LEGISLATIVE COUNCIL ― 18 June 2020 8559
OFFICIAL RECORD OF PROCEEDINGS
Thursday, 18 June 2020
The Council continued to meet at Nine o'clock
MEMBERS PRESENT:
THE PRESIDENT THE HONOURABLE ANDREW LEUNG KWAN-YUEN, G.B.S., J.P.
THE HONOURABLE LEUNG YIU-CHUNG
THE HONOURABLE ABRAHAM SHEK LAI-HIM, G.B.S., J.P.
THE HONOURABLE TOMMY CHEUNG YU-YAN, G.B.S., J.P.
PROF THE HONOURABLE JOSEPH LEE KOK-LONG, S.B.S., J.P.
THE HONOURABLE JEFFREY LAM KIN-FUNG, G.B.S., J.P.
THE HONOURABLE WONG TING-KWONG, G.B.S., J.P.
THE HONOURABLE STARRY LEE WAI-KING, S.B.S., J.P.
THE HONOURABLE CHAN HAK-KAN, B.B.S., J.P.
THE HONOURABLE CHAN KIN-POR, G.B.S., J.P.
DR THE HONOURABLE PRISCILLA LEUNG MEI-FUN, S.B.S., J.P.
THE HONOURABLE WONG KWOK-KIN, S.B.S., J.P.
THE HONOURABLE MRS REGINA IP LAU SUK-YEE, G.B.S., J.P.
8560 LEGISLATIVE COUNCIL ― 18 June 2020
THE HONOURABLE PAUL TSE WAI-CHUN, J.P.
THE HONOURABLE CLAUDIA MO
THE HONOURABLE MICHAEL TIEN PUK-SUN, B.B.S., J.P.
THE HONOURABLE STEVEN HO CHUN-YIN, B.B.S.
THE HONOURABLE FRANKIE YICK CHI-MING, S.B.S., J.P.
THE HONOURABLE WU CHI-WAI, M.H.
THE HONOURABLE YIU SI-WING, B.B.S.
THE HONOURABLE MA FUNG-KWOK, S.B.S., J.P.
THE HONOURABLE CHARLES PETER MOK, J.P.
THE HONOURABLE CHAN CHI-CHUEN
THE HONOURABLE CHAN HAN-PAN, B.B.S., J.P.
THE HONOURABLE LEUNG CHE-CHEUNG, S.B.S., M.H., J.P.
THE HONOURABLE KENNETH LEUNG
THE HONOURABLE ALICE MAK MEI-KUEN, B.B.S., J.P.
DR THE HONOURABLE KWOK KA-KI
THE HONOURABLE KWOK WAI-KEUNG, J.P.
THE HONOURABLE DENNIS KWOK WING-HANG
THE HONOURABLE CHRISTOPHER CHEUNG WAH-FUNG, S.B.S., J.P.
LEGISLATIVE COUNCIL ― 18 June 2020 8561
DR THE HONOURABLE FERNANDO CHEUNG CHIU-HUNG
DR THE HONOURABLE HELENA WONG PIK-WAN
THE HONOURABLE IP KIN-YUEN
THE HONOURABLE ELIZABETH QUAT, B.B.S., J.P.
THE HONOURABLE MARTIN LIAO CHEUNG-KONG, G.B.S., J.P.
THE HONOURABLE POON SIU-PING, B.B.S., M.H.
DR THE HONOURABLE CHIANG LAI-WAN, S.B.S., J.P.
IR DR THE HONOURABLE LO WAI-KWOK, S.B.S., M.H., J.P.
THE HONOURABLE CHUNG KWOK-PAN
THE HONOURABLE ALVIN YEUNG
THE HONOURABLE ANDREW WAN SIU-KIN
THE HONOURABLE CHU HOI-DICK
THE HONOURABLE JIMMY NG WING-KA, B.B.S., J.P.
DR THE HONOURABLE JUNIUS HO KWAN-YIU, J.P.
THE HONOURABLE LAM CHEUK-TING
THE HONOURABLE HOLDEN CHOW HO-DING
THE HONOURABLE SHIU KA-FAI, J.P.
THE HONOURABLE SHIU KA-CHUN
8562 LEGISLATIVE COUNCIL ― 18 June 2020
THE HONOURABLE WILSON OR CHONG-SHING, M.H.
THE HONOURABLE YUNG HOI-YAN, J.P.
DR THE HONOURABLE PIERRE CHAN
THE HONOURABLE CHAN CHUN-YING, J.P.
THE HONOURABLE TANYA CHAN
THE HONOURABLE CHEUNG KWOK-KWAN, J.P.
THE HONOURABLE HUI CHI-FUNG
THE HONOURABLE LUK CHUNG-HUNG, J.P.
THE HONOURABLE LAU KWOK-FAN, M.H.
THE HONOURABLE KENNETH LAU IP-KEUNG, B.B.S., M.H., J.P.
DR THE HONOURABLE CHENG CHUNG-TAI
THE HONOURABLE KWONG CHUN-YU
THE HONOURABLE JEREMY TAM MAN-HO
THE HONOURABLE VINCENT CHENG WING-SHUN, M.H., J.P.
THE HONOURABLE TONY TSE WAI-CHUEN, B.B.S.
THE HONOURABLE CHAN HOI-YAN
MEMBER ABSENT:
THE HONOURABLE JAMES TO KUN-SUN
LEGISLATIVE COUNCIL ― 18 June 2020 8563
PUBLIC OFFICERS ATTENDING:
THE HONOURABLE MATTHEW CHEUNG KIN-CHUNG, G.B.M., G.B.S., J.P. CHIEF SECRETARY FOR ADMINISTRATION
THE HONOURABLE TERESA CHENG YEUK-WAH, G.B.S., S.C., J.P. SECRETARY FOR JUSTICE
THE HONOURABLE EDWARD YAU TANG-WAH, G.B.S., J.P. SECRETARY FOR COMMERCE AND ECONOMIC DEVELOPMENT
THE HONOURABLE CHRISTOPHER HUI CHING-YU, J.P. SECRETARY FOR FINANCIAL SERVICES AND THE TREASURY
CLERKS IN ATTENDANCE:
MISS ODELIA LEUNG HING-YEE, DEPUTY SECRETARY GENERAL
MS ANITA SIT, ASSISTANT SECRETARY GENERAL
MISS FLORA TAI YIN-PING, ASSISTANT SECRETARY GENERAL
MR MATTHEW LOO, ASSISTANT SECRETARY GENERAL
8564 LEGISLATIVE COUNCIL ― 18 June 2020
9:00 am
Council then resumed.
GOVERNMENT BILLS
PRESIDENT (in Cantonese): This Council was adjourned at around 6:36 pm yesterday due to a lack of quorum. I now resume the meeting under Rules 17(6) and 14(4) of the Rules of Procedure to continue to deal with the unfinished business on the Agenda.
We will continue with the Third Reading debate on the Copyright (Amendment) Bill 2019.
Does any Member wish to speak?
(Mr CHAN Chi-chuen indicated a wish to raise a point of order)
PRESIDENT (in Cantonese): Mr CHAN Chi-chuen, what is your point of order?
MR CHAN CHI-CHUEN (in Cantonese): I request a headcount.
PRESIDENT (in Cantonese): 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)
Third Reading of Government Bill
COPYRIGHT (AMENDMENT) BILL 2019
PRESIDENT (in Cantonese): Secretary for Commerce and Economic Development, do you wish to speak again?
(The Secretary for Commerce and Economic Development indicated that he did not need to speak again)
LEGISLATIVE COUNCIL ― 18 June 2020 8565
PRESIDENT (in Cantonese): I now put the question to you and that is: That the Copyright (Amendment) Bill 2019 be read the Third time and do pass. Will those in favour please raise their hands?
(Members raised their hands)
PRESIDENT (in Cantonese): Those against please raise their hands.
(No hands raised)
Mr CHAN Chi-chuen rose to claim a division.
PRESIDENT (in Cantonese): Mr CHAN Chi-chuen 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.
Mr LEUNG Yiu-chung, Mr Abraham SHEK, Mr Tommy CHEUNG, Mr Jeffrey LAM, Mr WONG Ting-kwong, Ms Starry LEE, Mr CHAN Hak-kan, Mr CHAN Kin-por, Dr Priscilla LEUNG, Mr WONG Kwok-kin, Mrs Regina IP, Mr Paul TSE, Mr Steven HO, Mr Frankie YICK, Mr YIU Si-wing, Mr MA Fung-kwok, Mr Charles Peter MOK, Mr CHAN Chi-chuen, Mr LEUNG Che-cheung, Ms Alice MAK, Mr KWOK Wai-keung, Mr Christopher CHEUNG, Dr Fernando CHEUNG, Mr Martin LIAO, Mr POON Siu-ping, Dr CHIANG Lai-wan, Ir Dr LO Wai-kwok, Mr Alvin YEUNG, Mr Jimmy NG, Mr Holden CHOW, Mr SHIU Ka-fai, Mr SHIU Ka-chun, Mr Wilson OR, Mr CHAN Chun-ying, Mr CHEUNG Kwok-kwan, Mr LUK Chung-hung, Mr LAU Kwok-fan, Mr Kenneth LAU, Mr Vincent CHENG, Mr Tony TSE and Ms CHAN Hoi-yan voted for the motion.
8566 LEGISLATIVE COUNCIL ― 18 June 2020
THE PRESIDENT, Mr Andrew LEUNG, did not cast any vote.
THE PRESIDENT announced that there were 42 Members present and 41 were in favour of the motion. Since the question was agreed by a majority of the Members present, he therefore declared that the motion was passed.
CLERK (in Cantonese): Copyright (Amendment) Bill 2019.
Second Reading of Government Bills
Resumption of Second Reading Debate on Government Bill
PRESIDENT (in Cantonese): This Council resumes the Second Reading debate on the Supplementary Appropriation (2018-2019) Bill.
Stand-over item: Supplementary Appropriation (2018-2019) Bill (standing over from the meeting of 27 May 2020)
SUPPLEMENTARY APPROPRIATION (2018-2019) BILL
Resumption of debate on Second Reading which was moved on 30 October 2019
PRESIDENT (in Cantonese): Does any Member wish to speak?
MR ALVIN YEUNG (in Cantonese): President, I speak against the Supplementary Appropriation (2018-2019) Bill ("the Bill").
According to section 9 of the Public Finance Ordinance (Cap. 2), "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". I have proposed two amendments to the Bill to reduce respectively the supplementary appropriation for the Police Force and the Correctional Services Department, in the hope that abuses can be avoided. Regrettably, the LEGISLATIVE COUNCIL ― 18 June 2020 8567
Administration has, in accordance with the established practice, advised the Legislative Council President how my amendments should be dealt with. The Financial Services and the Treasury Bureau eventually opined that my amendments were not relevant to the subject matter of the Bill as they run contrary to and would change the fundamental principle of the Bill. Hence, my amendments violate Rule 57(4)(a) of the Rules of Procedure ("RoP") and should be inadmissible. President, after reading the letter repeatedly, I found that the subject matter they referred to is to seek approval for the supplementary appropriation of $36.753 billion, i.e. supplementary provisions for all departments in need. If any amendment will affect this appropriation of $36.753 billion, it may be inadmissible.
If Members think that supplementary appropriations should not be provided to spendthrift government departments which waste public money and cause public outrage by their work performance, why are they not allowed to propose amendments? In fact, this is the function of the Legislative Council under Articles 73(2) and (3) of the Basic Law to examine and approve budgets. It is a pity that the authorities surprisingly think that appropriations must be approved and cannot be reduced.
President, this Council passed the Appropriation Bill 2020, i.e. the Budget, on the 14th of last month. The Police Force and the Correctional Services Department have received considerable funding. If we think there are problems with the funding and we want to reduce the funding, are we really evil or have we breached the rules of this Council?
President, you later ruled that my amendments are not relevant to the subject matter of the Bill under RoP 57(4)(a) which specifies that "an amendment must be relevant to the subject matter of the bill and to the subject matter of the clause to which it relates". President, it turns out that reducing the supplementary appropriation has nothing to do with the provision and that the relevant amendments have digressed from the subject matter. This is indeed worrying and is this reasonable? I am not going to overturn the ruling, I just want to point out that the room for making amendments is indeed very restrictive. Is this a right approach?
Under RoP 57, Members and government officials can propose amendments to a bill in accordance with the relevant provisions, i.e. Members definitely have the right to propose amendments, and this Council will decide 8568 LEGISLATIVE COUNCIL ― 18 June 2020 whether these amendments are acceptable through "one person, one vote". The President ruled that my amendments have digressed from the subject matter, but I think the relevant "subject matter" seems to be very restrictive. Is it right for the decision to be made by just one person?
Turning back to the Police Force, in 2018-2019, while the estimate of expenditure of the Police Force was $19.7 billion, the actual expenditure was $20 billion, i.e. an overspending of about $300 million. The Government is now asking the Legislative Council to allocate $370 million to the Police Force. A few months ago, I asked the Government whether it had clandestinely allocated funds to the Police Force without seeking prior approval from the Legislative Council. It turned out that funds had actually been allocated. According to section 8(3) of the Public Finance Ordinance, the Financial Secretary may use the power delegated by the Finance Committee to allocate funds to government departments without subjecting to the consideration or approval by the Legislative Council and this power can be re-delegated to any public officer. Taking the financial year 2018-2019 as an example, the Police Force had clandestinely received an additional appropriation of $650 million under the arrangement of re-delegation of power. The sum was not approved by the Legislative Council and the Legislative Council had not been consulted. According to the information provided by the authorities, although about $4.7 million was offset by departmental surplus of the Police Force, more than $600 million had still been casually allocated to the Police Force. The Police Force had also quietly expanded its manpower during the year by creating 1 042 additional posts. This is why we can often see police officers. The Police Force has really substantially increased its manpower, and there are huge expenditures on salaries and overtime allowances. The Police Force can increase manpower at any time, almost without subjecting to a cap.
In addition, the Police Force received $83 million from other departments in 2018-2019. I have asked the authorities which departments have allocated funds to the Police Force and for what purposes. Despite my repeated requests, the authorities pretended that they have not heard of my requests and evaded giving a reply. In fact, $83 million is not a large sum. For example, in 2019-2020, the problem of police violence in Hong Kong was very serious. As countless rounds of tear gas were fired every week, the Police Force received $337 million from other departments, which was a record high in recent years. If we compare the amount of the past, it is like comparing Braemar Hill with Tai Mo Shan. The funding is nearly twice the five-year average.
LEGISLATIVE COUNCIL ― 18 June 2020 8569
To strengthen security at the Central Government Offices, the Police Force clandestinely received $161 million funding. How was this sum of money spent? The Police Force said that the funds were used to purchase large water-filled barriers for the Central Government Offices. As it turns out, even though the Administrative Officers are the cream of society with excellent academic qualifications, they did not know how to buy water-filled barriers and had to rely on the Police Force for the purchase. Are we fully utilizing human resources? These government departments are being taken advantage of as those water-filled barriers are purchased by them with the funds they received …
PRESIDENT (in Cantonese): Mr Alvin YEUNG, in the Second Reading debate of a bill, Members should discuss the general merits and principles of the bill. Therefore, Members should examine the Supplementary Appropriation (2018-2019) Bill as a whole and should not just focus on individual departments. Please return to the subject of this debate.
MR ALVIN YEUNG (in Cantonese): All right, President. I am citing an example to illustrate the merits and demerits of the Bill. If I only talk about the demerits of the Bill, I believe Hong Kong people need to know what the demerits are. The examples I cite can also give other Members more room for debate. If examples are not given, we lack a focus, making it difficult to have a debate. President, I believe you will certainly understand that.
In the case of water-filled barriers, they are purchased by government departments with the funds they received, but all of us think that these barriers are the properties of the Police Force, as the words "警隊" and "POLICE" are shown on these barriers. If the barriers are exclusively used by the Police Force, how come they are not purchased with Police funds but with the funds allocated to civilian government departments? Each year, the SAR Government allocates astronomical public funds to different departments, including the Police Force, through the Budget, and provisional appropriations and supplementary appropriations are also provided. Is it reasonable to allocate funding to other departments through re-delegation of power? President, the approval process has been criticized for lacking checks and balances. If we do not carefully examine the details and just discuss whether the supplementary appropriations are reasonable and whether there are merits and demerits, that will be inadequate.
8570 LEGISLATIVE COUNCIL ― 18 June 2020
In 2018-2019, the Police Force received a total funding of almost $700 million under clandestine means, and now it was granted $300 million by the Legislative Council. If this approach is reasonable, how can we play the gatekeeping role? We need to know and clearly understand the details, especially how funds are allocated among departments through delegation of power. This is the real loophole in public finance or the "short board" as people like to say nowadays.
A "short board" arises because Members cannot monitor or are unable to clearly understand the situation. After the appropriations are spent, supplementary appropriations are now sought from us, and moreover, the relevant sums were spent in 2018-2019, i.e. a year ago. President, if the Bill is not passed today, what should be done? Can we not allocate supplementary appropriations for amounts that had already been spent? President, based on the above points, the Civic Party opposes the Bill.
I so submit.
MR TONY TSE (in Cantonese): President, I speak to support the Second Reading of the Supplementary Appropriation (2018-2019) Bill ("the Bill").
The name of this Bill would easily lead members of the public to mistakenly think that the Government has overspent again and thus needs to seek supplementary appropriation from the Legislative Council. But this is not the case. The Bill only seeks to meet legal and accounting needs by keeping a clearer and more accurate accounting record of the allocations which had already been spent in 2018-2019 (i.e. two whole years ago).
In February every year, the Government introduces an appropriation bill, i.e. the budget, to the Legislative Council, listing out clearly the estimates of expenditure of various Policy Bureaux and departments for the following fiscal year. Nonetheless, regarding some expenditure items that require the approval of the Finance Committee separately, such as the estimated allocation for civil service pay adjustment and injection of funds into various government funds, the Government will earmark the provisions in the budget but will not include them under the heads of expenditure of the departments concerned, pending the formal approval of the Finance Committee. Therefore, at the end of each fiscal year, the Government will introduce an appropriation bill to amend the expenditure LEGISLATIVE COUNCIL ― 18 June 2020 8571 heads previously passed by the Legislative Council so as to comply with the legal and accounting requirements provided in the Public Finance Ordinance. Misunderstanding and inconsistencies can thus be avoided when the relevant legislation and departmental accounts are examined in future. The amendments do not involve any new expenditure because the supplementary provisions "to be appropriated" had already been approved by the Legislative Council and the Finance Committee and the provisions had most likely been spent long ago.
The purpose of the Bill, which resumes its Second Reading debate today, is precisely to amend the heads of expenditure of various bureaux and departments in 2018-2019 according to the approval given by the Legislative Council and the Finance Committee as early as two years ago. The Bill proposes to provide a supplementary appropriation of about $36.7 billion for expenditures including the civil service pay rise two years ago, injection into the Innovation and Technology Fund, etc. Such expenditures had already been approved by the Finance Committee and the Legislative Council as early as two years ago. The so-called "supplementary appropriation" is merely to add these provisions, which had already been spent, under the heads of expenditure of different bureaux and departments pursuant to the literal legal requirements.
Why do I still speak on the Second Reading of the Bill since it is purely an amendment of the accounts? This is because of the remarks made by Mr Alvin YEUNG, leader of the Civic Party, earlier. He said that he originally proposed two amendments to delete the supplementary appropriation to the Hong Kong Police Force and the Correctional Services Department ("CSD"), but the amendments were finally ruled by the President as going beyond the scope of the Bill and were thus inadmissible.
Being a barrister, Mr Alvin YEUNG has no reason for failing to understand the purpose and relevant statutory requirements of the Bill. But why does he still insist on doing so? Is it because he wants to pick on the Police Force and CSD to support and vent the rage of his "brothers" who, in the words of the "mutual destruction camp", have been arrested and sentenced for alleged violation of the law? President, I will not make any conjecture here. As I pointed out just now, the supplementary appropriation concerned had already been spent in 2018-2019. At that time, disturbances arising from the opposition to the proposed legislative amendments had not been developed into unlawful violent clashes, and no one had been arrested or sentenced for the relevant incidents. Yet, the "mutual destruction camp" has, as usual, ignored the facts and 8572 LEGISLATIVE COUNCIL ― 18 June 2020 justifications and demanded deleting from the accounts the expenditures of the Police Force and CSD which were approved two years ago, in an attempt to rewrite history and reverse what had happened.
When speaking last week, Mr Alvin YEUNG criticized us, the pro-establishment camp, as the "two whatevers", meaning that we support whatever proposals made by the Central Government and the SAR Government. First of all, I have to point out that this is not true. Other pro-establishment Members and I have opposed many policies and funding proposals of the Government, but we have also supported proposals which are constructive, well-grounded and conducive to Hong Kong. In my opinion, the "mutual destruction camp", which comprises some Members of this Council, is the genuine "whatever camp". The "mutual destruction camp" will oppose whatever allocation involving the Police Force; it will oppose allocating funds to whatever department that is not submissive; it will oppose remunerating and giving a pay rise to government officials whom they pick on; and furthermore, it will oppose whatever matters involving the Central Government, national safety, sovereignty, territorial integrity and national dignity.
President, it is indeed hard for me to imagine what this Council will become should the "mutual destruction camp" really take the majority seats in the Legislative Council, i.e. "35+" seats in its words? What will the whole Hong Kong become? With these remarks, I support that the Bill be read the Second time.
DR JUNIUS HO (in Cantonese): President, early in the morning, I had to listen to Mr Alvin YEUNG expressing his opposition to the Supplementary Appropriation (2018-2019) Bill ("the Bill"). I am not sure whether he is too obsessed with opposing the Police, but he should first take a look at how the $36.7 billion under the Bill will be used. Among this sum, $16.74 billion will be used to provide for education ($3.9 billion), universities ($680 million), the Social Welfare Department ($850 million), and so on. All these amounts will add up to $16.74 billion. Therefore, the supplementary appropriation is not solely for the Police. Meanwhile, $20 billion will be transferred to various funds to fill their small reserves. That is what the Government has been done for years.
LEGISLATIVE COUNCIL ― 18 June 2020 8573
If police brutality is the reason for Mr Alvin YEUNG to oppose the Bill, I would say that, firstly, his arguments are untenable; secondly, he has not studied the Bill; thirdly, he was talking nonsense here early in the morning to mislead the people; and fourthly, he has no conscience. Why can he live such a peaceful life today? That is because we have the Police to maintain law and order in Hong Kong. Yet, he blamed the Police for police brutality early in the morning. He should apply the same standards … If he does think that the Police are brutal, he should stand up to safeguard the world. Will he take this suggestion? He was completely silent on the situations in the United States. People like him have no conscience at all. All they want is that Hong Kong becomes the most chaotic place in the world, but their home must remain undisturbed. Please imagine, if his family members, old and young, are all "mutually destructed" by black-clad people, how will he feel? How can he do that? Being a legal practitioner, he does not have to be familiar with the words of sages but should have a good knowledge of the law. Yet, he has no regard for the law and is not even rational enough to insist on the maintenance of public order, positive social atmosphere and peace in Hong Kong. Anyone in the Civic Party is better than him. I mean it.
The government expenditure in 2018-2019 was some $460 billion; two years later, the estimates of expenditure have soared to $620 billion this year. The increase is worrying to me. Has he ever thought of why the Government has to spend as much as $620 billion? The answer is the "two independence" advocacies. What are the "two independence" advocacies? First, the advocacy of "Hong Kong independence and mutual destruction" caused Hong Kong's economy to contract by 8.9% in the first quarter of the year. Does he know that …
PRESIDENT (in Cantonese): Dr Junius HO, please return to the subject of this debate.
DR JUNIUS HO (in Cantonese): I am talking about the one-third (or some 30%) increase in expenditure from 2018-2019 to 2020-2021. What are the reasons for the surge? Is the surge in line with the principle of "keeping expenditure within the limits of revenues" under Article 107 of the Basic Law? That is also worrying. The Government should strive to avoid deficits, but a deficit has now resulted. I am worried that government deficits may go on for years instead of for one single year. 8574 LEGISLATIVE COUNCIL ― 18 June 2020
Noting that education and universities will be funded under the Bill, I do not want to support the supplementary appropriation either. What is the annual provision for universities? Over $12 billion, but universities still ask for an additional $680 million. What kinds of students have been nurtured by universities? Students who hurl bricks. I do not want to allocate funds to universities. I think it makes more sense for me to say so. In fact, the problem is not that police officers receive overtime allowances. They are just trying to maintain public order and social stability, and that is why they get paid for working overtime. It is a pity that Mr YEUNG cannot even tell the cause from effect. Here, I also have to ask: What is the "cause" of the Bill? Despite the education budget of over $10 billion, students opt for "mutual destruction". What kinds of students have been nurtured to become pillars of future society and what is their calibre? Are they rotten or are they as strong as steel? This is where the problem lies.
I do not feel like supporting the Bill, which provides $3.9 billion for the education sector. All education-related provisions should be cut by half. Education should only cater for the smart ones. Those who are not smart enough should not be eligible for subsidized education; they should work their way through school. Perhaps, that is too demanding. As long as they do not hurl bricks and cause havoc, that is good enough. Therefore, I …
PRESIDENT (in Cantonese): Dr Junius HO, you should know what the Supplementary Appropriation (2018-2019) Bill is about, so please return to the subject of this debate.
DR JUNIUS HO (in Cantonese): Yes, I know, and I am about to conclude my speech. I do not want to support the Bill. In particular, I do not want to see education getting a share of some $4 billion or $5 billion out of the $16.7 billion appropriation. We cannot keep funding education endlessly. Our society owes young people nothing. How can young people contribute to society? I am not talking about the present moment, but the days in the future. Thank you.
MR KWONG CHUN-YU (in Cantonese): President, we are now scrutinizing the Supplementary Appropriation (2018-2019) Bill ("the Bill"). First of all, what is "supplementary appropriation"? A supplementary appropriation will be proposed whenever the Government has gone over budget and needs to cover the LEGISLATIVE COUNCIL ― 18 June 2020 8575 shortfall with taxpayers' money. In this Bill, the Government asks for a supplementary appropriation of over $30 billion on top of its original budget as if Hong Kong's public coffers would never run out.
Soon after its recent funding application for over $5 billion to save Ocean Park, the Government has to inject $27.3 billion into Cathay Pacific Airways ("Cathay Pacific") while meeting the cost overrun of $10 billion in the Shatin to Central Link Project. Is the Carrie LAM Government a robber? The Government is indeed robbing the hardworking taxpayers by force as it is far too easy for the Government to draw from the reserves built by wage earners. Most ridiculous of all, the $20 billion or so injected into Cathay Pacific were drawn from the Land Fund …
PRESIDENT (in Cantonese): Mr KWONG Chun-yu, please return to the subject of this debate.
MR KWONG CHUN-YU (in Cantonese): President, I am giving an introduction to say that the Government has bypassed the Legislative Council by drawing from the Land Fund.
PRESIDENT (in Cantonese): The Council is now having the Second Reading debate on the Supplementary Appropriation (2018-2019) Bill.
MR KWONG CHUN-YU (in Cantonese): I see. We are now scrutinizing … President, please stay calm.
President, regarding this sum of over $30 billion―we must perform our gatekeeping role at the stage of Second Reading―the Hong Kong Police Force ("HKPF") is one of the government departments seeking supplementary provisions. However, HKPF appears to me the least eligible for additional funding, not to mention the amount it asks for is over $370 million. When it runs out of money, HKPF simply asks the Legislative Council for funds. On this point, the Government may argue that many departments also seek supplementary appropriation every year. Yes, that is true, but HKPF is the least eligible department to seek funding from the Legislative Council.
8576 LEGISLATIVE COUNCIL ― 18 June 2020
President, public money belongs to the people of Hong Kong. While the Government may say that the expenditure for 2018-2019 was already spent, HKPF, which is virtually the enemy of the people, dares to ask for over $300 million of supplementary provision without giving any justification as if the approval is a mere formality. HKPF can get whatever funding it wants, is that right? HKPF should indeed review its performance in the past year. Some frontline police officers called reporters "bad journalists" and questioned whether they did believe in the existence of the fourth estate. There was also a case in which seven police officers surrounded a young man for he looked arrogant and cocky. Consequently, when Carrie LAM was asked about this case on the next day, she could only call for inclusiveness. But how can we be inclusive in this case?
Up till now, the money is still in our pocket. President, the money will still be in taxpayers' pocket, in the public coffers and in the Treasury at the very last moment before the motion is put to vote. HKPF is a department which does not shoulder any responsibility for its wrongdoings. It accepted no responsibility after the police officers who had verbally abused the journalists were identified. Carrie LAM almost had to apologize and called for inclusiveness on the day after a young man was surrounded and insulted by police officers. All these cases are substantiated. As at June this year, 22 police officers were arrested, as compared to the total number of 24 for the whole of last year …
PRESIDENT (in Cantonese): Mr KWONG Chun-yu, please return to the subject of this debate.
The Appropriation Ordinance 2018 authorized the provision for each head of expenditure as provided for in the 2018-2019 estimates of expenditure. In the course of the 2018-2019 financial year, supplementary provisions for various heads of expenditure were approved by the Legislative Council's Finance Committee ("FC") under section 8 of the Public Finance Ordinance (Cap. 2). Therefore, the object of the Bill is not to seek additional funding, as clarified by Mr Tony TSE earlier. Mr KWONG, please return to the subject of this debate.
LEGISLATIVE COUNCIL ― 18 June 2020 8577
MR KWONG CHUN-YU (in Cantonese): President, I am well aware that the Bill is based on the previous appropriation bill and that the supplementary provision for civil service pay adjustment was approved by FC on 16 July 2017. President, I am certain aware of such facts, but I am now commenting on the general merits of the supplementary appropriation.
President, at this moment, the money is still in the pocket of taxpayers. I wish to tell members of the public that it is very inappropriate for funding to be approved in this way. Although the Bill is about expenses spent last year, I must draw the attention of people watching the live broadcast that HKPF cannot easily get the supplementary provision it wants under the current circumstances. I must give my introduction in a clear and organized way to facilitate public understanding.
President, just now, I was in the middle of my argument. This year, the various misdeeds of HKPF happen before our eyes. Four anti-triad officers are alleged of stealing $12.5 million worth of methamphetamine exhibits; one police officer staged a self-directed petrol bomb attack on Kwai Chung Police Station; one sergeant violated the group gathering restrictions by having a late night meal with his colleagues and hit his female colleague with a glass bottle …
PRESIDENT (in Cantonese): Mr KWONG Chun-yu, I have reminded you that the supplementary appropriation was already approved by FC and hence this Council is not scrutinizing any supplementary provisions. If you do not return to the subject of the Supplementary Appropriation (2018-2019) Bill, I will ask you to stop speaking. Please return to the subject of this debate.
MR KWONG CHUN-YU (in Cantonese): Brother Andrew, buddy, of course, we can literally understand the meaning of supplementary appropriation, but I have to explain to the public the reasons for our opposition, with HKPF being one of the departments seeking supplementary appropriation this time.
President, I will now return to the subject. I must say that members of the public are greatly reluctant to pay this sum of money and I will explain the reasons why. Despite the fact that the expenses were incurred in 2018-2019, the money is still in the pocket of taxpayers this year. Let me emphasize once again that the money is not yet out of sight. We may not know that a supplementary 8578 LEGISLATIVE COUNCIL ― 18 June 2020 appropriation always involves tens of billions of dollars because it was broken down into small amounts in the past and hence was not widely concerned by the people. Yet, this practice is actually inappropriate. President, if I have to comment on the merits of the supplementary appropriation, I must first talk about money.
Government departments can always get money from the Legislative Council by simply filling out a few forms. Who said that? Who is the approving authority? Under the Basic Law, Members of the Legislative Council have the power to approve public expenditure, and we should control public expenditure according to the Public Finance Ordinance. Of course, we are not having a budget debate now. Yet, when the Government is asking for tens of billions of dollars, we should at the very least raise a few questions. Members of the public may also wish to know how these tens of billions of dollars will be spent. While the Government had secured approval for its original budget, it has now run over budget. Personally, I hope the money will be used to help the poor and the elderly or improve the health care system. President, I must illustrate the pros and cons to the public.
The supplementary appropriation discussed today involves more than $36 billion. While it is a favour to approve the appropriation, it is reasonable to disapprove the appropriation as the money belongs to taxpayers. President, I wish to make a comparison here. In fact, we may approve this funding application, which involves tens of billions of dollars, as a mere formality like what we did in the past. Given the current situation of our society, we should give full play to our role in the Council by redistributing wealth appropriately and using money properly. How should we use the money? Let me read out the front-page headline of Oriental Daily News on 14 April 2020: Parks overloaded, surgeries delayed amid epidemic, pain patients wait in long lines. Our public health care system is in need of funding during the current epidemic. Yet, the money goes to HKPF, leaving the public health care system struggling on its own.
Poor people in society are miserable. Before the epidemic, the waiting time for new case booking in the Hong Kong West Cluster was more than three years. For orthopaedic patients with bone pain or joint problems, their waiting time was even longer. They had to wait for seven and a half years before they could receive specialist outpatient services or surgeries in the New Territories West Cluster. To avoid being warned by the President of digression, I will keep LEGISLATIVE COUNCIL ― 18 June 2020 8579 my following example short and simple. When government departments can ask for additional funding under the law to cover their overspending, why aren't hospitals or elderly people given the necessary financial support? That is because they have not asked for it. Public money is tax revenue contributed by hard-working taxpayers. No one will object if public money is spent on the poor, the elderly or the health care system. That goes without saying. The Government can simply get whatever amount it wants if the supplementary appropriation is sought for the health care system or the elderly.
From this comparison, I hope people will see how good money has been thrown after bad; it is just that simple. Given that every single provision involves hundreds of millions of dollars, members of the public may not be aware of such provisions if Members do not speak on them in the Council. In the case of infrastructure cost overruns, funding applications will at least have to go through FC to draw public attention of the repeated overruns, incurring tens of billions of dollars. Aren't we now facing the overruns of the Government? Isn't the Government asking for additional funding? This is really ridiculous.
If the Government had never stood on the opposite side of the people to provoke their rage, why would I have to speak on this issue? It is exactly because the Government has become the people's enemy that we have to speak up, especially when good money was found to have thrown after bad. It would have been great if the money had been spent on the elderly. Currently, people working long hours can only get meagre income; yet, they have to pay high rents. When Hong Kong people are in hardship, the spendthrift SAR Government seeks tens of billions of public money from the Legislative Council by presenting its justifications in a few sheets of A4 paper. Is the Government insane? Just now, the President said that the approval was a mere formality; how could I be unaware of that? I have kept in mind all the relevant dates and I even remember when the relevant bill was passed. So, President, it is laughable for you to remind me of such incidents. I have to explain the comparison just made. It would have been great if these tens of billions of dollars had been used to help the elderly and improve the health care system. Apart from provision for pay adjustment, some departments have a number of reasonable expenditure items and, of course, I will not criticize them. For example, it is reasonable to seek funding for typhoon measures, and Mr CHAN Chi-chuen will later give a wonderful speech on this matter. In this case, no one will criticize the Government, is that right?
8580 LEGISLATIVE COUNCIL ― 18 June 2020
The problem is: public money belongs to Hong Kong people, but though Hong Kong people are living in dire straits, nobody extends a helping hand. Funding applications are not made for areas most in need of extra resources; whereas areas not requiring supplementary provisions have applied time and again. This same situation keeps repeating itself year after year. I will not talk about this year's Budget, for fear that the President would say that I have digressed. How much money is sought by HKPF? President, earlier on, Mr Alvin YEUNG tried to propose amendments to the Bill but you ruled them as inadmissible. He was then accused by pro-establishment Members of targeting the Police after saying that he would not give even $1 to the Police. For me, my stance is simple. I do not care whether the Police are targeted. I am only concerned about how the poor grass roots can survive. All the existing welfare policies are empty and grandiose. If I could spend these tens of billions of dollars on welfare, the removal of means test for the Old Age Living Allowance alone would greatly benefit the elderly.
Owing to some hidden agendas, the whereabouts of public money remain unknown year after year. Yet, the President alleged me of digression. What a laugh! We should let the public know where goes the money instead of passing the Bill without saying a word. President, I am here to reveal the problems with the supplementary appropriation. Why didn't some government departments apply for additional funding when they were fully justified to do so? How come some other departments, which did not need additional funding, could apply to the Legislative Council for supplementary appropriation to cover their previous overspending by submitting a short paper of only one or two A4 pages? I know the 2018-2019 Budget well, but the Government should be flexible. As public grievances continue to mount, the Government is still discussing with me the 2018-2019 Budget. How ridiculous it is!
The Carrie LAM Government is extremely corrupted. If the large-scale government infrastructure projects had not gone over budget and the Government had not sought funding carelessly, as I said at the beginning of my speech, the Government could have spent money in whatever way it liked. However, the Government has just given $5.4 billion to the Ocean Park and tens of billions of dollars to Cathay. Worse still, the money was drawn from the Land Fund to bypass the Legislative Council. We are thus forced to "fight" against the Government at this critical moment in outrage. Now that we have the power to play a role in the Legislative Council, we must monitor the Government in its use of funds. While lots of our public money was drained by the Carrie LAM LEGISLATIVE COUNCIL ― 18 June 2020 8581
Government, none of the high officials or civil servants has ever been held accountable. Upon retirement, they can just leave office and enjoy their generous pensions. What a pity for the million or so poor people in Hong Kong!
Hong Kong has the widest wealth gap in the world. Where has all the money gone? Here is the answer. Therefore, we should consider and follow up on the Bill seriously to clarify everything instead of allowing government departments to apply for hundreds of millions of provisions simply by handing in a few pages of A4-size documents. Let us take a look at the elderly outside the Legislative Council Complex. They are so poor that they pick up leftover fruits and vegetables in markets after the closing time, and have them for food after removing the mouldy or rotten parts. Don't these elderly people need help? Here in Hong Kong, the elderly, the grass roots and the poor are most in need of additional funding.
President, I did not want to get out of temper. At first, I was thinking of speaking for only five to six minutes as I just wanted to say that it was inappropriate for HKPF to seek funding from the Legislative Council in this way. I understand that we should not target individual departments during the Second Reading debate. Therefore, I am speaking on the general merits of the Bill. Although overspending is not foreseeable by the Government or Members, does it mean that the Government has no responsibility at all? Does it mean that the Government needs not explain to the Legislative Council? Pay adjustment is not the only item in need of supplementary appropriation as there are many other expenditure items. I am sure the President knows that in addition to pay adjustment, there are still lots of expenditure items and papers. If we had been allowed to look into them one by one and make some savings under each expenditure item, the Government would not have had to apply for supplementary appropriation amounting to tens of billions of dollars. The $10 billion so saved could have been used to support the elderly in Hong Kong.
I must say once again that we are now talking about money. When we point out in this Chamber that Hong Kong has the highest Gini Coefficient among all developed countries in the world, where has the money gone? Honourable colleagues, here is the money. If all of us had been sincere in helping the people and the Government had satisfied the most basic needs of poor people, saving them from living a miserable life in poverty, why would social turmoil have been arisen? The Government has completely failed to care for the poor. When the poor live from hand to mouth, the Government asks for some $30 billion of additional funding. Also, as the funding had actually been approved, Members 8582 LEGISLATIVE COUNCIL ― 18 June 2020 could not have any say. Yet, I believe Members can actually have a say by asking the right questions. Here is my question: While it is so easy for the Government to obtain funding of tens of billions of dollars, how come our grass-roots people and the health care system, which is on the blink of collapse, receive no financial support?
This Council, as well as our parliamentary system, is badly corrupted because these high officials have the pro-establishment Members acting as their defenders. Members are hence barred from asking questions. Among the many questions that I have just raised, can you point out which one is wrong? No, you cannot. There is no room for you to challenge me. The Government has turned a blind eye to the 1 million poor people in Hong Kong but sought tens of billions of dollars to increase the pay for civil servants. The retirement protection that we have long been fighting for is still up in the air and the elderly still continues to live in misery. Whose fault is this? This is the fault of society, the fault of Carrie LAM and the fault of the SAR Government.
I so submit and stop here.
MR CHAN CHI-CHUEN (in Cantonese): This is my eighth year in the Legislative Council and I am always active in scrutinizing the annual budget by proposing amendments and giving speeches. Although the time allowed for budget debate is shortened year after year, I still highly treasure the opportunities to speak on the budget. Yet, we are now discussing the Supplementary Appropriation (2018-2019) Bill ("the Bill"). As I recall, I seldom spoke on this subject as there is not much to discuss.
The Bill under scrutiny seeks to provide for a supplementary appropriation for the financial year ended on 31 March 2019. Regarding the amount, i.e. $36,753,650,048.95, we should all be able to tell right away as it has been repeated by Members many times today. The supplementary appropriation of this amount is over and above the sum appropriated by the Appropriation Ordinance 2018 for the services provided by the Government two financial years ago. According to some Honourable colleagues, what we are dealing with right now is only an accounting procedure as the money had been spent and approval had been granted to the supplementary appropriation concerned. What we have to do now is only to conclude the procedure by passing the Bill and affixing a seal on it. While their view is not wrong, it is not that accurate to me.
LEGISLATIVE COUNCIL ― 18 June 2020 8583
The Bill is introduced in accordance with the Public Finance Ordinance to provide for supplementary appropriation for the specified heads of expenditure approved by the Finance Committee ("FC") or under the power delegated by it in the financial year that ended on 31 March 2019. As the supplementary appropriation was approved under the power delegated by FC, FC did not put such appropriation on its agenda for Members to question the overruns under the 32 heads of expenditure concerned. There was no discussion at all. Of course, what is past is past, especially when the money had been spent and the approval had been given. While such delegation of power is said to be effective, its procedure has never been reviewed. Mr CHU Hoi-dick keeps asking if this kind of delegation of power under the law is too excessive, such that the Financial Secretary, or the Government, can spend freely without subjecting to any scrutiny. A case in point is the government injection into Cathay Pacific Airways. Members have no say at all because, under the law, the Financial Secretary is delegated with the necessary power to do so. Coming back to this Bill, we can therefore see that there is no commencement date for the Bill, which will be gazetted immediately upon passage. No consultation on the Bill has been conducted as all that is required is our endorsement.
The supplementary appropriation is introduced in the form of a bill without undergoing any discussion by the Panel on Financial Affairs. Also, the Government only gave a selective account in its paper by claiming that the sum of $36,753,650,048.95, which was allocated for the supplementary provisions approved in accordance with section 8 of Cap. 2 for specified heads of expenditure, was mainly for meeting additional expenses arising from the civil service pay adjustment, injections into the Innovation and Technology Fund and the Elite Athletes Development Fund, as well as establishment of the Student Activities Support Fund. Yet, the fact is that budget overrun was recorded under 32 heads of expenditure. If a discussion was held over the Bill, we could discuss all those overruns under the 32 heads one by one. Why didn't we do so in the past? That is because the overruns were incurred one or two years ago. If we have to look into the reasons for budget overrun, we should do that in the budget debate.
To give a true account of the facts, I now explain clearly why the supplementary appropriation bill was seldom discussed in the past. Considering the current political situation and that the supplementary appropriation involves as much as $36,753,650,048.95 of public money, I am afraid that the public may 8584 LEGISLATIVE COUNCIL ― 18 June 2020 query why Members will just casually press the button to vote for the passage of the supplementary appropriation. Therefore, I find it necessary to give a clear account to the public.
Just now, Mr Alvin YEUNG raised an academic question. I wonder whether the Secretary can tell what will happen if the Bill is negatived. In case that happens, the Bill cannot get sealed and the procedure cannot be concluded. Yet, I think no one will be asked to make any compensation as the supplementary provisions were already approved under the power delegated by FC in accordance with the Public Finance Ordinance. Maybe I should consult Mr Kenneth LEUNG about the consequence of the Bill failing to get passed to give the final legislative authority for the supplementary appropriation.
I will now mainly focus on responding to Dr Junius HO. President, you may have to give tuition to Dr Junius HO. Yesterday, a Member suggested that you should conduct a tutorial class for Members. If you do take her advice in the next term, I would suggest Dr HO joining your class in case he is re-elected. Just now, when he spoke on the education expenditure, he showed hatred towards young people, considering that their participation in protests over the past year or so had disturbed public peace and believing that the Government must take action to stop violence and curb disorder. In fact, the pro-establishment Members have done quite a lot in this aspect. For example, owing to their objection, the Government was forced to withdraw its funding application for the improvement works of tertiary institutions. Indeed, Dr Junius HO should have voiced his view expressed earlier and proposed a budget cut on education in the Budget debate conducted two months ago. It is pointless for him to condemn the poor use of public money in the current discussion of the Bill as it is about expenses incurred in 2018-2019. Of course, he may relate his speech to the expenses in 2018-2019 by arguing that the money was used to nurture a gang of people who, in his eyes, have done serious harm to society in the "Anti-extradition to China" movement over the past year. However, if he really thinks so, he should have taken the many opportunities in the past to press the Government for budget cuts. For example, he should have raised this view in our previous debate of this year's Budget.
I would like to respond to another viewpoint of Dr Junius HO on the issue of police violence. This issue is not directly related to the Bill, but Dr Junius HO has spent three minutes to discuss it. So, I hope the President will also allow me one or two minutes to give a clear response …
LEGISLATIVE COUNCIL ― 18 June 2020 8585
PRESIDENT (in Cantonese): Mr CHAN Chi-chuen, earlier on, I also reminded Dr Junius HO to return to the subject of this debate. Therefore, please do not digress from the subject.
MR CHAN CHI-CHUEN (in Cantonese): That is fine. May I spend just one minute to respond to him? I cannot let his specious arguments remain unchallenged in the Council.
Police violence must be condemned. The pro-establishment Members also condemn whatever form of violence, is that right? Police violence exists everywhere in the world as power often comes with abuse of power. What is the difference between police violence in Hong Kong and that in the United States? In Hong Kong, the Police bear no consequences. By contrast, police violence in the United States will lead to suspension, legal liabilities or even a change in policy, say, a budget cut for crowd-control weapons. None of these will happen in Hong Kong and that is the difference, as simple as that.
Of course, this issue falls outside the scope of the Bill. According to the Government: "Under section 9 of Cap. 2, if at the close of account for a financial year it is found that expenditure charged to any head is in excess of the sum appropriated for that head by the Appropriation Ordinance for that financial year, the excess shall be included in a Supplementary Appropriation Bill which shall be introduced into Legislative Council as soon as practicable after the close of that financial year." The fact that the Bill was First Read on 30 October 2019 indicates that the Government has done its utmost to introduce the Bill into the Legislative Council as soon as practicable for it to get passed and sealed. After the supplementary appropriation was approved under the power delegated by FC, the Bill is now waiting to be sealed. Yet, owing to a number of reasons, the Bill has not been dealt with until today.
I am not going to comment on the past performance of various departments because it is the duty of the Government to make accurate estimates in the budget. In the past, I criticized John TSANG for his "faulty budgets" as his predictions for budget surplus or deficit were often wrong. I even blamed him for playing with accounting tricks. The delegated power from FC allows the Government to always cover its overspending with supplementary appropriation. The Government will then introduce the supplementary appropriation bill to seek our approval and then conclude the procedure.
8586 LEGISLATIVE COUNCIL ― 18 June 2020
A responsible government should not use accounting tricks to whitewash its budget and hide the truth. In fact, the Government is using supplementary appropriation as a backup plan to meet its overruns. Is it appropriate for the power to be delegated or transferred in this way? The Bill discussed today may not be able to give us an answer. Just now, Mr Alvin YEUNG brought up another question, i.e. what kinds of amendments to this Bill will not be ruled as irrelevant? I have no idea either. Even in the case of budget amendments, the President does not care about the substance of our amendments. All he cares in approving budget amendments are the heads, subheads and amounts concerned. For this Bill, we have learnt from his reply to Mr Alvin YEUNG that an amendment proposed to reduce the amount of a supplementary provision would also be ruled as irrelevant and hence inadmissible. Then, is there a room for amendment? Perhaps, the answer is that there is no room for amendment. We may not even be expected to speak on the Bill. We should just put up our hands, get the Bill sealed and proceed to the next item.
When the executive-legislative relationship was good, the trust between the two branches allowed FC to pass three or four funding applications in an hour. When I first joined the Legislative Council, FC could go through all its agenda items within half an hour at its meeting on Friday. But things have changed. For all expenditure items of the Government, even if the money has already been spent, members of the public still want us to look into them carefully and examine the supplementary provisions under various heads one by one to see if they are reasonable. I urge all incoming Members to put in more efforts in this respect.
I admire Mr CHU Hoi-dick very much as he dares to challenge the legitimacy and reasonableness of the granting of approval under the delegated power, which will lead to the review of the Public Finance Ordinance. However, when the power is in the hands of the Government, how will the Government be willing to review the Public Finance Ordinance and share its power with the people? Even if the Bill is negatived, the Government can operate as usual for it still has power to draw money from the public coffers. I so submit.
MR KENNETH LEUNG (in Cantonese): President, originally I did not intend to speak, but now I wish to talk about some constitutional and legal meanings concerning the Supplementary Appropriation (2018-2019) Bill ("the Bill"). Just now, Mr CHAN Chi-chuen and Mr Alvin YEUNG raised a question, i.e. what will happen if the Bill is unfortunately or unimaginably voted down? LEGISLATIVE COUNCIL ― 18 June 2020 8587
In my opinion, under the existing legal or constitutional framework, if the Bill is voted down, there will be no effect. The reasons are: first, the sum had been spent; second, the authorities had been given the provisional authorization to use this sum of money; third, if the Bill is not passed this time, it can be introduced into the Legislative Council again for voting, or it can even be introduced again in the next legislative term. This is the flexibility provided to the Government under the Public Finance Ordinance.
I wish to talk about why there is cost overrun, and why the Government's revenue and expenditure have failed to meet the expectation and target set by the Financial Secretary. I am not refuting or interpreting for other people. For example, when making budget estimates for a large-scale investment project in private companies, we can provide some buffer for the investment or for certain expenses, so that the expenditure required every time will be within the budget. However, it is not reasonable for the Government to earmark an amount of expenditure for each department to be used when there is cost overrun. This is not the concept of formulating proposals on public finance. The Government can make this Budget through different methods. There is a method called zero-based budgeting. In zero-based budgeting, all expenses must be justified, and the process of this budgeting starts from a zero base.
President, if the expenditure variations in some government departments exceeded 15% or reached 20% over the past two to three years consecutively, the Director of Audit may conduct audits on these government departments. If the expenditure variations in these departments have exceeded 15% or reached 20% every year or for two to three years consecutively, I hope that the Director of Audit will conduct value for money audits on these departments. As the Deputy Chairman of the Public Accounts Committee, I also made some severe criticisms against these departments in the past.
Of course, in view of the political tension, it is understandable and necessary to conduct a debate or an in-depth discussion on the Bill. However, I would like to remind Members that the Financial Secretary tells us every year that the revenue in the Budget cannot be estimated. In fact, I agree to his viewpoint. Members from both the pro-establishment camp and the pan-democratic camp query why the Financial Secretary often makes a wrong estimation of the revenue.
8588 LEGISLATIVE COUNCIL ― 18 June 2020
As an accountant, I can tell Members that the Government will definitely make a wrong estimation of the revenue. This point is beyond doubt. This is because in Hong Kong which is an open economy, the Government cannot estimate how many people will buy and sell stocks in a year, and stamp duty on stock transactions is one source of revenue of the Government. The revenue that the Government can control and estimate is the revenue generated through the disposal of land. The Government can also estimate profits tax income and salaries tax income. However, profits tax is more volatile than salaries tax.
President, there are two uncertainties in the Government's revenue: profits tax income and stamp duty income. These two incomes cannot be estimated accurately because they fluctuate every year. Of course, if the economy is stable, the Financial Secretary can estimate the non-recurrent revenue generated through the disposal of land this year, because if a tenderer's price is lower than the bottom price, the Government will not sell the land at all.
From this, it is evident that expenditure can and should be controlled to a certain extent. However, revenue cannot be estimated to a certain extent. This year, the Financial Secretary has indicated that the fiscal deficit in 2020-2021 is $280 billion which was estimated at the end of February. Today is 18 June, what will the deficit be next year? In my opinion, the Government's revenue was overestimated in February. The unemployment rate is on the rise. Although I hope that such increase will slow down, there is still an upward trend. On 31 March next year, what will our fiscal deficit be? I am sure that …
PRESIDENT (in Cantonese): Mr Kenneth LEUNG, please return to the subject of this debate.
MR KENNETH LEUNG (in Cantonese): President, if there is no revenue, the expenditure cannot be met.
PRESIDENT (in Cantonese): This Council is discussing the supplementary appropriation in 2018-2019.
LEGISLATIVE COUNCIL ― 18 June 2020 8589
MR KENNETH LEUNG (in Cantonese): Yes, I know. I am talking about why the Government's expenditure will increase. Of course, there is now a cost overrun of over $30 billion. The amount is not very large but not small though. Why is the Legislative Council required to authorize or affirm through the Bill that the Government can overspend more than $30 billion?
Of course, as I said just now, the Government needs flexibility in spending. However, I would like to draw Members' attention to the three types of expenditure of the Government. The first one is general recurrent spending, that is, recurrent expenditure. It is drawn from the general account. The second one is capital expenditure which means infrastructure spending. In the Budget, Members need to approve recurrent expenditure and capital expenditure. Of course, during the meetings of the Finance Committee, we often have to endorse capital expenditure and recurrent expenditure outside the budget context.
For the third type of expenditure, Members should not mix it up. President, I am citing the amount of $5.4 billion for Ocean Park and the amount of $29 billion invested in Cathay Pacific Airways Limited ("Cathay Pacific") as an example. Many friends have asked me why the amount of over $5 billion for Ocean Park requires the approval of the Legislative Council, while approval of the Legislative Council is not required for the amount of $29 billion for Cathay Pacific. The amount of over $5 billion for Ocean Park is really an expenditure item, as the money will be used by Ocean Park to, firstly, repay the debt, and secondly, meet the operating cost for the coming one year. The expenditure will be drawn from the Government's general account and produce no return. Do not think that Ocean Park will repay the amount owed to the Government. The money spent will not bring in any return, so it is really an expenditure item.
The project invested by the Government in Cathay Pacific a few days ago is an investment activity conducted with funds transferred from the Land Fund under the Public Finance Ordinance. The Financial Secretary has the right to make such investment on the advice by the Exchange Fund Advisory Committee. This is an investment project of the Government with the Exchange Fund. It is not an expenditure but an investment item, because such investment will produce return, as in the case that part of the Exchange Fund has been drawn …
PRESIDENT (in Cantonese): Mr Kenneth LEUNG, please return to the subject of the debate.
8590 LEGISLATIVE COUNCIL ― 18 June 2020
MR KENNETH LEUNG (in Cantonese): President, I am explaining why the cost overrun of more than $30 billion does not include the amount of over $20 billion injected by the Government into Cathay Pacific …
PRESIDENT (in Cantonese): This is not the focus of the Bill. Please return to the subject of the debate.
MR KENNETH LEUNG (in Cantonese): I also know. The focus is that the cost overrun of more than $30 billion should be reviewed from the perspective of the Government's overall expenditure. I am not speaking on the Government's behalf, because many government departments are also very wasteful. It has been reported in the press that a number of outsourced workers in some pest control sections of the Food and Environmental Hygiene Department got a day's pay for working 20 minutes only. Why? We can see that many newspapers have made such criticisms, reflecting that many government departments are really unregulated in spending.
I hope that supplementary appropriation is not a norm. I also hope that Members of the Legislative Council will not necessarily support a supplementary appropriation bill in respect of the amounts of money spent. In his reports on the Government's annual revenue and expenditure, the Director of Audit explains the expenditure variations of government departments, because the budget controller of each department is required to explain to the Audit Commission why such variations have arisen. Of course, if the variations are too great, the Public Accounts Committee of the Legislative Council and even every Member should be duty-bound to question the relevant departments closely for such variations. However, I do not hope that such variations will become a norm.
President, I hope that the Government will listen to this point. When compiling the budget, the Government has to review what the relevant assumption is, and whether the assumption is realistic for each department. I also hope that the newly appointed Secretary for Financial Services and the Treasury will urge each government department to see if there are items that can be deleted when he compiles the budget or compiles the budget on behalf of the Financial Secretary. This is because in the coming three years, I can only see budget deficits but not surpluses. However, the existing reserve of the LEGISLATIVE COUNCIL ― 18 June 2020 8591
Government is only $800 billion which is not much. In 2020-2021, the deficit may reach more than $300 billion. If not much money is left in the Government's reserve after three years, the credit rating and competitiveness of Hong Kong will also be downgraded subsequently. President, as you also know, Hong Kong's ranking dropped from the second to the fifth in the world competitiveness yearbook published by the International Institute for Management Development in Lausanne, Switzerland the day before yesterday. How the Government controls the expenditure of public finance will absolutely affect the competitiveness of Hong Kong.
Therefore, if the Government introduces a supplementary appropriation bill into the Legislative Council again next year, I hope that the amount of money involved will not be too great. However, with 2019-2020 almost coming to an end, I can conclude that the Government will definitely introduce into the Legislative Council a supplementary appropriation bill involving a larger sum. I hope that the future supplementary appropriation bill will seek a smaller amount of money and take up a smaller percentage in the total expenditure, so that we can be convinced that the heads of government departments are determined to control spending responsibly. In the whole domain of public finance, apart from cutting down expenditure, increasing income is also important. President, it is not adequate for the Government to only control the amount of money spent.
Of course, if we want to increase revenue, economic activities will have to be increased as well, because tax revenue will only be increased with thriving economic activities. I hope that the Secretary for Financial Services and the Treasury as well as the Financial Secretary will seriously consider whether there is an opportunity to review the issue of tax regime. Of course, discussing this issue at this moment may provoke a lot of public discontent or public outrage, but the tax base in Hong Kong is too narrow after all. I hope that the Secretary and the Financial Secretary can conduct a study as soon as possible to see whether the tax regime in Hong Kong can be sustainable in the long run.
President, I so submit.
MR CHU HOI-DICK (in Cantonese): President, in my opinion, among the Legislative Council debates, not many are like the debate on the Supplementary Appropriation (2018-2019) Bill ("the Bill") which requires Members to have a 8592 LEGISLATIVE COUNCIL ― 18 June 2020 high level of knowledge and well acquainted with the public finance procedures and the relevant legislation for joining in the discussion. The Bill is not very controversial, but I still wish to speak on it, because this will provide an opportunity for colleagues of this Council or members of the public to grasp more information on the operation of public finance, the issues we are scrutinizing and the implications involved.
President, in the first one to two years after becoming a Member, I had actually spent quite a lot of time in understanding the public finance system. After I have learnt about the Public Finance Ordinance ("PFO") and the division of work between the Council meetings and the Finance Committee ("FC"), I found the design quite exquisite. On the one hand, we have the annual budget which roughly lays down the expenditure plan for the coming year. On the other hand, section 8 of PFO clearly states the circumstances under which changes can be made to the approved estimates of expenditure during the financial year. New funding requests can thus be made later.
One of the reasons for us to scrutinize the Bill today is that after the approval of the budget presented by the Government, new fiscal needs have arisen during the relevant financial year, so the Government has to propose changes to the approved estimates of expenditure at FC under section 8 of PFO. What is section 9 of PFO about? When changes are made to the approved estimates of expenditure under the mechanism, there will certainly be expenditure in excess of the original estimates of expenditure. Then, a supplementary provision will be sought under section 9 of PFO as pointed out by Mr CHAN Chi-chuen just now. I do not know whether this procedure should be described as a matter of formality. As for the meaning of section 9 of PFO, life will go on even if the Bill is negatived. What I mean is that as the money had been spent, the effect of voting down the Bill is that the amount of money spent in 2018-2019 cannot be clearly stated in the next budget year. That is all.
President, this debate procedure seems to be a formality. However, after thinking carefully, I opine that conducting a debate on the Bill is actually meaningful, as Legislative Council Members have the powers to examine and approve budgets introduced by the Government, and to approve taxation and public expenditure under Article 73 of the Basic Law. During the scrutiny of the Bill, many colleagues will focus on the part of funding approval, while most of the colleagues who are not members of the Public Accounts Committee LEGISLATIVE COUNCIL ― 18 June 2020 8593
("PAC") will not know how to consider the Government's public expenditure from an audit perspective. By this, I mean examining how the money has been spent and whether there are any problems with the money spent. Of course, PAC will set out some prerequisites for discussions, as PAC will only examine the reports submitted by the Audit Commission on the Government's accounts which the Commission considers worthy of examining and discussing. PAC cannot, for no reason, make a request for auditing the accounts of a particular government department. This is not allowed. Therefore, PAC performs an auditing function in a relatively constrained manner. Looking back the Budget of last year (that is, 2018-2019), why was there an excess of more than $30 billion in expenditure? In my opinion, the meaning of this debate lies in the fact that we should perform the function of examining why more money had been spent. President, I think the Government should allow an expansion of this function of ours. I do not know whether Members have made such a suggestion to the Secretary after he took office. For example, a number of Member colleagues have complained about the cost overrun problems of many public works projects. In fact, cost overrun occurs when the expenditure used exceeds the original estimates of expenditure. Since the original provisions are insufficient, the Government applies to the Legislative Council for supplementary provisions. Let me cite the Capital Works Reserve Fund as an example. In fact, Member colleagues also wish to follow up on how the money for each large-scale public works project has been spent, but the Government has not given us room to do so. After the Legislative Council has approved the provisions for the works projects, it cannot audit the relevant provisions unless the Government applies to the Legislative Council again for provisions when there are cost overruns. In my opinion, if the Government hopes that the Legislative Council will play a more proactive role in helping the Government clarify various issues, especially whether the expenditure for public works has been used improperly, it should empower the Legislative Council as appropriate. Positive effects will be produced by doing so.
President, when I review the details of the Bill from this perspective, I have a few questions. I should be blamed for not making good preparation before participating in this debate. This morning, when I looked at the component of the supplementary provision of $39 billion, I have some questions. First, there are actually more than 80 heads of expenditure in the Budget. However, among the 32 heads requiring supplementary provisions, only 22 heads require provisions to meet additional expenses arising from pay adjustment. I am 8594 LEGISLATIVE COUNCIL ― 18 June 2020 perplexed. The remunerations for civil servants or statutory bodies under the 80-odd heads of expenditure should be adjusted according to the civil service pay rise level as approved by FC, as the number of civil servants or staff members of the statutory bodies will not drop significantly all of a sudden, how come only 22 heads but not all heads require provisions to meet additional expenses arising from pay adjustment? Regarding this question, I hope that the Secretary can give me a reply.
Second, two situations are involved in this sum of $39 billion. The first situation is that the Government has made changes to the approved estimates of expenditure under section 8 of PFO. In fact, the Ocean Park case cited by Mr Kenneth LEUNG just now is a very good example. The allocation of $5.4 billion to Ocean Park involves amending the approved estimates of expenditure. Earlier on, some colleagues have also mentioned other examples, including the Elite Athletes Development Fund of the Home Affairs Bureau, the Electricity Charges Relief Scheme of the Environment Bureau, as well as the SME Export Marketing Fund and the Trade and Industrial Organisation Support Fund of the Trade and Industry Department. I believe provisions for these funds or schemes have been approved by FC separately, so the relevant Policy Bureaux or departments can use the money allocated; in case they run out of funds, authorization can be given by FC for more provisions. This is the first situation.
The second situation has also been mentioned by Mr CHAN Chi-chuen, and I am also very concerned. I am talking about the situation of FC delegating the power of using money to the Government at a time unknown to us all. President, this practice can be deemed as a black hole. In some FC papers, I often see remarks, printed in a small font size, stating that the authorities have been delegated with powers by FC at a certain time and date, thus arriving at a certain sum. However, President, do we have a list stating what powers the Legislative Council has delegated to the government departments and when such powers have been delegated? We are clueless about what powers the Legislative Council has delegated to the Government. We are only informed by the authorities of the powers delegated when there is an item for discussion. This situation has arisen in the supplementary provisions for 32 heads of expenditure. I do not quite understand why the Legislative Council has delegated powers to the Government, or what kinds of powers have been delegated. Nevertheless, we will agree to certain delegation of powers. For instance, the Drainage Services Department has overspent more than $6.7 million LEGISLATIVE COUNCIL ― 18 June 2020 8595 for repairing and restoring sewage treatment facilities after the onslaught of typhoons. We understand that the sum was used for meeting the additional expenses which normally incurred after the onslaught of typhoons, so the power delegation involved is very normal. In other words, the Government can use money for clearance and maintenance without having to go through the Legislative Council.
(THE PRESIDENT'S DEPUTY, MS STARRY LEE, took the Chair)
Another similar example is the supplementary provision of more than $3 million for "Head 91―Lands Department". I believe this sum was also used to meet the additional expenses for removing fallen trees and debris after the onslaught of Typhoon Mangkhut and Typhoon Hato. I understand and endorse the delegation of power because it is not reasonable to require the Government to apply at that time to the Legislative Council for additional funds to remove the fallen trees caused by Typhoon Hato. However, I also hope that the Secretary can explain why powers have been delegated in relation to several heads. For example, for the cost overrun of nearly $3 million under "Head 144―Government Secretariat: Constitutional and Mainland Affairs Bureau", the sum was mainly used for meeting the additional expenses for organizing various celebration activities. I do not quite understand what these celebration events are or when we have delegated the bureau with the power to hold such celebration activities; can the Legislative Council set limits on the number or scale of these celebration activities? I hope that the Secretary can provide me with such information.
As for similar situations, Ms Starry LEE, for the additional expenses arising from enhanced publicity outside Hong Kong under "Head 74―Information Services Department", there is only a total sum (inclusive of wages) of over $22 million, without even a breakdown. What had been done by the Department or why did it organize the relevant activities? A similar situation has also occurred in Invest Hong Kong, there is a sum for meeting the additional expenditure on investment promotion, but a breakdown of expenses is not available. There is only one lump sum mixed with other expenses.
8596 LEGISLATIVE COUNCIL ― 18 June 2020
I believe the Government can actually give us opportunities to scrutinize more technical subjects, just like what we do today. We can review afresh why there is cost overrun, whether the financial powers delegated by the Legislative Council to the Government's executive departments in the past are proper and whether a review should be conducted. In particular, for the provision for celebration activities, I think we need to review the power delegated to the Government. Otherwise, government departments may keep organizing new celebration activities under such condition. They may overspend $3 million this year, and may overspend $0.3 billion next year, right? I believe the public do not expect the Government to use public money in this way.
I so submit.
MR HOLDEN CHOW (in Cantonese): Deputy President, I think people watching the live broadcast clearly know that the Supplementary Appropriation (2018-2019) Bill ("the Bill") is a formality because the excess sum of $36.7 billion public funds used in 2018-2019 was approved by the Finance Committee earlier. In short, the excess expenditure had been approved. According to sections 8 and 9 of the Public Finance Ordinance, the excess shall be included in a bill to be introduced into the Legislative Council. The information paper also states clearly that this is a formality.
This morning, some colleagues of the so-called "mutual destruction camp" seized on the point that the excess expenditure might involve the Police Force to put over their ideas. Although they target the Police Force, I think they should not use this as an excuse to put over their ideas at this time. According to the Public Finance Ordinance, the Administration authorized the Finance Committee to deal with the excess expenditure, i.e. the excess expenditure in the fiscal year can be dealt with under the current arrangement. However, some colleagues said that the substantial excess expenditure should be accounted for, such as salary adjustment or unforeseeable circumstances. For example, it is mentioned in the Bill that the Social Welfare Department has to spend an additional $80 million to meet the higher than expected increase in the number of Old Age Living Allowance cases. I think the reasons should be explained clearly.
I would also like to present an idea to the Government. I think members of the public can understand that excess expenditures may incur each year, but they are more concerned about the extent of overspending. If we compare the LEGISLATIVE COUNCIL ― 18 June 2020 8597 appropriation in the Budget with the final amount of excess expenditure, the variation may be lower than 10%. Nevertheless, if the variation reaches 15% or 20%, there will be more concerns or worries.
Although the current mechanism allows the Government to deal with excess expenditure in this way, we all understand that supplementary expenditures may be incurred during typhoons, heavy rains or natural disasters. There may be problems if there is no standard at all. Thus, when the Government responds later, I hope it will explain whether the supplementary appropriations in the past were lower than a certain level, say 10%, so that we will know that the supplementary appropriation that the Finance Committee is authorized to approve does not involve substantial amounts and we can thus set our minds at rest.
Deputy President, I so submit.
DR FERNANDO CHEUNG (in Cantonese): Deputy President, my speech will be very short. I will mainly speak on the concept mentioned by Mr CHU Hoi-dick just now. Regarding the budget, the prime concern is the monitoring of the use of public funds.
I would like to give some more examples. Supplementary appropriations are required if the expenditure exceed the original appropriation in the budget. According to the law, supplementary appropriations are approved by the Finance Committee or by the delegated authority. We understand that this is the formality but is there sufficient monitoring under this mechanism? Is the budget formulated on the principle of most effective use of funds? Why are supplementary appropriations needed afterwards?
Although the Legislative Council is the legislature, we cannot play the role of monitoring the Government as very often our role is restricted to approving appropriation. After we have given our funding approval, our function of auditing government accounts is insignificant, because as pointed out by Mr CHU Hoi-dick, with the exception of the Public Accounts Committee which can choose to audit some items, we do not have a role to play.
Ms Starry LEE is a member of the accounting profession and she should know that the parliaments of many other regimes have an additional function of regularly auditing government accounts. For example, there is a Government 8598 LEGISLATIVE COUNCIL ― 18 June 2020
Accountability Office in the United States which is independent of the Government though it is also part of the Government. It works for the Congress and is directly under the Congress, and it conducts independent audits of government accounts at the request of the Congress. All listed companies or major statutory bodies have audit offices, or they may appoint independent individuals to join the audit committees to audit the accounts of these institutions. Can the Government check its own accounts? Obviously, the Government will not do so because the most important spirit is that the Government cannot check its own accounts.
There is an office in the United States comprising more than 3 000 people, responsible for auditing government accounts and is accountable to the Congress. Just like the role of the Legislative Council in the SAR, the Congress monitors the Government and has real powers. This office operates throughout the year and is highly independent. The term of office of the Comptroller General in charge of the Government Accountability Office can be as long as 15 years, thus enabling him to have independent powers to audit the accounts of government departments. His judgment will not be seriously affected by party struggles, political views or other factors.
We will later discuss the appointment of the Chief Justice of the Court of Final Appeal. His term of office will be very long, probably until he reaches the retirement age and this is basically a lifetime appointment. Therefore, independence is very important. However, this Council lacks independence; if this Council considers that the Government has inappropriately used public money in some areas, there is no mechanism to tackle the misdeed. Just now Mr CHU Hoi-dick queried why mega infrastructure projects frequently run into cost overruns and delays. In fact, the Basic Law has empowered the Legislative Council to monitor the Government and examine the Government's accounts, and the Government must be accountable to this Council. Unfortunately, even if this power is specified in the law, it cannot be exercised by this Council owing to limited resources. In fact, the Legislative Council relies heavily on the Government and Members have to make decisions on proposals submitted by the Government within a short time against the background of insufficient information. In the case of supplementary appropriations, we will ask questions on individual items, such as the reasons for a large amount of excess expenditures. Owing to the epidemic situation since last year, it is natural for the Department of Health to have additional expenditures. Certain incidents are unpredictable. In times of economic depression, the Social Welfare Department often applies for supplementary appropriation. As it cannot accurately LEGISLATIVE COUNCIL ― 18 June 2020 8599 anticipate the economic situation, it has to apply for supplementary appropriation to cope with increasing applications for Comprehensive Social Security Assistance. These situations are not surprising at all, but why should large amounts of supplementary appropriations be required for regular activities? This is worth examining.
I would like to put on record that we, unlike the royalists, will not make indiscriminate criticisms. The royalists arbitrarily accused us of targeting the Police Force, and even went so far as to say that we wanted to bring about "mutual destruction". This is simply a waste of our time and public resources. The Legislative Council should monitor the Government, but we have failed to do so because of administrative hegemony. As the Government wants to centralize its powers, the Council cannot play a monitoring role and give full play to its function; thus, the spirit of the Basic Law cannot be manifested.
In fact, we cannot fulfil the responsibilities stipulated by the Basic Law. We are now going in the opposite direction and the Government has further restricted our freedom and undermined the functions of this Council while strengthening its own power. The Government has actually centralized all powers, but it still wants more power. If this continues, the Government may have a finger in every pie and it may control people's daily lives, education and children development, etc. Regrettably, it is moving backward, and is not moving towards an open and free society. I hope our society will be on the right track again and the Legislative Council can really perform its monitoring function. Independence is the predominant element and it is impossible for the Government or police officers to investigate themselves. As Mr CHAN Chi-chuen has said, people having the power tend to grasp more power, so checks and balances are really important.
Although it is said that the passage of the Bill is a designated act and we must do so under this mechanism, as Mr Kenneth LEUNG has said, no any actual effect will arise even if we do not approve the appropriations. The amounts had been spent and we only need to complete the procedures under this mechanism. Even if the Bill is not passed this time, the Government can introduce a related bill next year or in the future. There is nothing we can do about that. This precisely reflects that the Legislative Council lacks monitoring power under the current mechanism. If Hong Kong is really an open and fair society, there must be sufficient checks and balances; otherwise, the road ahead will be increasingly narrow and our society will become increasingly closed, just like what is happening today.
8600 LEGISLATIVE COUNCIL ― 18 June 2020
MR WU CHI-WAI (in Cantonese): The subject of the debate today is the Supplementary Appropriation (2018-2019) Bill ("the Bill"). Many Members have pointed out in their speeches that the passage of the Bill is only a formality, because expenditures have been incurred and we cannot reverse the situation. Sometimes, unexpected expenditures may arise, particularly in emergency situations, such as the onslaught of Typhoon Mangkhut. In such situations, it may be inappropriate or impracticable to obtain timely funding approval from the Legislative Council to promptly tackle the situation. Hence, the arrangement of seeking supplementary appropriation is required.
I would like to make only two points. First, for Members who are exercising their powers in accordance with the Rules of Procedure and the Basic Law to take actions such as vote against the budget, some public officers have recently claimed that these Members might be considered as not upholding the Basic Law. I would like to hear the response of public officers on this point. After a bill has been presented to the Legislative Council, Members will naturally vote in favour of or against the bill, or abstain from voting. Some Members may even be absent from the meeting during voting. However, when Members exercise this constitutional power, why do some people blow the matter out of proportion and accuse them of not upholding the Basic Law? If the exercise of a power stipulated in the Basic Law can be criticized as endangering and subverting the regime, one cannot help but doubt whether the Basic Law is still the mini-constitution on which the governance of Hong Kong is based, or is it that we can only comply with the provisions of the Constitution of the People's Republic of China, and that public officers and the SAR Government only accept one voice?
Second, given that the passage of the Bill is regarded only as a formality, is it true that the result will not change no matter Members vote in favour of or against the Bill? In fact, I do not know the answer, because no supplementary appropriation bill of the SAR Government has ever been vetoed before. What will it mean if the Bill is vetoed? It means the Legislative Council disagrees with the Government's approach of spending in advance of its appropriations. If the Legislative Council disagrees that the Government should spend in advance of its appropriations at certain times in the past, who should foot the bill? Should the responsible officers be held accountable? Is it true that such a situation will never occur and a supplementary appropriation bill will always be passed and never be vetoed?
LEGISLATIVE COUNCIL ― 18 June 2020 8601
I remember that before the Bill was presented, I asked officers of the Financial Services and the Treasury Bureau what would happen if the Bill was really vetoed. They responded that they really did not know because it had never happened before. Does the Government think that there will be no problem with the arrangement of supplementary appropriation because this kind of bill has never been vetoed? Hence the Government just assumes that Members will not vote against the Bill or the Bill will still be passed even if some Members vote against it. If so, there is a problem with the Government's mentality regarding finance management, namely, it has taken for granted that things will only develop in one direction but not the opposite way.
Nevertheless, one day is too long in politics. Will the situation of "35+" occur later? Unless the Government disqualifies pro-democracy Members on a large scale, such a situation may possibly occur. Does the Government think that the budget will surely be passed, as it did in the past, because an adequate number of royalists will defend it? If not, has the Government formulated any plans to meet the new round of challenges ahead? If the Government has not made any preparation and will only resort to political means to turn the Legislative Council into a rubber stamp, will this be desirable for the Hong Kong society?
During the deliberation of the Bill, some public officers repeatedly criticized pro-democracy Members that their intent of invoking Article 52 of the Basic Law to veto the budget shows that they are not upholding the Basic Law. I think the argument is absurd. If that is their argument, the public officers concerned also oppose the provisions of the Basic Law. Applying the same logic, are the public officers actually opposing the provisions of the Basic Law and not upholding the Basic Law?
If the Government utilizes its power to the fullest and thinks that the royalists will defend it on all fronts, many political risks will be created. The Government is acting irresponsibly if it does not tackle these problems in advance and provide solutions for the Legislative Council and the public.
My final point is that in recent years, there have been frequent cost overruns and delays in many government projects, to the extent that some consider the Government wasteful of public money. A very obvious and by no means novel example is that many government departments would crazily spend 8602 LEGISLATIVE COUNCIL ― 18 June 2020 all their provisions in the last two or three months of the financial year, so as to avoid returning the unspent provision, or having their estimated expenditures reduced in the next financial year.
In fact, that is the other side of the coin of a supplementary appropriation bill. While some areas are inadequately funded, irrational and extravagant spending occur in other areas. I do not know if the Administration or the Financial Services and the Treasury Bureau has, when faced with this phenomenon, formulated any specific and effective ways to control the two sides of the coin, including identifying the reasons for inadequate funding of the departments concerned. Since all estimated expenditures have been earmarked in advance, I notice that many government departments have sought supplementary appropriations to finance the pay rise. However, I find it very strange that some departments have adequate appropriations to finance the pay rise but not others. Is the problem related to the estimated expenditures of these departments, or is there a sudden and significant increase in manpower, thus affecting the estimated expenditure, or is the problem caused by other reasons? Very unfortunately, during the deliberation of the Bill, Members could not make further enquiries about the content and details of the estimates.
Since the problem concerns whether the Government can manage its finance in a healthy and accurate manner, the Administration should consider providing more detailed information in its papers in the future. The information should include details of and reasons for the increase in expenditures and the supplementary appropriations sought for each department. The Government should not say: sorry, owing to the pay rise for civil servants last year, we have spent more than the estimated expenditures, thus the appropriations are not enough to meet the expenditures. If more information is provided, it will enable the whole society to understand whether the public finance arrangements made by the Government have been adequately monitored.
Finally, I very much hope that the Financial Services and the Treasury Bureau has heard our views and will comprehensively review whether the arrangement of seeking supplementary appropriation will be treated a mere formality in future, or whether the Legislative Council will be given back the power of monitoring the Government and scrutinizing the budget, so that Members can really discuss whether the additional expenditure of $30 billion has been spent properly. Otherwise, the mistrust between the Executive Authorities and the legislature will only intensify. LEGISLATIVE COUNCIL ― 18 June 2020 8603
Even if the Bill is passed, the Government has to start thinking because this may be the first time that a bill on supplementary appropriation has encountered so much opposition. It has not only set a precedent, but also become an issue which the Government has to tackle in the future. I hope that the Government will not overplay the Members' opposition to the budget and plan to disqualify them, thinking that it will be better if the Legislative Council is turned into a rubber stamp. If the Legislative Council becomes a rubber stamp, it will be no different from the Standing Committee of the National People's Congress ("NPCSC"). If the Legislative Council is turned into something like NPCSC, there will be impacts on international investment capital, or Hong Kong's status as an international city has to be reassessed. It will do nothing but harm to Hong Kong.
I hope that officers of the SAR Government will understand that the Basic Law provides that the Legislative Council has a constitutional duty to monitor the Government's administration and finance management in ensuring that public money is used properly; and the Government has the responsibility to give a full and clear account to the public and Members of the Legislative Council. The Government should be psychologically prepared that the bills introduced may not necessarily be endorsed by the Legislative Council, unless it has turned the Legislative Council into an organization with a single voice composed only of Members who are willing to act as rubber stamps, and dissenting voices are excluded in supervising and monitoring the work of the SAR Government.
I hope that the SAR Government will understand that every Member of the Legislative Council has to fulfil his or her constitutional duty stipulated in the Basic Law and each of them has the responsibility to ask the Government to use public money properly. I so submit.
DEPUTY PRESIDENT (in Cantonese): Dr KWOK Ka-ki, please speak.
(Dr Fernando CHEUNG indicated his wish to raise a point of order)
DEPUTY PRESIDENT (in Cantonese): Dr Fernando CHEUNG, what is your point of order?
8604 LEGISLATIVE COUNCIL ― 18 June 2020
DR FERNANDO CHEUNG (in Cantonese): I request a headcount.
DEPUTY PRESIDENT (in Cantonese): Dr Fernando CHEUNG has requested a headcount.
Will the Clerk please ring the bell to summon Members back to the Chamber.
(While the summoning bell was ringing, THE PRESIDENT resumed the Chair)
(After the summoning bell had been rung, a number of Members returned to the Chamber)
DR KWOK KA-KI (in Cantonese): President, our discussion today is about the Supplementary Appropriation (2018-2019) Bill ("the Bill"). A number of Members have pointed out that the Bill involves technical issues. In fact, that is one way of understanding the origin of the Bill. Some systems provided in the Basic Law are not included in the design of the Constitution of the People's Republic of China. The Legislative Council of the Hong Kong Special Administrative Region ("HKSAR") was designed by drawing reference from the political system of the United Kingdom. According to the system of the United Kingdom, the Cabinet, composed of members of the House of Lords and the House of Commons, performs important functions in the constitutional framework, and policies such as those on finance and health, are proposed by different members of the Cabinet.
Under this design, Ministers of the United Kingdom are selected from the largest party in the Parliament. As Mr CHAN Chi-chuen said earlier, in the past, a supplementary appropriation bill would be passed in the Legislative Council in only half an hour. The reason is that in the past, Members respected and recognized the importance of each other in the legislature. In the British-Hong Kong era back then, although Hong Kong was governed by the colonial government, people knew that there were ways or channels in the former Legislative Council for the public to voice their opinions.
LEGISLATIVE COUNCIL ― 18 June 2020 8605
Today, I would like to share a joke with Members. LIU He, Vice Premier of the State Council, said in his speech at an important financial conference that the Central Government insisted on upholding "one country, two systems" and supporting Hong Kong in performing its important function as an international financial centre. That is a joke because we can see that "one country, two systems" will soon exist in name only …
PRESIDENT (in Cantonese): Dr KWOK Ka-ki, please return to the subject of this debate.
DR KWOK KA-KI (in Cantonese): I am returning to the subject of this debate and I am explaining why we have to discuss the Bill. I mentioned earlier that the Bill involves the technical factor of constitutional arrangement. Under the existing constitutional arrangement, the Legislative Council …
PRESIDENT (in Cantonese): Dr KWOK Ka-ki, I remind you again that if you do not return to the subject of this debate …
DR KWOK KA-KI (in Cantonese): I have not spoken outside the scope of this debate; I have been discussing the appropriation arrangement …
PRESIDENT (in Cantonese): The subject of this debate is not the appropriation arrangement, but the Supplementary Appropriation (2018-2019) Bill. Please return to the subject of this debate.
DR KWOK KA-KI (in Cantonese): I am speaking on the Bill. In this debate session, Members are allowed to discuss the Bill, but since the assumptions of the Bill have been discussed at the Finance Committee, there is no need to discuss them again. That is precisely the problem. We are debating on the Bill because the Legislative Council can neither operate effectively nor perform its original functions now. At present, if one votes against the Bill, one will be regarded as endangering national security …
8606 LEGISLATIVE COUNCIL ― 18 June 2020
PRESIDENT (in Cantonese): Dr KWOK Ka-ki, this is my final warning to you.
DR KWOK KA-KI (in Cantonese): Why did you warn me? We will vote against the Bill later, are you telling me …
PRESIDENT (in Cantonese): Dr KWOK Ka-ki, if you still do not return the subject of this debate, I will stop you from speaking. Please return the subject of this debate.
DR KWOK KA-KI (in Cantonese): I am discussing whether I will vote in favour of the Bill, is it not within the scope of the debate? I must now discuss whether I will support the Bill, because in future, this kind of discussion may be regarded as treason, and Members may only be allowed to vote in favour of any bill in the Legislative Council. This view has been expressed on the Mainland and perhaps President, you will concur with it too. That is very horrible and dangerous. The Legislative Council should fully perform its functions; the original intent of the Basic Law is to establish a system in Hong Kong which allows the Legislative Council to monitor the Government because the Government has huge power, as it is the case at present.
Speaking of appropriation, as we said earlier, the amounts of vote for many heads of expenditure are required because the Government has spent extravagantly and performed ineffectively and thus, the Bill is introduced. If the Government had made reasonable requests and performed satisfactorily, it would not be necessary to introduce the Bill to seek an appropriation amounting to as much as $36.7 billion. If we Members cannot even ask public officers to treat the Bill seriously in the Legislative Council, what is the meaning for our existence? We may as well applaud like those hand-raising machines of the Standing Committee of the National People's Congress ("NPCSC"). Buddy, I would never be like that. Perhaps pro-establishment Members and the royalists would behave in such a way, but I am different from them, and I have my responsibilities to perform as a Member returned by direct election.
We understand that it will be useless even if we vote against the Bill today, because the money had been spent already. However, we must clearly explain the situation. The days in which Members can speak the truth in the Legislative Council are numbered. As we all know, after the implementation of the Hong LEGISLATIVE COUNCIL ― 18 June 2020 8607
Kong national security law, situations like disqualifying Members may happen. We cannot imagine how terrible it will be for the future Legislative Council; many Members who are present here may be disqualified to stand for election in the future, but that is not the most important point. The implementation of Hong Kong national security law will ruin Hong Kong and the Government as a whole. Members play a very important role in the Legislative Council. When we are scrutinizing the Bill, the appropriation bill or any other bills, every public officer in attendance should not doze off or use his or her mobile phone at Council meetings; we require them to respond to our questions seriously. If we doze off just like members of NPCSC, what will Hong Kong become? Can Hong Kong still be called Asia's world city? If people have really gone crazy, they had better go home and sleep.
This mode of governance is the exact reason for the incessant degradation of Hong Kong. Thus, we must seriously treat each bill, including this Bill, the passage of which is considered as a mere formality by many. Pro-establishment Members may think we cannot do anything about them because they are in the majority, and the Bill has been endorsed by the Finance Committee. They clearly know that we do not have enough votes to veto the Bill. If more pro-democracy Members are disqualified, then we can do absolutely nothing. I do not know if they should be complacent. Public officers should consider whether the approach of pro-establishment Members will only get everyone into trouble. The Group of Seven expressed its concern about the situation of Hong Kong in its statement published yesterday. It is concerned about what would happen after the implementation of the Hong Kong national security law. The Legislative Council Election will be held in September. In fact, we do not have to wait till September, since nomination of candidates will start in July …
PRESIDENT (in Cantonese): Dr KWOK Ka-ki, this is my final warning to you. Please return to the subject of this debate.
DR KWOK KA-KI (in Cantonese): President, I have been discussing the Bill all along. I tell you, I am discussing the Bill.
PRESIDENT (in Cantonese): Dr KWOK Ka-ki, you have digressed. If you do not return to the subject of the debate …
8608 LEGISLATIVE COUNCIL ― 18 June 2020
DR KWOK KA-KI (in Cantonese): I am returning to the subject of the debate. I think instead of covering cost overruns by means of the Bill as a mere formality, we should handle it seriously.
PRESIDENT (in Cantonese): Dr KWOK Ka-ki, you have repeated this point many times.
DR KWOK KA-KI (in Cantonese): Alright, I will not repeat it. The Government said that the proposals have no negative implications on the economy, finance, civil service, environment, productivity, sustainability, family or gender. I also hope that our remarks will have no implications on the economy, finance, civil service, environment, productivity, sustainability, family or gender. Otherwise, like what happened today, if the President, Andrew LEUNG, considered a Member's speech unpleasing to his ears, he would tell the Member to sit down and turn the Legislative Council into a dictatorial place where voices of Members were muffled or muted. His approach is really very effective, but will this bring any benefit to Hong Kong? Will the status of Hong Kong as Asia's world city be enhanced? Only in your dreams. Hong Kong will only degrade incessantly. Some overseas countries have already started to question why they have to do business with us. The Legislative Council and the Government of Hong Kong have been operating ineffectively. Worse still, the Hong Kong national security law can be invoked for many purposes. The whole world is watching the development of Hong Kong and how the Legislative Council will be suppressed by various means, such as disqualifying Members or …
PRESIDENT (in Cantonese): Dr KWOK Ka-ki, please stop speaking.
Does any other Member wish to speak?
(No Member indicated a wish to speak)
PRESIDENT (in Cantonese): If not, I now call upon the Secretary for Financial Services and the Treasury to reply. Then, the debate will come to a close. Secretary, please speak.
LEGISLATIVE COUNCIL ― 18 June 2020 8609
SECRETARY FOR FINANCIAL SERVICES AND THE TREASURY (in Cantonese): President, I am very grateful to the Members who have expressed their views on this subject. I will respond in four respects, discussing the specifics and the concepts involved.
First, specifically, Members have repeatedly mentioned the supplementary appropriation of over $30 billion. Among the sum, $20 billion will be injected into the Innovation and Technology Fund which has been approved by the Finance Committee; and over $3 billion is for pay adjustment. Proper authorization has actually been obtained for these items, thus it is not true that the Government is "spending in advance of its appropriations".
Second, Members attach great importance to the proper use of public funds by government departments, and so do we. A Member asked why supplementary appropriations are only needed by some but not all of the 84 heads of expenditure to finance the pay rise (for civil servants). This is exactly because some departments have surpluses due to various reasons, and thus supplementary appropriation is not needed. This indirectly reflects that government departments have used public funds properly.
Apart from responding to these two specific points, I would like to make one point concerning the concepts of procedures, public policy and the philosophy of public finance management. The items listed in the paper on the Supplementary Appropriation (2018-2019) Bill have been reported in detail to the Legislative Council and the Finance Committee on a quarterly basis by the Government according to the statutory requirements. Thus, it is not true that Members learnt for the first time today about the supplementary appropriation of some $30 billion; they have learnt about the appropriation before. I have with me the relevant document dated June 2019.
Turning to my fourth point, a Member has expressed the view that there is a need to independently monitor the Government lest it will not be unregulated. In fact, that is also our concern. Thus, the Audit Commission will audit the accounts of the Government every year and submit the relevant reports.
I have made four points on the specific details and the concepts involved, including: first, a large part of the supplementary appropriation has been approved by the Finance Committee; second, government departments have used public funds properly as some of them have surpluses; third, the Government has 8610 LEGISLATIVE COUNCIL ― 18 June 2020 submitted quarterly reports to the Legislative Council and the Finance Committee; and fourth, the accounts of the Government is independently audited. That is my response to the views of Members.
Thank you.
PRESIDENT (in Cantonese): I now put the question to you and that is: That the Supplementary Appropriation (2018-2019) Bill be read the Second time.
(Dr Fernando CHEUNG indicated his wish to raise a point of order)
PRESIDENT (in Cantonese): Dr Fernando CHEUNG, what is your point of order?
DR FERNANDO CHEUNG (in Cantonese): I request a headcount.
PRESIDENT (in Cantonese): Let me read out the question to be put first.
I now put the question to you and that is: That the Supplementary Appropriation (2018-2019) Bill be read the Second time.
Dr Fernando CHEUNG rose to claim a division.
PRESIDENT (in Cantonese): Dr Fernando CHEUNG 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.
LEGISLATIVE COUNCIL ― 18 June 2020 8611
Mr Abraham SHEK, Mr Tommy CHEUNG, Mr Jeffrey LAM, Mr WONG Ting-kwong, Ms Starry LEE, Mr CHAN Hak-kan, Mr CHAN Kin-por, Dr Priscilla LEUNG, Mr WONG Kwok-kin, Mrs Regina IP, Mr Steven HO, Mr Frankie YICK, Mr YIU Si-wing, Mr MA Fung-kwok, Mr LEUNG Che-cheung, Ms Alice MAK, Mr KWOK Wai-keung, Mr Christopher CHEUNG, Ms Elizabeth QUAT, Mr Martin LIAO, Mr POON Siu-ping, Dr CHIANG Lai-wan, Ir Dr LO Wai-kwok, Mr CHUNG Kwok-pan, Mr Jimmy NG, Mr SHIU Ka-fai, Mr Wilson OR, Ms YUNG Hoi-yan, Dr Pierre CHAN, Mr CHAN Chun-ying, Mr CHEUNG Kwok-kwan, Mr LUK Chung-hung, Mr LAU Kwok-fan, Mr Kenneth LAU, Mr Vincent CHENG, Mr Tony TSE and Ms CHAN Hoi-yan voted for the motion.
Mr LEUNG Yiu-chung, Ms Claudia MO, Mr WU Chi-wai, Mr Charles Peter MOK, Mr CHAN Chi-chuen, Dr KWOK Ka-ki, Mr Dennis KWOK, Dr Fernando CHEUNG, Dr Helena WONG, Mr IP Kin-yuen, Mr Alvin YEUNG, Mr CHU Hoi-dick, Mr LAM Cheuk-ting, Mr SHIU Ka-chun, Ms Tanya CHAN, Mr HUI Chi-fung, Dr CHENG Chung-tai, Mr KWONG Chun-yu and Mr Jeremy TAM voted against the motion.
THE PRESIDENT, Mr Andrew LEUNG, did not cast any vote.
THE PRESIDENT announced that there were 57 Members present, 37 were in favour of the motion and 19 against it. Since the question was agreed by a majority of the Members present, he therefore declared that the motion was passed.
CLERK (in Cantonese): Supplementary Appropriation (2018-2019) Bill.
Council became committee of the whole Council.
Consideration by Committee of the Whole Council
CHAIRMAN (in Cantonese): This Council now becomes committee of the whole Council to consider the Supplementary Appropriation (2018-2019) Bill.
8612 LEGISLATIVE COUNCIL ― 18 June 2020
SUPPLEMENTARY APPROPRIATION (2018-2019) BILL
CHAIRMAN (in Cantonese): I now propose the question to you and that is: That the following clauses and schedule stand part of the Bill.
CLERK (in Cantonese): Clauses 1 and 2, and the Schedule.
CHAIRMAN (in Cantonese): Does any Member wish to speak?
MS CLAUDIA MO: This is a perfunctory bill, and we are doing a perfunctory debate as usual. This is because whatever you say and whatever suggestions that you make, however smartly, the Government will just choose to ignore them. For this is the legal set-up as such and the structural set-up in this Council, it is all perfunctory because we know even if the supplementary appropriation gets voted down―if it does ever―yet with all the Beijing flunkies around, there is no chance that it would be vetoed by the majority as such. We cannot help but ask: What will happen if this Supplementary Appropriation (2018-2019) Bill ("the Bill") gets voted down? Will anyone be held responsible? We do not know. Judging by the official's earlier reply, nothing much is going to happen. What are we going to do about it? That is the idea. Seeking more than $30 billion extra in government spending, yet the fact is that the money has already been spent. So, this is just a matter of going through the procedural matters. Members of this Council cannot disagree with the spending, because the money has already been spent. I would not say the money has "gone down the drain" because there were some meaningful or at least understandable extra spendings on, say, the extra works required to clear the mess after the typhoon hit Hong Kong, or extra welfare spending for the sake of the same matter. Who would object to that―except we would like to know what exactly had happened?
We have the right to know. The people have the right to know. However, as this Bill is so aptly named "Supplementary Appropriation Bill", the word "appropriation" is just rather funny. This is because "to appropriate" could also mean "to steal or take something for your own use, and typically, without the owner's consent or permission". This is exactly the case. Members have already passed the spending, so we are just doing this for the sake of legislative record. That is it. One cannot moan about this, but what hit me as unusual is all the extra propaganda spendings. LEGISLATIVE COUNCIL ― 18 June 2020 8613
If some departments need to spend extra on celebration on whatever issues, it is fine for the sake of pleasure and entertainment of the local people; but still, we would like to have a breakdown on how the money had been spent and what had been done. Nonetheless, the most ironic extra spending is probably made by the Information Services Department ("ISD"), which used to command a lot of respect from local reporters. However, in these days, this particular department is simply doing government propaganda work to help the Government turn Hong Kong into some sort of Orwellian society. ISD's spending was said to be needed for promoting Hong Kong to the rest of the world. Essentially, it was for overseas promotion. But what was the spending all about, then? We only read in the news not too long ago, a few days, I think, that the world's big labels in the advertising industry have pulled out of the tendering of the Hong Kong contract …
CHAIRMAN (in Cantonese): Ms Claudia MO, please return to the subject of this debate.
MS CLAUDIA MO: … Yes, I will. If you judge by the vote in support of the Bill in the Second Reading, you would know that we are against this entire Bill. We are now talking about the consideration of having clauses 1 and 2 and the Schedule stand part of the Bill. Of course, we object the inclusion of them because this just does not sound right. We have every right to say "no" to them. I have been saying that all this new propaganda spending on the part of the Government is unacceptable. If you have noticed it in the media, the latest example is how the Carrie LAM Government has spent on billboards and videos, trying to urge the local population to endorse the new national security law, which is going to be slapped on Hong Kong. How many times we need to ask again? It is public money. And once again, this can be seen as an appropriation.
Thank you.
CHAIRMAN (in Cantonese): Does any other Member wish to speak?
(No Member indicated a wish to speak)
8614 LEGISLATIVE COUNCIL ― 18 June 2020
CHAIRMAN (in Cantonese): Secretary for Financial Services and the Treasury, please speak.
SECRETARY FOR FINANCIAL SERVICES AND THE TREASURY (in Cantonese): Chairman, I respond briefly: First, the supplementary appropriations sought today have all been approved by the Finance Committee and relevant delegated authority and, as I just explained, we have to submit a quarterly report to the Legislative Council and the Finance Committee as required by law; second, an independent audit review of our annual spending will be conducted to ensure that procedure-wise we spend properly.
CHAIRMAN (in Cantonese): I now put the question to you and that is: That the clauses and schedule read out by the Clerk stand part of the Bill. Will those in favour please raise their hands?
(Members raised their hands)
CHAIRMAN (in Cantonese): Those against please raise their hands.
(No hands raised)
CHAIRMAN (in Cantonese): I think the question is agreed by a majority of the Members present. I declare the motion passed.
PRESIDENT (in Cantonese): All the proceedings on the Supplementary Appropriation (2018-2019) Bill have been concluded in committee of the whole Council. Council now resumes.
Council then resumed.
LEGISLATIVE COUNCIL ― 18 June 2020 8615
SECRETARY FOR FINANCIAL SERVICES AND THE TREASURY (in Cantonese): President, I now report to the Council: That the
Supplementary Appropriation (2018-2019) Bill has been passed by committee of the whole Council without amendment. I move the motion that "This Council adopts the report".
PRESIDENT (in Cantonese): I now propose the question to you and that is: That the motion moved by the Secretary for Financial Services and the Treasury be passed.
In accordance with the Rules of Procedure, this motion shall be voted on without amendment or debate.
PRESIDENT (in Cantonese): I now put the question to you as stated. Will those in favour please raise their hands?
(Members raised their hands)
PRESIDENT (in Cantonese): Those against please raise their hands.
(Members raised their hands)
Dr CHIANG Lai-wan rose to claim a division.
PRESIDENT (in Cantonese): Dr CHIANG Lai-wan has claimed a division. The division bell will ring for five minutes.
(While the division bell was ringing, a phone rang inside the Chamber)
8616 LEGISLATIVE COUNCIL ― 18 June 2020
PRESIDENT (in Cantonese): Will Members please switch their mobile phones to silent mode.
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.
Mr Abraham SHEK, Mr Tommy CHEUNG, Mr Jeffrey LAM, Mr WONG Ting-kwong, Ms Starry LEE, Mr CHAN Kin-por, Dr Priscilla LEUNG, Mr WONG Kwok-kin, Mrs Regina IP, Mr Steven HO, Mr Frankie YICK, Mr YIU Si-wing, Mr MA Fung-kwok, Mr LEUNG Che-cheung, Ms Alice MAK, Mr KWOK Wai-keung, Mr Christopher CHEUNG, Ms Elizabeth QUAT, Mr Martin LIAO, Mr POON Siu-ping, Dr CHIANG Lai-wan, Ir Dr LO Wai-kwok, Mr CHUNG Kwok-pan, Mr Jimmy NG, Dr Junius HO, Mr SHIU Ka-fai, Mr Wilson OR, Ms YUNG Hoi-yan, Mr CHAN Chun-ying, Mr LUK Chung-hung, Mr LAU Kwok-fan, Mr Kenneth LAU, Mr Vincent CHENG, Mr Tony TSE and Ms CHAN Hoi-yan voted for the motion.
Mr LEUNG Yiu-chung, Ms Claudia MO, Mr WU Chi-wai, Mr Charles Peter MOK, Mr CHAN Chi-chuen, Dr KWOK Ka-ki, Mr Dennis KWOK, Dr Fernando CHEUNG, Dr Helena WONG, Mr IP Kin-yuen, Mr Alvin YEUNG, Mr CHU Hoi-dick, Mr LAM Cheuk-ting, Mr SHIU Ka-chun, Ms Tanya CHAN, Mr HUI Chi-fung, Dr CHENG Chung-tai, Mr KWONG Chun-yu and Mr Jeremy TAM voted against the motion.
THE PRESIDENT, Mr Andrew LEUNG, did not cast any vote.
THE PRESIDENT announced that there were 55 Members present, 35 were in favour of the motion and 19 against it. Since the question was agreed by a majority of the Members present, he therefore declared that the motion was passed.
LEGISLATIVE COUNCIL ― 18 June 2020 8617
Third Reading of Government Bill
PRESIDENT (in Cantonese): Government Bill: Third Reading.
SUPPLEMENTARY APPROPRIATION (2018-2019) BILL
SECRETARY FOR FINANCIAL SERVICES AND THE TREASURY (in Cantonese): President, I move that the
Supplementary Appropriation (2018-2019) Bill be read the Third time and do pass.
PRESIDENT (in Cantonese): I now propose the question to you and that is: That Supplementary Appropriation (2018-2019) Bill be read the Third time and do pass.
Does any Member wish to speak?
(No Member indicated a wish to speak)
PRESIDENT (in Cantonese): I now put the question to you as stated. Will those in favour please raise their hands?
(Members raised their hands)
PRESIDENT (in Cantonese): Those against please raise their hands.
(Members raised their hands)
Mr WU Chi-wai rose to claim a division.
PRESIDENT (in Cantonese): Mr WU Chi-wai has claimed a division. The division bell will ring for five minutes.
8618 LEGISLATIVE COUNCIL ― 18 June 2020
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.
Mr Abraham SHEK, Mr Tommy CHEUNG, Mr Jeffrey LAM, Mr WONG Ting-kwong, Ms Starry LEE, Mr CHAN Kin-por, Dr Priscilla LEUNG, Mr WONG Kwok-kin, Mrs Regina IP, Mr Steven HO, Mr Frankie YICK, Mr YIU Si-wing, Mr MA Fung-kwok, Mr LEUNG Che-cheung, Ms Alice MAK, Mr KWOK Wai-keung, Mr Christopher CHEUNG, Ms Elizabeth QUAT, Mr Martin LIAO, Mr POON Siu-ping, Dr CHIANG Lai-wan, Ir Dr LO Wai-kwok, Mr CHUNG Kwok-pan, Mr Jimmy NG, Dr Junius HO, Mr SHIU Ka-fai, Mr Wilson OR, Ms YUNG Hoi-yan, Dr Pierre CHAN, Mr CHAN Chun-ying, Mr LUK Chung-hung, Mr LAU Kwok-fan, Mr Kenneth LAU, Mr Vincent CHENG, Mr Tony TSE and Ms CHAN Hoi-yan voted for the motion.
Mr LEUNG Yiu-chung, Ms Claudia MO, Mr WU Chi-wai, Mr Charles Peter MOK, Mr CHAN Chi-chuen, Dr KWOK Ka-ki, Mr Dennis KWOK, Dr Fernando CHEUNG, Dr Helena WONG, Mr IP Kin-yuen, Mr Alvin YEUNG, Mr CHU Hoi-dick, Mr LAM Cheuk-ting, Mr SHIU Ka-chun, Ms Tanya CHAN, Mr HUI Chi-fung, Dr CHENG Chung-tai, Mr KWONG Chun-yu and Mr Jeremy TAM voted against the motion.
THE PRESIDENT, Mr Andrew LEUNG, did not cast any vote.
THE PRESIDENT announced that there were 56 Members present, 36 were in favour of the motion and 19 against it. Since the question was agreed by a majority of the Members present, he therefore declared that the motion was passed.
CLERK (in Cantonese): Supplementary Appropriation (2018-2019) Bill.
LEGISLATIVE COUNCIL ― 18 June 2020 8619
GOVERNMENT MOTIONS
PRESIDENT (in Cantonese): Government motions.
Proposed resolution under Article 73(7) of the Basic Law and section 7A of the Hong Kong Court of Final Appeal Ordinance on appointment of the Chief Justice of the Court of Final Appeal.
Members who wish to speak please press the "Request to speak" button.
I call upon the Chief Secretary for Administration to speak and move the motion.
PROPOSED RESOLUTION UNDER ARTICLE 73(7) OF THE BASIC LAW AND SECTION 7A OF THE HONG KONG COURT OF FINAL APPEAL ORDINANCE (CAP. 484) ON APPOINTMENT OF THE CHIEF JUSTICE OF THE COURT OF FINAL APPEAL
CHIEF SECRETARY FOR ADMINISTRATION (in Cantonese): President, I move that the motion under my name, as printed in the Agenda, be passed, that is, this Council endorses the appointment of the Honourable Mr Justice Andrew CHEUNG Kui-nung as the Chief Justice of the Court of Final Appeal ("CFA").
CFA is the final appellate court in Hong Kong, hearing both civil and criminal appeals. The Chief Justice is the President of CFA and the head of the Judiciary. He is charged with the administration of the Judiciary and the execution of various statutory powers and functions vested in him.
Article 88 of the Basic Law provides that judges of the courts of the Hong Kong Special Administrative Region ("HKSAR") shall be appointed by the Chief Executive on the recommendation of an independent commission composed of local judges, persons from the legal profession and eminent persons from other sectors. The Judicial Officers Recommendation Commission ("JORC") is the statutory body constituted by the Judicial Officers Recommendation Commission Ordinance (Cap. 92) to perform the functions of the independent commission referred to in Article 88 of the Basic Law.
8620 LEGISLATIVE COUNCIL ― 18 June 2020
In the case of the appointment of the Chief Justice of CFA, Article 90 of the Basic Law provides that the Chief Executive shall, in addition to following the procedures prescribed in Article 88 of the Basic Law, obtain the endorsement of the Legislative Council and report such appointment to the Standing Committee of the National People's Congress for the record.
Pursuant to Article 92 of the Basic Law, judges of HKSAR shall be chosen on the basis of their judicial and professional qualities. Further, Article 90 of the Basic Law stipulates that the Chief Justice of CFA of HKSAR shall be a Chinese citizen who is a permanent resident of HKSAR with no right of abode in any foreign country.
The Judicial Officers Recommendation Commission Ordinance stipulates that JORC should consist of the Chief Justice as the Chairman, the Secretary for Justice and seven other members appointed by the Chief Executive. They include two judges, one barrister appointed after consultation with the Bar Council of the Hong Kong Bar Association, one solicitor appointed after consultation with the Council of The Law Society of Hong Kong, and three persons not connected in any way with the practice of law.
The incumbent Chief Justice, Mr Geoffrey MA, will retire on 11 January 2021. JORC held three meetings during the period from November 2019 to January 2020 to decide on the selection procedures and the appointment criteria for shortlisting candidates suitable for appointment as the next Chief Justice of CFA, and to consider the recommendation of a suitable candidate for such appointment. Having completed the selection process in accordance with the agreed procedures, JORC has recommended to the Chief Executive the appointment of Mr Justice Andrew CHEUNG, Permanent Judge of CFA, as the Chief Justice of CFA with effect from 11 January 2021.
Mr Justice Andrew CHEUNG was a pre-eminent barrister when he joined the Judiciary in 2001. He was appointed the Chief Judge of the High Court in 2011, leading the High Court both judicially and administratively. He was later appointed as a Permanent Judge of CFA in October 2018.
Mr Justice Andrew CHEUNG is a judge of high integrity and is widely respected both within the Judiciary and the legal profession. Mr Justice CHEUNG is a highly competent judge. He has written many important and landmark judgments on major and complicated cases, including constitutional and LEGISLATIVE COUNCIL ― 18 June 2020 8621 public law cases. As the Chief Judge of the High Court from 2011 to 2018, Mr Justice CHEUNG had to discharge very onerous administrative duties. He is also the key adviser to the Chief Justice of CFA on strategic matters and court operation issues. It is evident that Mr Justice CHEUNG possesses rich administrative experience and exemplary leadership qualities to discharge the responsibilities as the head of the Judiciary.
The Chief Executive has accepted the recommendation of JORC on the appointment of Mr Justice Andrew CHEUNG as the Chief Justice of CFA. Subject to the endorsement of this Council, the appointment shall take effect on 11 January 2021.
President, in accordance with the procedures previously endorsed by the House Committee of the Legislative Council, the Government informed the House Committee on 24 March 2020 that the Chief Executive had accepted the recommendation of JORC on this appointment. Representatives from the Government and the Secretary to JORC attended the meeting of the Subcommittee on Proposed Senior Judicial Appointments on 26 May 2020 and answered Members' questions. I would like to thank Dr Priscilla LEUNG, Chairman of the Subcommittee, and other members of the Subcommittee for their support of the proposed appointment.
With these remarks, I invite Members to endorse the appointment. Thank you.
The Chief Secretary for Administration moved the following motion:
"RESOLVED that the appointment of the Honourable Mr Justice Andrew Cheung Kui-nung as the Chief Justice of the Hong Kong Court of Final Appeal pursuant to section 6 of the Hong Kong Court of Final Appeal Ordinance (Cap. 484) be endorsed."
PRESIDENT (in Cantonese): I now propose the question to you and that is: That the motion moved by the Chief Secretary for Administration be passed.
Dr Priscilla LEUNG, please speak.
8622 LEGISLATIVE COUNCIL ― 18 June 2020
DR PRISCILLA LEUNG (in Cantonese): President, in my capacity as Chairman of the Subcommittee on Proposed Senior Judicial Appointments ("the Subcommittee"), I now briefly report on the deliberations of the Subcommittee.
The Subcommittee has held one meeting. Members have noted that Mr Justice Andrew CHEUNG has served in the Judiciary since 2001 and he commands respect within the Judiciary and from the legal profession. He has written many important judgments on major and complicated cases, including constitutional and public law cases and he has rich administrative experience in the Judiciary.
When Mr Justice CHEUNG was the Chief Judge of the High Court from 2011 to 2018, he served as members or chairpersons on various committees: he was a member of the Committee on Information Technology; Chairman of the Working Group on Integrated Court Case Management System under the Committee on Information Technology; a member of the Working Group on Retirement Ages of Judges and Judicial Officers; Chairman of the Steering Group on Consultancy Study under the Working Group on Retirement Ages of Judges and Judicial Officers; Chairman of the Executive Committee of the Hong Kong Judicial Institute; and Chairman of the Chief Justice's Committee on Judicial Remuneration, etc. He performs heavy administrative duties and is the key adviser to the Chief Justice of the Court of Final Appeal ("CFA") on strategic matters and court operation, and he has been a member of the Law Reform Commission since 2018.
The Subcommittee has expressed unanimous support to the proposed appointment of Mr Justice Andrew CHEUNG as the Chief Justice of CFA. Some members hope that Mr Justice CHEUNG would be forward-looking and bring about reforms in the Judiciary to address the shortage of judicial manpower and expedite the use of technology in courts. Some members also hope that Mr Justice CHEUNG would clear up the backlog of cases especially those related to recent social events and judicial review cases arising from non-refoulement claims, as well as uphold an impartial judiciary as the incumbent Chief Justice of CFA has stressed time and again.
(THE PRESIDENT'S DEPUTY, MS STARRY LEE, took the Chair)
LEGISLATIVE COUNCIL ― 18 June 2020 8623
During the discussions, some members have expressed their views on the procedures of the Judicial Officers Recommendation Commission for selecting the candidate to be recommended for appointment as the Chief Justice; criteria for the selection of candidates to fill vacancies in judicial offices; and how to implement Article 90 of the Basic Law in the selection process, i.e. the Chief Justice of CFA shall be a Chinese citizen who is a permanent resident of the Hong Kong Special Administrative Region with no right of abode in any foreign country. The deliberations of the Subcommittee are set out in the report submitted to the House Committee.
Deputy President, my personal opinions are as follow.
After a great deal of hubbub, this Council can finally convene a Subcommittee meeting for the appointment of Mr Justice Andrew CHEUNG as the next Chief Justice of CFA to complete the established procedures; we finally felt relieved.
Mr Justice CHEUNG has served in the Judiciary for 20 years and has extensive experience. He has served as District Judge and Permanent Judge of CFA and he has heard criminal, civil and administrative cases. Mr Justice CHEUNG is well acquainted with the operation of the Judiciary; besides having rich legal knowledge, he has extensive administrative experience, outstanding ability and leadership, and commands high respect within the Judiciary and from the legal profession.
Personally, I strongly support the appointment of Mr Justice Andrew CHEUNG as the next Chief Justice. Mr Justice CHEUNG has dealt with many knotty cases. For example, when he was appointed as Judge of the Court of First Instance of the High Court in 2003, he presided over estate cases, such as the estate of the famous singer Anita MUI and the dispute over the estate of Nina WANG. Mr Justice CHEUNG had also handled a number of highly controversial human rights and judicial review cases, such as the judicial review case regarding the one-year residence requirement of the Social Welfare Department for Comprehensive Social Security Assistance. He considered that the restriction was discriminatory and violated the Basic Law and the human rights law. He also adjudicated on the judicial review case filed by the Catholic Diocese of Hong Kong on the school-based management legislation. He ruled against the Catholic Diocese of Hong Kong and the ruling was upheld on appeal. He had also handled many controversial cases, such as the first judicial review 8624 LEGISLATIVE COUNCIL ― 18 June 2020 case on giving transgender people the right to marry, the case of foreign domestic helpers seeking the right of abode in Hong Kong, the Legislative Council oath-taking case involving Sixtus LEUNG and YAU Wai-ching, etc. We may not completely agree with the judgments of Mr Justice CHEUNG on the cases he heard but his judgments are always worthy of reference. He is absolutely impartial, selfless and fearless.
Hong Kong is a city that upholds the rule of law, litigation costs are high and the litigation period is very long. The so-called "delayed justice" is tantamount to justice denied. I believe that the Judiciary and the Chief Justice of previous terms had all along been facing the problem of insufficient manpower. When I presented the report of the Subcommittee just now, I mentioned that a few thousand non-refoulement claims have been accumulated over the past few years and there is a huge backlog of cases related to the Occupy Central incident in 2014. I think the relevant workload has exceeded the staffing capacity of the Judiciary.
The terms of appointment of judges in Hong Kong are attractive, given the handsome remuneration and lifetime appointment. As there is no revolving door for full-time judges, a practicing lawyer has to make a major decision and serious commitment to become a full-time judge.
Mr Justice CHEUNG accepted the invitation to join the Judiciary in 2001 and he has served in the Judiciary for more than 19 years, which is not easy. Hong Kong is now in an important time of great turbulence and earlier the Judiciary was shut down for a few months because of the epidemic. There are complaints from the community and the legal profession that the Judiciary has been lagging behind in the use of high technology for trials. As Mr Justice CHEUNG was once a member of the Committee on Information Technology and a member of the Working Group on Integrated Court Case Management System under the Committee on Information Technology; we hope that he will, after assumption of office, lead the courts to attain breakthrough progress in the area of high-tech development.
Moreover, in respect of manpower and judicial training, Mr Justice CHEUNG was once in charge of the Hong Kong Judicial Institute for judicial training. I hope that the Judiciary will be more proactive in future and will actively attract more high calibre members of the legal profession to join the Bench. I believe that relying on deputy judges alone cannot cope with the heavy LEGISLATIVE COUNCIL ― 18 June 2020 8625 workload. I declare that I have worked in the School of Law of the City University of Hong Kong for more than 28 years and I have witnessed many graduates from the three law schools in Hong Kong becoming senior partners or senior legal professionals. I hope that the Judiciary will invite aspiring persons from the law schools of various universities to join the Judiciary. The Judiciary should be more aggressive in allowing law students to understand at an early stage the work of the Judiciary, so that they would become interested in the work. This can help attract quality talents to join the Judiciary.
In connection with the nurturing of judicial talents, I think the Government should encourage the three major law schools to nurture more biliterate and trilingual judicial talents, so that judges can directly hear cases without the need for court interpretation. In fact, lawyer fees, litigation costs and court time are required for litigation; if there are sufficient talents in this area, court time and litigation costs of the parties concerned can be reduced. As globalization is now a hot topic, the Judicial Institute should enhance high-tech training for dealing with international disputes and cross-boundary crimes involving artificial intelligence. Attention should also be paid to training on "one country, two systems", the Constitution and the Basic Law in order to meet the increasing demand. Given that Mr Justice Andrew CHEUNG was the Chairman of the Executive Committee of the Hong Kong Judicial Institute from 2016 to 2018, I deeply believe that he has extensive experience in these areas and I hope he will bring breakthroughs.
Yesterday evening, I was asked by the media to respond to the announcement of members of the Democratic Party that they would abstain from voting on this motion on the ground that the rule of law was undermined, yet they did not object to the appointment of Mr Justice Andrew CHEUNG as the Chief Justice. I think this approach is self-contradictory. We must make one thing clear: members of the public can have different political views and hold diverse views on the judgments of the Judiciary, especially the judgments on controversial cases, but we must fully support Mr Justice Andrew CHEUNG so as to maintain the dignity and operation of the Judiciary.
Very often, the Judiciary gets entangled with politics for no reason in respect of highly controversial cases. I remember Chief Justice Andrew LI once said that he did not wish to see judicial review cases become an avenue for politicians to express dissatisfaction with political reality. I fully understand that judges might have a sense of helplessness, especially in recent years when 8626 LEGISLATIVE COUNCIL ― 18 June 2020 individual judges were publicly insulted in courts and some courts were set on fire. A few years ago, some judges were intimidated online and their lives threatened because of their handling of cases related to the Occupy Central incident. We definitely do not want to see these things happen.
I now appeal to all Members that regardless of our diverse political views, we should all ensure that the Judiciary can hear cases without pressure. Some anonymous judges have expressed their political views and some judges have expressed dissatisfaction with the movement of opposition to the proposed legislative amendments. I think the Judiciary must follow up on these cases and be accountable to the public, so that the public would understand that the Judiciary is working hard to ensure that justice will be served. I think the Judiciary has still not given an account to the public. I do not wish to see judges, who are mostly impartial and politically neutral in their adjudication of cases, to be implicated and have their impartiality queried by the public for no reason. Therefore, I sincerely hope that the Judiciary will give an account to the public.
I fully understand that the Judiciary has to deal with many cases that involve significant public interests but they may not be related to politics. Such cases include the right of abode in Hong Kong of foreign domestic helpers, the KONG Yunming case about social welfare enjoyed by residents and the famous Hysan case. In his judgment on the Hysan case, Chief Justice Geoffrey MA referred to Article 6 and Article 105 of the Basic Law and the proportionality test, which has very important and far-reaching impacts on the precedents of Hong Kong. Chief Justice Geoffrey MA believed that the fourth step should be added and he specifically pointed out that constitutional rights should balance the interests of all parties. I trust that the legal profession will not be unfamiliar with the proportionality analysis. In handling the Hysan case, Chief Justice Geoffrey MA considered that the fourth step should be considered, which has far-reaching and significant impacts on how to balance individual rights, rights under the Constitution, rights under the Basic Law and public interests when dealing with cases involving major public interests in the future. I really appreciate Chief Justice Geoffrey MA for his appropriate handling of this case, the many significant controversial cases as well as significant disputes.
I thank Chief Justice Geoffrey MA for his work in the Judiciary in the past 10 years. He has made judgments on major social disputes. I expect a smooth handover of work within the Judiciary and I hope the Judiciary led by Chief LEGISLATIVE COUNCIL ― 18 June 2020 8627
Justice Andrew CHEUNG will make more contributions to upholding the rule of law and promoting justice.
Deputy President, I so submit.
DEPUTY PRESIDENT (in Cantonese): Does any other Member wish to speak?
MR TOMMY CHEUNG (in Cantonese): Deputy President, the Liberal Party supports the appointment of Mr Justice Andrew CHEUNG as the third Chief Justice of the Court of Final Appeal ("CFA") of the Hong Kong Special Administrative Region ("HKSAR"), succeeding Chief Justice Geoffrey MA.
Deputy President, it seems that some people have been deliberately spreading the misunderstanding in the community that whoever becomes the Chief Justice of CFA can totally control CFA and dominate its judgments. As a matter of fact, CFA's open hearings are heard by the Full Court comprising four permanent local judges and one non-permanent local or overseas judge invited to sit on CFA. These five judges are required to reach the greatest consensus and make a judgment on the case based on legal principles and known facts. The Chief Justice does not enjoy absolute dominance in the hearing of cases as imagined by some people. In fact, it is the major duty of the Chief Justice to ensure that the entire judicial system of HKSAR operates effectively to uphold justice. This involves a great deal of practical work in respect of the administration of justice as well as the management of personnel and case flow. Therefore, it is an indisputable fact that having rich experience in the administration of justice is more essential than simply having sound legal knowledge.
As pointed out in the report submitted to the House Committee by the Subcommittee on Proposed Senior Judicial Appointments, in the past 20 years of his judicial career, Mr Justice Andrew CHEUNG has taken up administrative duties to help reform the Judiciary on numerous occasions, serving as members or chairpersons in different areas such as the judicial remuneration, retirement ages of Judges and Judicial Officers and the application of information technology. Also, he had acted as the key adviser to the Chief Justice of CFA on strategic matters and court operation issues. According to the report, Mr Justice Andrew CHEUNG has proven leadership and could confidently discharge the 8628 LEGISLATIVE COUNCIL ― 18 June 2020 responsibilities as the head of the Judiciary. Members express support to the proposed appointment of Mr Justice Andrew CHEUNG as the third Chief Justice of HKSAR.
The Subcommittee has expressed the following expectations for Mr Justice Andrew CHEUNG: being more proactive in recruitment of talents to the Judiciary to address the shortage of judicial manpower; clearing up the backlog of cases especially those related to recent social events and judicial review cases arising from non-refoulement claims; expediting the use of technology in courts, and other important issues such as upholding an impartial judiciary as the former two Chief Justices of CFA have stressed time and again.
Deputy President, the Liberal Party agrees that there is urgency for the above mentioned expectations expressed by the Subcommittee, and it is hoped that after Mr Justice Andrew CHEUNG assumes office, he will, as suggested by his Chinese name, "have the ability to meet the expectations and the skills to let go". With regard to the appointment of Mr Justice Andrew CHEUNG as the Chief Justice of CFA, honestly speaking, the fact that the appointment has received widespread support in the community is rare and highly laudable at a time when Hong Kong's society is severely divided. Nonetheless, some people always pick bones from eggs. Simply put, there are two kinds of criticisms in the community. Some people say that since Justice CHEUNG is only a home-grown judge and was not a Senior Counsel before joining the Judiciary, he is therefore not a "blue blood" and is not imposing. On the other hand, some people criticized his conservative stance, saying that he uncritically adopted the interpretation of the Standing Committee of the National People's Congress ("NPCSC") when making judgments, thus failing to defend the rule of law.
Deputy President, on 30 May 2018, when this Council considered the motion on the appointment of Mr Justice Andrew CHEUNG as a Permanent Judge of CFA, I made the following remarks: "[The Liberal Party] agree[s] that Hong Kong must remain cosmopolitan, but we also support efforts of localization at all levels of governance in our society. We therefore think that the appointment of Mr Justice CHEUNG as a Permanent Judge of CFA is in fact a good example of the successful localization of judicial officers in Hong Kong." Mr Justice CHEUNG is a home-grown judge with both his legal training and professional career rooted in Hong Kong. His judicial career has been sound and solid. Starting in the District Court, he rose through the ranks to the Court LEGISLATIVE COUNCIL ― 18 June 2020 8629 of First Instance and the Court of Appeal of the High Court, and now he is nominated for elevation to CFA. There is nothing flowery about him. Being the only bilingual CFA judge after the retirement of Mr Justice Robert TANG Ching, Mr Justice CHEUNG will take over the former's role of hearing cases dealt with in Chinese. The appointment of Mr Justice CHEUNG to CFA also signifies that the views, values and wisdom of the common people in Hong Kong will be felt and heard in CFA. This will help the common law take root among the common people in Hong Kong, and the common law will thus become the law of Hong Kong understood and recognized by the common people.
Deputy President, today, I want to reiterate the remarks made by me at this Council two years ago. In addition, as a "restaurant guy", I want to remind those who think they are a cut above others and consider it essential for the Chief Justice to be a "blue blood" that no human beings actually have blue blood. I would also like to cite the example of YU Shuk-siu, a renowned veteran barrister in the legal sector of Hong Kong. Despite his superb litigation skill and decades of practice under his belt, he refused to take the title of "Queen's Counsel" and took pride in doing so. When people in the legal profession talk about barrister YU Shuk-siu today, they still have high esteem for him. To put it plainly, people making such criticism actually snub the local legal professional training, snub the local judicial training and snub the common people in Hong Kong. Given that such criticism is made by people who have held aloft democracy, may I ask how can people who snub the common people advocate democracy?
The criticism that Justice CHEUNG uncritically adopted NPCSC's interpretation was actually related to the justifications cited by him when he ruled in the Court of Appeal on the disqualification of Sixtus LEUNG and YAU Wai-ching. The gist of the criticism is: According to the judgment handed down by Mr Justice Thomas AU of the High Court, even if NPCSC had not made any interpretation of Article 104 of the Basic Law, the Court could still disqualify LEUNG and YAU pursuant to the Oaths and Declarations Ordinance. It is not necessary for Justice CHEUNG to cite the NPCSC interpretation of the Basic Law to deal with the appeal of LEUNG and YAU, nor is it necessary for him to highlight that NPCSC's interpretation is a legal matter of the Mainland which should not be questioned or intervened under the common law of Hong Kong. People thus query whether Mr Justice CHEUNG should uncritically accept NPCSC's interpretations.
8630 LEGISLATIVE COUNCIL ― 18 June 2020
Regarding the judgment handed down by Justice CHEUNG in the Court of Appeal, the solicitor acting on behalf of LEUNG and YAU pointed out that the court should not, under the principle of separation of powers, interfere with the Legislative Council oath-taking incident. Also, section 21 of the Oaths and Declarations Ordinance on the consequence of non-compliance is not a constitutional requirement imposed under Article 104 of the Basic Law. Hence, the court should follow the precedent of the United Kingdom and should not interfere with the Legislative Council oath-taking incident, and that LEUNG and YAU should be given another opportunity to take the oath. NPCSC's interpretation of Article 104 of the Basic Law has actually amended the Basic Law, thus the court should declare the interpretation null and void.
Frankly speaking, since LEUNG and YAU appealed on the basis of the constitutional arrangement of Hong Kong, how could the Court of Appeal evade the important question of constitutional arrangement and make no response? In the judgment, Mr Justice CHEUNG clearly pointed out that, unlike the United Kingdom, the Basic Law but not the Legislative Council of Hong Kong enjoyed the highest legal status. When the dispute in court involved a constitutional requirement stipulated in the Basic Law, the common law principles of separation of powers and judicial non-intervention did not apply. Such principles should not be cited to impede the court in discharging its constitutional duty to enforce the Basic Law, as well as to adjudicate and rule on any disputes relating to the Basic Law.
Article 104 of the Basic Law stipulates the constitutional requirement of a Member of the Legislative Council to take oath when assuming office. NPCSC's interpretation of Article 104 of the Basic Law elaborates the meaning of the provision, which includes the consequence of non-compliance. Given that the interpretation is binding on the courts of Hong Kong, and the Basic Law has not empowered any local courts to deal with the question of whether NPCSC's interpretation has materially amended the Basic Law, the court cannot declare NPCSC's interpretation null and void. Justice CHEUNG had simply stated the reality of the laws of Hong Kong. Subsequently, when CFA dismissed LEUNG and YAU's application for leave to appeal and ruled that they were ultimately defeated, it had also given full recognition to the legal analysis made by Justice CHEUNG. Frankly speaking, some people's dissatisfaction with the reality, be it political or legal, has prompted them to challenge the reality disregarding the consequences. While the consequence of blindly challenging the reality is sometimes borne by the person concerned, sometimes Hong Kong people have to "foot the bill" as well. LEGISLATIVE COUNCIL ― 18 June 2020 8631
In the face of serious social dissension, a series of political and legal consequences that have arisen therefrom, and even foreign sanctions, my message to those who vow aloud to defend the rule of law is: "Had you known these consequences today, you would not have done all that in the first place." But perhaps this is precisely what they are happy to see.
Deputy President, returning to the reality, Mr Justice Andrew CHEUNG well deserves and is prefectly the suitable person to be appointed as the Chief Justice of CFA. The Liberal Party wholeheartedly supports the motion.
DEPUTY PRESIDENT (in Cantonese): Mr Dennis KWOK, please speak.
MR DENNIS KWOK (in Cantonese): Deputy President, I request a headcount.
DEPUTY PRESIDENT (in Cantonese): Mr Dennis KWOK requested a headcount.
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)
DEPUTY PRESIDENT (in Cantonese): A quorum is now present in the Chamber. The meeting now continues.
Mr Dennis KWOK, please speak.
MR DENNIS KWOK: I rise to speak in my capacity as the representative of the legal functional constituency in support of the motion to appoint Mr Andrew CHEUNG Kui-nung as the next Chief Justice of HKSAR.
8632 LEGISLATIVE COUNCIL ― 18 June 2020
I think it is important to point out the fundamental principles which I hope Members can agree upon. These fundamental principles, being the separation of powers and judicial independence, should be respected in considering judicial appointments.
I hope Members would generally share the view that it is not intended for the legislature to duplicate the process of the Judicial Officers Recommendation Commission, the process which they have gone through in coming up with the recommended judicial appointments. While the legislature's power to endorse judicial appointment is a substantive one, it should only act as a final gate-keeper, not to endorse a judicial appointment which is manifestly contrary to public interest, which is certainly not the case here.
The rule of law is the bedrock of Hong Kong's stability, as is often said, and an independent Judiciary is essential to the rule of law. "The independent Judiciary has a vital constitutional role to ensure that the acts of the executive and the legislature comply fully with the Basic Law and the law and that our fundamental rights and freedoms, which are at the heart of Hong Kong's system, are fully safeguarded." I quote from the former Chief Justice Andrew LI in his speech in 2011.
The role of our judges performs daily through hearing and adjudication of cases by applying the law is a matter of fundamental importance. Our system of justice places a heavy responsibility on our judges. Their judgments decide the liberty and property and affect the interests of the persons before them. In the highest courts, they decide questions of legal principle which have far-reaching effect beyond the parties immediately involved, and often set the direction for the future of the law.
Now, I would like to, at this juncture, quote from the recent statement issued by the Chief Justice in relation to a matter that was before the District Court and has generated much controversy. In the statement, the Chief Justice said, and I quote, "The due administration of justice by an independent and impartial judiciary is the cornerstone of the rule of law in Hong Kong. Judges have a responsibility under the Basic Law, owed to the community, to exercise independent judicial power by adjudicating on cases fairly and impartially, without fear or favour. It should be emphasized again that everyone is equal before the law.
LEGISLATIVE COUNCIL ― 18 June 2020 8633
An important aspect of this is that judges and judicial officers must not be biased nor, just as important, be reasonably perceived to be biased for or against any persons or causes."―must not be biased nor, be reasonably perceived to be biased for or against any persons or causes. I highlight and repeat this point―"For this reason, they must refrain from unnecessarily expressing in public, including in their judgments, any views on matters that are controversial in society or may come before the courts for adjudication. This is particularly so with political views of whatever nature. Where the resolution of an issue in a court case necessitates the expressing of a view by the court on a matter of political controversy, such view must be measured and go no more than is reasonably necessary to dispose of the issue at hand.
Non‑adherence to these principles threatens the public's confidence in, and its perception of, the independence and impartiality of the Judiciary. A judge or judicial officer who expresses in public unwarranted or unnecessary political views risks compromising the appearance of impartiality and ability to hear any cases in which one's political stance may reasonably be regarded as relevant.
The Chief Justice has in the past reminded all judges and judicial officers of these important principles, which are contained in the Guide to Judicial Conduct." (End of quote) I think these basic principles require to be repeated again at this critical juncture because they are the fundamental principles in which the Judiciary should and ought to operate.
The selection and appointment of judges to whom these great powers and functions are entrusted are, of course, matters of the highest importance. In the words of a very distinguished Judge Lord CLARKE, and I quote, "The selection and appointment of judges unable to, or incapable of, properly applying law to true fact, without fear or favour, affection or ill will would soon undermine the efficacy of any justice system. It would undermine public trust in it, and would ultimately call into question a country's or a jurisdiction's commitment to the rule of law. If the Judiciary is unable or unwilling to act impartially or independently of the parties before it, it would lose public confidence. Its decision would soon lose respect and with that would go respect for law and the rule of law. At its worst, decisions reached under the improper influence of parties, such as the Executive, could provide a false patina of legitimacy to tyranny." (End of quote) I think at this juncture in the history of Hong Kong, we should remind ourselves of these important but everlasting principles with regards to the rule of law.
8634 LEGISLATIVE COUNCIL ― 18 June 2020
Lord CLARKE also pointed out that both merits and good character are essential for a judicial appointment. Merits include legal knowledge and experience, intellectual and analytical ability and sound judgment. But foremost in good character is moral courage, which I believe is of great relevance to the situation we face in Hong Kong today. Good character is moral courage. Judges must also have moral courage to make decisions that will be unpopular whether with politicians or the media, or indeed the public, and perhaps the most important of all, they must act to defend the right to equality and fair treatment before the law of those who are unpopular at any given time.
I would also like to take this opportunity to stress the high expectation of the community and their own calling that judges must be fearless and detached from all personal considerations in applying the law, even if it is at the expense of political pressure on the courts. We had seen recently and quite inappropriately statements issued by the Hong Kong and Macao Affairs Office in Beijing and China's Liaison Office in Hong Kong, expressly commenting on the results of certain judgments they like or dislike, judgments that involve important constitutional matters.
But with regard to the domestic affairs of HKSAR, Article 22 of the Basic Law clearly states that no department of the Central People's Government may interfere in the domestic affairs of Hong Kong, and judgments coming out of the High Court or any level of court are the domestic affairs of HKSAR. It is in nobody's interest if the Central People's Government or any of its departments are to openly comment on the results of any judgments, judicial decisions or judges that are clear political pressure and interference on our courts, and that ought to be avoided as it is both unconstitutional and inappropriate.
We showed the same restraint when we debate in this Chamber. There are Rules of Procedure ("RoP") that prevent us from directly commenting on an ongoing judicial proceeding which is sub judice. The reason why we have such RoP is that we do not want speeches or actions in this Chamber to exert or somehow have influence on ongoing judicial proceedings. This is a basic rule that we apply here, and there ought to be the same restraint when it comes to Central People's Government or any of its department or minister. When they look at a judgment or decision of Hong Kong, whether they like or dislike, it should be kept to themselves and not be expressed publicly, because it will be seen as political pressure on the courts.
LEGISLATIVE COUNCIL ― 18 June 2020 8635
I wish the new Chief Justice, once he is being formally appointed, will bear all the above principles in mind, because the Hong Kong people and the international community are worried about the state of our rule of law in Hong Kong. It is no use for us to pretend that everything is hunky-dory and everything is fine, which is not true. We are facing enormous threats to our rule of law right now, and we cannot shut our eyes to such threats. We must face it with the certainty of the principles that we have always apply when it comes to judicial independence, and when it comes to the proper manner in which cases should be adjudicated upon based on the rule of law principle, due process as well as the protection of fundamental rights as guaranteed under the Basic Law and the International Covenant on Civil and Political Rights as enshrined in Article 39 of the Basic Law.
It pains me to have to repeat these basic principles that we have long treasured and believed in for the good part of last century. It pains me that these principles are now being questioned that the final adjudication power of our court is not to be questioned. There are no exceptions to the final adjudication power of the courts of Hong Kong; there are no exceptions to the basic rights and human rights as enshrined in these international covenants, the Basic Law and the Bill of Rights; there are no exceptions to these fundamental human rights that we must continue to assert and protect going forward.
I would also like to give my sincere gratitude and thanks to the outgoing Chief Justice Geoffrey MA in his past 10 years or more of service as Chief Justice and also Chief Judge of the High Court, both very important positions within the Judiciary. He is a man of integrity, a man of moral courage and also an example for many judges whom they look up to as a man of respect and intelligence.
I hope the standard set by Chief Justice Geoffrey MA and before him former Chief Justice Andrew LI, and the tradition they have laid down will continue to thrive in the Judiciary and in Hong Kong. But one does not have a sense of complete hope and confidence that it will be. I hope we are wrong in our doubts, but the price of freedom―and I would say the price of rule of law―and the maintenance of the rule of law is constant vigilance. We must never let our guards down, and never let these fundamental principles be swayed by those in power for political convenience.
8636 LEGISLATIVE COUNCIL ― 18 June 2020
MRS REGINA IP (in Cantonese): Deputy President, on behalf of the New People's Party, I speak in support of the Government's motion on the appointment of the Honourable Mr Justice Andrew CHEUNG as the Chief Justice of the Hong Kong Court of Final Appeal ("CFA"). As pointed out by the Chief Secretary for Administration in his speech, Mr Justice Andrew CHEUNG is an experienced judge and a barrister with a wealth of knowledge in the legal discipline. He studied law at the University of Hong Kong and Harvard University. As he is only 59 years old, which is a very suitable age for this position, I believe he can serve as the Chief Justice of CFA for a long time. Mr Justice CHEUNG will be the third Chief Justice of CFA after the reunification of Hong Kong.
Deputy President, I think that the appointment of Mr Justice Andrew CHEUNG as the Chief Justice at this particular moment in time is especially meaningful. It has been almost 23 years since the reunification of Hong Kong, and the implementation of the Basic Law and "one country, two systems" has entered a new stage. First of all, since the Central Government published the White Paper on "one country, two systems" in 2014, it has reminded Hong Kong people time and again that they have to understand the Basic Law correctly. The courts also have a similar responsibility. Apart from fully and correctly understanding the Basic Law, the court has to, in its judgment, help the public understand the true meaning and legislative intent of the Basic Law. Secondly, the current political situation around the world is very volatile. Over the past year, Hong Kong people realized that there were security problems in Hong Kong. Owing to acts of promoting "Hong Kong independence", splitting up the country and subverting the Central Government, the Central Government is more convinced that acts of endangering national security have occurred in Hong Kong. The Standing Committee of the National People's Congress ("NPCSC") has passed the decision to enact a law of the People's Republic of China on safeguarding national security in Hong Kong. Under the circumstances, how should the implementation of common law in Hong Kong cope with the new situation? The future Chief Justice has to undertake an important historical and constitutional responsibility.
I believe the motion today will be passed, but I was very shocked by the statement issued by Members of the Democratic Party yesterday. They indicated that they would abstain from voting on this motion. In particular, Mr HUI Chi-fung reminded the Judiciary that the role of upholding the rule of law was to keep the Government under check and not to cooperate with the Government. Undeniably, the courts can exercise checks and balances, and the LEGISLATIVE COUNCIL ― 18 June 2020 8637 system of judicial review under the common law serves to give the public an opportunity to review the exercise of public power, e.g. whether a public organization, a public officer or anyone exercising public power has abused power. However, the process of judicial review has actually been abused in Hong Kong, and the situation is serious. Last year, at the Ceremonial Opening of the Legal Year 2019, Mr Dennis KWOK expressed his appreciation of Chief Justice Geoffrey MA for pointing out the problem. I will discuss this point in detail later, in the hope that Mr Justice Andrew CHEUNG, the Chief Justice designate, can assist in solving this problem.
Under the common law system, a mechanism is established for the public to keep the Government under check through judicial review. Yet, the entire judicial system also has a constitutional duty to dovetail with the constitutional system of our country to implement the Basic Law and "one country, two systems". Certainly, the common law system differs greatly from the continental legal system of the Mainland. The common law system is very dynamic. It originated from the Magna Carta of the United Kingdom in 1215 and has evolved over the past 800-odd years. In fact, adaptations have been made continuously to the common law applied in Hong Kong after the reunification. Before the reunification, various legislations on Adaptation of Laws had been passed to assist the common law system to adapt to the latest development of Hong Kong's reunification with China and the resumption of sovereignty over Hong Kong by the Beijing Government. Subsequently, adaptation of laws has been made by means of a number of ordinances on Adaptation of Laws. Article 18 and Article 160 of the Basic Law clearly stipulate that it is most important that only laws not in contravention of the Basic Law shall be passed in Hong Kong. The courts have the responsibility to continue to adapt to the latest development of our country and assist Hong Kong in implementing the Basic Law and "one country, two systems". In my view, the saying that the power of the Judiciary overrides those of the executive authorities and the legislature and needs not tie in with the Central Government is totally unreasonable.
Mr Dennis KWOK has once again mentioned the concept of separation of powers in his speech. I have read many judgments and I am aware that the concept of separation of powers is repeatedly mentioned by many judges in their judgments. But, may I be so bold as to ask the wise judges whether they really understand what separation of powers is? In fact, has separation of powers ever been implemented in Hong Kong?
8638 LEGISLATIVE COUNCIL ― 18 June 2020
The concept of separation of powers was proposed by John LOCKE, a political philosopher in the 17th century. However, both Bertrand RUSSELL, a famous British philosopher and Walter BAGEHOT, Chief Editor of the Economist for as long as 17 years and expert of the English Constitution, said that separation of powers was in fact, only a literary fiction and literary theory, i.e. a legal and constitutional theory which has never been implemented in the United Kingdom. According to Walter BAGEHOT and Bertrand RUSSELL, the United Kingdom adopts the cabinet system or the parliamentary system under which the Prime Minister, the representative of the ruling party, unites the two mechanisms of the executive and the legislature by leading the Cabinet, thus, there is no separation of powers in the United Kingdom.
Separation of powers was not implemented in Hong Kong before the reunification. The reason was that the Governor was the President of the Legislative Council until the position was given to John SWAINE, QC, in 1993. Back then, official Members and appointed Members formed the majority of the Legislative Council which was a real example of the executive-led model. Thus, separation of powers was not implemented before the reunification. Even after the reunification, real separation of powers has, strictly speaking, not been implemented. The reason is that under the common law system, apart from statutory law, there is also judge-made law, i.e. judges can amend the laws through their judgments. Thus, strictly speaking, the courts also have legislative power. A famous case in point which I believe Members of the Legislative Council would be very familiar with is W v Registrar of Marriages. Ms W is a transsexual person. CFA ruled that since Ms W received an irreversible sex reassignment surgery ("SRS"), prohibition from registering her marriage would be in breach of her human rights, the Immigration Ordinance was thus amended. Today, the Immigration Department allows a person who has received a male to female SRS to get married, but not in the case of a person who has received a female to male SRS. That is the judge-made law. Hence, strictly speaking, real separation of powers has not been implemented in Hong Kong even now.
Furthermore, the Basic Law clearly stipulates that Hong Kong is an authorized local administrative region all the powers of which come from the Central People's Government. Earlier, I heard Mr Dennis KWOK speak a lot about moral courage and maintenance of independence, etc. I would like to remind Members of the legal profession to take note that while Article 19 of the Basic Law provides that "[t]he Hong Kong Special Administrative Region shall be vested with independent judicial power, including that of final adjudication", LEGISLATIVE COUNCIL ― 18 June 2020 8639
NPCSC interpreted the Basic Law in the Congo case in response to a request made by CFA in 2011. NPCSC clearly stated that the Hong Kong Special Administrative Region does not have any jurisdiction on acts of state such as defence and foreign affairs. Certainly, national security is also an act of state. Mr Alvin YEUNG, please do not laugh, for that is the interpretation of the Basic Law by NPCSC. I would like to remind Mr YEUNG that after the reunification of Hong Kong, the first constitutional dispute arose in the case of Ng Ka Ling in 1999. Back then, CFA chaired by Chief Justice Andrew LI proposed that CFA had the power to inquire into the constitutionality of laws, a huge controversy thus arose, resulting in the interpretation of the Basic Law by NPCSC for the first time since the reunification. Later, CFA admitted in another case, the case of Lau Kong Yung if I remember correctly, that NPCSC's interpretation of the Basic Law was binding on the courts of Hong Kong; and the independent judicial power and the power of adjudication of the courts of Hong Kong did not include that of the Basic Law. The point that the final power of interpretation of the Basic Law is vested in NPCSC is clearly stipulated in Article 158 of the Basic Law. Thus, I hope that members of the Hong Kong legal profession, including those who tend to limitlessly expand the judicial power of Hong Kong, will also pay attention to a number of NPCSC's interpretations of the Basic Law before and after the reunification as well as the provisions of the Basic Law.
Besides, Deputy President, I hope that the Chief Justice designate will handle the two outstanding tasks mentioned by Chief Justice Geoffrey MA. First, Chief Justice Geoffrey MA pointed out in his speech at the Ceremonial Opening of the Legal Year 2019 that the major reason for the huge caseload of the courts was that the number of torture claims or non-refoulement claims had imposed a heavy burden on the courts. We can see that the numbers are really alarming. In 1997, there were 112 cases of judicial review; in 2019, there were 3 889 cases, among which 3 727 were judicial reviews on torture claims or non-refoulement claims mentioned by Chief Justice Geoffrey MA. He clearly indicated that with the huge number of cases, the problem could not be solved even if more judges were recruited. He suggested making "modest legislative amendments so as to facilitate a more efficient handling of such torture claims". Two years have gone by, have the courts proposed any amendments? Chief Secretary for Administration, the courts are under your purview, and your subordinate, the Director of Administration, is responsible for providing services to the courts; have you discussed with the Chief Justice on the legal amendments to be made to prevent abuse of the process of judicial review? That is the first outstanding task.
8640 LEGISLATIVE COUNCIL ― 18 June 2020
The second outstanding task was also mentioned by Chief Justice Geoffrey MA in his speech delivered at the Ceremonial Opening of this Legal Year. He pointed out a few major principles in trying criminal cases. First, the presumption of innocence; second, the defendant is entitled to have adequate time and facilities for the preparation of his or her defence; third, criminal cases must be "tried without delay"; and fourth, every prosecuted person must have the right to appeal. Certainly, I fully support his view. In January this year when the Chief Justice delivered his speech, he also mentioned that the events in the past year had created a huge number of criminal cases for the courts. From figures provided by the Police, we knew that more than 9 000 persons have been prosecuted, among which 40% are students. Among the persons prosecuted, teachers take up the largest proportion, followed by social workers. Regarding how to deal with the high volume of cases and the frequent criticism of society that judgments and sentences vary greatly, Chief Justice Geoffrey MA said, "… the Judiciary has made plans to deal with such cases (at whatever level of court) expeditiously. A task group has been set up for some time now to look into how best and how expeditiously our courts can cope with these cases. Relevant stakeholders will be consulted on suggested measures. These include proposals to sit extended hours." The Chief Justice did not make these suggestions for the first time; he did so a few months ago. A task group has already been set up, what is the progress now? Will special courts or special judges be designated to deal with the 9 000-odd cases arising from the black violence incidents in the past year, so as to stop any further accusations of arbitrary arrests and indiscriminate prosecutions? This initiative also complies with judicial fairness and enables the cases of those prosecuted to be heard as soon as possible.
The Chief Secretary for Administration is responsible for supporting the work of the courts. I hope that when he speaks later, he will not only talk about the procedures and who the Judicial Officers Recommendation Commission has recommended. That will be unnecessary because we already knew. I hope that the Chief Secretary for Administration will urge his subordinates, the Director of Administration and the Judiciary Administrator, to assist the courts in solving the problems of an excessive number of judicial review cases and the backlog of criminal cases which cannot be heard promptly.
Deputy President, with these remarks, I support the appointment of Mr Justice Andrew CHEUNG.
LEGISLATIVE COUNCIL ― 18 June 2020 8641
MR HUI CHI-FUNG (in Cantonese): Ms LEE, regarding the motion on the appointment of the Chief Justice of the Court of Final Appeal ("CFA"), the Democratic Party will abstain from voting today. Since the reunification, the motion on the appointment of the Chief Justice of CFA has been voted by a show of hands rather than by open ballot in the Legislative Council, not to mention that Members abstain from voting or vote against the motion.
However, we will abstain from voting today, because the social situation in Hong Kong has changed. In the past, members of the public believed that Hong Kong was governed by the rule of law and they had confidence that courts in Hong Kong enjoyed judicial independence. Yet, the current situation and public opinion are totally different. Our abstention can be regarded as an unprecedented step to sound an alarm to Hong Kong citizens, and more importantly to the legal and judiciary sector that the rule of law for Hong Kong people is in peril. I believe many citizens also feel that the rule of law is dead. As such, the Judiciary must be reminded that its role of upholding the rule of law is to exercise checks and balances on the Government, but not to dovetail with the Government.
Before the "anti-extradition to China" movement, many members of the public really had expectations for the rule of law, or even regarded it as a belief. However, recently when the SAR Government and the Central Government talked about the concept of the rule of law, it is not difficult for us to observe that they have put increasingly emphasis on implementing policies in accordance with the law. They seem to give us an impression that by acting in accordance with the law, the rule of law can be upheld. However, is the rule of law that simple? I hope to give the public a detailed enunciation on the rule of law through this motion.
The rule of law is not merely implementing policies in accordance with the law or even ruling in accordance with the law as often mentioned by the Government. The concept of the rule of law is entirely different from that of the rule by law. Legal scholar Prof Benny TAI has mentioned in many articles that the rule of law not only comprises the existence of law and regulation by law, it also includes two elements of a relatively advanced level, that is, using the law to restrict powers and using the law to achieve justice. In other words, the community can, through the rule of law and the legal system, prevent people in power from abusing their powers, and we can also, through the legal system, have a system that administers justice and a righteous way of living. 8642 LEGISLATIVE COUNCIL ― 18 June 2020
To our regret, the rule of law is increasingly out of reach for Hong Kong people, and Hong Kong people are losing their faith in getting justice through law. Earlier on, we conducted a telephone survey on public confidence on the rule of law in Hong Kong. It was found that over 50% of the respondents were worried or very worried about Hong Kong courts becoming the tools for suppressing freedom. At the same time, more than 40% of the respondents had low confidence or very low confidence that Hong Kong courts would rule in a fair and impartial manner. In the minds of many Hong Kong people, the image of courts and judges should be fair and impartial as that of Justitia who is blind‑folded and holds in one hand the scales, and a sword in the other. However, in reality, Hong Kong people have started to notice that even if there is an independent Judiciary, the civilians' freedom may not be safeguarded, and a fair and just society may not be attained.
Today, we are debating the appointment of the Chief Justice, and whether the Chief Justice and courts are independent and free from interference reflects the extent of judicial independence in Hong Kong. Nowadays, we and members of the public also find that judicial independence in Hong Kong is in jeopardy. Earlier on, three anonymous judges interviewed by Reuters said that judicial independence in Hong Kong was in a fight for its survival. They also disclosed that owing to the endless fight for safeguarding judicial independence, retiring Chief Justice of CFA Geoffrey MA had become increasingly frustrated. Of course, Chief Justice Geoffrey MA later publicly clarified that he had not been under pressure. However, what is the public perception of this incident and what do the public believe in?
We certainly understand that in times of political disputes and social polarization, no matter what judgments the courts make, such judgments may be queried by both parties. This is understandable. However, even so, if the public have confidence in the courts and judicial independence, most of the people will not deny that the judgments should at least meet the mainstream aspiration of society.
If we review the cases of the "anti-extradition to China" movement, including the Lennon Wall knife attack case, the judge used words such as noble qualities in his judgment. Such cases are only the tip of the iceberg, but they well illustrate the fact that more and more judges do not meet the expectations of the majority of people in their rulings. These situations will also affect public confidence in judicial independence.
LEGISLATIVE COUNCIL ― 18 June 2020 8643
Let me return to the appointment of the Chief Justice, an issue which we are concerned about today. A fair and interference-free appointment process of judges is essential to judicial independence and the rule of law. At present, the judicial appointment of judges in Hong Kong is handled by the Judicial Officers Recommendation Commission ("JORC") under the Judicial Officers Recommendation Commission Ordinance. However, all the nine members of JORC are appointed by the Chief Executive, and the Secretary for Justice, who belongs to the Executive Authorities, is also one of the members. Therefore, the Executive Authorities obviously play a decisive role in the process of judicial appointment.
We believe that a transparent and impartial judicial appointment system independent from other branches of government or partisan interests is vital for the rule of law. In fact, in 2009, the Office of the United Nations High Commissioner for Human Rights proposed to set up independent judicial selection commissions in some advanced common law countries and regions. For example, independent commissions have been set up in such countries as Canada and the United Kingdom, and the members of which are appointed by judge groups or the legal sector. In Canada, the executive authorities have the right to appoint members to join the commission, but the ex officio members do not have voting rights.
Although discussions had been held in the Legislative Council on the appointment process of judges, the last discussion was held in 2001, which is 19 years ago. Nowadays, when the community is greatly worried about the rule of law, I think an in-depth review should be conducted on the appointment process of judges and reform should be made to fade out the role played by the Executive Authorities in the process of judicial appointments, thereby enhancing public confidence in judicial independence.
Of course, in respect of the rule of law, it is very important for the Executive Authorities to exercise self-restraint. The Secretary of Justice is regarded as the gatekeeper for the rule of law and the foremost defender of the rule of law. Yet, needless to say, in the eyes of Hong Kong people, the Department of Justice has become the foremost destroyer of the rule of law. The Department of Justice has instituted political prosecutions against those who oppose the Government, and harboured some officials and people in support of the Government, including not instituting prosecutions on police brutality and tolerating police brutality. These examples are countless. I will not point them out one by one.
8644 LEGISLATIVE COUNCIL ― 18 June 2020
The Chief Justice of CFA designate is duty-bound to play a gatekeeping role for Hong Kong people by safeguarding the Basic Law, protecting the human rights and freedom of Hong Kong people, and preventing the Judiciary from becoming a tool manipulated by the tyrannical government. However, TAM Yiu-chung, a member of the Standing Committee of the National People's Congress, has recently said that if the Central Authorities considered it necessary for people violating the Hong Kong national security law to be extradited to the Mainland for trial, that was also an option. If this practice is adopted, Hong Kong's judicial independence will be doomed eternally.
It is indisputable that the current rule of law situation in Hong Kong is worrying. Before the announcement of this year's Budget, I used the right of a Member to seek some basic court information from the Judiciary, including the number of search warrants granted by the courts to the Police, the number of complaints against police brutality made by the defendants during court hearing, as well as the number of cases handled by judges at the lower level of courts each year. The Judiciary refused to provide such information even after I had made written enquiries, made request when examining the Budget, invoked the Code on Access to Information and complained to The Ombudsman. Actually, such information serves as an objective indicator for measuring the level of human rights protection and judicial independence in Hong Kong. Such information offers very valuable reference for Members to monitor the rule of law situation in Hong Kong, and the information is also of great public concern. By refusing to make public such information, the Judiciary Administrator has actually put the judicial authorities in an unrighteous position, and turned the judicial authorities into henchmen for covering up tyranny, as well as aiding and abetting the evil.
I wish to stress that the rule of law comprises the element of keeping the Government in check. As mentioned by many Members earlier, from the traditional academic or pragmatic perspectives, separation of powers is a measure adopted locally and internationally, and it is an important concept and tool for providing checks and balances on the regime. However, the Judiciary, the Government and the Department of Justice dare not say the words separation of powers. Is the Judiciary still playing the role of keeping the Government in check? If so, when the Chief Secretary speaks later, will he please respond to this point and tell us whether the courts in Hong Kong still have a role to play in exercising checks and balances on the Government?
LEGISLATIVE COUNCIL ― 18 June 2020 8645
Mrs Regina IP said just now that we had been wrong all the time, for separation of powers or checks and balances had never existed in Hong Kong. While Hong Kong still practises common law and adopts the system under the Basic Law, the Government, the Judiciary and Legislative Council Members declare that separation of power or checks and balances do not exist. Consequently, Hong Kong will be disgraced internationally and this will be the greatest disgrace for all the places practising common law.
Coming back to today's motion, I would like to once again remind Mr Justice Andrew CHEUNG, the Judiciary and all stakeholders responsible for safeguarding the rule of law in Hong Kong that the Judiciary should exercise checks and balances on the Government and should not dovetail with the Government. The Judiciary should serve justice; it should not serve the regime or politics. This is the last hope of Hong Kong citizens for the rule of law in troubled times and dire straits. I hope that the whole community, including the Judiciary, the Department of Justice and all practitioners in the legal sector will learn a lesson. We will abstain from voting on this motion today. I so submit. Thank Ms LEE.
MR ALVIN YEUNG (in Cantonese): Ms Starry LEE, with the exception of Mr Dennis KWOK, the remaining four Members from the Civic Party will abstain from voting on the proposed resolution. I respect Mr Dennis KWOK's voting decision. As the representative of the legal sector, he must respect the views of the two legal professional bodies and the legal sector. For this reason, I have granted him exemption to vote according to his own preference.
By means of this unprecedented move, we hope to express our concerns and worries about the current rule of law situation in Hong Kong. Before further expounding on my view, I feel obliged to respond to the remarks made by Mrs Regina IP just now. Mrs Regina IP has mentioned the abuse of judicial review just now, but I would like to emphasize one point. Irrespective of whether there is abuse, the Judiciary has put in place an extremely sound system and an extremely high threshold for handling relevant applications. All applications for judicial review can only proceed after being granted leave by the Court of First Instance and being established to the satisfaction of the court. Hence, under the judicial system, the Judiciary has already put in place a mechanism to deal with abuse. We must stress that judicial review is indisputably the most fundamental right of everyone to check and balance public powers.
8646 LEGISLATIVE COUNCIL ― 18 June 2020
Mrs IP has just raised doubts about the existence of de facto separation of executive, legislative and judicial powers in Hong Kong. I would like to make a point. While she was trying to cite the United Kingdom as an example, she might have forgotten that the three powers are not completely separated in the United Kingdom given the integration of the local executive and legislative authorities under the Westminster model. Under real separation of powers, it is important that the three branches perform their respective roles with checks and balances among one another.
Previous judgments delivered by the Chief Justice of the Court of Final Appeal ("CFA") and judges at various levels of court have clearly noted that Hong Kong implements a tripartite political system characterized by a separation of executive, legislative and judicial powers. It is the Legislative Council's own problem if it fails to cope with the system. I urge Mrs IP against shifting the responsibility on courts. Hong Kong courts strive to remain impartial and treat all people equally, be they ordinary citizens or the Chief Executive of the Special Administrative Region. In the event of any wrongdoing on the part of the Government, it is necessary for courts to make judgments accordingly. Only then will genuine separation of powers and checks and balances be realized. Some people have claimed at the Legislative Council that Hong Kong courts had the constitutional duty to dovetail with the new national situation, etc. Judges who are capable, independent and professional should simply ignore such claims because the true meaning of judicial independence lies in acting in accordance with the law and seeking justice for the people.
To many people, the rule of law is confined to what happens in courts, but it is in fact far more than that. What happens in courts is just like one section of a river. In fact, the rule of law also encompasses the checks and balances on and the use of powers. In Hong Kong, before cases are brought to court, the law enforcement and prosecution procedures are also exceptionally important. Admittedly, the proposed resolution this Council is dealing with today is related to the Chief Justice of CFA, who may not intervene in the work of law enforcement and prosecution departments in any ways, nor are these departments under the direct supervision of the Chief Justice. The Executive Authorities and the Chief Secretary for Administration who is present should actually take up the responsibilities. If police officers have acted unlawfully or breached any established rules, they have not only violated the laws and undermined the culture of Hong Kong Police, but have also indirectly damaged the rule of law. As the most important government official, the Chief Secretary for Administration undoubtedly has the duty to tackle and address relevant issues.
LEGISLATIVE COUNCIL ― 18 June 2020 8647
By the same token, in the event of unfair prosecution, as the defender of rule of law, the Secretary for Justice should be in a better position to take up the important responsibility of rectifying any mistakes. Regrettably, over a period of time in the past, we have failed to see any justice done, but have instead witnessed the failure of law enforcement and prosecution units to convince the public with sound justifications. Hong Kong people have even witnessed, time after time, dereliction of duty, breach of responsibilities, abuse of power and indiscriminate arrests. Given the current state of affairs, how can Hong Kong people be convinced that our rule of law remains sound?
In the past year, the judgments of Hong Kong courts, which have been far from impeccable, have been criticized from time to time. I am not going to comment on individual cases at Council meetings, and I will avoid commenting on any particular case. Unlike entertainers, courts do not have the responsibility to make everyone happy, especially when they are dealing with some extremely controversial cases. Most cases are being heard by one judge, while the Court of Appeal of the High Court is constituted by three judges, and CFA is constituted by five judges. As you can imagine, cases can only be heard by a maximum of five judges, who have to be the focus of attention and subject to the pressure from the entire society. Their jobs are certainly not easy. As I said just now, it is not the responsibility of courts to make everyone happy. Even if there is an overwhelming opposition in society, courts should definitely make their judgments in accordance with the law which will withstand all challenges with regard to legal spirits and precedents. However, it is necessary for courts to convince people with sound justifications and exercise restraint in the course of making independent judgments. Over a period of time in the past, what is most worrying is that some judges have included their personal views when understanding the merits of cases, returning verdicts and preparing judgments. This is where the real problem lies. As justice is yet to be done, we are certainly dissatisfied with and worried about the rule of law in Hong Kong, and we may even lose our confidence gradually. This is where the real problem lies.
However, compared with the challenges I just mentioned, the challenges from the higher authorities have been more serious and intense. When the higher authorities wantonly make irresponsible remarks to criticize the judgments of Hong Kong courts, what will actually be the public's perceptions? Judges have made their judgments based on their own conscience and legal expertise. However, if the higher authorities recklessly make irresponsible remarks about cases by means of press releases and media spokespersons, how can the whole 8648 LEGISLATIVE COUNCIL ― 18 June 2020 world, particularly Hong Kong people living in the territory, be convinced that judicial independence still exists? The Mainland Authorities have previously made comments about cases heard by Hong Kong courts. Recently, they have issued statements through the Hong Kong and Macao Affairs Office of the State Council and the Liaison Office of the Central People's Government in the Hong Kong Special Administrative Region. Given that judges must remain silent and refrain from commenting on cases in public, they can only arrive at judgments based on the merits of cases in courts. Confronted with the pressure from the community, judges can do nothing but wait until the ceremonial opening of every legal year for the Chief Justice of CFA to say a few words in response. The Chief Secretary for Administration, who is present at the meeting today, is in charge of supporting the Judiciary. Has he spoken on behalf of the Judiciary? When various sectors of the community and even the authorities in higher positions than the Hong Kong Government have made their comments, has the Chief Secretary for Administration said a few words in fairness to the Judiciary? This is where the real problem lies. It is obviously the dereliction of duty on the part of the Chief Secretary for Administration Matthew CHEUNG or any other official in that position if they fail to do so.
Ms LEE, we are dealing with the proposed resolution on the appointment of the Chief Justice of CFA today. I wish to emphasize that the newly appointed Chief Justice of CFA will shoulder heavy responsibilities. As Hong Kong has actually ushered in an extraordinary era, numerous Hong Kong people have unknowingly entered this special era without any alternative. The previous requirement of simply observing formalities is no longer applicable. The Judiciary has to face pressure and challenges from all sides. If the appointment of Justice Andrew CHEUNG is passed by the Legislative Council today, he will assume office in January next year. In the new era and under the new circumstance, he has to address the issue of how to reinforce Hong Kong people's confidence in the judicial system and the status of Hong Kong courts around the world. The reputation built for years under the leadership of Chief Justice Andrew LI and Chief Justice Geoffrey MA has been very weak indeed and should not be taken for granted. As I said just now, Justice Andrew CHEUNG will actually shoulder heavy responsibilities in the future. He particularly should possess adequate courage and competence to show the world that Hong Kong's judicial system remains independent, and Hong Kong courts will never be influenced by any―I must stress the word "any"―forces. This is absolutely important.
LEGISLATIVE COUNCIL ― 18 June 2020 8649
Furthermore, as this Council is dealing with the appointment of judges, Mr Dennis KWOK and Mr HUI Chi-fung mentioned just now that a member of the Executive Authorities, namely the Secretary for Justice, is sitting on the Judicial Officers Recommendation Commission ("JORC"). In this connection, the legal sector has for years proposed to remove the Secretary for Justice from the list of ex officio members to avoid any impact of the Executive Authorities on the appointment of judicial officers. In fact, even if the Secretary for Justice does not say a word at JORC, the perception of the public will not change. To keep up with the times and convince the community that Hong Kong has genuine judicial independence, it is necessary for JORC to make a change by removing the representative from the Executive Authorities. No principal officials from the Executive Authorities should intervene in the appointment of judicial officers. This point is extremely important.
Ms LEE, lastly, I would hereby give special thanks to the outgoing Chief Justice Geoffrey MA. After a little over six months, Chief Justice MA will leave the Judiciary for which he has served many years. During his tenure, Hong Kong has seen many controversies and challenges. Under his leadership, the Hong Kong Judiciary has indeed commanded the trust of the international community and the international legal sector. I hereby wish him good health and happy retirement in the future.
I so submit.
MR HOLDEN CHOW (in Cantonese): Deputy President, I speak in support of the appointment of the Honourable Mr Justice Andrew CHEUNG as the Chief Justice of the Court of Final Appeal ("CFA"). We certainly have expectations for the appointment of Mr Justice CHEUNG as the Chief Justice. My first expectation is related to the public query arising from the recent problems concerning the Judiciary. Three judges had anonymously relayed to overseas media certain facts that they claimed to be true, consequently distorting and discrediting the Central Government. If these three anonymous judges had really made inaccurate statements to overseas media to discredit the Central Government, I think the Judiciary must follow up seriously as the guidelines on the conduct of judges had obviously been violated. Discrediting the Central Government has caused great harm to the entire constitutional structure of Hong Kong. 8650 LEGISLATIVE COUNCIL ― 18 June 2020
Of course, Chief Justice Geoffrey MA had publicly clarified and explicitly stated that the Central Government had not intervened in the courts. However, I ask the future Chief Justice and the Chief Secretary for Administration who is responsible for supporting the Judiciary to follow up on this incident seriously and find out whether the three judges had really done so anonymously. If they had made inaccurate statement to discredit the Central Government, the reputation of the entire judicial system would be seriously undermined. I request the relevant departments to follow up and deal with the incident seriously.
Secondly, over a period of time in the past, the sentences passed by the courts on a number of "black violence" cases have aroused queries. For some cases which clearly involved very serious storming acts, only fine were imposed; in some assault cases where a police officer has sustained serious injury to his hearing, the offender was only sentenced to community service order. Many members of the public do not understand why the sentences imposed by courts on criminal cases involving serious injuries to people have no deterrent effects at all, and people even have the impression that the courts are encouraging or advocating people to engage in illegal and violent acts, causing adverse impacts on the community.
I hope that the Judiciary led by the newly appointed Chief Justice or the Chief Secretary for Administration responsible for supporting the Judiciary will consider establishing a sentencing council. We know that in the past, courts had the powers to set sentencing standards. As I said, sentencing standards are set by the courts. When the punishment imposed are too light without any deterrent effect and might even mislead people into thinking that illegal acts of violence are encouraged, the problem of inappropriate sentencing has arisen. How should this problem be rectified? If the Department of Justice does not conduct timely reviews of the punishment, the courts may not take the initiative to set new sentencing standards. For example, in the case of Joshua WONG storming the Civic Square in 2014, imprisonment was not imposed in the original sentence made by the Magistrate. As the punishment obviously lacked deterrent effect and encouraged illegal acts of violence, the Secretary for Justice asked for a review of the sentence; consequently, the higher courts and even CFA later formulated a new set of sentencing standards to impose more stringent punishment for illegal storming acts.
LEGISLATIVE COUNCIL ― 18 June 2020 8651
We can see from this example that if the Secretary for Justice did not review the punishment at that time, the incident might end up with nothing definite and might become a precedent that encouraged the public to take storming acts. If people engaging in storming acts will only be fined or be required to serve a community service order without having to pay a high cost or be imprisoned, will people be encouraged to break the law?
Therefore, we think it is very important to manifest the deterrent effects to the community. I have repeatedly mentioned that the Government should consider establishing a sentencing council. We should make reference to the practice of the United Kingdom where an independent Sentencing Council will stipulate the sentence to be imposed for each offence under different circumstances. If the sentences are stipulated by an independent committee, the public will feel relieved as this will dispel the worry that judges of the Judiciary do not fully understand the sentencing standards. In fact, since the establishment of a Sentencing Council in the United Kingdom in 2010, the effects have been satisfactory. As the Chief Secretary for Administration is present today, I hope he will seriously consider conducting a study on the establishment of a sentencing council to avoid judges deliberately imposing very lenient sentences or encouraging illegal acts in the future, so as to protect the community.
A colleague has specifically pointed out just now that there is a huge backlog of prosecution cases arising from black riots that happened in the past year. Colleagues of the pro-establishment camp have repeatedly suggested that the authorities should adopt the practice of London in dealing with the riots in 2011. A special 24-hour court was set up at that time to expedite the trials because speedy handling of the case would have greater deterrent effects. This is very important for ensuring social security. In this regard, Chief Justice Geoffrey MA announced earlier that court hours would be extended to deal with the backlog of "black violence" cases. Yet, I hope the authorities will take more vigorous action to seriously consider making some courts operate round the clock to expedite the hearing of "black violence" cases, thus creating deterrent effects.
As regards our proposal to set up a special 24-hour court, opposition Members not only raise objections, but also state that the courts need not increase manpower to handle the cases. I really do not understand their rationale. The only explanation is that the "mutual destruction camp" wants to condone "black violence". If so, they are doing harm to our society.
8652 LEGISLATIVE COUNCIL ― 18 June 2020
Deputy President, I would like use the appointment of Mr Justice CHEUNG to illustrate the recent situation of the Judiciary. Earlier on, as District Judge KWOK Wai-kin had expressed some opinions in his judgment, he was removed from hearing cases related to opposition to the proposed legislative amendments. At that time, it was widely reported in the media that Judge KWOK extolled the assailant for displaying noble qualities. His remarks were extensively reported by the media and it seemed that the public had various opinions on him. I really want to take this opportunity to make things clear because I think many people do not know what happened. I would like to refer to the judgment of Judge KWOK. Judge KWOK said that he also noticed that the defendant had, in his pleading letter, stated that he hoped the punishment he received could bring some relief to the injured persons. The fact that the defendant still cared about the victims' well-being during this difficult time when he would be facing punishment obviously showed that he had noble qualities, and these qualities were rarely found in members of the community today including intellectuals and professionals who received higher education.
Deputy President, I just wish to ask members of the public to read through the whole judgment. Judge KWOK Wai-kin did not praise the defendant who stabbed other people for showing noble qualities, as reported by some media. This is not what he meant to say. Judge KWOK was just saying that the defendant pleaded guilty unreservedly, hoping that his punishment could bring some relief to the injured persons and that the defendant cared about the victims. These are clearly written in the judgment. I would like to take this opportunity to tell the truth because distorted remarks could have considerable effects. I believe I must take this opportunity today to clarify the contents of the judgment. Now that Chief Justice Geoffrey MA has made a decision concerning Judge KWOK Wai-kin, I will not have any objection. Since Chief Justice Geoffrey MA has made an arrangement for this case, I just hope that he will apply the same rule to other judges and will not have double standards.
(THE PRESIDENT resumed the Chair)
President, lastly, I would like to raise one point. Today, some colleagues have specially mentioned the hearing of cases related to national security cases in the future. I would like to say a few words on this issue. National security is very important in all parts of the world; it is a very important issue for all LEGISLATIVE COUNCIL ― 18 June 2020 8653 countries and regions. Of course, colleagues will say that a balance has to be struck between national security and human rights, but in some cases, national security is more important than human rights.
Let me give an example. In 1994, after the completion of hearing of a case related to national security in Singapore, the defendant appealed to the Privy Council of the United Kingdom (the final adjudication of Singapore was vested with the Privy Council at that time), and surprisingly the defendant was acquitted. After the case, Singapore made a very important decision in 1994 to take back the power of final adjudication from the Privy Council of the United Kingdom. The Singapore Government, including LEE Kuan-yew, remarked that national security was overriding. If the courts in other places did not understand this point and failed to consider the importance of national security to the stability of Singapore, they were not acting in the interests of Singapore as a whole. Therefore, Singapore resolutely decided to take back the power of final adjudication. I just want to highlight this point to show that national security is very important to social stability in all regions in the world; hence, we cannot ignore or deliberately belittle the importance of national security.
President, I so submit.
PRESIDENT (in Cantonese): Mr Tony TSE, please speak.
(Mr CHAN Chi-chuen indicated his wish to raise a point of order)
PRESIDENT (in Cantonese): Mr CHAN Chi-chuen, what is your point of order?
MR CHAN CHI-CHUEN (in Cantonese): I request a headcount.
PRESIDENT (in Cantonese): 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)
8654 LEGISLATIVE COUNCIL ― 18 June 2020
PRESIDENT (in Cantonese): Mr Tony TSE, please speak.
MR TONY TSE (in Cantonese): President, I speak in support of the resolution moved by the Chief Secretary for Administration to appoint the Honourable Mr Justice Andrew CHEUNG as the Chief Justice of the Court of Final Appeal ("CFA").
Born and raised in Hong Kong, Mr Justice CHEUNG was called to the Bar in 1985. In 2001, he gave up his private practice to join the Judiciary as District Judge, and two years later, he was promoted to Judge of the Court of First Instance of the High Court. Since then, he rose through the ranks from Justice of Appeal to Chief Judge of the High Court and Permanent Judge of CFA. His competence, experience, impartiality and independence in adjudicating and sentencing are indisputable. Therefore, in the following speech, I mainly wish to talk about my expectations for Mr Justice Andrew CHEUNG when he takes office as the Chief Justice of CFA, as well as my expectations for the Judiciary as a whole and for the judicial system in Hong Kong. These expectations will affect my decision in supporting or opposing the resolution.
As a professional and, in particular, as a representative of the architectural, surveying, planning and landscape industry, I have all along attached great importance to principles, standards and consistency. When conducting oneself in society, we should not make contradictory acts, hold double standards or move goalposts all the time. I once said that while Hong Kong's judicial system is renowned for its independence, members of the public, and even professionals, sometimes failed to understand the judgment and sentencing criteria adopted by some judges in some cases.
For example, in respect of criminal cases arising from protests or dissenting political views, or in respect of offences of assault, assault on police officers, resistance to arrest, unlawful assembly and possession of offensive weapons, etc., while some defendants were sentenced to immediate imprisonment of several months and were denied bail pending appeal even though they pleaded guilty and expressed remorse, some defendants were either given lenient sentences of community service orders or suspended sentences even though they remained LEGISLATIVE COUNCIL ― 18 June 2020 8655 unrepentant and avowed that they would again breach the law for justice in pursuit of their own political ideals. Worse still, these defendants were granted bail to leave Hong Kong while pending trial, thereby allowing them to travel overseas to keep bad-mouthing Hong Kong and inviting external powers to interfere in Hong Kong matters. Consequently, some members of the public may find the Hong Kong judicial system extremely inconsistent and biased, and they even question whether sentencing has anything to do with the political views and background of the defendants or judges.
President, another inconsistency is the Judiciary's regulation on the words and deeds of judges. Earlier on, a judge sparked controversy over his sentencing remarks, in which he criticized the anti-amendment protests. The incumbent Chief Justice of CFA promptly followed up seriously on the incident and barred the judge from handling other cases relating to the disturbances arising from the proposed legislative amendments. While I do not question the handling of the case by the Chief Justice, many people pointed out that some judges had made or recently made some controversial remarks when sentencing. For instance, a judge extolled a convicted offender for having "lofty and selfless ideals, and committed crimes purely for pursuing justice". In another example, a judge described a defendant as very outstanding, resulting in widespread dissatisfaction and even complaints among the public. A lot of people cannot make head or tail of the Judiciary's principle for handling these incidents―does it vary from person to person?
Some people may not have justifications in raising doubts and speculations about the judges and the Judiciary. There may be grounds for every case tried, every sentence imposed and every remark made by judges. Yet, in reality, more and more people opine that Hong Kong's judicial system is biased and inconsistent, and some even question whether the rulings of individual judges have been propelled by political influence. This is a phenomenon which requires our serious attention. I hope the Chief Secretary can faithfully reflect the situation to the incumbent Chief Justice and the Chief Justice designate. I also hope that the Judiciary will seriously and earnestly follow up on these problems; it should not turn a blind eye by hiding behind the shields of judicial independence and judicial non-interference.
8656 LEGISLATIVE COUNCIL ― 18 June 2020
President, another criticism frequently levelled at the Hong Kong judicial system is the long waits and lengthy trials. In many criminal cases, it has taken as long as two to three years before a first-trial ruling was reached, and five to seven years for a final ruling to be issued on cases involving an appeal or judicial review. This problem is partly attributable to the shortage of court staff and judges. Another reason is that the Department of Justice has been too slow in instituting prosecution, including occasionally making mistakes or omissions in prosecution documents, hence resulting in defendants being exonerated or charges being dropped. This not only causes a waste of court resources and taxpayers' money, but also obstructs justice.
Recently, in many cases relating to the disturbances arising from the proposed legislative amendments, the defendants convicted of violent offences have been sentenced to immediate imprisonment. This will convey a positive message to society that whoever breaks the law is a lawbreaker, and a lawbreaker should be held responsible for his crime. However, many of these cases actually took place months or even a whole year ago. The long delays in prosecution and trials are undesirable for the victims of these cases, the accused persons and society as a whole. I hope the Department of Justice and the Judiciary will continue to make effort to expedite prosecution and trials, so that lawbreakers can be punished swiftly and public confidence can be restored in the rule of law and safety in Hong Kong.
With these remarks, I support the appointment.
MR KENNETH LEUNG (in Cantonese): President, the Government proposed the appointment of the Honourable Mr Justice Andrew CHEUNG Kui-nung as the Chief Justice of the Hong Kong Court of Final Appeal ("CFA") in accordance with section 6 of the Hong Kong Court of Final Appeal Ordinance (Cap. 484). According to the law, the Chief Justice shall be appointed by the Chief Executive acting in accordance with the recommendation of the Judicial Officers Recommendation Commission ("JORC"). JORC shall consist of nine members, comprising the incumbent Chief Justice of CFA as ex-officio Chairman, the Secretary for Justice as ex-officio member, and seven members appointed by the Chief Executive of whom two shall be judges, one shall be a barrister, one shall LEGISLATIVE COUNCIL ― 18 June 2020 8657 be a solicitor and three shall be persons not connected with the practice of law. According to the law, the Legislative Council has certain veto power over the appointment of the judges concerned, but generally speaking, the Legislative Council would support and endorse the appointments. The reasons are as follows: first, we respect JORC's recommendation; secondly, we have to ensure the smooth operation of the Judiciary; and thirdly, judges recommended by JORC are, in general, icons with good reputations from the legal sector.
President, the rule of law in Hong Kong is, however, faced with unprecedented challenges. Members of the public have become increasingly suspicious about whether the legal system can bring justice to Hong Kong society. Amidst severe social division, court judgments will inevitably draw public attention and comments. Although judges are expected to adjudicate cases based on legal principles and evidence and not to be influenced by any individual, politics or forces, court judgments often arouse public query that the Government manipulates the laws as tools to suppress dissidents. This is a nagging worry for the public. Therefore, another major duty of the Chief Justice is to demonstrate to the public that in the course of action taken by the Judiciary, the court defends the rule of law, human rights, and various rights protected by the Basic Law and the covenants such as the International Covenant on Civil and Political Rights.
I am quite concerned about some recent cases, in which many demonstrators who were prosecuted complained in court about being assaulted by police officers or delayed in receiving medical treatment. If such allegations are true, I think our public prosecutions system is indeed unfair. Does it involve any systemic abuse of power or indiscriminate prosecution? The court serves as an arbitrator or adjudicator between two parties, i.e. the prosecution and the defence. I am of the opinion that a judge also has the duty to follow up and look into the allegations rather than ignoring them by saying that they are not relevant to the facts of the case. If the court only focuses on adjudicating cases and neglects the procedural human rights issues arising in the course of case handling, or even says that such issues should not be dealt with by the court and merely asks the defendants to lodge complaints with the Complaints Against Police Office, how can members of the public or the defendants have full confidence in public prosecutions and the judicial system? Just now, many Members mentioned that 8658 LEGISLATIVE COUNCIL ― 18 June 2020 a judge used quite a number of sensational words in his judgment. Subsequently, Chief Justice Geoffrey MA conducted a follow-up and made a statement, stating that a judge or judicial officer who expresses in public unwarranted or unnecessary views risks compromising the appearance of impartiality and credibility of the court. He has also decided that the judge concerned should not for the time being deal with any cases involving a similar political context. Of course, whether that judge is indeed biased sometimes really has little to do with his judgment, but this is a matter of perception, which is absolutely important. I agree with Chief Justice Geoffrey MA's approach. The Judiciary took resolute action to rectify errors and reiterated the correct stance and principles. This would not damage the prestige of the court, but rather help the court gain more public recognition and respect. I also expect that the established judicial system in Hong Kong will face challenges one after another, which will exert various impacts on human rights and the rule of law in Hong Kong. I hope the Chief Justice of CFA will lead the Judiciary to administer justice independently and impartially, and to adjudicate cases in a fair, impartial, fearless and selfless manner, upholding human rights and the rule of law.
Secondly, I would also like to talk about the judges in Hong Kong. I do not mean to make criticisms. I am just giving my comments after reading the judgments in some cases. In Hong Kong, which is a bilingual common law jurisdiction, both Chinese and English are languages accepted by the court; similarly, in the Legislative Council, both Chinese and English are accepted for debate. However, I am very disappointed to see that the deteriorating standard of English in recent judgments (including those written by judges). I am sure Mrs Regina IP would agree. I am not making unsubstantiated accusations. I can pick out many judgments with problems, including grammatical errors, incomplete sentences and the use of a lot of "Chinglish". The Secretary for Justice said a few months ago or last year that Hong Kong was the only common law jurisdiction where trials could be conducted in Chinese. How can we allow the standard of these judgments to deteriorate? I am very concerned about this. I am not saying that many judges have this problem. I only hope that the Chief Justice of CFA, the various executives of the Judiciary, the Judiciary Administrator, and so on, will pay attention to the judgments written by judges, not the legal points therein, but whether the judgments contain any undesirable LEGISLATIVE COUNCIL ― 18 June 2020 8659 inadequacies mentioned above. This is my personal view. Of course, I will not criticize the judgments written by judges because judicial independence must be respected.
Just now, a pro-establishment Member mentioned a case in Singapore concerning national security, saying that in 1994, the power of final adjudication in Singapore was still vested with the Privy Council of the United Kingdom, and that as national security was involved in that case, after the Privy Council handed down a judgment on that case, Singapore decided to take pack the power of final adjudication. I think this case has completely nothing to do with Hong Kong or the Hong Kong national security law which may be implemented in the future. Why? This example is totally irrelevant. Singapore and the United Kingdom are two sovereign states. Referring to the Basic Law, Article 1 of the Basic Law provides that "[t]he Hong Kong Special Administrative Region is an inalienable part of the People's Republic of China". Hong Kong is a part of China, and thus trying a case in the Hong Kong CFA is, from the legal aspect and from all aspects, the same as trying a case in China's own territory. Article 2 of the Basic Law provides that "[t]he National People's Congress authorizes the Hong Kong Special Administrative Region to exercise a high degree of autonomy and enjoy executive, legislative and independent judicial power, including that of final adjudication, in accordance with the provisions of this Law". If the Government still respects the Basic Law and has the spirit of the rule of law, it should not make unlimited interpretations of the provisions of the Basic Law, stating that some institutions are special and are not bound by the Basic Law. Then a few months or a few years later, it stated that another situation had arisen, causing another institution not being bound by the Basic Law. Today, it further states that some cases will not be subject to the power of final adjudication vested in the Hong Kong CFA under the Basic Law. If the situation continues to develop in this way, there will be many different special cases and special circumstances in Hong Kong. What is the use of the Basic Law then? I am of the opinion that the power of final adjudication is indeed conferred by the Basic Law and should absolutely be respected.
Lastly, many journalists have asked if I support this appointment. I believe the Chief Secretary is also very concerned about this. I can tell him that I support the appointment of the Chief Justice of CFA. President, I so submit.
8660 LEGISLATIVE COUNCIL ― 18 June 2020
DR JUNIUS HO (in Cantonese): President, I support the proposed resolution to appoint the Honourable Mr Justice Andrew CHEUNG as the next Chief Justice of the Hong Kong Court of Final Appeal ("CFA") under Article 73(7) of the Basic Law and section 6 of the Hong Kong Court of Final Appeal Ordinance (Cap. 484).
The Basic Law has explicit provisions on the appointment or removal of the Chief Justice of CFA and the Chief Judge of the High Court. Today, we are dealing with the proposed resolution on the Chief Executive's appointment of Mr Justice Andrew CHEUNG as the next Chief Justice of CFA in accordance with the law. Under the Basic Law, there are four stages leading to the appointment of the Chief Justice of CFA and the Chief Judge of the High Court.
The first stage is recommendation by the Judicial Officers Recommendation Commission ("JORC") under Article 88 of the Basic Law. The nine members of JORC are prominent members of the community, senior legal professionals and representatives of the judicial sector. Most of them are engaged in legal work with rich experience in the judicial sector. They will shortlist the candidates and make recommendation. This is the first stage.
The second stage is appointment by the Chief Executive under Article 88 of the Basic Law. The Chief Executive will carefully and thoroughly consider all factors including the suitability of the candidate recommended, as well as his abilities and characters.
The third stage is obtaining the endorsement of the Legislative Council. In fact, the Government has done a lot of work and Mr Justice Andrew CHEUNG, the Chief Justice designate, has no shortcomings or inadequacies. After obtaining the endorsement of the Legislative Council under Article 90(2) of the Basic Law, these three steps have been completed. Finally, the appointment of the Chief Justice will be reported to the Standing Committee of the National People's Congress for the record. If there is no problem, the appointment will be accepted; if there is any problem, rearrangement or reconsideration is required. Therefore, the entire process is very stringent. The Legislative Council has been doing so in the past 23 years and it is now going to appoint the third Chief Justice of CFA in accordance with the established procedures. I fully support this measure which has all along been effective.
LEGISLATIVE COUNCIL ― 18 June 2020 8661
I would like to share with colleagues the observations of some members of the judicial sector or the legal profession. They have high hopes for the new Chief Justice, hoping that he can make improvements. Regarding the efficiency of the Judiciary, is there a shortage of judges or is there a recruitment problem? There is still a shortage of 187 judges. If some judges are going to retire, succession problems or even a manpower gap will arise. The situation was more prominent five years ago. As we have recently extended the retirement age of judges, we hope that talents would be retained. As judges are not mandatorily required to retire when they reach 70, it is hoped that judges with wisdom and resolution can still serve in the Judiciary. We are highly concerned about the efficiency of the Judiciary, including the manpower issues that I just mentioned, because the waiting time for hearing of cases is far too long.
The Civil Justice Reform was carried out in 2008 but that was 12 years ago. At that time, the reform, focused on civil proceeding, was implemented with the force of a thunderbolt. We hoped that judges could be more proactive in monitoring the courts to expedite the hearing of cases, so as to clear the backlogs and shorten the waiting time for hearing of cases. Court time should be properly utilized and court hearing should not be delayed due to inadequacies. The reform at that time really had the force of a thunderbolt and the committee appointed by Chief Justice Andrew LI had spared no efforts. Yet, 12 years later, the conditions become unsatisfactory again and many milestone dates have yet to be set. Although rules have been set, the performance may be affected by one's mood, ability or failure to allocate time. Sometimes, horses that run real fast cannot get good results because they are overloaded. We found that the waiting time for hearing of cases is over 200 days and the waiting time may be even longer.
The Civil Justice Reform I just mentioned sought to simplify the procedures, shorten the time and enhance efficiency. However, as many new rules or guidelines have been formulated over the years, it seems that the practices vary. Although judges follow the guidelines, procedures and rules of the judicial system, each judge has his own character and he may make new rules during case review, so practitioners are sometimes at a loss. Therefore, we need to review these rules and simplify them.
A judge submitted his written judgment more than 1 000 days after the conclusion of the case. President, 1 000 days are close to three years, is there anything to do with the ability of the judge? Does the judge have insufficient time? Has the judge handled too many cases? Is there an uneven division of 8662 LEGISLATIVE COUNCIL ― 18 June 2020 work in the Judiciary? Some judges have to handle a large number of cases while some other judges are left idle. Some have lost their sense of propriety, perhaps due to health problems or personal interests. Drinking problem or family conditions may also have emotional impacts on them.
Of course, we would like to see judges stay healthy and continue to serve in the Judiciary, but some judges, who are in poor health, still remain in office and are not required to retire. Perhaps these judges have contributed to the Judiciary but what should be done if a judge is suffering from Parkinson's Syndrome, with shaking hands and walking difficulties? Although allowing these judges to remain in office is understandable, we have to review whether this would affect the entire judicial system. As the saying goes, "justice delayed is justice denied". If the progress of a case is delayed, the party concerned cannot get timely relief, and this is something that we are unwilling to see.
The sentencing of judges should not vary too much. Given the current social turmoil, judges with different political stances may make different judgments. We must take into account the overall interests and consensus of the community and the most important principle is to maintain social prosperity and stability, as clearly stated in the Basic Law.
Nevertheless, some judges let go of the accused in violent incidents while some other judges are impartial. If primary courts, especially the Magistrates' Courts, can freely make decisions without adhering to some criteria, that will be regrettable. Judgments have precedent effects or binding effects, i.e. the rules made by the higher courts will affect the lower courts and have binding effects, but the binding rules will only be reviewed during an appeal. I think the Chief Justice must understand the social conditions; he should not live in an ivory tower or be detached from reality. He must be down to earth and pragmatic, and he should grasp the pulse of society and the pulse of times. He should not act in a responsive manner, allowing the lower courts to work on their own or take no notice if no appeal has been lodged.
As the lead of the judicial system, the Chief Justice must make good use of the appeal system, correct the mistakes made by the lower courts, and cite clear guidelines in handling cases. If he does not use the power he has, his talents will only be wasted, which is a great pity. So, the consistency of judgments is very important. I think the Chief Justice should not only be praised and flattered by others and appear impartial; he should also examine the entire social environment because this is not only the responsibility of the Chief Executive.
LEGISLATIVE COUNCIL ― 18 June 2020 8663
As a Member mentioned a while ago, the checks and balances among the executive authorities, the Judiciary and the legislature are really important. If the executive authorities have done something unsatisfactory, the misdeeds should be rectified by the Judiciary but what should be done if the Judiciary has done something unsatisfactory? In respect of the enactment of legislation, the Legislative Council has to keep pace with the times but some have acted irresponsibly, claiming that they are fighting for Hong Kong people but they are actually pulling Hong Kong back. Some have poured faeces and urine in this Chamber and have needlessly rung the death knell. They target at the Rules of Procedure and have set bad examples which affect the entire society.
What does separation of powers mean? If the three horses pulling a carriage jostle and shove, the carriage will be smashed to pieces. If there is a lack of consistency, direction and unity, there will be distraction, decentralization, struggle and burden. Under these social circumstances, if Chief Justice does not make improvements, I think things will remain the same no matter who is appointed. We do not need people having the concept that he should govern by doing nothing. We need someone who has the talent and competence to take up this position and make an all-out effort to do a good job.
Lastly, the training of judges is extremely important. Judicial independence does not mean acting independently but it only means that judges are not subject to interference, oppression, eviction or political pressure when adjudicating on cases. Article 89 of the Basic Law clearly stipulates the protection of the judicial system and the procedures on appointment or removal are stringent. Judges should not, after the appointment, idle away their time, thinking that they can be free of worries because of the lifetime appointment.
To sum up, the judicial system needs a comprehensive reform and the Judiciary must exert themselves to catch up. I hope that the newly appointed Chief Justice Andrew CHEUNG can lead the Judiciary in working for a brighter and better future. Thank you, President.
PRESIDENT (in Cantonese): Ms Claudia MO, please speak.
(Mr CHAN Chi-chuen indicated his wish to raise a point of order)
8664 LEGISLATIVE COUNCIL ― 18 June 2020
MR CHAN CHI-CHUEN (in Cantonese): President, I request a headcount.
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): Ms Claudia MO, please speak.
MS CLAUDIA MO: This is a proposed resolution under Article 73(7) of the Basic Law about the appointment of a new Chief Justice. It is called a proposed resolution, but as far as I could see, it is a foregone conclusion, despite the fact that our Democratic Party colleagues have declared that they would vote for abstention in this motion. The fact that the democrats are quite so outnumbered in this Chamber with so many "pro-Beijing flunkeys" around―they have got the majority, of course, this motion will be passed, but having said that, I am not particularly objecting to the proposal either; I am just stating the facts.
Now, I would claim that I have heard from many of my smart lawyer friends that, if you are really smart, you would not become a judge. They are saying a lawyer is a much more lucrative business. And so, to be a judge is a calling for the sake of practicing more justice. It is very amusing to hear the last Member talking about checks and balances and saying that what do we need separation of powers for? There is no point, because there will be a coalition and everything will just fall apart. I am sorry; that defies any sense of civilization in this modern time, but of course, pro-Beijing mouthpieces would keep telling you that the Basic Law never guarantees separation of powers, but, it does talk about judicial independence. Now, if there is indeed no separation of powers, what is this legislature for? It operates just under the executive branch; that is the idea, right? This is just a "rubber-stamping" body.
I perfectly agree with the earlier speech of my Honourable colleague, Dennis KWOK. He said normally, there is really no point to try to duplicate the efforts of the Judicial Officers Recommendation Commission; once the selection process has been completed, it just needs the approval or endorsement in this LEGISLATIVE COUNCIL ― 18 June 2020 8665
Chamber. And, unless the appointment is manifestly contrary to public interests, there is no particular ground to say "no" to this appointment. I perfectly agree.
Indeed, judicial independence, or the rule of law rather, is the bedrock of this society, or any modern society, and for the sake of Hong Kong's stability, we need this rule of law. But as we are speaking at the moment, the National People's Congress in Beijing is deliberating this new national security law specifically designed for Hong Kong and our judicial system has no say to that in whatever manner, it seems, at least. So much for judicial independence.
I have also heard Mr Dennis KWOK saying that people practicing justice, i.e. the entire judicial system, owes its ethics and professionalism to the entire society, and they should be doing that without fear or favour. Mr KWOK was actually quoting our former Chief Justice Geoffrey MA. Judges should, without fear or favour, be practicing the law in courts; and that is the civilized understanding of any civilized society. "Without fear, without favour" is also a slogan very much applicable to the media, at least, I think it is the Financial Times which has that slogan. The same applies to impartiality on the part of members of the judicial system. But, impartiality in the media is hugely different, it is only applicable up to a point, because at the end of the day, journalists report not just facts, we need to exercise some basic sense over human rights, over the sense of justice, over the sense of democracy, etc. But, in a court, you need to look at the law, and I suppose, rule by the law; you have to just look at the wording of specific provisions in order to decide on a judgment.
Of course, the previous Chief Justice, Geoffrey MA, quite rightly came out to remind all judges in this territory that they should not be biased for or against anyone when they are dealing with judgments and rulings and things. He was also reminding the judges that they should not be making publicly, especially in judgments, unwarranted and unnecessary political statements. That is all very proper; I honestly hope the new Chief Justice would be able to practise with enough gravitas and enough anchor in the judicial system.
We were saying that the selection of the new Chief Justice has been completed and we are now just endorsing the appointment. The appointment itself is, I would say, a foregone conclusion; it has just been done. Never mind, but then Hong Kong people would need to tell the head of our judicial system that we are terribly worried about the rule of law in Hong Kong. The fact is that 8666 LEGISLATIVE COUNCIL ― 18 June 2020 political influences of government officials and executives seemed to be rather rampant inside and out of the courts. You can never prove that sort of accusation. You cannot say, "Oh, give me some evidence". But then we knew it is there. Just look at the honest media reports, and the fact that the Liaison Office of the Central People's Government in the Hong Kong Special Administrative Region and the Hong Kong and Macao Affairs Office of the State Council would issue statements, and practically calling some Hong Kong people "criminals" would make a huge joke about our judicial system and how independent it is. The Court of Final Appeal is not that final after all.
Thirty year ago when the Basic Law was first promulgated, we knew the National People's Congress ("NPC") would override the authority of the Basic Law. We knew all along, except that we have been living in the trust that they would draw a line somewhere and the river water would not mix with the well water or that sort of mentality. But you can tell it is not quite the same anymore, to anyone with the right mind.
The English press, very wrongly, keeps calling our Secretary for Justice the Judicial Chief. This is very wrong. She is not the head of the judicial system. The Chief Justice is, not the Secretary for Justice, because this particular minister works for the Government, right? People seem to think that we can mix the two together. When it comes to rule of law, our Honourable colleague, Ted HUI Chi-fung, has started some private prosecution, and our so-called "Justice Chief", no, it is wrong, our "Prosecution Chief" would say publicly that, "Oh, this sort of private prosecution may not be desirable. I have the right to have it terminated", or something to that effect …
PRESIDENT (in Cantonese): Ms Claudia MO, please return to the subject of this debate.
MS CLAUDIA MO: … I know. I am trying to clarify the misunderstanding amongst many people that the Secretary for Justice is the head of our judicial system, when the Chief Justice of this new appointment is actually the head.
My personal impression about the new Chief Justice based on his judgment on the oath-taking saga three years back now was that I was slightly taken aback, I must say. But then, of course, it was a rule by law. NPC, at the time, had LEGISLATIVE COUNCIL ― 18 June 2020 8667 effectively reinterpreted the relevant provisions under the oath-taking section. So, he had to abide by it. There was not much choice. I mean, can you go against the Beijing NPC? I doubt it very much. But having said that, we are terribly worried that some judges, at least some, might think they would even need to grovel vis-à-vis Beijing these days. It is a very unsettling thought. We hope this new Chief Justice would uphold rule of law, and not just rule by law, let alone rule by decree.
Rule of law is really a spirit. We work for justice and on justice. Laws are there to protect the people, not to harm, not to round up the people, not to gag, not to stop them from saying what they disagree with the authorities. But rule by law, you would say it is still a sort of rule, but rule by law could be very scary because a law could be, what we would say in Chinese, evil. If a law says in some authoritarian society that you are a thief, you have been convicted for stealing, you steal with your left hand, get your left hand chopped off; if you have stolen with your right hand, you have your right hand chopped off. That is the sort of differences between rule of law and rule by law.
So, in Hong Kong at the moment, many would say we seem to be living in a rule by law vibes. But is it going to turn into rule by decree very soon or has it already happened? We never would know. But we, seriously, would hope that the judicial system and its members would uphold their moral uprightness, their professionalism and their legal and judicial ethics.
Thank you.
DR FERNANDO CHEUNG (in Cantonese): President, after this proposed resolution is presented to the Legislative Council, Members would almost treat it as a mere formality in general. In the past, we have not heard that Members would consider voting against such a motion or abstaining from voting, but today, I am really prepared to abstain from voting. The procedure is a mere formality. The Judicial Officers Recommendation Commission has, upon completion of certain procedure, finally recommended the Honourable Mr Justice Andrew CHEUNG as the Chief Justice of the Court of Final Appeal ("CFA"). Why will I abstain from voting today? It can be said that the proposed resolution is presented to the Legislative Council to obtain a vote of confidence. If the vote is secured, it implies that we Members believe in the mechanism of recommendation; we believe in the person who has been recommended to act as 8668 LEGISLATIVE COUNCIL ― 18 June 2020 the Chief Justice of CFA; we believe that after the appointment is made following this process, the judicial system will remain independent and the sound tradition of the rule of law will be upheld.
President, I really cannot cast this vote of confidence. It is not that I do not believe in Mr Justice Andrew CHEUNG himself. Having said that, he has handled a number of controversial cases, including citing the interpretation of the Basic Law by the Standing Committee of the National People's Congress to disqualify two elected Legislative Council Members. Mr Justice Andrew CHEUNG had also made some rulings in cases concerning equal rights for people of different sexual orientations. However, I do not intend to mention any of those cases here. I myself was involved in a judicial review case concerning the deprivation of opportunities for persons with intellectual disability to study in schools after the age of 18. Mr Justice Andrew CHEUNG presided in the case and ruled against us. However, these matters are not our prime concern, and they are not the factors that I care and affect my decision on how I shall vote today. My main concern is that I find it hard to believe that judicial independence can still be upheld in Hong Kong under the current system.
Mr Justice Andrew CHEUNG declared explicitly his honour to be recommended for the position and he fully understood that society had very high expectations for the Judiciary. He said that if he was appointed, he would try his best to ensure that the rule of law and judicial independence would be upheld and the rights and freedoms of individuals be maintained. I entirely agree with Mr Justice Andrew CHEUNG on this point. Nevertheless, very unfortunately, I really cannot see how judicial independence can be upheld in Hong Kong.
Certainly, judicial independence is the cornerstone for Hong Kong to succeed, maintain stability and move forward. Without judicial independence, the judicial system will change from an independent mechanism that upholds justice for all to a system which can be overridden; and surely, the system will be overridden by an authoritarian regime. The concept of an independent judicial system or separation of powers will surely run counter to authoritarianism. Of course, an authoritarian regime wants to possess all powers so that it can decide everything and own everything. An authoritarian regime is like an emperor who is the law, and whatever he says must be correct. Certainly, this will be most advantageous to an authoritarian regime. However, as Members will know, power corrupts, and absolute power corrupts absolutely. There have been too many examples of this kind in human history, and there are also many examples LEGISLATIVE COUNCIL ― 18 June 2020 8669 in our country at present. Thus, an authoritarian regime surely does not like the principle of separation of powers, much less any agency which has the independent ability to keep other powers in check. Power lies in the ability to exercise checks and balances, and the law is used to restrict many powerful mechanisms or persons. Besides, the law is also the foundation of social order. When the law is used by an authoritarian regime as a weapon to make everyone surrender or suppress all voices of opposition, then the law is dead. This problem is what we call "the demise of the rule of law".
President, why don't I have any confidence? In 2008 when I was a Member of the Legislative Council, I was invited to a banquet. On that occasion, XI Jinping, the then Vice President of China, gave a speech as a guest speaker visiting Hong Kong. He proposed the idea of cooperation of powers which gave rise to an outcry. At the time, he assumed as a matter of fact that "there should be mutual understanding and support among the three branches of the executive, the legislature and the Judiciary, and everyone should cherish the general situation of prosperity and stability in Hong Kong which is not easy to come by". He made these remarks back in 2008. In 2017 when he visited Hong Kong again, he reiterated that the principal officials or persons in charge of the legislature or the Judiciary must have a national concept. In the process of conducting administrative activities and dealing with related issues, they must observe and think from the high perspective of the country, and they must consciously safeguard the sovereignty of the State, national security and interests in the development of the country to fulfil their responsibilities to the State. XI has made himself very clear in 2008 in Hong Kong and also in 2017 when he visited Hong Kong again. What he is doing today complies with what he has been saying all these years. That is his understanding …
PRESIDENT (in Cantonese): Dr Fernando CHEUNG, please return to the subject of this debate.
DR FERNANDO CHEUNG (in Cantonese): President, I am talking about the rule of law.
PRESIDENT (in Cantonese): This Council is debating on the proposed resolution on the appointment of the Chief Justice of the Hong Kong Court of Final Appeal. Please return to the subject of this debate.
8670 LEGISLATIVE COUNCIL ― 18 June 2020
DR FERNANDO CHEUNG (in Cantonese): The Chief Justice designate said that he would try his best to ensure the upholding of the rule of law and judicial independence. I am discussing the main duties of his appointed position.
President, our biggest difficulty is that the concept of the State under the Communist regime is completely different from that of open societies. According to the concept of the State under the Communist regime, the State belongs to the party, that is, the party is the state. In Hong Kong, we have the Government, but the Hong Kong Government does not belong to a certain party, because the regime can fall, the party can fall, but it does not mean the country will perish. However, to the Communist Party of China, the party's demise is equivalent to the country's demise …
PRESIDENT (in Cantonese): Dr Fernando CHEUNG, I remind you again to return to the subject of this debate please.
DR FERNANDO CHEUNG (in Cantonese): President, this is very important because I must clearly explain why I am not confident in casting a vote of confidence.
At present, the two systems are completely different, and the problem facing us is that another system will override our current system. At this very important time of dealing with the appointment of the Chief Justice of CFA, we must consider whether the person appointed or the current system can sustain, or whether, as stated by Mr Justice Andrew CHEUNG, "judicial independence and the rule of law can be upheld". That is the current position and that is the crux of the problem.
If I have not be able to clarify this point and have not explained clearly to the public, how can I account for my stance today, i.e. I will stay in the Chamber but abstain from voting? It is not that I do not have any views or have adopted a neutral stance on the motion; it is not that I want to avoid undertaking responsibility and dare not vote for or against the motion; the point is that I am not confident to cast a vote of confidence. The crux of the problem is that the values of our open society have been continually eroded and surrendered. People have continued to confuse us with the concepts that the State overrides everything, and that national security and state sovereignty override everything. Consequently, our entire judicial system has collapsed. LEGISLATIVE COUNCIL ― 18 June 2020 8671
Today, the judicial system has almost become our last line of defence. It is well evident that the administrators and law enforcement officers are not fair at all, and the prosecution process is also not fair. They have selectively enforced the law and instituted prosecutions in an entirely biased manner. If even the judicial system is collapsed, what other system can we rely on to maintain the general situation of prosperity and stability in Hong Kong which is not easy to come by, as stated by President XI Jinping? Thus, President, I have no other choice but clearly explain this point.
Let me turn to another concept. Today, our administrators, law enforcement officers or rulers keep saying that they are administering according to the law, and all actions taken comply with the law and are lawful. That is a kind of sophistry. The law is actually enacted by them. They can enact the law in whatever way they like, and then claim that they only act according to the law. Similarly, at present, many public officers said that since no details about the Hong Kong national security law were available, they could not make comments. In fact, they knew that everything would become lawful. That must be true because the law will be drafted in whatever way they like. The law can have retrospective effect and defendants can be deported to the Mainland for trial. All these contravene the Basic Law. However, it is not a big deal for them. Since the Hong Kong national security law will override the Basic Law, anything can be done, and the law can be drafted in whatever way they like. They can then say that whatever they do is lawful. That brings us back to what I said in the beginning, i.e. the emperor is the law. Is this acting according to the law? Do you call this justice? Can the judicial system exercise any checks on the powers under these circumstances?
Mr HUI Chi-fung clearly told us two important features under the rule of law, namely, checks and balances and justice. The rule of law seeks to do justice and an independent judicial system seeks to exercise checks and balances without which power will corrupt absolutely, and social justice cannot be achieved in the end. That is a requirement in an open society. In other words, it is a fundamental value. In this society, we are not asking for much; we just want to work hard and live well in our own positions. When we encounter difficulties, we hope that we will be given some basic protection under the system; we hope that we can help one another and people who are more capable and earn more can help those who are poorer; people who are more healthy can help those who are less healthy; people who have more power can help those with less power. We hope that there will be opportunities of development for everyone in society. 8672 LEGISLATIVE COUNCIL ― 18 June 2020
Nevertheless, under this kind of system, we must restrict the powers; otherwise, people will be controlled by their own desires and powers. Corruption will distort human nature. Consequently, a small fraction of people will monopolize the best resources while other people will become their slaves. This is precisely the kind of society which we must try to avoid.
MS ELIZABETH QUAT (in Cantonese): President, I speak in support of the proposed resolution to appoint the Honourable Mr Justice Andrew CHEUNG as the Chief Justice of the Hong Kong Court of Final Appeal ("CFA"). I would like to take this opportunity to convey to Mr Andrew Justice CHEUNG the public's expectations for him and present my opinions on the existing problems of the Judiciary. I hope that Mr Justice CHEUNG would listen to our views.
The rule of law is the cornerstone of Hong Kong's success, but the rule of law must manifest social justice and give people the confidence in the judicial system. The vast majority of Hong Kong people hope that judges will not be affected by political ideology but will rule on the basis of facts. However, as reflected from public opinions and the complaints I received these days, many people are worried about the judicial system in Hong Kong. I have summed up the main points of complaints and public opinions as follows.
First, many people are worried whether the judgments presently made are totally impartial. A number of people keep asking me whether judges have the right to make any judgments, and whether there are any criteria and standards on sentencing. If the public think that the sentences imposed have adverse effects on society and even convey some unacceptable messages, are there any avenues to lodge complaints? How can the public reflect their concerns? They want the judges to understand that their criticisms are not malicious, they just want to convey their expectations for the judges. Second, when public complaints are not dealt with or accepted, people will think that judges, courts, and the Judiciary stand high above the masses and do not accept any criticism. They will also think that there are double standards in handling complaints. Third, many people opine that the trial of many cases have been postponed so long that justice cannot be served. As a matter of fact, there is a huge backlog of cases.
Let me cite some cases in relation to the above points. Recently many cases have arisen and I have often received complaints from the public. For example, a 15-year-old boy hurled petrol bombs at roads to give vent to his LEGISLATIVE COUNCIL ― 18 June 2020 8673 dissatisfaction with the Government, the pro-establishment camp and the Police Force. Magistrate SHUI Kelly said that the defendant was outstanding, full of enthusiasm and loved Hong Kong, so she sentenced him to probation for 18 months. Many parents immediately complained to me, saying that this sentence would convey a bad message to the public, misleading young people into thinking that they could use violent and terrorist acts to express their opinions so long as they loved Hong Kong. These parents also think that the judgment has far-reaching adverse impacts on the next generation. In view of this, I have written to Chief Justice Geoffrey MA, hoping that he will seriously handle the complaints in relation to this case.
Members of the public have always considered that assaulting police officers and obstructing police officers in executing their duties are very serious offences. AU Nok-hin, a former Member of this Council, was convicted of assaulting a police officer but he was only sentenced to a 140 hours' community service order. More importantly, the defendant emphasized in the plea that he was discharging his duties as a Member of this Council and speaking on behalf of the public. In fact, he assaulted a police officer with a loudhailer, causing the police officer to suffer from permanent hearing damage. The judge sentenced him to a 140 hours' community service order based on his plea that he was regretful of his act. However, he claimed that he was not guilty when he left the court and said that he would appeal. Some members of the public think that AU Nok-hin had deceived the judge but the judge still made such a judgment, which is really unfair.
Furthermore, in another complaint case, a tertiary student was charged with splashing liquid at disciplined services quarters. He claimed that he was drunk at that time and was only fined $200. The fine for littering is more than $200. Will this sentence lead young people to mistakenly think that they are acting righteously? Many people find a lot of court sentences unfair. For example, while someone was spared from imprisonment due to old age, another defendant, also being old and sick, was sentenced to imprisonment for attacking anti-government persons. Though many people queried the sentence imposed by the judge, they have no avenue to lodge complaints. According to the law, judges make independent judgments; members of the public can only express their personal opinions but cannot lodge complaints. In fact, the successive unfair judgments have made the public lose confidence in the judicial system. The Government and the Judiciary should ponder over this issue and I will put forward relevant suggestions later.
8674 LEGISLATIVE COUNCIL ― 18 June 2020
On 24 April, District Judge KWOK Wai-kin sentenced a defendant to 45 months' imprisonment for stabbing people at the Lennon Wall in Tseung Kwan O. In his judgment, he praised the defendant for his "noble qualities" as manifested by his willingness to accept punishment so as to bring relief to the injured. Judge KWOK also criticized that Hong Kong has become an unsafe place since June last year and it was difficult for Hong Kong to attract tourists as shopping malls, restaurants and streets were no longer safe. If tourists did not visit Hong Kong, shops and economic activities could not function properly and business would be dwindling, aggravating unemployment and underemployment. In the judgment, Judge KWOK also pointed out that the defendant, who was unemployed when he committed the offence, was actually an involuntary victim of the social movement. All of us should enjoy the rights to work, to live and to survive and we should not be deprived of these rights.
In our opinion, Judge KWOK Wai-kin only stated the facts in his judgment. In fact, he has not imposed a light sentence on the defendant as 45 months of imprisonment is actually rather heavy. However, many anti-government camps have complained about this judgment and Chief Justice Geoffrey MA issued a high-profile statement later, saying that Judge KWOK's judgment on this case appeared biased. Consequently, Judge KWOK would no longer deal with any cases involving disturbances arising from the opposition to the proposed legislative amendments. In fact, Judge KWOK did not impose a light sentence on the defendant and he only stated the facts in his judgment, why should he be purged? On the contrary, in similar cases, judges who support the disturbances arising from the opposition to the proposed legislative amendments are not affected. For example, a judge praised in his judgment the young defendant who hurled petrol bombs as outstanding; another judge praised in his judgment that the defendant who broke the law for civil disobedience showed noble qualities; and three other judges anonymously opposed the proposed legislative amendments. Despite the numerous complaints against these judges, how come they have not been admonished or purged? How come Geoffrey MA, Chief Justice of CFA, only issued a high-profile statement on Judge KWOK's case and did not deal with other complaints? This gives people the impression of having double standards.
I have also made reference to the situation in foreign countries. In recent years, people around the world have shown increasing concern about the proportionality and impartiality of sentencing, as well as the handling of complaints against judges. In the United Kingdom, the Government established LEGISLATIVE COUNCIL ― 18 June 2020 8675 the Sentencing Council in 2010 to issue guidelines on sentencing of criminal offences. The guidelines have binding force on judges at all levels of courts. The sentencing guidelines are not only meant for reference, judges at all level of courts must comply unless the guidelines run counter to the impartiality of law. The establishment of Sentencing Council in the United Kingdom provides sentencing guidelines to judges and Hong Kong can learn from the United Kingdom.
In addition, Chief Justice Geoffrey MA said at the Ceremonial Opening of the Legal Year 2020 that judges should look to the sentencing guidelines set by the courts, in particular the Court of Appeal and due recognition given to the factors of retribution, deterrence, prevention and rehabilitation. I agree to this point, but many members of the public have complained that some judgments lack the effects of deterrence, prevention and rehabilitation. Therefore, I suggest that Hong Kong should make reference to the practices in the United Kingdom and other common law regions and establish a sentencing committee and a judicial supervision committee comprising legal and non-legal professionals.
In my opinion, the above committees will help increase the recognition for the Judiciary and public participation of the judicial system, so as to achieve fair and equitable trials and uphold the rule of law which is a core value of Hong Kong.
In addition, the backlog of cases is very serious. We know that the delayed hearing of a case is more favourable to the defendant, but the trial will be increasingly unfair. In the case of the disturbances arising from the opposition to the proposed legislative amendments, among the 8 000 to 9 000 people arrested so far, only 1 000 people have been prosecuted and most of them have been leniently handled by the courts. If the hearing of cases is delayed, some suspects may commit crimes again. In some cases, a suspect has been arrested a few times and he even fled Hong Kong afterwards. Owing to the lenient sentencing, some convicts have been granted bail and they eventually flee to foreign countries. As such, justice is not done and the longer the cases are postponed, the more serious the problem.
The cases in backlog are not limited to those concerning opposition to the proposed legislative amendments. We have all along pointed out that some people have constantly abused the judicial review procedures. In addition to the "king of judicial review", non-refoulement claimants (commonly known as 8676 LEGISLATIVE COUNCIL ― 18 June 2020
"bogus refugees") have been abusing the judicial review procedures. There is currently a backlog of a few thousand judicial review cases and we have been asking in the Panel on Administration of Justice and Legal Services how the Judiciary can resolve this problem. These cases have been postponed time and again and some of them have been postponed for several years. As these cases are still pending after a few years, the law and order and the rule of law in Hong Kong have been greatly impacted. Taking the cases of "bogus refugees" as an example, the backlog of cases has exerted heavy pressure and burden on public finance, and this will not be beneficial to Hong Kong at all.
Thus, we always advocate the practice of the United Kingdom to set up a court that operates round the clock to clear expeditiously the backlog of cases, so as to prevent arrestees from committing crimes incessantly. Owing to "mutual destruction" by black-clad rioters in the past year, justice has failed to be upheld. As for the situation concerning the abuse of judicial review, I think the Judiciary should not adopt an ostrich policy to leave the issue unsettled. It must seriously deal with the situation and expeditiously address the problem of case backlog.
President, lastly, I would like to point out that judges in Hong Kong are not only accountable to Hong Kong but also accountable to the country. The constitutional laws of the country and the region are legally binding on judges. Article 104 of the Basic Law provides that "[w]hen assuming office, the Chief Executive, principal officials, members of the Executive Council and of the Legislative Council, judges of the courts at all levels and other members of the judiciary in the Hong Kong Special Administrative Region must, in accordance with law, swear to uphold the Basic Law of the Hong Kong Special Administrative Region of the People's Republic of China and swear allegiance to the Hong Kong Special Administrative Region of the People's Republic of China". Therefore, judges are not completely independent such that they need not consider national security and the overall interests of Hong Kong.
I hope that Mr Justice Andrew CHEUNG will, after taking office, understand that Hong Kong people have great expectations for the Judiciary. I hope that he will listen to the views I expressed just now, and will, with a humble mind, try his best to defend our judicial system and deal with issues concerning unfair judgments, complaint handling, case backlogs and the responsibilities to Hong Kong and the country.
LEGISLATIVE COUNCIL ― 18 June 2020 8677
DR KWOK KA-KI (in Cantonese): President, regarding the motion on the appointment of the Honourable Mr Justice Andrew CHEUNG as the Chief Justice of the Court of Final Appeal ("CFA"), Mr Alvin YEUNG from my political party has clearly stated our voting intention. Here I would like to express some views on this appointment.
Hong Kong is now in the midst of a raging storm. What we are most concerned about and most eager to maintain is our current rule of law. Why would the Council have some close to unusual comments and voting intentions regarding the appointment of Mr Justice Andrew CHEUNG? This indeed indicates that the Council and Hong Kong as a whole are very doubtful whether the Special Administrative Region ("SAR") today can maintain the rule of law.
In December last year, before the Standing Committee of the National People's Congress ("NPCSC") announced the enactment of the Hong Kong national security law, a think tank which everyone would find impartial―the Bauhinia Foundation Research Centre―released the results of the "Survey on public perceptions towards the rule of law in Hong Kong". The survey was about Hong Kong people's ratings on the implementation of the rule of law for three consecutive years. Let me quote some important data for your reference. The score for "Equality before the Law" rose from 5.94 in 2017 to 6.02 in 2018; but dropped to 4.63 in late 2019, constituting a fail. The score for "Judicial Independence" was above 5 in 2017 and rose to 5.62 in 2018, but dropped to 4.51 in 2019. The score for "Judicial Autonomy"―which is our greatest concern―dropped from 5.29 in 2017 to 4.12 in 2019. The score for "Preventing Government Abuse of Powers" dropped from 5.23 in 2017 to 3.61 in 2019, i.e. a score below 4. The score for "Maintaining Law and Order" dropped from 6.79 in 2017 to 4.05 in 2019.
I believe no one would think the Bauhinia Foundation Research Centre has bias towards the pro-democracy camp or those Hong Kong people who are so-called rioters. This survey was conducted out of concern for not only the rule of law, but also the future of Hong Kong.
Earlier, the Group of Seven ("G7") countries (including the United States and Britain) and the European Union have expressed grave concern about the prospects of Hong Kong. In view of a gradual downgrade of the international rating of Hong Kong in various aspects―including the economic rating―our greatest worry is that Hong Kong will lose the competitive edge in the rule of law despite having excellent conditions. Most importantly, and most sadly, the SAR Government has made no effort to defend Hong Kong's rule of law. 8678 LEGISLATIVE COUNCIL ― 18 June 2020
Now members of the public are most concerned and most worried about NPCSC's discussion today on the implementation of the Hong Kong national security law. The Hong Kong national security law is one of the greatest factors shaking Hong Kong people's confidence in the rule of law. During this period of time, spokespersons of NPCSC, members of NPCSC from the Hong Kong region and government officials at all levels have clearly pointed out that no matter what laws are to be enacted by NPCSC, Hong Kong will put up no resistance. Even if NPCSC requests the SAR Government to introduce a special regime in future to support the Hong Kong national security law, which includes allowing Mainland enforcement officers to enforce law in Hong Kong, setting up special courts for hearing cases relating to national security, allowing screening of judges, and even extraditing Hong Kong residents to Mainland for trial according to the Mainland's needs, the SAR Government will comply. All such acts will deal a big blow to the rule of law in Hong Kong, making it difficult to maintain the rule of law.
Just now I heard many pro-establishment Members raising various views based on their interpretation of the rule of law. Here, I, as a layman, will quote from some literature that I have obtained. The definition of rule of law given in Encyclopedia Britannica is: An act, system or practice that supports the equality of all citizens before the law, and the cornerstones are to limit the arbitrary use of power and prevent the emergence of dictatorship or autocracy.
We all know that in Hong Kong or across the world, the government is the one with the supreme power. Therefore, in a democratic political regime, the supreme power is derived from a popular mandate through "one person, one vote". Hong Kong has never enjoyed democracy, Members of the Legislative Council are not elected through "one person, one vote", not to mention the election of the Chief Executive through "one person, one vote". Under such circumstances, it is very important to restrain the power of the Government with the rule of law …
PRESIDENT (in Cantonese): Dr KWOK Ka-ki, I remind you that this Council is debating the proposed resolution on the appointment of the Chief Justice of CFA. Please return to the subject of the debate.
LEGISLATIVE COUNCIL ― 18 June 2020 8679
DR KWOK KA-KI (in Cantonese): President, I am now returning to the subject of this debate. I am now talking about whether Mr Justice CHEUNG is capable of maintaining Hong Kong's rule of law―the rule of law in my mind―and whether he has the capability to restrain the Government.
According to Article 80 of the Basic Law, "[t]he courts of the Hong Kong Special Administrative Region at all levels shall be the judiciary of the Region, exercising the judicial power of the Region." Article 81 clearly states that the power of CFA of HKSAR shall be maintained.
Articles 82, 83, 84, 85 and 86 of the Basic Law also clearly point out that the courts of Hong Kong at all levels shall exercise judicial power and the power of final adjudication according to the common law principles. However, the Hong Kong national security law enacted by NPCSC is attacking and devastating the Basic Law in the aspects of rule of law, and the damage caused is difficult to estimate and irreparable.
Just imagine, Hong Kong people do not know when they will have an opportunity to implement universal suffrage and when the Government can be restrained or elected by the people, the rule of law is the only thing on which they can rely, and Mr Justice Andrew CHEUNG, the Chief Justice of CFA, is believed to be one of those who, in the hearts of members of the public, can maintain and uphold Hong Kong's rule of law. Yet, under such circumstances, the voices we heard all come from pro-establishment Members. I really find the remark "the Police arrest suspects while judges release them" the most unpleasant to the ears. They even lashed out at the separation of powers among the executive, legislature and Judiciary as if it is a great scourge. The pro-establishment camp is filled with such naïve and ignorant views.
I believe Members will not doubt that Chief Justice Geoffrey MA, who is about to retire, is also attacked by some pro-establishment groups. This is not an isolated incident. The pro-establishment camp has already manipulated many resources and the say of Hong Kong in Beijing, the Liaison Office of the Central People's Government in the Hong Kong SAR, the Legislative Council, as well as the SAR Government, but they still find it not enough and continue to damage the rule of law in Hong Kong. As we all know, under the current regime, Hong Kong's rule of law can in no way stop the enactment of the Hong Kong national security law. Therefore, many pro-democracy Members take another attitude towards this voting. This is important in the sense that we are not only suspicious of Mr Justice Andrew CHEUNG or other judges, but we also have 8680 LEGISLATIVE COUNCIL ― 18 June 2020 great suspicions and reservations about the whole system. Those damaging this system are the SAR Government in power, and the Beijing Government behind the scene. Today we heard the Vice Premier, Mr LIU He, talk about how to maintain "one country, two systems" in Hong Kong. He is actually damaging "one country, two systems" and the rule of law in Hong Kong, rendering Hong Kong beyond rescue.
At present, we see many Hong Kong people―in particular the younger generation―are most concerned about when the British National (Overseas) ("BNO") passports can be obtained and when the British Government or the European Union government can get them onto a lifeboat. Why has Hong Kong degenerated to such a state? It is because Hong Kong people of one generation after another―in particular the young people―have developed survival instincts in light of the damage to the rule of law and the ruthless damage to "one country, two systems". If the Government is unaware of the situation, I believe it is just pretending by turning a blind eye or turning a deaf ear.
What Hong Kong has achieved today has not been easy to come by. One of the achievements is the unique status of the rule of law in Hong Kong. I believe Members have a rough idea about the public's comments or ratings of the Government. Most Hong Kong people hope that the incumbent Chief Executive will step down as soon as possible. Regarding the major officials, in particular those associated with the rule of law, such as the Secretary for Justice Teresa CHENG, members of the public have given her the lowest score because she has failed to win the trust of the public in areas of arrest or law enforcement.
As evident from the data of the Bauhinia Foundation Research Centre, the rule of law in Hong Kong fails to ease the mind of Hong Kong people. In light of arbitrary arrests and indiscriminate prosecutions, the only thing which members of the public can rely on is a court and judicial system independent of any political manipulation, but we heard just now that judges are also required to bear allegiance to the People's Republic of China under the Basic Law. The Constitution of the People's Republic of China originally did not have such a provision. It only stipulated that citizens of the People's Republic of China enjoy freedom of speech, of assembly, of the press, of election, and of litigation. Regrettably, so far, none of these aspects have been implemented since 1949. Under the Mainland China regime, courts or judges are only part of a state machine. In many high profile cases, the defendants were not assigned lawyers, and the family members had no way …
LEGISLATIVE COUNCIL ― 18 June 2020 8681
PRESIDENT (in Cantonese): Dr KWOK Ka-ki, please return to the subject of the debate.
DR KWOK KA-KI (in Cantonese): President, I will end my speech very soon, just one more minute or so. The defendants could not receive any legal protection. If such a system overrides the judicial system of Hong Kong and such lines of thought are adopted to ask the judicial system and judges of Hong Kong to come to heel and obey submissively, will this improve the rule of law system in Hong Kong, will this make Hong Kong a world city in Asia, and will this make the younger generation continue to stay and pursue development in Hong Kong? This is dreaming as the damages are irreparable. Although very difficult, or almost impossible, may I ask public officers of the SAR Government (including the Chief Secretary) to, if they still have some conscience, maintain the rule of law in Hong Kong which has not been easy to come by and object to depriving Hong Kong of the most basic judicial rights under the Hong Kong national security law.
I so submit.
MR CHAN CHI-CHUEN (in Cantonese): The proposed resolution discussed today is about the appointment of the Honourable Mr Justice Andrew CHEUNG as the Chief Justice of the Court of Final Appeal ("CFA"). The Legislative Council is conferred with this appointment power under the Basic Law. According to Article 73(7) of the Basic Law, the Legislative Council has the power and function "[t]o endorse the appointment and removal of the judges of the Court of Final Appeal and the Chief Judge of the High Court". In addition, Article 90 of the Basic Law provides that "[i]n the case of the appointment or removal of judges of the Court of Final Appeal and the Chief Judge of the High Court of the Hong Kong Special Administrative Region, the Chief Executive shall … obtain the endorsement of the Legislative Council".
Yet, the Legislative Council seemed to take the endorsement of judicial appointment as a mere formality without exercising its power consciously. The Legislative Council Panel on Administration of Justice and Legal Services―I am referring to the Panel in the past rather than the one chaired by Dr Priscilla LEUNG in this term―had once discussed the exercise of such endorsement power and all the members at that time considered the power as substantive 8682 LEGISLATIVE COUNCIL ― 18 June 2020 because, as stipulated in the Basic Law, the appointment of the Chief Justice of CFA was incomplete without the endorsement of the Legislative Council. However, in order to safeguard and respect judicial independence, and prevent judicial appointment from being politicized, they agreed that the Legislative Council should exercise this power with caution. Unless there are obvious reasons for Members to express concern over a particular appointment, the Council will, by convention, endorse all judicial appointments. Therefore, all judicial appointments have gone through the Legislative Council smoothly since 1997. According to former Legislative Council President Jasper TSANG, the Council has all along been willing to act as a rubber stamp to endorse all judicial appointments, meaning that the Council will neither oppose such appointments nor discuss the strengths and weaknesses of the appointees in detail, given that it has trust in the judicial appointment process and mechanism.
After looking up the relevant information, I noted that a subcommittee was formed under the Legislative Council in mid-May 2015 to discuss the appointment of Justice Geoffrey MA. After one subcommittee meeting, the Legislative Council passed the proposed resolution on his appointment at the meeting on 9 June with no division being claimed. In other words, none of the Members voted against the resolution or abstained from voting. But, today, a division will certainly be claimed because some Members have already indicated their wish to abstain from voting and I will even vote against the proposed resolution.
The Government should ponder why the long-established "formality" or mechanism no longer stands. In the old days, the Legislative Council did not want to interfere too much with judicial appointment so as to safeguard judicial independence and show respect to it. Why did things change? When we look at the Government, we will see that Carrie LAM is also deeply concerned about the passage of this proposed resolution. As early as in March this year, Carrie LAM specifically told the press about this judicial appointment before an Executive Council meeting, announcing that the Judicial Officers Recommendation Commission ("JORC") had recommended Justice Andrew CHEUNG to be the next Chief Justice of CFA, even though his appointment was subject to the endorsement of the Legislative Council. In other words, the Government was required to table the appointment to the Legislative Council House Committee for forming a subcommittee to examine this issue before the Government can put forth the proposed resolution to the Council today. The passage of the proposed resolution will render the appointment complete. Back LEGISLATIVE COUNCIL ― 18 June 2020 8683 then, as the House Committee was yet to elect its Chairman, Carrie LAM would certainly add fuel to the fire. As I recall, she named and blamed Mr Dennis KWOK, who presided over the election of the Chairman of House Committee at that time, urging him to make way for the appointment.
I learn that the Government, which is so anxious about the appointment, once thought of withdrawing the three bills that we discussed yesterday and today to give priority to this proposed resolution so that complications could be avoided. This morning, when I entered the Chamber before 9:00 am, I saw many "paparazzi" doing the headcount here. Pro-establishment Members also came early today to ensure a quorum. That was why the meeting could have a quorum in less than 10 minutes after the ringing of the summoning bell.
Why is Carrie LAM so anxious about the appointment? Please note that this appointment will only be formally effective on 11 January next year. 11 January is the birthday of the incumbent Chief Justice Geoffrey MA, who will then retire at the age of 65 for Justice Andrew CHEUNG to take office. In fact, there is still six months to go before the appointment comes into effect. Even if the Legislative Council does not have time to endorse the appointment in this term, it can still give its endorsement in the next term commencing this October. Yet, Carrie LAM specifically mentioned this appointment, saying that she was gravely worried about the Legislative Council failing to deal with the proposed resolution in this term. That is because the Government has its own agenda. Earlier on, we put forward an ambitious plan to achieve the "35+" majority. If the democratic camp does win more than 35 seats in the next term of the Legislative Council, will the appointment of Justice Andrew CHEUNG get through the Council smoothly? From the perspective of the Government, this great uncertainty is definitely undesirable. If we ask the Chief Secretary, he will certainly say that he wants the proposed resolution to get passed as soon as possible to complete the appointment procedure. Justice Andrew CHEUNG can then make an early start with his preparatory work while the Government can avoid the uncertainty that the Legislative Council may still be discussing the proposed resolution next January.
The Legislative Council seldom held strong views on the appointment of either the Chief Justice or other judges by the SAR Government. The most recent example of such exceptions was the appointment of two female judges―Lady HALE and Justice Beverley McLACHLIN―as overseas non-permanent judges two years ago. At that time, pro-establishment Members 8684 LEGISLATIVE COUNCIL ― 18 June 2020 had strong views on their appointment. Later, if time allows, I will give more details on this. According to the Government and Chief Justice Geoffrey MA, judicial appointment is based only on two conditions, i.e. judicial and professional qualities. Factors such as the candidate's personal views (political or not) will not be taken into consideration in the appointment process. President, please stop kidding me. How can this be true? An ordinary judge who dares to openly disagree with the enactment of the Hong Kong national security law will immediately lose his promotion prospect or even get fired, not to mention the Chief Justice of CFA. How can personal views not be listed as a factor for consideration? Or, to express in another way, how can judges have personal views?
In fact, before the recommendation of JORC was announced by Carrie LAM, we had all known that Justice Andrew CHEUNG would take up the post of Chief Justice, given his seniority. Nevertheless, people who care about the equal rights for sexual minorities generally hope that the judicial review cases concerning sexual minorities can be heard by Chief Justice Geoffrey MA before his retirement because the clear stance of Justice Andrew CHEUNG on equal rights issues in the past has caused our concern. Many legal practitioners hold that Justice Andrew CHEUNG was more liberal when he was a Deputy Judge. Yet, he became more conservative after his promotion to the Court of Appeal ("CA"). I am not sure whether his change was prompted by his desire for promotion, given that the Government will prefer to have judges on the conservative side. However, when a judge is promoted to the top job to become the Chief Justice of CFA, some people hope that he can stay true to himself and do more good at his peak in career. This is actually our current expectation for Chief Justice Geoffrey MA.
While the name CFA suggests final adjudication, everyone knows that it has no power of final adjudication, especially when political cases are concerned. The power of interpretation of the Basic Law also does not rest with CFA, but with the Standing Committee of the National People's Congress. Therefore, even if the judges are good, their hands are tied in some particular cases. However, for non-political cases, such as those concerning the rights of LGBT (lesbian, gay, bisexual and transgender), we keenly hope that the court can do good after so much wrong. It seems to us that things are happening this way as CFA has tended to rule in favour of sexual minorities in equal rights cases over the past few years.
LEGISLATIVE COUNCIL ― 18 June 2020 8685
Some legal practitioners consider Justice Andrew CHEUNG more liberal when he was the Deputy Judge of the High Court because some of his rulings back then showed a greater extent of tolerance to refugees and other minorities. Yet, he has become conservative after his promotion to CA judge and CFA Permanent Judge, as evidenced by the fact that he refused to grant leave for appeal to former Members AU Nok-hin and Gary FAN in their disqualification case, disqualified Sixtus LEUNG and YAU Wai-ching from being a Member and ruled for the constitutionality of corporate votes in Functional Constituency elections.
As I said just now, CFA ruled in favour of a number of equal rights cases involving sexual minorities in the past few years. All these cases were at some point handled by Justice CHEUNG in the trial proceedings. In 2010, Justice Andrew CHEUNG, the then Judge of the Court of First Instance ("CFI"), dismissed the judicial review of the right to marry initiated by Miss W after she had changed the sex entry on her identity card. In 2017, Justice CHEUNG dismissed QT's appeal against the refusal of her application for dependant visa as a same-sex spouse. These cases were, however, upheld by CFA in the end. In 2018, he ruled in the appeal case of homosexual Senior Immigration Officer LEUNG Chun-kwong that same-sex partners were not entitled to the civil servant spousal benefits and the tax option for joint assessment to married couples, even though he indicated his awareness of the change in society's understanding of sexual minorities over time. At the end of the day, the applicants in the three aforesaid cases lodged an appeal to CFA and won their lawsuit. From these examples, we can see the differences between the incumbent Chief Justice and Justice Andrew CHEUNG in their rulings of sexual minority cases. When Justice Andrew CHEUNG later becomes the Chief Justice of CFA, will he continue to handle sexual minority cases in the same way as he did in CFI or CA? Or will he follow the established standards of CFA in handling sexual minority rights cases? Let us wait and see.
Coming back to the subject, will the stance or past performance of a judge affect the public's or the Council's views about his appointment? The answer is quite obvious, and we learn from what the pro-establishment camp did in the past. Last time, when the Legislative Council discussed the appointment of two overseas female judges, Lady HALE and Justice Beverley McLACHLIN, as non-permanent judges from other common law jurisdictions of CFA, Members from the pro-establishment camp doubted whether they were fit for the posts, considering their relatively progressive attitude and established stance on equal 8686 LEGISLATIVE COUNCIL ― 18 June 2020 rights cases. The pro-establishment Members even said that this kind of judicial review cases, if proceeded to CFA in future, should not be heard by these two overseas judges to avert suspicion.
Let me quote the words of Ms Starry LEE at that time. She said that given the huge impact of CFA's ruling on society, it was normal for the people to express concern about the ideologies of judges. She also held that judicial appointment should be based on professional knowledge, character and social interest. On the point of "social interest", it is something open to interpretation. As we all know, the Secretary for Justice can always use "social interest" to justify her decisions to prosecute or not. After all, she is the one with the final say. Apart from cases involving LBGT's rights, Ms Starry LEE also touched on future cases concerning or relating to "Hong Kong independence", saying that if they were heard by judges strongly in favour of federalism, the people might worry that the judges' rulings would undermine our traditional values. She therefore suggested withdrawal of those judges.
If the judge subject to such allegation is an ordinary judge or one of the members in a judge panel, we may still consider demanding his withdrawal. Yet, if the Chief Justice of CFA is the one facing such allegation, I cannot see how he can withdraw from hearing. In respect of cases involving LGBT, the Chief Justice cannot withdraw from hearing even if he has an established stance. Therefore, we can just wait and see how Justice Andrew CHEUNG will handle these cases.
As a matter of fact, the power of Hong Kong CFA is on the decline. A few days ago, DENG Zhonghua, Deputy Director of the Hong Kong and Macao Affairs Office of the State Council, said that in extremely special circumstances, the Central Government should maintain jurisdiction over serious national security cases in HKSAR, and that would not affect the independent judicial and final adjudication enjoyed by HKSAR in accordance with the Basic Law. What a dangerous remark! Justice Andrew CHEUNG should take the initiative to respond to this remark as he will soon become the head of Hong Kong's legal sector. Can the Chief Justice defend the final adjudication of CFA? Or will he become docile over time? It will be a big problem for the Chief Justice to become docile and say yes to whatever demands of his boss (The buzzer sounded) … I have no confidence at all.
LEGISLATIVE COUNCIL ― 18 June 2020 8687
PRESIDENT (in Cantonese): Mr CHAN Chi-chuen, please stop speaking.
Does any other Member wish to speak?
MR CHU HOI-DICK (in Cantonese): We are now discussing the proposed resolution under Article 73(7) of the Basic Law and the Hong Kong Court of Final Appeal Ordinance on the appointment of the Chief Justice of the Court of Final Appeal ("CFA"). I will vote against this resolution. I will vote against it not because I do not like Mr Justice Andrew CHEUNG. Neither is it because his past rulings are not to my liking and therefore I wish to veto his appointment. My opposition to this appointment stemmed from a bigger background and political considerations.
(THE PRESIDENT'S DEPUTY, MS STARRY LEE, took the Chair)
To start with, I think we have got to understand or admit that when the Communist Party of China ("CPC") is trampling on the original principle of "one country, two systems" at every step, its manipulation of our judicial system exists not only in the appointment of the Chief Justice of CFA under our discussion today or those of other judges. Its manipulation of our judicial system exists on all fronts. This afternoon, we already kept scrolling through the news on our mobile phones and talked about the closed-door meeting of Michael POMPEO, the Secretary of State of the United States, and YANG Jiechi in Hawaii. I wonder if they failed to reach any agreement and fell out with each other. Therefore today news immediately broke out that the Standing Committee of the National People's Congress ("NPCSC")―this agenda item has not been mentioned previously―has added the National Security Law of Hong Kong to the agenda. It gave me the feeling like the hostage was killed once negotiations had broken down. This is currently the most serious tread from the North on Hong Kong's "one country, two systems" and judicial system which the people of Hong Kong can see most clearly.
When CPC tramples on our judicial system to such an extent that basically, even the Basic Law can be discarded, some people tell us that they have already carried out a procedure over a period of time in the past. A commission comprising legal professionals and prominent figures in society have identified 8688 LEGISLATIVE COUNCIL ― 18 June 2020
Mr Justice Andrew CHEUNG as the candidate in accordance with a procedure widely recognized by various parties. The Chief Executive has also given her consent. Now they are only waiting for the Legislative Council to press the final button. In my opinion, we must not view this matter separately, be mistaken that this procedure is still okay and thus approve it. We need to look at the whole picture. If it turns out that we find a very suitable candidate to be the Chief Justice of CFA but CFA is no longer CFA, what is the point of it all?
As mentioned by Mr CHAN Chi-chuen earlier, now DENG Zhonghua, the Deputy Director of the Hong Kong and Macao Affairs Office of the State Council, has stated explicitly that we may have the power of final adjudication, but there are exceptions, in that CPC itself will try cases which they regard as very serious. I do not know what kind of logic it is. Perhaps even the Chief Secretary has to study for a few years before he can grasp such logic of CPC. Do we still have the power of final adjudication? I guess we really need to find someone of the same level as John LEE or Teresa CHENG to help answer the question. It is crystal clear that over the past 20-odd years, they have, through nominal interpretation which is in fact amendment of the Basic Law, totally undermined the power of final adjudication originally held by CFA. An example is the interpretation of Article 104 of the Basic Law in respect of oath taking. The original provision consists of only 20 to 30 words, but the interpretation comprises some 200 words. Then we were told it was not an amendment. Only some words had been added. Furthermore, after such an addition, it was said that the provision was already interpreted in this way in 1997. When dealing with the appeal of the case of Sixtus LEUNG and YAU Wai-ching, Andrew CHEUNG also concurred with this notion.
Over the past 20-odd years, they have blatantly made use of interpretation to add "illegal structures" to the Basic Law and then forced CFA to accept them, thereby depriving CFA of its actual power of final adjudication. Now they have gone so far as to state explicitly that cases of the Hong Kong National Security Law need not be handled by Hong Kong. Beijing may conduct the trials by itself. After the first case, there will be the second and third ones. Actually, CPC really does not have too many tricks. When warming up at the start, it would be agreeable as though everything was acceptable. It treated Hongkongers in this way. It treated the judges in the same way. It said that we could enjoy judicial independence. Later, when it wanted to take charge of and control the situation, it kicked down the ladder. All the people of Hong Kong have seen this over these 20-odd years. Our judicial system is no exception. LEGISLATIVE COUNCIL ― 18 June 2020 8689
Hence, the first reason for my objection to this appointment is that I cannot turn a blind eye to CPC's brutality in destroying Hong Kong's judicial system on the other side. For this reason, I oppose the entire system. They cannot treat this matter as though it can be considered separately and ask us to blindly press the "Yes" button.
Moreover, I feel anxious for the judicial sector. Just now I heard various Honourable colleagues of the pro-Government camp keep expressing their disapproval of the lack of harshness. They are also unhappy that some judges still had conscience and were willing to judge cases from Hongkongers' perspective with the criteria of common law and the free world. They further proposed to set up a sentencing commission. It implies that another bunch of people appointed by the Chief Executive will point out that the sentence for assault on a police officer should be at least imprisonment of three years, whereas that for obstruction of a police officer in the execution of his duties should be imprisonment of one year as in the case yesterday. Such is the correct approach. We know what they want to do as soon as they wag their tail.
I understand that over the years, the judicial sector has made painstaking efforts to keep the gate under fierce bombardment by cheerleaders in the pro-establishment camp and CPC. At the same time, however, I hope the local judicial sector will not fall for the logic of "refusing a toast only to drink a forfeit" set by Beijing. What kind of logic is this? As a matter of fact, CPC treats all the people of Hong Kong in this way. That is to say, since Hong Kong did not enact legislation for Article 23 of the Basic Law on its own, they invoked Article 18 of the Basic Law. Every time we discussed an obvious breach of the Basic Law by the Government, we would come to realize a lot of things. The co-location arrangement is a case in point. A hole was dug within the territory of Hong Kong. Then it was claimed that the relevant area did not belong to Hong Kong and national laws could be applied there. It obviously contravened the Basic Law, but they still forced it through, and we could not but file a judicial review. At such a moment, Dr Priscilla LEUNG would certainly jump out and say, "If you like to file a judicial review, just suit yourselves." It is because they had a powerful sword. Before we filed a judicial review, they had already made an interpretation of the Basic Law. In the end, NPCSC handled the co-location arrangement by passing a decision. Since the decision had been made, a judicial review was merely our wishful thinking.
8690 LEGISLATIVE COUNCIL ― 18 June 2020
In my view, members of the legal sector in Hong Kong are facing a most precarious situation with their hands tied by such intimidation. They will consider whether judicial independence or the overall image will be undermined if they give a ruling unfavourable to the Government and the Central Authorities may subsequently make an interpretation of the Basic Law. It seems that they often need to weigh which option will not have too big an impact and choose the lesser evil. However, I do not think they can respond to CPC's coercion in this way for long. I often surf the Internet. As we know, in the LIHKG forum, the following lines from the classical prose On the Six States are frequently quoted: "Relinquishing five cities today and ten tomorrow, they could just pursue peace of a single night. Waking up and looking around, they were surprised to find themselves again besieged by Qin soldiers." In my opinion, confronting CPC, the judicial sector is like a man with a pen running into a man with a gun. This is exactly our present plight.
I have only three minutes left. I wish to talk about the people's feeling over the past year. That is, Hong Kong has already lost judicial independence. There is no longer justice in Hong Kong. It is not simply about whether a certain judge or a judge of CFA is a good person who has independent judgment without being affected by others. Rather, it is our observation of how the departments in the SAR Government have fallen to the control of CPC one after another in a "through-train" manner. Seeing the abuse of power by the Police, indiscriminate prosecution by the Department of Justice, as well as rulings of cases made by pro-CPC judges who came from nowhere and have lurked for years, Hongkongers are disheartened. This is precisely the reason why people often say, "Are you kidding? There is no longer any rule of law in Hong Kong, is there? How can we still talk about protecting the rule of law? How can we still talk about the need to do something so that the situation will not be so bad?" Hongkongers, especially young people, no longer subscribe to such a theory. Otherwise, they need not flee, escape to Taiwan or disperse around the world.
Regarding this, I think Legislative Council Members, particularly those in the pro-democracy camp, really have got to understand that we have no other choice. We should not let the SAR Government and CPC present a fake picture of peace and prosperity, showing the whole world that there is still rule of law in Hong Kong through setting up a showcase of rule of law, as in the appointment of the Chief Justice of CFA today. They suggest that not too many people oppose it. It seems feasible and can be carried out as a ritual. In my view, if we accept LEGISLATIVE COUNCIL ― 18 June 2020 8691 this kind of soft lobbying by CPC and the SAR Government instead of strongly opposing and voting against it, the people of Hong Kong will not understand us. Hence, at this final moment―I understand it is by no means easy―I hope that in this matter, all Members will take the overall situation into account and clearly see how the entire rule of law in Hong Kong has currently been ruined by CPC. So, we should definitely vote down this motion so as to live up to Hongkongers' expectations.
In closing, I wish to say that I know this motion on the judicial appointment will be passed with the support of the pro-Government camp. May I ask Andrew CHEUNG to please remember, after his assumption of office as the Chief Justice of CFA, the very first thing he should do is to come forward to make it clear to the people of Hong Kong whether, after the implementation of the Hong Kong National Security Law, Hong Kong's judicial independence can still be regarded as being maintained and whether Hong Kong's power of final adjudication can still be preserved when Beijing holds jurisdiction here. He must make it clear (The buzzer sounded) …
DEPUTY PRESIDENT (in Cantonese): Mr CHU, your speaking time is up.
Does any other Member wish to speak?
(No Member indicated a wish to speak)
DEPUTY PRESIDENT (in Cantonese): If not, I now call upon the Chief Secretary for Administration to reply. Then, the debate will come to a close.
CHIEF SECRETARY FOR ADMINISTRATION (in Cantonese): Deputy President, I would like to thank Members for supporting this proposed appointment and raising many points of view. Regarding Members' concerns, I would like to respond to certain key points.
I will first talk about judicial independence. It is widely known that the rule of law and judicial independence are Hong Kong's core values and a 8692 LEGISLATIVE COUNCIL ― 18 June 2020 cornerstone vital to our success, and they have all along been protected under the Basic Law since the establishment of the SAR. Article 2 of the Basic Law clearly stipulates that the Hong Kong Special Administrative Region shall enjoy executive, legislative and independent judicial power, including that of final adjudication. Article 85 of the Basic Law also clearly stipulates that the courts of the SAR shall exercise judicial power independently, free from any interference.
Sticking to the principle of judicial independence, Judges have all along been adjudicating cases in accordance with the law. As clearly indicated by the Chief Justice of the Court of Final Appeal at the Ceremonial Opening of the current Legal Year, Judges have to ensure that a fair trial takes place and to adhere strictly to the requirements of the law. In the discharge of their responsibilities, Judges look only to the letter of the law and to the spirit of the law. Political, economic or social considerations, as opposed to legal considerations, simply do not enter into the equation. When assuming office, all Judges and Judicial Officers must take the judicial oath, swearing that "I will uphold the Basic Law of the Hong Kong Special Administrative Region of the People's Republic of China, bear allegiance to the Hong Kong Special Administrative Region of the People's Republic of China, serve the Hong Kong Special Administrative Region conscientiously, dutifully, in full accordance with the law, honestly and with integrity, safeguard the law and administer justice without fear or favour, self-interest or deceit". All Judges and Judicial Officers must, regardless of their citizenship, exercise their judicial power independently and strictly in accordance with the law in the administration of justice.
Regarding the political neutrality of Judges, some Members have expressed their views on several cases in recent days. As stressed by the Chief Justice of the Court of Final Appeal time and again, Judges must exercise independent judicial power by adjudicating on cases fairly and impartially, without fear or favour. They must not be biased nor be reasonably perceived to be biased for or against any persons or causes. These principles are contained in the Guide to Judicial Conduct. Pursuant to the Guide to Judicial Conduct, the Judiciary follows established common law principles and practices in dealing with bias in judicial proceedings. The Chief Justice has constantly reminded all Judges and Judicial Officers of the importance of the aforesaid principles.
LEGISLATIVE COUNCIL ― 18 June 2020 8693
The SAR Government stresses that both the rule of law and judicial independence should be safeguarded by all people in Hong Kong. Anyone who takes different views on court rulings should not exert pressure on Judges or Judicial Officers or the courts by any means, or even launch personal attacks, so as to avoid affecting the courts in making judgments impartially according to the legal grounds.
As certain Members have just expressed their concern about the citizenship of Judges, I would also like to give a brief reply at this juncture. Article 92 of the Basic Law clearly stipulates that Judges and other members of the Judiciary of the SAR shall be chosen on the basis of their judicial and professional qualities and may be recruited from other common law jurisdictions. Article 90 of the Basic Law provides that the Chief Justice of the Court of Final Appeal and the Chief Judge of the High Court shall be Chinese citizens who are permanent residents of the Hong Kong Special Administrative Region with no right of abode in any foreign country. Apart from the Chief Justice of the Court of Final Appeal and the Chief Judge of the High Court, the Basic Law imposes no requirement of citizenship on other Judges and Judicial Officers. Article 82 of the Basic Law also clearly stipulates that the Court of Final Appeal may as required invite judges from other common law jurisdictions to sit on the Court of Final Appeal.
Pursuant to the Hong Kong Court of Final Appeal Ordinance, an appeal shall be heard and determined by the Court of Final Appeal that consists of five Judges, including one non-permanent Hong Kong Judge or one non-permanent Judge from another common law jurisdiction. The Court of Final Appeal has invited a non-permanent Judge from another common law jurisdiction to sit on the Court to hear and determine almost all of the substantive appeals, save for a few exceptions, since the reunification on 1 July 1997. The 15 current non-permanent Judges from another common law jurisdiction come from the United Kingdom, Australia and Canada. They all have profound judicial experience, enjoy high professional status and reputation, and will help the Court of Final Appeal to continue to effectively safeguard the rule of law.
Regarding the enactment of a national security law, various pan-democratic Members have raised their views just now, saying that the enactment of a national security law will affect the judicial independence of the SAR. I would like to stress that such a saying is completely wrong. In fact, the Hong Kong SAR is an 8694 LEGISLATIVE COUNCIL ― 18 June 2020 inalienable part of the People's Republic of China. Safeguarding national sovereignty, security and development interests is the constitutional duty of the Hong Kong SAR. The enactment of a national security law at the state level is both necessary and urgent in order to plug the loophole in national security. The enactment by the Standing Committee of the National People's Congress ("NPCSC") of a national security law for the SAR represents the implementation of the principle of "one country, two systems" pursuant to the Constitution and the Basic Law. It is indeed constitutional, lawful and justifiable. It aims to ensure the steady and enduring growth of "one country, two systems", maintain the long-term prosperity and stability of Hong Kong, achieve its long-term and durable security, and better protect the life and property as well as fundamental rights and freedoms of the public. It will by no means jeopardize the judicial independence of the Hong Kong SAR.
As I have said just now, judicial independence is fully respected and protected in the Hong Kong SAR. In the legislative process of the national security law to be enacted by NPCSC, listed in Annex III to the Basic Law and promulgated by the Hong Kong SAR Government, we will fully support NPCSC to complete the legislative work concerned. In the process, we will actively reflect the specific and actual circumstances of the Hong Kong SAR.
In the debate just now, Mr HUI Chi-fung and one or two other Members considered that the membership of the Secretary for Justice in the Judicial Officers Recommendation Commission ("JORC") would undermine the independence of JORC. I would like to stress that the Government does not in any way agree with this point of view. In fact, the Secretary for Justice is only one of the nine members of JORC and does not have veto power in JORC. The politically appointed status of the Secretary for Justice does not prevent her from being able to "freely and without fear or favour, affection or ill-will, give my counsel and advice to the Chief Executive of Hong Kong in connexion with all such matters as may be referred to the Judicial Officers Recommendation Commission under the Judicial Officers Recommendation Commission Ordinance", in accordance with the oath taken by her on appointment as a member of JORC.
As, under the legal system of Hong Kong, the Secretary for Justice is a key player in safeguarding public interest, a guardian of the rule of law, and the principal adviser on legal matters to the Chief Executive, it is appropriate for her LEGISLATIVE COUNCIL ― 18 June 2020 8695 to be involved, as a member of JORC, in making recommendation to the Chief Executive on judicial appointments. In addition, as the head of the Department of Justice, the Secretary for Justice is in a unique position. She has considerable knowledge about the legal system and laws of the SAR, the work of the Judiciary, and the needs and development of the legal profession. She is thus able to contribute to JORC's deliberations in respect of judicial appointments.
As I have also noted in the debate just now, Mr HUI Chi-fung has criticized the Department of Justice for ruining the rule of law. I can by no means accept such a saying, which is simply untrue, irresponsible and even maliciously defamatory.
In the debate, some Members have also accused the Mainland of interfering with the judicial independence of Hong Kong. I must reiterate that the Chief Justice of the Court of Final Appeal already issued a statement on 15 April this year, saying that since taking office in 2010, he has not at any stage encountered or experienced any form of interference by the Mainland authorities with judicial independence in Hong Kong, including the appointment of Judges. Judicial independence is guaranteed under the Basic Law and is a main component of the rule of law in Hong Kong.
Dr Junius HO has expressed his concern about the succession problem with the Judiciary, particularly Judicial Officers. I understand his concern. In order to address the recruitment difficulties at the level of the Court of First Instance of the High Court, the Judiciary has extended the retirement ages of Judges at the Court of First Instance of the High Court and above as well as Magistrates by five years. This will help alleviate the manpower problem. In addition, pending the filling of judicial vacancies, the Judiciary will continue to engage temporary judicial resources as far as practicable to help maintain the level of judicial manpower required by courts at all levels.
In addition, Dr Priscilla LEUNG has urged the Judiciary to expedite the use of information technology or conduct remote hearings. I likewise fully understand and agree with her point. In fact, as one of its long-term strategies, the Judiciary has stepped up its work in this regard in a comprehensive manner, and is actively pursuing the greater use of information technology to support and facilitate the conduct of court business. This involves the necessity to enact 8696 LEGISLATIVE COUNCIL ― 18 June 2020 legislation. We will fail to do certain things if no legislation is enacted. In fact, a bill will hopefully be passed by the legislature soon, so as to comprehensively and effectively actualize electronization and the application of information technology.
Finally, Mr Holden CHOW and Ms Elizabeth QUAT have asked whether a sentencing commission or council can be set up. In fact, I have earlier given a reply to a written question in this connection. The Judiciary has explained that sentencing is a judicial function to be exercised by the courts independently and exclusively. The courts make sentencing decisions day in and day out in a very large number of different cases. The circumstances which arise in the cases are of an infinite variety. Deciding on a just and appropriate sentence in each case is a challenging and difficult task for the courts and is a matter for balanced judicial judgment. Where sentences are regarded as being inconsistent, excessive or inadequate, the parties, which include the Secretary for Justice, can appeal or apply for a review of sentence.
Deputy President, an independent Judiciary has been and will remain a cornerstone of Hong Kong's stability and prosperity. The people of Hong Kong have high expectations of the Judiciary in upholding the rule of law, maintaining judicial independence and safeguarding the rights and freedoms of the individual. The SAR Government supports the appointment proposed by JORC. Given Mr Justice Andrew CHEUNG's profound judicial and administrative experience, we have every confidence that Mr Justice CHEUNG and the entire Judiciary will safeguard the rule of law and judicial independence.
Deputy President, I urge Members to endorse this appointment. Thank you.
DEPUTY PRESIDENT (in Cantonese): I now put the question to you and that is: That the motion moved by the Chief Secretary for Administration be passed. Will those in favour please raise their hands?
(Members raised their hands)
LEGISLATIVE COUNCIL ― 18 June 2020 8697
DEPUTY PRESIDENT (in Cantonese): Those against please raise their hands.
(Members raised their hands)
Ms Tanya CHAN rose to claim a division.
DEPUTY PRESIDENT (in Cantonese): Ms Tanya CHAN has claimed a division. The division bell will ring for five minutes.
DEPUTY PRESIDENT (in Cantonese): Will Members please proceed to vote.
DEPUTY PRESIDENT (in Cantonese): Will Members please check their votes. If there are no queries, voting shall now stop and the result will be displayed.
Mr Tommy CHEUNG, Prof Joseph LEE, Mr Jeffrey LAM, Mr WONG Ting-kwong, Mr CHAN Kin-por, Dr Priscilla LEUNG, Mr WONG Kwok-kin, Mrs Regina IP, Mr Paul TSE, Mr Michael TIEN, Mr Steven HO, Mr Frankie YICK, Mr YIU Si-wing, Mr MA Fung-kwok, Mr Charles Peter MOK, Mr CHAN Han-pan, Mr LEUNG Che-cheung, Mr Kenneth LEUNG, Mr KWOK Wai-keung, Mr Dennis KWOK, Mr IP Kin-yuen, Ms Elizabeth QUAT, Mr Martin LIAO, Mr POON Siu-ping, Dr CHIANG Lai-wan, Ir Dr LO Wai-kwok, Mr CHUNG Kwok-pan, Mr Jimmy NG, Mr Holden CHOW, Mr SHIU Ka-fai, Mr Wilson OR, Ms YUNG Hoi-yan, Mr CHAN Chun-ying, Mr CHEUNG Kwok-kwan, Mr LUK Chung-hung, Mr LAU Kwok-fan, Mr Vincent CHENG, Mr Tony TSE and Ms CHAN Hoi-yan voted for the motion.
Mr LEUNG Yiu-chung, Ms Claudia MO, Mr CHAN Chi-chuen, Mr CHU Hoi-dick and Dr CHENG Chung-tai voted against the motion.
8698 LEGISLATIVE COUNCIL ― 18 June 2020
Mr WU Chi-wai, Dr KWOK Ka-ki, Dr Fernando CHEUNG, Dr Helena WONG, Mr Alvin YEUNG, Mr LAM Cheuk-ting, Mr SHIU Ka-chun, Ms Tanya CHAN, Mr HUI Chi-fung, Mr KWONG Chun-yu and Mr Jeremy TAM abstained.
THE DEPUTY PRESIDENT, Ms Starry LEE, did not cast any vote.
THE DEPUTY PRESIDENT announced that there were 56 Members present, 39 were in favour of the motion, 5 against it and 11 abstained. Since the question was agreed by a majority of the Members present, she therefore declared that the motion was passed.
DEPUTY PRESIDENT (in Cantonese): The Chief Secretary for Administration will move three proposed resolutions under the Legal Aid Ordinance and the Criminal Procedure Ordinance:
The first motion concerns the increase of the financial eligibility limits of legal aid applicants;
The second motion concerns the review of the Director of Legal Aid's first charge;
The third motion concerns the review of criminal legal aid fees.
DEPUTY PRESIDENT (in Cantonese): Members have been informed that as all the three motions are related to the legal aid policy, this Council will proceed to a joint debate on the motions.
Upon the conclusion of the debate, this Council will put to vote the three motions one by one.
The joint debate now begins. Members who wish to speak will please press the "Request to speak" button.
I now call upon the Chief Secretary to speak on the three motions and move his first motion.
LEGISLATIVE COUNCIL ― 18 June 2020 8699
Stand-over items: Proposed resolution under section 7(a) of the Legal Aid Ordinance, Proposed resolution under section 22A of the Legal Aid Ordinance and Proposed resolution under the Criminal Procedure Ordinance (standing over from the meeting of 10 June 2020)
PROPOSED RESOLUTION UNDER SECTION 7(a) OF THE LEGAL AID ORDINANCE
CHIEF SECRETARY FOR ADMINISTRATION (in Cantonese): Deputy President, I move that my first motion, as printed on the Agenda, be passed to adjust the financial eligibility limits ("FELs") of legal aid applicants. Later I will move that the other two legal aid-related motions standing in my name as printed on the Agenda be passed one after another. These two motions seek to adjust the Director of Legal Aid's ("DLA") first charge and make the Legal Aid Criminal Cases (Amendment) Rules 2020 ("Amendment Rules") to adjust the criminal legal aid fees.
I will start by introducing the first motion.
Pursuant to section 7(a) of the Legal Aid Ordinance ("LAO"), the Legislative Council may by resolution amend the FELs specified in sections 5 and 5A of LAO.
Legal aid services form an integral part of the legal system in Hong Kong. The policy objective of legal aid is to ensure that all those who comply with the regulations of LAO and have reasonable grounds for pursuing or defending a legal action in the courts of Hong Kong will not be denied access to justice due to a lack of means. To qualify for legal aid, a person must satisfy both the means test and merits test as provided by LAO. FELs have been set respectively under the means tests of the Ordinary Legal Aid Scheme ("OLAS") and Supplementary Legal Aid Scheme ("SLAS").
As announced in the Chief Executive's 2019 Policy Address Supplement, the Government proposes to increase the FELs of legal aid applicants under OLAS and SLAS by about 30%.
First, we propose to increase the FEL of OLAS by about 30% from the present $307,130 to $420,400. We have mainly taken into account the higher increase in legal costs than the cumulative increase in general price movement since the last one-off adjustment in 2011. We have also made reference to the 8700 LEGISLATIVE COUNCIL ― 18 June 2020 average cumulative change of a series of indices relevant to legal professionals' expenses, such as civil litigation costs of legally aided cases, nominal wage indices and rental indices for private offices for comparison with that of Consumer Price Index (C) ("CPI(C)") for the purpose.
Regarding SLAS, we propose to increase FEL by about 30% from the present $1,535,650 to $2,102,000. Apart from considering the legal costs as compared with price changes, we also hope that the increase can provide a modest buffer for sandwich class applicants with financial resources marginally higher than the current FEL, particularly applicants of higher age who are living on savings (not regular income) and may otherwise need to exhaust all their assets to cope with tremendous legal costs for the more complicated cases.
Taking this opportunity of amending the subsidiary legislation, we will also process the outcome of the annual review of FELs under the regular mechanism, i.e. increasing the FELs of OLAS and SLAS by 5.1% in accordance with the change in CPI(C) for the period between July 2017 and July 2019.
Making reference to the application statistics for 2019 from LAD, the average and top 10% of the assessed financial resources for those approved legal aided cases under both OLAS and SLAS are way below the respective revised FELs. This proposed one-off adjustment of FELs would enable more people eligible for legal aid under LAO not to be denied access to justice due to a lack of means over a sustained period of time in the future.
Deputy President, the operation of the legal aid system in Hong Kong has been smooth. In the past three years, about 70% (around 2 600) of the legal aid applications for criminal cases and about 40% (around 5 800) of those for civil cases in each year were approved by LAD. I wish to stress here that around 90% of the rejected applications had failed the merits test but not the means test. The merits test is an established statutory mechanism to guard against possible abuse of the legal aid system following the relaxation of the means test and ensure the prudent use of public coffers.
We consulted the Legislative Council Panel on Administration of Justice and Legal Services about the above proposed increase on 27 April and members raised no objection to the above proposal.
Subject to the Legislative Council's approval of the resolution, the adjusted FELs will come into effect upon gazettal.
LEGISLATIVE COUNCIL ― 18 June 2020 8701
Let me now explain the second motion. Pursuant to section 22A of LAO, the Legislative Council may, by resolution, amend the rate of maintenance payments that is exempted from DLA's first charge specified in section 18A(5), as well as the amount by which the money retained by DLA may be reduced in cases of serious hardship specified in section 19B(1)(a).
A legally aided person who is successful in recovering or preserving any money or property in the legally aided proceedings will be required to repay DLA the sums as required under section 18A(1) of LAO out of the money or property recovered or preserved in such proceedings. The sum that the legally aided person has to pay DLA out of the money or property recovered or preserved is called DLA's first charge. According to section 18A(5) of LAO, DLA's first charge does not apply to maintenance payment for spouse or former spouse. Separately, DLA may exercise discretion under section 19B(1)(a) of LAO to reduce the amount to be retained by DLA in cases of serious hardship to any person, including statutory charges.
The Government has completed a review on the above two exempted amounts in 2018 and considers it necessary to adjust the two amounts to reflect the inflation since 1996 (i.e. the last adjustment) and the increase of 48% in the FEL of OLAS in accordance with the review outcome in May 2011. We propose to adjust the amount specified in section 18A(5) upwards from $4,800 to $9,100 and the amount specified in section 19B(1)(a) upwards from $57,400 to $108,850, representing a proposed increase of 89.6%.
In addition, we also propose to introduce a mechanism for reviewing the above two amounts on an annual basis to take into account the general price movement as measured by CPI(C), in conjunction with the annual review of FELs for legal aid in the future. The introduction of the annual review mechanism does not require amendments to LAO.
The Legislative Council Panel on Administration of Justice and Legal Services was consulted about the outcome of the review and the way forward in April 2018 and members raised no objection to the above proposal at the meeting.
Subject to the Legislative Council's approval of the resolution, we will implement the proposal upon gazettal of the resolution.
As to the third motion, that is, the last motion, the Criminal Procedure Rules Committee makes the Legal Aid in Criminal Cases Rules under section 9A(1) of the Criminal Procedure Ordinance ("CPO"). The Rules 8702 LEGISLATIVE COUNCIL ― 18 June 2020 stipulate, among others, that LAD will pay fees to counsel and solicitors in private practice engaged to undertake litigation work on behalf of it for criminal cases in different levels of courts (i.e. criminal legal aid fees). Under section 9A(1) of CPO, the Amendment Rules are subject to the approval of the Legislative Council. To ensure that neither LAD nor Department of Justice ("DoJ") would have unfair advantage in competing for the same pool of lawyers, DoJ draws reference to the same scale of fees to engage counsel and solicitors in private practice to appear for the prosecution in criminal cases (i.e. prosecution fees). Duty lawyer fees will be paid to lawyers who provide legal representation to defendants in Magistrates' Courts and Juvenile Courts through the Duty Lawyer Service.
Since the Government reported to the then Legislative Council Finance Committee in October 1992, the three fees mentioned above (i.e. criminal legal aid fees, prosecution fees and duty lawyer fees) are subject to review on a biennial basis to take into account changes in CPI(C) during the reference period. In conducting the biennial reviews, the Government takes into account mainly general price movement during the reference period and whether there has been difficulty in engaging the services of counsel and solicitors.
Deputy President, regarding the biennial review completed in 2018, as the CPI(C) for the reference period (i.e. July 2016 to July 2018) increased by 4%, we propose to adjust the three fees upwards by 4% accordingly. The general price movement after July 2018 will be reflected in the next biennial review.
The Legislative Council Panel on Administration of Justice and Legal Services was consulted about the outcome of this review in January 2019 and raised no objection to the proposed increase.
While LAD implements the increased criminal legal aid fees, DoJ will also adjust the scale of prosecution fees administratively. The Administration Wing will also adjust the duty lawyer fees through administrative means accordingly.
Subject to the Legislative Council's approval of the Resolution, we will implement the Amendment Rules on 20 July this year.
Deputy President, I appeal for Members' support for the above three motions. Thank you.
LEGISLATIVE COUNCIL ― 18 June 2020 8703
The Chief Secretary for Administration moved the following motion:
"RESOLVED that the Legal Aid Ordinance (Cap. 91) be amended as set out in the Schedule.
Schedule
Amendments to Legal Aid Ordinance
1. Section 5 amended (persons eligible for legal aid) Section 5(1)― Repeal "$307,130" Substitute "$420,400".
2. Section 5A amended (supplementary legal aid) (1) Section 5A(b)― Repeal "$307,130" Substitute "$420,400". (2) Section 5A(b)― Repeal "$1,535,650" Substitute "$2,102,000"."
DEPUTY PRESIDENT (in Cantonese): I now propose the question to you and that is: That the first motion moved by the Chief Secretary for Administration be passed.
Does any Member wish to speak?
(No Member indicated a wish to speak)
DEPUTY PRESIDENT (in Cantonese): This Council now first votes on the first motion moved by the Chief Secretary for Administration.
8704 LEGISLATIVE COUNCIL ― 18 June 2020
I now put the question to you and that is: That the first motion moved by the Chief Secretary for Administration be passed. Will those in favour please raise their hands?
(Members raised their hands)
DEPUTY PRESIDENT (in Cantonese): Those against please raise their hands.
(No hands raised)
DEPUTY PRESIDENT (in Cantonese): I think the question is agreed by a majority of the Members present. I declare the motion passed.
DEPUTY PRESIDENT (in Cantonese): Chief Secretary, please move your second motion.
PROPOSED RESOLUTION UNDER SECTION 22A OF THE LEGAL AID ORDINANCE
CHIEF SECRETARY FOR ADMINISTRATION (in Cantonese): Deputy President, I move that my second motion, as printed on the Agenda, be passed.
The Chief Secretary for Administration moved the following motion:
"RESOLVED that the Legal Aid Ordinance (Cap. 91) be amended as set out in the Schedule."
Schedule
Amendments to Legal Aid Ordinance
1. Section 18A amended (charge on property recovered) (1) Section 18A(5)(b)― Repeal "$4,800" Substitute "$9,100". LEGISLATIVE COUNCIL ― 18 June 2020 8705
(2) Section 18A(5)(c)― Repeal "$4,800" (wherever appearing) Substitute "$9,100".
2. Section 19B amended (disposal by Director of moneys paid to him) Section 19B(l)(a), proviso― Repeal "$57,400" Substitute "$108,850"."
DEPUTY PRESIDENT (in Cantonese): I propose the question to you and that is: That the second motion moved by the Chief Secretary for Administration be passed.
DEPUTY PRESIDENT (in Cantonese): I now put the question to you as stated. Will those in favour please raise their hands?
(Members raised their hands)
DEPUTY PRESIDENT (in Cantonese): Those against please raise their hands.
(No hands raised)
DEPUTY PRESIDENT (in Cantonese): I think the question is agreed by a majority of the Members present. I declare the motion passed.
DEPUTY PRESIDENT (in Cantonese): Chief Secretary, you may move your third motion.
8706 LEGISLATIVE COUNCIL ― 18 June 2020
PROPOSED RESOLUTION UNDER THE CRIMINAL PROCEDURE ORDINANCE
CHIEF SECRETARY FOR ADMINISTRATION (in Cantonese): Deputy President, I move that my third motion, as printed on the Agenda, be passed.
The Chief Secretary for Administration moved the following motion:
"RESOLVED that the Legal Aid in Criminal Cases (Amendment) Rules 2020, made by the Criminal Procedure Rules Committee on 21 February 2020, be approved."
DEPUTY PRESIDENT (in Cantonese): I propose the question to you and that is: That the third motion moved by the Chief Secretary for Administration be passed.
DEPUTY PRESIDENT (in Cantonese): I now put the question to you as stated. Will those in favour please raise their hands?
(Members raised their hands)
DEPUTY PRESIDENT (in Cantonese): Those against please raise their hands.
(No Members on the floor raised their hands, but Mr Dennis KWOK entered the Chamber and raised his hand at this moment)
DEPUTY PRESIDENT (in Cantonese): Mr Dennis KWOK, your voting intention, which is to vote against the motion, has been put on record.
MR DENNIS KWOK (in Cantonese): No, I am in favour of the motion.
DEPUTY PRESIDENT (in Cantonese): You are not against the motion, but rather in favour of it.
DEPUTY PRESIDENT (in Cantonese): I think the question is agreed by a majority of the Members present. I declare the motion passed.
LEGISLATIVE COUNCIL ― 18 June 2020 8707
DEPUTY PRESIDENT (in Cantonese): Proposed resolution under the Fatal Accidents Ordinance.
Members who wish to speak will please press the "Request to speak" button.
(Mr CHU Hoi-dick indicated his wish to raise a point of order)
DEPUTY PRESIDENT (in Cantonese): Mr CHU Hoi-dick, what is your point of order?
MR CHU HOI-DICK (in Cantonese): Deputy President, I request a headcount.
DEPUTY PRESIDENT (in Cantonese): Mr CHU Hoi-dick has requested a headcount.
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, but some Members did not return to their seats)
DEPUTY PRESIDENT (in Cantonese): A quorum is now present in the Chamber. Will Members please return to their seats. The meeting now continues.
I call upon the Secretary for Justice to speak and move the motion.
Stand-over item: Proposed resolution under the Fatal Accidents Ordinance (standing over from the meeting of 3 June 2020)
PROPOSED RESOLUTION UNDER THE FATAL ACCIDENTS ORDINANCE
SECRETARY FOR JUSTICE (in Cantonese): Deputy President, I move that the motion, as printed on the Agenda, be passed.
8708 LEGISLATIVE COUNCIL ― 18 June 2020
The purpose of this resolution is to increase the statutory sum of damages for bereavement ("bereavement sum") under section 4(3) of the Fatal Accidents Ordinance (Cap. 22) ("the Ordinance") from $220,000 to $231,000.
The Ordinance was enacted in 1986. It allows an action for damages to be brought against a person for the benefit of the dependants of the deceased in respect of that person's wrongful act, neglect or default which has caused the death of the deceased. An action under the Ordinance may include a claim for damages for bereavement in the sum as prescribed in section 4(3). Section 4(5) of the Ordinance provides that the Legislative Council may by resolution vary the sum. Since the enactment of the Ordinance, the bereavement sum was adjusted upward three times in 1991, 1997 and 2018 respectively. The sum was adjusted to the current level of $220,000 following the last review exercise in 2018.
In 1997, the then Attorney General undertook to review the statutory bereavement sum biennially to reflect inflation. In the last review exercise in 2018, the Government renewed its commitment to review the bereavement sum every two years to take into account inflation by making reference to the Consumer Price Index (A) ("CPI(A)"). The present cycle of biennial review takes into account the cumulative inflation from March 2018 to March 2020 ("reference period") by making reference to CPI(A).
The cumulative rate of change of CPI(A) during the reference period was 5%. The Government proposes today's resolution to make a commensurate increase in the bereavement sum from $220,000 to $231,000 to reflect the cumulative inflation as measured by CPI(A) over the reference period. Upon passage, the resolution would take effect from the date of its publication in the Gazette.
The Legislative Council Panel on Administration of Justice and Legal Services, The Law Society of Hong Kong, the Hong Kong Bar Association, and the Hong Kong Federation of Insurers have been informed of the outcome of the present biennial review and the Government's proposal to move today's resolution.
On a separate note, in the run-up to and during the last review exercise in 2018, there were suggestions that in addition to the biennial review of the bereavement sum by making reference to CPI(A), there should also be a comprehensive review of the manner in which the bereavement sum should be set LEGISLATIVE COUNCIL ― 18 June 2020 8709 to take into account factors other than inflation. The Government is keeping an open mind in carefully studying the views from stakeholders and will continue to engage them with regard to the way forward. This is, however, a separate and continuing exercise which should not affect the current biennial review exercise to reflect cumulative inflation by making reference to CPI(A).
With these remarks, I urge Members to support the resolution. Thank you, Deputy President.
The Secretary for Justice moved the following motion:
"RESOLVED that the Fatal Accidents Ordinance (Cap. 22) be amended as set out in the Schedule.
Schedule
Amendment to Fatal Accidents Ordinance
1. Section 4 amended (bereavement) Section 4(3)― Repeal "$220,000" Substitute "$231,000"."
DEPUTY PRESIDENT (in Cantonese): I now propose the question to you and that is: That the motion moved by the Secretary for Justice be passed.
Does any Member wish to speak?
MR CHAN CHI-CHUEN (in Cantonese): This time around, the Government amends the Fatal Accidents Ordinance ("the Ordinance") to increase the sum of damages for bereavement ("bereavement sum") from $220,000 to $231,000. We have criticized the Government earlier for being slow on the uptake. Now that the Government has kept its promise and taken the initiative to propose this resolution, we will certainly lend it our support.
8710 LEGISLATIVE COUNCIL ― 18 June 2020
I recall that we criticized the Government in 2018 for not having updated the amount of compensation under the Ordinance in the past 21 years. Just now the Secretary for Justice said that before an amendment was made in 2018, the Ordinance was last amended in 1997. In fact, we cannot imagine why no one has kept an eye on the Ordinance over such a long time. Had it not been a bus accident on the Tai Po Highway which caused the tragic death of 19 people, perhaps no one might have discovered that the bereavement sum under the Ordinance still remains at the price level of 1997.
We must mention Mr HUI Chi-fung whenever we are discussing a proposed resolution to amend the Ordinance, because he exerted pressure on the Government by indicating his intention to propose a Member's motion. Only by then the Government was forced to amend the Ordinance on its own accord to update the amount of compensation after 21 years. The Government would make one step forward only when being given a kick. Nevertheless, subsequent to that, the Government would now propose a resolution proactively every two years to adjust the amount of compensation, which is increased to $231,000 in line with inflation in this exercise. This is the Government's commitment, which is also its responsibility.
The Secretary for Justice remarked earlier that the Government would also conduct an overall review of the bereavement sum in addition to the adjustment made in light of inflation every two years. I wish to point out that whilst the amount of compensation is of course important, whether the relatives of the deceased can really receive the compensation is also very important. It is my hope that the Secretary for Justice will, after listening to my speech today, indeed conduct a review or make more efforts after going back to the office.
How does the Government define a "relative"? Although this amendment exercise only involves the amount of compensation, the Government does have a responsibility to deal with the definition of a "relative". Regarding the interpretation of a "spouse"―I believe the Secretary for Justice can also tell what I am going to ask her―does it include same-sex partners who have registered their relationship in overseas places? As a matter of fact, an existing provision also contains a requirement on matrimonial relationship registered in overseas places, covering even polygamy. According to that provision, the lawful principal wife in polygamy would be eligible for compensation. If there is no lawful principal wife, the other lawful wives would also be eligible for compensation. No matter how many wives a husband has, as long as there is a LEGISLATIVE COUNCIL ― 18 June 2020 8711 wife, she would be eligible for compensation. It means that Hong Kong will make compensation provided that couples have registered their marriage in overseas places. However, it does not imply that Hong Kong recognizes polygamy, but under the Ordinance, a woman would be awarded the bereavement sum since she is the wife of the deceased.
Can couples of same-sex marriage get the compensation? I believe there is no such arrangement under the existing legislation. Certainly, it is highly probable that the Government will lose the case if someone files a judicial review. It is because the Government has lost many judicial review cases in the past, including the cases relating to joint tax assessment of civil servants and medical benefits for civil servants, the QT case involving dependant visa, as well as the recent case concerning public rental housing. Therefore, I hope that after a fatal accident has taken place, the interpretation of the spouse of the deceased in such a tragic situation should not be based on gender or sexual orientation.
In fact, fatal accidents are tragedies that tear people apart. If people cannot receive their due compensation in the face of bereavement, it will give them even more pain. Therefore, insofar as compensation is concerned, I hold that a loose definition instead of a strict one should be adopted for a "relative" or "spouse". That is to say, flexibility should be allowed.
According to the existing Ordinance, a same-sex spouse would also be eligible for compensation as a dependant. Yet, compensation would be made according to the following order at present: The spouse (i.e. the wife or husband) would receive the compensation first, then the children, the separated spouse, a concubine, whereas a dependant ranks the fifth, followed by a cohabitant who had been living together with the deceased for two years. Under this arrangement, a same-sex spouse still has a very low priority in the order of compensation.
I have raised a similar question during the deliberation of the Private Columbaria Bill: What is the priority of reclaiming the ashes in the event that a columbarium is closed down? The authorities replied that reference had been made to the arrangements under the Ordinance. In fact, partners in same-sex marriage may not necessarily be cohabiting, and actually, married couples in Hong Kong may not necessarily be living together nowadays. As pointed out in the judgment of the QT case handed down earlier on, if there is a need to prove whether a couple has been living together for two years, it is actually not as convincing, fast and convenient as obtaining a legal registration certificate in a 8712 LEGISLATIVE COUNCIL ― 18 June 2020 foreign country. I think the Government really lacks flexibility if it still sticks to the principle of administrative convenience when dealing with compensation.
Of course, in reality, would anyone initiate a lawsuit or judicial review for some $200,000? I reckon the chance is very slim. Very few people would do so actually because this would require them to file a lawsuit or judicial review against the Government after being racked with the pain of the bereavement, whereas the amount of compensation is not very high as well.
I believe that the legislative intent of the Ordinance is to provide some financial assistance to relatives of the deceased after a fatal accident has taken place. Therefore, the amendment to the Schedule will certainly be passed today. I also hope that the Secretary for Justice will conduct a review of the Ordinance in its entirety should there be room in the future, instead of dealing with it only when a lawsuit or dispute arises.
I so submit.
DEPUTY PRESIDENT (in Cantonese): Does any other Member wish to speak?
(No Member indicated a wish to speak)
DEPUTY PRESIDENT (in Cantonese): If not, I now call upon the Secretary for Justice to reply. Then, the debate will come to a close.
SECRETARY FOR JUSTICE (in Cantonese): Deputy President, I thank Mr CHAN for expressing his views and concerns. We will certainly make ongoing efforts in respect of the review of the entire Fatal Accidents Ordinance. As for the definition of same-sex partners or relatives which has aroused his concern, we will also study whether any amendment can be introduced to the existing legislation. Or let me put it this way, as Mr CHAN has said, same sex-partners are not entitled to damages under the existing legislation. Given the judgment on the aforementioned case, dependants' rights in this respect currently are also subject to certain restrictions. Therefore, there is little room for legislative amendment for the time being. That said, we are aware that same-sex partnerships and related issues are matters of public concern. We will LEGISLATIVE COUNCIL ― 18 June 2020 8713 pay close attention to relevant views and make corresponding amendments in due course.
This resolution fulfils the Government's commitment to review biennially the bereavement sum prescribed in section 4(3) of the Fatal Accidents Ordinance by making reference to CPI(A). Based on the outcome of the present review, we move that such a sum be increased from $220,000 to $231,000.
In the future, we will carry out regular reviews on a biennial basis and move resolutions for corresponding adjustments where necessary.
I so submit. Thank you, Deputy President.
DEPUTY PRESIDENT (in Cantonese): I now put the question to you and that is: That the motion moved by the Secretary for Justice be passed. Will those in favour please raise their hands?
(Members raised their hands)
DEPUTY PRESIDENT (in Cantonese): Those against please raise their hands.
(No hands raised)
DEPUTY PRESIDENT (in Cantonese): I think the question is agreed by a majority of the Members present. I declare the motion passed.
MEMBER'S BILL
Second Reading of Member's Bill
Resumption of Second Reading Debate on Member's Bill
DEPUTY PRESIDENT (in Cantonese): Member's Bill. This Council resumes the Second Reading debate on the St. John's College (Amendment) Bill 2019.
8714 LEGISLATIVE COUNCIL ― 18 June 2020
Stand-over item: St. John's College (Amendment) Bill 2019 (standing over from the meeting of 27 May 2020)
ST. JOHN'S COLLEGE (AMENDMENT) BILL 2019
Resumption of debate on Second Reading which was moved on 4 December 2019
DEPUTY PRESIDENT (in Cantonese): Does any Member wish to speak?
(No Member indicated a wish to speak)
DEPUTY PRESIDENT (in Cantonese): If not, I now put the question to you and that is: That the St. John's College (Amendment) Bill 2019 be read the Second time.
Mr Jimmy NG, do you wish to speak before I put the question?
MR JIMMY NG (in Cantonese): Perhaps I should briefly explain the St. John's College (Amendment) Bill 2019 ("the Bill"). Deputy President, the Bill seeks to, by way of amending the St. John's College Ordinance (Cap. 1089) ("the Ordinance"), give protection to members of the body corporate incorporated under the Ordinance and some other persons mentioned in the Ordinance and to give the body corporate certain express powers.
The Bill has been endorsed by the Administration, St. John's College and its stakeholders, as well as the University of Hong Kong and relevant statutory authorities. Members of the Legislative Council Panel on Education were consulted on the Bill on 3 May 2019. And the Bill was published in the Gazette on 6 and 14 June 2019 respectively and read the First time at the Legislative Council meeting on 4 December 2019. Today, the Bill has entered its final stage of consideration. With firm support from all Honourable colleagues, St. John's College and I wish that the consideration of the Bill could proceed smoothly so that the legislative process can be completed. Thank you.
LEGISLATIVE COUNCIL ― 18 June 2020 8715
DEPUTY PRESIDENT (in Cantonese): I now put the question to you and that is: That the St. John's College (Amendment) Bill 2019 be read the Second time. Will those in favour please raise their hands?
(Members raised their hands)
DEPUTY PRESIDENT (in Cantonese): Those against please raise their hands.
(No hands raised)
DEPUTY PRESIDENT (in Cantonese): I think the question is agreed by a majority of each of the two groups of Members present, that is, those returned by functional constituencies and those returned by geographical constituencies through direct elections. I declare the motion passed.
CLERK (in Cantonese): St. John's College (Amendment) Bill 2019.
Council became committee of the whole Council.
Consideration by Committee of the Whole Council
DEPUTY CHAIRMAN (in Cantonese): This Council now becomes committee of the whole Council to consider the St. John's College (Amendment) Bill 2019.
ST. JOHN'S COLLEGE (AMENDMENT) BILL 2019
DEPUTY CHAIRMAN (in Cantonese): I now propose the question to you and that is: That the following clauses stand part of the Bill.
CLERK (in Cantonese): Clauses 1 to 5.
8716 LEGISLATIVE COUNCIL ― 18 June 2020
DEPUTY CHAIRMAN (in Cantonese): Does any Member wish to speak?
(No Member indicated a wish to speak)
DEPUTY CHAIRMAN (in Cantonese): If not, I now put the question to you and that is: That the clauses read out by the Clerk stand part of the Bill. Will those in favour please raise their hands?
(Members raised their hands)
DEPUTY CHAIRMAN (in Cantonese): Those against please raise their hands.
(No hands raised)
Ms YUNG Hoi-yan rose to claim a division.
DEPUTY CHAIRMAN (in Cantonese): Ms YUNG Hoi-yan has claimed a division. The division bell will ring for five minutes.
DEPUTY CHAIRMAN (in Cantonese): Will Members please proceed to vote.
DEPUTY CHAIRMAN (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 LEUNG Yiu-chung, Mr Abraham SHEK, Mr Tommy CHEUNG, Prof Joseph LEE, Mr Jeffrey LAM, Mr WONG Ting-kwong, Mr CHAN Kin-por, Mr Steven HO, Mr Frankie YICK, Mr YIU Si-wing, Mr MA Fung-kwok, Mr Charles Peter MOK, Mr Kenneth LEUNG, Mr Christopher CHEUNG, Mr IP Kin-yuen, Mr POON Siu-ping, Ir Dr LO Wai-kwok, Mr Jimmy NG, Mr Holden CHOW, LEGISLATIVE COUNCIL ― 18 June 2020 8717
Mr SHIU Ka-fai, Mr SHIU Ka-chun, Mr CHAN Chun-ying, Mr LUK Chung-hung, Mr KWONG Chun-yu and Mr Tony TSE voted for the motion.
THE DEPUTY CHAIRMAN, Ms Starry LEE, did not cast any vote.
Geographical Constituencies:
Dr Priscilla LEUNG, Mrs Regina IP, Mr Paul TSE, Mr WU Chi-wai, Mr CHAN Chi-chuen, Mr CHAN Han-pan, Mr LEUNG Che-cheung, Mr KWOK Wai-keung, Dr Fernando CHEUNG, Dr Helena WONG, Ms Elizabeth QUAT, Mr Alvin YEUNG, Mr Andrew WAN, Mr LAM Cheuk-ting, Ms YUNG Hoi-yan, Ms Tanya CHAN, Dr CHENG Chung-tai, Mr Jeremy TAM, Mr Vincent CHENG and Ms CHAN Hoi-yan voted for the motion.
THE DEPUTY CHAIRMAN announced that among the Members returned by functional constituencies, 26 were present, 25 were in favour of the motion; while among the Members returned by geographical constituencies through direct elections, 20 were present, 20 were in favour of the motion. Since the question was agreed by a majority of each of the two groups of Members present, she therefore declared that the motion was passed.
DEPUTY PRESIDENT (in Cantonese): All the proceedings on the St. John's College (Amendment) Bill 2019 have been concluded in committee of the whole Council. Council now resumes.
Council then resumed.
MR JIMMY NG (in Cantonese): Deputy President, I now report to the Council: That the
St. John's College (Amendment) Bill 2019 has been passed by committee of the whole Council without amendment. I move the motion that "This Council adopts the report".
8718 LEGISLATIVE COUNCIL ― 18 June 2020
DEPUTY PRESIDENT (in Cantonese): I now propose the question to you and that is: That the motion moved by Mr Jimmy NG be passed.
In accordance with the Rules of Procedure, this motion shall be voted on without amendment or debate.
DEPUTY PRESIDENT (in Cantonese): I now put the question to you as stated. Will those in favour please raise their hands?
(Members raised their hands)
DEPUTY PRESIDENT (in Cantonese): Those against please raise their hands.
(Members raised their hands)
Ms Tanya CHAN rose to claim a division.
DEPUTY PRESIDENT (in Cantonese): Ms Tanya CHAN has claimed a division. The division bell will ring for five minutes.
(While the division bell was ringing, THE PRESIDENT resumed the Chair)
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 LEUNG Yiu-chung, Mr Abraham SHEK, Mr Tommy CHEUNG, Prof Joseph LEE, Mr Jeffrey LAM, Mr WONG Ting-kwong, Ms Starry LEE, Mr CHAN Kin-por, Mr Steven HO, Mr Frankie YICK, Mr YIU Si-wing, Mr MA Fung-kwok, Mr Charles Peter MOK, Mr Kenneth LEUNG, Mr Christopher CHEUNG, Mr IP Kin-yuen, Mr Martin LIAO, Mr POON Siu-ping, Ir Dr LO LEGISLATIVE COUNCIL ― 18 June 2020 8719
Wai-kwok, Mr Jimmy NG, Mr Holden CHOW, Mr SHIU Ka-fai, Mr SHIU Ka-chun, Mr CHAN Chun-ying, Mr LUK Chung-hung, Mr KWONG Chun-yu and Mr Tony TSE voted for the motion.
THE PRESIDENT, Mr Andrew LEUNG, did not cast any vote.
Geographical Constituencies:
Dr Priscilla LEUNG, Mr WONG Kwok-kin, Mrs Regina IP, Mr Paul TSE, Mr WU Chi-wai, Mr CHAN Chi-chuen, Mr CHAN Han-pan, Mr LEUNG Che-cheung, Mr KWOK Wai-keung, Dr Fernando CHEUNG, Dr Helena WONG, Ms Elizabeth QUAT, Mr Alvin YEUNG, Mr Andrew WAN, Dr Junius HO, Mr LAM Cheuk-ting, Ms YUNG Hoi-yan, Ms Tanya CHAN, Dr CHENG Chung-tai, Mr Jeremy TAM, Mr Vincent CHENG and Ms CHAN Hoi-yan voted for the motion.
THE PRESIDENT announced that among the Members returned by functional constituencies, 28 were present, 27 were in favour of the motion; while among the Members returned by geographical constituencies through direct elections, 22 were present, 22 were in favour of the motion. Since the question was agreed by a majority of each of the two groups of Members present, he therefore declared that the motion was passed.
Third Reading of Member's Bill
PRESIDENT (in Cantonese): Member's Bill: Third Reading.
ST. JOHN'S COLLEGE (AMENDMENT) BILL 2019
MR JIMMY NG (in Cantonese): President, I move that the
St. John's College (Amendment) Bill 2019 be read the Third time and do pass.
8720 LEGISLATIVE COUNCIL ― 18 June 2020
PRESIDENT (in Cantonese): I now propose the question to you and that is: That the St. John's College (Amendment) Bill 2019 be read the Third time and do pass.
Does any Member wish to speak?
(No Member indicated a wish to speak)
PRESIDENT (in Cantonese): I now put the question to you as stated. Will those in favour please raise their hands?
(Members raised their hands)
PRESIDENT (in Cantonese): Those against please raise their hands.
(No hands raised)
Mr CHAN Chun-ying rose to claim a division.
PRESIDENT (in Cantonese): Mr CHAN Chun-ying 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.
LEGISLATIVE COUNCIL ― 18 June 2020 8721
Functional Constituencies:
Mr LEUNG Yiu-chung, Mr Abraham SHEK, Prof Joseph LEE, Mr Jeffrey LAM, Mr WONG Ting-kwong, Ms Starry LEE, Mr CHAN Kin-por, Mr Steven HO, Mr Frankie YICK, Mr YIU Si-wing, Mr MA Fung-kwok, Mr Charles Peter MOK, Mr Kenneth LEUNG, Mr Christopher CHEUNG, Mr IP Kin-yuen, Mr Martin LIAO, Mr POON Siu-ping, Ir Dr LO Wai-kwok, Mr Jimmy NG, Mr Holden CHOW, Mr SHIU Ka-fai, Mr SHIU Ka-chun, Mr CHAN Chun-ying, Mr LUK Chung-hung, Mr KWONG Chun-yu and Mr Tony TSE voted for the motion.
THE PRESIDENT, Mr Andrew LEUNG, did not cast any vote.
Geographical Constituencies:
Dr Priscilla LEUNG, Mr WONG Kwok-kin, Mrs Regina IP, Mr Paul TSE, Ms Claudia MO, Mr WU Chi-wai, Mr CHAN Chi-chuen, Mr CHAN Han-pan, Mr LEUNG Che-cheung, Mr KWOK Wai-keung, Dr Fernando CHEUNG, Dr Helena WONG, Ms Elizabeth QUAT, Mr Alvin YEUNG, Mr Andrew WAN, Dr Junius HO, Mr LAM Cheuk-ting, Ms YUNG Hoi-yan, Ms Tanya CHAN, Dr CHENG Chung-tai, Mr Jeremy TAM, Mr Vincent CHENG and Ms CHAN Hoi-yan voted for the motion.
THE PRESIDENT announced that among the Members returned by functional constituencies, 27 were present, 26 were in favour of the motion; while among the Members returned by geographical constituencies through direct elections, 23 were present, 23 were in favour of the motion. Since the question was agreed by a majority of each of the two groups of Members present, he therefore declared that the motion was passed.
CLERK (in Cantonese): St. John's College (Amendment) Bill 2019.
8722 LEGISLATIVE COUNCIL ― 18 June 2020
NEXT MEETING
PRESIDENT (in Cantonese): As it is now approaching 6:00 pm, I consider the remaining meeting time today insufficient for the completion of the next agenda item. I now adjourn the Council until 11:00 am on Wednesday, 24 June 2020.
Adjourned accordingly at 5:35 pm.