice from outside senior counsel and press charges against LEUNG Chun-ying. She has accomplished her task as she did nothing of these. This might be the most important criteria in their consideration of her appointment at the time. Her relationship with LEUNG Chun-ying is labyrinthine, and she was even his colleague for six years. She therefore must be "clearer than drinking water", so to speak. Even if she sought legal advice from outside senior counsel, she would not be stripped of her ultimate decision-making power. Speaking of the UBWs case involving her and her husband, DoJ likewise sought legal advice from outside senior counsel. This example clearly shows that this decision was made with the sound judgment of the department under her charge. And in this case, she should likewise exercise sound judgment and make the decision expected of her by Hong Kong people. Nevertheless, she has even failed to understand this simple point and fulfil such a low expectation. As I said just now, Hong Kong people cherish the rule of law very much. Therefore, in the course of defending Hong Kong's rule of law, they will definitely watch DoJ very closely to see whether it has impartially exercised its power to do what it ought to. We do not hope to see the devastation of Hong Kong's rule of law under the leadership of this new Secretary for Justice in the new-term Government. Let us look at the rating of the Secretary for Justice―we have just discussed many incidents―it is -48. Some have compared Teresa CHENG's rating with the lowest rating of former Secretary for Justice Elsie LEUNG in an opinion survey conducted by the University of Hong Kong during the SARS outbreak in 2003, and they have found that her rating is even lower than Elsie LEUNG's rating. We can never imagine that she can be worse than her predecessor and perform so very deplorably. Hong Kong people's general perception of the rule of law these days is that Secretary for Justice Teresa CHENG has dictated everything, and DoJ has literally become ineffectual. The situation inside DoJ is likewise an indication of this. As reported, two experienced public prosecutors in DoJ will step down, and many people working in DoJ …


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PRESIDENT (in Cantonese): Dr KWOK Ka-ki, I remind you again that this motion seeks to summons the Secretary for Justice to attend before the Council to produce all relevant papers and give evidence on her handling of the case of alleged corruption and alleged misconduct in public office of former Chief Executive Mr LEUNG Chun-ying, her failure to comply with DoJ's briefing-out policy to seek outside legal advice on the case, her decision of not prosecuting Mr LEUNG Chun-ying, and relevant matters. Please return to the topic of this debate. DR KWOK KA-KI (in Cantonese): Alright. I also thank you for reading out the motion contents again. This can spare me the need of repeating them. We hope that on this case, DoJ can manifest its functions. This explains why we are so very concerned about the Secretary for Justice's handling of this case. And, this is also the reason why we consider it necessary to invoke Article 73 of the Basic Law to summons the Secretary for Justice to attend before the Council to explain her refusal to seek outside legal advice on this case. As also pointed out by various Members, this is not the first case involving senior officials or former senior officials. In cases of alleged corruption and misconduct in public office involving former senior officials, such as Donald TSANG, Rafael HUI and Timothy TONG, DoJ must make a decision which is deemed independent or impartial by the public. In this regard, the Hong Kong Bar Association issued a statement in December. It raises one clear point on DoJ's decisions (including those on the seeking or otherwise of outside legal advice), the point that whether the relevant approach is impartial should not be determined by the Secretary for Justice based on her own subjectivity; instead, the public must agree, understand and recognize that DoJ's handling is just and impartial. This is a very important point. If they do not follow this, the community will only form the perception that DoJ practises favouritism because people will think that DoJ avoids seeking independent legal advice as it wants to reach a particular conclusion under certain circumstances. The seeking of independent legal advice is nothing new. In many previous cases involving senior officials or former senior officials, people invariably expected the Government to make an impartial decision. And, the Secretary for Justice at the time also decided to seek independent legal advice from outside senior counsel. It does not matter whether the independent legal


advice is in favour of prosecution or not at the end of the day. Many people, including me, do not understand why the Secretary for Justice should be so retrogressive in this case, one which is of grave concern to Hong Kong people. Hong Kong people born in the 1960s or the 1970s will remember clearly that the Independent Commission Against Corruption was established in 1974, and it has brought new hopes to Hong Kong people. To all Hong Kong people, probity and integrity is a quality expected and required of public officers and civil servants. This is particularly true as this case involves a former Chief Executive. He was vested with great power, and his decisions involved various interests and could affect many public policies. And, many intricate pecuniary relationships and interests were also involved. Everybody (the public, in particular) will definitely cherish a higher expectation of the decision made by the Government (especially the Secretary for Justice) on this case when compared to other ordinary cases. Even ordinary people can understand this point. Why does the Secretary for Justice fail to understand it nonetheless? Is the Secretary for Justice playing dumb? Or, is she pretending she cannot hear the public outcry? All this cannot possibly work. If people have seen the curriculum vitae of the Secretary for Justice, they will find that she is a senior counsel, and it is not the first time that her performance in public office has come under public appraisal and scrutiny. One year has passed since the Secretary for Justice assumed office, and she should have enough time. Why is she even unable to understand this common sense wisdom and this simple point? Nobody knows why. If the Secretary for Justice remains adamant about her decision, this case will become a mystery forever. Not only ordinary people think that her decision is controversial. Even Bernard Charnwut CHAN, Convenor of the Executive Council, also said when asked about her decision that Teresa CHENG was obligated to explain the whole thing clearly. Earlier on, when Carrie LAM was asked about the decision for the very first time―even though she changes her words later―she also said that Teresa CHENG should explain it to Hong Kong people. This is a very basic expectation of her. But even if she really does so, various royalists and pro-establishment Members will speak in defence of her all the same. Very much to our regret, the prophecy has come true. Hong Kong's rule of law has perished. I so submit.


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MR LEUNG YIU-CHUNG (in Cantonese): President, I rise to speak in support of Mr Dennis KWOK's motion. In my view, it is absolutely necessary for Secretary for Justice Teresa CHENG and also her obligation to give an account in the Legislative Council on the refusal to seek legal advice from outside counsel before making the decision of not prosecuting former Chief Executive LEUNG Chun-ying for his undisclosed acceptance of a substantial "parting fee" from UGL Limited ("UGL"). The statement on not prosecuting LEUNG Chun-ying issued somewhat unexpectedly by the Secretary for Justice on 12 December last year has led to public uproar. And, the adamant refusal of Secretary for Justice Teresa CHENG to give society and people a clear explanation on the grounds for refusing to seek independent legal advice in the one month that followed had inevitably given rise to the public perception of possible favouritism. All this, coupled with LEUNG Chun-ying's present status as Vice-Chairman of the National Committee of the Chinese People's Political Consultative Conference ("CPPCC"), has even aroused the suspicion that it is a political decision. If all this is true, then the relevant decision is undoubtedly in serious breach of the legal principle of fairness and impartiality, one which has even greatly dampened people's confidence in the Department of Justice ("DoJ"). This cannot be taken lightly. For all these reasons, we urge Teresa CHENG to attend before this Council to give Members and people a clear account in broad daylight on the grounds for her decision, so as to avoid shattering DoJ's credibility. In fact, if DoJ decides not to prosecute the case, it is definitely obligated to put forth convincing grounds at the same time. Let me recap this incident. Former Chief Executive LEUNG Chun-ying secretively accepted a substantial "parting fee" from UGL as a reward for his earlier assistance to UGL in its takeover of DTZ Holdings plc ("DTZ") and agreeing to remain as an adviser of the corporation concerned. While LEUNG Chun-ying had already resigned as a board director when the negotiation on his "parting" was underway, and the DTZ board chairman was also aware of his "parting fee" negotiation with the buyer in the takeover deal, no consent was given by the DTZ board to the relevant "parting fee" agreement. This allegedly violated the anti-corruption law governing an agent's acceptance of reward without permission. There is sufficient prima facie evidence to press charges. If one wants to overturn this assumption and inference, one must find evidence showing that the DTZ board knew and approved LEUNG Chun-ying's acceptance of this substantial "parting fee" himself and the resultant downward adjustment of the purchase price, or else one


can hardly convince others. The point is very simple. An employee will be prosecuted for earning $1,000 from moonlighting. But a company director who secretively accepted a reward amounting to tens of millions of dollars from the relevant buyer without the consent of the board of directors or the general meeting nonetheless has not been prosecuted. Can this stand to reason? All along, DoJ has contended that based on the evidence, it has failed to establish DTZ's disagreement to LEUNG Chun-ying's acceptance of this sum. This assertion is honestly absurd. If the board gave its consent, then LEUNG Chun-ying's acceptance of this reward would be lawful. If the board did not give its consent, then LEUNG's acceptance of this reward would be unlawful. Is this not simple? If the board's disagreement cannot be established, the reason may be that some directors gave informed consent or some directors gave informed objection. The reason may also be that the directors were simply not in the know about it, so they did not give their consent or objection. One thing is very obvious, though: The board of directors never gave its consent. In other words, LEUNG Chun-ying's acceptance of the reward in his capacity as an agent was not lawful. Why did DoJ instead consider his act to be lawful just because it failed to prove its disagreement? How can we describe the decision of non-prosecution on this very basis other than using the word "absurd"? DoJ has actually sought independent legal advice on criminal cases involving senior officials all along on the ground of public perception, so as to assure the public that its handling of such cases is free from any prejudice, conflicts of interests, or intention to harbour the officials involved. The paper presented by DoJ in February 2018 to the Legislative Council's Panel on Administration of Justice and Legal Services sets out six circumstances where DoJ may seek independent legal advice from outside counsel. The paper states very clearly, among others, that it is appropriate to seek legal advice or services from independent counsel outside DoJ if its handling of the case may give people the perception of prejudice or give rise to conflicts of interests. Back then, before deciding whether to press charges against previous Financial Secretary Antony LEUNG, former Commissioner of the Independent Commission Against Corruption Timothy TONG and also previous Chief Executive Donald TSANG in their respective cases of alleged front-running car purchase, corruption and misconduct in public office, DoJ also sought independent legal advice and offered detailed explanations to society. Even in the unauthorized building works ("UBWs") incident involving Teresa CHENG


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herself, outside legal advice was likewise sought through the Director of Public Prosecutions. The UGL case involving LEUNG Chun-ying, who is former Chief Executive and current Vice-Chairman of the CPPCC National Committee, has aroused local and global concern. But DoJ nonetheless insisted on "taking up the case itself" in defiance of the normal practice and refused to seek independent legal advice and offer any detailed explanation on the underlying grounds, in total contrast to its handling of previous cases involving public officers. How can the Government possibly allay people's concern that DoJ was influenced by political considerations? Will its handling shatter people's confidence in the criminal justice system and also the rule of law? Subsequently, Teresa CHENG argued that other than those cases involving DoJ personnel, DoJ had sought outside legal advice on only one case before making its prosecutorial decision over the previous three years. She therefore contended that seeking independent legal advice was not DoJ's established practice. But after she made this assertion, Prof Johannes CHAN from the Faculty of Law in the University of Hong Kong dismissed it as trickery, questioning why Teresa CHENG merely cited the figures for the three years before. He went on to say that the figures for the six years before showed that legal advice had been sought on more than one case, and in the incidents involving Antony LEUNG, Timothy TONG and Donald TSANG, DoJ had likewise sought independent legal advice on the cases concerned. As I said just now, the most important point concerns the established practice of seeking independent legal advice from outside counsel on any sensitive cases involving important figures or senior officials in breach of the law as a means of allaying public concern. And this has proved to be effective all along. The UGL case involving LEUNG Chun-ying is one concerning the top official of Hong Kong. The legal advice offered by outside counsel is a strong ground which can convince people that DoJ is not biased in his favour. But regrettably, DoJ has kept saying throughout that seeking independent legal advice is not an established practice, and it has even failed to explain why it refused to seek independent legal advice on this sensitive case. Let me put aside the legal perspective for the time being. From the social perspective, seeking independent legal advice will only do good without any harm to achieving the mere objective of allaying public concern, avoiding controversies over favouritism, and safeguarding DoJ's reputation as a neutral authority.


Former Director of Public Prosecutions Ian Grenville CROSS has also contended that DoJ must seek independent legal advice on politically sensitive cases in accordance with its established policies. The Secretary for Justice of previous terms, including Elsie LEUNG, WONG Yan-lung and Rimsky YUEN, also adhered to this policy. This Monday, the Hong Kong Bar Association also issued a submission urging Teresa CHENG to explain the decision-making process and prosecutorial details in general cases, including the grounds for deciding whether to prosecute a case, so as to alleviate public concern. At the same time, a recent survey on the popularity of new accountability officials conducted by the Public Opinion Programme of the University of Hong Kong shows that Teresa CHENG's rating has nosedived to 30.4 points, a drop of 6.7 points over her rating last month, and also a record low ever since her assumption of office. This rating is not only the lowest one among all the accountability officials but also a record low among the Secretary for Justice of the previous terms, and it is even lower than Elsie LEUNG's popularity rating in 2003 when she handled the enactment of legislation for implementing Article 23 of the Basic Law. This aptly shows that people no longer have confidence in the Secretary for Justice. From this, we can see that this incident has aroused grave concern and queries among the public and the legal profession. As a public officer, Teresa CHENG must clearly explain to people what is so special about LEUNG Chun-ying, so much so that DoJ declined to seek independent legal advice. In my view, a reasonable inference is that all is because of LEUNG's eminent status as incumbent Vice-Chairman of the CPPCC National Committee, so the case details must not be disclosed to independent counsel or the public, and the Secretary for Justice alone should make the decision behind closed doors. If this is true, then the decision is marked by blatant favouritism, a huge disgrace to the SAR Government's administration of justice. If this is not true, then it is all the more necessary for Teresa CHENG to give a detailed explanation in the Legislative Council, so as to rebuild public confidence in DoJ. President, lastly, I wish to give a reply on the earlier speech of the Secretary for Justice. First, the Secretary for Justice argued that the passage of this summoning motion would adversely affect DoJ's independence in making prosecutorial decisions on criminal cases. But the truth is that owing to her questionable decision and refusal to give people a clear account, the general public are unable to allay their concern that "independence does not mean


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arbitrariness". DoJ is one of the important pillars in the separation of powers among the executive, the legislature and the judiciary in Hong Kong. The loss of public confidence will not only affect the confidence of the local and international communities in our judicial system, and this may even ruin the entire political institution. Therefore, she must give a clear account, and it is incumbent upon her to do so. Besides, she has refused to take the initiative to offer an explanation and dispel public concern. If she had agreed to do all this, how would we have proposed to spend the precious time of the legislature on summoning her under Article 73 of the Basic Law? Furthermore, the Secretary for Justice has also argued that giving an account in the legislature is tantamount to receiving a public trial. I think this honestly sounds very ridiculous. Her sense of self-importance may be a little bit too much. The Legislative Council is vested with the function and duty of monitoring the Government's policy implementation. Every year, many officials come to the legislature to give an account of their work to Members or even the community. This is a duty of government officials, and also a function and mission of the legislature. She should not try to incite the public and distort our functions and duties blatantly. Third, the Secretary for Justice has also said that seeking independent legal advice is not an established practice. As I have explained clearly, DoJ should seek independent legal advice if a case involving senior officials or important figures has aroused particular public concern, so as to alleviate people's concern about favouritism on their part. This has been an established practice all along. In case of any changes to this practice, DoJ must explain the reasons for such changes. Otherwise, if the public have no basis to follow, then DoJ can have all the say in the future. In fact, since Teresa CHENG assumed office, she has been caught in successive scandals, including her own UBWs incident and her decision to let go of LEUNG Chun-ying. Over a short span of one year, she alone has plunged DoJ's professionalism and integrity into near devastation. This has sent shivers down our spine. To allay public concern about the UGL case, I definitely support the original motion's request for summoning Secretary for Justice Teresa CHENG to the Legislative Council to explain the reasons why she refused to seek


independent legal advice and proceed with prosecution. Besides, to allay public concern, she should even seek independent legal advice forthwith and deal with this case. President, I so submit. MR KENNETH LEUNG (in Cantonese): President, first of all I need to declare that I am involved in a civil lawsuit with Mr LEUNG Chun-ying, former Chief Executive. However, my speech will not touch upon this civil lawsuit which is being processed, as the theme of this motion is about the conduct and decision of Secretary for Justice Teresa CHENG. I support this motion under Article 73(5) and (10) of the Basic Law of the Hong Kong Special Administrative Region of the People's Republic of China ("the Basic Law"). When Secretary for Justice Teresa CHENG met with the media at the airport on 26 December 2018, she cited Article 63 of the Basic Law which provides that "The Department of Justice of the Hong Kong Special Administrative Region shall control criminal prosecutions, free from any interference." We indeed know that one of the duties of the Department of Justice ("DoJ") is to control criminal prosecution. Of course, DoJ also has other duties, including legal policies, external relations, and even arbitration in which Secretary for Justice Teresa CHENG is an expert. To a certain extent, I think one of the major reasons why Ms Teresa CHENG was appointed as Secretary for Justice is that she could assist in the promotion of Hong Kong as an arbitration centre. However, it will be very unfortunate if she compromises the quality of criminal prosecution work for this sake. In a paper submitted to the Finance Committee of the Legislative Council in December last year, the Secretary for Justice has listed out six circumstances under which DoJ will brief out its cases. Briefing out is slightly different from seeking outside legal advice on a case, as the whole case will be outsourced. According to those circumstances, a case will be outsourced when there is a need for expert assistance or there is no suitable in-house counsel. The fourth point of the paper says, "It is deemed appropriate to obtain independent outside counsel's advice or services so as to address possible perception of bias or issues


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of conflict of interests". I emphasize that perception of bias and conflict of interests are two main factors of consideration for DoJ in seeking outside legal advice. The Secretary for Justice may recall the first time when she attended the Legislative Council meeting on 24 January last year, she answered an oral question raised by me. My question was exactly about the possible role conflicts arising from exercise of various functions by Secretary for Justice, especially relating to criminal prosecution. In the fourth paragraph of the main reply, the Secretary for Justice says, "There are appropriate checks and accountability mechanisms in place to ensure free and independent control of prosecutions in Hong Kong. In general, in circumstances where there is any actual or potential conflict of interest on his or her part,"―we are talking about the circumstances where there is any actual or potential conflict of interest―"the Secretary for Justice, after satisfying himself or herself that the Director of Public Prosecutions has no connection with any of the persons or events concerned, will delegate to the Director of Public Prosecutions the authority to handle the matter." In this oral question, I asked the Secretary for Justice under what circumstances she would delegate to the Director of Public Prosecutions the authority to handle the matter. From the Secretary for Justice's paper to the Legislative Council and her reply to an oral question at a Legislative Council meeting, two major points can be deduced: Delegation of authority is possible when first, an independent prosecution is needed, and an independent prosecution must not only be actually independent but also be perceptibly independent; and second, any conflict of interest is involved, and as mentioned by the Secretary for Justice, the conflict of interests can be actual or potential. Under the above mentioned circumstances, the Secretary for Justice may have to delegate to the Director of Public Prosecutions the authority to make a prosecution decision, or under the circumstances where there is a need to uphold procedural justice, the Secretary for Justice may have to seek legal advice from Senior Counsel or Queen's Counsel on the case. Of course, such a decision must be made by the Secretary for Justice. On the case concerned, the Secretary for Justice might find that there is totally no actual or potential conflict of interests, or no factor actually or potentially affecting prosecutorial independence. However, we should at present exercise our common sense in assessing this case.


The Secretary for Justice had working relationship with the former Chief Executive during the last term of the Government, as the Secretary for Justice was Chairman of the Transport Advisory Committee and this position was appointed by the Chief Executive. I am not clear about the private life of the Secretary for Justice who may know the Chief Executive in private or at work. In the eyes of the public, the last term of the Government or the incumbent SAR Government is also the SAR Government, and the administration of the two terms of Government is inextricably intertwined. We cannot say that after the leadership circle is changed in this term of SAR Government, it now has a totally independent government structure, because many policy decisions and measures of the last term of Government may be continued into this term of Government. Therefore, it is not perceptually independent in the eyes of the public. The Secretary for Justice says she is actually independent in making a decision on this case, but it is hardly convincing to the public. Secondly, in regard to actual or potential conflict of interests, needless to say, the target of the prosecution decision is a state leader and the former Chief Executive. As a principal official in the incumbent Government, does the Secretary for Justice have any conflict of interests? No one knows. However, perceptually speaking, the public are really very worried that the Secretary for Justice has made a decision that deviated from common sense due to various kinds of invisible or even actual pressure. This is a grave concern to us. When the Secretary for Justice was questioned by the journalists on 28 December, she expressed a lot of different views. According to the Secretary for Justice, it is not a usual practice to seek independent legal advice. Nevertheless, as just mentioned by many colleagues, DoJ has sought independent legal advice in several cases in the past. For example, in the case of Antony LEUNG, DoJ sought the advice of Mr Martin WILSON, an expert in criminal law. Concerning the property transaction case of Mr Franklin LAM, who was only a Member of the Executive Council, DoJ also sought advice from a Senior Counsel. Besides, there are also the case of Mr Rafael HUI, the case of Mr Donald TSANG and even the case of Mr Otto POON―this surely is a highly controversial case which I do not want to mention further. As regards the above mentioned cases, the Secretary for Justice told the media on 28 December that she would not comment on whether the past practice of seeking legal advice was right or not. Does this remark from the Secretary for Justice suggest that DoJ might be right or might be wrong in the past? As


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we all know, under the common law, many court precedents must be followed, and in DoJ, some established codes proven to be effective have to be respected. When the Secretary for Justice told us that outside legal advice was only sought for one case over the past three years, she was only self-deceiving and turning a deaf ear to the fact. The public are aware that independent legal advice was sought by DoJ on a number of cases involving high-ranking officials and also an Executive Council Member who was not even a high-ranking official. Seeking independent legal advice will not affect the Secretary for Justice in exercising the ultimate prosecution power or implementing the prosecution policy under the Basic Law, because the Secretary for Justice also needs to review the independent advice from the Counsel. The authority of making a final decision still rests in the hands of the Secretary for Justice, or if the Secretary for Justice finds it necessary to avoid arousing suspicion, the authority of making a final decision will be delegated to the Director of Public Prosecutions. Of course, in the constitutional spirit of the Basic Law, whether the Secretary for Justice institutes prosecution or not, or delegates to the Director of Public Prosecutions the authority of making a final decision, the Secretary for Justice is also accountable. Even though the decision is not made by the Secretary for Justice, the Secretary for Justice is also the person ultimately responsible for it. In the present case, all the procedures or moves that can render the Secretary for Justice more independent and impartial have not been done by the Secretary for Justice. And now the Secretary for Justice even has to attend this Legislative Council meeting to answer our queries. I actually have a lot of queries. Apart from asking why the Secretary for Justice did not seek outside legal advice, I also want to ask―many members of the public, legal experts and even The Law Society of Hong Kong or the Hong Kong Bar Association also want to ask: Firstly, why did the Secretary for Justice make such an important decision of prosecuting or not prosecuting while she was on leave? Is it due to her ignorance, stupidity or is it because the Secretary for Justice was tricked by her subordinate who deliberately made this announcement while she was on leave? The Secretary for Justice submitted a leave application to the Chief Executive herself. The Secretary for Justice was clear about this, and we all learn about this because when the Chief Executive explained on her behalf, she said that Ms CHENG was on leave. Since this case has dragged on for four years, why could they not wait for two more weeks? Why did they not announce this decision after the Secretary for Justice was back to Hong Kong?


Secondly, two former Directors of Public Prosecutions, Mr Ian Grenville CROSS and Mr Kevin ZERVOS, also aired their views, saying that the Secretary for Justice put up a stand-up show at the airport for no reason at all after taking leave. Would the Secretary for Justice be too tired? Ms Teresa CHENG, you are not Mr Dayo WONG, why did you not take a few hours' rest after landing at the airport and then convene a former press conference so that the journalists had a chance to prepare for the questions while you also had a chance to think of how to answer the questions, rather than putting up a stand-up show? It was not supposed to be a stand-up comedy, but it really achieved the same effect. President, this approach of responding to the media, and the timing and way of handling at the airport are counterproductive to the image and style of work of the Secretary for Justice. Thirdly, we must look at the legal basis of the Secretary for Justice's decision. This surely is the decision of the Secretary for Justice which the Legislative Council, being an independent legislature, cannot influence the final decision made by the Secretary for Justice after all the views and information had been solicited. However, we learn that in the past, when a decision to prosecute or not to prosecute was made, usually when a decision not to prosecute was made, the legal basis would be clearly explained in a press conference. We are not asking the Secretary for Justice to disclose the details of the case, but in fact, we all learn about the general situation of the case from hundreds of reports in the press over these few years. What we want to know is merely the legal basis, for example, why the evidence is insufficient. First, we want to know the evidence needed and the standard of proof required by the Secretary for Justice. Secondly, we want to know what kind of evidence the Secretary for Justice is in lack of. We only want the general reasoning to persuade no matter professional scholars, practising solicitors, barristers or the public that the Secretary for Justice's decision is fair, independent and transparent. Ms Teresa CHENG, you have made a blunder, a foolish and absurd decision. I really do not know how you can smooth things over or handle the case. In fact, no spin doctor can advise you, and even the Chief Executive cannot rescue you, Ms CHENG. President, I so submit.


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DR FERNANDO CHEUNG (in Cantonese): President, I speak in support of Mr Dennis KWOK's motion which seeks to, pursuant to Article 73 of the Basic Law, summon the Secretary for Justice to attend before the Council to explain in detail and to produce all relevant documents pertaining to her decision of not prosecuting Mr LEUNG Chun-ying for obtaining $50 million from UGL Limited, and to her failure to seek outside independent legal advice before making her decision of not prosecuting him. President, looking back at the whole incident after listening to the speeches of a number of Members, I come up with a conclusion that "shamelessness is invincible". When we are shameless, we can act against the law and be invincible as long as we have the power. We do not need to care about anything, such as impartiality, the rule of law, the core values of fairness and equity being built up in Hong Kong for years. As mentioned by Mr Kenneth LEUNG, there are indeed hundreds of media reports on this incident which has been widely discussed for many years. When LEUNG Chun-ying, a shareholder of DTZ Holdings, sold DTZ Holdings to UGL Limited, he could get about $50 million from the agreement. He had been a Member of the Executive Council but he was crafty enough to resign from the Executive Council before signing this agreement, and hence he seemed to be able to explain for the absence of declaration of his profits. But he became Chief Executive afterwards, and he received this sum of money or at least part of it when he was the Chief Executive. The agreement, which was exposed later, showed that the commission that he got or the so-called "golden handshake" was a large sum of about $50 million and for it, he was required to do certain work. The picture is all clear to us. He was the Chief Executive, the leader of the entire Hong Kong SAR. Earlier on, it was also mentioned that he enjoyed very special status to whom two provisions in the Prevention of Bribery Ordinance could not be easily applicable, an issue which remained unresolved after a few years of study. LEUNG Chun-ying enjoyed a very special status which was even described as "supreme" by some people. When LEUNG Chun-ying enjoyed such a supreme status and obtained some benefits from a corporation which required him to do some work, was it very conspicuous that there were some problems? Being in such an important position of governing the whole community and the leader of the SAR Government, how could he receive profits from a corporation? This happened when he was the Chief Executive. This incident certainly


warranted investigation and the public were surely very concerned. We requested in various ways in the Legislative Council for an investigation of this incident, including the invocation of the Legislative Council (Powers and Privileges) Ordinance to set up a select committee, but which was vetoed by the royalist camp. We also requested through presentation of a petition. Back then, only when 20 Members stood up, an investigation committee could be formed. But this has already become a part of history as after the Rules of Procedure were lately amended, an investigation committee could still not be formed even if 20 Members stood up. Although it was not set up pursuant to the Legislative Council (Powers and Privileges) Ordinance, it was still an independent committee. And then Deputy Chairman, Mr Holden CHOW, surprising … PRESIDENT (in Cantonese): Dr Fernando CHEUNG, please return to the subject of this debate. DR FERNANDO CHEUNG (in Cantonese): We are discussing why … PRESIDENT (in Cantonese): The motion now under debate of this Council asks to summon the Secretary for Justice pursuant to Article 73 of the Basic Law. Please return to the subject of this debate. DR FERNANDO CHEUNG (in Cantonese): Our request to summon the Secretary for Justice is based on the past events that I am mentioning. In fact, an ordinary and reasonable person will also think that this is rather improper. Why would the leader of a region do such things? Later on, the Legislative Council requested for an investigation. Someone outside reported to the Independent Commission Against Corruption ("ICAC") and ICAC has also investigated for a few years. And then this Secretary for Justice said that they had decided not to prosecute. However, in the course of making this decision not to prosecute, she completely failed to seek outside independent legal advice, and the process also involved collusion between this former Chief Executive and a Member of the Legislative Council with a view to restricting as far as possible the work and scope of the investigation of the Select Committee concerned.


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The case indeed involves a Member of the Legislative Council. How could the Secretary for Justice only respond that they would not prosecute due to insufficient evidence? This incident has sent shockwaves throughout the community and is a highly politically sensitive case. According to a paper submitted to the Legislative Council Panel on Administration of Justice and Legal Services by the Department of Justice ("DoJ") in February last year, one of the six circumstances under which outside legal advice can be sought―which has been mentioned by many colleagues but I do not mind taking the trouble to repeat―the fourth point of the paper clearly says, "It is deemed appropriate to obtain independent outside counsel's advice or services so as to address possible perception of bias or issues of conflict of interests". This incident is clearly perceived to be biased and may involve issues of conflict of interests, because this person was the highest leader of the Government and there may be conflict of interests between him and other government officials in the supervisor-subordinate relationship or the working relationship in the past. Was there a working relationship between Secretary for Justice Teresa CHENG and LEUNG Chun-ying in the past? Obviously there was, and this has already been mentioned. Back then, Ms Teresa CHENG was Chairman of the Transport Advisory Committee who needed to report to the Executive Council annually, while LEUNG Chun-ying had been a Member and even the Convenor of the Executive Council for many years. Hence, there was surely a working relationship between them. When even the Secretary for Justice herself has a conflict of interests, it does not matter whether there are other people inside DoJ who were subordinates of or had working relationship with LEUNG Chun-ying in the past. It is thus easily perceived that they would be biased in favour of LEUNG Chun-ying. In deciding whether to prosecute a law enforcement officer or a public servant, I believe a reasonable person will say that the Secretary for Justice, being a person who needs to defend the rule of law of Hong Kong and to tell the public that Hong Kong is a fair society, should deal with it in an independent, fair and equitable manner. According to the usual practice, if the Secretary for Justice finds that there is possible direct conflict of interests, he or she will not handle the case but will pass it to some other suitable officials. If there is no direct conflict of interests, the Secretary for Justice will also seek outside independent legal advice so as to strike a balance. Under the condition when there is no direct conflict of interests, and there is legal advice from DoJ as well as outside legal advice, the latter can at least be taken as reference. Of course, the final decision will be made by DoJ, but we will agree that this decision should be independent and impartial.


However, how was the present case handled by the Secretary for Justice? When DoJ made an announcement that LEUNG Chun-ying would not be prosecuted, the Secretary for Justice was on leave. When she came back, she explained to the public at the airport, saying that it was not a usual practice to seek outside independent legal advice, and that they would rarely seek other people's advice unless they have to institute prosecution against a member of DoJ. It is apparent that this approach is at odds with the past policy. There are at least a few public documents highlighting the circumstances concerned, one of which is that the person who may be prosecuted is a member of DoJ, but there are still a few other circumstances. Why is she unclear about them? Mr Ian Grenville CROSS, former Director of Public Prosecutions, was very kind to Ms Teresa CHENG. He said that she might not be familiar with the prosecution procedures of DoJ, and even queried why the prosecutors did not brief her properly, explaining to her DoJ's prosecution procedures as well as the policy and practice of seeking outside legal advice. This is outrageous indeed. As the Secretary for Justice, she is completely ignorant of the procedures and policy concerned. I am not sure whether she is completely ignorant or not, but Mr CROSS clearly pointed out that she has made a mistake. His only conclusion is that the Secretary for Justice should be unclear about the procedures and policy concerned, otherwise how could she make a mistake? He thus even put the blame on her colleagues for not properly informing her so that she made a mistake. This actually sounds ridiculous as the whole incident did not take place within one or two days, and when she came back from holiday, she was still unaware that she had made a mistake and even made her explanation at the airport. Mr CROSS also said something to do justice. When Ms Teresa CHENG asked people not to politicize legal matters … they really like doing so. Every time when they are criticized for doing something wrong, they will say, "Do not politicize the matter." But in fact in this incident, she is the one who has politicized the matter. What did Mr CROSS say? According to him, the public obviously have not politicized the legal matter, but DoJ needed to seek independent advice on this politically sensitive case in accordance with the established policy with a view to ensuring the public that the case was handled without bias or conflict of interests. He also said, "Justice must not only be done by DoJ, it must also be seen to be done." Justice must also be seen to be done by DoJ.


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What is meant by "must also be seen to be done"? This is to tell people that the decision is not solely made by the Secretary for Justice, but she has also asked an independent legal expert to give advice on the case and the advice will go public. The other party thinks that prosecution should not be instituted due to reasons a, b, c, d, e, and she decides not to prosecute because she accepts or shares the advice of the other party. This can at least give confidence to the public that this case is not arbitrarily handled by her, the decision is not solely made by her, or she is not biased in favour of or shielding the fault of the person concerned, but her views are in line with the other independent legal advice. Nevertheless, the Secretary for Justice does not even take this move and is not willing to act according to our policy. And now in the Legislative Council, we ask to summon her in order to listen to her explanation, but she says that we are interfering with the independence of criminal prosecution, and that disclosing the related information will deprive the person concerned of his protection, turning the Legislative Council into a place for public trial. Anyway, she just says that she is impartial and fearless, but I can only conclude that she actually is defending her own interests impartially and fearlessly. Our former Chief Executive failed to make a declaration of his substantial benefits received and was unwilling to give a clear explanation. When the Legislative Council wanted to investigate into his case, he colluded with a Member of the Legislative Council in order to restrict our scope of investigation. When ICAC finally summited an investigation report to DoJ after investigating his case for a few years, the Secretary for Justice did not seek independent legal advice and simply responded with a sentence that he would not be prosecuted. Has Hong Kong already lost its integrity? Has Hong Kong already lost its rule of law? Is the Secretary for Justice still worthy of this position? I so submit. DR PRISCILLA LEUNG (in Cantonese): President, I speak against Mr Dennis KWOK's motion moved under Article 73 of the Basic Law of the Hong Kong Special Administrative Region of the People's Republic of China ("the Basic Law"). One of the points Mr Dennis KWOK raised in his motion today is that the Secretary for Justice has failed to comply with the briefing out policy of the Department of Justice ("DoJ") to seek additional legal advice from Queen's Counsel or Senior Counsel. Hence, I will first talk about the briefing out policy.


If Members are familiar with the discussion held in the Panel on Administration of Justice and Legal Services ("the Panel") of the Legislative Council, they should know that DoJ submitted an Administration's paper to the Panel on 26 February 2018, detailing the six circumstances under which DoJ will consider seeking outside legal advice. I will not repeat all the circumstances. For instance, when suitable in-house counsel possessing the requisite skill is not available, DoJ may consider doing so. But the most controversial is item (d), and that is, DoJ may seek outside counsel's advice in order to address possible perception of bias or issues of conflict of interests. I believe this is a relatively key theme in today's discussion. Actually, when we raised this Agenda item for the Panel meeting, we wanted to discuss the briefing out policy. We wanted to address Panel members' concern over possible abuse of the briefing out system and whether DoJ would shirk the decision-making responsibility by briefing out all controversial cases (such as "Occupy Central" cases), or whenever such cases arise, to outside counsel for decision. As pointed out by some Panel members (including me), according to our observations of cases where the people came to us for help, some of their allegations are of a trivial nature, such as disputes between volunteers of different political parties. For instance, a 70-odd years old volunteer was prosecuted for spitting on the face of another 20-odd years old volunteer. As a result, the former was diagnosed with psychasthenia after the prosecution. This is the reason why the pro-establishment camp very much wants to ascertain the prosecution policy. Hence, in last February, Dr Junius HO, who is now here, requested the Panel to discuss the prosecution policy. He mentioned the "black gold" incident concerning Mr Jimmy LAI, a highly politically sensitive person, and six other incumbent Legislative Council Members at the time, including Mr LEE Cheuk-yan. Some of them are still Legislative Council Members now. As stated in paragraphs 13 and 14 of the minutes of meeting of the Panel on 26 February, the Director of Public Prosecutions ("DPP") of DoJ clearly replies to the Panel that he did not seek outside legal advice on this highly politically sensitive case of extensive public concern, in which Mr Jimmy LAI, Mr Mark SIMON and six Legislative Council Members, including Mr LEE Cheuk-yan, were allegedly involved in political donation. This is clearly stated in the minutes of meeting. In fact, the pro-establishment camp, especially its


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supporters, wrote to the Legislative Council to express their dissatisfaction. Many pro-establishment supporters found the decision unacceptable. They questioned why DoJ had not sought outside legal advice and let them go at that time. Moreover, the Panel has also discussed similar incidents. Many Members have questioned why prosecutions are still not instituted against Members of this Council or members of the public who started, or who were highly involved in, the Occupy Central movement. Why do we not adopt the same approach to pursue DoJ for not seeking outside legal advice on these cases? It is because a bias or conflict of interests will not be created because the case is politically sensitive. You may say that for the sake of politics, she should have sought outside legal advice and she is very stupid for not doing so. However, not doing so does not constitute any violation of the prosecution procedure. I believe many Members have talked about the case concerning Barnsley Licensing Justices. It talks about what bias is and that it can be further divided into actual bias and apparent bias (i.e. the perception of bias); and the standard for testing the existence of bias is a third reasonable man test or what we call the test of a fair-minded person. However, we cannot simply accuse a person of being biased to someone or having a conflict of interests with someone. As the Judge of the case explains, favouritism and hostility can constitute bias. Let us say you are a decision-maker and there is evidence to support that you are hostile to or hate someone. This is more than a feeling of hostility or the person is your political opponent. For example, there is a Member who sued a person for libel and the libel itself is evidence supporting the hostility between them. Therefore, you, being the decision-maker, will not be able to make a fair decision. However, if the two parties, such as a public officer and an opposition Member, have a different political view, is it necessary to repeal all the decisions they have made between them? If this is the case, things will be much simpler. Take the case of Mr Jimmy LAI as an example. It would be impossible for DoJ not to seek outside legal advice on the case because Mr LAI always gets at the Government. Then, does it mean that all lawyers of the opposition camp or those who have been heavily involved in anti-government processions are ineligible to act as the outside legal counsel? The Government is criticized by them all the time, so the


Government would probably be biased, not because of favouritism, or having accepted their advantages or deliberate assistance, but because of hostility towards them. The law itself is actually very clear and strict. There must be more evidence to constitute bias. Hence, we cannot say that he is a former senior official or they have participated in the same committee, so there must be a conflict of interests or bias. Regarding conflicts of interests, even more cases can be used for illustration. These cases may be about monetary disputes, such as those between a husband and a wife. In this regard, however, it also takes more than casual accusation to substantiate such cases. I cannot say that I know 2 000 people, so all these people are not allowed to participate in the committee I chair. No, it does not work this way, especially considering that there are some 400 lawyers in DoJ. So, when I consider this motion, I do not see any clear argument from the opposition camp showing that the Secretary for Justice has any conflict of interests or bias, even if I put the case to the third reasonable man test. We should know that this is very common in the common law jurisdiction. We should also know that having different political views cannot be used as the argument to support the existence of bias. They should not use this test as the argument. If this argument is tenable, we would have questioned long ago why DoJ did not prosecute Mr Jimmy LAI or the Legislative Council Members who were allegedly involved in the political "black gold" incident. So, although we may not totally accept this approach, we can only respect it. We pursued the subject of prosecution policy with the Secretary for Justice and the Secretary delegated DPP to explain the policy at the Legislative Council. This resulted in the Panel meeting last February. In fact, the Panel also discussed this subject in the previous Session when it discussed the Occupy Central movement. The pro-establishment camp very much wishes to know more about the prosecution policy. Regarding Article 63 of the Basic Law, some people have proposed that criminal prosecutions of DoJ should be independent from the Government. I do not agree with the proposal. I think it violates the Basic Law. DoJ is required under the Basic Law to make prosecution decisions unless it is proven that DoJ has a conflict of interests or bias under the common law standard. This should not be self-claimed bias or bias generated from dislike. Many people in the


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world dislike others. Members here dislike each other. All public officers have been severely reproached by the opposition Members. Does it mean that they hate each other and thus they are biased? Hence, I hold that we should approach this subject from a legal perspective in our discussion. You can say that the Secretary for Justice has not sought outside legal advice before deciding not to institute prosecution. Similarly, we can also say that DoJ has not sought outside legal advice before deciding not to institute prosecution against Mr Jimmy LAI who is allegedly involved in the incident of foreign political donation. It is a highly sensitive incident, but DoJ did not institute any prosecution nor seek outside legal advice. Do Members know how severely DoJ has been criticized for this decision? I wonder if DoJ knows how sceptical we felt at that time. Despite our scepticism, it does not mean that DoJ has violated any prosecution procedure. We know that this is not the usual procedure. You can disagree with her exercise of discretion. But I believe in considering whether or not to prosecute, she has considered the relevant evidence. I wish to cite some cases that Members have not mentioned. This includes Mr WONG Ying-ho's case recently … all cases that I am going to say have completed legal processes and have been reported in newspapers. Mr WONG's litigation has lasted for years. The verdict finally ruled against DoJ and DoJ has to pay the litigation costs. I know that DoJ has spent a lot of money on engaging an outside veteran Senior Counsel to represent the Government in this case. They did not have sufficient evidence, but insisted on instituting prosecution and ended up paying the expensive litigation costs. Why does DoJ have to spend money like that? We thus asked DoJ last February under what situations it would engage outside counsel services. If DoJ does not have the required expertise, it should employ more staff to handle the cases in-house, rather than briefing out all these cases. Just now I mentioned Mr LEUNG Wai-kuen's case that I had helped. He did not rig the election. He was prosecuted only because he had failed to file the written consent of his supporters in time. Election candidates are often not that financially well-off. He has to pay the litigation fees, in addition to several million dollars of lawyer's fee. How did DoJ decide whether or not it should institute prosecutions in such cases?


In the example of the 70-odd years old female volunteer who was prosecuted for allegedly knocking down the mobile phone of the 20-odd years old youngster, the litigation lasted for a year. Why should prosecutions be instituted against such cases? I do not think it is fair. The more I look at the case, the more I feel angry. I question why DoJ has to do so. The Police says they have sought DoJ's advice before instituting prosecution. The Police does not want to take the responsibility either. Then, why does DoJ support the prosecution? But this is the advice DoJ has provided from the legal point of view. I can do nothing except feeling helpless and showing respect for its decision. However, this does not mean that I will not criticize DoJ. Hence, I have to speak for these people here. However, we have to understand that politics should be separated from the law. Today, many Members said blatantly that DoJ had violated the prosecution procedure. Why did they not say a word, or ask DoJ the reason for not seeking outside legal advice when DoJ decided not to prosecute those highly politically sensitive cases, such as the political "black gold" incident or the case allegedly involving Members of their political parties? Why, in their opinion, the decisions of DoJ in those cases have not violated the rule of law? Mr LAM Cheuk-ting mentioned a survey result regarding DoJ's decision not to institute prosecution against Mr LEUNG Chun-ying. However, I notice that Mr TANG Kwok-bun, Chairman of the Operations Review Committee ("ORC") of the Independent Commission Against Corruption ("ICAC") commented on cases of extensive public concern in an interview on 19 December 2018, saying that he would report the progress of these cases in each ORC meeting, and last Wednesday ICAC already submitted the completed investigation report on the case together with the legal advice of DoJ. After careful consideration and deliberation, ORC is satisfied that no further investigative action should be taken. Mr TANG Kwok-bun frankly says that ORC has handled the case in an impartial manner and without fear or favour and that the case has been handled in the same manner as other cases without special regard to the background, status and position of Mr LEUNG. However, Mr LAM Cheuk-ting refuses to accept ORC's view. The survey result he mentioned can be political in nature because the incident has been shaped into a matter of great public concern. I hold that we should find a suitable time to sort out this problem.


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Does Mr LAM Cheuk-ting think that all ORC members of ICAC are biased in favour of Mr LEUNG Chun-ying? Then, how would he explain why they remained silent about those politically controversial cases? Is this not their blatant double standard? Why do they bitterly pursue DoJ for its decision not to seek outside counsel advice on the UGL case? I hold that they can request DoJ to seek outside counsel advice, but they should make it clear that it is a political request. We also invited the Secretary for Justice to come to the Legislative Council to explain the prosecution policy. But please be fair. She has not violated any prosecution procedure. They have said a lot, but they have not stated any valid legal principles. I hold that they should not smear the rule of law of Hong Kong. Last but not least, I hope DoJ will not settle the matter because of the political pressure or the bitter pursue of Members. Otherwise, it will have to face bigger troubles in the future, and the silent victims will be the pro-establishment Members, the pro-Beijing people and people involved in trivial cases. I hope that DoJ will not easily institute prosecution against or seek outside legal counsel on every case in order to show that it is acting fairly. I hope DoJ can treat everyone equally. I commend Secretary for Justice for the way she has handled this matter. I hope that she can continue to show her commitment, discharge her constitutional responsibility that is conferred to her under Article 63 of the Basic Law and continue to handle all cases fairly and impartially. President, I so submit. MS STARRY LEE (in Cantonese): President, Article 63 of the Basic Law states clearly that "The Department of Justice of the Hong Kong Special Administrative Region shall control criminal prosecutions, free from any interference." Therefore, no matter whether the Department of Justice makes a decision to prosecute or not, it is a power protected by the Basic Law. Nobody, including the Legislative Council, should intervene or put pressure on it. Otherwise, it is an intervention into the independent prosecution power of the Department of Justice. President, in fact, to summon the Secretary to this Council to explain why she has made a decision not to prosecute in a specific case is virtually putting pressure on the Department of Justice in an open platform. This is tantamount to ignoring the constitutional principle and protection that the Department of


Justice may enjoy and attempting to put pressure on the Department of Justice on an individual case through the political platform of the Legislative Council, with a view to serving some political purposes. For that reason, The Democratic Alliance for the Betterment and Progress of Hong Kong opposes the motion of summon and considers it inappropriate as it may even affect the implementation of other Articles of the Basic Law. President, the actual purpose of the motion of summon is too obvious. The opposition is stepping up its political action against LEUNG Chun-ying. Members should recall that actually long before LEUNG Chun-ying assumed his office, the opposition had urged him to step down. After LEUNG Chun-ying assumed his office as the Chief Executive, the opposition had been trying every possible means to attack him politically. The UGL case this time around is nothing strange to the public, I believe, because it has been discussed by Legislative Council on numerous occasions and it has been rehashed for numerous times. First, some Members requested to conduct an inquiry into the case by invoking the Legislative Council (Powers and Privileges) Ordinance in November 2014 and October 2016. In November 2016, Members requested the establishment of a Select Committee to look into the matter by way of presenting a petition. President, besides the hot pursuit in the Legislative Council, the opposition has actually reported the case to the Independent Commission Against Corruption ("ICAC") in person. Some Members of the opposition even went to Australia in November, others went to Britain in September to report the case to the respective law-enforcing institutions and urged them to follow up the UGL case. Therefore, we can see that many Members who have spoken today have tried every possible means to attack LEUNG Chun-ying, but what have they achieved? What is the development of the UGL case? Let us take a look at the announcements made by NCA of Britain and ICAC one after another. They all declared that they would not follow up the matter due to insufficient evidence. As to Australia, we know that it is still in a stage of information exchanges. The Australian authorities have not declared what substantive follow-up actions would be taken at the present stage. Therefore, the fact that the Department of Justice decided not to prosecute on the ground of insufficient evidence is actually quite consistent with the decisions and judgments made by ICAC or the British law enforcement agencies. In short, as there is no case, and therefore no follow-up actions will be taken due to insufficient evidence. Moreover, the Secretary for Justice publicly explained


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her decision some time ago, and she also attended the oral question session of Legislative Council. She has undertaken to attend the meeting of the Panel on Administration of Justice and Legal Services in next week in order to explain policy matters to the Panel. President, I really cannot see any evidence which shows that the Secretary has violated the criteria for making independent and professional judgment as stipulated in the Basic Law. For that reason, I do not see why the Legislative Council should invoke the constitutional power under Article 73 of the Basic Law to look into the matter. President, just now many Members of the opposition criticized the Secretary for not prosecuting LEUNG Chun-ying or the announcement in relation to the UGL case was too brief. They also questioned why no outside legal opinion had been sought. Nevertheless, the Department of Justice has in fact decided not to prosecute many people in the past. I can remember vividly on one occasion that the announcement made by the Department of Justice on not prosecuting the "black gold" incident was nothing more than two pages. However, I have not heard Members of the opposition protesting why no outside legal opinion was sought, why the announcement was so brief, or why the Department did not explain the matter in detail. I can remember that they did not say a word on that occasion. In fact, if we think it over, the reason behind that is very simple. It was because the Department decided not to initiate any prosecution and not to deal with the "black gold" incident, which was the outcome they wanted. However, they react strongly today because they find it unacceptable that the department has decided not to follow up the UGL case and not to prosecute LEUNG Chun-ying. President, actually, everybody knows the stance of the opposition on LEUNG Chun-ying. No matter what explanation has been given, the authorities are always wrong for not instituting the prosecution. It must be a political decision. I cannot see what result they would find satisfactory to them. Therefore, the purpose of the motion of summon this time around is nothing more than putting further pressure through the platform of the Legislative Council in order to achieve their political goals. President, all Members are having too clear a stance on this matter. Just now the opposition said we are biased. But actually who are biased? Or perhaps we should say that we also need to look at the mirror and judge ourselves. Perhaps every Member already has he/her own stance on this matter, therefore I consider that it is not suitable for this Council to follow up the UGL case, and we should leave it to our professional institutions. With these remarks, President, I oppose the motion.


MR ALVIN YEUNG (in Cantonese): President, having just listened to the insightful remarks of Dr Priscilla LEUNG and Ms Starry LEE, I feel only able to use the word "well-intentioned" to describe their sincere eagerness to defend Secretary CHENG just now. Allow me to respond briefly to the arguments made by the two Members and Secretary CHENG. I respond to Secretary CHENG's first. She said that the Department of Justice ("DoJ") has independent prosecution powers under Article 63 of the Basic Law and we should not undermine this independence. The Secretary also cited a case in 2006 and quoted a passage from the judgment. I would like to first point out that as the said case involved the Official Receiver's Office seeking directions from the Court, it is debatable whether or not there is any direct relationship with the current case. However, in any case, of course we accept the Court's decisions. Surely, DoJ's prosecution powers should be independent and free from any form of interference, but I wish to ask: if requesting public officers to give an explanation to the Legislative Council is tantamount to exertion of pressure, should the Legislative Council refrain from putting pressure on the officials of the SAR Government every day? Should we not ask any accountable official, such as the Secretary for Justice, to come to this Council because it is tantamount to exertion of pressure? Does this logic make sense? The answer is in plain sight. Moreover, the Secretary has mentioned that disclosure of the decisions related to criminal investigations and prosecutions would unfairly put the persons concerned on trial by public opinion. Had this been true, we should have solemnly denounced the former Secretaries for Justice Ms Elsie LEUNG, Mr WONG Yan-lung and Mr Rimsky YUEN because they did, during their terms of office, explain to the public in great detail the decisions of non-prosecution in some cases, which our Honourable colleagues have in fact enumerated earlier on. Had this been correct, that is, if the Secretary's remarks had been valid and justified, we would have been very unfair to Mr Antony LEUNG because we had put him on trial by public opinion. Likewise, we would have been very unfair to others, including Mr Timothy TONG, because we had put them on trial by public opinion. Secretary, was that the case? If so, we should solemnly summon the last several Secretaries for Justice and castigate them because they were abjectly wrong. Most obviously and certainly, this is a false argument.


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In addition, the Secretary mentioned that seeking outside independent advice is not the usual practice. Of course, it is not, because only when sensitive cases are involved do we expect DoJ to spend the public money from the pockets of taxpayers to seek outside independent legal advice. The question now is: what is our current policy? Has the incumbent Secretary changed the past practice? As an objective fact, ever since the reunification, outside independent legal advice has been sought for any case involving a politically sensitive individual, particularly a high-rank public officer. This practice has become a convention. Now, we see that the Secretary is changing this convention and practice. A change in policy is not a problem per se, but a change in policy without any explanation is the problem. If the Secretary holds that the past practice was all wrong and wasteful of public money, and that from now on, as long as Teresa CHENG remains in office, we will not do such things, then there should not be any problem provided that an explanation is given. As long as Secretary CHENG makes things clear, we will at least be informed. President, what we do not want to see now is that the Secretary gives no detailed account of the decision, hiding behind these so-called "reasons" and "justifications" put forward just now. What we hope to see is that DoJ honestly, openly and clearly explains the prosecution policy, particularly the practices involving counsels on fiat. As long as we have a yardstick to offer predictability, we can at least do guesswork. What we are concerned about now is that the Secretary briefs out those cases that she deems apt and keep those she deems inapt in DoJ. This is where the problem lies. As for Dr Priscilla LEUNG, who kept harping on about Jimmy LAI and corrupt political donations, it seems that she was either ignorant about something or trying to deceive the public about the objective fact that Jimmy LAI is not a public officer, let alone any person holding powers in the SAR Government, and thus her description was an extremely far-fetched analogy. At the same time, the "corrupt political donations" that she talked about involved some of her former or current colleagues. I would like to clearly point out to Dr Priscilla LEUNG that the Legislative Council already conducted an investigation in the last session and there were also pro-establishment camp Members in the commission of inquiry. I believe Dr LEUNG must fully know and remember these facts, but she just has not put them in words. And that is without mentioning that the case involving former


Member LEUNG Kwok-hung has been tried by the Court and he has been acquitted in a fair judgment. I have no idea what exactly Dr Priscilla LEUNG was bemoaning when she harped on about corrupt political donations. However, I do not intend to make a guess here. I just want to point out the facts in order to set the record straight. President, having spoken for so long, actually I am not asking the Secretary for Justice to suddenly change her decision and prosecute anyone. Today's motion itself only asks her for a clear explanation. What is the problem with asking for an explanation? If calling the Secretary for Justice, as an accountable official, to give a clear explanation in the Legislative Council was tantamount to exertion of pressure, our accountable officials would seem to have too little confidence. Are we saying now that they are too vulnerable and feeble to give an explanation? President, are they like this microphone stand? Is that the case? I do not think so. I think the Secretary must be as hardy as this block of wood. She must be able to come out and give a clear explanation. Therefore, in my view, the pro-establishment Members should refrain from offering unappreciated help and let the Secretary come to the Legislative Council to give a detailed explanation. Only by doing so can Secretary Teresa CHENG live up to her title of Senior Counsel. President, although Honourable colleagues have earlier explained in detail all the past cases involving counsels on fiat, I still have to make it clear on the record that all the aforesaid cases, no matter involving Mr Antony LEUNG, Mr Franklin LAM, Mr Timothy TONG or Mr Michael WONG, reflect the public's aspiration that the SAR Government exercises its public powers to clearly and fairly disclose the final decision to prosecute or not. I believe whether or not prosecution is the final decision is not the most significant issue per se, and what really matters is how the decision has been made. Earlier on, Ms Tanya CHAN also pointed out why having only two pages of explanation is a problem? That is because we have seen a very big change compared with the past, and if the Secretary for Justice can ultimately provide a 17-page, 20-page or 30-page reply explaining the reasons for this non-prosecution decision, and these justifications can convince the public, then I believe that any reasonable Hongkonger can only, at least, respect the final decision made by the Secretary for Justice, even though not necessarily willing to accept it.


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Therefore, President, now that the reasons have been fully explained in front of everyone, I do not want the Secretary for Justice to move the goalposts again. If she cannot convince the public, what will be ultimately affected and undermined is not simply the Secretary for Justice's own popularity rating, but the whole system and the spirit of the rule of law, which we have worked very hard to foster, as well as a compelling institution. Therefore, I hope that the pro-establishment camp Members no longer need to defend the Secretary for Justice today, because this act will backfire on her. If we are really so concerned about our spirit of the rule of law and our legal system, we should support today's motion moved by Mr Dennis KWOK. I so submit. MR TONY TSE (in Cantonese): President, as pointed out by many Members, Article 63 of the Basic Law prescribes that the Department of Justice ("DoJ") of Hong Kong shall control criminal prosecutions, free from any interference. Therefore, the constitutional responsibility and professional judgment of making prosecutorial decision should not be readily briefed out to barristers in private practices, unless it is absolutely necessary. According to DoJ's established policy, the Secretary may consider briefing out a case or seeking outside legal advice under a number of conditions, including occasions when a member of the Department is involved in the case. This is the reason for DoJ to seek opinion from private barrister in the case where unauthorized building works are found at the residence of Secretary Teresa CHENG. Other applicable conditions include the necessity to seek expert assistance while the requisite skill is not adequately available within the Department. But I cannot see any similar condition in the UGL case referred to in this motion. The relevant policy and guideline also state that for addressing the perception of bias or issues of conflict of interests, DoJ may seek outside legal opinion or service where it sees fit. The opposition primarily cites the above when raising their queries. Mr LEUNG Chun-ying, who is involved in the UGL case, is a former Chief Executive and an incumbent Vice-Chairman of the National Committee of the Chinese People's Political Consultative Conference. On top of this, DoJ has sought advice from outside barristers or even Queen's


Counsels in the United Kingdom in relation to some cases involving incumbent or former senior government officials. So why does DoJ not do this in the UGL case in question? Secretary CHENG did answer clearly in the Legislative Council last week when replying to a Member's question, saying whether it was a sensitive case or not was never a criterion for mandatory briefing out under the guideline. It is not a norm of DoJ to brief out cases or to seek outside legal advice. The DoJ's Prosecutions Division handles more than 3 000 cases a year and over the years, it has only sought outside legal advice a few times in relation to its prosecutorial decisions. Not all cases involving incumbent or former government officials or other politically sensitive persons will be briefed out. For instance, with regard to the former Secretary for Development Mr MAK Chai-kwong's case of fraudulent claims for housing allowance, and the Executive Councillor and Legislative Councillor Mr Jeffrey LAM's case of careless driving, DoJ eventually did not seek outside legal opinion after giving the cases due consideration. According to the justification provided by Secretary CHENG, the prosecutorial decision regarding the UGL case is made purely on the adequacy of evidence. The identity of the person involved or other political factors are not considered. The relevant approach highlights exactly Hong Kong's judicial independence. Meanwhile, the briefing out guideline on addressing perception of bias or issues of conflict of interests is also applicable to other relevant cases, as shown in previous court cases. Of course, some may say DoJ should seek advice from an outside barrister even when it considers the available evidence insufficient to institute prosecution in a case concerned, so as to preclude criticisms, queries and hype which may be staged by the opposition. To me, this is not a desirable approach. Apart from incurring extra public money, this approach violates legal independence, principle of the rule of law and established prosecution policy guideline of DoJ. It also is unfair and unjust to the person involved as it is unreasonable to put in place an extra step and give the case further deliberation, at the expense of the principle and spirit underlying the rule of law and DoJ's independent professional judgment, simply because the person concerned is a political figure or just because he is somebody's target of criticism. It is suggested that DoJ should seek outside legal advice on all cases involving political figures. To date, many from the opposition camp who were involved in the illegal Occupy Central case four years ago have yet to be


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prosecuted. This has given rise to a lot of suspicions in the community questioning if there is political consideration behind the move and if the Government is so timid that it dare not offend the opposition and certain foreign powers. Should outside legal opinion be sought in the cases concerned? Should the Secretary for Justice be summoned to the Legislative Council to report and explain the cases? Should all relevant papers, records or evidence be made public, as proposed in the current motion raised by Mr Dennis KWOK, for a trial by all the 7 million people across the territory? As a member of the professional sector, I always highlight the paramount importance of professional independence and conduct. It does not matter whether the professionals are practising in the public or the private sector, the professional advice they give should be independent and evidence-based. However, some Members seem to believe that briefing out is always better with regard to criminal prosecutorial decisions involving political figures. To these Members, only outside barristers and their legal advice are independent and professional. There are many civil servants or government contract employees in the sector that I represent. Although they serve various government departments and their salaries are paid with public money, I am fully confident that their professional judgment will not be compromised. In relation to their relevant professional businesses, the decisions they make and the advice they give to the Government are all independent and professional. They will not use more public money than necessary and brief out to outside consultancy a task that they can and should take up. The same is true for the team of government counsels working in DoJ. These legal practitioners have undergone vigorous professional training and possess relevant professional know-how and qualifications. The various sorts of legal advice they give to the Government as well as the prosecutorial decisions they make in accordance with the relevant laws and policies are themselves independent and professional. If they routinely sought outside advice whenever they meet cases involving political figures, would it be unprofessional? Will this be a sign of lacking commitment and sense of responsibility on the part of these government counsels? As a matter of fact, all Secretaries for Justice we have had after the reunification, as well as some other senior members of DoJ, were private practice barristers or solicitors previously. Secretary CHENG was a legal practitioner in


private practice before assuming the current position. Moreover, many government lawyers leave DoJ for private practices because of various reasons every year, and among them is Philip J DYKES, incumbent chairman of the Hong Kong Bar Association. DYKES worked in DoJ before and I do not think his performance at the Government was not independent, unprofessional, and that his decisions were tainted by political considerations. Former Director of Public Prosecutions, Kevin ZERVOS, became a judge after leaving DoJ. If his work at DoJ was not considered independent and professional, presumably he would not have been invited by the judiciary. Moreover, even if Doj decides to seek outside legal advice with regard to a certain case which involves a political figure, outsiders may query why this particular barrister is chosen but not the other. Will the dispute drag on incessantly? Conversely, if DoJ decides to prosecute a political figure who is unpopular among the opposition, would they respond differently even if outside legal advice has not been sought? I hope we can refrain from making things personal, stop shrugging off facts and legal principles and resorting to all possible ways in exerting pressure onto DoJ and the Secretary for Justice, just for the sake of political interests or personal conflicts. This is harmful to the rule of law in Hong Kong and unjust to the team of professionals working in DoJ with professionalism and independence. Indeed, there is room for improvement in DoJ's handling of the incident in question. For instance, the Secretary for Justice left Hong Kong for a vacation right after DoJ announced the relevant decision. People will inevitably have the impression that it is the Secretary for Justice's intention to avoid giving an account or an explanation to the public. In addition, as I have said before, it is not uncommon for DoJ to delay making prosecutorial decision on cases which involve politically sensitive people, including those from the opposition camp who broke the law openly, despite the presence of sound evidence and even their stated commitment to bear legal consequence. This will convey an impression that the relevant decision is made with political consideration. I hope the Secretary for Justice can learn from the experience and boost public confidence in the independence and professionalism of DoJ. With these remarks, I oppose the motion proposed by Mr Dennis KWOK.


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MR JEFFREY LAM (in Cantonese): President, the opposition has been hyping up the UGL incident for almost four years. After a lengthy investigation, the Secretary for Justice recently made a public statement on the UGL incident, justifiably pointing out that there was not enough evidence to prosecute the former Chief Executive LEUNG Chun-ying. Secretary Teresa CHENG's response also made it clear that whether there was a conflict of interest is the only criterion based on which the Department of Justice ("DoJ") seeks independent legal advice. The incident itself should have come to an end, but some people with ulterior motives are still in hot pursuit and want to continue to hype up this issue in order to attack the SAR Government's rule of law system. The rule of law is a core value of Hong Kong and a valuable asset to society. Since Secretary Teresa CHENG has clearly explained the legal justification for not prosecuting Mr LEUNG Chun-ying over the UGL incident, I hold that outsiders should no longer hype up the issue and politicize the matter. It is even more improper for us, as Legislative Council Members, to view this matter through black-tinted glasses on the basis of Mr LEUNG Chun-ying's status and background. In fact, the Prosecutions Division of DoJ handles more than 1 000 cases per year, and it is basically up to the Secretary for Justice to decide whether or not to prosecute. All along, the opposition has had nothing against this established practice. Why are some members of the community, and even professionals with a legal background, in hot pursuit behind DoJ over this very case, urging DoJ to brief it out to an independent legal adviser? The answer is very simple indeed. It is because the case involves a person they have been picking on for years. What is more noteworthy is that, while holding high the banner of professionalism, and in the name of social justice, some so-called scholars and members of the legal profession blatantly exert political pressure on the Secretary for Justice in an attempt to influence her professional judgment and independent decision. They constantly vilify Hong Kong in the international community, claiming that "Hong Kong's rule of law is dead" and "one country, two systems" exists in name only. I think this is what really brings serious damage to the rule of law in Hong Kong.


President, Article 63 of the Basic Law explicitly provides that "the Department of Justice of the Hong Kong Special Administrative Region shall control criminal prosecutions, free from any interference". This has been mentioned by a number of Honourable colleagues before. It is a matter of professional judgment by the Secretary for Justice as to whether prosecution should be initiated against the former Chief Executive over the UGL incident, and it is also a matter of professional judgment by the Secretary for Justice as to whether independent legal advice should be sought from outside counsel for individual cases. Of course, every Secretary for Justice has different professional judgments and decisions. In my opinion, the scholars and professionals who keep touting the rule of law should have the most basic respect for the Basic Law, and there is no reason why Members of the opposition camp do not understand this point. However, those of us who have been in politics for many years also understand that it is very difficult to awaken someone who pretends to be asleep. President, Secretary Teresa CHENG, who has currently been named and shamed by the opposition, is herself a Senior Counsel with extensive legal experience. In the face of tremendous political pressure, she handles the matter with a professional and impartial attitude, rightly demonstrating the spirit of the rule of law and social justice. We should support DoJ in acting in accordance with law, and the incident should come to an end. I would also like to advise certain politicians not to make use of this incident again to engage in political hype and discredit Hong Kong. President, I so submit. MR JEREMY TAM (in Cantonese): President, I will certainly support Mr Dennis KWOK's motion. Since the Secretary for Justice, Ms Teresa CHENG, assumed office, she has not impressed the public with any good deeds, except disappointing them with her illegal structures incident and her handling of LEUNG Chun-ying's case now. In the beginning, we thought the illegal structures incident was her inadvertent mistake, as the pro-establishment Members so claimed, and that she would not want any illegal structures either. But then the incident teaches us that any politician should have a husband or a wife to sacrifice or as defence in times of troubles.


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According to the Secretary for Justice's remark at the media session on 26 December 2018, the established policy of the Department of Justice ("DoJ") in dealing with prosecutorial decisions has been to make the decision within the department itself; and unless the case involves a member of DoJ, there would not be outside counsel being engaged. I believe this is her most controversial remark. Over the past period of time, she has had many opportunities on different occasions to withdraw the remark, but she has not done so. She seems to think that we are all idiots or mindless people, like a goldfish with a two-second memory, and that we will not remember what she has said. She later defended herself that her remark had been misunderstood. However, track records show that DoJ has sought outside independent legal advice on at least 10 cases, although the persons concerned were not a member of DoJ. Some of the cases included the case under the tenure of Ms Elsie LEUNG concerning Mr Antony LEUNG who jumped the gun in purchasing a car; the case under the tenure of Mr WONG Yan-lung concerning Mr Rafael HUI and the Sun Hung Kai Properties Limited; and the case under the tenure of Mr Rimsky YUEN concerning Mr Donald TSANG on acceptance of advantages. All of them were not a member of DoJ. Why did DoJ seek independent legal advice on these cases? Many cases just mentioned involved senior public officers or former senior public officers, and the public will objectively think that these are precedent cases to follow. Actually, under what situations will DoJ brief out a case? The Secretary for Justice says that a case will not be briefed out unless it involves a member of DoJ. But actually, this is only one of the reasons for briefing out cases. Generally speaking, DoJ will also brief out a case in some other situations, such as when it is deemed appropriate to obtain independent outside counsel's advice or services to address possible perception of bias or issues of conflict of interests. Obviously, the purpose is to realize the spirit of the rule of law and manifest justice, and to prevent suspicion that the Secretary for Justice is manipulating the situation and that her decision not to prosecute certain influential people is made under political or other non-legal considerations. But why does DoJ adopt this stance with LEUNG Chun-ying's case? According to the Secretary for Justice, this is their way of being "responsible". But is seeking outside counsel's advice an irresponsible act? Is her reply not a


slap in the face for Ms Elsie LEUNG, Mr WONG Yan-lung and Mr Rimsky YUEN? Here, we are talking about the procedure, not her capability. I do not know if the Secretary is with me or not. We are now talking about the procedure, not her capability. When there is procedural injustice, people will naturally suspect whether she has a secret agenda behind. We often say that Hong Kong is a place of clear regulations and procedures. There are established procedures for everything. When you omit a certain procedure, you need to have sufficient reasons for the omission. One reason we cannot accept is that you claim yourself very capable and responsible, so much so that you skip a certain procedure. In 2003, regarding the case of Mr Antony LEUNG who jumped the gun in purchasing a car, the incumbent Director of Public Prosecutions ("DPP"), Mr Ian Grenville CROSS, made a point in relation to his decision not to prosecute Mr LEUNG. He said that Ms Elsie LEUNG had, from the early stage of the case, delegated to him the task of deciding whether or not to prosecute Mr LEUNG, in order to avoid any possible perception of bias because of her former working relationship with Mr LEUNG. So, there is an example, as early as in 2003, showing that a working relationship may cause the public to reasonably believe that the working relationship can constitute bias. In other words, a working relationship can be one of the non-legal considerations I just mentioned. (THE PRESIDENT'S DEPUTY, MS STARRY LEE, took the Chair) Ms Teresa CHENG was Chairman of the Transport Advisory Committee from 2004 to 2010. At that time, Mr LEUNG Chun-ying was the second Convenor of the Executive Council of the HKSAR and his tenure spanned from 1 July 1999 to 3 October 2011. So, during this period of time, she would report transport matters to the Chief Executive in Council, and Ms CHENG and Mr LEUNG naturally would have a certain degree of a working relationship. Besides, Ms Teresa CHENG was appointed Chairman of the Air Transport Licensing Authority from 2012 to 2018 by the Chief Executive. So, how could she not have a working relationship with him?


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Certainly, the Secretary for Justice can defend that Mr LEUNG was the Chief Executive and he had a working relationship with many people. However, this precisely explains why DoJ engaged outside counsel to handle the case of Mr Donald TSANG. I wonder how Mr TSANG felt for leaving the prison today. He did not say much, but I think he must feel embarrassed. He is convicted but another Chief Executive may be convicted only. Why is their treatment so different? Both of them are public figures and both are former Chief Executives. Is there any changes to the briefing out policy just mentioned? At least as of 26 February 2018, there had been no changes. It was because a member of the Panel on Administration of Justice and Legal Services asked the Administration on that day whether DoJ would continue to adopt its established policy to handle controversial cases. The Administration was still willing to maintain its established policy at that time. According to its reply, there is a need for briefing out some of the prosecution cases arising out of the controversial cases where there is a need for expert assistance or it is deemed appropriate to obtain independent outside counsel's advice or services so as to address possible perception of bias or issues of conflict of interest. I thus feel perplexed at a certain Member's comment just now that this is the hype created by the opposition camp to undermine the rule of law of Hong Kong. How ridiculous! We are trying to safeguard the rule of law of Hong Kong. If Secretary Teresa CHENG differs with what I just read out, she can abrogate it. DoJ can abrogate this item so that it does not need to engage outside counsel in the future, since she is so responsible a person. Right? Since DoJ has such as strong sense of responsibility with its job, why will she need to engage outside counsel's service? Just abrogate the budget for briefing out cases from now on. So, have the decisions just mentioned been endorsed by the entire DoJ? Or, are these decisions just the dogmatic decisions made by the Secretary for Justice? According to the Secretary for Justice, internal operations of DoJ, especially case discussion, are kept strictly confidential. However, in handling several cases involving senior government officials or public officers, including Mr Antony LEUNG, Mr Franklin LAM, Mr Donald TSANG and Mr Timothy TONG, DoJ has sought the independent advice of outside counsel and also made public the person in DoJ who took charge of the case concerned.


Regarding Mr Antony LEUNG's case, the Secretary for Justice issued a statement on 15 December 2003, clearly stating that DPP had engaged the service of a private member of the Bar in Hong Kong on the case. The senior counsel, having considered the evidence, the points of law and the established prosecution policy, provided independent advice on the issue of whether a prosecution should be instituted against Mr Antony LEUNG. The statement also mentioned that DPP, after considering senior counsel's advice, decided that seeking a second opinion would be beneficial. He then instructed a Queen's Counsel at the Bar of England and Wales to provide an independent opinion on the issue of whether a prosecution of Mr LEUNG was appropriate upon application of the law and established prosecution policy to the evidence. What I just read out is based on the statement made by DoJ. The Secretary for Justice at that time also made public the whole process. First, DPP stated his decision to engage the service of leading senior counsel at the BAR of Hong Kong, and that after considering the counsel's advice, he decided to seek second advice in November. Although he did not disclose in detail all the considerations leading to his decision, we do not even know this basic information in the present case. This gives people the impression that the Secretary for Justice is manipulating the situation and gives rise to suspicion that she cannot institute prosecutions due to some secret agenda behind. I am not saying that there is a secret agenda, but when people already have such a suspicion, why does the Secretary for Justice have to do this and create even stronger suspicions among the public? If the Secretary thinks that she does not need to follow procedural justice or internal practices of DoJ … Besides, her behaviour in front of the media, such as the way she pointed at reporters, asking them to be civilized and the way she said DoJ would not engage outside counsel unless the case involves a member of DoJ … and she does not intend to take this statement back. Today, is she still of the view that this remark is applicable to LEUNG Chun-ying's case? I do not think so, but to date, she has not withdrawn the remark, except making another generalized statement that there are other similar cases. She has never admitted that she said something wrong. I really wonder whether she inadvertently made a wrong statement, or she intentionally tried to mislead the public.


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Hence, I thank Mr Dennis KWOK for moving this motion today, so that all Members can have an opportunity to question the Secretary for Justice why she has not followed the procedure and the precedent cases, and why she has to make up an irrelevant reason that only cases involving members of DoJ would be briefed out, in order to divert our attention and prevent justice from being upheld. I so submit. MR SHIU KA-CHUN (in Cantonese): Deputy President, I rise to speak in support of the motion proposed by Mr Dennis KWOK, which requests the Secretary for Justice, Teresa CHENG, to produce all relevant papers, books, records or documents, and to testify or give evidence, in order to provide justifications for her decision of not instituting prosecution against the former Chief Executive LEUNG Chun-ying for the alleged corruption and the alleged misconduct in public office in the UGL case, and for her departure from the established practice of seeking independent legal advice. On 12 December last year, the Department of Justice ("DoJ") suddenly issued a statement that it would not initiate prosecution against LEUNG Chun-ying and Mr Holden CHOW, and this sparked a public outcry. While the Legislative Council, the media and the public all decided to question Secretary Teresa CHENG about the matter, she had already gone on a 10-day leave, having pleasure thousands of miles away. Upon return to Hong Kong, she acted condescendingly, pointing a finger at every direction when she wheeled out the old argument of DoJ being independent, fair and square. All these, however, are nothing but empty and meaningless words. As for why independent legal advice was not sought for the case of LEUNG Chun-ying, she merely explained that DoJ closed the case as there was no conflict of interest, and even shamelessly described it as a responsible approach. She completely avoided the question about changing the established policy so lightly. In response to the rationale of seeking independent outside legal advice, I wish to say that the six circumstances under which DoJ will seek independent legal advice from outside counsel have been mentioned in DoJ's reply to a Member's question in June 2015, as well as in the document DoJ submitted to the Panel on Administration of Justice and Legal Services of the Legislative Council in February 2018 in relation to the briefing out of criminal and civil cases by DoJ,


a document which has been mentioned repeatedly today. Those situations include the one Mr Jeremy TAM just mentioned: to address possible perception of bias or issues of conflict of interests, it is deemed appropriate to obtain independent outside counsel's advice or services. All along, DoJ has sought independent legal advice for criminal cases involving senior officials, in the light of public perception. We can actually name a few of these people, for example, former Financial Secretary Antony LEUNG, former Chief Executive Donald TSANG, former Chief Secretary for Administration Rafael HUI, former Executive Council Member Franklin LAM, former Commissioner of ICAC Timothy TONG, etc. Even for the case of unauthorized building works which involves Secretary Teresa CHENG who is in this Chamber today, outside legal advice has been sought by the Director of Public Prosecutions. Now, the UGL case involves LEUNG Chun-ying, the former Chief Executive and the incumbent Vice Chairman of the National Committee of the Chinese People's Political Consultative Conference. Apparently, it is a case attracting local and even global attention. According to the long-standing policy, if DoJ had really been impartial, why would it have refrained from passing the cases of LEUNG Chun-ying and Mr Holden CHOW to outside counsel for review and done the job on its own? Secretary Teresa CHENG once said that society had some misunderstanding about DoJ's system of briefing out cases, and she indicated that when making decisions on criminal prosecutions, it is an established practice of DoJ to make the decision by members of the DoJ, unless it is a case involving a member of the DoJ, and it is only then will the case be briefed out. I must point out that the practice she described is an apparent departure from the established policy previously explained by DoJ to the public through the Legislative Council, and it also runs counter to the rule of law. Members have to understand that the seeking of independent advice from outside counsel does not mean to be a replacement of DoJ's constitutional duty to make decisions of criminal prosecutions free from any interference. Instead, it is to implement the rule of law, so that justice can be seen to be done.


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Meanwhile, it will also avoid arousing any doubt among the public that DoJ has its unchecked power and bases its decisions of not prosecuting the big wigs on political or other non-legal considerations. Teresa CHENG not only has departed from the established prosecution policy, but has actually failed to gain public acceptance of this prosecutorial decision also. For the incidents involving Antony LEUNG, Franklin LAM, and Timothy TONG back then, DoJ would provide detailed explanations in more than 10 thousand words to set out the decision-making process, the relevant details, and the legal and evidential analyses. Such approach apparently differs greatly from the one adopted this time when the statement concerning the decision of not prosecuting LEUNG Chun-ying only contains less than 1 000 words. So far as I can recall, when the then Secretary for Justice Rimsky YUEN decided not to institute prosecution against Timothy TONG, his explanation was an elaborate one. At that time, he stated, "We fully understand the great concern in society about this incident and its sensitivity. Therefore, apart from the detailed assessment of the evidence by our colleagues in the Prosecutions Division, we have sought the advice of an independent Queen's Counsel in the United Kingdom. This Queen's Counsel is, as far as we know, the very top one in this field. The purpose of doing so is to have not only the opinion within our department, but also the advice from a completely independent Queen's Counsel … Upon receipt of the legal advice from the Queen's Counsel, we will not automatically adopt his conclusion, whether he opined for or against the commencement of prosecution. We must conduct an independent review on every one of his arguments and the relevant evidence. After such review, we must also prepare another written submission. Therefore, after the Queen's Counsel of the United Kingdom has provided his submission, our colleagues in the Prosecutions Division will conclude the study, and then the Director of Public Prosecutions will have a comprehensive legal submission to provide to the Independent Commission Against Corruption ('ICAC')." (to this effect) This is what we call "ten-thousand-word submission". However, this time round, in the case of LEUNG Chun-ying, all we can see is that DoJ has departed from its long-standing policy and acted in an autocratic manner. It just presented sloppy explanations when the case was closed. In


this way, how can the general Hong Kong public be convinced that this is an impartial decision? As evident in its sloppy explanations and its departure from the normal practice, DoJ has failed to make a decision acceptable to the public. Some people say that Secretary Teresa CHENG has let LEUNG Chun-ying off the hook for fear of the Chinese Communist Party's authoritarianism. I think that in order to address public concerns, including avoiding the impression that the Central Authorities is interfering in Hong Kong's legal affairs, we should not easily give up our monitoring role. To me, DoJ not only should explain the reasons for the change in its policy, but should also give a full account of the grounds of its decision of not instituting prosecution. Furthermore, during the 10 days when Teresa CHENG was on leave, reporters asked the Chief Executive Carrie LAM why the Secretary could stay away at a time like this. Surprisingly, Carrie LAM's answer was that the Secretary's application for leave had been approved one month ago, so she did not go on leave because of this matter. It is blatant that these two senior officials surnamed CHENG were passing the buck to each other and shielding each other. Did Teresa CHENG not know that she would need to respond to public queries upon the announcement of the decision of not prosecuting LEUNG Chun-ying? Do they think members of the public are naive? Or do they think that the matter can be muddled through since "everything will be watered down as time goes by", just as the saying goes? This is simply Carrie LAM's usual trick of "washing her hands of any responsibility" to distance herself from the matter. Whenever the Government has to do something shady, she will arrange for herself to be out of town. As I recall, in the Question and Answer Session of the Council last year, Mr Alvin YEUNG asked Carrie LAM whether she had taken part in any discussion when the authorities disqualified Agnes CHOW from candidacy in the Legislative Council by-election. The answer Carrie LAM gave then was that the decision on Agnes CHOW's qualification for candidacy rested with the Returning Officer, and that she, being out of Hong Kong at that time, did not take part in the discussion relating to the disqualification of Agnes CHOW's candidacy. The public can easily notice that this Administration excels at remaining silent or equivocating in face of any thorny issues. It will wait for a few days until the sentiment against the incident has cooled down, and then it will come


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out to deny having any involvement in, any tie with, or any knowledge of the incident. This time when Teresa CHENG went on leave, she was likewise employing the same tactic of evading a response. It was only after some time when the media organizations on the Government side have diverted the focus of public opinion that she responded with some official clichés, claiming that the evidence has been thoroughly examined, and there is no such thing as letting someone off the hook. Deputy President, all I can say is that these two senior official of the SAR Government, both surnamed CHENG, are no less shameless than LEUNG Chun-ying, given their roles and their handling of the UGL incident. Deputy President, there is a traditional Chinese custom "mercy release" which is believed to be good karma by people in general. Certainly, doing good deeds is a nice thing, but we ought to find out about the ecology of the environment first before releasing any captive animal. We should not do it indiscriminately and arbitrarily, or we will turn this good-intentioned act into a disservice. The thoughtless act of animal release is far from a good deed, and is even a sin. The reckless release of alien species will upset the ecological balance of the local habitat, leading to the extinction of the native species. The fact that Secretary Teresa CHENG has harboured and let go of LEUNG Chun-ying is a flagrant destruction of the ecology of the rule of law system in Hong Kong and a taint to Hong Kong's corruption-free environment, hence a serious ecological disaster. I so submit. While I am not sure what lesson the Government has learnt from this incident, I have learnt Peter Principle, an important academic construction in management science as laid out by management guru Laurence PETER. According to him, in the hierarchy of an organization or enterprise, an employee will get promoted because of certain qualities or the expertise he or she possesses, but upon promotion into a position for which he or she is incompetent, he or she will then become an obstacle and a liability to the organization. I once considered this black humour or a ghost story, but it is actually the reality facing Hong Kong today. Deputy President, there is an example of Peter Principle called Teresa CHENG!


MR ANDREW WAN (in Cantonese): Deputy President, first of all, I thank Mr Dennis KWOK for moving today's motion. I support this motion. The motion this time is moved pursuant to Article 73(5) and (10) of the Basic Law of the Hong Kong Special Administrative Region of the People's Republic of China to summon the Secretary for Justice, Ms Teresa CHENG, to attend before the Council and to produce all relevant papers, books, records or documents and to testify or give evidence on her decision of not prosecuting Mr LEUNG Chun-ying and relevant matters. Deputy President, the debate this time is quite good, as it seems to show to the public who are watching the telecast of today's debate another episode of the television programme "Stories of Idioms", about pro-establishment Members calling a stag a horse and confounding black and white and so on. I can go on enumerating that with 1 000 words. I wish to quote what Mr Jeffrey LAM has said just now but I am holding an opposite view. I consider that the pro-establishment has disregarded the fact and avoided mentioning precedents, made specious arguments to defend her, obstructed the investigation of a case which has dragged on for four years or more, and in the end, justice could not be upheld. What has caused them to call a stag a horse? Is it politically motivated so that they can reap certain benefits or political gains? I believe they are not visually impaired, blind at heart or acting against their own conscience. They are instead forced by a very powerful power to express their views by calling a stag a horse. Just now a number of Members have pointed out that according to previous cases involving senior government officials or prominent political figures, including the Antony LEUNG case, Donald TSANG case, Timothy TONG case, Franklin LAM case, Rafael HUI case and so on as mentioned by Members just now, the Department of Justice ("DoJ") had actually sought legal opinions from outside counsels. I wish to quote an example. If we take a look at the record, DoJ hired an independent counsel to study if the Department needed to institute prosecution against Timothy TONG in its investigation. According to DoJ, after obtaining the investigation report and the relevant materials from the Independent Commission Against Corruption, DoJ carefully considered the case and also instructed a leading overseas Queen's Counsel to provide independent legal opinions as to whether it was appropriate to institute criminal prosecution against Timothy TONG. Eventually, DoJ did not institute a prosecution. Were huge reverberations in society aroused? No. Was anybody persistently debating over the case? Everybody was informed of the reason clearly. If the

https://www.hkpl.gov.hk/en/extension-activities/event-detail/143731/children-s-book-display-stories-of-idioms


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authorities can give the justifications, the society at large will find it more acceptable. Even if the authorities are holding a different explanation, we will not debate over the case persistently. The same happened in the Antony LEUNG case and Franklin LAM case. DoJ also indicated that it had exercised its powers and responsibilities to hire independent outside counsels to provide unbiased legal opinions regarding whether or not a prosecution should be instituted. Of course, in some cases, DoJ decided to institute prosecutions, such as the Donald TSANG case and Rafael HUI case that Members have mentioned just now. From these instances, we can see that there are significant disparities and differences in the prosecution procedure adopted by DoJ under the new leadership of the Secretary for Justice, as they are very different from the previous terms of Government. It makes people feel that they are relying on a "retractable ruler" or adopting double standards. That is a rather bad impression to the public. Deputy President, it is because the approach has undermined the trust of Hong Kong people in the rule of law and our confidence in the rule of law. Nevertheless, a lot of people from the pro-establishment camp, including the former Director of Public Prosecutions Mr Grenville CROSS, have pointed out that when handling sensitive cases involving senior government officials or well-known figures, independent outside legal opinions would generally be sought in order to address possible perceptions of bias or issues of conflict of interest. As to this incident, Mr CROSS considered that according to the established practice, the Secretary for Justice should seek independent legal opinions from outside. That would not only help the Department in making independent analysis, the most important effect is to make the public feel that the case is in good hands and the person involved would not enjoy preferential treatment due to his/her status and position. Deputy President, all of the above are the cruxes of today's debate. I do not understand why so many pro-establishment Members stand up and argue about that. Later on I will rebut them one by one. They have made a lot of trivial comments or even fallacies or specious arguments. Actually, we can see from this case in which LEUNG Chun-ying and Holden CHOW are set free, in addition to moving the goalposts, which I will talk about later, DoJ's explanation is also rather inadequate. There are many perplexing arguments in this "lightweight" announcement. For instance, the audience will fall into the trap if they have not read between the lines of the


remarks that DoJ did not bring bribery charge against LEUNG Chun-ying since "the evidence fell short of establishing DTZ did not consent to Mr LEUNG accepting the monies". Deputy President, actually the explanation was a bit too vague because it was a double negative construction. Does the fact "(the evidence) fell short of establishing DTZ did not consent" mean that DoJ has verified that particular part with DTZ? If so, why did it not state affirmatively that DTZ had approved LEUNG Chun-ying to collect that sum of money? If so, the relevant evidence would be adequate to address public concerns. I believe that the way in which the explanation is written is not a casual mistake at all. Is it necessary for DoJ to further explain and give a detailed account of the decision which has caused our speculation and given us such an impression? After all, it is a transfer of benefits of £4 million. Deputy President, what is more serious is that it will undermine Hong Kong people's confidence in the rule of law. Another point that the people are not satisfied with DoJ's statement is that "such misconduct was not serious enough to establish the offence of misconduct in public office ("MIPO")", which has become an eyesore especially just after Donald TSANG was released from the prison recently. Donald TSANG was charged with two counts of MIPO offences that he did not declare his interests, and he was successfully convicted on one count and the other charge was not established. One of the charges was actually quite nominal, that is, he did not declare that he knew the renovation contractor, the designer. Deputy President, to a certain extent, it can be said that the severity of the two cases are poles apart from each other. Just now a number of Members mentioned the case and said that according to Article 63 of the Basic Law, DoJ should institute criminal prosecutions free from any interference and it should be impartial. The crux lies in that particular point. Of course, we are not trying to interfere with DoJ, and we have no means to do so. Can it be said that DoJ will change its decision in view of the opinions raised by Members and the public, more than 60% of whom considered it acted with bias? What we are asking for is a due process. Would DoJ seek some independent legal opinions? Perhaps according to the independent legal opinions, no charge would be laid, and that will clear the reputation of LEUNG Chun-ying. The key point is impartiality as implied in Article 63 of the Basic Law. Buddy, why our colleagues fail to mention that? You should be seen being impartial. It is not enough for you to say that you are impartial. Deputy President, you should let people see that you are impartial and you have adhered to the due process. You should also avoid being cavilled at.


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Deputy President, the most ridiculous thing is that when our colleagues quote Article 63 of the Basic Law, they fail to quote Article 47. Article 47 manifests what I have said just now. Why was the former Chief Secretary for Administration, Rafael HUI, one of the senior officials being jailed now, found guilty ultimately for collecting a sum of $8.5 million from a consortium before he assumed the office as the Chief Secretary for Administration? It was because the court considered that it involved the concept of "golden fetters" and it might give rise to public suspicion about conflict of interest or senior officials and high-ranking officers being biased, and therefore he was convicted subsequently. If we look at these cases, the practice of DoJ this time is actually quite uncommon. According to Article 47 of the Basic Law, the Chief Executive, on assuming office, should declare his or her assets to the Chief Justice of the Court of Final Appeal. Has LEUNG Chun-ying declared that? According to the vaguely written statement or explanation of DoJ, I deduce that he has not made the declaration of that at all. Our demand is quite straightforward: Has he made the declaration? The authorities should never use a double negative construction to explain that "the evidence fell short of establishing DTZ did not consent to Mr LEUNG accepting the monies". If that is acceptable, I believe that in future, a shoplifter caught in a supermarket will defend that there is no evidence to prove that the supermarket disallows him to take away the goods. Deputy President, just now I have cited a number of examples to illustrate some of the reasons why the Secretary for Justice is being cavilled at. Another point is that the Secretary is constructing another unauthorized building works ("UBW") now. The UBW I want to say is not her house; it is the UBW of the rules. Just now a number of Members mentioned her explanation of not seeking outside legal advice. That is, DoJ will seek outside counsel's advice only when a case involves staff of the department. But obviously, over the past three years, DoJ responded to the Legislative Council at least on two occasions about the criteria for seeking advice from outside counsels. There are six criteria and many Members have quoted them, so I am not going to explain all of them. Nevertheless, one of the criteria may explain why DoJ needs to seek legal opinions from counsels outside. That is, to avoid giving the public an impression that there is bias or a conflict of interest. These are simple words, but I do not understand why the Secretary does not take heed of them. Nevertheless, not only the Secretary made the mistake. The more ridiculous thing is that a bunch of pro-establishment Members stand up to shield her faults. Let me try to enumerate a number of examples. First, Members


including the Deputy President and Dr Priscilla LEUNG kept on mentioning Mr Jimmy LAI's case saying that involved "black gold". I do not know why you have this remarkable prowess. What does the term "black gold" mean? Does it mean that Mr Jimmy LAI is a triad member, the incident involves the triad, or it involves money laundry? Why would you adopt the term "black gold"? How do you know that? I am quite interested in that. I hope my colleagues will give me the answer later on. Second, Dr Priscilla LEUNG said we kept silent on Mr Jimmy LAI's case. I have replied that just now. Dr Priscilla LEUNG is a Member of the legal profession, but to our surprise, she is asking us to teach her. Isn't it too ridiculous? A conflict of interest is essential if we are going to give others an impression that someone is biased. First, Mr Jimmy LAI is not a political figure. He is not a public official, and he is not even an important government official. Second, I believe Members of the public in Hong Kong, including people from the pro-establishment camp and more than 7 million residents in Hong Kong know that Mr Jimmy LAI is a thorn in the eyes of the Government. Nobody will think that the Government is biased and unreasonable if the Government is not going to prosecute him. If you have to say that in your opinion, a lot of people in the Occupy Central movement have not been brought to justice―just now some Members have also raised that question―first of all, nine people in the Occupy Central movement, including our colleagues in the Legislative Council, are currently facing legal proceedings. Certainly, you may argue that all the information should be disclosed. It is no big deal. I am placing all my bets now. If you say both cases should be disclosed concurrently, we do not mind that. There is no big deal at all. Will you disclose all the information about LEUNG Chun-ying's case? Regarding other cases of the Occupy Central movement, if the Secretary considers that she could give an account of that in one go, I do not mind what the proposal my colleagues are raising now. Both cases can be dealt with concurrently. If you dare, both cases can be dealt with concurrently. I am going to show you my trump card now. Should it be done in this way? Are you willing to do that? If not, please shut your mouth up. Please say not a word to cover up your shame. I really do not mind. I have taken part in the Occupy Central movement. I admit that. Should we give an account of that? There is no problem at all.


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Deputy President, just now some speeches delivered by my colleagues are rather ridiculous. Including Mr Tony TSE or Dr Priscilla LEUNG, they all said that DoJ had rarely sought legal opinions from outside, and they were few and far between. For that reason, seeking legal opinions from outside was not a must on every occasion. Hey buddy, they were moving the goalposts and playing the trick of swapping concepts again. We were talking about important political figures, key figures, former or incumbent senior government officials, and the impression that they would likely to act in a biased way. We are lucky to have just a few cases and we do not want frequent occurrence of that kind of incidents. The Chief Executive serves a five-year term, and it is quite incredible that we have one out of three Chief Executives being prosecuted, the other likely to be prosecuted, and Mr TUNG being spared. I do not know what will happen to Carrie LAM in future. Therefore, please do not make use of this tactic to confuse the public. Of course they are few and far between. There should not be too many incidents at all. However, any person who is involved will be affected. Why do they not come out to tell the truth? What is reason behind that? Just now some colleagues have criticized us for bringing up the matter repeatedly because we are just trying to hunt down LEUNG Chun-ying with a view to obtaining certain political interests. On the contrary, why should we keep on mentioning that? In 2014 and 2016, we demanded to invoke the Legislative Council (Powers and Privileges) Ordinance to conduct an inquiry, who stopped us? Who prohibited us from conducting the inquiry? It was you who stopped us. Had we been allowed to go on with the inquiry, the matter could have been resolved. But you simply prohibited us from conducting the inquiry. For that reason, before the Rules of Procedure were amended in 2016, 20 of us stood up and presented the petition. We were forced to form an independent select committee to conduct the inquiry which was not vested with the power by the Legislative Council (Powers and Privileges) Ordinance. You have not mentioned that. How ridiculous you are! You acted erratically because you, as Members of the pro-Administration, have to defend him, to shut your eyes and to call a stag a horse. All of these are just because of you. I do not know what the political interests you have. Please explain by yourselves. Deputy President, I have many grievances to air. Many members of the public have asked us to speak out for them. But I really do not have the time. I only hope that the Secretary for Justice will do one thing. That is, to disclose the information of this incident, or to put a stop to all this before it is too late by


seeking independent counsels from outside to provide legal opinions as suggested by the Hong Kong Bar Association, so as to quell the questions by the society at large in connection to the destruction of the rule of law by you. Thank you, Deputy President. MR CHARLES PETER MOK (in Cantonese): Deputy President, first I thank Mr Dennis KWOK for moving the motion under Article 73 of the Basic Law of the Hong Kong Special Administrative Region of the People's Republic of China to summon the Secretary for Justice to attend before the Council and to produce all relevant papers and records as evidence and explain in her handling of the case of alleged corruption and/or alleged misconduct in public office of former Chief Executive Mr LEUNG Chun-ying and her failure to comply with the Department of Justice's past practice to seek legal advice from Queen's Counsel and/or Senior Counsel on the case. Deputy President, we often picture Hong Kong as a society with the rule of law and we always say that the rule of law constitutes the cornerstone for Hong Kong's prosperity. Nevertheless, more and more people feel that Hong Kong has become a society of the rule of man. A number of incidents have prompted us and the public in Hong Kong to believe that this has already become the reality. The Department of Justice ("DoJ"), which is the authority in charge of Hong Kong's legal affairs, and the Secretary for Justice, who is the highest person in charge of this authority, should have an immense responsibility. Therefore, she should not give the public any reason to question that she is not impartial, and she should not give the wrong impression to the international community―in case it is not a wrong impression―a much worse scenario. For that reason, the Secretary for Justice has already let us down once when she assumed office because of the unauthorized building works in her residence. Unfortunately, she has let us down once again. This time, while the Secretary for Justice did not seek legal advice from outside on the case of alleged corruption and/or alleged misconduct in public office of former Chief Executive Mr LEUNG Chun-ying, she decided on her own that she would not institute prosecution proceedings against him. The approach has departed from the past practice and given the public an impression that LEUNG Chun-ying was set free, and in effect he was set free.


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Just now, some Members have mentioned cases involving less serious misconduct in public office or corruption. That is, regardless of the sum of money involved in these cases, and the position of the officials, be it a former Chief Executive or a common civil servant, and the amount was not as high as tens of millions of dollars, they have been "put away", in a slang. Nevertheless, is it true that the higher ranking the public officer is, the more he can act arbitrarily as he pleases? We may think that this will never happen in Hong Kong because even on the Mainland, the authorities have been making an effort to fight against corruption. On the contrary, Hong Kong has degraded into this poor condition. Hong Kong has all along been a city of probity but the present incident has given people an impression that the international image of Hong Kong has been significantly tarnished. It is unacceptable. Time and again, the image of Hong Kong has been tarnished severely. Besides, the incident this time could have been avoided if the Administration had taken some simple measures. The Government is not that broke that it cannot afford to hire a Queen's Counsel. What DoJ should do is to seek independent legal advice from outside counsel. Since the case has dragged on for such a long time, is it that urgent for DoJ to resolve the case and set the relevant person free? Why the Secretary has adopted this approach this time? We are just trying to examine all the possibilities and find an answer. As to seeking independent legal advice, all you need to do is "to ask an extra question", in layman's term, right? All you need to do is to ask an extra question, why not? Why didn't you ask? Under the common law system, seeking independent legal advice prior to making a decision is the longstanding practice of DoJ, which has been proven effective. The Hong Kong Government has been telling us all along that everything has been proven effective, and if there is no irregularity, the past practice will be adopted. Besides, it is quite uncommon for the Government to deviate from its common practice. Too often it only adheres to conventions and stresses that everything has been proven effective. But this time, why have the authorities not adopted the longstanding practice? Deputy President, the Legislative Council Commission ("LCC") also adopts similar practice. That is, LCC also seeks independent and professional legal advice. The objective and reality is that even though we cannot predict what advice will the senior counsel provide, we still know clearly that the legal opinions given by Hong Kong's senior counsels are among the fairest. Regarding the decisions made by LCC, we have also sought legal advice from


outsides in recent years. We know that can provide us with maximum protection because the Legislative Council does not want to give the public an impression that it is not impartial. Besides public perception, we also want to obtain some opinions for our reference. In fact, do we not have our own Legal Adviser? The Legislative Council has its own Legal Adviser who also possesses the all-round legal knowledge, even though she is not the Secretary for Justice. What I mean is that she can make the decision on her own and then we just follow. We can do that, but why do we not do so? Is it because the Secretary for Justice has the power, and therefore she can exploit the power to the fullest extent and shut her ears to other's opinions? I reiterate that we are just listening to advice. It is not necessary for us to follow it. But she is reluctant to listen to advice. In my opinion, the only explanation for not listening to other's advice is her fear that the advice may be unpalatable. I should assume that the advice given by barristers and senior counsels in Hong Kong's legal circle is impartial and independent. It will not be biased to any person because they only follow the books to give their advice according to Hong Kong laws. If the Secretary wants to control the result, the best way is not to place any bet on the game, right? If she knows nothing about what answer she will get or what advice counsels will provide, she may have to write a long list of explanations or to argue with them and to explain the reason why. For example, the counsels may recommend that a prosecution proceeding should be instituted but the Secretary does not think so. Is that the reason? I think the public can draw their own conclusion. Another reason given by the Secretary is that it is a responsible decision. She tries to explain that with responsibility. Indeed, besides the perception issue, the most important thing is the result. That is, will DoJ institute prosecution? If she shuts the front and back doors and put an end to the entire case by closing the file, it will be the best approach if we look at the matter from the target-based perspective. Even if she talks about responsibility, is it a responsible decision to seek independent legal advice or otherwise? Secretary, I have also tried to analyse that issue. I consider both approaches responsible. It's true because you may assume different responsibilities by adopting the two approaches. That is, you are responsible for different things. Why? If the Secretary does not seek independent legal advice, the Secretary needs to assume the responsibility of the result of not instituting any prosecution. The Secretary has to assume the responsibility all by herself. This is the outcome now. It can be considered the most faithful adherence to justice, equity, impartiality and


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fairness only if DoJ has sought independent legal advice. In the meantime, as she has assumed the office as the Secretary for Justice, she has to defend and enforce Hong Kong's law, to institute prosecutions and to uphold justice in a sacred way, she then has to take responsibility of this sacred errand. If she has made a responsible decision but she opts not to institute prosecution, not to pursue, and to depart from the past practice and damage convention, she is now responsible for the inequitable, biased and unfair based outcome. This is the fact. For that reason, the motion of summon proposes by Mr Dennis KWOK today gives us an opportunity to understand why the Secretary for Justice has made a decision that DoJ would not seek independent legal advice this time. Why was she not following the convention? Why had she not sought and listened to some legal advice? Why had she deliberately tarnished the international image of Hong Kong and made our reputation questionable and distrustful? We want to know whether DoJ has departed from the convention in the handling of this incident and whether the approach is irregular, unreasonable, irrational or even illegal. Last month, when the Secretary for Justice responded to the incident, she said that DoJ would seek independent legal advice only if the case involved the staff of DoJ. It was obviously inconsistent with the fact. Besides, we have not seen in the past practices arguments about "responsibility", "who has the final say" and "exploiting the powers to the fullest extent". Moreover, during the process, we can obviously see that she is confounding right and wrong and misleading the public. It is because in the past, DoJ has actually sought independent legal advice on various cases involving senior public officials and Members of the Executive Council. In the cases involving the former Financial Secretary Antony LEUNG in 2003, former Member of the Executive Council Franklin LAM in 2013, Donald TSANG in 2015, as well as the former Commissioner of the Independent Commission Against Corruption Timothy TONG in 2016, I will not go into the details, DoJ sought independent legal advice in those cases. Nevertheless, why DoJ has not sought independent legal advice in LEUNG Chun-ying's UGL case this time? It is exactly because a senior government official is involved that the Secretary for Justice should let the public see that the prosecution instituted by her is impartial and unbiased, and she should adhere to this protocol. Should LEUNG Chun-ying be set free as he has been a senior government official, and even promoted to the rank of a state leader and therefore she can do nothing about him but to let him go? We are not sure about that, and


we cannot confirm that. But it can be said that it has given the public that impression. As to seeking independent legal advice, at least the public should be convinced that even a senior government official is involved, DoJ has made unbiased decision. This is the benefit of seeking legal advice from outside. This is not tantamount to outsourcing the role of DoJ as it will make the final decision. Deputy President, you also know very well that when it comes to seeking legal advice from outside, the counsels will not provide a one sheet reply to illustrate whether prosecution should be instituted, as what the Secretary for Justice has done. On the contrary, outside counsels will enumerate a number of reasons to illustrate the legal viewpoints, the relevant background, the analysis from various perspectives, precedents and so on. That is to say, I have the opportunities to read similar documents. I am not from the legal profession so I dare not say I am an expert. The legal profession definitely commands my profound respect. Even though the Secretary said that she was impartial, the public do not think so. People even consider that the credibility of DoJ and the Secretary has gone bankrupt once again. Therefore, it is obvious that DoJ has violated the convention as it fails to seek independent legal advice from outside. Everyone of the public really considers that it is a biased and slanted decision. Therefore, it is hard to convince the public with this decision as the Secretary for Justice is turning a blind eye to public concerns about not instituting prosecution against LEUNG Chun-ying. Because of her decision, the court has no chance to make the final judgment. If no relevant documents, papers and records are produced as evidence, the public will never know the truth. For that reason, it is absolutely right for Mr Dennis KWOK to propose the motion to summon the Secretary to appear before the Council and give her explanation. In so doing, public confidence can be restored, and the Administration can assure the public that DoJ is impartial and independent when it exercises its prosecutorial powers. This is very important. This Council has a solemn and sacred duty to support this motion so as to facilitate the public's right to know the reasons and development of this incident, and understand why DoJ has to break the convention, and whether the convention will vanish from now on. This will also help us defend the rule of law in Hong Kong and uphold justice, and ensure that justice is served in LEUNG Chun-ying's UGL case.


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MR GARY FAN (in Cantonese): Deputy President, I speak in support of Mr Dennis KWOK's motion to summon the Secretary for Justice, Ms Teresa CHENG, to explain the decision not to prosecute LEUNG Chun-ying and to produce all relevant papers, records and evidence. Fellow colleagues, the public are outraged at the Department of Justice's non-prosecution decision with regard to LEUNG Chun-ying's UGL case, made without seeking legal advice from any independent barrister. It was a common practice to first seek advice from independent barristers when dealing with cases involving senior government officials or political sensitivity, as seen in a good number of examples cited by Mr Dennis KWOK in detail just now. When handling cases which involve important government officials and are a matter of public concern, including the Antony LEUNG case of jumping gun in car purchase, the Donald TSANG case of misconduct in public office, the Timothy TONG case of hosting entertainment activities paid out of public funds, the Franklin LAM case of flat sale, and so on, the Department of Justice ("DoJ") has invariably sought independent advice from outside senior barristers. Contrary to the usual practice, this time DoJ only issued a brief 1 000-word statement to explain its non-prosecution decision upon the conclusion of a four-year long investigation of the UGL case. This has lowered, or even shaken, Hong Kong people's confidence in the rule of law. Deputy President, people are clearly discontented with DoJ's decision. The Democratic Party has commissioned the Public Opinion Programme under the University of Hong Kong to conduct a telephone survey of more than 1 000 people from 7th to 11th this month. About 60% of the interviewed "very much agree" or "quite agree" that DoJ's decision not to prosecute LEUNG Chun-ying is biased. About 85% of them consider it "very necessary" or "quite necessary" for DoJ to account for the investigation results and legal analysis of the case. More than 70% consider it necessary to seek external legal opinion. Most importantly, about 54% of the interviewed believe the non-prosecution decision has negatively impacted their confidence in Hong Kong's rule of law while only 37% say there is no such impact. Public opinion speaks loud and clear on the issue. In her response made just now, the Secretary for Justice Teresa CHENG quoted Article 63 of the Basic Law to say the Department of Justice shall control criminal prosecutions free from any interference. Deputy President, I have to say that people are now precisely worrying about DoJ's possible vulnerability to interference and hence consider it necessary to summon SJ to produce all relevant papers and evidence so as to give the Legislative Council and the people a chance


to find out the truth. The Hong Kong Bar Association has also issued a statement, saying "[t]he departure from the commendable and well-recognized convention … raises justifiable doubts as to whether the decision in question was reached free from any bias or political considerations". This is the opinion of the Hong Kong Bar Association. Deputy President, we now fear that someone, in contravention of Article 63 of the Basic Law, has interfered with DoJ's prosecutorial decision. However, our the Secretary for Justice Teresa CHENG, in a reversal of fact and logic, criticized those truth-seeking Members and people, accusing them of interfering with DoJ. Teresa CHENG further said that the production of all relevant documents would lead to a trial by the mob. But now, this Council asks for the production of documents precisely because the Government has refused to disclose more information and justifications while a detailed account of the case has been found wanting. The response made by Teresa CHENG suggests that the Government is trying to keep them in the dark and to shirk its responsibilities, hence reinforcing the public belief that DoJ is biased. In future, people will have the impression that officials or senior officials who are involved in legal cases can escape prosecution, get a "pardon" and stay safe. Deputy President, people are also worried that the decision not to prosecute LEUNG Chun-ying may indicate changes in DoJ's solicitation of legal advice from outside and in prosecution policy, for the sake of protecting the privileged, resulting in a further collapse of the already fragile regime. Therefore, I support citing Article 73 of the Basic Law to summon the Secretary for Justice so as to let our Members and the public discuss and determine the case with the disclosed information concerned, in a move to stop further deterioration of the system. This is neither a trial by the mob nor interference, but an attempt to use the existing system to counterbalance public officers for inhibiting power abuse and corruption. Deputy President, finally I would like to say that under the present prosecutorial system, DoJ is entitled to criminal prosecutions while its head, the Secretary for Justice, is concurrently a member of the Executive Council. Without a balance of power, DoJ's decision to prosecute or otherwise can indeed be used to serve certain political ends: either to protect or to attack some political groups or figures. Therefore, independent criminal prosecution procedures are a cornerstone of the rule of law, highly important to us.


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The Secretary for Justice is a political appointee who at the same time has to make criminal prosecutorial decisions independently, and thus prone to role conflict. The decision not to prosecute LEUNG Chun-ying in the UGL case is obviously a typical example. The Hong Kong people and the general public have reasons to doubt that the existing regime fails to safeguard the Secretary for Justice against the interference of political considerations when handling certain politically sensitive cases. What will happen if the Secretary for Justice cannot carry out criminal prosecutions impartially in the face of a role conflict? The rule of law that we treasure dearly will then be sacrificed. Therefore, I support summoning the Secretary for Justice under Article 73 of the Basic Law in order to find out if there is any conflict of role or interests in the UGL case in question. (THE PRESIDENT resumed Chair) In order to correct the problem, the responsibility of carrying out criminal prosecutions should hence be rested with a fully independent Director of Public Prosecutions in the long run, rather than DoJ, which is steered by the Secretary for Justice. The independent Director of Public Prosecutions should report regularly to the legislature on cases which are controversial, a matter of public concern or involving important political incidents or figures. This will allow Hong Kong people an access within the system to understand the justifications for prosecution and thereby eliminating the interference of political considerations in making criminal prosecutorial decisions. Moreover, DoJ's current practice of soliciting independent legal opinion should be specifically included into the Prosecution Code, with all the circumstances under which independent legal advice must be obtained outside DoJ set out down to the last detail, so as to allay public concerns and restore Hong Kong people's confidence in the rule of law. It is indeed important to restore Hong Kong people's confidence in the rule of law. Therefore, I support Mr Dennis KWOK's motion to summon the Secretary for Justice to account for the decision not to prosecute LEUNG Chun-ying. President, I so submit. PRESIDENT (in Cantonese): Does any other Member wish to speak?


MR IP KIN-YUEN (in Cantonese): President, I support Mr Dennis KWOK moving the motion under Article 73(5) and (10) of the Basic Law to summon the Secretary for Justice, Ms Teresa CHENG, to attend before the Council to produce documents and to explain the decision not to prosecute former Chief Executive LEUNG Chun-ying in relation to the UGL case. President, Secretary Teresa CHENG has not provided any proper feedback or justification to explain the decision against prosecuting former Chief Executive LEUNG Chun-ying in relation to his accepting interest from UGL, since the Department of Justice ("DoJ") issued a statement on 12 December last year. Moreover, a new round of query is always triggered whenever the Secretary comes out to respond. For instance, when responding to the media on 26 December, she said independent legal advice from outside would be engaged only when the case involved a member of DoJ. People doubted if this comment departed from the usual practice. Dr Priscilla LEUNG, Chairman of the Legislative Council Panel on Administration of Justice and Legal Services, has stated that Secretary Teresa CHENG will be invited to expound on prosecution policy next Monday. However, Dr LEUNG has made it clear that the meeting is not going to thoroughly discuss the details of any individual case. And as Members will only be given less than an hour to raise questions with regard to the relevant agenda item, presumably they will be unable to get a full picture owing to the time constraint. Therefore, I believe the legal representative Mr KWOK's current motion of summon, which allows the Secretary for Justice ample time to explain in a Legislative Council meeting with the help of a substantial amount of documents and information, will allow Members and the public determine whether DoJ's decision not to prosecute LEUNG Chun-ying is appropriate. President, this is not the first time DoJ decides not to prosecute senior government officials involved in alleged offences. There are three such cases before the one in question. They are the Antony LEUNG case of jumping gun in car purchase in 2003, the Franklin LAM case of flat selling in 2013, and the Timothy TONG case of entertainment in 2016. I have to emphasize that all these three are non-prosecution cases. However, as independent legal advice has been sought, these three cases are completely different from the LEUNG Chun-ying's UGL case in question. We saw that the criticisms arising from the community at that time, if any at all, were rather mild.


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Let me quote the Antony LEUNG case as an example. DoJ hosted on 15 December 2003 a press conference in which the then Director of Public Prosecutions ("DPP") Grenville CROSS, who was responsible for the case, gave justifications for not prosecuting LEUNG. The statement CROSS gave was 17 pages long. The Legislative Council Panel on Administration of Justice and Legal Services convened a meeting on the following day to discuss the incident concerned. According to the minutes, at that time (I quote) "Mr IP Kwok-him, Ms Audrey EU, Ms Emily LAU and Ms Miriam LAU said that they welcomed the SJ's decision to explain in public the approach and the process that had been adopted in handling the case and the decision not to prosecute Mr LEUNG". (unquote) Members of different political affiliations welcomed DoJ's approach in explaining the decision not to prosecute Antony LEUNG. In the case of Franklin LAM, there was hardly any comment on DoJ's decision. What I would like to say here is that if your explanation is convincing enough, the people and the Members may not respond negatively, even to a non-prosecution decision. Conversely, one can see that LEUNG Chun-ying's UGL case is loaded with problems since the first day DoJ made the statement concerned. The first thing is about the length of the statement. Less than half a page is produced to explain why LEUNG Chun-ying is not prosecuted. This is unreasonably and disproportionately brief when compared with the 17 pages in the Antony LEUNG case, 13 pages in the Timothy TONG case and even the four pages in the Franklin LAM case. Second, DoJ invariably held press conferences to explain its decision in the previous three non-prosecution cases. However, Secretary Teresa CHENG merely gave a brief statement to account for the decision and did not meet the press until two weeks later. This naturally provokes discontent from the press and the community. And of course, the most important issue is that DoJ has not sought independent legal opinion in this case. President, since DoJ's issuance of statement on 12 December, the public is most keenly interested to know why DoJ has departed from the established practice of consulting independent legal counsel. Does the decision involve any conflict of interests? Is it made to harbour someone? Or, is it influenced by other considerations? Secretary Teresa CHENG claimed in the Legislative Council meeting on 16 January that (I quote) "Whether it is a case with sensitivity or not is never a guideline for mandatory briefing out. It is not a norm of the DoJ to brief out cases for legal advice."(unquote) First, this remark has contravened the


principle upheld since her assumption of office. In the paper CB(4)619/17-18(03) that DoJ submitted to the Legislative Council in February last year, paragraph 3 is on "DoJ's briefing out policy" and it expounds on six briefing out principles. Among them, item (d) states the need "to address possible perception of bias or issue of conflict of interests". This indeed is a very clear principle. It is true that the solicitation of independent legal advice is not a mechanism put in place ever since DoJ's establishment. But neither is this mechanism invented for no reason at all. In 1998, the Sally AW case provoked serious controversies, prompting DoJ to formulate this mechanism for balancing the prosecution mechanism and responding to community concerns. The Antony LEUNG case was the first case handled under the new mechanism. There is now a popular game on Facebook, the 10-Year Challenge, in which one juxtaposes his or her picture taken 10 years ago with a recent one. The subject of this game has now extended from individuals to various social issues. At present, DoJ is also staging a 10-Year Challenge which reveals that our prosecution policy has returned to the point we experienced 10 years ago, before the Sally AW case. That is to say, the document produced in February 2018 is now defunct. In handling LEUNG Chun-ying's UGL case, DoJ has violated established practices, not only in its briefing out policy but also in its approach. On 29 March 2012, the then Secretary for Justice WONG Yan-lung issued a statement in relation to the HUI Rafael case, saying (I quote): "The Chief Secretary for Justice, in order to avoid any possible perception of bias or improper influence, after satisfying himself that Mr Kevin Zervos, SC, the Director of Public Prosecutions, has no connection with the persons involved in the case, has delegated to the Director of Public Prosecutions the authority to handle the case and if and when required to consider whether any prosecution action is warranted." (unquote) This authority delegation lasted until 9 September 2013. At that time, the then DPP was Mr Keith YEUNG, SC, who had provided legal advice on the Rafael HUI case when he was in private practice. DoJ thus issued another statement to say that in order to avoid any possible perception of bias or improper influence, the then Secretary for Justice Rimsky YUEN, has "resumed the authority to handle the case". Let us see how DoJ handles LEUNG Chun-ying's UGL case. On 9 October 2014, DoJ issued a statement in relation to the case, saying "the Secretary for Justice, in order to avoid any possible perception of bias, partiality


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or improper influence, after satisfying himself that the Director of Public Prosecutions ("DPP"), Mr Keith YEUNG, SC, has no connection with any of the persons involved in the case, has delegated to the DPP the authority to handle the matter including (should it eventually become necessary to do so) considering and deciding whether any prosecution action against any persons is warranted". On the following day, a further statement came out, adding that "[t]he purpose of the delegation of authority by the Secretary for Justice to the Director of Public Prosecutions ("DPP") to handle the complaint involving the Chief Executive is to avoid any public perception of bias or partiality in the handling of the case." (unquote) This is crystal clear, especially with regard to the complaint against the Chief Executive. But then, under the helm of Teresa CHENG, does DPP still hold the right to handle LEUNG Chun-ying's UGL case? Or is the right held by Teresa CHENG herself now? If it is the latter case, on what grounds does the Secretary resume the authority? I think Secretary CHENG has yet to provide an appropriate explanation here. At the end of 2008, DoJ published The Statement of Prosecution Policy and Practice: Code for Prosecutors ("the Code"). Chapter 2 of the Code, "The Position of the Secretary for Justice", emphasizes that "[i]t is the Attorney General who is responsible for all prosecutions in Hong Kong. It is for the Attorney General alone to decide whether or not prosecutions shall be instituted in any particular case or class of case". (unquote) The chapter goes on to quote a speech made by Sir Hartley SHAWCROSS KC, Attorney General of England and Wales, in the House of Commons: "[I]n deciding whether or not to authorize a prosecution, to acquaint himself with all the relevant facts, including for instance the effect which the prosecution, successful or unsuccessful as the case may be, would have upon public morale and order, and with any other considerations affecting public policy." (unquote) Unfortunately, the Code has been replaced in 2013 by the current Prosecution Code and the contents above no longer exist. Of course, the Secretary can clarify later if the two quotations I cited just now remain applicable to DoJ. Though the quoted text is no longer there, it is an undeniable fact that DoJ is the only authority which holds the power to prosecute in Hong Kong. Its decision to prosecute or otherwise will definitely affect "public morale and order". Therefore, given that a former Chief Executive has taken an enormous amount from a foreign enterprise and that a Chief Executive is exempted from the


regulation of the existing Prevention of Bribery Ordinance, we all the more hope the judiciary can make a good judgment on this case. When the prosecution authority provides only a less than 800-word statement to account for the non-prosecution decision, public worries naturally arise. President, like what Eric CHEUNG, Principal Lecturer of the Faculty of Law, the University of Hong Kong said, the solicitation of independent legal advice from senior barristers outside aims not at replacing DoJ in handling criminal prosecutions, a responsibility protected by the constitution from any interference. Instead, this is done to fully implement the rule of law principle, to let justice be seen to be done and to pre-empt public suspicion of DoJ's tampering with the truth single-handedly and making the decision not to prosecute the powerful on political or other non-legal considerations. Former Secretary for Justice Rimsky YUEN, in the statement announcing the decision not to prosecute Timothy TONG, did mention about having obtained legal advice from an independent Queen's Counsel in the United Kingdom. According to the then Secretary for Justice, the Queen's Counsel in question is "a top Queen's Counsel in this area … no one would say the neutrality of this Queen's Counsel can be affected by certain political factors" (translation). This remark shows precisely the importance of seeking independent opinion. If DoJ does follow the convention to seek independent legal advice, and comes up with a non-prosecution decision eventually, we will not find fault with the decision, even if we are discontented, and will instead say we respect it. As with the cases of Antony LEUNG and Franklin LAM, nobody criticized DoJ's non-prosecution decision. But now it is the Secretary for Justice who makes the entire call and unsurprisingly people develop all sorts of worries. Is the Secretary for Justice's decision made on pure legal ground? Are there any political or interpersonal factors behind it? Once the worries are there, the legitimacy of this incident will be compromised. President, I support this motion of summon but I do not mean to request the Secretary for Justice to produce records of internal discussions or evidence in relation to the case, as this is in violation of the principle of legal professional privilege. But I would like the Secretary for Justice to clearly answer a few questions. First, what are the differences between LEUNG Chun-ying's UGL case and the other cases in which senior government officials are involved and independent legal opinions have been sought? Second, has DoJ developed a new understanding of the principle which highlights the necessity "to address possible perception of bias or issue of conflict of interests"? Third, what are the


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justifications for hiring or not hiring independent legal counsel? Fourth, who is in charge of the LEUNG Chun-ying case after Secretary Teresa CHENG assumed the Secretary for Justice position? If there has been any change in the officer-in-charge, the reasons for it. Fifth, has anyone from the Special Administrative Region Government or the Central Authorities contacted DoJ with regard to the LEUNG Chun-ying case? President, I believe that if the Secretary can provide the above information to this Council and to the public, it will help allay our concern and revive people's confidence in the local judicial system and in the Special Administrative Region Government. I so submit. MR CHAN CHI-CHUEN (in Cantonese): President, I am holding a chart that shows the mutual shielding among government officials, which was produced around the time the incident of unauthorized structure at the residence of Teresa CHENG (i.e. "Teresa of unauthorized structure") was uncovered when she assumed office. Besides, my New Year Fair stall of last year was named "Teresa's Court of Unauthorized Structure". What we are discussing today is definitely not about the incident of unauthorized structure, but I have never expected that I still have the opportunity to reuse this piece of old prop. I reuse it not for the sake of environmental protection but because I do not want the people of Hong Kong to have any more opportunities to question if the Secretary for Justice, the SAR Government and even the former officials of the SAR Government have engaged in the practice of mutual shielding since mutual shielding among officials is utterly a taboo for any government. Even if this does exist, the government concerned should try at all costs to avoid giving people such an impression as this will likely be made an object of ridicule. Members of the public began to worry that the Secretary for Justice, who is empowered to institute criminal prosecution, would abuse the power of criminal prosecution by not prosecuting a person for any ulterior political purpose as early as the time when the first Secretary for Justice Ms Elsie LEUNG decided not to prosecute Sally AW, the responsible person of Sing Tao News Corporation Limited, on the grounds of public interest. Hence, the Department of Justice ("DoJ") will seek independent legal advice in respect of politically sensitive cases to show its impartiality or avoid giving rise to any conflict of interests. This has nothing to do with politicization of legal issues. On the other hand, the DoJ's practice of briefing out cases is not tantamount to non-commitment or shirking


responsibilities since no matter what kind of legal advice is obtained from outside, it is always the DoJ to take full responsibility at the end of the day. It is never the case that the DoJ can shirk its responsibilities by briefing out cases. At present, Teresa CHENG is attempting to fool the public with false statements and obscure the truth as well so that members of the public are deluded into believing that briefing out cases means shirking responsibilities by the DoJ, which need not commit itself to such tasks. This will indirectly give people the impression that those government officials or relevant DoJ personnel having advocated in the past that the DoJ should brief out certain cases were being accused of "non-commitment". Yet, the aim of the DoJ's briefing out a politically sensitive case to seek legal advice from other sources is precisely to avoid arousing suspicion. If this is the case, I would not have been given any opportunity then to show members of the public this very chart of mutual shielding among government officials, from which they will come to realize the presence of such practice and the truth that the rich and powerful people are always the sole winners before the law. If Teresa CHENG deems the act of briefing out the case to allay public concerns a form of politicization, I can only quote the words of her husband, Otto POON: "I have no idea what she is doing." The truth is simple indeed. If you go out to the streets to ask people for their views about such a decision of the DoJ, you will understand that a lot of them actually worry about the possible perception of bias caused by such a decision. Who would say there is no problem? It is the pro-government Members of this Council who have risen to speak today. They may, in the face of reporters and in front of the camera, say that such a decision of the Secretary for Justice is perfectly fine today, but consider in private that she has actually made the wrong decision. Yet, this does not mean that they will support Mr Dennis KWOK's motion. (Dr CHIANG Lai-wan spoke loudly in her seat) PRESIDENT (in Cantonese): Please keep quiet, Dr CHIANG Lai-wan. MR CHAN CHI-CHUEN (in Cantonese): At present, the Secretary is further accused of having committed another fault which seems quite serious. It originated from the remarks made by Mr Donald TSANG, the former Chief Executive who also faced prosecution and was put behind bars upon conviction,


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on his being asked by reporters recently how he felt about the difference in treatment for himself and Mr LEUNG Chun-ying. TSANG said, "This would trigger the past anger and resentment in my heart." What is Teresa CHENG being accused of for the time being? Well, it is her fault in having caused people to sympathize "Greedy TSANG" at present. Now those people previously responsible for prosecuting "Greedy TSANG" might have made a U-turn and worried about Mr TSANG's situation instead. This is indeed quite a grave accusation to make against her. The power to make prosecutorial decisions is important and a high degree of transparency must be ensured when the power is exercised. The Government's verbal guarantee alone is not enough. Most importantly, it has to show its impartiality to the majority of the general public. Here is a very simple example to consider: Why would chaos be caused whenever some officials come to attend meetings at this Council, who even tend to stagger and occasionally fall over along the way? Members of this Council may make catcalls sometimes but we need not do this to Teresa CHENG now. She cannot manage to walk steadily every time she comes here and almost tumble down the stairs from the first floor because she never answers questions directly. Reporters have to chase her for answers and she has to take to her heels as a result. There is always a good reason for the emergence of a certain situation. One may say that Members of the democratic camp are biased, but would all reporters in Hong Kong be also biased? In fact, many Members have also mentioned today the fact that independent legal advice had been sought by the DoJ in respect of some cases, namely those involving Donald TSANG (former Chief Executive), Antony LEUNG (former Financial Secretary), Franklin LAM (former ex-officio Member of the Executive Council), and Timothy TONG (former Commissioner, Independent Commission Against Corruption). Besides, the DoJ submitted to the Panel on Administration of Justice and Legal Services of the Legislative Council in February 2018 a paper entitled "Briefing Out Cases of the Department of Justice", which expressly states that it is deemed appropriate for the DoJ to brief out cases so as to address possible perception of bias or issues of conflict of interests. It even points out that "it is deemed appropriate to obtain independent outside counsel's advice or services so as to address possible perception of bias or issues of conflict of interests". Yet, why it happens that only this very case involving LEUNG Chun-ying (incumbent Vice-Chairman of National Committee of the Chinese People's Political Consultative Conference) is treated differently?


Teresa CHENG had better stop rebutting with figures. In her reply to the oral question raised by Mr CHU Hoi-dick last time, she said that save for those involving member(s) of the DoJ, only one case in respect of which outside legal advice had been obtained before making the prosecutorial decisions in the past three years. Be it two or three cases, but so what? It is utterly meaningless. Can this help justify the rationality of the decision of not seeking legal advice from outside for the UGL case which involves LEUNG Chun-ying? Even some moderate legal scholars like Prof Johannes CHAN of the Faculty of Law of the University of Hong Kong have politely pointed out that it was actually somewhat tricky for Teresa CHENG to quote only the numbers of the past three years. The figures would be significantly different if the numbers of last six years were taken into account. She should have set out all those numbers. Why only the numbers of the last three years were mentioned? How many years has the SAR Government been set up now? Well, about 20 years only. Any member of the public can readily tell that the DoJ sought independent legal advice in respect of the Antony LEUNG case and the Donald TSANG case, which I have mentioned just now. According to Prof CHAN, Hong Kong is still fortunate in that not many senior officials have breached the law. Of course, it is precisely the reason why the numbers of cases were so low, ranging from one to seven only. There were examples in the past where it was a usual practice for the Government to seek independent legal advice from outside as long as important people, such as senior government officials, were involved. Many people, including some legal scholars, are also of the view that this is something that should be done. Why should the case be briefed out? According to Prof CHAN, it was precisely because of the involvement of a senior government official or even the highest level state leader in Hong Kong in this current case that members of the public would naturally question whether such a decision is made with partiality by the Secretary for Justice. He is really very kind in not accusing the Secretary for Justice of being partial in dealing with this case. However, he does think that she should at least be able to convince the public that the DoJ still remains impartial even in dealing with the case involving such an important official, and this is precisely the intention of seeking legal advice from outside. As Members have mentioned time and again, this does not mean that the Secretary for Justice has no role in the case. While most rational people would not see any harm for the DoJ to seek independent legal advice, the Secretary described the practice of briefing out the case as non-commitment (i.e. "shirking one's responsibilities"). Or else, she simply did not do what we


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asked her to, otherwise she would appear to have failed to act independently once she had done anything to address our requests or under our influence. The truth is, however, I really think that even if seeking independent legal advice is no guarantee of doing all good and no harm, it will certainly do more good than harm. Next, I would like to respond to the remarks of some pro-establishment Members. Here, I would like to pay special tribute to President Andrew LEUNG, whom I rarely commend. No matter Teresa CHENG, the pro-establishment camp of today, and even Carrie LAM, they are all carrying an "amulet", namely Article 63 of the Basic Law: "The Department of Justice of the Hong Kong Special Administrative Region shall control criminal prosecutions, free from any interference." How should the phrase "free from any interference" be interpreted? Well, that is to say, even if the Secretary is told to or not to prosecute any person by someone of higher rank, she will not have to listen to that person and only needs to quote Article 63 of the Basic Law. Yet, this is how Teresa CHENG interpret the provision: Leave me alone. It is all up to me to decide to or not to institute prosecution, or to seek a third party's independent opinion or not, since I am empowered to do so by Article 63 of the Basic Law. You can never question and query me on this. And why do I have to commend President Andrew LEUNG then? It is because he has given Mr Dennis KWOK the approval to move his motion. If Ms Starry LEE were the President, she might probably not give him the approval because I have listened to her speech just now and she seems to consider giving the approval kind of contravention … That is to say, it seems to have contravened Article 63 of the Basic Law for the President to, pursuant to Article 73 of the Basic Law, approve of a Member moving a motion to query Teresa CHENG's failure to comply with the DoJ's briefing out policy to seek legal advice from Queen's Counsel and/or Senior Counsel on her handling of the case of alleged corruption and/or alleged misconduct in public office of former Chief Executive of the Hong Kong Special Administration Region Mr LEUNG Chun-ying, and to require her to attend before the Council to give evidence and explanations. Anyway, it implies that the President does not opine that the current motion has contravened the Basic Law as he has given approval for the moving of this motion, right? According to Article 63 of the Basic Law, it is not true that we cannot raise any doubt, and it is also not true that neither members of the public nor this Council can raise further questions when the Secretary for Justice has made any


mistakes, either in procedure or in essence. Actually, what we are now discussing is simply about seeking the DoJ's answers for our further enquiries and not about asking her to or not to institute prosecution since the Council has no right to make such requests of her. Members of this Council sought to initiate the current debate and obtain the President's approval to conduct the debate today only because such a decision of her is deemed seriously problematic by both the legal sector and the general public, although we all know what the outcomes of the final voting will be. Being among the principal government officials, the Secretary for Justice is a politically appointed official and a Member of the Executive Council. The role of the Secretary for Justice is likely to arouse reasonable doubts that, as far as some politically sensitive cases are concerned, the Secretary for Justice will inevitably have bias due to political factors. Hence, not only will such a decision have impacts on her personal reputation and popularity, the judicial system of Hong Kong as a whole and the confidence of the international community in Hong Kong will also be affected. I am showing you the chart again. Carrie LAM is so ridiculous indeed. Actually, mutual shielding among government officials refers to the mutual shielding between the Chief Executive and the Secretary for Justice. According to Carrie LAM, the Secretary for Justice did not take the vacation leave at that particular timing on purpose and her leave application had been submitted a month earlier. Well, come on. If Teresa CHENG really proceeded to take the vacation leave right after submitting the report, which turned out to be a messy one that required explanation, would Carrie LAM, as the superior of Teresa CHENG, scold CHENG? Of course she would. It was Teresa CHENG herself who chose to take the leave. Why did she choose to take the leave right after the submission of the report? Why did she not submit the report after taking the vacation leave, or do so earlier before the leave? Could it purely be a coincidence that everything was decided by Teresa CHENG herself? While Carrie LAM said that Teresa CHENG had planned earlier to take the vacation leave, she was only playing with words to put forward sly arguments in hopes of allaying public doubt about her. However, the public's query about Teresa CHENG has become rather evident. Why does she not engage in self-reflection and see how far her popularity has dropped? Her popularity plunged by 6.7 points from last month,


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where the net popularity has fallen to negative 48 percentage points, thus setting three lowest records: the lowest among politically accountable officials; a new low in her popularity in a year after she assumed office, which is even lower than that during the era of "Teresa CHENG of unauthorized structure"; and a record low among all Secretaries for Justice. With such three records of the lowest, she is currently nicknamed the "Under Secretary", that is, "Teresa CHENG the Under Secretary", meaning that her support rating is the lowest among all Secretaries for Justice and also the lowest among all Secretaries. Actually, the popularity of Secretary Matthew CHEUNG has also plummeted recently for the cash handout issue, who had to take his responsibility and give explanations to the public accordingly. And the popularity of Paul CHAN may also drop of course, but not to such a low level like Teresa CHENG's. Her current popularity is the lowest since she assumed office, and is also the lowest among all Secretaries for Justice as well as all Secretaries. Yet, being the "Under Secretary", Teresa CHENG still keeps on defending feebly her acts. In fact, this Council means to offer her the opportunity and provide her with a platform to give an account of herself. Hence, she should not avoid encounters with the public and the media, nor should she stagger along the way every time she comes to this Council, or it may happen one day that from the stairway, she just … I do not mean to be a wicked minded person but she really ought to be careful. MR HUI CHI-FUNG (in Cantonese): Mr LEUNG, I rise to speak in support of the summoning motion moved by Mr Dennis KWOK. The incident involving UGL Limited ("UGL") has aroused widespread criticisms against the Secretary for Justice in society. When giving a reply on this incident on one occasion in the Legislative Council, the Secretary for Justice asserted that the long-standing policy of the Department of Justice ("DoJ") was that it would uphold professionalism, without fear or favour, absolutely free from political or other irrelevant considerations. She mentioned several qualities, but I agree to only one of them and that is, she is honestly fearless. Not only is she shameless, but she has also turned a deaf ear to all the criticisms against her in the community, this Council's challenges to her decision, and also the public perception that she is the "prime enemy" of the rule of law who has put the rule of law in jeopardy by practising favouritism and also the "rule of man". Nevertheless, she does not even have the slightest bit of shame. I am indeed impressed by her courage to stay in the office of Secretary for Justice. She is honestly fearless. I initially thought that "fearless" was the word we would use


only in our civil disobedience movements. She fears nothing at all, because she is given a political order and has her own conviction, the conviction of brushing aside Hong Kong's rule of law and all the principles governing the institution or otherwise of prosecution. I support this summoning motion for various reasons. First, the Secretary for Justice seldom attends Council meetings. This is why I had to go to the Ceremonial Opening of the Legal Year and protest against her. But as she left, she still refused to take any questions from journalists outside the venue. After announcing the decision of not proceeding with prosecution, she has not attended any meetings of the Legislative Council's Panel on Administration of Justice and Legal Services. So far, we have been unable to find any opportunity or occasion to ask her openly why she decided not to proceed with prosecution and refused to seek professional advice from any third-party counsel outside DoJ. We have no such opportunities. Second, why is it necessary to summons the Secretary for Justice? The reason is that her decisions of not pressing charges against LEUNG Chun-ying and Mr Holden CHOW have given people the feeling that the "rule of man" has become dominant. By "rule of man", I mean that she herself, or the Government, makes the decision based on her personal will rather than the law or the rule-of-law tradition, thus putting Hong Kong's institutions in jeopardy. It can be said that all principles and virtues are long forgotten. According to her reply on a Member's question, DoJ must abide by the Prosecution Code ("the Code"). It stipulates that prosecutors must not be influenced by certain factors, such as political, media or community interest. While all such requirements can be found in the Code, she has nonetheless argued shamelessly that her action has already conformed to the Code and has not been influenced by any political factors. Who among Hong Kong people will believe her words? In reply to a Member's question about why she refused to engage a third party (meaning outside counsel) to examine the necessity of prosecuting the case, she initially said that the decision on the engagement or otherwise of outside counsel depended on factors such as whether the case involved any DoJ personnel and whether any funnelling of benefits would arise. But after repeated probes, she said that this was determined on the basis of six major factors, just like "squeezing toothpaste out of the tube". She already mentioned one of them in her reply and that is, the engagement or otherwise of outside counsel must depend


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on whether people would form the perception of prejudice or whether any conflicts of interests would arise as a result of the non-engagement of outside counsel. She used various legal terminologies in her speech, such as "fair-minded person" and "'reasonable bias' standard"―well, Dr Priscilla LEUNG was just like her earlier on―thinking that this could convince people to believe that the relevant decision was legally justified. But I think the Secretary for Justice was just wasting her breath because we can find out whether people think she is prejudiced simply by asking them on the streets about their perception of this matter. If she wants to continue with her use of legal principles such as "fair-minded person" and "'reasonable bias' standard" as the pretext, she had better go and ask people what they think first. Regarding the Secretary for Justice's decision of not prosecuting the UGL case, the Democratic Party has commissioned the Public Opinion Programme of the University of Hong Kong to conduct a survey. The survey questions are phrased based on the principles of scientific fact-finding and neutrality. One of the questions asks, "There has been a saying that the Secretary for Justice decided not to prosecute CY Leung at her sole discretion because Leung is one of the national leaders, the CPPCC Vice-Chairman and former Chief Executive, and that she is biased. How much do you support or oppose to the saying …" Sixty per cent of the respondents support this assertion. Rather than anyone with political affiliation in the legislature, the survey respondents are randomly selected Hong Kong people. They all think that LEUNG Chun-ying's social status and position is the reason why DoJ decided not to proceed with prosecution. Precisely for this reason, the entire community has lashed out at her, saying that her decision is tantamount to harbouring another official. They say so because LEUNG Chun-ying is a former government official and also a current Chinese state leader―a kind of official as well―and Teresa CHENG is likewise a government official, so she must protect LEUNG Chun-ying. More importantly, people think that she gets her eminent position of Secretary for Justice today because Chinese state leaders and the Central Government made the appointment. The prosecution of LEUNG Chun-ying, who is a former government official and also an eminent Chinese state leader at present, will affect her appointment and her own political interests. People will think this way, and this is likewise a very objective and reasonable association. I will thus say that her decision of not prosecuting LEUNG Chun-ying is founded on the


consideration of his social and official status, and it even involves potential conflicts of interests. Her decision has aroused all sorts of associations among people. Perhaps I have strayed too far from the present topic. I will stop talking about all this because she will only rebuke me by saying that I have no evidence. Let me turn to discuss the prosecutorial policy. The various cases involving senior officials over all these years―Members have already talked about those cases involving Antony LEUNG, Donald TSANG and Timothy TONG, so I will not go into their particular details―differ from the present case because DoJ invariably engaged outside counsel to offer independent legal advice on those cases. Nevertheless, it did not do so this time around. What is the public perception of its handling this time? DoJ has obviously deviated from the previous practice. What are the reasons for such deviation? What perceptions has it given to people? I wish to highlight one particular point. Just now, Dr Priscilla LEUNG, a so-called "legal scholar", contended that the democratic camp accused the Secretary for Justice of favouritism owing to political factors. She went on to say that we in the democratic camp did not like this official called Teresa CHENG, so we accused her of favouritism out of hostility. I must reply that the crux of the matter is ordinary people's perception. The Government's guideline and open replies have stated one principle, the principle of whether the case will give people the perception of prejudice. The various grounds I put forth just now can prove this point very clearly. People who have voted for Dr Priscilla LEUNG should bear in mind her assertions today. According to her, the Secretary for Justice's decision of not prosecuting former Chief Executive LEUNG Chun-ying does not involve any favouritism. Rather, she thinks that certain political figures accuse CHENG of favouritism because they detest LEUNG Chun-ying, and that CHENG is an upright person in the eyes of the public. People who have voted for Dr Priscilla LEUNG should realize that she is a royalist, so she utters those words just for the same and pure reason of defending the Establishment and blindly protecting the ruling authorities. People can tell with their own judgment whether favouritism is involved, and this is also an objective fact. Not only Members but also the media, public opinion and even the international community all have this perception.


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On the decision of not prosecuting LEUNG Chun-ying, the Secretary for Justice said in reply to a Members' question, "… three statements issued by DoJ in 2012 and 2013 regarding cases with sensitivities. According to our record, prosecutorial decisions were made in respect of two of the cases without seeking outside legal advice. It can therefore be seen that whether it is a case with sensitivity or not is never a guideline for mandatory briefing out." This shows that the Secretary for Justice is trying to confuse us by talking about a different concept. The Secretary for Justice should not try to deceive us. They have said themselves that the principles governing the engagement or otherwise of outside counsel include whether the case will give people the perception of prejudice, and whether conflicts of interests are involved. Those principles do not include whether the case is sensitive. Therefore, whether the case is sensitive is not a principle that the Secretary for Justice should consider. I agree that this is not a principle that should be considered. And a principle that must be considered instead is whether the case will give people the perception of prejudice. The Secretary for Justice has told me that they have not sought any advice from third-party counsel on many sensitive cases. What is her intention? Is it not right to say that this has instead served to reveal her intention to confuse people by talking about something else as a principle? The principles that should be followed are whether the case will give people the perception of prejudice, and whether funnelling of benefits is involved. But she has nonetheless talked about the sensitivity of the case. What she means is that they can refrain from seeking outside counsel's advice even on sensitive cases. This is precisely an attempt to confuse people by talking about a different concept. Is this something that she learned from her legal studies? Her intention is to convince people that she has a point with her "language tricks". This decision of not proceeding with prosecution has led many people who are not political figures or who are politically neutral to lose confidence. How can we possibly believe that the laws of Hong Kong, the Government and our institutions uphold professionalism, independence and the rule of law rather than the "rule of man"? The Secretary for Justice should ask herself why I went after her and held up banners against her in front of so many judges and legal practitioners at the Ceremonial Opening of the Legal Year, in the hope that she could put an end to the "rule of man". I did so because moral degradation in Hong Kong could not possibly get any worse.


I hope the Secretary for Justice can realize one thing. Many people have witnessed not only her decision of not prosecuting LEUNG Chun-ying and Mr Holden CHOW in this case, but also her disqualification of Members from office and people from exercising their political right of standing for elections. People have witnessed how she has instituted criminal prosecution against opponents and striven for a prison sentence from the Court. People have witnessed how she has instituted criminal prosecution against incumbent Members on baseless grounds. The accumulation of the perceptions given to Hong Kong people by these incidents and the decision of not proceeding with prosecution this time will simply strip them of their confidence in law. The Secretary for Justice once received law education, so did I. Has the spirit of "law as a means to righteousness" that she learned in law school ever sprung to her mind? The law should not be used as a means to achieving political purposes, as a means to achieving the political purposes that the ruling regime desires, as a means to maintaining one's official authority, or even as a means to protecting oneself. Mr LEUNG, this motion merely seeks to obtain some basic information, rather than finding out every single word uttered by LEUNG Chun-ying at the material time, or obtaining every meeting document from the companies involved. Of course, Members may also wish to see some of these documents. To say the very least, we merely hope that the Secretary for Justice can follow the example of her predecessors and explain the basic facts of this case as far as possible as it has given people the perception of favouritism. Such basic facts include their investigation scope, the main accounts given by the various parties involved (their side of the story), the facts they have grasped, their analyses of law points, the precedents they have referred to, the statutory provisions allegedly breached, the weightings of various factors in their consideration, and a comparison between this case and previous cases. These are precisely the basic information that we want to obtain through this summoning motion. But instead of offering any such information to us, the Secretary for Justice merely spent a couple of minutes reading out her decision written on one or two pages before the media. This is far from enough. This explains why we propose this motion on summoning the Secretary for Justice under the Basic Law in the Legislative Council. Secretary for Justice, please reflect on yourself, do something for Hong Kong people and some good deeds for your own good, and safeguard Hong Kong's rule of law, will you? Thank you, Mr LEUNG.


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MR CHEUNG KWOK-KWAN (in Cantonese): President, since I first joined the Legislative Council, I have always thought that there is one disadvantage in the system in place for Members to speak in this Chamber, and that is, a Member who has already spoken will have no chance to respond to reckless criticisms made against him/her by other Members who speak after him/her. Yet, there is nothing we can do because this is the system adopted in this Council. I have listened to the speech made by Dr Priscilla LEUNG this afternoon, and consider her arguments clear, complete and reasonable. Mr Alvin YEUNG also spoke subsequently in an eloquent, forceful and confident manner, but I think he was just indulging himself in sophistry. Dr Priscilla LEUNG has regrettably finished her speech, and will therefore have no chance to respond to such arguments which are mere sophistry. I have thus decided to drop the prepared script of my speech and express my views here on four fallacies in the arguments presented by Mr Alvin YEUNG when he criticized Dr Priscilla LEUNG just now, so that the public can understand the reasoning behind. I certainly know that I am not the last Member to speak, and the last one to speak is always in the most favourable position. I am sure other Members of the opposition camp will also try to refute my viewpoints later, but it does not matter, because I just wish to put my views on record and present a clear reasoning of my arguments here. One of the four fallacies in his speech is that by asking public officers to attend before this Council to make explanations and answer questions, their aim is not to impose pressure but to hold public officers clearly accountable to the legislature. This is really pleasing to the ears, and it sounds perfectly reasonable because one of the functions of this Council is to raise questions to public officers. Hence, we do have the power to raise questions to the Government on different public policy issues, including transport, health care and housing, and public officers are also willing to attend before this Council to answer questions. This is the relationship between the Executive Authorities and the legislature. However, the motion moved by Mr Dennis KWOK today seeks to summon the Secretary for Justice to explain the details of her handling of the UGL case, and the reasons for her decision of not prosecuting Mr LEUNG Chun-ying. The motion is drafted in such great details that the Secretary for Justice is asked to produce all relevant papers, books, records or documents, and to testify and give evidence. In other words, she is asked to provide all information concerning the case.


In fact, a decision has already been made by the Department of Justice of not initiating prosecution in respect of the case. What enquiries will Members try to make by moving a motion in this Council now to summon the Secretary for Justice, and ask for the provision of all information concerning the case as well as detailed answers to all questions raised by Members? They will certainly ask for the reasons of not initiating prosecution and seek clarification of all related evidence, and such attempts are tantamount to challenging the decision made by the Secretary for Justice on whether prosecution should be initiated. The case under discussion is different from public policies in general, because we all know that as far as criminal prosecutions are concerned, it is stipulated in Article 63 of the Basic Law that independent decisions free from any interference shall be made by the Secretary for Justice. Would it be an appropriate practice for the Legislative Council to try to invoke its own power to challenge the Secretary for Justice's decision? Moreover, does it mean that whenever the Secretary for Justice has made a prosecution decision in the future, Members can always summon her to this Council and ask for an explanation of the reasons of not initiating prosecution, thereby challenging and altering her decision? I do not think pan-democratic Members are trying to summon the Secretary for Justice to this Council in order to have a chat and an exchange of legal experiences with her. What are they trying to do then if this is not an attempt to challenge her decision? In my opinion, their intention is as clear as daylight. The second fallacy is that they are not trying to put anyone on a public trial by summoning the Secretary for Justice to explain the case. President, in this connection, I would like to quote the remarks of some leading members of the legal profession, and one of them is Barbara MILLS QC, the former Director of Public Prosecutions in the United Kingdom. She has expressed her views on this issue and pointed out clearly: "The public are entitled to know the principles with which the Crown Prosecution Service approaches its cases, and to be given a broad indication of the reasoning which underlies our decisions …"―what she has suggested is "a broad indication"―"it would be wrong to go further and provide details of individual cases. I see no distinction here between decisions to prosecute and decisions not to prosecute. I am sure you would agree that it would be inappropriate for me to discuss the former; this would breach the confidentiality of the interests and reputations of all the parties involved―witnesses, the victim, and the accused or suspect. … Similarly, I cannot publicly discuss a decision not to prosecute. This would amount to a trial


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of the suspect without the safeguards which criminal proceedings are designed to provide. It would be absurd and unfair to embark upon a public discussion as to why that person had been suspected in the first place.". President, we can imagine that upon passage of this motion today, the Secretary for Justice will be summoned to this Council later, and what will this Chamber turn into then? It will turn into a court room with over 20 prosecutors, but the defendant and all defending counsels will be absent. We will only see these 20 odd prosecutors keep asking for detailed information concerning the case from the Department of Justice, and invoke relevant evidence in this open platform to make allegations against the suspected person. Will the whole thing turn into a public trial then? Furthermore, legal proceedings will not be instituted during the process, and will this become an unjust public trial? I think the answer is very obvious. As for the third fallacy, according to Mr Alvin YEUNG, it is an established practice that external legal advice must be sought in cases involving public servants. A number of pan-democratic Members have repeatedly cited certain cases just now to illustrate that external legal advice has indeed been sought by the Department of Justice in similar cases. However, it is a usual trick used by Members of the opposition camp to make presentations in a selective manner and resort to one-sided generalizations, and I have no intention to repeat the several cases they have repeatedly cited as examples to present their case. As a matter of fact, Dr Priscilla LEUNG has cited two other cases in which the above mentioned practice was not adopted, and I would like to give a brief explanation on them once again here. The first example is the case of alleged illegal broadcasting involving a community-based radio station years ago, when prosecution against 16 guests attending the programme concerned was withdrawn by the Department of Justice on the ground that it was not in the public interest to initiate prosecution. The guests involved included a number of former Members of this Council, such as LEUNG Kwok-hung, LEE Cheuk-yan, Albert CHAN, LEE Wing-tat, Emily LAU. Were they public servants then? If it is really an established practice to seek external legal advice for all prosecution cases involving public servants, why was the same practice not adopted in handling the above mentioned case of illegal broadcasting before a decision was made to withdraw prosecution?


The second example is the "dark money" case mentioned by Dr Priscilla LEUNG just now, but I do not wish to say any more about the identity of the persons involved because there are quite a number of incumbent Members of the pan-democratic camp among them. Under the circumstances then, external legal advice was not sought by the Department of Justice either, although the case involved quite a number of public figures and the politically sensitive issue of making donations of money to politicians. With regard to these two cases, external legal advice has not been sought either, but Members of the opposition camp have never tried to explore the reasons thereof. Resorting to one-sided generalizations is the only reason I can think of to explain their attitude. The fourth fallacy lies in the criticism made by Mr Alvin YEUNG against Dr Priscilla LEUNG in connection with her citing the case of Jimmy LAI as an example. He does not consider this an appropriate example because Mr LAI is not a public servant, and it is his opinion that Dr LEUNG should use other examples to illustrate her points instead of making an inappropriate analogy. President, I hope we all understand that in the case under discussion, although it is correct to say that Mr Jimmy LAI is not a public servant, information disclosed in relevant news reports does suggest that someone has tried to make donations of money to public servants. Besides, the explanations made in respect of these donations are way beyond our imagination. Some payees have argued that they were receiving the donations on behalf of other parties, while some have alleged that the money in their accounts did not actually belong to them, and some have explained after receiving benefits that there was no misconduct on their part. The Department of Justice has not sought any external legal advice in respect of the case, and ultimately no prosecution has been instituted against them. Although Mr Jimmy LAI is not a public servant, the case obviously involves the allegation of receipt of contributions by public servants in an improper manner, so why is it not an appropriate example? President, after discussing these four fallacies, I would like to take this opportunity to cite the views expressed on this incident by Mr Justice LITTON, a former permanent Judge of the Hong Kong Court of Final Appeal. With regard to the seeking of external legal advice, he opined that under Article 63 of the Basic Law, it was the sole responsibility of the Secretary for Justice to determine whether prosecution should be instituted, and when considering whether prosecution action should be instigated, a decision to seek external legal advice should be based on the evidence obtained. It might be necessary to seek


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external legal advice if, in the opinion of the Secretary for Justice, the complicated financial transactions involved might be concerned with the legal issue of extra-territorial jurisdiction, and there was no expert in this matter in Hong Kong to deal with the case. However, he admitted that he could see no justification for establishing that it should be a compulsory requirement to seek external legal advice, and he considered that the Department of Justice's decision to institute prosecution action should be based solely on the evidence collected. Although external counsels might be engaged to analyse the evidence, the completeness of information at their hands would compare far less favourably than what the Secretary for Justice has grasped, because the entire case was handled by the Department of Justice, including the examination of all evidence. Mr Justice LITTON has also expressed concern about whether the whole thing would turn into a public trial. He stated frankly that it would be grossly unfair to the suspected person if all issues involved in the case were disclosed to the public and the media for discussion of whether prosecution should be instituted against him/her, when the facts of the case have not yet been proven in court, and no one has been asked to give evidence or make an oath or affirmation in accordance with law. He expressed his lamentation that it would be a very sad day for Hong Kong if it has become a social trend that open debates should be held to discuss whether a certain person should be prosecuted and convicted. President, in the past four years or so, the opposition camp has been vigorously pressing on the investigation into the UGL incident. They have raised fund for reporting the case to law enforcement agencies of other places all over the world, but the reports they made were not entertained. They have also tried in every way to invoke all possible procedures in this Council to handle the case, including the presentation of a petition calling for an inquiry into the incident under the Legislative Council (Powers and Privileges) Ordinance. Today, they move a motion on the excuse of the failure on the part of the Secretary for Justice to seek external legal advice to summon the Secretary to explain the reasons thereof, with a view to putting Mr LEUNG Chun-ying on a public trial. If we gather all information and take the big picture into consideration, we will realize that the motion is in fact one of a series of actions taken by the opposition camp as a tactic to attack their political opponents. The Democratic Alliance for the Betterment and Progress of Hong Kong and I will therefore oppose the motion moved by Mr Dennis KWOK today. President, I so submit.


MR PAUL TSE (in Cantonese): President, I am sure Mr CHEUNG Kwok-kwan will come to understand why I always try to speak at the later stage during a debate. President, many fellow colleagues may not have been careful enough when reading this motion today, and I must say that the motion itself is a breakthrough, because apart from its binding effect, it has also made some requests in an unprecedented manner. It is unprecedented at least according to my memory, and please correct me if I am wrong. We have never invoked the relevant provisions in the past to urge the Secretary for Justice to take such actions in respect of a particular decision made by the Department of Justice. Apart from the production of all relevant papers and a series of records, the motion also requires the Secretary for Justice to testify and give evidence. This is something different from what Mr Gary FAN has described, and he may have misunderstood the case. This is also not a simple request as Mr HUI Chi-fung has suggested, but a very exceptional step to invoke the power of the Legislative Council to enhance the transparency of the decisions made by the Secretary for Justice to a new height. Given the reasons I am going to present, and as the Chairman of the select committee formed to inquire into the UGL incident, I am afraid that it may not be appropriate to vote on the question at this stage when a decision has yet to be made by the select committee. However, I do wish to clarify and discuss a few points pertaining to this motion here. First of all, I think the independence of the Secretary for Justice in making decisions is unquestionable. Both before and after 1997, and in Hong Kong and other countries, independence in this regard has always been preserved intact through the ages. Stipulations in this respect can be found in Article 63 of the Basic Law after the reunification of Hong Kong in 1997, but even before that, this major principle has been upheld in previous case law and all local legislative exercises. For example, under Section 14(1) (the timing for institution of proceedings by the Secretary for Justice), Section 14B (the provision concerning the consent of some person other than the Secretary for Justice shall not derogate from the prosecution powers of the Secretary for Justice), and Section 15(1) (the Secretary for Justice shall not be bound to prosecute) of the Criminal Procedure Ordinance (Cap. 221), arrangements whereby the decision made by the Secretary for Justice is an independent decision has been made. The relevant common law requirements are also very clear, and previously in a bankruptcy case, the Court of Appeal has ruled that even though the Department of Justice was asked by the Court to prosecute a bankrupt, it did not


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constitute a violation of Article 63 of the Basic Law. Subsequently in 2006, this principle was once again affirmed in another case. Mr Justice HARTMANN, with whom we are all familiar, has also cited this case when he was handling a case involving the Director of Immigration. Although there is no Court of Final Appeal case in this respect so far, in a case involving myself, the Court of Appeal has considered overturning its own judgment in the absence of a ruling by the Court of Final Appeal. Hence, the requirements have already been very clearly enshrined in the relevant case law, and nothing has changed in this respect. President, when it comes to the tradition of this Council, nothing is more appropriate than revisiting the record of proceedings of the Council meeting of 25 March 1987. At the meeting, the then Attorney General Michael THOMAS spoke on a highly sensational case involving Alan BOND whose remarks might have affected the share prices concerned, and when explaining why prosecution was not instituted in respect of the case, he stated as follows: "There are good reasons why any Attorney General does not normally explain in public a decision not to prosecute in a particular case. It is rare for any public announcement to be made of that decision because it would reveal unfairly that someone had been under suspicion for having committed a criminal offence. And even where that fact is known, to give reasons in public for not prosecuting the suspect would lead to public debate about the case and about his guilt or his innocence. The nature of the evidence against the suspect would have to be revealed. Then some might say that that was proof enough of guilt, and the suspect would find himself condemned by public censure. Sir, in our legal system, the only proper place for questions of guilt or innocence of crime to be determined is in a court, where the accused has the right to a fair trial in accordance with the rules of criminal justice, and the opportunity to defend himself. So Members will readily appreciate that it would be quite wrong for any Attorney General, having decided that the issue should not proceed to trial in the courts, to say anything in public that might be taken to indicate a belief in the suspect's guilt, or which might lead to a public discussion of that very question." This wisdom has been challenged in many other subsequent cases, especially the Sally AW case which many of us still remember. Apart from pointing out that there was insufficient evidence, the then Secretary for Justice Elsie LEUNG also argued that the case involved an issue of public interest, because the conviction of Sally AW, a big boss, would affect the jobs of many people. Such remarks have caused a huge public uproar in the media. However, the case I cited just now was in fact another precedent case before the Sally AW case, although that case is less known and mentioned. It should be noted that the then Attorney General has set a precedent in that case by giving a


detailed explanation in the legislature for the first time of a decision not to institute prosecution. Under the concept of democracy which advocates a high degree of transparency, no one would consider it wrong to enhance transparency, but as a matter of fact, during a debate held in this Council on 10 March 1999, former Member Ronald ARCULLI has spoken furiously on the subject. President, as you were still a member of the Liberal Party then, you may remember clearly that this fellow party member of yours has walked out of the Chamber angrily that day, because he was of the view that once a precedent had been set, it would bring no end of trouble for future handling of prosecution work by the Secretary for Justice. Regrettably, what he said has turned out to be true. Pressure has been repeatedly exerted on the Secretary for Justice for issuing open statements in this respect, and the Secretary was even forced to explain to the Legislative Council the decisions made respectively in the case of Antony LEUNG in 2003 and the case of Michael WONG in 2006. Is this a good or a bad precedent? We should bear in mind that once a precedent has been set, there would be no return. But under the conventional principle, it is really not desirable to say too much. I have just now cited the reasons given by the former Attorney General Michael THOMAS, and these are also the viewpoints held by the Supreme Court of the United Kingdom, the Supreme Court of Canada, as well as legal experts at the highest level. Nevertheless, I understand that things are a bit different in Australia, because there is a view in the country in recent years that for cases involving significant public interest, it may be necessary to give explanations on political decisions or the views of the ruling party. However, generally speaking, we should not ask for an explanation lightly, and this is a line in theory that we should not overstep. As I mentioned just now, in many subsequent cases such as those of Michael WONG and Antony LEUNG, it has become increasingly necessary for the Secretary for Justice to explain, and even a 17-page statement was issued in respect of the case of Antony LEUNG. I will not go into the details again here since a number of fellow colleagues have already spoken on this case earlier. However, this case was a bit different in the sense that two senior counsel, namely John GRIFFITHS, a senior counsel in Hong Kong, and Martin WILSON, a well-known Queen's Counsel in the United Kingdom who was the defence counsel in the Carrian case, offered legal advice on some of the most primitive views about misconduct of public officers under the common law. These two experienced counsels are, and. The explanation might have been given against the background at that time, but it has also given rise to another issue of concern,


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which prompted the query about the need to quote the detailed legal advice of these two senior counsel. Actually, following the case of SHUM Kwok-sher, it had become necessary to give a detailed account about the latest situation and the handling of related cases. Therefore, apart from, the 17-page statement served to explain the issues involved, instead of merely giving a response to the question of whether prosecution should be instituted, we should take into account the background concerned. President, I have already explained just now the general reasons for avoiding saying too much, and have also elaborated on some exceptional cases. A more controversial point concerning the incident was the appropriateness of the decision on whether to brief out a case. We are all very familiar with the six policy factors which the Department of Justice has to consider in determining if it should consider briefing out a case, and among them, the reasons set out under 6(c) concerning the complexity of a case are seldom mentioned. However, after the case of SHUM Kwok-sher which I have mentioned just now, since an explanation has already been given, the need for seeking external legal advice is no longer as pressing as in the case of Antony LEUNG. With regard to the much-discussed 6(d), it involves some circumstances which are deemed appropriate to brief out and point out that under certain circumstances, it is appropriate to obtain external legal advice, so as to address possible perception of bias on the one hand, while avoid issues of conflict of interests on the other. Nevertheless, this is difficult indeed because cases with possible perception of bias may not necessarily be those frequently cited by the Secretary for Justice, and the perception of bias may be more of a political question than a legal one. As for the issue of conflict of interests, I agree that there were many precedent cases in this respect, including a very well-known case in which the House of Lords of the United Kingdom made a decision as to whether Lord HOFFMANN's participation in the case involving former President of Chile PINOCHET had given rise to conflict of interests. An issue of conflict of interests itself will of course lead to a host of problems, but I believe that a very clear definition has not yet been given for determining under what circumstances should a case be briefed out on the ground of conflict of interests. I do not think we should focus on whether to support or otherwise a decision made by the Secretary for Justice, in order to judge its right or wrong. Rather, we should strive to obtain a message or an acknowledgement from the Secretary for Justice that she has taken this factor into consideration before making the decision, so that we may accept that this is purely a decision made personally by the Secretary for Justice.


In this connection, we should have a clearer idea. It may also be necessary for the Department of Justice to explain whether they have made their decisions based on this factor, and whether they have gone through this process before a decision was made personally by the Secretary for Justice. Otherwise, serious problems will arise, because as I have mentioned just now, although the Secretary for Justice is vested with supreme authority in prosecution under Article 63 of the Basic Law, our court does have the need or the power to conduct a judicial review on any unconstitutional acts if she has made mistakes. Given that the Secretary for Justice is so powerful and enjoys a high degree of independence, what can be done for check and balance? We can of course do so by, firstly, pursuing a private prosecution to compel the Secretary for Justice to make certain statements and decisions; and secondly, applying for a judicial review, although such a right should be, according to the term used in our court, exercised sparingly under very limited circumstances. As evidenced by precedent cases, three reasons are basically available for taking such actions, but one additional reason has also become available in recent years. What are the three traditional reasons? Firstly, the prosecution policy is unlawful. For example, prosecution is instituted only for cases in which a sum of over HK$10,000 is involved, but there is actually no such requirement and restriction under the law, and she does not have the right to do so. Hence, by adopting such a prosecution policy, she has definitely violated the law and made a mistake, and a review can of course be conducted by the court. Secondly, if the Secretary for Justice has turned a blind eye and a deaf ear to the expressed policy, and failed to follow and adopt the policy, an application for a judicial review may also be made. For example, as I mentioned earlier, if it is deemed appropriate to brief out a case due to its complexity, so as to address possible perception of bias or issues of conflict of interests, but the Secretary for Justice has made a mistake, or has turned a blind eye to and failed completely to follow this policy, it will amount to a sufficient reason for applying for a judicial review, and it may be necessary for the Secretary for Justice to explain her case in greater details. Thirdly, if a decision is considered so frivolous that no one would possibly make, or any reasonable person would oppose, an application for a judicial review may also be made. As for the additional reason in recent years, there were already precedent cases in Australia and the United Kingdom, and one relevant case also occurred in Hong Kong in 2006. The point in question is that if bad faith or ulterior motives are involved, which may violate the prosecution


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policy, a judicial review may also be conducted by the court. It is true that the case under discussion does not necessarily involve such problems, but it will still be necessary for the Secretary for Justice to explain if her decision is challenged. I have talked about the briefing out of cases just now, and I consider it necessary to mention one other point which Ms Tanya CHAN has also raised earlier. I am sure my memory does serve me right, and I have pointed out previously on some public occasions, the former Secretary for Justice Rimsky YUEN did delegate to the then Director of Public Prosecutions some years ago the authority to handle a past case, in order to avoid conflict of interests or any possible perception of bias. However, what about the subsequent development? Has the case been handed back to the Secretary for Justice for further examination? If so, when and why was the case handed back? In my opinion, a clear explanation on these issues should also be given when necessary to address public concern. I am looking forward to an elaboration in this respect by the Secretary for Justice. In general, President, I have prepared a lot of materials for my speech, but my speaking time is very limited. I have already stated just now and would like to emphasize here once again that the requests concerned are unprecedented in that they will bring the elaborations made by the Secretary for Justice to the highest level with a highest degree of transparency, and is this an appropriate approach? This Council has attempted to urge the Executive Council to offer explanations on certain decisions and testify, and I have voiced opposition then, because this was after all an inappropriate move no matter how justifiable the reasons were. Likewise, even though the Secretary for Justice may have seriously mishandled the case in question, and the handling process has been inappropriate to a large extent, I agree with the comments made by Mr CHEUNG Kwok-kwan just now that it will amount to a public trial and will definitely be undesirable if a motion is moved in this Council to enhance the transparency of the explanations to a new level, and summon the Secretary for Justice to attend before this Council to testify, give evidence and produce all relevant papers, explain every decision that she has made. Hence, in this connection, although I will not participate in the voting on this motion, I still have to express my total opposition. PRESIDENT (in Cantonese): Members please note that it is now almost 7:30 pm. I will suspend the meeting after Dr Helena WONG has spoken.


DR HELENA WONG (in Cantonese): President, I rise to speak in support of Mr Dennis KWOK's motion moved pursuant to Article 73(5) and (10) of the Basic Law. We are now proposing a motion under the Basic Law for requesting to question the Government about its work, in particular the prosecutorial work regarding the decision of Teresa CHENG as the Secretary for Justice on instituting prosecution or otherwise, and to summon the person concerned (i.e. Secretary Teresa CHENG) pursuant to Article 73(10) of the Basic Law to attend before the Council to testify and provide relevant evidence. Of course, the current focus is on the approach taken by the Secretary for Justice Teresa CHENG ("the Secretary") in handling the case of alleged corruption and/or alleged misconduct in public office of Mr LEUNG Chun-ying, including her failure to comply with the Department of Justice ("DoJ")'s briefing out policy to seek legal advice from Queen's Counsel and/or Senior Counsel on the case, and her decision of not prosecuting Mr LEUNG Chun-ying. Not only do we expect the Secretary to attend before the Council to testify and produce all relevant papers, books, records or documents, we also mean to offer the Secretary an opportunity to give the public an account and state the rationale behind her decision directly and in detail. The Secretary had taken an approach in which she proceeded to take vacation leave right after announcing her decision of not instituting prosecution. Although we were so eager to enquire her about the reasons of not prosecuting LEUNG, we had to wait for quite a long while before we could do so. And after the Secretary had taken the leave, she only gave simple replies to the various questions put to her at the airport, making it impossible for us to understand her rationale. Hence, she just failed to secure wide community support for her rationale. The Public Opinion Programme of the University of Hong Kong successfully interviewed 1 005 members of the public between 7 January and 11 January for their views on her handling of the matter. I am not going to quote all findings here and will just focus on some of the questions only. One of the questions asked is: "In the past, the Secretary for Justice would publicly account for the investigation results and legal analysis in detail when making prosecution decision on cases concerning senior government officers. Do you think it is necessary that when handling the UGL case concerning CY LEUNG, the Secretary for Justice should account for the investigation results and legal analysis in detail?" 85% of the respondents considered it "necessary", meaning that the vast majority of the people in Hong Kong think that the Secretary should explain in detail her rationale and provide detailed investigation results.


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Another question is: "In the past few cases concerning senior government officials, including Antony LEUNG, Donald TSANG and Timothy TONG, the Secretary for Justice had sought external independent legal opinion. Do you think it is necessary that when handling the UGL case concerning CY LEUNG, the Secretary for Justice should seek external independent legal opinion in order to make prosecution decision?" In total, over 70% of the respondents considered it necessary to seek legal advice from Queen's Counsel and/or Senior Counsel on the case, where 57% of which considered it "very necessary" to do so and 17% considered it "quite necessary". According to the Secretary's explanation, her approach in handling the matter did not contravene the criteria for DoJ to seek independent legal advice, including items (a), (b), (c), (d), (e) and (f), to which the Secretary had referred previously. Item (d) is, I believe, the most controversial of all, which reads, "it is deemed appropriate to obtain independent outside counsel's advice or services so as to address possible perception of bias or issues of conflict of interests". And of items (a) to (f), what the majority of members of the public and I really concern is item (d). The question lies not in whether there are sufficient experts in DoJ to provide legal advice or analyses, but in the fact that we have no faith in DoJ and wonder if it will, without any bias, process the case impartially and in an absolutely fair manner, where no consideration of interest will be involved. However, members of the public do have the perception of government officials harbouring one other while the Secretary has failed to uphold justice. Although the Secretary told us that she had made such a fair and just decision based on her legal expertise which is legally accurate and error-free, members of the public do not think so. In dealing with certain cases during their respective terms of office, including the case in which Antony LEUNG purchased a vehicle before the implementation of increase in motor vehicle sales tax and the case of alleged misconduct in public office of Timothy TONG, various former Secretaries for Justice concerned had also took into account item (d) which I have mentioned just now, namely public perception and the need to seek the legal advice of outside counsel. Therefore, people had less doubt and did not think government officials were harbouring one another in those days. In other words, DoJ had really sought independent legal advice from outside counsel on a number of cases in the past.


This time, however, the Secretary, who is quite new to her post, does not draw reference from her predecessors to seek independent legal advice from outside on the UGL case involving LEUNG Chun-ying. She processes the case in her own way instead. Yet, since her approach has failed to impress people that hers is a better way than that taken by her predecessors, members of the public simply do not accept her explanation no matter what her reasons are and still think she is partial and has applied a double standard in handling the case. Despite the Secretary's words, in response to questions from the press, DoJ will generally brief out cases to meet operational needs, e.g. when there is a need for expert assistance where the requisite skill is not available within DoJ or when there is possible perception of bias or any issue of conflict of interests, members of the public are actually aware of LEUNG Chun-ying's status and inevitably have doubts that either the Government or the Secretary herself is partial and practising mutual shielding among officials given the fact that the Secretary decided not to prosecute LEUNG, who is the former Chief Executive and the incumbent Vice-chairman of the Chinese People's Political Consultative Conference. Moreover, it is quite puzzling that the Secretary has failed to detect in advance that the public may have such doubts and perception as a result of her not seeking independent legal advice. According to former Director of Public Prosecutions Mr Ian CROSS, DoJ would generally seek independent legal advice when dealing with sensitive cases involving senior government officials or well-known personalities in order to avoid giving rise to the public's perception of partiality or conflict of interests. As a usual practice, the Secretary should have sought independent legal advice from outside on this current case. Not only will this help the Secretary to conduct an independent analysis, more importantly, it will help reassure members of the public that the decision made by the Secretary is impartial and proper, and no mutual partiality/harbouring within the Government is involved. The Secretary's approach is clearly different from that of some of her predecessors, and we do not understand why she, instead of following the previous usual practice, took on such a significant political risk that has caused such grave doubts among members of the public regarding her approach. Does she think she has learned a lesson from handling this matter? I cannot tell whether a similar situation will arise in the future, but I do trust that the practice of seeking independent external legal advice by the several former Secretaries for Justice is based on their accumulated wisdom for they were aware of the need to exercise prudence in prosecuting certain senior officials, while taking into


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account the public's perception in order to convince members of the public that DoJ's decision on instituting prosecution or otherwise is fair, adequately supported by the law and utterly impartial. It is mentioned in the Secretary's statement that LEUNG Chun-ying's failure to declare his acceptance of $50 million from UGL does not constitute an offence of "misconduct in public office" ("MIPO"). However, the Court of Final Appeal has made it clear in its judgment on the MIPO case committed by former government official Rafael HUI that Mr HUI had, without making any declaration to the Government, accepted a payment of $8.5 million by Sun Hung Kai Properties Limited prior to his assumption of office of the Chief Secretary for Administration, where the "golden fetters" constituted by that payment was sufficient to satisfy the conduct element of the offence of MIPO as he would be under undue impact of the payment in execution of his duties as the Chief Secretary for Administration. It was obviously an offence of "conspiracy to commit MIPO". LEUNG Chun-ying's case is similar to this one, and the subject of the current controversy being LEUNG's having accepted $50 million from UGL without making any declaration. No one will have doubts as it is a fact. As regards the current case, did the Secretary decided not to prosecute LEUNG on reckoning that he will not be convicted? Yet, there was already a similar precedent in the past in which the defendant was eventually convicted, right? And this explains why, as far as her decision is concerned, we doubt if the Government is applying a double standard and whether the Secretary has so decided due to consideration of certain interests, e.g. money-related issues and political issues. The Secretary herself should have realized the truth that she has been at the centre of a variety of controversy since she took office, including the controversy over the unauthorized structure at the detached house she owns. Yet, she said at last that she would not sue herself but would sue her husband, Otto POON, for having an unauthorized pool in his house next to hers … PRESIDENT (in Cantonese): Dr Helena WONG, please come back to the question under debate. DR HELENA WONG (in Cantonese): President, I am about to finish my speech.


PRESIDENT (in Cantonese): Please come back to the question under debate even if you are about to finish your speech. DR HELENA WONG (in Cantonese): … The problem now is that members of the public have grave doubts about her credibility. In this situation, she needs to be particularly vigilant and provide clear explanations to the public on such a decision. Actually, seeking external legal advice is an important step to address her current problem of lack of credibility. What a regret that she has not done so. President, I do not wish to go on with this anymore because there is so much controversy involving the Secretary and even her husband, Otto POON, e.g. the matter involving the $130 million works project of the Water Supplies Department, a constant stream of controversial issues may keep emerging. I wonder if she will give the order to or not to investigate and institute prosecution then. Hence, President, I do hope Members will support this motion so as to make the Secretary attend before the Council to give a clear account to Members as well as the public, and produce relevant justifications and documentary evidence. Indeed, we do not wish to see the matter drag on indefinitely to the effect that members of the public no longer give her the trust as the Government's top legal gatekeeper. In view of all of the above, will she be willing to accept the call of this Council and seize the opportunity to attend before the Council to make a clear explanation? I do not think it will do her any good by dodging around like this. I support Mr Dennis KWOK's motion which seeks to make the Secretary give a clear account with a view to justifying herself and safeguarding the credibility of the Secretary for Justice. Meanwhile, members of the public can have a good grasp of the facts concerned. With these remarks, I support the motion. SUSPENSION OF MEETING PRESIDENT (in Cantonese): The meeting is now suspended until 9:00 am tomorrow. Suspended accordingly at 7:42 pm.


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Annex I

OFFICIAL RECORD OF PROCEEDINGS Wednesday, 23 ...

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