LEGISLATIVE COUNCIL ─ 11 June 2014 14675

OFFICIAL RECORD OF PROCEEDINGS

Wednesday, 11 June 2014

The Council met at Eleven o'clock

MEMBERS PRESENT:

THE PRESIDENT THE HONOURABLE JASPER TSANG YOK-SING, G.B.S., J.P.

THE HONOURABLE ALBERT HO CHUN-YAN

THE HONOURABLE LEE CHEUK-YAN

THE HONOURABLE JAMES TO KUN-SUN

THE HONOURABLE CHAN KAM-LAM, S.B.S., J.P.

THE HONOURABLE LEUNG YIU-CHUNG

DR THE HONOURABLE LAU WONG-FAT, G.B.M., G.B.S., J.P.

THE HONOURABLE EMILY LAU WAI-HING, J.P.

THE HONOURABLE TAM YIU-CHUNG, G.B.S., J.P.

THE HONOURABLE ABRAHAM SHEK LAI-HIM, G.B.S., J.P.

THE HONOURABLE TOMMY CHEUNG YU-YAN, S.B.S., J.P.

THE HONOURABLE FREDERICK FUNG KIN-KEE, S.B.S., J.P.

THE HONOURABLE VINCENT FANG KANG, S.B.S., J.P.

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THE HONOURABLE WONG KWOK-HING, B.B.S., M.H.

PROF THE HONOURABLE JOSEPH LEE KOK-LONG, S.B.S., J.P., Ph.D., R.N.

THE HONOURABLE JEFFREY LAM KIN-FUNG, G.B.S., J.P.

THE HONOURABLE ANDREW LEUNG KWAN-YUEN, G.B.S., J.P.

THE HONOURABLE WONG TING-KWONG, S.B.S., J.P.

THE HONOURABLE RONNY TONG KA-WAH, S.C.

THE HONOURABLE CYD HO SAU-LAN

THE HONOURABLE STARRY LEE WAI-KING, J.P.

DR THE HONOURABLE LAM TAI-FAI, S.B.S., J.P.

THE HONOURABLE CHAN HAK-KAN, J.P.

THE HONOURABLE CHAN KIN-POR, B.B.S., J.P.

DR THE HONOURABLE PRISCILLA LEUNG MEI-FUN, S.B.S., J.P.

DR THE HONOURABLE LEUNG KA-LAU

THE HONOURABLE CHEUNG KWOK-CHE

THE HONOURABLE WONG KWOK-KIN, B.B.S.

THE HONOURABLE IP KWOK-HIM, G.B.S., J.P.

THE HONOURABLE MRS REGINA IP LAU SUK-YEE, G.B.S., J.P.

THE HONOURABLE PAUL TSE WAI-CHUN, J.P.

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THE HONOURABLE ALAN LEONG KAH-KIT, S.C.

THE HONOURABLE ALBERT CHAN WAI-YIP

THE HONOURABLE CLAUDIA MO

THE HONOURABLE MICHAEL TIEN PUK-SUN, B.B.S., J.P.

THE HONOURABLE JAMES TIEN PEI-CHUN, G.B.S., J.P.

THE HONOURABLE NG LEUNG-SING, S.B.S., J.P.

THE HONOURABLE STEVEN HO CHUN-YIN

THE HONOURABLE FRANKIE YICK CHI-MING

THE HONOURABLE WU CHI-WAI, M.H.

THE HONOURABLE YIU SI-WING

THE HONOURABLE GARY FAN KWOK-WAI

THE HONOURABLE MA FUNG-KWOK, S.B.S., J.P.

THE HONOURABLE CHARLES PETER MOK

THE HONOURABLE CHAN CHI-CHUEN

THE HONOURABLE CHAN HAN-PAN

DR THE HONOURABLE KENNETH CHAN KA-LOK

THE HONOURABLE CHAN YUEN-HAN, S.B.S., J.P.

THE HONOURABLE LEUNG CHE-CHEUNG, B.B.S., M.H., J.P.

THE HONOURABLE KENNETH LEUNG

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THE HONOURABLE ALICE MAK MEI-KUEN, J.P.

DR THE HONOURABLE KWOK KA-KI

THE HONOURABLE KWOK WAI-KEUNG

THE HONOURABLE DENNIS KWOK

THE HONOURABLE CHRISTOPHER CHEUNG WAH-FUNG, J.P.

DR THE HONOURABLE FERNANDO CHEUNG CHIU-HUNG

THE HONOURABLE SIN CHUNG-KAI, S.B.S., J.P.

DR THE HONOURABLE HELENA WONG PIK-WAN

THE HONOURABLE IP KIN-YUEN

DR THE HONOURABLE ELIZABETH QUAT, J.P.

THE HONOURABLE MARTIN LIAO CHEUNG-KONG, J.P.

THE HONOURABLE POON SIU-PING, B.B.S., M.H.

THE HONOURABLE TANG KA-PIU

DR THE HONOURABLE CHIANG LAI-WAN, J.P.

IR DR THE HONOURABLE LO WAI-KWOK, B.B.S., M.H., J.P.

THE HONOURABLE CHUNG KWOK-PAN

THE HONOURABLE CHRISTOPHER CHUNG SHU-KUN, B.B.S., M.H., J.P.

THE HONOURABLE TONY TSE WAI-CHUEN

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MEMBERS ABSENT:

THE HONOURABLE LEUNG KWOK-HUNG

THE HONOURABLE WONG YUK-MAN

PUBLIC OFFICERS ATTENDING:

THE HONOURABLE JOHN TSANG CHUN-WAH, G.B.M., J.P. THE FINANCIAL SECRETARY

PROF THE HONOURABLE ANTHONY CHEUNG BING-LEUNG, G.B.S., J.P. SECRETARY FOR TRANSPORT AND HOUSING

THE HONOURABLE MATTHEW CHEUNG KIN-CHUNG, G.B.S., J.P. SECRETARY FOR LABOUR AND WELFARE

PROF THE HONOURABLE K C CHAN, G.B.S., J.P. SECRETARY FOR FINANCIAL SERVICES AND THE TREASURY

THE HONOURABLE GREGORY SO KAM-LEUNG, G.B.S., J.P. SECRETARY FOR COMMERCE AND ECONOMIC DEVELOPMENT

THE HONOURABLE LAI TUNG-KWOK, S.B.S., I.D.S.M., J.P. SECRETARY FOR SECURITY

THE HONOURABLE PAUL CHAN MO-PO, M.H., J.P. SECRETARY FOR DEVELOPMENT

MR YAU SHING-MU, J.P. UNDER SECRETARY FOR TRANSPORT AND HOUSING

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CLERKS IN ATTENDANCE:

MR KENNETH CHEN WEI-ON, S.B.S., SECRETARY GENERAL

MRS JUSTINA LAM CHENG BO-LING, DEPUTY SECRETARY GENERAL

MR ANDY LAU KWOK-CHEONG, ASSISTANT SECRETARY GENERAL

MISS FLORA TAI YIN-PING, ASSISTANT SECRETARY GENERAL

MISS ODELIA LEUNG HING-YEE, ASSISTANT SECRETARY GENERAL

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PRESIDENT (in Cantonese): 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.

Securities and Futures (Levy) (Amendment) Order 2014 ...... 74/2014

Building (Administration) (Amendment) Regulation 2014 ...... 75/2014

Building (Oil Storage Installations) (Amendment) Regulation 2014 ...... 76/2014

Dutiable Commodities (Amendment) (No. 2) Regulation 2014 ...... 77/2014

Firearms and Ammunition (Amendment) Regulation 2014 ...... 78/2014

Firearms and Ammunition (Storage Fees) (Amendment) Order 2014 ...... 79/2014

Massage Establishments (Amendment) Regulation 2014 ...... 80/2014

Pawnbrokers (Amendment) Regulation 2014 ...... 81/2014

Pesticides (Amendment) Regulation 2014 ...... 82/2014

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Public Health (Animals and Birds) (Exhibitions) (Amendment) Regulation 2014 ...... 83/2014

Public Health (Animals) (Riding Establishment) (Amendment) Regulation 2014 ...... 84/2014

Pension Benefits Ordinance (Established Offices) (Amendment) Order 2014 ...... 85/2014

District Court Equal Opportunities (Amendment) Rules 2014 ...... 86/2014

Declaration of Increase in Pensions Notice 2014 ...... 87/2014

Widows and Orphans Pension (Increase) Notice 2014 ...... 88/2014

Waste Disposal (Amendment) Ordinance 2013 (Commencement) Notice ...... 89/2014

Other Paper

No. 106 ─ Correctional Services Children's Education Trust Report by the Trustee for the period from 1st September 2012 to 31st August 2013

ORAL ANSWERS TO QUESTIONS

PRESIDENT (in Cantonese): Questions. First question.

Occupational Diseases Involving Lower Limb Musculoskeletal Disorders

1. MR POON SIU-PING (in Cantonese): President, according to the 2013 Report on Annual Earnings and Hours Survey published by the Census and Statistics Department, as at the middle of last year, some half a million of employees were engaged in the catering and retail industries, accounting for LEGISLATIVE COUNCIL ─ 11 June 2014 14683 about one sixth of Hong Kong's workforce. Some members of the catering and retail industries have relayed to me that quite a number of front-line employees in the industries suffer from diseases involving lower limb musculoskeletal disorders (LLMD), as they need to stand for a long time at work. In this connection, will the Government inform this Council:

(1) whether there were employees in the catering and retail industries receiving compensation under the Employees' Compensation Ordinance in the past three years for permanent total or partial incapacity resulting from work-related LLMD during the course of employment; if so, of the details; if not, the reasons for that; and

(2) given that currently, upper limb disorders like traumatic inflammation of the tendons of the hand or forearm, or of the associated tendon sheaths, have been listed as occupational diseases, whether it will include diseases of LLMD (such as osteoarthritis of knee, lower limb varicose vein and plantar fasciitis) in the list of compensable occupational diseases in the Second Schedule of the Employees' Compensation Ordinance; if so, of the details; if not, the reasons for that?

SECRETARY FOR LABOUR AND WELFARE (in Cantonese): President, under the Employees' Compensation Ordinance (ECO), an employee may apply for compensation if he/she suffers from an occupational disease which is prescribed under the ECO and can be attributed to the nature of any employment in which the employee was employed within the prescribed period prior to contracting such disease. The ECO also stipulates that even though an employee suffers from a disease which is not a prescribed occupational disease in the ECO, the employee may apply for compensation if he/she can provide evidence that an injury was sustained as a result of an accident arising out of and in the course of employment in a particular case. The Labour Department (LD) will, depending on the circumstances of individual cases, assist the employer and the employee to process the claim for compensation under the ECO. For musculoskeletal diseases, as medical evidence indicates that certain musculoskeletal diseases (including tenosynovitis of hand or forearm, tennis elbow, carpal tunnel syndrome, knee bursitis or subcutaneous cellulitis, and so on) have a clear association with a particular occupation, the LD has prescribed these diseases as occupational diseases.

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My reply to the question raised by Mr POON Siu-ping is as follows:

(1) Beat knee (that is, knee bursitis or subcutaneous cellulitis) is an occupational lower limb musculoskeletal disease listed in the ECO. As the LD did not receive any notification of any occupational disease of beat knee in the past three years, there was no compensation case involving employees. Nor did the LD receive any compensation claim for suffering other lower limb musculoskeletal diseases arising out of and in the course of their employment during the same period.

(2) Occupational disease refers to those diseases which have clear and strong relationship with certain occupations, and usually there is only one causal factor involved. In considering whether a disease should be prescribed as an occupational disease under the ECO, the LD would consider whether there is direct causal relationship between the disease and certain type of work, including whether there is any medical evidence to indicate that the disease is clearly associated with a particular occupation. For lower limb musculoskeletal diseases, the ECO has prescribed beat knee as an occupational disease. As regards other lower limb musculoskeletal diseases (including degeneration or inflammation of the knee joint, lower limb varicose vein and plantar fasciitis, and so on), apart from work, they can also be caused by other factors including those that have no direct relationship with work, such as personal living and eating habits, age, medical history, family history, and so on. These diseases do not fall under the definition of occupational diseases.

Even when the disease concerned is not a prescribed occupational disease in the ECO, an employee suffering from a lower limb musculoskeletal disease may still submit a claim for compensation under the ECO if he/she can provide evidence that an injury was sustained as a result of an accident arising out of and in the course of employment in a particular case. The LD will, depending on the circumstances of individual cases, assist the employer and the employee to process the claim for compensation under the ECO.

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MR POON SIU-PING (in Cantonese): President, I am a little bit disappointed that the Secretary has not listed LLMD as an occupation disease. Although great changes have occurred in the labour market, job types and work environment in the past 10-odd years, the scope of occupational diseases covered by the ECO has never been reviewed. May I ask the Secretary whether the Government will conduct a comprehensive review of Schedule 2 of the ECO so as to make it compatible with the current needs of society?

SECRETARY FOR LABOUR AND WELFARE (in Cantonese): I thank Mr POON for his supplementary question. In fact, this issue is raised when occupational safety and health is reviewed annually by the Panel on Manpower. I very much wish to reiterate that the LD has all along made reference to the criteria of the International Labour Organization (ILO) and patterns of local diseases in order to determine whether certain diseases should be included as new occupational diseases. I would like to point out that over the past two decades, we have made reference to ILO standards, and considered the previous model as well as the relevant factors I mentioned just now. Also, Schedule 2 of the ECO, which is about occupational diseases, has been amended several times, and 13 new occupational diseases have been included in 13 years and the coverage of three kinds of occupational diseases has been expanded. Perhaps, let me make a brief introduction.

In 2005, notorious diseases such as Severe Acute Respiratory Syndrome (that is, SARS) and avian influenza A viruses (including H5N1, H7N9 and H9N2 viruses) were included in Schedule 2 so as to expand the types of occupational diseases under protection to 48. Besides, the LD amended the Pneumoconiosis (Compensation) Ordinance in 2008 and added mesothelioma as a new occupational disease.

President, the LD will continue to monitor local and international studies relating to occupational diseases, as well as international standards relating to occupational diseases. Meanwhile, full consideration will be given to the actual situation in Hong Kong. If there is sufficient medical evidence indicating a strong and clear causal relationship between some diseases and certain occupations, we will definitely consider amending the relevant legislation.

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PROF JOSEPH LEE (in Cantonese): President, the main question of Mr POON Siu-ping is actually very direct. He asked whether employees engaged in the catering and retail industries are protected by the ECO if they suffer from LLMD such as varicose veins, knee pain, heel pain, and so on, because they need to walk around or stand for a long time at work. But in the Secretary's reply, particularly part (b), a lot of medical terminologies have been mentioned, like beating around the bush. Then he added that as there is no particular evidence to indicate that the disease is caused by an occupation, it is not included under the protection of the ECO. Mr POON Siu-ping then asked the Secretary whether the ECO would be amended or updated. The Secretary has not answered it either.

At present, employees engaged in the catering and retail industries think that since they have to work eight to 10 hours a day during which they have to walk around and stand for a long time, so they suffer from knee pain and varicose vein as a result. But the Secretary said that this is not the cause of these diseases. May I ask the Secretary whether the Labour and Welfare Bureau has, from the perspective of occupational safety, taken any measures to educate employees engaged in these industries to provide against developing LLMD, and how to prove that there is only one causal factor involved when they apply for compensation if they suffer from LLMD?

SECRETARY FOR LABOUR AND WELFARE (in Cantonese): I thank Prof LEE for his supplementary question. First of all, I would like to clarify that according to the Schedule of the ILO, diseases such as varicose vein and plantar fasciitis are not listed as occupational diseases. Second, these are not listed as occupational diseases in the United Kingdom and Germany either. As I said earlier, under section 36(1) of the ECO, if the diseases are caused by accidents and injuries, the employees can claim compensation depending on the actual circumstances. SARS, which was mentioned by me just now, was not included as an occupational disease in 2003. But now, it has been listed as an occupational disease because there is strong and clear evidence to prove that it is directly related to certain occupations, and the occupations concerned are the sole causal factor.

Overall speaking, occupational diseases can be divided into three categories. For the first one, there is very clear and strong evidence to prove a causal relationship with certain occupations. There is only one causal and LEGISLATIVE COUNCIL ─ 11 June 2014 14687 undisputed factor such as occupational deafness. Obviously, the employees have become deaf due to excessive noise. Another example is silicosis which is due to exposure to dust in the work environment. Besides, asbestosis is also an occupational disease with very clear and undisputed relationship with certain occupations. And it can be confirmed by doctor through medical examination.

As for another kind of work-related diseases such as varicose vein and frozen shoulder as mentioned by Members, they are caused by lots of factors including work-related ones, in addition to many other factors such as lifestyle, weight, pregnancy, and so on. Regarding these diseases, what measures have been adopted by the authorities?

We are very concerned about education, publicity and promotion. In fact, colleagues, doctors and nurses responsible for occupational safety have held seminars for many people of the catering and retail industries who have encountered such problems or health conditions. We have compiled some leaflets for the catering industry, telling their employees how to prevent health problems arising from prolonged standing. So, what can the retail industry do? First, employers may provide chairs for the cashiers so that they do not have to stand for a long time when collecting payment. We can see that in the supermarket, the cashiers can sit on a chair when there is no customer. Second, employers may provide rest areas for their staff to drink water and sit down for a rest. Third, employers may provide footrests to employees so that there is a resting place for their feet. Also, shock-absorbing carpets can be laid on the floor in restaurants to reduce the stress on employees when walking. These measures, which sound very subtle, may improve the work environment, and really help alleviate these diseases which are work-related but are not occupational diseases.

MR TOMMY CHEUNG (in Cantonese): President, toady I in fact wish to speak for the Secretary. But since he has brought with him a pamphlet and read out some information from it, I am not going to speak in his defence. However, President, regarding the problem mentioned by Honourable colleagues, namely that employees of the retail and catering industries are required to stand for a long time, I also wish to ask the Secretary this question. First, can the LD start collecting information on how long they have to stand or walk around in their workplace?

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Second, I would like to tell the Secretary that the pamphlet is a job well done. However, like playing a ball game, we have to warm up and cool down before and after the game. Could the Secretary ask his colleagues who are responsible for occupational safety and health to design some stretching exercises to relieve sore muscles after work for employees of the relevant industries? I believe this will be useful to these employees in the long run and obviate the need for workers of the labour sector to claim compensation due to occupational diseases ever so often …

PRESIDENT (in Cantonese): Mr CHEUNG, please ask your supplementary question

MR TOMMY CHEUNG (in Cantonese): Secretary, will you consider adopting these measures?

SECRETARY FOR LABOUR AND WELFARE (in Cantonese): I thank the Honourable Member for his comments and supplementary question. We are undertaking these tasks. Nurses and front-line doctors responsible for occupational health often pay site visits to gain a better idea of the employees' work environment. Regarding the Honourable Member's question about whether we will design some exercises for the employees, we have in fact produced some DVDs and leaflets for this. I agree that we can make more efforts in publicity and convey the message to employees.

What Mr CHEUNG said just now is right. To let employees take a rest at an appropriate time, for example, the provision of chairs sounds like a very trivial thing, but this will be very effective in improving their health. We will step up efforts in publicity, education and promotion. Thank you, Mr CHEUNG.

PRESIDENT (in Cantonese): Secretary, are there measures specifically for employees who spend a long time seated due to occupational needs?

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MR TOMMY CHEUNG (in Cantonese): President, the Secretary has not answered my question. I asked whether a survey on how long employees of the catering and retail industries have to stand will be conducted.

PRESIDENT (in Cantonese): Would Members please ask supplementary questions clearly. Secretary, will the authorities conduct a survey on these job types?

SECRETARY FOR LABOUR AND WELFARE (in Cantonese): President, it may be difficult to conduct a large-scale survey because the industries are required to provide information to us. But I will not rule out that I will study the issue with colleagues after the meeting to see whether we can collect more data, especially of these two industries as pointed out by Members, on how long their employees have to stand to facilitate policy formulation and ensure effective promotion. We will consider this suggestion.

MR WONG KWOK-HING (in Cantonese): The Secretary mentioned publicity and education just now. But most importantly, are there any system and measure requiring employers to allow employees who have to stand for a long time at work, especially employees of the catering and retail industries or security guards, to take a break and sit down at intervals after standing for some time. President, this stipulation is very important. Just like the "paparazzi" who are assigned by various government departments to stand at the doors of this Chamber, their customers, namely the management or departments concerned, have not considered providing rest breaks to them so that they can sit down. President, you have also expressed concern on hearing the problem mentioned by Members. I have cited this example in the hope that the Secretary will consider the possibility of formulating some mandatory measures, requiring employers to allow employees who spend long hours standing to take a rest break after standing for a certain length of time.

SECRETARY FOR LABOUR AND WELFARE (in Cantonese): I thank Mr WONG for his suggestion and supplementary question. In fact, promotion, education and publicity are part of our work at present. On many occasions, we will talk to the front-line employers that it is difficult to recruit employees in many industries. If employees are treated more kindly even in a very subtle 14690 LEGISLATIVE COUNCIL ─ 11 June 2014 way, they will be more dedicated to their work because they feel that their well-being has been taken care of. I would like to cite a very simple example, that is, the provision of chairs to the cashiers. This will enable them to sit down and drink some water when customers are fewer. So, the problem can be solved. These are flexible and interactive arrangements. As to the question of whether mandatory measures can be formulated, I think it is difficult to do so. However, we will enhance our efforts in conveying the message in publicity, education or leaflets in the hope that front-line employers will care for their employees' conditions of work.

MR WONG KWOK-HING (in Cantonese): President, the Secretary said that it is difficult to formulate mandatory measures. Can the Government take the lead to do so?

PRESIDENT (in Cantonese): Mr WONG, if you wish to ask a second supplementary, please wait for another turn.

MR TANG KA-PIU (in Cantonese): The fact that Mr POON Siu-ping has raised this main question is certainly because he is concerned about whether employees of the catering industry who suffer from occupational diseases or workers who spend long hours standing at work can claim compensation. However, the Secretary places the focus on confirmation of the relationship between occupational diseases and the occupations concerned in a very detailed and scientific way. So, it is not easy to claim compensation and many cases will be rejected.

I would like to ask a question about the definition of beneficiary employees. At present, there are a lot of loopholes. Even though some workers suffer from occupational diseases clearly because of prolonged standing or sitting, some of them, in the capacity as employees, cannot claim compensation on the ground of occupational disease. And they are professional drivers because the ECO is so ridiculous that it is provided that professional drivers sitting in the cabin of a vehicle are not covered by the Ordinance and not entitled to claiming compensation. May I ask the Secretary the justification for excluding professional drivers from the protection? Is this a kind of discrimination against professional drivers?

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PRESIDENT (in Cantonese): Mr TANG is very concerned about this issue which is, however, not directly related to the main question. Let me see if the Secretary is willing to answer it.

SECRETARY FOR LABOUR AND WELFARE (in Cantonese): President, I would respond to it briefly.

At meetings of the Panel on Manpower, we have discussed why professional drivers are exempted under the ECO. This is because conditions on the road encountered by professional drivers are out of the employers' control. The employers' main responsibility is to provide compensation for injuries suffered by employees. The responsibility, which is crystal clear, cannot be evaded by the employers. But when a driver is driving on the road, a lot of things are beyond the control of employers. Because of this reason, professional drivers driving in the cabin of a vehicle are not covered in many other parts of the world.

MR TANG KA-PIU (in Cantonese): Given that the road conditions are so chaotic and dangerous, and uncontrollable, why are they not protected?

PRESIDENT (in Cantonese): Mr TANG, debate is not allowed during Question Time.

MISS ALICE MAK (in Cantonese): President, if we request that LLMD is listed as an occupational disease, the employers may think that their liability will increase. But now the problem is as follows. Our healthcare system has to bear the medical costs for employees who have suffered from such diseases because many people suffering from knee pains have to wait for a long time before being treated at orthopedic clinics. As Mr WONG Kwok-hing asked a question just now, may I ask the Secretary if mandatory measures cannot be formulated, what guidelines will be issued, or what the Government can do to ensure that employees will have adequate rest, or their occupational safety can be ensured so that society needs not bear a much higher medical cost?

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SECRETARY FOR LABOUR AND WELFARE (in Cantonese): Miss MAK, as I explained clearly just now, we will make more efforts. After hearing the views of several Members, the LD will certainly hold internal discussions to find out how to disseminate such information to the front-line employers, particularly of the catering and retail industries. This is most important.

I also emphasized just now that even though a disease is not covered by the ECO, if an employee has really suffered from injuries due to a certain disease or the disease has led to an accident, the employer has the responsibility which cannot be evaded. The LD will definitely follow up. So, employees do enjoy a certain degree of protection.

I totally agree that we should step up efforts in publicity and education. I undertake that I will discuss with the industry, especially placing the focus on the Code of Good Practice for Employers in the hope that they will follow the examples of good employers. In fact, this is also good for them because if their employees are healthy and take less sick leave, their productivity will improve. This is a win-win situation. We will consider how to do a good job of this.

MR POON SIU-PING (in Cantonese): The Secretary also mentioned just now that some employees have suffered from LLMD due to prolonged standing and the LD has also conducted publicity and education. May I ask whether the Government will consider enacting legislation on rest breaks for employees so that further protection can be provided to them?

SECRETARY FOR LABOUR AND WELFARE (in Cantonese): President, it is no simple task to legislate on rest breaks. As we all know, the prescription of standard working hours has been discussed for a long time. On the issue of rest breaks, employers should provide appropriate rest breaks to employees, especially those who spend long hours standing. I have undertaken that I will consider how to enhance the dissemination of information in this regard. I also hope that this message can be struck home to members of the industries through the 18 Human Resources Managers Clubs under the LD, in the hope that employers can make better arrangements for appropriate working hours and rest breaks for their employees.

PRESIDENT (in Cantonese): Second question.

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Regulation of Lion, Dragon and Unicorn Dances

2. MISS ALICE MAK (in Cantonese): President, under the Summary Offences Ordinance, any person who organizes or participates in a lion dance, dragon dance or unicorn dance, or any attendant martial arts display ("dragon and lion dance sports") in a public place is guilty of an offence unless the person has been issued with a permit by the Commissioner of Police. In addition, applicants for the permit and all participants are required to authorize the authorities to provide the commander of the relevant police district or the licensing office with information on their criminal records to facilitate consideration of their applications by the latter. On the other hand, no permit is required for conducting performances for combat sports such as Muay Thai and Taekwondo. There are views that the authorities' regulation of dragon and lion dance sports has a labelling effect which makes people form the impression that such sports are undesirable activities, thus obstructing their popularization. In this connection, will the Government inform this Council:

(1) apart from dragon and lion dance sports, whether there are other sports which are subject to similar form of regulation; if so, of the names of the sports, the regulatory practice and the reasons for imposing the regulation;

(2) apart from dragon and lion dance sports, whether there are other sports the performance of which is subject to the issuance of a permit, and whether the considerations for issuance of such a permit include the criminal records of the participants; and

(3) given that dragon and lion dance sports have become leisure sports for quite a number of primary and secondary students as well as young people, whether the authorities will review the regulation of dragon and lion dance sports; if so, when they will do so; if not, of the reasons for that?

SECRETARY FOR SECURITY (in Cantonese): President, section 4C of the Summary Offences Ordinance (Cap. 228) stipulates that any person who organizes or participates in a lion dance, dragon dance or unicorn dance, or any attendant martial arts display in a public place, save for the person exempted by the Commissioner for Police (CP), shall be subject to the conditions of the permit 14694 LEGISLATIVE COUNCIL ─ 11 June 2014 issued by the CP. The purpose of such a policy is to prevent the involvement of lawbreakers in these activities and to ensure that such activities will not cause public disorder, including traffic congestion, noise nuisance or other inconvenience to the public, or an implication on public safety.

For comprehensive scrutiny of such applications, the police require all applicants and participants of such activities to authorize the police to check their criminal conviction records. Thorough considerations are given to each and every application. In case the applicants or the participants are found to have criminal conviction records, the police shall, taking into account the nature and gravity of their convictions, consider whether the purpose of such activities is to genuinely celebrate festivals or offer performances, or to cover up illegal activities. Persons with criminal conviction records are not automatically banned from taking part in these activities. Upon scrutiny, the police shall reject applications that are suspected to be related to illegal activities.

My reply to Miss MAK's question is as follows:

(1) The Summary Offences Ordinance does not require organizers of sports performances other than lion dances, dragon dances or unicorn dances, or any attendant martial arts displays to apply for a permit from the Hong Kong Police Force (HKPF). Regarding the execution and issue of licences and permits for which the HKPF are responsible, a prior application to the HKPF for a licence for possession in accordance with the Firearms and Ammunition Ordinance (Cap. 238) is required in case of possession of arms for shooting sports or performances. The HKPF, when considering whether to issue such a licence, shall strike a balance among various factors, taking into account whether the applicant is a fit and proper person to whom the licence may be granted (which includes checking of the applicant's criminal conviction records); whether there are good reasons for the applicant to hold a licence; and whether the application may have an implication on public safety and order.

(2) According to the Home Affairs Bureau, all sectors of the community are encouraged to participate in sports. In general, sports performances are not subject to restriction unless the organization of LEGISLATIVE COUNCIL ─ 11 June 2014 14695

such performances may entail a gathering of a large crowd, involve temporary traffic control measures, or if such performances are conducted in a public place. If this is the case, the organizer shall seek advice from and/or make an application to the departments concerned. A place of public entertainment (PPE) licence from the Food and Environment Hygiene Department is required for any events involving a PPE as defined in the Places of Public Entertainment Ordinance. Checking of criminal conviction records of the applicants and the participants is not a requirement, as far as the PPE licensing regime is concerned.

(3) Given the unique nature of lion dance, dragon dance or unicorn dance sports, it is necessary for the Administration to ensure that public order is not disturbed and that public safety is not at risk when such sport activities are conducted in public places. The issue of a licence may help ensure that no lawbreakers shall make use of such activities and performances for illegal purposes. The licensing regime is effective and it is also of practical need. We have to stress that there is no intention on the part of the Administration to impede the proper development of such activities. Participants are required to apply for a licence from the police only when their performances are to be held in public places.

As a matter of fact, according to subsection (2) of section 4C of the Summary Offences Ordinance (Cap. 228), the requirement of licence applications does not apply to any person exempted by the CP. Regarding the participation of primary and secondary students in such activities, if schools or uniform groups wish to conduct performances of lion dance, dragon dance or unicorn dance in public places, the organizer may submit applications for exemption in writing to the HKPF. Upon examination of all factors, the police may consider granting an exemption if they are satisfied that such performances will not involve any lawbreakers and that they will do no harm to public order and public safety.

MISS ALICE MAK (in Cantonese): President, in part (c) of the main reply, the Secretary said that given the unique nature of the lion dance, dragon dance or unicorn dance sports, it is necessary to issue licences to ensure that public order 14696 LEGISLATIVE COUNCIL ─ 11 June 2014 is not disturbed and public safety is not at risk. Can the Secretary tell us in greater detail how unique the nature of the lion dance, dragon dance or unicorn dance sports is, so much so that public order can be disturbed and public safety can be at risk?

SECRETARY FOR SECURITY (in Cantonese): Generally speaking, the lion dance, dragon dance or unicorn dance sports are usually accompanied by some martial arts displays and according to our past observations, an element of what is called "making a big show of one's strength" could be found in many of these activities, so instances of fighting may occur as a result of the competition between lion dance troupes and develop into assaults causing bodily harm. This is the first point. The second point is that, as we all know, lion and dragon dances are always noisy and in the past, we could see many instances of people demanding red packets from members of the public or shops through such activities as lion dances or dragon dances during festivals.

Therefore, all along, we hold that it is necessary to have a licensing regime for such activities. We need to know such information as what people will take part and when an activity will be held. At the same time, we need to check if the people concerned have any criminal conviction records. On the one hand, the use of such activities to conduct illegal activities can be effectively prevented, and on the other, people involved in the normal development of these several types of activities can be permitted to offer performances.

I wish to point out in particular that if this kind of lion dances, dragon dances or unicorn dances takes place in private places not admissible to all members of the public, an application for a permit will not be necessary.

MR CHAN KAM-LAM (in Cantonese): President, the Secretary put it clearly in part (c) of the main reply, and I also believe that he had no intention of impeding the development of the lion dance or dragon dance sports, particularly given that many schools are currently promoting them as a kind of sports. At present, the Government requires that an application for a permit be made for each activity. May I ask the authorities if they will change this requirement, so that some lion dance and dragon dance groups, in particular, schools or societies ― what I mean is legal ones ― can apply for licences, as these groups would know what LEGISLATIVE COUNCIL ─ 11 June 2014 14697 rules to follow when organizing such activities because requirements are prescribed under these licences and licensed groups have to comply with regulations on public order or other regulations, so in this way they can be spared the cumbersome procedure of applying for a permit on each occasion of taking part in this kind of activity?

SECRETARY FOR SECURITY (in Cantonese): What Mr CHAN has raised is whether or not there is any room for making improvements to the administration of the existing regime or to the law. At present, in some circumstances, for example, when some lion dance, dragon dance or unicorn dance performances are held at various locations on the same day, or are held for similar purposes, we allow the applicant concerned to make an application for the relevant activities on one single form and we would process all performances in one go. For example, if today, the same group performs at location A, then at location B 30 minutes or an hour later, it does not have to submit several applications. It can be seen that we have made improvements to the administration in this regard.

As regards the issuance of general licences and permits, I believe there are some factors that need to be considered, and it may not be entirely feasible to do so. For example, at present, an applicant for a permit has to provide a list of all participants. Moreover, the validity of general licences and permits last for a certain period of time but the participants in this kind of activities are not always the same and there is the chance of some other people replacing them because of an insufficient number of people. However, this cannot be done under general licences and permits. It is not possible to do so. Therefore, after considering several scenarios, it was decided that flexibility can be exercised where conditions permit.

MR LEUNG CHE-CHEUNG (in Cantonese): President, the development of the lion dance and dragon dance sports has indeed a long history and in recent years, such sports have even become popular, so the subject matter today seems all the more important, particularly given that in the history of development of the lion dance and dragon dance sports, fighting as well as other problems have occurred, thus giving the police a great deal of headache. It is indeed desirable to impose regulation nowadays but some of the arrangements may be most inappropriate.

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For example, in 2004, there was an activity celebrating the National Day in Yuen Long … sorry, not the National Day but the birthday of Tin Hau. At that time, the police prohibited participants in a lion dance from entering the venue because they were clad in black clothes. In other words, even though a sport is allowed to be held, it is still subjected to other restrictions in the course of conduct.

May I ask the Secretary if this kind of requirement is still in force?

SECRETARY FOR SECURITY (in Cantonese): The incident mentioned by Mr LEUNG happened mainly because the participants at that time were wearing black clothes, is that right? This is because, according to the past experience of the police, it is believed that if people wear this type of clothing, it symbolizes something.

In fact, people who have taken part in lion dance sports for a long time ought to be fully aware of the requirements of the police in this regard. If Mr LEUNG believes that the police did not explain clearly why they did not allow the participants to wear clothes of a certain colour in this incident, I will refer this view to the police, so that they can spell this out clearly in the conditions of approval. Recently, Members may also have taken part in the lion dance and dragon dance sports and I believe Members are all aware that nowadays, the styles of the costumes are increasingly diverse. Their colour is no longer uniform, rather, they are multifarious and look very great. I will refer this issue to the police and ask them to set this out clearly in the permits, such that everyone knows what the requirements are, so as to avoid other unnecessary misunderstandings.

MR SIN CHUNG-KAI (in Cantonese): President, the Secretary said in part (c) of the main reply that the requirement of licence applications does not apply to any person exempted by the CP. May I ask in what circumstances the CP will grant an exemption, how long the period of exemption is and based on what grounds an exemption is granted by the CP?

SECRETARY FOR SECURITY (in Cantonese): President, first, if any group wants to be granted an exemption, they need to make an application in writing to the CP. As regards factors based on which the police will grant an exemption, LEGISLATIVE COUNCIL ─ 11 June 2014 14699 they will consider a host of factors, for example, the background of the organizer, whether or not lawbreakers are involved, and so on.

Second, we have to consider if the various aspects of an activity would affect public order and safety. Perhaps let me cite another example to illustrate in what circumstances the CP will grant an exemption. The most common examples are school performances. As several Members said just now, at present, many youth organizations or schools also organize this type of activities but generally speaking, school performances are not restricted to school premises, and this kind of performances can take place in public places. If schools perform in public places and apply for an exemption for doing so, and if their applications can set out the relevant details and there is no information indicating that any lawbreakers would make use of the relevant activity to engage in illegal activities, we will consider granting approval.

In addition, if some public or charitable organizations organize large-scale lion dance festivals to promote their activities or promote the concepts and values of these charitable organization, as I said just now, if these activities do not involve lawbreakers or risks to public order, we would also consider granting an exemption and each exemption is granted on the basis of a single activity. In other words, it is not true that after an organization has made an application once, all dragon dance, lion dance and unicorn dance activities organized by it in the future will be exempted. When processing applications, we do so on the basis of each single activity.

PRESIDENT (in Cantonese): Has your supplementary question not been answered?

MR SIN CHUNG-KAI (in Cantonese): I still do not quite understand it. In both cases, it is necessary to make applications and one way is to apply for an exemption, so that no permit needs to be obtained and another way is also to make an application, only that it is for the grant of a permit, so in either way, it is necessary to make an application. In that case, what actually is the difference between having and not having a permit? Either way, it is necessary to obtain the approval of the police before an activity can be held, is it not?

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PRESIDENT (in Cantonese): Secretary, do you have anything to add?

SECRETARY FOR SECURITY (in Cantonese): The substantive difference between the two is that in applying for a permit, the personal information of all participants has to be submitted together. Moreover, all participants in the activity, including the applicant responsible for organizing the activity, will be required to authorize the police to look into whether or not they have any criminal conviction records. In the case of an application for exemption, it is not necessary to submit a name list of all participants to the police and it is only necessary for the organizer to submit the list of participants to the police and authorize the police to check if the organizer has any criminal conviction records.

There is indeed a minor difference between the two but in both cases, it is necessary to make applications in writing. In the case of an application for a permit, of course, we have a form for applicants to fill in and this is very clear. In the case of applications for exemption, it is necessary to apply in writing. As far as I understand it ― although I do not have the figures on hand ― instances of application for exemption are not that many. Generally speaking, it is for very large-scale activities that applications for exemption will be made.

MISS ALICE MAK (in Cantonese): Secretary, not many people apply for exemptions because it is very difficult for such to be granted. Secretary, we understand that this requirement of application for a permit has its historical background and social factors because the Government wants to combat the illegal activities of lawbreakers through such a measure. However, is this practice not making a big sacrifice for a minor reason? What I mean is that the Government is unwilling to take the right measures to clamp down on illegal activities but adopted the permit regime instead. If applicants have criminal conviction records, they will not be allowed to take part in dragon dance and lion dance activities.

Since times have changed and more people will take part in this kind of sports and there are even invitational tournaments overseas, and the tournaments in Asia were held in Hong Kong, will the Secretary consider re-examining this regime of permit application to see if it has impeded the development of the lion dance and dragon dance sports and whether or not consideration will be given to relaxing this permit regime?

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SECRETARY FOR SECURITY (in Cantonese): President, concerning the permit application regime, we believe its existence is still valuable even now. As the proverb goes, "prevention is better than cure", but I do not know if this analogy is correct. When a large group of people rally and if some incidents unfortunately happen, the consequences can be very serious. If background checks can be conducted beforehand to gather more information, the situation would probably be better.

As regards the application procedure, at present, the procedure is certainly not cumbersome but if Members have any suggestions on making further adjustments to the application procedure to make it more convenient to applicants, I believe the police will be happy to consider them.

PRESIDENT (in Cantonese): Third question.

Regulation and Application of Unmanned Aircraft Systems

3. MR ANDREW LEUNG (in Cantonese): President, with the technology of unmanned aircraft systems (UAS) maturing gradually and miniaturization of UAS, UAS have become increasingly versatile. On the civilian side, UAS can be used for leisure pursuits, aerial photography, search and rescue, and so on. Regarding the regulation and application of UAS, will the Government inform this Council:

(1) as UAS may be used for aerial photography and video-recording, whether the authorities have reviewed if the existing legislation is adequate for protecting the privacy of the public against intrusion;

(2) given that at present, the Civil Aviation Department (CAD) has issued general safety operational parameters only for UAS weighing 7 kg or more (without fuel), whether the authorities will consider drawing up such operational parameters for UAS weighing less than 7 kg; as UAS have become increasingly versatile (for example, some major online stores and courier companies are exploring the use of UAS for delivery of goods), whether the authorities will amend the existing operational parameters so as to protect public safety; if they will, of the details and timetable; if not, the reasons for that; and

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(3) apart from the Civil Engineering and Development Department deploying UAS for surveying work, whether other government departments such as the Hong Kong Observatory, the Fire Services Department and other disciplined forces have plans to bring in UAS for discharging their duties; if they do, of the reasons for that?

SECRETARY FOR TRANSPORT AND HOUSING (in Cantonese): President, with the evolution of aviation technology, the use of UAS is becoming more popular and versatile. Apart from leisure pursuit by members of the public, UAS may also be used for aerial surveillance and photography, search and rescue, and so on. UAS is classified as one kind of aircraft, and is governed by the civil aviation legislation. Any person operating UAS must comply with the relevant requirements.

My reply to the Mr Andrew LEUNG's question is as follows:

(1) The Personal Data (Privacy) Ordinance (Cap. 486, Laws of Hong Kong) (PDPO) protects the privacy of personal data of the public. Under the PDPO, "personal data" is defined as any data from which it is practicable for the identity of a living individual to be ascertained and which is in a form in which access to or processing of the data is practicable. Any person who or any organization which collects and uses the personal data of another person has to comply with the provisions of the PDPO, including the data protection principles therein.

Generally speaking, installing a video camera to capture the images of a person and storing the recorded footage for the purpose of ascertaining the identity of that person are acts of collecting and using "personal data", and are subject to the provisions of the PDPO, including the data protection principles therein. Using UAS for capturing images is also regulated.

If a person contravenes a data protection principle, the Privacy Commissioner for Personal Data may serve an enforcement notice on him, directing him to take remedial steps. Should he fail to comply with the enforcement notice, the Office of the Privacy Commissioner for Personal Data may refer the case to the police for criminal prosecution.

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(2) Articles 3 and 7 of the Air Navigation (Hong Kong) Order 1995 (Cap. 448C, Laws of Hong Kong) (the Order) provide that an aircraft shall not fly unless it is issued with a Certificate of Registration and a Certificate of Airworthiness by the CAD or the relevant aviation authority of that aircraft. Article 100 of the Order provides that an aircraft weighing not more than 7 kg (without fuel) is classified as a small aircraft. Members of the public who use this kind of small aircraft are not required to apply for a Certificate of Registration and a Certificate of Airworthiness from the CAD. This is generally in line with the practice of overseas countries such as the United Kingdom and Australia. Nonetheless, the operation of small aircraft is governed by Article 48 of the Order, which stipulates that a person shall not recklessly or negligently cause or permit an aircraft to endanger any person or property.

The CAD has published a guide entitled Safety in Radio-Controlled Model Aircraft Flying for the public's reference. This safety guide applies to an UAS not exceeding 7 kg (without fuel) used for leisure flying. Members of the public are advised not to fly an UAS in the vicinity of an airport or aircraft approach and take-off paths. As to the sites of the operations of UAS, they should be clear of buildings, people and away from helicopter landing pads, and clear of any power sources such as power lines, transformer stations, pylons and transmitter towers which might cause radio interference. The site should also be free from visual obstruction, so that the operator can see his UAS in flight, thereby avoiding any collision that may cause injuries, fatalities or damage to property.

When an UAS is used for reward, such as in providing aerial photography service, the operator must comply with the requirement stipulated in Regulation 22 of the Air Transport (Licensing of Air Services) Regulations (Cap. 448A, Laws of Hong Kong). Before operating an UAS, regardless of its size or weight, the operator must lodge an application with the CAD and he must abide by the conditions stipulated in the permit granted by the CAD in providing the service. In processing each application and stipulating the conditions, the CAD will take into account personal safety, property protection and airspace management. Generally speaking, in order not to endanger any person or property on the ground, an UAS is not 14704 LEGISLATIVE COUNCIL ─ 11 June 2014

allowed to fly over populated areas, to carry hazardous materials, or to drop any objects. From April 2013 to March 2014, the CAD has processed 20 applications for the use of UAS for commercial photography, mostly involving UAS not exceeding 7 kg the CAD has not received any application for using an UAS to deliver cargo.

The International Civil Aviation Organisation (ICAO) is now developing the regulatory framework in regard to the operations of UAS. The CAD will review the prevailing operational parameters in respect of UAS in light of the development of international regulatory requirements.

(3) The CAD has approved the Civil Engineering and Development Department and the Lands Department to use UAS, which will be used for land surveying; the Housing Department plans to use UAS for conducting preliminary land surveying in respect of a proposed public housing site. The Agriculture, Fisheries and Conservation Department, with the CAD's approval, uses UAS to carry out ecological studies in country parks. Meanwhile, the Drainage Services Department intends to use UAS to inspect its sewage treatment facilities; and the Hong Kong Observatory is exploring the use of UAS in meteorological and radiation monitoring. As regards disciplined forces, there is no plan to deploy UAS in discharging their duties at this stage.

MR ANDREW LEUNG (in Cantonese): I wish to follow up the first paragraph of the Secretary's reply. According to press reports, some enterprises have already successfully developed UAS weighing only 20 g. A cybersecurity test conducted by a company engaged in technological security research in London revealed that a small UAS, after modification, could intrude smartphones via a Wi-Fi system and intercept data from as many as 150 mobile phone users within an hour. As UAS are small in size, ordinary people can hardly notice that they have been photographed or had their personal data stolen. Moreover, it seems too passive an approach for the Privacy Commissioner for Personal Data to refer cases to the police for criminal prosecution. In this connection, have the authorities adopted any proactive measures to protect the privacy of the public?

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SECRETARY FOR TRANSPORT AND HOUSING (in Cantonese): President, first of all, the PDPO is very clear in regulating any cases of collection and use of personal data. Of course, regarding the issue of UAS, whether the activity carried out falls into the scope of collection and use of personal data under this Ordinance is a factor of consideration. The Ordinance also sets out six principles on data protection.

In addition, during the collection of data, it is necessary to notify the person concerned. If any individual or organization collects and uses the personal data of an affected person without notifying him, it is certainly a violation of the Ordinance. In that case, the Privacy Commissioner for Personal Data can refer the case to the police. Moreover, if the person concerned is unaware that some of his personal data are being monitored, and so on, it is certainly improper. We also hope that the public can pay more attention to this regard.

DR LAU WONG-FAT (in Cantonese): President, many UAS are helicopters, which are particularly popular for private leisure pursuits. A look at the helicopter construction indicates that the blades can easily cause harm to human bodies. Has the Government compiled statistics on the number of cases in recent years involving injuries caused by unmanned helicopters to people, including the controllers of unmanned helicopters and passers-by? Has the Government reconsidered imposing appropriate control?

SECRETARY FOR TRANSPORT AND HOUSING (in Cantonese): President, the UAS available on the market are mostly small in size, weighing less than 7 kg. There are also bigger ones weighing more than 7 kg. In the past few years, we have not been informed of any prosecution related to UAS. If, however, the CAD receives an application from any person for the use of an UAS, especially for commercial use, the UAS is subject to regulation by the CAD regardless of its weight, and such application is necessary.

I have already pointed out in the main reply that, in processing applications, we have to take into account such issues as personal safety, property protection and airspace management. In addition, in processing each application, we will specifically set out very precise requirements for the flight, 14706 LEGISLATIVE COUNCIL ─ 11 June 2014 including the operating hours, flight range and altitude of the UAS. In general, it should not exceed 300 feet above ground level, nor operate while any rainstorm warning signal, tropical cyclone warning signal or strong monsoon signal is hoisted. Furthermore, no approval will be granted unless such information as the purpose and date of the flight applied for, as well as various data, including performance, of the UAS have been provided. If the flight is for commercial purpose, the authorities will definitely require the applicant to provide the insurance policy for a clear understanding of the relevant third party risks insurance coverage before granting the approval.

MR CHRISTOPHER CHEUNG (in Cantonese): President, various countries are now actively developing UAS for military use. The police in Wuhan even uses UAS to deal with emergencies. In addition, both Facebook and Google announced earlier that they would study the use of solar-powered UAS to provide network connectivity in remote areas. May I ask the authorities whether some policy measures will be put in place to encourage our young people and businesses to engage in scientific research for the development of the UAS market?

SECRETARY FOR TRANSPORT AND HOUSING (in Cantonese): President, as Mr CHEUNG said, the use of UAS has indeed become more widespread than in the past. However, judging by the specific figures, I have also mentioned that if a UAS weighs less than 7 kg (without fuel) and is only used for general personal leisure pursuit, no approval from the CAD is required, but it should still abide by the guidelines on safety which have been uploaded onto the website of the authorities. However, regarding the use for commercial purpose, we have in fact received only 20 applications in the past year. In other words, the use for commercial purpose may not be very common.

Regarding military application, we do not have any relevant information. As for the future, the key lies in whether there will be further requirements by the ICAO on the use of UAS, because I believe that as technology continuously advances and UAS becomes increasingly versatile, the associated activities on the market will noticeably increase.

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MR CHARLES PETER MOK (in Cantonese): President, the development of UAS in Silicon Valley, the United States, has in fact attracted investment worth hundreds of million US dollars, and I have also seen on the Internet that Hong Kong companies have started to provide such services. I have looked up information and found that the United States Congress has ordered the US Federal Aviation Administration (FAA) to legislate for the licensing of UAS before September 2015, and the threshold it set is 25 kg instead of 7 kg, which means that the UAS will grow bigger and bigger in size. Of course, on matters of safety, such as issues involving illegal acts or privacy, there is a need for regulation. The industry has also pointed out that the Government should draw up regulatory standards as soon as possible in order to promote the development in this area and enable regulation of those existing illegal operators.

I note that the Secretary also mentioned in part (2) of the main reply that the Government will conduct a review of the prevailing regulatory framework and study of the ICAO. In fact, does the Hong Kong Government actually have any plans for licensing in response to such developments, and do you know the ICAO's timetable for developing a regulatory framework? If the United States already has relevant plans, will Hong Kong set a timetable to deal with the issue as soon as possible, in order not to fall behind others?

SECRETARY FOR TRANSPORT AND HOUSING (in Cantonese): President, with regard to the regulation of aircraft, and bearing in mind that UAS is also a kind of aircraft, the civil aviation authorities of Hong Kong have all along kept abreast of the usual international practice. In particular, if the ICAO requires regulation in any aspect, Hong Kong will follow up. Currently, we have regulation on the flight safety of UAS operation similar to those of the United Kingdom, Australia and even neighboring Singapore. I can say that, compared with Singapore, our approach may be closer to international practice.

The use of UAS for commercial purposes may become increasingly pervasive. They currently see more use in photography in Hong Kong but may have more applications in the future. Therefore, we will continue to keep an eye on the subject of regulation. Our current regulatory system regulates all UAS used for paid services, regardless of their weights and sizes. As for the weight, it is true that currently no UAS weighing more than 25 kg are allowed for aviation purposes in Hong Kong because flight safety is the prime concern. 14708 LEGISLATIVE COUNCIL ─ 11 June 2014

However, if the international standards are adjusted, we will certainly reconsider the relevant issue.

MR CHARLES PETER MOK (in Cantonese): President, I am asking whether the Government has a timetable. The Secretary does not seem to have answered it.

PRESIDENT (in Cantonese): Secretary, do you have anything to add?

SECRETARY FOR TRANSPORT AND HOUSING (in Cantonese): President, we do not have any specific timetable but we will always keep abreast of the international practice, particularly in regard to the ICAO's handling of or requirements for UAS or other aircraft, and make timely adjustments to the relevant requirements.

MR TONY TSE (in Cantonese): President, in part (3) of the main reply, the Secretary listed the current uses of UAS by a number of government departments to discharge their duties. I believe that such uses have advantages, and enhance work efficiency and service levels. In this connection, and in addition to the issue of regulation which is a popular concern, may I ask the Government whether it has formulated any policies that facilitate the use and operation of UAS, so as to enable the continuous development of this technology in Hong Kong?

SECRETARY FOR TRANSPORT AND HOUSING (in Cantonese): President, information on regulatory guidelines, including that on flight safety and the criteria based on which the CAD will process a relevant application if received, has been uploaded onto the CAD website, where specific guidelines are also set out. As for technological development, Mr Charles Peter MOK also mentioned earlier that this technology is becoming increasingly commonplace in the international community, and the prices of UAS are not considered too high either. In general, the UAS most commonly used in Hong Kong weigh less than 7 kg.

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MR SIN CHUNG-KAI (in Cantonese): Amazon indicated that it would use UAS to deliver goods. I wish to ask the Secretary ― of course, Hong Kong is a more crowded place ― if some businesses regularly provide such services … as the Secretary indicated in the third page of the main reply that an application would be needed every time, if the UAS is used for delivery, can the application procedures be simplified? Have the authorities formulated some regulations for such application?

SECRETARY FOR TRANSPORT AND HOUSING (in Cantonese): President, as I said in the main reply, the CAD has not received in the past any application for using an UAS to deliver cargo, but it does not mean that we do not have a system to deal with it. Generally speaking, apart from personal safety, property protection and airspace management, we have to also consider for each application whether the UAS will fly over populated areas. It cannot carry dangerous goods. We also need to clearly know its cargo content, and it cannot arbitrarily drop objects. Furthermore, we have to consider its detailed flight time and range, and so on. I believe these regulations should apply to any applicants from the industry in the future, whether the UAS is used for photography or goods delivery. Most importantly, such regulations ensure flight safety and protect the persons or property on the ground.

MR SIN CHUNG-KAI (in Cantonese): President, will this approach render the cost of licence application higher than that for goods delivery? With regard to the Government's requirement for application on a case-by-case basis, will the Government consider some types of licence in such a way that the applicants may lodge a one-off application for the provision of regular services in certain areas? Have you considered such a system?

SECRETARY FOR TRANSPORT AND HOUSING (in Cantonese): President, insofar as the cases handled by us in the past are concerned, as seen on the current market, there are in fact not many organizations deploying UAS for paid uses or commercial purposes. They are few in number. Certainly, they are also very familiar with the application guidelines. Currently, we process the applications on a one-by-one basis.

PRESIDENT (in Cantonese): Fourth question.

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Measures to Regulate Growth in Visitor Arrivals

4. MS CLAUDIA MO (in Cantonese): The Chief Executive has recently indicated that the Government is conducting a study on the regulation of visitor arrivals and its growth rate, which includes discussing with the relevant Mainland authorities the issue of "multiple entry permits", but so far it has not yet given an account of the measures to be launched to regulate visitor arrivals (regulatory measures). In this connection, will the Government inform this Council:

(1) of the specific contents and current progress of the aforesaid study; whether the study is being undertaken by an inter-departmental group; if it is, of the membership list of the group; whether it has invited people from various sectors of the community and representatives from authorities outside the territory to take part in the study; if it has, of the name list of these people and representatives; whether the authorities will set a timetable for giving an account to the public on the outcome of the study and the regulatory measures to be adopted;

(2) whether the Government has, since the authorities proposed the Boundary Facilities Improvement Tax Bill 11 years ago, conducted any assessment again on the imposition of a land departure tax or arrival tax, such as levying a tax on visitors who are not Hong Kong residents upon their entry by land so as to reduce the number of same-day visitors coming to Hong Kong to shop for daily necessities, thereby mitigating the impact of their visits to Hong Kong on the daily lives of members of the public; if it has, of the details; if not, the reasons for that; and

(3) as it has been reported that with effect from 1 June last year, all policy documents submitted to policy committees and the Executive Council must include an assessment on the reaction of the Mainland to the relevant policies, whether the authorities have assessed the reaction of the Mainland people and government to the regulatory measures under consideration; if they have, of the assessment outcome; whether it is the case that the authorities dare not request the Mainland authorities to cancel the "multiple entry permit" arrangement or introduce a land arrival tax because they are LEGISLATIVE COUNCIL ─ 11 June 2014 14711

worried about hurting the feelings of the Mainland people; whether the authorities will, with regard for Hong Kong people's interests, expeditiously implement regulatory measures?

SECRETARY FOR COMMERCE AND ECONOMIC DEVELOPMENT (in Cantonese): President, tourism is an important pillar of Hong Kong's economy, accounting for 4.7% of our Gross Domestic Product (GDP). Apart from driving the development of various relevant sectors, the healthy development of the tourism industry also offers 250 000 direct employment opportunities, of which most are jobs for the grassroots and with relatively lower skill requirements. The growth in visitor arrivals has generated economic benefits and created employment. However, it has also brought about challenges. The HKSAR Government attaches great importance to the long-term and healthy development of Hong Kong's tourism industry, and has been adopting a realistic and pragmatic attitude in handling tourism-related issues.

In fact, the Chief Executive announced in September 2012 that the relevant Mainland authorities would liaise and work closely with the HKSAR Government to ascertain the receiving capacity of Hong Kong before considering implementing multiple-entry Individual Visit Endorsements for non-permanent residents of Shenzhen, and arranging the orderly issuance of exit endorsements for non-permanent residents in six cities. The HKSAR Government also completed an assessment on Hong Kong's capacity to receive tourists at the end of last year, and is making great efforts to enhance Hong Kong's capacity to receive tourists along the recommendations in the Assessment Report. At the same time, the HKSAR Government has been closely monitoring the trend of visitor arrivals. Taking into account the community's continued concerns about Hong Kong's capacity to receive tourists, the Chief Executive indicated in April this year that the HKSAR Government is looking into ways to adjust the growth in visitor arrivals and the composition of visitors, and will announce the outcome as soon as possible upon discussion with the Central Government and relevant Mainland authorities.

Relevant government bureaux and departments are all involved in this task, including the Commerce and Economic Development Bureau, the Security Bureau, the Immigration Department, and so on. Our major premise is to ensure the stable and orderly development of the tourism industry, and at the same time 14712 LEGISLATIVE COUNCIL ─ 11 June 2014 minimize as far as possible the inconvenience caused by increasing visitor arrivals to local residents, with a view to striking a balance between the impact of the tourism industry on Hong Kong's economy and the livelihood of the community. As a responsible Government, we indeed have to listen to all views and adopt a balanced approach in addressing the public concerns, protecting the overall interests of the whole community and tackling the problems arising from the visitor arrivals.

I noticed that Ms Claudia MO and Mr Gary FAN have stated many times publicly that the Central Government should abolish the multiple-entry Individual Visit Endorsements for permanent residents of Shenzhen altogether and reduce substantially the number of visitors under the Individual Visit Scheme (IVS). On the other hand, the Government announced last week the statistics of retail sales for April this year. The value and volume of the retail sales for that month recorded the largest reduction since February 2009. After the statistics were released, some members of the trade were very concerned about the impact of the retail market on the economy. They were worried that the adjustment in visitor arrivals would bring an even more severe blow to the overall economy and pose a significant negative impact to the employment situation, resulting in the loss of impetus for growth of the Hong Kong's overall economy. Therefore, we have to consider carefully the two directions towards adjusting the number of visitors and improving their composition. For visitor arrivals, the first question we have to ask is how much could Hong Kong's economy afford in terms of reduction in visitor arrivals? As for the composition of visitors, we have to consider carefully the target of adjustment, the type of visitors and the related economic benefits, as different adjustment measures will lead to different extents of reduction in visitor flow in different districts and different sectors, as well as bring about different economic impacts. In considering the above two issues, we must, at the same time, analyse objectively the impact of the adjustment measures on Hong Kong's overall economy and give deep thoughts to whether the community is able and willing to bear these impacts. We also hope that there would be extensive and serious discussions in the community, so that we could relay different views to the Central Government more accurately.

We understand that the community is very concerned about the progress and outcome of the study. Therefore, we are actively pressing ahead with the related work and will announce the outcome as soon as possible upon liaison with the Central Government and relevant Mainland authorities. In fact, the Central LEGISLATIVE COUNCIL ─ 11 June 2014 14713

Government has been very supportive towards the development of Hong Kong's tourism industry and economy. At the same time, the Central Government is very concerned about Hong Kong's capacity to receive tourists and does not want the harmonious relationship between the residents of Mainland and Hong Kong to be affected by excessive visitor arrivals. Hence, we believe the Central Government will give due consideration to the actual situations and needs of the two places, with a view to formulating appropriate and reasonable adjustment measures.

As regards the proposal to impose a land departure tax or arrival tax, during 2002 and 2003, the HKSAR Government planned to impose a boundary facilities improvement tax on passengers departing Hong Kong via land or sea departure points as a revenue-generating measure to help finance the improvement of boundary facilities. Nonetheless, after taking into account various views of the community, the HKSAR Government considered that it was not an opportune time to introduce the boundary facilities improvement tax given the economic conditions then. As a result, the plan has been shelved. We still consider that the proposal to introduce a land arrival tax on visitors not feasible. If the tax were to be imposed on Mainland visitors, we could not just hope that the Mainland would not impose the same tax on Hong Kong people in return. It should be noted that about 180 000 Hong Kong residents go to the Mainland every day. Besides, the travel trade also largely opposes the proposal and considers that it will adversely affect the tourism, retail and food and beverages sectors, and so on.

As regards the means to divert visitors who mainly come for shopping, we notice that there has been a suggestion of developing a shopping centre at the border area. We consider such suggestion worth considering. If the proposal could be materialized, it might help divert visitors in the short term and provide job opportunities to residents of the existing and planned new towns in the New Territories in the long run. We have earlier received a proposal on the development of a shopping centre at the Lok Ma Chau border area. Since the area involved in the proposal is primarily private land, it may not meet the statutory requirement of resuming land for a public purpose should the Government take forward the private business development by way of land resumption. Land resumption would also involve a substantial amount of public funds and a prolonged period of time. We believe that it will be more efficient 14714 LEGISLATIVE COUNCIL ─ 11 June 2014 if the landowners could co-ordinate with other market stakeholders in pursuing the future development of the area concerned having regard to the commercial potential of the area. We will be glad to co-ordinate with the government departments concerned to provide necessary information and assistance to the project proponent.

Before closing, may I once again appeal to various sectors of the community to conduct in-depth, serious and rational discussions on the visitor arrivals and their composition, so that the adjustment measures eventually implemented would better meet the long-term and overall interests of Hong Kong.

MS CLAUDIA MO (in Cantonese): President, first of all, I wish to make a clarification. The Secretary said in his main reply that Mr Gary FAN and I have requested the Central Government to abolish the multiple-entry Individual Visit Endorsements and so on. It is true that we have made the relevant request. However, our target is not the Central Government but the SAR Government. We consider that matters such as control of visitor arrivals under this multiple-entry Individual Visit Endorsement measure should be the responsibility of the Hong Kong Government under "one country, two systems". This is just a clarification.

I have this supplementary question. President, the Basic Law stipulates that Hong Kong is to preserve its status as an international financial centre. But it seems now that the Government wants to turn Hong Kong into a tourist centre for the Mainland. This is a contravention of the Basic Law. First, the Chief Executive admonishes Hong Kong people not to be conceited before getting rich. Then in Beijing, ZHANG Dejiang said that there seemed to be some problems with the IVS and then floated the idea that perhaps the number of visitors can be reduced by 20%. Then the official media in China quoted a remark by Secretary Gregory SO, that the retail sector had worries about being dealt a further blow. When we have a government like this, is it telling us that in matters like the IVS and the tourism industry we cannot enjoy a "high degree of autonomy", and the Chief Executive is actually heeding orders from Beijing?

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SECRETARY FOR COMMERCE AND ECONOMIC DEVELOPMENT (in Cantonese): I am grateful to Ms Claudia MO for raising this supplementary question. I think Ms MO may really have to make herself better versed in the Basic Law because Article 22(4) of the Basic Law puts it very clearly. I hope Ms MO can pay attention to it. It says, "For entry into the Hong Kong Special Administrative Region, people from other parts of China must apply for approval. Among them, the number of persons who enter the Region for the purpose of settlement shall be determined by the competent authorities of the Central People's Government after consulting …". And the relevant formalities shall be determined by the Central People's Government. So with respect to the policy concerning the IVS, it is a policy of the Central Government and the SAR Government is to convey the views of the people of Hong Kong to the Central Government for consideration.

I would also like to comment on the remark made by Ms Claudia MO that Hong Kong is an international financial centre. It is indeed a fact that Hong Kong is an international financial centre. But we have to foster diversity in the development of our industries. The tourism industry accounts for a significant share of our economy and it contributes 4.7% to our GDP and jobs for 250 000 people. It is a very important industry in our economy. So with respect to the development of the tourism industry, we have to examine carefully the economic impacts brought about by different measures. This is a concern to the Central Authorities. The SAR Government will listen more to views from the public and convey them to the Central Authorities.

MR KENNETH LEUNG (in Cantonese): President, the Secretary said in the third last paragraph of the main reply that "We still consider that the proposal to introduce a land arrival tax on visitors not feasible. If the tax were to be imposed on Mainland visitors, we could not just hope that the Mainland would not impose the same tax on Hong Kong people in return."

May I ask the Secretary if this reply is based purely on speculations by the Secretary himself? Because when the Hong Kong Government imposed the BSD, SSD and DSD on top of the stamp duty, it did not show that it had any fear that the Mainland would impose the same tax on us. This is my first supplementary question.

My second supplementary question is …

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PRESIDENT (in Cantonese): Mr LEUNG, only one question can be asked in a supplementary question. Please consolidate your questions into one supplementary question.

MR KENNETH LEUNG (in Cantonese): All right, President.

SECRETARY FOR COMMERCE AND ECONOMIC DEVELOPMENT (in Cantonese): President, when we consider a policy, we have to taken into account the impact on visitors from the Mainland. If the levy of a departure tax is a policy in Hong Kong, it should be noted that about 180 000 Hong Kong residents go to the Mainland every day via these boundary crossings. If such a measure is imposed on the Mainland, will it mean that the same tax will be imposed on Hong Kong residents in reciprocity? This is a factor we have to consider.

PRESIDENT (in Cantonese): Has your supplementary question not been answered?

MR KENNETH LEUNG (in Cantonese): What he talked about in his reply is an arrival tax on visitors. But in fact Ms Claudia MO asked about a general arrival tax or a tax on visitors. In this paragraph the Secretary did not reply to the question of a general arrival tax on visitors. His reply only touched on a land arrival tax. Secretary, do you have another reply?

SECRETARY FOR COMMERCE AND ECONOMIC DEVELOPMENT (in Cantonese): President, the land arrival tax is an issue with far-reaching impacts. Of course, apart from visitors, there are also other persons holding visa endorsements entering Hong Kong. If this tax is purely seen as a tourism measure, will it be effective? This is open to question. So in our opinion, in any discussion on this measure, we have also to consider whether or not the Mainland will adopt other measures in response to this tax.

MR VINCENT FANG (in Cantonese): President, last year this Council discussed a countless number of times the inconveniences caused to Hong Kong LEGISLATIVE COUNCIL ─ 11 June 2014 14717 residents by the IVS and its importance to our economy and employment situation, as well as the measures and methods used to strike a balance. Recently I went with a number of Members of this Council from the related trades for a meeting with the Financial Secretary and the Chief Secretary. But there had been no response from the Government to the suggestions made by us. It was only recently at a meeting of the Commission on Strategic Development that the Chief Executive proposed all of a sudden that the number of visitors under the IVS be reduced.

I have this question for the Secretary. People from our trade have made many suggestions to the Government on easing the problems caused by the IVS and among these suggestions, there is one that proposes to change the multiple-entry Individual Visit Endorsements into single-entry one-day endorsements. Has the Government ever studied the extent of the impact this will have on Hong Kong? Because the People's Daily carries a story which states that if the multiple-entry endorsements are changed into single-entry one-day endorsements, it would have disastrous implications on Hong Kong and 10 000 people will lose their jobs. Does the Government think that this is a plausible report?

SECRETARY FOR COMMERCE AND ECONOMIC DEVELOPMENT (in Cantonese): President, we encourage Members to consider in this discussion what targets should be set with respect to the number of visitors and their profiles. In the main reply I have explained clearly that different measures will bring different impacts in various districts and on visitors of different profiles. For example, those visitors who come on multiple-entry endorsements and who makes a return trip on the same day would enjoy life in Hong Kong, or what I would call the "one-hour sphere of life". The spending pattern of these visitors is different from that of the conventional visitors, that is, those who go to the scenic spots and stay in hotels. Therefore, when these measures are introduced, we have to consider these visitor groups and their spending pattern in order to strike a balance, while also taking into account their influence on the life of locals.

I have heard many different suggestions made by Members of this Council and a considerable number of these suggestions are on the multiple-entry Individual Visit Endorsements. With respect to these multiple-entry Individual Visit Endorsements, I have also heard many views. For example, the number of 14718 LEGISLATIVE COUNCIL ─ 11 June 2014 entries for each endorsement should be limited. Or as Mr Vincent FANG has just said, can the measure of single-entry for one day be introduced? The Immigration Department does not have figures for a whole year, such as how many visitors would be affected by this measure of issuing "single-entry, one-day" endorsements. However, there were figures collected over a four-week period and it was found that most of the Mainland visitors on multiple-entry endorsements in effect came to Hong Kong on a "single-entry, one-day" pattern. So we have to see how effective these measures are. If we make an analysis of these "single-entry, one-day" visitors, during this four-week period, it was found that 96.52% of these visitors belonged to the "single-entry, one-day" category. So if we just adopt this measure of "single-entry, one-day" endorsements, it would not be very useful in reducing the number of visitors. In this connection, we have to explore this and listen to more views from the trades and members of the public to see how a balance can be struck and to prevent any excessively negative impact on our economy.

MS CYD HO (in Cantonese): President, about this IVS which does not have any ceiling, those who gain the most are the owners of the shopping malls in Hong Kong and the owners of commercial premises. They can impose exorbitant hikes in rentals. And for our local name brands, such as Episode, that is, a line owned by Mr Vincent FANG, it has to move its outlets into premises upstairs. But this affects the life of the general public. In Mongkok, for example, two skewers of fish balls cost $20 and a bowl of wonton noodles costs $40. May I ask the public officer, given the statement in the main reply of "protecting the overall interests of the whole community", if the authorities are to assess the IVS, whether consideration has been given to the effect of inflation on the life of the grassroots brought about by the IVS, as well as other social costs? For example, the Secretary told people to wait for a few more trains but when the people have to wait for a number of trains more every day, how much of their time for rest and further studies will be lost? Has the Government ever made any assessment of this kind of impact? If it has, why are the findings not released? If not, when will this kind of study be undertaken? Moreover, if this kind of study is not undertaken, how are the overall interests of the whole community be protected? Is it just another lie?

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SECRETARY FOR COMMERCE AND ECONOMIC DEVELOPMENT (in Cantonese): President, the assessment we undertook last year used a number of objective factors to evaluate the receiving capacity of Hong Kong in aspects like the boundary crossings, transport, number of hotels, and so on. The capacity of the tourist spots was also assessed. We hope that our resources in tourism can be expanded so that more tourists can be received and that there can be growth in the tourism industry.

Furthermore, we have also considered problems that may have an impact on people's livelihood. We are considering the views from the people. We hope that Members can explore the issue of how to strike a balance between the number of visitors and the profile of these visitors. Figures freshly released on the retail figures in April show that there is a decline of 9.8%. For the two holidays in the Labour Day and the Dragon Boat Festival, the number of visitors compared with that of last year shows a drop while there used to be a double-digit growth in the past few years. So we should improve our work in understanding the dynamics of how things develop. And in terms of visitor numbers and profile, we would like to hear more from the public.

We will certainly consider the suggestion made by Mr Vincent FANG earlier. We will also hear what the trades and members of the public have to say on how best a balance can be struck.

PRESIDENT (in Cantonese): Has your supplementary question not been answered?

MS CYD HO (in Cantonese): President, the Secretary has not answered, because the Secretary has just …

PRESIDENT (in Cantonese): Please repeat your supplementary question.

MS CYD HO (in Cantonese): The Secretary has just cited some figures. And what I am asking is whether or not the Government has ever considered the impact of inflation produced and its effects on the grassroots, as well as the effect on certain intangible matters related to people's quality of life, such as the reduction in rest time and time for further studies. If no assessment on these has 14720 LEGISLATIVE COUNCIL ─ 11 June 2014 been undertaken, will the Secretary tell us frankly that no consideration will be given to the life of the grassroots?

PRESIDENT (in Cantonese): Ms HO, please do not make lengthy comments. Secretary, do you have anything to add on the Member's question on the effects of inflation on the life of the grassroots?

SECRETARY FOR COMMERCE AND ECONOMIC DEVELOPMENT (in Cantonese): President, it is precisely because we are aware of the concern shown by the people and the effects on people's livelihood that we have taken the initiative to inform the Central Authorities of the adjustment measures we have regarding visitor number and profile. This is because we have heard the voices of the people.

PRESIDENT (in Cantonese): We have spent more than 22 minutes on this question. Fifth question.

"Hong Kong Property for Hong Kong People" Policy

5. MR TONY TSE (in Cantonese): President, the Chief Executive announced the implementation of the "Hong Kong Property for Hong Kong People"(HKPHKP) policy in 2012, with the objective of according priority to meeting Hong Kong people's needs for home purchase. Under this policy, the authorities will, at the time of selling selected sites, add land lease conditions restricting the sale of the flats developed at the sites to Hong Kong permanent residents (HKPRs) for 30 years from the date of the relevant land grants. The Government executed the policy only once when two residential sites in Kai Tak were offered for sale by tender in March last year. In response to press reports that the policy had been shelved by the Government, the Chief Executive said earlier on that the policy was already well received by the market and proved to be feasible, and therefore it could be activated within a short period of time when necessary in future. The Secretary for Development also indicated earlier on that at this juncture, there was no pressing need to apply the policy to other sites available for sale or make it a long-term measure for implementation. In this connection, will the Government inform this Council:

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(1) whether it has conducted any comprehensive review on the contents, execution and effectiveness of the HKPHKP policy, its impact on the property market and home purchases by members of the public, as well as on the land lease conditions for implementing this policy, and so on; if so, of the outcome and the improvement recommendations in this regard; if not, the reasons for that, and whether it will conduct such a review;

(2) whether it will implement the HKPHKP policy continually during the current term of the Chief Executive; if it will not, of the reasons for that; if so, the considerations, criteria and indicators based on which the authorities will decide whether to reactivate the relevant measure; whether there is any plan to apply the HKPHKP policy to the sites in the land sales programme of the current financial year; if there is, of the details (including the land lease conditions, and the number and average size of the residential flats involved); if not, the reasons for that; apart from the HKPHKP policy, of the existing policies put in place, and whether it will implement any new measures to assist HKPRs and accord priority to them in home purchase; and

(3) whether it has assessed the impact of the HKPHKP policy on the prices of the relevant residential sites and developers' willingness to submit tenders for the sites; if so, of the details and outcome of the assessment; if not, the reasons for that?

SECRETARY FOR DEVELOPMENT (in Cantonese): Good morning, Members. President, first of all, please allow me to set out the policy objective and background of the HKPHKP measure.

The HKPHKP measure aims at giving priority to HKPRs in making use of our scarce residential land resources when there is a tight demand-supply situation in the property market. The HKPHKP measure does not aim at subduing housing demand, suppressing property prices or subsidizing home ownership. The measure is only applicable to flats constructed on residential sites subject to the HKPHKP pilot scheme but does not apply to the existing housing stock in the market or new housing supply not subject to the pilot scheme.

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Under the HKPHKP pilot scheme, the Government imposes a restriction on selected residential sites through land lease conditions that, for a period of 30 years from the date of land grant, the residential flats constructed on such sites must be sold only to HKPRs. In other words, the restriction applies to sale to first-hand buyers and further re-sale to all subsequent buyers in that 30-year period.

The Government sold two residential sites in Kai Tak under the HKPHKP pilot scheme by tender in June 2013. The relevant land sale conditions and arrangements for implementing the HKPHKP measure are readily available for launching other HKPHKP sites anytime depending on the market situation. The Government will take into consideration factors like the market situation in deciding whether to apply this measure to individual residential sites available for sale. The current position of the Government is that given that various demand-side management measures implemented by the Government targeting the property market have effectively curbed the demand for residential flats from non-local purchasers, there is no pressing need to extend the HKPHKP measure to other sites at this juncture. The Government will continue to closely monitor the property market and take appropriate measures, including the HKPHKP measure, to facilitate healthy development of the property market.

President, I reply to the three-part question as follows:

(1) The pilot scheme, which has so far been applied by the Government to two sites in Kai Tak, has achieved the policy objective of the HKPHKP measure and that is, giving priority to HKPRs when making use of our scarce residential land resources. The Government will conduct a comprehensive review in due course on the policy objective and other aspects of the scheme, including details of the measure, its implementation, effectiveness and reaction, and so on, after the completion of residential developments and sale of flats at the two Kai Tak sites.

(2) The relevant land sale conditions are readily available for implementing the HKPHKP measure. The various demand-side management measures implemented by the Government targeting the property market have effectively curbed the demand for residential flats from non-local purchasers. There is no pressing need to extend the HKPHKP measure to other sites available for sale at this juncture. The Government will continue to closely monitor LEGISLATIVE COUNCIL ─ 11 June 2014 14723

the property market and take appropriate measures to facilitate healthy development of the property market. Depending on the market situation, the Government may apply the HKPHKP measure to suitable sites in the quarterly land sale programmes where necessary.

As regards subsidized housing, the Government will continue to increase the supply of subsidized flats to facilitate home ownership of middle to low-income families through the Home Ownership Scheme (HOS) implemented by the Housing Authority and subsidized sale flats scheme by the Hong Kong Housing Society.

(3) The tender of the two residential sites subject to the HKPHKP pilot scheme received 16 and 13 bids respectively and they have been sold. The HKPHKP measure is well received by the market.

MR TONY TSE (in Cantonese): President, due to abundant liquidity and low interest rates, residential property prices have recently increased quite a lot than the past year or two, and it is very difficult to increase the supply of housing in a short time. I have noticed that the many polices introduced by the Government have focused on demand-side management while giving priority to meeting the needs of Hong Kong people. Likewise, the policy objective of the HKPHKP measure that the Secretary just explained is to give priority to home ownership by Hong Kong people but I have noticed that the land sale conditions have provided for a time limit of 30 years. May I ask the Secretary whether this policy is a long-term policy or only a short-term measure similar to other demand-side management policies?

SECRETARY FOR DEVELOPMENT (in Cantonese): President, I thank Mr Tony TSE for his supplementary question. This measure is applicable to two sites in Kai Tak and when putting up these two sites for sale, we already stated that it was a pilot scheme. So, these two sites were sold under the HKPHKP pilot scheme. Regarding what we should do as the next step, as I mentioned in reply to the Member's main question just now, the relevant land sale conditions and land leases for implementing this measure are readily available and depending on the market situation, the Government may, where necessary, apply the measure to any site to be put up for sale.

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As for the 30-year period stipulated in the land sale conditions, the reason for it is that real estate developers are required to sell the flats developed on these sites to HKPRs and this restriction also applies to their re-sale. The objective is to ensure that the sale of these flats are restricted to HKPRs over a long period of time. It is necessary to set a time limit because the buildings will become dilapidated or may even in need of redevelopment after a certain period of time and so, having taken this factor into consideration, we have set the limit at 30 years.

MS EMILY LAU (in Cantonese): President, in his main reply the Secretary said that the HKPHKP policy aims at giving priority to HKPRs when there is a tight demand-supply situation in the property market, adding that the demand for residential flats from non-local purchasers has been greatly curbed. However, the public would like to know, and they would like me to ask the SAR Government on their behalf, when they will be able to buy a flat. The Government may have curbed the demand from non-local purchasers, but will this considerably increase the number of HKPRs who need to buy a flat? Can the Secretary provide the figures to explain how this measure can benefit HKPRs? It is because many members of the public are feeling rather agitated now. They said that they cannot achieve home ownership because property prices are exorbitant and they questioned what the SAR Government has been doing for them.

SECRETARY FOR DEVELOPMENT (in Cantonese): President, property prices have persistently remained high and surged continuously over a period of time, and this is attributed to an imbalance between demand and supply. I thank Ms Emily LAU for her supplementary question. Ms LAU asked us to provide figures for reference and according to the figures on the past eight years, that is, the past eight years before 2013, the annual average housing production was only around some 9 000 flats, which is actually quite a long way from the target of the SAR Government.

I believe Ms LAU may also know, in supplying land for private residential development, it has been the SAR Government's target to make available land for developing about 20 000 flats annually, and the new housing production target is also set at 18 800 flats for the next decade. Therefore, with an annual production of only some 9 000 flats over the past eight years, the actual volume of production is indeed seriously short of the target. However, as the supply of LEGISLATIVE COUNCIL ─ 11 June 2014 14725 land has consistently increased over the last few years, hopefully the number of flats to be provided will increase significantly in the next couple of years. According to the figures available to us now, 72 000 flats will be completed gradually in the next three to four years, and if we divide this number by four, it means an annual production of 18 000 flats. Therefore, the production of flats in the next few years will actually increase quite substantially compared to the last few years. If Members have paid attention to the situation, they should have found that the number of housing development plans approved in the first quarter of this year has increased quite a lot compared with the corresponding period of last year. This is the picture of housing supply.

As for property prices, Members can see that in the last two or three months, the property market has become more stable with some adjustments made. Of course, the future developments will depend on the demand-supply situation as well as some external factors, especially those on the economic front, such as the economic prospects, the economic outlook in the United States and even the Mainland, and interest rate movements. We still need to closely keep these factors in view.

PRESIDENT (in Cantonese): Has your supplementary question not been answered?

MS EMILY LAU (in Cantonese): President, the Secretary said that the demand for residential flats from non-local purchasers has been greatly curbed. When the demand from these people drops, the local people should be able to buy their own homes, rather than having to wait until next year, the year after next or even longer as the Secretary just said. What I am asking for is the figures …

PRESIDENT (in Cantonese): Ms LAU, please state your follow-up question. You cannot debate with the Secretary.

MS EMILY LAU (in Cantonese): I am not debating. I am asking the Secretary to provide the figures.

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PRESIDENT (in Cantonese): Please repeat the part that you think the Secretary has not answered.

MS EMILY LAU (in Cantonese): I am asking him whether he can provide the figures. Since the demand from the non-locals has dropped, how much has it dropped, and how much has it increased on the side of the locals?

SECRETARY FOR DEVELOPMENT (in Cantonese): President, after the introduction of the "double curbs" measures, the percentage of non-Hong Kong people buying residential flats in Hong Kong has dropped to a very low single-digit figure of just a few percentage points. Where have these residential flats gone? The answer is that they have been purchased by Hong Kong people, though the demand of Hong Kong people for residential flats is still very keen indeed. But these flats have been purchased by Hong Kong people.

MR FREDERICK FUNG (in Cantonese): President, the objective of the HKPHKP measure is to ensure that only Hong Kong people can purchase these flats without being subject to a means test. This is different from the subsidized housing mentioned by the Secretary in part (2) of his main reply because the latter is subject to an income limit. The HKPHKP measure is meant to ensure that the flats are sold to local middle-class people in need of housing.

President, the problem is that in part (1) of his main reply to Mr TSE's question, the Secretary said that the Government will review the details of the measure, its implementation, effectiveness and reaction after the completion of residential developments and sale of flats at the two Kai Tak sites. But as the Government ceased this measure shortly after the sites were sold, how can it conduct a review? Should this policy be maintained at least for a period of time? As it takes four years to complete the flats after the sale of land, will this only result in sporadic implementation of the policy and how can a review be conducted then? Why can the authorities cease this measure without conducting a review?

PRESIDENT (in Cantonese): Mr FUNG, you have stated your supplementary question. Please sit down.

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SECRETARY FOR DEVELOPMENT (in Cantonese): President, to set the records straight, I must point out that the SAR Government has never said that the HKPHKP pilot scheme has ceased. The Government has never said this. As I said in my earlier reply and when I repeatedly responded to questions from the media some time ago, this measure is executed through the land lease, and the relevant land sale conditions or land lease conditions are readily available for activating the measure anytime.

In the current circumstances, why are these conditions not applied to other sites after the completion of the sale of these two sites? It is because over a period of time since the introduction of the "double curbs" measures, the percentage of non-Hong Kong people buying residential flats in Hong Kong has dropped to a very low single-digit figure and so, there is no pressing need to further apply this measure to other sites. We will, in putting up land for sale, continue to keep in view the market conditions and add these conditions anytime where necessary.

President, there is indeed no pressing need to apply the measure at this juncture. The adoption of this measure at a time when there is no pressing need will only impose unnecessary restrictions. It is because the flats developed on these sites will be sold only to Hong Kong people and the inclusion of these conditions when there is no pressing need will actually impose restrictions on the re-sale market for Hong Kong people who have purchased these residential flats, and this is not a good thing to the purchasers. We will certainly apply this measure where necessary, but it is pointless to add these conditions when it is not necessary to do so.

MR WU CHI-WAI (in Cantonese): "Hong Kong property for Hong Kong people" has all along been a political slogan, for it imposes a most extreme restriction on the market through conditions on the sale of land at free market prices. To achieve the real effect of HKPHKP, the Government should take measures to provide HOS flats and increase housing supply.

As we can see, private property prices remain high and despite the "curb" measures, property prices have been hovering at a high level. Of course, new private residential flats will be completed in the future but in the land market there is currently a change taking place and that is, when land is put up for sale by tender, the bids are far from satisfactory. In this connection, may I ask the 14728 LEGISLATIVE COUNCIL ─ 11 June 2014

Government whether it will, while making adjustments to the production volume of HOS flats and particularly and when a lot put up for sale in the market is not successfully sold, resume the land for HOS development?

SECRETARY FOR DEVELOPMENT (in Cantonese): President, HKPHKP is not a slogan and in fact, two sites have been sold with these conditions imposed. Just now Mr WU Chi-wai mentioned HOS flats. Of the new housing production target of 470 000 flats, 60% are public housing units and among these public housing units, can adjustments be made to the percentage of HOS flats? We do not rule out this possibility, but it has to depend on the demand for public rental housing (PRH) units and HOS flats.

Mr WU mentioned that if some sites put up for sale by tender are not well-received in the market, can these sites be used for HOS development? It is difficult for us to give Mr WU a broad-brush answer of "yes" or "no", but we will definitely take it into consideration. There were also precedents of changing the use of a site for developing PRH units or HOS flats after the tendering was unsuccessful. A site at Lin Shing Road, Chai Wan, is a case in point. In fact, the provision of public housing has always been a major consideration of the Development Bureau in supplying land to address the housing problem of the people. As Members can see, whether in Tseung Kwan O or Sha Tin, there were cases in which sites originally incorporated into the land sale programme were used for public housing development. In this connection, Members can rest assured that we attach great importance to the supply of public housing, including HOS flats.

PRESIDENT (in Cantonese): Mr WU, has your supplementary question not been answered?

MR WU CHI-WAI (in Cantonese): I only wish to ask whether the Development Bureau will turn the arrangement mentioned just now into a policy. The Secretary said that he would take it into consideration, but I would like to ask why it cannot be turned into a policy, so as to clearly put across a message to the market that this is the arrangement to be made in respect of land supply in that a site which is not sold in the market will be resumed for HOS development.

LEGISLATIVE COUNCIL ─ 11 June 2014 14729

PRESIDENT (in Cantonese): Mr WU, the Secretary has already given a reply and explained the Government's policy. If you have different views or suggestions, please put them forward on other occasions.

MR SIN CHUNG-KAI (in Cantonese): President, I wish to follow up the supplementary question asked by Ms Emily LAU earlier on. The Secretary pointed out clearly that after the implementation of the HKPHKP policy and the "curb" measures, the percentage of non-local purchasers buying residential flats has dropped to a single-digit figure. This, I fully understand. But despite an increase in the percentage of Hong Kong people buying their own homes, their actual number may drop because given the small number of flats provided, and while the percentage of new owners may have increased, their actual number may not be large. Can the Secretary tell me the exact number of Hong Kong people who have newly become property owners or first-time buyers after the introduction of the "curb" measures? This way, you can show us the exact numbers of new owners before and after the introduction of the measures.

SECRETARY FOR DEVELOPMENT (in Cantonese): President, I do not have these statistics up my sleeve, but I understand what Mr SIN Chung-kai means. I will collate the relevant information and figures and provide them to the Legislative Council. (Appendix I)

MR FREDERICK FUNG (in Cantonese): President, with regard to part (1) of the Secretary's main reply to Mr TSE's question, let me read it out here: "… the HKPHKP measure … giving priority to HKPRs … The Government will conduct a comprehensive review in due course …". When does "in due course" mean? Does it mean an appropriate time? That would mean anytime he likes. With regard to the timing of the review, the authorities will review the "details of the measure, its implementation, effectiveness and reaction, and so on, after the completion of residential developments and sale of flats at the two Kai Tak sites." Assuming that uncompleted flats can be put up for sale under the relevant property development projects, that would be at least two years from now, right? Such being the case, does it mean that the authorities must stop the HKPHKP measure in these two years? Is it that the Secretary must pacify the property developers because they do not like the HKPHKP measure?

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SECRETARY FOR DEVELOPMENT (in Cantonese): President, according to his previous remarks in the Legislative Council, Mr James TIEN, who claimed to be engaged in real estate development, said that the HKPHKP policy is actually quite well-received among real estate developers. Having said that, I think this is not the thrust of Mr FUNG's supplementary question. The key point should lie in that paragraph of my reply cited by him. President, please allow me to give a brief explanation here.

With regard to the land sale conditions and the details after the sale of the flats, certainly we can explore the areas requiring improvement in a focused manner only after the completion and sale of the flats and after transactions are actually completed. But before that, if the Government wishes to further implement the HKPHKP policy, we can still apply to other sites the conditions currently applicable to the two Kai Tak sites. Therefore, President, there is actually no question of the Government not being able to implement the HKPHKP policy during these two years.

PRESIDENT (in Cantonese): Last oral question.

Democracy and Human Rights Activists Being Refused Entry to Hong Kong

6. DR KENNETH CHAN (in Cantonese): President, earlier on, a democracy activist who arrived in Hong Kong from Taiwan was refused entry by the Immigration Department (ImmD). In the past, a number of democracy and human rights activists were also refused entry. In this connection, will the Government inform this Council:

(1) whether it currently maintains a list of democracy or human rights activists who are to be refused entry; if so, of the criteria adopted by the Government for drawing up the list, and whether it has communicated with the Central People's Government (CPG) or its offices in Hong Kong in the course of drawing up the list; if it does not maintain such a list, of the criteria based on which the ImmD refused entry of the aforesaid democracy activist;

(2) whether the ImmD refused entry of any visitors in the past three years on the basis of their political backgrounds or possible political influences that their entry might cause; if so, of the number of such LEGISLATIVE COUNCIL ─ 11 June 2014 14731

visitors who were refused entry and the details; if not, the reasons for refusing entry of a number of democracy and human rights activists in the past; and

(3) whether the CPG or its offices in Hong Kong demanded in the past the SAR Government to include certain persons in the list of persons to be refused entry; if so, of the number of such persons and the specific reasons for including them in the list?

SECRETARY FOR SECURITY (in Cantonese): President, the Administration's consolidated reply to Dr CHAN's questions is as follows.

The Government of the Hong Kong Special Administrative Region (SAR) accords measures to facilitate the entry of genuine visitors from around the world. In 2013, the number of visitors from around the world reached 54.3 million and they came to Hong Kong for purposes including visiting relatives, travelling and sightseeing, engaging in business activities, and cultural and academic exchanges, and so on. The ImmD on the one hand strives to facilitate the entry of genuine visitors, and on the other shoulders the responsibility to maintain effective immigration control in accordance with law to safeguard public interest of Hong Kong. Article 154(2) of the Basic Law stipulates that the SAR Government may apply immigration controls on entry into, stay in and departure from the Region by persons from foreign states and regions.

Pursuant to section 4(1)(a) of the Immigration Ordinance (Cap. 115), officers of the ImmD may examine any visitor on his arrival in Hong Kong. In most cases, the examinations are conducted at immigration counters. Depending on individual circumstances, ImmD officers may conduct secondary examinations in interview rooms. During the examination, the ImmD officer will consider whether the visitor meets normal immigration requirements, such as whether he possesses a valid travel document; whether he possesses a valid visa or endorsement that corresponds to his purpose of entry; whether he has the arrangements and facilities to return to his place of domicile; whether he has sufficient funds for the proposed stay; whether he has any known adverse records, and so on. Like other immigration authorities elsewhere, in addition to considering whether the visitor satisfies normal immigration requirements, the ImmD also considers whether to allow entry in light of relevant information and the individual circumstances of each case in accordance with law and prevailing policies. If a visitor does not satisfy immigration requirements, section 11 of the 14732 LEGISLATIVE COUNCIL ─ 11 June 2014

Immigration Ordinance authorizes officers of the ImmD to refuse his entry into Hong Kong after examination of a visitor.

The SAR Government will not comment on individual cases or make public information concerning individual cases. The ImmD does not have a so-called "blacklist" of persons not allowed to enter Hong Kong. I reiterate that officers of the ImmD take into account the individual circumstances of each visitor, including information gathered from examination, and act in accordance with law and prevailing policies in deciding whether to allow or refuse entry. The background of a visitor is not necessarily a reason for refusal of entry. If an individual visitor has been allowed or refused entry in the past, it does not necessarily mean that he will automatically be allowed or refused entry again.

In the past three years, that is, 2011, 2012 and 2013, the numbers of visitor arrivals refused entry into Hong Kong were 23 876, 29 792 and 37 105 respectively, accounting for 0.06% to 0.07% of the total number of visitors to Hong Kong in the relevant years. The reasons for refusal include having a doubtful purpose of visit (for example, parallel traders and Mainland pregnant women, and so on), being improperly documented or holding a forged travel document. Around 80% of those refused entry were from the Mainland, the rest were primarily from Asia-Pacific and Africa.

The SAR Government all along abides by the rule of law, and in implementing immigration control policies, also abides by the principles of "one country, two systems" and a high degree of autonomy. Like other immigration authorities elsewhere, the ImmD gathers relevant information from other immigration authorities and law-enforcement agencies to assist in the processing of entry applications and considering whether to allow entry in light of the individual circumstances of each case. This is a regular exchange between the ImmD and other authorities, and there is no question of the ImmD being intervened or affected by political considerations.

DR KENNETH CHAN (in Cantonese): President, the Secretary for Security is lying with eyes wide open. This is obviously a political concern cloaked in legal and policy considerations. He is a coward.

My question is related to Dr YANG Jianli, and it is not the first time he is refused entry. In 2011, when the Civic Party organized the seminar for the Centenary of 1911 China's Revolution, I had invited him to attend the seminar in LEGISLATIVE COUNCIL ─ 11 June 2014 14733 my personal capacity. The seminar was of an academic exchange nature, yet he was refused entry. He stayed in the airport for a couple of hours and was first repatriated to Taiwan and then he returned to the United States.

President, it is mentioned in the main reply that "the background of a visitor is not necessarily a reason for refusal of entry". What does that mean? The phrase "not necessarily" implies that it may be the case. If so, why does the Secretary not honestly admit that out of worry and fear of embarrassing the Beijing Government, civil rights activists and democracy activists are refused entry to Hong Kong for free exchanges? What a pity that he dares cite Article 154 of the Basic Law. "One country, two systems" has been compromised because of him.

SECRETARY FOR SECURITY (in Cantonese): President, I cannot agree with Dr CHAN's earlier remark about "lying with eyes wide open" at all. We answer Members' questions in the legislature according to facts. When a visitor arrives at the control point of Hong Kong, officers of the ImmD will discharge their duties of checking and examining the visitor and then make the decision according to the information collected. As I stated clearly in the main reply, if an individual visitor was allowed entry in the past, it does not mean that we do not have sufficient justification to refuse his entry at his next arrival, and the same applies vice versa.

Just now, I have set out a series of concerns which colleagues of the ImmD will consider. Dr CHAN mentioned a remark included in my main reply earlier, and I quote, "The background of a visitor is not necessarily a reason for refusal of entry". I believe Members all know that ― according to my personal experience, visitors arriving in Australia are required to fill in an arrival card and one of the questions asked is "Have you ever been sentenced to imprisonment for 12 months or more for any criminal offence". I believe if a visitor ticks his answer honestly, the immigration officer of the country will certainly consider this point. As for visitors to Hong Kong, if we know of their background, we will naturally consider it. If a visitor arriving in Hong Kong has a criminal record, it is definitely necessary for us to take this into consideration. However, it does not mean that we will refuse his or her entry after considering his or her background. Decisions are made on a case-by-case basis, for we have to consider each visitor individually based on the actual situation at the time.

14734 LEGISLATIVE COUNCIL ─ 11 June 2014

PRESIDENT (in Cantonese): Has your supplementary question not been answered?

DR KENNETH CHAN (in Cantonese): Mr YANG Jianli has been put in prison, yet for striving for democracy and human rights …

PRESIDENT (in Cantonese): Dr CHAN, please repeat your supplementary question.

DR KENNETH CHAN (in Cantonese): My supplementary question is this. According to the further explanation of the Secretary for Security, have the authorities refused entry of certain human rights activists and democracy activists out of the consideration of the possible embarrassment they may cause the Beijing Government?

PRESIDENT (in Cantonese): Secretary, do you have anything to add?

SECRETARY FOR SECURITY (in Cantonese): In considering whether a visitor will be allowed entry, we base our decision on the information available to us at hand every time. Therefore, we cannot make a sweeping conclusion on whether a visitor will be allowed entry on specified occasions. As for individual cases, the Government follows the established policy of not making comments or public discussion on individual cases.

MR CHAN KIN-POR (in Cantonese): President, in the second last paragraph, the Government said that in the past three years, over 20 000 to 30 000 visitor arrivals were refused entry, and the reasons included being improperly documented and holding a forged travel document. May I ask the Government of the actions it will take to combat the use of forged documents, such as initiating persecution or informing the countries concerned? How will the authorities prevent the use of forged travel documents for entering Hong Kong?

LEGISLATIVE COUNCIL ─ 11 June 2014 14735

SECRETARY FOR SECURITY (in Cantonese): One of the purposes of arrival examination is to ensure that visitors are holding valid and authentic travel documents. In the course of the examination, if anyone is found using improperly obtained or forged documents, we will conduct a secondary examination to confirm whether the person concerned has violated the relevant requirements under the Immigration Ordinance. If we have doubts and have obtained sufficient evidence, we will consider initiating persecution. In fact, any person being persecuted and convicted will be liable to the general sentence of imprisonment of likely over one year.

If suspected forged documents are found, we will contact the issuing authority to confirm the authenticity of the documents concerned. If the documents found are obtained illegally or unlawfully, we will initiate persecution and apply to the Court for confiscation of the documents. If Members are interested, I may arrange for Members to visit the exhibition hall of the ImmD where various types of travel documents with illegal alterations are displayed.

These acts will directly affect the immigration control of Hong Kong and will directly affect the convenient arrivals of visitors from various places. In fact, the ImmD of Hong Kong is not the only authority that attaches great importance to these acts, for all immigration authorities around the world do the same. Moreover, we maintain extremely close contact with these authorities to exchange information with them. If we notice any one trying to route through Hong Kong to other places without entering Hong Kong with documents which may be improper, we will inform the next destination and let the immigration authorities of the next destination conduct detailed examination on the visitor concerned to prevent persons holding unlawful travel documents to travel around the world.

MR IP KWOK-HIM (in Cantonese): In the second paragraph of the Secretary's reply, "Like other immigration authorities elsewhere, in addition to considering whether the visitor satisfies normal immigration requirements, the ImmD also considers whether to allow entry in light of relevant information and the individual circumstances of each case in accordance with law and prevailing policies." May I ask the Secretary whether the existing policy adopted by the ImmD in refusing the entry of certain people is similar to the international practices? Do you know whether or not other places around the world, Western countries in particular, will make relevant statements or give the reasons for refusing entry of certain people?

14736 LEGISLATIVE COUNCIL ─ 11 June 2014

SECRETARY FOR SECURITY (in Cantonese): The general policy adopted by the ImmD in refusing entry of visitors is basically in line with the policies adopted by the immigration authorities in other countries and places around the world. The difference is that certain countries require visas for entry while others offer visa-free entry. Yet in both cases, visitors will be subject to examination by immigration officers of the country when they arrive at the control point of the country. In other words, it does not mean that holders of visas issued by the relevant authorities will definitely be allowed entry. Certainly, each place has its own laws.

The Honourable Member asked just now whether other countries or places will state the reasons for refusal of entry. This requirement is adopted in a small number of countries, but most countries do not have such a requirement. I do not want to specify the countries concerned here. However, if Hong Kong people want to visit the country, they need to apply for a visa; and even if the applications for visas are refused, we will not know the reason. This is an established code of practice around the world. Certainly, colleagues of the ImmD must follow our guidelines in discharging their duties and handle each case in an impartial manner. We have been adopting this practice all along, and we will continue with such practice in future.

I would like to add one more point here. Even if a visitor has obtained a visa or an endorsement, he or she may not be allowed entry to Hong Kong. Why? Let me cite a simple example …

PRESIDENT (in Cantonese): Secretary, the content of your reply is not directly related to the supplementary question of Mr IP. Please save the time for questions from other Members.

MR LEUNG YIU-CHUNG (in Cantonese): President, the Secretary denied Dr Kenneth CHAN's accusations about the blacklist and the refusal of entry of certain people out of political concern. However, President, the fact is that many politically sensitive persons have been refused entry. This is the hard fact. When the media or the public ask for the reasons of such refusals, the Secretary or officers of the ImmD will give replies similar to the earlier one, that the authorities will not comment on individual cases. Such a practice prevents the public from knowing whether or not officers and colleagues in the ImmD have LEGISLATIVE COUNCIL ─ 11 June 2014 14737 abused their power in blocking the entry of certain people or leaving the persons concerned to be refused entry under unclear circumstances.

Therefore, President, may I ask the Secretary whether the person being refused entry will be informed by his colleagues of the reasons of the refusal and whether the person will have the opportunity to appeal? If the answer is in the negative, how can the authorities prevent power abuse or improper handling of these cases? How can the ImmD prove that there is no blacklist or that certain persons are refused entry not out of political concerns and how will it let the person concerned know that clearly?

SECRETARY FOR SECURITY (in Cantonese): President, regarding the supplementary question of Mr LEUNG, I have pointed out in my reply to Mr IP Kwok-him's supplementary question that our practice is in line with the general practice in the international community.

Second, Mr LEUNG asked whether or not a person being refused entry had the opportunity to appeal. According to section 53 of the Immigration Ordinance, any person aggrieved by the decision of the ImmD on refusing his entry may lodge an objection in writing within 14 days he is informed of the decision to the Chief Secretary for Administration, and the Chief Executive in Council will review the decision and make a ruling.

Section 53 which I mentioned just now is not made today, and it has existed since the enactment of the Immigration Ordinance in 1971. Furthermore, it is stipulated in section 53(7) that the lodging of objection does not give the person concerned the right to abode in Hong Kong pending the review and decision. The person concerned will be arranged to leave Hong Kong as soon as possible once the person concerned is notified of the decision. If the person concerned lodges objection according to law, we will act in accordance with the Ordinance.

One more point, regarding the refusal of entry of a person, there is a provision in law, namely only Immigration Officers but not colleagues of a lower rank, Immigration Assistant, are allowed to exercise this power.

14738 LEGISLATIVE COUNCIL ─ 11 June 2014

PRESIDENT (in Cantonese): Mr LEUNG, has your supplementary question not been answered?

MR LEUNG YIU-CHUNG (in Cantonese): No, it has not been answered. President, I would like to ask about a point clearly … I would like the Secretary to clarify it for I think it is not clear. He said that the arrangement was in line with the international established practice. Yet I want to know whether ImmD officers will give an explanation or reasons to the aggrieved persons in cases where individuals are refused entry? If not, how can the individual concerned lodge an appeal?

SECRETARY FOR SECURITY (in Cantonese): I have pointed out earlier that we will not state the reasons generally.

PRESIDENT (in Cantonese): This Council has spent more than 22 minutes on this question.

(Dr Kenneth CHAN stood up)

PRESIDENT (in Cantonese): Dr CHAN, what is your point?

DR KENNETH CHAN (in Cantonese): President, you stopped the Secretary from making a long speech earlier. I would like to ask via the President whether Mr IP Kwok-him's supplementary question was prepared and handled with the assistance of the Security Bureau. Did they plot the act here to waste our time?

MR IP KWOK-HIM (in Cantonese): Dr CHAN's remark is insulting.

PRESIDENT (in Cantonese): Dr CHAN, the point you raised is not a point of order. Oral questions end here.

LEGISLATIVE COUNCIL ─ 11 June 2014 14739

WRITTEN ANSWERS TO QUESTIONS

Rezoning of a Site Near Hong Kong Science Park to Residential Use

7. MR RONNY TONG (in Chinese): President, I have recently received complaints from some members of the public who allege that in an attempt to increase the supply of residential sites, the Government has been grabbing land blindly in various districts, including putting forward a proposal to rezone a site of some 8 hectares at Pak Shek Kok (East) in Tai Po from "Other Specified Uses" annotated "Science Park" to "Residential (Group B) 6" for medium-density residential development (hereinafter referred as "the rezoning proposal"). Such members of the public have expressed the concerns that upon completion of the residential development on the site involved in the rezoning proposal, the resultant increase in population will overload the infrastructure and ancillary transport facilities in areas around Pak Shek Kok, and that the rezoning proposal will also hinder the development of the Hong Kong Science Park (Science Park). In this connection, will the Government inform this Council:

(1) whether it has conducted any comprehensive district consultation on the rezoning proposal; if it has, of the resident groups and local stakeholders consulted;

(2) given that some residential developments at Pak Shek Kok (East) are under construction, whether the Government has consulted the prospective residents of such residential developments on the rezoning proposal; if it has, of the mode of consultation;

(3) given that the site involved in the rezoning proposal was originally reserved for the Phase 4 Development of the Science Park, whether the Government consulted the tenants of the Science Park on the rezoning proposal; if it did, when such consultation was conducted and of the views of the tenants; whether the Government has reserved another site for the expansion of the Science Park; if it has, of the details; if not, the reasons for that; and

(4) of the projected number of residents upon completion of the residential developments on the site involved in the rezoning proposal; whether it has made any improvement to the infrastructure and ancillary transport facilities in areas around Pak Shek Kok in light of such increase in population and the future development of the Science Park; if it has, of the details?

14740 LEGISLATIVE COUNCIL ─ 11 June 2014

SECRETARY FOR DEVELOPMENT (in Chinese): President, to cope with the continuous housing needs of the public and achieve the new housing target of providing 470 000 public and private housing units in the coming 10 years, the Government is adopting a multi-pronged strategy to increase land supply in the short, medium and long term, through the continued and systematic implementation of a series of measures. In the Policy Address and the relevant papers submitted to the Legislative Council, the Government has mapped out in detail the multi-pronged land supply measures, including making optimal use of developed land as far as practicable and creating new land for development. The 2013 Policy Address states that Policy Bureaux should act decisively to optimize the use of land and make available as soon as possible sites for housing development or other uses that meet the more pressing needs in the community when the originally intended uses of the sites are not required anymore.

The Pak Shek Kok site was originally reserved for the expansion of the Science Park by the Hong Kong Science and Technology Parks Corporation (HKSTPC). Nevertheless, the Science Park Phase 3 will be completed by stages from this year to 2016. Upon completion, the gross floor area of the Science Park will increase by about 105 000 sq m to meet the demand for floor area arising from research and development (R&D) activities in the foreseeable future. In parallel, the HKSTPC is looking for ways to make further optimal use of its existing land to meet the future development needs of the Science Park. Under such circumstances, the Commerce and Economic Development Bureau considers that the site is not needed for the expansion of the Science Park in the short to medium term. The Government will closely monitor the occupancy rate of the Science Park, and the Planning Department (PlanD) will assist in identifying other suitable sites for R&D and related uses as and when necessary. In the long term, sites have been reserved in the Kwu Tung North New Development Area (NDA), Lok Ma Chau Loop area and Hung Shui Kiu NDA for such uses.

Given that the Pak Shek Kok site is not needed for the expansion of the Science Park in the short-to-medium term while the community has a pressing need for housing land, and that land in other areas has been planned for R&D and related uses in future, the Government considers it imperative to make optimal use of the Pak Shek Kok site for development as soon as possible instead of leaving it vacant for a long time. Upon review of the development potential of the site, the Government considers it appropriate to rezone the Pak Shek Kok site to "Residential (Group B) 6" for medium-density private residential development. LEGISLATIVE COUNCIL ─ 11 June 2014 14741

The rezoning proposal is being taken forward in accordance with the statutory planning procedures.

I reply to the four-part question as follows:

(1) to (3)

The PlanD consulted the Environment, Housing and Works Committee (EHWC) of the Tai Po District Council (TPDC) on 13 February 2014 on the rezoning of the Pak Shek Kok site. EHWC had no objection to the proposed rezoning of the site for residential use, but some DC members raised concerns about the long-term development of the Science Park and the local public transport facilities at the meeting.

On 21 February 2014, the PlanD submitted the rezoning proposal, together with the views of the TPDC, to the Rural and New Town Planning Committee (the Committee) of the Town Planning Board (TPB) for consideration. With the agreement of the Committee to the rezoning proposal, the Draft Pak Shek Kok (East) Outline Zoning Plan No. S/PSK/12, which had incorporated the amendment item, was published for exhibition from 7 March 2014 to 7 May 2014 in accordance with section 5 of the Town Planning Ordinance by the TPB. During the publication period, the public and the parties concerned may make representations to the TPB. The TPB will process all representations and comments received in accordance with the Town Planning Ordinance and the established procedures. The Outline Zoning Plan together with all the representations and comments received will then be submitted to the Chief Executive in Council for approval.

Separately, the Innovation and Technology Commission (ITC) met Mr Charles Peter MOK and representatives of the tenants of the Science Park on 30 May 2014 to seek the views of the tenants on the rezoning proposal. The ITC explained the reasons for releasing the Pak Shek Kok site for other developments and the Government's measures on providing office/laboratory floor areas for R&D uses in the short-to-medium term. The tenants' representatives indicated 14742 LEGISLATIVE COUNCIL ─ 11 June 2014

that a written submission would be made to the ITC which would reflect their views to the PlanD.

(4) The Government estimates that the Pak Shek Kok site is capable of providing about 3 400 residential units, accommodating a population of around 9 100. When reviewing whether the site is suitable for housing development, the Government has made an overall consideration of a series of relevant factors, including the location of the site, local characteristics, traffic, environment, recreational and community facilities, as well as urban design, and so on. The relevant government departments, including the Transport Department (TD), Environmental Protection Department and Leisure and Cultural Services Department, are of the view that the rezoning proposal will not cause significant adverse impacts upon the area in terms of traffic, environment, and recreational and community facilities.

Regarding supporting transport facilities, there is currently a public transport interchange in the area serving the local residents. According to the TD, the existing traffic arrangement in Pak Shek Kok allows drivers to route through Chong San Road or Science Park Road directly to Tolo Highway for going to other destinations. The Tolo Highway is an express highway and the section near Pak Shek Kok is a dual carriageway with four lanes. According to the TD's assessment, the relevant section of the highway is capable of coping with the peak-hour traffic arising from current and planned development projects.

In addition, about 10.6 hectares of land in the Pak Shek Kok area are zoned "Open Space", including the waterfront promenade along Tolo Harbour adjacent to the residential areas and Science Park, which can meet the needs of the existing and additional population. A piece of land within the area has been reserved for school use. Government, Institution and Community facilities, including a fire station cum ambulance depot and a fire fighting tug pier, have also been planned in the northern part of the area. The community facilities in Tai Po, including libraries and clinics, can also meet the needs of the residents in Pak Shek Kok.

LEGISLATIVE COUNCIL ─ 11 June 2014 14743

Standard of Bus Services of Franchised Bus Companies

8. MR MA FUNG-KWOK (in Chinese): President, regarding the standard of the bus services of various franchised bus companies, will the Government inform this Council:

(1) whether it has conducted any survey on the situation of lost bus trips of various franchised bus companies in 2013; if it has, of the overall rate of lost trips, and set out a breakdown by bus company and the District Council (DC) district from which the bus routes start;

(2) of the number of complaints concerning franchised bus services received by the Government in 2013 and, among such complaints, the number of those involving lost trips; and

(3) given that when it responded in January this year to the Direct Investigation Report of the Office of The Ombudsman, Hong Kong, on "Mechanism of Transport Department for Monitoring the Frequencies of Franchised Bus Services", the Government undertook to review the definition of lost bus trips and the current system of sanctions, of the progress of and the timetables for such reviews?

SECRETARY FOR TRANSPORT AND HOUSING (in Chinese): President, given franchised bus service is closely related to the daily life of the public, the Government has always been very concerned about the reliability of such service. The Transport Department (TD) has all along been closely monitoring the level of franchised bus service through various channels (such as operational records, regular investigations and passengers' complaints/suggestions). The TD and franchised bus companies would also review the prevailing measures from time to time with a view to further enhancing the quality of franchised bus service.

Major reasons for lost trips in franchised bus service include shortage of bus captains, shortage of buses due to repairs and maintenance, mechanical breakdown of vehicles and road congestion or traffic accidents, and so on. The TD has all along been closely monitoring and following up on deviation from service schedules and lost trips. With the TD's directive for improvement and franchised bus companies' active implementation of rectification measures, the lost trip situation has improved considerably since mid-2012. The TD will 14744 LEGISLATIVE COUNCIL ─ 11 June 2014 continue with its efforts to facilitate and monitor service improvement by franchised bus companies.

My reply to the three parts of Mr MA Fung-kwok's question is as follows:

(1) The average lost trip rate of franchised bus service in Hong Kong was about 2.6% in 2013. The overall average lost trip rate of each franchised bus company in that year ranged from 0.1% to 2.8% as tabulated below. Lost trip rate refers to the rate of the difference between actual bus trips and scheduled trips.

Franchised bus company(1) Overall average lost trip rate KMB 2.8% NWFB 2.6% Citybus (F1) 2.0% LW 1.4% Citybus (F2) 1.0% NLB 0.1% Overall lost trip rate in Hong Kong 2.6%

Note:

(1) KMB: The Kowloon Motor Bus Company (1933) Limited NWFB: New World First Bus Services Limited Citybus (F1): Citybus Limited (Franchise for Hong Kong Island and cross-harbour bus network) Citybus (F2): Citybus Limited (Franchise for Airport and North Lantau bus network) LW: Long Win Bus Company Limited NLB: New Lantao Bus Company (1973) Limited

The breakdown of lost trip rate in 2013 by DCs in which the bus routes terminate is at Annex. There are two terminating points for each bus route (except for circular routes). The lost trip rate would be reflected under both DCs. Further, some lost trips are caused by circumstances beyond the control of bus companies. Such circumstances include traffic congestion.

(2) In 2013, the TD received a total of 16 759 views(2) on franchised bus service (that is, about 12 cases per million franchised bus

(2) Views include complaints and suggestions. A member of the public may express the same view through different channels, resulting in double-counting of the number of cases. LEGISLATIVE COUNCIL ─ 11 June 2014 14745

passengers) from the Transport Complaints Unit under the Transport Advisory Committee and 1823 Call Centre. Among these views, 7 524 of them are about irregular bus service(3) (that is, about five cases per million franchised bus passengers), representing about 40% of all views received.

(3) The Ombudsman's Direct Investigation Report released in January this year pointed out that there was room for improvement to the TD's mechanism for monitoring the frequencies of franchised bus service. Its recommendations include reviewing the definition of lost trips of franchised buses as well as the current sanction regime. The TD is following up on these recommendations. As regards the definition of lost trips, the lost trip rates now being calculated on a daily basis are reliable. Yet, in view of The Ombudsman's recommendations, the TD and franchised bus companies are discussing how the lost trip situation could be presented more clearly (such as further showing lost trip rates by different time periods) so that the public could better understand the performance of franchised bus service.

On the sanction regime, the Government has already put in place a vigorous and fair statutory and administrative mechanism to closely monitor the service provided by franchised bus companies. As far as statutory arrangements are concerned, if a franchised bus company fails to provide a proper and efficient public bus service in accordance with the requirements under the law and its franchise, the Executive Council may impose a fine on the company or revoke its right to operate any specified routes or its franchise altogether according to the law. As for administrative arrangements, the TD will normally follow up on a franchised bus company's non-compliance with the TD's requirements regarding service delivery in writing. If the company fails to provide a reasonable explanation or make improvement, the TD will remind the operator the need to maintain a satisfactory and efficient public bus service and to implement improvement measures within a specified period of time in writing again. Depending on the persistence and severity of each case, the TD may issue warning letters in respect of lost trips

(3) Deviation from service schedules and lost trips are both categorized as "irregular bus service". 14746 LEGISLATIVE COUNCIL ─ 11 June 2014

of individual routes or the overall situation and require the company to make improvement by a specified time. Franchised bus companies always take the TD's reminders and warning letters very seriously and will make improvement as directed in a proactive manner.

In deciding whether to change the current sanction arrangements, we have to take into account that buses have to share road space with other road users. There are thus numerous occasions whereby bus service will be affected by external factors (such as traffic congestion, emergency situation on the road, and so on). From an operational point of view, there would be considerable difficulty in trying to determine precisely whether delays or lost trips are due to factors which fall under a bus company's responsibility or to apportion responsibility with a view to imposing sanctions. In studying whether changing the current sanction arrangements is feasible and meritorious, we shall make reference to the experience of other places. We expect to complete the study within the second half of this year and will report to the Legislative Council afterwards.

Annex

Average lost trip rate of franchised bus service in 2013 (breakdown by DCs in which the bus routes terminate)

District Average lost trip rate Central and Western 2.5% Wan Chai 2.5% Southern 2.3% Eastern 2.7% Kwun Tong 2.8% Wong Tai Sin 3.0% Kowloon City 3.9% Yau Tsim Mong 3.7% Sham Shui Po 3.5% Kwai Tsing 2.7% LEGISLATIVE COUNCIL ─ 11 June 2014 14747

District Average lost trip rate Tsuen Wan 3.0% Tuen Mun 2.7% Yuen Long 2.0% North 2.0% Tai Po 2.3% Sha Tin 2.4% Sai Kung 2.1% Islands 1.0%

Notes:

(1) The average lost trip rate for each district is calculated based on the bus routes terminating in the district. Routes which only pass through the district are being excluded.

(2) There are two terminating points for each bus route (except for circular routes). The lost trip rate would be reflected under both DCs.

Monitoring Safety of Water Sports Activities

9. MISS ALICE MAK (in Chinese): President, it is learnt that quite a number of water sports centres under/recognized by national sports associations of water sports (NSAs) and yacht clubs organize various training programmes on water sports such as windsurfing, sailing and canoeing, and provide relevant gear for hiring by members of the public. As there have been accidents involving the use of such gear and a child even drowned while attending such a programme, there are views that the authorities should put in place a regulatory mechanism, including the introduction of a licensing system for water sports centres, so as to ensure the safety of participants in water sports. In this connection, will the Government inform this Council:

(1) whether it knows the information on the water sports centres under/recognized by various NSAs, including their names, locations, the institutions to which they belong and the types of training programmes they provide;

(2) whether it knows the number and details of water sports accidents involving the water sports centres mentioned in part (1) in the past 14748 LEGISLATIVE COUNCIL ─ 11 June 2014

10 years, including the causes of such accidents, the resultant casualties and the names of the centres involved;

(3) whether it knows if various NSAs have formulated safety requirements in respect of the water sports training programmes and the hiring of the relevant gear; if they have, of the following details of such requirements: (i) the number of lifeguards, (ii) the number of lifeboats, (iii) the safety gear that the lifeboats are required to be equipped with, (iv) the qualifications of coaches, (v) the ratio of coaches to students, (vi) the waters for practice, (vii) swimming proficiency required of the participants, (viii) the qualifications that hirers of such gear are required to have attained and the waters that they are allowed to enter for doing water sports, and (ix) the number of inspections of the water sports centres conducted by representatives of NSAs; if no safety requirements have been formulated, the reasons for that, and whether the authorities will introduce measures to enhance the awareness of NSAs of water sports safety;

(4) whether the authorities will discuss with various NSAs and study the setting up of a licensing system for water sports centres, so as to enhance water sports safety;

(5) as it has been reported that the programmes provided by some NSAs to water sports coaches for licence renewal are incomprehensive, for example, some of these programmes only involve viewing reference videos, whether the authorities received any complaint about such programmes in the past 10 years; if they did, of the follow-up actions taken by the authorities and the responses given by the relevant NSAs; and

(6) given that the water sports centres under the Leisure and Cultural Services Department (LCSD) require that hirers of craft must be holders of relevant certificates and be proficient in swimming, whether the authorities will consider requiring water sports centres and gear rental shops to follow the practice of the LCSD and stipulate qualifications for hiring water sports gear; if not, of the authorities' measures to ensure the safety of hirers?

LEGISLATIVE COUNCIL ─ 11 June 2014 14749

SECRETARY FOR HOME AFFAIRS (in Chinese): President,

(1) The LCSD currently manages five water sports centres, namely the Tai Mei Tuk Water Sports Centre (WSC) in Tai Po, the Chong Hing WSC and the Jockey Club Wong Shek WSC in Sai Kung, and the St. Stephen's Beach WSC and the Stanley Main Beach WSC in Southern District. All the water sports centres are teaching centres or schools recognized by the Hong Kong Sailing Federation (HKSF) and the Windsurfing Association of Hong Kong (WAHK). The centres employ qualified coaches of the relevant "national sports associations" (NSAs), as required under the training schemes and guidelines of the two NSAs, to provide sailing and windsurfing training from basic to advanced levels as well as skills clinics, and to organize marine excursions for the public. As for canoeing, the Hong Kong Canoe Union (HKCU) has not put in place arrangements similar to those made by the HKSF and the WAHK and hence does not designate any local water sports centres as a recognized teaching centre or school. The five water sports centres managed by the LCSD follow the safety instructions and guidelines issued by the HKCU when organizing and conducting canoe training programmes, and ensure compliance with the requirements of the HKCU.

(2) Between 2004 and 2013, there were 143 accidents at the five water sports centres managed by the LCSD. The accidents fall into the following two broad categories: (i) users feeling unwell; (ii) users accidentally injured whilst operating a boat or board or paddling. A breakdown of the accidents by centre and by type is set out in the table below:

Number of accidents Name of User feeling User accidentally water sports centre unwell injured Tai Mei Tuk WSC 5 25 Chong Hing WSC 11 13 The Jockey Club Wong 2 20 Shek WSC 14750 LEGISLATIVE COUNCIL ─ 11 June 2014

Number of accidents Name of User feeling User accidentally water sports centre unwell injured Stanley Main Beach WSC 2 21 St. Stephen's Beach WSC 9 35 Sub-total: 29 114 Total: 143

In addition, there were two fatal accidents in 2010 and 2012, at the Stanley Main Beach WSC and the Jockey Club Wong Shek WSC respectively, when member of the public became ill and fell into the water whilst windsurfing, and were rescued from the water. In both cases, the victims were given first aid and sent to hospital by the staff of the water sports centres, but finally succumbed despite attempted resuscitation.

(3) All five water sports centres managed by the LCSD apply for recognition from the HKSF and the WAHK every year as teaching centres or schools. Both NSAs have set standards and requirements for compliance by such centres and schools, which cover land-based ancillary facilities, sports equipment, teaching aids, communication equipment, first aid kits and rescue boat equipment. The relevant staff members of the centres and schools also need to possess recognized qualifications in teaching, first aid and rescue boat operation. As for the operation of the centres and schools, both NSAs require that coaches follow the training syllabuses and schedules, coach-to-student ratio and safety guidelines as laid down by the NSAs when teaching or conducting sailing and windsurfing activities. The HKSF and the WAHK carry out regular inspections on the water sports centres managed the LCSD, with the HKSF conducting inspections at least once every two years, and the WAHK making annual inspections. Canoeing activities at the LCSD water sports centres are conducted in accordance with the requirements of the relevant NSA in respect of coaches' qualifications, coach-to-student ratio, equipment for paddling, training syllabus, safety guidelines for paddling and points to note for sea trips, so as to ensure compliance with the requirements of the NSAs.

LEGISLATIVE COUNCIL ─ 11 June 2014 14751

All water sports centres managed by the LCSD follow the guidelines issued by the relevant NSAs and employ qualified coaches to provide water sports training to the public. Participants in training programmes and craft hirers at the water sports centres are required to stay within designated waters. In addition, lifeguard services are provided at the water sports centres. Apart from the lifeguards stationed on the shore, there are patrolling lifeguards on power boats to assist craft users on the sea.

(4) At present, we have no plans for a licensing system for water sports centres. As mentioned above, the operation of the five water sports centres under the LCSD management, including their activities and safety guidelines, is in line with the guidelines issued by the relevant NSAs, and applications are made to the relevant NSAs for recognition annually.

(5) In the past 10 years, the LCSD has not received any complaint about the syllabus of the programmes for the renewal of water sports certificates for coaches.

(6) Members of the public should pay attention to their own safety and that of others when engaged in water sport. To enhance public awareness of water sport safety issues, the LCSD organizes an annual Water Sports Safety Seminar jointly with the related departments, marine recreational associations, water sports enthusiasts and representatives of the industry to promote water sport safety through concerted efforts by the industry and the public. With the approach of summer, the LCSD will step up publicity to promote water sport safety.

Regulation of Chinese Medicines with Ingredients from Bear Gall Bladders

10. MS CLAUDIA MO (in Chinese): President, the Protection of Endangered Species of Animals and Plants Ordinance (Cap. 586) (PESAPO) aims to give effect in Hong Kong to the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES). The sale of proprietary Chinese medicines containing ingredients from bear gall bladders on the Mainland is subject to control by the State Forestry Administration and the Ministry of 14752 LEGISLATIVE COUNCIL ─ 11 June 2014

Health, and the Key Wild Animals under State Priority Protection published by the State Council has also included black bear as one of the wild animals under priority protection. Nevertheless, I have learnt that raising black bears in captivity and inhumanely "extracting bear bile from live bears" are common practices on the Mainland. In this connection, will the Government inform this Council:

(1) of the details of the information about the ingredients from bear gall bladders which drug dealers are required to submit to the authorities in applying for the import of Chinese medicines containing such ingredients; whether such information includes the names of the countries exporting those ingredients, the types of bears involved, as well as the method adopted for extracting the ingredients from bear gall bladders; if so, of the details; if not, whether it will consider requiring drug dealers to submit the relevant information before they may import the products concerned, so as to observe the CITES principles;

(2) of the latest information on products containing ingredients from bear gall bladders (including Chinese herbal medicines, proprietary Chinese medicines and other derivative products) currently registered and on sale in Hong Kong, including the names of the relevant products, their registration numbers, ingredients, places of production, volume of import in the past three years, and the names of the pharmaceutical manufacturers concerned;

(3) given that the results of the researches conducted by some Chinese medicine bodies show that there are at least 54 kinds of herbs which have similar medicinal effects (that is, clearing heat and jaundice, as well as calming the liver and improving acuity of vision) as that of bear gall bladders, for example, Caulis Hederae Sinensis, Taraxacum Mongolicum, Chrysanthemum, Sage, Radix et Rhizoma Rhei, Lonicera Japonica, Fructus Forsythiae, Rhizoma Coptidis, Chrysanthemum Indicum, and so on, whether the authorities have studied the feasibility of banning the sale of Chinese herbal medicines and proprietary Chinese medicines that contain ingredients from bear gall bladders; if so, of the details; if not, whether they will do so; and

LEGISLATIVE COUNCIL ─ 11 June 2014 14753

(4) given that the Chief Executive had promised to a black bear concern group before assuming office that he would consider following up with the Central Authorities the issue of black bear abuse on the Mainland, that the Legislative Council Panel on Health Services passed a motion at its meeting on 14 May 2012 "That this Panel requests the Government to legislate against the sale or import in Hong Kong of Chinese herbal medicines or proprietary Chinese medicines which contain ingredients from bear gall bladders extracted with any inhumane method", and that some research results have shown that there are alternatives to products made with bear gall bladders, whether the authorities took any follow-up actions in respect of the Chief Executive's promise and the aforesaid motion in the past two years; if so, of the details; if not, the reasons for not having commenced the legislative proceedings and when they will take follow-up actions?

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

(1) According to the Chinese Medicine Ordinance (Cap. 549) (CMO), all proprietary Chinese medicines must be registered with the Chinese Medicines Board (CMB) under the Chinese Medicine Council of Hong Kong before they can be imported, manufactured or sold in Hong Kong. To be registered, all proprietary Chinese medicines must meet the registration requirements prescribed by the CMB regarding their safety, quality and efficacy. In addition, the CMB requires that all applicants for proprietary Chinese medicine registration should comply with the CMO and their proprietary Chinese medicines should fulfil the requirements of other laws in Hong Kong, including the PESAPO which aims to bring the CITES into effect in Hong Kong. The objective of the CITES is to strengthen trade controls through adoption of effective measures among governments of the contracting parties, so as to effectively protect the endangered species of wild fauna and flora and to ensure that the sustainable use of wild fauna and flora will not be affected by international trade.

As such, registered proprietary Chinese medicines containing ingredients from bear gall bladders should also comply with the PESAPO, including the relevant licensing requirements. According to the record of the Agriculture, Fisheries and Conservation 14754 LEGISLATIVE COUNCIL ─ 11 June 2014

Department (AFCD), for the proprietary Chinese medicine products which contain ingredients from bear gall bladders and imported into Hong Kong in the past three years according to the requirements of the PESAPO, the bear gall bladders of which were all obtained from brown bears (Ursus arctos) of Russia, which are one of the species listed in Appendix II to the CITES (that is, species not presently threatened with extinction but trading of which should be controlled to protect them from the risk of extinction). Chinese herbal medicines, proprietary Chinese medicines and products containing ingredients of species listed in Appendix II to the CITES must be imported into Hong Kong together with CITES licences issued by the exporting countries for inspection by authorized officers at the time of their entry into Hong Kong. For such items to be exported from Hong Kong, export licenses must be obtained in advance from the AFCD. As required by the CITES, an export licence should be issued by a competent authority of the exporting country only if the specimen was legally obtained and the export would not be detrimental to the survival of the species.

(2) Information about proprietary Chinese medicine products which contain ingredients from bear gall bladders and are currently registered and sold in Hong Kong is set out in the Annex.

(3) It is generally considered in the Chinese medicine field that bear gall bladders have significant efficacy in the treatment of critical, acute, serious and rare or complex illnesses, playing an important role in Chinese medicine clinical treatment. The clinical effects of bear gall bladders in the treatment mentioned above cannot be substituted by other herbal medicines, and no artificially synthesized substitutes are available at the moment.

The CMB has discussed the use of bear gall bladders in proprietary Chinese medicines. Having considered the uniqueness of the medicinal properties, functions and usage of bear gall bladders and the balance between animal rights and utilization of natural resources, the CMB currently accepts the use of bear gall bladders as active ingredients of proprietary Chinese medicines for medical treatment, provided that the products meet the requirements of the CMO, the PESAPO and the CITES. It should be noted that the CMB only accepts the use of bear gall bladders as active ingredients of proprietary Chinese medicine products for therapeutic purpose, LEGISLATIVE COUNCIL ─ 11 June 2014 14755

but not for health protection purpose. The CMB will continue to closely keep in view international developments about the medicinal value and use of bear gall bladders, and continue to require the medicine traders concerned to comply with the CMO and other laws in Hong Kong.

(4) As mentioned in the Administration's written reply dated 15 February 2013 to the Panel on Health Services of this Council, given that the process of obtaining bear gall bladders or bile is carried out in places outside Hong Kong and that the manufacture and supply of proprietary Chinese medicines generally involve multiple stages, it is therefore difficult to monitor the various stages in the supply chain, including the method of obtaining bear gall bladders, in Hong Kong. The Administration would also like to clarify that the CITES and the PESAPO do not impose regulation on the methods of collecting specimens of endangered species.

Annex

Information about proprietary Chinese medicine products which contain ingredients from bear gall bladder (as at 29 April 2014)

Product Name of Trade Ingredients of Product Registration Product Name Registration Mark (As shown on the Label) No. Holder/Applicant 1. HKP00244 LION JAPAN ONLY DISPLAYED ENG AN GOLDEN KI-O CHINESE VERSION ON TRADING CO PILLS THE LABEL# 2. HKP00245 KING JAPAN ONLY DISPLAYED ENG AN GOLDEN KI-O CHINESE VERSION ON TRADING CO PILLS THE LABEL# 3. HKP00249 NV JAPAN ONLY DISPLAYED ENG AN GOLDEN KI-O CHINESE VERSION ON TRADING CO PILLS THE LABEL# 4. HKP01658 GOLD KINSHINTAN ANTLER, ORIENTAL ENG AN DOOR BEZOAR, TOAD TRADING CO VENOM, BEAR BILE, GINSENG, GLYCYRRHIZA, PEARL 14756 LEGISLATIVE COUNCIL ─ 11 June 2014

Product Name of Trade Ingredients of Product Registration Product Name Registration Mark (As shown on the Label) No. Holder/Applicant 5. HKP01869 NV KINSHINTAN ANTLER, ORIENTAL ENG AN BEZOAR, TOAD TRADING CO VENOM, BEAR BILE, GINSENG, GLYCYRRHIZA, PEARL 6. HKP01872 DELIGH KINSHINTAN ANTLER, ORIENTAL ENG AN T BEZOAR, TOAD TRADING CO VENOM, BEAR BILE, GINSENG, GLYCYRRHIZA, PEARL 7. HKP04783 - ROKUSHIN ONLY DISPLAYED KWONG TAI - GANA CHINESE VERSION ON PHARMA THE LABEL# COLOGICAL TRADING COMPANY LIMITED 8. HKP12725 FIRST EISYUNGAN ONLY DISPLAYED HUNG WIN BRAND (STRONG CHINESE VERSION ON TRADING SIMDEN THE LABEL# COMPANY TONIC PILLS) LIMITED 9. HKP12726 SEN WOO EISYUNGAN ONLY DISPLAYED HUNG WIN (STRONG CHINESE VERSION ON TRADING SIMDEN THE LABEL# COMPANY TONIC PILLS) LIMITED 10. HKP12729 DRAGON EISYUNGAN ONLY DISPLAYED HUNG WIN BRAND (STRONG CHINESE VERSION ON TRADING SIMDEN THE LABEL# COMPANY TONIC PILLS) LIMITED 11. HKP12730 FLYING EISYUNGAN ONLY DISPLAYED HUNG WIN DRAGON (STRONG CHINESE VERSION ON TRADING SIMDEN THE LABEL# COMPANY TONIC PILLS) LIMITED 12. HKP12731 TOYO EISYUNGAN ONLY DISPLAYED HUNG WIN (STRONG CHINESE VERSION ON TRADING SIMDEN THE LABEL# COMPANY TONIC PILLS) LIMITED LEGISLATIVE COUNCIL ─ 11 June 2014 14757

Product Name of Trade Ingredients of Product Registration Product Name Registration Mark (As shown on the Label) No. Holder/Applicant 13. HKP12732 TAO WO EISYUNGAN ONLY DISPLAYED HUNG WIN (STRONG CHINESE VERSION ON TRADING SIMDEN THE LABEL# COMPANY TONIC PILLS) LIMITED 14. HKP12734 NICHIWA EISYUNGAN ONLY DISPLAYED HUNG WIN (STRONG CHINESE VERSION ON TRADING SIMDEN THE LABEL# COMPANY TONIC PILLS) LIMITED 15. HKP12735 CHIN EISYUNGAN ONLY DISPLAYED HUNG WIN LUNG (STRONG CHINESE VERSION ON TRADING SIMDEN THE LABEL# COMPANY TONIC PILLS) LIMITED 16. HKP14001 - BILE POWDER BILE POWDER PAK SHING TONG MANUFACTORY LIMITED 17. HKP00774* CHUAN LARYNGITIS RHIZOMA COPTIDIS, KULIN MEDICAL JIANG PAI PILLS PULVIS CORNUS MANUFACTORY KULIN BUBALI (O/B HONOUR BRAND CONCENTRATUS, ESSENCE BUFONIS VENENUM, TRADING MARGARTA LIMITED) (MARGARIA), PROCESSED BORACIUM, COW-BEZOAR (ARTIFICIAL), GALLA CHINENSIS, ASARI RADIX ET PHIZOMA (PHIZOMA), AND SO ON 18. HKP14919* - DIE DA JI JIU ONLY DISPLAYED SWISS DAN CHINESE VERSION ON TREASURE THE LABEL# HEALTH SUPPLEMENT LIMITED 14758 LEGISLATIVE COUNCIL ─ 11 June 2014

Product Name of Trade Ingredients of Product Registration Product Name Registration Mark (As shown on the Label) No. Holder/Applicant 19. HKNT05784* HUI CHINEOC NOTOGINSENG RADIX HONG KONG SHENG DNNG ET RHIZOMA, HUI SHENG DRACONIS SANGUIS, MEDICAL BOVIS CALCULUS LIMITED ARTIFACTUS, CROCI STIGMA, CARTHAMI FLOS, (PROCESSED) RHEI RADIX ET RHIZOMA, (PROCESSED) OLIBANUM, (PROCESSED) MYRRHA, BORNEOLUM SYNTHETICUM, MARGARITA, AND SO ON

Notes:

* The label of such product has not listed bear gall bladder as its active ingredient. According to the Chinese Medicines Regulation (Cap. 549F) (the Regulation), if the proprietary Chinese medicines is composed of three or more kinds of active ingredients, the names of more than half of the total number of kinds of active ingredients must be listed. However, the Regulation does not specify the kinds of active ingredients which must be listed.

# According to the Regulation, the particulars on the labels, including the active ingredients, are required to be set out at least in Chinese only.

Prevention of Young Students from Being Sexually Assaulted by Tutors

11. MR CHAN KIN-POR (in Chinese): President, in recent years, cases have occurred from time to time in which tutors of tutorial or interest classes offered by tutorial schools or education centres (hereinafter referred as "private educational institutions") and private tutors sexually assaulted young students. In this connection, will the Government inform this Council:

(1) of the number of cases in the past three years of tutors of private educational institutions and private tutors allegedly sexually LEGISLATIVE COUNCIL ─ 11 June 2014 14759

assaulting students, and the respective numbers of such cases in which the tutors concerned were prosecuted and convicted, as well as the sentences imposed on the convicted persons by the Court;

(2) of the annual numbers of employers, since the implementation of the Sexual Conviction Record Check Scheme (the Scheme) in December 2011, applying for checking whether their prospective employees had any sexual conviction record and, among them, the number of those which were private educational institutions; whether it has conducted any study on revising the Scheme to allow employers to check if their serving employees have such records and parents to check if the private tutors they intend to hire have such records; if it has conducted such a study, of the progress; if not, the reasons for that;

(3) whether it has put in place any mechanism (for example, the imposition of fines or cancellation of the relevant licences) to penalize those private educational institutions which have failed to implement appropriate preventive measures, thus resulting in their students being sexually assaulted by the tutors employed by them; if it has, of the details; if not, the current monitoring measures to ensure that students of such institutions are protected from sexual assaults, and whether it will conduct a study on the feasibility of implementing a penalty mechanism;

(4) whether it has any plan to establish a registration system for tutors, under which persons who have committed sexual offences will be denied registration as tutors; if it has such a plan, of the details; if not, the reasons for that; and

(5) whether it has stepped up public education to increase the alertness to guard against sexual assaults among students attending tutorial and interest classes, as well as their parents, and issued guidelines to private educational institutions to assist them in implementing measures for protecting students from sexual assaults; if it has, of the details; if not, the reasons for that?

14760 LEGISLATIVE COUNCIL ─ 11 June 2014

SECRETARY FOR EDUCATION (in Chinese): President,

(1) The Hong Kong Police Force do not maintain relevant figures.

(2) At present, all institutions providing services for children or mentally incapacitated persons (MIPs) can make use of the Sexual Conviction Record Check (SCRC) Scheme when engaging persons or service providers to undertake work that requires frequent contact with children or MIPs, so as to ascertain whether the applicants have any criminal conviction records against a specified list of sexual offences. The Scheme aims to help reduce the risk of sexual abuse to children or MIPs and give them better protection.

Applications for the check should be submitted by the prospective employees voluntarily to the SCRC Office of the Hong Kong Police Force. Up to end 2013, the SCRC Office has processed a total of around 75 000 new applications for checking and around 5 900 renewal applications. Details are as follows:

New Application Renewal Application 201 (December)

1 1 185 201 (November and December) 38 321 2 243 201 35 423 5 655 3

The Administration does not keep breakdown of the number of applicants by the various sectors.

At this stage the Scheme is not applicable to existing employees and the private tutors hired by parents. Depending on the processing capacity of the Scheme, the Administration is currently in active consideration of the proposal to gradually expand the scope of the Scheme to cover existing employees engaged in child or MIP-related work, with the initial idea to first extend the service to the contract renewal staff of private tutorial centres and interest/activity institutions. The Administration will communicate with the stakeholders in relation to the proposal, in a bid to extend the SCRC LEGISLATIVE COUNCIL ─ 11 June 2014 14761

service in the near future to the existing staff who need to renew their contract in these private institutions.

(3) According to the Education Ordinance, the Permanent Secretary for Education may cancel the registration or provisional registration of a school if it appears to the Permanent Secretary for Education that the school is not being managed satisfactorily, or that the education of the students is not being promoted in a proper manner.

(4) The Education Bureau has no plan to establish a separate registration system for tutors. As a matter of fact, the Education (Exemption) (Private Schools Offering Non-formal Curriculum) Order provides that a person who has been convicted of a sexual offence may not teach in an exempted school (including a tutorial school) unless the person is a registered teacher or has a permit to teach.

(5) On prevention and handling of child abuse (including sexual abuse) incidents, the Social Welfare Department has compiled the Procedural Guide for Handling Child Abuse Cases which provides guidance to government departments, non-governmental organizations and other concerned sectors for reference to professionals whose work brings them into close contact with children. In addition, the Education Bureau has issued a circular to all the schools urging them to pay close attention to the welfare and safety of students. Schools are advised to keep an eye on the behaviour and emotion of students for early identification of whether they have been abused, including sexually abused, and provision of necessary assistance. The Education Bureau has also provided schools with procedures for handling child sexual abuse cases involving school personnel. In parallel, the Education Bureau has developed an online resource platform through which relevant information is disseminated to parents to help them instil a sense of self-protection in their children to protect them against sexual assaults. All the information has been uploaded onto the Education Bureau's website for parents' and public reference. Moreover, the Education Bureau organizes talks or seminars annually to raise the awareness of the teachers and social workers about protecting students against sexual assaults, and advise them on early identification, intervention and support of student victims. On these talks and seminars, teachers and social workers are also urged 14762 LEGISLATIVE COUNCIL ─ 11 June 2014

to keep abreast of the latest crime-related news at the community and district levels and make use of their professional knowledge to remind parents the need to protect their children against sexual assaults at parent education activities.

The Government has attached great importance to students' awareness of self-protection. On educating the students, sex education and safety awareness are covered in different Key Learning Areas and subjects of the pre-primary, primary and secondary curricula. Topics such as understanding the body, identifying inappropriate physical contact, how to say no and seek help are included in the Personal Growth Education of primary schools. The Education Bureau encourages schools to organize sex-related preventive and developmental guidance activities for students at weekly assemblies or in class teacher lessons to teach students how to protect their bodies, say no when they feel offended and seek help when they run into trouble.

Facilities Provided at Railway Stations for Passengers

12. DR CHIANG LAI-WAN (in Chinese): President, quite a number of members of the public have relayed to me that while the railway is the major mode of transport of Hong Kong, passenger facilities provided at railway stations are not comprehensive. In this connection, will the Government inform this Council:

(1) as it has been reported that the MTR Corporation Limited (MTRCL) has planned to invest $1 billion to implement a series of service enhancement measures which include upgrading of station facilities, whether the Government has found out the relevant details from the MTRCL; if it has, of the details, together with a tabulated breakdown of such information by MTR station; if not, whether it will expeditiously find out the relevant details from the MTRCL;

(2) whether it knows the progress of the MTRCL's plan to retrofit public toilets at those interchange stations not yet provided with such facilities, and the expected completion dates of such works, together with a tabulated breakdown of such information by MTR station;

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(3) as the MTRCL has indicated that it is difficult to retrofit public toilets at non-interchange stations due to technical problems, whether the Government has enquired with the MTRCL about the situation and explored solutions to such problems so that the relevant works can be proceeded with; if it has, of the details; if not, the reasons for that;

(4) whether it has assessed the effectiveness of the MTRCL's promotional activities targeted at its passengers on (i) offering seats to passengers in need and (ii) giving priority to passengers in need of using the lifts connecting the ground level and the platform; if the assessment outcome is in the negative, whether the Government will, in collaboration with the MTRCL, review the relevant promotional activities and take improvement measures; and

(5) as quite a number of residents in Kowloon West have relayed to me that some areas in certain railway stations (for example, Exits A and B of Hung Hom Station as well as Exits A and C of Cheung Sha Wan Station) have poor ventilation and the stuffy air there has caused passengers to feel sick, whether the Government has enquired with the MTRCL about the situation and explored solutions to such problems; if it has, of the details; if not, the reasons for that?

SECRETARY FOR TRANSPORT AND HOUSING (in Chinese): President, my reply to the various parts of the question raised by Dr CHIANG Lai-wan is as follows:

(1) Since the launch of the "Listening‧Responding" programme in 2012, the MTRCL has invested over $1 billion to enhance train services and station facilities. Up to now, apart from operating more than 1 600 additional train trips per week, the MTRCL has provided a number of additional facilities inside stations, including wide gates, benches, public toilets and lifts, for greater convenience and comfort of passengers.

Currently, there is at least one wide gate in every MTR station. Under the "Listening‧Responding" programme, the MTRCL has completed adding 52 wide gates at different stations and providing 326 benches at station platforms and along passageways that are 14764 LEGISLATIVE COUNCIL ─ 11 June 2014

relatively long. The installation of these two types of facilities provides further convenience to passengers, especially the elderly, wheelchair users and passengers with luggage or prams.

(2) As for the issue of public toilets, of the 83 stations operating daily(1), 41 of them (including all stations along the Airport Express, Disneyland Resort Line, East Rail Line(1), West Rail Line and Ma On Shan Line as well as some stations along Tung Chung Line and Island Line) are equipped with public toilets, among which 10 are interchange stations (including East Tsim Sha Tsui Station, Mei Foo Station, Quarry Bay Station, Hong Kong Station, Tsing Yi Station, Sunny Bay Station, Hung Hom Station, Kowloon Tong Station, Tai Wai Station and Nam Cheong Station), and 31 of them are non-interchange stations. As for the 10 interchange stations not yet equipped with public toilets, the MTRCL will retrofit them with public toilets during major refurbishment projects. The MTRCL indicates that three busy interchange stations at Mong Kok, Prince Edward and Admiralty will be retrofitted with public toilets by end 2015. As for the remaining seven interchange stations, including Tsim Sha Tsui Station, Yau Ma Tei Station, Lai King Station, Central Station, North Point Station, Yau Tong Station and Tiu Keng Leng Station, public toilets will be provided by end 2020.

The MTRCL explains that most of the railway stations along the urban lines were built in the '70s and '80s of the last century. Due to shorter travelling distances of usually around 30 minutes at the time and given that toilet facilities were usually available in most commercial buildings and shopping malls in urban areas, public toilets were therefore not included in the station design of that era. In fact, retrofitting public toilets in existing stations in operation is a complex alteration project. The Corporation has carried out a detailed study on the feasibility of retrofitting public toilets in existing stations. The findings are that there exist considerable technical difficulties, including capacity of the sewage system, proximity of high voltage equipment and requirement of installing a separate ventilation system.

(1) Racecourse Station does not operate daily, hence not included. The station does not have public toilet, but there are public toilets at the Racecourse next to it. LEGISLATIVE COUNCIL ─ 11 June 2014 14765

The MTRCL points out that it usually takes just a walk of about 200 m or around four minutes from the stations without public toilets to the nearest public toilets nearby.

The MTRCL informs passengers by means of various channels of the locations of the nearest public toilets. On the street maps inside stations, the locations of public toilets in nearby shopping malls, commercial buildings, and those provided by the Government within a 200-metre or four-minute walk from stations are shown. Relevant information is also available on the MTRCL's website . Passengers in need may also approach station staff for using staff toilets. Notices have been posted at station platforms and outside station control rooms in the concourse to inform passengers that they may approach station staff for assistance if necessary.

In future, the MTRCL will provide public toilet facilities inside or near stations when designing and planning new railway lines or extensions of existing railway lines (such as the West Island Line). However, their locations will still be subject to the actual geographical environment of individual stations, the neighbourhood's views on the at-grade locations of public toilets and ventilation shafts, and so on.

(3) and (4)

As for the lifts, their current installation status inside the 83 MTR stations operating daily is as follows:

(i) seventy-five stations already have proper arrangements, as the station concourse and at-grade level are either connected by lifts or that the station concourse is at-grade where lifts are not necessary;

(ii) for the remaining eight stations not yet provided with lifts connecting the station concourse with at-grade level, lift retrofitting works have started at five of them (that is, Prince Edward Station, Admiralty Station, Sai Wan Ho Station, Yau Ma Tei Station and Shau Kei Wan Station) for expected completion by batches within two years for public use;

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(iii) the remaining three stations are at Tin Hau, Fortress Hill and Diamond Hill. Lifts at Diamond Hill Station will be built in tandem with the works of the Shatin to Central Link. For Fortress Hill Station, the MTRCL plans to modify two existing at-grade Government-owned lifts (connecting the street level with the top of the hill) to extend them downward to the underground station concourse. For the retrofitting of lift at Tin Hau Station, the MTRCL has studied many different options, but yet to identify a suitable location for the lift due to geographical, ownership and technical constraints. The MTRCL is still striving to look for a feasible option for retrofitting lift at Tin Hau Station;

(iv) besides, the MTRCL will also provide one additional lift each at Lai Chi Kok Station, Lai King Station and Tsim Sha Tsui Station. Retrofitting works have commenced.

To encourage the culture of passengers offering seats and caring for people in need, the MTRCL has since 2009 designated certain seats inside train compartments on all railway lines as "priority seats". At present, there are two "priority seats" inside every compartment on all trains of Tsuen Wan Line, Kwun Tong Line, Island Line, Tseung Kwan O Line, Tung Chung Line, West Rail Line, East Rail Line and Ma On Shan Line. More "priority seats" are being introduced gradually for Light Rail vehicles. For easy identification, these seats are painted in red and marked with a sticker with smiley face. As for the Airport Express and Disneyland Resort Line, "priority seats" are not designated given their lower patronage as compared with other railway lines. The MTRCL will keep in view the situation, and will designate "priority seats" on these two railway lines as necessary.

To further promote the culture of courtesy and encourage passengers' thoughtfulness for others, the MTRCL has launched a "Lift Priority and User Queuing Trial". Red stickers and arrows are placed on the ground in front of the doors of designated lifts inside all stations operating daily, so as to encourage passengers to let the needy, such as the elderly, disabled (including wheelchair users) and people with prams or heavy luggage to use the lifts first.

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The MTRCL has been promoting "priority seats" and the "Lift Priority and User Queuing Trial", and through various publicity and education events each year remind passengers of being courteous when using MTR services. The Corporation will, via various means, continue to disseminate to passengers the message of offering seats and being polite and considerate to others. Indeed, after the launch of the programmes, the MTRCL has noted a greater awareness of courtesy among passengers.

(5) Currently, Entrances/Exits A and B of Hung Hom Station, situated at the mid-level platform of the station, are connected with a pedestrian link which adopts a natural ventilation design similar to other pedestrian accesses of the same type. The pedestrian link is now equipped with fans, exhaust fans, and cooling devices at some locations. If necessary, station staff will open windows to maintain air ventilation of the pedestrian link. The MTRCL will continue to closely monitor the air flow of the pedestrian link and regularly deploy staff to clean and check all ventilation facilities to ensure that they are in good condition and normal operation. The Corporation will also examine the feasibility of installing additional fans, exhaust fans and cooling devices.

As for Cheung Sha Wan Station, the station concourse is now air-conditioned. Over 40 fans are installed on the ceiling of the pedestrian links at Entrances/Exits A and C, with a number of wall fans at Entrance/Exit A. The MTRCL regularly deploys staff to check the fans at various entrances/exits and arranges cleaning by contractors to ensure that they are in good condition and normal operation. The Corporation will also examine the feasibility of installing additional fans, exhaust fans and cooling devices.

Aircraft Noise Mitigating Measures

13. MR ALBERT CHAN (in Chinese): President, in reply to my question at the meeting of this Council of 29 May 2013, the Government indicated that to minimize the impact of aircraft noise on the districts near the flight paths, the Civil Aviation Department (CAD) had implemented a series of aircraft noise mitigating measures, which included implementing a new set of flight procedures to reduce the noise impact of aircraft on the areas over which they flew when 14768 LEGISLATIVE COUNCIL ─ 11 June 2014 departing to the northeast of the airport, in accordance with the balanced approach to aircraft noise management promulgated by the International Civil Aviation Organization. Yet, I have learnt that aircraft noise during the hours between 11 pm to 7 am the next day still often causes nuisance to the residents of quite a number of housing estates, making it difficult for them to fall asleep. In this connection, will the Government inform this Council:

(1) of the monthly data recorded between January 2013 and May 2014 by various aircraft noise monitoring terminals on aircraft noise levels which reached 70 to 74, 75 to 79, and 80 decibels (dB) or above during the aforesaid hours;

(2) of the types of aircraft with noise levels reaching 80 dB or above last year, and the names of the airline companies to which such aircraft belonged; and

(3) whether it will further enhance the existing aircraft noise mitigating measures to reduce the nuisance caused to residents in the districts concerned; if it will, of the details?

SECRETARY FOR TRANSPORT AND HOUSING (in Chinese): President, our reply to the various parts of Mr Albert CHAN's question is as follows:

(a) The CAD has 16 noise monitoring terminals. The aircraft noise events recorded by these terminals in 2013 and 2014 (up to April) by month are set out in Annex 1. The data for May 2014 are pending verification and thus not available at the moment.

(b) The types of aircraft with noise events of 80 dB or above in 2013 and the operating airlines concerned are set out in Annex 2.

(c) The CAD has implemented a series of aircraft noise mitigating measures in accordance with the balanced approach to aircraft noise management promulgated by the International Civil Aviation Organization (ICAO). These measures include requiring aircraft to avoid overflying populated areas, to adopt the noise abatement departure procedures prescribed by the ICAO during take-off and the Continuous Descent Approach for landing, and so on, in the small hours as far as possible. Since February 2012, the CAD has LEGISLATIVE COUNCIL ─ 11 June 2014 14769 implemented a new set of flight procedures that aim to allow aircraft which could use satellite-based navigation technology in their flights to adhere closely to the nominal centre line of the flight track when departing to the northeast of the Hong Kong International Airport (HKIA) and making south turn to the West Lamma Channel, thereby keeping the aircraft at a distance away from the areas in the vicinity of the flight paths, and reducing the impact of aircraft noise on these areas.

At present, only aircraft complying with the noise standards in Chapter 3 of Volume I, Part II of Annex 16 to the Convention on International Civil Aviation (Chapter 3 noise standards) are allowed to land and take off in Hong Kong. This requirement is comparable to other major international airports. To strengthen the abovementioned aircraft noise mitigating measure, starting from late March 2014, the CAD no longer allows aircraft which are marginally compliant with the Chapter 3 noise standards to land and take off in Hong Kong between 11 pm and 7 am the following day. The CAD is making plans to extend this measure to the time interval between 7 am to 11 pm, with effect from late October 2014.

Meanwhile, the Airport Authority Hong Kong is exploring the feasibility of introducing aircraft noise charges on the basis of the 24-hour operation of the HKIA, and with reference to the guidelines relating to aircraft noise charges issued by the ICAO. The aviation industry and the stakeholders will be consulted accordingly.

With the advancement of aviation technology, aircraft engines are quieter than before, and the improvement in the design of airframe has also helped reduce noise significantly. The CAD has been requesting airlines to introduce newer models of aircraft to replace the older ones, and to deploy quieter aircraft for night time operations. Airlines have taken actions accordingly, and progress has been made. The ratios of newer-model aircraft in airlines' fleets are on the rise. The CAD will continue to monitor the progress made by the airlines in their aircraft fleet replacement and their deployment of quieter aircraft for night time operations, as well as the effectiveness of the measures.

14770 LEGISLATIVE COUNCIL ─ 11 June 2014

Annex 1

Noise Events Recorded by the Noise Monitoring Terminals in 2013 and 2014 (up to April) (during 2300 hours to 0700 hours the following day)

Noise Monitoring Noise Level 2013 2014

Terminal (dB) Jan Feb Mar Apr May Jun Jul Aug Sep Oct Nov Dec Jan Feb Mar Apr

1. Mei Lam Estate, 70-74 0 0 1 0 5 3 2 5 0 0 0 0 0 0 0 0

Tai Wai 75-79 0 0 0 0 0 0 0 4 0 0 0 0 0 0 0 0

≥80 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0

2. On Yam Estate, 70-74 0 2 3 6 38 44 47 54 3 1 0 0 0 0 1 0

Kwai Chung 75-79 0 0 0 0 2 0 0 2 1 0 0 0 0 0 0 0

≥80 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0

3. Yiu Tung Estate, 70-74 0 0 4 7 0 1 7 1 2 1 0 1 0 0 1 1

Shau Kei Wan 75-79 0 0 0 1 0 0 0 0 0 0 0 0 0 0 0 0

≥80 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0

4. Beverly Height, 70-74 0 0 6 7 0 1 7 6 0 0 1 2 0 0 1 2

Cloud View Road, 75-79 0 0 1 1 0 0 0 0 0 0 0 0 0 0 1 0

North Point ≥80 0 0 0 0 0 0 0 0 1 0 0 0 0 0 0 0

5. Fairmont Gardens, 70-74 0 0 0 0 1 0 0 2 1 0 0 0 0 0 0 0

Conduit Road, 75-79 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0

Mid-Levels ≥80 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0

6. Hong Kong 70-74 240 127 201 217 347 506 262 418 154 115 171 182 199 108 188 119

Garden, Tsing 75-79 41 19 26 14 17 30 14 39 11 11 12 22 19 12 33 9

Lung Tau ≥80 2 1 1 1 3 3 2 1 0 2 0 0 1 0 2 0

7. Sha Lo Wan, 70-74 251 382 378 418 366 283 335 406 416 368 - - - - - 134

Lantau(1) 75-79 41 60 82 75 43 41 46 82 66 54 - - - - - 18

≥80 7 11 6 6 8 0 7 5 5 5 - - - - - 0

8. Caribbean Coast, 70-74 287 159 200 133 48 56 61 67 99 90 170 176 206 126 71 81

Tung Chung 75-79 7 10 9 12 4 4 5 13 15 4 23 3 15 29 4 20

≥80 0 1 0 0 1 0 0 3 2 0 1 0 1 0 0 0

9. Ma Wan Marine 70-74 13 5 19 40 195 306 108 274 50 4 10 9 15 1 33 22

Control Centre, 75-79 1 0 2 0 8 5 3 4 1 0 0 2 1 1 0 0

Ting Kau ≥80 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0

10. Park Island, Ma 70-74 709 421 639 582 555 515 666 543 488 515 468 588 577 401 544 403

Wan 75-79 164 73 106 116 106 94 125 86 80 77 107 132 105 70 164 84

≥80 20 13 16 10 8 6 3 7 6 9 10 14 10 10 30 6 LEGISLATIVE COUNCIL ─ 11 June 2014 14771

Noise Monitoring Noise Level 2013 2014

Terminal (dB) Jan Feb Mar Apr May Jun Jul Aug Sep Oct Nov Dec Jan Feb Mar Apr 11. Tai Lam Chung 70-74 18 14 8 6 6 2 2 2 1 2 - 12 10 23 35 9 Tsuen(2) 75-79 0 0 1 1 0 0 0 0 0 0 - 0 3 1 4 0 ≥80 1 0 0 0 0 0 0 0 0 0 - 0 0 0 0 0 12. Greenview Court, 70-74 0 0 5 6 34 81 34 14 27 3 0 0 0 0 - 10 Yau Kom Tau, 75-79 0 0 0 0 1 1 0 0 0 0 0 0 0 0 - 0 Tsuen Wan(3) ≥80 0 0 0 0 0 0 0 0 0 0 0 0 0 0 - 0 13. Cheung Hang 70-74 0 3 10 17 97 119 111 102 6 3 0 0 0 0 2 0 Estate, Tsing Yi 75-79 0 0 1 0 2 4 1 5 5 3 0 0 0 0 0 0 ≥80 0 0 0 0 0 0 0 2 0 0 0 0 0 0 0 0 14. Siu Ho Wan 70-74 625 348 547 408 283 212 302 269 325 346 351 369 383 285 250 206 MTRC Depot, 75-79 36 23 31 24 10 6 18 11 25 21 20 26 7 14 16 17 Sunny Bay ≥80 1 1 1 0 0 0 0 1 0 0 0 1 0 1 0 0 15. Mount Butler 70-74 0 0 0 1 0 1 2 7 2 0 1 0 0 0 2 6 Road, Jardine's 75-79 0 0 0 0 0 0 0 3 1 0 0 0 0 0 0 0 Lookout ≥80 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 16. Mount Haven, Liu 70-74 0 1 8 8 15 14 31 30 5 ------To Road, Tsing 75-79 0 1 0 1 0 1 3 2 0 ------Yi(4) ≥80 0 0 1 0 0 0 0 1 0 ------

Notes:

(1) No noise data was collected between 25 October 2013 and 7 April 2014 at the noise monitoring terminal in Sha Lo Wan due to equipment outage.

(2) No noise data was collected between 13 November 2013 and 9 December 2013 at the noise monitoring terminal in Tai Lam Chung Tsuen due to equipment outage.

(3) No noise data was collected between 5 March 2014 and 26 March 2014 at the noise monitoring terminal in Greenview Court due to equipment outage.

(4) No noise data was collected between 26 September 2013 and 18 December 2013 as well as from 5 January 2014 onwards at the noise monitoring terminal in Mount Haven due to equipment outage.

Annex 2

Aircraft Types with Noise Events of 80 dB or above Recorded and Their Operating Airlines (from 1 January to 31 December 2013) (during 2300 hours to 0700 hours the following day)

Airlines Aircraft Type AHK Air Hong Kong Airbus A300-600 Boeing B747-400 14772 LEGISLATIVE COUNCIL ─ 11 June 2014

Airlines Aircraft Type AirBridge Cargo Airline Boeing B747-400 Atlas Air Boeing B747-400 Cargolux Airlines International Boeing B747-400 Boeing B747-8 Cargolux Italia Boeing B747-400 Cathay Pacific Airways Airbus A330-300 Airbus A340-300 Boeing B747-400 Boeing B777-300 Boeing B777-300ER Emirates Airline Boeing B747-400 Boeing B777-200LR Ethiopian Airlines McDonnell Douglas MD-11 EVA Airways Airbus A321 Hong Kong Airlines Airbus A330-200 Airbus A330-300 Jet Airways Airbus A330-300 K-Mile Air Boeing B727-200 Kalitta Air Boeing B747-200 Boeing B747-400 KLM Royal Dutch Airlines Boeing B747-400 Korean Air Boeing B747-400 Malaysia Airlines Airbus A380-800 Nippon Cargo Airlines Boeing B747-400 Polar Air Cargo Boeing B747-400 Boeing B747-8 Qatar Airways Airbus A330-200 Saudi Arabian Airlines Boeing B747-400 Boeing B747-8 Silk Way West Airlines Boeing B747-400 Singapore Airlines Airbus A380-800 Singapore Airlines Cargo Boeing B747-400 Transmile Air Services Boeing B727-200 UPS Parcel Delivery Services Boeing B747-400 McDonnell Douglas MD-11

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Conduct of Carbon Audits and Disclosure of Relevant Information by Listed Companies

14. MR FREDERICK FUNG (in Chinese): President, it has been reported that the London Stock Exchange of the United Kingdom requires all listed companies to submit carbon emission reports on their business operations. Separately, according to a report on carbon performance of the listed companies in Hong Kong published earlier, only 10% of the listed companies in the Hang Seng Composite Index (HSCI) have published formal carbon reports, while none of the 1 221 listed non-HSCI companies has any form of disclosure on carbon emissions. In this connection, will the Government inform this Council:

(1) whether it knows the existing regulation by The Stock Exchange of Hong Kong (SEHK) and the Securities and Futures Commission on the conduct of carbon audits (including the calculation method of carbon emissions) by listed companies and on the disclosure of the relevant information by listed companies; and of the present situation of the conduct of carbon audits and disclosure of the relevant information by listed companies;

(2) as some members of the finance industry have relayed that when investing in listed companies, quite a number of investors and asset management companies will consider the environmental impacts and carbon emissions generated by the business operations of such companies, whether the authorities will follow the practice of the London Stock Exchange to expeditiously regulate carbon audits and reporting by listed companies and require listed companies to submit carbon emission reports on their business operations; if they will not, of the reasons for that; and

(3) whether it knows if the various statutory bodies (for example, the Hong Kong Monetary Authority and the Hong Kong Housing Authority (HA)) currently consider, apart from investment returns and risk factors, the performance of the investment objects in terms of environmental protection and carbon emissions when they make investment decisions for funds under their management; if they do, of the weightings of such considerations; if not, the reasons for that, and whether the authorities will consider requiring the statutory bodies to consider such factors when making investment decisions?

14774 LEGISLATIVE COUNCIL ─ 11 June 2014

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

(1) The SEHK published in December 2011 a consultation paper on "Environmental, Social and Governance Reporting Guide" (the ESG Guide) and published in August 2012 the consultation conclusions. The ESG Guide was incorporated into the Listing Rules of the Main Board and the Growth Enterprise Market of SEHK in January 2013. Section B1 of the ESG Guide relates to disclosure of general information and specific Key Performance Indicators of "Emissions" (see Annex). Currently, the ESG Guide is a recommended practice, that is, compliance with the Guide is voluntary. To assist listed companies in ESG reporting, the SEHK has been actively providing them with various types of training, including holding seminars and posting webcasts on the SEHK website. SEHK also provides relevant resource materials on its website, including hyperlinks to relevant external websites.

The Environmental Protection Department (EPD) has developed a carbon footprint repository in the form of a dedicated website and issued invitations in December 2013 to encourage all listed companies in Hong Kong to use the online carbon footprint repository to disclose their carbon performance and to share successful experience in carbon management and practices. The SEHK also issued letters to all listed companies supporting the EPD's carbon footprint repository of listed companies for encouraging disclosure of carbon emission information.

Since compliance with the ESG Guide is voluntary, the SEHK does not currently have data on the listed companies' carbon audits and their disclosure of related information. To prepare for the consultation mentioned in Section 2 of this reply, the SEHK plans to conduct the first statistical survey on the basis of the ESG reports published by listed companies in 2014.

In addition, the EPD will launch the carbon footprint repository in 2014-2015, and by then, the public would be able to know more about the number of private enterprises that have participated in carbon auditing.

LEGISLATIVE COUNCIL ─ 11 June 2014 14775

(2) The SEHK is preparing for a consultation next year to seek market views on strengthening the ESG regulatory requirements. The intention is to upgrade some of the current voluntary provisions to "comply or explain". This means that a listed company must comply with the relevant provisions and if it deviates from the provisions, it must give considered reasons in its interim or annual reports. Issues including environmental protection and carbon emission quantity will be covered in the consultation.

(3) In managing their capital, statutory bodies will plan for investment in accordance with their own statutory objectives and investment targets. For example, the statutory objective of the Exchange Fund is to maintain Hong Kong's currency and financial stability. Its primary aims of investment are principal protection and high liquidity of assets. Therefore, performance of environmental protection and carbon emissions is generally not a main consideration in its investment. For the HA, around 55% of its funds are invested in principal protection placements with the Exchange Fund. As for the other investments, the HA's fund managers will closely monitor market situations from time to time and consider the relevant factors to make appropriate investment decisions. While the investment strategy of the HA does not include factors relating to environmental protection and carbon emission, in all the HA's development projects in recent years, the Carbon Emission Estimation method has been adopted at design stage to identify carbon emissions reduction opportunities and to set achievable reduction goals through the assessment of six aspects, viz, construction materials, structural materials, communal building services installation, renewable energy, tree planting and demolition.

In addition, the Government has been taking positive actions to engage private and public organizations (including statutory bodies) in carbon reduction actions. The EPD has provided carbon audit guidelines as well as capacity-building support for the respective organizations to adopt regular carbon auditing practices.

14776 LEGISLATIVE COUNCIL ─ 11 June 2014

Annex

Extracted from Appendix 27 to the Listing Rules of the Stock Exchange of Hong Kong:

B. Environmental protection

Aspect B1 Emissions

General disclosure Information on: (a) the policies; and (b) compliance and material non-compliance with relevant standards, rules and regulations on air and greenhouse gas emissions, discharges into water and land, generation of hazardous and non-hazardous wastes, and so on. Air emissions include NOx, SOx, and other pollutants regulated under national laws and regulations. Greenhouse gases include carbon dioxide, methane, nitrous oxide, hydrofluorocarbons, perfluorocarbons and sulphur hexafluoride. Hazardous wastes are those defined by national regulations.

Key Performance The types of emissions and respective Indictor (KPI) B1.1 emissions data.

KPI B1.2 Greenhouse gas emissions in total (in tonnes) and where appropriate, intensity (for example, per unit of production volume, per facility).

KPI B1.3 Total hazardous waste produced (in tonnes) and where appropriate, intensity (for example, per unit of production volume, per facility).

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KPI B1.4 Total non-hazardous waste produced (in tonnes) and where appropriate, intensity (for example, per unit of production volume, per facility).

KPI B1.5 Description of measures to mitigate emissions and results achieved.

KPI B1.6 Description of how hazardous and non-hazardous wastes are handled, reduction initiatives and results achieved.

Future Fuel Mix for Electricity Generation

15. MR KENNETH LEUNG (in Chinese): President, the Environment Bureau released in March this year the Future Fuel Mix for Electricity Generation Consultation Document to launch a public consultation on two fuel mix options (consultation options). One of the options is the "grid-purchase option", under which more electricity will be imported through purchasing electricity from the China Southern Power Grid Co. Limited (CSG) of the Mainland, and the other is the "local generation option", under which more natural gas will be used for local electricity generation. In this connection, will the Government inform this Council:

(1) whether the Government had, before putting forth the two consultation options, conducted detailed studies on the feasibility of other options; if it had, of the details, and the justifications for putting forth the two consultation options only;

(2) as the Secretary for the Environment has indicated that the "grid-purchase option" could be regarded as the first step for opening up the electricity market, but some scholars have pointed out that this could not be regarded as a genuine opening up of the electricity market since electricity bought from CSG would still need to be transmitted to the public through the power grids of the two power companies in Hong Kong (two power companies), whether the Government had, before putting forth the two consultation options, studied how such options could facilitate the opening up of 14778 LEGISLATIVE COUNCIL ─ 11 June 2014

the electricity market and introduction of competition (for example, the implementation of segregation of the generation sector from the network sector and the introduction of a third power company); if it had, of the details;

(3) given that it has been reported that the consultant commissioned by the Government to conduct the study on the Feasibility of Purchasing Electricity from CSG was formerly under a subsidiary of the CSG, whether the Government will publish those contents of the related consultancy report which do not involve sensitive business information; if it will, when it will do so; if not, of the reasons for that; whether the Government will commission an independent consultant to conduct a study and risk assessment on the reliability of the CSG supplying electricity to Hong Kong; if it will, of the details;

(4) as the local generation option will involve using more natural gas for electricity generation, whether the Government has any plan to allow the two power companies to build more infrastructure facilities for electricity generation by natural gas (including liquefied natural gas receiving terminals, and so on) and make other investment in related technology under that option; if it does, of the details and the estimated costs; if not, the reasons for that;

(5) whether it has conducted any study on the fluctuations in the price of and the demand for natural gas on the Mainland and the impacts of such fluctuations on the two consultation options; if it has, of the details; and

(6) of the respective target ratios of the use of renewable energy (including waste-to-energy) in the overall fuel mix of the two consultation options, and whether such ratios are different from that recommended in the public consultation document on "Hong Kong's Climate Change Strategy and Action Agenda" released by the Environment Bureau in 2010; if the ratios are different, of the reasons for that; whether it has conducted any comprehensive review on the cost-effectiveness of the existing renewable energy power generation projects which have already been developed (including the impacts of technological development on cost reduction in the long run); if it has, of the details?

LEGISLATIVE COUNCIL ─ 11 June 2014 14779

SECRETARY FOR THE ENVIRONMENT (in Chinese): President,

(1) It is the Government's energy policy to ensure safe, reliable and efficient energy supply at reasonable prices while minimizing the environmental impact caused by electricity generation. Having considered various factors, the Government has promulgated two fuel mix options for public consultation, with a view to providing a basis to plan for our electricity infrastructure in the next decade.

Other than the two options put forward, we have also considered other options, including the possibility of importing more electricity by dedicated transmission lines. We consider that purchase from the power grid will allow Hong Kong to gain access to multiple sources of supply on a grid-to-grid basis, thereby enabling us to achieve a higher degree of fuel diversification and allowing Hong Kong to tap into clean fuel sources otherwise not available for use by us now, for example, hydro power. The grid purchase option is also more flexible in meeting future electricity demand.

(2) The current Scheme of Control Agreements signed between the Government and the two power companies will expire in 2018. We are reviewing the overall development of the electricity market after 2018. Public views on the future fuel mix will provide important considerations for the review. The implementation of the grid purchase option mentioned in the fuel mix consultation document would involve the construction of cross boundary electricity transmission network, and details on the legal, technical, financial and other implications regarding the use of power grid. Subject to detailed information available from further studies, we consider that the grid purchase option may in principle provide more room to introduce more supply sources to the electricity market, thereby enhancing competition and choices.

(3) During the review of the future fuel mix, the Environment Bureau commissioned a consultancy study by the Guangdong Electric Power Design Institute (GEDI) to ascertain the feasibility of importing electricity from the Mainland power grid. We consider the GEDI an appropriate consultant given its years of experience in power system planning in the Mainland, and its knowledge of the planning 14780 LEGISLATIVE COUNCIL ─ 11 June 2014

and development of the CSG. The GEDI is independent of the CSG in terms of organization structure and operation. We have considered the key findings of the consultancy in preparing the public consultation document and duly reflected them in the document. Disclosing the report incompletely without the commercially sensitive and confidential content may result in incorrect interpretation. We therefore have no plan to publish the report. Also, the above study is only a preliminary feasibility study. If it is necessary to study further the option of importing more electricity through grid purchase, detailed technical studies would be conducted to ascertain that import from the CSG would be able to meet the supply reliability requirement of Hong Kong.

(4) All along, we have been conducting stringent assessment of the two power companies' investment proposals on generation systems and ancillary facilities, including gas receiving facilities and gas generation units. If the two power companies submit to us relevant capital investment proposals for constructing natural gas infrastructure facilities, storage facilities, liquefied natural gas terminals, other gas supplying technologies, and so on, we will as always perform our gate-keeping role and critically assess the two power companies' proposals in respect of their need, timing and cost with a view to avoiding excessive, premature, unnecessary or unreasonable investments, as well as to balancing the energy policy objectives of safety, reliability, affordability and environmental performance.

(5) There are divergent views in respect of the forecasts of future natural gas prices. In the past few years, natural gas prices in the Asian region have increased by three to four times. In formulating the two fuel mix options, we have already taken into account natural gas prices in the past and latest international analyses. We consider that over-reliance on natural gas will increase the susceptibility of electricity tariffs to price volatility of natural gas and have set out the relevant analysis in the consultation document.

(6) The generation of certain forms of renewable energy requires natural resources, such as solar, wind and hydro power. However, the physical environment of Hong Kong has imposed a lot of constraints LEGISLATIVE COUNCIL ─ 11 June 2014 14781

on the wide application of such renewable energy resources. Not only is it costly but its room for development is also limited. Generally speaking, electricity generation cost of renewable energy is a few times higher than that of traditional electricity generation. Therefore, our current policy is to adopt solar or wind facilities for demonstration purpose, subject to their cost-effectiveness and meeting operational needs. On the other hand, waste-management facilities can also turn waste into renewable energy. We have covered in the "Hong Kong: Blueprint for Sustainable Use of Resources 2013-2022" and "A Food Waste & Yard Waste Plan for Hong Kong 2014-2022" a number of waste-to-energy facilities including sludge treatment facility, integrated waste management facility, and a network of organic waste treatment facilities. With regard to the projects already completed and being planned, we estimate that the share of renewable energy from waste will make up about 1% of total electricity demand by the early 2020s. References to renewable energy in the consultation document have already taken into account the updated development and information.

Impacts of Reducing Mainland Visitor Arrivals

16. DR LAM TAI-FAI (in Chinese): President, given the public concern about the impacts of the continuous growth in Mainland visitor arrivals on people's livelihood, the Chief Executive indicated earlier that the Government was looking into means to adjust the growth in visitor arrivals and the composition of visitors, and would announce the outcome as soon as possible after discussions with the Central Authorities and relevant Mainland departments. Meanwhile, the Chief Executive earlier brought up for discussion, at a meeting of the Commission on Strategic Development, the issue of reducing Mainland visitor arrivals by 20%, which has aroused concerns among various sectors after the media reported on the issue. In addition, the Hong Kong Retail Management Association has expressed its worry that reducing Mainland visitor arrivals by 20% will tarnish Hong Kong's image as "a hospitable city", affect the livelihood of retail workers, and impact on Hong Kong's overall economic development. Moreover, an article published earlier in the Overseas Edition of People's Daily has pointed out that if the number of Mainland visitors coming to Hong Kong under the Individual Visit Scheme (IVS) is deliberately reduced through policies, Hong Kong's tourism receipts will drop markedly, and it is estimated that a reduction in the number of same-day visitors coming to Hong 14782 LEGISLATIVE COUNCIL ─ 11 June 2014

Kong on the one-year multiple-entry Individual Visit Endorsements (multiple-entry permits) alone may result in a decrease of $10 billion in Hong Kong's annual tourism receipts, as well as 10 000 people losing their jobs. In this connection, will the Government inform this Council:

(1) of the respective numbers of Mainland visitors coming to Hong Kong on "multiple-entry permits" and "exit endorsements for non-permanent residents" (that is, "one-entry endorsements" or "two-entry endorsements") in the 12 months from June last year to May this year;

(2) whether the Government initiated last year any discussion with the Central Authorities on the feasibility of ceasing the issuance of "multiple-entry permits" to Mainland residents and reinstating the issuance of "one-entry endorsements"; if it did, of the details; if not, the reasons for that;

(3) as some Members of this Council have proposed to change the "multiple-entry permits" to a "one trip per day" arrangement, whether it has assessed the circumstances and conditions under which this proposal can be implemented;

(4) given that the Government indicated earlier that it would make greater efforts to enhance Hong Kong's capacity to receive visitors, and endeavour to balance the impacts of the tourism industry on economic development and people's livelihood in our society, how the Government assesses Hong Kong's current social carrying capacity and receiving capacity for visitors;

(5) whether, based on the outcome of the assessment referred to in part (4), it has determined the number of visitors that Hong Kong can receive each year after balancing Hong Kong's social carrying capacity and receiving capacity for visitors; if it has, of the details; if not, the reasons for that;

(6) of the justifications for the authorities to bring up for discussion the issue of reducing Mainland visitor arrivals by 20%, including the reasons for not bringing up for discussion a reduction by a percentage such as 10%, 30% or 40%;

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(7) whether it has assessed the impacts of reducing Mainland visitor arrivals by 20% on the (i) industrial and commercial sectors, (ii) the business turnover of the retail industry, (iii) the business turnover of the catering industry, (iv) the hotel occupancy rate, and (v) the overall economy; if it has assessed, of the outcome; if not, the reasons for that;

(8) whether it has assessed if a reduction in Mainland visitor arrivals by 20% can alleviate the problem of crowdedness in compartments of public transport in Hong Kong; if it has assessed, of the outcome; if not, the reasons for that;

(9) whether it has studied if the projection made in the aforesaid article with regard to the impacts of a reduction in the number of IVS visitors on Hong Kong's tourism and employment situations is justified; if the study outcome is in the affirmative, of the details; if not, the reasons for that;

(10) whether it has assessed by how much Hong Kong's annual tourism receipts will be reduced and how many workers in the relevant industries will be rendered unemployed as a result of a reduction in the number of same-day Mainland visitors coming to Hong Kong on the "multiple-entry permits"; if it has assessed, of the outcome; if not, the reasons for that;

(11) whether it has assessed if a reduction in the number of IVS visitors will tarnish the image of Hong Kong as "a hospitable city"; if it has assessed, of the outcome; if not, the reasons for that; and

(12) as the Government has indicated that the proposal of building major shopping facilities in areas close to the boundary for diverting visitors is worth considering, whether owners of lands in areas close to the boundary have approached the Government and indicated their interest in building such shopping facilities; if so, of the details; if not, whether it is the case that the Government will not consider taking the lead in implementing this proposal in the short term?

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SECRETARY FOR COMMERCE AND ECONOMIC DEVELOPMENT (in Chinese): President, the HKSAR Government is aware of the public concerns about the impact of continuous growth in visitor arrivals on the livelihood of the community. In September 2012, the Chief Executive announced that the relevant Mainland authorities would liaise and work closely with the HKSAR Government to ascertain the receiving capacity of Hong Kong before considering implementing multiple-entry Individual Visit Endorsements for non-permanent residents of Shenzhen, and arranging the orderly issuance of exit endorsements for non-permanent residents in six cities. The HKSAR Government has also comprehensively assessed Hong Kong's capacity to receive tourists, and completed the Assessment Report on Hong Kong's Capacity to Receive Tourists (Assessment Report) at the end of last year.

Our replies to the questions raised by Dr LAM Tai-fai are as follows:

(1) In the 12 months from June 2013 to May 2014, there were $13.22 million visitors travelling on multiple-entry endorsements.

The Immigration Department does not maintain statistics on visitors travelling on exit endorsements for non-permanent residents.

(2), (3) and (6) to (9)

As mentioned by the Chief Executive on 27 May, reducing the number of visitors under the IVS by 20% was not a specific recommendation. It was meant to stimulate various sectors to think about the important issue of adjusting the number of visitors and their composition.

The HKSAR Government is looking into means to adjust the growth in visitor arrivals and the composition of visitors, and will announce the outcome as soon as possible upon discussion with the Central Government and relevant Mainland authorities. As different adjustment measures will lead to different extent of reduction in visitor flow in different districts and different sectors, as well as bring about different economic impacts, we have to analyse objectively the impact of different adjustment measures on Hong Kong's overall economy. Therefore, we hope that there would be extensive and serious discussions in the community, so that we could LEGISLATIVE COUNCIL ─ 11 June 2014 14785

relay different views to the Central Government more accurately and the adjustment measures eventually implemented would better meet the long-term and overall interests of Hong Kong.

(4) and (5)

The Report completed by the HKSAR Government at the end of last year aimed to assess Hong Kong's capacity to receive tourists in the medium term. The areas taken into account included the handling capacity of boundary control points, capacity of tourism attractions, receiving capacity of hotels, carrying capacity of public transport network, impact on the livelihood of the community, and economic impact, and so on.

In view of the continuous growth in visitor arrivals, the Assessment Report recommended that Hong Kong should enhance the capacity to receive tourists in different aspects. We are currently taking follow-up actions on various fronts in line with the recommendations in the Report. First of all, we endeavour to increase the supply of hotel rooms, including actively identifying ways for the gradual release of the six sites facing Victoria Harbour within the "hotel belt" adjacent to the Kai Tak Cruise Terminal to the market starting from the end of next year. Also, the hotel project at the Murray Building site has been successfully tendered. Upon commissioning, this hotel, together with the Ocean Hotel in the Ocean Park and the third hotel in the Hong Kong Disneyland, will provide a total of over 1 500 rooms. Second, on tourism facilities, the Ocean Park Corporation will develop an all-weather indoor cum outdoor waterpark at Tai Shue Wan. It is expected to be completed in 2017. The Hong Kong Disneyland will also build a new themed area based on the "Iron Man Experience". The terminal building and the first berth of the Kai Tak Cruise Terminal came into operation last June. The second berth is planned to be commissioned this year.

As for the more long-term planning, we will actively plan for the development of the "Kai Tak Fantasy" and Lantau into specialized tourism clusters to attract the high value-added visitor segments.

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At the same time, we will strengthen the promotion of tourism offerings in different districts, so as to offer more choices to visitors and to alleviate congestion at traditionally popular tourist areas. We also hope to broaden the overall economic benefits brought about by the tourism industry to all Hong Kong residents through encouraging visitors to explore, visit and spend in different districts.

(10) In 2013, the average per capita spending by same-day visitors travelling on multiple-entry endorsements was $2,220. If there is a reduction in the number of this type of visitors, the direct spending and employment opportunities brought about by these visitors for the relevant sectors in Hong Kong will drop correspondingly.

(11) Hong Kong is Asia's world city and welcomes visitors from around the world coming here on business or for sight-seeing. We believe Hong Kong people will continue to extend our warm welcome to tourists from different places, and to ensure a pleasant experience for them. The HKSAR Government will also continue to make greater efforts to enhance our capacity to receive tourists. On the other hand, the Hong Kong Tourism Board will continue to promote our hospitality culture.

(12) We consider the suggestion of developing a shopping centre at the border area worth considering. If the proposal could be materialized, it might help divert visitors in the short term and provide job opportunities to residents of the existing and planned new towns in the New Territories in the long run. The Government received a proposal from the Democratic Alliance for the Betterment and Progress of Hong Kong in October last year regarding the development of a shopping centre at the Lok Ma Chau border area. Since the area involved in the proposal is primarily private land, we believe that it will be more efficient if the land owners could co-ordinate with other market stakeholders in pursuing the future development of the area concerned having regard to the commercial potential of the area. The Government will be glad to co-ordinate with the relevant departments to provide necessary information and assistance to the project proponent. On the contrary, it may not meet the statutory requirement of resuming land for a public purpose should the Government take forward the private business LEGISLATIVE COUNCIL ─ 11 June 2014 14787

development by way of land resumption. Land resumption would also involve a substantial amount of public funds and a prolonged period of time. As at 3 June this year, the Government has not received any planning applications for the development concerned from the relevant land owners.

Project Phoenix of Hong Kong Football Association

17. DR KENNETH CHAN (in Chinese): President, since 2011, the Hong Kong Football Association (HKFA) has received funding from the Government for implementing Project Phoenix, a three-year project to revive football in Hong Kong. It has been reported that the Football Task Force (FTF) under the Home Affairs Bureau has recently recommended that the Government continue to fund the project for five years, and requested the HKFA to delete the post of Technical Director. In this connection, will the Government inform this Council:

(1) whether the authorities had, before the FTF made the aforesaid recommendation, conducted a comprehensive review of Project Phoenix and prepared a report on such a review; if they had, whether they can make public the whole report; if they cannot make public the report, of the reasons for that; if they had not conducted such a review, of the justifications which the FTF and the authorities had based when they deliberated on whether to continue to fund Project Phoenix;

(2) whether the authorities will consult different stakeholders before making the decision on whether to continue to fund Project Phoenix; if they will, of the details; if not, the reasons for that;

(3) given that the funding period was set at three years when the Government provided funding for Project Phoenix for the first time in 2011, of the justifications for the FTF's current recommendation of extending the funding period to five years;

(4) whether it knows the details of the plan for the next round of work, estimates of expenditure, work schedule, performance indicators and review mechanism for Project Phoenix after its funding support has been extended; and

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(5) as the HKFA has originally planned to organize matches for the Hong Kong Professional Football League (HKPFL) under Project Phoenix in the 2014-2015 football season but it has been reported that so far two local First Division teams have declined to join the HKPFL, whether it knows if the HKFA will organize HKPFL matches as scheduled; if the HKFA will, of the details; if the HKFA will not, the relevant arrangements?

SECRETARY FOR HOME AFFAIRS (in Chinese): President,

(1), (3) and (4)

At its meeting in May this year, the FTF examined a progress report on the implementation of Project Phoenix submitted by the HKFA and the HKFA's five-year strategic plan. The FTF also had a preliminary discussion on whether the Government should allocate resources to support the five-year strategic plan upon the expiry of the funding for implementing Project Phoenix. The FTF has yet to make a final decision, pending the submission of further detailed information by the HKFA. The FTF's decision would be discussed by the Sports Commission (SC) before the Secretary for Home Affairs makes a final decision.

(2) The HKFA has all along been involving its stakeholders in preparing the five-year strategic plan. The membership of FTF and SC include members from various backgrounds who are familiar with football development.

(5) The HKFA plans to introduce the Hong Kong Premier League in the coming football season as planned.

Peeping and Clandestine Video-recording/Photo-taking Activities at Black Spots of Accidental Exposure

18. DR ELIZABETH QUAT (in Chinese): President, it has been learnt that because of the improper designs or use of materials (for example, using clear LEGISLATIVE COUNCIL ─ 11 June 2014 14789 glass for parapets, escalator balustrades and partition walls) in some buildings managed by government departments and private organizations (for example, the Ping Shan Tin Shui Wai Public Library, Hong Kong Central Library, Hysan Place, PopCorn and the recently opened PMQ, and so on), there are currently quite a number of black spots where women are susceptible to accidental exposure. In addition, gadgets currently available for sale on the market which may be used for clandestine video-recording/photo-taking are increasingly miniaturized and easy to be concealed, thereby defying precautions. Some members of the public have indicated that peeping and even clandestine video-recording/photo-taking activities at black spots of accidental exposure are increasingly rampant. In this connection, will the Government inform this Council:

(1) whether the Buildings Department (BD) has issued guidelines to Authorized Persons prescribing that the designs and use of materials for public places in buildings should avoid the creation of locations where users will become susceptible to accidental exposure; if it has, of the details; if not, whether it will issue such guidelines;

(2) to which government department members of the public may at present lodge complaints when their complaints to the management of the public places about the high-risk locations for accidental exposure in the relevant premises are in vain, and which department will take follow-up actions;

(3) as some members from the legal profession have pointed out that due to the difficulties for the authorities in proving that a person has peeped on others, the numbers of relevant prosecutions and convicted cases are on the low side, whether the Government will consider amending the legal requirements for proof for such cases, so as to curb peeping behaviours; if it will, of the details; if not, the reasons for that;

(4) whether it will consider regularly releasing information on convicted cases relating to peeping at black spots of accidental exposure in order to deter others from peeping at such locations; if it will, of the details; if not, the reasons for that;

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(5) of the number of complaints received by the authorities in the past 10 years about clandestine video-recording/photo-taking activities, as well as the number of cases in which the persons concerned were prosecuted; and

(6) whether it has reviewed if the penalties under the existing legislation for acts of peeping and clandestine video-recording/photo-taking are too lenient, hence lacking deterrent effects; if the outcome of the review is in the affirmative, whether it will raise the relevant penalties; if it will, of the details; if not, the reasons for that?

SECRETARY FOR SECURITY (in Chinese): President, the issues raised in the question are related to various bureaux and departments (B/Ds). Having consulted the relevant B/Ds, the consolidated reply is as follows:

(1) According to the information provided by the Development Bureau, the BD regulates the planning, design and construction of buildings and associated works on private land under the powers conferred by the Buildings Ordinance (Cap. 123) (BO) to ensure their compliance with safety and health standards. In this connection, the BO prescribes building design and construction standards on various aspects including structural and fire safety as well as sanitation. However, matters not related to building safety and health, such as avoidance of accidental exposure, fall outside the jurisdiction of the BO. Hence, the BO does not regulate the materials used in building works or the design of buildings for the avoidance of accidental exposure, and the BD has no plan to issue guidelines for this purpose. As regards problems in private premises (for example, shopping arcades as mentioned in the question), members of the public may wish to express their views to the management of such premises direct.

(2) According to the information provided by the Leisure and Cultural Services Department, the Hong Kong Central Library and Ping Shan Tin Shui Wai Public Library in question have already taken appropriate measures, including strengthening the patrol by security guards and sticking of opaque stickers on glass surfaces.

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According to the information provided by the Development Bureau, the Architectural Services Department and PMQ Management Company Limited have considered the views of the public and have already completed the improvement works at PMQ, including installation of panels between the treads of open staircases and the placement of opaque stickers at some critical areas of the glass balustrades. Besides, display boards have also been installed on the underside of the skylights of the underground interpretation area to address concerns on the sightline issue.

(3) to (6)

According to section 160(3) of the Crimes Ordinance (Cap. 200), if any person loiters in a public place or in the common parts of any building and his presence there, either alone or with others, causes any person reasonably to be concerned for his safety or well-being, he shall be guilty of an offence and shall be liable on conviction to imprisonment for two years. No statistical figures of criminal offences in relation to peeping in public places are kept.

Clandestine taking of indecent photos in public places may constitute an offence under section 160 of the Crimes Ordinance (Cap. 200) (that is, loitering) with a maximum penalty of imprisonment for two years, or section 17B of the Public Order Ordinance (Cap. 245) (that is, disorder in public places) with a maximum penalty of a fine at level 2 and imprisonment for 12 months, or under the common law offence of outraging public decency with a maximum penalty of imprisonment for seven years. There is no plan to raise the maximum penalty for the aforesaid offences. Figures of cases involving clandestine taking of indecent photos in public places handled by the police between 2004 and April 2014 are at Annex.

If the photo-taking activities involve personal data as defined in the Personal Data (Privacy) Ordinance (PDPO) (Cap. 486), and the collection and handling of such personal data contravenes the data protection principles as set out in Schedule 1 to the PDPO, the Privacy Commissioner for Personal Data may issue an enforcement notice to relevant persons. Contravention of an enforcement notice is a criminal offence with maximum penalty, on first conviction, of a 14792 LEGISLATIVE COUNCIL ─ 11 June 2014

fine at level 5 and imprisonment for two years plus a daily penalty. There is no plan to raise the penalties concerned. The Office of the Privacy Commissioner for Personal Data does not maintain figures of complaint cases involving clandestine photo-taking.

Annex

Figures of cases involving clandestine taking of indecent photos in public places handled by the police between 2004 and April 2014

Year Number of Cases 2004 67 2005 98 2006 128 2007 185 2008 261 2009 212 2010 219 2011 231 2012 282 2013 329 January to April 2014 94

Impacts of Fine Suspended Particulates on Public Health

19. MR CHAN HAK-KAN (in Chinese): President, fine suspended particulates means suspended particles in air with a nominal aerodynamic diameter of 2.5 μm or less (PM2.5). It has been reported that the findings of a medical research reveal that PM2.5 are very active, and harmful or toxic substances can be easily attached to them. It is also difficult to exhale PM2.5 after it has been inhaled into the human body through respiratory tracts. As a result, PM2.5 pose rather serious hazards to human health. On the other hand, while concentrations of PM2.5 in air are closely monitored in some Mainland cities in recent years, there is no comprehensive monitoring network for PM2.5 in Hong Kong. In this connection, will the Government inform this Council:

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(1) given that at present, some Mainland websites report on a real time basis the data on PM2.5 concentrations in various parts of the Mainland and the air quality across the country, as well as provide information about PM2.5, of the reasons why the data on concentrations of air pollutants at various air quality monitoring stations (AQMSs) published on the website of the Environmental Protection Department of Hong Kong (EPD) are confined to information (i) for the past 24 hours and (ii) on or before 31 December 2013; whether the authorities can make reference to Mainland websites in providing more information (such as the health impacts of PM2.5);

(2) given that one of the major sources of PM2.5 in the air of Hong Kong is vehicle emissions, whether the authorities can collect data on PM2.5 concentrations at roadside AQMSs and publish them on a real time basis for reference by the public and for publicity purposes; if they cannot, of the reasons for that;

(3) given that PM2.5 are hazardous to human health, for example, they may induce upper respiratory tract diseases and even cancers, whether the authorities have assessed the impacts of PM2.5 on human health and formulated any countermeasures; if they have, of the details; if not, the reasons for that; whether the authorities will collect data through district-wide health screening exercises for the purpose of studying the impacts of PM2.5 on human health;

(4) given that a PM2.5 monitor has been installed at Wan Po Road in Tseung Kwan O, of the reasons why the relevant data are not published on EPD's website; whether it can publish such data on the website concerned; whether the authorities have studied the sources of PM2.5 on that road and the reasons for the persistently high PM2.5 concentrations there; whether they have formulated any measures to tackle the air pollution problem on that road; and

(5) despite the fact that the Pearl River Delta, which has a close relationship with Hong Kong, has been identified as one of the focal regions for controlling PM2.5 emissions in the "National Environmental Protection Plan under the 12th Five-year Plan", of the reasons why the reports on the monitoring results of the Pearl 14794 LEGISLATIVE COUNCIL ─ 11 June 2014

River Delta Regional Air Quality Monitoring Network published annually have not mentioned any information relating to PM2.5; whether analyses on PM2.5 can be incorporated into future reports; of the measures adopted by the authorities to tie in with the collaboration plan on emission reduction and to educate the public on the health impacts of PM2.5?

SECRETARY FOR THE ENVIRONMENT (in Chinese): President, in order to understand the ambient PM2.5 levels in Hong Kong, the Environmental Protection Department (EPD) started monitoring PM2.5 concentration in 1999 at three general AQMSs, which are in Tap Mun, Tung Chung and Tsuen Wan, respectively, and the Central roadside AQMS. The general AQMS in Yuen Long started monitoring PM2.5 concentration in 2005; and all other AQMSs in Hong Kong started in 2011. Since 8 March 2012, the EPD has been disseminating real time data of PM2.5 for all the AQMSs (including the three roadside AQMSs) in Hong Kong. Our reply to the questions raised by Mr CHAN Hak-kan is as follows:

(1) and (2)

The EPD has been releasing via its website the real time concentrations of major air pollutants measured in all AQMSs (including both general and roadside AQMSs). Since 8 March 2012, the release has also included the real time data of PM2.5.

As the real-time data are raw data which have yet to be validated, the EPD only retains the past 24 hours' data on the website. After validating the data, the EPD will upload the validated data to its website for the public to download or peruse. As the validation process takes time, the uploaded validated data are up to 31 December 2013.

In addition to the real-time air pollutant data, EPD's Air Quality Health Index (AQHI) website also provides past validated major air pollutant data and information on their major sources and health impacts. For further details, please refer to the EPD's AQHI website as below: .

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(3) The Hong Kong Special Administrative Region Government has all along been very concerned about the impacts of air pollution on public health. Emissions from diesel vehicles are a key source of PM2.5. After the World Health Organization (WHO) classified particulate matters emitted from diesel vehicles as "probably carcinogenic" to humans, the Government started reducing diesel emissions and has been putting forward since 1999 comprehensive emission controls to reduce vehicular emissions, especially diesel particulate emissions. The key control measures included replacing diesel taxis/light buses with liquefied petroleum gas vehicles, mandating pre-Euro diesel vehicles to be retrofitted with particulate reduction devices, tightening vehicle fuel and vehicle emission standards, and stepping up the control on smoky vehicles by increasing the fixed penalty fine and adopting an advanced smoke test, and so on. These measures have borne fruits. From 1999 to 2013, the roadside PM2.5 levels in Hong Kong were reduced by 37%. In response to WHO's classification of diesel exhaust as carcinogenic to humans, the Government launched an ex-gratia payment scheme on 1 March 2014 to phase out progressively some 82 000 pre-Euro IV diesel commercial vehicles (DCVs) including goods vehicles, light buses and non-franchised buses, to further reduce PM2.5 emissions from diesel vehicles for protecting public health.

Regarding the impacts of PM2.5 on public health, the EPD has commissioned local health experts to collect data through district-wide health screening exercise or questionnaire to study the impacts. The studies are expected to be completed by the end of 2015.

(4) In response to the concerns and request of residents from Tseung Kwan O, the EPD has, since 18 September 2013, placed monitoring equipment on the rooftop of Tai Chik Sha Fire Station in Tseung Kwan O to measure the concentration of PM2.5 at Wan Po Road. Results show that the 24-hour average PM2.5 levels measured were similar to those recorded at the general AQMSs elsewhere in Hong Kong. As the monitoring point at Tai Chik Sha Fire Station is specifically designed to measure the PM2.5 levels at Wan Po Road 14796 LEGISLATIVE COUNCIL ─ 11 June 2014

and its nature is different from other AQMSs, we therefore considered it is more appropriate to provide the data to the Sai Kung District Council (SKDC) with relevant information for comparison. The EPD has already provided the monitoring data from September 2013 to March 2014 to the Housing and Environmental Hygiene Committee (HEHC) of the SKDC and relevant papers (SKDC[HEHC] papers no. 20/14 and 68/14) have also been uploaded to the SKDC website for the public's reference. We will continue to provide relevant data to the SKDC. Looking ahead, legislative amendments have been passed and subject to the funding approval for the Southeast New Territories (SENT) Landfill Extension, the reception of only construction waste will be implemented as soon as possible at the SENT Landfill. The number of vehicle loads transported to the landfill will then be reduced from the present level of some 1 000 to 500. This will help improve the air quality in the area.

(5) As for the PM2.5 data monitored by the Pearl River Delta Regional Air Quality Monitoring Network, Guangdong and Hong Kong governments will consider including them in the annual report in due course.

To achieve the 2015 and 2020 emission reduction targets agreed by the two governments, the EPD is implementing a series of enhanced control measures to further reduce the emissions from major local air pollution sources. These measures include the progressive phasing out of pre-Euro IV DCVs launched in March 2014, tightening the sulphur content of local marine diesel to not more than 0.05% since April 2014, and the drafting of new regulation to mandate ocean-going vessels (OGVs) to switch to low sulphur fuel while at berth, and so on. All these control measures could help reduce the PM2.5 levels in Hong Kong.

As mentioned above, information on major sources of PM2.5 and its impacts on health is provided in the EPD's AQHI website to enhance public's awareness and understanding of PM2.5.

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"PMQ" Project

20. MR LEUNG KWOK-HUNG (in Chinese): President, PMQ is a revitalization project implemented at the former Police Married Quarters on Hollywood Road. To implement this project, the Musketeers Education and Culture Charitable Foundation Limited (the Musketeers Foundation), which has been selected to conserve this heritage site, has established the PMQ Management Company Limited (the Management Company), which is responsible for the daily operation of PMQ. Recently, quite a number of tenants of PMQ have relayed to me that the project has been mismanaged, and that the operations of the two aforesaid companies lack transparency and external monitoring, resulting in rectifications of the management problems of PMQ pending for a long time. In this connection, will the Government inform this Council:

(1) whether the Government deployed any staff to communicate with the tenants of PMQ in the past six months in order to understand and monitor the progress and implementation of the project; if it did, of the dates and times of such meetings, the government departments to which such staff belong, as well as the number of tenants attending such meetings; if not, the reasons for that;

(2) whether it knows if the Musketeers Foundation and the Management Company awarded all outsourced service contracts of PMQ through open tender; if they did, whether the Government monitored the relevant tendering processes, and of the number of local newspapers in which the tender notices were published; if not, the reasons for that, and the measures put in place by the two companies to ensure high transparency of the procedures for selecting outsourced service contractors; whether it knows if any of the persons-in-charge or shareholders of the outsourced service contractors have interests related to the executives of the two companies or their family members; if there are such persons-in-charge or shareholders, of their number, and the measures put in place by the two companies to prevent any transfer of benefits in the selection processes;

(3) given that the Management Company is required to submit to the Government annually mid-year progress reports (including financial 14798 LEGISLATIVE COUNCIL ─ 11 June 2014

reports and cash-flow statements) and year-end reports (including annual audited financial statements), as well as the final evaluation report (including the final audited accounts) upon expiry of the project tenancy agreement, whether the Government will make public or brief Members of this Council on such reports; if it will, when such reports will be made public and the way in which the briefing will be conducted; if not, of the reasons for that;

(4) whether it has tightly monitored the PMQ project in accordance with the relevant guidelines made by the Independent Commission Against Corruption (ICAC), so as to prevent any transfer of benefits or cases of non-compliance; if it has, of the details; if not, the reasons for that;

(5) given that the Management Company is a charitable institution exempt from tax under section 88 of the Inland Revenue Ordinance (Cap. 112), whether the Government knows if any government officer is a member of the management committee of the company; if there are such officers, of their ranks in the Government; if not, the reasons for that; whether the Government will propose to the Management Company the appointment of no less than two representatives of the tenants of PMQ to the management committee of the company for effective monitoring; if it will, when it will do so; if not, of the reasons for that; and

(6) given that the Advisory Committee on Revitalisation of Historic Buildings (ACRHB) is responsible for assisting in the assessment of applications under the Revitalising Historic Buildings Through Partnership Scheme, and monitoring the subsequent operation of the successful applicant, whether the Government will appoint no less than two Members of this Council and no less than two representatives of the tenants of PMQ to be members of that Committee, so that Members of this Council and tenants of PMQ can more effectively monitor the implementation of the PMQ project and relay public opinions to the Committee; if it will, when it will do so; if not, of the reasons for that?

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SECRETARY FOR DEVELOPMENT (in Chinese): President, as regards the questions raised by Mr LEUNG Kwok-hung, the replies are as follows:

(1) and (3)

Since the commissioning of "PMQ", the Government has been closely monitoring its operation. Following the idea of sustainable implementation of revitalization projects for historic buildings, the "PMQ" project will be operated on a self-financing and self-sustainable basis in which the site and the premises will be managed, operated and maintained at its own expenses. The Musketeers Foundation has set up a special purpose company named "PMQ Management Company Limited" (PMQ Ltd), which has acquired charitable status under section 88 of the Inland Revenue Ordinance (Cap. 112), to be responsible for the implementation of the project and the day-to-day operation of the historic buildings after revitalization, including the leasing of studio and other units.

The Development Bureau and the Commerce and Economic Development Bureau are responsible for monitoring the "PMQ" project. To monitor the business performance of the project during the operation phase, PMQ Ltd shall submit to the government progress report (including financial reports and cash-flow statements) and the annual report (including the annual audited financial statements) at mid-year and year-end respectively, and the final evaluation report (including the final audited accounts) upon expiry of the project tenancy agreement. Both the annual and final evaluation reports should include audited accounts and auditor's reports for the Government to examine the financial position of the project. If PMQ Ltd fails to submit reports or if the submitted reports containing insufficient, incomplete or false information, the Government may terminate the project tenancy agreement. The Government shall provide the latest information of the "PMQ" project to the ACRHB on a regular basis and obtain the ACRHB's views to ensure that the objectives of the project are met. The Government will also arrange site visits on a regular basis to advise on the management and operation of "PMQ".

14800 LEGISLATIVE COUNCIL ─ 11 June 2014

(2) According to the requirements in the tenancy agreement signed between the Government and PMQ Ltd, PMQ Ltd needs to conduct tender and procurement exercises in accordance with the guidelines set out in the tenancy agreement and on a fair and competitive basis to achieve value for money and forestall any conflict of interest.

PMQ Ltd advised that it had strictly enforced the declaration of conflict of interest mechanism in conducting tender exercises. There has not been any conflict of interest.

(4) The Government had arranged PMQ Ltd to attend a seminar organized by the ICAC for them to understand the relevant guidelines of the ICAC. PMQ Ltd advised that it had strictly enforced its internal control measures since its establishment to prevent any breaches of laws and regulations.

(5) As described above, following the idea of sustainable implementation of revitalization projects for historic buildings, the "PMQ" project will be operated on a self-financing and self-sustainable basis in which the site and the premises will be managed, operated and maintained at its own expenses. The Musketeers Foundation has set up a special purpose company named PMQ Ltd, which has acquired charitable status under section 88 of the Inland Revenue Ordinance (Cap. 112), to be responsible for the implementation of the project and the day-to-day operation of the site after revitalization, including the leasing of studio and other units. The above ordinance does not require government officials to be members of its management committee.

Moreover, the Government and the ACRHB are jointly responsible for monitoring the business performance of the "PMQ" project during the operation phase in accordance with the established mechanism. PMQ Ltd shall submit to the government progress report and annual report at mid-year and year-end respectively. The latter should include audited accounts and auditor's report for the Government to examine the financial position of the project. Besides, the Commerce and Economic Development Bureau has representative sitting in the meetings of the Event and Programme Committee of PMQ Ltd as an observer for monitoring purpose.

LEGISLATIVE COUNCIL ─ 11 June 2014 14801

(6) The ACRHB, comprising mainly non-officials in the fields of historical research, architecture, surveying, social enterprise, finance, and so on, is set up to provide advice on the revitalization of historic buildings. In particular, it will assist in assessing applications under the Revitalizing Historic Buildings Through Partnership Scheme and monitor the subsequent operation of the successful applicants. The Government will identify suitable members for appointment to the ACRHB in the light of their professional background and experience.

Management of Personal Credit Data

21. DR KWOK KA-KI (in Chinese): President, recently, a member of the public has complained to me that his applications for credit cards and loans have been affected by a bad credit history, which has remained in his personal credit data since someone else made loan applications to banks and finance companies using his identity fraudulently during the period when he had lost his identity card (ID card), despite confirmations having been made subsequently by the police to such institutions that the person had reported to the police on the loss of his ID card. In this connection, will the Government inform this Council:

(1) whether it knows how financial institutions handle the bad credit history of members of the public which they claim to have been caused by the fraudulent use of their identity; whether the guidelines of the Hong Kong Monetary Authority (HKMA) and relevant government departments have specified such practices; if they have, of the details; if not, the reasons for that;

(2) whether the law enforcement agencies concerned have put in place established procedures for handling cases of fraudulent use of stolen identity to apply for loans; if they have, of the details; if not, the reasons for that; and

(3) whether the HKMA monitors the compliance by financial institutions with its guidelines on the provision of and access to credit data; if it does, of the details; if not, the reasons for that?

14802 LEGISLATIVE COUNCIL ─ 11 June 2014

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

(1) Consumer credit data is personal data subject to the Personal Data (Privacy) Ordinance (PDPO) and the Code of Practice on Consumer Credit Data issued by the Office of the Privacy Commissioner for Personal Data (PCO Code). Credit providers are required to comply with the PDPO and PCO Code in handling consumer credit data. The PCO Code requires a credit provider to update consumer data held in the database of a credit reference agency (CRA) as soon as reasonably practicable if the credit provider discovers any inaccuracy in the data provided to the CRA. In addition, the Code of Banking Practice and the HKMA's Supervisory Policy Manual require Authorized Institutions (AI) to comply with the requirements of the PDPO and PCO Code.

If a fraudulent use of the data is confirmed, a credit provider shall, in accordance with the PCO Code, instruct the relevant CRA to delete the loan record concerned from the CRA's database as soon as reasonably practicable and to leave no history in the CRA's database.

(2) Making loan applications using a fraudulent identity may contravene section 18 "obtaining pecuniary advantage by deception" of the Theft Ordinance, or section 7A "using an identity card which relates to another person" of the Registration of Persons Ordinance. Depending on the nature of the case and the evidence collected, the police will conduct investigation and follow up accordingly.

(3) The HKMA monitors AIs' compliance with the requirements of the Code of Banking Practice and the Supervisory Policy Manual as part of its regular supervision (including on-site examination, handling of complaints, and review of regular self-assessments conducted by AIs). If the HKMA detects any breaches of relevant requirements by individual AIs or sees any areas warranting improvement, the HKMA will follow up with the AIs concerned accordingly.

Cost-effectiveness of Public Works Projects

22. MR CHARLES PETER MOK (in Chinese): President, owing to the huge cost overrun in a number of public works projects in recent years, applications for additional funding need to be made to the Finance Committee of the LEGISLATIVE COUNCIL ─ 11 June 2014 14803

Legislative Council. Some members of the public are therefore concerned about the expenditure control of public works projects and the fiscal affordability of the Government. In this connection, will the Government inform this Council:

(1) for each of the past 10 years, (i) of the percentage of the expenditure on capital works projects against the nominal Gross Domestic Product (GDP) and (ii) of the percentage of the total amount of increase in the Approved Project Estimates (APE) of public works projects approved by Finance Committee against the original total APE; whether it has calculated the economic benefits generated by those works projects;

(2) of the estimated expenditure on public works projects under planning and expected to be submitted to Finance Committee for funding approval in the coming five years, and whether it has made any estimation on the economic and social benefits of those projects;

(3) in view of the cost overrun in a number of public works projects, whether the authorities have put in place a mechanism to review if the various completed works projects have generated the anticipated direct and indirect economic benefits; if they have, of the details;

(4) given that the Government is studying the deceleration of the growth rate of Mainland visitors coming to Hong Kong on Individual Visit Scheme and is even considering to reduce their number, whether the authorities will review if the justifications for undertaking various public works projects under planning (for example, cross-boundary transport infrastructure projects), such as the assumptions for calculating the anticipated economic benefits, are still tenable; if they will, of the details; if not, the reasons for that;

(5) given that the Working Group on Long-Term Fiscal Planning (the Working Group) has earlier recommended the creation of a "Future Fund", and the Secretary for Financial Services and the Treasury has indicated that the Fund should only be used for covering non-recurrent expenditure items such as public works projects relating to housing and land restructuring, whether the authorities have drawn up any timetable for the creation of the Fund and the planning of its operation mode so as to ascertain as early as possible the impact of the Fund on the Government's ability to bear the expenditure incurred by public works projects; whether the Fund will be used to meet the cost overruns of public works projects or 14804 LEGISLATIVE COUNCIL ─ 11 June 2014

provide injections into the Capital Works Reserve Fund; if so, of the details; and

(6) given that the Working Group has pointed out in its report released earlier that "it is not sustainable to allow government expenditure to persistently grow faster than government revenue and nominal GDP", whether the authorities will re-evaluate the urgency, cost-effectiveness, economic benefits and financial viability of various public works projects in order to control the increase in the relevant expenditures; if they will, of the details; if not, the reasons for that?

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

(1) Figures on the percentage of the expenditure on Capital Works Programme against the nominal GDP in the past 10 years are set out at Annex. In the past 10 Legislative Sessions, despite undergone various economic cycles, only about one tenth of the 600 capital works items with funding approved by the Finance Committee required an increase in the approved project estimate (APE). The amount of increase is about 3.4% of the $620 billion total project cost.

Capital Works Programme covers various areas including transportation, environment, health, education, water supply and drainage systems, and is conducive to the development of Hong Kong and enhancement of the quality of living of our community. As not every item is directly related to economic development, statistics on the economic benefits generated by the Capital Works Programme are not available. Nonetheless, the Administration conducts appraisal on economic benefits for capital works items with significant economic value (for example, Kai Tak cruise terminal development and West Island Line) and includes the relevant justifications in the Public Works Subcommittee papers.

(2), (3) and (6)

We submit to Public Works Subcommittee an overview of capital works items planned for seeking Public Works Subcommittee's approval in the Legislative Session on a yearly basis, but we do not LEGISLATIVE COUNCIL ─ 11 June 2014 14805

have a list of the works items to be submitted to the Legislative Council for funding approval for the coming five years. Pursuant to our established practice, the Government will draw up the relevant plan after taking into account various factors such as works progress, justifications, urgency and cost-effectiveness of the Capital Works Programme projects as well as the Government's financial affordability. Relevant assessments and justifications for taking forward the projects will be set out in the relevant Public Works Subcommittee papers for the consideration of the Public Works Subcommittee and the Finance Committee. As regards items applying for increase in APE because of cost overrun, the justifications and the latest progress of the projects will also be set out in the relevant Public Works Subcommittee papers for consideration of the Public Works Subcommittee and Finance Committee.

(4) The HKSAR Government is looking into means to adjust the growth in visitor arrivals and the composition of visitors, and will announce the outcome as soon as possible upon liaison with the Central Government and relevant Mainland authorities. Our major premise is to ensure the stable and orderly development of the tourism industry, and at the same time minimize as far as possible the inconvenience caused by the increasing visitor arrivals to local residents, with a view to striking a balance between the impact of the tourism industry on Hong Kong's economy and the livelihood of the community. Besides, when conducting studies or reviews on future capital works projects (such as transport infrastructure), the HKSAR Government will take into account the latest relevant planning data and policies on population and land uses, including known changes in inbound and outbound travellers, so as to estimate and assess the future needs for infrastructure and possible economic benefits and returns (if applicable).

(5) The Working Group released its report on 3 March this year with a comprehensive fiscal sustainability appraisal on our public finances. To cope with the fiscal challenges ahead, the Working Group considers that a multi-pronged approach should be taken. Apart from developing the economy and broadening the revenue base, the Working Group sees the need to contain expenditure growth stringently; separately, the idea of establishing savings scheme can be considered. The concept of the savings scheme is to set aside a portion of the fiscal reserves and surplus for investment so that the 14806 LEGISLATIVE COUNCIL ─ 11 June 2014

provision can be released after a designated period to help relieve the fiscal pressure in the future. The Working Group also recommends that a pragmatic approach should be to leave the use and modus operandi of the scheme open and just focus on when the amount would be drawn. The Government will carefully examine the recommendations put forward by the Working Group and invite it to provide more detailed and concrete analyses and assessments on some of the recommendations for further consideration. In this connection, the Financial Secretary will ask the Working Group to proceed with the second stage work by further studying the implementation details of the "Future Fund" and putting up concrete proposals.

Annex

Percentage of the Expenditure on Capital Works Programme against the Nominal GDP for the Past 10 Years

Expenditure on Percentage of the Financial Capital Works Nominal GDP(1) Expenditure on Capital Year Programme ($ billion) Works Programme against ($ billion) the Nominal GDP 2004-2005 31.4 1,316.9 2.38 2005-2006 26.5 1,412.1 1.88 2006-2007 21.7 1,503.4 1.44 2007-2008 20.5 1,650.8 1.24 2008-2009 45.0(2) 1,707.5 2.64 2009-2010 45.3 1,659.2 2.73 2010-2011 49.8 1,776.3 2.80 2011-2012 58.4 1,934.4 3.02 2012-2013 62.4 2,037.1 3.06 2013-2014 83.0(3) 2,125.4 3.90

Notes:

(1) The nominal GDP is calculated by calendar year. The expenditure on Capital Works Programme in the 2004-2005 financial year is compared against the nominal GDP in 2004, and so on.

(2) Include a one-off provision of $21.6 billion to the West Kowloon Cultural District Authority.

(3) Include a one-off provision of $13 billion to the Hospital Authority. LEGISLATIVE COUNCIL ─ 11 June 2014 14807

BILLS

First Reading of Bills

PRESIDENT (in Cantonese): Bill: First Reading.

SUPPLEMENTARY APPROPRIATION (2013-2014) BILL

CLERK (in Cantonese): Supplementary Appropriation (2013-2014) 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.

Second Reading of Bills

PRESIDENT (in Cantonese): Bill: Second Reading.

SUPPLEMENTARY APPROPRIATION (2013-2014) BILL

SECRETARY FOR FINANCIAL SERVICES AND THE TREASURY (in Cantonese): President, I move the Second Reading of the Supplementary Appropriation (2013-2014) Bill.

Section 9 of the Public Finance Ordinance provides: "If at the close of account for any financial year it is found that expenditure charged to any head is in excess of the sum appropriated for that head by an Appropriation Ordinance, the excess shall be included in a Supplementary Appropriation Bill which shall be introduced into the Legislative Council as soon as practicable after the close of the financial year to which the excess expenditure relates."

The account for the financial year 2013-2014 is closed and of the 83 heads of expenditure, 31 are in excess of the sums appropriated for them. The sums of expenditure in excess are mainly to cope with the salary adjustments for civil servants for the year 2013, injection of funds into the Employees Retraining Board, Care Fund, Lotteries Fund, Language Fund and Environment and 14808 LEGISLATIVE COUNCIL ─ 11 June 2014

Conservation Fund, implementation of one-off relief measures such as paying two months' rent for public rental housing tenants, and so on. All expenditures in excess have been approved by the Finance Committee or on approval granted with authorization from the Finance Committee for supplementary appropriation.

(THE PRESIDENT'S DEPUTY, MR ANDREW LEUNG, took the Chair)

Now I would like to propose the Supplementary Appropriation (2013-2014) Bill in order to make supplementary appropriation for the sum of about $57.7 billion for these 31 heads and to provide a formal legal basis for such.

Thank you, Deputy President.

DEPUTY PRESIDENT (in Cantonese): I now propose the question to you and that is: That the Supplementary Appropriation (2013-2014) Bill be read the Second time.

In accordance with the Rules of Procedure, the debate is now adjourned and the Bill is referred to the House Committee.

MEMBERS' MOTIONS

DEPUTY PRESIDENT (in Cantonese): Members' motions: Two motions under the Legislative Council (Powers and Privileges) Ordinance.

This Council will now continue to deal with the first motion moved by Mr Gary FAN under the Legislative Council (Powers and Privileges) Ordinance.

Members who wish to speak on the motion will please press the "Request to speak" button.

I now call upon Mr Gary FAN to continue to speak and move the motion.

LEGISLATIVE COUNCIL ─ 11 June 2014 14809

MOTION UNDER THE LEGISLATIVE COUNCIL (POWERS AND PRIVILEGES) ORDINANCE

MR GARY FAN (in Cantonese): Deputy President, I shall pick up from where I left off last Wednesday. I move that the motion as set out on the Agenda be passed. I urge that this Council shall appoint a select committee to inquire into whether the MTR Corporation Limited (MTRCL) has covered up the progress and causes of delay in the construction of the Hong Kong section of the Guangzhou-Shenzhen-Hong Kong Express Rail Link (XRL), and whether there are any problems with the Hong Kong Special Administrative Region Government and the MTRCL in supervising and co-ordinating the construction of the Hong Kong section of the XRL. Deputy President, in my speech last week, I mentioned that under the tight supervision of the Highways Department (HyD) which has a four-tier monitoring mechanism, the progress and duration of delay for each works contract should be under the control of the Government. Monitoring records from the Project Supervision Committee as provided by the Government to the Council show that as evident in the 44 meetings held by the Project Supervision Committee over the past four years, the HyD knows clearly that the actual progress of the XRL projects has always been behind schedule and such delay has been worsening. This makes people query whether there are any justifications for the Government's continued belief in the one-sided statements given by Jay WALDER, the CEO of the MTRCL.

The MTRCL has appointed six non-executive directors to form an investigation committee. The Government has also set up a three-member expert panel headed by Mr Justice HARTMANN. But these two organizations are both devoid of substance. The investigation committee set up by the MTRCL is a committee which probes into the MTRCL's own people. The three-person expert panel of the Government only reviews the system of the XRL projects, procedures, practices and modus operandi. But it will not try to find out who should be held responsible, regardless of the accountability system of principal officials at all. It is just making use of technical issues like the system to let officials off the hook. Recently, Anthony CHEUNG and YAU Shing-mu, the Secretary and Under Secretary for Transport and Housing respectively, seemed to have noticed that the expert panel will not pursue responsibilities and undertook in public that if the panel appointed by the Government finds out that they have made any mistakes, then they will resign. But the people of Hong Kong can foresee that at the end of the day, the report by the Government will not point out which officials are at fault. So when Anthony CHEUNG and YAU 14810 LEGISLATIVE COUNCIL ─ 11 June 2014

Shing-mu vowed to bear the responsibilities, their undertaking will never materialize.

A more important thing, one which involves public interest is that the terms of reference of the MTRCL investigation committee and the expert panel of the Government will never touch on the role played by the board of directors of the MTRCL and their responsibility in the delay of its projects. Just has the MTRCL Board been unaware of the delays in the XRL project or is it trying to shirk its responsibility after the exposure of the incident, in an attempt to protect itself and make CHEW Tai-chong, the Chief Engineer, the scapegoat? All these should be clarified. Deputy President, if the Legislative Council (Powers and Privileges) Ordinance can be invoked to order the MTRCL to hand over the related documents and minutes of meetings, and so on, so that this Council can probe into the truth of the matter, it is really the proper step to take in pursuance of accountability to the public.

Apart from the Hong Kong section of the XRL, the MTRCL has four other railway projects in progress. They are the South Island Line, the West Island Line, the Kwun Tong Extension and the Shatin to Central Link (SCL). All these projects have a possibility of delay. The MTRCL has made covering up the delays of its projects a habit. In the West Island Line, the works for the Sai Ying Pun station have begun for a number of years. But no mention is made of any geological problems. And it was six months before the Line is due for commissioning that these problems were disclosed to the public and the media. On the site of the SCL, relics from the Song and Yuan Dynasties of the largest scale found in Hong Kong were also first reported by the media. It shows a serious lack of transparency in the MTRCL projects. And with respect to the Government's supervision of the railway projects, it is like a paper tiger that believes in all those casual lies told by the management of the MTRCL. The Government also neglects the fact that the MTRCL has run into management problems because of undertaking five railway projects at the same time.

Deputy President, for these five railway projects under construction, the total construction cost is more than $160 billion and the completion dates for four of these projects are scheduled for 2014 to 2015. It is definitely a heavy burden on the engineering department of the MTRCL, and it even has the effect of affecting the daily operation of other railway lines. In 2013, incidents of train delays lasting for eight minutes or more caused by mechanical failure or human blunder totalled 143, meaning almost one incident for every two days. In recent LEGISLATIVE COUNCIL ─ 11 June 2014 14811 months, a number of serious incidents have happened. They include that complete stoppage of the entire Tseung Kwan O line in mid-December last year. And in February 2014, the East Rail had two consecutive incidents caused by damaged insulators, resulting in prolonged delays. This series of incidents shows that there are failures in the MTRCL's regular maintenance of its railways. It begs suspicions about these numerous mechanical failures or human blunders being attributable to the concurrent undertaking of too many projects, thus causing a manpower shortage in the MTRCL. There was obviously negligence on the part of the Government when it handed over the XRL project to the MTRCL for management in the first place. And the excessive ambitiousness of the MTRCL is also a cause of the delays in the works.

Deputy President, for over a decade the Government has practised a transportation policy of giving priority to railways. As a result, the MTRCL's share in the mass transit market has been growing steadily, even to the extent of becoming a monopoly. It has also been squeezing the room of survival of other means of transport like buses, green minibuses, taxis, harbour lines of the ferries, and so on. According to the annual report of the MTRCL in 2013, the market share of the MTRCL is close to 50%, standing at 47%. Last year, the corporation's income from passenger carrying business alone was $15 billion. But under the fare adjustment system, the MTRCL still raises its fares by 3.6% this year in disregard of the people's livelihood. It can be seen that it is really a business that will only make money instead of losing any.

However, the MTRCL has not made good use of this advantage and concentrated its efforts in developing and managing transport service. On the other hand, it engages in ambitious plans to expand its sidelines in property development, property management, station commerce, and so on. Now the MTRCL owns more than 2.7 million sq ft of shopping mall and 550 000 sq ft of office premises. In the case of the property development projects of the West Rail alone, the MTRCL owns the property development rights of close to 57 hectares of land.

I propose to invoke the powers enshrined in the Legislative Council (Powers and Privileges) Ordinance (P&P Ordinance) in the hope of thoroughly probing into the delays in the projects. I hope that the truth can be uncovered and that a full-scale review can be undertaken of the operation and supervision mechanisms of the MTRCL, so that members of the public can have the information to discuss the issue of whether the corporation should return to its 14812 LEGISLATIVE COUNCIL ─ 11 June 2014 main line of business, concentrate on operating railways and make serving the community its primary goal in operation.

With these remarks, Deputy President, I hope Members can lend their support to the invoking of the P&P Ordinance by this Council to appoint a select committee to probe into the causes of the delay in the works projects of the XRL.

Mr Gary FAN moved the following motion:

"That this Council appoints a select committee to inquire into whether the MTR Corporation Limited (MTR Corporation) has covered up the progress and causes of delay in the construction of the Hong Kong section of the Guangzhou-Shenzhen-Hong Kong Express Rail Link (XRL), and whether there are any problems with the Hong Kong Special Administrative Region Government and the MTR Corporation in supervising and co-ordinating the construction of the Hong Kong section of XRL; and that in the performance of its duties the committee be authorized under section 9(2) of the Legislative Council (Powers and Privileges) Ordinance (Cap. 382) to exercise the powers conferred by section 9(1) of that Ordinance."

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

DEPUTY PRESIDENT (in Cantonese): Ms Claudia MO wishes to move an amendment to this motion. This Council will now proceed to a joint debate on the motion and the amendment.

I now call upon Ms Claudia MO to speak and move the amendment to the motion.

MS CLAUDIA MO (in Cantonese): Deputy President, I move that Mr Gary FAN's motion be amended.

Shall I continue to speak?

LEGISLATIVE COUNCIL ─ 11 June 2014 14813

DEPUTY PRESIDENT (in Cantonese): Yes, Ms MO, please.

MS CLAUDIA MO (in Cantonese): It is because I can see that it is written here that the Deputy President has one more remark to make, so I wanted to wait until the Deputy President had made this remark.

Deputy President, the problem of the Guangzhou-Shenzhen-Hong Kong Express Rail Link (XRL) is a problem of the MTRCL and the problem of the MTRCL is a problem of the Government. This is because the Government holds the largest stake in the MTRCL. After the exposure of the scandal this time around, there is a surprising scenario and that is, all those people who are related to the XRL project, especially those in the management of the MTRCL in charge of the XRL project, seem to be deliberately hiding things. They avoid talking about the matter, hoping that no one will know what is happening. This is strange. My amendment urges that an investigation be conducted into the XRL incident and I demand the Government to offer an explanation and hold itself accountable to the public.

Many people, including me, do have a good impression of Secretary Prof Anthony CHEUNG. We think that he is an amiable scholar. But after all, he is an accountable official. We hope that he can distinguish right from wrong in this incident and that he can strive to be whiter than white. It is a fact that problems have emerged and the management of the MTRCL which is responsible for the XRL project must give an account and assume the responsibility. But for those professionals who are hired to work in Hong Kong, such as Mr Jay WALDER, they are hired under a commercial contract and will leave after the XRL project is completed.

What Members are talking about is the level of political accountability. But the Secretary stated his surprise in a casual manner after he had learnt about the delay in the XRL project. And with respect to his show of sudden surprise, while we cannot blame the media for wronging him, at least I can find two very popular newspapers having questioned in their headline stories whether or not he was pretending to be taken aback by surprise. The Secretary has been trying to explain it, but his words do not come through and he cannot convince the public, including me.

14814 LEGISLATIVE COUNCIL ─ 11 June 2014

In addition, every time when the management of the MTRCL which is responsible for the XRL project explained the matter in this Council, there was a most regrettable point and that is, this Council seemed to be working with the executive authorities. Members from the pro-establishment camp only targeted the management of the MTRCL, especially the expat, Mr Jay WALDER. They used very harsh and acrimonious language to ask him questions, which was very regrettable and really a bad practice. It was like an attempt at questioning which bordered on folly. They gave the people an impression that the MTRCL is led by a group of irresponsible foreigners and that this guy Jay WALDER is trying to cover things up and doing the people of Hong Kong a great disservice. On the other hand, the Government stands aloof and washes its hands off this matter, very much like a wronged wife to be pitied. And the officials seem to be hoaxed and lost in the dark. Given that Hong Kong is an international city, this kind of things is just inconceivable.

At last someone from the MTRCL management resigned of his own accord for the delay of the XRL project. And that person is Mr CHEW Tai-chong. But he is not a Hong Kong citizen, for he is an expatriate. And another senior member of the MTRCL management proposed not to renew his contract. He is also an expatriate. Do we not think that this is also very strange?

On the other hand, if we look at the West Kowloon Cultural District (WKCD) project, although the extent of overspending is stunning, we do not see Mr Michael LYNCH who is an expatriate expert in charge of the project, come out to make any comment. What is more, it is said that Mr LYNCH could not attend a meeting because of family matters and it was surprising to see that Chief Secretary for Administration Mrs Carrie LAM had to take his place. Is that not strange? Someone may ask, why do we mention the XRL project and the WKCD project together? The reason is: these two projects will link up eventually. Now there are major problems with the XRL project, and one cause for this state of affairs is that the XRL project is to link up with the WKCD. The original intention of the Government is to extend the XRL to a premier site in Kowloon West near Tsim Sha Tsui. But that is not what the public wants.

Deputy President, the people of Hong Kong now question how serious this bureaucratic management culture in Hong Kong has become and what has actually happened. I do not know how many questions will be begged by the WKCD. But with respect to the XRL project ― well, we have to be fair ― the LEGISLATIVE COUNCIL ─ 11 June 2014 14815

MTRCL management which is in charge of the project must be held responsible. It must explain to the people of Hong Kong openly and give a clear account of the causes of the problems and the circumstances surrounding them.

But why do we see the CEO of the MTRCL being scolded heavily in this Council when problems were found in the XRL project while after similar problems were found in the WKCD, the CEO of the WKCD was not scolded. On the other hand, Chief Secretary Mrs Carrie LAM showed up to control the scene. What kinds of ways of handling the situation are these? We have this "one country, two systems" practised in Hong Kong. But does the Government also practise "two systems" in management? In these incidents, has anyone made the final decision? Or is the factor of "one single man" involved? This is a way of describing the LEUNG Chun-ying Administration. He is the "one single man". After all, who is to be held responsible?

This XRL project does have an original sin. Initially, certain experts, engineers and urban planners said that since XRL trains run at great speed, the terminus would not have to be placed in the city centre and it would be fine if it was located in the New Territories. But the Government was just bent on having its way and refused to heed. Members may recall that at that time 10 000 people encircled the Legislative Council Building to voice their opposition to the XRL, but the Government said that it was not bothered by public opinion. We all know that yesterday Beijing released a white paper which states that the Chief Executive must obey orders from Beijing and Beijing has full powers to govern Hong Kong and it can do whatever it likes.

This original sin of the XRL project is the Government arbitrarily extending the XRL from the New Territories to West Kowloon, that is, the new reclamation near Tsim Sha Tsui and links the XRL with the WKCD. This accounts for the fiasco. There is a question which I have asked twice in the Subcommittee on Matters Related to Railways, but no one has ever given me any reply. My question is that as early as in 1997, the Government knew that geological structure at the site of the WKCD is composed of hard granite and boring and digging in the usual manner would mean trouble and it would be a time-consuming process.

Is the Government ever aware of such a geological report? The Ming Pao Daily News once carried a front-page story on this. It named a geological report prepared by a French site formation company called Bachy Soletanche Group 14816 LEGISLATIVE COUNCIL ─ 11 June 2014

Limited. Although all along the Government is aware of such a report, this report is simply ignored during the entire project, that is, when design and construction are being undertaken. Is this one of the major reasons accounting for the delay in the XRL project? It is the most stupid original sin when the Government arbitrarily wants to link the XRL with the WKCD. For the sake of integration with China, the Hong Kong Government is bent on coupling the XRL with the WKCD. What is meant by integration with China? Again this relates to the Individual Visit Scheme (IVS). Ten years from now, there will be 100 million people coming in and out of Hong Kong every year under the IVS. The means of transport they rely on is the XRL, and there is no choice for the Government but to force its way through.

Certainly, I would not blame the Secretary because this original sin dates back to the times before he assumed office. But when the matter has come to this state of affairs, who should be held responsible? Should we pursue the responsibility for this original sin? This Council has undertaken a study of the IVS and this is a very good study. It talks about …

MR ALBERT CHAN (in Cantonese): Deputy President, there are very few people in this Chamber. Please ring the bell to summon Members of the pro-establishment camp to come to the meeting. They should not just get paid without doing anything and not attending the meetings. Members from the pan-democratic camp are larger in number than they. It is at a ratio of 3:2 and they are more than those from the pro-establishment camp.

I request a headcount.

DEPUTY PRESIDENT (in Cantonese): Will the Clerk please ring the bell to summon Members back to the Chamber.

(While the summoning bell was ringing, Mr Albert CHAN shouted from his seat)

DEPUTY PRESIDENT (in Cantonese): Mr Albert CHAN.

LEGISLATIVE COUNCIL ─ 11 June 2014 14817

MR ALBERT CHAN (in Cantonese): Thanks, Deputy President, for the reminder. Deputy President, why did you call out my name?

DEPUTY PRESIDENT (in Cantonese): Please do not shout from your seat.

MR ALBERT CHAN (in Cantonese): Deputy President, next time when you call my name, please state it is due to what reason that you are calling my name, or else I would not be able to know what is happening.

Thank you, Deputy President.

(While the summoning bell was ringing, Mr Albert CHAN and Mr WONG Ting-kwong scolded each other from their seats)

DEPUTY PRESIDENT (in Cantonese): Mr Albert CHAN, Mr WONG Ting-kwong, please do not scold each other from your seats.

(After the summoning bell had been rung, a number of Members returned to the Chamber)

DEPUTY PRESIDENT (in Cantonese): Ms Claudia MO, please continue.

MS CLAUDIA MO (in Cantonese): Deputy President, as I stressed particularly earlier, the original sin involved in the XRL is the Government's stubbornness to connect it with the WKCD. Why must it be so connected? This should be attributed to the "Integration between Hong Kong and the Mainland: Individual Visit Scheme". It is reported that 10 years later, the number of visitors flooding from the Mainland into Hong Kong will reach 100 million arrivals every year. It is lying to say that worries are unnecessary. Members can all see how both issues have come to the present disastrous state. Members need only read the Research Brief issued by the Legislative Council to learn that the number of visitors is the key to the cause and development of the entire incident.

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In Japan and Korea, there are only some 10 million visitor arrivals every year. As for the United Kingdom, which is a big country, there are only 30 million visitor arrivals. Yet in Hong Kong, we have over 50 million visitor arrivals. Given that Hong Kong is such a tiny city, how can we cope with visitor arrivals as many as 50 million? How can we swallow it? Among the 50 million visitor arrivals, 40 million arrivals come from the Mainland under the IVS, and the XRL is connected for the convenience of carrying these visitors in future. Do these visitors stopping by Hong Kong sincerely hope to understand our culture? I think it may not necessarily be the case, and sight-seeing is only a pretext.

Deputy President, a very important point is that the XRL is after all a transport project which should not have aroused any controversy, that means it should be "harmless", and there should not be any mistakes. However, it has become a big mess now. The reasons "may" ― this word is put in quotation marks for I do not know whether or not it is true ― be attributed to the fact that the Hong Kong Government as a whole needs to follow the instructions of the Beijing authorities. In fact, the above remark should end with a question mark. The entire situation is comparable to treating guests at the expense of others, where you invite guests to dine with you and ask me to foot the bill. The entire incident is unbelievable to Hong Kong people. The MTR Corporation Limited (MTRCL) must explain its case regarding the XRL. But since the Government is also involved, it should also give an explanation.

Moreover, I suspect many people may not have noticed an issue relating to the construction of Nam Cheong Station of the XRL. It has been learnt that about 10 years ago, a number of piles had been driven into the location of Nam Cheong Station, which was intended for the construction of Home Ownership Scheme (HOS) flats but it was given up eventually. Now, the location is on the alignment of the XRL. It is a housing issue. Secretary, the site was intended for the construction of public housing or HOS flats ― according to my understanding, it should be HOS flats ― but a decision was made against it on the grounds that the site is inconvenient for the relevant works. What causes the inconvenience? For the alignment of the XRL will pass through that site. Since piles had already been inserted into underground on the site, a total of 200 to 300 piles needed to be removed. The Secretary must know this incident. The engineer of the XRL considered the removal of piles not a cause of concern, for the removal of piles would be similar to the removal of teeth, which could be pulled out one by one by holding the piles. Unexpectedly, many piles had LEGISLATIVE COUNCIL ─ 11 June 2014 14819 developed spikes due to oxidation, which made it impossible to be pulled out directly. Since some of the spikes had even hitched underground, drilling works had to be carried out eventually. It took a lot of drilling and boring underground to make big holes to complete the removal of those piles.

The Finance Committee of the Legislative Council had granted $330 million originally for the project, which was a normal amount, but it turned out that an additional $500 million was paid to settle the bill eventually. The total cost of the project was not $500 million, but $500 million on top of the original cost, which meant that the contract would be settled at a total expenditure of $800 million-odd. Who would pay the extra $500 million? It was eventually paid by Hong Kong people. Have we ever been told about these extra problems, say the delay resulted from the removal of piles? Some people said that the MTRCL had covered up such incidents again. Since the MTRCL is after all a listed company, it will not hastily announce any information unfavourable to it. Yet, the Government is obliged to tell us that and it is only reasonable. But the Government has never disclosed a word to us. Later, the Government explained that it had mentioned the case in the supplementary information paper provided to the Legislative Council. No, this is not the case. The Government had not mentioned the figures, and it had glossed over the difficulties involved, which is also unfair to the MTRCL. Thank you.

Ms Claudia MO moved the following amendment:

"To add "the Hong Kong Special Administrative Region Government and" after "to inquire into whether"; to delete "has" after "("MTR Corporation")" and substitute with "have"; and to add "whether the MTR Corporation has properly completed the site investigation work at the West Kowloon Terminus Station to avoid unnecessary works and supplementary appropriation in the future," after "("XRL")"."

DEPUTY PRESIDENT (in Cantonese): I now propose the question to you and that is: That the amendment, moved by Ms Claudia MO to Mr Gary FAN's motion, be passed.

SECRETARY FOR TRANSPORT AND HOUSING (in Cantonese): Deputy President, the Hong Kong Section of the Guangzhou-Shenzhen-Hong Kong 14820 LEGISLATIVE COUNCIL ─ 11 June 2014

Express Rail Link (XRL) is an important cross-boundary transport infrastructure project. The Government has all along monitored closely the works on the design and construction of the Hong Kong Section of the XRL entrusted to the MTR Corporation Limited (MTRCL) with a view to ensuring the completion of the project on schedule and within the project estimate approved by the Legislative Council.

In the implementation of major construction projects, the risks of delay in works progress will be experienced from time to time. These include challenges arising from works, geological conditions and weather conditions, as well as works management and management co-ordination among contractors. There are over 40 major civil engineering contracts and electrical and mechanical engineering contracts involved in the Hong Kong Section, where various degrees of delay in construction works of individual contracts is experienced, and different recovery measures have been introduced to catch up with the progress, which is not uncommon in project management. According to the experience gained in major projects, more often than not, delay in individual works does not mean a definite delay in the completion of the project as whole. Contractors will usually take mitigation measures to catch up with the progress delay. Some of the measures are to increase manpower, overtime and the amount of machinery used in the project. Moreover, it is more important to avoid delay in critical works processes which may affect the implementation of subsequent work processes. By rescheduling the work processes and dividing up major works, certain works processes which have been delayed will become non-critical. Take the delay in digging works as an example. The rescheduling of the priority of digging works will enable certain critical subsequent works, like the construction of the structure of stations, to be carried out first at locations where digging works have been completed. Hence, in major works projects, project management and supervision are extremely important.

The Hong Kong Section of the XRL is the first government-owned railway project implemented under the concession approach. In 2008, the Highways Department (HyD) commissioned a consultant, Lloyd's Register Rail (Asia) Limited, to review and develop the appropriate institutional arrangements for entrusting the MTRCL to implement the XRL project. In view of the good reputation of the MTRCL in railway construction and its healthy project management system, the consultant recommended at the time to the HyD that the Government may adopt the "Monitoring and Verification" role in the design and construction of the XRL, perform the "Check the Checker" role instead of LEGISLATIVE COUNCIL ─ 11 June 2014 14821

"project manager" to monitor the MTLCL and engage its own professional consultants with railway experience to conduct monitoring and verification work. Specifically, this would use a risk-based sampling approach to verity delivery of the requirements of the project scope under the Entrustment Agreement. The consultant also advised that the Government's resources could be utilized more effectively under the arrangement, and it would avoid overlapping in project management obligations with the MTRCL. As to the question of whether the serious delay resulted in the XRL project eventually reflects that there are problems with the above monitoring system, the Government certainly needs to review this. The Independent Expert Panel appointed by the Chief Executive will conduct a professional examination.

Some members of the public queried that the Government should have known the delay in the Hong Kong Section of the XRL long since, and they do not understand why the Government would be "totally caught by surprise" by the notification of the MTRCL. On the other hand, if the Government is really caught by surprise, does it imply that the Government has failed to monitor the project properly, which makes it completely unable to grasp the progress of the project?

I have to explain the case here once again. As I explained earlier, delay is not uncommon in major and complicated works projects. By means of monitoring and verification, the HyD has all along been aware of the various degrees of delay in some of the works of the Hong Kong Section of the XRL. However, the HyD has been urging the MTRCL to make proactive efforts to follow up and to implement mitigation measures to catch up and to avoid impeding the progress further. In general, delay in parts of individual works does not necessarily lead to the eventual delay of the project as a whole. In fact, as at this April, the MTRCL was still emphasizing to the Government that the Hong Kong Section of the XRL was expected to be completed within 2015.

In November last year, the Transport and Housing Bureau reviewed the possibility of the commencement of the Hong Kong Section of XRL in 2015. In this connection, we submitted a paper to the Subcommittee on Matters Relating to Railways of the Legislative Council in May this year to explain the situation in detail. When the HyD learnt of the delay in the project, it urged the MTRCL to catch up with the progress and reminded the MTRCL that if there was any change in the target completion date of 2015, it must inform the Government as soon as possible. However, all along, the MTRCL had insisted that the target of 14822 LEGISLATIVE COUNCIL ─ 11 June 2014 completing the project and commencing service in 2015 could be met. Even at the urgent meeting held on 21 November last year between the government team led by the Permanent Secretary for Transport and Housing (Transport) and the MTRCL team led by the Chief Executive Officer (CEO) of the MTRCL, the MTRCL insisted that the target of commencing service in 2015 was feasible. Hence, when I received the notification from the CEO of the MTRCL on 12 April this year that the construction of the Hong Kong Section of the XRL could only be completed by the end of 2016 and services could only be commenced in 2017, I was totally caught by surprise. For there was a great discrepancy between the notification and the assessment made by the MTRCL in November, which was only five months ago, that the XRL would commence service by the end of 2015. It is totally unexpected. When I received the message, I immediately requested the MTRCL to submit a comprehensive assessment report on the Hong Kong Section of the XRL as soon as possible and to give a detailed explanation.

At present, the MTRCL still needs to provide further information and we are unable to confirm whether or not there will be cost overrun and the additional cost incurred in the event of cost overrun. We have already requested the MTRCL to catch up with the works progress and contain the construction costs of all works involved.

Some Members and various sectors of society suspect collusion between the MTRCL and the Government in covering up the delay in the construction works of the Hong Kong Section of XRL. The accusation of cover-up or collusion to cover up is based mainly on the telephone conversation between me and the CEO of the MTRCL on the morning of 21 November last year and the urgent meeting held between the senior echelon of the MTRCL and the Transport and Housing Bureau in the evening of the same day. Regarding the gist of the discussions made during the said telephone conversation and at the urgent meeting, we have provided a detailed account in a paper submitted to the Subcommittee on Matters Relating to Railways of the Legislative Council and made further elaborations at the meetings of the Subcommittee held on 5 and 19 May respectively.

I would like to take this opportunity to give a brief account to the Legislative Council and the public once again. In November last year, the Government noted that the construction works of the Cross-boundary Tunnel Section experienced serious delay and the works might only be completed in October 2015, and in that case, the trial run of the Hong Kong Section of the XRL LEGISLATIVE COUNCIL ─ 11 June 2014 14823 could only be commenced in October 2015. Since the trial run would last for at least another three months, the commencement target of 2015 might be affected. Back then, based on the works progress assessment, the Transport and Housing Bureau had considered to state at the meeting of the Subcommittee on Matters Relating to Railways of the Legislative Council scheduled on 22 November that the Hong Kong Section of the XRL might need to commence service after 2015.

On the morning of 21 November, the CEO of the MTRCL rang me up twice to insist that the construction works of the Hong Kong Section of the XRL could be completed and the XRL could commence service by the end of 2015. I did not accept this conclusion and instructed the Permanent Secretary responsible for transport of the Transport and Housing Bureau to call an urgent meeting with the CEO and colleagues of the MTRCL to clarify the latest situation for purposes of coming up with a practical assessment.

At the meeting on that day, the government team had two basic considerations. First, commencement of service in 2015 was an important policy and planning target, which we should do our level best to achieve. Yet if the target had to be postponed due to various insurmountable difficulties encountered in construction works, we must inform the Legislative Council and the public as soon as possible. This is our consistent position. Second, the CEO and the Project Director of the MTRCL expressed repeatedly at the meeting that according to the record of the MTRCL and the "can-do spirit" of Hong Kong, they were still confident that service could be commenced by the end of 2015. In the face of the repeated queries from representatives of the Government, they were still confident that they could work to catch up with the delayed works progress. They also pointed out that upon the completion of the Cross-boundary Tunnel Section and the arrival of the tunnel boring machine to commence work in Hong Kong, they could assess the impact more accurately and catch up with the delayed progress as soon as possible. At the time, the MTRCL asked the Government to give them six more months before coming to the conclusion of whether or not the Hong Kong Section could be completed in 2015. In fact, according to the information available at the time, the Director of Highways and his professional colleagues expressed that the possibility of service commencement by the end of 2015 could not be ruled out completely. At the meeting, the MTRCL stated further that if a change in the target of commencement in 2015 was announced hastily at the time, they could hardly press the contractors to speed up the works and the commencement in 2015 would be made really impossible. Colleagues of the Government decided at the 14824 LEGISLATIVE COUNCIL ─ 11 June 2014 time that the worry was not unjustified, and we should by all means avoid making "self-fulfilling prophecy".

Subsequently, after extensive and repeated discussions, the meeting agreed to give an account at the meeting of the Subcommittee on Matters Relating to Railways of the Legislative Council to be held on 22 November that the major construction works of the Hong Kong Section of the XRL would be completed in 2015, and then tests and trial runs lasting for six to nine months in general would be conducted. Deputy President, this was a practical assessment made according to the decision and consideration at the time, and there is no question of collusion to cover up. As the Director of Bureau, I agree with the decision made by the colleagues at the time. In fact, as I declared at the Subcommittee on Matters Relating to Railways, I have all along respected and trusted professional judgment in handling matters relating to the XRL. All the reports I submitted to the Legislative Council in the past were based on the professional reports and assessments of the HyD, and there has never been any question of overriding professionalism with politics. If the MTRCL eventually fail to catch up with the works progress, I will surely be disappointed. We will not give up the set target easily, and we have been urging the MTRCL to work harder to catch up with the works progress. However, if the difficulties cannot be overcome despite the hard effort, the reality should be stated, and only such practice is regarded as professional. If any delay or postponement is considered unacceptable without considering the reasons, who will be willing to be the project manager? Who will dare to tell the truth?

We learn from experience. To review the case on the basis of facts we know today, we may ask: Has the management of the MTRCL been over confident? Have the Transport and Housing Bureau and the HyD placed too much trust in the MTRCL? I agree that there were some problems with the decision made at the time and the follow-up of the issue. Had we informed the Legislative Council of and made public the difference in opinions between the Government and the MTRCL at the time, it would not have prompted doubts about the integrity of the Government for conspiring with the MTRCL to cover up the incident. As the Director of Bureau, I am responsible for this. I have solemnly apologized to the Legislative Council and the public and accepted the criticisms of Members.

A comprehensive review is necessary. The Chief Executive has appointed the Independent Expert Panel, which is chaired by Mr Justice LEGISLATIVE COUNCIL ─ 11 June 2014 14825

HARTMANN and comprised of two veteran project experts from overseas. The Panel will commence work in the middle of this month and is expected to complete the review by the end of November this year. It will then submit the report to the Chief Executive and the content of the report will be made public. The Independent Expert Panel will examine the implementation and monitoring of the Hong Kong Section of the XRL project to identify problems in the systems, procedures, operation and other aspects, and to conduct professional analyses to indentify inadequacies. If human errors are identified, accountability will certainly be pursued separately.

Moreover, the MTRCL has established a committee of independent non-executive directors to conduct a thorough review of the management approach adopted by the Corporation on the Hong Kong Section of the XRL. The committee will submit an initial report to the Board of Directors in July this year.

Deputy President, in view of the serious delay of the XRL this time around, society at large is concerned about the management of the MTRCL and requests the Government to step up its supervision over the MTRCL. I would like to reiterate here that the Government will fulfil its responsibilities as the major shareholder to introduce a series of measures step by step, including the nomination of additional directors, to strengthen the governance of the MTRCL. However, we need to understand that the MTRCL is a listed company, and all these have to be carried out according to company law and the listing rules. The Board of Directors of the MTRCL and the management are certainly obliged to heed the criticisms of society humbly, and the MTRCL should never lack risk consciousness because its overall performance enjoys a leading position in the international arena.

The Government will make more comprehensive and frequent reports on the progress of the XRL and other railways projects underway to the Legislative Council to enhance transparency. At the special meeting of the Subcommittee on Matters Relating to Railways to be held next Tuesday, that is, 17 June, we will report the latest progress of the West Island Line, the South Island Line (East) and the Kwun Tong Line Extension. At the meeting of the Subcommittee on Matters Relating to Railways to be held next month, that is, 4 July, we will report the works progress of the Shatin to Central Link.

14826 LEGISLATIVE COUNCIL ─ 11 June 2014

Deputy President, the Government does not support Mr Gary FAN's motion. Since the enactment of the Legislative Council (Powers and Privileges) Ordinance (P&P Ordinance) in 1985, it has been nearly 30 years by now. Over the period, the Ordinance had been invoked for the establishment of committees of inquiry for less than 10 times, where incidents of extreme severity were involved in each of the cases and the legislature at the time considered invoking the P&P Ordinance the only way to obtain the information required from the Government and the persons involved and to summon witnesses to find out the truth.

Regarding the delay in the Hong Kong Section of the XRL, the Government and the MTRCL have submitted a number of papers to the Subcommittee on Matters Relating to Railways to explain in detail the causes and reasons. With the exception of certain sensitive commercial information, the Government is willing to provide the required information to the Legislative Council to enable Members and the public to gain further understanding of the latest progress of the XRL project. At the same time, the MTRCL has decided to set up a data room for the storage of major documents to allow Members of the Legislative Council to make reference to them during the works so as to enhance the transparency of the works progress.

Moreover, the Independent Expert Panel led by Mr Justice HARTMANN will thoroughly examine the implementation and supervision of the XRL project to identify if there are any systematic or other problems. The Government and the MTRCL Board have stated clearly that they will fully support the work of the Independent Expert Panel. For these reasons, we consider it unnecessary for the Legislative Council to invoke the P&P Ordinance to force the Government to submit the information and summon the relevant officers.

Under the present circumstance, if the P&P Ordinance is invoked for the establishment of a committee to inquire into the delay of the XRL, it will on the contrary impede the progress of the XRL, for officers in the Government and the MTRCL responsible for the project, as well as contractors and consultancies, and so on, will have to spend a lot of time on preparing the papers for submission to the Legislative Council, attend meetings and employ lawyers to provide assistance in attending hearings. The Government considers that the imminent task is to concentrate all the efforts on catching up with the works progress with a view to completing the works expeditiously for the early commencement of service of the XRL in safe conditions. The Government will continue to LEGISLATIVE COUNCIL ─ 11 June 2014 14827 co-operate with the Subcommittee on Matters Relating to Railways by submitting the reports and other information required.

Furthermore, the amendment proposed by Ms Claudia MO requested that the committee should at the same time inquire into whether the MTRCL has properly completed the site investigation work at the West Kowloon Terminus Station to avoid unnecessary works and supplementary appropriation in the future. Safety has always been given top priority during the implementation of the Hong Kong Section of the XRL project. The MTRCL stated that during the design phase and before works commenced, the MTRCL had conducted site investigation and impact assessment of the buildings along the XRL alignment. It had also conducted a thorough review of the relevant drawings and records so as to obtain geological information and to formulate the most suitable construction method. For example, the site investigation works for the West Kowloon Terminus site were conducted in phases between 2008 and 2010. The MTRCL obtained the information of more than 600 borehole logs in the whole works area during the period before and after the MTRCL took possession of the site. In other words, information of borehole logs was obtained at a spacing of 14.4 m on average. This density complies with relevant government guidelines and the HyD holds that the relevant work is in order.

Earlier on, Ms Claudia MO mentioned a so-called geological memoir in 1997, which was the geological memoir conducted by the Kowloon-Canton Railway Corporation in 1997 for the construction of the Austin Station of the West Rail. In fact, that report and the other geological memoirs completed on the relevant projects in the area of the West Kowloon Terminus Station North in the early period had been included in the relevant contracts, that is, the contractual documents of Contract 810A on West Kowloon Terminus Station North, to serve as reference information for the contractors concerned. Therefore, there is no question of lacking knowledge of the geological memoirs at the time.

Deputy President, for the reasons stated, the Government considers it unnecessary to invoke the P&P Ordinance to separately set up a select committee to inquire into the incident.

With these remarks, Deputy President, I implore Members to oppose the motion and the amendment.

14828 LEGISLATIVE COUNCIL ─ 11 June 2014

MR MICHAEL TIEN (in Cantonese): Deputy President, the motion today proses to inquire into the delay in the Guangzhou-Shenzhen-Hong Kong Express Rail Link (XRL) on powers conferred by the Legislative Council (Powers & Privileges) Ordinance (P&P Ordinance). This is one of the questions I have been asked most frequently recently. People asked why I criticized the MTRCL and the Government harshly yet did not support invoking the P&P Ordinance to inquire into the incident. Right, I have stated unequivocally that I will not support invoking the P&P Ordinance to inquire into the incident. I have stated more than once in public that after two rounds of questioning at the Subcommittee of Matters Relating to Railways, we have known 90% to 100%, or at least 80% to 90%, of the information we need to know. In my view, to invoke the P&P Ordinance to inquire into the delay of the XRL is putting up a show which cost would be borne by the public, so it is extremely undesirable.

The scope of inquiry proposed by the two Members, in a nutshell, is to examine whether the Government has covered up the delay deliberately or whether it has conspired with the MTRCL to cover up the delay. The explanations given by government officials and representatives of the MTRCL on different occasions have stated clearly that government officials have given the benefit of doubt to the defendant, which means they still believe there is a chance for the MTRCL to catch up with the scheduled progress. I will not describe it as showing mercy despite doubts, for I think it is not an apt description. Members and the public may blame government officials for making a wrong judgment and being naïve, or that they have blindly pursued a common statement to avoid facing the scenario of each party presenting its own views.

The Secretary has admitted that he had wrongly trusted the MTRCL, but Members refuse to believe in this. Members should think about this. Why should government officials cover up for the MTRCL? If there is any cover-up, particularly a deliberate cover-up, there must be a motive. What is the motive then? If government officials were irresponsible, they would have come forward immediately to rebuke the MTRCL once they smelt that something had gone wrong, and they would have required the immediate replacement of the CEO in the capacity of the major shareholder or made the remarkably confident CHEW Tai-chong the scapegoat, so that they could sit on the sidelines. However, the facts tell us that the Government has trusted the wrong person and placed the wrong bet.

LEGISLATIVE COUNCIL ─ 11 June 2014 14829

Members have the right to consider government officials untrustworthy. Yet if they consider the independent investigation committee, the Judge, overseas experts and persons in independent capacity all untrustworthy that Members have to conduct an investigation into every incident by themselves in future, is it a desirable practice? Investigation committees have been set up by the Government and the MTRCL Board separately. The scopes of these two investigations cover completely, or beyond, the scope of the investigation proposed to be carried out under the P&P Ordinance by the two Members. I believe their knowledge in construction works, management experience, credibility and authoritativeness will not be lesser than that of Members. I strongly believe that they will take into account their own reputation in conducting the investigation and they will surely maintain neutrality and impartiality. They will never undermine their own reputation by being biased in favour of the Government or the MTRCL, particularly the MTRCL. The investigation committees have not yet completed their investigations and the results have not yet been announced. Why would Members consider that the reports of the two committees would not uncover anything and that they must invoke the P&P Ordinance now to conduct a duplicated investigation?

The pan-democratic camp often claims that an investigation conducted under the P&P Ordinance is legally binding and witnesses will not tell lies. Does it mean that witnesses will easily tell lies before the Judge and experts from various fields at the independent investigation committees? Moreover, if the P&P Ordinance is invoked to conduct the investigation, may I ask how many Members will participate fully in the investigation? It is evident in the Lehman Brothers incident in 2008. When the incident was of grave concern to many, 27 Members participated in the investigation. However, the enthusiasm waned with the passage of time. A number of Members expressed that the incident was too complicated and involved too much professional knowledge, and one third of the members on the committee withdrew, leaving only 16 members. Back then, certain Members told reporters that one fourth of the members attended the meetings late and left early or did not ask any question. Let me share with Members some of the reports in the past. Deputy President, the headline of this article states to the effect that "Members on Lehman Brothers committee on the run" and the headline of another article states to the effect that "Repeated absence of Members embarrassed LegCo". These were investigations conduced under the P&P Ordinance. May I ask Members whether they want the recurrence of 14830 LEGISLATIVE COUNCIL ─ 11 June 2014 such scenes, spending the hard-earned money of the public on the building of a platform for certain Members to stage a show?

If Members have paid attention to the replies to the questions raised at the Subcommittee on Matters Relating to Railways, they will have known 70% to 80% of the incident, just as I said earlier. The Secretary, the Chairman and the CEO have made open apologies and expressed that a data bank will be set up for Members to inspect the documents. So, Members may examine the documents carefully. They have made repeated apologies and admitted their faults, and stated that they will make public the relevant information. If Members consider it necessary to invoke the P&P Ordinance to conduct an investigation for certain government officials have made wrong judgments and should step down, Members should propose a motion of no confidence direct instead of using the present approach. Why did they choose this approach? I see no reason for this.

Lastly, I would like to share my experience gained in the Kowloon-Canton Railway Corporation back then. Back then in the Siemens Incident, I was the Chairman of the ad hoc investigation committee, and it was not common to invoke the P&P Ordinance at the time. Later, the investigation was finished and it had not aroused many queries. However, the incident had an extremely great impact on the West Rail project under the MTRCL. I now worry that if an investigation was carried out into the incident now and if the project could not be completed by 2017, they might offer the excuse that they had been exhausted by the investigation conducted by Members under the P&P Ordinance, so much so that they could not monitor the contractors properly.

Deputy President, many supporting departments, such as departments providing engineering support and programming, and so on, are concurrently providing support to the West Island Line, the South Island Line, the Kwun Tong Extension and the Shatin to Central Link, whereas the contract department, the most important department, has to deal with the claims involving contractors of various lines promptly, or else there will be a significant increase in expenditure which will eventually be met by taxpayers. If we confirm invoking the P&P Ordinance to inquire into the incident, all staff members of these departments will have to spend most of their working hours in this Chamber, whereas the work concerned will all be delayed, affecting the several lines now under construction and the claims from contractors arising from cost overrun.

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Therefore, I am extremely worried that the incident will not only affect the XRL but also bring forth impact in various aspects on the several lines, including the Shatin to Central Link. I do not want to give them the opportunity to shift all the blame to the P&P Ordinance in future. Members should remember that CHEW Tai-chong will leave this year and Jay WALDER will leave next year. I am afraid the post of the Chairman of the MTRCL will be taken up by another person. By the completion of the XRL in 2017, or the completion of other railway works within these two years, they may use the investigation conducted under the P&P Ordinance previously as the excuse for all kinds of blunders, and we will be led by the nose. I am extremely reluctant to let them use this as an excuse, so I have made the present decision to oppose the motion proposed under the P&P Ordinance.

Deputy President, I so submit.

MR CHARLES PETER MOK (in Cantonese): Deputy President, first of all, I would like to thank Mr Gary FAN for proposing the motion in accordance with the Legislative Council (Powers and Privileges) Ordinance (P&P Ordinance), and I thank Ms Claudia MO for her amendment.

It has been more than a month since the announcement in mid-April that the Guangzhou-Shenzhen-Hong Kong Express Rail Link (XRL) project will be delayed due to damage to the tunnel-boring machine by the black rainstorm and other complicated geological features. After the completion of the Budget debate, our Council business resumed according to the Agenda and we finally came to this motion. However, news about the delay of the XRL project and even delay of other MTR extension projects are reported every day. In recent weeks, apart from the XRL project delay, we have learnt that even the West Kowloon Cultural District (WKCD) Project will also be affected such that it has to be developed in a "piecemeal" manner resulting in repeated delays. We really do not know how long the site will remain idling under the sun. The plight of the WKCD Project is due to the fact that part of the site is undergoing excavation for the XRL project. In analogy, this is like the "borrowing of Jingzhou by LIU Bei", meaning that no one knows when it will be returned. The taxpayers and citizens are most unfortunate as the cost overruns of the WKCD will be borne by them. As a result, there will be no residual fund for the construction of the third phase and the public will be deprived of the facilities that are supposed to be built for them. It is all pointless to cry over it.

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I notice that in this incident, Honourable colleagues of the pro-establishment camp also came forth immediately and pointed an accusing finger at the MTRCL. Certainly, Mr Christopher CHUNG, who scolded Jay WALDER, the MTRCL CEO, in English, has become a "national hero". If he speaks in English today, he will definitely be reported by the CNN. In addition, the Federation of Trade Unions indicated its stance immediately that it would not rule out ― it merely used the phrase "not rule out" ― the possibility that it would support an inquiry by invoking the P&P Ordinance. Let us see what their comments are later on. However, I hope that Honourable colleagues of the pro-establishment camp will not say "apply mercy despite doubts" (疑中留情) as the Secretary did. If they put up various pretexts to oppose the motion on invoking the P&P Ordinance to conduct an inquiry after expressing severe criticisms, the MRTCL will be set free again.

Speaking of "疑中留情", I think my Chinese standard is poor because I have never heard of this phrase. So, I looked it up on the Internet through Google. To my surprise, it is a term originating from English, meaning "benefit of doubt". I often use this phrase and even use it when chitchatting with friends. Nonetheless, I decided to look up the definition on the Internet. After browsing the Wiktionary, I found its meaning. It means "A favourable judgment given in the absence of full evidence". In other words, in the absence of full evidence, a judgment, decision, opinion or viewpoint which is favorable to one party is made. Two questions then came to my mind. First, why should a favourable judgment (that is, a favorable opinion or decision) be passed on the MTRCL? It will imply that it has no problem. Should the controlling officer make such a subjective decision (judgment call)?

Just now, Mr Michael TIEN ― he has left the Chamber after staying here for a short while. He often criticized Members for not staying in the Chamber ― He said that this is not a court and we cannot give the defendant the benefit of doubt. But the controlling officer (that is, the official) is not a judge either, so he should not make this judgment call in my opinion. According to the explanation in the dictionary, "in the absence of full evidence" means that there is a lack of sufficient and comprehensive evidence, but a decision is made as I mentioned just now. In other words, the lack of sufficient evidence is even a more serious problem. How can the decision be made given that there is insufficient evidence to support it? This is a wrong decision. Further, we have LEGISLATIVE COUNCIL ─ 11 June 2014 14833 reason to suspect that the decision is made by an official who is derelict in his duty.

Speaking of English terms, the Secretary also mentioned earlier the "can-do spirit", which was also mentioned by Jay WALDER, the MTRCL CEO. On hearing the remarks of the CEO of the MTRCL who is trusted by the Secretary, I went to check the meaning of "can-do" in "can-do spirit". It means "I can do it". I found two explanations afterwards, one of which means "confident and resourceful in the face of challenge". In other words, the person concerned looks confident and capable in the face of challenges. In fact, the Secretary should ask himself whether he has placed excessive trust in the MTRCL. The answer is clear and obvious. Speaking of capability, doubt is cast on the MTRCL in respect of its capability if we take a look at its recent performance as a whole. Another explanation for the term is: "marked by purposefulness and efficiency", meaning that the person concerned has a goal, a mission and acts efficiently.

After analysing all these terms and looking at the recent performance of the MTRCL, I believe the facts are unfortunately the opposite. So, after analysing the meaning of these terms, we will understand why we wish to propose that an inquiry be conducted by invoking the P&P Ordinance. Now, how can we … speaking of the terms mentioned just now such as "confident", do we have confidence in the MTRCL? How can we have confidence in it given its practice of peer investigation?

Certainly, many Members from the pro-establishment camp may veto the motion. They have presented several reasons. It is reported by Wen Wei Po that Mrs Regina IP negatived the motion on invoking the P&P Ordinance to investigate the delay in the construction of the XRL project for a second time in the House Committee on the ground that (I quote) "The MTRCL is also implementing other major railway projects." Just now, Mr Michael TIEN also said that if the P&P Ordinance was invoked to investigate the incident, this Council would become a court. In fact, this Council will not become a court. I have mentioned this point many times, so I will not repeat it. He said that the MTRCL has to hire lawyers and the process will be very complex. He is worried that the MTRCL will be adversely affected in taking forward the project and more money will have to be spent. So, it does not worth the candle. He has omitted only one point: the MTRCL will raise fares on this ground.

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I find such an excuse very strange. To conduct an investigation and to build a railway project are two separate issues. Even though the MTRCL has to hire lawyers, these lawyers are not expected to be engaged in the project. It is not expected that all engineers are required to testify before the Legislative Council either. We just want them to tell the truth and produce documents, rather than requiring them to stop working. So, I think these far-fetched justifications are cited for the purpose of giving up pursuing the case.

As Legislative Council Members, we should perform our duties rather than evading our responsibilities. Sometimes, we really have to pay a price for justice and truth. So, I think it is worthwhile to conduct an investigation by invoking the P&P Ordinance even though we have to pay a price for it. Moreover, it is also worthwhile for society and the public in the long run. Otherwise, as we can see it, no improvement will be made despite the spate of incidents that has occurred in each MTR extension.

Moreover, back then, the XRL project ― I was not a Legislative Council Member yet. But many pro-establishment Members supported the appropriation for the construction of the XRL ― Members were unable to block it even if they resorted to filibustering. As the saying goes, "It is fine if nothing goes wrong." But now something has gone wrong, they have to be jointly responsible. At least, if we can invoke the P&P Ordinance as a "remedial measure" to investigate the cause of the delay so that the public can know whether the MTRCL and the Government have covered up anything, or whether they knew in advance that the project would be delayed and put the blame on the black rainstorm. It is not the first time the MTRCL makes such a mistake. It is spending taxpayers' money every day, and this incurs an opportunity cost, meaning that the project cannot be completed due to endless delays. Therefore, the investigation will enable us to identify more problems in their supervision and co-ordination. I believe, as suggested by Ms Claudia MO, unnecessary works procedures and supplementary appropriation in the future can be pre-empted. Therefore, if we do not pursue accountability, we will pay dear for our whistle. Therefore, we have to invoke the P&P Ordinance because the Legislative Council does not wish to "make a favourable judgment in the absence of full evidence", as the Secretary did.

In the past month or so, I have read a lot of articles analysing the main causes of the delay in the XRL project. Many critics are of the view that the MTRCL and the Government may not necessarily admit liability. Secretary LEGISLATIVE COUNCIL ─ 11 June 2014 14835

Prof Anthony CHEUNG and Chairman Raymond CH'IEN have insisted that they had not conspired to cover up anything. Chairman CH'IEN asked what benefit the MTRCL would get by covering up the fact. It actually will stand to benefit because so far, no one knows who will pay the costs of the delay. Will it be totally borne by the Government? Will the MTRCL meet part of it? Or, will the liability of the MTRCL depend on the faults committed by itself as confirmed by investigation?

From the engineering perspective, this incident is also very strange. The senior management of the MTRCL, including the Chairman and CEO, are completely unscathed. Instead, personnel of the engineering department have to bear the brunt. Who will be responsible for handling the project in the future? Will the Chairman and MTRCL CEO roll up their sleeves and take up the job with their own hands, not to mention the fact that one of them will step down soon? Just now Mr TIEN even expected that the Chairman will quit too. Many members in the engineering sector query who will have the courage to be the contractors of MTRCL projects in the future. This is a long-standing problem instead of being found out by the Legislative Council only recently. We have the responsibility to solve it.

Moreover, the XRL project is flawed and hastily launched. The project was passed hastily without undergoing any thorough site investigation. Back then, the Professional Commons ― none of our members had yet become Legislative Council Members ― had proposed several options, including the Kam Sheung Road option which offered a different alignment. Even if the XRL terminus is sited at Kam Sheung Road, it is expected that the impact on residents would be minimized while the cost would also be lower. This option had not attracted much attention for the reason that it might not be better than the Government's proposal. At least the Legislative Council held such a view. But today, we can see the objective consequences arising from our then worries including the impact on the structure of buildings in the area of Tai Kok Tsui, the alignment is not cost-effective and the cost estimate is ambiguous. Our worries have basically come true.

The Chief Executive has recently proposed to reduce the number of visitors coming to Hong Kong under the Individual Visit Scheme. Back then, we were worried that the low capacity of the XRL would lead to a financial loss. Now, we can see that the loss may be even more serious as the bad consequences have surfaced before the completion of the project. From then to now, the authorities 14836 LEGISLATIVE COUNCIL ─ 11 June 2014 have pulled the wool over our eyes by presenting untrue and incomplete information. Furthermore, our discussion was led to the confrontation of two options. As a result, the public were unable to see the truth. Today, there are really problems with the project. We should seize the opportunity and invoke the P&P Ordinance to investigate the incident in order to find out why the commissioning of the XRL was scheduled for 2015 despite the challenges of objective conditions. Eventually, the project cannot be completed as originally scheduled and weather condition such as the black rainstorm is blamed. They are trying to cover up a lie by another lie. We should not allow the MTRCL to continue to squander taxpayers' money in such a manner. In its eyes, this is other people's money and the Government will bear all the costs if anything goes wrong. This is totally unreasonable because we, as taxpayers, are other people in its eyes. We are the source of the money.

Therefore, Deputy President, as the Secretary mentioned earlier, only a serious incident will be investigated by invoking the P&P Ordinance. Given that this is a very serious incident and the so-called transparency of the MTRCL simply does not exist, we do not have any confidence in it.

With these remarks, I support Mr Gary FAN's motion and Ms Claudia MO's amendment. Thank you, Deputy President.

MR CHAN KAM-LAM (in Cantonese): Deputy President, it was suddenly announced that the Hong Kong Section of the Guangzhou-Shenzhen-Hong Kong Express Rail Link (XRL) project would be delayed for nine months while the date of commissioning will be postponed for about two years. This is the most undesirable thing to be seen. The XRL is divided into two sections. The Guangzhou-Shenzhen Section starts at Guangzhou South Railway Station and ends at Shenzhen Futian Station, with a total length of 110 km. The Hong Kong Section starts at the Kowloon Terminus at Kowloon West and ends at the border between Hong Kong and Shenzhen, with a total length of only 26 km. While the Guangzhou-Shenzhen Section from Guangzhou South to Shenzhen North was commissioned in 2011, the Shenzhen North-Futian Section will also be commissioned in late 2014.

First of all, the delay of the Hong Kong Section has led to a significant increase in costs. In addition, the 84 km-long Guangzhou-Shenzhen Section of the XRL was commissioned as early as 2011, while the Hong Kong Section, which is only 26 km long, is still under construction and its commissioning will LEGISLATIVE COUNCIL ─ 11 June 2014 14837 be delayed for at least two years. As a result, the full opening of the Beijing-Hong Kong Express Rail Link will also be postponed. The construction of major projects in Hong Kong always gives people an impression of being highly efficient, expeditious and accurate in completion date, and highly reliable. But this time around, the XRL incident has destroyed the Hong Kong brand name of its own making. According to the MTRCL's estimation, the cost overrun will be at least $3.4 billion. This is the direct financial loss, while the indirect economic loss is hardly calculable. Before this, the Government said that apart from the revenue brought by the XRL itself, consumer spending of more than $3 billion per annum will be brought due to an increase in the number of visitors to Hong Kong in the long run. Now, such economic benefits will have to be reassessed due to the delayed commissioning of the XRL.

As the delay is unavoidable, we should face the problem in a proactive manner and conduct a timely review instead of putting the blame on anybody. The remark of Mr Charles Peter MOK that those who then supported the construction of the XRL should bear the responsibility for the delay is ridiculous. It is entirely understandable that difficulties will be encountered in the construction of such a major project like the XRL and delay is inevitable. However, when did the MTRCL become aware that the project would be delayed? Did it know that the project would be delayed last year but fail to explain the problem to the Government, the Legislative Council and the public? Now the Government wishes to pursue the case to find out whether the MTRCL had concealed any information in its previous progress reports. We have also seen that the MTRCL has made a lot of blunders recently, resulting in the deterioration of its public image. Furthermore, this has exposed the flaws in the internal management of the MTRCL, for which a significant revamp is necessary.

After looking up the relevant information, I found that the media had exposed on several occasions delays in the XRL project as early as last year. But the management remained convinced that the MTRCL's engineering team could meet the schedule. Owing to its over-optimism about the MTRCL's capability, various departments were deeply convinced. Furthermore, they made every effort to defend the MTRCL in the public. This reflects that the management has failed to discharge its responsibility in internal supervision. It has only relied on the project team to report the progress of the works. In the absence of mutual monitoring among different departments, the potential crisis has been ignored. If the internal management had maintained the highest degree of vigilance against such a major project, recognized the difficulties and risks at 14838 LEGISLATIVE COUNCIL ─ 11 June 2014 the critical moment, and laid all the cards on the table in a timely manner, it would not have been blamed for deliberately covering up the problems from the public.

Secondly, the internal management of the MTRCL has failed to attach due weight to the problem of manpower shortage and failed to accurately grasp the progress of the project. The management has failed to respond to changes with proactiveness. The MTRCL should hold the upper echelon responsible, and adopt a pragmatic approach by sparing no efforts in improving and revising the methods of construction so as to ensure that there will not be any further delay. Meanwhile, it should seriously do some soul-searching and learn a lesson from the incident. Regarding various railway projects which have been or will be implemented, the MTRCL should thoroughly review the current project management model and strengthen supervision.

The Government has undertaken that it will seek legal advice from the Department of Justice and consider the responsibility of the MTRCL in the light of the legislation to ensure that the interests of taxpayers will be taken care of. We agree with the Government's attitude. The SAR Government is the biggest shareholder of the MTRCL, while the XRL project is a public works project. The recent delay in the project is certainly due to mismanagement, thereby attracting public criticisms. The Government is also duty-bound insofar as its governance is concerned.

On the other hand, we should try all means to minimize the possibility of further delay and keep the expenditure within the approved budget of the original project. In addition, it is necessary to consider introducing new technology in the face of new engineering challenges in order to accelerate the progress of the project. These will necessitate the close follow-up by the Government and the MTRCL. For instance, during a site visit, we saw that the speed of the boring machine in drilling granite was really too slow. If blasting can be applied to the project, the Government should consider adopting such a method in a proactive manner.

At present, it may be helpful to get to the truth by invoking the Legislative Council (Powers and Privileges) Ordinance (P&P Ordinance) to investigate the incident, but a lot of manpower is needed in collecting and collating information, and attending meetings, thus indirectly causing delays to the progress of the project. This will lead to further delays of the belated project. Instead of LEGISLATIVE COUNCIL ─ 11 June 2014 14839 solving the problem, this will result in greater financial losses. At present, the Democratic Alliance for the Progress and Betterment of Hong Kong disagrees to conducting an investigation by invoking the P&P Ordinance because we put the focus on the long-term interests of Hong Kong. But it does not mean that we will let the Government and the MTRCL go. As a political party with commitment, we have adhered to the principle of calling a spade a spade. We will spare no efforts in following up the incident and demanding that the MTRCL and the Government make clarifications expeditiously and provide a clear account to the public.

Furthermore, engineering problems are complicated, involving many professional technical issues. Even if the Legislative Council conducts an investigation, we may not be able to get to the truth. Recently, the MTRCL has set up an independent committee comprising six non-executive directors, with authorized access to all information. It may also commission an independent consultant to provide a third-party viewpoint. A preliminary report will be submitted to the Board of Directors in July. We believe an investigation by such a committee will have advantages over an inquiry by the Legislative Council in that the information will be more comprehensive; it will an investigation in a more efficient manner; it will be more professional and its credibility will also be stronger.

Meanwhile, the Government has established an independent panel of experts chaired by Mr Justice Michael HARTMANN, the Non-Permanent Judge of the Court of Final Appeal. It also comprises other members including an infrastructure specialist from the United Kingdom and a professor from the Massachusetts Institute of Technology, with the objective of reviewing the causes of the delay in the construction of the XRL project. The panel's independence, impartiality and professionalism are indisputable; and it is expected that a report will be submitted in November after completion of the review.

In addition, the MTRCL has agreed to opening its central database, allowing Members to access documents relating to the progress of the XRL project after signing a confidentiality agreement. The central database will be open to Members from June onwards, and documents and information will be regularly updated. We hope that if Members are interested, they may, through this channel, access relevant information and monitor the progress of the project in its entirety.

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As these two independent committees have been set up to investigate the incident and Members are allowed access to relevant information, why do we not wait until reports are submitted by the two committees before deciding whether it is necessary to follow up in the light of the findings of the investigations? In addition, we must be wary about people with ulterior motives, with the intention of turning the incident into a political issue so that the construction of the project will be further delayed on the pretext of invoking the P&P Ordinance for an investigation.

Since the implementation of the Hong Kong Section of the XRL project by the Government in 2009, many challenges such as expenditure, land resumption, siting of railway stations and design options have been encountered. The opposition camp has provoked conflicts by taking advantage of the public concern about the project. On the pretext of opposing the project, they are trying to oppose the SAR Government. Ms Claudia MO just now mentioned casually that the XRL project was an innocuous thing. This reflects that the Civic Party looks down on these major infrastructure projects. The construction of the XRL is crucial to the economic development of Hong Kong. If the XRL comes to its terminus at Futian, Shenzhen, and does not extend to Hong Kong, Hong Kong will be marginalized in the entire XRL system of the Mainland. Members who agree to conducting an investigation by invoking the P&P Ordinance are those who resolutely opposed the implementation of the XRL project back then. Some of them even pointed an accusing finger at the Government, requesting the Secretary to step down. Their intention does not target at the incident, but the parties concerned and the Government. This is an abuse of powers of the Legislative Council. This will stifle the administration of the Government. Further, it will seriously impede the development of Hong Kong, and society will ultimately have to bear the consequences of the delay in the construction of infrastructure.

It is worth pondering that an efficient and perfect social system has been a competitive edge in which Hong Kong takes pride. But in the past few years, endless social disputes and political bickerings have manifested themselves in the XRL project. Worse still, all the other projects and development plans in Hong Kong have been delayed. We will know how serious the problem is by taking a look at the number of projects pending at the Public Works Subcommittee and the Finance Committee. This storm has given us a good opportunity to make a self-examination. In the face of these problems, should we rationally discuss and solve the problem, or ignore the consequences and intensify the LEGISLATIVE COUNCIL ─ 11 June 2014 14841 contradictions by invoking the P&P Ordinance as a political weapon, with the intention of delaying the project indefinitely or causing it to be implemented at a snail's pace until Hong Kong's competitive edge has entirely waned?

With these remarks, Deputy President, I oppose the motion.

MR FREDERICK FUNG (in Cantonese): Deputy President, I support the motion and the amendment. The Guangzhou-Shenzhen-Hong Kong Express Rail Link (XRL), with a total length of 140 km, begins its journey from Shibi Terminus at Guangzhou to Hong Kong via Huanggang of Shenzhen. The Hong Kong Section, with a total length of 26 km, starts its journey from the West Kowloon Terminus at West Kowloon Reclamation area, via Tai Kok Tsui, Nam Cheong at Sham Shui Po, Kwai Chung, Eagle's Nest, Kam Shan, then Tai Mo Shan, Shek Kong, Pat Heung, Kai Keung Leung, Ngau Tam Mei and Mai Po in the New Territories, before finally reaching Huanggang directly through a tunnelled section.

I remember when this project was discussed back then, there were a lot of disputes covering a wide range of problems such as the impact on the livelihood of residents living along the railway line in the New Territories, including agricultural activities on farmlands, relocation of residents in the rural areas, and so on. Insofar as the urban area is concerned, other problems are involved. For instance, we had participated in helping the Tai Kok Tsui kaifongs follow up the safety problem caused by the XRL project to their residential buildings, that is, the measures to be adopted by the authorities to ensure the safety of their buildings.

In fact, no conclusions could be reached after a myriad of such discussions because the discussions were conducted in a very rushed and sloppy manner. Deputy President, I believe you also remember that when the relevant motion was discussed on that day, you and I also participated in filibustering. I disagree with the motion on the construction of the XRL due to its haste, particularly in the process of discussion, the Government repeatedly stressed that consultation had been conducted. Back then, I asked the then Secretary for Transport and Housing, Ms Eva CHENG, whether she knew how consultation was conducted by the Government in Tai Kok Tsui. Surprisingly, she did not know the answer and immediately asked the official sitting next to her for advice. Of course, I do not remember the ranking of the official. Nevertheless, the official who could 14842 LEGISLATIVE COUNCIL ─ 11 June 2014 sit beside her must be a high-ranking staff. He immediately checked relevant information from a pile of documents which was almost 2 ft thick before telling me that they had conducted a two-day consultation.

Then, I asked Secretary Eva CHENG whether she knew the venue of the two-day consultation. Having no idea of the answer, she immediately asked the official sitting next to her as she did before. The official flipped through the files again for one minute, but he was unable to answer my question. On seeing that, I told Secretary Eva CHENG that I could answer the question for him. The first consultation was held in a restaurant at Tai Kok Tsui. Deputy President, the Government held the consultation on such an important issue relating to the XRL project in a restaurant. It is indeed unheard of. As for the second consultation, it was conducted through mailing letters to the chairmen of owners' corporations (OCs) of around 30 buildings which would be affected. These OC chairmen might or might not attend the meetings depending on their mood. Some of them had put up posters with relevant information in the lift lobbies but some had not. As a result, the ordinary flat owners had no idea of the consultation.

Where was the venue of the second consultation? If the Deputy President had also attended … I guess you have forgotten about it. It was the Henry G. Leong Yaumatei Community Centre. It takes about seven minutes by taxi from Tai Kok Tsui to the Community Centre. If you go there by public minibus, it will take about 10 minutes. Given the distance between the Community Centre and Tai Kok Tsui, was the consultation conducted in a serious and sincere manner? Why did the Government not book a community centre or school hall for holding the activity at Tai Kok Tsui? There are such facilities in the district. Therefore, can we describe such a consultation exercise as sloppy and hasty? The public are not convinced that the consultation was properly conducted.

Today, the Government is still telling us the progress of the project being taken forward. To put it bluntly, the Government was originally dilly-dally in handling the XRL project. Why did it suddenly become determined to expedite the implementation of the project? I think this is because the construction of the XRL project on the Mainland was so "efficient" that the XRL network had come to our door in Hong Kong. So, the Hong Kong side had to decide immediately whether it was necessary to build the Hong Kong Section to connect with the XRL in Mainland. Initially, it was suggested that the XRL and West Rail can share the same track at different platforms. Meanwhile, there was an option proposing that the XRL should be operated on an independent track. So, different feasible options had been proposed. Regarding the XRL terminus, is it LEGISLATIVE COUNCIL ─ 11 June 2014 14843 necessary to site it in West Kowloon? Can it be set up in other locations so that the cost and length of the XRL can be reduced? Some people even opine that as the Hong Kong section is only 26 km in length, is it necessary to build the XRL? The XRL, operating at a speed of almost 300 km per hour, will have to start to decelerate before reaching 300 km per hour when approaching Lo Wu. The Government was unable to provide any convincing answers to all these questions back then.

Deputy President, the majority part of the Hong Kong Section of the XRL is constructed by excavating tunnels across the entire New Territories so that it can directly reach Kowloon West, the heart of downtown Kowloon. Challenges such as changes in underground rock strata, loss of groundwater, reprovisioning of underground utilities, the impact of major maintenance stations on nearby residents, and so on, has resulted in exorbitant construction costs. Today, we see problems such as project delay, expensive construction cost and even cost overrun. In fact, when the Government sought appropriation for the project, Members should have foreseen these problems.

Mr CHAN Kam-lam pretends to be unaware of these problems. In fact, he is smarter than me and knows it better than me in this regard. How can he not know? The XRL project is like the Great Leap Forward, which sought to pursue development blindly. In my opinion, the then SAR Government, under the leadership of Chief Executive Donald TSANG who was fond of grandiose plans and toed the Central Authorities' line, made an unreasonable and unusual decision, eventually leading Hong Kong to the current situation. Deputy President, the XRL is a big white elephant of our society, and this big white elephant is a negative equity asset.

Deputy President, since the appropriation has been approved by the Legislative Council, I will ask everybody … not everybody, but the Government about the latest progress of the project every year. Is there any cost overrun? What difficulties are encountered? The Secretary also knows that I will raise these questions every year, and the Secretary has also answered them. Every time he repeated the same answer: Nothing has gone wrong, the project will not be delayed and there is no problem of cost overrun. When he provided such a reply to my question, did he really not know the truth? Or did he actually know it? Or did he not know the delay although someone else knew it? Did someone else know the delay but keep the Secretary in the dark? Or both of them were unaware of the project delay? If both of them were unaware of the project delay, was there any problem in the preliminary site investigation? 14844 LEGISLATIVE COUNCIL ─ 11 June 2014

In the preliminary geological surveys … They initially put the blame on the black rainstorm. But in the face of further questions, Deputy President, they said that it was not due to the black rainstorm, but due to the hard rock. In fact, this is like a scenario as described by a saying in Cantonese, "to blame the floor for its hardness."

So, I think we should look for not only the causes of the cost overruns and delay, but also whether the decision of constructing the XRL was a political decision. We must pursue the matter to determine whether the Administration made the decision in haste or based on sound and scientific data. For example, while 100 samples will be collected in a site investigation, only 80 samples were collected in this project. Is the number of samples far from sufficient? After the problem had been exposed, they put the blame on one person. As long as this person has resigned or retired, the problem is deemed resolved. The accountability system has been implemented for 10 years after the introduction by Mr TUNG. Is the accountability system still functioning?

I found Mr CHAN Kam-lam's remark just now totally unacceptable. He said that Members who support the motion on P&P Ordinance today are those who resolutely stalled the implementation of the project back then and they have induced conflicts in society. Putting it the other way round, Members who supported the construction of the XRL back then are those who have turned a blind eye to the problem; who have shielded officials from their responsibility and shielded the high-ranking project staff of the XRL who are derelict in their duties. These Members have shielded their wrongdoings. Can anyone pick bones in an egg if there is no problem? If this is not a serious matter, how could it become a heated topic in society? If they have not committed any mistakes, why should they be afraid of bearing the responsibility? No one can turn a fake into a real one, or vice versa. What we need is the fact.

Deputy President, I still consider that an investigation should be conducted by the Legislative Council because the committees set up by the Government or the XRL, regardless of the number of such committees, will not attach weight to accountability. The accountability system has been set up in the absence of a good foundation, still less has it set good examples. As a result, the accountability system will become a demon tormenting them because we will incessantly pursue the case and find out why they are not required to be accountable. So, why do they not strive to improve the system? As I said earlier, because at the beginning …

LEGISLATIVE COUNCIL ─ 11 June 2014 14845

MR CHAN KAM-LAM (in Cantonese): Deputy President, I remember that on the day we scrutinized the Budget, Mr WONG Kwok-hing put a pair of golden scissors in front of him and Members of the pan-democratic camp said that he had put something unrelated to the Agenda item on the table. I would like to ask Mr Frederick FUNG: What is the object in front of him? What is the relationship between the object and our current Agenda item?

DEPUTY PRESIDENT (in Cantonese): Mr FUNG, can you explain the relationship between the placard displayed by you on the table and this motion?

MR FREDERICK FUNG (in Cantonese): There is a relationship. In my opinion, the accountability system will be able to give full play to its functions only after the realization of universal suffrage. Similar projects will not be indiscriminately launched only after the realization of universal suffrage. We will be able to get to the bottom of all problems in society and get to the truth only after the realization of universal suffrage.

DEPUTY PRESIDENT (in Cantonese): Please continue.

MR FREDERICK FUNG (in Cantonese): Deputy President, I firmly believe that only by exercising the powers under the P&P Ordinance can the Legislative Council conduct an investigation into all possibilities in a comprehensive and thorough manner. Furthermore, our investigation will touch upon issues which may be evaded by the investigation of the Government or the MTRCL. If they fail to hold some officials accountable, we will hold these officials accountable. If there are any issues which are not pursued, we will get to the bottom of these issues. In particular, on what reasons and conditions was the XRL hastily launched? What happened back then? Is the decision of constructing the XRL a reasonable and objective one or is it a political decision?

Mr CHAN Kam-lam said that this is not a political issue. In fact, he has simply pretended he does not know that it is a political issue. I think this is precisely a political issue because the Government had to tie in with the XRL development in the Mainland back then rather than the actual situation of Hong Kong. Of course, if we wish to continue to pursue the matter, we should find out why the Government did not quicken its step and exert itself a few years ago. 14846 LEGISLATIVE COUNCIL ─ 11 June 2014

Instead, the Government's slow progress at the beginning led to hastiness in the end. This is the crux of the problem as a whole.

Deputy President, I support the original motion and the amendment.

MR KENNETH LEUNG (in Cantonese): Deputy President, I support the original motion and the amendment.

During the past four years since the launch of the Guangzhou-Shenzhen-Hong Kong Express Rail Link (XRL) project in 2010, multiple delays in works have caused delay in the project. The MTR Corporation Limited (MTRCL) finally announced in April this year that the XRL project cannot be completed in 2015 as scheduled. In fact, in his reply to my written question by the Secretary for Transport and Housing Bureau last month (28 May), some rather shocking data were brought to light. In the reply, it was pointed out that as at 31 March 2014, the MTRCL had received 611 claims and the amount claimed in total was more than $10 billion. Among all the claims, only 137 cases had been resolved and, about $1.4 billion in total was awarded. While the remaining cases were being processed, the balance of the contingency fund was only $3.7 billion.

Deputy President, if we did not take the initiative to ask for the relevant information, I believe the Secretary would not have provided it to us on his own initiative. If the existing claims cannot be resolved, or new claims arise due to other delays, it remains unknown whether supplementary appropriation is required for the project in the future.

As a project involving public funds, the XRL project also reflects serious problems in project supervision by the authorities and the project management of the MTRCL. Back then, the XRL project was launched in haste and the appropriation was passed due to some political reasons. The lack of careful study of the technical risks in locating the terminus in West Kowloon and the failure in considering the feasibility of alternative options proposed by the community are possibly the root causes of the problems today. The purpose of appointing a select committee under the Legislative Council (Powers and Privileges) Ordinance (P&P Ordinance) is to request the authorities to come clean, disclose relevant information and respond to the key issues which are the gravest concern to the public and Honourable colleagues of this Council.

LEGISLATIVE COUNCIL ─ 11 June 2014 14847

In sum, there are three core issues. Although the Secretary has answered many questions raised by Honourable colleagues this month, it cannot dispel three major doubts of mine. First, the MTRCL's explanation for the project delay is unconvincing. According to the document submitted to the Legislative Council Subcommittee on Matters Relating to Railways (the Subcommittee) by the Transport and Housing Bureau on 5 May 2014, the MTRCL had proposed a "partial opening scenario" to the Highways Department (HyD) between August and September 2013. But owing to the lack of further information, the proposal was not consented by the HyD. As the HyD's assessment in October showed that the major works were still lagging behind schedule, the Transport and Housing Bureau in November queried the target opening date of end-2015 and the relevant possibility. However, on the following day of the briefing by the Transport and Housing Bureau at the meeting of the Subcommittee, the CEO of the MTRCL told the Secretary over the phone that he disagreed with the Bureau's statement about the delay of the commissioning of the XRL. He insisted that the XRL would commence operation as scheduled. The paper also shows that as at 18 March this year, the MTRCL still insisted on its argument.

But for reasons unknown, in less than a month, the MTRCL suddenly announced on 15 April that the damage of a tunnel boring machine had pushed the completion date to 2016. The cause of the damage is very simple. It is the rainstorm in late March. Deputy President, according to the Observatory's record, a rainstorm which had lasted even longer occurred on 22 May last year. Why was the project progress not affected by the rainstorm on 22 May last year but by the torrential rain on 15 April this year? Also, the MTRCL might have already lost confidence in achieving the target opening date when it proposed the partial opening scenario. As indicated by the chronology of events, has the MTRCL tried to cover up some facts in its replies in respect of the incident as a whole? It is worth exploring in this aspect.

Second, does the Government have any direct responsibility in the incident? Have the authorities performed their supervisory duty satisfactorily? On the day the MTRCL announced the delay of the XRL project, the Secretary told the media that he was caught by surprise. However, I believe the Secretary should have known in advance that the possibility of timely completion would be very slim, so the word "surprised" used by him is unconvincing indeed. How would the Government and the MTRCL share the responsibility for the delay of the project? Is there sufficient communication between the Government and the 14848 LEGISLATIVE COUNCIL ─ 11 June 2014

MTRCL? In a reply to a question raised by Mr James TO on 15 May, the Transport and Housing Bureau explained that at the meeting with the MTRCL on 21 November last year, the Government took into account the fact that the HyD had not completely ruled out the possibility of the XRL being commissioned as scheduled. Secondly, the MTRCL indicated that if the target opening date of 2015 was changed, it would not be able to push the contractors to meet the deadlines. So, in order to avoid a self-fulfilling prophecy, it did not release the news to the public at that time.

Deputy President, I think such a claim is totally unacceptable. In fact, the Government entered into a second entrustment agreement (EA) with the MTRCL on construction, testing and commissioning on 26 January 2010. It is provided in the EA that "… (or Government, acting reasonably, suspects that the Corporation is in material or persistent breach) of any of the Corporation's material obligations under the EA, Government shall be entitled to verify …" The phrase "acting reasonably" means that the existence of reasonable doubt will suffice. So, did the Government make any verification? It is also provided in the EA that in the event of breaches of the EA by the MTRCL, the MTRCL shall, if required by the Government, at its own cost re-execute such Entrustment Activities. Also, the Government is entitled to claiming damages.

It should be the responsibility of the MTRCL in project management to supervise the contractors in meeting the project deadlines. Since the HyD assessment showed that the project had been lagging behind schedule, why did the authorities not adopt the HyD's professional assessment in a prudent manner? On the contrary, it was convinced by the so-called "reasons" of the MTRCL. If delay recurs in similar large-scale infrastructure projects in the future, are the authorities capable of dealing with it? If delay recurs in a major project in the future, how will the progress be explained to the public? The Secretary has not answered my question on "whether the authorities will strengthen the monitoring and reporting mechanisms for major infrastructure projects". In the light of such queries, the Legislative Council has the responsibility and power to appoint a select committee by invoking the P&P Ordinance so that Honourable colleagues and the public will be able to know all the truth.

As pointed out in many commentaries, the delay may be due to hastiness in preliminary site investigation and preparatory work. The MTRCL pointed out in a press release on 15 April that the delay was due to the extremely difficult ground condition at the West Kowloon Terminus site. In its written reply to my LEGISLATIVE COUNCIL ─ 11 June 2014 14849 question, the Administration said that "For substantiated claims, the reasons of claims mainly involve unforeseeable ground conditions, co-ordination and changes in design." What is meant by "unforeseeable ground conditions, co-ordination and changes in design"? The select committee to be appointed as proposed by the motion will find out the reasons.

The Administration has all along insisted that the geological surveys for the West Kowloon Terminus were conducted in compliance with Government guidelines, as stated by the Secretary earlier. But in the written reply, he also said that "It is not appropriate for the Administration to comment on the individual claims made by individual contractors." In fact, the justifications and details of the claims are important information that enables this Council to know whether the preparatory work and management of the project was carried out in a proper manner. If such information is not released, how can we monitor whether the SAR Government has exercised actual value-for-money supervision of such a major project?

Deputy President, huge public interest is involved in the XRL project, and this incident has also seriously damaged the credibility of the MTRCL and the regulatory authorities. A full investigation should be conducted. Deputy President, the motion does not seek to exert political pressure on anyone. Nor does it carry any political implications. It only seeks to appoint a select committee under the P&P Ordinance to inquire into the incident so as to improve the quality of governance, as well as the political sensitivity of the accountable officials. Otherwise, the Government will face enormous resistance when launching any large-scale public infrastructure development in the future.

With these remarks, Deputy President, I support the original motion and the amendment.

MRS REGINA IP (in Cantonese): Deputy President, I disagree to invoking the Legislative Council (Powers and Privileges) Ordinance (P&P Ordinance) to investigate the delay in the construction of the Guangzhou-Shenzhen-Hong Kong Express Rail Link (XRL). The Government announced on 15 April that the Hong Kong section of the XRL project would be delayed, thereby leading to a public outcry. Legislative Council Members have demanded that a number of senior government officials or the senior management of the MTRCL be held responsible and even requested their "decapitation". Several Members have also 14850 LEGISLATIVE COUNCIL ─ 11 June 2014 requested to conduct an investigation under the P&P Ordinance. The Legislative Council Subcommittee on Matters Relating to Railways (the Subcommittee) has immediately held special meetings on several occasions in order to summon officials to produce documents and subject them to intense questioning. The extent of shock in society is understandable since the XRL is a really expensive and important project, especially due to its controversial historical background.

As many Honourable colleagues have pointed out in their speeches, the process of appropriation back then sparked considerable controversies in society. I remember that when the XRL project, which was under the portfolio of Secretary Eva CHENG, was scrutinized by the Finance Committee in 2009 and 2010, the first ever filibustering in the Finance Committee was triggered. The scrutinizing process lasted from end-2009 to January 2010. I think the Deputy President would also remember that we were trapped in the Legislative Council Building. On the day of approving the project, no food other than cured meat was available. Members had nothing to eat if they went for the meal too late. On leaving the Legislative Council Building, some Members were hit by objects hurled at them. This project was most controversial at that time. Therefore, in mid-April when we heard that the XRL project would expect delays and cost overruns, a lot of people queried whether it is worthwhile to pursue a 26-km-long XRL for a cost of $70 billion or even higher in the future. Therefore, the public reaction is understandable.

The Government initially said that due to a black rainstorm, the "Fan-li-hua II" tunnel boring machine had been damaged by floodwater. You might cast doubts on such a pretext. But after pondering over it, one may find that project delays in recent years are no surprise at all by all commonsense, even though one might think that an investigation is in order. Deputy President, the reason is that there are too many infrastructure projects. In the past couple of years, many people, who needed to carry out simple renovation works at home, would be informed by their contractors that project delay was inevitable due to difficulty in hiring workers or rising wages. After the announcement of the Ten Major Infrastructure Projects (of which five are railway projects) by the former Chief Executive Donald TSANG in his 2007 Policy Address, these infrastructure projects were launched one after another, thereby raising the demand for the resources of Hong Kong. The supply of talents at various engineering levels, materials or managerial resources is tight. Under such circumstances, the Legislative Council has witnessed cost overruns or project delays in the last LEGISLATIVE COUNCIL ─ 11 June 2014 14851 couple of years. Delay has occurred in various projects like the Liantang/Heung Yuen Wai Control Point Project, the West Kowloon Cultural District Project and even the redevelopment of the school campus of the Ying Wah Girls' School under the Direct Subsidy Scheme. Therefore, it is not surprising to see delays and cost overruns in such a major project as the XRL.

However, it warrants an in-depth examination into why the authorities did not announce this news until April, and why the Secretary was caught by surprise. I am surprised by the Secretary's remark that he was caught by surprise. The Government has provided the Subcommittee with voluminous documents. According to these documents, it had been repeatedly pointed out that the project was more difficult than perceived and might be delayed at progress monitoring meetings soon after the commencement of the project upon funding approval in January 2010. Particularly in November last year, the MTRCL informed the Transport and Housing Bureau of the anticipated delay because of the difficulties associated with tunnelling in the Mainland and the geological condition of the site. Of course, we have the benefit of hindsight and could question why the Secretary and the Under Secretary did not come clean at that time and whether they had deliberately conspired with the MTRCL to cover up certain facts. I believe the authorities will not deliberately conspire with the MTRCL to conceal the facts. I believe the Secretary, the Under Secretary and the Director of Highways all know that under the intense scrutiny by society and the Legislative Council, they are like "an ugly bride who must face her father-in-law sooner or later" and any cover-up could not last long.

If I wish to rail at the Secretary, I think the Secretary committed an error of judgment when he placed trust in the MTRCL, which had persuaded him not to announce the delay. In other words, the Secretary who was convinced by the MTRCL had assumed the responsibilities which should have been borne by the latter. If the Secretary had come clean and announced to the public that the MTRCL would fail to achieve the target opening date of the XRL, the "political turmoil" today could have been avoided. However, if the Secretary had done so, the MTRCL might blame the Secretary on the ground that it would face difficulties in forcing the contractors to meet the project deadlines. In other words, it was really a hard judgment to make. Today, we in the Chamber are the outsiders with the benefit of hindsight and certainly able to criticize the Secretary for such misjudgment. In fact, making such a judgment is no easy task. If I were to criticize them, I would only say that the Secretary, the Under Secretary and the Director of Highways were too kind and not fierce enough. If the 14852 LEGISLATIVE COUNCIL ─ 11 June 2014

Secretary, on learning about the serious delay in the project, could be more fierce by pounding on the table and railing at the officials concerned, or requiring the MTRCL to give a briefing on the progress on a daily or weekly basis, or announced the problem to the public earlier, then he could have avoided today's crisis of being "smashed to pieces". However, I am rather glad to see that the Secretary is not demanded to step down in the motion or the amendment. I feel very much relieved that Honourable colleagues have adopted a relatively rational attitude.

If an investigation is conducted to find out why the Secretary has made the misjudgment or which parts of such a large project have gone wrong, will a committee consisting of dozens of Members be efficient in conducting the investigation? I do not think so. As Mr Michael TIEN pointed out just now, in the past the Legislative Council had conducted an investigation during which there were a lot of "deserters". The longer the investigation lasted, the more serious the delay would be. As a result, the Legislative Council rushed to complete the investigation before the Legislative Session came to a close. This might not be conducive to uncovering the truth. Moreover, the Government has appointed Mr Justice HARTMANN and some experts to take charge of the investigation, in addition to providing documents to us for inspection. Therefore, I consider an investigation by the Legislative Council unnecessary.

On the contrary, I think the top echelons of the Government should seriously reflect on the structural problems within the MTRCL. As pointed out by Mr CHAN Kam-lam just now, the brand image of the MTRCL has been adversely affected. I have looked up the records and found that in 2009 and 2010, the MTRCL was selected as the best managed company by the magazine Finance Asia. Both the CEO and Chief Financial Officer were also selected as the best CEO and the CFO respectively. Its relationship with investors was also regarded as the best. The MTRCL is a Hong Kong brand. Its Octopus and consultancy services have been exported. Its expertise in railway management, which is learnt by the people in Beijing, is what we are proud of. Why is the image of MTRCL deteriorating at such an appalling pace? What structural problems have occurred? I consider these problems worthy of reflection and study by the top echelons of the Government conversely.

I would like to make a few points for Members' reference. First, is today's delay attributable to the heavy workload of the MTRCL? Amongst the Ten Major Infrastructure Projects in 2007-2008, five were related to railways, and the LEGISLATIVE COUNCIL ─ 11 June 2014 14853

MTRCL is currently undertaking five major railway projects. According to the press reports, the South Island Line, West Island Line and the Shatin to Central Link in which an ancient well has been discovered, are all likely to be delayed. Does it imply that the MTRCL is overloaded with projects? We have placed all of Hong Kong's development and infrastructure projects in the hands of the MTRCL. Does this show that the SAR Government and those who approved the funding have pinned high hopes on the MTRCL, thereby collectively making a wrong judgment?

Second, the business of the MTRCL has been expanding in recent years. In addition to operating railways, it has also become a major real estate developer. As recently pointed out by a newspaper, the then Secretary Eva CHENG told the Legislative Council in 2008 that when the Government appointed the MTRCL to construct the Airport Railway, Tseung Kwan O Extension and the East Rail Extension, the Government had granted rights to develop properties along these three rail lines in order to make good the funding gap of the MTRCL. As a result, the MTRCL has made handsome profits. In 2002 to 2010, the Government put a moratorium on land sales as one of the methods to increase land supply. During that period, the MTRCL was the largest real estate developer. The MTRCL has transformed into a property developer, the developer of Octopus Cards, seller of personal data and provider of consultancy services. Is it reasonable for a mass transit corporation to run such a bloated business? Is it a self-imposed crisis?

Third, regarding the corporate structure of the MTRCL, 77% of the equity is held by the Government whereas only about 23% is held by the public. Being a listed company, its senior management often tells us that they should cater for the interests of shareholders, and I believe they have said so publicly or at the Board meetings of the MTRCL. Therefore, the Legislative Council Members often criticize the MTRCL for being very calculating when it comes to fare adjustments or offering concessions to the public. In other words, the MTRCL appears to be in a schizophrenic state. Could such a corporation effectively serve the public interest in the long term? On the other hand, does it merely cater for the interests of individual minor shareholders? The Government should consider how to tackle the problem.

Finally, there is a very important question: Is the Transport and Housing Bureau overloaded? Is the Secretary for Transport and Housing Bureau himself 14854 LEGISLATIVE COUNCIL ─ 11 June 2014 overloaded with too many responsibilities? Officials from the Transport and Housing Bureau of the previous term of Government also said that they did not understand why matters relating to housing and transport were put together, unless the MTRCL was considered a real estate developer. They certainly understood the true facts. However, the current-term Government faces a bigger problem since the Chief Executive has a very ambitious plan in the construction of public rental housing and Home Ownership Scheme flats, apart from implementing the "curb" measures to curtail property speculation. I believe we all recall that filibustering was staged when the Stamp Duty (Amendment) Bill 2012 was passed on 22 February. Secretary Prof Anthony CHEUNG had to fight an uphill battle in the Legislative Council. When a Policy Bureau is laden with so many duties, ranging not only from infrastructure to railways, but also from building new flats to implementing demand-side management "curb" measures, how much energy does it have to monitor the MTRCL on a daily basis? Therefore, these are questions worthy of our examination, pondering and reflection. When the top echelons of the Government have room to pant, they should seriously reflect on the structural problems of the MTRCL and even the Housing and Transport Bureau.

I believe the greatest beneficiaries would be lawyers if we supported the Legislative Council to invoke the P&P Ordinance. Since the MTRCL is a listed company, it has ample resources and will hire lawyers and senior counsels to "fight against" the Legislative Council. The procedure will be tediously lengthy. It will also be time-consuming for the government officials and senior management of the MTRCL. This may also affect their work in handling the XRL or other railway projects under construction. As a result, a great deal of valuable resources will be expended on coping with the Legislative Council's inquiries. In fact, the public interest is ultimately not protected. Therefore, I oppose conducting an investigation into the MTRCL or the Government by invoking the P&P Ordinance at the present stage. I hope Members will spend time on a careful and detailed study of the information provided by the Government, and follow up the incident at the meetings of the Subcommittee. Of course, we should get to the truth of the incident, but I believe it is counterproductive to invoke the P&P Ordinance.

I so submit.

LEGISLATIVE COUNCIL ─ 11 June 2014 14855

MR CHAN HAN-PAN (in Cantonese): Deputy President, many people have asked me when they can take a ride in a train of the XRL. They said that it is very inconvenient now because if they want to ride the Express Rail, they will have to go to the Shenzhen North station to board a train. As a matter of fact, the development of the Express Rail on the Mainland has been fast and pervasive. In the past, if one travelled from Shenzhen to Fujian, the trip would take six to 10 hours. But now it has been shortened to two or three hours. In many Members' offices, including those offices of Members who used to oppose the building of the XRL in those days, they are organizing tours to enable the residents to go on trips by riding the Express Rail trains. It can be seen that the Express Rail is very popular. The public is disappointed with the delay of the XRL project. However, with the anxieties caused by the delay of the XRL project, Members hurried to propose motions on invoking the Legislative Council (Powers and Privileges) Ordinance (P&P Ordinance) to probe into the causes of the delay. But we can see that they are not really anxious about it. I remember that last Wednesday, Ms Claudia MO, knowing full well that many of her colleagues from the same political party were attending a function in the Victoria Park, still asked that a headcount be done. This caused the abortion of the meeting. As a result, this motion which should have been discussed last week has to be postponed until today. If the matter is really that urgent and they cannot afford to lose even a second, then why did Ms MO have to act like that? It can be seen that at times she really applies double standards, preaching one thing but practising quite another.

With respect to this motion which proposes to invoke the P&P Ordinance to conduct an inquiry, although I consider that huge public interest is involved in the MTRCL case, I would like to raise the following two points. First, I think that at present there are already many channels which enable Members and the public to get a full picture of the incident, so I do not see any reason why a select committee has to be appointed to inquire into the causes of the delay in the XRL. In this Council, we have the Subcommittee on Matters Related to Railways (the Subcommittee) which is following up the incident. The MTRCL and the Government are also being very co-operative and all the relevant papers have been produced. It can be seen that the Subcommittee does have a certain authority in overseeing such matters and the relevant system is also proven.

(THE PRESIDENT resumed the Chair)

14856 LEGISLATIVE COUNCIL ─ 11 June 2014

The P&P Ordinance serves a function and that is, to demand that papers be furnished. But the MTRCL has undertaken to set up a database and starting from this June, Members can browse such information to understand the latest situation of the entire project. If we really are to invoke the P&P Ordinance to set up a select committee, then what would be the role played by the Subcommittee? Moreover, the Government and the MTRCL have formed respective investigation committees to probe into the incident. The committee set up by the Government is headed by a Judge, with members coming from professional fields. I am sure their investigation would be more efficient and flexible than an inquiry to be conducted by us by invoking the P&P Ordinance.

I urge Members here to think about this question. Whenever the Government wants to create new posts, we will ask whether or not there is a need for them and whether there will be any duplication. We will point out that it is undesirable for numerous government departments to come up with similar policies. Now in this incident involving delay in the XRL project, we can understand the relevant situation through three channels. Members, do we really have to set up a select committee by invoking the Ordinance on top of the relevant framework? This will only lead to a bloated structure and complicate matters. It will not help the people understand the incident at all.

Second, when the P&P Ordinance is invoked to conduct an inquiry, everything in the past, present and future will be put under a magnifying glass or even a microscope for inspection. By virtue of the P&P Ordinance, we can summon any person related to the project, including decision-makers and front-line officers. In sum, we can summon any person to give a testimony. If a person summoned refuses to attend the inquiry, this Council can invoke the P&P Ordinance to ask the police for assistance. The person concerned can be arrested and escorted to this Council for questioning.

When faced with all the above, I am sure any person involved would be affected to a certain degree. This is because questions will be asked on everything and they will be asked whether certain things are done and why certain things are not. So before the truth is found and all the causes are known, just who would dare make decisions? Who would dare take any action? Who would dare strive to meet the deadlines? The result is, while we want to complete the XRL project as soon as possible, things will backfire and the entire LEGISLATIVE COUNCIL ─ 11 June 2014 14857 engineering team will become exhausted mentally and physically and everybody will need a rest.

It is true that invoking the P&P Ordinance is meant to find out the truth. But under the present circumstances, if we are to force our way to invoke the P&P Ordinance for an inquiry into the incident, it will only cause more trouble. We should think about this carefully: Do we have to draw this "imperial sword" so lightly? Owing to the above two points, I oppose invoking the P&P Ordinance to investigate this matter.

After our experience in this incident, although we do not agree that the P&P Ordinance be invoked to investigate the XRL incident, it does not mean that I condone things done by the MTRCL. In fact, we ought to be fair in passing a judgment on the performance of the MTRCL in recent years, and I think it has been appalling. About Secretary Prof Anthony CHEUNG's claim about "benefit of doubt", I would think that he is being too sentimental in such matters that will only lead to regrets. If we are to number the failings and faults of the MTRCL, I am sure it is not difficult at all. I also wish to make use of the opportunity today to exchange views with the Secretary and members of the public, in order to know what has really happened in the MTRCL.

First, this delay in the works has wasted a countless amount of taxpayers' money. By delay it does not just mean the XRL, but also problems in the South Island Line and other railways which other Members have mentioned. At that time when the MTRCL submitted its plan to the Legislative Council, it vowed that the project would be completed on time. And with this pledge, Members endorsed the proposal. But what we can see now is that delays are found in many railway projects. Is this due to the poor planning of the MTRCL or that the Government is gullible and cannot do anything about the MTRCL? Has this corporation become too bloated that it is beyond the Government's control? These issues warrant deep thoughts.

Numerous incidents have occurred in the MTR and its reliability is shattered. I used to have the impression that the MTR is a comfortable and convenient means of transport. But since the major incidents which occurred at the beginning of this year, my good impression of the MTRCL is gone. There was first the great paralysis of the Tseung Kwan O Line, then the frequent incidents related to the East Rail. We have this saying of "One is too many.", 14858 LEGISLATIVE COUNCIL ─ 11 June 2014 but it is now a case of incidents happening one after another. Hence misfortunes really never come singly.

Papers from the Subcommittee on Matters Related to Railways show that in last year, there were 173 cases in which there was delay of over eight minutes, and 99 of these cases are related to mechanical failures. The rate is 57%. And against this background, the MTRCL made a huge profit of $13 billion for one year. With such an amount of profit, the MTRCL should set aside part of the money for better repairs and maintenance. But it refuses to do so. What has gone wrong? Is the MTRCL over-expanding itself? It has to take care of its local railway lines while also engage in expansion to the Mainland or other places. The result is that staff who have been employed in the corporation for not a long time or those who are capable are transferred to other places. This places the corporation in a quagmire.

Also, we think that the MTRCL has adopted measures that should not be adopted. In the past, the standard adopted by the corporation was there should be space enough for six standing passengers in each square metre. This standard is used to work out the maximum carrying capacity in the compartments. But there are views that if the standard of a space enough to accommodate four standing passengers in each square metre is adopted, then the compartments of trains on the Tseung Kwan O Line, for example, will fail to meet that standard. Then the MTRCL thought up some tricks and removed some of the seats in the compartments, then installed a slanted rest bar of about 6 ft or 7 ft for the passengers to lean against. This is like half-standing and half-sitting. The passengers are not sure whether they are standing or sitting. Why does the MTRCL not consider adding the number of trains and improving the signalling system so that people like pregnant women or elderly persons can sit down, instead of having to make this half-squatting, half-standing pose? So we think that the MTRCL has adopted measures that it should not have, and this kind of practice is sickening.

In respect of fare increases, although under the fare adjustment mechanism, it is entitled to increasing fares by 3.6%, its market value now stands at $180 billion and according to reports, its income last year was as much as $13 billion, so is there any need for the corporation to be so mean? I have once asked Mr Jay WALDER whether or not he has to be that mean as to count every cent with members of the public. But in the end he said that the company has to go by the fare adjustment mechanism. This really shatters the image of the LEGISLATIVE COUNCIL ─ 11 June 2014 14859 corporation. Also, when fare increases are made, the corporation will introduce some very trivial concessions, including a 10% discount for the second trip made on the same day and also the so-called "early bird concession", that is, a discount will be given if you pass through the turnstile one hour earlier. But please do not forget, these concessions will stop after half a year or so. I often criticized the MTRCL in the past that it used to set up some concession points and after the citizens have swiped their Octopus cards across the reader, they would get a saving of a dollar or two. Why was this measure cancelled after a year or so? It is clear that the purpose of the corporation in giving these small concessions is to gloss over the fare increases and this is meant to ease the discontent of the people. But when this trick is used too often, people will just feel that they are cheated.

For the things which we have asked the MTRCL to do in the past, actually, it has not done most of them. An example is that there is no washroom in certain stations and the related works in installing toilets is progressing at a slow pace. In certain stations, there is not much progress with respect to barrier-free accesses. Why has the corporation become like this? It used to be the pride of Hong Kong people and is it going to become our disgrace? Earlier on I wrote two letters to the corporation and these are entitled "Letters to the MTRCL". I take the corporation as close as someone in the family. In the letters I said that the MTRCL used to be the pride of those belonging to our generation. But in the face of its decline and fall, how are we to take it? For all these things which have happened to the MTRCL, I do not think they can be remedied by invoking the P&P Ordinance and there is no way we can use the P&P Ordinance to force the corporation to make improvements. We should let the Government think over it and after this incident which has aroused such a big political row, we hope that the Government will seriously and sincerely effect sound management of the corporation afresh, so that it can go back onto the right track.

Lastly, I wish to cite this ancient saying: "Know that in the past good advice went unheeded and follies were committed. Strive for the future and know that wrongs can be rectified in the days ahead." I hope the Secretary will work hard with us to guide the MTRCL back onto its right track. I so submit.

MR LEUNG YIU-CHUNG (in Cantonese): President, I came across an online article and its beginning reads to this effect: There is a concept that I find very useful in recent years and it is a phrase often used by Americans, that is, "let me 14860 LEGISLATIVE COUNCIL ─ 11 June 2014 give him the benefit of doubt." Then the writer cites two examples to show what he means by giving someone the benefit of doubt. The first example is, in an end-of-term examination, a student comes in late. The excuse he gives is that the car he rides on has broken down and so he cannot come to the examination on time. His teacher says he believes in his explanation and that is, giving him the benefit of doubt and he can re-take the examination.

The other example is that in the United States, crimes and problems like drugs, suicides, divorces, poverty, and so on, are seen as evidence of a rich but unhappy society. Some sociologists say that these are the unavoidable phenomena after industrialization and urbanization. Provided that we are determined to set the priorities, all these problems will be eased. We should give the American society the benefit of doubt in terms of its ability to make adjustments.

The writer of the article also says that from these two examples, he concludes the meaning of giving someone the benefit of doubt is to make a well-intentioned judgment and think favourably. If this idea is implied and expanded, giving someone the benefit of doubt also means giving him another break, avoid making wrong judgments, and avoid judging the other person by some mean standards. He says that persons with such an attitude shows his temperament and tolerance and this can reduce the chances of making mistakes by guesses and hasty judgment. However, President, the writer adds: Americans are often thought of as simple and naïve and the reason may be that they like to give people the benefit of doubt.

President, on 3 May, when Secretary for Transport and Housing Prof Anthony CHEUNG was queried for collaboration with the MTRCL in covering up the delay in the XRL, he made a clarification and said that there was no collaboration. He said that at the end of last year, the corporation was optimistic about the progress of the works and it was confident that the time missed in the delay could be recovered. At that time, the Government had doubts but the benefit of doubt was given to the corporation. And so it decided not to make the incident public. President, last year when the development plan for the North East New Territories was proposed, great controversies were aroused. Secretary for Development Paul CHAN said that some people queried that the motive behind the development of the North East New Territories was to serve the Mainlanders. He said that it was due to a misunderstanding of LEGISLATIVE COUNCIL ─ 11 June 2014 14861

LEUNG Chun-ying and he hoped that the public could give LEUNG the benefit of doubt. President, on this occasion the MTRCL has admitted that there is delay in its projects and the corporation is queried territory-wide. Also, the Secretary is queried of collaborating with the MTRCL in a cover-up and this phrase of "giving someone the benefit of doubt" is used.

President, these two examples of giving people the benefit of doubt are about two mega development projects involving huge sums of money. And when the Government says giving someone the benefit of doubt, it makes people think that governance is such a flimsy thing in this Government as whenever there are problems, the officials will ask that the benefit of doubt be given, trying to muddle through.

President, I do not know if the Secretary is as naïve as the Americans as described by the writer of that article and he is giving the benefit of doubt to the MTRCL. If this is really the case, then things will be really bad. This is because when he says giving someone the benefit of doubt, the result is that all the people of Hong Kong will have to bear the loss of at least $3 billion in project delays. President, why do I say it is all the people of Hong Kong? Because regardless of whether the money comes from the pockets of the Government or the MTRCL, the money actually comes from the public. So this is really a pity.

Also, why did I say "at least"? Because it is just the expenditure incurred by the delay. Members will remember that when the SAR Government wanted the whole community to lend its support to the construction of the XRL, it always emphasized that one of the most important reasons for building it was that it would bring economic benefits. If this is the case, may I ask the Secretary, if the XRL cannot be commissioned in 2015 and has to be postponed to 2017, how much in financial terms would we lose during this period of close to two years?

President, I agree that one should have breadth of mind and I think this is the attitude we should have. But Secretary, what you are doing does not show that you have this breadth of mind, but you are being generous at the expense of other people. You are condoning the wrongs of the MTRCL and it is a dereliction of duty on your part. President, the Secretary has just said that the Government holds the largest stake in the MTRCL and it is a wholly-owned company of the Government. Then the Secretary is obliged to oversee the corporation on behalf of all the people of Hong Kong in a thorough and effective 14862 LEGISLATIVE COUNCIL ─ 11 June 2014 manner. He cannot afford making mistakes, unless they are unavoidable. But with respect to the delay this time, the Secretary has said repeatedly that he respects professionals and trusts them, hence there is the delay. So he is willing to offer an apology to the public, but he refuses to bear any responsibility.

The Secretary said an expert panel has been formed to study and conduct a thorough investigation of the whole affair, so he opposed invoking the P&P Ordinance to inquire into the truth of the matter and identify the causes. President, I think the Secretary is just trying to evade the problem and keep on refusing to bear the responsibility. He does not want to admit to his faults. He says he respects and trusts the professionals. But these remarks are no more than specious arguments and wishful thinking.

Mr Michael TIEN said just now that as of now, a lot of things have been accounted for, and if this Council insists that the P&P Ordinance be invoked to conduct an inquiry, it is simply a waste of time. This, President, I beg to differ. Because if this is really the case and if the whole truth is already known, why does the Government have to appoint an expert panel to examine the matter? President, as some Honourable colleagues have said, is the MTRCL hiding anything or is the Government just being lenient to the corporation? I think that these are all serious problems. Why do we not want to clarify these matters?

Some people may ask why do we have to invoke the P&P Ordinance to probe into the incident, I would think that we are doing this because we do not want to be like the Government which only places its trust in other people while it is not fulfilling its duties and bearing the responsibility that it should assume. We in the Legislative Council are obliged to oversee government action and this is just like the Government having the power and responsibility to monitor and supervise the operation of the MTRCL.

President, on 14 April 2014, the Transport and Housing Bureau called an urgent meeting with the MTRCL to examine the status of the project. It was agreed at the meeting that the Bureau shall inform the public the next day. On 15 April 2014, the Secretary informed the public that there would be a delay in the XRL project, that the Secretary had been surprised to hear that. He ordered the corporation to submit a full-scale assessment report and instructed the Director of Highways to conduct an independent examination and assessment of the XRL project. Then the MTRCL called a press conference and said that the LEGISLATIVE COUNCIL ─ 11 June 2014 14863 date of completion of the XRL project would have to be postponed to 2016 and the line would be commissioned in 2017. It was only at that time that the Board of Directors learnt about the situation.

But President, as early as on 21 November 2013, the Government said that the CEO of the MTRCL had telephoned the Secretary and insisted that the XRL could be commissioned at end-2015. It was strange that on that very night the Bureau and the MTRCL had called an urgent meeting. The MTRCL said that if the date of project completion was not maintained at 2015, there would be no way to pressurize the contractors to meet the schedule. And the Government asked the MTRCL not to overestimate its capacity to cope with problems.

We have heaps of questions about the incident and we do not really know who is right and who is wrong. But President, I do not know if you think it is strange that an urgent meeting had to be called on that night. Was it because someone thought that things could not be postponed any further and there was no way that things could be covered up, and so perhaps they could get together and talk it over to find a solution? President, if this is the case, should we not try to dig into the truth of the matter and examine what has gone wrong and whether anyone has hidden the truth? If so, what are the reasons? Do these people want to come forth and make clarifications? Now we hope that the P&P Ordinance can be invoked to appoint a select committee to probe into the matter. I am surprised to see that so many people are saying that this should not be done.

President, I always believe that genuine gold will stand the test of fire. This is an expression I like to quote. Every time when discussion is conducted on invoking this Ordinance, I will mention this. Why? It is because I think if a person is clean, he should not be afraid of any investigation. If that person is wrongfully accused, I do not think he will feel easy at all. And he will take the initiative to demand that an investigation be conducted, for this will give himself an opportunity to air his grievances and prove that he has not done anything wrong. It can prove that he is clean. This is the right approach to take. But this is not the case now. The officials keep on saying that this will waste resources and time. But what should be done when they have already wasted so much of our time and money? Can they do whatever they like and is whatever they do right while whatever we do is wrong? Do they ever respect this Council and consider that we have both the role and responsibility to monitor the Government?

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Now if the panel appointed by the Government finds out that they have to bear the responsibility, the Secretary will resign. Since this is the case, then why should we not be allowed to carry out an investigation? The panel is formed by the Government. While I cannot say that I do not have any confidence in it, why does the Secretary not respect the due responsibilities and powers of this Council and let us conduct the inquiry? May I ask what is he afraid of? Since he has undertaken that he would bear the responsibility and resign, why does he not allow us to inquire into the matter? Conversely, he says that if an inquiry is conducted, it will waste too much time and cause further delay to the project. It is nothing but an excuse. Will the investigation to be conducted by the expert panel not use any time, and are the persons concerned not required to take any questions? I think all these talks are nonsense. It appears only the Secretary is right and all the other people are wrong.

Before the Secretary became a government official, he was also a member of a civilian pressure group and he had made criticisms of the Government. But why can he not make a self-criticism now? Previously, he used the same words to criticize the Government. Why can he not criticize himself now? The most important thing about oneself is self-reflection. The officials should reflect on themselves. Why is it that previously he knew how to criticize people but now he does not know how to criticize himself? Has he ever held himself accountable?

Therefore, President, I hope very much that the Secretary and the MTRCL can be given an opportunity to prove that they are clean and that what they have done is not in wrong. I therefore hope that this Council can be given the powers to inquire into this incident. President, I support this motion.

MR WU CHI-WAI (in Cantonese): President, I speak in support of this motion to urge this Council to invoke the Legislative Council (Powers and Privileges) Ordinance (P&P Ordinance) to inquire into the causes of delay in the construction of the XRL.

President, I notice that Members who oppose the motion have mainly put forward the following arguments. First, they said that the Government and the MTRCL will conduct investigations into the incident respectively, that is, a three-member independent expert panel led by Mr Justice Michael HARTMANN has been appointed by the Government and an investigation committee appointed LEGISLATIVE COUNCIL ─ 11 June 2014 14865 by the Board of Directors of the MTRCL with members from among the independent non-executive directors. Therefore, there is no need for the Legislative Council to conduct another investigation of its own or that follow-up action should be taken only after these two investigations are completed.

Second, as far as I can recall, this argument is chiefly raised by Mr Michael TIEN. He says that if this Council invokes the P&P Ordinance and conducts an investigation, it will make the MTRCL and government officials find it hard to cope with and there will be further delay and cost overruns in the XRL project. Those who support his argument add that the most pressing task at hand is to complete the XRL project.

Third, some Members oppose conducting any investigation into the incident and on the other hand, they are afraid that in future the Government will have to apply for supplementary appropriation from this Council, so they put up a demand in this Council to require the MTRCL to foot the bill for any cost overrun in the XRL project.

President, we can see contradictions among these three arguments. On the necessity or otherwise of this Council to conduct an inquiry, I think we should explain first what methods will be used before the public can know the truth of the matter and who should be held responsible and that they can know whether or not public money is well-used. More importantly, the inquiry must be convincing to the public. As far as I can see, there are only two ways of achieving this. First, this Council invokes the P&P Ordinance and appoints a select committee to conduct an inquiry. Second, pursuant to Cap. 86 of the Laws of Hong Kong, that is, the Commissions of Inquiry Ordinance, a commission of inquiry is set up to undertake the investigation. The common point about the two is that the method to be used is the statutory powers of summoning witnesses to attend hearings and demand that papers be produced, and the witnesses shall give testimony on oath. This will reduce the risk of witnesses hiding up anything or making false representations.

Why are the committees set up by the Government and the MTRCL unable to do this? As a matter of fact, even if we believe in the independent nature of the expert panel appointed by the Government, it does not have any statutory powers to summon witnesses. When the Government announced that an expert panel would be appointed, Mrs Carrie LAM made it clear that the main duty of this panel was to identify deficiencies and ways to strengthen the system, instead 14866 LEGISLATIVE COUNCIL ─ 11 June 2014 of pursuing responsibilities or making recommendations on sanctions. President, we can imagine that this expert panel is severely constrained in the first place and it is given a pre-set position that no recommendations on sanctions can be made. It can only identify deficiencies and ways to strengthen the system. Just how can it convince members of the public that it can undertake a full-scale investigation?

President, back then the Government applied to this Council for a funding of $66.9 billion to build the XRL. May I ask the Government and those Members who oppose this motion if you are sure that no government officials are in dereliction of their duties? If you are not sure, then why do you oppose conducting an inquiry? Can you tell the people that this sum of $66.9 billion is used properly or are you just trying to condone the blunders of these officials?

Meanwhile, although it is said that the committee formed by the MTRCL is open, I would think that since the corporation has interests in this matter, there is only a very slim chance that this internal investigation to be carried out by the MTRCL will expose its failures such that the Government can pursue the MTRCL for responsibility on the basis of this information. The reason is simple. Because the matter only involves the issue of accountability within the MTRCL. Since this is the case, how can it avoid being accused by the public of undertaking a peer investigation, that is, the insiders probing the insiders? And also, can members of the Board of the MTRCL be completely absolved of their responsibility? Did they know in advance that there was a problem of delay in the XRL project? Has the Board of the MTRCL given any instructions to the CEO and the executive departments with respect to the progress of the XRL project? Up to now the Board of the MTRCL has never responded to these questions. I do not know if the investigation committee appointed by it will respond. I doubt it will. If even the Board should be made the subject of the investigation, how can the public be convinced that the findings will be plausible?

Also, Mr James TO has told me that in a letter which the MTRCL wrote to him, it is said that on 26 January 2010 the Government entered into a second Entrustment Agreement with the MTRCL and the Government is obliged to bear and pay all the monies required for the construction of the Hong Kong Section. I think the position of the MTRCL is clear enough. If the Government requires the MTRCL to bear additional expenses, it is very likely that the MTRCL will take the case to Court. In such circumstances, will the corporation reveal any LEGISLATIVE COUNCIL ─ 11 June 2014 14867 information in its internal investigation that would prejudice its interest? I therefore think that only the appointment of a select committee by this Council can uncover the truth of the matter. It will also avoid the problem of conflict of interest during the investigation and ensure that the investigation can achieve its goal.

As for the view put forward by Mr Michael TIEN, I find it strange that why Mr TIEN who was the chairman of the Kowloon-Canton Railway Corporation would raise the argument that an investigation into the XRL incident will lead to further cost overruns. First, on the delay in the XRL this time around, some say that it is only a problem in communication and some say that it is a result of human failure. But is there any illegal act involved, such as cheating, bribery or cover-up? If there is, how can the public be convinced that under this faulty monitoring system, there will not be any recurrence of similar problems given other sets of circumstances? Members must remember that the Hong Kong Section of the XRL is only one of the five railways presently built by the MTRCL. Suppose problems found in the XRL project are also found in the construction projects of other railways, what will Members think? Members should also think whether or not this delay will lead to problems in railway safety. If the project is ordered to speed up before an investigation is completed, would this be a responsible step to take?

If an investigation is not conducted, and given the resignation of Chief Engineer of the MTRCL CHEW Tai-chong, today, how are we going to ensure that the new Chief Engineer will be able to get a full picture of the project and make sensible judgments, and does that person know the risks that should be borne before taking up the job? If this cannot be done, I am afraid I have to ask this next question. After the departure of Mr CHEW Tai-chong, Chief Engineer of the MTRCL, in this October, how is the project going to proceed? Can the project continue without the supervision of a Chief Engineer? Is this post rendered perfunctory?

All these are very important issues. But is there anyone who cares to give a response? No, not up to this day. We can only hear the corporation say that a recruitment would be conducted as soon as possible. But will the recruitment exercise be successful and will anyone apply for the post? In fact, there are very few technical personnel around who can take charge of such a huge railway project. I do not know how the Government and the MTRCL can have such great confidence as to think that a replacement can be found soon. So when 14868 LEGISLATIVE COUNCIL ─ 11 June 2014 things are not clearly accounted for, it will only make the successor to the post feel uneasy in accepting the challenge that the job presents. The result is that top-notch engineering talents cannot be found for the project. Then what is the point of it? Will greater problems be caused later, leading to problems in railway safety as works have to speed up to meet the schedules?

Also, have officials from the Highways Department (HyD) been in dereliction of their duties and do they have the capabilities to supervise railway projects? In a meeting of the Subcommittee on Matters Related to Railways, I had asked Director of Highways LAU Ka-keung repeatedly about supervision matters. His reply made me question very much his suitability in overseeing the project. First, the HyD has a five-tier monitoring mechanism, but it still has to wait for the MTRCL to notify it that only partial commissioning can be expected in 2015. Second, he said that the 13-member team led by the Chief Engineer of the HyD could not effect supervision comparable to the scale of the MTRCL and he argued that it was the recommendation of the consultancy firm that this should be done. The kind of supervision mode which the public would expect is the HyD giving advice itself, instead of having the MTRCL asking the HyD to convey its advice to the public. Have Mr LAU and his working team ever questioned the information provided by the MTRCL? Or are they affected by a problem of manpower shortage? I have heard a claim that ever since the merger of the two railway corporations, most staff who are well versed in railways have been siphoned off by the MTRCL. As a result, the HyD cannot question the information given by the MTRCL. I do not know if this is true. But since there are problems with the monitoring mechanism of the HyD, then more so can we not afford to overlook it.

I cannot help but ask: why is there such hurry to commission the railway? As we know, if there is no "co-location of customs and immigration" clearance arrangement, the XRL would be rendered useless. Up to this very day, has the Government ever said that on the very day when the XRL is commissioned, there will be "co-location of customs and immigration" clearance? If there is no such thing, the XRL will be nothing but a luxury version of the through train. It is simply not worth such tremendous risks to speed up the project and strive to meet the schedule. Also, some people have told me, if the MTRCL is really so keen on an early commissioning of the XRL, then Chief Engineer CHEW Tai-chong should not have left at all. This is because when the risks are so plenty, who would dare take up the post?

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But now the first person to go is CHEW Tai-chong. And Jay WALDER will remain in office only till his term expires. With an engineering management team like this in the XRL, how can the public be convinced? Where in fact are the problems? When there is just a simple internal investigation by the MTRCL and with this expert panel from the Government which does not have any power to summon witnesses, there is a big question mark over whether an answer to the satisfaction of the public can ever be found.

Coming back to the motion, the inquiry to be conducted by this Council will actually give people who stand before public scrutiny a chance to reply. For example, has CHEW Tai-chong been made a scapegoat or has Jay WALDER been under any pressure from the Board? I think these are questions which the public has a right to know the answers. President, and there is yet another view that is seldom put forward but I think it is very important. The inquiry to be undertaken by the Legislative Council should be used to find out if the MTRCL has ever breached or rescinded any contract and which party should pay for the costs incurred by the delay.

On 19 May 2014 Secretary Prof Anthony CHEUNG said at a meeting of the Subcommittee that at the meeting with the MTRCL in the evening of 21 November last year, the Transport and Housing Bureau agreed to adopt the view in the meeting on the following day that the project would be completed by 2015 and a further six to nine months would be required for test runs. No attempt was made to seek the advice of the Department of Justice. Also, in a reply letter addressed to me, the Government says that it is waiting for the MTRCL to hand in the information so that it can follow the matter up with the Department of Justice. I think that even if the Transport and Housing Bureau has claimed in the earlier paper that no amendment has been made to the Entrustment Programme with the MTRCL, the abovementioned view has already landed the Government in a disadvantageous position. This is because since officials agreed to the view that the project would be completed by 2015 and six to nine months would be required for test runs, that shows that the Government has agreed that the MTRCL can complete the tests, test runs and provide passenger service by August 2015 without any regard to the terms and conditions stated in the Entrustment Programme. Once the MTRCL does not have to bear the additional costs incurred by breaching the contract and delay in the project, at the end of the day the Government still has to apply to the Legislative Council for 14870 LEGISLATIVE COUNCIL ─ 11 June 2014 additional funding to complete the project. Therefore, is the pledge made on 21 November not evidence of dereliction of duty? I would think that this is a very important point. But it seems that it will not be dealt with in the investigation, because Carrie LAM has made it clear that the problem of responsibility will not be pursued.

In addition, papers from the Government and the MTRCL show that on a number of occasions, the MTRCL has asked the contractors to revise the project goals. Was the Government aware of that in advance? If not, why did the MTRCL dare to do so? Did it not fear that the Government would sue it for breach of contract? And there are many other baffling questions and I therefore think that they can only be clarified by invoking the P&P Ordinance to summon (The buzzer sounded) …

PRESIDENT (in Cantonese): Mr WU, speaking time is up.

MR WU CHI-WAI (in Cantonese): Thank you, President.

MR ALBERT CHAN (in Cantonese): President, now there are only four Members from the royalist camp in the Chamber. Only four Members from the 42 royalist Members are here. It is less than one tenth in number. I request a headcount in order to summon these royalist Members to return and defend the Government.

PRESIDENT (in Cantonese): Will the Clerk please ring the bell to summon Members back to the Chamber.

(After the summoning bell had been rung, a number of Members returned to the Chamber)

PRESIDENT (in Cantonese): Mr CHAN Chi-chuen, please speak.

LEGISLATIVE COUNCIL ─ 11 June 2014 14871

MR CHAN CHI-CHUEN (in Cantonese): President, I speak in support of the motion moved by Mr Gary FAN based on the Legislative Council (Powers and Privileges) Ordinance (Ordinance).

In Mr FAN's original motion, two issues are raised for Members to deal with. First, has the MTRCL covered up the causes of the delay? Earlier on, some Members spoke in favour of the MTRCL and said that the delay and cost overruns were normal. But the capital crime of the MTRCL this time is not in delay or cost overrun, not as simple as these, but in deliberately covering up the delay. Second, are there any problems with the SAR Government and the MTRCL in monitoring?

If Members think that with respect to these two questions raised by Mr Gary FAN, no reply to the satisfaction of everyone has appeared even now, then Members should find ways in which a solution can be found. The invoking of the P&P Ordinance is one of such ways. Some people say that the Government has appointed a three-member independent expert panel to conduct an investigation. But Members also know that this panel will only look ahead and review the system and mechanisms to see if there are any problems. Then recommendations will be made. But the panel will not look for the culprits and pursue accountability. And no punishment will be meted out.

Frequent delays in the MTRCL projects are common and people have an impression that MTRCL projects are always and habitually behind schedule. In the case of the West Island Line which is scheduled for commissioning at the end of this year, the MTRCL blames the soil and the geological condition. And the commissioning of the Line is postponed to the beginning of next year. Likewise, the South Island Line and the Kwun Tong Extension have to be delayed for one year. The most outrageous case is the XRL project. It costs the people of Hong Kong $66.9 billion. It is one which has seen many people encircled the Legislative Council on numerous occasions, demanding that the Government should rethink, and the whole community clamoured for the withdrawal of the plan. Now with the spate of scandals, and the repeated postponing of the commissioning date, it is now said that the XRL can be commissioned in 2017. But the money spent is like money dumped into the sea. The rate of return is as low as 6%. With a delay of two years, it is estimated that the construction costs of the XRL could be over $100 billion in the end. And the taxpayers' money is used to complete this white elephant project.

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Back in those days when the Finance Committee deliberated on the funding for the XRL, I was outside the Legislative Council Building taking part in the protest. Now many of the Members here were in the Chamber in those days and they even supported the funding for the XRL. As I look at the past …

(Mr IP Kwok-him stood up)

PRESIDENT (in Cantonese): Mr IP, what is your point?

MR IP KWOK-HIM (in Cantonese): I hope the President can deal with those slogans on the Members' bench. Are these slogans related to the Agenda item under discussion?

PRESIDENT (in Cantonese): Mr CHAN Chi-chuen, please pause for a while.

(Mr Kenneth LEUNG stood up)

PRESIDENT (in Cantonese): Mr Kenneth LEUNG, what is your point?

MR KENNETH LEUNG (in Cantonese): The Deputy President dealt with the problem of Mr Frederick FUNG earlier. It is because Mr CHAN Kam-lam had raised a similar point as Mr IP Kwok-him did, and Mr Frederick FUNG had explained the problem about the placard. So please …

PRESIDENT (in Cantonese): I would like to know what the explanation given by Mr FUNG was.

MR KENNETH LEUNG (in Cantonese): I cannot explain it on his behalf. I hope the Clerk can tell the President how Mr FUNG put his explanation. Thank you.

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PRESIDENT (in Cantonese): Mr LEUNG, now a Member has queried whether or not the articles displayed by Members in the Chamber are related to the contents of discussion. May I ask those Members who have placed articles on their bench explain what the relevance is. Which Member can do this?

DR KWOK KA-KI (in Cantonese): President, we all know that the two topics in today's debate are directly related to governance. These are incidents about the XRL and the Lamma Island incident. Our view is that governance can be improved and so is the relationship between the executive and the legislature, and how this can be applied to the issue of invoking the Legislative Council (Powers and Privileges) Ordinance. The President has said that governance would be very difficult if there is no universal suffrage. So we really hope that there are ways to solve the problems as seen, including those related to the XRL. What we are doing is to identify ways to solve the problems seen, including those of the XRL which have been there for a long time and for which we most regret. Then there is also the problem of the investigation report of the Lamma Island tragedy which the authorities refuse to make public after its completion. President, will an accountable government do this kind of things? You have said that you do not want to see Hong Kong governed by third-rate people. You also said that yesterday. Our votes on 22 June on universal suffrage are like what your goodself is thinking, that is, try to find out a plan whereby Hong Kong can be governed in lasting peace and that which can solve our problems in governance. I therefore think that the placard with the slogans on the bench is related to the question today.

MR ALBERT CHAN (in Cantonese): President, in order to avoid the scenario of other Members not knowing what has been discussed and keeping on asking questions, I think the best way is to summon those Members who are not here to come back, especially the likes of Mr TAM Yiu-chung, and so on. Or else those Members from the DAB will ask questions again and again. I therefore ask you, the President, to do a headcount and summon more Members from the royalist camp to come back and hear your ruling. President, a quorum is not present now.

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PRESIDENT (in Cantonese): Mr Kenneth LEUNG, since a Member has pointed out that a quorum is not present, the meeting cannot proceed for the moment. Will the Clerk please ring the bell to summon Members back to the Chamber.

(When the summoning bell was ringing)

MR KENNETH LEUNG (in Cantonese): President, can I talk with you?

In fact, what I said is, earlier on Mr CHAN Kam-lam and Mr Frederick FUNG had discussed a similar issue before the Deputy President, Mr Andrew LEUNG. I hope the President can make reference to the ruling made by the Deputy President, Mr Andrew LEUNG, and arrive at your ruling. Thank you, President.

MR IP KWOK-HIM (in Cantonese): At that time Mr Andrew LEUNG did not make any explanation or ruling in this respect.

MR KENNETH LEUNG (in Cantonese): President …

MR IP KWOK-HIM (in Cantonese): What is the ruling …

PRESIDENT (in Cantonese): The Rules of Procedure does not provide that any ruling made previously will necessarily have a binding effect. I will make a ruling after the meeting is resumed.

(While the summoning bell was ringing, Mr WONG Kwok-hing stood up)

PRESIDENT (in Cantonese): Mr WONG Kwok-hing, what is your point?

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MR WONG KWOK-HING (in Cantonese): President, can I have a few words with you? If it is possible, I hope you could perhaps recall during the time when there was a filibuster in the examination of the Appropriation Bill, you said that those remarks made were not filibustering and so you forbade me from displaying articles that opposed the filibuster and supported cutting off the filibuster, and you asked me to put them away. I hope in the ruling you will make later, there will not be any double standards. Thank you, President.

PRESIDENT (in Cantonese): Mr WONG, I remember clearly all the rulings I have made and I do not need any Member to remind me.

(After the summoning bell had been rung, a number of Members returned to the Chamber)

PRESIDENT (in Cantonese): Will Members please return to their seats.

(Members returned to their seats)

PRESIDENT (in Cantonese): Before the Member pointed out that a quorum was not present and requested a headcount, Mr IP Kwok-him had raised a query and that is, whether or not those slogans displayed now on the bench of certain Members are related to the question presently under discussion. I have listened to the explanation offered by Dr KWOK Ka-ki and I am aware of the grounds put forward by Dr KWOK and they are consistent with those advanced by Mr Frederick FUNG earlier.

Members, questions discussed in this Council are all related to governance and all issues of governance can be regarded as being related to universal suffrage. But this connection seems a bit far-fetched. Moreover, I also notice that many of the slogans now displayed do not generally point out that universal suffrage is important or the relationship between universal suffrage and governance. Instead, they are promotional materials for a particular activity. This is definitely not related to the question under discussion. I therefore ask those Members to remove the placards from their bench showing those slogans.

(Members removed the placards)

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I am sure Members will agree that if we do not abide by the principles which we have always valued and instead, if they try to circumvent these rules in their respective ways, the result will only be negative effects on the dignity of this Council. Will Members please co-operate and remove the placards displayed.

As a number of Members sitting in the front have not returned to their seats, will the staff please help remove the placards.

(Staff removed the placards)

I now call upon Mr CHAN Chi-chuen to continue to speak.

MR CHAN CHI-CHUEN (in Cantonese): President, maybe earlier on when I spoke, I talked about back then Members of the pro-establishment camp and the royalists did not care about more than 10 000 people who opposed the building of the XRL encircling the Legislative Council Building, and these Members still cast their votes in favour of the project. My speech perhaps touched their nerves and so they interrupted me.

The mistake made in the past is irreversible and time and tide wait for no man. I think those Members who voted in favour of the project should more so support the motion to invoke the P&P Ordinance. This can hopefully rectify their mistake and wash their guilt. We have discussed the development of the North East New Territories and it is said that members of the Finance Committee raised many questions in the meetings and spent a lot of time on discussions. However, Members may think that back then when deliberations were made on the funding of the XRL, too few questions were asked and they were not asked too smartly, hence accounting for the fiasco now.

Jay WALDER, the CEO of the MTRCL, CHEW Tai-chong, the Chief Engineer of the MTRCL and Prof Anthony CHEUNG, Secretary for Transport and Housing, cannot shirk their responsibility in this incident. As early as in May last year, certain media people got hold of a number of internal papers of the MTRCL which said that many contractors of the XRL project had told the MTRCL that the design of the lobby at the north wing of West Kowloon Terminus was not sound and major modifications had to be made. Hence there was a need to carry out design and construction at the same time. During the first 16 months of the construction period, there has been a delay of nine months. LEGISLATIVE COUNCIL ─ 11 June 2014 14877

It is estimated that the project will have to be completed one year behind schedule. However, the Transport and Housing Bureau which is supposed to oversee the entire XRL project has been insisting that the target date of completion, that is, 2015, can be met.

Recently, the MTRCL has blamed the ground and said that before the commencement of construction, it had not got hold of enough information about the underground granite and the distribution of underground pipelines. It has been discovered that the geology around Jordan Road is very complicated and a large amount of rocks and rock strata of different depths have to be removed. Then the MTRCL blamed the black rain signal. So, it has put the blame on the weather and also the earth. And after blaming the earth, it blames the weather. And for the sake of convenience it did not build a flood prevention gate as suggested by the Drainage Department. The result is severe flooding in the project tunnels caused by a heavy downpour and large boring machines were damaged also. At least, a delay of nine months is caused.

Despite the spate of scandals about the MTRCL disclosed, Secretary Prof Anthony CHEUNG was not aware of the situation and mistakenly trusted the progress reports submitted by the MTRCL to the Government. Maybe the MTRCL was over-confident, thinking that the progress missed could be recovered in a short time. The Secretary gave the corporation the benefit of doubt but actually he had not done his part in supervision.

The Secretary said in his speech earlier that if delay is announced too early, it will make the engineering companies slacken in their efforts or that urging them to hurry will not be justified, hence the situation will be like a "self-fulfilling prophecy". Therefore, he would rather give the benefit of doubt and give the company time so that it can catch up and meet the schedule. Was the Secretary being too naïve? If there is only a delay of one or two months, the original pace may be caught up. But now the delay is a matter of one or two years, what can be done to catch up with the original pace? It is obvious that the MTRCL was deliberately cheating the Secretary or it was delaying on purpose. But the Secretary chose to believe in the corporation. He chose to be cheated and to be delayed.

Some Members pointed out earlier that this is actually not the worst possible scenario. If the Secretary can urge the contractors or exert some pressure ― Mrs Regina IP said earlier that the Secretary has not been fierce enough ― if the Secretary is fierce enough, he can force the contractors to speed 14878 LEGISLATIVE COUNCIL ─ 11 June 2014 up. But if he is not, when the contractors are sloppy in their work or if any defects or blunders appear, I do not think things can be remedied even if the Secretary resigns. So I agree that now is not the worst scenario.

However, this Council as a watchdog on the Government must know the causes of the delay in the XRL project. As Mr Gary FAN has pointed out in the motion, we should probe into the truth of the matter and find out if there is any cover-up, or if anyone has been hiding things or cheating, or if any person has been condoning wrongs and hence should be held accountable and should step down, and whether or not there are problems with the corporate governance of the MTRCL such that it raises the fares every year despite frequent blunders and against a background of overwhelming grievances among the public.

According to estimates by the MTRCL, in January this year, the construction cost of the XRL in January was already 12% more than the original value in the contracts, that is, $4.4 billion in excess. And there is a trend that this cost overrun is increasing. Chief Engineer CHEW Tai-chong has opted for early retirement and CEO Jay WALDER has resigned due to health reasons. But the people of Hong Kong vow to pursue the truth about this sum of more than $100 billion because it is not about delay in one railway, but also in four other new railways under construction.

Also, the train service of the MTRCL has experienced numerous delays recently. For many days the signalling system of the East Rail has broken down. The Government is the largest single shareholder of the MTRCL and this delay in train service will not just waste the money of taxpayers but also the time of passengers. It is like burning their life. When the train service is not punctual, not only will the passengers be late but it will also bring all sorts of losses that cannot be estimated.

The Public Opinion Programme of the University of Hong Kong has recently released findings on the popularity ratings of the officials and the survey has interviewed 1 005 citizens. The Secretary for Transport and Housing, Prof Anthony CHEUNG, has seen his popularity rating dropped by 32% because of the public condemnation he received as a result of the delay in the XRL project. His rating falls from a positive 27% last time to minus 5% this time. It is a record low for him. From this it can be seen that the incident has caused great grievances among the people.

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The Government has appointed a three-member expert panel. But Members may recall that right after the panel was formed, something ridiculous happened. A member called Prof LEE Chack-fan who was invited to join the panel was alleged to have conflict of interest and he resigned swiftly. It can be seen that the Government has been acting in a very sloppy manner with respect to the appointment of members to the panel and in making remedies. This is not an isolated incident and it has existed for a long time.

This delay in the XRL project is nothing new. As early as the beginning of last year, the corporation was exposed to have placed piles in the Nam Cheong Station 10 years ago in preparation for the construction of housing estates on the station podium. But the piles, never used, had to be removed because of the XRL project, and there are 200 such piles. As a result, there is a cost overrun of 1.6 times in the project as compared to the original cost. The amount of money involved is as much as $860 million.

Members should note that similar pieces of news do not come from the announcements made by the MTRCL itself. For even if there is a delay, the MTRCL will not make it public. Fortunately, in Hong Kong we have the all-powerful media and they can obtain the information and expose it. For if not, there is no way that the public can know such important information. But we do not know what other information the MTRCL is hiding and which the media have not discovered and the Secretary may not know himself.

The logic behind the speech made by the Secretary earlier is confusing and we do not know what he was talking about. He said that the pressing task at hand is to complete the project as soon as possible and invoking the P&P Ordinance to inquire into the incident will impede their work. This is because it will take a lot of time, effort and even money to cope with the inquiry.

President, if you entrusted a staff member with a task and you know pretty well that he has made some mistake and is in dereliction of his duties or even engages in fraudulent acts, but someone says to you, "President, do not probe into this and the most important thing is to get the job done." The meaning of this is: If you probe into this, it will impede his work. What kind of logic is that? If there are problems with a mechanism and there is something wrong with the person in charge, someone wants to stand in the way and there are people who cheat and hide things up, but you do not find out the problems at once, just how 14880 LEGISLATIVE COUNCIL ─ 11 June 2014 can people believe in what they will say? Just how will people believe in the corporation's claim that the project will be completed by 2017?

Mr Michael TIEN's argument is more amazing. He pointed out that previously when the P&P Ordinance was invoked to appoint a select committee, the members had a low attendance rate of the meetings and many of them just adopted a nonchalant attitude. They did not persevere, and they abandoned ship soon and withdrew from the select committee. His observation is most accurate. In fact, in many panels and bills committees, many members only take up the seats after joining them. They did not show up in the meetings and they did not read the papers and they did not ask questions. In the Bills Committee on Marriage (Amendment) Bill 2014, there are more than 30 Members in the Bills Committee. But in many of its meetings, the number of Members in attendance could not form a quorum of one third of the total number, that is, there were not even 10 Members in a meeting. And only three to five members would ask questions. This is a true picture of this Council. So if a select committee is formed, I hope those Members who are not keen on doing anything will not join it. And I hope those Members from the pro-establishment camp will not take up say, 60% to 70% of the places but not showing up for meetings and doing nothing.

Members cannot say that it is because this Council is composed of such a bunch of Members that even if we have this weapon at our disposal, the weapon we have is rusty. Members of this Council are rusty too. They will not persevere to the end and they will not use that weapon. So we should not use it. This will only highlight the ineptitude of this Council. Voters should monitor those Members who join the select committee but do not attend the meetings. Of course, there are many Members in this Council who are royalists and there are also many from the functional constituencies as well. For these Members, we do not have the power to monitor them.

President, I agree that the P&P Ordinance should be invoked to inquire into the delay in the XRL. It is only when the powers of this Council are exercised to demand the relevant papers of the XRL project that we can know how much public money is wasted and how much time is delayed, and what are the things that are still being covered up and whether there is anything which even the Secretary is not aware of. We can also investigate the question of whether there are problems with the MTRCL management which account for the spate of scandals and blunders of the corporation. Besides calling for the top management of the MTRCL to step down, and as some Members have said LEGISLATIVE COUNCIL ─ 11 June 2014 14881 earlier, before the term of office of the select committee is over, many of the people in the top management of the MTRCL may have left and that applies also to the CEO. Notwithstanding this, I think we should still strive to inquire into the incident.

DR PRISCILLA LEUNG (in Cantonese): President, delay in the Guangzhou-Shenzhen-Hong Kong Express Rail Link (XRL) project is an incident of significant public interest, so an investigation must be conducted, liability must be pursued and cost incurred must be compensated. President, regarding the construction of the XRL, I support it in principle and in disposition personally, for I am a railway fan. When I go overseas or to the Mainland, and sometimes when I visit the United States, I will take the railway. The railway services of the United States are relatively poor. Yet I will not let slip any opportunity of taking the railway, for I enjoy railway services.

In fact, the United States is now examining the need to improve its railway services, as well as the need to construct a transport network similar to the XRL. For in the context of nature protection and fuel conservation, the XRL is an extremely desirable mode of transport. However, I did not vote for the construction of the XRL back then. I recall that back then when we dealt with issues concerning the construction of the XRL, I had made repeated requests to Secretary Eva CHENG to go to Tai Kwok Tsui to meet with the residents there. Had she been willing to do so, I would have been more than willing to vote for the project. In fact, I have a penchant for railway, particularly the XRL. But since the former Secretary had not done so in the end, I could not vote for the project.

In recent years, a group of professionals who are concerned about the construction works of the XRL and I have been responding to the local residents or residents in other affected districts through a monitoring group on the construction works of the XRL at Tai Kok Tsui and with the support of community force, the many concerns they have expressed relating to buildings, laws, exploration, survey and other issues relating to the construction of the XRL. President, I think it is only natural that the serious cost overrun and delay in the construction works of the Hong Kong Section of the XRL have become the greatest concern of the town. On 5 May, Secretary Prof Anthony CHEUNG and the Chief Executive Officer (CEO) of the MTR Corporation Limited (MTRCL), Jay WALDER, came to the Legislative Council to explain the case, and they 14882 LEGISLATIVE COUNCIL ─ 11 June 2014 made an official apology to the public. On 8 May, the MTRCL held a general shareholders meeting, and the Chairman of the MTRCL, Raymond CHIEN, announced that Jay WALDER would complete his contract by August next year as scheduled and his contract would not be renewed. He stressed particularly that Jay WALDER's contract was not renewed because of family concerns and that it had nothing to do with the delay in the XRL project.

President, when I heard the remark by Chairman Raymond CHIEN, I flew into a rage. Why did he still insist that the non-renewal of Jay WALDER's contract was attributed to family reasons? Why was he unwilling to disclose just a little information relating to the delay in construction works? Why was he unwilling to give a brief explanation and give us a break? In contrast, after the explanation given by CHEW Tai-chong, Project Director of the MTRCL, I accorded great respect to him personally, for he is committed to shouldering all the responsibility. However, I have one query. For such a colossal project, is only one person given charge of it or is the power of a single person sufficient to impede the process? Has the MTRCL put in place any procedures for internal monitoring to prevent the misjudgment of a single person from causing serious consequences to the project as a whole or to the team? The XRL project costs public money of nearly $70 billion. The MTRCL is responsible for the management of the project, yet no one is held accountable apart from CHEW Tai-chong. As such, the public can hardly accept this, nor can they accept the remarks of Raymond CHIEN at the press conference.

Now, we have to consider the issue from different aspects. The monitoring group wrote to the Chief Executive on 13 May to make three requests. First, the public is particularly concerned about the safety of the construction works, as well as the progress and financial liability arising from the cost overrun caused by the delay. The cost overrun may cover the project as a whole or specific loss arising from the delay in works in individual districts along the alignment. Second, we are concerned whether the MTRCL is required to meet the total amount of the cost overrun. It is a matter of liability, so how will it compensate the financial loss caused by the delay in construction works? Third, according to my experience in dealing with the worries of residents about the project, I think one of the major causes is the lack of transparency, which has given rise to a lot of uncertainties and prompted the residents to worry whether or not the flats they are living in will be affected by the project, and how much they will be affected. Are the reports carried in the media related to their flats? Hence, it is extremely important for the authorities to explain clearly to the public LEGISLATIVE COUNCIL ─ 11 June 2014 14883 the various problems arising from the present construction works. As the saying goes, "no matter how ugly a daughter-in-law is, she has to meet with her father-in-law one day", so the MTRCL should give a full account of the incident to allay the worries of the public. At the same time, we hope that when the MTRCL initiates a reshuffling, it will sincerely consider the loss caused to the people affected by the delay in the project. Apart from the Government, I think the MTRCL should also consider setting up a reasonable compensation mechanism.

The monitoring group has written to the Chief Executive and at the same time, I have been lobbied by many colleagues from the Government. I have written an article on the Legislative Council (Powers and Privileges) Ordinance (P&P Ordinance), stating that according to my initial judgment at the time, the nature and extensiveness of the impact of the delay in the XRL project on the public were comparable to that of the Lehman Brothers incident. Hence, I have all along been observing closely how the Government and the MTRCL have undertaken to explain the incident to the public and I have not agreed in the first instance that we do not need to invoke the P&P Ordinance to inquire into the incident. In the Lehman Brothers incident, I was the first batch of Members who supported invoking the P&P Ordinance to inquire into the incident, and I was a member of the investigation subcommittee. In the investigation of the Lehman Brothers incident. … In the previous term, I had participated in two committees formed on powers conferred by the P&P Ordinance, one was on the West Kowloon Cultural District (WKCD) and the other one was on the Lehman Brothers incident. We had spent four years to investigate the Lehman Brothers incident and several months on the WKCD.

Given the scope and professional knowledge involved in the Lehman Brothers incident, I recall that Members had to spend quite some time to learn about financial investment, the nature of Lehman Brothers bonds and structural investment vehicles, and so on. We had spent quite some time to learn all of these. Finally, as Members all know, we started the investigation work at the beginning of the previous term of the Legislative Council and could complete the report only by the end of the term. Yet many Members on the select committee still considered they had not had enough time to ask follow-up question on many issues. At the same time, there were a lot of correspondences between lawyers. The Legal Service Division of this Council had debated with other lawyers on the disclosure of certain documents in public interest.

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The nature of the XRL project is similar. If we invoke the P&P Ordinance, we certainly will be able to examine more documents, yet we still may not gain access to certain documents. At the same time, many Members are not from the engineering sector, and we may meet a steep learning curve which is even more difficult than the one we have with the Lehman Brothers minibonds. This is the fact. Besides, I believe our investigation will not get any result without several years of work. So, time is another concern.

At that time, I have some worries. I worried that during our investigation, officers responsible for the construction works must come to the Legislative Council to explain the case. Should another batch of engineering staff be employed to follow up the progress of the project? Or should existing engineering staff continue to take care of the work progress while appearing before the Legislative Council to explain the case and have meetings with lawyers, which will cause further delay to the XRL project? The constituency to which I belong is particularly concerned about the progress of the XRL project, for West Kowloon will be particularly affected. Members may ask residents of the districts affected by the works and they will understand the concerns of the residents. Hence, I cannot agree with the remark of Mr WU Chi-wai, that slight delay is not a cause of concern and haste is unwarranted. Had he tried living in the vicinity of the works zones, he would have realized the sense of urgency. Every district in the vicinity of the construction sites is looking forward to the early completion of the project.

Members certainly wish to pursue accountability. Hence, I hope that the panel set up by the Government will make some achievement. The panel includes two overseas experts and is led by Mr Justice HARTMANN. We think he has accepted our views and said openly that the investigation is expected to identify the causes by end of this year.

I think there are two important perspectives concerning the investigation. First, it is accountability. An explanation should be provided to the public. If the truth is uncovered in the investigation and it is concluded that someone has been at fault, it should be dealt with properly. The second point, which is more important, is that we must be told of the causes of the delay and methods to shorten the delay. I have received many concerns expressed by the public about the shortening of the delay. They said, "There should be no more delay, Member, please voice out our concern for us." I heard the wish of the public of avoiding any further significant delay. In fact, I am quite worried about that, for LEGISLATIVE COUNCIL ─ 11 June 2014 14885 the MTRCL and the Government have both indicated that the works may be completed in 2017 or it should be 2016 … in 2017, and I am really worried. I hope they will speak the truth, stating the affirmative if it is the case, and telling the public if it is not feasible. Clarity is of the utmost importance.

Hence, at the present stage, I think the panel set up by the Government is after all different from the committee set up by the MTRCL where its own men is responsible for the investigation. Basically, I am confident that the two experts and Mr Justice HARTMANN will handle the investigation work in an impartial manner. I hope that the report of the panel will answer the aspirations of Members and the public in this respect and dispel their doubts and worries. If so, we may avoid the prolonged investigation approach of invoking the P&P Ordinance. I think this may be an option.

So, in this connection, I would like to tell the Government that when the panel publishes the investigation report, the Government must pursue accountability. Another issue of great concern to Members is the execution of a large number of works altogether, including the Shatin to Central Link and the Kwon Tong Extension. I have heard that these works may also be delayed. Members are all worried about that. Hence, the MTRCL must work harder to make up for its shortcomings and make greater achievements to compensate its mistake, striving by all means to shorten the delay and enhance the transparency of its work in future. If the MTRCL fails to fulfil these few requirements, Members will still respond strongly when it submits the report six months later.

For all of these reasons, I hope the Government will learn a lesson from this painful experience. If it identifies any inadequacies or errors in the internal structure and decision-making procedures of the MTRCL, it should carry out a revamp and look for a solution as soon as possible. Therefore, at the present stage, I think that since the Government has already set up a committee with relatively high credibility and overseas experts with engineering knowledge … while Members lack engineering knowledge on the contrary … I hope they will submit the report within a reasonable period to give an account to the public. Based on this consideration, I think this Council should not invoke the P&P Ordinance to inquire into the incident at this stage.

President, I so submit.

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MR LEE CHEUK-YAN (in Cantonese): President, in the event of this type of incidents, the pro-establishment camp often adopts the approach of disguising their great support with petty criticisms, letting go lightly at critical moments. They say they will let go since the Government is already handling the issue, and Members had better not impede the works progress, for the summoning of witnesses will disrupt the work of engineering staff. Dr Priscilla LEUNG has put forth a new excuse, that is, Members do not know engineering at all.

In my opinion, there are two aspects regarding the incident which must be investigated. First, we have to confirm whether people who have engineering knowledge know what has gone wrong with the construction works. Dr Priscilla LEUNG said earlier that we do not have engineering knowledge. Yet how about people who have such knowledge? Their performance is even worse. Let us look at the chronology of the incident. In 2013, the great discrepancy between the scheduled work progress and the actual progress started to be noticeable, increasing from a few percentage points to a dozen percentage points and then to over 20 percentage points. The worst point was that the progress discrepancy was there all along and the Government was not ignorant of the delay.

Members all know that grandiose commitments have been made concerning the project. The authorities have undertaken to monitor and assess the works, the Highways Department (HyD) will hold monthly meetings with the MTRCL and the Government has outsourced the monitoring work of the project as a whole to a consultancy. All these arrangements have been carrying on all along. What we are going to investigate now is the strangest point in the incident. The project as whole has experienced repeated delays for a long time yet the MTRCL has all along insisted that service commencement will not be affected. What has the Government been thinking about the incident? Has it kept its hands folded and simply trusted the MTRCL at hearing its engineering staff responsible for the works expressing confidence? Regrettably, it has developed into a big problem eventually, that is, the project is left unfinished. Perhaps I should not say that it will be left unfinished. It may not exactly be the case, yet there will be a delay of at least two years with a further waste of money. Against this background, what are the issues we are seeking to find out and investigate right from the beginning? The MTRCL has all along shown great confidence about the completion, but does it mean that the Government can turn a blind eye to the delay which has existed for some time simply because the MTRCL is full of confidence?

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What does the HyD think? The HyD has been holding monthly meetings with the MTRCL to monitor the works progress, has it never had a moment of fear? What did the HyD think at the time? Was it thinking about to let it go, for sometimes works would … I have studied engineering myself. I understand that there is a major problem in the engineering sector, that is, slippage or delay is commonplace, and the sector considers it best to have variation of order. Members know that if variation is in order, they may make some more money by modifying the original design. Since the price of a project is fixed in the tender, the availability of variation of order will enable the contractor to make real money. Should the incident be attributed to the many bad habits involved? People in the sector are used to delays and frequent modifications of design. In the event of modifications of design, the parties concerned will be preoccupied with bargaining and calculation of the extra money they can make. How did the whole incident take place? Why has the HyD not taken any action despite noticing the delay all along?

Moreover, a consultancy is responsible for monitoring the project. It had submitted a report to the HyD pointing out the entire incident, but no one cared. The Government still trusted the MTRCL. In fact, the MTRCL had stated at a certain juncture that the XRL could not commence service in 2015, and only partial commencement might be possible. Had the Government accepted this? The Secretary had said that they would not accept this. Though he considered it unacceptable, he had neither made any public announcement about this nor explained the case to the people of Hong Kong, and then … I think the Secretary understands that the whole incident is a public relations disaster. Which part is a public relations disaster to the MTRCL? It is the flooding of the construction sites after the black rainstorm, where the MTRCL used the black rainstorm as the excuse for the delay of the entire project. However, it is obvious to all that the delay is not caused by the black rainstorm. The black rainstorm is only part of the cause, and the incident is after all the result of mishandling.

In my view, even LEUNG Chun-ying should know that he has been betrayed in the incident. Why am I saying this? Right after LEUNG Chun-ying came forward to say that the XRL would commence service in 2015, the MTRCL amended the word "commencement". The MTRCL did not use the phrase "commencement in 2015" but that "most of the works would be completed in 2015", and the word "commencement" had been deleted. I do not know what the Secretary was thinking at the time. I do not understand why they would 14888 LEGISLATIVE COUNCIL ─ 11 June 2014 remain indifferent after realizing that LEUNG Chun-ying had been betrayed, for LEUNG had made the announcement on service commencement after listening to the report of the Bureau, yet his announcement was corrected by the MTRCL. Of course, the Secretary eventually said that he was totally caught by surprise. Yet we were all caught by surprise when the Secretary said he was caught by surprise, for the Secretary should have known that there had been delay in the works all along.

This is one of the points that require investigation. The second point that needs to be investigated is whether the CEO of the MTRCL had abetted the Secretary to lie, who had rung up the Secretary to urge him not to tell the truth at the Legislative Council that there was delay in the project. Then the Secretary took his advice and covered up the delay from the Legislative Council. Certainly, if the Secretary intended to cover up the delay, his hypocritical rhetoric would be fine for that. At that time, he touched on the issue lightly ― touching on an issue lightly is also kind of cover-up. During the conversation between the CEO and the Secretary, did the CEO abet the Secretary to tell lies? He had actually suppressed the Secretary from telling the truth. When a person, the CEO of the MTRCL, suppresses the Government from telling the truth, he is in a way abetting the Government to lie.

In the narrow sense, lying is of course referring to telling a lie. However, to cover up the truth should also be regarded as lying, just that we may not necessarily called it lying. Yet I consider this a significant concern, for the Secretary being a public officer has not told the truth to the public but assisted the MTRCL in covering up the truth. This is really a big problem. After the Secretary had received the call one night in November, be it the "midnight ring" or the "evening ring", the two teams held another discussion after the telephone conversation, and then they colluded to cover up the truth from the Legislative Council on the following day. So, an investigation should be conducted into this aspect. The Secretary often says that he was giving it the benefit of doubt at the time. What kind of relationship has prompted the Secretary to show such mercy? Why does he have to give it the benefit of doubt? Members know it full well that the delay in works has existed for a year, newspapers have reported the case and the public have been guessing that there will be delay. However, the MTRCL has tried to cover this up all along and the Government has covered up the case for the MTRCL. Eventually, there is no way for the truth of the entire incident to be revealed. Should an investigation not be conducted into these issues?

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Come to think about this: Do Members know these two events? Do Members know the severity of negligence on the part of the Government in monitoring the project as a whole? How serious is the delay in the project as a whole on the part of the MTRCL and how has the MTRCL covered up the truth from the public and the Government? Members, do you know that? No, you do not know, neither do I. That is why an investigation has to be launched. What happened on that night? Had anyone abetted others to lie? Have we investigated the event seriously? Of course, the incident was mentioned in the Legislative Council, yet we have not investigated the incident with witnesses testifying under oath.

For this reason, I strongly disagree that we should rely on engineering staff in conducting the investigation. Regarding certain technical issues, the Legislative Council may in fact commission a consultant to examine the incident for us. However, many problems are related not to technical issues but approaches adopted at the time in handling the case, as well as the possibility of cover-up and the attitudes adopted in following up the case. For issues other than the technical ones, I think we are definitely capable of conducting an investigation. Against this background of many issues remaining unknown, I think we have the responsibility to invoke the Legislative Council (Powers & Privileges) Ordinance to inquire into the incident on behalf of the public.

Certainly, there is this question about the "bill". In view of the error, what should the authorities do? Who should meet the cost incurred for the two-year delay? If contractors are requested to foot the bill, they may say they have no responsibility for they are only acting in accordance with the information provided by the MTRCL, and that they have no knowledge of the hard geological condition in certain areas due to the inadequate boring work done by the MTRCL. From which source did the contractors get the boring data? From the MTRCL. Since contractors did the design according to the information provided by the MTRCL, they have no responsibility. If contractors refuse to shoulder the responsibility, who will? Should it be the MTRCL? The MTRCL should be held responsible. Yet where does the MTRCL get the money to shoulder the responsibility? By then, the MTRCL will use the money of the public to fulfil its responsibility. The MTRCL does not have to bear the brunt itself, and it will eventually take advantage of the public. For instance, when its profit for a certain year decreases, it will cut the concessions it offers to the public or even increase its fares. Once the MTRCL records a deficit, it can increase its fares. No one knows how much will be incurred in the present case. Some people say 14890 LEGISLATIVE COUNCIL ─ 11 June 2014 it may involve more than $3 billion, other calculations indicated that it may be over $10 billion. How much will it cost? The MTRCL is making an annual profit of only $1.4 billion. If the some $10 billion are to be borne by the MTRCL solely, it means the public have to pay.

But if it is not for the MTRCL but the Government to bear the cost, it will be even worse, for it will be paid by the public coffers for no justifiable reasons. Who should be held responsible then? We do not know how this issue of "footing the bill" will develop. What will be the result? We will end up seeing one party suing another. The Government may sue the MTRCL or the contractors may sue the MTRCL. There will be different rounds of lawsuits. After all, someone has to foot the bill. No matter who foots the bill, the public will be victimized. If the bill is footed by the MTRCL, the public will suffer, and if it is footed by the Government, they will suffer all the same. Therefore, the public are the most unfortunate. We are the most innocent, for the Government has created this white elephant for no reason. Back then, we opposed the construction of the XRL and considered it utterly unnecessary. Now, the authorities have created this white elephant which turns out to be an abyss and no one knows how much has to be paid to settle the bill. Eventually, the public will have to bear all the costs.

If Members consider it unnecessary to investigate the incident, what incidents will Members consider an investigation warranted? The project involves over $60 billion ― the cost may have exceeded this amount and may involve over $70 billion ― yet certain Members still say that an investigation is unnecessary. They are quite generous, and they are easy-going concerning many issues no matter how much is … Perhaps these Members consider that this is not their money but the money of the SAR Government or that of the MTRCL, so they do not care at all. May I ask Members whether they have adopted this attitude? If an investigation is not required in respect of this incident, what incidents will warrant an investigation? Therefore, President, lastly, I will support the motion on conducting an investigation according to the Legislative Council (Powers & Privileges) Ordinance on behalf of the Labour Party. Since I consider the extra costs incurred are unnecessary expenses … The incident involves injustice pending to be righted.

Thank you, President.

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MR MA FUNG-KWOK (in Cantonese): President, in April this year, when the MTRCL stated that the Guangzhou-Shenzhen-Hong Kong Express Rail Link (XRL) project could not be completed in 2015, where the construction works could only be completed in 2016 and service be commenced in 2017, I think Secretary Prof Anthony CHEUNG was not the only one caught by surprise at hearing the announcement, the public at large felt extremely surprised too.

At first, the MTRCL explained that one of the causes of the delay of the XRL project was the rainstorm in March, which had caused flooding in a section of a tunnel in Yuen Long and damaged the boring machine and stopped the boring works. President, any professional resident engineer should exercise extreme caution in times of inclement weather and make proper preparations to cope with the weather. This is the ABCs of construction works. However, the MTRCL had failed to implement proper precautions this time, resulting in flooding at the site of the tunnel and causing a delay in the project. This is a silly mistake that is inexcusable, and it prompts queries about the professional standard of the engineering department of the MTRCL.

Certainly, as evident in the development of the incident in the past month or so, the delay of the XRL project is not simply a matter of unfavourable weather or geological conditions. Delay in major works projects is not uncommon. Unfortunately, the MTRCL chose to make misleading remarks and cover up the truth repeatedly to try to get away, though blunders in management are obvious.

Besides, it is disappointing that the Government, being the sponsor and the supervisor of the project, has failed to monitor the project effectively. On the one hand, the Government has relied too much on the reports submitted by the MTRCL. On the other hand, despite noticing the possibility of delay, the Government eventually allowed the MTRCL to assume the dominant role and gave it the benefit of doubt, falling short of mentioning the fact that the XRL could not commence service in 2015 at the meeting of the Subcommittee on Matters Relating to Railways of the Legislative Council in November last year.

Regarding the serious delay in the XRL project, I agree that it is necessary to conduct investigations and reviews. First, it is necessary to identify the causes and determine responsibility; and second, to review the supervision mechanism of the project to step up the monitoring of the MTRCL to prevent further delay. Most importantly, the incident this time around has revealed the inability of the SAR Government to monitor the work of the management 14892 LEGISLATIVE COUNCIL ─ 11 June 2014 effectively even though the SAR Government is the major shareholder of the MTRCL and three government officials are sitting on the Board. The SAR Government should take this opportunity to conduct a comprehensive review of the organization, management and monitoring mechanism of the MTRCL with a view to enhancing the management culture of the MTRCL. At the same time, the SAR Government should consider conducting similar reviews of other public works projects, such as the West Kowloon Cultural District (WKCD) project, to prevent the occurrence of similar incidents.

President, the motion proposed by Mr Gary FAN on invoking the Legislative Council (Powers and Privileges) Ordinance (P&P Ordinance), our imperial sword, to set up a select committee is one of the options to inquire into the XRL incident. However, Members need to note that the construction of the XRL seeks to shorten the travelling time between Hong Kong and the Mainland and reinforce the tie between Hong Kong and cities in the Pearl River Delta (PRD), so as to maintain Hong Kong's position as the hub of the PRD and to promote the economic development of Hong Kong. The early completion of the project will be beneficial to local development. Actually, the Guangzhou-Shenzhen section of the XRL commenced service in 2011, and the Hong Kong Section is scheduled to commence service in 2015, where delay already exists. But now the service commencement of the Hong Kong Section may be delayed further to 2017, it means a wider gap. Hence, it seems that the most pressing target is to prevent further delay in the project and ensure the early commencement of the Hong Kong Section of the XRL rather than inquiring into the incident to find out the truth.

If the Legislative Council exercises its powers under the P&P Ordinance to set up a select committee to inquire into the incident, it will not only involve the summoning of government officials in charge, for any MTRCL staff member involved in the project may be summoned to attend hearings. Will the need for engineering staff to deal with the hearings of the Legislative Council affect their pressing work in catching up with the progress of the XRL project and cause further delay to the project? I feel gravely concerned about this. It is particularly so when the two major officers responsible for the project, including Project Director CHEW Tai-chong and General Manager for the West Kowloon Terminus Alan MYERS, will take early retirement and depart upon completion of their contracts respectively very soon. In view of the large scale and complexity of the XRL project works, their successors will inevitably take some time to grasp and familiarize themselves with the project, and they should be spared of the distraction of dealing with the investigation.

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Moreover, the MTRCL has set up an investigation committee comprising six independent non-executive directors to examine in detail the cause of the delay of the XRL project. The SAR Government has also announced the setting up of an Independent Expert Panel, where Mr Justice HARTMANN will lead two experts from the United Kingdom and the United States to conduct a comprehensive examination of the management system of the projects of the MTRCL and the monitoring mechanism between the Government and the MTRCL. We have reasons to believe that they are definitely able to identify the causes and make improvement recommendations. Secretary Prof Anthony CHEUNG has made an unequivocal undertaking that if the Independent Expert Panel identifies any specific responsibility on his part, he will resign immediately. The Legislative Council may decide whether or not it is necessary to set up a select committee after the two investigations are completed. If the management is required to cope with three investigations simultaneously, they will be exhausted, and this will be extremely unfavourable to the works progress of the XRL.

President, another issue which I am very much concerned is the impact of the delay of the XRL project on the WKCD. When I got wind of the news about the delay of the XRL project, as a director of the West Kowloon Cultural District Authority (WKCDA), I immediately expressed my concern at the meeting of the Board and requested the WKCDA to conduct an impact assessment and examine corresponding measures in view of the delay of the XRL project.

In fact, when the XRL project was launched in 2010, the MTRCL had borrowed a site of 14 hectares from the WKCD for use as the temporary office of the MTRCL and the temporary depot for soil excavated from the XRL terminus site. The site is scheduled to be returned to the WKCDA in 2015, yet it is understood that the site can be returned only in 2016 now.

The delay in the return of the site will immediately affect the construction of the second phase cultural and arts facilities in the vicinity of the XRL terminus, such as the Centre for Contemporary Performance and the Medium Theatre, and so on. The integrated basement there can only be built after the works of the XRL terminus are completed. The WKCDA has now proposed that the construction of the integrated basement be carried out in phases, yet it cannot accurately calculate the impact on the construction costs. Moreover, the barging facility of the XRL is scheduled to be returned to the WKCDA by the end of 2015, but due to the delay, the site cannot be returned on schedule and may affect 14894 LEGISLATIVE COUNCIL ─ 11 June 2014 the construction of the Lyric Theatre or prevent the Lyric Theatre from commencing operation in 2019-2020 as scheduled.

On the other hand, according to the original idea, the construction of the XRL terminus in West Kowloon, in the vicinity of the WKCD, is to achieve a complementary effect. For it is thought that the merit of convenience in transport will attract more visitors from the PRD Region to visit the WKCD on the one hand, and the attraction of the WKCD will bring more passengers for the XRL on the other, thereby enhancing the cost-effectiveness of the XRL. The present delay of XRL may not affect the completion time of the first phase construction works of the WKCD, such as the Xiqu Centre and M+ Museum, but the delay in service commencement of the XRL will inevitably affect the target of attracting visitors from the PRD Region to visit the WKCD and the visitor flow and appeal of the WKCD upon the opening of the WKCD. Hence, if there is any further delay in the XRL project and its service commencement, it will affect the construction progress, construction costs and the development of the WKCD. To conclude, regarding the impact on the WKCD caused by the delay of the XRL, I think the XRL should be held accountable.

President, I must stress that I consider it necessary for the legislature to pursue accountability and follow up on responsibility for the delay of the XRL, yet the pressing task now is to supervise the MTRCL in catching up with the progress of the XRL project, so that the XRL can commence service as soon as possible. Any further delay will not only undermine the cost-effectiveness of the XRL but also affect the WKCD project, which means increasing the spending of public money. Hence, I have reservations about setting up a select committee at the present stage. I hope that we can consider the need for setting up a select committee after the reports of the two investigations are completed and the catching-up of the progress become more reliable. Therefore, I cannot support the motion proposed by Mr Gary FAN this time at this moment.

I so submit. Thank you, President.

MR JAMES TIEN (in Cantonese): President, since it was founded, the Liberal Party has always believed that the Hong Kong Government should maintain the modus operandi of "big market, small government". Despite being a small government, however, it still has some duties to perform. Besides performing duties which are taken seriously by the Legislative Council, such as enacting LEGISLATIVE COUNCIL ─ 11 June 2014 14895 legislation to enable society to keep abreast of the times and pursuing financial and technological development, the Government also has to play another important role of undertaking infrastructure development. While ordinary people may be concerned about the construction of hospitals, schools, public housing, and so on, traffic and transport is actually an important element, too.

Insofar as traffic and transport is concerned, the Liberal Party has agreed to the implementation of a number of programmes over the years, such as the expansion of the new airport. In particular, the development of air and cargo transport has benefited Hong Kong a lot in establishing its status today. Besides the development of airport construction to shorten the distance between Hong Kong and the Mainland and even other parts of the world, it was also for this reason that we supported the construction of the Hong Kong Section of the Guangzhou-Shenzhen-Hong Kong Express Rail Link (XRL) because we considered it equally important for Hong Kong to integrate with China's railway network, which is undergoing the most rapid development nowadays, after the reunification. In fact, the facilities of airports in various parts of the world have already reached their full capacity. The trip to the airport, which often takes an hour, plus the time required for immigration/customs clearance and boarding, a short journey of an hour or two may take an entire day if the total time required before and after is taken into account as well. On the contrary, the total time required can be shortened considerably, particularly for trips to Guangdong Province and its vicinity, even though XRL journeys might be longer and slower. Furthermore, the XRL has now extended to Fujian and Shanghai.

We have also noted that the operation of the XRL on the Mainland has achieved great success. Many travellers from Shanghai and Beijing have already switched to the XRL because of the substantial saving in time. This is why the Liberal Party supports the implementation of such projects as the construction of the Hong Kong Section of the XRL. President, I certainly know that this is not directly related to the question under discussion at the moment. However, various sectors of the community are greatly concerned about the recent occurrence of a spate of incidents in Hong Kong, which has raised fears that Hong Kong is turning itself into a fortress that practises protectionism. We seem to be afraid of integration with the Mainland, and afraid of having too many Individual Visit Scheme visitors coming to Hong Kong to snap up all commodities made in Hong Kong. A tax has to be levied on Mainlanders who purchase flats in Hong Kong because we are afraid that quality housing will be snapped up, and so will university places and hospital beds.

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The purpose of constructing the Hong Kong Section of the XRL back then was to facilitate the people in commuting between Hong Kong and the Mainland and to give a boost to economic development. Does the current situation still holds true? The Liberal Party certainly hopes so, but I believe members of the public are even more disappointed with the delay experienced by the XRL and the entire project than the initial decision of constructing the Hong Kong Section of the XRL. The MTRCL, which is responsible for the XRL project, has even failed to make proper efforts in building MTR stations. Naturally, Hong Kong people, as part of Hong Kong, believe that the MTRCL should concentrate its efforts on providing proper MTR services to benefit the public expeditiously since it is spending Hong Kong people's money.

On the contrary, members of the public will also question whether or not manpower has been diverted to undertaking the XRL project. Although the project is taken charge of by another group of executive staff, many senior staff, including Dr Raymond CH'IEN, Chairman of the MTRCL, the entire Board of the MTRCL, and even the Highways Department and Secretary Prof Anthony CHEUNG, will have to juggle with a wide range of commitments. Will they encounter problems because they have to divert their attention to dealing with other affairs? I believe the public's present angle of concern has led to an extremely polarized community. In other words, we are all wondering whether or not integration with the Mainland is essential. I hope the Secretary and the Government will not shake our confidence in this, thereby causing us to do nothing for fear of trouble.

The point of view of the Liberal Party is different from that of many colleagues from the labour unions. From the angle of investment, we as representatives of the business sector consider capital absolutely essential. However, the availability of capital does not guarantee success, so if capital is available but manpower is lacking, there is no way for construction to be undertaken. The situation in overseas countries might be different, but I am talking about Europe, not other less developed countries. Although there is no lack of manpower in Europe given the high unemployment rates, infrastructure development such as airports and even subways cannot be pursued due to a lack of capital.

Let us take a look at several well-known cities and metropolitan cities, such as London and New York, which are better than Hong Kong in many aspects. However, everyone knows that the metro networks in London and New York LEGISLATIVE COUNCIL ─ 11 June 2014 14897 cannot rival that in Hong Kong. The metro network in New York when I was studying in the United States in the '60s was pretty much the same as it is now. These cities have fallen far behind Hong Kong in terms of metro development. Despite the continued expansion of airports in the United States, I think that the airports in New York lag behind the one in Hong Kong. Meanwhile, despite the completion of a fifth terminal in the airport in London, connecting buses are being used, which are far from satisfactory in both design and operation.

Nowadays, from the angle of the business sector, in addition to the availability of capital, infrastructure works must be undertaken expeditiously for time and costs to be saved. Does Hong Kong have enough construction workers to undertake the construction works? There is no reason for the XRL works to experience a two-year delay and fail to make up for the progress lost. The problem can basically be solved with the deployment of more machinery and operational manpower for the expeditious boring of various underground corridors. In today's world, this can definitely be done if manpower, machinery and capital are readily available. No one would believe that we should compensate the contractors with our generous sum of capital. Why can we not allow the MTRCL to import a certain number of workers specifically responsible for the construction of the XRL and MTR, as we did for the construction of the airport years ago? I believe doing so will definitely not waste taxpayers' money. I will not say that the money belongs to the business sector because many Hong Kong people are taxpayers. The existing approach is like dumping money into the sea. Not only is the length of the delay not known, the amount of money to be compensated for the claims filed is also unknown.

What should we do? In my opinion, if the Government is committed to completing the remaining XRL project properly, it must consider in concrete terms importing a certain number of workers with expertise in the construction of express rail links, like what it did during the construction of the airport. I believe express rail experts, architects, workers and machinery operators must be thanked for the success of the express rail links on the Mainland. I can only use the word "machinery" to describe everything because those machines are so complicated that I do not know how to distinguish them. If this approach is adopted, there is absolutely no reason for the Government not to be able to complete the Hong Kong Section of the XRL expeditiously at a lower cost. Such being the case, I hope the Government can take on board this proposal.

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Coming back to today's question on whether or not an inquiry should be held, of course, the Liberal Party is greatly dissatisfied with this incident and has all along considered that an inquiry should be conducted, but the question only lies in how to conduct the inquiry. Actually, the Liberal Party is not totally resistant to invoking the P&P Ordinance, which is considered by pro-democracy Members as the best option. Last year, we moved a motion on invoking the P&P Ordinance to conduct an inquiry into the incident involving Mr Barry CHEUNG and the Securities and Futures Commission, too. However, should the P&P Ordinance be invoked or other channels be used to enable the inquiry to be conducted successfully and the truth uncovered expeditiously? According to our consistent stance, we hope that the inquiry can be conducted by the Government, not the MTRCL, and the P&P Ordinance will only be invoked when the Government refuses to conduct an investigation, like the inquiries carried out into the substandard piling works incidents and the chaos caused by the commissioning of the new airport.

The Government's present approach is precisely compatible with our thoughts. The MTRCL initially indicated that it would appoint non-executive directors to carry out an investigation on its own. Although Mr Abraham SHEK is one of the non-executive directors of the MTRCL, I still consider the system of peer investigation problematic because the MTRCL will only examine executive responsibilities, that is, a review of and recommendations on the method of management, but not issues concerning dereliction of duty, integrity, and so on. Furthermore, the Secretary ― I am pleased to note that he is present here ― might be held accountable in the incident, too. This is why the Liberal Party proposes that the Government form an independent commission of inquiry to be chaired by a judge in collaboration with several experts who have actual knowledge in the project to inquire into the roles played by the Secretary and the Director of Highways. Of course, we think that the Board of the MTRCL should bear a significant share of the responsibility before the executive is to be held accountable.

Talking about the MTRCL Board, President, I would like to point out that the MTRCL is different from other listed companies because more than 70% of its shares are held by the Government. While the directors and chairmen of other listed companies are elected by their shareholders, the minority shareholders of the MTRCL cannot make their voices heard because the Government is the majority shareholder, meaning that the MTRCL is basically LEGISLATIVE COUNCIL ─ 11 June 2014 14899 led by the Government, though the 10 to 20 directors are claimed to be independent. The Government should indeed be held accountable because the Chairman and directors of the MTRCL are all appointed by the Government. I am talking about being accountable to those minority shareholders who hold the remaining 20% or so of the shares, not ordinary citizens. These minority shareholders have queried why the Government could have possibly made such a serious mistake in monitoring the XRL project undertaken by the MTRCL on the ground that the Government, being the majority shareholder, is responsible for appointing the Chairman of the MTRCL and its directors, including non-executive directors. They have also questioned why only Mr Jay Herbert WALDER, the Chief Executive Officer, is held accountable and why Mr CHEW Tai-chong has turned out to be the only accountable person. Will it be acceptable to the public for a person making several million dollars per annum to just say that he is accountable and will resign next year? I believe this is absolutely unacceptable.

For these reasons, if an inquiry is to be conducted, we do not support the so-called "peer investigation", which means that the MTRCL is to conduct its own investigation. Neither do we support inquiring into the MTRCL alone. Eventually, the Government has taken on board some of the views expressed by the public and the community, including the Liberal Party, by setting up an Independent Expert Panel (the Panel) to follow up the matter. Although the Government refuses to call the Panel a "commission of inquiry", we think that it serves the same purpose. It is worth mentioning that the Government has indicated that the Panel does not seek to pursue responsibility and impose sanctions on the persons concerned. After studying it, however, the Liberal Party finds that this approach is actually similar to the one taken to deal with the substandard piling works cases and the chaotic incident involving the airport in that matters concerning the imposition of sanctions will be dealt with by society after the inquiry is completed. In this case, what does "society" refer to? I believe it should be referring to the Legislative Council.

Therefore, we approve of the Government's existing approach of completing the investigation in six months. Unlike the report on the marine tragedy off Lamma Island, the report compiled upon the completion of this investigation will be disclosed rather than put on hold on the ground that the Government might need to institute prosecution against certain persons or government officials. The Government has made a formal undertaking that the 14900 LEGISLATIVE COUNCIL ─ 11 June 2014 report will definitely be made public upon the completion of the investigation. We note with appreciation that Secretary Prof Anthony CHEUNG has made it clear in a radio programme that he will resign should the report indicate that he is at fault. I hold him in great admiration for what he has done because no government official has ever dared say something like that. The Secretary is either full of confidence, firmly believing that he will definitely be alright, or committed to facing the findings of the investigation and resigning from the office of Bureau Director if the investigation clearly shows that he has to be held accountable. This is an responsible act of his.

For these reasons, the Liberal Party considers that we should wait until the completion of the investigation. Upon the publication of the report, I believe the Legislative Council, the media and the public will definitely read the disclosed report, hold detailed debates and make analyses to determine whether there is a need to impose sanctions and pursue responsibility, and whether any person has to step down. Hence, the Liberal Party does not support invoking the P&P Ordinance today to inquire into this incident.

Thank you, President.

MR WONG KWOK-HING (in Cantonese): President, the delay of the XRL certainly warrants an investigation, and there are several key words to the investigation into the delay of the XRL: Whether there is any conspiracy; whether there is any cover-up and who should be held responsible; and whether there is any dereliction of duty. I think any investigation should revolve around these four points. If an investigation is in order, should it be carried out by a select committee set up by the Legislative Council by invoking the Legislative Council (Powers and Privileges) Ordinance (P&P Ordinance) as proposed in Mr Gary FAN's motion or the Independent Expert Panel (the Panel) appointed by the Government? I think, at this stage, it is better for the investigation to be carried out by the Government-appointed Panel than a select committee set up by invoking the P&P Ordinance. The reason is that I think the three members of the Panel are independent, objective, fair and professional.

Why do I think that this Panel has these four characteristics? First of all, let us look at the Chairman of the Panel, Mr Justice Michael HARTMANN. Mr Justice HARTMANN has served in the Hong Kong Judiciary for over 20 LEGISLATIVE COUNCIL ─ 11 June 2014 14901 years, retiring as Justice of Appeal in 2012. He remains a Non-Permanent Judge of the Court of Final Appeal and chairs two tribunals that assist in the governance of Hong Kong's securities industry, namely, the Securities and Futures Appeals Tribunal and the Market Misconduct Tribunal. He also chairs the Higher Rights Assessment Board. Therefore, with regard to the appointment of Mr Justice HARTMANN as Chairman of the Panel, I believe Members will agree that in carrying out the investigation, he is capable of making correct judgments with a serious and most impartial attitude. With his experience in making analyses, determinations and judgments, he can rise above any challenge, and this is why he can inspire greater confidence in us.

Besides, the other two members of the Panel, who also come from overseas, are richly experienced in engineering. Mr Peter HANSFORD from the United Kingdom was appointed as Chief Construction Adviser by the United Kingdom Government. He has over 35years' experience in the development and delivery of major infrastructure and building projects. He is a Fellow of the Royal Academy of Engineering, a Fellow of the Institution of Civil Engineers, and a Fellow of the Association for Project Management. He served as President of the Institution of Civil Engineers from November 2010 to November 2011. He was a member of the steering group for the Infrastructure United Kingdom cost study to seek ways of reducing the cost of major infrastructure projects in the United Kingdom. In view of his profound experience, I think he does command our trust.

Prof Andrew J. WHITTLE, who comes from the United States, is the Professor of Civil and Environmental Engineering at the Massachusetts Institute of Technology and a member of the United States National Academy of Engineering. He is a geotechnical engineer with particular expertise in the modelling of soil behaviour and analyses of soil-structure interactions who has worked extensively on urban excavation and tunnelling projects. He has authored more than 170 publications and has been consulted on more than 40 major onshore and offshore construction projects. He was twice appointed as an expert reviewer by the Government of the United States. He is currently a member of the Board of Directors for the Massachusetts Department of Transportation.

With their expertise in major engineering projects and experience in crisis management, these two overseas experts will help us probe into the causes of the Government's problems in monitoring the handling of the project and in 14902 LEGISLATIVE COUNCIL ─ 11 June 2014 identifying solutions. I believe their experience and expertise will be helpful and constructive to our investigation. Therefore, these three-member Panel is independent, objective, fair and professional. It commands a high degree of trust and credibility, which is indisputable. This is the first point.

Second, efficiency. I think this three-member Panel is timely and of a high quality, and it is more efficient than the Legislative Council in its current conditions. What are its conditions? I think I do not have to waste time explaining this, for a number of Members have already spoken a lot on this earlier and I would say that Mr CHAN Chi-chuen is an exemplar. In his speech earlier on, he gave a description of the efficiency of the Legislative Council, and I am not going to repeat it. Therefore, they simply cannot be compared. If an investigation is not carried out by this Panel first but in other ways, the efficiency of investigation will definitely leave a lot to be desired.

Third, this Panel can entirely avoid all conflicts of interests and roles. Also, it can prevent the investigation from being politicized and from being elevated to the political plane for various political reasons. It can pre-empt the situation of making criticism for the sake of criticism and opposing for the sake of opposition. It can pre-empt the situation where there are more political trials than practical, rational analyses and ensure impartiality in making determinations. I think these several points are of the utmost importance. Therefore, the investigation should be carried out by the Panel first and then we will study its report to be made public in the future. This is the best option, and also the proper, rational option.

President, I noticed that the Secretary and the Under Secretary have clearly and openly made an undertaking to the public that they will resign if the investigation concluded that they should be held responsible. I think this is a commitment. I think what they have done is open and aboveboard and merits our commendation. I hope that upon the completion of its investigation, this Panel can do justice to everyone, ascertain the facts and relationships, and identify the causes of the delay, so that the Government and the Legislative Council can pursue the responsibility of the relevant persons and the MTRCL or that of the contractors. I very much hope that after its inception, the Panel can commence its work expeditiously, in order to provide a full and thorough account to the public early.

Thank you, President.

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PRESIDENT (in Cantonese): Does any other Member wish to speak?

MR ALBERT CHAN (in Cantonese): President, I speak in support of Mr Gary FAN's motion. With regard to the XRL, when the Government proposed to build this railway and decide on the location, I clearly pointed out that this railway had several serious problems. One is that the planning time was too short. Given an excessively short planning time, problems would certainly arise in the design because of too much haste in planning, and this would definitely result in cost overrun and delay. Second, I also pointed out that the choice of location was wrong. The choice of location and the alignment of the XRL are all wrong, because the alignment was never considered from the angle of cost-effectiveness. At that time, it was just grand, big and empty talk, and the plan was only to enable people from the Mainland to travel to the downtown area of Hong Kong by railway. Planning was then made in a very short time. I already pointed out at the time that this $66.9 billion-worth project would definitely have poor cost-effectiveness and might even record a loss. Recently, some express rail links in Taiwan have already faced bankruptcy. So, this is a white elephant and back then, the public even described this $66.9 billion-worth project as a super white elephant, for it would not only destroy the homes of many farmers but also cause blunders in finance.

At that time, I also pointed out that if the XRL must be built, the terminus should be located in Kam Tin. The advantage of siting the terminus in Kam Tin is that the overall costs can be reduced substantially and this is also fairer to the 3 million or 4 million residents living in the New Territories because there is no reason to site the terminus in Kowloon, which means that residents in Tuen Mun, Yuen Long, Fanling and Sheung Shui will have to get off in West Kowloon and then travel back to the New Territories. Therefore, in order to provide a terminus linking with the XRL in the North and facilitate communication among the regions or their development, consideration should be given to cost-effectiveness and overall needs of the people in choosing the location of the terminus, rather than making a decision to suit the development of the West Kowloon Cultural District (WKCD). I said at the time that the XRL was basically developed for the cultural development in West Kowloon and for the rich people in West Kowloon. For these reasons, I strongly opposed this project at the time.

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President, I have looked up the minutes of meetings of the Finance Committee in 2010 at which this project was discussed and found the several motions proposed by me then. Recently, it has become a common phenomenon for motions to be moved in the Finance Committee but this was rare four years ago. It was after I had joined the Legislative Council that the practice of moving motions has been taken forward. I prepared 30 motions at that time and passed some of them to the pan-democratic Members for them to move at the meetings. But all the motions, like those put forward recently, were negatived.

However, the motions back then were all well-justified. President, let me read out one of the motions proposed back then: "I now move under paragraph 37A of the Finance Committee Procedure 'that as the Government still pushes through the construction of the Guangzhou-Shenzhen-Hong Kong Express Rail Link (XRL) despite opposition from various fronts, if the completion of the XRL will be delayed as a result of the Government and the MTR Corporation Limited underestimating the difficulties of the works, the Government should hold the consultant company making such assessment accountable and recover the losses from the company'". This is exactly the problem before us now, President. But this motion was negatived as a result of the royalist Members coming to the defence of the Government.

Moreover, the other part of the motion was also negatived. I formally proposed at the time that if the cost of certain works turned out to be exceeding the budget and with regard to the actual amount of the cost overrun, the consultancy commissioned by the Highways Department to assess whether the cost is reasonable should be held responsible and the losses should be recovered from the company. But with the royalist camp coming to the defence of the Government, not even one motion was passed. If we look up the minutes of meetings at the time, we will find that at the meeting of the Finance Committee on 16 January ― members of the public besieged the old Legislative Council Building and many people were subsequently arrested ― we repeatedly stated that as planning and decisions were made in such a short span of time, problems would certainly arise, and I already pointed out then that the MTR Corporation Limited (MTRCL) is a private listed company. I also mentioned the name of Mr Abraham SHEK, but he is not in the Chamber today. I pointed out that under this arrangement, none of us could know the details of the contract. Nobody had read it. Concerning what arrangements were made for the entrustment and how the legal liability is to be shared between the Government LEGISLATIVE COUNCIL ─ 11 June 2014 14905 and the MTRCL after the entrustment, the Finance Committee simply knew nothing about all this.

As regards the legal liability arising from the relevant legal agreements, especially if the cost of works exceeded the budget due to financial problems of the project or in the event of arguments or disputes over the design of the works, who should be held responsible? The Finance Committee was completely kept in the dark when approving this funding, but I must say that it has nothing to do with the incumbent Secretary who is an exploiter who sponges off other people because I was directing my questions to Eva CHENG back then. At the meeting I formally asked the then Secretary to give a reply. If, in respect of the design … I asked her this at that time: With regard to the agreement on the construction of the XRL to be signed by the MTRCL, the compensation claims arising from it may involve professional mistakes, professional negligence or mistakes committed unilaterally by the MTRCL, will the Secretary please tell us clearly which party shall be held responsible for the financial commitments involved?

After putting a round of questions to the Secretary, the Secretary said in her reply that in the event of negligence or mistakes made in the circumstances mentioned by Members, the Government would definitely pursue the legal responsibility of the MTRCL. All she said was that the Government would pursue its responsibility but as we clearly know, and as Mr Abraham SHEK knows well too, it is often very difficult to prove negligence or professional mistake on the part of the MTRCL. I also asked specific and detailed questions at the meetings with respect to the design, especially modifications of plans, as the modifications of plans will increase the cost, particularly as they involve … These are very specific questions. President, let me read out from the minutes of the meeting: For cases involving problems with the underground strata, or cases involving problems with planning or cases involving problems with the roads, who should be held responsible? Is it clearly set out in the contract who should be held responsible? My questions were about the underground strata, and they were very specific questions because we all know that the WKCD is very complicated, but the Government just could not care less.

We also pointed out at the time that as the agreement is an entrustment agreement, the more modifications made by the Government or the more modifications made by the MTRCL to the works, the greater the expenditure will 14906 LEGISLATIVE COUNCIL ─ 11 June 2014 be, followed by higher entrustment fees and administration fees. In other words, disregarding by whom the mistake was committed, it will always be the taxpayers who are going to meet the expenditure whereas the MTRCL will be purely receiving money. This is like the MTRCL holding a banquet and the taxpayers footing the bill for it. However, with regard to the responsibility of footing the bill and the overall arrangements, Members were all kept in the dark when approving the provision back then. The funding application was approved under such circumstances. Should the royalist not commit harakiri? We did ask questions. It was not the case that we did not ask questions. I am not saying that I am cleverer. Some of those in this Chamber now or those who attended the meetings back then know engineering better than I do, and they know these issues in greater depth than I do. However, the problem is that in the Legislative Council, it has been the case over the years that many people, particularly those who are well versed in engineering, are involved in a cobweb of complicated interests. For some reasons, they will sit idly by even knowing that problems will arise because their companies are involved, or certain people are involved, or certain friends whom they know are involved, or even projects amounting to billions of dollar or tens of billion dollars are involved. This is the depravity of the entire system, resulting in misuse of public coffers, particularly in monitoring public works.

I recall most clearly that when the 10 core projects were carried out in the 1990s, the Government designed a way for technology transfer. A team of experienced overseas engineers were brought to Hong Kong at a cost of tens of million dollars. The Government said that these talents would impart knowledge in monitoring works projects to our civil servants who could continue to pass on such knowledge to the benefit of Hong Kong in the future. But in this XRL incident, such knowledge seems to have vanished into thin air. I do not see any spirit of monitoring or comprehensive requirements for monitoring of the 1990s. They only sat idly by, right? Eva CHENG has already left the Government. In comparison, I would say that she was a more accountable and responsible civil servant. I can tell Members that the incumbent Secretary who knows only to sponge off people is a lot worse. This Secretary is really ridiculous. He, after taking office as the Secretary, certainly must monitor works and major projects and follow them up to see what actions should be taken. He should follow up the information item by item. As he was new in the office back then, he should pay a lot of attention to his work. Could he not pay a lot of attention to this project costing $66.9 billion? This is the biggest standalone project in the history of Hong Kong and yet, he just sat idly by. He only said LEGISLATIVE COUNCIL ─ 11 June 2014 14907 that he had told his staff to make some enquiries, to follow up things a bit, and to make calls to get some updates. This is really ridiculous and a mess. He knows only to hanker after benefits.

We need only look up the minutes of meetings to know that some problems do need to be followed up and handled, but it was not until Apple Daily reported … I must highly commend the press and the media for using the fourth estate to exercise monitoring because even Members were kept in the dark. Sometimes when we put questions to the Government … for instance, I have recently asked questions about the compensation arrangements for the resumption of the Wah Kai Industrial Centre 14 years ago, but the Government refused to disclose any information. President, actually you should follow up these issues and I should have written to you about them. This is most ridiculous. The Government has all the information. I asked the Government how many companies were given $1 million in compensation and how many received $2 million in compensation. The Government has all the information and yet it refused to tell us, unwilling to give an answer. I asked questions on very specific information and formally put forward these questions in writing but the Government simply did not respond. Such being the case, how can we exercise monitoring? This matter is again under the charge of this Secretary who knows only to sponge off other people because the Wah Kai incident related to a railway project.

Reviewing the overall problems concerning the XRL back then, we can see that those problems are really … What did Eva CHENG say then? The Finance Committee eventually endorsed the provision and she said ― I had continuously and repeatedly put questions to her at the time ― that they had completed all the work, including site investigation and other detailed design work, and that they had put in place a stringent mechanism under which the MTRCL could not make revisions arbitrarily because a working group led by the Director of Highways would be responsible for overseeing the tendering of the works as well as some of the works projects. She said that they had in place a "stringent mechanism", but what happened eventually? It transpired that works had commenced before some underground strata were properly dealt with. Can this be regarded as stringent? Why should we set up a select committee? The purpose is to summon Eva CHENG to this Council, so that we can, on basis of the minutes of meetings, ask her how she could be so careless and whether she had misled the Finance Committee into endorsing the provision. We must pursue the 14908 LEGISLATIVE COUNCIL ─ 11 June 2014 responsibility, and we must pursue the political responsibility. The white paper on Hong Kong is very political too, but why does the royalist camp not say that it is political and then condemn this white paper? When we propose the setting up of a select committee to pursue the responsibility for this expenditure of $66.9 million and pursue the responsibility of government departments for their blunders, they nevertheless said that this is political. This is most ridiculous indeed. Burn the white paper on Hong Kong. We already burned the white paper at the Liaison Office of the Central People's Government in the Hong Kong Special Administrative Region this morning, because that white paper is meant to destroy Hong Kong.

Regarding this $66.9 million … when the concern about delay was raised, I immediately made an assessment and estimated that the total expenditure of the XRL would definitely exceed $100 billion in the future. President, why did I say so? Members will understand the reason if they just take a look at the gravity of the compensation claims made in some cases in the past. Let me provide Members with some figures. Despite stringent monitoring, the Airport project received 12 120 claims for compensation; the MTR project received 8 680 compensation claims; as for the MTR back then … as for the Airport Railway, the amount of compensation claims totalled $3.399 billion, whereas the Airport project involved compensation claims totalling $5.6 billion. Let me tell Members that the compensation claims in relation to the XRL may probably exceed $20 billion and the expenditure arising from other changes has yet to be factored into it. But the Government just sits idly by and so does the royalist camp. Mr Abraham SHEK may feel anxious privately but whenever he speaks in this Chamber, he will always come to the defence of the Government. He is really preaching one thing but doing quite another.

Therefore, President, I think the attitude of this Council in monitoring the Government ― let us not talk about the monitoring ability and just talk about the attitude (The buzzer sounded) ― should be condemned.

IR DR LO WAI-KWOK (in Cantonese): President, this debate mainly seeks to appoint a select committee and authorize it to exercise the powers conferred by the Legislative Council (Powers and Privileges) Ordinance (P&P Ordinance) to inquire into whether the MTR Corporation Limited (MTRCL) has covered up the LEGISLATIVE COUNCIL ─ 11 June 2014 14909 progress and causes of delay in the construction of the Hong Kong Section of the Guangzhou-Shenzhen-Hong Kong Express Rail Link (XRL).

President, many people have drawn an analogy between an imperial sword and the P&P Ordinance. An imperial sword symbolizes supreme powers. When an issue is considered by the majority of the people as involving significant public interest and warrants actions to dig into the circumstances surrounding it and if in-depth follow-up actions are impossible through the ordinary procedures, the deployment of this imperial sword to inquire into the matter would then be considered necessary and appropriate. Members of the Business and Professionals Alliance for Hong Kong (BPA) and I consider that this fundamental principle must be upheld in weighing the pros and cons and considering the propriety of deploying this imperial sword.

However, this imperial sword in the hands of some Members now seems to have been reduced gradually into something like a "panacea" that mountebanks claim to be able to cure all diseases. Whenever an incident is reported by the media, some Members who are unwilling to lag behind others will propose that the P&P Ordinance be invoked to conduct an inquiry. This is nothing new at all since the start of this term of the Legislative Council in 2012 and these are some examples: Seeking an inquiry into the discontinuation of sound broadcasting service by Digital Broadcasting Corporation Hong Kong Limited and related issues; seeking an inquiry into the unauthorized building works of the Chief Executive, Mr LEUNG Chun-ying, at his residence on the Peak and related issues; seeking order to require the relevant authorities to produce all relevant documents involved in the process of vetting and approval of domestic free television programme service licence applications; seeking an inquiry into the immediate termination of the contract of Ms LI Wei-ling, a radio host of Hong Kong Commercial Broadcasting Company Limited (Commercial Radio), and the alleged political interference by the Hong Kong Special Administrative Region Government with the editorial independence of Commercial Radio.

According to the Agenda of this meeting, we even have to deal with two motions moved under the P&P Ordinance. Apart from this motion, the other motion seeks to order the Secretary for Transport and Housing to produce the full report on his Bureau's investigation into staff conduct in the Marine Department in relation to the vessel collision incident near Lamma Island on 1 October 2012. 14910 LEGISLATIVE COUNCIL ─ 11 June 2014

In the examples that I have just cited, the incidents involved varied greatly in their nature, impacts on society and relevance to public interest and yet, Members harped on the same old tunes and proposed the deployment of the imperial sword all the same. I think this is unnecessary and inappropriate.

Insofar as this motion is concerned, at the meetings of the House Committee on 2 and 9 May, Members put up the relevant demands in relation to the same issues, and Members from various political parties and groupings stated their views and fully expressed their respective positions on these demands. At these two meetings of the House Committee, these demands were not supported by Members in the vote taken on them. Now they are again raised for debate at this meeting of the Legislative Council. I think neither Members supporting the proposals nor those opposing them are likely to come up with new, stronger arguments and at most, they will only be rehashing the same old arguments again and again.

President, I oppose this motion based on the actual developments of the matter. Following the MTRCL's appointment of an investigation committee comprising six independent non-executive directors, the Chief Executive also announced the appointment of an Independent Expert Panel (the Panel) to carry out an investigation. It is reported that the committee set up by the MTRCL aims to conduct a thorough review of how the XRL project has been managed and make an assessment of the causes of the delay and the impact on the cost and budget, while external consultants can be appointed to provide an objective, third party perspective. The Panel set up by the Government is chaired by Mr Justice HARTMANN and comprised of overseas engineering experts. The impartiality and professionalism of the Panel are already assured.

Having said that, I think the inclusion of one or two local experts with expertise in management of major engineering projects in Hong Kong to assist in the work of the Panel can make up for the Panel's lack of understanding of the situation of the local industries, and I think this is worthy of consideration by the Government. As for its terms of reference, the Panel will mainly review the project management, monitoring, and cost control mechanisms of the MTRCL on the implementation of the XRL project, review the monitoring mechanism adopted by the SAR Government, and make recommendations on measures of improving the above systems, processes and practices.

LEGISLATIVE COUNCIL ─ 11 June 2014 14911

From this we can see that the investigation committee of the MTRCL and the Panel set up by the Government have different scopes of investigation and different emphases and they can complement each other. Given that the committee and the Panel have just started their work, it is premature to make any assertion on whether or not they can find out the truth. Besides, the MTRCL has announced that a central data room will be set up for Members of the Legislative Council to access the new and old documents pertaining to the XRL project and this will help strengthen monitoring in the future. Against such a backdrop, if we further demand that the P&P Ordinance be invoked to launch an inquiry, not only would it be redundant but also a waste of time to this Council and the relevant parties. Moreover, from the relevant discussion in the past, it is not difficult to infer that some Members seemed to have focused their discussion on the accountability of government officials or the management of the MTRCL. This will easily cause the discussion to become personal rather than targeting the facts, thus neglecting the problem that truly needs to be addressed. I am afraid this will only cause a further delay to the XRL project.

President, the first and foremost concern of the public or perhaps the problem that really needs to be resolved is how the specific technical difficulties can be overcome in the future to ensure that the progress of works is on schedule, thereby minimizing the impact caused by the delay as far as possible and improving the system of monitoring.

As the representative of the Engineering Functional Constituency in the Legislative Council, I am deeply concerned about the delay in the construction works of the XRL project and so are members of the engineering sector. It is actually not uncommon for delay to appear in some parts of a large-scale project, and the delay of the XRL project involves a number of factors. For example, unforeseen ground conditions have caused delay in the construction works of the diaphragm wall; delay in the resumption of land at Choi Yuen Chuen; and the time taken to repair a tunnel boring machine damaged by floodwater during a black rainstorm. According to the MTRCL's assessment, the commissioning of the XRL may have to be postponed to the end of 2017, which means a delay of two years. Therefore, I think it is indeed necessary for the MTRCL to disclose more information on the causes of the delay, such as whether there was sufficient site investigation before commencement of the construction works, whether the complicated ground conditions have made it difficult for the project team to complete the relevant works as scheduled, and so on.

14912 LEGISLATIVE COUNCIL ─ 11 June 2014

President, the delay of the XRL project is a fait accompli, and it will take more than six months for the Panel to complete its report. Many substantive problems have yet been solved. There are certain technical difficulties in the underground works of the West Kowloon Terminus, and further delay in the repairs of the tunnel boring machine will make it impossible for the tunnel to be connected. This will also affect the progress of the track-laying works and the overall installation and testing of the railway control system. Can the MTRCL guarantee that the XRL will be commissioned in 2017 with no further delay? How can it catch up with the programme by all means while ensuring the quality of works and safety on construction sites? All these are pressing tasks on various fronts. After discussions, some members of the sector and I have come up with the following views and suggestions:

At the level of project management, how can the MTRCL make up for the progress delay? First, various mature technologies can be employed, such as tackling the rock strata by the drill-and-blast method at the West Kowloon Terminus Station North near Jordan Road; and second, improvement can be made to the work procedures at key sites so as to arrange for early access by contractors to commence the ensuing electrical engineering works. But when it comes to changing the details of work procedures, a small move will definitely change the overall situation, and it also depends on whether the contractors are co-operative and whether the manpower involved in various job types are well co-ordinated. Given a shortage of workers in civil and electrical engineering, it is difficult to predict the future situation.

At the level of budget control, the cost of the XRL project has increased from the original estimate of $65 billion to $68.4 billion according to current assessment, and as at the end of March this year, the balance of project contingencies earmarked for unforeseen situations in the course of construction was about $3.7 billion. The Government has informed the MTRCL that "the Corporation must strive to absorb all the costs pertaining to the project delay" and "it is very unlikely that the Government will be able to provide any additional funding for the project". But can the MTRCL effectively control the works expenditure in the future and will the contractors submit more claims for compensation due to progress delay or changes to the work procedures? In this connection, I propose that the MTRCL should expeditiously set up an co-ordination group to discuss with the contractors the arrangements for the remaining works in an effort to keep the works expenditure under control.

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The XRL aside, the MTRCL is currently undertaking four other railway projects. How can it improve the entire structure of monitoring to enhance the effectiveness and transparency of monitoring by society, thereby minimizing the chance of delay in the projects? In the event of delay, what should be done to deal with the problem appropriately and communicate with the public at the right time? We should work in two directions: First, the Government should appoint experienced engineering experts to the Board of the MTRCL to help monitor various works projects and their progress; and second, the Government should conduct studies with the MTRCL on a new mechanism for co-ordination, communication and monitoring. The SAR Government being the largest shareholder of the MTRCL should consider appointing more government representatives to the Board. Moreover, while the Board of the MTRCL currently includes government representatives including the Secretary for Transport and Housing and the Secretary for Financial Services and the Treasury, from the angle of improving the effectiveness of corporate governance, consideration should be given to appointing to the Board accountable officials specifically responsible for the practical works in the relevant areas. Meanwhile, the Government should enhance the monitoring role of the Highways Department as well as the technical support provided to it and improve the reporting mechanism. To this end, the SAR Government should also ensure that the relevant departments are provided with sufficient professional grade staff and resources to complement such work.

If the XRL project is delayed over and over again, society would inevitably have to pay a price. It is certainly our obligation to find out the truth of the delay in order to learn a lesson. But the most pressing task now is to make every effort to catch up with the programme while stepping up monitoring to enable the XRL project to complete as soon as possible. Only this is in line with the common interest of the MTRCL, the SAR Government and the general public.

President, colleagues from the BPA and I do not support invoking the P&P Ordinance rashly at this stage to inquire into the incident, for this is unnecessary and inappropriate and will not help resolve the various pressing problems.

With these remarks, President, I oppose Mr Gary FAN's original motion and Ms Claudia MO's amendment.

14914 LEGISLATIVE COUNCIL ─ 11 June 2014

DR KWOK KA-KI (in Cantonese): President, first of all, I thank Mr Gary FAN for proposing this motion debate on the Legislative Council (Powers and Privileges) Ordinance (P&P Ordinance) in this Council.

We all know that the XRL is a tragedy. The first reason for it being a tragedy is that the Government forced through the implementation of this project back in those years. Prof Anthony CHEUNG's predecessor, Eva CHENG, had exhausted all possible means in this Council to force the Legislative Council to accept this project which was not supported by the people. We can easily understand that this is, in fact, a political project. We all know that since the initial planning of the XRL, several points about the XRL have remained unconvincing to the public. First, this so-called express rail link is actually not quite an express rail link after passing the boundary control point, for it has to slow down and enter the urban areas at a speed lower than that expected of an express rail link. Second, as we review its so-called cost-effectiveness now, I would say that we have a new feeling about it now.

We all know that since its implementation the Individual Visit Scheme (IVS) has not only shaken the Hong Kong society but also bred increasingly more grievances towards the policies of the Central Authorities and the SAR Government. According to the Government's latest estimate, in the next decade to two the numbers of visitors under the IVS and tourists will add up to 100 million, which are far beyond the receiving capacity of Hong Kong. In fact, the decision made to develop the XRL back then was precisely meant to move forward in this direction. Now that when the XRL has yet been completed, this very small city of Hong Kong has already found the situation unbearable and members of the community are under enormous pressure whether in respect of the people's livelihood, general shopping or daily living, not to mention the impact to be caused on us after the commissioning of the XRL. Public resentment and opposition against the Central Authorities will only grow in the SAR.

We still recall that when Eva CHENG was here to scare Members of the Legislative Council, she said that we could not afford even a day of delay, for a day of delay would incur a financial loss amounting to millions of dollars. But as the Government squandered very generously right from the outset and when the Government is incapable of remedying the situation now, not even one word is mentioned about the impact pertaining to the financial loss. The Government LEGISLATIVE COUNCIL ─ 11 June 2014 14915 has moved the goalposts itself and it is totally negating what it said openly before. How despicable it is.

Some people said that we should not conduct an inquiry. I would like to analyse this issue from several angles. First, is there something wrong? The delay of the XRL project is certainly nothing new. In May last year there were already reports revealing the situation. It means that more than a year ago there were reports alleging that the commissioning of the XRL would be delayed by at least a year to 2016. At a number of meetings of the Legislative Council, including meetings of the Subcommittee on Matters Relating to Railways, government representatives had time and again misled Members of the Legislative Council and the public by saying that there was no delay. Let me cite some of those regrettable remarks of "hypocritical rhetoric". They said that 2015 is not the date of commissioning but the date of the completion of works, and that the main works of the Hong Kong Section of the XRL could be completed in 2015 with the West Kowloon Terminus ready for service with elementary reception facilities and the capacity to receive passengers. In retrospect, we all had the good intention of believing that government officials and the Under Secretary did not tell lies. But now it seems that those remarks were riddled with devils between the lines. He told you that the main works could be completed in 2015, falling short of stating that the railway could be commissioned. He then said that elementary reception facilities would be ready for service, and this is awesome indeed. How dare he say such a thing and think that everything would be fine.

If we tolerate this attitude of the Government today, it will be pointless to discuss anything with the Government in the future because we would not know which of their remarks is true and which is false. Do we have to always bring in a linguist to interpret to us all the wordings used by the Government and tell us that this is not what the Government means because it does not say that the railway will be commissioned and that the Government is actually cheating us? What is most incredible is all the fools here who oppose an inquiry, while there are people dismissing the need for an inquiry and asking why there should be an inquiry. They said that the Government already has two committees ― actually they are not really two committees ― one is the committee chaired by Frederick MA who is a non-executive director of the MTRCL, and there is also the Government's expert panel and so, this should be more than enough. In fact, this is exactly what we have referred to as "investigation of insiders by insiders".

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With regard to the MTRCL in the entire incident and if we believe in the words of the Secretary, the MTRCL has all along been covering up the facts. It has covered up the facts from the Government, but I do not know if it has covered up the facts from the Chief Executive because the Chief Executive has acted quite strangely in that he seems to have known what happened before everyone else does. I would like to hear what Secretary Prof Anthony CHEUNG is going to say later, because even before he admitted the relevant developments, LEUNG Chun-ying had already said at a meeting with Jieyang municipal party secretary, CHEN Luping, that the commissioning of the Hong Kong Section of the XRL in 2016 could shorten the travelling time between Hong Kong and Guangdong. President, this is indeed a "Rashomon affair"

So it transpires that Chief Executive LEUNG Chun-ying knows the most about what happened. First, he is smarter than everyone else (including Anthony CHEUNG), for he actually knows everything. Second, he has a crystal ball, and we now realize that he already knew the developments before they were made public, which means that he knew them even before you did. Why can the Government work in such a way and still think that there is nothing wrong about it? To all Members of the Legislative Council and the public, what does this mean? This is an insult. It means that they do not bother to tell us anything and it is enough only to let their own people know. With regard to this $66.9 billion-worth project, white elephant project and political window-dressing project, each and every cent of it is paid by taxpayers in Hong Kong.

At a rough estimate, it almost means that each of the 7 million people in Hong Kong has to pay $10,000 for it. With regard to these practices, if we do not take a more stringent attitude today and let the Government muddle through, we think that we are doing a disservice to the public.

I absolutely do not mean disrespect to Mr Justice HARTMANN. But as we all know, Mr Justice HARTMANN is not in a position to determine the persons to be investigated and the scope of investigation as well as what should be produced by the Government. We all know that a Judge certainly has a professional status in hearing a case but this is not a court here. From the constitutional point of view, if he should be given certain powers to summon all witnesses, including senior officials or the Secretary and even LEUNG Chun-ying, to give evidence, this precisely bears relevance to what is under discussion at this meeting of the Legislative Council and that is, this must be dealt LEGISLATIVE COUNCIL ─ 11 June 2014 14917 with through the P&P Ordinance. He will not be able to do this; nor can he do it through other channels, and at most he can only ask a few experts to come to do some trivial things of little relevance. Even if they will give a response, this may not necessarily be attributed to him because this is not his duty, and I do not wish to belittle him here.

Before the appointment of Mr Justice HARTMANN, the Government's arrangements were indeed so astonishing that they really us made us speechless. In just one day, the Government announced the appointment of LEE Chack-fan who has connections with the XRL project but a few hours later, he said that he did not accept the appointment and had rejected the offer. How possibly can any government act in such a way? This is confusing and frivolous and then it even said that there would not be any problem. If we Members of the Legislative Council still turn a blind eye to this and continue to sit back at ease here, that would downright be a waste of taxpayers' money. Some people said that an inquiry will impede the works progress. These people just do not have the slightest bit of common sense. If anyone should hold this view, which means that we cannot dig into what happened because works are in progress, there would not be a need for accountability. Is it not that all officials or members of the public have to work every day? How can we say that they are, in fact, very busy and so, they should be given time to make some slight amends and then the problem is considered settled? How can we say that they have to perform their duties every day and so, they will not have the time to come to the Legislative Council to give an explanation and they do not even have the chance to speak the truth? When we lecture our child, we first talk to him and ask him why he lied or hit other people, but the child tells his father that he is doing homework right now and tells his father not to bother him. Then the child keeps saying every day that he is doing homework and his father cannot lecture him because he would otherwise be disturbing his child while the latter is doing homework.

If we apply this logic to the present case, Secretary Prof Anthony CHEUNG actually should not attend this meeting because he has a lot of work to do and we should not hold him up. The Legislative Council does not have to hold meetings anymore because this would be, to quote the view of the royalist camp, a waste of time. Why should there be accountability then? It would be downright unnecessary to convene meetings of the Public Accounts Committee ― its Chairman is in the Chamber now ― and the many officials could question him why they should be summoned when their departments are ploughing 14918 LEGISLATIVE COUNCIL ─ 11 June 2014 through mountains of work and since they have just been taken to task by the Director of Audit's report, they must go back and carry out work immediately and so, they should not be held up and they absolutely would not attend the hearings. What kind of attitude is that? Anyone who wishes to tell the truth can finish it in one day, but it takes a far longer time to tell lies because for every lie told, he has to tell another one to cover it and so, he will not finish even after speaking for three years. I do not know how many days it will take to speak the truth and to bring the whole story to light, but I believe it is not going to take too long. What we demand to know is the truth and why they have done this.

Following the XRL project, there will be the West Kowloon Cultural District, Shatin to Central Link, South Island Line, West Island Line and the Airport, costing more than $1,000 billion in total. If anyone takes this attitude and if we continue to shield it, Hong Kong would be doomed. Everyone will say that he does not need to be accountable and must not be bothered and even though he has worked inefficiently and lied, we still cannot question him because he is racing against the clock at work. This is absolutely wrong. What kind of attitude is that? The P&P Ordinance does not teach people to lie. It only hopes that everyone will speak the truth, such that we can draw on the experience and learn a lesson in order that we will not repeat the same mistake in future projects. It is precisely because the Secretary did not treat the matter seriously and did not act impartially that the MTRCL was condoned in acting so boldly as in first cheating the Secretary and then cheating everyone else. The Government holds 77% of the shares of the MTRCL and the Corporation is in one way or another more than a public body. Of course, some members of the public have invested in the MTRCL but the Government holds 77% of its shares, and though seeing that the management of the MTRCL is so undesirable and that members of its senior management who are paid over $10 million annually have performed so badly in the Legislative Council, we are still tolerating it in silence and saying that no inquiry should be conducted. After pocketing their salaries and a "break-up" fee, these people will just shrug and leave and after a while, the contractors will submit claims amounting to $1,000 million or $800 million, and the money will all come from the taxpayers. I do not know how the interest of taxpayers can be protected. Then they would ask us not to probe into it for this would lead to problems because once an inquiry is launched, the project would definitely be held up and when the truth is revealed after investigation, things would go from bad to worse. Surely things would go from bad to worse because they have a lot of things to hide and cover up. Everyone knows that a committee which is wholeheartedly committed to finding the truth will not stop LEGISLATIVE COUNCIL ─ 11 June 2014 14919 the truth from being brought to light, and this will only make society, the Government and public bodies (including the MTRCL) act fairly and impartially in the future.

Some people think that the Legislative Council should not exercise its powers and draw the imperial sword every day. But this is the reason why the Legislative Council is formed. One who does not have this faith should not have run in the election of the Legislative Council. Not only have they shirked their responsibilities. They have even, in an air of righteousness, criticized other people who have discharged their responsibilities. What logic is that? Shame on these people. If the Government has acted properly, why should we need to set up a committee to summon the relevant persons in order to probe into the incident of free television service? Why should we need to set up a committee to inquire into whether or not the Chief Executive has told lies? If what the Chief Executive has said is all true, why should we invoke the P&P Ordinance to summon him?

With these remarks, I support the original motion and the amendment. Thank you, President.

PRESIDENT (in Cantonese): Does any other Member wish to speak?

MR ABRAHAM SHEK (in Cantonese): President, I declare that I am a non-executive director of the MTR Corporation Limited (MTRCL). I speak today not to criticize, support or oppose the demand made in this motion moved under the Legislative Council (Powers and Privileges) Ordinance, that is, the motion proposed by Mr FAN. I only wish to clarify some facts that many Members do not understand, facts they have distorted.

First of all, President, I wish to say that the MTRCL has set up an independent committee comprised of non-executive directors to discharge the obligation of a listed company because the MTRCL is a listed company. The Government holds 77% of the shares of the Corporation and as Dr KWOK Ka-ki has just said, the Government is the majority shareholder. This Government is a stakeholder. It has a relationship with the MTRCL, which means that it also has a relationship with the Guangzhou-Shenzhen-Hong Kong Express Rail Link. But the Government aside, some 20% of the Corporation's shares are held by 14920 LEGISLATIVE COUNCIL ─ 11 June 2014 small shareholders. Non-executive directors … Strangely enough, Mr TIEN, who is also a member of the Board of a listed company, does not understand … He did not say … He said earlier that he did not believe that a listed company could conduct the investigation by itself. However, the non-executive directors of this listed company has the fiduciary duty ― President, is it translated as "信 託的責任" in Chinese? ― which means that they are required to defend and protect the investment of the small shareholders.

Given that the MTRCL must be responsible to its small shareholders, the Corporation has to appoint non-executive directors to carry out an investigation. This is not a coterie for socializing or for us to shield one another in private. These non-executive directors will consider the incident from the angle of good governance and ascertain whether the acts of this listed company are correct or not correct. The three-member expert panel set up to investigate the whole incident of the delay aims to examine how the problem should be tackled, how it should be resolved and how the facts should be provided. We will look at it from the angle of the governance of a listed company in order to find out whether or not our employees' practices are correct and whether they have covered up the facts, and these are unlikely to be found out in an investigation carried out by outsiders. It is not true that we will conceive the shareholders because we are non-executive directors ourselves. President, it is against the law to do so.

Therefore, I found it very strange because many Members have taken part in the enactment of the Companies Ordinance which has clearly provided for this obligation. Therefore, the MTRCL is required to discharge this obligation and set up an investigation committee comprising non-executive directors under the Chairmanship of Frederick MA. We will submit a report in July and Members can read it then and see whether an investigation of insiders by insiders will mean that the facts are not revealed; whether an investigation of insiders by insiders will mean that the problems will not be highlighted; and whether an investigation of insiders by insiders will mean that we will not give an account to the Corporation and to the small shareholders. It is not true that everything must be investigated by the Legislative Council in order for justice to be done. We believe that justice is in the hearts of the people. We will speak the facts, and we hope that Members can open their eyes wide to read our report.

Thank you, President.

LEGISLATIVE COUNCIL ─ 11 June 2014 14921

PRESIDENT (in Cantonese): Does any other Member wish to speak?

(No Member indicated a wish to speak)

PRESIDENT (in Cantonese): Mr Gary FAN, you may now speak on Ms Claudia MO's amendment.

MR GARY FAN (in Cantonese): President, first of all, I would like to thank Ms Claudia MO for proposing the amendment, which enables the legislature to discuss the delay of the XRL this time around from a broader perspective. The major difference between Ms Claudia MO's amendment and my original motion is her concern about whether there are inadequacies in the site investigation work at the West Kowloon Terminus Station on the part of the MTRCL, and whether the Government will apply to the Legislative Council for supplementary provision for the XRL project.

I fully agree that it is necessary for the Legislative Council to investigate whether the site investigation work conducted by the MTRCL at the West Kowloon Terminus Station at the beginning differs from the established site investigation approach adopted in general public works. As early as 8 July 2008, the Finance Committee of the Legislative Council approved the provision of about $2.8 billion for the design and site investigation work of the XRL project. Back then, the Transport and Housing Bureau commissioned the MTRCL direct to be responsible for the design and site investigation work without conducting an open tender. The Bureau explained that in view of the need for the early connection of the Hong Kong Section of the XRL and the Mainland section, that is, to be completed by 2015, the Bureau had directly commissioned the MTRCL to undertake the work, for an open tender would delay the XRL project for at least two years. When the people of Hong Kong look at the remarks made by the Government back then, they will find it particularly ridiculous and ludicrous today.

Back then, the Government acted hastily to try to catch up with the "four vertical and four horizontal" network of the "fake, grandiose and worthless" XRL project. It even considered the open tender procedure for site investigation works a waste of time, and had thus rashly requested the MTRCL to commence 14922 LEGISLATIVE COUNCIL ─ 11 June 2014 the site investigation work. At that time, the site for the West Kowloon Terminus Station was still a golf driving range. In fact, the geological structure of West Kowloon was complicated, whereas Jordan was a densely populated developed community. Hence, it was necessary to spend sufficient time on a comprehensive site investigation. For instance, drilling and soil investigation should be carried out after the Government had resumed the driving range site. But since the Government was eager to commence the construction works, it had neither heeded the views expressed by Hong Kong society on the alignment of the XRL, nor allowed adequate and reasonable time for the MTRCL to conduct the site investigation properly. In actuality, no site investigation was carried out on the site of the driving range.

President, as early as 2010, when the Finance Committee of the Legislative Council endorsed the funding application for the XRL construction works, academics and experts had come forward to point out that the geological condition of the West Kowloon Terminus Station site was complicated. They said if the authorities insisted on building the XRL terminus there, the construction cost would be increased significantly, and they put forth a proposal of siting the terminus at Kam Sheung Road which would reduce construction cost by up to $30 billion. However, the Government insisted on having its own way back then. The then incumbent Secretary for Transport and Housing, Eva CHENG, put forth the reasons that "one-day wait would incur a loss of $5 million" and an additional day of waiting would cause an increase in economic cost. She used the excuse that Hong Kong would have to pay an additional $5 million to press the Legislative Council at the time into endorsing the funding application hastily. The MTRCL played the role of a project monitoring agent in the project. With the professional knowledge and ample experience of its engineering department, the MTRCL should know full well that if there were inadequacies or mistakes in site investigation works, the MTRCL might need to modify the design of the XRL according to the geological condition. However, the MTRCL did not request a suspension of the construction works or revision of the construction schedule for conducting the comprehensive site investigation. It on the contrary followed the decision of the Government blindly and refused to tell the truth based on its professional knowledge. As a result, the proposal on the West Kowloon Terminus Station was implemented rashly. The higher echelon of the MTRCL led by Chairman Raymond CHIEN should also be held accountable for the incident.

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The delay at the works of West Kowloon Terminus Station North under Contract 810A is the most serious in the XRL project as a whole. As to the cause of the delay, whether the granite bedding under the Terminus Station North is a known cause, the MTRCL's remarks were self-contradictory. On 5 May this year, when the MTRCL explained the delay in the XRL project for the first time at the meeting of the Subcommittee on Matters Relating to Railways, it pointed out in the paper that the delay in the West Kowloon Terminus Station was due to unforeseen geological conditions, one of which was the need to remove the fresh bedrock of 78 000 cu m discovered at the B4 level. However, the media later disclosed a number of internal documents of the MTRCL, including the geological memoir prepared by the Kowloon-Canton Railway Corporation in the construction of the Austin Station of the West Railway in 1997 and a table prepared by the MTRCL in 2010. Both papers provided a detailed and comprehensive analysis showing the distribution and depth of the bedrocks. In view of this, the MTRCL changed its stance and admitted at the meeting of the Legislative Council on 19 May that the 78 000 cu m of bedrock was "a known factor". This prompts queries that the claim of "unforeseen geological condition" made by the MTRCL all along has been an attempt to cover up its problems in site investigation works, hiding its blunder in professional judgment under the veil to deceive the public and cover up the case. Hence, an investigation is warranted to find out whether or not the MTRCL had fulfilled certain tasks in 2010 and whether or not the Government had covered up certain issues to cause the Legislative Council at the time to hastily pass the West Kowloon Terminus Station proposal.

President, the West Kowloon Terminus Station proposal in 2010 has not only wrecked the credibility of the Government but also caused Hong Kong society to pay an enormous cost. Due to the Government's insistence on implementing the West Kowloon Terminus Station proposal, the homes and villages of villagers in Choi Yuen Tsuen were destroyed. To date, though villagers have already moved into the new Choi Yuen Tsuen at Pat Heung, the permanent housing for villagers have yet to be completed. During the past two years or so, villagers were forced to live in temporary housing built of tin sheets. It is necessary for the Legislative Council to invoke the Legislative Council (Powers and Privileges) Ordinance (P&P Ordinance) to investigate whether or not the Government and the MTRCL have covered up the geological problems at the West Kowloon Terminus Station, so as to provide a reasonable explanation to all the people of Hong Kong, villagers of Choi Yuen Tsuen in particular.

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President, apart from the site investigation issue, the West Kowloon Terminus Station project also prompts the significant concern of co-location of immigration and customs clearance. At the initial stage of the design of the West Kowloon Terminus Station, it was intended that space would be reserved for Mainland law-enforcement officers to carry out the co-located immigration and customs procedures. In 2010, the Legislative Council had a fierce dispute over the concern of whether it was in compliance with the Basic Law for Mainland officers to enforce law within Hong Kong. However, in recent years, the SAR Government has not announced its discussion with the Mainland on the progress on co-location of immigration and customs clearance. During the examination of the budget, I have asked the Government to provide the progress of the co-location arrangement a number of times, but the Government only said that it would announce the arrangement in due course. The Government has not answered my question indeed.

Last month, the media disclosed that in the design of the West Kowloon Terminus Station in 2012 drafted by the design consultant of the XRL terminus, only immigration facilities for the Hong Kong side were included at the arrival hall on the B2 level and the departure hall on the B3 level for commencement in 2015. President, in other words, upon the commencement of service of the XRL, immigration and customs procedures can only be carried out in two separate places. It was also reported that the Highways Department has instructed the MTRCL to reserve 21 000 sq m for the stationing of Mainland authorities in future. Since the Government has failed to confirm the implementation of the co-location arrangement so far, will the design of the West Kowloon Terminus Station need to be modified because of this, which will impede the works progress, and when will the co-location arrangement be implemented? We have got no answers to these questions, so we must conduct an investigation.

President, apart from issues concerning the West Kowloon Terminus Station, Ms Claudia MO's amendment has mentioned the application for supplementary provision for the XRL project submitted by the Government. Though the Government has claimed in a high profile that it is "extremely unlikely" that it will provide additional funds for the XRL project, and even if the cost overrun will eventually be borne by the MTRCL solely, the SAR Government being the major shareholder of the MTRCL will have to share the loss of the MTRCL ultimately. After all, "the wool comes off the sheep's back", and the Legislative Council can hardly examine the amount incurred in cost overrun.

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President, on the other hand, the MTRCL refutes that according to the Entrustment Agreement, the Government must undertake all the expenses resulting from delays in works. As such, the public and the Legislative Council are concerned about whether unequivocal terms have been laid down in the Entrustment Agreement stating which party should undertake the expenses resulting from delay; and since the MTRCL has made a number of professional failures and site investigation mistakes, and has failed to take proper flood precautions, thus causing the boring machine in the tunnel damaged by flooding, whether terms and conditions concerning professional failures have been laid down in the Entrustment Agreement to enable the Government to pursue accountability? In 2010, the Government refused to carry out consultation and an open tender but adopted the direct commissioning approach to make the MTRCL the project manager so that the MTRCL could safely pocket the $4.6 billion project management fees as its income. An account of the terms and conditions of the Entrustment Agreement entered into between the Government and the MTRCL should be provided to the public. Otherwise, once the MTRCL and the Government have to bring the case of the XRL delay to court to attribute responsibility, it will develop into a farce with the Government suing the Government. The colossal litigation fees and compensation will be borne by Hong Kong taxpayers.

President, the blunders and mistakes made by the Government and the MTRCL in the XRL project, as well as the doubts aroused in this course, are too numerous to recount. The Legislative Council is obliged to determine whether the Government had concealed information from and deceived the Legislative Council back then to cause the Legislative Council at the time to rashly approve the funding application for the XRL construction works. The invoking of the P&P Ordinance to set up a select committee to investigate the case from various dubious aspects will be the most effective approach to press the Government and the MTRCL to submit the relevant information and explain the truth. I think Ms Claudia MO's amendment is not contradictory to my original motion, and it has indeed enriched the discussion level, enabling the legislature and the public to examine more perspectives of investigation concerning the XRL project. Hence, I support the amendment proposed by Ms Claudia MO in requiring the select committee to also investigate whether there are failures on the part of the MTRCL in the site investigation work at the West Kowloon Terminus Station.

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President, once again, I implore colleagues of the Legislative Council to fulfil our responsibility of being accountable to Hong Kong people and to fulfil our responsibility of proper discharge of our duty, which is to monitor the Government. There are inadequacies on the part of the Government in monitoring the MTRCL in implementing the XRL project. Today offers a significant opportunity for us to fulfil our obligation. It is not our obligation to protect the Government and the MTRCL and to allow them to cover their eyes after they have made mistakes. I believe some Members from the pro-establishment camp and the royalist camp may have a guilty conscience, for they are one of those who endorsed the controversial funding application for the XRL project. Now when things have gone wrong, what should we do? The best approach is to right the wrong. We have to conduct a thorough investigation to find out the truth through the P&P Ordinance, and it is necessary to reform the system in future in order to avoid the recurrence of mistakes.

President, I so submit.

SECRETARY FOR TRANSPORT AND HOUSING (in Cantonese): President, 20 Members have spoken earlier on the motion proposed by Mr Gary FAN. Regarding the views expressed, I touched on some of them in my opening speech earlier, so I will not repeat them here. I will only respond to several points in consolidation.

Regarding the delay in the Hong Kong Section of the Guangzhou-Shenzhen-Hong Kong Express Rail Link (XRL), I am not at all surprised that it has developed into a major storm. I will not comment whether the XRL is a cardinal sin. Yet it is true that the planning of and provision for the XRL had aroused considerable controversies in society and the Legislative Council back then. I know this point clearly. Hence, since I assumed office as the Secretary for Transport and Housing in July 2012, I always understand that I must be extremely cautious in handling issues relating to the XRL.

We have all along kept watch on the progress of the XRL. We know that there are delays in works under individual contracts, and thus the Highways Department (HyD) has urged the MTRCL to take mitigation measures to catch up with the works progress. Progress in certain works has caught up with the schedule and the length of delay has been shortened.

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Earlier on, some Members queried whether the Government had been too soft-hearted in its communication with the MTRCL, and Mrs Regina IP suspected that I had not been fierce enough. Mrs Regina IP, this is not the first time I heard others say I am not fierce enough. Some people have told me to act more fiercely. I think I will reflect on this. However, the crux of the matter is not about whether we have been soft-hearted, but that during the course of discussion with the MTRCL, we kept adhering to the target that the works project as a whole would not be delayed ultimately. Just now, I heard many Members, including certain Members criticizing the XRL project, point out that they do not wish to see any delay. Rightly out of this consideration, we had adopted the so-called attitude of giving the MTRCL the benefit of doubt. This attitude of "giving it the benefit of doubt" is not being soft-hearted. For when we reviewed the progress of the works, and referred to the information provided by the MTRCL at the time and certain professional judgments made by the HyD, we considered that we should give the MTRCL more chances. Of course, in retrospect, we might have been over-confident in the MTRCL in its work in this aspect.

All Members who have spoken consider it necessary to conduct an investigation. Some consider that the Legislative Council should invoke the Legislative Council (Powers and Privileges) Ordinance (P&P Ordinance) to set up a select committee to inquire into the incident, while some agree that the Independent Expert Panel (the Panel) set up by the Government will be capable of conducting a comprehensive investigation. Though the Panel does not have any statutory power to summon witnesses, its credibility is unquestionable. Mr Justice HARTMANN is the Chairman of the Panel. It is obvious to all that Justice HARTMANN always acts impartially. He definitely will not be biased in favour of the Government and he will surely dig out the truth of the incident. As for the other two members on the Panel, they are experienced overseas engineering experts who have made outstanding achievements in their respective professional fields. At the same time, the Government will certainly offer full support to the work of the Panel. A few days ago, I wrote reply to Justice HARTMANN to express that the Transport and Housing Bureau and I, as well as colleagues of the HyD, will do our level best to co-operate. I have said in open that I will certainly support the work of the Panel. The scope of examination of the Panel is not restricted to the MTRCL but also covers the Transport and Housing Bureau and the HyD. As for the Board of the MTRCL, as Mr Abraham SHEK said earlier, the MTRCL as a listed company is obliged to effect good governance and it needs to review and investigate this important issue concerning 14928 LEGISLATIVE COUNCIL ─ 11 June 2014 its company. They have undertaken to fully co-operate with the Panel of the Government.

Hence, Members may rest assured that the Panel can surely conduct a comprehensive examination on the management and monitoring systems of the XRL project and other relevant factors. As I said at the Subcommittee on Matters Relating to Railways, if any human factors are identified to be involved in the incident, liability will be pursued separately.

Moreover, a number of Members have mentioned the management of the MTRCL and expressed their worries about the MTRCL growing into "the only dominant railway". Some Members doubt that the MTRCL has not focused on its primary business but has excessively expanded its overseas businesses and other businesses instead. All these issues involve the structure of the MTRCL at a relatively deeper level. The MTRCL is not only a listed company. In the past, Hong Kong people were proud of the efficiency of the MTR system. Today, in the international arena, the MTRCL, including our railway system, still enjoys a great reputation. The MTRCL is an internationally recognized Hong Kong brand. However, in view of the incident involving the delay in the XRL this time around and certain incidents recently, certain Members said earlier that they felt ashamed of it. I hope the situation is not that bad. However, it is true that there is a voice in society asking about the way forward of the MTRCL in future.

The Government appreciates the public concern about the management of the MTRCL and it will make proactive efforts to fulfil its responsibility as the major shareholder of the MTRCL. We will urge the MTRCL to seriously examine its management structure and operation and to introduce necessary reforms. At the same time, we will improve and reinforce the monitoring mechanism of the Government. As I mentioned earlier, the Government has a series of measures to strengthen the Board of the MTRCL, including the nomination of additional directors. Since the MTRCL is a listed company, we must act in accordance with the company law and listing rules in introducing any measure. Nonetheless, the MTRCL is also a corporation with the public objective of operating railway networks in the territory, so it must fulfil certain social responsibilities and should not be put on a par with listed companies in general. The Government will definitely address squarely the balanced position it should attain.

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Some Members are concerned about the other four railways under construction. As I said in my opening speech, the Government and the MTRCL will give a full account on the progress of the West Island Line, the South Island Line and the Kwun Tong Extension at the meeting of the Subcommittee on Matters Relating to Railways to be held on 17 June, whereas the progress of the Shatin to Central Link will be reported at the Subcommittee's meeting on 4 July. After that, I have decided to submit to the Subcommittee a quarterly report on various new railway projects, hoping to give Members timely information on the progress of various major works and the challenges faced at an earlier time, enabling Members to exercise their monitoring power.

Moreover, upon the completion of the comprehensive examination and the issue of the relevant report by the Panel, the Government will, based on the Panel's recommendations, make further improvement to the Government's mechanism, in particular that of the HyD, in monitoring railway works and operation.

At the same time, we are concerned about new railway developments in the future. Members should know that the Government has just completed the review on Railway Development Strategy, and we should announce the railway development blueprint for the future, that is, after 2020, at a later time this year. Given the XRL project delay this time around and the concerns expressed by the legislature and society regarding the challenges faced by the MTRCL in implementing new railway projects, we must pay particular attention to railway developments in future, be it concerning the construction schedule or the scale and other aspects. We will certainly learn from the experience of this incident to make better preparations in planning our railway development in future.

President, the delay of the Hong Kong Section of the XRL is really an incident of enormous import. The Government will definitely learn the lesson from the experience of this incident to remedy the inadequacies in our monitoring effort. A number of Members mentioned that they want to know the truth of the incident through the investigation, and the Government hopes that the report to be submitted by the Panel will give us more enlightenment.

In gist, what is the truth of the delay of the XRL this time around? There are two points. First, it is a fact that the record of achievements of the MTRCL is relatively good. Will this cause the MTRCL to be over-confident? Or 14930 LEGISLATIVE COUNCIL ─ 11 June 2014 should this be attributed to the monitoring on the part of the Government? As I said in my opening speech, back then, the consultancy recommended the Government to adopt the "check the checker" approach in monitoring the project, and in retrospect, is this approach adequate? However, the successive incidents involving the MTRCL that occurred recently have prompted society to ask whether the MTRCL has been over-indulged in reminiscing its overall railway performance, outstanding achievements in the international arena or the golden era in the past. Hence, I think it is necessary for the MTRCL and the Government to do some serious soul-searching in this aspect.

Second, it is about whether the Government, including the HyD, had been over-confident in the works management system of the MTRCL and giving the "benefit of the doubt" to the MTRCL to an excessive extent, though Members consider the phrase "giving it the benefit of doubt" is not a desirable description. On the part of the Government, it is really necessary to conduct a comprehensive review and make improvement. Having said that, I think it is not necessary to invoke the P&P Ordinance to conduct an investigation to find out all these, for we indeed know that it is the problem.

Despite the absence of the statutory power to summon witnesses, and that we and officials are not required to speak under oath in the Chamber today to express that every word we say are true, I can tell Members that my colleagues and I in this Chamber and legislature have been very cautious with every remark we made, and we will not deliberately mislead Members.

Thank you.

PRESIDENT (in Cantonese): I now put the question to you and that is: That the amendment, moved by Ms Claudia MO to Mr Gary FAN's motion, be passed. Will those in favour please raise their hands?

(Members raised their hands)

PRESIDENT (in Cantonese): Those against please raise their hands.

(Members raised their hands)

LEGISLATIVE COUNCIL ─ 11 June 2014 14931

Mr Gary FAN rose to claim a division.

PRESIDENT (in Cantonese): Mr Gary FAN rose to claim a division. The division bell will ring for five minutes.

(When the summoning bell was ringing, Ms Starry LEE stood up)

PRESIDENT (in Cantonese): Ms LEE, what is your point?

MS STARRY LEE (in Cantonese): The accounting firm for which I am working is the auditor of the MTRCL. But I have not participated in the relevant work.

PRESIDENT (in Cantonese): Council is voting on Ms Claudio MO's amendment. A Member shall withdraw if he has a direct pecuniary interest in this question. I wish to emphasize that Members have to consider whether they have a direct pecuniary interest.

(Mr Abraham SHEK stood up)

PRESIDENT (in Cantonese): Mr Abraham SHEK, what is your point?

MR ABRAHAM SHEK (in Cantonese): President, when you mentioned withdrawal from the meeting, do you mean that the Member concerned has to leave the Chamber or he can stay in the Chamber?

PRESIDENT (in Cantonese): Withdrawal means that the Member concerned has to leave the Chamber and cannot vote on the question. However, Mr Abraham SHEK, if you are a non-executive director of the MTRCL, you do not have a pecuniary interest in the question.

14932 LEGISLATIVE COUNCIL ─ 11 June 2014

MR MICHAEL TIEN (in Cantonese): In the case of the holding of shares of the MTRCL, what is the number of shares to constitute a direct pecuniary interest? Is this not specified?

PRESIDENT (in Cantonese): The vote is being taken on Ms Claudia MO's amendment. In her amendment, she has proposed to add "whether the MTR Corporation has properly completed the site investigation work at the West Kowloon Terminus Station to avoid unnecessary works and supplementary appropriation in the future". Members have to consider whether a shareholder of the MTRCL has a direct pecuniary interest in the inquiry.

PRESIDENT (in Cantonese): Will Members please proceed to vote.

PRESIDENT (in Cantonese): Will Members please check their votes. If there are no queries, voting shall now stop and the result will be displayed.

Functional Constituencies:

Mr Albert HO, Mr James TO, Mr Frederick FUNG, Prof Joseph LEE, Dr LEUNG Ka-lau, Mr CHEUNG Kwok-che, Mr Charles Peter MOK, Mr Kenneth LEUNG, Mr Dennis KWOK and Mr IP Kin-yuen voted for the amendment.

Dr LAU Wong-fat, Mr Jeffrey LAM, Mr Andrew LEUNG, Mr WONG Ting-kwong, Ms Starry LEE, Dr LAM Tai-fai, Mr CHAN Kin-por, Mr IP Kwok-him, Mr Steven HO, Mr Frankie YICK, Mr YIU Si-wing, Mr MA Fung-kwok, Mr KWOK Wai-keung, Mr Christopher CHEUNG, Mr POON Siu-ping, Mr TANG Ka-piu, Ir Dr LO Wai-kwok and Mr Tony TSE voted against the amendment.

Mr Abraham SHEK did not cast any vote.

LEGISLATIVE COUNCIL ─ 11 June 2014 14933

Geographical Constituencies:

Mr LEE Cheuk-yan, Mr LEUNG Yiu-chung, Ms Emily LAU, Ms Cyd HO, Mr Alan LEONG, Mr Albert CHAN, Ms Claudia MO, Mr WU Chi-wai, Mr Gary FAN, Mr CHAN Chi-chuen, Dr Kenneth CHAN, Dr KWOK Ka-ki, Dr Fernando CHEUNG, Mr SIN Chung-kai and Dr Helena WONG voted for the amendment.

Mr CHAN Kam-lam, Mr TAM Yiu-chung, Mr WONG Kwok-hing, Mr CHAN Hak-kan, Mrs Regina IP, Mr Paul TSE, Mr Michael TIEN, Mr James TIEN, Mr CHAN Han-pan, Mr LEUNG Che-cheung, Miss Alice MAK, Dr Elizabeth QUAT, Dr CHIANG Lai-wan and Mr Christopher CHUNG voted against the amendment.

THE PRESIDENT, Mr Jasper TSANG, did not cast any vote.

THE PRESIDENT announced that among the Members returned by functional constituencies, 29 were present, 10 were in favour of the amendment and 18 against it; while among the Members returned by geographical constituencies through direct elections, 30 were present, 15 were in favour of the amendment and 14 against it. Since the question was not agreed by a majority of each of the two groups of Members present, he therefore declared that the amendment was negatived.

MR ANDREW LEUNG (in Cantonese): President, I move that in the event of further divisions being claimed in respect of the motion proposed by Mr Gary FAN in accordance with the Legislative Council (Powers and Privileges) Ordinance, this Council do proceed to each of such divisions immediately after the division bell has been rung for one minute.

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

14934 LEGISLATIVE COUNCIL ─ 11 June 2014

PRESIDENT (in Cantonese): 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 respectively of each of the two groups of Members, that is, those returned by functional constituencies and those returned by geographical constituencies through direct elections, who are present. I declare the motion passed.

I order that in the event of further divisions being claimed in respect of the motion proposed by Mr Gary FAN in accordance with the Legislative Council (Powers and Privileges) Ordinance, this Council do proceed to each of such divisions immediately after the division bell has been rung for one minute.

PRESIDENT (in Cantonese): I now call upon Mr Gary FAN to reply.

MR GARY FAN (in Cantonese): President, may I ask how long I can speak?

PRESIDENT (in Cantonese): You can speak for 15 minutes.

MR GARY FAN (in Cantonese): Do not worry. I will not speak that long. When I spoke the first time … In fact, when I spoke last Wednesday and today and also when I spoke on Ms Claudia MO's amendment, I provided a large LEGISLATIVE COUNCIL ─ 11 June 2014 14935 amount of information to explain why I think the MTRCL and the Government must face an inquiry conducted by the Legislative Council through the Legislative Council (Powers and Privileges) Ordinance (P&P Ordinance). Many people said that they have already given an explanation and even some media asked, "Has it not been settled already?" Yes. Because I did propose it in the House Committee and I also proposed it at a meeting of the Subcommittee on Matters Relating to Railways, but as the pro-establishment camp and the royalist camp came to their defence, or put it more plainly, as they shielded the MTRCL and government officials, my proposal was to no avail. Therefore, I have no other alternative but to propose at this meeting again the setting up of a select committee through the P&P Ordinance to inquire into the incident thoroughly.

It is because up to this moment, the MTRCL still has not given a clear account. Over the last four years, the MTRCL has had 44 meetings with the Government's Project Supervision Committee (PSC). The project already encountered a delay at the initial stage, and the date gap caused by the delay in the works has never narrowed over the past four years. In other words, the MTRCL was aware of the delay and like the MTRCL, the Government was also aware of the delay. But why was it that in mid-2013 after two newspapers with a high circulation had revealed or disclosed the delay in the works and reported that the completion of the project definitely could not be achieved in end-2015, the senior management of the MTRCL and Secretary Prof Anthony CHEUNG still came out and vowed in unison that the project would not be delayed and that it could catch up with the programme for commissioning at the end of 2015?

On 20 November 2013 when the Government was preparing to face the Legislative Council Subcommittee on Matters Relating to Railways and explain to Members the progress of the XRL project, the Government sent Under Secretary for Transport and Housing, YAU Shing-mu, and the PSC of the Highways Department to meet with the MTRCL. It is not the case that during this course the Government had entirely failed to exercise monitoring as it did repeatedly point out that it could not accept the views of the MTRCL that the major works would be completed, but then there would be the possibility of a partial opening as the platforms would not be fully opened because perhaps only 11 of the 15 platforms could be ready for service. The Government did question these views, but what is most regrettable and most problematic is that the Government ultimately adopted these views of the MTRCL.

14936 LEGISLATIVE COUNCIL ─ 11 June 2014

Secretary Prof Anthony CHEUNG said that he had placed too much trust in the MTRCL. I think they had colluded to cover up the truth because what actually happened was that when Under Secretary YAU Shing-mu attended the meeting of the Subcommittee on Matters Relating to Railways at the end of November 2013, he said that the major works could be completed in end-2015. What is it if not collusion to cover up the truth? It was only on 28 March 2014 when there was finally a black rainstorm that the MTRCL, having waited for a long time, blamed the black rainstorm for the project delay, using the excuse that the Tunnel Boring Machine, "Fan-li-hua"(樊梨花), was damaged by floodwater. The MTRCL also said that there was even a power blackout but in less than a day afterwards, the power company exposed the truth that there was no power blackout that day. Then the MTRCL said that the flood wall was not yet ready. Several days later, and I recall clearly that it was a Saturday, the Secretary convened a press conference, telling the reporters that he was caught by surprise ― as I described how he reacted in my first speech, his performance was of the standard of the best actor ― He pretended to have been caught by surprise.

I think this is unacceptable. The Government has given permission and approval to the MTRCL to take up the largest standalone project or a railway project which is the largest in scale in the history of Hong Kong, but the Government has not exercised monitoring effectively, and this MTRCL which has taken up the XRL project, is at the same time undertaking the development of four other railway systems. If we cannot dig up the truth so as to identify the true causes of the delay of the XRL project and ascertain whether, in the course of monitoring, there are areas in which the MTRCL and the officials have failed to perform their roles properly and whether they have colluded to cover up the truth, we would not be able to learn a lesson.

In fact, the MTRCL has encountered delays and cost overruns not only in the XRL project. All the other four railway projects are also hit by delays and works on all fronts have been impeded. What is the Legislative Council doing? President, some colleagues in the Legislative Council think that this is acceptable and that we should not get in their way because they have to carry on with the works. They said that if you propose to conduct an inquiry to find out the causes, you would be the chief culprit for delaying the project. Is there any lie which is more ridiculous than this? I think this is unacceptable, President. Therefore, even though I had proposed a motion in the House Committee and it was negatived, and even though I had proposed the same in the Subcommittee on LEGISLATIVE COUNCIL ─ 11 June 2014 14937

Matters Relating to Railways and it was again negatived, I think I must propose it once again at this meeting of the Legislative Council.

Members may say that the MTRCL is conducting an investigation through an investigation committee comprising independent non-executive directors and the government-appointed three-member expert panel chaired by Justice HARTMANN will also carry out an investigation and so, it is unnecessary for us to conduct an inquiry. Then they said that Members of the Legislative Council can access the MTRCL's data room for information. But can any Member in this Chamber tell us when we can go there to look up information? The MTRCL said two months ago that we can access the information in June, and it is already the middle of June now. President, we have yet received any information from the MTRCL telling us that we can access the data room as it claimed for more information on the delay and cost overrun of the XRL project.

At this very moment, who can tell us how many work projects have experienced cost overruns and how much the actual amount is? Nobody. Officials, Members of this Council or the Subcommittee on Matters Relating to Railways have yet been able to find the answers clearly. Therefore, it is essential and necessary to inquire into the incident thoroughly through the P&P Ordinance. So, President, I am proposing this motion here today in the hope that the P&P Ordinance will be invoked to set up a select committee.

President, I so submit.

PRESIDENT (in Cantonese): I now put the question to you and that is: That the motion moved by Mr Gary FAN be passed. Will those in favour please raise their hands?

(Members raised their hands)

PRESIDENT (in Cantonese): Those against please raise their hands.

(Members raised their hands)

Mr Gary FAN rose to claim a division.

14938 LEGISLATIVE COUNCIL ─ 11 June 2014

PRESIDENT (in Cantonese): Mr Gary FAN has claimed a division. The division bell will ring for one minute.

PRESIDENT (in Cantonese): Will Members please proceed to vote.

PRESIDENT (in Cantonese): Will Members please check their votes. If there are no queries, voting shall now stop and the result will be displayed.

Functional Constituencies:

Mr Albert HO, Mr James TO, Mr Frederick FUNG, Prof Joseph LEE, Dr LEUNG Ka-lau, Mr CHEUNG Kwok-che, Mr Charles Peter MOK, Mr Kenneth LEUNG, Mr Dennis KWOK and Mr IP Kin-yuen voted for the motion.

Dr LAU Wong-fat, Mr Jeffrey LAM, Mr Andrew LEUNG, Mr WONG Ting-kwong, Ms Starry LEE, Dr LAM Tai-fai, Mr CHAN Kin-por, Mr IP Kwok-him, Mr Steven HO, Mr Frankie YICK, Mr YIU Si-wing, Mr MA Fung-kwok, Mr KWOK Wai-keung, Mr Christopher CHEUNG, Mr POON Siu-ping, Mr TANG Ka-piu, Ir Dr LO Wai-kwok and Mr Tony TSE voted against the motion.

Mr Abraham SHEK did not cast any vote.

Geographical Constituencies:

Mr LEE Cheuk-yan, Mr LEUNG Yiu-chung, Ms Emily LAU, Ms Cyd HO, Mr Alan LEONG, Mr Albert CHAN, Ms Claudia MO, Mr WU Chi-wai, Mr Gary FAN, Mr CHAN Chi-chuen, Dr Kenneth CHAN, Dr KWOK Ka-ki, Dr Fernando CHEUNG, Mr SIN Chung-kai and Dr Helena WONG voted for the motion.

LEGISLATIVE COUNCIL ─ 11 June 2014 14939

Mr CHAN Kam-lam, Mr TAM Yiu-chung, Mr WONG Kwok-hing, Mr CHAN Hak-kan, Dr Priscilla LEUNG, Mrs Regina IP, Mr Paul TSE, Mr Michael TIEN, Mr James TIEN, Mr CHAN Han-pan, Mr LEUNG Che-cheung, Miss Alice MAK, Dr Elizabeth QUAT, Dr CHIANG Lai-wan and Mr Christopher CHUNG voted against the motion.

THE PRESIDENT, Mr Jasper TSANG, did not cast any vote.

THE PRESIDENT announced that among the Members returned by functional constituencies, 29 were present, 10 were in favour of the motion and 18 against it; while among the Members returned by geographical constituencies through direct elections, 31 were present, 15 were in favour of the motion and 15 against it. Since the question was not agreed by a majority of each of the two groups of Members present, he therefore declared that the motion was negatived.

PRESIDENT (in Cantonese): Second motion moved by Dr Kenneth CHAN under the Legislative Council (Powers and Privileges) Ordinance.

Members who wish to speak on the motion will please press the "Request to speak" button.

I now call upon Dr Kenneth CHAN to speak and move the motion.

MOTION UNDER THE LEGISLATIVE COUNCIL (POWERS AND PRIVILEGES) ORDINANCE

DR KENNETH CHAN (in Cantonese): President, I move that the motion, as printed on the Agenda, be passed.

The content of the motion reads, "That the House Committee be authorized under section 9(2) of the Legislative Council (Powers and Privileges) Ordinance (Cap. 382) to exercise the powers conferred by section 9(1) of that Ordinance to order the Secretary for Transport and Housing to attend before the House Committee on or before the date of the first meeting of the House Committee after the passage of this motion to produce the full report on the Transport and 14940 LEGISLATIVE COUNCIL ─ 11 June 2014

Housing Bureau's investigation into staff conduct in the Marine Department in relation to the vessel collision incident near Lamma Island on 1 October 2012." (end of quote)

President, this is the first time I have requested invoking the Legislative Council (Powers and Privileges) Ordinance (P&P Ordinance) in this Council to demand the Government to submit this report to this Council. In fact, my intention is very simple and direct. I just hope that this investigation report, which is compiled by the Transport and Housing Bureau, can be made public in full to enable the authorities to expose the truth and clarify responsibilities with respect to the Lamma marine disaster which occurred on 1 October 2012 and claimed 39 lives, including eight children who were aged under 10, in order to bring accountable officers to face appropriate sanctions and punishment and do justice to the victims' families, so they can expeditiously find out the truth, which has yet to be exposed despite their persistent efforts.

(THE PRESIDENT'S DEPUTY, MR ANDREW LEUNG, took the Chair)

Deputy President, I understand that the Legislative Council has to meet a threshold of stringent requirements in order to deploy this "imperial sword". In fact, during the numerous debates in this Council on the invocation of the P&P Ordinance, many Honourable colleagues had repeatedly reminded us that indiscriminate and abusive use of the "imperial sword" must be avoided, or else it might become blunt. Hence, as a Legislative Council Member, I have certainly been very careful in considering this matter. All along, Honourable colleagues in this legislature have been moving motions to invoke the P&P Ordinance to set up committees to conduct inquiries into different issues. However, this motion is unique in that it seeks to confer privileges on the Legislative Council through the P&P Ordinance to obtain an investigation report of the Government rather than setting up a committee to conduct an inquiry.

In my opinion, this motion merits support by Honourable colleagues because it merely involves public interest, which is very clear, simple and easily comprehensible, and nothing else. I cannot see any involvement of political considerations or struggles, so to speak, and there is no need for Members from different political parties or groupings to lean against the Government or indicate their stance. This is an issue concerning the public's right to know and the truth, LEGISLATIVE COUNCIL ─ 11 June 2014 14941 not a political issue. This is simply a cardinal issue of right and wrong concerning whether the Government should be accountable to the public and the victims' families.

Deputy President, in handling this issue, I have looked up some of the letters exchanged between the Government and Legislative Council Members as well as relevant families to help me consider clearly whether or not my action is necessary. According to the Government, the investigation report has some 430 pages and 399 appendices, which include the data collected from the survey of and records of meeting with the 52 staff members of the Marine Department (MD) who were investigated, as well as a large number of internal documents provided by the MD. Let us imagine how detailed, complicated this survey is. In fact, substantial manpower and resources are required and collective wisdom has to be drawn to study and digest the persons, incidents and details involved to uncover the truth and clarify the relationships on all fronts .

This is why this report summary sparked a public uproar when it was released. For such a detailed report containing so many appendices, investigation of such a large number of MD officers and such a large volume of internal documents, how could the Government have submitted such a thin report summary containing only 80-odd paragraphs! This so-called report summary can be described as close to worthless. No wonder there was a public uproar and an outrage among the affected families.

This matter was first handed to the Panel on Economic Development chaired by Mr Michael TIEN when it was brought to this Council for discussion. At the meeting that day, a family member of one of the victims, Mrs KOO, wrote a letter to the Panel to seek help from members of the Panel. I will try to summarize the content of the letter and read it out for the public's information, and to clearly convey to Members the aspiration of Mrs KOO as a family member and enable this letter to be recorded formally and clearly by the Legislative Council.

This was what Mrs KOO wrote in her letter, to this effect, "President and Honorable Members, I am a family member of one of the victims of the Lamma Island marine disaster. Although six months have already passed, the cause of the disaster is still not known. The loss of a loved one feels like being cut by a knife. What is more, we family members feel sad and angry about and are disturbed by the report summary released by the Transport and Housing Bureau 14942 LEGISLATIVE COUNCIL ─ 11 June 2014 the other day because of its failure to disclose the report on the internal investigation conducted by the Government into the MD. This 30-page report summary is so simple that it contains only an account of the reasons for not disclosing the report in full along with the historical background of the incident as well as pages of annexes, but absolutely no concrete explanation. Not only are the families greatly dissatisfied, they also feel ashamed to face the dead. They are worried that the two captains are not the only persons to blame, and the accountable public officers are very likely to be able to get away with it. After a long wait of 10 months for the completion of the investigation, it is a shock to see that the Government has refused to account for the truth of this incident on many unreasonable grounds. However, the MD's previous bad habit and culture regarding vessel inspection and licence issuance was already reported in detail by the independent commission of inquiry. Thirty-nine lives are still awaiting reparation since the Transport and Housing Bureau is suspected of condoning its subordinates."

Mrs KOO then continued, "I think that a comprehensive report can help the Legislative Council study the details about improving the marine safety system. A faithful disclosure of the shortcomings and inadequacies of the MD can also relieve the sufferings of the families. Hence, I implore the President and Honourable Members to support and pass the motion to call on the Transport and Housing Bureau to disclose the report in full. I am most grateful to you. I wish you all good health and all the best."

Immediately after the issuance of this letter on 27 April 2014, I proposed a motion at the meeting of the House Committee of this Council for the first time to obtain the report by invoking the P&P Ordinance. At that meeting, the motion was negatived thanks to the effort made by the pro-establishment camp in defending the Government. However, as I said at the beginning of this speech, since this is a cardinal issue of right and wrong, we will not give up and stop taking follow-up action just because we cannot secure supporting votes. Therefore, I will continue to use the same method in the Legislative Council meeting to uncover the truth and seek justice for the public with the powers and "imperial sword" conferred on us by the P&P Ordinance.

During the process, the Government began its attempt to discuss with the victims' families and even Members of this Council on methods to resolve this problem concerning the disclosure of the report. One of the methods is to suggest to victims' families that the report be obtained from the Government LEGISLATIVE COUNCIL ─ 11 June 2014 14943 through legal or civil proceedings. I have noted the relevant news reports and made enquiries with the victims' families in particular about the progress, the prospect of the report being made public and the likelihood of the problem being resolved. Deputy President, the answer is actually in the negative. This motion of mine should originally be proposed a week ago at the meeting held on 4 June. Hence, I was grateful to my Honourable colleague, Mr James TO, for his assistance on that day as well as to Mrs KOO for her letter. Through this speech delivered on a public occasion, I hope I can make the letter open to the public, so that Members can consider the matter carefully and support my motion.

"Dr CHAN, to begin with, I would like to thank you for lending a helping hand to the families of the victims of the Lamma marine disaster by proposing two motions on 28 April and 2 May separately on invoking the P&P Ordinance. Although the Secretary for Justice has recently suggested to the families that civil proceedings should be pursued in obtaining the internal investigation report made by the Transport and Housing Bureau, I still hold that the Bureau is suspected of covering up the true facts in declining to disclose the report. Neither do I agree that civil damages awarded can do justice to the 39 persons who have perished. Furthermore, not all the victims or injured passengers on board of Lamma IV need to file a writ in the Court for damages. In that case, has their right to know not been taken lightly? I hope Dr CHAN can take note of this. There is indeed a need to invoke the Ordinance to order the Transport and Housing Bureau to disclose the report. I should be most grateful to you. I wish you good health and all the best."

This letter was handed to me on 4 June. I hope to make this letter open to let all Legislative Council Members know that the victims' families still feel very angry and insist on knowing the truth. Furthermore, they hope to seek assistance from the Legislative Council to enable this report to be disclosed in full and made available to the public. In a radio interview, Mrs KOO described herself as a Hong Kong citizen without any power or influence. If we were not Legislative Council Members and if we did not have the power conferred by the P&P Ordinance to enable us to monitor the Government, hold it accountable and demand Secretary Prof Anthony CHEUNG to submit this report to the Legislative Council, we would feel as helpless as Mrs KOO. We can only read newspapers and sigh with longing. We can only sympathize with their plights, share their suffering, and pray for the truth to be dug out and the report disclosed expeditiously.

14944 LEGISLATIVE COUNCIL ─ 11 June 2014

However, Honourable colleagues, we are by no means ordinary people. Members from various parties and groupings should know it very well that this incident is not an ordinary political struggle. Instead, we are exploring a very serious issue. Why would the process of accounting for the truth have become so complicated and tortuous? We have the power to obtain this report on behalf of the public to enable them to fully exercise their right to know and present the truth under the sun in front of them.

Deputy President, throughout the entire negotiation process, we have also received some messages from the Government in a bid to lobby Members not to invoke the P&P Ordinance to force it to disclose the report. Hence, I describe these messages as the seductions of demons. We heard some people say, "Since you are so eager to read it, no problem, I will let you do so. However, many conditions, including the signing of a confidentiality agreement, have to be met. Furthermore, discussions, if any, must be conducted behind closed doors." Why do I say that the Government is responsible for these seductions of demons? All Members of the Legislative Council, including those returned by functional constituencies and those returned by geographical constituencies through direct elections, have the ultimate constitutional responsibility of being accountable to the public and considering policy matters in public interest, including this investigation report on the marine disaster that took place off Lamma Island. As the MD, other government officials and accountability to all Hong Kong people are involved, we must seek to dig out the truth for justice to be done.

Why should the Government tell us to read the report behind closed doors, hold secret discussions and sign confidentiality agreements? Such being the case, how can we take follow-up actions and help the public understand the matter? After reading the report, every one of us has to keep our mouth shut. Deputy President, we are not allowed to ask yes or no questions or say anything about the truth. Nor can we disclose anything. Why should we accept these unequal terms and conditions and agreements? Regarding these arrangements which are an insult to the dignity of the Legislative Council, some individual Members could have even said, "This is not bad. Let us take it!" We must never do it. We want all the true facts, the investigation report, the truth and justice. We must not allow us to be dwarfed by the Government. We refuse to let the Government use these demons' agreements to seduce us.

LEGISLATIVE COUNCIL ─ 11 June 2014 14945

With these remarks, Deputy President, I urge Members who are present to express their views expeditiously to do justice to the victims' families. I so submit.

Dr Kenneth CHAN moved the following motion:

"That the House Committee be authorized under section 9(2) of the Legislative Council (Powers and Privileges) Ordinance (Cap. 382) to exercise the powers conferred by section 9(1) of that Ordinance to order the Secretary for Transport and Housing to attend before the House Committee on or before the date of the first meeting of the House Committee after the passage of this motion to produce the full report on the Transport and Housing Bureau's investigation into staff conduct in the Marine Department in relation to the vessel collision incident near Lamma Island on 1 October 2012."

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

SECRETARY FOR TRANSPORT AND HOUSING (in Cantonese): Deputy President, the vessel collision incident near Lamma Island on 1 October 2012, which caused heavy casualties and claimed 39 lives, is most unfortunate and saddening.

Here, I would like to once again express our profound condolences on behalf of the Government to the families of the victims and apologize for the problems and blunders of the Marine Department (MD) in marine regulation in the past. I fully share the feelings of the victims' families. In the wake of the incident, the Government resolved to identify the cause of the incident and responsibilities to ensure marine safety and prevent the recurrence of similar incidents, as well as doing a better job of reforming the management system of the MD, and so on.

Immediately after the incident, the Chief Executive set up an independent Commission of Inquiry (CoI) to investigate the cause of the incident and make recommendations. A report was published by the CoI in April last year. On the one hand, the Government set up a steering committee chaired by me to 14946 LEGISLATIVE COUNCIL ─ 11 June 2014 conduct a comprehensive review of the system and operation of the MD and take forward reform. On the other hand, in the light of the comments made in the report of the CoI that there is possible maladministration or dereliction of duty on the part of MD officers in the handling of Lamma IV involved in the incident, the Transport and Housing Bureau has set up an investigation team to conduct a disciplinary review of MD officers.

The internal investigation began in June last year, and a report was submitted to me in March this year. Simply put, it is considered that a total of 17 MD officers are alleged to have misconducted themselves while discharging their duties in respect of Lamma IV in the past. The team has recommended that consideration be given to instituting formal disciplinary proceedings against seven of them (including directorate officers), and summary disciplinary action, in the form of warnings, against six of them. As for the remaining four officers who have already retired from the Civil Service at the time of the collision incident, the team considers that they misconducted themselves in the course of performing their duties in the past. The relevant disciplinary proceedings are being instituted by the Civil Service Bureau.

As Dr Kenneth CHAN pointed out earlier, more than 50 persons have been investigated in the investigation conducted this time around, including all serving or retired MD officers involved in the various relevant procedures (direct or indirect) in relation to Lamma IV since the mid-1990s. Therefore, the investigation is comprehensive and thorough.

The motion proposed by Dr Kenneth CHAN today seeks to call on the Legislative Council to authorize the House Committee under the Legislative Council (Powers and Privileges) Ordinance (P&P Ordinance) to order the Government to produce the full report on the Transport and Housing Bureau's investigation into staff conduct in the MD, with a view to enabling the disclosure of the report in full to the public.

I am pleased to hear Dr Kenneth CHAN say that no political consideration is involved in this discussion. Insofar as the Government is concerned, from the first day an internal investigation was decided to be held, there has absolutely been no political consideration. Given that an investigation has been conducted, there is expectation for the report to be made public.

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The Government fully understands that the Legislative Council and members of the community, particularly the victims' families, are anxious to know the content of the report. In deciding on the public disclosure of the report in full, the Government has taken into account four major factors as follows:

(1) the public interest and right to know;

(2) any mandatory restrictions under the Personal Data (Privacy) Ordinance;

(3) the risk of potential adverse impacts on criminal investigation and any potential criminal proceedings being prejudiced; and

(4) legal considerations given to the right to a fair hearing for officers alleged of having misconducted themselves during disciplinary proceedings to be initiated against them.

No political considerations whatsoever are involved in these four major factors. Consideration is given purely to respect for the law and the public's right to know.

On 24 April this year, a document was issued in the form of a summary by the Transport and Housing Bureau to the Panel on Economic Development of the Legislative Council to publish the overall findings and recommendations of the internal investigation and some of the information which can be disclosed. However, the disclosed content was considered by victims' families to be inadequate. Some of them even requested to read the full report upon the signing of a confidentiality agreement. Meanwhile, a motion was passed at a meeting held by the Panel on Economic Development on 28 April to call on the Government to submit the report to the Legislative Council for disclosure to Members under arrangements made according to the confidentiality agreement.

At the meeting of the Panel on Economic Development on 28 April, the Director of Public Prosecutions already explained in detail why public disclosure of the full report at this stage was impossible. The paramount consideration is related to the impact on criminal investigation and any potential criminal proceedings in respect of the incident.

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First of all, public disclosure of the full investigation report may risk influencing the evidence to be given by witnesses or suspects. The original report has recorded in a most detailed manner the written and oral statements made by every interviewed MD officer to the team. Disclosure of the full report at this stage runs the risk of allowing suspects to be forewarned about what witnesses may say against them, thereby giving them the chance to modify or even fabricate accordingly the evidence they may subsequently give to the police. As the police's criminal investigation into the MD officers has already reached the final stage, there is all the more a need to ensure the smooth completion of the criminal investigation being conducted at this stage. Furthermore, the memories and evidence of witnesses may be tainted ― either by them deliberately tailoring their evidence according to what they have read from the report, or just subconsciously confusing what they themselves have independent recollection of with what they in fact do not have contemporaneous knowledge of but have only since read about.

Besides the criminal investigation which is being conducted at this stage, the prosecution has to focus on possible criminal trials, too. Only the words spoken by witnesses in court are the most important evidence. If they confuse what they have independent recollection or experience of with what they in fact do not have contemporaneous knowledge of but have only since read about, the weight and reliability, or even admissibility in court, of their evidence will be adversely affected. Should we fail to handle this issue prudently, we will directly provide the defence with the basis and justification in any relevant criminal trials for interrogating and questioning the witnesses with regard to the reliability of the evidence.

Furthermore, public disclosure of the full investigation report may run the risk of affecting the criminal trials that might arise in the future. "Misconduct on the part of public officers" is probably the direction of the criminal investigation conducted by the police. In this connection, serious disciplinary offences may already constitute "misconduct on the part of public officers". According to the view of the Department of Justice (DoJ), if the content of the internal investigation report is consistent with the direction of one of the focus investigations conducted by the police, public disclosure of the full report might attract criticisms from the defence that juries may be influenced by the findings and recommendations of the investigation, thereby rendering any potential criminal proceedings unfair.

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Deputy President, I have already stated the various legal concerns of the DoJ about public disclosure of the internal investigation report in full. Having said that, the Government has given full attention to the community's aspirations for public disclosure of the report and makes the following response.

The first consideration concerns the victims' families. After considering all the relevant factors and consulted an independent Senior Counsel and a renowned law professor in the United Kingdom, the Secretary for Justice proposed to these families during their meeting on 15 May that they may consider dealing with their requests for access to the internal investigation report through civil proceedings to claim damages from the Government. If this approach is adopted, both parties will endeavour to reach an acceptable proposal through discussions. Even if a consensus cannot be reached on the content of the report to be disclosed in the end, they can still seek a fair verdict through the Court on the specific methods of and conditions for the disclosure of the report and the legal issues involved without creating unnecessary adverse impacts on the criminal investigation being conducted or potential criminal proceedings, as well as the proposed disciplinary proceedings against civil servants.

Insofar as personal data privacy is concerned, in the event that civil proceedings as mentioned just now have already commenced, the disclosure of personal data can be dealt with under section 60B of the Personal Data (Privacy) Ordinance (PDPO). Section 60B of the PDPO provides that personal data is exempt from the provisions of data protection principle 3 if the use of the data is required by an order of a court in Hong Kong or in connection with any legal proceedings in Hong Kong. This approach is used to overcome some of the mandatory restrictions under the PDPO. When the procedural arrangement mentioned just now was proposed by the Secretary for Justice, family representatives indicated at the meeting that consideration would be given to it.

We have learnt that the Secretary for Justice has received more than 10 proposed claims for damages. During the meetings between the Secretary for Justice and the victims' families as well as their legal representatives on 21 and 22 May, constructive exchanges were held between both parties on the aforesaid proposal. Subsequently, the Secretary for Justice wrote a letter to the victims' families on 30 May to further explain the details of the proposal. We earnestly hope to effectively respond to the aspirations of the families through this channel.

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Regarding the disclosure of this investigation report to the Legislative Council, the Government has full respect for the powers and functions conferred on this Council by the Basic Law and fully understands the reason for Members to pass the motion proposed at the meeting of the Panel on Economic Development of the Legislative Council on 28 April. After considering the relevant matters, including legal problems, the Government has decided to make arrangements to disclose the internal investigation report to Members of this Council, provided that the following major conditions are met:

(1) arrangements will be made for a sufficient number of investigation reports to be deposited at the Legislative Council Secretariat for reading by Members within a reasonable period of time, and the relevant reports will be returned to the Transport and Housing Bureau afterwards;

(2) Legislative Council Members are required to sign a confidentiality agreement whereby they can read the report behind closed doors in a place arranged following a discussion held by the Government and the Legislative Council Secretariat;

(3) the draft confidentiality agreement will be submitted to the Legislative Council Secretariat for consideration by Members in the hope that an agreement can be reached on its content;

(4) Members and the Legislative Council Secretariat cannot disclose or photocopy the report or any part thereof;

(5) part of the content of the report disclosed to Members will be redacted accordingly for compliance with the mandatory restrictions under the PDPO and other requirements in law; and

(6) any discussions held by Members wishing to discuss the report in the Legislative Council or any panel must be conducted behind closed doors and public disclosure is disallowed.

Following the issuance of our letter to the Legislative Council Secretariat on 16 May to propose the relevant details, we will discuss the draft of the confidentiality agreement and other details with the Secretariat in due course.

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As Members cannot disclose the content of the investigation report because they must abide by the confidentiality agreement, the Secretary for Justice is of the view that the risk of prejudicing the criminal investigation which is being conducted and any potential criminal proceedings will be reduced. Notwithstanding this, since this arrangement with the Legislative Council does not involve legal proceedings, section 60B of the PDPO is not applicable. Hence, the Government must still abide by the mandatory restrictions under the PDPO and other necessary legal requirements. Furthermore, some of the content disclosed to Members has to be redacted accordingly. Here, I can state clearly that the content required to be redacted involves mainly information revealing the personal identity of the persons concerned. Details of the specific conduct of the relevant officers and the incident will be retained by all means. Redaction of the investigation report will be kept to the minimum within the law, and the content of the report be disclosed to Legislative Council Members by all means.

The last point I would like to raise concerns public disclosure of the investigation report. The Government fully understands that it is also the wish of the public to know the truth uncovered by the investigation. After giving full consideration to the relevant legal issues, however, the Government considers that it is not a suitable time for the investigation report to be made public.

As I mentioned just now, a full criminal investigation is being conducted by the police. The criminal investigation conducted into the MD officers has also reached the final stage. It is hoped that the relevant information and report can be submitted to the DoJ in about three months. By then, the Director of Public Prosecutions will study if there is adequate evidence to institute appropriate criminal proceedings against the MD officers concerned. Hence, disclosure of this report at the present stage will pose a serious risk of causing irreversible damage to the criminal investigation into the MD officers, which will soon be completed, and any potential criminal proceedings. This the Government cannot allow to happen. We believe this is what the victims' families, Legislative Council Members and the public at large would not like to see either.

Having said that, the Secretary for Justice has undertaken that, upon the completion of the criminal investigation, the DoJ will re-examine this issue in phases, in the event of the commencement of any criminal proceedings, with a 14952 LEGISLATIVE COUNCIL ─ 11 June 2014 view to disclosing the report within the law by all means without prejudicing any legal or disciplinary proceedings.

Based on these considerations, if the content of the full report is disclosed to the whole community at this very moment according to the request made by Dr Kenneth CHAN in his motion just now, a risk will definitely be posed to the criminal investigation being conducted at the moment and any potential criminal proceedings, and the risk thus posed will definitely be serious.

I understand that the request for the Government to disclose the full report to the public is made in the hope of enabling justice to be done. It is precisely for this reason that the Government has been endeavouring to find evidence through a criminal investigation in order to institute criminal prosecution against people suspected of having broken the law. Likewise, for the purpose of enabling justice to be done, the Government will also act impartially and conduct disciplinary investigations into and take relevant actions against civil servants suspected of dereliction of duty in a fair and impartial manner. Hence, our objectives are consistent. However, in view of the complexity of the matter and the related legal issues, the Government can absolutely not take the serious risk of prejudicing the criminal investigation which will soon be completed and any potential criminal proceedings at this stage, thereby making the criminal investigation fail at the last moment. Should this be the case, the justice pursued by us will, on the contrary, be impacted.

Deputy President, the Government has been actively following up the vessel collision incident and the problems thus exposed: First, the captains involved have already been charged with manslaughter; second, with respect to the criticism made by the independent CoI report about the inadequacies of the MD officers in handling the incident involving Lamma IV, the internal investigation is precisely aimed at investigating whether or not there is dereliction of duty or maladministration on their part and taking disciplinary follow-up actions against them; third, the criminal investigation conducted by the police into the MD officers has already reached the final stage, and further investigations will also be conducted into other persons who might be involved; fourth, the Civil Service Bureau is collating the data and evidence collected in the investigation report with a view to, without prejudicing the criminal investigation and criminal proceedings, taking disciplinary actions expeditiously against officers alleged of having misconducted themselves according to the recommendations in the report LEGISLATIVE COUNCIL ─ 11 June 2014 14953 and relevant proceedings. All this is aimed at upholding justice and pursuing responsibilities.

For these reasons, the Government earnestly hope that the Legislative Council will not invoke the P&P Ordinance to force the Government to disclose the full investigation report at this stage because, once it is fully disclosed, the criminal investigation which is being conducted and disciplinary proceedings will definitely be impeded. The Government's considerations are purely legal considerations without involving any political considerations. The Government's response to the proposals put forward by the families or the Legislative Council is by no means demons' seduction.

Deputy President, I so submit.

MR MICHAEL TIEN (in Cantonese): Deputy President, the Lamma Island marine tragedy will always be a thorn for the victims' families and Hong Kong people. Regardless of the lapse of time, no one will give up seeking the truth, holding the officers concerned accountable and attempts to do justice to the victims' families. The controversy over the entire incident is subject to all sorts of interpretations, so to speak. From the perspective of the public, especially the victim's families, after such a long wait, they certainly hope to read the entire report without missing a single word in order to dig out the inside information. I absolutely understand their feelings.

From the angle of the Government, however, it must exercise prudence in making each and every decision, especially one involving legal considerations. Hence, the only reason for the authorities to continue to mediate between the victims' families, the Secretary for Justice and Legislative Council Members is to identify the most appropriate solution, such that a balance can be struck between the public's right to know and legal considerations. It must be noted that, if the criminal investigation and court proceedings are really prejudiced by the disclosure of the report, it will only do harm to the victims' families despite good intentions.

The legislature is not a court. Nor are we judges. The few words uttered by Members cannot make good evidence. Many Members are asking the same question: How do you know the criminal proceedings will really be prejudiced by the disclosure of the report? That is precisely the point. Neither you, I nor the 14954 LEGISLATIVE COUNCIL ─ 11 June 2014

Government know anything about it. Actually, no one can assert that public disclosure of the report will definitely not cause any adverse impacts.

Hence, it is really totally unacceptable to me to lightly support or oppose invoking the P&P Ordinance today for the purpose of disclosing the report. Although I sympathize with the feelings of the victims' families and understand the public's aspirations, will the losses not outweigh the gains should the criminal proceedings be prejudiced eventually, thus resulting in those who should originally be held accountable getting away unpunished? This is even more unacceptable to me. Being caught between a rock and a hard place, I have only one option today, that is, I can only cast an abstention, albeit with great reluctance indeed.

I so submit.

MR FRANKIE YICK (in Cantonese): Deputy President, before discussing this question, I would like to express profound condolences on behalf of the Liberal Party to the families of the victims and the injured in this incident.

Now, I will attempt to recap the developments of the incident in chronological order as well as the aspirations of the community. The marine disaster which took place off Lamma Island in the evening of 1 October 2012 caused 39 people dead and more than 90 others injured. On 22 October 2012, Mr Justice Michael Victor LUNN was appointed by the Chief Executive in Council to chair a Commission of Inquiry (CoI) set up to conduct an inquiry into the incident. In April 2014, a report was submitted by the CoI to the Government revealing maladministration and dereliction of duty on the part of the MD officers. As a result, an Investigation Team (the Team) was set up by the Transport and Housing Bureau in end-June 2013 to investigate the faults of the relevant public officers.

Following an investigation that lasted nearly 10 months, a 430-page report was submitted by the Team on 31 March 2014. It is concluded therein that a total of 17 officers (including 13 serving and four retired officers) have misconducted themselves and recommended that disciplinary action, in the form of formal disciplinary proceedings or warnings, be taken against the 13 serving officers (including two directorate officers). As regards the four officers who LEGISLATIVE COUNCIL ─ 11 June 2014 14955 have already retired from the Civil Service at the time of the incident, the Team states that "no disciplinary action can be taken against them even if such action is warranted". Nevertheless, the Secretary has not disclosed the names and ranks of the relevant officers and given details of the relevant matters on the ground that criminal proceedings and personal privacy might be prejudiced. Instead, only a 30-page summary has been released. The relevant justifications were explained in detail by the Secretary just now.

On 28 April 2014, the Panel on Economic Development passed a motion urging the Government to submit the investigation report to the Legislative Council for perusal by Members under a confidentiality agreement. Just now, the Secretary already explained that the relevant procedures were being undertaken. On 2 May, the Transport and Housing Bureau issued another letter to the Clerk of the Panel stating that the Bureau was discussing with the Department of Justice (DoJ) and the Civil Service Bureau the feasibility of allowing Legislative Council Members and the victims' families to read the investigation report after signing a confidentiality agreement. The Government is now considering the legal issues involved and study seriously how to solve the problem in the hope of making feasible arrangements expeditiously.

On the same day, Mr James TIEN of the Liberal Party stated at the meeting of the House Committee that since the Transport and Housing Bureau was still studying whether or not Members and victims' families should be allowed to read the report after signing a confidentiality agreement, and the Secretary for Justice would also meet with the victims' families on 15 May, the Liberal Party considered that the decision on the proposed invocation of the P&P Ordinance to seek disclosure of the report should be postponed. Hence, we did not support invoking the P&P Ordinance to request the Bureau to disclose the report.

On 16 May, the Transport and Housing Bureau issued another letter to the Clerk of the Panel to explain more specifically ways of disclosing the report to Members, including the signing of a confidentiality agreement, the perusal of the report at a heavily-guarded location, and so on. This was explained by the Secretary again just now. However, the Bureau indicated in the last paragraph of its letter that family representatives were considering the proposal made by the Secretary for Justice to obtain the report for perusal through civil proceedings. Just now, the Secretary also confirmed that more than 10 victims' families were 14956 LEGISLATIVE COUNCIL ─ 11 June 2014 instituting relevant civil proceedings. Under such circumstances, if the timings are broadly compatible, it might be more appropriate to allow Legislative Council Members and the victims' families to read the detailed report at the same time.

On 10 June, the Transport and Housing Bureau stated in a letter of reply to Mr James TO that it was drafting the details of a confidentiality agreement in the hope of submitting its draft to the Legislative Council Secretariat expeditiously for reference by Members, so an agreement can be reached with Members expeditiously. Just now, many of the latest developments were already confirmed by the Secretary. With respect to this incident, Dr Kenneth CHAN is now requesting this Council to invoke the P&P Ordinance in the hope that the report can be obtained through the House Committee for perusal by the public expeditiously. Actually, besides Members, the victims' families are instituting relevant proceedings, too. I believe it will not take too long before the full report can be disclosed. Hence, we consider it unnecessary to invoke the P&P Ordinance at this moment to obtain the report at an earlier date.

As the Secretary explained just now, there are many legal justifications for the information about this incident to be kept confidential to enable potential criminal proceedings to be instituted effectively. We subscribe to this point of view, too. Hence, the Liberal Party will not support Dr Kenneth CHAN's motion today. Thank you, Deputy President.

MR WONG KWOK-HING (in Cantonese): Deputy President, after this tragedy that occurred on the night of 1 October 2012, I, together with the Chairman and a number of executive committee members of the Power Assets Holdings Limited Employees Union (the Union) as well as members of the Right and Benefits Committee of the Hong Kong Federation of Trade Unions rushed to Queen Mary Hospital at the first instance to help families of the missing employees of the Power Assets Holdings Limited (Power Assets) to look for their family members. Those scenes still remain vivid in my mind and those tragic memories of the time have kept coming back to me.

(THE PRESIDENT resumed the Chair)

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President, the pain and trauma brought by the maritime disaster off Lamma Island are shared by the Union members and the staff of Power Assets who are all deeply grieved. Since the night when we arrived at Queen Mary Hospital to help families of the victims and the affected employees, we have never stopped helping them to negotiate with the relevant parties and to meet with the Secretary. At this stage, we very much hope that the criminal investigation launched by the Government and the disciplinary proceedings conducted to pursue responsibilities can come up with findings early in order for the truth to be revealed early. Besides, we also hope that the Government will institute proceedings against the people involved for criminal liabilities and make compensations when necessary.

President, Dr Kenneth CHAN has proposed a motion under the Legislative Council (Powers and Privileges) Ordinance (P&P Ordinance) today, calling on the Government ― if his motion is passed ― to attend before the House Committee to produce the full report on the investigation. I think this may prejudice the criminal investigation and prosecution currently in progress and may also jeopardize the impartiality of the disciplinary proceedings conducted to pursue responsibilities and the issue of compensation, and some people may even be able to evade their responsibilities as a result. In this connection, the Secretary has highlighted this message in many of his speeches before, and he has made this point once again today. In fact, the Secretary for Justice also put across this message very clearly some time ago.

With regard to Dr Kenneth CHAN's motion ― if Members agree with his proposal ― I think Dr CHAN should first answer these questions: Can he ensure that the criminal investigation and the disciplinary proceedings conducted to pursue the criminal liabilities of the people concerned will not be jeopardized? What is his basis? Can he give us his word for it? Can he give a 100% guarantee? If he cannot answer these questions, I think this motion proposed by him is open to question.

President, before tonight, I consulted the staff of Power Assets through the Union and I also consulted the view of the Union. It is because among the 39 victims, some were the direct employees of Power Assets and their families. Their view is that the P&P Ordinance should not be invoked and that the criminal investigation currently in progress should be respected instead. Should Dr CHAN not also listen to these different views?

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President, why are we so concerned about the vessel involved in this incident? It is because there is some history before the occurrence of this incident. Before 1 October 2012, Power Assets unilaterally changed a rule of occupational safety. In the past, when typhoon signal No. 3 was hoisted, employees who had to work on Lamma Island but had not yet reported duty were not required to go to work, except for those staff members in essential positions. But in recent years, the management has unilaterally changed this rule, arousing strong opinions among the employees. The vessel which was taking them to work was this Lamma IV involved in the incident. Employees had pointed out that there were problems with the structure and stability of this vessel.

A year or two before the tragedy, we assisted the Union and the staff of Power Assets in expressing strong views to the management and the Labour Department, pointing out the dangers of this vessel and the management's malpractice of unilaterally changing the work arrangements for employees during the hoisting of a typhoon signal. The Union and the staff of Power Assets really very much wish that the Government can carry out a criminal investigation to thoroughly probe into why the authorities would permit this unstable vessel to sail. They also earnestly hope that the Government can identify responsibilities and punish those officials found to be derelict of their duties, in order that those people suspected of being derelict of their duties cannot elude justice, whether they are still in office or have retired or left the Civil Service.

The staff of Power Assets very much wish to know the findings. They very much wish that the Government will thoroughly dig into what happened and pursue responsibilities. Therefore, after reading and listening to remarks and solemn statement made by the Secretary for Justice through the media such as television, radio and the press, they support and agree with the Secretary for Justice's position and approach. They consider his approach prudent and responsible. In discussing this motion proposed by Dr Kenneth CHAN today, we must speak their mind and express their views here.

If Dr CHAN will insist on his view, I hope that he can answer the questions I have just asked. I believe members of the public, families of the victims and employees of Power Assets all wish to listen to Dr CHAN about his legal basis and how he can ensure that making public the full report will not prejudice the criminal investigation and disciplinary proceedings. Why is it that the Secretary for Justice's view is incorrect whereas his is correct? We really very much wish to know the answer.

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President, after the Union and I expressed strong views to the management of Power Assets, the management agreed to revise the rule by stipulating that when a typhoon signal No. 3 is hoisted, employees who are working in Lamma Island can go home whereas those who have not yet reported duty are not required to go to work but, of course, with the exception of employees in essential positions, for the management must ensure the safety and stability of power supply. The previous arrangement has now been restored.

Although this tragedy that happened on the night of 1 October can be considered an accident, the problem is that the system of vessel survey of the Marine Department (MD) is plagued with problems and there are also inadequacies in terms of regulation and worse still, some people may have acted against the law for personal interests. In view of this, I think a criminal investigation should be carried out and it is imperative to institute proceedings for criminal liabilities in order to do justice to the victims and bring consolation to the souls of the deceased.

Although this incident is a maritime disaster, it also involves occupational safety, vessel safety and the long-standing practices and deficiencies of the MD. All these must be rectified. I hope that the Secretary and the enforcement agencies will handle this incident seriously and be fully committed to taking follow-up actions. If investigation found suspected breach of law by any person, prosecution should be instituted, or else it would not be fair to the victims and to all the staff of Power Assets. All the staff of Power Assets are awaiting the findings and they are awaiting an answer.

With these remarks, President, I oppose the motion moved by Dr Kenneth CHAN on invoking the P&P Ordinance to require the Government to produce the full report on the investigation at this stage.

MR GARY FAN (in Cantonese): Mr WONG Kwok-hing from the FTU is full of specious arguments. He is outspoken, but he often misses the mark. In order to defend government policies, he will do whatever it takes. He is most apt at acting as the henchman of the Government. After the tragedy had happened, and if assistance was to be given to the dead and the injured, the method should not be the one used by you. Ask your own conscience.

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President, the vessel collision in the waters off Lamma Island is the most disastrous marine incident in Hong Kong after the capsize of the FATSHAN Ferry disaster in 1971. In terms of fatalities, it is the single incident with the largest number of fatalities after the blaze in Garley Building in 1996. It can be regarded as an indelible episode in the minds of Hong Kong people, and it is still vivid in my memory.

In April 2013, the Commission of Inquiry into the Collision of Vessels near Lamma Island published the Redacted Version of the Report. The Report points out that the two vessels involved in the incident, that is, the Lamma IV and the Sea Smooth, and the captains and the crew, as well as the companies to which they belong, that is, the Hongkong Electric Company Limited (HKE) and the Hong Kong and Kowloon Ferry Holdings Limited (HKF), should bear the responsibility. Apart from this, it is also mentioned that that there is gross negligence on the part of the Marine Department (MD) with respect to the routine inspections and granting of licences for these vessels. Were it not for this bloody lesson from the marine disaster which exposed the loopholes in monitoring by the MD, the people of Hong Kong would never know that there are so many time bombs sailing in our waters. Compared with the HKE and the HKF, as well as their crew members, the public is more concerned about the monitoring administered by the MD and its accountability.

This report of the internal investigation conducted by the Transport and Housing Bureau into staff of the MD serves to let family members of the victims know the truth of the incident and give them a right to pursue responsibilities. For the people of Hong Kong, it also manifests their right to know.

President, according to government statistics, in 2012, ferry services in Hong Kong carry an average of 135 000 passenger trips daily. If the relevant internal investigation report cannot be fully disclosed to the public, this is actually a disregard of the marine safety of ferry passengers.

In May, the Transport and Housing Bureau wrote to this Council and listed six conditions for disclosing the report to Members. These include asking Members to sign a confidentiality agreement first and that the meetings on the investigation report to be held later must be behind closed doors and the details cannot be divulged to the public. The Bureau also made it clear that the report shall follow the mandatory requirements found in the Personal Data (Privacy) Ordinance and other relevant laws, that is, part of the contents will be redacted LEGISLATIVE COUNCIL ─ 11 June 2014 14961 and a full report will not be given. The Bureau did not state which parts of the contents will be redacted.

I think that these six conditions suggested by the Bureau are utterly unacceptable. Why? It is because first, the MD is a government department and the public has a right to know how its operation and the Legislative Council has a right to monitor it. In April this year, the Bureau pointed out in an abstract of the Report of the vessel collision incident submitted to this Council that 17 officers of the MD, including directorate officers, have misconducted themselves with respect to the discharge of their duties regarding Lamma IV. Of these 17 officers who are found to be in dereliction of their duties, four have already retired at the time when the incident took place. For these retired officers, even if there are grounds, it would be unable to take any disciplinary action against them. As a result, these officers who may have been in dereliction of their duties may escape the long arm of the law.

As a lot of public officers are involved in this incident and even officers at the directorate rank are involved, it means that huge public interest is at stake. The public has the right to know the findings of the inquiry into the vessel collision incident and also the disciplinary action taken against the serving officers. This will prevent the recurrence of similar incidents for which accountability cannot be pursued because persons involved have retired or the Bureau wants to condone such misconduct. The public can also get a full picture of the entire incident and the possibility of recurrence of similar incidents in future can thus be reduced.

Moreover, the Bureau said that the requirement to sign a confidentiality agreement and redact certain parts of the Report are due to legal and privacy reasons. But the Bureau has only consulted the Department of Justice, without consulting the Legislative Council beforehand on the necessity and legal basis for redacting certain parts of the inquiry report. Moreover, Secretary Prof Anthony CHEUNG said in last September that the report of the inquiry could not be disclosed to the public. Does it mean that at that time these problems in law and privacy did not exist? As those involved are public officers of the MD, this is a matter of significant public interest. Therefore, the relevant names, positions and conduct should be disclosed to Members in confidence. This will enable Members of this Council to hold the relevant persons in the incident accountable on behalf of the public.

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President, the Bureau undertook an internal investigation as early as in June 2013 and it was only in April 2014 that the findings of the investigation were made public. Hence, it has taken 10 months. And before the Bureau commenced its investigation, the Commission of Inquiry into the Collision of Vessels near Lamma Island had published the Redacted Version of the Report in April 2013. This Report only took half a year to complete. When the Bureau had this Report of the Commission of Inquiry in its hands as reference, it still delayed and it was only in April that the Redacted Version of the Report is made public. The Report points out that public officers found to be in dereliction of duties included those at the directorate rank. Incidentally and during the investigation period, the former Director of Marine LIU Hon-por retired in February 2014. This makes people think whether or not an attempt at condonement is involved. Members of the public would naturally think that there may be an attempt at condonement and that with retirement, these public officers can be absolved of their liability. So we have reasonable grounds to suspect that the Bureau's attempt to redact certain parts of the Report is meant to pre-empt any attempt by the public and the Legislative Council to hold the SAR Government accountable.

Based on three reasons mentioned by me, I therefore support the motion proposed by Dr Kenneth CHAN to urge the Bureau to make public in full the investigation report on the conduct of MD staff.

President, I so submit.

MR CHAN KAM-LAM (in Cantonese): President, the vessel collision incident near Lamma Island in October 2012 claimed the lives of 39 people. This is a large-scale maritime disaster rarely seen in Hong Kong and a heartrending tragedy. The Democratic Alliance for the Betterment and Progress of Hong Kong (DAB) extends our sympathy and condolences to the families of the victims in this incident.

Some time ago the Transport and Housing Bureau published a summary of the report on the investigation into staff conduct in the Marine Department (MD), but the families wish to read the full report in order to understand the truth of the incident. This earnest request of the families is understandable, but the release of the full report is not a reasonable solution and may even jeopardize the rights and interests of the families.

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We agree that the authorities should ultimately give an account to the families of the victims. In fact, the authorities should complete the criminal investigation as soon as possible and take disciplinary actions against those people who should be held responsible and even prosecute them for criminal liabilities. This is the way to truly give the public an account and do justice to the families of the victims. But the problem is that the publication of the full report on the investigation now may seriously prejudice the criminal investigation and judicial proceedings in relation to the incident. The Secretary for Justice already explained very clearly that the implications are multi-faceted. It may affect the memory of the people concerned about the incident which would cause the impartiality of the future jury to be questioned; it may compromise the admissibility of evidence; and it may even give the suspects an opportunity to fabricate evidence. If the publication of the report in advance would result in the people involved being able to evade their legal responsibilities, would it not be more heartbreaking to the families of the victims? I believe this is not their original intention in calling for the publication of the investigation report.

Some people have asked whether the report can be released partially by redacting only the sensitive parts. However, the Government already explained that this may have two possible consequences: First, too much information will be covered and the report with contents redacted may be lacking in coherence and consistency and even if the report were made public, it would still be incomprehensible. The other possible consequence is that when too little information is redacted, the criminal investigation in progress and the criminal proceedings to be instituted in the future would ultimately be prejudiced, and this might even constitute a breach of the Personal Data (Privacy) Ordinance. Therefore, the decision of not making public the full report on the investigation at this stage is actually meant to protect the rights and interests of the families of the victims.

I believe the Government appreciates the concerns of the Legislative Council and the demands of the families. On 28 April this year, the Panel on Economic Development passed a motion proposed by me, and the Government also agreed to arrange for the investigation report to be made available for perusal by Members of this Council. On the other hand, the Secretary for Justice and an Assistant Commissioner of Police met with the families of the victims at the first instance to clearly explain the situation to them. The Assistant Commissioner of Police explained for the first time that the criminal investigation is divided into two parts, one on government officers and the other on people other than 14964 LEGISLATIVE COUNCIL ─ 11 June 2014 government officers, and the investigation into the staff in the MD has reached the final stage. The Secretary for Justice, Mr Rimsky YUEN, has also undertaken that after receiving the information provided by the police, the Director of Public Prosecutions can make a decision in three months on whether prosecution will be instituted and that the utmost effort will be made to release the report, so as to strike a balance between social aspirations and legal concerns. The Secretary for Justice has even said that families of the victims, after seeking legal advice, may ask to meet with him again anytime. This shows that the Government attaches great importance to the demands of the families.

Regarding the invocation of the Legislative Council (Powers and Privileges) Ordinance (P&P Ordinance) to require the Government to release the full report on the investigation into the maritime disaster, we have reservations about it. If the purpose of releasing the report now is to enable the families to understand the truth of the incident, the authorities have already said that families can access the report through civil proceedings and to this end, not all the families are required to take part in the proceedings, for the proceedings can be initiated by a representative of such families. This can satisfy the demand of the families without prejudicing future judicial proceedings, and I believe this is a desirable approach. If the purpose is to enable Members to discharge their monitoring duties, the Government has already made arrangements for Members to view the report after signing a confidentiality agreement and this can satisfy Members' demand for exercising monitoring.

Certainly, we hope that after the completion of the criminal investigation, the Bureau can make public the detailed investigation report as soon as possible to manifest the right to know to the public and the families. But at the present stage, the handling approach taken by the authorities is acceptable because the ultimate intention is to uphold judicial fairness and protect the rights of the victims' families to make claims and so, they do merit our support.

From this we can come to the conclusion that it is unnecessary to invoke the P&P Ordinance. As its name suggests, the P&P Ordinance is extremely special and must be invoked with the utmost care. This is not a question of whether or not the Legislative Council has given up its monitoring role, for it is necessary for us to fully take into consideration the practical needs. Recently, the pan-democratic Members have kept on proposing that the P&P Ordinance be invoked to inquire into different incidents, such as the dismissal of LI Wei-ling by LEGISLATIVE COUNCIL ─ 11 June 2014 14965

Commercial Radio. This is a labour dispute but it was outrageously proposed that the P&P Ordinance be invoked to conduct an inquiry. Another example is the incident of Ricky WONG not being issued with a free television licence, and they invariably proposed that government officials be summoned to attend hearings and give evidence. All these motions were negatived, but if they were all passed, does it mean that the relevant officials would have to attend our meetings to give evidence frequently? How would they be able to perform their other duties?

On this day alone, we have to debate two motions on the P&P Ordinance. The Legislative Council does not need to do anything else, for all it needs to do is to investigate this and that day after day. So, let us advise Members in the opposition camp not to treat the P&P Ordinance as a trifling matter and should respect Members' powers and privileges.

Moreover, I wish to take this opportunity to point out that apart from completing the criminal investigation expeditiously to identify responsibilities for the incident and take necessary disciplinary actions, it is also necessary to thoroughly investigate the root causes of the incident and address problems in the existing monitoring system. So long as the system is not rectified and improved, it would be difficult to prevent the recurrence of similar incidents. To enhance measures on maritime safety, the MD has taken a number of actions, including a comprehensive re-inspection of the provision of lifejackets on all ferries, launches and kaitos, strengthening of work on ship inspections, engaging a classification society and a maritime consultancy respectively to carry out an independent audit review and a benchmark survey, and so on. Given that legislative amendments are unnecessary, similar new requirements will come into effect within this year according to plan. Despite the immediate measures taken by the MD to mitigate the problems, in view of a consistent shortage of manpower in the MD, the Finance Committee approved the proposals on the staff establishment of the MD on 7 February 2014. However, the inclusion of more Directorate posts in its establishment for managing the operation of the Department cannot address the actual problems that exist internally. The problems in the management structure and culture in the MD cannot be addressed in a short time. A culture of "muddling through" is quite deeply rooted in the management of the MD, and there is also the problem of a lack of communication both vertically and horizontally. When there is no problem, this culture may not be exposed but in the event of unexpected circumstances, the inability to effect communication in a 14966 LEGISLATIVE COUNCIL ─ 11 June 2014 timely manner will cause delay in the handling of problems and even in the timing of rescuing lives. Regarding the problems highlighted in the investigation report, the authorities should expeditiously respond to and tackle them, in order to prevent the occurrence of another tragedy.

President, the DAB opposes that the P&P Ordinance be invoked to require the release of the full report on the investigation into the maritime disaster.

I so submit.

PRESIDENT (in Cantonese): Does any other Member wish to speak?

(No Member indicated a wish to speak)

PRESIDENT (in Cantonese): If not, I now call upon Dr Kenneth CHAN to reply.

DR KENNETH CHAN (in Cantonese): Thank you, President. Tonight, a total of only …

PRESIDENT (in Cantonese): Dr CHAN, please hold on. Let me see if the Secretary for Transport and Housing would like to speak again.

DR KENNETH CHAN (in Cantonese): Sure. Secretary, please.

SECRETARY FOR TRANSPORT AND HOUSING (in Cantonese): President, the question today is to pass the motion to make public disclosure of the report of the internal investigation completed by the Transport and Housing Bureau on the possible dereliction of responsibility and negligence of duty and maladministration on the part of Marine Department officers in carrying out their duties in the past relating to Lamma IV.

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As I explained in detail in my opening speech earlier, the present arrangement made by the Government is for Members of the Legislative Council to read the internal investigation report after signing a confidentiality agreement and on specific conditions. As for the injured and families of the victims, they may initiate civil proceedings on compensation claims to process their request for access to the investigation report. Under this approach, the two parties concerned will try to arrive at a proposal acceptable to both sides through negotiation by all means. Even if both sides cannot reach a consensus on the content of the investigation report to be disclosed in the end, they can count on the Court to make an impartial judgment on the specific methods and conditions for disclosing the investigation report and the legal concerns involved. This procedure may also prevent imposing unnecessary negative impact on the criminal investigation underway and the potential criminal proceedings to be carried out in future, as well as the disciplinary proceedings proposed.

We note from the reports of the media that certain families are willing to consider initiating civil proceedings to obtain access to the report. As I mentioned earlier, the Department of Justice (DoJ) has received a dozen of cases involving compensation claims through civil proceedings. On 30 May, the Secretary for Justice wrote to the injured, families of the victims and their legal representatives to further explain the details of his proposal of obtaining access to the report and expressed his willingness to have further discussions on the details. Hence, the Government earnestly hopes that the aspiration of the injured and families of the victims can be addressed through a relatively secure legal channel, and this approach is a relatively appropriate practice taking into account the relevant legal concerns.

The Government fully appreciates the public's desire to know the truth of the incident, yet we must take into account other legal concerns and possible impact which are also important. It is not opportune to make full public disclosure of the internal investigation report.

The criminal investigation conducted by the police on MD officers has entered the final stage. If a public disclosure of the internal investigation report is made hastily at present, the soon-to-be completed criminal investigation on MD officers, as well as potential criminal proceedings in future, will certainly be prejudiced seriously.

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President, I must reiterate that the internal investigation of the Bureau this time around was conducted in a fair, impartial and thorough manner. The investigation team proposes to take disciplinary action against 13 serving officers, and the investigation report has been sent to the Civil Service Bureau for follow-up. Since the police are conducting the criminal investigation, the Civil Service Bureau will ensure that any disciplinary action imposed will not affect the criminal investigation and any subsequent criminal proceedings. If a full public disclosure of the investigation report is made at the present stage, covering the information provided by MD officers, and the analysis made by the internal investigation team regarding the separate parts played by officers involved in handling Lamma IV and prima facie evidence, and so on, the criminal investigation underway and any possible criminal proceedings, as well as disciplinary procedures and actions, will certainly be seriously prejudiced.

Besides, the need for the public to know should not override all the other factors. The Government must comply with the mandatory restrictions under the Personal Data (Privacy) Ordinance. This practice does not mean to cover up the identity of MD officers whom the investigation team considers to have misconducted themselves on prima facie evidence, but to comply with the requirement of the law. If we are to make public the report, we must comply with the requirements of the Ordinance.

In the wake of the ferry collision disaster near the Lamma Island, society expects justice to be done, which is also the goal of the Government. Hence, the Government has adopted a parallel approach of conducing criminal investigation and disciplinary proceedings at the same time. A full public disclosure of the internal investigation report at this stage may undermine the hard efforts made by the Government in achieving the intended outcome, which may end up in a failure. If that is the case, we will let down the families of the victims who entrust us to pursue accountability and get justice done for them.

Therefore, President, I implore Honourable Members not to invoke the P&P Ordinance to force the Government to make public disclosure of the full report of the internal investigation at this stage. Thank you, President.

PRESIDENT (in Cantonese): Dr Kenneth CHAN, please speak in reply.

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DR KENNETH CHAN (in Cantonese): President, five Honourable colleagues have spoken on my motion this evening. I think thoughts will swell in the minds of those members of the public who are concerned about the marine tragedy off Lamma Island and also in the minds of the family members of the victims. Why is such a small number of Honourable colleagues have chosen to speak on this important issue? Is it because the Government has done a great job in lobbying or because Members are under great pressure at work and so they think that there is no need to discuss the topic?

President, I said in the opening speech that this question touches on public interest and it transcends the kind of struggle we would often see among political parties. So the comments I made just now are not intended to refer only to Members from the pro-establishment camp, but also those Honourable colleagues from the pan-democratic camp sitting behind me. Likewise, their absence would also break the hearts of members of the public who are concerned about the incident as well as the family members of the victims.

President, I notice that Mr Michael TIEN is in a dilemma. He said he would abstain. I respect his choice. Some Members have chosen to repeat those arguments presented by Secretary Prof Anthony CHEUNG in his opening speech in order to oppose the motion proposed by me.

I wish to reiterate the nature of this motion. This is because certain Honourable colleagues may have misunderstood it or they may intentionally mix up other motions proposed by Members to invoke the Legislative Council (Powers and Privileges) Ordinance (P&P Ordinance), thus confusing the people. Now we can see that Honourable colleagues will often request that the P&P Ordinance be invoked to conduct an inquiry and to set up a select committee to inquire into some issues. So it is natural that many Members would say that we are wasting public money and time and preventing this Council from doing some practical work. But I have made it clear in the opening speech that I do not want to set up a commission of inquiry; I am just demanding a report. And it is not out of some whimsical thoughts that I want to have this report or that I want to target Secretary Prof Anthony CHEUNG.

In my opening speech, I made it a point to carefully quote a family member of a victim, Mrs KOO. Her remarks represent the wish, demand and heartfelt cries of families affected by the incident. So I am not asking Members to set up 14970 LEGISLATIVE COUNCIL ─ 11 June 2014 a commission of inquiry to probe into the incident once again. I just want to have that report. And I am demanding that report on behalf of those family members and the public.

Members of the public may not understand it, but veteran Members of this Council will certainly do. We are debating today two motions on invoking the P&P Ordinance because these two motions both have legislative effect. So according to the Rules of Procedure, motions with legislative effect are called motions. The other motions do not have any legislative effect. They are meant for Members to express their political views or rival in eloquence. Those are motions with no legislative effect. Now there are Members who are about to say that I am standing in their way as they want to speak, state their position or show their allegiance. And so they want to sweep away these motions proposed by Members by virtue of the power vested in them by the P&P Ordinance and which have legislative effect. Is this not retrogression? Is this not an attempt to confuse and confound people? Is this not lacking in logic?

President, we certainly want to see the truth made public. We want to arrive at findings in the investigation. And we want to see the persons involved punished by law and see that justice is done. But the fact is that this investigation has been taking up too much time. Ever since March, April, May and up to mid-June, the authorities have always been saying that the investigation is in progress and it is now at the final stages. But when will it be finished? When will we know the truth?

The Administration says that after all the investigations are completed, people will be allowed to read the Report. They are asked to be patient. But the families of the victims are anxious. Earlier on, the Secretary and a number of Members have spoken in support of the position of the Government and opposed my motion. They have said again and again that some of the family members of the victims are considering filing a civil action to pursue responsibilities. Members, please step in the shoes of these family members, and if I were Mrs KOO and if I were the family members whom certain Members say that are representing, I will be on tenterhooks, prepared to do anything. The Government has said that the Report will not be made public because an investigation has yet to be completed. And so Members are not allowed to read the Report. It suggests that civil proceedings for damages can be instituted. LEGISLATIVE COUNCIL ─ 11 June 2014 14971

Then will they do so? Of course they will. But that does not mean they oppose invoking the P&P Ordinance to demand that the Report be made available to them.

I have cited the view of certain family members of the victims and relayed their worries. They have shown reservations about the civil proceedings as suggested by the Government and also a concern for it. And they have also put forward their views on those family members who do not institute any civil proceedings for a claim. They consider that their right to know is neglected. When Members are not in the Chamber or if they cannot hear or choose to hear only statements from one side, they are perfectly entitled to do so. Members will want to find out the truth and I firmly believe in the legal system, the judicial system, the tradition of the rule of law, as well as the core values of Hong Kong, so I will definitely think that there is no contradiction and conflict between legal proceedings and making the Report public.

President, I have with me the Investigation Report written by Mr Justice Michael LUNN and it was published in April 2013. Actually, there was discussion like this at that time. If there are Members who do not know or understand, maybe I have too high an expectation of Members or I have assumed that Members all know the disputes behind it. At that time, the Report was published based on the principle that it would not prejudice the criminal prosecution cases. The names are made public and this would not affect the criminal investigation. Then why has the Department of Justice moved the goalposts this time and lowered the criteria for making the Report public to not prejudicing the criminal investigation in progress and even to not prejudicing the disciplinary proceedings against civil servants? How long will these two proceedings take? The questions have been addressed, only that there are Members who are stubborn and there are even Members who stand in opposition to the family members of the victims. Mrs KOO and the family members are very brave. They have to bear tremendous pressure and questions coming from all quarters. Hats off to them.

President, some Honourable colleagues said that the Government is willing to adopt the approach of asking Members to sign a confidentiality agreement before they are allowed to read part of the Report. It also said that it is studying how this confidentiality agreement is to be formulated and how it can comply with some of the mandatory requirements in the Personal Data (Privacy) 14972 LEGISLATIVE COUNCIL ─ 11 June 2014

Ordinance, in that certain personal data should be deleted. President, I am surprised to find that the Government has not only moved the goalposts adopted in the Report of Mr Justice Michael LUNN and the department's internal Investigation Report. From the paper which the Government provides to the Panel on Economic Development at the end of April, it says in paragraph 14 that the position of the Government at that time was: "redaction of the Report for public disclosure purpose is not practicable since the bulk of the Report (containing the identifiable personal data of the officers under investigation, details of the specific acts of the officers and the incidents related to the handling of the Lamma IV) will have to be redacted … The excision of these materials will leave behind a Report which makes very little coherent sense."

What the Government said then is that the redaction of the Report is not practicable and if it is redacted, it will have to redact almost all the Report. Hence the Report will not be coherent and it will not make sense. I am surprised that Members also moved the goalposts in tandem with the Government. Now they say that they have no questions. The Government says that a confidentiality agreement will be arranged and part of the materials will be redacted for Members' perusal. But at that time the Government said that the Report would make very little coherent sense if the bulk of it was redacted. Do Members think that they have succeeded in obtaining something and they should be happy and sign that confidentiality agreement? But what they get are materials which do not mean anything after perusal. So how can they be said to have the commitment that is fitting as a Member of this Council?

Just how long the Government wants to make a fool of us? Just how long does it want to fool the public? Why does it have to move the goalposts this way and change the rules of the game so that the public disclosure of the Report will be delayed? President, obviously this motion moved by me today cannot be passed. But that does not mean that the fight of the family members of the victims is over, nor does it mean that after the Government has used all these methods to cause this motion to be negatived, it can then buy time. If there is no progress at all on this issue after the summer recess, I can give an advance notice here that I will propose again that we deploy our imperial sword to force the Government to disclose all the materials of the Report for public perusal.

This imperial sword of the Legislative Council has its own power and we as Members of this Council should take public interest into careful consideration LEGISLATIVE COUNCIL ─ 11 June 2014 14973 and propose that a debate be conducted on this premise. The family members of the victims of the Lamma Island tragedy also have such a wish. What they are doing is that they are using the only channel offered by the Government to them and trying to get close to the truth. I do not wish to see that come October when this Council resumes, I will have to show this to Secretary Prof Anthony CHEUNG in order to demand a full disclosure of the Report to the public and get close to the truth of the matter.

President, I so submit. We will never give up our insistence on knowing the truth.

PRESIDENT (in Cantonese): I now put the question to you and that is: That the motion moved by Dr Kenneth CHAN be passed. Will those in favour please raise their hands?

(Members raised their hands)

PRESIDENT (in Cantonese): Those against please raise their hands.

(Members raised their hands)

Dr Kenneth CHAN rose to claim a division.

PRESIDENT (in Cantonese): Dr Kenneth CHAN has claimed a division. The division bell will ring for five minutes.

PRESIDENT (in Cantonese): Will Members please proceed to vote.

PRESIDENT (in Cantonese): Will Members please check their votes. If there are no queries, voting shall now stop and the result will be displayed.

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Functional Constituencies:

Mr Albert HO, Mr James TO, Mr Frederick FUNG, Prof Joseph LEE, Mr Charles Peter MOK, Mr Dennis KWOK and Mr IP Kin-yuen voted for the motion.

Mr Vincent FANG, Mr Andrew LEUNG, Mr WONG Ting-kwong, Ms Starry LEE, Mr CHAN Kin-por, Mr IP Kwok-him, Mr NG Leung-sing, Mr Steven HO, Mr Frankie YICK, Mr YIU Si-wing, Mr MA Fung-kwok, Mr KWOK Wai-keung, Mr Martin LIAO, Mr POON Siu-ping, Mr TANG Ka-piu, Ir Dr LO Wai-kwok and Mr Tony TSE voted against the motion.

Geographical Constituencies:

Mr LEE Cheuk-yan, Ms Emily LAU, Mr Ronny TONG, Ms Cyd HO, Mr Paul TSE, Mr Alan LEONG, Mr Albert CHAN, Ms Claudia MO, Mr WU Chi-wai, Mr Gary FAN, Mr CHAN Chi-chuen, Dr Kenneth CHAN, Dr KWOK Ka-ki, Dr Fernando CHEUNG, Mr SIN Chung-kai and Dr Helena WONG voted for the motion.

Mr CHAN Kam-lam, Mr TAM Yiu-chung, Mr WONG Kwok-hing, Mr CHAN Hak-kan, Dr Pricilla LEUNG, Mr CHAN Han-pan, Mr LEUNG Che-cheung, Miss Alice MAK, Dr Elizabeth QUAT and Dr CHIANG Lai-wan voted against the motion.

THE PRESIDENT, Mr Jasper TSANG, did not cast any vote.

THE PRESIDENT announced that among the Members returned by functional constituencies, 24 were present, seven were in favour of the motion and 17 against it; while among the Members returned by geographical constituencies through direct elections, 27 were present, 16 were in favour of the motion and 10 against it. Since the question was not agreed by a majority of each of the two groups of Members present, he therefore declared that the motion was negatived.

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PRESIDENT (in Cantonese): Two motion debates with no legislative effect. I have accepted the recommendations of the House Committee: that is, movers of the motions each may speak, including making a reply, for up to 15 minutes, and have another five minutes to speak on the amendments; movers of the amendments each may speak for up to 10 minutes; and other Members each may speak for up to seven minutes. I am obliged to direct any Member speaking in excess of the specified time to discontinue.

First motion debate: Formulating a comprehensive elderly care policy to deal with population ageing.

Members who wish to speak in the motion debate will please press the "Request to speak" button.

I now call upon Mr TANG Ka-piu to speak and move the motion.

FORMULATING A COMPREHENSIVE ELDERLY CARE POLICY TO DEAL WITH POPULATION AGEING

MR TANG KA-PIU (in Cantonese): President, I have noticed that my motion was originally scheduled to be debated on 30 April 2014, which means that it would be the first motion debate with no legislative effect to be held after the debate on the Appropriation Bill. It is most regrettable that six weeks have been spent on that debate and as such, it has made it difficult for us to make preparation for this debate. Initially, I have invited some carers of patients with dementia ― I have certainly urged the Government in my motion to rename the Chinese rendition of dementia from "老人癡呆症" to "認知障礙症" which does not have any labelling effect and is a more accurate term ― to participate in a petition tomorrow to draw the Government's attention to their needs. I anticipated that this motion debate would be held tomorrow, but it is now conducted earlier than I have expected. As we will probably not be voting on the motion this evening, I hope the carers will still come to the Legislative Council Complex tomorrow to draw Members attention to their needs. I anticipate that Members would support my motion.

Surprisingly, although my original motion and the amendments proposed by other Members have put forward demands for medical service, I do not see any representative from the Food and Health Bureau present in this Chamber to 14976 LEGISLATIVE COUNCIL ─ 11 June 2014 listen to Members' speeches. I do not know whether they cannot attend the meeting because of short notice. I have expected that a representative from the Food and Health Bureau would at least be present to respond to our request for renaming the Chinese rendition of dementia because the matter has been discussed for years.

Turning back to the main points, the subject of the motion is "Formulating a comprehensive elderly care policy to deal with population ageing". The idea came about after the consultation document on population policy was released by the Chief Secretary for Administration. In our view, the document has put too much emphasis on economic and development factors to the neglect of one important point. Given that we all acknowledge that Hong Kong's population is ageing, has the Government made adequate preparation to take care of the elderly in respect of manpower training, identification of sites for building residential care homes for the elderly (RCHEs) and allocation of funds. Is there a better approach to ease the current imbalanced situation? What kind of imbalance situation am I referring to? In fact, as early as 2009, the Elderly Commission pointed out that almost 7% of all elderly persons in Hong Kong lived in RCHEs (subsidized or private), and the ratio was probably higher than any other developed places in the world. Furthermore, we have noticed that the demand for RCHEs has been increasing. Why does it happen despite the Government's clear policy to promote "ageing in place as the core, institutional care as back-up"? Is it because the RCHEs are so attractive that our elders have swarmed into these homes, or is it because they have no other choices because supporting services for ageing in place are inadequate and poor? These are the main questions which we would raise today with a view to supplement the missing part in the consultation document on population policy, a very important document.

Before I share some figures with Members, I would like to give special thanks to Dr Fernando CHEUNG who has been the Chairman of the Joint Subcommittee on Long-term Care Policy (the Subcommittee) for more than a year. I am the Vice Chairman of the Subcommittee. The Subcommittee has discussed many subject matters on long-term care for the elderly. I am particularly concerned about our elders because their situation needs urgent attention. By 2041, the number of persons aged 65 or above will reach 2.55 million, but people aged 65 to 70 may not be considered as elderly persons at that time, because there are so many of them and they still have to work for a living. I will quote some simple figures obtained by the Subcommittee from the Government to show Members how serious the problem is. The frequently LEGISLATIVE COUNCIL ─ 11 June 2014 14977 asked question is: How many elderly persons have passed away before they are yet to be allocated a place in subsidized RCHEs? The number was 4 068 in 2007, 5 157 in 2011 and the numbers in 2012 and 2013 have not been released. However, I believe the numbers will exceed 5 000 or may almost reach 6 000.

As Members can see, within a short period of five years, these disturbing figures have increased from 4 000-plus in 2007 to 5 000-plus in 2011. Many people have suggested that given the large number of elderly persons on the waiting list, it is inevitable that some passed away before they were allocated a place in RCHEs. However, elderly persons have to be assessed as having moderate and severe levels of impairment under the Standardized Care Need Assessment Mechanism for the Elderly Services before they become eligible to be included in the waiting list for subsidized RCHEs. At present, the average age of applicants on the waiting list is 82. In fact, many elderly persons have been looking after themselves until they suffer from some major illnesses or accidents, and hence they have no choice but to wait for subsidized RCHEs. Their average age is 82.

Due to the slow pace of construction, the supply of RCHEs has fallen far short of the demand. This week, the Government announced the plan to build new RCHEs. In short, according to government figures, only about 2 200 places can be provided by constructing new subsidized RCHEs from 2001 to 2017. Certainly, the Government may probably say that it can at least provide several thousand RCHE places, but what kind of places are they? Some places are bought from private RCHEs. That is why I consider that the financial factor is involved in addressing the problem of population ageing. At present, 29 441 elderly persons are waiting for RCHE places. Suppose all of them can be accommodated in RCHEs, what will be the additional expenditure per month or per year? The amount will be $4.9 billion. If the expenditure on current services provided to needy elderly persons is also included, the amount will reach $6 billion, which is not a small sum. Certainly, the amount of expenditure will be even greater by 2041. Therefore, I hope that the Government can give us a clear account on its plans to provide elderly care in respect of manpower, land, policies and long-term financing. It should not simply tell us that it will develop "the grey-hair market".

If there are 1 million persons aged 65 or above in the future ― in fact, the number has almost reached 1 million at present ― and among them, about 6% to 7% are in need of long-term care as assessed under the Standardized Care Need Assessment Mechanism for the Elderly Services, what can the Government do to 14978 LEGISLATIVE COUNCIL ─ 11 June 2014 prevent this group of elderly persons who have no income from becoming more underprivileged because of their poor health conditions? Some Honourable colleagues are simple-minded, thinking that the problem of manpower shortage in the elderly care industry can be resolved simply by labour importation. The Hong Kong Federation of Trade Unions does not agree. As a social worker, I sometimes wonder why employees in RCHEs are unhappy in their work. If employers can employ foreign workers, they can easily exploit local workers in RCHEs, including overtime work without pay or even pay reduction. I believe that Members will surely know that there is no reason why such problems will not arise. If we rely on some very young but unhappy workers to look after the elderly in RCHEs, will this be desirable?

Therefore, we sincerely hope that the Government will tackle the problem by providing manpower training, so that elderly care can be developed into a skilled occupation which has a social status and a career ladder. The Government should immediately commence work in this area, so to convince middle-aged or young people that joining this industry is a good choice as they can help others as well as have opportunities for career development. The Government should not resort to labour importation whenever it faces a manpower shortage problem because such a measure will lower the general wage level of local workers in the industry. The existing workers may not lose their jobs, but their wages will surely be reduced. Therefore, this subject matter is directly related to the issue of labour.

More importantly, I think all of us should endeavor to promote the well-being of the elderly. As I mentioned earlier, the number of elderly persons living in RCHEs is out of proportion. In fact, the Elderly Commission pointed out clearly in its report in 2009 that the percentage of elderly persons living in RCHEs was too high. Considering that there are many disturbing news about private RCHEs in Hong Kong, do we really think that our elders like to live in RCHEs? At this point, I have to criticize a certain private RCHE in the North District again. At the end of last year, a courageous and outspoken staff member revealed that some employees of the RCHE had been treating the elderly residents badly. Of course, the Government had taken immediate actions, but the operator of the RCHE fired the informer. Such a situation is worrying because I can be sure that no elderly person likes to live in RCHEs. However, why are there such a high percentage of elderly persons living in RCHEs? That is because the work to facilitate ageing in place has not been effective.

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During the discussion of the Panel on Welfare Services held on Monday this week, it was mentioned that the Government has gradually built up a range of community care services (that is, enhanced home and community care services) over the past 10 years, which includes showering or bathing, delivery of meals, physiotherapy treatment, dispensing medicines and helping elderly persons to enhance their relationships with their family members. However, regrettably, the first step taken by the Government was wrong in awarding the service contract to the lowest bidders. Of course, the Government responded that it was not true as a weighting of only 20% was attached to costs, while 80% was attached to the services provided. Nevertheless, as told by many social workers and front-line carers, it takes five or six or even 10 years for an elderly person to establish a relationship with an organization and its staff. When services are provided by another organization or by different staff members of the same organization, the elderly persons will feel uneasy as their sense of privacy has been infringed. The reason is that many services, such as showering and physiotherapy treatment, involve the private body parts of elderly persons. If there are frequent changes of service providers, the elderly persons may feel offended and it will be impossible for them to establish good relationships and trust with the service providers. Therefore, I hope that the SAR Government can consider this point for two reasons. First, if proper community care services can be provided, the pressure on providing places in RCHEs can be relieved. Second, it will also be in the best interests of the elderly.

In addition, the costs of providing the abovementioned community care services are, comparatively speaking, much lower now. Of course, there are certain practices to which we object, for example, many workers providing the services have not received any pay rise. Why do I say that the costs are much lower now? According to the figures provided by the Government, in 2003-2004, the average cost of providing services to an elderly person is $3,800, but it has been reduced to $3,600 this year. The cost has been decreased but not increased after 10 years. Certainly, some service providers may be efficient as they can take care of more elderly persons with the existing number of staff members, but the indirect consequences are that the elderly persons will get smaller portions of food and front-line workers will certainly not get any pay rise. Why do workers continue to provide service then? The reason is that they have established a relationship with the elderly persons. As the Government will provide a total of 7 000-plus places of community care services soon, we hope that it can regularize the funding arrangement, abolish the tender system and respect the relationship between the carers and the elderly persons.

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Finally, I would like to talk about dementia in particular. I hereby urge the SAR Government to direct the Food and Health Bureau to take the lead in renaming the Chinese rendition of this disease which literally means senile and stupid. First, not all patients with dementia are senile and there is a tendency that people suffering from the disease are getting younger. At present, about 5% of patients suffering from dementia are below the age of 60. Second, patients with dementia are not stupid. In fact, patients suffering from dementia in the early and middle stages are quite smart and one may not notice that they are suffering from the disease after conversing with them for 10 minutes. Besides, they are energetic and will not sit quietly by themselves.

However, many organizations (including the World Health Organization) published a global report on dementia in 2013 in which they had renamed the Chinese rendition of the disease to "失智症" (cognitive impairment). The report pointed out that resources allocated to care for patients with dementia all over the world accounted for 1.01% of the gross world product. What are the reasons for that? These patients are leading a life with day and night being reversed and if they are not looked after intensively, they may leave their home and wander around or they may have an accident at home. Therefore, many carers have to quit their jobs and change their way of life to look after these patients round the clock. Many family members of the patients have asked for more support, especially when the conditions of the patients have not worsened to a point which require institutional care, that is, when they are still in the early or middle stages of dementia.

Certainly, the carers' allowance of $2,000 is only a drop in the bucket. I hope the Government can raise the level of carers' allowance in order to meet their needs. More importantly, I hope that the Government can rename the Chinese rendition of dementia. It is important to get the name right, otherwise, how can the Government carry out public education to inform the public of the seriousness, unpredictability and prevalence of the disease? As it is estimated that more than 200 000 elderly persons will be suffering from dementia in 2036, the Government has to face the problem squarely.

Thank you, President.

PRESIDENT (in Cantonese): Mr TANG, you have already used up your speaking time. Please move your motion now.

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MR TANG KA-PIU (in Cantonese): President, I move the motion on "Formulating a comprehensive elderly care policy to deal with population ageing".

Mr TANG Ka-piu moved the following motion: (Translation)

"That, with the rapid ageing of Hong Kong's population, the demand for elderly care services in society continues to increase, but the policy strategies to deal with demographic challenges proposed earlier by the Steering Committee on Population Policy make no mention of elderly care services in the future; in this connection, this Council urges the Government to immediately formulate a comprehensive elderly care policy, make detailed planning for elderly care services in the future and promote collaboration between the medical and welfare sectors; the contents should include:

Service planning－

(1) based on projections on the proportion and growth of elderly population in the future, to formulate medium- and long-term planning for elderly care services in the next 10 and 20 years, and on this basis, to reserve lands for developing elderly care services and train manpower, so as to ensure that social demand for community care services and residential care services for the elderly can be met every year;

(2) to make stronger efforts to implement projects on redeveloping residential care homes for the elderly and constructing new ones, and reserve lands in more public and private development projects for building residential care homes for the elderly, so as to shorten elderly persons' waiting time for residential care homes for the elderly and reduce the number of elderly persons who have yet to be allocated a place in residential care homes for the elderly when they passed away;

(3) based on the proportions of the elderly population in various districts, to enhance community care services, including allocating additional resources to expand the existing integrated home care 14982 LEGISLATIVE COUNCIL ─ 11 June 2014

services and day respite service for elders, and providing a certain number of places for emergency support services in various districts to deal with cases of serious nature and requiring immediate assistance;

Policy reform－

(4) to set up an inter-departmental office of long-term care services to co-ordinate the work of various departments which are responsible for elderly welfare, elderly care and elderly services;

(5) to immediately rename the Chinese rendition of dementia from '老 人癡呆症' to '認知障礙症', adopt the recommendations of the World Health Organization to formulate a comprehensive priority strategy to deal with dementia, and allocate resources to set up a dedicated service unit;

(6) to review the standardized care need assessment mechanism for elderly services, and triage elderly persons based on their actual care needs to enable them to receive suitable services as early as possible, and in turn effectively alleviate the problem of unduly long waiting time for services;

(7) to review the requirement on the area of floor space for each resident in newly constructed residential care homes for the elderly and day service centres for the elderly, so as to progressively enhance the care standard of elderly services;

(8) focusing on the segregation of the medical and welfare sectors in elderly care services at present, to strengthen healthcare and home care services in the community to support the care needs of elderly persons who are unable to get a place in residential care homes for the elderly, and in the three major directions of training, support and accreditation, formulate a dedicated policy on carers of the elderly, thereby perfecting the existing long-term care policy based on 'ageing in place';

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Manpower resources－

(9) based on the medium- and long-term planning for elderly care services, to project the manpower demand for the services, comprehensively assess afresh the existing policy of manpower resources development for elderly and care services, including reviewing the training, remuneration packages and career prospects for front-line carers in elderly services, and, apart from considering how to enhance the standard of the relevant services on the whole, also raise the social status of the industry, so as to attract more new entrants; and

(10) to review the bidding system for elderly service contracts to reduce cyclical wastage of manpower."

PRESIDENT (in Cantonese): I now propose the question to you and that is: That the motion moved by Mr TANG Ka-piu be passed.

PRESIDENT (in Cantonese): Five Members will move amendments to this motion. This Council will now proceed to a joint debate on the motion and the five amendments.

I will first call upon Mr Albert HO to speak, to be followed by Mr Frankie YICK, Dr Fernando CHEUNG, Mr CHEUNG Kwok-che and Dr KWOK Ka-ki respectively; but they may not move the amendments at this stage.

MR ALBERT HO (in Cantonese): President, the focus of the original motion proposed by Mr TANG Ka-piu today and the amendments arising from it is the rapid ageing of Hong Kong's population, what should we do to meet the challenges posed by an increasing need for an elderly care policy?

The original motion stresses on making detailed planning for elderly care services in the future and promoting collaboration between the medical and welfare sectors. Of the amendments proposed, Dr Fernando CHEUNG proposes that special care should be given to elderly persons with disabilities and elderly 14984 LEGISLATIVE COUNCIL ─ 11 June 2014 persons with chronic diseases and dementia who need long-term care. That is the focus of the debate. Certainly, a number of policies have been proposed by Members and I will discuss them accordingly.

In response to Mr TANG Ka-piu's proposal for detailed planning, one very important question is whether the Government has made adequate and comprehensive planning in formulating its social policies, particularly elderly care policies. I believe many Members will agree that for a long time, our elderly care policy lack comprehensive and systematic long-term planning and it fails to address the existing problems which are getting worse. In particular, we have to bear in mind that different elderly persons have different needs. Some elderly persons choose to age in place despite their poor health conditions; some with better health conditions choose to age in place, but they need some medical services such as those provided by elderly health centres; some elderly persons have to live in residential care homes for the elderly (RCHEs); some with poorer health conditions need infirmary beds; and some elderly persons living at home need to be cared for by family members because they suffer from chronic diseases or dementia, and so on. Has the Government comprehensively assessed the different needs of the elderly? How will the increasing need for these services affect their utilization in the next 10 or 15 years? What corresponding plans do we have in terms of manpower training and recruitment? If many facilities are needed in the future, does the Government have any planning on lands and on the design and development of such facilities?

The Government has indeed been criticized over a long period of time. Many elderly persons unfortunately passed away before they were allocated a place in RCHEs. They left this world with the sadness of not getting any better services which would enable them to lead a better life in their twilight years.

The Government has been criticized for years and I understand that Secretary CHEUNG has been making efforts in identifying sites for building RCHEs to provide residential care places in the next two or three years. However, he has not assured Members that there will be comprehensive planning which is particularly important because we think there is a need for formulating service indicators and pledges.

In terms of service indicators and pledges, the Government has to project the future needs for different services and the resources needed for providing such services and make planning for the future, in order to convince the community LEGISLATIVE COUNCIL ─ 11 June 2014 14985 that the elderly will be cared for. For example, the Government should convince us that elderly persons who need to live in RCHEs do not have to wait for an unreasonably long period of time. However, the Government has not advised or promised us whether it will formulate the relevant service indicators, or whether it will publish a social welfare white paper on more specific elderly care plans with explanations of the planning and assessment based on which the service indicators and criteria are formulated. I think these measures are absolutely necessary. Certainly, the Government has to estimate the financial commitment involved. It has to consider, for example, whether a reserve fund for the elderly population should be set up to meet the increasing need for medical services. These steps are important. I think the Government should make such planning for the community. A government which makes progress, honours its pledges and governs effectively should do what I have suggested.

As Members may know, the number of elderly persons waiting to be allocated a place in RCHEs has reached 30 000 and the average waiting time is 36 months. In 2004, the average number of elderly persons who had yet to be allocated a place in RCHEs when they passed away was 5 000 per year. Recently, the Government has introduced a voucher scheme on residential care services for the elderly which will be implemented in the next three years in three phases. Apart from increasing the number of voucher recipients by 3 000, which is a drop in a bucket, the number of places in subsidized RCHEs will also be increased. Although the pressure on RCHE places will be slightly alleviated, it is generally estimated that the number of elderly persons on the waiting list cannot be reduced by one sixth, in the light of the future increase in demand for such services arising from an ageing population. Will the Secretary tell us how many applicants on the waiting list will be reduced with the above measures? Is the estimate of one sixth wrong, or is he committed to honouring his pledge? Is there any plan to shorten the waiting time to a reasonable period?

In addition, given the number of places in day care centres in 2014, the average waiting time is nine months. As for integrated household services, the waiting time for frail applicants is five months. Although the waiting time is not long, it would be better if it can be shortened. We have not been able to obtain information on the waiting time for and the number of elderly applicants who are not frail. Can the Secretary provide us with such information? If he cannot, why are such figures unavailable? Is it because the authorities do not want to compile the figures and let the public know how big the demand is?

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Another area which we are concerned about is primary healthcare and nursing care for the elderly. As Members may know, many healthy elderly persons wish to register as members of elderly health centres. At present, there are 18 elderly health centres under the Department of Health which operate under the registration system. Unfortunately, there is an excessive demand for their membership. Many elderly persons want to become members of these centres, but the number of places is limited because the Government has not provided sufficient resources.

I have noticed that the waiting time for at least five out of the 18 elderly health centres exceeds 20 months and the average waiting time for all centres exceeds 10 months. The centres with the longest waiting time are as follows: 27.5 months in Wan Chai, almost 28 months in Tai Po, 25.5 months in Sha Tin and 23 months in Yau Tsim Mong. Though elderly health centres only provide general medical examination, health assessment, counselling, simple nursing cares in groups, health education and outreaching service, such services are important. If elderly persons can join these centres, they can enjoy more outdoor activities and they will at least receive assistance in understanding their health needs better. There is no reason why the Government should not expand these services significantly.

Dental service is a subject which Members have discussed for a long time. The Government has been providing only emergency dental services to the elderly over a long time. When an elderly person has a toothache problem, sometimes only analgesic treatment will be given; if they have dental abscess, treatment to reduce inflammation or tooth extraction will be provided. We urge the Government to extend the services to include crowning or filling for elderly persons. We understand that a non-government organization introduced a dental scheme in 2011, but most of the participants are RCHE residents and recipients of the Comprehensive Social Security Assistance. Given the current needs, I think such a scheme should be extended to all elderly persons because it is important to provide these services to those in need. Good oral and dental health is vital to ensure the quality of living of the elderly. We also ask the Government to provide medical treatment to elderly persons at half price. Thank you.

MR FRANKIE YICK (in Cantonese): President, just like many developed economies in the world, Hong Kong also has the social phenomena of population ageing and low fertility rate. In recent years, a number of singleton elders laid LEGISLATIVE COUNCIL ─ 11 June 2014 14987 dead at their homes for several days before they were found because they did not have any family members to look after them. The situation in Hong Kong is not as serious as it is in Japan, but we cannot neglect the importance of formulating a comprehensive elderly care policy.

A comprehensive elderly care policy should cover ageing in place, community care services, residential care services for the elderly, and so on. Everyone will get old and it is certainly desirable if one can age in place and be taken care of by family members. The elderly person will feel comfortable and happy. However, in many cases, no one in the family can afford the time to look after the elderly and the living environment is crowded. Therefore, ageing in place is not possible and the elderly person has to live in a residential care home for the elderly (RCHE).

As we all know, there has been a shortage of subsidized RCHE places in Hong Kong over a long period of time and the long waiting list has attracted strong criticisms. According to the information as at late April provided by the Social Welfare Department, about 30 000 elders were on the Central Waiting List for various types of subsidized RCHEs, among them, 23 000-plus were waiting for a place in care and attention homes. The average waiting time exceeded 20 months and more than 2 000 elders passed away each year while they were still on the waiting list.

If the Government can make better and more long-term planning for RCHE services, the problem will surely be alleviated. Therefore, in 2012, the Liberal Party proposed to the Government to issue elderly care vouchers of $5,000 every month to elderly persons waiting for subsidized RCHEs, so that they could choose suitable private RCHEs in Hong Kong or on the Mainland according to their individual needs. Today, the Liberal Party has put forward the proposal again in the amendment which we hope Members will support.

President, the tight supply of public RCHE places is a well-known problem. Apart from the problem of operating funds, both public and private institutions also face the problem of finding suitable sites for building RCHEs. The plan to operate a RCHE will sometimes be opposed by local residents for fear that property prices will fall as a result. The residents will then join forces with people from the district to raise strong objection. Hence, private RCHEs often face greater difficulties in finding suitable sites than public RCHEs.

14988 LEGISLATIVE COUNCIL ─ 11 June 2014

In recent years, some private RCHE operators intended to enhance the quality of their services and were willing to increase the cost of operation by renting shop premises in shopping centres of private housing estates. However, they suffered big losses as a result. A few years ago, a prospective RCHE operator rented some units in the shopping centre of Jubilee Garden in Sha Tin, and had spent about $1 million on renovation. However, as local residents strongly opposed the plan and joined force with a political party, the matter got out of control and the landlord revoked the lease under pressure. In the end, the prospective operator had to restore the units and lost more than $10 million.

Faced with the problems of high rent and difficulties in finding suitable sites, some private RCHE operators lease old buildings or village houses to operate RCHEs. Since the living environment is not as good as subsidized RCHEs and private RCHEs also charge higher fees, they are not well-received by the public. As the population of Hong Kong ages, there is an increasing demand for subsidized RCHE places. At present, there is already an imbalance in the demands for public and private RCHEs. The problem of "private RCHEs the elders stayed away, queuing for subsidized ones they passed away" has arisen.

The Social Welfare Department introduced the Enhanced Bought Place Scheme in 1998 to buy places from private RCHEs and upgrade their service quality by enhancing the staffing ratio and per capita space standards. In addition, it has increased the supply of subsidized RCHE places to shorten the waiting time. However, as at June last year, there were still about 12 500 vacant places in private RCHEs.

One of the reasons for so many vacant places in private RCHEs is the high fees charged by operators which are beyond the affordability of some families. In order to make full use of these vacancies, the Liberal Party proposed to the Government to issue elderly care vouchers of $5,000 every month to elderly persons waiting for subsidized RCHEs, so that they could choose to live in a suitable RCHE in the private market. The Chief Executive responded to the Liberal Party's request and stated in his latest policy address that the Government has earmarked about $800 million to meet the expenses incurred in issuing a total of 3 000 residential care service vouchers in three phases from 2015-2016, but details of the plan have not been formally announced. We hope that the Government will implement the plan as soon as possible.

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President, apart from shortage of RCHE places, shortage of front-line workers is also an important problem of elderly care services in Hong Kong. As obnoxious duties such as cleaning up excretions are involved, providing elderly care services has been considered as an obnoxious occupation. As there are very few new entrants, there is a problem of succession gap. After the implementation of the minimum wage, some care workers changed job and the problem of manpower shortage has become even more acute.

According to a survey conducted by the Hong Kong Council of Social Service last year, the wastage rate of care workers exceeded 20% and there was a shortage of about 1 000 care workers. Half of the existing home helpers and personal care workers were aged 50 to 59. That means a large number of them will retire in the next five years. Since there is a lack of new entrants to the sector, the vacancy rate will increase rapidly. As manpower shortage will certainly affect the quality of care, the situation is worrying. Therefore, to alleviate manpower shortage in the sector and enhance the quality of service, the Government should completely lift the restrictions on labour importation in RCHEs under the Bought Place Scheme. In the long term, the Government should enhance manpower training so as to attract more new entrants.

Regarding the other amendments today, Dr KWOK Ka-ki requested the Government to immediately implement a universal retirement protection system. The Liberal Party has all along supported the implementation of a universal retirement protection system, but it objects to a system which adopts a pay-as-you-go scheme. Furthermore, Dr KWOK's amendment has not specified how the universal retirement protection system will be implemented. Therefore, the Liberal Party will abstain from voting on Dr KWOK's amendment. We will support all of the other amendments.

President, I so submit.

DR FERNANDO CHEUNG (in Cantonese): President, I would like to thank Mr TANG Ka-piu for proposing this motion on population ageing and an elderly care policy, which is a pressing issue indeed. Population ageing has been discussed for many years and we have already pointed out that this is a major challenge for Hong Kong as our population is ageing quite rapidly. At present, people aged over 65 accounted for 13% to 14% of the total population; but the ratio may increase to about one third 20 to 30 years later, which is a considerable 14990 LEGISLATIVE COUNCIL ─ 11 June 2014 increase. Unfortunately, the Government has a number of fallacies and misconceptions about population ageing; and I will talk about six fallacies.

First, the Government regards population ageing as a burden, which is rather negative. In the consultation document on population policy of the committee led by Donald TSANG, it was expressly stated that population ageing had adverse implications on economic development. Elderly persons were regarded as economic burdens because they did not engage in production but would instead use social services. This is tearing down the bridge after crossing the river. The document on population policy of this year is slightly better; it has not so explicitly stated that elderly persons are burdens in this city that cares only about money and wealth.

"An old person is like a treasure to a family". This is a traditional value of Chinese people and I do not want the Government to simply consider elderly persons as burdens in respect of the public coffers. It is true that a considerable number of elderly persons need nursing care because they are aged and frail, and suffer from various physical illness or difficulties that are beyond their control. This is an inevitable stage of life, but we have not addressed squarely the elderly care policy over the years and have ignored long-term care services.

The second fallacy is that we have not seriously implemented long-term care and considered that only the elderly need such services. The long-term care policies in foreign countries are based on needs rather than age. As Mr TANG Ka-piu has mentioned earlier, is dementia an illness only suffered by elderly persons? This is certainly not the case. In many cases, many dementia patients are only 40 to 50 years old and quite a number of chronically ill patients or persons with disabilities may already be in need of care after birth. Therefore, with regard to the provision of care services, the Government should not only focus on the elderly and invest the resources for care services solely on the elderly, to the neglect of other people of different ages and having the same needs. This approach is simply wrong.

Third, "ageing in place" is our slogan but our policy is oriented towards institutional care. This is the third fallacy. Of the public resources invested in the provision of elderly services, do we invest more resources in institutional care or in community care? These resources have been disproportionately invested in institutional care. The number of beds in residential care homes for people aged over 65 accounted for nearly 8%, which is the highest percentage among LEGISLATIVE COUNCIL ─ 11 June 2014 14991 advanced societies. The percentage is only 2% to 3% in quite a few advanced countries. Why does Hong Kong have a high percentage of 7% to 8%? As Mr TANG Ka-piu said a while ago, elderly persons do not want to live in residential care homes, but they have no other alternatives. Honourable colleagues can ask those Hong Kong people who have arranged their elderly family members to live in residential care homes: how many of them are happy and are willing to make such arrangement? I believe many families have experienced the pain and have helplessly made the choice. This is because we do not have sufficient services to support the elderly to age in place.

The Government has been engaged in empty talks. While it talks about "ageing in place", it actually thinks that it would be best for the elderly and their families to handle matters on their own, without involving the Government. In that case, the solutions can only be found in the market. In order to evade responsibilities for elderly care, the Government has created a market for private residential care homes for the elderly (RCHEs) which did not exist in the past. Nowadays, the private market has become the principal service provider, and 60% to 70% of places are provided by private RCHEs. The Government has gradually bought some places but they only take up 10%, and 60% are private places. Currently, over 5 000 people are waiting for subsidized places and each year, some people passed away before they were allocated a place in RCHE. While some people are painstakingly waiting for subsidized places, some private RCHEs only have an occupancy rate of 70%, and 30% of the places are vacant. There are intermediaries to arrange people to take up such places and they would collect commissions from those who are not familiar with the situation.

If there is an elderly family member who cannot take care of himself, and no other family members can take care of him, are there any choices? Why can't we provide better community care? What is the mystery of community care? I had provided such services for many years in the United States. Basically, such services include: first, set up a day centre to allow the elderly to have group activities during the day with assistance from different professionals; second, provide home care services to visit the elderly living at home and provide the necessary services; third, support the family members and carers in need. These three types of services are indispensable and the elderly basically do not need to be hospitalized if such three services are adequate. When I was in the United States, I participated in some programmes aiming to avoid admitting the elderly to RCHEs or hospitals as far as possible because any kind of institutional life would deprive the elderly of the autonomy for their activities. In Hong Kong, 14992 LEGISLATIVE COUNCIL ─ 11 June 2014 many RCHEs are not liveable. How can we allow the elderly to live in such places when we are so affluent?

Fourth, we try to solve the problems with various service vouchers. Mr Frankie YICK has even suggested giving each elderly person a service voucher worth $5,000. Is that really necessary? We are also providing such services and a CSSA recipient also receives $5,000, but do they have any choice? Eventually, they have to choose those places that we do not wish our parents to live in.

Arranging the elderly to spend their remaining years in the Mainland is another fallacy. What matter most to the elderly are health and family love. By sending elderly persons to live in the Mainland while their family members live in Hong Kong, is this a kind of attentive care? Although the elderly can enjoy beautiful scenery, they miss the company of their family members. Can we solve the problem in this way? This is only "out of sight, out of mind".

Even if plans are made for the construction of RCHEs to provide more places, the demands from people on the waiting list can never be met, and this approach is basically wrong. The completed RCHEs homes are all single-block buildings with no connection with the community, how can there be integrated community life? The elderly admitted to RCHEs are like being imprisoned. Though the environment of subsidized RCHEs is acceptable, the elderly are cut off from the outside world as if they are not members of the community. "Ageing in place" and "community integration" are merely slogans and empty words.

Lastly, the issue concerning the ageing of persons with intellectual disabilities has been discussed for years. An alliance has been formed to hold discussions with the Government for some time and it has even met with the Secretary twice. We have two requests as follows. First, the present policy is that once persons with intellectual disabilities are admitted to residential care homes, they would spend their remaining years in such homes. As these persons start ageing when they are over 40 years of age, the Government should take the needs as the basis for the provision of services; but this has yet to be done. Second, as carers are also getting old, how can their children be cared for after they passed away? Should the relevant legal system be improved? Yet, no improvement has been made so far.

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Hence, President, I hope the Government would listen to public opinion when it makes the relevant plans in the future.

President, I so submit.

MR CHEUNG KWOK-CHE (in Cantonese): President, I would like to thank Mr TANG Ka-piu for proposing this motion on "Formulating a comprehensive elderly care policy to deal with population ageing".

In our debate today, I believe I need not cite any data to illustrate the seriousness of the problem. I have proposed an amendment from the perspective of a social worker, in particular, I have mentioned about the specific operation so as to reflect the views of fellow social workers who have worked around the clock to serve elderly persons in Hong Kong. I would particularly focus on the miserable lives of those needy elderly persons in Hong Kong.

Two weeks ago, a few social welfare groups and I organized a forum on the Review and Outlook of Home Care Services at the Hong Kong Polytechnic University attended by more than 300 people. Why did so many people attend the forum? That is because almost all elderly service policy makers joined the forum, including Legislative Council Members and persons-in-charge of government departments and public bodies, such as the Social Welfare Department (SWD), the Labour and Welfare Bureau, the Rehabilitation Advisory Committee and the Elderly Commission. Members of the social welfare sector and service users have much to reflect to these policy makers whom we hardly meet. As a matter of fact, some colleagues told me after attending the forum that while academics and industry players have pointed out the crux of the existing elderly service policy, the remarks of workers in the industry, elderly persons and their family members were heartrending. I hope that government departments and policy makers would have heard their heartfelt words.

All along, the Government has pointed out that care in the community is an integral part of elderly services. Of course, the social welfare sector supports this saying, because the concept of allowing the elderly to spend their twilight years with their families in a familiar community is highly desirable. But the Government is just paying lip service without making substantial efforts. The Government only chants empty slogans without allocating resources to provide supporting services. Following the marketization of services, welfare expenditures have been reduced through vouchers and tenders for services, and 14994 LEGISLATIVE COUNCIL ─ 11 June 2014 the elderly are caught in a dilemma. A recent example is that the Government is inviting tenders for the Enhanced Home and Community Care Services as the current contract will expire in February next year. With new operators for the services, the elderly will have to adapt afresh. In fact, the Government has all along claimed that its elderly care policy is to provide continuum of care, with emphasis on consistency and one-stop services, thereby reducing the need for the elderly to receive alternative services when their physical conditions deteriorate. Since the implementation of the Enhanced Home and Community Care Services to mainly cater for the needs of frail elders in 2001, a re-tendering exercise was carried out in 2005, just four years later, leading to a change in operators for services in five areas in Hong Kong, and adversely affecting nearly 800 elderly persons. Thereafter, the service contracts have to be renewed once every three years, causing disturbance to the elderly and front-line social workers also feel very helpless.

In fact, social workers engaged in community care services for the elderly have low morale and the problem of staff wastage is serious. This is mainly due to the unreasonable policies and worse still, the quality of services has been seriously affected. As we all know, for elderly services and other social welfare services, establishing relationships with the service users and gaining their trust are extremely important to maintaining and enhancing the quality of services. Therefore, I ask the Government to abolish the tender system and include the Enhanced Home and Community Care Services as a regular subsidized project. In addition, the Government should listen to the views and difficulties of the industry, as well as review and integrate all kinds of community care services, so as to truly provide continuum of care.

President, in my amendment, I remind the Government that as an international member, it must fulfil its moral responsibility under the Political Declaration at the United Nation's Second World Assembly on Ageing and the Madrid International Plan of Action on Ageing 2002. Back in 1982, the United Nations convened the First World Assembly on Ageing, and it later adopted many resolutions, declarations and action plans related to the ageing problem, asking the international community to implement them so as to address the challenges of population ageing. The Political Declaration and the Madrid International Plan of Action on Ageing 2002 are documents recording the work and commitment of the governments of various countries towards solving population ageing. There are more than 100 proposals in the Madrid International Plan of Action. Hong Kong as one of the participants should LEGISLATIVE COUNCIL ─ 11 June 2014 14995 earnestly implement the Regional Action Plans but the SAR Government has absolutely been lagging behind in the implementation of the elderly policies in Hong Kong.

I would like to highlight another point about hostels for the elderly. Since 1992, the Government suspended the construction of new hostels for the elderly and it also stopped processing applications since 2003, and such hostels have transformed to accommodate frail elders. At that time, the industry had already pointed out that this practice did not allow elderly persons to apply when their physical conditions had not deteriorated, and when the elderly were in need of services, they could not immediately receive such services. I had doubted that the so-called transformation was just a means to reduce the waiting time for nursing homes, which was a tactic of covering up. Actually, the advantages of hostels for the elderly and elderly homes are that they can take care of elderly persons with self-care abilities and extend their stay in the community, which is a preferable mode of care. The current problem is that the Government has not invested adequate resources in long-term care services. Hence, it has to cut the flesh to cure a boil and put all the resources to one side. Just like everyone else, the elderly have diverse needs. I suggest that hostels for the elderly should be provided as an alternative of elderly services and the Government should develop diversified hostels for the elderly. Nevertheless, it must set aside resources for such purpose and should no longer play the trick of the so-called resource integration again.

Owing to time constraints, I would like to focus on the Standardized Care Need Assessment Mechanism for Elderly Services. In late 2000, the Government started implementing the assessment mechanism for the standardized assessment of the care needs of the elderly before providing appropriate long-term care services and making arrangements on waiting for residential care homes. However, the industry has all along questioned the effectiveness of the standardized assessment. On the one hand, no timely improvements have been made on the functions. For instance, the current assessment mechanism fails to effectively assess the needs of the elderly with cognitive disorders such that many patients fail to receive appropriate services. Also, the manpower shortage of the SWD has resulted in many applications not being processed, and elders in question cannot receive timely service. Another common criticism is that the Government, being the sole assessor, has become a gatekeeper of resources and has closed the door on those elderly persons who should be entitled for certain services.

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I would also like to raise a question on the development of services. The existing standardized assessment mechanism uses MDS-HC as an assessment tool. This tool has been used for more than 10 years and data on over 170 000 cases have been accumulated, including the clinical and demographic data on long-term care users. These data are very useful for the community to understand the characteristics and service needs of the elderly population. Nonetheless, as the database has not been properly utilized, the Government has failed to analyse the nature of the cases and make accurate judgment, and has therefore failed to provide appropriate services. In reply to my question on the Budget this year, the SWD said that the authorities do not have record of the number of elderly persons with cognitive disorders in Hong Kong ― I do not believe ― and they also do not have data on the number of elders with moderate impairment or severe impairment. The Government has derived these data from its analysis of the 170 000 cases, but as there may be policy implications if it publishes these figures and may exert community pressure on the development of services; such data have not been released. In 2011, in the report on the consultancy study of the Community Care Services for the Elderly conducted by the Sau Po Centre on Ageing of the University of Hong Kong, it was suggested that the Government should review how the standardized assessment mechanism would affect long-term service planning. Yet, the Government has, as usual, closed its ears. Therefore, I once again ask the Government to disclose, at least to the academic sectors, the primary data of the MDS-HC assessment tool, take the initiative to collate and analyse the relevant information, as well as assess and adjust the existing services for reference in future planning and the implementation of new services.

President, just like other social welfare services, elderly services in Hong Kong are directly victimized by the Government's blind adherence to marketization. Thank you, President.

DR KWOK KA-KI (in Cantonese): President, first of all, I would like to thank Mr TANG Ka-piu for proposing this motion. As Mr TANG has said, I am a bit disappointed today because only the Secretary for Labour and Welfare is present. The original motion and many amendments of other Members have pointed out that elderly services cannot be separated from healthcare and social services. The current situation precisely shows that the Government is not keen on this task; otherwise, Secretary Matthew CHEUNG will not be the only Director of LEGISLATIVE COUNCIL ─ 11 June 2014 14997

Bureau present. We think that Secretary Matthew CHEUNG may turn a deaf ear to some of our views; but Secretary Dr KO Wing-man is not present.

Regarding the problem of an ageing population, we originally had some expectations early this year because the Chief Secretary for Administration, Mrs Carrie LAM, has conducted a population policy review. However, while the community has high expectations, the so-called consultation and review turned out to be "loud thunder, little rain". Apart from pointing out a larger population of elderly persons, a declining labour force and a higher elderly dependency ratio, nothing substantive has been mentioned. Last year, the community expected the Government to make appropriate arrangements for the retirement protection for the elderly. Before assumption of office, Chief Executive LEUNG Chun-ying expressed the hope that appropriate arrangements would be made for the elderly. This is the last point in my amendment about the universal retirement protection system that is opposed by the industrial and commercial sectors. However, the Government has not responded, and concerning the population policy or the most controversial issue of this Council … we all know that the Finance Committee is now having a filibuster. One of the most important points made by Mr LEUNG Kwok-hung, and to which we also agree, is that the Government has refused to provide the elderly with appropriate and sustainable retirement protection though it is well capable and have sufficient resources to do so. I am very disappointed with the Government's performance.

As Dr Fernando CHEUNG has mentioned, the current elderly services mainly focus on residential care. The reason is simple enough. There is a common saying that "out of sight, out of mind". When the Government fails to take care of the elderly in the areas of healthcare and welfare, the best approach is to send all elderly persons to residential care homes for the elderly (RCHEs), and 70% of RCHEs are privately run, and the Government only provides meagre CSSA payments to elderly persons. A number of Members, including Mr Frankie YICK, have pointed out that we should enhance training and some even say that we should import workers as RCHEs have difficulties in staff recruitment. How do RCHEs recruit staff? A private RCHE charges an elderly person more than $5,000 a month but it even cannot provide the most basic services. Since these RCHEs have to make profits, they have to reduce expenditures as far as possible. We can imagine the quality of these RCHEs, to put it bluntly, they can only mind their own business.

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We have visited many private RCHEs and basically, their conditions are appalling. Some elderly persons are tied up and no one clean up their faeces. For those elderly persons who are sick ― as known to all industry players ― in the hardest hit areas such as Tuen Mun Hospital, many elderly persons will only be sent to the hospital when they are in serious conditions and very often, nobody will visit them for a day or two. As these elderly persons are almost in a state of coma when they are sent to the hospital, their death rate is very high. Even if an elderly person suffers from peritonitis, he may not be attended for the whole day. These situations are solely caused by the Government because it fails to deal with the problems and it is well aware of the inadequacies. In fact, many people have been forced to accept this so-called best method because they simply cannot argue with the Government. Among the elderly persons waiting for RCHEs, 4 000 to 5 000 passed away each year before they were allocated a place. As many family members cannot afford to take care of elderly persons at home, social workers, including medical social workers, will ask them to contact the intermediaries when the elderly patients are discharged. In this way, everyone will feel relieved. The hospital is happy to discharge the elderly patients as the hospital beds can be vacated; the Government is also happy as the elderly patients have disappeared. Is this ostrich policy of burying the head into the sand a proper way to treat and repay our elderly who have worked hard for a lifetime to contribute to our society?

According to the Government, an integrated service will soon be implemented, but our long-standing request for an integrated organization to provide long-term elderly care services has not been accepted. Moreover, no review will be conducted on the Standardized Care Need Assessment Mechanism and no integrated healthcare services and residential care services will be introduced. The proposals in my amendment may appear minor, but they are very important issues for the elderly, including dental services for the elderly. I have specially examined the current situation of dental services. There are only 11 dental clinics in the territory. The only dental clinic on Hong Kong Island is in Kennedy Town, so elderly persons living in Siu Sai Wan or Chai Wan have to go to the clinic by bus. Moreover, there is only one dental clinic in Tai O on the Outlying Islands providing services once a month. Even if elderly persons can have an appointment, they should not be overjoy, as those dental clinics only provide emergency dental services, that is, they only provide extraction service, but not other services. The Government advises the elderly to use other services; for example, elderly dental services are provided under the CSSA scheme and the Community Care Fund. The dental services under the Community Care Fund are really awesome; of the $1.65 million spent, only LEGISLATIVE COUNCIL ─ 11 June 2014 14999

$510,000 were used on the provision of services to the elderly, the remaining $1.14 million (70%) were administrative expenses. This is what the Government has done for the elderly; yet it has no sense of shame to declare that it would continue to expand the services of the Community Care Fund.

The elderly persons are actually asking for very simple services. The Government now provides healthcare vouchers worth $2,000 to each elderly person and expects them to use that amount of money to seek treatment by dentists, western medical practitioners, Chinese medicine practitioners and physiotherapists. The Government is in fact treating the elderly as fools. The elders do not need healthcare vouchers, they only need the Government to provide some dental services that can really meet their needs. We have repeatedly requested the Government to provide the elderly with public dental services, but the Government has not given any response. Regarding the waiting times of 18 elderly health centres, let me give some examples: In Tai Po, the waiting time increased from 21.9 months in 2012 to 28.6 months in 2013, and the waiting time exceeds two years; in Wan Chai, the waiting time increased from 25.8 months to 27.8 months; in Shau Kei Wan, the waiting time increased from 14 months to 21 months; in Sai Ying Pun, the waiting time increased from 13 months to 22 months; and in Kowloon City, the waiting time increased from 16 months to 23 months, and the waiting time is nearly two years. This is a portrayal of the Government's response to the elderly's demands for services. Basically, the Government has ignored their demands.

In fact, many elderly persons said to us that they do not want healthcare vouchers. As healthcare vouchers are now issued in electronic form, many elderly persons have no idea of what they are, even though the Government asked them to imagine that they have these vouchers in hand. The elderly persons are perplexed and frightened, in particular, those singleton elders who cannot turn to family members and young people for help. We have suggested that the Government should print out these vouchers with their value written on them, but the Government is unwilling to do so, claiming that it is difficult to print out the vouchers and that elderly persons may lose them. In other words, the Government has not adopted the perspective of the elderly in dealing with this problem, and it only adopts an administrative approach. On the face of it, the problem seems to have been solved but we know very clearly that the Government has only swept the problem under the carpet. Nevertheless, whenever we accompany some friends to visit hospitals and RCHEs, we feel ashamed as many serious problems have been identified.

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The current healthcare services are seriously bullying the elderly. Recently, the Government has provided some figures to the Finance Committee. Let me read aloud some of these figures: the waiting time for orthopaedic patients is the longest, and the longest time in Hong Kong is 12 years, which is at the 90th percentile; and the same situations are found in Kowloon East, Kowloon Central, Kowloon West and the New Territories. The longest waiting time for Medicine services is eight years and the majority of these patients are elderly persons. We should feel ashamed when we discuss elderly care in this Chamber. Finally, I would like to respond to the point made by Mr Frankie YICK that all our proposals are realistic and the Government only needs to allocate $50 billion for start-up. The Government had handed out over $40 billion; if it is going to implement our proposals, it should have done so a few years ago (The buzzer sounded) …

I so submit. Thank you, President.

SUSPENSION OF MEETING

PRESIDENT (in Cantonese): I now suspend the Council until 2.30 pm tomorrow.

Suspended accordingly at three minutes past Ten o'clock.

LEGISLATIVE COUNCIL ─ 11 June 2014 A1

Appendix I

WRITTEN ANSWER

Written answer by the Secretary for Development to Mr SIN Chung-kai's supplementary question to Question 5

As regards the actual number of first-time buyers of residential property who are Hong Kong people since the introduction of demand-side management measures, upon consulting the relevant departments, it is discovered that the Government does not compile statistics on first-time buyers who are Hong Kong people. Thus, we are unable to provide the requested information.