LEGISLATIVE COUNCIL ― 14 October 2020 1

OFFICIAL RECORD OF PROCEEDINGS

Wednesday, 14 October 2020

The Council met at Eleven o'clock

MEMBERS PRESENT:

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

THE HONOURABLE JAMES TO KUN-SUN

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.

2 LEGISLATIVE COUNCIL ― 14 October 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, G.B.S., J.P.

THE HONOURABLE CHARLES PETER MOK, J.P.

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.

* According to the announcement made by the Hong Kong Special Administrative Region Government on 11 November 2020 pursuant to the Decision of the Standing Committee of the National People's Congress on Issues Relating to the Qualification of the Members of the Legislative Council of the Hong Kong Special Administrative Region, Kenneth LEUNG, KWOK Ka-ki, Dennis KWOK Wing-hang and Alvin YEUNG were disqualified from being members of the Legislative Council on 30 July 2020. LEGISLATIVE COUNCIL ― 14 October 2020 3

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 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

* According to the announcement made by the Hong Kong Special Administrative Region Government on 11 November 2020 pursuant to the Decision of the Standing Committee of the National People's Congress on Issues Relating to the Qualification of the Members of the Legislative Council of the Hong Kong Special Administrative Region, Kenneth LEUNG, KWOK Ka-ki, Dennis KWOK Wing-hang and Alvin YEUNG were disqualified from being members of the Legislative Council on 30 July 2020. 4 LEGISLATIVE COUNCIL ― 14 October 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 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., J.P.

PUBLIC OFFICERS ATTENDING:

THE HONOURABLE TERESA CHENG YEUK-WAH, G.B.S., S.C., J.P. SECRETARY FOR JUSTICE

MR WESLEY WONG WAI-CHUNG, S.C., J.P. SOLICITOR GENERAL

LEGISLATIVE COUNCIL ― 14 October 2020 5

CLERKS IN ATTENDANCE:

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

MISS ODELIA LEUNG HING-YEE, DEPUTY SECRETARY GENERAL

MS DORA WAI, ASSISTANT SECRETARY GENERAL

MR MATTHEW LOO, ASSISTANT SECRETARY GENERAL

6 LEGISLATIVE COUNCIL ― 14 October 2020

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

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

LAYING OF PAPERS ON THE TABLE OF THE COUNCIL

The following papers were laid on the table under Rule 21(2) of the Rules of Procedure:

Subsidiary Legislation Legal Notice No.

Compulsory Quarantine of Certain Persons Arriving at Hong Kong (Amendment) (No. 5) Regulation 2020 ...... 144 of 2020

Prevention and Control of Disease (Disclosure of Information) (Amendment) (No. 2) Regulation 2020 ...... 145 of 2020

Compulsory Quarantine of Persons Arriving at Hong Kong from Foreign Places (Amendment) (No. 3) Regulation 2020 ...... 146 of 2020

Prevention and Control of Disease (Requirements and Directions) (Business and Premises) (Amendment) (No. 4) Regulation 2020 ...... 147 of 2020

Prevention and Control of Disease (Prohibition on Group Gathering) (Amendment) (No. 8) Regulation 2020 ...... 148 of 2020

Prevention and Control of Disease (Wearing of Mask) (Public Transport) (Amendment) Regulation 2020 ...... 149 of 2020

LEGISLATIVE COUNCIL ― 14 October 2020 7

Prevention and Control of Disease (Requirements and Directions) (Business and Premises) (Amendment) (No. 5) Regulation 2020 ...... 150 of 2020

Prevention and Control of Disease (Prohibition on Group Gathering) (Amendment) (No. 9) Regulation 2020 ...... 151 of 2020

Emergency (Date of General Election) (Seventh Term of the Legislative Council) Regulation ...... 152 of 2020

Medical Laboratory Technologists (Special Exemptions) Regulation ...... 153 of 2020

Closed Area (Heung Yuen Wai Boundary Control Point) Order (Commencement) Notice ...... 155 of 2020

Cross-boundary Movement of Physical Currency and Bearer Negotiable Instruments Ordinance (Amendment of Schedule 1) Notice 2020 ...... 156 of 2020

Import and Export (Electronic Cargo Information) (Amendment) Regulation 2018 (Commencement) Notice ...... 157 of 2020

Compulsory Quarantine of Certain Persons Arriving at Hong Kong (Amendment) (No. 6) Regulation 2020 ...... 158 of 2020

Prevention and Control of Disease (Disclosure of Information) (Amendment) (No. 3) Regulation 2020 ...... 159 of 2020

Prevention and Control of Disease (Wearing of Mask) (Amendment) Regulation 2020 ...... 160 of 2020

8 LEGISLATIVE COUNCIL ― 14 October 2020

Prevention and Control of Disease (Prohibition on Group Gathering) (Amendment) (No. 10) Regulation 2020 ...... 162 of 2020

Registration of Persons (Application for New Identity Cards) Order 2018 (Amendment) (No. 2) Order 2020 ...... 163 of 2020

Rating (Exemption) Order 2020 (Amendment) Order 2020 ...... 166 of 2020

Shipping and Port Control (Amendment) Regulation 2020 ...... 167 of 2020

Port Control (Cargo Working Areas) (Amendment) Regulation 2020 ...... 168 of 2020

Port Control (Cargo Working Areas) (Amendment) (Fee Concessions) Regulation 2019 (Amendment) Regulation 2020...... 169 of 2020

Road Traffic (Registration and Licensing of Vehicles) (Amendment) Regulation 2020...... 170 of 2020

Road Traffic (Registration and Licensing of Vehicles) (Amendment) (Fee Concessions) Regulation 2019 (Amendment) Regulation 2020 ...... 171 of 2020

Road Traffic Ordinance (Amendment of Schedule 3) Order 2020 ...... 172 of 2020

Hong Kong Air Navigation (Fees) (Amendment) Regulation 2020 ...... 173 of 2020

Marine Fish Culture (Amendment) Regulation 2020 .... 174 of 2020

Public Health (Animals and Birds) (Licensing of Livestock Keeping) (Amendment) (No. 2) Regulation 2020 ...... 175 of 2020

LEGISLATIVE COUNCIL ― 14 October 2020 9

Public Health (Animals and Birds) (Licensing of Livestock Keeping) (Amendment) (Fee Concessions) Regulation 2019 (Amendment) Regulation 2020 ...... 176 of 2020

Sewage Services (Trade Effluent Surcharge) (Amendment) Regulation 2020 ...... 177 of 2020

Waterworks (Amendment) Regulation 2020 ...... 178 of 2020

Sewage Services (Sewage Charge) (Amendment) Regulation 2020 ...... 179 of 2020

Mines (Safety) (Amendment) Regulation 2020 ...... 180 of 2020

Dangerous Goods (General) (Amendment) Regulation 2020 ...... 181 of 2020

Dangerous Goods (Government Explosives Depots) (Amendment) Regulation 2020 ...... 182 of 2020

Building (Minor Works) (Fees) (Amendment) Regulation 2020 ...... 183 of 2020

Building (Minor Works) (Fees) (Amendment) (Fee Concessions) Regulation 2019 (Amendment) Regulation 2020 ...... 184 of 2020

Electricity (Registration) (Amendment) Regulation 2020 ...... 185 of 2020

Karaoke Establishments (Fees) (Amendment) Regulation 2020 ...... 186 of 2020

Karaoke Establishments (Fees) (Amendment) (Fee Concessions) Regulation 2019 (Amendment) Regulation 2020 ...... 187 of 2020

10 LEGISLATIVE COUNCIL ― 14 October 2020

Travel Agents (Amendment) Regulation 2020 ...... 188 of 2020

Travel Agents (Amendment) (Fee Concessions) Regulation 2019 (Amendment) Regulation 2020 ...... 189 of 2020

Merchant Shipping (Local Vessels) (Fees) (Amendment) (No. 3) Regulation 2020 ...... 190 of 2020

Merchant Shipping (Local Vessels) (Fees) (Amendment) (Fee Concessions) Regulation 2019 (Amendment) Regulation 2020 ...... 191 of 2020

Road Traffic (Public Service Vehicles) (Amendment) (No. 3) Regulation 2020 ...... 192 of 2020

Road Traffic (Public Service Vehicles) (Amendment) (Fee Concessions) Regulation 2019 (Amendment) Regulation 2020...... 193 of 2020

Dutiable Commodities (Liquor Licences) (Fees) (Amendment) Regulation 2020...... 194 of 2020

Dutiable Commodities (Liquor Licences) (Fees) (Amendment) (Fee Concessions) Regulation 2019 (Amendment) Regulation 2020 ...... 195 of 2020

Places of Public Entertainment (Fee Concessions) Regulation 2019 (Amendment) Regulation 2020 ...... 196 of 2020

Construction Workers Registration (Fees) (Amendment) Regulation 2020...... 197 of 2020

LEGISLATIVE COUNCIL ― 14 October 2020 11

Compulsory Quarantine of Certain Persons Arriving at Hong Kong (Amendment) (No. 7) Regulation 2020 ...... 198 of 2020

Compulsory Quarantine of Persons Arriving at Hong Kong from Foreign Places (Amendment) (No. 4) Regulation 2020 ...... 199 of 2020

Prevention and Control of Disease (Requirements and Directions) (Business and Premises) (Amendment) (No. 6) Regulation 2020 ...... 200 of 2020

Prevention and Control of Disease (Prohibition on Group Gathering) (Amendment) (No. 11) Regulation 2020 ...... 201 of 2020

Prevention and Control of Disease (Regulation of Cross-boundary Conveyances and Travellers) (Amendment) Regulation 2020 ...... 202 of 2020

Prevention and Control of Disease (Wearing of Mask) (Amendment) (No. 2) Regulation 2020 ...... 203 of 2020

Smoking (Public Health) (Designation of No Smoking Areas) (Amendment) Notice 2020 ...... 204 of 2020

Employment (Amendment) Ordinance 2020 (Commencement) Notice ...... 205 of 2020

Other Paper

Hong Kong Council on Smoking and Health Annual Report 2019-2020 (including Financial Statements and Independent Auditor's Report)

12 LEGISLATIVE COUNCIL ― 14 October 2020

GOVERNMENT BILLS

Second Reading of Government Bills

Resumption of Second Reading Debate on Government Bill

PRESIDENT (in Cantonese): Government Bill. This Council resumes the Second Reading debate on the Statute Law (Miscellaneous Provisions) Bill 2019.

Stand-over item: Statute Law (Miscellaneous Provisions) Bill 2019 (standing over from previous meetings since 8 July 2020)

STATUTE LAW (MISCELLANEOUS PROVISIONS) BILL 2019

Resumption of debate on Second Reading which was moved on 15 January 2020

PRESIDENT (in Cantonese): Mr CHEUNG Kwok-kwan, Chairman of the Bills Committee on the Bill, will first address the Council on the Bills Committee's Report.

MR CHEUNG KWOK-KWAN (in Cantonese): President, I am presenting the Report in my capacity as Chairman of the Bills Committee on Statute Law (Miscellaneous Provisions) Bill 2019 ("the Bills Committee").

I am particularly pleased and gratified to be able to present the Report in the Chamber today in my capacity as Chairman of the Bills Committee. Why do I say so? It is because the Statute Law (Miscellaneous Provisions) Bill 2019 ("the Bill") has, so to speak, returned from death as it failed to catch the "last train" at the last meeting of the Council in July for last-minute discussion, hence coming to an abrupt ending and wasting the efforts of the government officials and members of the Bills Committee.

President, the Bill proposes to make miscellaneous amendments to various Ordinances for the purpose of updating and improving the relevant legislation. The major amendments in the Bill include amendments to the High Court Ordinance (Cap. 4), amendments to the Interpretation and General Clauses LEGISLATIVE COUNCIL ― 14 October 2020 13

Ordinance (Cap. 1), standardization of the Chinese text of the defence containing the phrase "could not with reasonable diligence" in various Ordinances, and other miscellaneous amendments to various Ordinances which are of technical nature.

The Bills Committee has held one meeting with the Administration. In principle, the Bills Committee does not object to the proposed amendments in the Bill. During the scrutiny, members expressed their views and concerns mainly about the expected effectiveness of the amendments to the High Court Ordinance (Cap. 4) and the re-argument arrangement under the Ordinance.

Members note that, in response to the rapid surge in civil caseloads in recent years, the Judiciary proposes to amend the High Court Ordinance (Cap. 4) so as to ensure that such cases are handled as expeditiously as is reasonably practicable. Members hope that the amendments can greatly increase the overall efficiency of case handling, particularly for judicial review ("JR") cases involving non-refoulement claims. Some members have asked the Administration how effective the amendments to the High Court Ordinance are expected to speed up the handling of JR cases (especially cases involving non-refoulement claims), such as the amount of time that can be reduced for processing of cases after the proposed amendments have come into operation. Some other members consider that there is a need for the Judiciary Administration to explore measures (e.g. increasing the judicial manpower) other than the proposed legislative amendments to cope with the increased caseload and to reduce waiting time for cases in the long run.

The Judiciary Administration has advised that since such factors as the number of cases filed, as well as the time needed for the processing and the eventual disposal of an individual case, are beyond the control of the courts, it is not in a position to estimate how the proposed amendments will impact on the time taken to process a JR case. However, overall speaking, the proposed amendments should have positive impact to alleviate the overall workload of the Court of Appeal ("CA"). To cope with the increasing workload, the Judiciary will continue to strengthen the judicial manpower, review the accommodation needs of the Judiciary, and promote the use of electronic technology in relation to court proceedings to maximize operational efficiency.

Regarding the re-argument arrangement under the High Court Ordinance (i.e. a 2-Judge CA cannot reach a unanimous decision, making it necessary to re-argue the case before a CA consisting of an uneven number of Justices of 14 LEGISLATIVE COUNCIL ― 14 October 2020

Appeal ("JAs") not less than three), some members consider that it will lead to prolonged court proceedings, thus wasting the time and resources of the appellants or litigants which in turn might cause unfairness to those appellants or litigants who lack sufficient financial resources. As advised by the Judiciary Administration, it is extremely rare that the members of a two-JA bench are equally divided and the case has to be re-argued. According to the recent records available, they could identify only one such case heard in 2002.

In addition, members note that the Administration will submit an amendment to clause 6(4) of the Bill (i.e. the proposed section 34B(5)(a) of the High Court Ordinance (Cap. 4)) to ensure that the re-argument arrangement under section 34B(5) of Cap. 4 will apply to a CA duly constituted under section 34B(3) of Cap. 4 (i.e. a 4-Judge CA) or a CA duly constituted under section 34B(4) of Cap. 4 (i.e. a 2-Judge CA) upon commencement of the operation of the proposed amendments to Cap. 4 introduced by the Bill. The Bills Committee does not object to the amendment proposed by the Administration on the re-argument arrangement and will not propose any amendments to the Bill.

President, the following are my views on the Bill.

The Bill is an omnibus bill proposing miscellaneous amendments which are minor, technical and non-controversial to various Ordinances for the purpose of updating and improving the relevant legislation. As with other members during the scrutiny by the Bills Committee, I have no objection in principle to the proposed amendments in the Bill. As mentioned in the Report I made earlier in my capacity of Chairman of the Bills Committee, during the Bills Committee meeting, members expressed their views and concerns mainly about the expected effectiveness of the amendments to the High Court Ordinance (Cap. 4) and the re-argument arrangement under the Ordinance. I understand that the Judiciary proposes this amendment primarily in response to the rapid surge in civil caseloads in recent years, particularly JR cases related to non-refoulement claims. With the proposed arrangement, it hopes to ensure that all cases are handled as expeditiously as is reasonably practicable.

I agree with this objective, mainly because the truly high JR caseloads involving non-refoulement claims in recent years have imposed great pressure on the workload of the Judiciary, in particular for the High Court (comprising the Court of First Instance and CA) and the Court of Final Appeal ("CFA"). Besides, the community is concerned about the possibility of non-refoulement LEGISLATIVE COUNCIL ― 14 October 2020 15 claimants taking advantage of the lengthy appeal mechanism of the courts to continue staying in Hong Kong. Therefore, I believe that it will be fair to both Hong Kong society and non-refoulement claimants if the Judiciary can expedite the handling of these JR cases and make a fair decision as soon as possible.

Of course, I am also aware of the view that any legislative amendments which have the potential to lower the standard of fairness have to be closely scrutinized, since upholding the standard of fairness is highly important to the rule of law. Therefore, whether the proposed legislative amendments would have a negative impact on the standard of fairness to the appeals in JR cases arising from the non-refoulement claim cases should be carefully considered. On this point, I accept the response made by the Judiciary Administration in the Bills Committee meeting that this proposal simply extends the use of the well-established two-JA bench mechanism to enable the courts to hear and determine more cases.

President, actually a number of matters under the civil jurisdiction of CA are already determined by 2-Judge CA at present, including appeal of which all parties have filed a consent to the appeal being heard and determined by 2-Judge CA, etc. In the event of 2-Judge CA not being able to reach a unanimous decision, the party lodging appeal can apply to have the case re-argued before a 3-Judge CA under the current mechanism. Therefore, the high standard of fairness of a judicial proceeding should not be affected by the proposed legislative amendments, which only seek to extend the use of a 2-Judge CA. Moreover, since the additional cases covered in the current amendment are mainly applications for leave to CFA against the decisions made by CA consisting of less than three JAs, as far as procedure is concerned, an appellant who has failed to obtain leave to appeal from CA may apply directly to CFA for leave to appeal without having any negative impact on the fairness of a judicial proceeding.

Besides, I understand why the Judiciary is unable to give a concrete reply to the Bills Committee's enquiry on the amount of time that can be reduced for processing of cases after the proposed amendments have come into operation. It is because the time taken for each case depends on many factors, including the use of legal representation, the professional competence of the lawyers of both parties and the complexity of the case. Therefore, I absolutely understand why it is impossible to give a very precise figure in this regard.

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I believe that the currently proposed amendments alone are not enough to address the issue related to the waiting time for case handling in Hong Kong society. The Judiciary should also explore ways to strengthen the judicial manpower, hold more court sessions and earnestly promote the use of electronic technology in relation to court proceedings to enhance operational efficiency. As for the re-argument arrangement, I concur with the concern of some members of the Bills Committee that it may lead to prolonged legal proceedings, thus wasting the time and resources of both parties to the litigation. The crux of the matter is how to strike a balance between scheduling an appeal hearing at a court as soon as possible and re-arguing the case when a unanimous decision cannot be reached. I accept the Judiciary's explanation that re-argument of a case is a rare occurrence in the record, with only one similar case being heard in 2002, according to recent records. Therefore, on balance, I consider that the proposed amendments on a 2-Judge CA can effectively shorten the time for case handling. For this reason, the Democratic Alliance for the Betterment and Progress of Hong Kong and I support the amendments in the Bill and the amendment proposed by the Administration.

President, I so submit.

DR FERNANDO CHEUNG (in Cantonese): President, I rise to speak against the amendments proposed in the Statute Law (Miscellaneous Provisions) Bill 2019 ("the Bill"). Before analysing the Bill's contents, I wish to talk about three "should nots", namely three situations that should not have taken place.

First, I should not be speaking here. The current term of the Legislative Council should have already ended because the Basic Law stipulates that the term of this Council is four years rather than five years without any possible extension. I am on my feet here now … This legislature, in my view, contravenes the Basic Law, and it is an unlawful and unconstitutional legislature. I have no choice but to be present here now.

The royalist camp and the Government certainly want us to quit because they reject opposition and merely want to turn the legislature into a place with only one voice. This year should have seen the conduct of an election, but the Government deprived people of their right to vote by refusing to follow the Basic Law. They feared defeat, and that was why they dared not conduct the election LEGISLATIVE COUNCIL ― 14 October 2020 17 and used the epidemic as the pretext. All this is unprecedented and has served to show all Hong Kong people and the whole world that this political regime and the Government is a sheer coward …

PRESIDENT (in Cantonese): Dr Fernando CHEUNG, please return to the subject of this debate. I have given you two minutes to state your arguments. Please return to the subject of this debate.

DR FERNANDO CHEUNG (in Cantonese): This point is important.

PRESIDENT (in Cantonese): Dr Fernando CHEUNG, if you think that the legislature is unlawful, you may leave and need not join us in the debate here. Please return to the subject of the Second Reading debate on the Statute Law (Miscellaneous Provisions) Bill 2019.

(Desk thumping)

DR FERNANDO CHEUNG (in Cantonese): President, it is not the first time that this legislature has done something unlawful. The co-location arrangement is already unlawful and unconstitutional as it breaches the Basic Law.

PRESIDENT (in Cantonese): Dr Fernando CHEUNG, if you do not return to the subject, I will have to stop your speech.

DR FERNANDO CHEUNG (in Cantonese): President, I am returning to the subject of this debate. The point I am driving at is that at this very juncture, we should be listening to the Chief Executive's Policy Address instead of debating the Bill. It was merely two days ago when we were informed somewhat unexpectedly that the Policy Address would not be delivered. President, are you aware of a stipulation in Article 64 of the Basic Law, which states that the Government is duty-bound to "present regular policy addresses to the Council"? We as Members of the Legislative Council are likewise duty-bound to review and listen to such addresses and raise questions …

18 LEGISLATIVE COUNCIL ― 14 October 2020

PRESIDENT (in Cantonese): Dr CHEUNG, I have already issued a circular explaining why no arrangement is made today for the delivery of the Policy Address, and the Chief Executive has also given a clear explanation. If you still remember that you have a constitutional obligation to heed the Policy Address, why did you Members obstruct the delivery of the Policy Address last year? This is my final warning to you, Dr Fernando CHEUNG. If you still refuse to return to the subject of this debate, I will have to stop you from speaking. Now, please continue with your speech.

DR FERNANDO CHEUNG (in Cantonese): President, regrettably, I did not participate in any such obstruction last year as I was suffering from a herniated intervertebral disc and was hospitalized at the time.

(Some Members spoke in their seats)

The third "should not" is that as the prevailing epidemic outside has turned so severe that it has come to pose serious impacts on the economy and people's livelihood, we simply should not waste the time of the legislature and should instead discuss issues pertaining to people's livelihood and the Hong Kong community. Speaking of priority, I must say frankly that no matter how long the wait is, the Bill should not have been given any opportunity for debate. Your arrangement of the Agenda … Initially, the Chief Executive was supposed to be delivering her Policy Address. But she withdrew it at very short notice. This legislature and Government are simply no longer a legislature and government of Hong Kong people, and this Chief Executive is even not a Chief Executive of Hong Kong people.

While the Bill involves various miscellaneous amendments of a technical nature, some of them carry substantive significance. As mentioned by Mr CHEUNG Kwok-kwan just now, one of the amendments seeks to amend the High Court Ordinance (Cap. 4) ("the Ordinance"). What are the contents of the amendment? A Court of Appeal generally consists of three judges. But the amendment concerned proposes that it may be constituted by two judges, and they can also determine cases, including applications for leave to appeal to the Court of Final Appeal against the decisions made by a Court of Appeal consisting of less than three Justices of Appeal. Non-refoulement claims are involved in such cases, but such cases do not always concern non-refoulement claims. The other type of case involves appeals against the decisions of the Court of First LEGISLATIVE COUNCIL ― 14 October 2020 19

Instance to refuse to grant leave to apply for judicial review or to grant such leave on terms. In the past, the relevant decisions must be made by a Court of Appeal consisting of no less than three judges. But now, the Government intends to introduce amendment.

The Bill also proposes to amend section 34B(5) of the Ordinance, so that when a "two-judge Court of Appeal" in various types of proceedings cannot reach a unanimous decision, in addition to a party being allowed to apply to re-argue the case before a "three-judge Court of Appeal", the court may also make such an order on its own motion.

The last amendment seeks to clarify that an additional judge in the Court of First Instance or the Court of Appeal has the power to dispose of cases on paper without physically "sitting" in court.

I believe the most controversial of all these three amendments is the first amendment I talked about earlier on. Will this amendment violate the high standard of fairness? It is a standard required by our common law precedents. This amendment mainly seeks to increase the flexibility of manpower deployment and the efficiency of case hearings. Over the past 10 years or so, the number of people making non-refoulement claims in Hong Kong has kept increasing. In particular, after the implementation of the unified screening mechanism ("USM"), many problems have actually arisen in the vetting and approval of non-refoulement claims. One major problem is that as the relevant United Nations ("UN") commissions or human rights organizations have noticed, the success rate of non-refoulement claims in Hong Kong is inexplicably low, and the overall rate of cases approved under USM is around 1% of the total. Hong Kong's success rate lags far behind those of other UN countries (especially advanced countries) in comparison. I need not repeat this point because the Research Office of the Legislative Council has already published certain research reports pointing out a difference of a few times or even a few dozen times between the success rate of Hong Kong and those of other countries.

In view of this, many unsuccessful non-refoulement claimants (namely those who are known as refugees or asylum seekers in the community) … Of course, the Government does not admit the presence of refugees in Hong Kong because Hong Kong has not signed any refugee conventions. This is why it only admits the presence of "non-refoulement claimants" as they are so called. They are basically asylum seekers who come to Hong Kong from other countries or 20 LEGISLATIVE COUNCIL ― 14 October 2020 regions. As the success rate has remained low, most of them will initiate an appeal, and since Hong Kong's legal framework is sound, they will often file a judicial review if their appeals are unsuccessful. Before filing a judicial review, they must obtain leave for doing so. For this reason, the Court of Appeal of the High Court began to receive a rising number of such cases. This has added to its workload and given birth to the Bill in the end which seeks to amend the Ordinance.

Nevertheless, can the amendment exercise this time around solve the problem? Will this amendment exercise have any implications on the high standard of fairness? While Mr CHEUNG Kwok-kwan said that he was not worried about all this, the Hong Kong Bar Association once expressed its concern during a discussion on the Bill at the relevant Bills Committee meeting that this amendment exercise might affect the high standard of fairness. Even though we are unable to point out clearly the part that may be affected, Members can get a general idea by drawing on their common sense. A Court of Appeal is generally constituted by three judges, and this design certainly has its meaning. For instance, in cases where two judges reach the same judgment and the remaining judge disagrees with it, the verdict will be based on the majority decision. But in cases where there are only two judges, it will naturally be difficult to reach a verdict if the two judges hold opposing views. This is the reason why the verdict mechanism certainly should be based on an odd number of judges (such as three or five judges).

However, why does this proposes amendment seek to reduce the number of judges from three to two? Will it reduce the amount of the relevant legal consideration or the overall legal analysis and therefore make it impossible to maintain the high standard of fairness? In the event that no judgment can be reached, meaning to say that the two judges fail to reach a unanimous decision, a scenario proposed by the Bill will happen: The Court of Appeal may arrange another three judges on its own motion to hear the case all over again, apart from doing so upon the request of any party to the lawsuit. If consideration is given from the angle of the court's overall operational efficiency, will this arrangement be the safest of all?

During the debate on the issue concerned, we received the views of Justice Centre, a human rights organization that has been concerned about refugees' welfare over all these years. They argue that this amendment is unable to "prescribe the right medication for the illness", saying that while the proposal LEGISLATIVE COUNCIL ― 14 October 2020 21 seems to be able to save some manpower and increase flexibility in the deployment of judges' manpower, it has actually failed to target at the crux of the problem―the various problems plaguing the entire assessment system or the vetting and approval mechanism called USM as I mentioned a moment ago. Who operates USM? It is operated by the staff of the Immigration Department in Hong Kong. Over the years, the number of non-refoulement claims that have been successfully established has remained seriously low. Apart from this, serious problems have also arisen in the process.

President, due to a lack of speaking time, I will wait until the next debate session before quoting the relevant figures. Mr Dennis KWOK actually knows better than I do as he raised a question about this with the Government recently. The figures in the Government's reply have precisely reflected that USM is plagued by major problems, ones that have directly led to the massive case backlog in the judicial system. If the fairness and transparency of the relevant mechanism can be increased, the judicial system may not have to bear the huge, additional workload.

As my speaking time is running short, I will leave my detailed analysis to the next debate session.

PRESIDENT (in Cantonese): Mr Tony TSE, please speak.

(Mr HUI Chi-fung indicated his wish to raise a point of order)

PRESIDENT (in Cantonese): Mr HUI Chi-fung, what is your point of order?

MR HUI CHI-FUNG (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)

22 LEGISLATIVE COUNCIL ― 14 October 2020

PRESIDENT (in Cantonese): Mr Tony TSE, please speak.

MR TONY TSE (in Cantonese): President, I speak in support of the resumption of Second Reading debate on the Statute Law (Miscellaneous Provisions) Bill 2019 ("the Bill").

Today, the Chief Executive was supposed to deliver the Policy Address for this year to the Legislative Council. However, since the Hong Kong Government has proposed to the Central Government a number of measures to support the economy and people's livelihood in Hong Kong, the Chief Executive needs to go to Beijing to have discussions with the related ministries and departments of the Central Government in due course, in the hope that some progress can be attained without delay for the confirmation and implementation of the initiatives and policies concerned. Therefore, the Chief Executive informed us on Monday of her decision to postpone the Policy Address.

The Government only informed us about the postponement of the Policy Address two days ago. In regard to such a short notice, I personally find it undesirable. However, in my view, what is most important is whether this arrangement is beneficial to Hong Kong, and whether there are measures which can really help Hong Kong, so that the Hong Kong economy can be revitalized and people's livelihood improved.

(A mobile phone was ringing in the Chamber)

PRESIDENT (in Cantonese): Which Member's mobile phone is ringing? Please switch off the mobile phone immediately. Could officers from the Secretariat please check whose mobile phone is ringing. Will Members please set their mobile phones to silent mode.

Mr Tony TSE, please continue with your speech.

MR TONY TSE (in Cantonese): … If this arrangement is beneficial to Hong Kong, I think it is worth postponing the delivery of the Policy Address for a few weeks.

LEGISLATIVE COUNCIL ― 14 October 2020 23

In regard to the criticism from the "mutual destruction camp" that the Chief Executive's postponement of the Policy Address is unreasonable and will affect the economy and people's livelihood, I think it is a typical case of blaming others but not themselves …

PRESIDENT (in Cantonese): Mr Tony TSE, please return to the Second Reading debate on the Statute Law (Miscellaneous Provisions) Bill 2019.

MR TONY TSE (in Cantonese): All right, President. I have only spoken for a little more than a minute. We are cognizant that during the past year, the "mutual destruction camp" was the one truly responsible for stalling the Council. Its failure to elect a Chairman of the House Committee after seven months has paralysed the Legislative Council's function of scrutinizing bills, including the Bill that we are scrutinizing today. As a result, a large number of non-controversial bills relating to the economy and people's livelihood cannot be passed and some of them even have to be shelved. This is the act which really affects the public and harms Hong Kong.

We are now at the resumption of the Second Reading debate on the Bill which mainly seeks to rationalize the court procedures concerned and clarify certain legal wording, in the hope that the appeal cases relating to non-refoulement claims from the so-called "bogus refugees" can be handled expeditiously. In my view, most of the proposed amendments concerned are not controversial and thus gain the support of Members. Hence, the Bills Committee could finish its deliberation very quickly and the Bill could have been passed before the summer recess. However, it was nipped in the bud due to filibustering by the "mutual destruction camp" in the House Committee and the Legislative Council meetings. At the end, more manpower, time and resources have to be spent by courts in dealing with a huge backlog of "bogus refugees" cases.

President, over the past few years, Hong Kong has been deeply troubled by the problem of "bogus refugees". Many people from Southern Asia, Southeast Asia and even Middle East and Africa, noticing that Hong Kong is a place which attaches importance to human rights, the rule of law and procedural justice, flocked to Hong Kong through legal or illegal means and then filed non-refoulement claims. Nevertheless, most of them actually did not come to 24 LEGISLATIVE COUNCIL ― 14 October 2020

Hong Kong as a result of political persecution or torture from their governments. Their purpose of coming to Hong Kong might mainly be engaging in illegal work in order to earn wages. Some of them might be even manipulated by triad societies to participate in illegal activities, undermining the law of order of Hong Kong and affecting the job opportunities of legal residents, while taxpayers have to fork out money for their living expenses and legal fees.

Following a number of measures put in place by the Security Bureau, the number of "bogus refugees" coming to Hong Kong was already greatly reduced in recent years. However, there are still nearly 10 000 people stranded in Hong Kong at present. In order to delay their deportation, they incessantly file appeals and apply for judicial reviews. One important improvement measure in this Bill is to relax the requirement of a 3-Judge bench of the Court of Appeal of the High Court to only a 2-Judge bench for trying cases. While this proposal can uphold the rule of law and procedural justice, it can also expedite the processing of the cases concerned so that "bogus refugees" or unqualified claimants can be repatriated as soon as possible. It thus has my support.

The proposal concerned is applicable not only to appeal cases relating to non-refoulement claims, but also to other cases …

(Mr HUI Chi-fung indicated his wish to raise a point of order)

PRESIDENT (in Cantonese): Mr HUI Chi-fung, what is your point of order?

MR HUI CHI-FUNG (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)

PRESIDENT (in Cantonese): Mr Tony TSE, please continue with your speech.

LEGISLATIVE COUNCIL ― 14 October 2020 25

MR TONY TSE (in Cantonese): President, the proposed amendment in the Bill is applicable not only to appeal cases relating to non-refoulement claims, but actually also to other cases. I have pointed out to other Members on many occasions that the judiciary system in Hong Kong is well-known for its independence as well as its unrushed process. Many criminal and civil cases can only be formally heard after pending for a few months or even over one year. From my observation, the Judiciary and the Department of Justice seem to have expedited their efforts recently as many cases concerning the anti-extradition law amendment movement have gradually been heard and judged so that offenders can be punished and innocent defendants can be released without delay, with justice being manifested within a reasonable period of time. This is rather significant to upholding the rule of law, stopping violence and curbing disorder.

President, apart from dealing with the problem of "bogus refugees", Hong Kong actually needs to expedite its efforts in dealing with issues of many aspects. It is my hope that in addition to playing the role of a supervisor, the Government should also enhance its role as a facilitator. It should not waste so much time by engaging in endless discussion without making any decision or taking no action after decisions are made. Besides, I also hope that since Members from the opposition camp have chosen to remain in this Council and continue to receive remuneration and allowances for Members, they should make good use of the coming few months to do concrete things for Hong Kong citizens, instead of resorting to filibustering through incessant requests for headcounts, just like what they did a moment ago, or engaging in "mutual destruction".

President, I so submit.

DR PRISCILLA LEUNG (in Cantonese): President, I speak in support of the Statute Law (Miscellaneous Provisions) Bill 2019 ("the Bill"). Our speeches and today's meeting are absolutely constitutional, lawful, sensible and justifiable. According to the decision made by the Standing Committee of the National People's Congress in the light of the pandemic, our term will extend for one year. The decision, in fact, gives the green light to the disqualified Members and I hope that they will behave themselves. But regrettably, the quorum bell just now tells us that they are stubborn and refuse to change; they are determined to pursue acts that are neither good to others nor themselves. Allow me to point out here that, 26 LEGISLATIVE COUNCIL ― 14 October 2020 just now, many members of the public texted me. They hope that these Members will have mercy and do not waste any more Council meeting time on asking for a headcount. Why do people say that there are one-sided speeches here? It is precisely because the opposition Members refuse to speak and are only obsessed with the quorum bells. They are wasting our time.

President, the debate subject today is definitely an important livelihood issue. It is also a topic that I have been following up for a long time. It is an issue that is always on my mind. One of the issues the Bill seeks to deal with involves section 34B of the High Court Ordinance. The amendment seeks to specify the composition of the Court of Appeal ("CA") in civil jurisdiction. It seems unrelated to people's livelihood. But I accept the Government's explanation in that if more cases are heard by a two-Judge CA instead of a three-Judge CA, it will increase the flexibility in the deployment of judicial manpower for taking up other court cases, and therefore put judicial resources to the best use.

Actually, President, we can look at the statistics to understand why I support the Bill. Some of the statistics are also mentioned in the papers prepared by the Administration and the Legislative Council. The passage of the amendment will expedite the processing of a huge backlog of judicial review ("JR") cases and cases of application for leave to appeal stemming from torture claims. According to the statistics provided in a Legislative Council paper, there were only 228 such JR cases in 2016, but the number rose to 3 889 in 2019, as many as 3 727 of which stemmed from non-refoulement claims. Regarding cases of application for leave to appeal, there were 246 cases in 2016 and 597 cases in 2019, 351 of which were about non-refoulement claims. In fact, we can see from the statistics that a very large portion of the JR cases and cases of application for leave to appeal stemmed from non-refoulement claims.

At his speech made at the Ceremonial Opening of the Legal Year 2019, the Chief Justice of the Court of Final Appeal also sought help on the matter. He said judges had been deployed from other courts to help deal with the accumulated cases; and he expressed the need to liaise with the Department of Justice to explore a solution. I believe this is one of the options the Judiciary can pursue, and that is, to streamline the manpower so that more judges can be deployed to deal with other cases. I surely support this option. But this will only be a minor reform because the Judiciary still will not be able to handle the LEGISLATIVE COUNCIL ― 14 October 2020 27 huge caseload at present. According to the speech by the Chief Justice in 2019, the court has at least accumulated thousands of cases stemming from torture claims, together with the cases stemming from the Occupy Central movement in 2014 and the civil disturbances arising from the opposition to the proposed legislative amendments in 2019. The court has accumulated more than 10 000 cases.

When the caseload is heavy, the trial time long, the judicial manpower tight, and a lot more manpower needed to deal with the JR cases and application for leave to appeal cases on torture claims, it will surely affect the processing of other cases. Just think about the case concerning the Occupy Central Trio in 2014, the case is still ongoing. Many criminal cases piled up in 2019 and 2020. Many of my fellow law practitioners and the civil claimants who have sought help from Legislative Council Members said that their cases had been dragged on for years and were still not yet closed. Everyone, and even those with no legal training, should know that justice delayed is justice denied which we very much believe. The Government often waits till the last minute to take action. This is the attitude of the Government in handling many matters. Certainly, having a reform is better than none. However, I notice that in this matter, the Government's willingness to reform the system is also stemmed from the Chief Justice's request for help.

Let us look at why there is such a large backlog of cases at the court. In 2016, 10 922 torture claims remained to be handled by the Government. I believe many Legislative Council Members, including me, started to express concern over this problem around 2016 and 2017. However, in 2020, the number of such cases has dropped to 245. The statistics are provided in the Administration's reply to my question raised at the Finance Committee in 2020. Then, where have all the cases gone? I think, to some extent, these cases have gone to the court, and thus the court has accumulated 3 889 cases seeking JR.

Hence, given the present situation, I hold that the Government must review whether it has gone through all the procedures when it processes the torture claims. It should not consider its job done after reducing the outstanding cases to 245. But rather, it should recognize the problem that there is a serious manpower shortage in Judiciary. So, I want to tell Dr Fernando CHEUNG … he is not here. He has left the Chamber during the quorum bell … This is definitely an important livelihood issue. Why?

28 LEGISLATIVE COUNCIL ― 14 October 2020

If we look at this news article dated 6 October 2020, yet another case of crystal methamphetamine trafficking was uncovered in Hong Kong. The news article further says that the case may involve illegal immigrants or torture claimants stranded in Hong Kong and living in Yau Ma Tei. Why do I always bring up this issue? Several similar crime cases also took place in Whampao Garden, in which the identities of the criminals were unknown. In 2016, the leaders of a number of lawful ethnic minority groups in Hong Kong came to the Legislative Council to express views. They are working in the jewelry or some other industries and have fallen victims in several serious crime cases. Some illegal immigrants possibly coming from the same hometown as theirs were stranded here due to their torture claims or some other reasons and they targeted at the ethnic minorities here. The ethnic minority group leaders hoped that the Government could do something about it. Hence, first of all, this is not about race. This is about law and order.

Second, this involves resources. Cases of such magnitude often involve triad gangs. They use people with no identity cards to commit crimes so that they do not need to bear responsibility. Some people even say that triad members use very cruel means to get rid of the illegal immigrants who have committed crimes. The illegal immigrants may soon vanish in the open sea. We do not want this to happen. We very much hope that this problem which has beset Hong Kong for a long time can be dealt with in a lawful and humane manner. Hong Kong has spent $6 billion since 2014 on handling torture claims and the associated petitions for legal aid and humanitarian support. For substantiated torture claims, the Government should expeditiously give the claimants an identity. This will save the claimants from waiting for eight or ten years for an identity and give their children an opportunity to receive education in Hong Kong. Otherwise, it will give some people more chances to use them to commit crimes. This is something we do not want to happen.

Hence, it is very important to deal with the problem decisively, rather than passing the problem to the court in the belief that the problem is solved. In my opinion, we need to tackle the root cause of the problem. First of all, it is the lure of coming here. An Indian friend gave me a lot of information at that time. The bad elements would lure their Indian country folks to come to Hong Kong, saying that they would be offered a job here. Apart from the minimum wage … I am talking about the $3,000-odd living allowance … they would be given a place to live. This is a one-stop service, resulting in boatloads of illegal immigrants being carried to Hong Kong from numerous countries. The Government's approach to this problem is futile because this loophole still exists. LEGISLATIVE COUNCIL ― 14 October 2020 29

As far as I remember, we did mention, and some foreign consulates also mentioned, how their countries deal with the illegal immigrants, and that is by way of setting up closed reception centres. In this connection, a location was suggested at that time. However, we considered it necessary to treat illegal immigrants in a humane way. I know the Government has been using a common law principle to explain the present situation, and it is the Hardial Singh principle. After the Ghulam case, no one dare to suggest this option anymore because under the principle, a person may not be detained arbitrarily. I understand this point. But, according to the Hardial Singh principle, a person may be detained for a reasonable period, as long as the case is heard in a speedy and reasonable manner. I believe this can reduce the lure of coming here. I believe no one wants to lose his freedom immediately upon arrival in Hong Kong. This approach can reduce the number of cases and expeditiously handle the outstanding cases.

Given that the Administration says in its reply to my question that only 245 cases are left outstanding, it should be able to expedite the process and expeditiously find out the genuine torture claimants and give them an identity, and repatriate those whose claims are not substantiated. The Government should not stall on this matter any further. In its reply to my written question on the 2020-2021 Budget, the Administration says that the proposed expenditure on torture claim-related appeals is $350 million and the total expenditure is $1.2 billion. This comes from the Government's Budget for 2020-2021. This issue involves a large sum of public money. Why is it not an important livelihood issue? In view of the seriousness of the epidemic, we have asked for an unemployment assistance fund. But the Government is stingy. Why do we not use the money to help the unemployed?

Judicial manpower is seriously insufficient. As I just mentioned, there are over 10 000 cases in backlog. I hold that we must face the manpower shortage problem in the Judiciary squarely. I wish to say something to the Judiciary. I believe they should also be watching the live broadcast. I have been the Chairman of the Panel on Administration of Justice and Legal Services of the Legislative Council for several years. We have discussed the problem of insufficient judicial manpower every year. We hope that the Judiciary can proactively improve its recruitment system and provide more training. There are three major law schools in Hong Kong. Many law school graduates have worked for ten years, not just five years … they are qualified to be a magistrate after five years … but they do not stand a chance or they do not know how 30 LEGISLATIVE COUNCIL ― 14 October 2020 because the system still counts on internal recommendation. This has led to the long-standing manpower shortage in the industry. It is better to spend more money on the recruitment, so that young people who are dedicated to defending the rule of law of Hong Kong can join the Judiciary to clear the huge backlog together. Do not procrastinate any longer. A dedicated court can be set up to hear these cases.

Hong Kong is famous for its slow speed. As Mr Tony TSE said just now, people have no money for lawsuits unless they are granted legal aids; otherwise, they would rather give up the idea. The middle class has been whining because only the poorest and the richest, also the illegal immigrants and torture claimants, can afford to take matters to the court.

I repeat. Justice delayed is justice denied, and this makes everyone suffer. Insufficient judges will affect the operation of other courts. Many people have little knowledge about the principle of law. They, including young people, think that they have not broken the law. Only when they are sent to the prison do they realize that achieving justice by violating the law actually means breaking the law and they will be imprisoned. Please expeditiously process the cases pending at the Court of Final Appeal. This large backlog will delay the delivery of judgment at the Court of Final Appeal.

President, the rule of law is the golden seal of Hong Kong. If court cases are frequently postponed and accumulated, people will lose their faith in the system. This will be the greatest loss to Hong Kong.

With these remarks, President, I support the Bill.

MR LAM CHEUK-TING (in Cantonese): President, I speak on behalf of the Democratic Party to voice our objection to the amendments proposed under the Statute Law (Miscellaneous Provisions) Bill 2019 ("the Bill").

President, I have listened very attentively to the speeches made respectively just now by Mr Tony TSE and Dr Priscilla LEUNG. Mr Tony TSE has spent a total of two minutes criticizing what he referred to as the so-called "mutual destruction camp", and instead of taking two minutes to respond, I will do so in just a minute or so. Who is the "mother of mutual destruction" in Hong Kong? Carrie LAM and the royalists are actually the ones who should take the LEGISLATIVE COUNCIL ― 14 October 2020 31 blame, and Hong Kong would not have been in the current predicament had they not attempted to force through the "extradition to China bill" last year, which had ruined the territories beyond redemption? In his capacity as the Vice-Chairman of the Independent Police Complaints Council ("IPCC"), what exactly has Mr Tony TSE done in this respect? He has only condoned police brutality and abuse of power …

PRESIDENT (in Cantonese): Mr LAM Cheuk-ting, I would like to remind you that Members shall face the President when they speak at meetings of the Legislative Council. Please face me while you are speaking.

MR LAM CHEUK-TING (in Cantonese): President, I am now addressing you and severely criticizing Mr Tony TSE. As the Vice-Chairman of IPCC, he has repeatedly condoned the abuse of power and use of violence by police officers, and has completely failed to perform his monitoring role. Mr Tony TSE is certainly to blame for the current difficult situation facing Hong Kong. President, my criticism will end here.

President, I then heard a media report cited by Dr Priscilla LEUNG that certain claimants might have been involved in a serious criminal case which occurred in Whampoa area, the identity of the offenders concerned could not be ascertained in the end and the case, according to her, was not pursuable as a result. Given that the identities of the offenders could not be ascertained, how could she claim that the relevant offence was committed by some "bogus refugees" as she called them? All these remarks were made by Dr Priscilla LEUNG, who on the one hand claimed that some "bogus refugees" might have been involved in the case, while admitted on the other hand that the identities of the offenders were unknown. Such being the case, on what basis did she draw such a conclusion? Dr Priscilla LEUNG then went on to say that boatloads of "bogus refugees" had sailed to Hong Kong, but if this was really the case, why did the Police not conduct aerial surveillance operations jointly with the Government Flying Service on a frequent basis through the deployment of helicopters, so as to intercept these boats?

(A mobile phone went off in the Chamber)

32 LEGISLATIVE COUNCIL ― 14 October 2020

PRESIDENT (in Cantonese): Will Secretariat staff please check and see whose mobile phone is going off.

MR LAM CHEUK-TING (in Cantonese): There is no need to check. It is Mr Paul TSE and he is still playing with his mobile phone now.

PRESIDENT (in Cantonese): Will Members please switch their mobile phones to silent mode. Mr LAM Cheuk-ting, please continue with your speech.

MR LAM CHEUK-TING (in Cantonese): If there were really boatloads of "bogus refugees" coming to Hong Kong, does it mean that the Police, its Marine Region and Government Flying Service of Hong Kong are totally useless? If so, there should have been news reports about this …

PRESIDENT (in Cantonese): Mr LAM Cheuk-ting, please return to the subject of the Second Reading debate on the Statute Law (Miscellaneous Provisions) Bill 2019.

MR LAM CHEUK-TING (in Cantonese): President, the royalists often argue that the most important reason behind the introduction of the legislative amendments under discussion is the current huge backlog of court cases, especially non-refoulement claims involving "bogus refugees" as they have called them. I would therefore like to talk about their rationale for putting the blame on these so-called "bogus refugees". This rationale was advanced by them and I am just trying to refute it.

President, let me go back to talk about the proposed legislative amendments. Under the current proposal, the number of Justices of Appeal ("JAs") will be reduced from three to two ("two-JA bench") with a view to achieving a slight saving of manpower and speeding up the processing of such cases. However, what is the major place of origin for claimants of these cases? A similar question was also raised by the royalists. Mr Holden CHOW raised a question in March 2017 about the places from where these claimants came, and it turned out that Mainland of China ranked first. If there were so many "bogus LEGISLATIVE COUNCIL ― 14 October 2020 33 refugees" coming from Mainland of China, we should ask the Mainland Government whether it had guarded its border properly. If these claimants were really "bogus refugees", they should have been intercepted in the border area of Mainland of China, or were they genuine refugees trying to escape from political persecution in the Mainland? It can be noted from the breakdown by place of origin that refugees coming from China have lodged the greatest number of claims.

The Democratic Party has all along noted with concern the arguments presented by the royalists about the so-called "bogus refugees". As a matter of fact, Hong Kong was faced with the problem of a large influx of Vietnamese boat people as early as in the 1980s, and the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment ("the Convention") became applicable to Hong Kong in 1992. In the judgment handed down by the Court of Final Appeal on an appeal case in 2004, it was pointed out that as the decision made in respect of a claim lodged under the Convention might have bearings on the life safety of the claimant, who might lose his/her basic human right to protection from torture, high standards of fairness must be demanded in the making of such decision. It can thus be seen that with regard to the provision of assistance to asylum seekers, Hong Kong must honour its legal and moral obligations, and this is also the responsibility of Hong Kong as an international city.

The Government implemented the unified screening mechanism in 2014 and the Immigration Department is responsible for assessing and determining such claims, and only claimants of substantiated claims will be referred to the United Nations High Commissioner for Refugees for recognition as refugees. As we can see, the number of substantiated claims over the past years has remained at a very low level. As a result, the royalists consider claimants of unsubstantiated claims "bogus refugees". However, from another perspective, we can also argue that the authorities have set an unreasonably high threshold.

President, the claimant involved in a previous case had subsequently filed an appeal and as revealed from the court information, officials of the Hong Kong Government had made reference to some wrong information provided in the Wikipedia website while assessing the claim, thus making a mistake in establishing the country of origin for that claimant. When handling the case in 2019, the court found that as a result of using the erroneous information in the Wikipedia website, the Torture Claims Appeal Board of the Security Bureau had 34 LEGISLATIVE COUNCIL ― 14 October 2020 failed to accurately assess and determine the claim in question. The court ruling also revealed that the officers in charge of the assessment and determination of the claim had adopted a hostile attitude towards the claimant and were negligent in their duties, thus making the fairness of the assessment process questionable. The claimant had of course won the appeal case at last.

With regard to refugee claims that we are now talking about, I wish to point out that the backlog of such cases is in fact often caused by the problems with the assessment and determination mechanism adopted by the Hong Kong Government. Moreover, the royalist Members kept saying just now that the Judiciary had been put under immense pressure to hear these cases, and a large number of cases are pending trial. Mr Tony TSE also mentioned that in respect of the "anti-extradition to China" movement over the past year, law enforcement agencies or the Department of Justice were now stepping up their work to institute prosecutions. However, are such prosecutions fair? How many extremely ridiculous prosecutions have we witnessed in the past year?

The case of Miss Jackie CHEN, a member of Battlefield Social Workers, was brought to the court for trial earlier. She was charged for rioting as she went to the front line of protesting activities calling on police officers to keep calm and restrain themselves. Does Mr Tony TSE know what ruling has the court eventually made? The court ruled that this case did not even warrant a charge of unlawful assembly, let alone rioting. "No case to answer" was the verdict returned at last, meaning that …

PRESIDENT (in Cantonese): Mr LAM Cheuk-ting, please return to the subject of this debate.

MR LAM CHEUK-TING (in Cantonese): I am speaking on the subject. The verdict of "no case to answer" implies that the charge is completely groundless. In other words, the defendants need not to defend themselves in prosecutions instituted at will.

PRESIDENT (in Cantonese): Mr LAM Cheuk-ting, please return to the subject of this debate.

LEGISLATIVE COUNCIL ― 14 October 2020 35

MR LAM CHEUK-TING (in Cantonese): President, I have to cite an example to illustrate how serious the problem of arbitrary prosecutions is in Hong Kong at present.

PRESIDENT (in Cantonese): The Bill under debate is not about arbitrary prosecutions. It seeks to amend the High Court Ordinance (Cap. 4), so please return to the subject of this debate.

MR LAM CHEUK-TING (in Cantonese): I of course understand what the Bill is about but as mentioned just now, Dr Priscilla LEUNG and Mr Tony TSE repeatedly commented on the movement of opposition to the proposed legislative amendments of the Fugitive Offenders Ordinance and various prosecution issues, yet you did not ask them to return to the subject of the debate.

PRESIDENT (in Cantonese): They have only spent very little time on such issues, but you have used most of your speaking time talking about torture claims and other examples.

MR LAM CHEUK-TING (in Cantonese): Please point out how much time I have used.

PRESIDENT (in Cantonese): If you do not return to the subject of this debate, I will have no alternative but to stop you from speaking …

MR LAM CHEUK-TING (in Cantonese): Dr Priscilla LEUNG has also talked about torture claims, has she not? You have always adopted a double standard.

PRESIDENT (in Cantonese): This is my final warning to you. If you do not return to the subject of this debate, I will stop you from speaking. Please return to the subject of this debate.

36 LEGISLATIVE COUNCIL ― 14 October 2020

MR LAM CHEUK-TING (in Cantonese): Andrew LEUNG, you have all along applied a double standard over the past four years, and I have already expected that there would be no exception in the coming year.

The current huge backlog of court cases can actually be attributed to the institution of indiscriminate prosecutions by the Department of Justice. How many police officers testifying in court have been criticized by trial judges for giving unreliable evidence, covering up lies with other lies and being self-contradictory, it is obvious to us.

President, with regard to the Bill itself, the most important task now is to address the pressure brought about by claim cases at source. By doing so, court waiting time can be shortened and there will be no need to amend the law. Hence, what should we do to relieve pressure in this respect? First of all, Mainland of China is the biggest source of "bogus refugees" as the royalists have called them, and in this connection, the Mainland authorities should be asked to intercept these so-called "bogus refugees", but there is no reason to stop genuine refugees from lodging their claims. Secondly, there should be no more arbitrary arrests, indiscriminate prosecutions and slandering. Prosecutions should be instituted only when there is sufficient evidence, but slandering those who should not be charged by calling a stag a horse will certainly result in a huge backlog of court cases. It will of course waste time if an appeal is filed after unsuccessful prosecution and follow-up actions are taken to pursue the case.

President, I would also like to point out that when taking forward the current legislative amendment exercise, extra caution should be exercised so as to avoid making the speeding up of the handling of claim cases its sole purpose. Efficiency is not everything for the Judiciary of Hong Kong because it is not efficiency but the pursuit of justice which is the most important thing. If the courts care about efficiency only and try to expedite the processing of such cases blindly as in the case of a factory which rushes the production process to meet a deadline, the Judiciary of Hong Kong will lose its characteristics. We should ensure that every case would be given the chance to receive a fair trial. Will the substitution of a three-Judge bench by a two-Judge bench really expedite the relevant procedures? Will the procedural justice of the courts be undermined as a result?

The reason for a three-Judge bench in the past was to facilitate a 2:1 judgment. With the introduction of the proposed amendment, a dispute will inevitably arise when the two judges have made different decisions, will this be LEGISLATIVE COUNCIL ― 14 October 2020 37 convincing to the claimant concerned? This will only lead to the filing of an appeal by the claimant. The Hong Kong Bar Association therefore pointed out in June 2019 that careful consideration should be given in this respect to ensure that when implementing a stop-gap measure to speed up processing of non-refoulement claims, a balance should be struck between safeguarding the integrity of court procedures and ensuring the adoption of highly impartial standards.

President, lastly, the royalists just now criticized Mr HUI Chi-fung for his filibuster. However, in order to prevent the passage of draconian laws as well as the tyranny of the Government in the Legislative Council, we will try our best to do as much as we can because this is our responsibility.

PRESIDENT (in Cantonese): Mr Kenneth LEUNG, please speak.

(Mr Tony TSE indicated his wish to raise a point of order)

PRESIDENT (in Cantonese): Mr Tony TSE, what is your point of order?

MR TONY TSE (in Cantonese): President, I would like to seek your permission to make a clarification in response to Mr LAM Cheuk-ting's smears against me just now.

PRESIDENT (in Cantonese): What smears has he made against you?

MR TONY TSE (in Cantonese): He accused me just now of being biased in favour of the Police in my capacity as a vice-chairman of the Independent Police Complaints Council. I wish to make a clarification.

(Some Members spoke loudly from their seats)

PRESIDENT (in Cantonese): Regarding the content of your speech, there will be opportunities for Members to make clarifications.

38 LEGISLATIVE COUNCIL ― 14 October 2020

MR TONY TSE (in Cantonese): President, I wish to clarify that his accusations are utterly nonsensical and unsubstantiated.

PRESIDENT (in Cantonese): Please sit down.

Mr Kenneth LEUNG, please speak.

MR KENNETH LEUNG (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): Mr Kenneth LEUNG, please speak.

MR KENNETH LEUNG (in Cantonese): President, the amendment to the Statute Law (Miscellaneous Provisions) Bill 2019 ("the Bill") seeks to make latest amendments to various Ordinances, including making miscellaneous amendments to the High Court Ordinance (Cap. 4) ("the Ordinance") and the Interpretation and General Clauses Ordinance (Cap. 1). I think the amendments most worthy of discussion are those related to the Ordinance, which have also been mentioned by a number of Members.

According to the Legislative Council Brief concerned, the Department of Justice ("DoJ") points out that there has been a rapid surge in civil caseloads in recent years, particularly those initiated by way of judicial review ("JR") for cases stemming from non-refoulement claims. Therefore, to ensure that all cases are handled as expeditiously as is reasonably practicable, the Judiciary proposes three amendments to the Ordinance: First, it is to amend section 34B(4) of the Ordinance to extend the use of a 2-Judge bench of the Court of Appeal ("CA") (i.e. "2-Judge CA") to determine the following categories of cases, including applications for leave to appeal to the Court of Final Appeal ("CFA") against the LEGISLATIVE COUNCIL ― 14 October 2020 39 decisions made by CA consisting of less than three Justices of Appeal; and appeals against the decisions of the Court of First Instance ("CFI") to refuse to grant leave to apply for JR or to grant such leave on terms.

Second, it is to amend section 34B(5) of the Ordinance so that when the 2-Judge CA in various types of proceedings cannot reach a unanimous decision, in addition to a party being allowed to apply to re-argue the case before a 3-Judge CA, the Court may also make such an order on its own motion.

As regards the third important amendment, it is to amend sections 4(2) and 5(2) of the Ordinance to clarify that an additional judge in CFI or CA has the power to dispose of cases on paper without physically sitting in court.

President, in fact, at the meeting of the Panel on Administration of Justice and Legal Services on 24 June last year, the representative for the Hong Kong Bar Association already highlighted that this amendment exercise would have an impact on all JR cases, and reminded the authorities to consider carefully before putting the amendments concerned in place with a view to ensuring that a balance between efficiency and justice could be attained.

From the cumulative number of cases concerning non-refoulement claims provided by the Immigration Department, we notice that there were 9 618 cases at the end of 2014, and the number already rose to 10 922 cases in 2015. However, after the implementation of the unified screening mechanism by the authorities, the number of backlog cases has gradually been reduced. For example, at the end of 2016, the cumulative number of cases was already reduced to 9 981. In 2019, the number was even dropped to 266 cases. During the period between January and September 2020, the cumulative number of cases was reduced to 298, a plunge of over 90% from the number during the peak period.

One of the Government's reasons for proposing these amendments is surely due to the huge number of backlog cases and the lengthy processing time. However, after introducing different administrative procedures by various government departments, the number of these cases has already dropped to a rather low level. Hence under such circumstances, I do not foresee that the current low number of cases will ever go up again in the future. Therefore, in view of the efforts to strike a balance between the two factors of efficiency and justice, I fail to see the reason why the number of Justices of Appeal has to be 40 LEGISLATIVE COUNCIL ― 14 October 2020 amended from three to two. Is the existing regime genuinely totally worthless and irrational? As stipulated in section 34B of the Ordinance, CA shall be duly constituted for the purpose of exercising any of its civil jurisdiction if it consists of an uneven number of Justices of Appeal not less than three. In my view, this provision was initially laid down with reference to the constitution of CAs in various common law jurisdictions in the globe as well as to some legal justifications. Thus, why does the Ordinance have to be amended because of a surge in related caseloads? This argument does not hold water.

Why did I say earlier that the number of these cases might continue to be on the low side? Let us look at the present statistics of the cases. Which are the major source countries of the backlog cases? Among them, Pakistan ranks first, Yemen ranks second, Rwanda ranks third and Somalia ranks fourth. In fact, the three countries of Yemen, Rwanda and Somalia are being sanctioned by the United Nations, and Hong Kong is also currently implementing these sanctions. Therefore, we have reasons to believe that these torture claimants filed their claims on humanitarian or political grounds. Besides, since the authorities have already introduced various administrative measures over the past few years, the so-called cases of "non-genuine refugees" who came to Hong Kong because of the thriving economy of Hong Kong, as mentioned by some political parties, have already been greatly reduced.

Moreover, President, there were various social movements last year, including the anti-extradition law amendment movement, while the Law of the People's Republic of China on Safeguarding National Security in the Hong Kong Special Administrative Region has taken effect this year. So how many people will still want to come to Hong Kong? In the past, refugees wanted to come to Hong Kong because there were basic human rights protection, freedom of speech and freedom of assembly, as well as employment opportunities. But what has Hong Kong become? It is no longer a place for receiving refugees. On the contrary, it may become a refugee-exporting place. Hence, I do not think it is still necessary to introduce this amendment nowadays.

In regard to the issues of manpower shortage of the Judiciary and the long waiting time for cases to be heard, is the Government actually putting the cart before the horse? Can cases be simply heard by one judge in CFA then? Is it feasible? It is of course infeasible, because this is a matter concerning procedural justice. Not only has procedural justice to be done, but genuine procedural justice in our judicial system also has to be seen by the public and the LEGISLATIVE COUNCIL ― 14 October 2020 41 international community to be done. Admittedly, efficiency is a factor that we also have to consider. Although a colleague has said that justice delayed is justice denied, how actually is "delayed" defined?

In finding a resolution to the problem of lengthy waiting time for hearing of cases or shortage in judicial manpower, we need to tackle the problem at its root rather than putting the cart before the horse. President, first of all, why are not so many people interested in joining the Judiciary? The remuneration is one of the reasons. Secondly, magistrates or district court judges are prone to personal attacks and doxxing nowadays, and their lives may be even under threat. The personnel of the Judiciary are supposed to play a low-key and neutral role, but they are now being criticized every day. Even though we can criticize the court judgment on a certain case, like criticizing from the aspects of obiter dicta and ratio decidendi, or commenting on the court verdict if we have grounds, we cannot launch personal attacks on judges. Why does DoJ not take any action despite the many personal attacks on judges or magistrates recently?

Besides, why do courts need to deal with so many cases? Are most of these cases frivolous? Why is there a sudden surge in this kind of cases? Do our Director of Public Prosecutions and DoJ have any established policy in regard to criminal prosecutions? In some cases when the prima facie evidence is basically insufficient for convicting the defendants, why do these cases still have to be followed up? Why do DoJ and the Director of Public Prosecutions still have to delve into those frivolous cases? Is it due to the consideration of factors like the rule of law or the manifestation of justice, or is it because of some political reasons? It is beyond my comprehension that the Secretary for Justice would choose to go to Shenzhen instead of attending this very important Council meeting. This question precisely needs an answer from the Secretary for Justice who, however, is not present. President, I express my utmost regret over this.

As regards the comment made by some colleagues that certain people from other places come to Hong Kong for economic gains and they are not genuine refugees, I would like to ask Members to read carefully the Annual Reports of Justice Centre Hong Kong for these two years. In Hong Kong, in fact very few people or less than 1% of claimants can obtain the right of abode in Hong Kong through non-refoulement claims. We can see some very sad stories from the successful cases. I read a story from the report last year. In a family of four, the father had become a refugee in Europe, while the mother and the children had come to Hong Kong, and the family members were thus separated. After going 42 LEGISLATIVE COUNCIL ― 14 October 2020 through unified screening, appeal procedure and JR in the court, this case was eventually handled in a fair manner. This is a very exceptional case of success in which family members can finally be reunited. After staying in Hong Kong for a period of time, the mother and the children were finally able to be reunited with the father in Europe.

We must point out that all the cases that we are now handling involve some countries which have very poor human rights records, for example, Yemen, Rwanda and Somalia, instead of cases concerning economic refugees. Therefore, we have to spend time and efforts to assist these refugees who are totally helpless. President, they are completely helpless, and there are not thousands or tens of thousands of such cases but only a few hundred. If these cases can be handled in a fair manner, a lot of lives, including the lives of children, can be saved. President, it is nothing to joke about. In addition to expediting the processing of these cases, I think the Government should make use of the resources of other non-governmental organizations to help those genuine refugees so that they can adapt to living in Hong Kong during their short stay here.

President, I so submit.

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

MS CLAUDIA MO: Quorum please.

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

(While the summoning bell was ringing, THE PRESIDENT'S DEPUTY, MS STARRY LEE, took the Chair)

(After the summoning bell had been rung, a number of Members returned to the Chamber, but some Members did not return to their seats)

LEGISLATIVE COUNCIL ― 14 October 2020 43

DEPUTY PRESIDENT (in Cantonese): A quorum is now present in the Chamber. Will Members please return to their seats. The meeting now continues.

Ms Claudia MO, please speak.

MS CLAUDIA MO: It must be a huge coincidence that Carrie LAM got summoned up to Shenzhen and had to cancel her Policy Address today. Cancel for today. Could it not be just delayed for one week until next Wednesday? Did you people actually ask her? Of course you did not, you would not dare.

This sudden postponement of her Policy Address is now being scheduled for "hopefully", Carrie LAM said, "until the end of next month". Is it not the most ludicrous arrangement this Council has ever seen? Did the President of this Council object? I doubt it very much. Again, he would not dare. Could he have actually asked Carrie LAM that maybe the Policy Address should come back earlier? He would not dare.

DEPUTY PRESIDENT (in Cantonese): Ms Claudia MO, please come back to the subject of the Second Reading debate on the Statute Law (Miscellaneous Provisions) Bill 2019.

MS CLAUDIA MO: This is not a bloody departure from what we are supposed to be talking about. Do you understand any word I am uttering?

DEPUTY PRESIDENT (in Cantonese): Ms Claudia MO, please come back to the clauses concerned.

MS CLAUDIA MO: Two minutes were allowed for each legislator at least to talk about what should have happened today.

This Legislature is supposed to make laws, to pass laws. How did that National Security Law become effective in Hong Kong? It clearly bypassed this 44 LEGISLATIVE COUNCIL ― 14 October 2020

Legislature. Today, not only did we not have Carrie LAM, we also did not even have the Secretary for Justice in here because she also was summoned to Beijing …

DEPUTY PRESIDENT (in Cantonese): Ms Claudia MO, I already reminded you just now. If you do not come back to the Statute Law (Miscellaneous Provisions) Bill 2019, I would stop you. Please come back to the subject of the Second Reading debate on the Statute Law (Miscellaneous Provisions) Bill 2019 immediately.

MS CLAUDIA MO: … It has been two minutes … So, I understand there is no separation of powers in Hong Kong and you would not dare to address that problem either. Okay! What Tony TSE and … what is her name? Priscilla LAW has said, so … oh no, you are quite right, Priscilla LEUNG. How could I have got that surname wrong? Those people and their likes can only believe what the authorities have to tell them because they could not even believe in themselves. They are just very gullible spongers.

Now, we are talking about these miscellaneous provisions business. It is an omnibus bill which makes amendments to a number of ordinances. And basically, they are all very technical and supposedly uncontroversial amendments. I did not just flick through the documents. I had a thorough read of what is in there. I mean things like we repeal the word "sitting" and substitute it with the word "acting". I mean, Jesus, God knows what that means? Never mind. I have no legal training whatsoever.

But, as a layman, as I go through the amendments to the High Court Ordinance (Cap. 4), I was then rather taken aback. They seek to essentially cut down the number of judges sitting at the court to hear cases essentially stemming from non‑refoulement claims. There is a huge backlog, so we have to speed things up. We need to expedite things.

Okay, so I look at the original wordings of that ordinance and it says something like the court consisting of three or more Justices of Appeal. Now it is three or more. Originally it is three plus. It could be more than three. And now, you are going to cut it down to two. This just does not sound right.

LEGISLATIVE COUNCIL ― 14 October 2020 45

We are supposed to be talking about the reasonable practical feasible amendments but this is not just an administrative exercise. We are also talking about justice, and all the way along this argument. They claim there is a huge backlog. The sheer volume of the suits and the cases that are sitting, awaiting hearing is just too huge. But do we actually sacrifice a set mechanism and established way of due diligence to speed? Is speed everything? This is the same with this Council, right? Oh, let us just speed up things. Let everything get passed because that is what the Government wants.

And talking about backlog, this is the most curious because at the moment, at our court, the huge number of cases involves charges of rioting. Even a layman like me could read that some of the charges were so frivolous, so arbitrary. You do not have to be at the scene, on-site to be charged with rioting these days. What are you doing about that sort of backlogs?

The Department of Justice owes Hong Kong people a huge explanation. You have to explain yourself clearly how you are going to deal with that sort of criminal case backlogs. Here, we are talking about civil suits. Okay, fine, I know. Are you not trying to jam Hong Kong's courts at the same time with all those clearly arbitrary charges? Or maybe you are not. You have no intention of jamming the court. You just want to use the Judiciary as your political weapon, do you not?

Now I read through our Legislative Council paper prepared by the Secretariat very thoroughly. It is such a thorough, nicely worded and clearly precise and concise document. There are justifications to all these amendments. The general wordings say: "There is a need to introduce an omnibus bill to make miscellaneous amendments to various Ordinances." Why? Because, while on one hand, these amendments are not all minor, technical and non-controversial, they are "largely" minor, technical and non-controversial. It says "largely" only, not every single one of them, Okay? So, it says these amendments "are useful for the purpose of updating or improving the relevant legislation". Amendments are of course meant to be improving, to better existing ordinances, existing laws, but this High Court Ordinance (Cap. 4) amendment thing is really quite controversial as you have heard a number of my democratic colleagues have pointed out.

Of course the Secretariat of this Council would put down the Government line saying: "The rapid surge in civil caseloads in recent years, particularly those initiated by way of judicial review for cases stemming from non-refoulement 46 LEGISLATIVE COUNCIL ― 14 October 2020 claims, has imposed great pressure on the workload of the Judiciary". Can I go back to what I just said? You are talking about this huge workload of the Judiciary. Why did you keep adding on then? What on earth are you doing with all those charges being thrown about around town, like they are little daggers you can use?

Only yesterday … no, the day before yesterday, I received by slow mail a letter from the Department of Justice explaining why they would not take to court somebody who had thrown at least 39 animals out of the window. No charge. After more than a month, the Department of Justice letter gave me a line saying, in Chinese only of course, something to the effect … the overall evidence does not present enough chance for successful conviction, so no case. Honestly, this is just incredible, because you think you cannot win, and there is no way of getting an absolutely conviction easily, then you forget it. But what about all those people who are being charged with rioting and some of them were not even there, I mean the supposed riot scene, but you throw them this particular charge. It is such an absurd department you are operating.

Now, come back to these non-refoulement claims. "Refoulement" is essentially the forcible return of refugees or asylum seekers to their country of origin or a place where they are very likely to be subjected to persecution. It is quite ironic actually, because if you heard what Kenneth LEUNG had to say just now, he was slightly baffled in this "savage" time. He did not use this term, but he effectively said Hong Kong as a destination for asylum seekers or refugees is quite absurd because the tables have been turned. Hong Kong will or can easily become a source of refugees for other countries.

Now, about the controversy of these non-refoulement claims, at least our Secretariat put down under the subheading "Public Consultation" that The Law Society of Hong Kong ("The Law Society") and the Hong Kong Bar Association ("HKBA") have both been consulted, and of course as usual, The Law Society had no objection basically. It indicated general support for the proposed amendments. Fine, okay. But then, HKBA, aha, watch out, HKBA initially queried whether there could be other alternative measures that could alleviate the workload of the Judiciary and whether the high standards of fairness would be affected by the proposed amendments. Of course, it is all about this asylum seeker business, right? And the Government explained to HKBA and tried to convince them that they needed to streamline court procedures and promote efficiency, judicial efficiency.

LEGISLATIVE COUNCIL ― 14 October 2020 47

Now, the conclusion is that HKBA thereafter indicated that it had no further comment. It does not say that HKBA endorses, agrees with this amendment. I do not know whether this is just a legal leave or that would have indicated very strong reservation on the part of HKBA. But it is unsettling if HKBA does not give it a full support, I as layman would prefer to sit back and think again.

Thank you.

DEPUTY PRESIDENT (in Cantonese): Ms YUNG Hoi-yan, please speak.

(Mr SHIU Ka-chun indicated his wish to raise a point of order)

DEPUTY PRESIDENT (in Cantonese): Mr SHIU Ka-chun, what is your point of order?

MR SHIU KA-CHUN (in Cantonese): I request a headcount.

DEPUTY PRESIDENT (in Cantonese): Mr SHIU Ka-chun 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)

DEPUTY PRESIDENT (in Cantonese): A quorum is present in the Chamber. The meeting now continues.

Ms YUNG Hoi-yan, please speak.

48 LEGISLATIVE COUNCIL ― 14 October 2020

MS YUNG HOI-YAN (in Cantonese): Deputy President, first I would like to declare that I have dealt with court cases in my capacity as a barrister, including cases of non-refoulement claims. We are discussing the Statute Law (Miscellaneous Provisions) Bill 2019 ("the Bill"). The Bill mainly involves four groups of proposed amendments, and the rest are mostly minor technical and non-controversial amendments. I am more concerned about the amendment to the High Court Ordinance (Cap. 4) which seeks to amend section 34B of Cap. 4. That is, to extend the use of a two-Judge bench of the Court of Appeal ("CA") to hear and determine (i) applications for leave to the Court of Final Appeal ("CFA") against the decisions made by CA consisting of less than three Justices of Appeal; and (ii) appeals against decisions made by the Court of First Instance ("CFI") to refuse to grant leave to apply for judicial review ("JR") or to grant such leave on terms, pursuant to Order 53, rule 3(4) of the Rules of the High Court (Cap. 4A) (clauses 6(1) and 6(2)). The second point is also very important and that is, when such a bench of the CA cannot reach a unanimous decision, in addition to a party being allowed to apply to re-argue the case before an uneven number of Justices of Appeal not less than three, the Court may also make such an order on its own motion.

Just now a number of Members have expressed concern about the need to strike a balance between efficiency and justice. I consider that the amendments this time around can help to improve the efficiency with the aim of enabling applicants and appellants to seek justice. Why the Government proposes the amendments this time around? As we can see, the Government has explained that the rapid surge in civil caseloads in recent years, particularly JR cases involving non-refoulement claims, has imposed great pressure on the workload of the Judiciary, in particular for the High Court (comprising CFI and CA) and CFA. Therefore, the Government has proposed the amendments just read out by me.

I wish to revisit … actually recently … why are we talking about the heavy caseload the Judiciary has to deal with and what is the scale as far as the numbers are concerned? The Government has provided us with the relevant figures. As to the number of applications for leave to apply for JR at CFI of the High Court, they soared from 228 cases in 2016 to a total of 3 889 cases in 2019, 3 727 of which involved non-refoulement claims, while 162 were cases which did not involve non-refoulement claims. We can see the great disparity between the two groups of cases, more than 3 700 cases involved non-refoulement claims, while those which did not involve non-refoulement claims numbered just a little more than 160. Of course regarding the remaining civil appeal cases at CA of the LEGISLATIVE COUNCIL ― 14 October 2020 49

High Court, 597 are pending in 2019 … or still being dealt with, 351 of which involve non-refoulement claims. The leave applications to CFA total 426 cases, 388 of which involve non-refoulement claims. In other words, most of such applications involve non-refoulement claims. For that reason, I understand why the Government has proposed the amendments which it considers necessary for improving the efficiency of the Judiciary and enabling appellants to seek justice.

Why the justice we have mentioned just now is so important? We have been emphasizing all along that the number of non-refoulement claims being substantiated was actually small. If we take a look at the figures from 2009 to 2020, of a total of 22 737 non-refoulement claims which were examined by the Immigration Department ("ImmD"), only 231 were substantiated. We hope that we can single them out and help these 231 people, so that they will not be sent back to their places of origin, that is, the places that pose threat to them. I also understand the difficulties faced by these non-refoulement claimants when they are staying in Hong Kong. It is because I have dealt with such cases for seven to eight years out of the past decade or so. These people are not allowed to work in Hong Kong. What can they do if they are not permitted to work here? I also note that the Government has earmarked as much as $700 million for relief assistance to these people in the 2020 budget. This is a huge sum. But I also understand that because they are not allowed to work in Hong Kong, the Government has to support them, right? It is a humanitarian matter. Nevertheless, we also need to understand that some people would have no alternative but be forced to become robbers or rapists in times of financial difficulties, and many of such crimes have been committed as a result. We understand the problems they face in Hong Kong and we understand their difficulties. Why should we improve the efficiency? Just because we must consider how to help them in a humane way to deal with the problems they face while in Hong Kong. We hope to help them seek justice through improved efficiency.

Deputy President, actually I have seen much effort by ImmD and the Security Bureau over the past several years in this area, including shortening their application time and improving the entire process, in order to shorten their stay in Hong Kong. Perhaps members of the public know very little about the procedures involved … or how long they need to make an application. For example, we will receive their application forms … they are allowed to fill in the application form in 28 days. After they have filled in the forms, they have to submit them to ImmD. ImmD needs time to examine them and then dates of 50 LEGISLATIVE COUNCIL ― 14 October 2020 appointments for interview will be fixed―that is, the screening interview. Sometime after the interview, ImmD will make a decision and inform them of the results of their non-refoulement claims. In case ImmD informs them that they are not allowed to stay in Hong Kong, that is, their claims are not substantiated, they may file an appeal in 14 days. Of course such an appeal will not be funded by the public coffers. But before that, they can make use of the services of the lawyers provided by the Government in filling the forms or seeking legal advice, and all such legal costs will be paid by the public coffers. However, the appeals are not funded by the public coffers. That is, they have to seek legal advice or file an appeal at their own expenses. If the appeal is substantiated, that is, they are permitted to stay in Hong Kong, then the case will be closed as they can continue to stay in Hong Kong. But if the appeal is not substantiated, they may proceed with another legal proceeding, that is, to file a JR. In this case, this proceeding is also funded by the public coffers and they can file an appeal in this regard. That is why the entire process may last as long as 10 years from the filling of the form by a claimant to filing a JR to CFA. Members may envisage that the backlogs of more than 3 800 cases pending at CFI of the High Court may drag on for a very long period of time from CFI to CFA, and that is why we need to improve the efficiency. We are not saying that we should make a choice between seeking justice and improving efficiency. That is not the case. Instead, we hope that these cases can be promptly dealt with through improved efficiency in order to render help to all those people in need of relief.

For that reason, I agree with the amendments this time around, that is, the proposed two-Judge bench of the CA, and that they can exercise their judicial power to dispose of cases before them on paper. I consider the proposal fair as it will enable judges to deal with some court procedures in a more cost-effective way. Actually it is nothing new. At present, many court cases have been disposed of on paper. Moreover, I consider that the proposal can help to improve the overall efficiency in disposing of cases.

Deputy President, just now a number of Members have expressed concern about whether or not the building up of backlogs was caused by manpower shortage of the Judiciary and its inability to deal with the backlogs? Actually I agree that at present the Judiciary is facing a problem of manpower shortage, as it has to deal with more and more cases, no matter they are criminal, civil or marital litigations. Even though there are fewer and fewer cases concerning refugees or non-refoulement claims, they still have to deal with the backlogs. However, as far as training is concerned, we need to face it squarely. In the long run, we LEGISLATIVE COUNCIL ― 14 October 2020 51 need to find a way to reduce the waiting time. According to my personal experience, the judgments in some civil cases were not handed down after two or three years. That is, even two years after the cases were heard, no judgments were handed down. This is actually a matter of whether justice has been manifested. If the applicants and appellants cannot obtain an answer after such a long time, what view will they have of our legal system? They may doubt if Hong Kong courts are deliberately making their lives difficult at the time when they need justice or answer but to no avail. For that reason, I hope that the authorities will strike a good balance between reducing the waiting time for dealing with cases and the time taken to deliver judgments. I believe the workload of judges in these days is very heavy. Members should imagine that judges have to deal with cases during daytime and to go through a lot of papers at night. Besides, they need to write judgments and may have to deal with appeal cases or to review cases. Actually the workload of judges is very heavy. For that reason, I think that we should face the problem squarely and consider how to recruit more judicial officers and judges to join the Judiciary. At the same time, I hope that more law school graduates will join the legal profession and fulfil their aspirations with a view to serving the people of Hong Kong.

I visited the Supreme Court of Australia earlier. I was impressed by the technology courts in Australia and I consider that Hong Kong should draw reference from Australia in this respect. Australian lawyers can make use of a rather complete set of video and computer equipment with a high technological standard on their desks. Video conferencing with the defenders is also available. That is, defenders in other states or territories may not need to go to the court for hearings or to face the judge, yet they can be put on trial directly through the video-conferencing system while being kept in detention centres or prison facilities. Actually this practice can help us save a lot of time. Deputy President, you have also witnessed that this year's pandemic has affected Hong Kong and the entire world. The legal profession and the Judiciary have also notified the public at a very early stage that courts would not be open to the public. I am not trying to talk about the impact on lawyers or other people, I think that we should seize this opportunity, learn from the experience and do some soul searching as to how technologies can help to improve our judicial efficiency.

I hope that the Judiciary will make use of more information technology ("IT") in court and e-services, so as to keep abreast of the times and reduce the use of paper for the sake of environmental protection. Besides, it may also 52 LEGISLATIVE COUNCIL ― 14 October 2020 streamline certain judicial process and reduce the time taken to hear cases. I have noted that paperless trials are conducted in some other places in the world and I hope that the authorities will provide Hong Kong's lawyers and judges with the relevant training, so that more people will make use of innovative means to save court time. However, I wish to remind the Government that since the use of IT in court is a new measure and arrangement, therefore the changes made in this area as well as the subsequent administrative instructions given by the Judiciary may cause a slowdown in such process due to inadequate experience. I hope that the Government will enhance the training for the judicial sector in this regard, and provide judicial officers with adequate on-the-job training. In the meantime, computer software should make the corresponding changes. It is because I believe that the Judiciary has just replaced a batch of Windows 95 computers recently. I hope that the judicial sector will make further progress in this area with a view to improving the efficiency and assisting the applicants and appellants in seeking justice. I support the proposed amendments.

Deputy President, I so submit.

MR SHIU KA-CHUN (in Cantonese): I object to the proposed amendments under discussion. I must first point out that contrary to the statement made in paragraph 2 of the Report of the Bills Committee on Statute Law (Miscellaneous Provisions) Bill 2019 published on 19 June 2020, the Statute Law (Miscellaneous Provisions) Bill 2019 ("the Bill") is not "an omnibus bill proposing miscellaneous amendments which are minor, technical and non-controversial to various Ordinances, including the High Court Ordinance (Cap. 4) and the Interpretation and General Clauses Ordinance (Cap. 1)". On the contrary, the Bill has brought about significant and controversial implications through the introduction of minor and technical amendments.

As mentioned by many fellow Members, the most controversial part of the Bill is the Government's proposal to amend the High Court Ordinance to the effect that instead of three Justices of Appeal ("JA"), two JAs will hear applications for leave for judicial review that are within the jurisdiction of the Court of Appeal. The Administration explained that as a result of the rapid surge in civil caseloads in recent years, especially the marked increase in the number of judicial review cases involving non-refoulement claims, the workload of the High Court (comprising the Court of First Instance and the Court of Appeal) and the Court of Final Appeal had become increasingly heavy. The LEGISLATIVE COUNCIL ― 14 October 2020 53

Government is therefore of the opinion that the proposed amendments will facilitate the processing of cases, including judicial review cases involving non-refoulement claims, and increase the flexibility in deployment of judicial manpower in taking up other court cases.

Some Members have previously queried how much time can actually be reduced for processing such cases after the introduction of the proposed amendments? Can the processing time really be, as suggested by Ms YUNG, shortened from 10 years to a few months or a year or so? There have also been queries that as the number of judicial review cases involving non-refoulement claims has already passed its peak, is it an opportune time to introduce the proposed amendments now, or is this just an excuse? The Government replied that the number of cases filed, including that of applications for leave to apply for judicial review, was beyond the control of the Judiciary, but the amendments should have a positive effect in alleviating the overall workload of the court.

I am personally of the view that the Government is using the processing of non-refoulement claims as an excuse to introduce the proposed amendments. Non-refoulement claimants have to seek leave to apply for judicial review once their non-refoulement claims are rejected. There have been problems with the processing of non-refoulement claims by the Immigration Department ("ImmD"), which have resulted in a large number of unsubstantiated non-refoulement claims and made it necessary for claimants to resolve the matter through judicial review.

We must get to the core of the problem and explore the root cause for the backlog of non-refoulement claims. Take a previous case as an example. A claimant fled to Hong Kong from Africa in 2005, and has been stranded in the territory for over 10 years since then. He has attended more than 10 screening interviews, but ImmD staff did not allow his counsel to give an account of his experience of being persecuted on his behalf. During such interviews which usually lasted for several hours, the claimant was not allowed to discuss his case with his counsel, and this has in fact undermined his legal and human rights. Moreover, some human rights lawyers with ample experiences in handling litigation in respect of such claims criticize the sharp difference in the quality of duty lawyer services which are wholly subsidized by the Government, many claimants have not been recognized as refugees. In addition to inadequate legal assistance, poor foreign language skills of some interpreters have also subjected claimants to unfair treatment.

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Hence, as the process adopted for assessing and determining non-refoulement claims is complicated, time-consuming and procedurally unfair, a large number of non-refoulement claims have been rejected, those unsuccessful claimants have to seek judicial review, otherwise, they will be repatriated to their country of origin. They originally planned to lodge a non-refoulement claim and stay in Hong Kong, followed by resettlement in another country which receives refugees, but should their non-refoulement claims be rejected, they may once again be subject to persecution on political, religious and ethnic grounds in their country of origin.

There are many judicial review cases involving non-refoulement claims, and even though applications for judicial review have been made, the legal aid applications of more than 90% of such claimants for seeking judicial review have been rejected, making such cases even more complicated and lengthening the procedures and time needed for processing them in court.

This is not the first time that the Government has used non-refoulement claims to achieve its ulterior motives. For example, on the surface, its withdrawal from the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment ("the Convention") aimed at reducing the number of claimants who come to Hong Kong, but its actual effect has been to deprive Hong Kong people of the right to protection from torture under the Convention. Practically, Hong Kong people have come to realize in the past year how close we have been to the risk of being tortured, and after Hong Kong's withdrawal from the Convention, even the legal framework for safeguarding human rights and monitoring police power and prison administration has been compromised. Hence, the Government is using the processing of non-refoulement claims once again as an excuse to amend the High Court Ordinance this time, I am afraid that it will ultimately affect not just the procedures for handling judicial review cases involving non-refoulement claims but also the procedural justice in all judicial review cases.

According to some members of the legal profession, if the past practice of using three JAs to hear and determine judicial review cases can be maintained, it will help to ensure that these cases are handled prudently. We must handle judicial review cases prudently because in a previous case involving non-refoulement claim, the claim was rejected during the screening process owing to erroneous information concerning the nationality of the claimant. LEGISLATIVE COUNCIL ― 14 October 2020 55

Therefore, the problem should not be attributed to the increase in such claims brought about by the abuse of the non-refoulement claim mechanism, but to the shortcomings of the methods adopted by the SAR Government for processing such claims and its performance in this respect, which have in turn led to an increase in the number of judicial review cases. Instead of tackling the root cause of the problem, the Government has used the handling of claim cases as an excuse to introduce amendments applicable to all judicial review cases, and this will affect all efforts to fight for various legal rights.

Given the low success rate of below 1% for lodging non-refoulement claims, many claimants have been stranded in Hong Kong or detained in the Castle Peak Bay Immigration Centre ("CIC") for a prolonged period of time. Although the processing of judicial review cases can be speeded up following the amendments to the High Court Ordinance, more claimants will face a double whammy when more judicial review applications are rejected: First, the imprudent handling by ImmD of the applications from claimants, secondly, imprudent handling of the applications for judicial review by the court. In other words, they will be subjected to the same treatment for the second time after their first applications have not been handled in a prudent way.

Following the legislative amendments to the High Court Ordinance this time, the judicial review process will be expedited. Will claimants receive greater legal protection and more support, or will they be made even more vulnerable? According to some past studies, after submission of applications, nearly 70% of the claimants had to wait for more than three months for a screening interview, and their screening processes had been repeatedly delayed due to various unforeseen circumstances. As for interview arrangements, screening interviews for 33% of these cases had to be rescheduled due to various reasons, while nearly 70% of the claimants had been absent from such interviews owing to emotional and health problems. The claimants were under both psychological and physical pressure in that they were forced to seek judicial review after their non-refoulement claims were rejected, but they did not get adequate legal support when they applied for judicial review. After the High Court Ordinance is amended in the current exercise, and the judicial review process will be expedited, will that bring genuine improvements to problems previously faced by claimants, such as the absence of duty lawyers to represent them in court or the unavailability of interpreters? This is a key factor in considering whether the legal rights of claimants in the judicial review process have been duly protected.

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More importantly, both non-refoulement claimants and applicants seeking judicial review have been detained in CIC over the recent 10 years, and they have applied for judicial review over the legality of detaining them in CIC, but the courts have repeatedly ruled against their release. After the High Court Ordinance has been amended, will it become even more difficult for claimants detained in CIC to have their non-refoulement claims substantiated through judicial review, thereby securing resettlement in a country receiving refugees? This certainly is worthy of our concern.

The hunger strike in CIC has already been going on for more than 100 days, and quite a number of its participants are non-refoulement claimants and the problem of their unfair treatment in the Centre has still not been effectively resolved. According to the Government, the amendments to the High Court Ordinance this time seek to clear the backlog of judicial review cases involving non-refoulement claims, but in addition to the failure on the part of ImmD to assess and determine such claims in a prudent manner, the claimants are also faced with such problems as insufficient support during the judicial review process and inhumane treatment of them in CIC. Instead of putting the cart before the horse, the Government should tackle the problem at its root by first improving the mechanism for handling non-refoulement claims.

I therefore reiterate my objection to the amendments under the Bill. I so submit.

DEPUTY PRESIDENT (in Cantonese): Mr Dennis KWOK, please speak.

(Mr HUI Chi-fung indicated his wish to raise a point of order)

DEPUTY PRESIDENT (in Cantonese): Mr KWOK, please hold on.

Mr HUI Chi-fung, are you going to raise a point of order?

MR HUI CHI-FUNG (in Cantonese): I request a headcount.

DEPUTY PRESIDENT (in Cantonese): Mr HUI Chi-fung has requested a headcount. LEGISLATIVE COUNCIL ― 14 October 2020 57

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 (in Cantonese): Deputy President, today we are going to discuss the Statute Law (Miscellaneous Provisions) Bill 2019 ("the Bill"). In fact, while discussing the Bill, we should touch on some basic constitutional principles, because we need to understand why today the Legislative Council has to discuss the amendments to the High Court Ordinance (Cap. 4), which is related to the Court, and why Members of the Legislative Council are tasked to discuss how the Court should handle cases. Moreover, the Bill has demonstrated exactly that the constitutional system of Hong Kong is based on the separation of powers. I put it this way because the Chief Executive and a number of Members from the pro-establishment camp stood out and said earlier that there is no separation of powers in Hong Kong. Deputy President, I mean, the Bill is the exact proof that the separation of powers is practised in Hong Kong. At present, the Court has to decide how to handle a case in accordance with the provisions of the High Court Ordinance (Cap. 4). If there is no separation of powers in Hong Kong, we do not need to discuss in such a big way how to amend the Ordinance, and all we need is for the Chief Executive to advise the Judiciary to appoint only one judge, instead of three, or appoint two judges at most, to hear these cases in future, right? Geoffrey MA just needs to respond: "Alright, instruction well received." Then afterwards, all courts just need to appoint one judge to hear each non-refoulement claim case and no appeal will be allowed. Perhaps in a more extreme case, the Chief Executive may advise the Judiciary led by Geoffrey MA that it is not allowed to hear any of these non-refoulement claim cases in future and has to dismiss all of them. In that case, we will not need to amend the legislation. If, as these people say, there is no separation of powers in Hong Kong, then we do not need to amend the so-called statute law at all. It suffices 58 LEGISLATIVE COUNCIL ― 14 October 2020 to give direct instructions to the Judiciary and there is no need for the Legislative Council to amend the legislation. If there is really no separation of powers in Hong Kong, then in future an administrative directive issued by Solicitor General WONG, who is present here, or his superior, the Secretary for Justice, can directly amend the High Court Ordinance without the need to go through the scrutiny of the Legislative Council, as in the case of the Emergency Regulations Ordinance, and afterwards they can further instruct the Judiciary to handle cases accordingly. That is the very situation where the separation of powers is non-existent.

Our ongoing discussion on the Bill precisely embodies the need for the Judiciary to independently exercise its judicial power to interpret the laws of Hong Kong and safeguard some basic human rights in its handling of cases, leaving no room for the executive or any Legislative Council Member present to sit in judgment over them. Since the Judiciary is acting independently, and we Members of the Legislative Council are also exercising our legislative functions independently …

DEPUTY PRESIDENT (in Cantonese): Mr Dennis KWOK, please return to the subject of the Second Reading debate on the Statute Law (Miscellaneous Provisions) Bill 2019.

MR DENNIS KWOK (in Cantonese): I am explaining why … I am talking about this Bill. Chair, which part do you not understand?

DEPUTY PRESIDENT (in Cantonese): I do not consider that Members have necessarily the same understanding of the constitutional basis you are referring to. You have made your point. Please return to the subject of the Second Reading debate on the Statute Law (Miscellaneous Provisions) Bill 2019.

MR DENNIS KWOK (in Cantonese): I have not yet made myself clear. I am just getting warmed up. I am just getting warmed up here. Why do I need to mention such basic constitutional principles as the separation of powers now? It is exactly because this Government, the Secretary for Justice and Members of the LEGISLATIVE COUNCIL ― 14 October 2020 59 pro-establishment camp said that there is no separation of powers in Hong Kong. Chair, if they are right, that is, if there is no separation of powers in Hong Kong, I do not find it necessary for us to discuss this Blue Bill, is it? If there is no separation of powers in Hong Kong, it is unnecessary for us to discuss here whether the Court needs two or three judges to handle the relevant cases in future. A direct request from Solicitor General WONG asking the Chief Executive to issue a directive to the Judiciary will do. There is no need to bother so many people to discuss it in this Council. Deputy President, the reason why I have mentioned this basic logic is precisely because nowadays some people in Hong Kong would simply ignore even the most basic logic and the most basic principle! Under such circumstances, what is the purpose of our discussion on the Bill? In 2006, Dr Priscilla LEUNG …

DEPUTY PRESIDENT (in Cantonese): Mr Dennis KWOK, let me remind you again that the ongoing debate is not about the separation of powers. Please return to the subject of this debate, namely the substance of the Statute Law (Miscellaneous Provisions) Bill 2019.

MR DENNIS KWOK (in Cantonese): Deputy President, which sentence do you not understand? What I am explaining is that, if there is no separation of powers in Hong Kong, why do we need to discuss this Blue Bill? Actually there is no need, because if there is no separation of powers in Hong Kong, we do not need to pass this Bill. Our need to pass this Bill today just goes to show that there is a separation of powers in Hong Kong. This is a very simple argument, but unfortunately, a submission published by the Hong Kong Professionals and Senior Executives Association on 28 November 2006 contains Dr Priscilla LEUNG's view that Hong Kong adopted a constitutional system based on the separation of powers with checks and balances. This is what she said in that very year, which I did not quite understand as I was just a young man in 2006. Why was it possible for someone like Dr Priscilla LEUNG to say that there was a separation of powers in Hong Kong back then? Fast-forward to 2020, 14 years afterwards, why has Hong Kong lost the separation of powers all of a sudden? How can such people as Mr Holden CHOW and Ms Elizabeth QUAT of the Democratic Alliance for the Betterment and Progress of Hong Kong sit in judgment on a judge, accusing the latter of misjudging a case, and even claim that there is no separation of powers in Hong Kong?

60 LEGISLATIVE COUNCIL ― 14 October 2020

DEPUTY PRESIDENT (in Cantonese): Mr Dennis KWOK, I think you have strayed from the subject. You have already spoken for five minutes …

MR DENNIS KWOK (in Cantonese): From my perspective, I have not gone off the topic. I am discussing the Bill. I am discussing why we need to amend …

DEPUTY PRESIDENT (in Cantonese): … please get back to the content of the amendments in the Statute Law (Miscellaneous Provisions) Bill 2019, or I will rule that your speech has strayed from the subject.

MR DENNIS KWOK (in Cantonese): … Deputy President, which sentence do you not understand? Please point out which sentence you think is off topic. Why? Deputy President …

DEPUTY PRESIDENT (in Cantonese): I have very clearly reminded you. Please return to the subject of this debate.

MR DENNIS KWOK (in Cantonese): … I am also explaining very clearly that if there is no judicial independence and separation of powers in Hong Kong, we do not need to discuss this Bill. Deputy President, this is the very point that I do not understand. Could you ask the government officials or colleagues from the pro-establishment camp to explain it to me?

DEPUTY PRESIDENT (in Cantonese): Mr Dennis KWOK, as a Member representing the legal sector, you should be well aware of the situation. I exercised discretion to allow you to express your views on the constitutional system as you wish, but you have spoken for more than five minutes on this topic. You know full well that this Council is debating the Statute Law (Miscellaneous Provisions) Bill 2019 now. Please return to the subject of this debate.

LEGISLATIVE COUNCIL ― 14 October 2020 61

MR DENNIS KWOK (in Cantonese): Deputy President, if it is alright with you, I hope that you do not interrupt my speech again. You know very well that this Bill has a bearing on how the Judiciary operates, how we interpret the High Court Ordinance, and whether the Judiciary can operate independently in deciding how to handle cases. Deputy President, the reason why I have mentioned the separation of powers is because Solicitor General WONG's superior, the Secretary for Justice, said that there is no separation of powers in Hong Kong.

(Dr Priscilla LEUNG indicated her wish to raise a point of order)

DEPUTY PRESIDENT (in Cantonese): Mr Dennis KWOK, please stop for a while. Dr Priscilla LEUNG, what is your point of order?

DR PRISCILLA LEUNG (in Cantonese): I wish to ask Deputy President to enforce the Rules of Procedure. You have already pointed out just now that Mr Dennis KWOK strayed from the subject. I certainly welcome him to pore over my book Hong Kong Basic Law: From Theory to Practice published in 2007 and 2015 in both Chinese and English, and continue to take my views as reference.

DEPUTY PRESIDENT (in Cantonese): Dr Priscilla LEUNG, I will ask Mr KWOK to pay attention to the point of order that you have raised.

Mr Dennis KWOK, I remind you once again. If you stray from the subject again, I must enforce the Rules of Procedure. Please return to the subject of the debate, i.e. the substance of the amendments in the Statute Law (Miscellaneous Provisions) Bill 2019, which is also what each Member was earlier requested to focus on in their speech in this Council. Please continue with your speech.

MR DENNIS KWOK (in Cantonese): Deputy President, take it easy. I know, if I point out again that there is a separation of powers in Hong Kong, my words will sound highly uncomfortable to many in this Chamber, because an "imperial edict" has been issued stating that there is no separation of powers in Hong Kong. 62 LEGISLATIVE COUNCIL ― 14 October 2020

People like Dr Priscilla LEUNG have to abide by it, so has the Secretary for Justice. As a representative of the legal profession, and hence a guardian of the rule of law …

DEPUTY PRESIDENT (in Cantonese): Mr Dennis KWOK, I have already reminded you that if you continue to stray from the subject, I will ask you to stop speaking.

MR DENNIS KWOK (in Cantonese): No, Deputy President, you can simply ask the Secretary for Justice's representative to respond later on whether there is a separation of powers in Hong Kong.

DEPUTY PRESIDENT (in Cantonese): Mr Dennis KWOK, I am not debating with you now, and you know very well that the subject of today's debate is not the separation of powers. I have repeatedly emphasized that …

MR DENNIS KWOK (in Cantonese): Deputy President, the subject of today's debate is related to the separation of powers.

DEPUTY PRESIDENT (in Cantonese): I have already exercised discretion to let you present your constitutional theory. The subject of the current debate is related to the Statute Law (Miscellaneous Provisions) Bill 2019 …

MR DENNIS KWOK (in Cantonese): Deputy President, this Bill has a bearing on whether the High Court of Hong Kong needs to operate by the principle of judicial independence.

DEPUTY PRESIDENT (in Cantonese): If you do not get straight to the subject matter of the substantive amendments in the Bill, I will ask you to stop speaking.

LEGISLATIVE COUNCIL ― 14 October 2020 63

MR DENNIS KWOK (in Cantonese): Excuse me, we have not yet entered the Committee stage. This is not my first day as a Member. I do not need Deputy President to teach me what to do. Now the Second Reading debate is in progress to discuss whether we need to support or oppose the Bill as a matter of principle. I am not going to debate with Deputy President anymore, because I have already spent more than seven minutes. If you do not understand why the separation of powers is directly related to the Blue Bill even though so much time has been used, then forget it, because you will not understand it no matter what I say.

DEPUTY PRESIDENT (in Cantonese): Mr Dennis KWOK, do you intend to get into the subject matter of the debate on the Bill? If not, please stop speaking.

(Mr Dennis KWOK continued to speak while standing)

DEPUTY PRESIDENT (in Cantonese): Mr Dennis KWOK, please stop speaking.

Mr KWONG Chun-yu, please speak.

(Mr Kenneth LEUNG indicated his wish to raise a point of order)

DEPUTY PRESIDENT (in Cantonese): Mr Kenneth LEUNG, what is your point of order?

MR KENNETH LEUNG (in Cantonese): I request a headcount.

DEPUTY PRESIDENT (in Cantonese): Mr Kenneth LEUNG 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)

64 LEGISLATIVE COUNCIL ― 14 October 2020

DEPUTY PRESIDENT (in Cantonese): A quorum is now present in the Chamber.

Mr KWONG Chun-yu, please speak.

(Mr Dennis KWOK stood up and queried the speaking arrangement)

DEPUTY PRESIDENT (in Cantonese): Mr Dennis KWOK, Mr KWONG Chun-yu has the floor now because I have repeatedly reminded you and pointed out that you have not directly spoken on the relevant subject of debate.

(Mr Dennis KWOK continued to speak while standing)

DEPUTY PRESIDENT (in Cantonese): Mr Dennis KWOK, you know very well that I have repeatedly reminded you to return to the subject of this debate. My ruling is final. Please respect my ruling.

Mr KWONG Chun-yu, please speak.

MR KWONG CHUN-YU (in Cantonese): Starry LEE, as the Deputy President of the first meeting in the current legislative session, you have really set a very special example by going so far as to stop a fellow Member from speaking during his speech time. Frankly speaking, I have no intention to direct my speech against you in these 10 minutes or so, and neither will I try to challenge you, lest you will turn off my microphone. You are exceptionally good at playing this trick, in the belief that the problems can be resolved by doing so.

I have to say that the technical amendments under the Statute Law (Miscellaneous Provisions) Bill 2019 ("the Bill") are actually not that controversial, but the biggest problem lies in Secretary for Justice Teresa CHENG, and where is she now when she should have been present at the meeting here? She has gone to Shenzhen with Carrie LAM. Buddy, while all of us in Hong Kong are waiting for a cash handout of at least $10,000 from Carrie LAM, she dares to postpone the delivery of the Policy Address for one month and leave Hong Kong for a Northbound trip.

LEGISLATIVE COUNCIL ― 14 October 2020 65

It may be true that Carrie LAM does have the need to meet with XI Jinping, but why is it necessary for Teresa CHENG to go North? It really makes me angry. When Mr Dennis KWOK wished to talk about separation of powers, he was suddenly told that he could not discuss the issue in this Council, and this is simply ridiculous. Starry LEE, this ruling of yours will surely go down in history because it did not allow us to discuss the separation of powers in the Chamber of the Legislative Council, and I think even Andrew LEUNG would not chair a meeting in this way.

Let me first talk about the contents of the Bill, on which some fellow colleagues have already elaborated. Would pro-establishment Members stop murmuring in their seats? They should press the button and make a speech of 15 minutes, and today's meeting will then come to an end very soon. The Secretary for Justice is evading her duties and doing nothing at all, as evidenced by her failure to follow up on the case in which dozens of animals were thrown from height, and coupled with the fact that she has not paid any attention to the legal rights of 12 Hong Kong people and has chosen not to attend the meeting today when the Bill is scrutinized. Yet, she seemed to have attached very great importance to the Bill at the outset, claiming that the High Court Ordinance (Cap. 4) should be amended to allow the use of two instead of three Justices of Appeal ("JAs") to hear and determine the granting of leave for appeal cases. Frankly speaking, no one will object to the idea of speeding up the processing procedures because this is after all a good thing. But the problem is that even the Hong Kong Bar Association has expressed reservation about the proposed amendments, pointing out that the amendments will affect all judicial review applications and involve the threshold of judicial review and the fairness of the procedures concerned.

How ridiculous it is that such simple amendments like these which seek to expedite the processing procedures have given rise to so many controversies? It is because the Secretary for Justice has set an extraordinary example. Apart from the pro-democracy camp, some in the pro-establishment camp may also agree with this because the Oriental Daily News has severely criticized Teresa CHENG for having the lowest popularity rating among the three Department Secretaries all along. As the most important person to safeguard the rule of law, she has to set an example and help the people and Hong Kong to build up confidence in our judicial system. At the very least, the proposed legislative amendments should not have aroused so many queries, thus creating obstacles when they are actually introduced to speed up the process.

66 LEGISLATIVE COUNCIL ― 14 October 2020

There is indeed nothing wrong with the idea of expediting the relevant procedures, and another similar example is the proposal put forward last year to amend the Fugitive Offenders Ordinance, when high-sounding reasons were also given that the suspect concerned had to be extradited to Taiwan for trial. However, after much effort which has turned Hong Kong upside down, what is the brilliant idea that John LEE has finally come up with? He now opines that reference can be made to the arrangements adopted in 2016 for the transfer of the fugitive offenders in the "concrete coffin" murder case, and if really so, what exactly was this group of "geniuses" trying to do last year? I wonder if the pro-establishment camp should follow his advice this time.

The reasons given for introducing the proposed amendments in the current exercise are also very high-sounding. According to Teresa CHENG, the process should be speeded up for handling the excessively large number of torture claims, thereby easing the tremendous pressure on the Court of First Instance and the Court of Appeal, but we simply cannot trust her. No matter what other people may think, I do not consider Teresa CHENG trustworthy. How do I know what she will do next after the current legislative amendment exercise? The proposed amendments will affect the hearing and determination of all judicial review cases, and given the ripple effect, we should of course keep our eyes wide open to see what implications they will have, how such amendments should be made, whether the problem can really be resolved after the introduction of the amendments, or whether they can only cure the symptoms but not the disease.

To be honest, I do not consider the proposed amendments a permanent remedy and this is merely a waste of effort. She is being derelict of her duties by taking no action to follow up on brutal animal abuse cases, but has wasted her time every day on filing unreasonable appeals and prosecuting young people. We have all witnessed what she has done, and we fully realize how unfortunate it is for Hong Kong to have such a Secretary for Justice, who is derelict of her duties and …

DEPUTY PRESIDENT (in Cantonese): Mr KWONG Chun-yu, let me remind you and all Members that the subject of the Second Reading debate is the overall pros and cons as well as the principles of the Statute Law (Miscellaneous Provisions) Bill 2019. Mr KWONG, you have already made some introductory remarks, please focus your speech on the overall pros and cons as well as the principles of the Bill.

LEGISLATIVE COUNCIL ― 14 October 2020 67

MR KWONG CHUN-YU (in Cantonese): Deputy President, please keep calm. I of course understand that we are now conducting the Second Reading debate on the Bill, but before commenting on its pros and cons, I have to voice my criticisms against the Secretary for Justice, who is supposed to be present here to listen to our speeches and offer her explanation. What has Carrie LAM's Northbound trip to Shenzhen got to do with her? Is it not ridiculous for her to follow like a primary student and take notes at the meeting? She should have been here to respond to our questions concerning the Bill, to which she has attached very great importance. We should also strive to resolve all disputes quickly just as the pro-establishment camp has often called for the speeding up of the relevant procedures.

The most interesting point to note is that the Democratic Alliance for the Betterment and Progress of Hong Kong ("DAB"), especially Mr Holden CHOW, has very dutifully raised a question in March 2017 to request for information from the Government about the number of refugees repatriated. It turned out that in 2016-2017, the Immigration Department ("ImmD") repatriated 5 932 persons to their place of origin. ImmD was very serious when answering this question and provided us with a ranking table, which showed that while Vietnam ranked only the second, Mainland China was the place of origin for most refugees repatriated. Mr Holden CHOW was so smart that he hit the nail right on the head and done a marvellous job by raising this question. We have been discussing the refugee problem all these years, but it turned out that as revealed by the reply to a question raised not by the pro-democracy camp but by Mr Holden CHOW, the problem was most serious in Mainland China. No wonder Jasper TSANG has recently disclosed that Carrie LAM had expressed disappointment with DAB's failure to cultivate political talents for the Government over the years, and I can understand her frustration when I put myself in her shoes.

Let me get back to the subject, a debate on the Bill requires the discussion of the reasonableness of the proposed amendments as this is the most crucial question. It seems that the use of two in place of three JAs and the disposal of some cases on paper can simplify some administrative procedures, but the problem is that as pointed out by some human rights organizations, the number of torture claims has already passed its peak. It might be a reasonable move if the Government introduced the proposed amendments when the number of such cases was at its peak. However, the motive behind these huge amendments is questionable when the number of such cases has actually passed its peak, our 68 LEGISLATIVE COUNCIL ― 14 October 2020 primary consideration is the fact that we do not trust Teresa CHENG and have no idea about her next move. It is our belief that she will do nothing but harm Hong Kong people.

First of all, according to some human rights organizations, the impact of the proposed amendments is too great and will affect all judicial review applications. Secondly, is it really necessary to take such a big step to amend the law? The Government always takes actions to address the problems after they have passed their peak, such as launching the Universal Community Testing Programme after the peak of the epidemic, which cost the Government more than $530 million but did not receive too much public support. This is a typical example of reacting ten beats or even a hundred beats too slowly.

Teresa CHENG should listen to our queries here in this Chamber today, because apart from those of the pro-democracy camp, Members of the pro-establishment camp may also wish to put their questions directly to her. This is the most basic way to show her respect for the Legislative Council, but she just sent her poor subordinate here to act as her representative. Certainly, there is also discontent among her subordinates, and in an open letter co-signed by several Public Prosecutors last year, Teresa CHENG was denounced for evading her duties and bowing to pressure from the Chief Executive. This is actually a fact known to all. How can the process be expedited? The answer is indeed very simple, and in order to speed up the pace of development in Hong Kong, the first step we should take is to dismiss Secretary for Justice Teresa CHENG, who is derelict of her duties and has done all sorts of evil deeds which will affect every one of us in Hong Kong.

Deputy President, the Bill itself is a legislative amendment proposal presented to the legislature for scrutiny and this is just a routine exercise. Under the legal system of Hong Kong, technical amendments may be introduced to the existing legislation to speed up the process. The issue per se is not very controversial. To be honest, it is a matter of confidence. We have no confidence in her because she has built up a very poor image, and this is also the case for the Department of Justice as well as the entire Carrie LAM Government.

With the beginning of the current legislative session, the first thing we should do is to ask for a cash handout of $10,000 from the Government to all the people of Hong Kong, so that the impact of the epidemic on our economy can be mitigated as soon as possible. However, the Government has made no response LEGISLATIVE COUNCIL ― 14 October 2020 69 to the request. Rather, it has put forward the proposal for speeding up the processing procedures for judicial review cases at this Council meeting, with a view to using two instead of three JAs to hear and determine such cases and disposing of some cases on paper, thereby resolving the problem and reducing the backlog of cases as soon as possible. However, the number of such cases has already passed its peak, and it is utterly self-contradictory for the Government to put forward such a proposal. I am not saying that the Government should do nothing to tackle the problem, but can the proposal help to address the problem at root?

Deputy President, many people are now watching the live television broadcast of this Council meeting. We have never seen such a situation where so many Members had spoken during the Second Reading stage when similar legislative proposals were presented to this Council by former Secretaries for Justice in the past. Nor have we witnessed such a rare moment in which a Member has tried to discuss the issue of separation of powers with you but you have simply turned off his/her microphone, just like what happened to Mr Dennis KWOK earlier. Teresa CHENG, who should be the most important person to safeguard the rule of law in the territory, has not only built up a very poor image but also turned Hong Kong upside down and caused anxiety among the people with her proposal to amend the Fugitive Offenders Ordinance. This is why we have to question the Government thoroughly when some basic legislative amendments are proposed in the current exercise.

Teresa CHENG is earning a handsome salary of over $300,000 from taxpayers each month, and she is also provided with an official residence and an official car with chauffeur service. There is a dedicated team of assistants to take care of her needs in daily living like food and accommodation, but she dares to choose not to attend the today's meeting to reply to the questions raised by Members here. I must emphasize that apart from Members of the pro-democracy camp, pro-establishment Members would also like to see her because we have not met with her for a long time and she did not even attend the relevant meetings …

DEPUTY PRESIDENT (in Cantonese): Mr KWONG Chun-yu, I notice that you have repeatedly directed your speech …

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MR KWONG CHUN-YU (in Cantonese): … against Teresa CHENG, is that right? I am fully aware of this.

DEPUTY PRESIDENT (in Cantonese): … You questioned the absence of Secretary for Justice Teresa CHENG from this Council meeting. Will Members please note that the President has received a notification in writing from the Administration earlier, in which it is stated that pursuant to section 7 of the Legal Officers Ordinance, the Solicitor General has been authorized to participate in the deliberation process of the Bill at this Legislative Council meeting during the absence of the Secretary for Justice. The Secretariat has informed Members in writing of the said arrangements before the meeting.

Mr KWONG, please return to the subject of this Second Reading debate and speak on the overall pros and cons of the Statute Law (Miscellaneous Provisions) Bill 2019. You should not make use of this opportunity to express other political views or positions. Otherwise, I will regard you as digressing from the subject. Please return to the subject of this debate.

MR KWONG CHUN-YU (in Cantonese): Deputy President, do you wish to do it again and turn off my microphone? Will you please do not speculate on my motives? I wish to …

DEPUTY PRESIDENT (in Cantonese): I have not speculated on your motives. I am just asking you to return to the subject of this debate and speak on the overall pros and cons of the Statute Law (Miscellaneous Provisions) Bill 2019.

MR KWONG CHUN-YU (in Cantonese): Deputy President, it is very obvious that the Bill has in general more demerits than merits, and this is what I have pointed out earlier. As mentioned just now, if Teresa CHENG had managed to set a good example as the Secretary for Justice and make the general public have absolute confidence in our judicial system over the past period of time, basically not too many Members would have bothered to speak on such miscellaneous amendments introduced into this Council for deliberation. However, what we are talking about now is a matter of confidence. The Deputy President will certainly query whether Members know what technical or non-controversial LEGISLATIVE COUNCIL ― 14 October 2020 71 amendments are provided under the Bill. I of course understand that the Government is mainly seeking to amend section 34B of the High Court Ordinance (Cap. 4) in the current exercise, so that two instead of three JAs will be used to hear and determine some cases, and judges will have the power to dispose of certain cases on paper.

Nevertheless, I would like to point out that the crux of the problem concerns public confidence, and there should be no major problem with such proposed amendments if we have confidence in the Secretary for Justice, but the problem is that we really do not trust her. If the Secretary for Justice was present here today, and if she had the courage to attend this Council meeting to listen to our queries and tell us that the proposal was a benevolent measure, we would appreciate her sincerity and would not criticize her so severely like this. Yet, she does not have the basic courtesy to do so and is not even willing to attend this meeting. It is heard that staff members of the Department of Justice have to work very hard, and I hope they can maintain their original spirit, but the performance of their boss is off-putting.

First of all, as she has completely tarnished her own image, we choose to question the Government thoroughly today when proposed amendments like these are presented for deliberation. She should apologize and reflect on her poor past performance, because of her dereliction of duty on her part, her colleagues have to be questioned by Members like this when such proposed amendments are presented to the Legislative Council for scrutiny. This is not what I wish to see, and I have to emphasize once again that if she has our confidence, we will accept that the proposed amendments to the High Court Ordinance are introduced out of good intention. This is also the reason behind many disputes in the past.

Deputy President, you are fed up with what we have spoken here over the past year but I must keep on speaking, and as there is indeed so much for me to say, I can actually speak for two hours. Just think about this, the social gathering restrictions were also introduced with good intention at the outset to maintain social distancing and contain the spread of the virus, but we subsequently found out that we were tricked once again into believing what the Government had said. Hence, regarding the Bill introduced by the Government in the current exercise to amend the High Court Ordinance, I choose to trust the Government no more, and am determined to put my words in this Chamber on record, indicating clearly that since the authorities have taken the initiative to find 72 LEGISLATIVE COUNCIL ― 14 October 2020 trouble with the people, we will also find trouble with the Government. We will not raise so many questions if the legislative proposals concerned are put forward with good intention and handled by officers with good performance.

I originally intended to cite some examples of those senior officials of the Carrie LAM Government with better performance, who would not face so many queries from Members when attending Legislative Council meetings, but regrettably, there are really not many public officers who have demonstrated such quality, because the overall rating of the governance team of Carrie LAM has kept declining to a level beyond …

DEPUTY PRESIDENT (in Cantonese): Mr KWONG Chun-yu, I have already reminded you to return to the subject of this debate and speak on the overall pros and cons of the Bill. You have already made your points very clear just now.

MR KWONG CHUN-YU (in Cantonese): Deputy President, I understand. It is of course the time now for me to give some concluding remarks in my remaining speaking time of less than 2 minutes 30 seconds. My conclusion is very simple: Is the Bill under discussion able to cure the symptoms rather than the disease? Regarding the Castle Peak Bay Immigration Centre mentioned by some fellow colleagues just now, I went there a few days ago to pay a visit to people detained there, and each of them does have their own stories. I often wonder how we should improve the situation or resolve the problem, and should we start with the provision of training? The problem lies not only in the courts which, as we all understand, are under immense pressure. Yet, as mentioned just now, some human rights organizations have pointed out that the number of cases had already passed its peak, could there be some strange thoughts or ulterior motives behind the legislative amendments proposed by the Government?

As the devil is in the details, we do not want to accept the proposed amendments after giving the matter some careful thoughts, and would very much like to safeguard some precious values that still remain, namely an independent judicial system. From our perspective, we will do our very best to reduce the scope of legislative amendments by the Government as much as possible, especially given the poor performance of Teresa CHENG. In order to facilitate the smooth scrutiny of similar legislative amendment proposals, it is advisable for LEGISLATIVE COUNCIL ― 14 October 2020 73 her to consider replacing herself first, and I am sure the Oriental Daily News will not object to this idea, because the media organization has spared no effort to criticize Secretary Teresa CHENG over the past period of time.

Deputy President, I have only one minute of speaking time left, and I just wish to point out that if technical amendments of this sort were introduced into this legislature two to three years ago, they would not trigger much discussion. The Carrie LAM Government should reflect on what it has done to Hong Kong in the past year or so. At first, we had the social movement, which was then followed by the pandemic, and when the third wave of pandemic was devastating Hong Kong, no one in the Government had been held accountable and not a single cent of compensation had been paid to the operators of many restaurants. We have been asking for a cash handout from the Government, but instead of delivering the Policy Address here today according to the original plan, the Chief Executive has gone to Shenzhen and she is accompanied by Teresa CHENG. Yet, what has this trip to Shenzhen got to do with her? Even if a meeting with XI Jinping has been arranged, the only person involved is Carrie LAM.

All of us in Hong Kong are now waiting for a cash handout from the Government, which brooks no delay, otherwise it will be too late when our economy has collapsed. Our aspirations are very simple, and we are prepared to handle the related livelihood issues in this Chamber. However, being an officer who has accomplished nothing but has only made things worse, Teresa CHENG has even chosen not to attend the meeting today, so how can I refrain from lashing out at her?

Deputy President, I so submit.

DEPUTY PRESIDENT (in Cantonese): Before I call upon the next Member to speak, I would like to remind Members once again that they should have had a certain degree of understanding of the Statute Law (Miscellaneous Provisions) Bill 2019, and 12 Members have so far spoken on the Bill. The amendments proposed under the Bill are in fact technical in nature, and the Legislative Council has already spent several hours on this debate. Therefore, in my capacity as the Deputy President, I have the duty to ensure that speeches delivered by Members are in compliance with the Rules of Procedure.

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I would also like to remind Members that they should try to be brief and avoid making repetitions when elaborating on arguments that have previously been put forward. If Members make use of this opportunity to greatly deviate from what should be the overall pros and cons of the Bill when they speak, I will also regard them as digressing from the subject.

As there are still many items pending discussion in this Council, Members are advised to make optimal use of their speaking time. I hope all Members will work together in this respect.

Dr KWOK Ka-ki, please speak.

DR KWOK KA-KI (in Cantonese): Ms LEE, I wonder since when "separation of powers" has become a taboo term in Hong Kong. But actually, it is not a taboo term as such. The background information provided by the SAR Government to various countries and journalists in June 1997 shortly before the reunification points out that Hong Kong practises separation of powers. Second, former Chief Justice of the Court of Final Appeal ("CFA") Andrew LI and another judge called Patrick CHAN have likewise made it clear that Hong Kong practises separation of powers. Third, in 2001 when incumbent Chief Justice of CFA Andrew LI discussed the topic of judicial independence at a luncheon hosted by The Newspaper Society of Hong Kong together with many other chambers of commerce, he also explained clearly to this effect: "Judicial independence is the core of the 'power division' concept. Power division precisely means the tripartite separation of powers among the executive, the legislature and the judiciary with mutual checks and balances. The court's function is to ensure that the legislature and the executive comply with the Basic Law and the law when discharging their respective duties." All this has been stated in the records of Hong Kong.

DEPUTY PRESIDENT (in Cantonese): Dr KWOK Ka-ki, just as I have already reminded other Members, discussions on separation of powers are absolutely permissible, only that such discussions should be held on an appropriate occasion. If Members wish to discuss separation of powers, they may consider holding discussions at Panel meetings upon the completion of Panel elections, or they may propose Members' motions for debate.

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Each agenda item for discussion by the Legislative Council today invariably involves very specific issue. Dr KWOK, as a veteran Member, you should understand very well my earlier reminder to all Members on this, and that they should return to the topic of the Second Reading debate on the Statute Law (Miscellaneous Provisions) Bill 2019, meaning to say that Members should debate the overall merits and demerits of the Bill. Dr KWOK, please point out the relevance of your earlier discussion to the debate on the overall merits and demerits of the Bill; or else please return to the topic of this debate.

DR KWOK KA-KI (in Cantonese): The Statute Law (Miscellaneous Provisions) Bill 2019 ("the Bill") is a law of Hong Kong, and the laws of Hong Kong are based on a tripartite division of functions among the judiciary, the legislature and the executive. This is the fundamental system of Hong Kong. If the executive, the legislature and the judiciary are unable to perform their duties independently, how will it be possible to enforce the law (including the Bill)? Without judicial independence, how is a judge supposed to determine a case before him in accordance with the Bill in the future? In that case, when he hears a case in the future, he may have to speculate on how the Chief Executive wants him to determine the case and whether what he does is judicious enough, and he may also have to see whether the Legislative Council permits any discussions at the time. Will there be any rule of law to speak of in Hong Kong by that time?

The cornerstone of the rule of law is that any laws―whether speaking of the Bill now under discussion or any laws passed by the Legislative Council―are based on judicial independence. This is the fundamental principle. If Members are even unclearly about this, then we need not hold any discussions here and waste our time. The Bill can be enforced because we believe that Hong Kong still upholds judicial independence and separation of powers.

Members can open their eyes wide to see for themselves what has happened. Hong Kong has now come to a point where its conventions and institutions have been corrupted. Initially, Members should be listening to the Chief Executive's 2020 Policy Address instead of discussing this issue here today. What is the situation now? The bunch of officials have gone up to "shine the shoes of others", and this is also the case with Teresa CHENG. They are now busy jotting down notes with their heads down, and the Policy Address was brushed aside. Our conventions and institutions have honestly been corrupted.

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Actually, Members should not be discussing the Bill now. They should know it, and they should stop putting up a show. Initially, Members should be listening to the Chief Executive's Policy Address today, followed by a Chief Executive's Question and Answer Session tomorrow. All this is concerned about the policies to be implemented by the Government in Hong Kong in the new year of 2020. Everybody is saying that the epidemic has led to an economic downturn, and everything is in misery. But the Chief Executive has brushed all this aside and postponed the delivery of the Policy Address until next month on the pretext that "she needs to meet with Beijing officials". Isn't this absurd?

I am not saying that the Bill we are now discussing is not important, because it involves the cornerstone of Hong Kong's judicial system. Any laws which a judge relies on in determining a case certainly must have already been passed by the Legislative Council. Precisely for this reason, we must hold discussions, whether out of a genuine intention or not. We also hope that Hong Kong still upholds separation of powers, and this is why we are arguing vehemently here, in the hope that people can hear us. Nevertheless, we are now told that "separation of powers" is a taboo term that is not allowed to be mentioned.

DEPUTY PRESIDENT (in Cantonese): Dr KWOK Ka-ki, I now remind you again and for the last time. I must reiterate that this is not an occasion for discussing judicial independence …

DR KWOK KA-KI (in Cantonese): Ms LEE, I am not discussing judicial independence. I am discussing this Bill.

DEPUTY PRESIDENT (in Cantonese): I have also reminded Members that "separation of powers" is not a taboo term in this Council. If Members wish to discuss separation of powers, they may hold discussions on a suitable occasion rather than doing so during this Second Reading debate on the Statute Law (Miscellaneous Provisions) Bill 2019.

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DR KWOK KA-KI (in Cantonese): Okay. Got it.

DEPUTY PRESIDENT (in Cantonese): I remind you for the last time that if you still do not return to the topic of this debate, I will stop you from speaking.

DR KWOK KA-KI (in Cantonese): You need not warn me. I will not fear it.

I hope Dr Priscilla LEUNG and the like can listen to me, so that she can realize the absurdity of her arguments. What is the High Court Ordinance (Cap. 4) ("the Ordinance") we are now discussing all about? The Government says that the number of civil cases has surged, especially judicial reviews involving non-refoulement claims. In order to rationalize the relevant erroneous practice, the Government proposes to amend section 34B(4) of the Ordinance to stipulate that a Court of Appeal constituted by two Justices of Appeal may also determine two types of cases.

Everyone knows what is happening now. As far as we can see, the judicial system of Hong Kong is on the brink of collapse. Our current discussion actually concerns not only section 34B(4). The rule-of-law situation in Hong Kong is evident to all. Anybody can reprimand magistrates as long as they like, and Ms Elizabeth QUAT and Mr Holden CHOW are two examples. They claim that they respect the rule of law, but they have nonetheless put magistrates on "public trial". How can they safeguard the rule of law by doing so? In the future, if any judges who constitute a Court of Appeal in the High Court pursuant to the Ordinance are disagreeable to them, are they going to reproach them or even put them on "public trial" again? How can they live up to their claim of safeguarding the rule of law? It will be useless to incorporate the relevant arrangements into the law. As Members all know, even if the Ordinance is amended, the rule-of-law situation in Hong Kong will not show any improvement because there are all such people around and such legally illiterate people dare to criticize our judges.

It is actually very difficult to safeguard Hong Kong's rule of law, and it is also very difficult to enforce other laws in addition to the Ordinance. The court is only part of the entire public prosecution process, and this process also requires impartial law enforcement and impartial prosecution on the part of law enforcement agencies and the justice department respectively. But honestly, the relevant departments have already adopted the practices of those backward 78 LEGISLATIVE COUNCIL ― 14 October 2020 countries in the Third World or totalitarian governments. Whether speaking of the justice department or law enforcement agencies, they have invariably turned into a tool for suppression. I wonder when the bills introduced into the Legislative Council will also become a tool for suppression, or a tool that can be used by the political regime to change or even destroy "one country, two systems". As Members all know, the Government will introduce a new election law very soon (probably next month) to enable Hong Kong people in the Guangdong-Hong Kong-Macao Greater Bay Area to also cast their votes.

The difficulty we are facing now is certainly not confined to the simple amendment of section 34B(4) of the Ordinance. It also involves the collapse of the entire judicial system and the rule of law. There is no reason why the Solicitor General is unaware of all this. He has been a lawyer for a long time. Why does he feign ignorance here about what is going on now? As far as we can see, Hong Kong is facing an extremely difficult situation at present. People have lost all their confidence in the entire Government and also those departments and law enforcement agencies that are supposed to safeguard Hong Kong's rule of law and "one country, two systems", including the Department of Justice ("DoJ") and the Police Force. These departments have recorded a negative rating, and the only difference is whether the rating is -40, -50 or -100.

Under such circumstances, can such bills increase our trust in the rule of law? The Government can casually preordain certain judges whom it finds agreeable to hear cases involving the National Security Law. Only certain judges can hear these cases, whereas other judges cannot. The situation I mentioned above is of the Government's own making. May I ask how it can safeguard the rule of law? They should stop putting up a show here.

Now, the Government introduces the Bill with the intention of changing the composition of a Court of Appeal from three Justices of Appeal to two. It claims that the purpose is to refine the judicial system of Hong Kong, in the hope of expediting the hearing of the relevant cases. In normal circumstances, we will believe that Hong Kong still upholds the rule of law, separation of powers and a clear system. But all these have ceased to exist now and become nonexistent. The amendments, if made, will only enable those with ulterior motives to manipulate the loopholes therein to achieve the executive's objective of barring the court or the judicial system from discharging their due functions. Now, we can no longer trust the system, and this is the very reason why we have to express in the present discussion our huge reservations about the reality, including the devastation of separation of powers and the judicial system. LEGISLATIVE COUNCIL ― 14 October 2020 79

The issues we are now discussing, such as amending the Chinese text of a certain reference in the defence provisions for the purpose of refining the law, are founded on our belief that the rule of law, the court and the relevant system can ensure fair trial for Hong Kong people and also an opportunity for Hong Kong people or even refugee claimants seeking assistance to make representations under a fair and impartial system. But the current situation is not like this; it has turned into a complete mess instead. The rule-of-law situation in Hong Kong will soon become no different from that in those places ruled by a totalitarian government in Asia, Africa and Latin America with a bottom ranking in rule of law worldwide. I wonder if the judicial officials present here are ashamed of all this. What is their original intention? To safeguard this system, one which is collapsing now? Can DoJ and the Government as the culprit of all this face up to their deeds? They are the very culprit of the collapse of the entire system.

Even if the Bill is passed, will Hong Kong people think that the situation will improve? Will this lead us to believe that the court will determine a case fairly and impartially without being influenced? The answer is certainly in the negative. Everybody can see for themselves that the court or even judges may be named as the target of reprimands and suppression, just like what happened in the times of the Cultural Revolution, and they may be turned into their tool, just like the teachers. Even speaking of DoJ, a prosecutor who recently published a book explaining the rights of people …

DEPUTY PRESIDENT (in Cantonese): Dr KWOK Ka-ki, I think you have digressed from the subject matter again.

DR KWOK KA-KI (in Cantonese): I am returning to the debate topic. All this is related to safeguarding the rule of law and the requirements in sections 4(2) and 5(2) of the Ordinance. If the Bill is to be handled by a department that is unsuitable or unable to improve the rule of law, how is it possible for that department to cope with the task? How can refugee claims truly receive fair treatment?

At this point of my speech, I wish to quote a statement from Justice Centre. That organization once said that it was of utmost importance to uphold the standard of fairness. But much to our regret, the authorities may easily reject refugee applications lodged by those refugees from totalitarian countries 80 LEGISLATIVE COUNCIL ― 14 October 2020 worldwide (including those in Central Africa Republic and Yemen) through an administrative arrangement, namely USM, the unified screening mechanism. The authorities' practice has come under serious question.

Does the Government think that it can restore the face of Hong Kong by introducing the Bill? Does the Government think that this can enable Hong Kong to win respect from the international community and make it think that Hong Kong is a place upholding the rule of law? I do not believe it is possible. The series of moves taken by the Government, including the open, blatant assertion made by Secretary Kevin YEUNG and "777 Carrie LAM" on the absence of power separation in Hong Kong, have driven Hong Kong's rule of law and various institutions to the brink of collapse. Despite the immense effort and energy we have devoted here to conducting serious discussions on various bills (such as the Bill), we are unable to rescue Hong Kong from the current predicament of an ineffective rule of law. Members must understand this point, and I also hope that various prosecution officers in DoJ can understand that DoJ is now perceived as a department engaging in political prosecution on the Government's behalf rather than one that seeks to uphold institutional fairness.

If we lose our original intention, we will not be able to move on, and "one country, two systems" will also be pronounced dead. Anyway, it is impossible for the Bill to manifest its objectives under the current system.

Deputy President, I request a headcount.

DEPUTY PRESIDENT (in Cantonese): Dr KWOK Ka-ki 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)

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PRESIDENT (in Cantonese): Mr Jeremy TAM, please speak.

MR JEREMY TAM (in Cantonese): President, generally speaking, debates like this one concerning the Statute Law (Miscellaneous Provisions) Bill 2019 ("the Bill") probably will not take place. It is because many of the amendments are about amending certain words, such as repealing in the Chinese text "有作出合理 監管及付出合理努力" in Division 29 of the Karaoke Establishments (Licensing) Regulation and substituting it with "作出合理的監管及合理的努力". They do not sound much of a difference. Some of the amendments only involve slight textual changes. However, some of the amendments involve several policy areas. I thus think it is worthwhile to talk about them here.

First, two amendments focus on physical currency, such as the Money Changers Ordinance and another ordinance concerning physical currency. Why do I talk about these two ordinances? It is because we often talk about a currency which is not regarded as a physical currency, and that is virtual currency. Actually, many ordinances do not take into account the concept of virtual currency when they mention currency. Ordinances enacted a long time ago certainly would not mention virtual currency. Then why do I have to bring this up? It is because some ordinances in Hong Kong, such as those concerning bribery, currency or money mentioned therein do not cover virtual currency.

In a number of Legislative Council meetings, the Government also said that they would not regard virtual currency as a formal currency … the ordinance I wanted to mention just now is the Cross-boundary Movement of Physical Currency and Bearer Negotiable Instruments Ordinance. And likewise, the Government will only make minor amendments to this ordinance, such as repealing, in the Chinese text, "有作出" and substituting it with "作出". Like I just said, the amendment is minor and technical, probably due to a minor mistake made when the ordinance was drafted. I think I can take this opportunity to comment on the general merits of the law.

As I just said, I hope that, in the next large-scale legislative review, when the authorities come to anything related to these interests, or physical currency, or the money changers I just mentioned … because nowadays, money changers provide many automatic teller machines ("ATMs") specifically for virtual currencies. I do not know whether any of you or how many of you have come across these ATMs. They are commonly found in malls frequented by young 82 LEGISLATIVE COUNCIL ― 14 October 2020 people. They look like an ATM, but they are vending virtual currencies. I have seen these in a number of shopping malls. Hence, if the authorities plan to regulate this matter in the future, they should cover virtual currency, or the money changers I just mentioned because these money changers can exchange between cash and virtual currencies. However, regarding …

PRESIDENT (in Cantonese): Mr Jeremy TAM, you are talking about other amendments involving simple repeals or substitutions. The subject under debate in this Council has nothing to do with currency policy. Please come back to the subject of the debate.

MR JEREMY TAM (in Cantonese): … President, I understand. But given that the legislative amendment this time covers many ordinances and two of them are about currency, I thus made it clear in the beginning that … President, you can refer to Division 31 of the Cross-boundary Movement of Physical Currency and Bearer Negotiable Instruments Ordinance and Subdivision 1 of Division 5 of the other ordinance I just mentioned, and that is the Money Changers Ordinance. President, what you said just now is correct, but I have made it clear in the beginning that some of the amendments are textual and technical, and that we are now at the Second Reading debate, I thus can bring this point up for general discussion and comment. Besides, the representative of the Department of Justice is here today. I thus wish to take this opportunity to express my view. I will only use a few minutes. I hope the President can bear with me.

Moreover, what I wish to say is that, although the Bill generally involves simple textual amendments, more importantly, it also involves an amendment which is rather controversial … I cannot say it is very controversial. The amendment does not simply seek to amend a certain word or make a minor change, nor does it simply make corresponding amendments to other ordinances due to changes made to the name of an ordinance. As some colleagues have already mentioned, it is about changing the way the Court of First Instance ("CFI") and the Court of Appeal ("CA") operate. More precisely, it is about extending the jurisdiction of a two-Judge bench of CA ("two-Judge CA"), so that a two-Judge CA can also determine applications for leave to appeal and applications for a judicial review. And also, an additional judge in CFI or CA has the power to dispose of cases on paper without physically sitting in court.

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The explanation given by the Bureau is that there has been a rapid surge in civil caseloads in recent years, particularly those initiated by way of judicial review for cases involving non-refoulement claims; and the proposed amendments can increase the flexibility in deployment of judicial manpower in taking up other court cases and allow expeditious and economical disposal of proceedings, thus increasing the overall efficiency of case handling.

Regarding the surge in judicial review caseloads stemming from unsuccessful non-refoulement claims, several committees have discussed this phenomenon. The Government has substantially shortened the deadline for filing judicial reviews to expedite case disposal. The screening standard of the unified screening mechanism ("USM") and the performance of the Torture Claims Appeal Board ("TCAB") have been under attack. If the quality of the TCAB decisions is much improved, there would be less judicial review in relation to elementary errors in the decision-making process of USM. Besides, legal aids funded by public money are of varying qualities. All these have led many claimants to seek judicial reviews against the decisions on their applications. As a result, the non-refoulement claimants are saved from immediate repatriation and continue with their appeal process in Hong Kong.

Members pointed out this causal relationship in several committees. They requested that related administrative measures and the Immigration Ordinance should be amended. However, the Government refused to do something about the measures and the procedure. In view of the heavy caseloads, it decided to amend the High Court Ordinance instead. We query, apart from the legislative amendments, whether there are other alternative measures that can alleviate the workload of the Judiciary. The Government has said very little in this regard.

Since the discussion held in a committee in June 2019, the Government has not proposed any improvement measure to alleviate the caseloads of the court. And now, the Government says that the burden of the court can be alleviated by reducing one judge. This is putting the cart before the horse. If the cases further increase, should CA further reduce one more judge, leaving a one-Judge bench to hear these cases? Or, if the cases further increase and we do not have adequate judges, should we invite Mainland judges to Hong Kong to hear these cases? Based on what the Government has said, this is indeed possible. However, this is not the proper approach.

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This is similar to the case of the healthcare personnel. The authorities say there is inadequate healthcare manpower, so they allow Mainland healthcare personnel to come to Hong Kong to conduct the COVID tests for our citizens. Should the Judicial system follow suit? There are inadequate judges in Hong Kong. So, let the Mainland judges come here to hear these cases. Will it turn out like this? This can only be a makeshift plan. As members of the Panel on Administration of Justice and Legal Services repeatedly said, the shortage of judicial manpower is a long-standing problem, and this has seriously delayed the disposal of cases and delivery of judgments by the courts.

Hence, the Judiciary should not put the blame on the rapid surge in non-refoulement claims. As I just said, the workload of the Judiciary can be alleviated by way of administrative and immigration measures. Besides, one of the reasons leading to the heavy caseloads of the court is the arbitrary arrests made by the Police. Pro-establishment Members propose to set up a 24-hour court. But the root of the problem lies in arbitrary arrests made by the Police. They do not act in accordance with the law and show no respect for human rights. And now, the courts are blamed for their inefficiency in case disposal and creating a backlog. Hence, the authorities have not come up with the right solution to the problem.

At present, CA consists of three Justices of Appeal. If it is changed to two Justices of Appeal, and in the event of one Judge allowing the claim and the other rejecting the claim, what should be done? The Government said that two Judges holding opposing views on a case is extremely rare, but if we refer to the past records …

(There was a problem with Mr Jeremy TAM's microphone and noise interference was heard)

PRESIDENT (in Cantonese): Please hold. There is some problem with Mr Jeremy TAM's microphone. Will the Secretariat staff please help him.

(The Secretariat staff followed the President's order and help Mr Jeremy TAM to handle the problem with his microphone)

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MR JEREMY TAM (in Cantonese): The microphone is operating normally again.

PRESIDENT (in Cantonese): The problem is dealt with.

MR JEREMY TAM (in Cantonese): It is fine now. I continue with my speech. My microphone does not need to be changed for the time being.

I do not know from where I should continue because of the problem with the microphone. Perhaps, let me slightly repeat what I just said. Just now, I mentioned the two Justices of Appeal in CA. If one of them holds a different view from the other, what should be done? Of course, this rarely happens. But if I refer to the information at hand, the last time this did happen was in 2002 and CA had to rearrange a three-Judge bench to hear the case.

So, there must a reason why an odd number of judges was required in the first place and it is for the sake of reaching a decision. As far as I know, jurors are also in an odd number. If the number of judges is in an even number, the situation I just mentioned may appear. That is to say, one judge allows the claim and the other rejects it. Hence, I do not think efficiency should be above everything, because of all the reasons I just mentioned. According to the Government, the amendments are meant to increase the overall efficiency of case handling. But at the Bills Committee meeting, the Government did not provide any indicator about how much faster the court cases could be cleared or how the waiting time for the cases pending trial could be shortened. The Government did not provide any indicator. Can the amendment truly increase efficiency? The Government did not respond to that at all.

As I just said, I do not oppose the Bill's other amendments to other ordinances. I even think that it is better to amend some discriminatory wordings. For instance, for consistency, the Bill will repeal the word "defective" in different ordinances. Nowadays, I believe it is a common understanding that this word has a labelling effect. And now this word will be substituted by "mentally incapacitated person". I think the change can cover a wider area. Not only does it refer to a person's mental capacity, it also refers to his mental state. In other words, a person may become incapacitated not because of his mental capacity, but because of a sudden mental attack or mental setback he may have suffered. Hence, this term is more humanized. 86 LEGISLATIVE COUNCIL ― 14 October 2020

Moreover, the Bill also repeals some standardized terms, such as repealing "widows" and substituting it with "surviving spouses", such that men will also be protected under the law. A widow generally refers to the surviving wife of a deceased husband. But the law should also apply to people the other way round, and that is, the surviving husband of a deceased wife. So, I think it is more specific and accurate to change the word to "surviving spouses".

Another one is about the Chinese term "關員" (customs officers). That is, in the Chinese text, "關員職系人員" will be repealed and substituted by "關員級 人員". Some people may question the difference between the two and consider that the two are the same. But there is a subtle difference. For "職系", take the EO (Executive Officer) or AO (Administrative Office) grade as an example, their grade represents their rank, but their job duties or the function of their departments can be totally different. But the grade system does not apply to customs officers because they are all doing the job of a customs officer. A customs officer who discharges his duty as a customs officer today will not be sent to the Fire Services Department, the Police Force or the Government Flying Service tomorrow to discharge duties of their corresponding grades at those departments. So, it is justified to make the change.

So, I will not oppose the amendments that are not controversial except the one just mentioned concerning the court. It is not a simple textual amendment. It will fundamentally change the system of the court by substituting a three-Judge CA with a two-Judge CA. In this connection, I cannot support it.

I so submit.

DR CHENG CHUNG-TAI (in Cantonese): We are now in the Second Reading debate to deliberate on the amendments in the Statute Law (Miscellaneous Provisions) Bill 2019 ("the Bill"). There are two main points in the Bill. First, as far as torture claim cases are concerned, the Bill reduces some legal requirements for the legal and administrative procedures in respect of refugees' political issues. Secondly, it allows greater flexibility in the way cases are judged or decided. In this regard, from what I have just heard, most of the pan-democratic Members lean towards opposing the relevant amendments. Frankly speaking, I have not made up my mind yet. I was about to abstain from voting, but now that I have a little bit of time to share my thoughts, I hope everybody can understand why I am inclined to support the amendments. Nevertheless, I would like to emphasize that if I support the Bill, I hope not to be LEGISLATIVE COUNCIL ― 14 October 2020 87 instantly labelled as a member of the pro-establishment camp. We should appeal to reason, should we not? However, this does not mean that I support the pro-establishment camp. I have to make this point clear.

I will now divide my speech into three parts. The first part is about the problem of refugees in modern countries. Actually, the relevant amendments in the Bill seem very trivial or simple but, in fact, dealing with the problem of refugees is a very complex political issue for modern countries. So, please allow me a moment to elaborate on its very nature. A modern country is made up of several elements, such as border and nationality. These two are the minimum requirements. Of course, military equipment cannot be excepted. The production and appearance of refugees is due to problems with borders and nationalities, or a "rupture", as it is called. That means when, for various possible reasons, such as a natural disaster, a famine, a military coup, political factors or economic reasons, the local people of a place are unable to survive within its borders, it is incumbent upon a modern country, as a member of the international community, to lend a helping hand by providing humanitarian support and some mutual relief based on humanitarian principles and international commitments of a modern country. Therefore, regarding the handling of refugees or their claims, under a very simple and general categorization, some are political refugees and some are refugees arising from such unforeseen circumstances as military or famine conditions. Some people within the borders may have to leave because they are considered illegitimate by the regime or unable to survive in that area. In other cases, it may simply be a personal decision for them to opt to leave as they cannot live any longer in that area.

In reality, statistics show that Hong Kong has a relatively―I emphasize "relatively"―large number of refugees from countries like Pakistan, Bangladesh, India, Vietnam and so on. When different types of refugees come to Hong Kong, we have to face the problems we are now discussing. Does Hong Kong, as a member of the international community, have corresponding legal procedures in place in a bid to differentiate between refugees? Which of them should receive relief based on the humanitarian principles of the international community? For example, if they have been persecuted for military or political reasons, then we have to deal with them. Before 1997, as a British colony, Hong Kong had a relatively stable participatory right in the international arena. Since the handover of sovereignty, and because of the basic rights granted by the Basic Law, we have been treated as a member of the international community. I believe that I have already explained in relatively simple terms the political issues 88 LEGISLATIVE COUNCIL ― 14 October 2020 relating to refugees. For the refugees who came to Hong Kong before and after 1997, of course, we have different legal procedures for selection―not selection, but screening or authentication―so as to decide whether we should take on an international obligation towards them based on the principle of offering care to those who need it for reasons of sudden changes, or on political or humanitarian grounds.

In short, our whole discussion is based on several universal values, such as humanity, human rights, freedom and tolerance. However, in order to implement these basic principles, we have to make legal and political considerations in the local context. Firstly, does Hong Kong have any concrete political relationship with these countries? Secondly, does Hong Kong have the international status to extend the so-called humanitarian hand of friendship? It is a bit discomfiting, even embarrassing, for me to discuss this topic today because a lot has happened in the last two years. I mean, when some refugees from African or other countries come to Hong Kong, we have an international obligation to lend them a helping hand on humanitarian grounds, but the fact is that, as I understand it, Hong Kong experienced a humanitarian disaster last year, and even more embarrassingly, last month some Western countries put Hong Kong people on a special list of refugees, regarding us as "prospective refugees"―President, I have not strayed from the subject. At the end of the day, based on what international status we are …

PRESIDENT (in Cantonese): Dr CHENG Chung-tai, this Council is discussing the Statute Law (Miscellaneous Provisions) Bill 2019 …

DR CHENG CHUNG-TAI (in Cantonese): I got it. I will come back to the subject of the debate. Without clearly stating the principle first, it will be difficult for me to explain in the latter part of my speech why I will support this Bill.

PRESIDENT (in Cantonese): Although some of the amendments proposed in the Bill are related to the issue of refugees, you have already spent a long time talking about the ABC's of refugees. Please return to the subject of the debate on this Bill.

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DR CHENG CHUNG-TAI (in Cantonese): President, you are right. If we do not even understand the ABC's of the issue of refugees, then we can only point the finger at President and the officials in the rest of our speeches. Therefore, in my view, it is inappropriate for Hong Kong to intervene too much in this issue or problem as it involves international power politics, considering that this is only the first step in establishing international relations. The point is: will we be intervening in the politics of other countries by giving relief to the refugees? In fact, there are many specific examples. Germany likes receiving refugees, particularly those from Middle Eastern countries such as Syria. This is a German policy on nationality. So, in principle …

PRESIDENT (in Cantonese): Dr CHENG Chung-tai, please return to the subject of the Second Reading debate on the Statute Law (Miscellaneous Provisions) Bill 2019.

DR CHENG CHUNG-TAI (in Cantonese): Alright, alright, do not interrupt me. So, in principle, I think we were qualified and well positioned to discuss the politics on refugees before 1997, and will be so when Hong Kong is under a specific condition and the Government is elected by the people. Unfortunately, that is not the case. Worse still, in the past two years, Hong Kong has been internationally regarded as a society of "prospective refugees". I am sorry that I have to put a full stop on this point because the concept I just described has rendered my whole position very embarrassing, as I know how critical the situation in Hong Kong is.

I have finished talking about the concept. Now I return to the discussion of this Bill. Under the existing laws of Hong Kong, the Bill is a fait accompli. We had glorious times receiving many refugees in the past. Under the existing mechanism, different people advocate different ideas. Some people say that, given so many refugees―the accumulated cases already in the stage of judicial review involve at least 7 000 people―we should try to examine the possibility of tightening the legal restrictions or raising the threshold, or increasing the number of judges. To top it off, some people even propose to discuss setting up a so-called "isolation camp" having regard to the burden on the local community. From the perspective of local people and society, I consider that all these directions can be discussed, while whether we should support them or not is another story.

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Nevertheless, if the discussion is not about the directions I have just mentioned, but rather about simply having one judge less in the Court, will great injustice occur particularly in appeal cases or as a result of the disposal of cases on paper? I think it is possible, but from the perspective of the interests of Hong Kong locals, I have reservations about the necessity of a complete denial.

Let me cite a very simple experience which is relevant to this matter. I am not straying from the subject. One day two months ago, in the run-up to the Legislative Council election, I set up a street booth at Lei Muk Shue and came across a born and bred South Asian Hongkonger of Pakistani origin. He made a complaint to me, hoping for us to address a rather difficult dilemma. He described two scenarios. First, the problem of refugees in Hong Kong has put locally born and bred ethnic minorities on a sticky wicket because general Hong Kong people can only differentiate others by colour. If you are "yellow", you must be a supporter of democracy. If you wear a blue mask, you must be a member of the pro-establishment camp. Mr Holden CHOW, for example, is surely one. The man said that they are rather distressed by being seen as one of the burdens on Hong Kong people as more and more people in society do not know how to differentiate between races. Of course, they are not a burden, because they are born and bred Hongkongers.

A more pressing problem is beyond our comprehension. I had not known about it until he told me. He said that their ethnic group had been facing some crises in recent years. It never occurred to them that they might be deceived, defrauded and coaxed by their fellow countrymen, who share the same language with them, and even their locally born and bred ethnic minority children had been victimized. To put it simply, we may not be able to communicate directly with our South Asian ethnic minority friends, who may know a little Cantonese, but the people from their homeland communicate with them directly in their own language. This is not an issue about refugees but rather one about the Hong Kong Government's policy to manage the relationship between the refugees and local people. By sweeping everything under the carpet, it pretends that there is no problem, so some people call to defraud others or even coax young children …

PRESIDENT (in Cantonese): Dr CHENG Chung-tai, please return to the subject of this debate. I think you have digressed from the subject.

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DR CHENG CHUNG-TAI (in Cantonese): President, I am explaining the substance. Do you know what is meant by "substance"?

PRESIDENT (in Cantonese): This is the final warning. Please return to the subject of this debate on the Statute Law (Miscellaneous Provisions) Bill 2019.

DR CHENG CHUNG-TAI (in Cantonese): Alright, no problem. Therefore, to me, this has been a more direct reminder over the years. The basic point is that the rights of the ethnic minorities in Hong Kong deserve greater protection, but why is it that, contrary to the universal values that we advocate, such as human rights and humanity, the rights of the ethnic minorities born and bred here have sometimes been infringed upon, as in the case of Nabela Qoser or Q Bobo, who are known to be Hongkongers, while the impotent Government does nothing at all?

Therefore, from the standpoint of a so-called localist or liberalist, I do not think that the debate on the relevant tightening is a matter of black and white. I do not see it as a must to oppose this Bill on a humanitarian standpoint with respect to refugee claims. I do not see it that way. From the standpoint of a Hongkonger, and not merely in consideration of whether our livelihoods, interests or law and order will be infringed upon, as that is only one perspective, but rather under a basic principle, I just want everybody to see clearly that since we already have a role to play in the politics on refugees, I do not believe that a balance can be struck. So, I just hope that everybody will accordingly look at this matter from a longer-term perspective and, if possible, see what can be done to help the local ethnic minorities as far as practicable. Of course, I am not trying to deny the basic human rights of other people on Earth. Regarding this part, I believe that two judges are still capable of judging which arrivals have made refugee claims because of famine, a military coup or some special political reasons, as in the case of SNOWDEN, for example. It certainly involves very complicated political issues that could not be clearly explained by me in a few words just now as related to the amendments in the Bill, or clarified in a simple manner amid President's incessant interruptions to my speech either. If this is the case, please ask yourself a question: do you have the right to restrict the rights of local people? If so, I hope that everybody can lend a helping hand by considering the long-term interests of the local ethnic minorities, and then everybody will understand why I am inclined to support the relevant amendments.

I so submit.

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MRS REGINA IP (in Cantonese): President, I speak in support of the resumption of the Second Reading debate on the Statute Law (Miscellaneous Provisions) Bill 2019 ("the Bill"). The amendments this time around mainly concern two areas, with the major change being the substitution of a bench of three Judges of the Court of Appeal ("CA") with a bench of two Judges dealing with two matters, namely the appeal cases of non-refoulement claims, and the leave to apply for judicial review ("JR"). If the Court of First Instance ("CFI") rejects such claims, they may launch an appeal to CA. According to the proposed amendments, the substitution of a bench of three Judges with a bench of two Judges to dispose of these cases will certainly help to improve court efficiency because the number of Judges required can be reduced by one.

Just now I have heard the speeches delivered by Members from the opposition camp, and they mostly oppose the amendments as if the amendments would undermine judicial independence. I wonder if these Members with opposing views have noted that it was Mr Geoffrey MA, the Chief Justice of the Court of Final Appeal, who had actually suggested these amendments. Last year (January 2019), almost two years ago, towards the end of his speech at the Ceremonial Opening of the Legal Year 2019, he talked at length about the huge problem posed by non-refoulement claims to Hong Kong's courts.

I am going to read out part of his speech: "The final matter I wish to touch upon this evening is related to the heavy caseload I have earlier mentioned. Particularly in recent years, Hong Kong has seen an influx of persons who have made non-refoulement claims, commonly known as torture claims". The entire paragraph was about the overwhelming pressure brought by a large number of applications on the courts. Afterwards, he said in the final part that "The volume of cases dealt with by the Court of First Instance and the Court of Appeal is high and this has resulted in much pressure put on these courts. The pressure is also felt in the Court of Final Appeal. All cases are carefully considered at each level of court, and as a result delays are perhaps inevitable. Additional resources will naturally be required but this alone cannot solve all the problems." That is to say, even the recruitment of more judges cannot cope with the situation. It is because not many people are suitable to be judges, and it is not easy to recruit more judges. "For example, more judges will be needed and this is not just a matter of financial resources." Money does not guarantee the recruitment of good judges. "Further, the deployment of manpower and resources to dealing with non-refoulement claims will certainly have an adverse impact on how we deal with other cases and other judicial work." That is to say that a large number of torture claims and non-refoulement claimants has already affected the LEGISLATIVE COUNCIL ― 14 October 2020 93 other duties of the courts. "The Judiciary will be liaising with the Department of Justice with a view to exploring the possibility of introducing modest legislative amendments so as to facilitate a more efficient handling of such torture claims. Relevant stakeholders will of course be consulted. I hope that we can count again on the support of everyone." In other words, these amendments are initiated by the Judiciary.

The Chief Justice said that he would liaise with the Department of Justice. For that reason, I hope the Solicitor General will respond to that later―he should have liaised with the Judiciary―just now a government official has reminded me that the Judiciary Administrator has attended a meeting of the Panel on Administration of Justice and Legal Services and said that the courts supported and needed these amendments. Even officials and officers from the Judiciary also said that they needed the amendments at the meeting of the Bills Committee because of their heavy workload. But these are just modest amendments which aim at improving the efficiency of the courts. Why should Members oppose them? Why should Members raise so many completely irrelevant and frivolous arguments? They will mislead the public.

Actually, the Bill was initiated by the courts and prompted by their painful experience and the fact that they have needed to spend a lot of time disposing of these non-refoulement claims, which has affected the discharge of other duties of the courts. The amendments were initiated by the courts, the Department of Justice then drafted the amendment bill and introduced it to the Legislative Council for passage.

President, this is an excellent example of cooperation among the three branches of Government.

Just now a Member mentioned the separation of powers among the three branches of Government. I really do not know what he is talking about. In this world, most governments are comprised of three different branches. Each branch will perform its own duty. One of them is responsible for executive administration, another one is responsible for legislative work, while the third one is responsible for dealing with court cases. But none of them is completely insulated from each other. It is untrue that they are doing things completely on its own without any communication with each other. Hong Kong is a place where the three branches of government cooperate and coordinate with each other. The Bill is a good example. When the Judiciary found its efficiency problem and was unable to recruit new judges on a timely manner, it initiated the 94 LEGISLATIVE COUNCIL ― 14 October 2020 amendments and the Department of Justice accepted them. I believe that before the Department of Justice accepted them, the Chief Secretary for Administration's Office ("CS Office") had them. It is because the Director of Administration under the CS Office is the oversight authority responsible for the efficiency of the Judiciary, which will consider if the Judiciary is performing in line with the value for money principle. This is the duty of the Director of Administration. I used to be in that office as I was the Deputy Director of Administration in 1991 when the post of the Judiciary Administrator was created. The post was created after the arrival of Chris PATTEN who considered that the courts had efficiency problems and he therefore instructed us, the Administration Wing under the then Government Secretariat, to create that D8 post, with a view to enhancing court efficiency. For that reason, the three branches of Government are constantly cooperating, coordinating and communicating with each other. It is the cooperation among the three branches of Government instead of the so-called "separation of powers", under which the three branches are supposed to be completely insulated from each other. The so-called "separation of powers" is only a textbook concept which has never been practised in Hong Kong. I do not understand why a Member who has studied in the United Kingdom and gone to a rugby school has said so many irrelevant things for no reason? However, I agree with what the Deputy President, Ms Starry LEE, has said just now. That is, if we want to talk about the subject of separation of powers, we should discuss it on some other occasions.

Now, I would like to say that I support the amendments, especially when I see that a bench of three Judges can be replaced by a bench of two Judges in future for the disposal of JR appeal cases, thus the number of judges required will be reduced by one. President, the threshold for JR in Hong Kong is relatively low with a fee of only $1,045. Anyone can fill in a form, that is, Form 86, and bring the case to the High Court even if he or she makes a wrong claim. Despite a rapid surge in the number of JR cases, many of them are quickly dismissed by the court.

There is a very famous "Cheung Chau king of judicial review" in Hong Kong. Many of his recent JR applications were dismissed. However, in some other cases, I consider the court has failed to play its gatekeeping role properly in such questions as who should be persons of sufficient interest and who should be the affected party. I think that the relevant definitions should be tightened because as far as I know, many residents are affected by these unnecessary JR cases. For that reason, we should expedite the handling of JR applications.

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Solicitor General Mr Wesley WONG, I have no idea about which district you live in? Let me cite an example in the New Territories West. A section of Castle Peak Road between Hoi Wing Road and Hong Kong Gold Coast Phase I, which is just about 1.9 km long―I believe the Solicitor General can jog 1.9 km within 15 minutes―needs to be widened due to the presence of a school in the vicinity, the Harrow International School Hong Kong, which has attracted many middle class people to move to the nearby area. As many parents will drive their children to that school, the nearby roundabout is often very congested. As a result, the Highways Department ("HyD") proposed the widening of that road section from a single two-lane carriageway to a dual two-lane carriageway in 2010. Of course the Government has strictly observed the procedures required by gazetting the proposed project, receiving opposing views from the public, which were eventually conveyed to the Executive Council. The Executive Council subsequently rejected all these opposing views. By 2015, an environmentalist filed a JR by claiming that the Government had not taken into account the latest air quality standards. The JR filed in 2015 was subsequently scheduled for hearing in 2017. Eventually, the High Court handed down its judgment by the end of 2019. It took almost two years to write the judgment …

(Prof Joseph LEE indicated a wish to raise a point of order, Mrs Regina IP kept on speaking)

PRESIDENT (in Cantonese): Prof Joseph LEE, what is your point of order?

PROF JOSEPH LEE (in Cantonese): President, I request a headcount.

PRESIDENT (in Cantonese): Mrs Regina IP, please stop for a minute.

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)

96 LEGISLATIVE COUNCIL ― 14 October 2020

PRESIDENT (in Cantonese): Mrs Regina IP, please continue with your speech.

MRS REGINA IP (in Cantonese): President, I only wish to make a brief conclusion. President, in the example I have cited just now, the road widening project for the 1.9 km section of Castle Peak Road between Hoi Wing Road and Hong Kong Gold Coast Phase I and the minor work to retrofit lifts to an existing footbridge near Sam Shing Estate, were delayed for five years due to a JR. In 2010, HyD proposed the road widening project. The Executive Council rejected some opposing views in 2015. Someone immediately filed a JR, which was not heard until 2017. Mr Thomas AU, Justice of Appeal of CA did not complete his judgment until the end of 2019. It took almost two years. The project was eventually approved in July last year. President, you may find the cost of the whole project quite shocking. The construction cost was as much as $750 million, a world record. Such a minor project would cost $750 million. The widening of a 1.9 km road section and the retrofitting of lifts would cost $750 million and this is how we spend money.

The efficiency of the JR procedures should be improved. For that reason, I very much support today's amendments. I believe today's amendments were initiated by the Chief Justice. Because he mentioned in his speech at the Ceremonial Opening of the Legal Year that modest legislative amendment should be made in order to improve court efficiency. And the proposal must have been seen by the Administration Wing under the Government Secretariat as the Administration Wing is responsible for matters concerning the provision of resources for the courts, the remuneration and benefits of judges, as well as the retirement age of judges and judicial officers. Eventually, the proposal was approved by the Government and referred to the Department of Justice for follow-up actions. It is a good example of cooperation among the three branches of Government, President. The three branches of Government actually cooperate with each other frequently. None of them is completely insulated from the other two, and none of them dominates the other two. I hope the public will understand that this is our genuine constitutional arrangement. I so submit.

MR MARTIN LIAO (in Cantonese): President, it has been the practice of the Department of Justice to introduce, at regular intervals, to the Legislative Council a Statute Law (Miscellaneous Provisions) Bill, proposing amendments that are technical and believed to be non-controversial to various Ordinances for the LEGISLATIVE COUNCIL ― 14 October 2020 97 purpose of updating or improving the existing legislation. Examples from the past include the Statute Law (Miscellaneous Provisions) Bill 2014 and the Statute Law (Miscellaneous Provisions) Bill 2017. Similarly, the Statute Law (Miscellaneous Provisions) Bill 2019 ("the Bill") that we have to deal with this time also concerns the proposal of some technical amendments which should be non-controversial.

The Bills Committee on the Statute Law (Miscellaneous Provisions) Bill 2019 ("the Bills Committee") has held one meeting to examine the clauses one by one. The proposed amendments are divided into four groups. The first group concerns the amendments to the High Court Ordinance (Cap. 4) to enable the court to handle cases, including the non-refoulement claims, more efficiently. Regarding this group of amendments, the Government conducted a public consultation from 17 June 2019 to 6 September 2019, and consulted relevant stakeholders, including the Hong Kong Bar Association ("HKBA") and The Law Society of Hong Kong ("The Law Society"). While The Law Society, expressed general support to the amendments, HKBA raised no objection to them. At the meeting of the Panel on Administration of Justice and Legal Services on 24 June 2019, this group of amendments also gained general support from members of whom I am one.

President, the High Court has seen a tremendous increase in civil caseloads in recent years. In particular, the number of judicial review cases stemming from non-refoulement claims has been soaring. According to statistics, the number of applications for leave for judicial review to the Court of First Instance ("CFI") in relation to non-refoulement claims increased from 60 in 2016 to 3 727 in 2019, representing a surge in their percentage to the total number of applications from 26% to 95%; appeals to the Court of Appeal ("CA") in relation to non-refoulement claims increased from 1 in 2016 to 351 in 2019, representing an upsurge in their percentage to the total number of civil appeals from 4% to 60%; and applications to the Court of Final Appeal ("CFA") concerning non-refoulement claims increased from 0 in 2016 to 388 in 2019, which accounted for 91% of the applications for leave to appeal in civil cases. The operation of the Judiciary has thus been subject to great pressure.

The proposed amendments in the Bill concern the extension of the use of a two-Judge bench of CA ("two-Judge CA") to determine appeals from CFI in relation to its refusal to grant leave for judicial review or its grant of leave for judicial review on terms. This will enable the Judiciary to have more flexibility 98 LEGISLATIVE COUNCIL ― 14 October 2020 in manpower deployment, thereby putting its resources to the best use. Why do I describe this as an extension of use? President, because this is nothing new. Currently, we also have CA consisting of two Justices of Appeal, and this arrangement has long existed.

Actually, President, in the 1980s when I was a law student in the United Kingdom, I had already studied a number of CA cases heard by two Justices of Appeal. In other words, it was quite common to see cases being heard by a two-Judge CA in the United Kingdom―the birthplace of the common law―for a period of time before the 1980s. Therefore, it is nothing new at all. So, how should a case be handled when a two-Judge CA cannot reach a unanimous decision on it? The proposed amendment concerned stipulates that, in addition to a party being allowed to apply for the case concerned to be handled by and re-argued before a three-Judge bench of CA, CA may also make such an order on its own motion. The proposed amendments are among the measures for easing the pressure on the Judiciary in handling cases about non-refoulement claims. Other measures include: expediting the average processing time for each claim from the initial 25 weeks to 10 weeks by the Immigration Department through manpower redeployment and streamlining the process; increasing the number of members in the Torture Claims Appeal Board ("TCAB") and the staffing of TCAB Secretariat; and reviewing the Immigration Ordinance to plug loopholes prone to abuse of process at source. Moreover, in order to further enhance the efficiency of the Judiciary in handing cases, the Bill also clarifies that an additional judge in CFI or CA has the power to dispose of cases on paper without physically "sitting" in court.

President, the three other groups of amendments proposed by the Bill are simpler and more straightforward in nature, namely: amending the Interpretation and General Clauses Ordinance (Cap. 1) so that references made to an Ordinance may be made according to the title, short title, citation, number or chapter number used in the verified copies of the Ordinance printed from the approved website of an electronic database of the legislation of Hong Kong in addition to those used in copies of the Ordinance printed by the Government Printer; standardizing the Chinese text of the defence containing the phrase "could not with reasonable diligence" in various Ordinances to reflect its meaning more explicitly; and making other miscellaneous amendments, including updating the references to the titles of certain Ordinances, achieving consistency in certain expressions, repealing provisions which were superseded by subsequent amendments before they came into operation, and making provisions for correcting other minor errors. LEGISLATIVE COUNCIL ― 14 October 2020 99

As for the Committee stage amendment, it ensures that the re-argument arrangement referred to in the first group of amendments will apply to the situation where a four-Judge bench of CA cannot reach a unanimous decision on a civil appeal, which is in line with the original intent of the Bill. Also, this Committee stage amendment proposed by the Government is non-controversial and members of the Bills Committee have no questions about it.

President, I support the Bill and the amendments proposed by the Administration. I so submit.

MR HOLDEN CHOW (in Cantonese): President, I speak in support of the Statute Law (Miscellaneous Provisions) Bill 2019 ("the Bill").

In regard to the subject today, Members have focused their discussion mostly on section 34 of the High Court Ordinance which is about extending the use of a 2-Judge bench in dealing with appeal cases. In fact, this topic is not complicated. But from this morning till now, what I find rather astonishing is that Mr Dennis KWOK, who represents the legal sector, has ignored the most basic Rules of Procedure by his incessant digression in an attempt to impede the proceeding of the meeting. I really have no idea how he can represent the legal sector.

Coming back to the theme, the Bill is under our discussion today. As I mentioned earlier, Members' discussion is rather focused on the corresponding amendment to section 34 of the High Court Ordinance. The original intent of the amendment is for a 2-Judge bench to handle some related appeal cases. As we all know, there is a huge number of applications for leave for judicial review ("JR") and appeal cases in relation to non-refoulement claims at present. From some statistics provided by the Government, the number of JR cases involving non-refoulement claims―President, please allow me to elaborate a little here―the number of cases was 1 006 in 2017. It drastically jumped to 2 851 cases in 2018 and was as high as 3 727 cases in 2019. These figures are related to JR cases involving non-refoulement claims.

All along, we have been aware that some of these non-refoulement claims may involve abuse of the judicial procedure or the so-called "bogus refugees" problem, which has been mentioned by many colleagues today in the Chamber. In the past, this problem has cost the Government a lot of resources. But when the procedure is abused, we must deal with it. This amendment to the Ordinance 100 LEGISLATIVE COUNCIL ― 14 October 2020 is precisely to allow the Court of Appeal to adopt a more flexible approach to deal with a part of the procedure concerning application for leave for judicial review. We can imagine that when the number of judges on the bench is reduced from three to two, the process is expected to speed up and more cases can be handled with the flexible deployment of manpower. This is a very simple truth.

Of course, as I have also noticed, some colleagues from the opposition camp particularly query today whether justice can be manifested if the number of judges on the bench is reduced from three to two to deal with the cases. Nonetheless, as we are actually also cognisant, the 2-Judge bench arrangement is already applicable to some appeal cases, especially those concerning interlocutory orders. Under the current arrangement, the appeal cases concerned can be dealt with by a 2-Judge bench, and this is not something new. Hence, if a Member has read all the papers, he will know that our discussion today is about extending the use of a 2-Judge bench arrangement. Besides, I say that this arrangement is "not something new", because apart from its application under the current mechanism, I also notice that this 2-Judge bench arrangement in dealing with appeal cases has also been practised in the United Kingdom. Members may read the Senior Courts Act 1981 which has clearly provided for this. Therefore, this is not something new, and we are only extending the use of this arrangement with a view to allowing a 2-Judge bench to deal with the appeal cases concerned.

Today, a colleague has asked what will happen in case the two judges cannot reach a consensus. We have already seen very clearly that according to this amended arrangement, if the two judges cannot reach a unanimous decision, there can be a rearrangement for the appeal case to be heard by a 3-Judge bench. I also have to raise one point here. Although this situation will happen for sure, how often will it happen? Or will it be very common that a unanimous decision cannot be reached by the 2-Judge bench in the future? Some colleagues have attended the meeting of the Bills Committee and in accordance with their speeches today, I learn that this scenario is not common. I also want to highlight that if, among the large number of applications for leave for JR and appeal cases in relation to non-refoulement claims, an overwhelming majority of them involve some kind of abuse of procedure as pointed out by us, theoretically speaking, it should be easier for two judges to reach a consensus. Past experience tells us that many people abused the procedure concerned and as a result, there were a lot of unsubstantiated cases of appeal. In fact, it should be easier for two judges to reach a consensus. Therefore, my elaboration in this aspect here is worthwhile.

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Nevertheless, I also need to point out that with this arrangement, it is hoped that the Judiciary can effectively handle the backlog of JR cases which has amassed in recent years. It is my wish that through this arrangement, the Judiciary can process the related cases more quickly, deal with them in a better manner and streamline some procedures. Of course, we may not be able to predict immediately how much time can be saved after this arrangement is put in place, and I believe this is also a question that many colleagues in the Council will ask. Although I have not attended the meeting of the Bills Committee concerned and I am not one of its members, I know that some members of the Bills Committee have especially raised this question.

Therefore, it is also my wish that with the implementation of the arrangement concerned, the Judiciary, the Administration or the Department of Justice can closely monitor the amount of time saved, and if possible, will record the data in an organized manner so that it can give an account to Members in the future. Hence, we think that through this arrangement, the backlog of JR cases can be dealt with effectively. I so submit.

MR LEUNG YIU-CHUNG (in Cantonese): President, undoubtedly, quite many asylum seekers are now stranding in Hong Kong, including those waiting for their claims to be screened by the Immigration Department ("ImmD") or those waiting for appeal and a judicial review ("JR"), and those who will be repatriated and are waiting for repatriation. According to government data, there are about 13 000 such people. The number is indeed quite large. As for the cases pending trial at the Court of Appeal ("CA"), their number is about 6 400. These cases will increase the workload of the court. Hence, the Government now proposes to let these appeal and JR cases be handled by a two-Judge CA instead of a three-Judge CA. The objective data may support the need to clear these cases, but I do not think it is enough to consider only the data last year and not the other aspects.

Many colleagues provided data just now. For example, these cases have been increasing from 2016 to 2019, and the surge in JR cases was particularly alarming. Undoubtedly, the data is true and not arbitrarily fabricated by the Government. However, I must tell Members some opposite data. The number of torture claims or non-refoulement claims has dropped from 8 851 cases in 2014 to 1 213 cases in 2019. It is evident from the data that torture claims or non-refoulement claims have substantially dropped. Yet, just now, I did not hear any Member cite these data. Perhaps all of us are just selecting what we 102 LEGISLATIVE COUNCIL ― 14 October 2020 need and show only part of the data. Anyway, the data reflect the truth and reveal the real situation about those who have come to Hong Kong to file torture claims or non-refoulement claims.

The question lies in why there are so many people coming to Hong Kong to file torture claims. Many pro-establishment Members have been saying that these claimants want to come to Hong Kong to seek welfare benefits because they think that it is easy to get welfare benefits in Hong Kong, so they all come here. But I wish to talk about whether the welfare benefits in Hong Kong are truly that attractive. President, when the number of people is large, there is bound to be a black sheep in every flock. But is it true that some of them come here for welfare benefits? I cannot say for sure. But are their living conditions after arrival in Hong Kong truly that desirable, that good? I wish to point out what they can do after arrival in Hong Kong for the purpose of seeking asylum. First of all, they are not allowed to work in Hong Kong.

Second, they are only entitled to $1,500 rent allowance every month and a minor is entitled to $750. President, what kind of accommodation can they rent with the $1,500 housing allowance? How good is the living environment? Is the welfare benefit really that attractive? In this Council, we have been describing how terrible the living environment of a subdivided unit is. Besides, the monthly rent of such a unit in the urban area exceeds $1,500. They simply cannot afford to rent one. So, after arrival in Hong Kong these people can only live in accommodation in remote districts in deplorable conditions.

Besides, an adult torture claimant is entitled to a food allowance of $1,200, which is provided in the form of e-tokens similar to an Octopus card, and the e-tokens are restricted to be used at designated supermarkets. Any e-tokens left unused at the end of the month will be forfeited. In other words, the e-tokens are not cashable and they cannot save up the money. Just imagine what they can afford to eat with $1,200. I must ask again how attractive this is.

Fine. Perhaps only these aspects are like this. It may be a little more attractive when it comes to education. A minor (i.e. people aged below 18) can study in primary and secondary schools in Hong Kong. However, those aged above 18 cannot continue with their education no matter how good their school results are. All in all, regarding accommodation and food, they …

(Mr Paul TSE indicated his intention to raise a point of order)

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PRESIDENT (in Cantonese): Mr Paul TSE, what is your point of order?

MR PAUL TSE (in Cantonese): I thank Mr LEUNG Yiu-chung for telling us the plight of torture claimants. But President, he has spent too long on an unrelated subject.

PRESIDENT (in Cantonese): Mr LEUNG Yiu-chung, a number of Members have talked about this argument concerning torture claims. Please come back to the subject of the Second Reading debate on the Statute Law (Miscellaneous Provisions) Bill 2019.

MR LEUNG YIU-CHUNG (in Cantonese): President, I truly do not understand why you say I have digressed from the subject. Some people said that many people came to Hong Kong to file torture claims, thus creating a large caseload at the court and leading to the need to amend the existing ordinances. I thus talked about whether Hong Kong was really so attractive that they were all drawn to Hong Kong. So, in order to explain this problem …

PRESIDENT (in Cantonese): I hold that you can make a brief reference, but you should not …

MR LEUNG YIU-CHUNG (in Cantonese): President, my reference is already very brief. I have not … I can explain in greater details.

PRESIDENT (in Cantonese): Mr LEUNG Yiu-chung, I have advised you to return to the subject of the debate. Please follow the rule of the debate and return to the subject.

MR LEUNG YIU-CHUNG (in Cantonese): President, I have duly followed the rule of the debate. In what way have I violated the rule?

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PRESIDENT (in Cantonese): I already reminded you. A Member also pointed out that you had digressed from the subject. Please come back to the subject of the Second Reading debate on the Statute Law (Miscellaneous Provisions) Bill 2019.

MR LEUNG YIU-CHUNG (in Cantonese): I think the legislative amendments proposed in the Statute Law (Miscellaneous Provisions) Bill 2019 ("the Bill") have been the result of the large backlog of court cases stemming from the illegal immigrants who have come to Hong Kong to file torture claims. I think they have special reasons to come here, and one of the reasons is that their country of origin is facing some racial, religious, political or human rights problems, so they come to Hong Kong. This should be the crux of the matter. Hence, they are not seeking to have their non-refoulement claim substantiated. They are seeking to have their torture claim substantiated, so that they can go to a third country to start afresh. This is a very important point.

Hence, I hold that in considering this problem, we should not consider only the problem of "bogus refugees"; we should also consider the actual backgrounds and the needs of these people. Besides, I wish to further point out that, according to the statistics mentioned just now, applications for leave to appeal have been on the increase since 2016. But have we ever thought about why such applications have been increasing? If we only consider the present phenomenon for a solution to the problem without probing into the cause, it is the same as "chopping off the toes to avoid insect bites".

I remember Mr Kenneth LEUNG also mentioned the statistics just now. He said ImmD only had only some 280 remaining cases last year. The outstanding cases have dropped from several thousands to only 200-odd, which is a very small number. Why ImmD could expeditiously screen some many cases? It depends on whether ImmD, when it considered these cases, has duly followed the practice directed by the Court of Final Appeal in its judgment in 2013. The judgment says that in deciding to reject an application by a claimant and repatriate him to his country of origin or to another country, the Director of Immigration should duly investigate or consider whether the decision will subject the claimant to a high risk of danger. So, the problem hinges on whether ImmD has followed this criteria.

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Many claimants think that their applications have not been fairly and impartially considered by ImmD, thus resulting in a large number of JR cases and applications for leave to appeal. Hence, we should find out the root cause. I am not saying that we do not need to tackle the present problem, but more importantly, we need to find out why there are so many appeal cases and whether ImmD has heen a suitable gatekeeper. But regrettably, our discussion today fails to consider the problem from this perspective and only tries to solve the problem based on the present situation. I thus do not think this is an appropriate and comprehensive approach. I hope the authorities concerned can comprehensively tackle this problem, rather than taking a piecemeal approach. It is because the latter approach is not a pragmatic solution that can truly and comprehensively solve the problem.

President, apart from the problem just mentioned, I think there are other more pressing problems to be tackled. Mr Holden CHOW pointed out just now that the substitution of a three-Judge bench by a two-Judge bench had been the practice in many countries. So, he thinks it is no big deal. This approach may have already been adopted on some cases which have been heard by a two-Judge bench instead of a three-Judge bench. But may I ask why three Judges were needed in the first place? Have we ever thought about the reason? Was it because the courts were so idle and there were so many judges that three judges were arranged to hear cases? And now the cases are so numerous and manpower so inadequate that they change it to a two-Judge bench? Is the reason that simple? I believe Members do not think so. Apart from being an odd number, which enables a decision to be reached by a simple majority, more importantly, a three-Judge bench, in my opinion, can provide additional views in the deliberation process.

It is difficult for a two-Judge bench, however to reach a unanimous decision in case the two Judges hold opposing views. Some people say that in case a unanimous decision cannot be reached, the case can be re-argued before a three-Judge bench after the amendment is passed. But I hold that even if the two Judges have a unanimous view, more arguments can be provided for consideration if a third Judge is present. I thus think that the original arrangement of a three-Judge bench has its practical usefulness meaning. Although a two-Judge bench has already been adopted in the United Kingdom, as a Member pointed out just now, is it a must that we do the same? This is the point we need to think about.

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Just now, I said that we should find out the root cause. Why do we only consider the problem facing us and ignore the root of the problem? This is something questionable. And more importantly, although we are facing a large number of people now stranded in Hong Kong, should this become the reason to "chop off the toes to avoid insect bites" and refuse to explore other means to more effectively solve the problem once and for all? The present proposal can only address the appeal problem but not the other problems, including how ImmD is going to handle such cases.

So, I hold that in discussing these new amendments today, we should have more discussion about how ImmD is going to handle such cases. We know that after ImmD has reached a decision on a torture claim, the claimant can still go to the Torture Claims Appeal Board ("TCAB") to appeal against the decision. But many people question whether TCAB can openly, fairly and impartially consider the appeal cases, and this remains unconvincing. I thus hold that the most important thing in tackling this problem is to deal with these several aspects, rather than tackling it from the end point.

President, I am not convinced that the Bill will enable such cases to be handled in a reasonable manner. Also, I am concerned whether TCAB can fairly, impartially and reasonably allow claimants to explain their situation. I thus cannot support the amendments introduced by the Bill. I so submit.

MR ALVIN YEUNG (in Cantonese): President, on seeing that Secretary CHENG has finally returned to Hong Kong, I wonder if she has had a hard time taking notes today and is going to share with us later in the day some wisdom of hers?

I would like to respond to Mrs Regina IP's remarks in the first place, who has delivered her speech just now. Having spoken at great length, she pointed out that there is "cooperation of powers" only while citing plenty of examples. I would like to remind Members that she had taken up senior positions in the Government since 1991 and worked under Chris PATTEN. Fortunately, she has just risen to speak, so that Members are reminded that only a few evil remnants of British colonial rule in Hong Kong still hold office as Members of this Council. Of course, since Mrs IP considers herself, both in the Council and the pro-government party, the only person qualified to be the Chief Executive, she does have such authority, but I would like to remind her―had she still not joined LEGISLATIVE COUNCIL ― 14 October 2020 107 the Government when the separation of powers was put forth? Was she not an official of the SAR Government back then when Hong Kong reunited with its Motherland in 1997? The words, "separation of powers", were imprinted on the brochure at that time, why did she not raise objection then? Why did she not raise objection during the many years which she served as a member of the Executive Council? It turned out that she suddenly woke up from her dream this year―has she just come to Hong Kong?

In addition, President―someone shouts again, will you please remind those people not to shout in their seats, in particular those who think they can be the Chief Executive? In addition, the person I would like to respond to is Mr Holden CHOW. Why did he speak of Mr Dennis KWOK? He said that he did not understand why Mr Dennis KWOK could become a representative of the legal sector. Well, the winner won the election because he has gained the majority of votes. Should Mr Holden CHOW be capable, he can also take up the challenge in the legal sector.

As regards the Statute Law (Miscellaneous Provisions) Bill 2019 ("the Bill") which we discuss today, President, many Members have also mentioned its main purpose, and today's bone of contention is the number of judges of the Court of Appeal ("CA") constituting a bench to determine cases of appeal under the High Court Ordinance ("HCO"), that is, applications for leave to appeal to the Court of Final Appeal against the decisions made by CA consisting of less than three Justices of Appeal and appeals against the Court of First Instance's decisions to refuse to grant leave to apply for judicial review. These matters sound like some sort of technical issues, and the authorities have also explained that amendments have been proposed in the face of a sharp increase in the number of applications for leave to apply for judicial reviews in relation to non-refoulement claims. Undeniably, the increase from 60 cases in 2016 to more than 3 700 cases in 2019 did have imposed enormous pressure on the courts, and the courts opined that the lower limit of the number of judges in a bench should be reduced from three to two in the processing of such applications in the hope that more cases can be handled by fewer judges within the same time frame.

Seemingly, the logic of "too many cooks spoil the broth" sounds correct, but what does the situation look like? It just looks like the pro-government party's pushing through the reduction of the number of Members required to constitute a quorum in the committee of the whole Council from 35 to 20. The only thing they have in mind is to get the job done, but did they get the job done 108 LEGISLATIVE COUNCIL ― 14 October 2020 properly? No one knows. President, we certainly understand that the work efficiency of law courts will definitely be affected given the 60-fold increase in the number of applications within four years coupled with the shortage of judges. We also understand that if the courts have to use a great deal of time and resources to process these applications for judicial reviews involving non-refoulement claims, those applications for leave to apply for judicial reviews by Hong Kong people will inevitably be affected then and it may directly result in longer waiting time. Furthermore, we understand that some people consider all such claimants to be, as what they call them, "bogus refugees" who applied for judicial reviews only in the hope of prolonging their stay in Hong Kong after they had been screened out under the unified screening mechanism ("USM") and were pending repatriation to their countries of origin, but these are only the claims of those making the allegations. We understand that such cases are present, but is it sufficient to constitute a cause for introducing material changes in the system? President, even the Hong Kong Bar Association also queried if we are simply making such changes to address the problem of lengthy waiting time.

Let us start by talking about why there should be three judges in the bench. The reason is simple, so simple that even Dr CHIANG Lai-wan had also thought of at the Bills Committee meeting―she mentioned that judicial review is everyone's basic legal right―but it may be considered a kind of dictatorship if there is only one judge to determine whether leave for application is granted; if determination is made by a 2-Judge bench where the two judges hold opposing views, it will take a great deal of time for them to come to terms with each other, even making it impossible to conclude the case in question; when there are three judges to determine, it can avoid both the accusation of dictatorship and a possible deadlock resulting from the 1:1 situation, so that a verdict can be reached with a minimum number of judges. Hence, President, a 3-Judge bench is definitely not set at will, which has been tested over the years and considered to be cost-effective and the best for protecting the legal rights of all parties.

As far as economic benefits are concerned, President, not only the work efficiency of law courts but also the interests of all parties involved should be taken into account. Although the Judiciary Administration remarked at the Bills Committee's meeting that it was very rare for the two judges fail to reach a unanimous decision, which I do understand, each case means everything to the applicant concerned. It does not mean anything to the applicant no matter if only one or five out of 10 000 cases fall(s) into that category because he may have to spend extra waiting times, pay additional legal costs and undergo further LEGISLATIVE COUNCIL ― 14 October 2020 109 suffering as long as something may go wrong with his case. President, this is a situation that everyone may have to face and no one wishes to see the introduction of legislative amendments that are unfair to all. Let us not forget that while we hope to change the 2-Judge bench to a 3-Judge bench this time, the amendment will affect not only those claimants who illegally enter Hong Kong as the cases filed by Hong Kong people will also be affected after the legislation is amended.

President, it was made clear in both last year's Policy Address and the Security Bureau's reply to the Council's question at the end of last year that the number of non-refoulement claims has fallen sharply, that is, the number of people who are forced to leave their homes and have chosen to come to Hong Kong because of political persecution or war has been gradually decreasing, and so the number of applications for judicial reviews by those whose claims for refugee status have been rejected under USM is bound to decrease. Has the Administration really hit the nail on the head by amending the legislation concerned now? President, even if it goes that way, but will the Judiciary ask the Secretary for Justice to come here again to amend the law in order to resume the 3-Judge bench by the time the courts have finished processing all the non-refoulement claims and the caseloads have returned to normal levels?

President, the ups and downs in the number of cases are brief but the changes in the whole system last long and may even be permanent. I hope Members will ponder this point and think it out before voting. In this connection, the Hong Kong Bar Association made it very clear in its written submission dated 21 June 2019 and sincerely pointed out that the changes proposed by the SAR Government this time will, as I have said just now, have far-reaching impacts on the system. There will certainly be a large backlog of cases when caseloads gradually enter the bottleneck stage. According to the SAR Government's past experience, the Immigration Department would increase its manpower as necessary when facing a bottleneck in manpower; when the appeal board was facing a bottleneck in manpower, it would increase its manpower. And now, it is the Judiciary which is facing a bottleneck in manpower, but why increasing manpower is not taken as the real solution then? Why we have not heard anything about the Judiciary's attempt to appoint more judges to deal with the problem? Of course, I understand that it is absolutely no easy task to recruit judges nowadays. Given a particular situation like that of 2020, how many aspirant people are still willing to join the Judiciary? I do not think we should be optimistic.

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When all is said and done, however, taking the easy way out without getting to the core of the problem is no real solution at all because the problem of bottleneck will remain unresolved if the same logic is further applied. Will it work if the number of judges is further reduced from "two" to "one"? Will the work efficiency be enhanced then? Of course, this is something we do not wish to see, which runs counter to CA's past practice in handling those cases, and we will not support it for sure.

President, when it comes to the "right cure", it is certain that the root cause of "sickness" (i.e. the accumulation of a large quantity of court cases today) lies not in those refugees forced to flee from their homes by war nor the low work efficiency of law courts but the total failure of USM. Putting in place a mechanism with a success rate of less than 1% is tantamount to asking people not to proceed to file applications or telling people that they can apply but should expect judicial reviews to follow. While USM is too difficult to applicants, the group of officials in charge of screening have failed to correctly identify applicants' countries of origin. The mechanism is thus reduced to nothing more than a set of formalities prior to the bringing of a judicial review and has no substantive screening effect in fact.

President, we saw that some officials responsible for the relevant screening work rely solely on Wikipedia on the Internet and this is a real cause for concern. Their job is different from the homework of primary and secondary school students, and even for the latter, the teachers will require the students not to rely solely on Wikipedia, not to mention the processing of applicants' non-refoulement claims. Is it not a bit too flippant?

Xunzi said, "A river of clean headwaters is limpid, while that of a muddy source is murky." What does this mean, President? If the water in a river is cloudy, it will not become pellucid no matter how hard you try at the lower stream to make it clean. This is exactly the case of Hong Kong's law courts which are at the lower stream of this cloudy river and have to do what President XI has said: "Take precautions at the source to prevent a problem from emerging and cut it at the roots." Did Secretary CHENG take these words down? They are important. What we ought to do is not consider the Bill but reform USM. Naturally, a foreigner who has come to Hong Kong for help need not go one step further to approach the Judiciary to apply for leave should he be given a fair screening. Throughout the screening process, we need to proactively train the screening officers and not judges, who should be taught not to rely solely on information on the Internet because so doing is really dangerous. LEGISLATIVE COUNCIL ― 14 October 2020 111

President, I understand that it may be of little significance for us to, all too easily nowadays, speak of seeking justice from law courts, law and order as well as the courts' standard of fairness. However, we still depend on the Judiciary, as the representative of the rule of law in Hong Kong, to uphold certain principles no matter how bad the situation has become, particularly when judicial independence has come under challenge for the time being. We hope that the changes introduced by the Judiciary are not meant to bring about only ephemeral improvement in efficiency at the expense of some of the most fundamental principles because in most cases, there will be no going back once changes are made.

With these remarks, I oppose the Bill on behalf of the Civic Party.

PRESIDENT (in Cantonese): Mr IP Kin-yuen, please speak.

MR ALVIN YEUNG (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)

PRESIDENT (in Cantonese): Mr IP Kin-yuen, please speak.

MR IP KIN-YUEN (in Cantonese): President, this is the Second Reading debate on the Statute Law (Miscellaneous Provisions) Bill 2019 ("the Bill") today. As indicated in the documents submitted by the Government, the proposed amendments under this agenda item are mainly about the issue of consistency of terms in various Ordinances and the arrangements to give convenience to the public in making reference to the latest electronic legislation database in respect of the existing legislation. That said, the amendments to the High Court 112 LEGISLATIVE COUNCIL ― 14 October 2020

Ordinance mentioned in the Bill are open to debate. If passed hastily, these amendments may possibly set a dangerous precedent for judicial process in the future.

(THE PRESIDENT'S DEPUTY, MS STARRY LEE, took the Chair)

Deputy President, the amendments to the High Court Ordinance (Cap. 4) as proposed in the Bill mainly seek to deal with the soaring number of civil cases in recent years, especially the excessive number of judicial review cases relating to non-refoulement claims. According to the statistics of the High Court, there has been an increase from 60 cases in 2016 to 3 727 cases in 2019 in relation to the applications to the Court of First Instance for leave for judicial review stemming from non-refoulement claims. Looking at this rate of increase, we can understand that the Court has been subjected to immeasurable pressure. Obviously, the authorities seek to reduce Judges' workload through improving the administrative efficiency of the Judiciary with the present legislative amendments. We can see this point. However, extending the jurisdiction of the Justices of Appeal by amending the number of Judges on the bench of a Court of Appeal ("CA") from three to two is just a palliative measure which cannot address the root cause of the problem. Even though this may seem to reduce Judges' workload in the short run, Judges probably have to use the time saved to deal with more applications for judicial review or leave to appeal in relation to other civil cases. Generally speaking, it is hard to estimate the time required for the Court to handle a case. The duration from the beginning to the end of a trial can only be estimated based on the documents produced by the prosecution and the defence, and their preparation for court appearance. Also, the original intent of having not less than three Judges on the bench of a CA is to tackle the situation where there is no consensus among Judges, and to enable the applicants to get a fair judgment. So, can this amendment really reduce the workload of High Court Judges while ensuring claimants to get a fair and impartial judgment? This is questionable.

According to the statistics provided by the Hong Kong Bar Association, since the implementation of the new unified screening mechanism in 2018, the number of non-refoulement claims dropped to 546, and further decreased to 275 LEGISLATIVE COUNCIL ― 14 October 2020 113 in March 2019. This means that the number of non-refoulement claims has passed its peak and should no longer be among the sources of caseload pressure on the Court, or at least, will impose much less pressure on it in the future.

In fact, the caseload pressure on the Court stems from the applications for leave to apply for judicial review. Based on the information stated in the previous reply by the Government, as at end April 2020, ImmD have determined 17 618 non-refoulement claims under the unified screening mechanism, among which 179 claims were substantiated. With the substantiation rate being about 1%, i.e. about 99% being unsubstantiated, the number of judicial review cases thus arising is on a constant rising trend. On the surface, the unified screening mechanism welcomes applications, but its threshold is so stringent that claimants seem to need luck in order to pass the screening. To claimants seeking humanitarian assistance, their claims really matter to them, so they have no alternative but to take their chances, hoping to get temporary asylum through their applications and stay away from their countries of origin where they have been under threat. Nonetheless, the present situation is that 93% of the claimants are not legally represented. Faced with the complicated court proceedings in Hong Kong without any knowledge about the law of Hong Kong, they can only handle their cases all by themselves. While it is true that Judges are confronted with an enormous workload, we have to appreciate the fact that the claimants are humanitarian assistance seekers whose circumstances warrant a fair judgment, or their lives will be seriously jeopardized. Therefore, we should attach great importance to an impartial screening mechanism for non-refoulement claims, and a just and serious procedure for processing judicial review. They should at least be as important as, if not more important than, the issue about the workload of the court.

Deputy President, the authorities should first review the humanitarian assistance scheme for non-refoulement claimants and the screening mechanism, establish a timetable for short-term plans and action plans, lower the threshold for screening under the universal screening mechanism, and provide legal representation for the claimants, so as to ensure their access to proper humanitarian assistance and fair treatment. Meanwhile, the authorities should also reduce the workload of the court by increasing its manpower. As learnt from the present statistics, there are altogether 14 Judges responsible for handling applications for appeal at High Court, but still failing to meet the caseload 114 LEGISLATIVE COUNCIL ― 14 October 2020 demand. In this case, even if the present amendments are passed, they can merely serve as short-term measures based on administrative considerations and are just like a drop in the bucket with relation to the enormous workload of the court.

Deputy President, we certainly understand that court proceedings will take at least a year or so, and in many cases, the process is long drawn out, taking some four to five years. However, defending justice must be taken as our guiding principle, and we should not forsake the importance of a fair trial arbitrarily for administrative efficiency. While giving thought to improving the work efficiency of the Judiciary, the Government should actually review the existing judicial system and the unified screening mechanism to draw up an improvement proposal to address the root cause, thereby enabling the public and the claimants to get a clear and fair judgment. I so submit.

DEPUTY PRESIDENT (in Cantonese): Dr Junius HO, please speak.

(Mr HUI Chi-fung indicated his wish to raise a point of order)

DEPUTY PRESIDENT (in Cantonese): Mr HUI Chi-fung, what is your point of order?

MR HUI CHI-FUNG (in Cantonese): I request a headcount.

DEPUTY PRESIDENT (in Cantonese): Mr HUI Chi-fung 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)

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DEPUTY PRESIDENT (in Cantonese): A quorum is now present in the Chamber.

Dr Junius HO, please speak.

DR JUNIUS HO (in Cantonese): Deputy President, today is a brand new day that marks the beginning of the Legislative Council following an extension of its tenure by one year. I hope Members can make the best of their time in this legislative session and do something meaningful.

Here, I wish to express strong condemnation against Mr HUI Chi-fung. If he thinks that he is qualified as a Member, he should set a good example and play by the rules. His requests for a quorum count at half-hourly intervals are tantamount to abusing the procedure. Deputy President, my counting shows that there have already been eight or nine headcounts so far today. This has wasted not only the time and money of Hong Kong people but also the time of the legislature. I hereby make an appeal to Members: If they find anything disagreeable, they may talk it out in a back alley instead of wasting our time here. Okay?

Deputy President, I strongly support the Statute Law (Miscellaneous Provisions) Bill 2019 ("the Bill"). We are now at the Second Reading stage. Earlier on, Mr Martin LIAO already gave a thorough explanation on the background and main theme of the Bill in simple language. Its purpose is to alleviate the long-standing case backlog at present, nothing else. Any delays in case hearings will constitute unfairness to the parties involved. This is the reason why the relevant amendment proposes to reduce the composition of a Court of Appeal from three Justices of Appeal―a three-Judge bench―to two. This is up to standard in law and is actually based on consideration for the overall interest.

While the rise in the number of the relevant cases has slightly slowed down now, the total amount is still alarming. Therefore, everybody hopes that the authorities can accede to the advice on enhancing the current procedure. The reason is that an enhancement of judicial officers' efficiency in hearing cases can indeed help to alleviate the case backlog. Members can get a general picture through simple computation. At present, there are 12 Justices of Appeal in the Court of Appeal. If a Court of Appeal must be constituted by three judges, only 116 LEGISLATIVE COUNCIL ― 14 October 2020 four Courts of Appeal can be formed. However, suppose a Court of Appeal can be constituted by two judges, six Courts of Appeal can be formed, representing a 50% increase in the total number. This is something desirable.

Besides, this arrangement will not dilute individual rights or the administration of justice. Why? The reason is that suppose two of the three judges are in the majority, then their decision will carry. In case one of the three judges dissents from the other two judges who hold the same view … Even if the composition is to be adjusted downwards to two judges, the court may revert to the mechanism with the composition of three judges in case of a one-against-one situation. From this, we can see that the proposed arrangement will not cause any unfairness to the applicant at all. Anyone with some knowledge in Primary Six mathematics will know that the probability and the arrangement are simply fair.

Furthermore, will the proposed arrangement cause any unfairness to appeals? Just now, Mr LEUNG Yiu-chung argued that it already sufficed to amend the relevant screening mechanism without having to amend the appeal mechanism. His argument shows that he does not quite understand the key point here. Even though he has been a Member for some 20 years, I think he is actually in a "sleep mode" most of the time. What is the process preceding the appeal procedure stipulated in the Bill now under our discussion? USM, the unified screening mechanism. The relevant applications will first be processed under this mechanism. And just now, Ms YUNG Hoi-yan also mentioned a backlog of some 20 000 cases. After the screening process, around 10% of the applicants may be discontented about the result. They may lodge an appeal with the board of review concerned. This is the appeal mechanism at the second tier of the administrative framework. If an applicant is still unsatisfied with the result, he may apply for a judicial review ("JR") since the result is based on an administrative decision. This is the time when the JR mechanism is activated, and his JR will be handled by a single judge. This is the third stage.

How many JR cases are pending as we were told earlier on? 3 727. How many judges are there in the High Court? Some 40 judges. But the point is that not all of them are responsible for hearing JR cases. Only a handful―around six or seven―of them are responsible for such cases. But they already have to take up nearly 3 000 JR applications involving non-refoulement claims, torture claims or refugee claims. This figure has not included applications filed by KWOK Cheuk-kin and the like. To the six or seven judges who are responsible for hearing JR cases, this workload is already very heavy. LEGISLATIVE COUNCIL ― 14 October 2020 117

But that is not the end of the relevant process. Anyone who is not satisfied with the JR result may file an appeal with the Court of Appeal, the subject matter of our debate today. The relevant amendment seeks to reduce the composition from a "three-judge bench" to a "two-judge bench", with a view to widening the bottleneck. It has been argued that this is not safe because the situation of "one against one" or a split decision may possibly arise. Should this happen, the applicant will be given a second bite of the cherry, in the sense that his case will be heard for a second time before another Court of Appeal. The hearings before a Court of Appeal at tier four will be equipped with "option B". In other words, there are five tiers altogether. If the applicant is still unsatisfied with the result after his case has been heard before a three-judge bench, he may lodge an appeal with the Court of Final Appeal. In other words, the existing procedure will be increased from five tiers to six tiers. May I ask which place in the world has such a high rating in the judicial aspect, freedom and fairness as Hong Kong?

I must thank Mr Paul TSE today because he has given me a book as a gift. Instead of sitting here and listening to their nonsensical speeches … I want to say here that Mr Holden CHOW is really something. Earlier on, he pointed out the misconceptions on the part of Mr Dennis KWOK. Mr KWOK should be humble and listen to him. But Mr Alvin YEUNG, holding his head up high, nonetheless reproached Mr Holden CHOW in his speech. Speaking of the topic for discussion today, if they were as sensible as we are, they would have discussed the essence of the Bill only. What is the point of discussing separation of powers? First, this is not the right occasion, and second, their speeches are off-topic. They have said somewhat inexplicably that all mothers are women. But today, we are not discussing whether mothers are men or women; neither are we discussing whether that mother is the birth mother or not. Why should they bring up this issue for discussion? They do not have a genuine intention for discussion, and they are also off-topic.

I thank Mr Paul TSE for giving me this book as a gift. He said that as a Member … This book is recommended by Senior Counsel Warren CHAN, and the author is "Ms LAW". This "Ms LAW" says it right. For instance, she writes on page 139 to this effect: "Does Hong Kong uphold the rule of law? In 2020, Hong Kong ranked 16th on an index concerning the rule of law and outdid the United States which stood at the 21st position." If Members wish to know more about the treasure in Hong Kong and its strengths … One should not show off when conducting oneself; neither should one belittle oneself. They are 118 LEGISLATIVE COUNCIL ― 14 October 2020

Legislative Council Members of the Hong Kong Special Administrative Region of the People's Republic of China. If they can grasp the relevant statistics, such as those mentioned by "Ms LAW" in her book, or if they can grasp half of those statistics, they will become much more conscious of the reality. My advice to them is that they should read this book.

I am grateful to Mr Paul TSE. I say so because he is really great, and at this dull moment, he is able to … The Legislative Council has just begun a new session. But instead of listening to their speeches, I think reading this book will bring more benefits.

Let me read out some contents of this book to Members. Deputy President, please allow me to talk about it for one more minute. I almost finish my speech. It says to this effect: "Hong Kong's tax rates are low. The average income of fresh university graduates who have started to work ranges from $25,000 to $34,000, and this sum is higher than the HK$5,500 in Taiwan" …

DEPUTY PRESIDENT (in Cantonese): Dr Junius HO, please return to the topic of this debate.

DR JUNIUS HO (in Cantonese): I am returning to the topic. If I had known what you would say, I would have simply continued to speak without reminding you. Why did those Hong Kong youngsters want to go to Taiwan? Hong Kong is a good place. They would rather travel on a speed boat than …

DEPUTY PRESIDENT (in Cantonese): Dr Junius HO, please return to the subject of the Second Reading debate on the Statute Law (Miscellaneous Provisions) Bill 2019.

DR JUNIUS HO (in Cantonese): Having a breadth of mind is very important. Everybody should learn with a humble heart. I am now teaching them and "tucking money into their pockets", so to speak. But they want to take it out instead.

LEGISLATIVE COUNCIL ― 14 October 2020 119

Deputy President, I must point out here that we should now "prescribe the right medication for the illness". The amendments proposed in the Bill are precisely targeted at the problems. Dr Priscilla LEUNG was right in saying this: "Justice delayed is justice denied." We must deal with the problems expeditiously, and reducing the composition from three judges to two undoubtedly can widen the bottleneck and avoid congestion. Mr LEUNG Yiu-chung argued that the allowance of $1,800 provided by the authorities was too small in amount, saying that this sum was very inhumane. I must tell him that we are not discussing any allowance today. This book is entitled Do you want to be a Hongkonger again in your next life?. The answer is obvious. Even if we are not talking about Hongkongers … Some South Asian people want to become Hongkongers. But some Hong Kong people nonetheless want to move to Taiwan. Get ready to be beggars!

Deputy President, I so submit.

MR HUI CHI-FUNG (in Cantonese): Deputy President, I thank Dr Junius HO for his whimsical speech. Let us see the big smile on Ms Starry LEE's face. Dr Junius HO just mentioned that being a Member, he should set an example and be seen that he follows the rules. However, I just heard him say that if there was any issue, it could be resolved in the back alley. Only triad members will utter such words which are just too foreign to me.

Coming back to the Statute Law (Miscellaneous Provisions) Bill 2019 ("the Bill"), I will focus my discussion on the overall merits and demerits of the Bill, certain salient aspects of the principle, as well as some areas which need improvement and are of concern to me in my observation of the Bill.

Other Members have earlier on introduced many background materials of the Bill, which I am not going into details. They roughly say that there was a rapid surge in civil caseloads in recent years, particularly those initiated by way of judicial review ("JR") for cases stemming from non-refoulement claims. Members also showed their concern just now that this would impose great pressure on the workload of the judicial authorities, in particular for the High Court (comprising the Court of First Instance ("CFI") and the Court of Appeal ("CA")) and the Court of Final Appeal ("CFA"). A question is particularly mentioned in the Report of the Bills Committee and also raised by many Members earlier on, and that is: In the long run, is it necessary to increase the 120 LEGISLATIVE COUNCIL ― 14 October 2020 judicial manpower to deal with these increased cases? Of course, a Member has just pointed out that the caseload is not what we can anticipate objectively, and it is also difficult for us to assess whether the rising caseload is related to the implementation of the unified screening mechanism. We are not sure about the answers concerned.

However, I want to emphasize one point. Can the present manpower of the courts be quantified openly and transparently? Can the Judiciary give us more information? I would like to discuss this issue here. It is because I have always been concerned about this topic and have raised a lot of enquiries about the judicial manpower, the categories of cases handled and the number of cases heard by each judge in each legal year. Over the past four years, I have raised a lot of enquiries through written questions during the Legislative Council meetings or questions in the meetings of the Finance Committee during the deliberation of the Budget, as well as through letters issued in my capacity as a Member. However, it is very weird that we were unable to get any answer concerning the number of cases heard by each judge and the number of cases of certain categories handled by each judge. This issue should be of concern to all Members. Given that I failed to solicit the related answers through these channels in the past, I have no choice but to lodge a complaint to The Ombudsman. I just received a letter from The Ombudsman today. She says that a comprehensive investigation has to be conducted as it does not stand to reason that even these simple figures could not be available to us. Under the circumstances, how can we scrutinize the amendments proposed in the Bill? How are we able to know that an increase in manpower can help clear the backlog of civil cases, especially JR cases in relation to non-refoulement claims? I hope that all Members can pay attention to this aspect.

The Chief Justice of CFA, Mr Geoffrey MA, issued a statement recently, in which he says that open justice and transparency enable the community to observe the judicial process in full, and to provide meaningful and informed comments, opinions or criticisms. Hence, getting back to one of the main points in this debate, overall speaking, it is a matter of course that our fundamental stance towards the amendments in the Bill is to support urging the Government to expedite the procedure of processing non-refoulement claims. While we do not want to see those people ineligible for non-refoulement claims continue to be stranded in Hong Kong, we also do not hope that non-refoulement claimants will be subject to inhuman treatment.

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Of course, as I just mentioned, this issue does not only concern the manpower and capacity of the Judiciary. As a whole, government departments also need to enhance their legal and medical support, which includes increasing the number of doctors, social workers, and reinforcing professional manpower. I will discuss this aspect in due course.

As regards the content of the amendments, concerning applications for leave to appeal to CFA against the decisions made by CA consisting of less than three Justices of Appeal, they can be handled by a bench of CA consisting of two judges instead of three judges. When a JR application is refused or is granted on terms by a judge, and the applicant lodges an appeal against CFI's decision, the appeal case can also be heard by a 2-Judge bench in CA. When the 2-Judge CA in the legal proceedings cannot reach a unanimous decision, the re-argument mechanism can be adopted. Besides, one amendment is to clarify that an additional judge in CFI or CA has the power to dispose of cases on paper. All these are surely on the right direction.

However, what I would like to discuss at present is that human rights are actually involved in the entire mechanism of non-refoulement claims. After lodging non-refoulement claims, the final decisions will have an impact on the claimants' lives, on their basic human rights, and on the inhuman treatment that they will encounter after being repatriated to their own countries. Hence, expediting the processing of non-refoulement claims is definitely related to basic human rights and is also the due responsibility of the Government.

Members from the pro-establishment camp often use the term "bogus refugees", but please remember that this term itself is hostile, as it is assumed that those non-refoulement claimants have filed false claims. In regard to this point, we can surely understand that if these claimants make false claims, they may impose a burden on Hong Kong. Nevertheless, when they file their claims, we cannot completely ignore their entitled basic human rights, including their right to a fair and equitable trial when facing a trial from the Judiciary, which we cannot neglect. Besides, under the common law principle, is natural justice being upheld? We have heard so many cases about some detainees at the Castle Peak Bay Immigration Centre who are waiting endlessly. They do not receive any notices nor are they treated humanely. Will their trials be conducted in an open and fair manner with the presence of legal representatives? All these are the areas that we need to pay attention.

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It is not something new that Hong Kong has to deal with non-refoulement claims. Since the 1990s, the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment ("CAT") has been applied to Hong Kong. Later, in the judgment of a case, CFA held that high standards of fairness must be demanded in the determination of CAT claims as such determination may put a person's life and limb in jeopardy and may take away from him his fundamental human right not to be subjected to torture. Hence, judging from the international convention and the judgment of the court case, legally speaking, we have the obligation and responsibility to continue discharging this duty.

Furthermore, some people refer to non-refoulement claimants as "bogus refugees", describing them with this negative term. In reality, they are only non-refoulement claimants waiting for immigration screening, and the process of waiting is excruciating and long. Apart from basic medical benefits, child education services and legal aid services, they cannot enjoy the basic welfare of Hong Kong people such as Comprehensive Social Security Assistance and Social Security Allowance. The Government only provides them with primary humanitarian aid which only imposes a slight financial burden on our public coffers. Our assistance to them can only help them meet barely their daily needs.

Let us look at the expenditure of the Government in this aspect. In the financial year 2019-2020, the amount of expenditure was $464 million, and in this financial year, the budget is $706 million. No one wants to wait endlessly for the result of his non-refoulement claim. When a person who seeks asylum is repatriated to his place of origin, his personal safety will be at risk. Thus, they would rather bear the long waiting and screening process. Expediting the processing of non-refoulement claims is the due responsibility of the Government, and this is also reflected in our measurement of human rights.

There is a saying that the measurement of the extent or level of civilization of a society will depend on how this society treats some suppressed, underprivileged people and disadvantaged social groups, as well as how it treats some people without freedom, who are poor and waiting to be rescued. In the context of Hong Kong, they include those in the detention centre as well as some obstacles and burdens in the eyes of the pro-establishment camp. In fact, this is also a very important yardstick in measuring the level of human rights in Hong Kong.

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As regards this Bill, if its certain amendments are implemented, theoretically speaking, while the processing can be sped up, some judicial manpower can also be spared. However, as mentioned by many Members earlier on, the pressure on courts can only be genuinely alleviated with a reduction in the number of cases at source. Many humanitarian aid organizations have been saying that Hong Kong is too harsh in dealing with these refugees or non-refoulement claimants, and that the Hong Kong officials responsible for this aspect are not familiar with the relevant laws. These issues have not been addressed in this amendment exercise, but they are the areas of the non-refoulement claims system that need to be reviewed by the Government. Besides, as I just mentioned, there is a sense of discrimination and hostility among a lot of people and some Members in this Council against non-refoulement claimants, and this is also an area that the community needs to review.

Finally, in my view, this Bill has good intentions, but its changes to the mode of operation of courts will indeed be worrying. For instance, when there is one less judge on the bench in CA to hear cases or when the judge can dispose of cases on paper without physically sitting in court, can fair trials be possible and will the people concerned be deprived of their chances to defend themselves? Are we compromising the fairness of trials for the sake of saving time? This is a question not only from me, but also from many legal groups and refugees concern groups.

Admittedly, the Bill will not merely affect non-refoulement claims, but also all JR cases. Currently, the rule of law in Hong Kong is under pressure and is facing a lot of challenges. When we scrutinize this Bill at this moment, will the international community think that the level of rule of law in Hong Kong is further consolidated or is further questioned? We need to pay attention to this point.

Deputy President, I so submit.

MR JAMES TO (in Cantonese): Deputy President, according to the Government, the Statute Law (Miscellaneous Provisions) Bill 2019 ("the Bill") seeks to make miscellaneous amendments, which are minor, technical and non-controversial, to various Ordinances, including the High Court Ordinance (Cap. 4) and the Interpretation and General Clauses Ordinance (Cap. 1). Deputy 124 LEGISLATIVE COUNCIL ― 14 October 2020

President, we are now at the stage of Second Reading. I will first of all focus my discussion on the objective of the Bill. In regard to the Government's approach to conduct this amendment exercise, that is incorporating different areas and Ordinances into the Bill, I find it highly problematic.

Deputy President, the Government claims that this Bill seeks to make miscellaneous amendments, which are minor, technical and non-controversial, to various Ordinances, but this obviously is not the fact. The Government says that the amendments are minor and technical. If we leave out the amendment to the High Court Ordinance, the focus of Members' discussion, which is about changing the number of judges on the bench responsible for judicial review ("JR") cases from three to two, this Bill also includes many other laws, such as the Port Control (Cargo Working Areas) Ordinance, the Civil Aviation (Aircraft Noise) (Certification) Regulations, the Western Harbour Crossing Ordinance, the Bedspace Apartments Ordinance, the Residential Care Homes (Elderly Persons) Ordinance, the Tsing Ma Control Area Ordinance, the Chinese Medicine Ordinance, etc. I am not going to read them out one by one, as numerous laws are involved.

Of course, the Government wants to amend the few dozens of laws listed in the Schedule because it might have found out some inconsistencies in the same group of wording in these laws, and thus proposes to make certain so-called technical amendments in order to rectify them in a one-off manner. In other words, these amendments will not make substantial changes to the textual meaning but will maintain the consistency of the wording. We understand that this situation is best dealt with by a so-called omnibus bill, i.e. using one bill to make amendments to various laws, because the same group of wording is used in the laws but there may be inconsistencies in the Chinese and English texts. Anyway, I am not going into the details. In regard to this situation, it is feasible to deal with it with an omnibus bill. However, when it comes to changing the number of judges on a bench in the High Court as mentioned earlier, this actually is a kind of judicial reform, a very fundamental reform.

Moreover, any reform to the judicial or court system is a highly sensitive matter and this is also a kind of systemic reform. I cannot understand why the Government would dare to say in the Legislative Council Brief concerned that this reform is minor, technical and non-controversial. This amendment may be rather minor, as it seeks to change the bench size from three judges to two judges. We understand that this is also technical, but I definitely disagree that this is LEGISLATIVE COUNCIL ― 14 October 2020 125 non-controversial. Let us think about this amendment to change the number of judges from three to two, whose actual impact was just highlighted by me. Its nature is a reform to the trial system of the courts.

Frankly speaking, people originally thought that the composition of three judges was fine. At present, the Government says that due to a surge in judicial review ("JR") cases involving non-refoulement claims, it proposes to amend the number the judges on a bench and this should not impose a substantial impact. In fact, the Government is unable to explain the extent of implications after changing the bench size. I assume that there is a superficial reason that there has been a surge in the related caseloads, but practically speaking, this kind of cases have an impact on human rights. This amendment involves not only a reform of the court system, because this reform of the court system involves a certain kind of cases which are highly sensitive human rights cases that attract international attention. Hence, this amendment is multi-natured.

The refugees that we mention include the Vietnamese boat people several decades ago. They are people who escape to Hong Kong from other places for seeking asylum. At present, Hong Kong people have very deep feelings about this, because some Hong Kong people have to go to other countries to seek political asylum. Therefore, during these one to two years, our community has rather different feelings towards this topic about other people coming to Hong Kong to take refuge or to make such claims. To be honest, to the international community, when Hong Kong people want to take refuge in Germany, Canada or Taiwan, they also have to go through their local systems, which are similar to the High Court and the tribunals in Hong Kong, under which they can lodge an appeal or apply for judicial review to the court. Many countries also believe that certain citizens are being persecuted in Hong Kong. Hence under the circumstances, over the past two to three years, perhaps due to the reaction of the community, the Hong Kong Government took the opportunity to announce that many areas must be tightened. I also understand that even on the issue of refugees, there is a lot of pressure from the international community. Other places, including those in Europe, also had the same experience two years ago.

Nevertheless, in respect of such a controversial topic, the Government put forward a bill in December 2019, mixing an ordinance containing a rather controversial topic with other dozens of laws, such as the Bedspace Apartments Ordinance and the Western Harbour Crossing Ordinance, blending in with other laws whose amendments only involve changing one word or a same group of 126 LEGISLATIVE COUNCIL ― 14 October 2020 wording, to become an omnibus bill. Deputy President, judging only from this point, to put it plainly, the Government is being sneaky, and if unpleasantly put, the Government is fishing in troubled waters, cheating us by wrapping an ordinance with a conspicuously controversial topic in an omnibus bill, which has only been dealt with by the Legislative Council at a single Bills Committee meeting. I have read through the minutes of meeting concerned and found that the Bills Committee has not invited any significant stakeholders, including persons or organizations with international experience in handling the refugee problem, to attend the meeting. And then, the Government said that this would be handled this way. What about the procedures concerned? Is this reform well thought out? From the minutes of meeting that I have checked, it seemed that colleagues did not particularly mention the international standard concerned at the Bills Committee meeting. They only asked for the information about the number of cases involving non-refoulement claims. Perhaps after looking at the number of claims, they responded that this figure could be taken as the basis for this amendment.

Deputy President, I am not going to quote the figures. The figures concerned in these few years have been on the high side. To be fair to the colleagues in the Bills Committee, it is not that they did not raise any questions. According to the information, the Bills Committee did not hold any public hearing. In other words, its members thought that they already had a full grasp of the picture. In regard to this topic, in the past, even the subcommittee under the Panel concerned had invited some representatives of the related bodies to participate in the discussion. Concerning the actual operation, I now see that professional organizations, like the Hong Kong Bar Association, which are responsible for dealing with these procedures, have also provided a lot of advice. Nonetheless, the question is that public hearing is essential. I have no idea why a public hearing was not held. Perhaps colleagues thought that this Bill had to be handled very urgently. But the problem is that without a public hearing, such a controversial provision would obviously be treated like those non-controversial provisions at the back which have not been discussed at all. In my view, this arrangement is not sufficient.

Deputy President, the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment has been applied to Hong Kong and thus there is a certain kind of mechanism to deal with refugees, and the international reputation of Hong Kong is also at stake. I do not mean that in order to maintain our international reputation, a reform cannot be carried out. LEGISLATIVE COUNCIL ― 14 October 2020 127

This is not what I think. As a matter of fact, even in Europe or other places, such as the United Kingdom, when under tremendous pressure brought about by the refugee problem, they will also carry out some reforms. However, the question is that we at least need to clearly know whether the reform concerned is reasonable and the extent of implications after the reform is carried out.

The authorities say that there are many JR cases. At the Bills Committee meeting, a colleague has asked the Government and the Judiciary how much time could be saved in handling these cases. Unexpectedly, the Judiciary Administration advised that the amendments should have positive impact by alleviating the overall workload of the courts, but the Judiciary was not in a position to estimate how the proposed amendments would impact on the time taken to process a JR case. According to him, this is because the number of cases filed is beyond the control of the courts. This is basically infeasible, as the Government has sidestepped the question. Indeed, many cases are currently pending to be heard. If the Government proposes to change the bench size from three judges to two judges, it at least has to be fair by coming up with a basic prediction on or with some figures to quantify the amount of time that can be reduced for processing of cases. I believe that the person-in-charge in the Judiciary is afraid of taking the responsibility, because if he tells us the amount of time that can be reduced for processing of cases but the target cannot be attained at the end, we will criticize the Judiciary for not doing well. However, the Judiciary at least has to let us see the difference before and after the arrangement, and tell us that without this reform, how long a case will have to wait to be heard, and how the trial of other cases will be affected.

Let us look at the prevailing international trend. When colleagues started to scrutinize the Bill in mid-May 2020, there was already an outbreak of the pandemic under which air traffic was affected both locally and internationally. Some people have expressed their fear that the so-called "bogus refugees" will come to Hong Kong. However, a total lockdown was already enforced at that time. And at this moment, an airline company is even planning to restructure. Frankly speaking, when the passenger capacity is only 2% to 3% of the normal level, how do these people come to Hong Kong? What is the actual situation? This will, anyway, impose a rather long-term impact. Besides, in the past, we had other people coming to Hong Kong to seek asylum, no matter they were genuine refugees or not. But now, Hong Kong people have to go to other places to seek asylum. Are there still so many people coming to Hong Kong? Even if 128 LEGISLATIVE COUNCIL ― 14 October 2020 they are "bogus refugees", they will also be afraid of being mistreated in Hong Kong. Therefore, the entire Bill has not been deliberated in a normal, proper and reasonable manner.

I feel very disappointed. I thought even Members from the pro-establishment camp could have done a convincing job on this issue, but they obviously were not willing to do so but only rushed through the Bill.

(Mr Andrew WAN indicated his request for a headcount)

DEPUTY PRESIDENT (in Cantonese): Mr Andrew WAN 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)

PRESIDENT (in Cantonese): Mr Paul TSE, please speak.

MR PAUL TSE (in Cantonese): Has the President called upon me to speak? Okay.

President, let me begin with a declaration of interest. I am a member of the Advisory Committee on Pilot Scheme for Provision of Publicly-funded Legal Assistance for Non-refoulement Claimants―sorry, the name is rather long. The main objective of the Pilot Scheme is to provide torture claimants with another form of assistance beside legal aid based on their needs as an option for them. Besides, various colleagues in my law firm have also undertaken cases involving torture claims.

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President, please allow me to spend 10 seconds on saying thank you to Dr Junius HO for recommending this book to Members. Actually, pro-establishment Members have all got this book. I hope it can provide us with more information and statistics and in turn assist us with our discussion.

President, I was interrupted by the summoning bell when I was about to speak just now. As a result, I was unable to pick up on Mr James TO's intense speech a moment ago. If I were able to do so, I believe my speech would sound more appealing. In particular, people already listened to this Member's speech. Initially, they might wish to hear my reply, but their desire was dampened by the ringing of the summoning bell. This is indeed … Dr Junius HO may think that certain Members have abused the request for a headcount. But since the Rules of Procedure has already provided for it, we cannot do anything about it. Nevertheless, this has caused huge inconvenience and unfairness to the public. I hope non-establishment Members can take into account the well-being of the public and avoid any casual interruption of Members' speeches and meeting progress, or else the public may be suddenly hindered from listening to Members' speeches or watching the broadcast as the ringing of the summoning bell is even longer than the airtime of advertisements.

President, if the summoning bell had not been rung, I believe I could have picked up on Mr James TO's arguments forthwith. I must say his arguments also sound reasonable. He questioned why the Government should refuse to conduct thorough consultation on such a major reform of the judicial system, while also arguing that the relevant clauses were not very controversial.

I was baffled by his queries, so I checked the membership list of the Bills Committee on Statute Law (Miscellaneous Provisions) Bill 2019 ("the Bills Committee") right away. I found that apart from Mr CHEUNG Kwok-kwan as its Chairman, only Mr Abraham SHEK, Dr CHIANG Lai-wan and I were its members. So, where were those non-establishment Members? Where were those Members from the legal sector who were very concerned about this issue? Where were those solicitor or barrister Members from the non-establishment camp? In the face of this highly controversial and important Statute Law (Miscellaneous Provisions) Bill 2019 ("the Bill") with profound, far-reaching implications, where were all these Members? Isn't it right to say that they are very concerned about it?

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Let me quote an argument from Mr James TO. To put it mildly, I will say they do not think the Bill is important, so they can put it aside. If I am to put it bluntly, is it right to say that they are irresponsible? Is it right to say that they put politics above all else, so none of them joined the Bills Committee due to political reasons? To put it even more bluntly, I will say non-establishment Members have failed to walk their talk, just as many Hong Kong people have said in their frequent criticism. They often take the moral high ground when they speak. But when it comes to concrete action, all will have to depend on whether they think it is a convenient moment to take such action. They will refuse to participate in the process if they do not think that it is a convenient moment. But afterwards, they will level criticisms and say that the whole process is frivolous or haphazard.

I thank Mr Martin LIAO for his earlier speech. If Members listened to his speech attentively, unlike Mr James TO who left the Chamber after a brief stay here like a "sojourner", they should be able to hear Mr Martin LIAO's detailed account on the background of the Bill and even his clear mention of the consultation period from 17 June to 6 September 2019, during which organizations including―I used the word "including" because the following two organizations were absolutely not the only delegations―The Law Society of Hong Kong ("The Law Society") and the Hong Kong Bar Association ("HKBA") also put forth their views. As also pointed out by Mr Martin LIAO, The Law Society expressed its agreement, and very rarely, HKBA―as Members all know, in case of any inhumanity, or any blunders or even contravention of the Basic Law or legal principles on the part of the Government, HKBA will not hesitate to voice its objection aloud―did not raise any objection this time around. It merely requested a more detailed explanation from the judicial department of the Government, and they accepted the Bill without any objection. I wish to draw Mr James TO's attention to one point: During consultation, no non-establishment Member ever spoke up or participated in the process, and very exceptionally, HKBA did not raise any objection this time around.

One more important point to note is that this amendment exercise is not initiated by the Government. While it is true to say that the Bill is presented by the Government―this is certainly a responsibility of the Government―the amendments are actually proposed upon the request of the Judiciary. They are requested, arranged or even taken forward by the Judiciary Administration. Those opposition Members have no faith in the Government, the Carrie LAM administration, the Secretary for Justice, all government departments, and also LEGISLATIVE COUNCIL ― 14 October 2020 131 pro-establishment Members. But they often keep saying that they still have faith in the judicial department during this eventful period. This legislative amendment exercise is in response to the request of the judicial department. What do they think about this? I hope people can avoid heeding the arguments put forth by only one side (namely Mr James TO in his speech). Just now, Mr TO left the Chamber and refused to listen to the second half of the story, thinking that his speech would be "erased" after the ringing of the summoning bell. Actually, the speeches of Members will be put on record. I hope people can listen to a playback of his speech and also my present speech and proceed to determine whether Mr James TO's arguments are correct or alarmist, and whether he is a hypocrite who fails to walk his talk as I asserted just now.

President, I got a little bit sidetracked in my speech just now. In fact, I should have avoided such digression. President, my original intention was to discuss a more important issue. But I honestly could not hold back because I have heard various dissenting arguments today. If I have an opportunity or time, I wish to give a reply on Mr Dennis KWOK's speech earlier this morning. But all will have to depend on the length of my remaining speaking time.

President, I wish to discuss a more important issue, namely the substantive amendments proposed in the Bill. Various pro-establishment or even non-establishment Members have mentioned one point, the point that the Bill stems from the surging number of judicial reviews involving torture claims, and as the Judiciary is unable to cope with it, it proposes to amend the law. More importantly … I must thank Mr HUI Chi-fung for his repeated emphasis on the huge importance of an expeditious and effective trial process just now. I find it totally agreeable. It is precisely for this reason that we should enhance the efficiency of Hong Kong's judicial process. President, I am also thankful to Dr Junius HO as his clear analysis just now has pointed out that Hong Kong is equipped with a six-tier process. Anyone (including South Asian people or refugees) may initiate the relevant proceedings where necessary, and they are accorded protection at six tiers.

President, why should amendments be made then? What is the original arrangement? I must thank Mr Martin LIAO for his account just now. He and I belong to the same era, and we are "brothers in the same discipline" as we engaged in legal studies and served pupilage around that time. As far as I understand it, apart from the United Kingdom, Australia (an overseas country where I received my education) or even Hong Kong itself has issued many 132 LEGISLATIVE COUNCIL ― 14 October 2020 written legal reports stating expressly that an appeal case may be heard by only two appeal judges. But President, one more important point is that we may have overlooked one issue. The focus of this exercise is not so much on reducing the composition of all Courts of Appeal from three judges to two. Instead, it is on the provision of an option, the option that a valid Court of Appeal may also be constituted by two judges where appropriate. One point is very important and that is, the provision of this option.

Many non-establishment Members argue that the proposed amendments are tantamount to a judicial reform with far-reaching implications, while also questioning the necessity to introduce the amendments on the ground that the relevant figures are declining following the passage of the peak of applications. But the point is that with this option, the judicial department may revert to the arrangement of a three-judge bench anytime if it really thinks that the peak period has passed and the Justices of Appeal are able to cope with the caseload. The proposed amendments do not seek to stipulate a mandatory reduction in the composition of all Courts of Appeal from three judges to two in the future. This is not the case. This option is very important, but despite our prolonged discussion, certain Members are still unable to figure out the essence of the issue.

Another option is that speaking specifically of certain cases that involve standard, routine or formal proceedings―proceedings that are meant for "going through the motions" as they are so called in English―the relevant judges may dispense with the physical hearing of such cases in court. This is very important because manpower resources and time may be wasted during physical court hearings. In particular, amidst the prevailing epidemic, whether court hearings can be conducted is often a major reason for possible delays in case processing. If a case involves standard or routine proceedings, all parties to the case may think after reading the documents that it is not necessary to hear any evidence because the relevant evidence is all in writing, because its details have been set out in an affidavit, or because the evidence has already undergone preliminary scrutiny at prior proceedings, including preliminary hearings where a High Court Judge may have already made a judgment on the evidence. In that case, the various parties to the case basically need not wait for any physical court hearings.

But I must also draw Members' attention to one point, the point that the proposed amendments do not seek to stipulate the abolition of physical court hearings. Instead, they stipulate that when opportunities arise … The proposed arrangement is the same as that with which Members are familiar: If Members all LEGISLATIVE COUNCIL ― 14 October 2020 133 agree to a motion and nobody opposes it, then it will not be necessary to hold any meetings, and the motion can be passed by paper resolution. The proposed arrangement is actually as simple as this.

President, why should those Members avoid a clear explanation of these options and instead say that this amendment exercise is very important as it involves a major reform of the entire judicial system and a complete change in the standard of fairness? Actually, this will not be the case at all because the proposed amendments only seek to offer the additional options of reducing the court composition from three judges to two where necessary, and dispensing with physical court hearings where necessary, so as to expedite the proceedings where necessary.

Besides, the original section 34B of Cap. 4 already provides for the composition of a Court of Appeal. Let me put aside an earlier argument made by certain Members for the time being, the argument that the proposed arrangement is actually nothing new. When I was a barrister some time ago, I often came across similar cases. At the time, I mainly dealt with intellectual property rights cases, and I needed to handle many cases involving injunction orders, such as interlocutory injunctions. Such appeal cases were often handled by two Justices of Appeal in the Court of Appeal, without having to be heard by three judges. Section 34B already provides very clearly for the circumstances where two judges already suffice to constitute a valid composition, including those involving interlocutory proceedings as I have just mentioned; those where both parties to the case agree (by consent) to a court composition of only two rather than three judges; or cases involving judicial reviews as we are discussing right now―this is the main theme of this amendment exercise.

More importantly, section 34B(4)(e) already stipulates that the Chief Justice of the Court of Final Appeal may make an order to dispense with the requirement of three Justices of Appeal in the hearings of certain appeal cases. While this may be quite rare, and I have never encountered this as far as I remember, this possibility still exists. It can be seen from this that the reform this time around purely seeks to provide more tools for the Court of Appeal to deal with such cases with flexibility and to expedite the administration of justice, just as Mr HUI Chi-fung has said. The purpose is as simple as this. No wonder Mr James TO …

134 LEGISLATIVE COUNCIL ― 14 October 2020

Of course, they often refrain from speaking up at the consultation stage as though they had gone into hibernation. But when it comes to the final stage … In the case of amending the Copyright Ordinance and the Medical Registration Ordinance, for example, there was no controversy at both the initial consultation stage and even the Bills Committee stage. But at the last minute, they suddenly argued that the amendments were controversial and criticized the consultation process, saying that it was not up to standard, or the officials concerned had not conducted any consultation process at all. Anyway, they may say whatever they like. We cannot do anything about this, and we have already got used to this. But I believe people's eyes are discerning. If people have listened to my speech with patience, and if they compare my speech to that of Mr James TO afterwards, they will realize who is speaking the truth, and who is trying to catch people's attention with sheer exaggerations.

President, another point I wish to discuss is that the mechanism itself has already accorded protection. As various Members have said, on the proposal concerning the reversion of the court composition from two judges to three, the amendments propose to introduce an additional option―our emphasis is always on the provision of "options", "options" and also "options"―the option that in case of keen dispute among the presiding judges themselves, they may add in another fellow judge based on their own judgment and revert the court composition from two judges to three, apart from doing so on an application initiated by both parties to the case. This is likewise one of the options. The amendment exercise this time around precisely aims to provide the judicial department with this option. It is all about the provision of "options", "options" and also "options". For this reason, they should not criticize the amendments and say that they will permanently deprive the judicial department of certain authorities. The situation will not be like this. Our only hope is to balance two aspects: the expeditious and effective administration of justice on the one hand, and a proper judicial process on the other.

How big is the loss after the introduction of the relevant options? Is it worthwhile to accept such loss? Will these options really produce major negative impacts on human rights protection? My answer is that it is right to strike this balance and make this judgment. This explains why no members raised any objection at meetings of the Bills Committee, and after heeding the explanation of the judicial department, HKBA also agreed that no further debate was necessary, even though this amendment exercise might affect those cases that LEGISLATIVE COUNCIL ― 14 October 2020 135 did not involve torture claims and other general judicial reviews. Therefore, it did not raise any objection. Very rarely, HKBA has not raised any objection this time. In view of this, why should opposition Members raise adamant opposition at this very juncture? I believe that political reasons aside, another reason is that they must oppose whatever proposals put forth by the Government and whatever proposals that command the support of pro-establishment Members, and they will simply close their eyes and oppose all such proposals. They did not speak up before, but they have to voice their objection at this stage. Objection. Objection. Objection.

Thank you, President.

MS ELIZABETH QUAT (in Cantonese): President, at the beginning of today's meeting, Dr Fernando CHEUNG mentioned that it is illegal and unconstitutional to extend the Legislative Council term by one year and so he should not have appeared here, however, he had no choice but to speak here today. President, you have made a very fine remark in response to that then―they should not appear here if they consider the extension of Legislative Council term unlawful and unconstitutional since they were not forced to be here at gunpoint. However, I think it was actually not wrong for Dr CHEUNG to say so. I do think that all Members belonging to the "mutual destruction camp" should not appear here, and their actions today have proved to the public that they are only here to put up their fight in the legislature through filibustering in a bid to undermine and "burn together" with the Council. They certainly should not appear here as they are obstructing the Council's proceedings. Nevertheless, actions speak louder than words. Their appearance here has in fact confirmed their acknowledgement of the legitimacy of the extended Legislative Council term, which explains why they stay on. If they really mean to conduct themselves honourably, they should not receive any remuneration from now on.

President, I would like to speak in support of the Statute Law (Miscellaneous Provisions) Bill 2019 ("the Bill"). I have heard many Members point out in their speeches that they would not support but oppose the Bill on humanitarian grounds as they consider it unfair and unjust. However, I think such grounds are utterly meant to justify their opposition for opposition's sake, which is simply unnecessary.

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First of all, I want to criticize Mr Dennis KWOK for making use of today's debate to accuse me and Mr Holden CHOW of sitting in judgment on the judges. Mr KWOK, please listen: Judges are no deities but humans and may err according to what he has said, and since everyone may make mistakes, they will possibly be criticized for committing mistakes. We have freedom of speech in Hong Kong and anyone can criticize judges as long as they are justified to do so according to Hon Chief Justice Geoffrey MA of the Court of Final Appeal. Therefore, Mr KWOK is not in a position to condemn the criticism of Hong Kong people against the judges. It is because the people of Hong Kong are fighting for judicial justice, who can naturally criticize any injustice they have noticed. And so, he is not supposed to boss around here.

As regards the Bill, I absolutely have no idea why they would oppose. It is true that according to them, the success rate of approval of non-refoulement claims over the years has been rather low. The relevant figures show that a total of 22 000 non-refoulement claims were received between 2009 and June this year, the majority of which have already been dealt with as at present. However, as of June this year, only 216 such claims were established, which is a very small number. According to their logic, the small number is due to unfair procedures, and the Government has deliberately procrastinated. But what good will this do to Hong Kong and the Government? Why do they not consider that the rather low success rate is due to the fact that most of these claims are fraudulent cases since "what is true cannot be false while what is false cannot be true", right?

While they consider the low success rate a problem, the biggest problem actually lies in the abuse of procedures. I frequently make the point that Hong Kong does have a moral obligation to help those genuine refugees under persecution after they have arrived at Hong Kong to seek humanitarian support. For the time being, however, there is a group of "bogus refugees" who may have come here purely for economic benefits. Abusing procedural justice, utilizing innumerable resources of local taxpayers' while causing public order to deteriorate, such "bogus refugees" still demanded kind treatment from us. Do they really think that none of those claims is a case of abuse? Will they please honestly ask themselves if there is really not even a single case of abuse? Are they doing justice to the genuine refugees by allowing such people to procrastinate? Is justice done to the people of Hong Kong when the "bogus refugees" are treated mercifully?

LEGISLATIVE COUNCIL ― 14 October 2020 137

Let us see how serious the problem is. Throughout the seven financial years (2014-2015 to the present), the Government has spent more than $6 billion on non-refoulement claimants, and $1.2 billion has been spent in the current financial year alone, an increase of $300 million from the previous year, which was the biggest amount spent over the last seven financial years. They have pointed out just now that the peak period has passed and so no major amendments needed to be made, but is this really the case? The number of claimants has indeed dropped, but this has purely resulted from the many measures taken to address the problem in the previous few years. We achieved this all because we keep complaining every day to push the Government to amend the law in order to combat illegal human trafficking. Yet, there are still numerous hurdles to overcome.

Even if the number of claimants drops sharply, a claim can be made immediately by the claimant upon his arrival here, and if leave is not granted, the case can be dragged on indefinitely, say, 10 years in some cases. The claimant may refuse to answer the question for whatever reason and then make an appeal. He may proceed to apply for a judicial review if the appeal for leave is not granted, and even if the application for judicial review is not approved, he can still continue to drag on by taking a number of procedures. And so, how can it be said that there is a lack of procedural justice? It is rather fair to the claimants but the question is: how many of them are still here in Hong Kong for the time being? The answer is: more than 13 000 people. It is true that the number of cases is dropping with decreases in the numbers of claimants and appellants―there may be only a few thousand remaining, but where have they gone? The answer is: all of them have proceeded to apply for judicial reviews.

That precisely explains why we need to amend the law today, and how many judicial review applications are there for the time being? The number of judicial review cases in 1997 was only 112, but it rose to 3 889 last year, of which 3 727 were cases related to non-refoulement claims, thus raising doubts as to whether there are instances of abuse. I have just mentioned that the Government has spent more than $6 billion and $1.2 billion was spent this year alone, net of legal aid fees. It was the hard-earned money of taxpayers but has gone down the drain.

At present, there are more than 3 700 judicial review cases, but apart from this, there are more than 3 000 cases of appeal as well. The appellant may apply for judicial review should he lose the appeal. In other words, the peak period 138 LEGISLATIVE COUNCIL ― 14 October 2020 has yet to come given the 3 000 or so cases we are now referring to and applications for judicial review will continue to be lodged later. In case leave is not granted, the applicant can go on to make an appeal. Therefore, the current proposed amendment to the High Court Ordinance ("HCO") (Cap. 4) is introduced because of the overwhelming number of judicial review cases stemming from non-refoulement claims which has put enormous pressure on the Judiciary, in particular the High Court and the Court of Final Appeal. This is told by the Judiciary and not us.

To ensure that all cases are handled as expeditiously as is reasonably practicable, the Judiciary proposes to amend HCO to the effect that the original 3-Judge bench will be changed into a 2-Judge bench. This is one of the solutions proposed by the Judiciary which may not be the best, but is there any other solution? The Judiciary has not put forth any other options, so what are you people opposing? Neither The Law Society of Hong Kong nor the Hong Kong Bar Association has raised objections, why have you then? What should be done if the problem is not resolved? This is actually a rather critical problem since there are now more than 3 000 cases pending processing and the situation will get worse as there will be more than 6 000 judicial review cases involving non-refoulement claims in the future.

We have asked the Judiciary and was told that only 1 000 cases can be dealt with each year. That means it will take six years to process if there are as many as 6 000 cases, right? What makes me less than satisfied is that even if the 3-Judge bench is now changed into a 2-Judge bench, the Government and the Judiciary have not given a satisfactory answer on how much of the processing time can be shortened. Now, how many years will it take to complete the work which would have required six years otherwise?

The problem cannot be completely resolved even if the legislation is amended, and so we have been proposing many ways in a bid to solve the difficult situation created by abuse of the screening mechanism for non-refoulement claims. Only by addressing the problems of abuse of the mechanisms and indefinite delays will we have the opportunity to help refugees genuinely in need and have the ability and resources to support them.

Therefore, we have put forward many different proposals, including the establishment of a special court. It is because even if this is not regarded as an abuse of the mechanism, but given the heavy caseloads involving LEGISLATIVE COUNCIL ― 14 October 2020 139 non-refoulement claims which have greatly increased the burden on courts, can a special court be set up to deal with such cases so as to resolve the problem as soon as possible? Moreover, can the Administration increase manpower to process the cases?

In addition, the Security Bureau has said this year that it would, by the end of the year, introduce to the Legislative Council the proposals to amend the Immigration Ordinance to shorten the time required for applying for leave to judicial review by compressing the application process with a view to speeding up the processing of backlog cases and to enhancing the detention power of the Immigration Department. Many Hong Kong people are of the view that the suspected "bogus refugees" have posed enormous hazard to the safety and public order of Hong Kong. Therefore, it is hoped that the authorities will be able to hold those claimants (who repeatedly commit crimes that put Hong Kong people's lives and properties at risk or deliberately drag on during the screening process) in detention for longer periods of time. In fact, this proposal may not be put into practice given the shortage of detention facilities, but will the relevant measures help resolve the problems?

President, some Members have already made the point today that the abuse of the judicial review system is another major problem. I think that I need not say too much on whether the judicial review system has been abused since the issue has been mentioned by a lot of people. For example, the former Permanent Judge of the Court of Final Appeal, Mr Henry LITTON, reportedly remarked in 2015 that many people or organizations in Hong Kong had abused the judicial review procedures in relation to political incidents or infrastructure projects and the courts had to spend a great deal of time on processing frivolous cases as a result. A lot of judicial review cases, however, are groundless, which have caused rather significant economic losses to our society. This is not my own view but the view of those from the legal sector.

Is it not necessary to address the problem of abuse of the judicial review system which we are now facing, and that it should be allowed to happen? If this problem remains unresolved, we will not be able to resolve the problems we are facing, that is why many members of the legal profession have put forward various proposals, such as the establishment of a court of judicial review which I have mentioned just now. Consideration may be given to advising the courts to adopt expedited procedures, such as shortening the time used for processing each application for judicial review, including avoiding the conduct of the unnecessary 140 LEGISLATIVE COUNCIL ― 14 October 2020

Phase 1 hearings which is a waste of time, energy and manpower. For certain cases (e.g. non-refoulement claims), can decisions be made solely on the applicants' written statements and related documents so as to avoid delays?

In addition, the Legal Aid Department should also be stringent in scrutinizing applications for legal aid relating to judicial reviews, in particular those judicial reviews currently lodged by the "mutual destruction camp" specifically against the Government. The applicants should not be allowed to be represented by their designated lawyers to apply for judicial review upon receipt of legal aid. As a matter of fact, some members of the legal profession have pointed out that this is tantamount to allowing the "mutual destruction camp" to use government resources against the Government itself and they also questioned whether this practice will endanger our society.

President, the problems cannot be resolved by amending the law alone as there are still numerous issues need to be dealt with. Thus, I hope that Members belonging to the opposition camp and the "mutual destruction camp" would fulfil their duties as Members of this Council to help Hong Kong resolve problems instead of creating problems if they mean to stay in office.

I so submit, President.

PRESIDENT (in Cantonese): Dr Helena WONG, please speak.

DR HELENA WONG (in Cantonese): President, I request a headcount.

PRESIDENT (in Cantonese): A quorum is now present in the Chamber. Do you wish to speak?

DR HELENA WONG (in Cantonese): President, I speak in opposition to the Second Reading of the Statute Law (Miscellaneous Provisions) Bill 2019 ("the Bill").

President, as I have just been observing the pro-establishment Members, they are supporters of the amendments proposed by the Bill. First, there is a backlog of pending cases in relation to people coming to Hong Kong to seek LEGISLATIVE COUNCIL ― 14 October 2020 141 political asylum or refugees making non-refoulement claims. The screening of these cases take a long time, and the applicants concerned will seek judicial review when their applications are rejected. Certainly, considering from the perspective of human rights and the circumstances of the refugees, we do not wish to see that they have to stay in Hong Kong for a long time to wait for the decision of the court. Therefore, the Democratic Party agrees, as a matter of principle, that a mechanism should be established to speed up the handling of these applications, but the problem is … Why do we oppose the Second Reading of the Bill?

President, we understand that the Government's original intent of introducing the present legislative amendments is to enable the court to expedite its handling of the backlog of cases to allow more efficient case management, but the problem is whether reducing the number of judges comprising a Court of Appeal ("CA") with the jurisdiction to hear and determine cases such as judicial review from two to three―Mr Paul TSE said the number might not necessarily be two, but rather two or three―can really expedite the handling of cases and achieve higher efficiency in the face of an increasing caseload, just as what the Government and the royalist Members have asserted. To me, this is not sheer arithmetic but―just now, Mr James TO already raised some queries about the Bill on behalf of the Democratic Party―the Government's ploy of using the Statute Law (Miscellaneous Provisions) Bill this time to introduce a package of amendments to the Statute Law which actually covers various areas. Of course, many Members have focused their speeches on the judicial review system and the issue of non-refoulement claims.

President, as I just mentioned, this is not the simple issue of reducing the number of judges on the bench of a CA from three to two to expedite the processing of those applications. If we really attach importance to the role of judicial review in the entire system of Hong Kong, we should not conclude hastily that reducing the number of judges on a bench of a CA from three to two is a fast, efficient and economical solution, because in the future … We know that if the legislative amendments now submitted to the Legislative Council by the Government are passed, the new provisions will apply to all judicial review cases in the future, rather than being limited to judicial review cases concerning non-refoulement claims. In this case, is it fair to say that the Government is pursuing its hidden agenda by playing the dirty trick of packaging the relevant amendments as a simple primary school maths question which can dispense with 142 LEGISLATIVE COUNCIL ― 14 October 2020 detailed scrutiny or public hearing, and does not require further consideration? Are we going to pass the Bill in a slapdash manner simply because of the huge backlog of cases?

President, what is the importance of judicial review in Hong Kong's judicial system? Mr Dennis KWOK used 15 minutes to speak―no, actually he was stopped before he could finish his speech―talking about separation of powers. Unfortunately, he did not have the chance to elaborate on that. Had he got the chance to do so, I would have been an interested listener to what he would say.

Today, we are very glad that Secretary Teresa CHENG has come back to this Council after meeting with President XI. President, what I mean to point out is that the judicial review system actually does not allow … Here in this Chamber, we should not adopt an imprudent attitude and casually portray the situation as a problem in arithmetic to which there is a fast, efficient and economical solution, namely reducing the number of judges on the bench to expedite the hearing of cases. This is a simple logic that will lead the legislature and the public to have a misguided understanding about the impact of the relevant legislative amendments.

President, actually, in May 2019, Secretary Teresa CHENG wrote about the judicial review system at length in The Judge over Your Shoulder―A Guide to Judicial Review for Administrators (Third edition)―I have just read the relevant contents in my office―and she mentioned that―perhaps Members have not read what she stated here, so let me just read it out―"With a greater awareness of rights and liberty among the public, government decisions and actions are subject to more vigilant judicial scrutiny. The proper use of judicial review serves to buttress the rule of law and provides an essential foundation to good governance of administrators. Judicial review enables individuals to seek redress from the Court against public bodies"―that means the Government is included―"to ensure that the exercise of public functions is in accordance with the law and is subject to necessary checks and balances. Judicial review is an integral part of the regime for upholding the rule of law in Hong Kong and the Hong Kong Special Administrative Region Government fully respects individuals' right to apply for judicial review."―and here comes this very important sentence that Secretary Teresa CHENG, you, stated back then―"[T]he increasing number of judicial review applications made to the Court of First Instance in recent years should be viewed in a positive light and that it is also a LEGISLATIVE COUNCIL ― 14 October 2020 143 reflection of community's confidence in our independent judicial system and in turn, the rule of law in Hong Kong." So, I have every reason to believe that the Secretary actually welcomes the public having an awareness of this right and being able to use judicial review to seek justice and to examine whether the Government has acted in violation of the law and the constitution, and abused its executive powers. Secretary, you were holding a welcoming and positive attitude towards it back then, but all of a sudden, everyone has changed their opinions without rhyme or reason … Just now, Ms Elizabeth QUAT accused the public of abusing the judicial review system, and she therefore hoped that this problem would be solved by reducing the number of judges on the bench of CA handling this type of cases.

Have members of the public really abused the judicial review system? Admittedly, it is undeniable that there have been a considerable number of applications for non-refoulement claims over the past few years, but the Government is to blame for this large number of cases. If it wants to expedite the processing of these cases, it actually should get to the root cause by reviewing the unified screening mechanism ("USM") introduced in 2014, so as to directly respond to and deal with the problems caused by USM.

Back in those days, the staff of the Office of the United Nations High Commissioner for Refugees was responsible for the screening of refugee claims, but since 2014, this task has been taken up by the Hong Kong Immigration Department ("ImmD"). So, what has gone wrong? Actually, is ImmD short of hands? Is it the case that ImmD officers are unfamiliar with the situation of other countries and thus unable to judge whether a claimant has been subjected to torture, or whether his or her non-refoulement claim should be granted? If the problem comes from the new screening mechanism, then the Government should review this mechanism. If the problem stems from manpower shortage, then the Government should reasonably increase the manpower of ImmD. If the problem is to do with the expertise of ImmD officers―I mean, they lack the relevant political and legal knowledge to help them to make their judgment―then the Government should provide them with training to help them acquire the expertise for making accurate decisions efficiently. However, the Government has not done so. Well then, with a huge surge in judicial review cases (i.e. many applicants are dissatisfied with the decisions made by ImmD under USM), the pressure has shifted to the court. If the court is short of manpower, the Government can increase the manpower for the court to handle these cases. So, why … These judicial review cases should be heard by three Justices of Appeal. 144 LEGISLATIVE COUNCIL ― 14 October 2020

Why? Because three is an odd number. Why can't the number be reduced to two? Because two is an even number. When it comes to the decision on whether leave should be granted to an applicant for judicial review, if the two judges on the bench of CA share the same view, there is surely no problem. However, it will be another story if the two judges dissent from each other. For this reason, these cases have to be decided by a CA comprising an odd number of judges. Now, the Government proposes an amendment to it, and stated that if the two Judges of Appeal cannot reach a unanimous decision, an additional Judge of Appeal can then come in, but this judge only needs to provide his or her opinion in writing. In other words, rather than physically sitting in court as before, the third judge only needs to provide his or her opinion in writing. As compared with the original arrangement, is this too sloppy that the relevant legal rights of judicial review applicants will be compromised?

President, I would like to respond to the remarks passed by "Dr" Elizabeth QUAT just now. In fact, I am not sure whether she holds a doctorate, because at one time, she claimed herself to be a doctorate holder, and at another … When looking up Members' biographies on the Legislative Council website, I noted that information about her education qualifications―even for her primary education―had all disappeared suddenly for unknown reason. This sudden change from being a doctorate holder to a person without any education qualification, I think, is really something mysterious.

President, I wish to respond to the queries she raised just now. According to her, members of the public always abuse the judicial review system nowadays, but actually, have they really abused it? Some may say that we, the pro-democracy camp, will definitely deny any such abuse, so why don't we look at the results of the surveys conducted by some royalist think tanks? This "Survey on public perceptions towards the rule of law in Hong Kong" was published by the Bauhinia Foundation Research Centre in December 2019―Mr WU Chi-wai often says, "Helena, there are really lots of things in your room. So many books and documents are stacked in heaps." Honestly, I think many documents are very important and therefore do not want to throw them away―I wonder if the royalist Members have read it or not. "Dr" QUAT keeps saying that members of the public abuse the judicial review system, but I wish to tell Members the results―I have gone through them―of this survey entitled "Survey on public perceptions towards the rule of law in Hong Kong". In 2019, the Bauhinia Foundation Research Centre published the "Survey on public perceptions towards the rule of law in Hong Kong" which they conducted from LEGISLATIVE COUNCIL ― 14 October 2020 145

October to November 2019 (i.e. a year ago) by randomly sampling over 1 000 respondents who were Hong Kong residents aged 15 or above. Of course, this survey contained a lot of questions concerning the rule of law, and one of them is very important and can shed light on "Dr" QUAT's question. This question asked the respondents about how much they agreed with the statement "The judicial review system is being abused". Let us look at the result here. In 2019, 41.7% of the respondents disagreed that the judicial review system was being abused, whereas 26.4% agreed that the system was being abused, just as what "Dr" QUAT stated. Please note that the percentage of respondents who disagreed that the judicial review system was abused increased from 32.7% in 2018 to 41.7% in 2019. That means more and more people disagree with "Dr" QUAT's allegation that the judicial review system is abused by them. Moreover, there has been a drop in the number of those who originally considered that the judicial review system was abused (i.e. supporters of her view) during 2018 to 2019. That is to say Hong Kong … This is a situation arising in the wake of the many recent happenings in Hong Kong. I think the allegation that Hong Kong people abusing (The buzzer sounded) … the judicial review system …

PRESIDENT (in Cantonese): Dr Helena WONG, please stop speaking.

NEXT MEETING

PRESIDENT (in Cantonese): I now adjourn the meeting until 11:00 am on Wednesday, 21 October 2020.

Adjourned accordingly at 6:47 pm.