LEGISLATIVE COUNCIL ─ 2 March 2016 6019
OFFICIAL RECORD OF PROCEEDINGS
Wednesday, 2 March 2016
The Council met at Eleven o'clock
MEMBERS PRESENT:
THE PRESIDENT THE HONOURABLE JASPER TSANG YOK-SING, G.B.M., G.B.S., J.P.
THE HONOURABLE ALBERT HO CHUN-YAN
THE HONOURABLE LEE CHEUK-YAN
THE HONOURABLE JAMES TO KUN-SUN
THE HONOURABLE CHAN KAM-LAM, S.B.S., J.P.
THE HONOURABLE LEUNG YIU-CHUNG
THE HONOURABLE EMILY LAU WAI-HING, J.P.
THE HONOURABLE TAM YIU-CHUNG, G.B.S., J.P.
THE HONOURABLE ABRAHAM SHEK LAI-HIM, G.B.S., J.P.
THE HONOURABLE TOMMY CHEUNG YU-YAN, G.B.S., J.P.
THE HONOURABLE FREDERICK FUNG KIN-KEE, S.B.S., J.P.
THE HONOURABLE VINCENT FANG KANG, S.B.S., J.P.
THE HONOURABLE WONG KWOK-HING, B.B.S., M.H.
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PROF THE HONOURABLE JOSEPH LEE KOK-LONG, S.B.S., J.P., Ph.D., R.N.
THE HONOURABLE JEFFREY LAM KIN-FUNG, G.B.S., J.P.
THE HONOURABLE ANDREW LEUNG KWAN-YUEN, G.B.S., J.P.
THE HONOURABLE WONG TING-KWONG, S.B.S., J.P.
THE HONOURABLE CYD HO SAU-LAN, J.P.
THE HONOURABLE STARRY LEE WAI-KING, J.P.
DR THE HONOURABLE LAM TAI-FAI, S.B.S., J.P.
THE HONOURABLE CHAN HAK-KAN, J.P.
THE HONOURABLE CHAN KIN-POR, B.B.S., J.P.
DR THE HONOURABLE PRISCILLA LEUNG MEI-FUN, S.B.S., J.P.
DR THE HONOURABLE LEUNG KA-LAU
THE HONOURABLE CHEUNG KWOK-CHE
THE HONOURABLE WONG KWOK-KIN, S.B.S.
THE HONOURABLE IP KWOK-HIM, G.B.S., J.P.
THE HONOURABLE MRS REGINA IP LAU SUK-YEE, G.B.S., J.P.
THE HONOURABLE PAUL TSE WAI-CHUN, J.P.
THE HONOURABLE ALAN LEONG KAH-KIT, S.C.
THE HONOURABLE LEUNG KWOK-HUNG
THE HONOURABLE ALBERT CHAN WAI-YIP
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THE HONOURABLE WONG YUK-MAN
THE HONOURABLE CLAUDIA MO
THE HONOURABLE MICHAEL TIEN PUK-SUN, B.B.S., J.P.
THE HONOURABLE JAMES TIEN PEI-CHUN, G.B.S., J.P.
THE HONOURABLE NG LEUNG-SING, S.B.S., J.P.
THE HONOURABLE STEVEN HO CHUN-YIN, B.B.S.
THE HONOURABLE FRANKIE YICK CHI-MING, J.P.
THE HONOURABLE WU CHI-WAI, M.H.
THE HONOURABLE YIU SI-WING, B.B.S.
THE HONOURABLE GARY FAN KWOK-WAI
THE HONOURABLE MA FUNG-KWOK, S.B.S., J.P.
THE HONOURABLE CHARLES PETER MOK, J.P.
THE HONOURABLE CHAN CHI-CHUEN
THE HONOURABLE CHAN HAN-PAN, J.P.
DR THE HONOURABLE KENNETH CHAN KA-LOK
THE HONOURABLE CHAN YUEN-HAN, S.B.S., J.P.
THE HONOURABLE LEUNG CHE-CHEUNG, B.B.S., M.H., J.P.
THE HONOURABLE KENNETH LEUNG
THE HONOURABLE ALICE MAK MEI-KUEN, B.B.S., J.P.
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DR THE HONOURABLE KWOK KA-KI
THE HONOURABLE KWOK WAI-KEUNG
THE HONOURABLE DENNIS KWOK
THE HONOURABLE CHRISTOPHER CHEUNG WAH-FUNG, S.B.S., J.P.
DR THE HONOURABLE FERNANDO CHEUNG CHIU-HUNG
THE HONOURABLE SIN CHUNG-KAI, S.B.S., J.P.
DR THE HONOURABLE HELENA WONG PIK-WAN
DR THE HONOURABLE ELIZABETH QUAT, J.P.
THE HONOURABLE MARTIN LIAO CHEUNG-KONG, S.B.S., J.P.
THE HONOURABLE POON SIU-PING, B.B.S., M.H.
THE HONOURABLE TANG KA-PIU, J.P.
DR THE HONOURABLE CHIANG LAI-WAN, J.P.
IR DR THE HONOURABLE LO WAI-KWOK, S.B.S., M.H., J.P.
THE HONOURABLE CHUNG KWOK-PAN
THE HONOURABLE CHRISTOPHER CHUNG SHU-KUN, B.B.S., M.H., J.P.
THE HONOURABLE TONY TSE WAI-CHUEN, B.B.S.
THE HONOURABLE ALVIN YEUNG NGOK-KIU
MEMBERS ABSENT:
DR THE HONOURABLE LAU WONG-FAT, G.B.M., G.B.S., J.P.
THE HONOURABLE IP KIN-YUEN
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PUBLIC OFFICERS ATTENDING:
THE HONOURABLE JOHN TSANG CHUN-WAH, G.B.M., J.P. THE FINANCIAL SECRETARY
THE HONOURABLE MATTHEW CHEUNG KIN-CHUNG, G.B.S., J.P. SECRETARY FOR LABOUR AND WELFARE
THE HONOURABLE GREGORY SO KAM-LEUNG, G.B.S., J.P. SECRETARY FOR COMMERCE AND ECONOMIC DEVELOPMENT
THE HONOURABLE LAI TUNG-KWOK, S.B.S., I.D.S.M., J.P. SECRETARY FOR SECURITY
THE HONOURABLE EDDIE NG HAK-KIM, S.B.S., J.P. SECRETARY FOR EDUCATION
DR THE HONOURABLE KO WING-MAN, B.B.S., J.P. SECRETARY FOR FOOD AND HEALTH
MR GODFREY LEUNG KING-KWOK, J.P. UNDER SECRETARY FOR COMMERCE AND ECONOMIC DEVELOPMENT
CLERKS IN ATTENDANCE:
MR KENNETH CHEN WEI-ON, S.B.S., SECRETARY GENERAL
MISS ODELIA LEUNG HING-YEE, DEPUTY SECRETARY GENERAL
MISS FLORA TAI YIN-PING, ASSISTANT SECRETARY GENERAL
MS DORA WAI, ASSISTANT SECRETARY GENERAL 6024 LEGISLATIVE COUNCIL ─ 2 March 2016
TAKING OF LEGISLATIVE COUNCIL OATH
PRESIDENT (in Cantonese): Oath. Mr Alvin YEUNG.
The Honourable Alvin YEUNG Ngok-kiu made the affirmation
PRESIDENT (in Cantonese): That concludes the oath-taking. Welcome, Mr Alvin YEUNG.
TABLING OF PAPERS
The following papers were laid on the table under Rule 21(2) of the Rules of Procedure:
Subsidiary Legislation/Instruments L.N. No.
Rating (Exemption) Order 2016 ...... 36/2016
Revenue (Reduction of Business Registration Fees) Order 2016 ...... 37/2016
Fugitive Offenders (Netherlands) (Amendment) Order 2016 ...... 38/2016
Securities and Futures (Short Position Reporting) (Amendment) Rules 2016 ...... 39/2016
Other Papers
No. 72 ─ Estimates for the year ending 31 March 2017 General Revenue Account - Consolidated Summary of Estimates - Revenue Analysis by Head
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No. 73 ─ The Hong Kong Academy for Performing Arts Annual Report 2014/15 and Consolidated Financial Statements for the year ended 30th June 2015
No. 74 ─ Correctional Services Department Welfare Fund Report by the Commissioner of Correctional Services of Hong Kong Incorporated on the Administration of the Fund and Financial Statements for the year ended 31 March 2015
No. 75 ─ Government Flying Service Welfare Fund Report by the Controller, Government Flying Service on the Administration of the Fund and Financial Statements for the year ended 31 March 2015
Report No. 14/15-16 of the House Committee on Consideration of Subsidiary Legislation and Other Instruments
ORAL ANSWERS TO QUESTIONS
PRESIDENT (in Cantonese): Questions. First question.
Mental Health of Students
1. MRS REGINA IP (in Cantonese): It has been reported that last month, a female student of The Chinese University of Hong Kong (CUHK), suspected of suffering from study pressure and emotional distress, jumped to her death. She was the fifth student of that university and the ninth university student across the territory committing suicide since last year. With regard to the mental health of students, will the Government inform this Council:
(1) whether it knows the number of CUHK students, since last year, who sought assistance from the university due to pressure or emotional distress; among those students, the respective numbers and percentages of them who were mainland students and overseas students; the measures taken by CUHK to help the students seeking assistance;
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(2) whether it has found out if problems relating to their studies and their being edged out by local students were among the causes for the mainland and overseas students mentioned in (1) seeking assistance; if it has found out that this is the case, of the details and the numbers of such cases; and
(3) whether it has formulated benchmarks to assess the Adversity Quotient (AQ) of students of universities, secondary schools and primary schools at present, and whether it has plans to adopt new measures to enhance the level of students' AQ; if so, of the details; if not, whether it will introduce new measures to enhance students' AQ to a level sufficient to enable them to take on various kinds of life challenges, so as to reduce the likelihood of their committing suicide?
SECRETARY FOR EDUCATION (in Cantonese): President, first of all, I am deeply saddened and grieved by the various student suicide incidents that happened in recent months. The Government is very concerned about the problem of student and youth suicide, and has all along been adopting a multi-pronged approach to combat it. The Education Bureau has a mechanism in place to identify and support primary and secondary students with mental health needs, including students at risk of suicidal behaviour. At the same time, the Education Bureau encourages schools to step up their preventive measures and brings in professional support and cross-sector collaboration in order to minimize student suicide incidents. Besides, we strive to strengthen students' positive values and resilience through the school curriculum and activities, and to enhance various education policies in order to improve students' learning motivation. As for post-secondary students, all institutions funded by the University Grants Committee have established dedicated units to conduct mental health screening for students, promote mental health and provide students with professional counselling and related services. At the extramural level, the Social Welfare Department (SWD) provides subvention to the Suicide Crisis Intervention Centre of The Samaritan Befrienders Hong Kong for the provision of various dedicated services, including outreaching, crisis intervention, intensive counselling services. Besides, the SWD subvents the Hong Kong Federation of Youth Groups to set up the "Hotline Service for Youth at Risk" to provide children and youngsters with a safety net and assist them in facing different crises during their development. The Federation also contacts children and youngsters LEGISLATIVE COUNCIL ─ 2 March 2016 6027 facing crisis through telephone to stabilize their emotion, as well as provide counselling and referral services.
My reply to Mrs IP's question is as follows:
(1) and (2)
During the 2014-2015 academic year, the Student Counselling and Development Service of The Chinese University of Hong Kong (CUHK) has received requests for assistance from 725 full-time students, representing 3.1% of the 23 100 full-time students of CUHK. Among them, 508 (70%) were local students, 188 (26%) were Mainland students and 29 (4%) were other non-local students. Among the 217 non-local students, 107 (49%) had sought assistance for problems related to their studies.
We do not have any information indicating that non-local students have requested assistance from their respective institutions as a result of mental distress caused by their being edged out. As a matter of fact, institutions make an all-out endeavour to assist non-local students to adapt to and integrate into their new lives and learning environment through various initiatives, activities and support services. These include familiarization programmes and adjustment support, language enhancement programmes, cultural exchange and social events, mentoring and peer support schemes, academic and career advice, and so on. Besides, non-local students have established their own associations to provide a platform for mutual assistance and exchange.
Any student in need of assistance regarding study, career, social, financial, personal and other issues can seek help and support services from his institution. Each institution has a counselling and support mechanism and will provide appropriate assistance according to the nature and severity of each case.
(3) All along, the Government and the education sector attach great importance to strengthening students' ability to cope with adversity and enhancing their respect for life. At the school level, in parallel with the curriculum, we have actively organized diversified 6028 LEGISLATIVE COUNCIL ─ 2 March 2016
development programmes, such as the "Understanding Adolescent Project" for primary school students featuring adventures, team work and problem-solving training; the "Enhanced Smart Teen Project" in collaboration with disciplinary forces and uniform groups for secondary school students; the "Pupil Ambassador: Active, Bright and Caring", and so on, to enhance students' resilience, and cultivate their sense of dignity, self-discipline, responsibility and courage to make changes and take on challenges. In recent years, the Education Bureau has also introduced a number of student guidance projects based on positive psychology concepts to help students develop a positive self-image and learn how to respect and cherish life. Moreover, we have been promoting a caring and harmonious school culture, strengthening the relationship between teachers and students and enhancing peer support so that students can enjoy their learning and school life.
At the post-secondary level, some institutions incorporate positive psychology concepts in their teaching materials to strengthen resilience among students. Institutions also provide training for students to become mental health ambassadors and organize peer counselling activities. In addition, academic advisors for students of undergraduate programmes and residence tutors of student hostels also assist students in coping with problems relating to their studies and daily life.
Adversity Quotient (AQ), which was mentioned in Mrs IP's question, is used to quantify the capability of an individual to cope with adversity. As we understand it, unlike Intelligence Quotient, the concept of AQ currently does not have a sound research base in terms of psychological measurement. At present, there are no objective, standardized and widely accepted tools in Hong Kong for AQ assessment. Nevertheless, we strive to ascertain and strengthen students' ability to cope with adversity through other tools, platforms or channels. We will continue to keep in view the research into and development of AQ and make reference to it as appropriate.
Finally, I would like to point out that the causes of suicide are complicated, and biological, social, psychological and other factors may interact with one another. Every case has its uniqueness. LEGISLATIVE COUNCIL ─ 2 March 2016 6029
The Education Bureau will continue to co-operate with relevant departments and organizations, such as the SWD, the Hospital Authority, as well as other non-governmental professional organizations, in order to heighten the awareness of schools towards students' mental health needs, and identify as early as possible students in need of assistance to avoid tragedies.
MRS REGINA IP (in Cantonese): President, the figures provided by the Secretary just now show that cases involving Mainland students and other non-local students altogether account for 30% of the requests for assistance received by CUHK. But in fact, universities can only admit a maximum of 15% to 20% non-local students. In other words, the percentage is rather high. May I ask if the Secretary has any information on whether these students were undergraduates or postgraduates? They should be talented students and should not have had learning difficulties. I want to know about it.
SECRETARY FOR EDUCATION (in Cantonese): The above figures mainly relate to full-time undergraduates.
PROF JOSEPH LEE (in Cantonese): President, the Secretary mentioned in the main reply that they have launched a variety of programmes in primary and secondary schools to promote mental health. But obviously, Mrs Regina IP's question is about the mental health and suicide problem of university students. May I ask the Secretary if he knows whether universities have employed clinical psychologists to specifically promote mental health? Or, is such work taken up by counsellors? Can the Secretary provide any information? Have these universities allocated additional resources for employing clinical psychologists to specifically promote mental health, so as to reduce the number of student suicide cases?
SECRETARY FOR EDUCATION (in Cantonese): Actually, universities address this matter on several fronts. First, as I said in the main reply just now, universities will provide familiarization programmes, language enhancement programmes, student activities, and mentoring and peer support schemes for students at the beginning of their university studies. This is the first point.
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Second, different types of professional support are available. The student counselling offices of individual institutions have dedicated personnel to address students' needs in this respect, and they will use other types of professional support services as appropriate. President, every case varies, and institutions already have their own mechanisms to handle it. In the process, universities are particularly concerned about the problems mainly faced by students. Let me read out the six areas of particular concern to them.
They have identified students' major needs for counselling services. These include: first, emotional and mental health support; second, study pressure and course selection; third, friendship and love ― as Members can see, these are the problems found in some cases; fourth, personal development and self-understanding; fifth, adaptation to university life and culture; and sixth, family problems and career pressure. President, the service needs of students mainly fall within these six categories, and institutions have provided corresponding support in these areas.
PRESIDENT (in Cantonese): Prof LEE, has your supplementary question not been answered?
PROF JOSEPH LEE (in Cantonese): President, I thank the Secretary for his comprehensive reply on the needs of students. But my supplementary question is very straightforward and specific. Can the Secretary provide information and let us know whether universities have allocated any resources for employing clinical psychologists to promote mental health? He has not answered this question.
PRESIDENT (in Cantonese): Secretary, have they employed any clinical psychologists?
SECRETARY FOR EDUCATION (in Cantonese): President, the several areas I talked about just now are related to university students, and universities have professional teams to deal with it. The professional teams of the eight universities comprise two to 12 persons each. Under institutional autonomy, LEGISLATIVE COUNCIL ─ 2 March 2016 6031 respective institutions will allocate their own resources having regard to their needs, and resource deployment will be conducted by the internal specialist groups of the institutions.
PRESIDENT (in Cantonese): Secretary, do you know whether they have employed any clinical psychologists?
SECRETARY FOR EDUCATION (in Cantonese): Regarding individual professional services, I know that individual universities have educational psychologists and clinical psychologists who provide consultation services. But as to whether such services are provided by the institutions themselves or arranged through other professional bodies, the practice of different institutions varies.
MR CHAN KAM-LAM (in Cantonese): President, I very much agree to the Secretary's earlier remark that the sources of stress among students come from six areas. Although various institutions have put in place a number of measures both within and outside the institutions or set up dedicated teams to assist students in tackling their difficulties, we have noticed that students not only exhibit abnormal behaviours in schools, but they also become more and more radical. Their extreme and radical behaviours are observed in schools, and even in the community, quite many primary and secondary school students are seen participating in the Mong Kok riot. Such radical behaviours have gone beyond what is commonly seen …
PRESIDENT (in Cantonese): Mr CHAN, please state your supplementary question.
MR CHAN KAM-LAM (in Cantonese): Yes, President. Their behaviours have gone beyond rebellious behaviors in the traditional sense. Hence, my question to the Secretary is: Should the existing counselling services in or outside schools be reviewed to help students cope with stress?
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SECRETARY FOR EDUCATION (in Cantonese): President, the problems the students face vary from individual to individual, and they need assistance when they encounter difficulties. We have found that one of the initiatives adopted by universities has proved to be quite effective, and that is the introduction of mentoring and peer support schemes which I mentioned a moment ago. Under such schemes, successful people in society are paired with different numbers of students on a voluntary participation basis to share their life experience with students and develop students' observation skills. Besides, study tours and internship programmes are organized, and counselling will be provided for students on the experience gained from these training opportunities. All this is aimed at encouraging students to see things from different perspectives and understand things by making sense out of facts and personal experience. Therefore, as Members can see, the number of students seeking counselling services has not increased significantly but has shown a downward trend in recent years. This is our observation.
MR KENNETH LEUNG (in Cantonese): President, I am disappointed with the Secretary's main reply. The career counselling and language enhancement programmes he mentioned can of course improve the academic performance or life of students, but what we are now discussing is a psychological issue.
In fact, there is a clinical psychologist in each university or institution overseas. When I studied abroad in Britain some 20 years ago, I also came across some schoolmates who sought assistance directly from the clinical psychologist of the school. The Secretary's earlier reply to Prof Joseph LEE has fully reflected his utter ignorance about the number of clinical psychologists, and he does not even know whether there are such psychologists. I hope the Secretary can give me a reply on the number of qualified clinical psychologists now providing service to our students in universities.
SECRETARY FOR EDUCATION (in Cantonese): President, due to institutional autonomy, institutions will arrange individual student services based on their actual circumstances. Some of these services are provided by the institutions themselves while some are provided through non-profit-making professional organizations or professional service units. There is a limited number of clinical psychologists and educational psychologists in society. On this premise, institutions may not have set up such dedicated teams. As for the LEGISLATIVE COUNCIL ─ 2 March 2016 6033 exact number that the Honourable Member was asking for, I can only provide the relevant information after consulting the various institutions. (Appendix I)
DR KENNETH CHAN (in Cantonese): President, resources of universities come from the Government. As such, the first thing is, from the Secretary's earlier replies, I find that he obviously "has not done his homework" and has been giving vague answers. In fact, as long as the Government provides funding to tertiary institutions through the UGC, these institutions will be able to provide appropriate and proper preventive services to students and teachers in need.
As a university professor, I want to ask the Secretary a specific supplementary question. For those cases mentioned by the Secretary just now, we of course feel regret and consider that "one is already too many". The Secretary has also identified a number of underlying reasons. As there have been quite many such cases and requests for assistance, from the policy perspective, which component of the entire teaching and learning process does the Administration think should be a matter of prime concern, in order to help students and prevent similar tragedies?
SECRETARY FOR EDUCATION (in Cantonese): President, the Member talked about resources of universities just now. Perhaps let me give a detailed explanation.
Funding for UGC-funded institutions is composed of recurrent grants and capital grants. Recurrent grants are used to support institutions' academic work and other related administrative activities and services, and are disbursed to institutions normally on a triennial basis to tie in with the academic planning cycle. Such grants mainly take the form of block grants to give institutions flexibility in internal utilization and deployment. Unlike the general resource arrangements for primary and secondary schools, once allocations are approved, institutions can decide themselves on how the resources available are put to best use. This is about the block grants.
As regards the second part on the services of institutions, I wish to stress again that institutions enjoy autonomy in making arrangements for meeting students' needs. We have asked institutions to adopt positive thinking and positive values as the principal elements of their curriculums and counselling 6034 LEGISLATIVE COUNCIL ─ 2 March 2016 services, so that students can develop a positive life attitude through the learning process and extra-curricular activities and be able to experience life, including adversities, in a positive way. This is about the principal elements.
DR KENNETH CHAN (in Cantonese): President, sorry. Since this is an important occasion and this is a very serious question …
PRESIDENT (in Cantonese): Please repeat your supplementary question.
DR KENNETH CHAN (in Cantonese): I want to correct and clarify …
PRESIDENT (in Cantonese): I wish to remind Members that they should refrain as far as possible from expressing their views when asking questions. Dr CHAN, the Secretary hastened to respond to your views just now, and that is why he was unable to give you an answer to your satisfaction in his reply to your supplementary question. Please repeat your supplementary question.
DR KENNETH CHAN (in Cantonese): My supplementary question is very specific. Universities have put in place specific programmes and policies to promote the objectives of knowledge transfer and outcome-based teaching and learning. So, does the Government plan to conduct a review and provide resources from an educational psychology or clinical psychology perspective?
SECRETARY FOR EDUCATION (in Cantonese): President, the supply of and demand for professionals I mentioned just now are also very important in this regard. Therefore, we have increased the number of places available in the relevant professional training programmes in the UGC's three-year funding programme this year. This is an example to illustrate the growth in our planning.
DR ELIZABETH QUAT (in Cantonese): President, youth suicide has been a serious problem in Hong Kong, and the suicide rate among young people aged 15 LEGISLATIVE COUNCIL ─ 2 March 2016 6035 to 24 has kept increasing over the past few years. I asked questions in 2013, 2014 and 2015, but it seems that the Government has not attached enough importance to this problem.
Mental health of young people is a broad discipline. May I ask whether the Government has commissioned any in-depth studies over the years to identify preventive measures or ascertain the adequacy of adversity training for young people? Has the Government conducted any in-depth studies or formulated any targeted measures?
SECRETARY FOR EDUCATION (in Cantonese): President, the SWD often gains an understanding of the problem in a targeted manner through several channels, such as providing subsidies to non-profit-making professional welfare organizations (including The Samaritan Befrienders Hong Kong) and the special programmes launched by The Hong Kong Jockey Club.
On the part of the Education Bureau, we published the "eBook on Student Suicide for Schools: Early Detection, Intervention and Postvention" in 2011 by making reference to a variety of information. It provides access to tables, checklists, guidelines, support strategies, and so on. Besides, we have also enhanced teacher training in this respect, especially training on supporting students with emotional and behavioural problems. At the same time, the Education Bureau has increased the numbers of discussion forums as well as district-based, school-based and territory-wide seminars and workshops every year. This is part of our targeted measures. President, the six areas I mentioned a moment ago come from a related study.
As I have said, suicide is the result of interactions of a host of intricate factors such as personal, psychological and social factors. We call upon schools, the Government and all sectors of the society, including parents, teachers, professors, universities, schools, professionals and members of the community, to join hands to tackle the problems.
PRESIDENT (in Cantonese): This Council has spent nearly 23 minutes on this question. Second question.
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Expanding Ambit of Competition Ordinance
2. MR KENNETH LEUNG (in Cantonese): President, the Competition Ordinance, which has been fully implemented since 14 December last year, aims to provide a legal framework to regulate anti-competitive conduct in various sectors, and to set up the Competition Commission and the Competition Tribunal responsible for the specific enforcement of the legislation. The Ordinance does not bind the Government, and some of its provisions do not apply to over 500 statutory bodies and their specified activities. In this connection, will the Government inform this Council:
(1) whether it has assessed if public policies that affect market operation should conform to the spirit of the Competition Ordinance, i.e. promoting market competition and preventing monopoly; if it has assessed, of the outcome;
(2) whether the authorities, since the enactment of the Competition Ordinance, have studied if the various existing public policies have prevented, restricted or distorted market competition; if they have studied, of the details of the work and the outcome; if not, the reasons for that; and
(3) whether the authorities have plans to review the Competition Ordinance to bring the economic activities engaged by statutory bodies as well as public policies within the ambit of the Ordinance; if they do, of the details and the timetable of such plans; if not, whether the authorities will undertake to conduct such a review shortly?
SECRETARY FOR COMMERCE AND ECONOMIC DEVELOPMENT (in Cantonese): President, the Government is committed to promoting a competitive market to enhance market efficiency and facilitate trade and commercial activities, thereby also benefiting the consumers. My reply to Mr Kenneth LEUNG's three-part question is as follows:
(1) The Competition Ordinance was brought into full operation on 14 December 2015. In formulating public policies and measures, the Government shall consider the competition impact as part of the LEGISLATIVE COUNCIL ─ 2 March 2016 6037
economic implication of the proposals, in order to ensure that the policies and measures, when implemented, would have on balance taken into account of the competition consideration.
The Competition Ordinance provides a legal framework to prohibit anti-competitive conducts, so that free markets can evolve unimpeded by anti-competitive behaviours. The "first conduct rule" of the Competition Ordinance mainly prohibits the making of anti-competitive agreements among undertakings, which include among others, price-fixing and bid-rigging. The "second conduct rule" prohibits undertakings having a substantial degree of market power from abusing that power to harm competition. However, the Competition Ordinance does not dictate any market structures. Therefore, even when there are only a few undertakings operating in a market, in so far as they do not engage in anti-competitive conducts prohibited by the first or second conduct rule, there is no contravention of the provisions in the Competition Ordinance.
Most of the government conduct is for providing essential public services, or is of non-economic nature. Drawing reference from the experience of other major overseas competition jurisdictions, government conduct usually does not come under the regulatory ambit of competition laws. That notwithstanding, in the event that some public policies and measures may have impact on the economic activities of related sectors or markets, the Government shall also take full account of the policy objectives as well as other factors pertinent to public interest when deciding on such policies and measures. As I have mentioned earlier, the factors would include competition as part of the economic implication.
(2) Back in December 1997, the Government established the Competition Policy Advisory Group (COMPAG) to handle and advise on issues related to competition which have substantial policy or systemic implications to the Government.
Over the years, one of the major functions of the COMPAG is to handle competition-related cases or complaints received from various channels, and to advise Policy Bureaux and departments on the investigations and follow-up actions.
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Since the full implementation of the Competition Ordinance on 14 December 2015, competition-related complaints and investigations are handled by the statutory authorities responsible for enforcing the competition rules, that is, the Competition Commission and the Communications Authority. The COMPAG will correspondingly handle complaints that fall outside the jurisdiction of the competition rules of the Competition Ordinance. Examples include complaints against government entities, statutory bodies and other entities or agreements and conducts which have been exempted from the application of the Competition Ordinance. Upon receiving complaints, the COMPAG will request the relevant Policy Bureaux or departments to follow up and deal with the cases, and to report progress to the COMPAG.
On the other hand, the Competition Commission, besides enforcing the conduct rules of the Competition Ordinance, has the authority to conduct market studies into matters affecting market competition in Hong Kong, and to advise the Government on competition matters. We will maintain close liaison with the Competition Commission and welcome future views of the Commission on public policies and measures, with a view to jointly eliminating conducts which may have adversely affected market competition.
(3) In the process of scrutinizing the Competition Bill from 2010 to 2012, the Bills Committee discussed the exemption arrangement for statutory bodies extensively and thoroughly. It was decided as a result that the provisions of the Competition Ordinance concerning the conduct rules, enforcement powers of the Competition Commission and enforcement before the Competition Tribunal shall not apply to statutory bodies. It was because most statutory bodies do not engage in, or have very little engagement in economic activities, or they perform functions which are related to the execution of policies or provision of key public services. We have already undertaken during the scrutiny of the Competition Bill that the Government will review the scope of exemption for statutory bodies three years after the coming into force of the major prohibitions of the Competition Ordinance.
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In fact, while statutory bodies are exempted from the application of the Competition Ordinance, they still have an obligation to comply with the competition principles, and they shall not engage in any anti-competitive activities without reasonable grounds. The Government will demand the relevant bodies to rectify their behaviour in case it is found that such behaviour does not conform with the competition principles. The Government may also consider putting a statutory body under the regulation of the Competition Ordinance if necessary.
MR KENNETH LEUNG (in Cantonese): President, I would like to raise a question on part (3) of the main reply. The MTR Corporation Limited (MTRCL) and the Hong Kong Exchanges and Clearing Limited (HKEx) enjoy monopolies, whether virtually or perceptually, in the transportation services and stock exchange services respectively. May I ask the Secretary whether these two organizations, which are both listed companies, are included in the list of the 500 statutory bodies?
SECRETARY FOR COMMERCE AND ECONOMIC DEVELOPMENT (in Cantonese): President, we have already clearly stated that we will conduct a review three years after the coming into full force of the Competition Ordinance. This review will examine whether the activities of these statutory bodies in these three years have competition implications. Hence, we have made an undertaking already. Besides, we also have to learn from the experience gained during this period of time. Therefore, all the statutory bodies currently exempted from the Competition Ordinance will be covered in the scope of our study.
PRESIDENT (in Cantonese): Secretary, will you answer Mr LEUNG's question?
MR KENNETH LEUNG (in Cantonese): I would like to ask about the exemption list.
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PRESIDENT (in Cantonese): In the supplementary question, Mr LEUNG asked whether the MTRCL and the HKEx are on the exemption list. Secretary, do you have any response?
SECRETARY FOR COMMERCE AND ECONOMIC DEVELOPMENT (in Cantonese): The HKEx is not a statutory body. Hence, as far as I know, it is not on the exemption list. Although the HKEx is not on the list of exempted statutory bodies, President, as far as I remember, the HKEx is exempted. As regards the means by which these two organizations are exempted, may I perhaps provide a written reply? (Appendix II)
PRESIDENT (in Cantonese): Secretary, will you also provide information on the MTRCL?
SECRETARY FOR COMMERCE AND ECONOMIC DEVELOPMENT (in Cantonese): I will respond in writing.
MR WONG TING-KWONG (in Cantonese): President, after the full implementation of the Competition Ordinance, can the problem that oil companies are quick in raising oil prices but slow in reducing them be addressed effectively? If not, does it mean that even with the enactment of the competition law, the Government still cannot effectively urge oil companies to expeditiously reduce the retail prices of local auto-fuels and diesel fuels when the international oil prices drop, so as to safeguard the interests of consumers? Has the Government appointed the Competition Commission to investigate these oil companies?
SECRETARY FOR COMMERCE AND ECONOMIC DEVELOPMENT (in Cantonese): President, our objective of enacting the Competition Ordinance is to curb anti-competitive conducts in various trades and industries so as to maintain fair and sustainable competition in the market.
In fact, as I mentioned in the main reply earlier, the Competition Ordinance does not regulate the market prices of enterprises. Citing the example of oil companies, Mr WONG queried whether oil companies would adjust the increase LEGISLATIVE COUNCIL ─ 2 March 2016 6041 in oil prices in tandem with international oil price movements. But this does not fall within the regulatory ambit of the Competition Ordinance. However, if there is evidence to show that there is agreement or mutual co-ordination between oil companies to manipulate prices, the Competition Commission can conduct investigation pursuant to the "first conduct rule" of the Competition Ordinance.
The Competition Commission is an independent body empowered to determine its own work arrangements, including those on investigation. As far as we know, in order to address public concern on fuel prices, the Competition Commission has already embarked on a market study in this regard. If any evidence of a possible breach of the Competition Ordinance is found during the study, the Competition Commission will conduct an investigation. Irrespective of whether an investigation is conducted, the Competition Commission will compile a report and advise the Government on the results of the study, including the market competition of oil companies.
In terms of policy, in fact, in the reply to a question raised by the Legislative Council last month, the Secretary for the Environment has already stated clearly that the Government will endeavour to ensure a stable fuel supply, maintain market openness, and remove barriers to enter into the market to enhance competition. The standpoint of the Government is very clear in this regard.
DR CHIANG LAI-WAN (in Cantonese): President, I would like to ask the Secretary a question. As we all know, the nature and content of the current Competition Ordinance are rather complicated, and certain parts of it are quite specialized. Even many people in the business sector only have a smattering of knowledge about it, not to mention the general public. May I ask the Secretary what the stance of the Government is, or what measures the Competition Commission has in place to assist the small and medium enterprises (SMEs) in order to deepen their understanding?
SECRETARY FOR COMMERCE AND ECONOMIC DEVELOPMENT (in Cantonese): President, at the formulation stage of the Competition Ordinance, we have done publicity work on various fronts to promote the competition law. I was responsible for the drafting and promotion of the competition law at that time. I thus know that a wide range of work has been done in this regard, 6042 LEGISLATIVE COUNCIL ─ 2 March 2016 especially the promotion and briefing for the SMEs to enable them to have a better grasp of the merits of the Competition Ordinance and the implication of violation of the Ordinance. Such work is very important.
Upon its establishment, the Competition Commission has maintained contacts and communications with enterprises, chambers of commerce, trade associations and professional organizations in various aspects. More than 180 meetings and briefing sessions were held. During this period, the Competition Commission mainly focuses on its promotion targeting the representatives of chambers of commerce and SMEs. As Members may aware, the Competition Commission has held a number of roving exhibitions in various districts of the Hong Kong Island, Kowloon and the New Territories to promote the advantages of the competition law on consumer spending not only to the industries concerned, but also to the general public. Besides, it has done a lot of publicity work on multi-media platforms like Yahoo, Facebook, YouTube, and so on. If the SMEs have any questions or if there is anything about the competition law that they do not understand, they can contact the Competition Commission directly. The relevant staff of the Competition Commission will explain the implications of the Ordinance on them.
MR CHRISTOPHER CHEUNG (in Cantonese): President, under the competition law introduced by the Government, the HKEx has been granted an exemption and can carry on an "exclusive business" while the SMEs have no choice but to bear the direct impact. For instance, the new trading system, price quotation and the criteria for setting fees and charges have put a heavy burden on us. I would like to ask the Government: As it has granted an exemption to the HKEx under the competition law, will it consider establishing some monitoring mechanisms to ensure that the fees charged by the HKEx are reasonable?
SECRETARY FOR COMMERCE AND ECONOMIC DEVELOPMENT (in Cantonese): President, concerning … did the Member refer to the HKEx just now?
MR CHRISTOPHER CHEUNG (in Cantonese): Yes, the HKEx.
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SECRETARY FOR COMMERCE AND ECONOMIC DEVELOPMENT (in Cantonese): Yes, about the HKEx. Since I do not have such information on hand, let me perhaps give a written reply to Mr CHEUNG's supplementary question. (Appendix III)
MS STARRY LEE (in Cantonese): President, after the Competition Ordinance has come into force, its effectiveness can actually be seen. Take the prices of sneakers as an example, many famous brand sneakers are no longer sold at standard prices. I find that they are really cheaper than before. Another example is gold. There was a uniform price for gold in the past. Now we can see the price differences apparently. Although I know that there are views from the industries, I want to clearly point out that the public have higher expectations of the Competition Commission and the Competition Ordinance. They want them to catch a bigger "tiger".
I would like the Secretary to provide a clear response. Has he gained an understanding of whether the Competition Commission has conducted any form of study or investigation on the oil companies' pricing practices of "quick going up, slow coming down"? Besides, has it done any concrete work concerning bid-rigging of buildings? It is because these two topics are related to people's livelihood, and many people expect that with the implementation of the Competition Ordinance and the intervention of the Competition Commission, monopoly will be broken so that the market will be more competitive.
PRESIDENT (in Cantonese): Ms LEE has just raised two supplementary questions. With regard to oil prices, Mr WONG Ting-kwong has already raised a question earlier and the Secretary has given a rather detailed reply. Now, will the Secretary please answer the question concerning bid-rigging of buildings.
SECRETARY FOR COMMERCE AND ECONOMIC DEVELOPMENT (in Cantonese): As far as bid-rigging of buildings is concerned, price fixing, market sharing, output restrictions and bid-rigging are the four major types of conducts subject to the regulation of the "first conduct rule". They are serious anti-competitive conducts. With the full implementation of the Competition Ordinance on 14 December last year, if the Competition Commission has 6044 LEGISLATIVE COUNCIL ─ 2 March 2016 reasonable grounds to suspect that anti-competitive conduct has occurred, it can carry out investigation on the case concerned. The Competition Commission has noted the public concern on the suspected bid-rigging cases in the building maintenance market, and has embarked on the relevant market study in order to better understand the competition environment in the market. Under the competition law, bid-rigging means an agreement which is reached between or among two or more bidders without the knowledge of the person calling for the tenders whereby some of those bidders agree that they will not compete, so as to enable their partner in collusion to win in the bidding. As I have pointed out earlier, if, upon completion of its study, the Competition Commission finds that there are indeed suspected cases of big-rigging in the market, it will carry out investigation.
MR ALVIN YEUNG (in Cantonese): President, I am rather disappointed with the Secretary's response to Ms Starry LEE's question on bid-rigging, because the Secretary has not answered Ms Starry LEE's supplementary question. In fact, does the Bureau or the Competition Commission have any specific timetable and road map for formulating any form of remedial measures against bid-rigging? Or does the Secretary think that bid-rigging in the community is not serious at all, and that is why he gave such a reply just now? In brief, he basically has not answered the question.
SECRETARY FOR COMMERCE AND ECONOMIC DEVELOPMENT (in Cantonese): I believe Members are aware that law attaches importance to evidence. The Competition Commission is now doing a study about the market. Any person who suspects that there is bid-rigging may furnish such information to the Competition Commission if there is evidence to support his suspicion. The Competition Commission may carry out investigation if it is satisfied that there is sufficient ground for doing so. In fact, this has been clearly spelled out when the Competition Ordinance is being enacted. As we understand, the Competition Commission will complete its study within this year.
MR ALVIN YEUNG (in Cantonese): President, I am very surprised that the Secretary …
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PRESIDENT (in Cantonese): Please repeat your supplementary question.
MR ALVIN YEUNG (in Cantonese): President, I just want to follow up.
PRESIDENT (in Cantonese): Mr YEUNG, debate is not allowed during the question session. If the Member asking the supplementary question is not satisfied with the Secretary's reply, he can follow it up on other occasions.
MR ALVIN YEUNG (in Cantonese): President, I understand.
PRESIDENT (in Cantonese): If a Member thinks that the Secretary has not answered his supplementary question because he did not hear it clearly, he can repeat his supplementary question.
MR ALVIN YEUNG (in Cantonese): All right. I would like to take this opportunity to repeat my supplementary question raised earlier.
Does the Secretary think that bid-rigging in the community is not serious? This is my supplementary question.
PRESIDENT (in Cantonese): Secretary, do you have anything to add?
SECRETARY FOR COMMERCE AND ECONOMIC DEVELOPMENT (in Cantonese): President, the Competition Commission is an independent statutory body. All its work is done under the power vested in it by the Competition Ordinance. At present, one of its tasks is to observe the market and conduct a study on competition.
I have stated clearly just now that as far as I know, the Competition Commission will complete this study within this year. Meanwhile, if any person has evidence to prove that there is bid-rigging, he is welcome to lodge a 6046 LEGISLATIVE COUNCIL ─ 2 March 2016 complaint to the Competition Commission. The Competition Commission will carry out an investigation if it has sufficient information to do so. The point is very clear and this is a very simple basic knowledge.
MR FRANKIE YICK (in Cantonese): President, at present, many countries with competition laws in place, including our neighbouring countries like Singapore, South Korea, Taiwan and Japan, and even member states of the European Union, have granted the maritime industry certain exemptions under their competition laws. Ship companies have repeatedly made similar requests. Nevertheless, the Competition Commission says that it cannot commence the study until the legislation formally comes into force. I know that the Competition Commission has embarked on the study, but we cannot assume that it will definitely approve such requests. If approval is not given, 70% of the existing containers in transit via Hong Kong will turn to other neighbouring places. This will have a very serious impact on the port and logistics industry of Hong Kong.
May I ask the Secretary whether the Administration (not only the Bureau and departments under your purview) has conducted any assessment on what remedial measures the Government can take to maintain the status of Hong Kong in freight industry in case this situation arises?
SECRETARY FOR COMMERCE AND ECONOMIC DEVELOPMENT (in Cantonese): President, with regard to the joint operation of the maritime trade, as far as I know, the industry has formally made an application to the Competition Commission for a block exemption order. Under the Competition Ordinance, they can make such applications only after the Competition Ordinance has come into effect. The Competition Commission will consider the justifications put forward by the organizations applying for block exemption orders, and will professionally and independently decide whether block exemption orders should be issued pursuant to the Competition Ordinance.
In fact, the Government does not have the power to grant block exemption on behalf of the Competition Commission. However, before making the final decision, the Competition Commission will give an opportunity to the public and the people affected to express their views in accordance with the requirements of LEGISLATIVE COUNCIL ─ 2 March 2016 6047 the Competition Ordinance. I believe that the industry to which Mr YICK belongs can also take this opportunity to submit their views to the Competition Commission.
MR FRANKIE YICK (in Cantonese): The Secretary has not answered my supplementary question.
PRESIDENT (in Cantonese): Please repeat your supplementary question.
MR FRANKIE YICK (in Cantonese): I asked the Government whether it has conducted any assessment on what remedial measures the Government can take in case approval is not given by the Competition Commission in order to ensure that the port and logistics industry of Hong Kong will not suddenly collapse.
PRESIDENT (in Cantonese): This is a hypothetical question. Secretary, do you have anything to add?
SECRETARY FOR COMMERCE AND ECONOMIC DEVELOPMENT (in Cantonese): Before the Competition Commission makes its decision, I think it is not appropriate for me to give any comments.
PRESIDENT (in Cantonese): We have spent more than 23 minutes on this question. Third question.
Countering Cold Spells
3. MR ANDREW LEUNG (in Cantonese): President, in late January this year, Hong Kong experienced the coldest spell in 59 years. Some meteorologists have warned that global extreme weathers will occur more and more frequently. On 17 January, the Hong Kong Observatory (HKO) forecast a minimum temperature of 10°C seven days later (i.e. on 24 January), and thereafter adjusted the forecast minimum temperatures downward every day until 6048 LEGISLATIVE COUNCIL ─ 2 March 2016 it made a forecast on 23 January that the minimum temperature on the following day would be 6°C. However, the actual minimum temperature on 24 January was 3.1°C, representing a forecast error of nearly three degrees, which was far more than the average error of one to two degrees in the past year. On the other hand, it has been reported that some foreign weather forecasters had predicted eight days before 24 January that the temperature in Hong Kong on 24 January would fall to zero to 4°C, making a forecast error smaller than that of HKO. Moreover, on 25 January, the Education Bureau (EDB) made a last-minute announcement that classes of all kindergartens, schools for children with physical disability, schools for children with intellectual disability and primary schools would be suspended on that day due to the persistently intense cold spell. In this connection, will the Government inform this Council:
(1) whether it has assessed if the weather gauging equipment of HKO and the weather information it releases to the public are inferior to those of its overseas counterparts; if it has assessed, of the outcome; whether HKO has plans to procure more advanced equipment, and whether it will, by making reference to the practices of the United Kingdom and Australia, release weather information on "apparent temperature" to the public; if HKO will, when it will start doing so; if not, of the reasons for that;
(2) given that while sleet (i.e. "雨夾雪" in Chinese, meaning rain and snow mixed) was reported in Hong Kong on 24 January, and HKO called this phenomenon "雨夾小冰丸" (i.e. rain with small ice pellets) in Chinese that morning and subsequently changed it to "雨 夾小冰粒", why HKO used Chinese terms such as "雨夾小冰丸" and "雨夾小冰粒" instead of "雨夾雪" as appeared on the "Cool Met Stuff" page of its web site; and
(3) given that heating systems have not been installed in most schools currently, whether EDB will consider issuing guidelines on class suspension arrangements in severely cold weather to enable students, parents and school authorities to make advance preparation?
(Mr CHAN Chi-chuen stood up)
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MR CHAN CHI-CHUEN (in Cantonese): I request a headcount.
PRESIDENT (in Cantonese): Will the Clerk please ring the bell to summon Members back to the Chamber.
(While the summoning bell was ringing, some Members left their seats)
PRESIDENT (in Cantonese): Will Members in the Chamber please do not leave your seats.
(After the summoning bell had been rung, a number of Members returned to the Chamber)
PRESIDENT (in Cantonese): Secretary, please give your main reply.
SECRETARY FOR COMMERCE AND ECONOMIC DEVELOPMENT (in Cantonese): President, my reply to the three parts of the question is as follows:
(1) Weather centres around the world primarily make use of computer models to prepare weather forecasts. In addition to making use of its own self-operated computer model which is developed for specific application in Hong Kong, the Hong Kong Observatory (HKO) also makes reference to computer models that are reputed globally for their good performance, including those of the European Centre for Medium-Range Weather Forecasts, Japan Meteorological Agency and United States National Oceanic and Atmospheric Administration. The HKO would take into account the past performance of such models, their forecast locations, actual observations, and so on, in preparing consolidated forecasts. This approach is consistent with that adopted by other major cities and advanced areas. In the past year, the average error of temperature forecasts made by the HKO using the said approach is approximately 1°C, the performance being on par with top standards in the world.
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The main meteorological facilities of the HKO comprises meteorological radars, a meteorological satellite reception system, a lightning location network, and so on. Such facilities are adequate for meeting the present needs of the HKO in relation to the provision of weather forecast services. The HKO will keep abreast of developments and consider acquiring more advanced meteorological facilities suitable for use in Hong Kong in a timely manner, so as to enhance the department's ability in carrying out weather monitoring, forecasts and warnings.
The HKO has drawn experience from the cold weather event in January, with a view to enhancing its forecasting techniques to meet the challenges of more extreme weather conditions brought by climate change. The HKO will continue to exchange experiences with meteorological organizations around the world on matters such as weather monitoring, forecasts and warnings.
In future and when necessary, the HKO will include more specific contents and wording in its Cold Weather Warnings, such as wind chill effect, slippery icy roads, and so on, to better explain the actual impact of very cold weather to the public. The HKO will also provide more detailed information on regional temperatures. Starting from early March, the HKO will release the temperatures at Tai Mo Shan and Tate's Cairn, so as to provide the public with more timely information on temperatures. Furthermore, the HKO will strengthen public education and communication to enable the public to better understand and prepare for the impact of climate change and extreme weather.
(2) "Sleet" is the English equivalent for both "雨夾冰粒" (rain with ice pellets) and "雨夾雪" (rain with snow). As a relatively generic weather term, "sleet" does not have any standard international definition. Instead, its meaning varies in different places. For instance, "sleet" refers to the precipitation of "rain with snow" in Britain and Australia, but it means "rain with ice pellets" in the United States.
The difference between "rain with ice pellets" and "rain with snow" lies in the form of the solid precipitation, that is whether it is in the form of ice pellets or snow. An ice pellet is a relatively hard and LEGISLATIVE COUNCIL ─ 2 March 2016 6051
translucent granule, which bounces on hitting the ground. Snow has a soft and fluffy structure and falls gently onto the ground. Based on local weather observations and the images provided by members of the public, "rain with ice pellets" instead of "rain with snow" had appeared in Hong Kong on 24 January. Records showed that Macao also reported "rain with ice pellets" instead of "snow" or "rain with snow" on the same day. After taking into account public reactions and to avoid misunderstanding, the HKO eventually used the term "rain with ice pellets" to describe the weather on 24 January, having considered that the reference to "冰 粒" (ice pellets) would be more easily understood by the public as it is closer to our everyday language.
The HKO uses the more generic term "sleet" on its website and relevant "Cool Met Stuff" video to summarize two types of mixed phenomena, namely rain with snow and rain with ice pellets. In future, the HKO will make clear the different characteristics of various weather phenomena in its public education material to help the public better understand these classifications.
(3) The Education Bureau and the HKO have in place a notification mechanism in respect of inclement weather conditions, including Tropical Cyclone Warning Signal No. 3 or above, red/black rainstorm warning, and other unusual weather conditions. The Education Bureau has also informed schools of arrangements to be taken in the event of inclement weather conditions such as tropical cyclones and heavy persistent rains via circulars.
If there are potential threats to the safety of students under inclement weather conditions, the Education Bureau will maintain close contact with the HKO, and inform schools of the contingency measures to be taken, such as territory-wide or district-based class suspension, as soon as possible and as necessary. Such measures have long been effective. To prepare for possible emergency situations including inclement weather conditions in certain districts, individual schools have drawn up school-based contingency plans in the light of their specific circumstances, so as to facilitate necessary and special arrangements such as class suspension.
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Taking this opportunity, the Education Bureau would like to clarify that the decision to suspend classes for certain schools on 25 January, as announced on the previous day, was made with students' safety and health as the top concern. The decision has taken into account a host of factors, including the very cold weather, strong wind, freezing rain and icing on high ground brought by a rare intense cold surge influencing Hong Kong at that time, as well as the ability of students to take care of themselves. Hence, the decision was made with students' best interest as the prime consideration, and was not taken solely on the grounds of exceptionally cold weather.
MR ANDREW LEUNG (in Cantonese): The Secretary mentioned in part (1) of the main reply that the HKO would make reference to computer models of Europe, Japan and the United States in preparing weather forecasts. In fact, some foreign weather forecasters had predicted a week before the day that the temperature in Hong Kong would fall to 0℃. However, the HKO had repeatedly stated that there would not be such an extremely low temperature nor would there be snow because the weather would be very dry that day, which turned out to be a significant forecast error. Is it because the HKO has lesser experience in making forecasts for extreme weather conditions due to the relatively warm climate in Hong Kong? Will the HKO consider making reference to the technologies used in other countries or sending its staff to attend overseas training courses with a view to improving the accuracy of weather forecasts in Hong Kong?
SECRETARY FOR COMMERCE AND ECONOMIC DEVELOPMENT (in Cantonese): The circumstances were quite exceptional that day because Hong Kong had rarely been affected by such an intense cold surge. When preparing weather forecasts in the past, the HKO made reference to computer models that were reputed globally for their good performance. As I mentioned just now in the main reply, apart from making reference to computer models used by weather forecasters in such foreign places as Europe, Japan and the United States, the HKO would take into account the local weather conditions of Hong Kong when making its projections. Exchanges with overseas counterparts can help improve the techniques for forecasting extreme weather conditions. Not only has the LEGISLATIVE COUNCIL ─ 2 March 2016 6053
HKO engaged in such exchanges in the past, but it will also draw on the experience from the event on 24 January and maintain more communication closely with experienced meteorological organizations around the world.
MR ABRAHAM SHEK (in Cantonese): President, part (3) of the main question is very simple. It only asks whether guidelines will be issued in the light of this incident. However, the Secretary has elaborated on many other issues in the main reply without answering whether guidelines will be issued.
SECRETARY FOR COMMERCE AND ECONOMIC DEVELOPMENT (in Cantonese): At present, we have put in place a set of arrangements for implementing contingency measures in the event of tropical cyclones or heavy persistent rains, which schools are quite familiar with. Moreover, under such weather conditions, it would be easier for the authorities concerned to decide in accordance with the established mechanism whether special arrangements such as class suspension should be taken. However, exceptionally cold weather cannot be the sole determining factor for class suspension and consideration should also be given to a host of other factors.
As I mentioned just now in the main reply, consideration has to be given to the presence or otherwise of other unfavourable factors, such as slippery roads, which would jeopardize the safety of students. We have to consider the matter from this perspective. Hence, it would be difficult for the authorities to categorically and scientifically specify in generic terms the circumstances which warrant class suspension. Also, other appropriate arrangements will have to be made in the light of the actual circumstances.
MR ABRAHAM SHEK (in Cantonese): President, the Secretary has not answered my supplementary question. I understand that there are difficulties in forecasting weather in a scientific way …
PRESIDENT (in Cantonese): Do you wish to ask the Secretary whether guidelines are issued?
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MR ABRAHAM SHEK (in Cantonese): Yes, this is the part of my question which he has not answered. Guidelines do serve their purpose. The problem will be obvious when temperature falls to an extremely low level of, say, 2℃ or 3℃. Will the authorities issue guidelines in this regard?
PRESIDENT (in Cantonese): Mr Abraham SHEK, the Secretary has given an explanation already. Secretary, do you have anything to add? Are there any such guidelines?
SECRETARY FOR COMMERCE AND ECONOMIC DEVELOPMENT (in Cantonese): I have nothing to add in this respect but I will convey the Member's views to the Education Bureau for consideration. I thank the Member for his views.
MR JEFFREY LAM (in Cantonese): President, according to the Kangxi Dictionary (《康熙字典》), the Chinese character "霙" (sleet) is defined to mean "雪寒甚則為粒，淺則成華，華謂之霙" (snow freezing into ice pellets when falling through extremely cold air or changing into partially melted snow when falling through less freezing air) and thus, "霙" means snowflakes. This is neither a new word nor a new meteorological phenomenon. The character "霙" also exists in Japanese and it is pronounced as "Mizore", meaning a mix of rain and snow.
When sleet fell, the authorities once described it as "小冰丸", and subsequently changed to "小冰粒" upon receiving a large number of complaints. Why had they not used the word "霙" directly in the first instance? In Hong Kong, the Government has all along followed the practice of the United Kingdom in the use of English in official contexts. Why had it only referred to the definition used in the United States instead of the United Kingdom in the present case?
SECRETARY FOR COMMERCE AND ECONOMIC DEVELOPMENT (in Cantonese): President, first of all, I would like to give a word of praise to Mr Jeffrey LAM for his thorough research. It is really great that he has even looked up the meaning in the Kangxi Dictionary.
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The term "冰 丸" that the HKO used actually comes from international meteorological dictionaries, and that was why it called this phenomenon "雨夾 小冰丸" in its announcement made at 9.15 am on that day. Subsequently, having considered that members of the public might not quite understand the meaning of this term, the HKO changed it to "雨夾小冰粒" at 1.10 pm the same day to reflect the actual circumstances then.
This is exactly what I have explained in the main reply just now. The Chinese term was changed to "雨夾小冰粒" in order to convey a clearer meaning and make it more easily understood by the public. It is not because of the criticisms on the Internet. The only purpose was to give a clearer account of the situation then.
PRESIDENT (in Cantonese): Mr LAM, has your supplementary question not been answered?
MR JEFFREY LAM (in Cantonese): The Secretary has not answered why reference was made to the definition used in the United States instead of the United Kingdom in the present case when the official English usage in Hong Kong has all along followed the usage of the United Kingdom.
SECRETARY FOR COMMERCE AND ECONOMIC DEVELOPMENT (in Cantonese): I have already answered that this would enhance the clarity of the expression. For example, "sleet" is a relatively generic term and by using the phrase "rain with small ice pellets", this would give a clearer picture of what had happened then. I will convey Members' views to the HKO for it to consider if the use of such descriptions will enhance public understanding of weather conditions.
MR GARY FAN (in Cantonese): The Secretary mentioned in the main reply that the term was used after "taking into account public reactions", and the HKO received negative reactions from Hong Kong society as a result of some earlier incidents. These include: first, the HKO erred in its forecast of the coldest spell in 59 years; second, the HKO criticized some foreign weather forecasters for making inaccurate weather forecasts but the forecasts of these foreign weather 6056 LEGISLATIVE COUNCIL ─ 2 March 2016 forecasters have proven to be more accurate than those of the HKO; third, and this is also the point I raised in my supplementary question, the HKO used "小冰 丸" instead of "小冰粒" to describe the meteorological phenomenon which gave many people an impression that the local culture of Hong Kong was not respected, and the term itself will easily lead to misunderstanding.
Can the Secretary and the HKO promise that in the future they will refuse to use Mainland terms that will cause misunderstanding and show disrespect for the local culture of Hong Kong?
SECRETARY FOR COMMERCE AND ECONOMIC DEVELOPMENT (in Cantonese): President, just now I have pointed out in the reply to the supplementary question raised by Mr Jeffrey LAM that the term used by the HKO actually comes from international meteorological dictionaries. I do not hope that we relate everything to political considerations as Mr Gary FAN did just now. The HKO is a science-based institution. It will use the terms in meteorological dictionaries. However, we have to consider whether members of the public are able to understand the term "雨夾小冰丸" which actually means the precipitation of rain with ice pellets. Hence, the expression "雨夾小冰粒" was used in subsequence references.
Besides, as I have stated in the main reply, if we compare the degree of accuracy of weather forecasts made by the HKO and those by weather forecasters elsewhere, we will find that the performance of the HKO is not inferior in any way to that of its overseas counterparts.
MR GARY FAN (in Cantonese): According to the main reply of the Secretary, they did not even dare to use the term "小冰丸" again subsequently and it is very clear what the right and wrong of the issue is. Right is right, wrong is wrong, and one must admit the wrong he has done …
PRESIDENT (in Cantonese): Mr FAN, I have repeatedly reminded Members that no debate is allowed during the question session.
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IR DR LO WAI-KWOK (in Cantonese): President, many scientists have predicted that due to global climate change and erratic weather around the world in this century, more extreme weather conditions may occur and there may even be more natural disasters. May I ask the Administration whether it has done any concrete work in response to such changes and studied the relationship between local climate variation and global climate change; and whether specific resources have been set aside for the purpose of strengthening the warning against extreme climate change?
SECRETARY FOR COMMERCE AND ECONOMIC DEVELOPMENT (in Cantonese): As a government department which is science-based and tasked to serve the people of Hong Kong, the HKO has definitely noticed the presence of extreme weather conditions amid climate changes. This is the ongoing task of the HKO. With regard to resources, the Government will ensure that sufficient resources are available to the HKO for undertaking the work required.
IR DR LO WAI-KWOK (in Cantonese): President, my supplementary question seeks to ask the Secretary whether any concrete work has been commenced to study the relationship between local weather variation and global climate change. I am not asking about general principles.
PRESIDENT (in Cantonese): Secretary, can you provide some concrete information?
SECRETARY FOR COMMERCE AND ECONOMIC DEVELOPMENT (in Cantonese): With regard to climate change, the HKO will constantly study the various current trends and these studies and forecasts have become part of its regular duties. For longer-term researches, the HKO will of course attach great importance to the work and continue to follow up on the issue.
MR CHAN HAK-KAN (in Cantonese): President, as pointed out by Leonardo DiCAPRIO, winner of Oscar's best actor award this year, climate change has already occurred and hence, apart from devoting our efforts to environmental 6058 LEGISLATIVE COUNCIL ─ 2 March 2016 protection, it would indeed be very important to make weather forecasts by applying more scientific technologies. However, as mentioned by some fellow colleagues just now, the HKO has often given people the impression that it does not have adequate meteorological equipment and its weather forecasts are far from accurate. Is this the result of inadequate resources or a lack of awareness? I am the Chairman of the Panel on Environmental Affairs. Some members of the Panel have asked me if the Secretary should hand the HKO over to Secretary WONG Kam-sing?
SECRETARY FOR COMMERCE AND ECONOMIC DEVELOPMENT (in Cantonese): With regard to the question raised by Mr CHAN Hak-kan on meteorological equipment, I have already pointed out in the main reply that the main meteorological equipment we are using now include the meteorological radars located at Tate's Cairn and Tai Mo Shan, a meteorological satellite reception system, an automatic weather station network and a lightning location network, upper-air sounding systems, wind profilers and microwave radiometers. All these are the main meteorological facilities used by the HKO to cope with the demand for weather forecasts and reports. We will strive to ensure that the HKO uses advanced facilities and technologies to make weather forecasts.
PRESIDENT (in Cantonese): Has your supplementary question not been answered?
MR CHAN HAK-KAN (in Cantonese): The Secretary has provided some very accurate names of the meteorological facilities. But my supplementary question is: Will the Secretary hand the HKO over to the Environment Bureau?
SECRETARY FOR COMMERCE AND ECONOMIC DEVELOPMENT (in Cantonese): President, the work of the HKO is not only associated with commerce and business, but is also closely linked to people's life. There is a historical background for this. The HKO was first established against the historical background of navigation, geomagnetic, and so on, and has therefore been placed under the Policy Bureau under my purview.
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Take for example the practice adopted in overseas countries such as the United States and the United Kingdom. The National Oceanic and Atmospheric Administration of the United States is an agency within the Department of Commerce, while the Meteorological Office of the United Kingdom is placed under the Department for Business, Innovation and Skills. Hence, this is not a unique practice of Hong Kong but an arrangement commonly found in other places. The work of the HKO does have bearing on nearly every trade and industry. Also, looking back at the history of Hong Kong, when the HKO was established in 1883, it had three major tasks, namely, weather observation, time-keeping and geomagnetic measurement. This is the reason why the HKO is still placed under the charge of the Commerce and Economic Development Bureau today.
PRESIDENT (in Cantonese): We have spent more than 22 minutes on this question. Fourth question.
Provision of Financial Assistance to Hong Kong Elderly People Residing on the Mainland
4. MR CHAN HAK-KAN (in Cantonese): President, under the "Guangdong Scheme" launched by the Government in October 2013, eligible Hong Kong elderly people (i.e. people aged 65 or above) who have moved to reside in Guangdong Province may receive a monthly Old Age Allowance (OAA) without being required to return to Hong Kong each year. On the other hand, during his visit to Fujian Province in 2014, the Chief Executive remarked that with Fujian Province being the place of origin of quite a number of Hong Kong residents (estimated to be as high as 1.2 million), there were strong connections between Hong Kong and Fujian Province, and the commissioning of the Xiamen-Shenzhen High Speed Railway had shortened the distance between Hong Kong and Xiamen of Fujian Province. Also, Fujian Province would become the fourth partner province/municipality with which Hong Kong had special economic and trade relations. Although more and more elderly people have chosen to reside in Fujian Province in recent years, they cannot benefit from the Guangdong Scheme or similar schemes. Regarding the provision of financial assistance to Hong Kong elderly people residing on the Mainland, will the Government inform this Council:
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(1) of the respective numbers of OAA applications received and approved by the authorities, as well as the amount of OAA disbursed, each year under the Guangdong Scheme since its inception;
(2) whether it has compiled statistics on the current number of Hong Kong elderly people residing in Fujian Province; given the increasingly close ties between Hong Kong and Fujian Province on various fronts, whether the authorities will consider afresh extending the coverage of the Guangdong Scheme to Fujian Province; and
(3) given that the authorities indicated in 2013 that one year after the implementation of the Guangdong Scheme, they would study the feasibility of allowing elderly people who had chosen to reside in Guangdong Province to receive Old Age Living Allowance therein, whether the authorities will conduct such a study expeditiously; if they will, of the details; if not, the reasons for that?
SECRETARY FOR LABOUR AND WELFARE (in Cantonese): President, the Government launched the Guangdong Scheme (GD Scheme) in October 2013 to allow eligible Hong Kong elderly people who choose to reside in Guangdong Province to receive the monthly Old Age Allowance (OAA) without having to return to Hong Kong every year. Subject to approval by the Legislative Council, the payment rate of OAA will increase by 4.4% (from the current monthly rate of $1,235 to $1,290), in accordance with the established mechanism with retrospective effect from 1 February 2016. As at end-December 2015, 16 199 elderly people benefited from the GD Scheme.
On the other hand, the Government launched the Old Age Living Allowance (OALA) in April 2013 to supplement the living expenses of Hong Kong elderly people aged 65 or above who are in need of financial support. At present, elderly people who are in need may receive the allowance after a simple declaration of income and assets. Subject to approval by the Legislative Council, the payment rate of OALA will increase by 4.4% (from the current monthly rate of $2,390 to $2,495), in accordance with the established mechanism with retrospective effect from 1 February 2016. As at end-December 2015, 429 244 elderly people benefited from OALA, accounting for around 40% of Hong Kong's elderly population aged 65 or above.
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My reply to Mr CHAN Hak-kan's question is set out below:
(1) The number of applications received by the Social Welfare Department (SWD), the number of applications authorized and the expenditure for allowance payments for each financial year since the launch of the GD Scheme in October 2013 are set out at Annex.
(2) According to a supplementary enquiry on Hong Kong older persons' experience in and aspiration for residing on the Mainland conducted by the Census and Statistics Department (C&SD) through the General Household Survey in early 2011, about 15 600 Hong Kong residents aged 65 or above having resided on the Mainland (referring to those Hong Kong residents staying on the Mainland for a period of at least one month in the past six months before the time of enumeration) usually resided in Fujian Province at the time of enumeration.
Guangdong Province is the preferred destination of Hong Kong residents who choose to retire on the Mainland. According to the aforementioned survey conducted by the C&SD, of those Hong Kong residents aged 65 or above having resided on the Mainland, around 60% (46 000 persons) usually resided in Guangdong Province. In addition, there are unique and close ties between Guangdong and Hong Kong in geographical, economic and social terms. Given the Hong Kong/Guangdong Co-operation Framework and with the completion of a number of major transport infrastructure projects, the two places have become more closely integrated and travel has become more convenient. We currently have no plan to extend the coverage of the GD Scheme to other places but will continue monitoring the implementation of the GD Scheme while consolidating experience.
(3) The OALA was launched in April 2013. We will continue monitoring the implementation of OALA. We have no plan to extend OALA to Guangdong Province (or any other places outside Hong Kong) at this stage.
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Annex
Information of the GD Scheme
Financial Year
2013-2014 2014-2015 2015-2016 266 (as at Number of Applications Received 18 103 2 265 end-December 2015) 76 (as at Number of Applications Authorized(1) 14 064 4 879 end-December 2015) 290(3) Expenditure for Allowance Payments 84 275(2) (Revised ($ million) (Actual) (Actual) estimate)
Notes:
(1) The SWD may not necessarily have received and authorized an application during the same financial year. The SWD does not keep record on the number of applications authorized out of those received during each financial year.
(2) This includes one month of one-off additional payment. If the additional payment is excluded, the recurrent expenditure involved is $256 million.
(3) This includes two months of one-off additional payment. If the additional payment is excluded, the recurrent expenditure involved is $249 million.
MR CHAN HAK-KAN (in Cantonese): President, it is very regrettable that the Secretary said that the Government had no plan to extend the coverage of the GD Scheme to other provinces. There are so many provinces in China. Why is Guangdong Province chosen only? As explained by the Government, it is because Guangdong Province is one of the preferred retirement destinations of Hong Kong people. Secondly, there are close ties between the two places in economic, cultural and geographical terms. Thirdly, the two places are linked by major transport infrastructures.
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President, Fujian Province also meets the three criteria above. Why did the Government only choose Guangdong Province and not Fujian Province? Does the Secretary particularly favour the 16 000 elderly people now residing in Guangdong Province and receiving the allowance? By refusing to allow the 15 600 elderly people residing in Fujian Province to apply for allowances, is he discriminating against them? Is this unfair? Is the Secretary worried about the possible legal consequences for doing so?
SECRETARY FOR LABOUR AND WELFARE (in Cantonese): President, I thank Mr CHAN for his view and his supplementary question. We are aware of this matter. We also know that some people in society and some Members have requested the Government to extend the coverage of the GD Scheme to Fujian Province. Given the relatively short time for which the GD Scheme has been implemented, we are still in the process of review and experience consolidation. We have no plan at this stage to extend the coverage of the scheme, but we will revisit this issue in the future having regard to the actual development of the scheme.
We all know that the GD Scheme was rolled out under a very complicated environment. We responded to the requests of the community and Members and allowed elderly people residing in Guangdong Province to receive monthly OAA without having to return to Hong Kong for a period of 60 days every year. We chose Guangdong Province as the pilot province for the scheme. It is in fact a revolutionary and think-out-of-the-box attempt.
Members should give us more time so that we can review the implementation of the scheme. We do not rule out the possibility that, as Mr CHAN has said, when the ties between Hong Kong and Fujian Province are getting closer or when some actual changes take place, this would necessitate a review of the scheme. We are open-minded on this issue. However, as of now, our honest reply is that we have no such plan at the present stage, but we do not rule out the possibility of doing so in the future.
MR WONG KWOK-KIN (in Cantonese): President, we often say that we should "commend good deeds and reprimand wrongdoings". I am of the view that the SAR Government is commendable for formulating the GD Scheme. It is a good policy and is welcomed by elderly people residing in Guangdong Province. Unfortunately, there is only one year's exemption to the requirement 6064 LEGISLATIVE COUNCIL ─ 2 March 2016 of continuous residence in Hong Kong under the GD Scheme. After one year has lapsed, many elderly people, due to various reasons, have not submitted their applications for the GD Scheme timely. The five Mainland centres of The Hong Kong Federation of Trade Unions (FTU) have recently received some two to three hundred cases enquiring about and seeking help on this matter.
I hope the SAR Government can reconsider extending the exemption period because most of these elderly people have nowhere to live in Hong Kong. It is simply impossible for them to return to Hong Kong to reside for one year in order to satisfy this application requirement. In the end, they will not be qualified for the allowance under the GD Scheme. In view of the above, may I ask the Secretary whether the Government can consider setting a new exemption period for these elderly people, so that they can be qualified for the GD Scheme?
SECRETARY FOR LABOUR AND WELFARE (in Cantonese): First of all, I thank Mr WONG for his positive comment of the GD Scheme. In fact, we have responded to the requests of the FTU and the Democratic Alliance for the Betterment and Progress of Hong Kong (DAB) to think out of the box and roll out the GD Scheme as a pilot scheme. I thank Mr WONG for his recognition of our efforts in implementing the scheme.
First of all, I must emphasize that when we conceived the scheme, we only provided a special one-off arrangement for the first year of implementation. It was because, as Mr WONG has said, for those elderly people residing in Guangdong Province, it would be difficult for them to be qualified for the GD Scheme if they were required to reside in Hong Kong for a continuous period of one year immediately before the date of application. We thus laid down a special one-off arrangement. We made this decision out of resource and administrative considerations. But we are open-minded on this matter. As I have just said, we are in the process of reviewing the entire GD Scheme. As to whether the coverage of the scheme can be extended to Fujian Province, and whether there is room for reconsidering the special one-off arrangement, we are open-minded on these issues. Please give us some time.
Our primary aim is to ensure proper use of resources. We all know that at the end of the day, this is something about resources. In order to ensure proper use of public money, we hope that only Hong Kong people who have a long-term relation with Hong Kong can enjoy this benefit. But we totally understand the LEGISLATIVE COUNCIL ─ 2 March 2016 6065 concern Mr WONG has just expressed. Some time earlier, we have had an in-depth exchange of views on this matter. I promise that as a general direction, the scope of the review will cover Fujian Province and the concern Members have just expressed. We will look into all these aspects.
MR WONG KWOK-KIN (in Cantonese): President, I wish to ask the Secretary to clarify the supplementary reply he made just now. Does he mean that he will consider including Fujian Province in the scheme?
PRESIDENT (in Cantonese): Mr WONG, the Secretary's reply is already very clear.
MR WU CHI-WAI (in Cantonese): President, during the discussion of universal retirement protection, the Government has emphasized the difference between the "regardless of rich or poor" option and the "those with financial needs" option. However, under the GD Scheme, elderly people regardless of rich or poor can apply for OAA and choose to reside in Guangdong Province, while eligible elderly people in need of financial supports are subject to residence restrictions and must reside in Hong Kong. Is the policy self-contradictory? Will the Government conduct a review in this direction and allow elderly people with financial needs to choose to reside on the Mainland, in addition to Hong Kong?
SECRETARY FOR LABOUR AND WELFARE (in Cantonese): I thank Mr WU for his supplementary question. Mr WU may have some misunderstanding about the GD Scheme. First of all, the OAA disbursed under the GD Scheme is basically "fruit grant". In Hong Kong, any elderly person aged 70 or above is eligible to receive "fruit grant". They do not need to pass any means test. It is a welfare benefit for the elderly people as a token of our appreciation.
As for financial supports for Hong Kong elderly people aged 65 to 69, we provide OALA, instead of "fruit grant", for them. Under the GD Scheme, 65-to-69-year-old Hong Kong elderly people residing in Guangdong Province are required to satisfy the income and assets limits if they wish to apply for "fruit grant". The requirements are consistent with those under OALA in Hong Kong. 6066 LEGISLATIVE COUNCIL ─ 2 March 2016
In other words, the total income limit for single person applicant is no more than $7,340 and the total assets value is no more than $219,000; for married couple applicants, their total income limit is no more than $11,830 and their total assets value is no more than $332,000.
"Fruit grant" is no longer provided for elderly people aged 65 to 69 in Hong Kong. Only those aged 65 to 69 who reside on the Mainland and who have genuine needs and do not exceed the financial limits can apply for "fruit grant". As for 70-year-old elderly people residing in Guangdong Province, their eligibility requirements are the same as those prescribed for elderly residing in Hong Kong. So, it is not a matter of whether they are rich or poor, or a different treatment to elderly people living in the two places. In short, elderly people who choose to reside in Guangdong cannot apply for OALA and they can only apply for "fruit grant". It is because OALA applicants must satisfy the requirement of 60-day residence in Hong Kong every year in order to receive the allowance payment for that year.
MR WU CHI-WAI (in Cantonese): The Secretary has not answered my supplementary question. I certainly understand that now …
PRESIDENT (in Cantonese): Please repeat your supplementary question.
MR WU CHI-WAI (in Cantonese): … I repeat. The Government has all along emphasized that under the "regardless of rich or poor" option, no means test of any kind is required. I thus ask whether the policy in this regard is contradictory, given that the "fruit grant" recipients under the GD Scheme meet the criteria of reaching 70 years of age and regardless of rich or poor, and they should be entitled to "fruit grant". I also asked him why elderly people with financial needs can only choose to reside in Guangdong Province, apart from Hong Kong, but not other places of residence. He did not answer my question.
PRESIDENT (in Cantonese): Mr WU, the supplementary question you raised earlier is actually the first part of the supplementary question you just repeated and the Secretary has already answered it. Secretary, do you have anything to add?
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SECRETARY FOR LABOUR AND WELFARE (in Cantonese): President, allow me to provide some background information. In fact, starting from 1997, elderly recipients of Comprehensive Social Security Assistance (CSSA) who have a need to retire on the Mainland can choose to retire in Guangdong Province under our Portable CSSA Scheme. Starting from 2005, the scheme has been extended to cover Fujian Province. In other words, if you are an elderly person eligible for CSSA, you can receive CSSA payments in Guangdong or Fujian Province. Hence, regarding the choice of place of residence which Mr WU just mentioned, we have offered such a choice to CSSA recipients.
MISS CHAN YUEN-HAN (in Cantonese): President, regarding the GD Scheme, I believe the Government has listened to many public views in order to have the scheme successfully launched. But three-odd years have passed since its inception, and some problems, like those mentioned by Mr WONG Kwok-kin and Mr CHAN Hak-kan, have arisen. The Secretary said he still needs some time to consider these problems and that the door is still open. May I ask the Secretary how long this review will take? When will the scheme be extended to cover Fujian Province? If the Government abolishes the one-year exemption period under the GD scheme, what can these elderly people do? I wish to know the timetable.
SECRETARY FOR LABOUR AND WELFARE (in Cantonese): President, I thank Miss CHAN for her supplementary question. We are actively looking into the experience accumulated so far. We all know that the GD Scheme has only operated for two-odd years since its inception in October 2013. Certainly, how our policy is positioned is very important, but the resources issue should not be neglected. We all know that the Government is now looking into the issue of universal retirement protection or other retirement protection options. We have put forth different options for public discussion. On the other hand, we also have to consider from an administrative perspective. We now conduct case reviews in the form of home visits or postal reviews on elderly recipients residing in Guangdong Province. We visit these elderly recipients once every two years to ascertain their health condition. Guangdong is a big province. If the scheme is extended to Fujian Province, we will have to see whether administratively we can cope with the increased workload. We will review all these issues. But I can assure Members that we are open-minded on this matter and are aware of Members' aspirations and views.
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PRESIDENT (in Cantonese): Miss CHAN, has your supplementary question not been answered?
MISS CHAN YUEN-HAN (in Cantonese): He has not told us the timetable.
PRESIDENT (in Cantonese): Secretary, is there a timetable?
SECRETARY FOR LABOUR AND WELFARE (in Cantonese): President, we have not set a completion date for the review, but I hope that it will be completed not later than this year. I hope that by the end of the year we will able to form some opinions and get back to Members.
MR JAMES TO (in Cantonese): President, to play safe, I declare that my wife is a Fujianese, and my father-in-law is residing in Fujian Province. The more I listen, the more angry I become. May I ask the Government why Hong Kong people residing in Fujian Province can receive CSSA payments, but not OALA or "fruit grant"? The Secretary said just now it was due to administrative reasons or something about the review, which are not the point at all. I hope the Secretary will not tell me that it is because the "fruit grant" recipients far outnumber the CSSA recipients, may be hundred or thousand times more. If this is not the reason, would he please tell us the reason? The two provinces are similar in situation. They both are well-equipped with infrastructural facilities. Fujian Province should be covered under the scheme. Right?
SECRETARY FOR LABOUR AND WELFARE (in Cantonese): Let me give some background on the Portable CSSA Scheme. Why do we only allow elderly CSSA recipients to choose between Guangdong Province and Fujian Province as their place of residence? It is because these two provinces are the place of origin of 95% of the elderly CSSA recipients. In other words, Guangdong Province or Fujian Province is the ancestral place of 95% of the elderly CSSA recipients. That is why we first chose Guangdong Province as the place to launch the Portable CSSA Scheme in 1997 and subsequently extended the scheme to cover Fujian Province in 2005.
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The case of "fruit grant" is somewhat different. The main reason is that Guangdong Province is adjacent to Hong Kong. Many elderly people have relatives living in Hong Kong and they can look after each other if the elderly people return to Hong Kong. Taking into account the geographical, cultural and transport factors, we made the decision at that time. Of course, we also sought legal advice at that time.
I can clearly tell Members that we will constantly review the scheme and monitor from different perspectives the relations and development between Fujian Province and Hong Kong. As Mr CHAN Hak-kan has said in the main question, we will take into consideration any new development in economic, trading relations and transport terms. Hence, we are reviewing the situation and we will comprehensively consider all these factors.
MR TAM YIU-CHUNG (in Cantonese): President, is the Secretary worried that opening up the scheme to allow Hong Kong residents of Fujian ancestral origin to apply for "fruit grant" will lead to a substantial increase in the number of applicants and hence in expenditure? Moreover, the Secretary also mentioned just now the administrative work. The reason is that the Government has to conduct case reviews once every two years and the workload may be escalated by then. However, as far as I know, the Government has appointed voluntary service organizations as agents to take up this work. If the Government let these organizations conduct the case reviews, the administrative problems can be solved. I believe the Government does not need to make a great effort to consider this option, right?
SECRETARY FOR LABOUR AND WELFARE (in Cantonese): I thank Mr TAM for his supplementary question. I said just now that we needed to consider a host of factors and certainly legal advice, which I also mentioned, as well. That said, we are open-minded on this issue. Today, Members have raised two specific requests: first, whether the scheme can be extended to Fujian Province; and second, whether it is feasible to re-launch the special one-off arrangement to again exempt applicants from satisfying the requirement of one-year continuous residence in Hong Kong. I will go back to consider these two points carefully.
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MR CHRISTOPHER CHEUNG (in Cantonese): President, Mr CHAN Hak-kan has put a tenable question today, but I feel angry about the Secretary's replies. The Secretary should know that in the past two to three years, I asked the Secretary why he had been favouring one place and discriminating against the others, why he could not treat all places favourably, and why the 15 600 elderly people now residing in Fujian Province were not entitled to receive "fruit grant". But the Secretary has failed to give me a valid reason. With the increasingly frequent business ties and increasingly convenient transport links between Fujian and Hong Kong, does the Secretary think that those elderly people who are of Fujian ancestral origin will not proactively fight for their rights? Have they not paid tax? Have they not contributed to Hong Kong? The Secretary has treated them as second class citizens. This is absolutely unfair to the 1.2 million citizens of Fujian ancestral origin. We hope that the Secretary will not respond cold-heartedly to the justified demands of the elderly people residing in Fujian Province. May I ask the Secretary whether he can provide a specific date when the policy of allowing Hong Kong elderly people residing in Fujian Provinces to apply for allowances can be included into the agenda for discussion?
SECRETARY FOR LABOUR AND WELFARE (in Cantonese): President, I wish to reiterate to Mr CHEUNG that I absolutely have not discriminated against the Hong Kong residents residing in Fujian Province or treated their rights lightly. This is absolutely not the case. I said just now that the GD Scheme is an think-out-of-the-box pilot scheme. I bravely made the attempt and took Guangdong Province as the pilot place. I hope Members can give us some time to let the pilot scheme take root, after which we will review the scheme. As I have said just now, I will seriously follow up and consider in detail the feasibility of extending the scheme to Fujian Province and re-launching the special one-off arrangement. I will report the progress, if any, to the Panel on Welfare Services.
MR CHRISTOPHER CHEUNG (in Cantonese): The Secretary's justification is not convincing at all.
PRESIDENT (in Cantonese): Mr CHEUNG, the Secretary has already made a reply.
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MR CHRISTOPHER CHUNG (in Cantonese): The Secretary has time and again asked us just now to give him more time, but in fact, he has already been given two years' time. In the past two years, the DAB has been chasing after him on this issue. Why are two years still not enough? What is the difference between Guangdong Province and Fujian Province? Is it because the Government does not know the Fujian language and cannot communicate with the Fujianese? Other than language barrier, I cannot see any difference between the two provinces. I hope the Secretary will initiate an active discussion with the Fujian side.
MR LEUNG KWOK-HUNG (in Cantonese): President, do not count wrongly. 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): Secretary, please answer Mr Christopher CHUNG's supplementary question.
SECRETARY FOR LABOUR AND WELFARE (in Cantonese): President, Mr CHUNG asked me why we still could not finish the review in the past two years. Members have to understand that although the scheme has been implemented for two years, we need to get hold of all the statistics before we can conduct a comprehensive analysis and review. Hence, we must make good use of the time and continue to monitor the scheme and accumulate experiences, so as to properly take forward the review.
DR PRISCILLA LEUNG (in Cantonese): President, I am sorry that I have pressed the "Request-to-speak" button too early. I meant to queue up for the next question.
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PRESIDENT (in Cantonese): We have spent more than 22 minutes on this question. Fifth question.
Disturbance in Mong Kok
5. MR JAMES TO (in Cantonese): President, from the night on the eighth of last month (i.e. the recent Lunar New Year's Day) to the early hours of the following day, the clashes between the Police and members of the public in Mong Kok, allegedly sparked by the authorities' enforcement operations against unlicensed hawkers, eventually turned into a serious disturbance (the incident of clashes in Mong Kok). It has been reported that quite a number of people who participated in the disturbance were outraged by the prevailing political stalemate and the Government's performance in policy implementation. While people from various sectors of the community condemned the use of violence, more than 600 people (including academics, professionals and eminent persons) jointly signed a statement on the fourteenth of last month requesting the Government to set up an independent commission of inquiry to look into the sequence of events and causes of the incident of clashes in Mong Kok, and to put forward suggestions to prevent the recurrence of similar incidents. In response to that request on the following day, the Government stated that the SAR Government did not consider it necessary to set up an independent commission of inquiry, to be headed by a judge, to look into the incident on the grounds, inter alia, that criminal investigations by the Police were underway. In this connection, will the Government inform this Council:
(1) as the authorities decided to set up a commission of inquiry to look into the vessel collision off Lamma Island eight days after the occurrence of the incident, at which time the relevant criminal investigations were still underway, why the authorities does not adopt the same practice and set up a commission of inquiry to look into the incident of clashes in Mong Kok;
(2) whether the authorities have ruled out the possibility that the incident of clashes in Mong Kok was related to the Government's performance in policy implementation, the atmosphere in the community and the political stalemate; if they have, of the justifications for that; and
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(3) how the authorities will alleviate the distrust in the current-term Government among some members of the public, and assuage their frustrations about the prevailing social circumstances and political stalemate, in order to prevent public grievances from escalating incessantly, which may lead to the recurrence of similar incidents of clashes?
SECRETARY FOR SECURITY (in Cantonese): President, the riot that occurred in the early hours of 9 February this year in Mong Kok was the most serious large-scale mob violence since Hong Kong's return to China. During the incident, a vast number of rioters attacked police officers with self-made weapons and various kinds of hard objects, set fires at various locations and damaged police vehicles. Over 100 persons were injured in the incident. Most of the injured persons were police officers, while several members of the media were also injured.
The HKSAR Government strongly condemns the acts of the rioters. As at yesterday (1 March), the Police have arrested in total 75 persons and prosecuted 48 of them for riot and one person for unlawful assembly. The Police have been making all efforts to investigate and gather evidence with a view to bringing other rioters involved to justice. The Police have also set up a hotline to facilitate provision of information related to the riot by members of the public. The HKSAR Government fully supports the Police in maintaining law and order and pays solemn tribute to the professional and fearless spirit of our police officers, firemen and ambulance personnel who stood fast to their posts in the face of danger to their lives.
After the incident, some groups alleged that the riot was triggered by a raid on hawkers jointly conducted by the Food and Environmental Hygiene Department (FEHD) and the Police in the evening of the first day of the Lunar New Year (8 February), and that it was a matter pertaining to the governance of the HKSAR Government. In response, the Secretary for Food and Health has made prompt clarification that the FEHD officers were only conducting general patrol in Mong Kok in the evening in question. They did not issue any warning nor take any enforcement action against the hawkers, let alone conducting a raid. However, they were already surrounded, scolded and pushed around by over 50 persons, causing injury to an officer. Putting the blame of the riot on hawker management policy or the governance of the HKSAR Government is merely an attempt to rationalize the violent acts of the rioters as well as to divert attention. 6074 LEGISLATIVE COUNCIL ─ 2 March 2016
After the riot, there was an opinion that the HKSAR Government should set up an independent commission of inquiry headed by a judge to conduct investigation. The HKSAR Government does not agree to this proposal.
The Mong Kok riot was a serious violent incident. The top priority of the Police is to conduct criminal investigation with a view to apprehending all culprits for fair trials and rulings by the Court. To respond to the challenges ahead, the Police have established a review committee, chaired by Deputy Commissioner of Police (Management), to examine three areas, namely, "operations", "arms, equipment and training" and "support", so as to enhance the safety and professional competency of police officers in the execution of their duties.
Mr James TO mentioned the independent commission of inquiry set up by the HKSAR Government after the vessel collision incident near Lamma Island in October 2012. I have to stress that the collision incident and the Mong Kok riot were two incidents of entirely different nature, with the former being a marine traffic accident which led to serious casualties. The Chief Executive-in-Council decided to set up a commission of inquiry with the aim to ascertain the causes of the accident, consider and evaluate the general conditions of maritime safety concerning passenger vessels and the system of control, and make recommendations for the prevention of the recurrence of similar accidents in future.
On the contrary, the Mong Kok riot was not a traffic accident, but an incident of serious criminal violence by rioters with a collective intention to break the law, involving offences such as riot, unlawful assembly, arson, criminal damage, assaulting police officers and possession of offensive weapon, and so on. As such, the most appropriate way of handling the incident is to conduct criminal investigation, which will also look into whether there were persons behind the scene organizing and planning the riot, as well as to apprehend the rioters as soon as possible and then initiate prosecution and bring them to court for trial. During the process, the public will come to know the background of the incident and the truth through open trials. Last Friday, the House Committee of the Legislative Council rejected a proposal requesting the Legislative Council to appoint a select committee to inquire into the incident. Some political and community figures also agree that it may not be necessary to set up a select committee to understand the real causes behind the riot.
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It was mentioned that following the disturbances in Hong Kong in the 1960s, a commission of inquiry was set up by the Government at the time. The HKSAR Government considers it inappropriate to make direct comparison between the incident and the Mong Kok riot. Hong Kong nowadays enjoys free access to information and is a highly democratic and transparent society. Members of the public are entitled to freedom of speech and can express their opinions and aspirations on various social problems and government administration through various channels, including different tiers of councils, consultative bodies or even in the form of peaceful processions, demonstrations and assemblies, and so on. Individuals can also seek relief from the Court to review administrative decisions of the Government through legal proceedings.
While meeting the media on 16 February, the Chief Executive stated that, "The current-term HKSAR Government attaches great importance to various issues prevailing in our community. In the area of people's livelihood, we have done a lot and our efforts have delivered results. … Yet no one should resort to unlawful means, let alone violence, in expressing his demands, no matter what difficulties he is confronting in his daily life, and no matter what he thinks of the community."
In the Chief Secretary for Administration's speech during the debate on the motion of thanks to the Policy Address at the Legislative Council on 19 February, she stated that, "There is no perfection in governance; extensive acceptance of public opinion and continual improvement are cornerstone for good governance. However, unsatisfactory governance by the government does not mean that one can portray a heart-breaking violent incident that is shown to the public as 'a revolt against government oppression', 'fighting brutality with violence', or a police-civilian conflict triggered by government tyranny."
The Secretary for Justice also stated on the same day at the Legislative Council that, "No political ideas or aspirations shall be cited as defence for violent acts."
President, Hong Kong people all along cherish peace and rationality. Openness, diversity, freedom and the rule of law have all along been the core values of Hong Kong. The rioters of the Mong Kok riot claimed to defend "local" characteristics with the stand of "localism", and yet they resorted to violent means that ran totally against the core values of Hong Kong. The Financial Secretary, in the concluding remarks of his Budget speech of 6076 LEGISLATIVE COUNCIL ─ 2 March 2016
24 February, stated that, "What we are facing today is the result of a raft of intricately-related factors. … As long as everyone is willing to set aside short-term political considerations in favour of the long-term overall interests of Hong Kong, we shall have a chance to return to rationality." I believe we all agree that violence is not a solution to problems, but only a trigger for more violence. We should definitely educate our younger generation to embrace peace and rationality and say "no" to violence and hatred.
The HKSAR Government has all along been reviewing its work and services provided to the public and looking for improvement. The HKSAR Government will, as always, listen attentively to the aspirations of all sectors of the community and continue to improve governance to ensure that policies are geared towards the overall and long-term well-being of the public while balancing the interests and needs of various sectors. At the same time, no one should express their aspirations through illegal and violent acts.
As the Secretary for Security, I am responsible for protecting public safety and public order of Hong Kong. The reputation of Hong Kong as one of the safest cities in the world is a hard-earned achievement after years of effort by all members of our community. We cannot afford seeing this achievement being devoured. We must curb the spread of violence ideology and make a concerted effort to steer Hong Kong out of the current predicament.
MR JAMES TO (in Cantonese): President, after the incident of clashes, the Government classified it as a riot of the largest scale after the handover. All government officials, including the Chief Executive, came out to make a unified remark, saying categorically that neither the underlying nor immediate cause of the incident had anything to do with the SAR Government's governance.
President, violence for sure cannot solve any problem. Yet, can the Government really solve the problem by making swift and decisive remark that the incident has nothing to do with the SAR Government's governance and by refusing to set up an independent commission of inquiry? President, the Secretary mentioned just now that attention was diverted. Mr Michael TIEN and the former Secretary Joseph WONG have signed a petition. Does it mean that they pay no regard to violence and wish to divert attention? Can the Government solve the problem by hidding its head in the sand?
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SECRETARY FOR SECURITY (in Cantonese): President, first, Mr TO just said we classified the incident as a riot. If the Hong Kong people had watched live broadcast of the incident from the night in question to the earlier hours the following day, they would be able to judge for themselves from the scenes captured on the spot. Even if they had not watched the live broadcast, they could watch the scenes which were broadcast repeatedly by the major media institutions and television stations the next day.
Second, regarding the Member's concern, the SAR Government does not consider that the problem can be solved by setting up a commission of inquiry because as discussion goes on, it may blur the focus of the incident, that is, the course of the event. The Chief Executive has over and again told the media in public that grievances do prevail in society and we are confronted with many problems at the moment. Therefore, the SAR Government has made continuous efforts to develop the economy and improve people's livelihood. We have to face up to the challenges. We are willing to listen to different opinions in society. We wish to work with society to solve the social problems which have been around for a long period of time.
As I pointed out earlier in the main reply, the Chief Secretary has reiterated in her speech during the debate on the Motion of Thanks for the Policy Address that we are willing and will listen to society's views on the various issues we encounter. We wish to work with the public and address these problems together.
MR JAMES TO (in Cantonese): President, he has not replied whether the Government still insists that all these have nothing to do with its governance? This is the core issue.
PRESIDENT (in Cantonese): Mr TO, the Secretary has made a judgment and analysis on the governance of the Government and social conflicts and the relationship between these two issues with this incident. If you do not agree with what the Secretary said, please follow it up on other occasions.
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MR ALVIN YEUNG (in Cantonese): President, may I ask the Secretary if he knows that in the time of the British-Hong Kong administration, the British-Hong Kong Government set up independent commissions of inquiry in the wake of the 1967 riot, the Christmas unrest in 1981 or the taxi riot in 1984, and made efforts to ease public grievances as quickly as possible to solve the problems? Can the SAR Government take a leaf from the book of the then British-Hong Kong Government to ease public grievances? This is the first supplementary question.
The second supplementary question …
PRESIDENT (in Cantonese): Mr YEUNG, Members can only ask one question when they raise supplementary questions during the question session.
MR ALVIN YEUNG (in Cantonese): Fine. The above is my supplementary question.
SECRETARY FOR SECURITY (in Cantonese): President, according to the information in hand, in 1966, a riot was triggered when the Star Ferry increased fare by five cents and 10 cents. A lot of people were injured and many were arrested. After the incident, the British-Hong Kong Government set up a commission of inquiry to conduct investigation into the incident; and it was not because of the 1967 riot. This is what I get after going through the information. Would Mr YEUNG please correct me if I am wrong.
Why do we not agree that it is necessary to set up an independent commission of inquiry headed by a judge this time? The SAR Government has issued a statement on this and I have also explained in detail when I answered Mr James TO's question. I do not want to waste time to repeat.
MR WONG KWOK-KIN (in Cantonese): President, those who have taken part in the Mong Kok riot seem to believe that throwing bricks will bring them future, and that by setting fires in multiple locations and burning taxis, Hong Kong will undergo rebirth in raging fire. After the incident, opposition Members rush to LEGISLATIVE COUNCIL ─ 2 March 2016 6079 shift the focus to governance by the Government. They seem to think that so long as there is evidence that the Government has some failings in its governance, it is justified for the people to set fires and throw bricks. Actually, I also agree that an investigation is necessary.
I would like to ask the Secretary: Has the Government considered setting up a commission of inquiry to look into whether someone behind has incited, planned, organized or provided funds and resources for this riot? Does it involve external forces and local separatist forces?
(Some Members made comments loudly)
Besides, what is the purpose or intent of this riot? I believe many Hong Kong people would like to know. Would the Government consider …
PRESIDENT (in Cantonese): Mr WONG, you have raised your supplementary question. Please let the Secretary reply.
MR WONG KWOK-KIN (in Cantonese): … conducting investigation in this direction when criminal investigation is over?
(Some Members made comments loudly)
SECRETARY FOR SECURITY (in Cantonese): President …
PRESIDENT (in Cantonese): Would Members please remain silent.
SECRETARY FOR SECURITY (in Cantonese): The Police will go all out to investigate the Mong Kok riot. I have also pointed out in the main reply earlier that the top priority is to apprehend the rioters who were at the spot that night. However, criminal law in Hong Kong also has pertinent provisions. Any person who has assisted or abetted riotous behaviour may have breached the criminal law 6080 LEGISLATIVE COUNCIL ─ 2 March 2016 and has to be criminally liable. Thus, immediately after the riot, the Police express that they will not rule out the possibility that behind the riot is an organized and planned action. The Police will also conduct investigation in the direction which Mr WONG has mentioned. Once there is sufficient evidence, with suspects being identified, the Police will definitely make arrests in accordance with the law and seek legal opinion. If the Police believe that there is sufficient evidence, they will prosecute the suspects and bring them to the Court for trial. Therefore, I said in the main reply earlier that we hope to show the public the truth of the incident through Court trials. I believe through taking legal action, gathering of evidence by the Police in accordance with the law and conducting investigation, we can achieve what Mr WONG has suggested.
MR IP KWOK-HIM (in Cantonese): We have seen from the riot in the early hours of 9 February that the rioters were challenging Hong Kong's rule of law. The Panel on Security has held a special meeting to denounce the violent behaviour of using bricks and wooden clubs to attack police officers and the burning of taxis to cause more injuries.
In the wake of the incident, we begin to see the more extreme and radical people say they will fight with no bottom line. It appears that they are not a mob. Throughout this riot, they were equipped, planned and had strong communication means. They might even have received training. In recent days, some organizations even go to the streets to say that they will recruit young people. May I ask the Secretary if the Security Bureau and the Police have noticed this situation? Does the modus operandi of these organizations have a direct relationship with this incident?
SECRETARY FOR SECURITY (in Cantonese): The Police are responsible for maintaining social order and public safety. For illegal acts, including violent attack and the throwing of bricks, burning of taxis, wounding, in particular the wounding of members of the media and a large number of front-line colleagues which Mr IP mentioned earlier, the Police should handle them very seriously in accordance with the law. The Police of course will be highly concerned about any organizations intending to instigate illegal acts, and will take appropriate action timely to maintain social order and peace.
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The Police have always paid attention to the order of the Hong Kong society. Members are all aware that Hong Kong is one of the safest cities in the world. After the Mong Kok riot, people outside Hong Kong may doubt if Hong Kong is still a safe place. According to the Hong Kong Tourism Board, during the lunar new year, there was a drop in the number of tourists coming to Hong Kong. Does this reflect that people outside Hong Kong have some views or considerations for the overall law and order environment in Hong Kong? Thus, we attach great importance to this incident and will spare no efforts to maintain Hong Kong's social order and and public safety.
PRESIDENT (in Cantonese): There are still 13 Members waiting to ask supplementary questions. Members are obviously much concerned about this subject but we have spent 22 minutes on this question. Would Members please pursue the matter through other channels. Last oral question.
Assisting Owners and Occupiers of Old Buildings in Complying with Fire Safety Directions
6. DR PRISCILLA LEUNG (in Cantonese): President, according to the relevant requirements in the Fire Safety (Buildings) Ordinance, the authorities may issue fire safety directions (directions) to require owners or occupiers of composite and domestic buildings completed on or before 1 March 1987 to improve, by a specified date, the fire service installations (e.g. automatic sprinkler systems and emergency lighting) and fire safety construction (e.g. fire resisting construction) for the parts of their buildings intended for non-domestic purposes. However, quite a number of owners who have received the directions have relayed to me that they have encountered technical and financial difficulties in complying with the directions. Some owners have been fined for failing to comply with the directions, and they worry that they will further be prosecuted by the authorities. In this connection, will the Government inform this Council:
(1) given that the Fire Services Department and the Buildings Department (BD) are to conduct joint inspections on fire safety of 9 000 old composite buildings (target buildings) under the first phase, of the progress of such inspection work, the number of 6082 LEGISLATIVE COUNCIL ─ 2 March 2016
directions issued so far and the number of buildings involved; among the target buildings which have received the directions, of the respective numbers of those which have complied with the directions, those for which extensions have been granted and those which have not complied with the directions on expiry of the deadline (with a breakdown by the District Council district in which the buildings concerned are located);
(2) of the number of cases to-date in which the authorities instituted prosecutions against persons who had contravened the directions, the number of buildings involved in such cases and, among such buildings, the number of those for which no owners' corporation has been formed; whether the authorities know the reasons which have rendered the persons concerned unable to comply with the directions, and whether they have given any support to such persons before instituting prosecutions; if they have, of the details; and
(3) given that the existing legislation empowers BD to arrange government contractors to carry out demolition works on unauthorized building works, and then to recover the relevant costs from the parties concerned, whether the authorities will consider, by making reference to such a practice, amending the relevant legislation to empower the relevant government departments to carry out improvement works, on behalf of those owners and occupiers who have yet to comply with the directions, on the fire service installations of the buildings concerned, and then to recover the relevant costs from such owners and occupiers upon completion of the works, so as to avoid those persons who are unable to comply with the directions being prosecuted by the authorities?
SECRETARY FOR SECURITY (in Cantonese): President, the Fire Safety (Buildings) Ordinance (Cap. 572) (the Ordinance) came into operation on 1 July 2007. It stipulates that fire safety of composite and domestic buildings which were constructed by 1 March 1987, or with their plans of the building works first submitted for approval on or before that day, should be enhanced to better meet the current requirements. Under the Ordinance, the enforcement authority on LEGISLATIVE COUNCIL ─ 2 March 2016 6083 fire safety measures in relation to planning, design and construction of buildings is the Director of Buildings, while the enforcement authority on fire service installations and equipment (FSIs) is the Director of Fire Services. The Fire Services Department (FSD) and the Buildings Department (BD) will issue Fire Safety Directions (Directions) to owners and/or occupiers with regard to fire safety measures of the relevant buildings and specify the required fire safety improvement works.
My reply to the three parts of Dr LEUNG's question is as follows:
(1) As at end January 2016, the FSD and the BD have inspected a total of 7 827 old composite buildings and issued around 125 300 and 50 400 Directions respectively to the owners and occupiers of 5 453 of the inspected target buildings. Of the Directions issued, around 39 900 (about 32%) issued by the FSD and 10 500 (about 21%) issued by the BD have been complied with or discharged, the breakdown by districts of which is tabulated at Annex.
The FSD and the BD normally give owners and/or occupiers one year to comply with the Directions. If the relevant owners need more time to prepare for and carry out the improvement works, for example due to the formation of an owners' corporation (OC), the departments will consider their applications for extending the compliance period of the Directions in the light of the justifications provided and the scale of works involved and so forth.
(2) and (3)
We are aware that the owners of some old buildings may not be able to fully comply with the requirements set out in the Directions due to structural or spatial constraints of their buildings. As such, the enforcement authorities will, without compromising basic fire safety, adopt a flexible and pragmatic approach in handling individual cases. Having regard to the circumstances of individual buildings and information provided by the authorized persons in relation to the execution of the Directions, the enforcement authorities will enforce certain requirements with reasonable flexibility or consider accepting alternative proposals put forward by the owners. Case officers of 6084 LEGISLATIVE COUNCIL ─ 2 March 2016
the FSD and the BD are prepared to meet with owners to explain to them the Directions and assist them in solving potential problems associated with the works.
We understand that "three-nil" buildings (that is, buildings without OCs, residents' organizations or property management companies) may encounter difficulties in co-ordinating fire safety improvement works. As such, the FSD and the BD will refer a list of target buildings without OCs to the Home Affairs Department (HAD) so that the latter may promptly assist owners. To strengthen the provision of free professional advice and support services to "three-nil" buildings and enhance building management and maintenance works on all fronts, including complying with the requirements of the Directions, the HAD has implemented the Building Management Professional Advisory Service Scheme, engaging professional property management companies to provide one-stop professional support services to target buildings, which include organizing and assisting owners in the establishment of OCs, helping them to apply for various subsidies or loan schemes for maintenance works, as well as following up on the works and tendering matters.
On financial support, in order to assist owners of private buildings in conducting maintenance and repair of their buildings (including the FSIs therein), the Government, the Hong Kong Housing Society (HKHS) and the Urban Renewal Authority (URA) have been operating various financial assistance schemes for owners in need. Those schemes include the Building Safety Loan Scheme, the Integrated Building Maintenance Assistance Scheme and the Building Maintenance Grant Scheme for Elderly Owners. Fire safety improvement works pertaining to the Ordinance have been incorporated into the list of works eligible for subsidies or loans under these schemes. The HKHS and the URA will provide professional advice and technical support to assist owners in carrying out fire safety improvement works.
If owners fail to comply with the Directions within a reasonable period or provide sufficient justifications to support their LEGISLATIVE COUNCIL ─ 2 March 2016 6085 applications for time extension, the departments do have the responsibility to take enforcement actions under the Ordinance to ensure fire safety of old buildings. The circumstances of each case, including follow-up actions taken by individual owners on the Directions, will be considered before prosecution is initiated. From the implementation of the Ordinance to end January 2016, the FSD took out 189 prosecutions involving 44 buildings, among which 27 were without OCs, while the BD initiated 128 prosecutions involving 21 buildings, among which six were without OCs.
At present, there is no provision in the Ordinance empowering the enforcement authorities to carry out fire safety improvement works for target buildings. If government departments were to conduct certain works on the owners' behalf, particularly those non-emergency works relating to private properties, the departments would face great difficulties. For instance, the owners concerned may disagree with the location of installing fire service water tanks or hose reel systems proposed by the departments due to title issues, spatial constraints and impact on the appearance of their buildings. Since these types of works involve various feasible proposals and works arrangements, and the associated costs vary subject to the proposals to be adopted, the owners must deliberate on the proposals and reach a consensus before the works are carried out. It is therefore not appropriate for the enforcement authorities to make such decisions or to carry out the works for the owners. If the departments were to forcibly carry out the works, it could lead to litigation and delay the progress of the works.
On the whole, the relevant departments will review the measures implemented from time to time and continue to explore various works options, with a view to streamlining the procedures in conducting fire safety improvement works for old buildings and reducing the costs incurred by the owners, on the pre-requisite of not compromising basic fire safety. We hope that these measures will reasonably enhance the fire safety of the old buildings, strengthen the protection for and to people who work, recreate or live at these places, and reduce the threat of fire incidents.
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Annex
Number of Buildings to which the Directions have been issued from the implementation of the Ordinance to end January 2016
Number of Number of buildings where Directions buildings to which have been fully complied with or Directions have discharged been issued FSD and BD FSD BD Central and Western 583 19 34 Wan Chai 529 28 20 Eastern 398 14 29 Southern 101 1 2 Yau Tsim Mong 1 264 46 35 Sham Shui Po 850 28 19 Kowloon City 655 19 18 Wong Tai Sin 164 1 0 Kwun Tong 111 1 6 Tsuen Wan 170 3 4 Tuen Mun 23 0 0 Yuen Long 206 1 1 North 169 0 0 Tai Po 121 3 1 Sai Kung 10 0 1 Sha Tin 31 3 1 Islands 17 1 0 Kwai Tsing 51 0 0 Total 5 453 168 171
Note:
The departments do not keep a breakdown by the District Council district of the numbers of buildings which have been granted the extension of compliance period for the Directions, and those with Directions overdue but not yet complied with. As regards the Directions issued by the FSD, there are altogether 4 466 buildings where the compliance period of Directions have been granted extension and 50 buildings with Directions overdue but not yet complied with.
(Mr CHAN Chi-chuen stood up)
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MR CHAN CHI-CHUEN (in Cantonese): I request a headcount.
PRESIDENT (in Cantonese): Will the Clerk please ring the bell to summon Members back to the Chamber.
(While the summoning bell was ringing, THE PRESIDENT'S DEPUTY, MR ANDREW LEUNG, took the Chair)
(After the summoning bell had been rung, a number of Members returned to the Chamber)
DEPUTY PRESIDENT (in Cantonese): Dr Priscilla LEUNG, please raise your supplementary question.
DR PRISCILLA LEUNG (in Cantonese): Deputy President, the Secretary still intended to shirk responsibility by making the remark of "continue to explore", leaving it for the HAD to assist owners of old buildings to establish OCs. He should know that this is infeasible as these issues involve criminal liability, and owners or occupiers of buildings without OCs will even be more reluctant to carry out compliance works. According to paragraphs 7 and 8 of the Secretary's reply, the Government would eventually prosecute owners who were unable to comply with the Directions. If owners still fail to comply with the Directions after getting prosecuted once or twice, will the Government just keep on prosecuting them? Why does it not consider amending Chapter 572 to give the Director of Fire Services the discretionary power to execute the Directions of the Government for those buildings which are completely unable to comply with the requirement and then recover the relevant costs from such owners? This is an issue of fire safety and personal safety. The Secretary pointed out in paragraph 8 that, due to concern about the impact on appearance of buildings, the Government leaves the matter to owners for their own discussion. This is irresponsible. I would like to ask the Secretary: Why are the authorities unwilling to consider amending Chapter 572 so as to deal with such a dangerous problem concerning fire service installations in old buildings in the way the Director of Buildings does?
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SECRETARY FOR SECURITY (in Cantonese): Deputy President, first, I wish to point out that the BD does have the legal power to demolish unauthorized building works if owners or occupiers fail to comply with removal orders. However, please do not forget that those are unauthorized building works, and the BD simply restores the buildings back to their original status. This is indisputable. If the building had a pillar in the very beginning, then we restore the pillar accordingly. If the building had a window, we then restore the window. If it had a staircase, we restore the staircase. This is indisputable, as everything is done according to the plans.
However, if we require owners or occupiers of old buildings to enhance fire safety equipment in accordance with the existing Ordinance for the protection of residents or the people in the premises, we are adding new things to the existing plans. What are the major items added? Hose reel systems and water tanks, for example. All these items will have to take up much space in the buildings. In respect of this issue, as I said in the main reply, we have to think about the locations of installation. Should we install the devices on owner A's doorstep, or right outside owner B's flat? If they are installed on the rooftop, to whom the rooftop's ownership belong? Disputes may arise as a consequence. Moreover, there are many different ways to install such devices with varying cost. It will only lead to prolonged disputes and make matters worse if we carry out any works without the consent of the OCs or individual owners, in particular the owners of "three-nil" buildings.
In connection with the enforcement of this Ordinance, the FSD in fact published in May last year a revised version of the Guidebook for the Compliance of Fire Safety Directions issued by the Fire Services Department, setting out all the problems with illustrations to remind owners of the circumstances under which problems in buildings can be dealt with flexibly in light of the actual situation. Case officers of the FSD will also be responsible for such tasks. As I mentioned in the main reply, many owners are able to comply with these Directions. Of course, I also understand that some owners are unable to do so due to various objective reasons, so case officers are assigned and a fund is set up to support the owners.
Moreover, we are launching a measure at the moment. Deputy President, if I have your permission, I would like to briefly introduce the measure as there are not too many Members waiting for their turns to raise questions. I am LEGISLATIVE COUNCIL ─ 2 March 2016 6089 talking about the pilot scheme for improvised hose reel system implemented last year. As buildings are required to install bulky water tanks with 2 000 to 9 000 litre capacity, we intend to introduce a new scheme for relatively low-rise buildings. If a building has a height of three storeys or lower … simply speaking, affected old buildings can be divided into three categories. First, buildings of three storeys or less; second, buildings of four to six storeys; and buildings of seven storeys or more. From our experience, buildings of seven or more storeys with more households can tackle problems concerning installation of relevant equipment relatively easily. Next, we have to deal with buildings of three storeys or less and those of four to six storeys.
We intend to first implement the pilot project for buildings of three storeys or less. In general, we predict that town mains supplying fresh water will have enough water pressure for these low-rise buildings. Therefore, we will connect the fire hoses to town mains and install a device at the connections to prevent backflow. Why do we need such a device? It is because fresh water will flow out when the fire hose is turned on in case of fire, but if there is backflow of fresh water in the fire hose, this may contaminate the fresh water in the whole fresh water pipe. We must not let this happen. As we are able to source devices of this kind of design, we plan to install such a device under this pilot project which is being implemented in four buildings at present. Installation works in one of these buildings have already commenced, and will soon be completed, while other three buildings are going through tendering procedures. Upon completion, if the measure is considered feasible after being put into practical use, we will then apply it to buildings of three storeys or less to tackle the problem. Furthermore, this practice has another merit as it is estimated that the cost can at least be reduced by half as compared to the original requirement of installing a water tank under the Ordinance. So funding problems can be resolved easily.
How about buildings of four to six storeys? These buildings encounter more problems as water pressure in different districts may not be meet …
DEPUTY PRESIDENT (in Cantonese): Secretary, perhaps you can provide the information concerned in writing.
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SECRETARY FOR SECURITY (in Cantonese): Perhaps I say one more word. In respect of these buildings, we are considering the installation of another type of device.
(Dr Priscilla LEUNG stood up)
DEPUTY PRESIDENT (in Cantonese): Dr LEUNG, the Secretary has already spent much time in giving his reply. Please let other Members ask their questions.
DR PRISCILLA LEUNG (in Cantonese): Yes, but the Secretary has not replied how the potential fire hazard associated with these buildings can be resolved simply by prosecutions? Secretary, one such building is too many.
DEPUTY PRESIDENT (in Cantonese): Secretary, do you have anything to add?
SECRETARY FOR SECURITY (in Cantonese): Deputy President, despite the highly flexible approach adopted by the authorities, if someone violates the law, we have to enforce the law nonetheless. Otherwise, what is the point of having all these laws?
MR CHAN HAN-PAN (in Cantonese): Deputy President, it has almost been 10 years since the Ordinance was enacted in 2007, and the Government has already issued the Directions to 4 000 to 5 000 buildings, yet only 100-odd such buildings have really been able to comply with the Directions. That these buildings have been able to comply with the Directions is probably because the Directions have been discharged by the Government, or because the Directions have truly been complied with. One can see that it is by and large unrealistic to require the installation of fire safety equipment in old buildings aged around 50 years which do not have lifts and enough space. Therefore, we have discussed with the Government in the hope to work out an improvising arrangement. However, apart from the pilot scheme implemented for buildings around three storeys high, during discussions between us and the Government then, we have also expressed LEGISLATIVE COUNCIL ─ 2 March 2016 6091 a wish for expeditious implementation of improvising arrangement in buildings of around six storeys. As a matter of fact, it is less than ideal to pile more weight on buildings by installing an additional water tank. Therefore, as the pilot scheme has already been implemented for almost one year by now, I hope the Government can tell us when such scheme will be carried out for six-storey buildings? Can it stop instituting prosecutions during the pilot period? Moreover, some of the requirements under the Ordinance are in fact unrealistic, will the authorities introduce any legislative amendments and submit the proposal to the Legislation Council?
DEPUTY PRESIDENT (in Cantonese): Mr CHAN, you have raised a number of supplementary questions. Secretary, please choose one to reply.
SECRETARY FOR SECURITY (in Cantonese): Shall I first focus on answering the question about buildings of four to six storeys. We expect the first building of three or less storeys participating in the pilot scheme will complete its installation works in around April and May. So, if this is proved feasible based on the actual experience, then we will proceed to the second phrase which covers buildings of four to six storeys, and water pumps will be installed then. We need water pumps as the water pressure may not be adequate, yet the pumps will not be too large in size. Buffer tanks will also be required as buffering is necessary when too much water spouts up. In case of water backflow, we need to hold the water with more space, but it does not require a very large space for such purpose.
The authorities expect that a feasibility study on extending this measure to six-storey buildings can commence in the latter half of this year. If this is feasible, then it means that we can have a solution for buildings ranging from one storey to six storeys in height. We consider that this is a better way to achieve our target than employing other methods or amending the Ordinance.
MR CHAN HAN-PAN (in Cantonese): Deputy President, I have asked if the Secretary can stop instituting prosecutions while the pilot scheme is being implemented.
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DEPUTY PRESIDENT (in Cantonese): Mr CHAN, you have raised a number of supplementary questions, and the Secretary has already answered one.
DR HELENA WONG (in Cantonese): Deputy President, as shown in the Annex, almost half of the old buildings aged over 30 years or so are located in Kowloon West where many residents have requested for assistance. The paper indicates that only some 20% or 30% of the buildings were able to comply with the Directions, while most others were unable to do so. Therefore, we sometimes need to apply for time extension on behalf of these buildings. However, if these buildings are still unable to comply with the Directions after the extension, the authorities will then institute prosecutions against them.
The Secretary has mentioned just now the respective arrangements for buildings of less than three storeys, buildings of four storeys and also buildings of five storeys, but why does he not specifically address the issues related to enforcement, so that owners can really be able to comply with the requirements before the Directions are issued? The authorities are also aware that owners are not unwilling to comply with the Directions, but they are simply not able to do so. They are either too old, or too impoverished. Also, they are unorganized as no one has formed any organization for them.
As mentioned by the Secretary in the main reply, the FSD, the BD and the HAD can help the owners, but the problem as I reckon is that the authorities have practically done nothing at all. So, I want to ask: Before issuing notices of prosecution, has the Government checked if the HAD has really offered help to owners? Or, technically is it actually possible to comply with the Directions? If the authorities are aware that owners have genuine difficulties in complying with the Directions, will they still go on and issue penalty tickets? Can the Secretary make a clear clarification?
DEPUTY PRESIDENT (in Cantonese): Please sit down.
SECRETARY FOR SECURITY (in Cantonese): Deputy President, I believe Dr WONG has only told part, but not all, of the truth in her supplementary question. By providing so many such programmes, the authorities mainly aim to assist owners or those people residing in the premises concerned. According to LEGISLATIVE COUNCIL ─ 2 March 2016 6093 the information in my hand, around 50 buildings have failed to comply with the Directions issued by the FSD before the expiry of the compliance period. We will provide enough guidelines to each building, and if those people are truly unable to comply with the Directions, we will adopt other means and identify other practical methods to assist them. In fact, there are actual cases that after on-site inspections of the buildings concerned …
(Dr Helena WONG indicated a wish to ask)
DEPUTY PRESIDENT (in Cantonese): Secretary, please hold on.
SECRETARY FOR SECURITY (in Cantonese): … if we find that they are truly unable to comply with the Directions, we will seek other feasible alternatives. Therefore, as I have mentioned just now, we have published the Guidebook which has clearly identified many fundamental issues. I can give a copy to Dr WONG if she is interested.
DR HELENA WONG (in Cantonese): Deputy President, what I have just asked the Secretary is that, prior to issuing any notices of prosecution, will he enquire if the government departments have really helped the owners before?
DEPUTY PRESIDENT (in Cantonese): Secretary, do you have anything to add?
MR ALBERT CHAN (in Cantonese): Deputy President …
DEPUTY PRESIDENT (in Cantonese): Mr CHAN, can you let the Secretary supplement his reply first?
MR ALBERT CHAN (in Cantonese): Deputy President, point of order. I have been standing for more than one minute.
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DEPUTY PRESIDENT (in Cantonese): You always stand up. You have also stood up and chatted with Mr Alvin YEUNG just now.
MR ALBERT CHAN (in Cantonese): Deputy President, please do a headcount in accordance with Rule 17(2) of the Rules of Procedure.
DEPUTY PRESIDENT (in Cantonese): Will the Clerk please ring the bell to summon Members back to the Chamber.
(While the summoning bell was ringing, Mr Albert CHAN talked aloud in the Chamber)
DEPUTY PRESIDENT (in Cantonese): Mr Albert CHAN, the meeting is still in progress. Please keep quiet.
(While the summoning bell was ringing, Mr LEUNG Kwok-hung stood up and talked aloud)
DEPUTY PRESIDENT (in Cantonese): Mr LEUNG Kwok-hung, the meeting is still in progress. Please sit down and stop yelling.
(After the summoning bell had been rung, a number of Members returned to the Chamber)
DEPUTY PRESIDENT (in Cantonese): Secretary, regarding Dr Helena WONG's follow-up question, do you have anything to add?
SECRETARY FOR SECURITY (in Cantonese): I have already explained the practice of the FSD in the main reply. If Dr WONG has any case in hand that she considers worthy to draw FSD's attention and to pursue the matter further, please refer the cases to me so that I can ask the FSD to follow up.
DEPUTY PRESIDENT (in Cantonese): Oral questions end here.
LEGISLATIVE COUNCIL ─ 2 March 2016 6095
WRITTEN ANSWERS TO QUESTIONS
Measures to Facilitate Waterworks for Eateries
7. MR TOMMY CHEUNG (in Chinese): President, I have learnt that due to the occurrence of incidents last year in which some of the drinking water samples taken from a number of public housing estates, private housing estates and schools were found to have a lead content exceeding the provisional guideline value set by the World Health Organization (the lead incidents), large-scale replacement works of drinking water mains have to be carried out for the affected buildings. Moreover, in response to the lead incidents, the Water Supplies Department (WSD) has implemented a number of new measures to enhance the control of inside service. For example, licensed plumbers must submit to the Water Authority (WA) supporting documents of the lead free grade soldering materials to be used before they may use soldering for connecting copper pipes. The aforesaid situations have significantly increased the workload of licensed plumbers, resulting in a shortage of licensed plumbers. Besides, eateries must make a report to and obtain approval from WSD before they may construct, install, alter or remove an inside service or fire service (waterworks). However, as the exchange of correspondence between eateries and WSD takes time, the applications for waterworks from many eateries have not yet been approved after a long time. As it is difficult for those eateries to operate with no or insufficient supply of drinking water, they have suffered substantial financial losses. In this connection, will the Government inform this Council:
(1) between the onset of the lead incidents in July 2015 and January this year, (i) of the number of applications for carrying out waterworks received by WSD from eateries, (ii) the average processing time (i.e. from the receipt of an application to the granting of approval by WA) for those approved among such applications, and (iii) how these two figures compare to the relevant figures of the previous year;
(2) whether WSD will deploy additional manpower or outsource the work involved in the vetting and approval of applications to expedite the processing of applications submitted by eateries for carrying out waterworks; if WSD will, of the details; if not, the reasons for that; and
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(3) given that in order to reduce the possible business impact arising from the aforesaid enhanced control measures, WSD has introduced transitional arrangements (including the arrangement under which WA will consider granting permission for commencement of plumbing works where some of the pipes and fittings need to be reported but have not yet obtained WA's general acceptance, provided that the licensed plumber undertakes to provide valid general acceptance before final inspection), and the effective period of these arrangements will end on 1 April this year, whether the authorities will consider extending the effective period of such arrangements; if they will, of the details; if not, the reasons for that?
SECRETARY FOR DEVELOPMENT (in Chinese): President, the Government has always attached great importance to the incident of excess lead in drinking water in public rental housing (PRH) estates. To protect the safety of drinking water for the general public, the Housing Authority has undertaken to replace non-compliant pipes in the affected PRH estates in phases. The Water Supplies Department (WSD) has also rolled out various related measures to step up control of plumbing works for inside services. For instance, it has made reference to the approval mechanism of the United Kingdom's Water Regulations Advisory Scheme for pipes and fittings and set a five-year validity period for the approved pipes and fittings in order to step up control on the installation or use of these items. Four new parameters for heavy metals (including lead) have also been added to the tests of water samples on notification of completion of works. Moreover, licensed plumbers are required to submit to the Water Authority (WA) supporting documents of lead free grade soldering materials, if soldering is used in connecting copper pipes in plumbing works. When inspecting new plumbing works, the WA requires non-destructive tests to be conducted on solder joints to check for the presence of lead.
As regards schools, the Education Bureau in conjunction with Architectural Services Department and WSD completed the water sampling tests for the public sector and Direct Subsidy Scheme schools built with public funding and completed in 2005 or after as well as all kindergartens in the territory in November 2015. A total of 2 223 water samples were collected and tested. All water samples were found to be compliant with the World Health Organization standard for lead, except seven water samples from the inside service of a secondary school, two water samples from the wall-mounted dispensers of two secondary schools and 10 water samples from the wall-mounted dispensers of LEGISLATIVE COUNCIL ─ 2 March 2016 6097 eight kindergartens. For the secondary school with excess lead in samples taken from its inside service, the Education Bureau has immediately installed filters certified for lead reduction and arranged replacement for potable water pipeworks. The other two secondary schools and eight kindergartens have also immediately stopped using the problematic wall-mounted dispensers. The Education Bureau has also forwarded WSD's recommendations and publicity leaflets on the purchase and use of wall-mounted dispensers to all schools in the territory for reference.
The WSD has maintained communication with the relevant stakeholders. Before introducing new measures, the WSD would consult the plumbing trade and implement discretionary initiatives or transitional arrangements as required on a case-by-case basis. For instance, the WSD has increased the number of accredited laboratories from four to 15 to meet the trade demand for tests for the pipes and fittings that require re-tests upon the expiry of their validity period for general acceptance. To support the implementation of new measures and mitigate their impact on the approval process of plumbing works, the WSD has also redeployed and added staff for processing work and refined the processing procedures. Furthermore, the WSD has put in place transitional arrangements in the light of the actual circumstances. For instance, the supply systems of non-drinking water are allowed to continue to use those pipes and fittings for which the five-year validity period for general acceptance has expired.
To facilitate the smooth implementation of new measures, a task group was established in November 2015 with a view to better understand the concerns of the stakeholders and introduce timely and appropriate measures. The group is chaired by Deputy Director of Water Supplies and comprises members broadly representative of the relevant trades. The WSD also attended meetings of the catering industry to brief them on the new measures and clarify on their doubts.
Regarding the supply and demand of licensed plumbers in the market, there are 3 078 licensed plumbers as at the end of December 2015 according to our records. As advised by the industry, the new measures have not led to a shortfall of licensed plumbers.
My reply to Mr CHEUNG's question is as follows:
(1) The table below shows a comparison of the number of waterworks applications from eateries received after the onset of lead in water incident and over the same period in 2014: 6098 LEGISLATIVE COUNCIL ─ 2 March 2016
Before the lead in After the lead in water incident water incident
(13 July 2014 to (13 July 2015 to 31 January 2015) 31 January 2016) Actual number of waterworks 195 28 applications from eateries Number of 185 13 applications (Of the remaining 10 (Of the remaining 15 approved for works cases, nine are still cases, 12 are still commencement by pending application pending application the WA submission for works submission for works (as at 23 February commencement and commencement and 2016) one was rejected for three were rejected for non-compliance) non-compliance) The approval process from initial application to obtaining approval from the WA for works commencement generally comprises the following three stages: 1 Average time taken by the WA 37 days 35 days in processing a works plan 2 Average time taken by applicants from receipt of approval for 46 days 48 days works plan to submission of application for works commencement 3 Average time taken by the WA from receipt of an application for 4 days 9 daysNote works commencement to granting approval Total: 87 days 92 days
LEGISLATIVE COUNCIL ─ 2 March 2016 6099
Note:
A special case in which protracted time (66 days) was spent on exchanging correspondences over repeated requests for supplementary information was excluded in calculating the average time.
(2) We understand that the measures introduced in the wake of the lead in water incident would prolong the time needed to process waterworks applications. In this connection, the WSD has expanded the manpower complement by 30% amounting to 21 staff through redeployment of existing staff and hiring more temporary contract staff in order to expedite the approval process. Furthermore, 15 civil service posts for processing waterworks applications will be created in the WSD (that is, representing a 20% increase as compared with the original staff complement) in the next financial year. The WSD will closely liaise with the trade and monitor the situation of the processing work. Further expansion of the staff complement and other measures may be considered as and when necessary.
(3) Subject to the overarching principle of safeguarding the safety of drinking water, the WSD has adopted the above-mentioned transitional arrangements in response to the demand from the trade. These measures also helped to alleviate the pressure on them. According to our records, the WA has granted general acceptance for over 10 000 items of pipes and fittings. As advised by the trade, the market has an adequate supply and choice for the pipes and fittings that are reportable to the WA for use in waterworks. Moreover, the time taken by the WSD in processing applications for works commencement is on a decreasing trend. For certain categories in particular, such as the catering industry, the processing work has returned to the position before the onset of lead in water incident. As regards the transitional arrangements mentioned in part (3) of the question, the WSD will continue to maintain communication with the trade and review the need for extending the effective period of these arrangements in the light of the actual situation.
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Sustainable Development of Agriculture and Fisheries Which are Affected by Development Projects
8. MR STEVEN HO (in Chinese): President, the Chief Executive has indicated in this year's Policy Address that the Government will implement a new agriculture policy to promote the modernization and sustainable development of local agriculture. However, some farmers have relayed to me that a number of development projects which are underway or being planned in the New Territories have reduced or will reduce the supply of land for livestock industry and agriculture while some fishermen have pointed out that related marine works projects have reduced or will reduce the waters available for fishing. They were concerned that such projects have affected the sustainable development of agriculture and fisheries. On the other hand, some members of the livestock industry have pointed out that there are currently many cumbersome regulations for compliance by licensed livestock farms, making it difficult for livestock farms affected by development plans to identify suitable sites for relocation and continued operation. In this connection, will the Government inform this Council:
(1) of (i) the area of agricultural land, (ii) the area of agricultural land under active farming, (iii) the number of premises and vegetable market offices under vegetable marketing co-operative societies (VMCSs), and (iv) the number and the addresses of livestock farms, which were affected in the past five years or will be affected by development projects listed in the table below (set out in the table below);
(i) (ii) Development projects (iii) (iv) (hectare) (hectare) Kwu Tung North/Fanling North New Development Areas Hung Shui Kiu New Development Area The Potential Development Areas of Yuen Long South Land Use Review for Kam Tin South LEGISLATIVE COUNCIL ─ 2 March 2016 6101
(i) (ii) Development projects (iii) (iv) (hectare) (hectare) Other areas in New Territories North Others
(2) of the measures currently in place to assist farmers affected by development projects in agricultural rehabilitation, reprovisioning of their vegetable farms and agricultural structures, and relocation of their livestock farms, and to assist affected VMCSs in the relocation of their premises and vegetable market offices, as well as the details of such measures; regarding the development projects mentioned in (1), of the respective details of the special agricultural land rehabilitation schemes offered by the Government;
(3) whether the Government will consider introducing a land resumption policy of "rehousing before clearance" and increasing the current rate of allowance for reprovisioning of agricultural structures, so that farmers will have adequate funding to rebuild their agricultural structures; if it will not consider, of the reasons for that; whether it will improve the current work relating to field studies conducted for development projects (including carrying out such work in a low-profile manner) to avoid land owners, after learning about the related projects, prematurely terminating their land tenancy agreements with farmers for converting the sites for other uses in order to obtain more compensation; if it will, of the details; if not, the reasons for that;
(4) whether the Government will amend the Public Health (Animals and Birds) (Licensing of Livestock Keeping) Regulation (Cap. 139 sub. leg. L) so that livestock farms which have met the standards on disposal of livestock waste, when they are affected by development projects and have to be relocated, can find alternative sites for continuing their operations; if it will, of the details; if not, the reasons for that;
(5) as some fishermen have indicated that a number of marine works projects currently implemented for various development projects have seriously affected their livelihood, whether the Government will 6102 LEGISLATIVE COUNCIL ─ 2 March 2016
set up a "task force on reclamation, planning and works monitoring", to be led by the Chief Secretary for Administration and comprising the relevant Directors of policy bureaux, to review Hong Kong's overall development planning and coordinate related complementary policies and measures (including compensation policy, etc.) so as to safeguard the interests and sustainable development of fisheries; if it will, of the details; if not, the reasons for that;
(6) whether it will consider formulating a policy to require that whenever the Government has to resume agricultural land for a development project, it has to provide compensatory agriculture land of the same site area for the purpose of agricultural rehabilitation for farmers so as to ensure the sustainable development of agriculture; if it will, of the details; if not, the reasons for that; and
(7) as some fishermen have relayed to me that they are disheartened by the current cumbersome procedures for applying for the Sustainable Fisheries Development Fund and the requirement that applications must be made in the name of companies or by academic and research institutions, whether the Government will streamline the application procedures of the Fund, assist fishermen in going through the application procedures (e.g. allowing fishermen to apply for small grants by completing application forms and assisting them in preparing proposals for applying for larger grants), and cancel the requirement that applications must be made in the name of companies; if it will, of the details; if not, the reasons for that?
SECRETARY FOR FOOD AND HEALTH (in Chinese): President, the Chief Executive announced in the 2016 Policy Address that the Government would implement the New Agriculture Policy (NAP) to promote the modernization and sustainable development of local agriculture. The key initiatives under the NAP include establishing an Agricultural Park (Agri-Park), examining the feasibility of identifying farmland in the New Territories that has higher value for agricultural activities as Agricultural Priority Areas and setting up a $500 million Sustainable Agricultural Development Fund. We will also further strengthen support for LEGISLATIVE COUNCIL ─ 2 March 2016 6103 farmers and assist them in moving up the value chain, facilitate produce marketing and brand building, and promote the development of leisure farming and education activities auxiliary to agriculture. We believe that these initiatives will help farmers improve their productivity and preserve farmland for agricultural purposes, which will be conducive to the sustainable development of the agricultural industry. In addition, the Government has been providing support for the local fisheries industry and in the past few years introduced a number of measures, including setting up the Sustainable Fisheries Development Fund (SFDF), to ensure its continued development.
In planning land development and undertaking public works projects, the Government will strive to minimize the impacts on residents and other stakeholders in the area. However, in cases where it is necessary to resume land for implementation of public works projects and release land for development purposes, some existing occupants and users of the land concerned will inevitably be affected, including farmers who may not be able to continue their agricultural practices in-situ. Under the Government's existing land resumption and clearance mechanism, there are established compensation arrangements to take care of the parties affected, including crop and livestock farmers. As for fishermen who lost their habitual fishing grounds due to marine works projects, the Government has also put in place a mechanism to provide, on compassionate grounds, an ex gratia allowance to fishermen who fulfil certain eligibility criteria, for the purpose of relieving the burden on them.
My reply to the various parts of the question is as follows:
(1) The area of agricultural land and the number of vegetable marketing co-operative societies/vegetable depots and livestock farms affected by various development projects are listed at Annex.
(2), (3) and (6)
Under the established mechanism, genuine farmers and livestock farm operators affected by land resumption and clearance stemming from public works projects may purchase or rent private agricultural land elsewhere to continue their operations. As for the vegetable marketing co-operative societies limited and vegetable depots 6104 LEGISLATIVE COUNCIL ─ 2 March 2016
affected, the Government will also liaise with them to understand thoroughly their requests for compensation and relocation with a view to working out a plan acceptable to parties concerned and mitigating the impacts of the development on farmers in the area.
Farmers and livestock farm operators who have needs for development and working capital may apply for low-interest loans from the Kadoorie Agricultural Aid Loan Fund and the J. E. Joseph Trust Fund administered by the Agriculture, Fisheries and Conservation Department (AFCD). The Lands Department will on a need basis review from time to time the amount of rehabilitation allowance payable.
For the Kwu Tung North, Fanling North and Hung Shui Kiu New Development Areas, and development in Yuen Long South, the Government is looking into launching a special agricultural land rehabilitation scheme to help farmers affected by these development projects. Under this scheme, the Government will identify landowners who are willing to lease or sell their land which is suitable for agricultural re-site/rehabilitation, and priority assistance will be given to matching these landowners with farmers affected. The Government will announce the details of the arrangements under the scheme in due course. As an initiative of the NAP, the proposed Agri-Park may, upon completion, accommodate eligible farmers who wish to continue farming but have been displaced by government development projects that happen to take place within the same time frame.
The current field inspection under the planning studies is conducted to ascertain the conditions of the land concerned so as to lay the groundwork for planning. At different stages of the planning studies, it is necessary for the Government to conduct public engagement activities and release relevant information to the public, during which the Government's development proposals are inevitably made known to different stakeholders. Land tenancy is a private agreement between landowners and farmers to which the Government is not a party. We have no locus to intervene.
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(4) Currently, in the event that a licensed livestock farm is affected by government development projects and the licensee wishes to consider relocation, he should look for a relocation site which fulfils the requirements set out in the Public Health (Animals and Birds) (Licensing of Livestock Keeping) Regulation (Cap. 139L) with regard to regulation over livestock keeping control, bio-security and environmental protection, the requirements under planning and lands legislation, and the relevant policy requirements. The AFCD will help farmers in need to better understand the legal requirements and provide them with appropriate assistance.
The Government keeps an open mind about amending the existing requirements on relocation of livestock farms. In 2015, the Food and Health Bureau commissioned a consultant to study the future of the live poultry trade and make recommendations. Policy issues relating to poultry rearing in Hong Kong, including the legal requirements restricting the relocation of existing chicken farms, will be taken into consideration in the consultancy study. The consultancy study is expected to be completed in mid-2016. The Government will consult the public on the consultant's recommendations in charting the way forward.
(5) Currently, the Government's reclamation projects and other major marine works are planned and implemented by the relevant planning and works departments. The Development Bureau is responsible for formulating development policies, and monitoring and co-ordinating the implementation of the public works programme. Departments responsible for the projects will duly consult the bureaux and other government departments concerned when implementing the projects so that all concerns are justly considered. The Government has also put in place an inter-bureaux/departmental mechanism to supervise the policies and other issues relating to development projects. Given that these arrangements have been working well, there is no need to establish another mechanism.
(7) The Government set up the SFDF to help fishermen adopt a sustainable and high value-added operation mode, and provide financial support for programmes and research so as to enhance the 6106 LEGISLATIVE COUNCIL ─ 2 March 2016
overall competitiveness of the industry. To ensure proper use of the public fund, we have taken into account the circumstances of the trade and studied the experience of other government funds when formulating the eligibility, assessment criteria and monitoring mechanism for the SFDF. The SFDF Advisory Committee established by the Government comprises members of the Legislative Council, representatives of the industry, professionals, academics and government officials. It makes recommendations in respect of the overall strategy of the SFDF and the approval of individual projects. In vetting an application, the SFDF Advisory Committee will duly consider whether the project could help the local fisheries community rise to new challenges with a view to enabling the fisheries industry to develop or switch to a sustainable or high value-added mode of operations, thereby enhancing the overall competitiveness of the local fisheries industry.
Eligible applicants for the SFDF include legal entities that have demonstrated a close connection with the local fisheries industry, such as local incorporated companies, local registered fisheries co-operatives, non-profit-making fisheries organizations, non-governmental organizations or social enterprises, as well as academic and research institutions in Hong Kong. Individuals may form a legal entity to submit an application or make a joint application with the above organizations. So far, the SFDF has approved six applications with a total grant of about $28 million. Among these applications, two come from companies formed by fishermen, three are made by fisheries organizations jointly with local non-profit-making green groups or universities, and one is made by a local university. To help applicants understand the application procedures and assessment criteria, the AFCD has prepared detailed application guidelines for the reference of interested parties since July 2014 when the SFDF started inviting applications. Moreover, the AFCD provides assistance to applicants, including offering technical advice on their projects, explaining the application procedures and helping them file applications whenever necessary.
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Annex
Large-scale development projects involving existing agricultural land(1)
Number of Area of vegetable Area of agricultural marketing Number of fallow land under co-operative livestock Development plan agricultural active societies/ farms land affected farming vegetable affected affected depots affected Kwu Tung North/ About About 2 1 Fanling North New 36 hectares 28 hectares Development Areas Hung Shui Kiu New About About 1 Nil(3) Development Area 20 hectares 7.6 hectares (to be confirmed)(2) Yuen Long South About About 1(4) 3 7 hectares 7 hectares (another three to be confirmed)(5) The West Rail site and About About Nil Nil three adjacent public 2.9 hectares 5.6 hectares housing sites in Kam Tin South Other areas in New No relevant No relevant No relevant No relevant Territories North(6) information information information information Tung Chung New About About Nil(8) Nil Town Extension 3.8 hectares(7) 0.7 hectare(7)
Notes:
(1) The information presented is based on the major land development studies or projects which have been announced and are underway. The information may be subject to updating as the projects proceed. Other projects smaller in scale are not included. The number of projects listed may increase in the future as a result of updates on the territorial strategic planning or launch of other development studies or projects.
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(2) There are two vegetable marketing co-operative societies in the Hung Shui Kiu New Development Area. According to the Recommended Outline Development Plan (RODP) of the relevant study, one of them would not be affected, while the retention of the other one at the southern edge of the new development area is subject to further study of the Green Transit Corridor.
(3) There is a chicken farm in the Hung Shui Kiu New Development Area. According to the RODP of the relevant study, it would not be within the development area and affected by the development.
(4) There were one vegetable marketing co-operative society and one vegetable depot in the Yuen Long South Development Area. According to the Planning Department's site visit in February 2016, the vegetable depot has moved out of the development area.
(5) The Stage 3 Community Engagement of the relevant study is being conducted from 19 January 2016 to 19 April 2016. According to the draft RODP of the study, the two chicken farms and one pig farm at the centre of the Yuen Long South development area would need to be removed. The retention of another chicken farm and two pig farms at the southern edge of the development area is subject to the formulation and implementation of feasible mitigation measures.
(6) The Preliminary Feasibility Study on Developing the New Territories North jointly commissioned by the Civil Engineering and Development Department and the Planning Department is a preliminary feasibility study. It does not include detailed investigation of land for livestock keeping and agricultural uses.
(7) Excluding about 7.2 hectares of land with fruit trees.
(8) There is a vegetable marketing co-operative society/vegetable depot within the Tung Chung New Town Extension. According to the RODP of the relevant study, it would not be affected by the development.
Implementation of Electronic Public Services
9. MR CHARLES PETER MOK (in Chinese): President, some members of the information technology industry have pointed out that with the growing popularity of smart mobile devices, members of the public expect the Government to enhance the quality, level of innovation and accessibility of electronic public services. Regarding the implementation of electronic public services, will the Government inform this Council:
(1) of the following in the past three years, (i) the number of accounts registered with "MyGovHK" web site at the end of each year, (ii) the number of times for which electronic general demand notes were LEGISLATIVE COUNCIL ─ 2 March 2016 6109
issued by various government departments each year, and (iii) the utilization of the electronic public services provided by various government departments each year (in descending order);
(2) of the respective numbers of payments made through different means (including (i) autopay, (ii) automatic teller machine, (iii) electronic bill presentment and payment service, (iv) e-cheque, (v) internet payment, (vi) phone banking, (vii) PPS, (viii) by post, (ix) convenience store, and (x) in person) for bills issued by various government departments in each of the past three years, and their respective percentages in the total number of payments made (set out in the table below);
The number of payments for bills made through Government Name of different means and their respective percentages Year departments bills in the total number of payments made (i) (ii) (iii) (iv) (v) (vi) (vii) (viii) (ix) (x)
(3) of the channels currently accepted for submitting applications for various allowances or subsidy schemes under the purview of the Labour and Welfare Bureau, the Education Bureau and the Community Care Fund (set out in the table below);
Bureaux/ Name of The channels accepted for submitting applications Community allowances/ In By By By Online Mobile Care Fund subsidy schemes person post fax phone application device
6110 LEGISLATIVE COUNCIL ─ 2 March 2016
(4) of the public services that currently do not accept online applications, and set out such information by the bureaux and government departments providing such services;
(5) whether it has encouraged the Hospital Authority to establish a channel for online booking for public healthcare services, and publish the booking situation and waiting time of various services on a real time basis; if it has, of the details;
(6) whether it will make public the utilization of electronic public services and government web sites so as to enhance transparency and accountability; if it will, of the timetable and details; if not, the reasons for that; and
(7) whether it has formulated any strategy to make use of big data to analyze the demand for new services and respond to public views, with a view to introducing new electronic services and enhancing existing electronic services; if it has, of the timetable and details; if not, the reasons for that?
SECRETARY FOR INNOVATION AND TECHNOLOGY (in Chinese): President, through the launch of e-Government services, the Government endeavours to deliver public services in an efficient and convenient manner with a view to bringing convenience to the people and enhancing their quality of living. The Government will continue to enhance online services by further digitizing the process of online submission of government forms in order to meet rising public expectations and demand for e-Government services, as well as improve internal efficiency.
Having consulted the relevant Policy Bureaux and departments (B/Ds), our reply to the seven-part question is as follows:
(1) In the past three years (that is, as at end of each year from 2013 to 2015), the numbers of accounts registered with "MyGovHK" were 189 000, 233 000 and 335 000 respectively.
LEGISLATIVE COUNCIL ─ 2 March 2016 6111
The General Demand Note System is a common billing system to facilitate government departments which do not have individual billing systems to issue demand notes (including electronic General Demand Notes). From 2013 to 2015, an average annual total of about 750 electronic General Demand Notes were issued by government departments through the system.
A list of the annual utilization rate of the electronic public services, such as informational searches and electronic transactions, and so on, is set out in Annex 1.
(2) The number of payments for major bills made through different means and their respective percentages in the total number of payments made by various departments in the past three years are set out in Annex 2.
(3) The channels currently accepted for submitting applications for various allowances or subsidy schemes under the purview of the Labour and Welfare Bureau, the Education Bureau and the Community Care Fund (CCF) are set out in Annex 3.
(4) Among the 900-odd public services currently provided by government departments, more than 730 services already accept online applications. The public services that do not accept online applications at the present stage due to factors such as resources and internal operational process are set out in Annex 4.
(5) The Hospital Authority (HA) has, since 30 January 2015, uploaded latest waiting time information of eight major specialties of the specialist out-patient clinics (namely Ear, Nose and Throat, Gynaecology, Medicine, Eye, Orthopaedics and Traumatology, Paediatrics, Psychiatry and Surgery) to its website to enhance transparency. The information facilitates patients to make informed decisions in their treatment plans. Moreover, the HA will launch a mobile application to facilitate patients' choice on cross-cluster new case booking in the specialty of Gynaecology in March 2016. Upon review, this application will be further rolled out to other 6112 LEGISLATIVE COUNCIL ─ 2 March 2016
specialties as appropriate in 2016-2017. The HA will from time to time review the feasibility of using electronic means to provide information and services.
(6) The Office of the Government Chief Information Officer (OGCIO) reports the latest progress on B/Ds' implementation of e-Government services to the Legislative Council Panel on Information Technology and Broadcasting annually. This includes the usage of e-Government services, the utilization of websites and mobile e-Government services, such as the numbers of government mobile applications and "MyGovHK" accounts, and so on.
(7) The OGCIO will explore the use of big data analytics within the Government, and formulate data standards for the sharing and linking of data sources in order to launch more and better electronic public services.
Annex 1
Annual Utilization Rate of Electronic Public Services Provided by B/Ds in the Past Three Years (in descending order)
2013
Utilization rate of electronic B/Ds public services 10 million or 1. Hong Kong Observatory above 2. Post Office 3. Labour Department 4. Lands Department 5. Department of Health 6. Customs and Excise Department 7. Leisure and Cultural Services Department 8. Companies Registry 9. Treasury LEGISLATIVE COUNCIL ─ 2 March 2016 6113
Utilization rate of electronic B/Ds public services 1 million to 10. Inland Revenue Department less than 11. Civil Service Bureau 10 million 12. Census and Statistics Department 13. Land Registry 14. Housing Department 15. Immigration Department 16. Rating and Valuation Department 17. Trade and Industry Department 18. Information Services Department 100 000 to less 19. Working Family and Student Financial Assistance Agency than 1 million (formerly known as Student Financial Assistance Agency) 20. Planning Department 21. Water Supplies Department 22. Transport Department 23. Legal Aid Department 24. Marine Department 25. Government Logistics Department 26. Official Receiver's Office 27. Highways Department 28. Office of the Communications Authority 29. Commerce and Economic Development Bureau 30. University Grants Committee Secretariat 31. Intellectual Property Department 10 000 to less 32. Architectural Services Department than 100 000 33. OGCIO 34. Electrical and Mechanical Services Department 35. Hong Kong Police Force 36. Civil Aviation Department 37. Office of the Commissioner of Insurance 38. Radio Television Hong Kong 39. Transport and Housing Bureau 40. Environmental Protection Department Below 10 000 41. Correctional Services Department 42. Fire Services Department 43. Invest Hong Kong 44. Agriculture, Fisheries and Conservation Department 45. Home Affairs Department 6114 LEGISLATIVE COUNCIL ─ 2 March 2016
Utilization rate of electronic B/Ds public services 46. Civil Engineering and Development Department 47. Registration and Electoral Office 48. Social Welfare Department 49. Innovation and Technology Commission 50. Drainage Services Department 51. Buildings Department 52. Food and Environmental Hygiene Department 53. Government Property Agency 54. Security Bureau 55. Auxiliary Medical Service 56. Development Bureau 57. Administration Wing 58. Education Bureau 59. Food and Health Bureau
2014
Utilization rate of electronic B/Ds public services 10 million or 1. Hong Kong Observatory above 2. Post Office 3. Labour Department 4. Lands Department 5. Customs and Excise Department 6. Leisure and Cultural Services Department 7. Companies Registry 8. Treasury 1 million to 9. Civil Service Bureau less than 10. Inland Revenue Department 10 million 11. Department of Health 12. Census and Statistics Department 13. Land Registry 14. Efficiency Unit 15. Housing Department 16. Immigration Department 17. Rating and Valuation Department LEGISLATIVE COUNCIL ─ 2 March 2016 6115
Utilization rate of electronic B/Ds public services 18. Trade and Industry Department 19. Information Services Department 20. Working Family and Student Financial Assistance Agency (formerly known as Student Financial Assistance Agency) 100 000 to less 21. Water Supplies Department than 1 million 22. Planning Department 23. OGCIO 24. Transport Department 25. Marine Department 26. Legal Aid Department 27. Government Logistics Department 28. Official Receiver's Office 29. Highways Department 30. Office of the Communications Authority 31. Commerce and Economic Development Bureau 32. Intellectual Property Department 10 000 to less 33. Environmental Protection Department than 100 000 34. University Grants Committee Secretariat 35. Food and Environmental Hygiene Department 36. Architectural Services Department 37. Office of the Commissioner of Insurance 38. Registration and Electoral Office 39. Hong Kong Police Force 40. Home Affairs Department 41. Electrical and Mechanical Services Department 42. Civil Aviation Department 43. Correctional Services Department 44. Fire Services Department 45. Agriculture, Fisheries and Conservation Department 46. Radio Television Hong Kong 47. Transport and Housing Bureau Below 10 000 48. Civil Engineering and Development Department 49. Social Welfare Department 50. Innovation and Technology Commission 51. Food and Health Bureau 52. Security Bureau 53. Buildings Department 6116 LEGISLATIVE COUNCIL ─ 2 March 2016
Utilization rate of electronic B/Ds public services 54. Government Property Agency 55. Auxiliary Medical Service 56. Development Bureau 57. Administration Wing 58. Education Bureau
2015
Utilization rate of electronic B/Ds public services 10 million or 1. Hong Kong Observatory above 2. Post Office 3. Labour Department 4. Lands Department 5. Customs and Excise Department 6. Leisure and Cultural Services Department 7. Companies Registry 8. Treasury 1 million to 9. Department of Health less than 10. Inland Revenue Department 10 million 11. Civil Service Bureau 12. Census and Statistics Department 13. Land Registry 14. Efficiency Unit 15. Immigration Department 16. Housing Department 17. Information Services Department 18. Rating and Valuation Department 19. Working Family and Student Financial Assistance Agency 20. Trade and Industry Department 100 000 to less 21. Registration and Electoral Office than 1 million 22. OGCIO 23. Planning Department 24. Water Supplies Department 25. Transport Department LEGISLATIVE COUNCIL ─ 2 March 2016 6117
Utilization rate of electronic B/Ds public services 26. Legal Aid Department 27. Government Logistics Department 28. Marine Department 29. Commerce and Economic Development Bureau 30. Buildings Department 31. Official Receiver's Office 32. Environmental Protection Department 33. Highways Department 34. Food and Environmental Hygiene Department 35. Intellectual Property Department 10 000 to less 36. University Grants Committee Secretariat than 100 000 37. Office of the Communications Authority 38. Architectural Services Department 39. Hong Kong Police Force 40. Home Affairs Department 41. Electrical and Mechanical Services Department 42. Civil Aviation Department 43. Fire Services Department 44. Correctional Services Department 45. Radio Television Hong Kong 46. Transport and Housing Bureau 47. Office of the Commissioner of Insurance Below 10 000 48. Agriculture, Fisheries and Conservation Department 49. Civil Engineering and Development Department 50. Education Bureau 51. Social Welfare Department 52. Food and Health Bureau 53. Invest Hong Kong 54. Innovation and Technology Commission 55. Government Property Agency 56. Security Bureau 57. Auxiliary Medical Service 58. Drainage Services Department 59. Administration Wing
6118 LEGISLATIVE COUNCIL ─ 2 March 2016
Annex 2
The Number of Payments for Major Bills Issued by Government Departments through Different Means in the Past Three Years
2013
Number of payments for major bills made through different means and their respective percentages in the total number of payments made(1) (iii) Other (v) electronic Government Name of Counter (ii) means Departments major bills collections (i) Automatic (including (iv) (including Autopay teller Internet By post convenienc machine payment, e store and phone in person) banking and PPS) Department of Fixed Penalty 1 533 860 34 5 936 Health (Smoking - (18%) (10%) (<1%) (71%) Offences) Chinese Medicine Council of Hong Kong: Registration Application Fee/ Practising 177 1 842 527 Certificate - - (7%) (72%) (21%) Application Fee/ Examination Application Fee/Written Examination Fee/Clinical Examination Fee Environmental Chemical/ 213 1 708 3 455 Protection Clinical Waste - - (4%) (32%) (64%) Department Demand Notes Waste Disposal/ 147 214 2 222 Transfer Deposit - - (6%) (8%) (86%) Demand Notes LEGISLATIVE COUNCIL ─ 2 March 2016 6119
Number of payments for major bills made through different means and their respective percentages in the total number of payments made(1) (iii) Other (v) electronic Government Name of Counter (ii) means Departments major bills collections (i) Automatic (including (iv) (including Autopay teller Internet By post convenienc machine payment, e store and phone in person) banking and PPS) Waste Disposal/ 3 812 2 632 22 768 Transfer - - (13%) (9%) (78%) Demand Notes Motor Vehicle 11 13 57 Idling (Fixed - 0 (14%) (16%) (70%) Penalty) Food and Market Stall 5 280 14 099 264 70 247 - Environmental Rent (6%) (16%) (<1%) (78%) Hygiene Fixed Penalty Department (Public 4 442 4 105 451 22 985 - Cleanliness (14%) (13%) (1%) (72%) Offences)
Hong Kong Fixed Penalty (2) Police Force (Traffic Tickets) Inland Revenue Tax Bills and 245 947 1 641 009 274 465 1 966 940 - Department others (6%) (40%) (7%) (47%) Lands Government Department Rent Demand (2) Notes
Premium (2) Demand Notes Legal Aid Contribution/ Department Damages and 2 669 9 087 6 614 - 0 Maintenance/ (15%) (49%) (36%) Litigation Costs Office of the 191 2 426 10 861 4 007 Communications Licence Fee - (1%) (14%) (62%) (23%) Authority 6120 LEGISLATIVE COUNCIL ─ 2 March 2016
Number of payments for major bills made through different means and their respective percentages in the total number of payments made(1) (iii) Other (v) electronic Government Name of Counter (ii) means Departments major bills collections (i) Automatic (including (iv) (including Autopay teller Internet By post convenienc machine payment, e store and phone in person) banking and PPS) Rating and Demand for Valuation Rates and/or 1 029 581 372 517 2 645 602 219 912 2 916 270 Department Government (14%) (5%) (37%) (3%) (41%) Rent Water Supplies 844 852 440 420 2 294 930 101 958 3 591 612 Water Bills Department (12%) (6%) (32%) (1%) (49%) Working Family Tertiary Student and Student Finance Scheme Financial ― Publicly- Assistance funded 1 004 32 471 67 763 11 664 8 716 Agency Programmes (<1%) (27%) (56%) (10%) (7%) (TSFS) Repayment Demand Notes Non-means- tested Loan 129 087 269 641 80 884 33 362 - Repayment (25%) (53%) (16%) (6%) Demand Notes Financial Assistance Scheme for Post- 19 717 34 710 13 380 5 342 - secondary (27%) (48%) (18%) (7%) Students Repayment Demand Notes
LEGISLATIVE COUNCIL ─ 2 March 2016 6121
2014
Number of payments for major bills made through different means and their respective percentages in the total number of payments made(1) (iii) Other (v) electronic Government Name of Counter (ii) means Departments major bills collections (i) Automatic (including (iv) (including Autopay teller Internet By post convenienc machine payment, e store and phone in person) banking and PPS) Department of Fixed Penalty 1 497 856 27 5 486 Health (Smoking - (19%) (11%) (<1%) (70%) Offences) Chinese Medicine Council of Hong Kong: Registration Application Fee/Practising 196 3 266 525 Certificate - - (5%) (82%) (13%) Application Fee/ Examination Application Fee/Written Examination Fee/Clinical Examination Fee Environmental Chemical/ 210 1 670 3 658 Protection Clinical Waste - - (4%) (30%) (66%) Department Demand Notes Waste Disposal/ 173 201 2 203 Transfer Deposit - - (7%) (8%) (85%) Demand Notes 6122 LEGISLATIVE COUNCIL ─ 2 March 2016
Number of payments for major bills made through different means and their respective percentages in the total number of payments made(1) (iii) Other (v) electronic Government Name of Counter (ii) means Departments major bills collections (i) Automatic (including (iv) (including Autopay teller Internet By post convenienc machine payment, e store and phone in person) banking and PPS) Waste Disposal/ 4 009 2 595 24 305 Transfer - - (13%) (8%) (79%) Demand Notes Motor Vehicle 7 8 32 Idling (Fixed - 0 (15%) (17%) (68%) Penalty) Food and Market Stall 5 175 14 756 211 76 031 - Environmental Rent (5%) (15%) (<1%) (79%) Hygiene Fixed Penalty (Public 4 457 3 991 431 22 030 Department - Cleanliness (14%) (13%) (1%) (72%) Offences)
Hong Kong Fixed Penalty (2) Police Force (Traffic Tickets) Inland Revenue Tax Bills and 257 556 1 857 732 298 408 2 104 463 - Department others (6%) (41%) (7%) (46%) Lands Government (2) Department Rent Demand Notes
Premium (2) Demand Notes Legal Aid Contribution/ Department Damages and 2 565 9 090 6 804 - 0 Maintenance/ (14%) (49%) (37%) Litigation Costs LEGISLATIVE COUNCIL ─ 2 March 2016 6123
Number of payments for major bills made through different means and their respective percentages in the total number of payments made(1) (iii) Other (v) electronic Government Name of Counter (ii) means Departments major bills collections (i) Automatic (including (iv) (including Autopay teller Internet By post convenienc machine payment, e store and phone in person) banking and PPS) Office of the 191 2 565 10 526 3 832 Communications Licence Fee - (1%) (15%) (62%) (22%) Authority Rating and Demand for Valuation Rates and/or 1 128 925 376 948 2 861 903 230 552 3 250 016 Department Government (14%) (5%) (37%) (3%) (41%) Rent Water Supplies 864 487 422 837 2 379 803 98 044 3 769 265 Water Bills Department (11%) (6%) (32%) (1%) (50%) Working Family TSFS 1 738 32 913 78 451 9 807 12 839 and Student Repayment (1%) (24%) (58%) (7%) (10%) Financial Demand Notes Assistance Non-means- Agency tested Loan 138 366 304 967 72 110 48 176 - Repayment (25%) (54%) (13%) (8%) Demand Notes Financial Assistance Scheme for 23 997 45 424 12 475 10 864 Post-secondary - (26%) (49%) (13%) (12%) Students Repayment Demand Notes 6124 LEGISLATIVE COUNCIL ─ 2 March 2016
2015
Number of payments for major bills made through different means and their respective percentages in the total number of payments made(1) (iii) Other electronic means (including Electronic (v) Bill Government Name of Counter (ii) Present- Departments major bills collections (i) Automatic ment and (iv) (including Autopay teller Payment By post convenienc machine service, e store and e-Cheque, in person) Internet payment, phone banking and PPS)(3) Department of Fixed Penalty 1 490 765 36 5 467 Health (Smoking - (19%) (10%) (<1%) (70%) Offences) Chinese Medicine Council of Hong Kong: Registration Application Fee/Practising 221 3 740 792 Certificate - - (5%) (79%) (16%) Application Fee/ Examination Application Fee/Written Examination Fee/Clinical Examination Fee LEGISLATIVE COUNCIL ─ 2 March 2016 6125
Number of payments for major bills made through different means and their respective percentages in the total number of payments made(1) (iii) Other electronic means (including Electronic (v) Bill Government Name of Counter (ii) Present- Departments major bills collections (i) Automatic ment and (iv) (including Autopay teller Payment By post convenienc machine service, e store and e-Cheque, in person) Internet payment, phone banking and PPS)(3) Environmental Chemical/ 215 1 624 3 863 Protection Clinical Waste - - (4%) (28%) (68%) Department Demand Notes Waste Disposal/ 194 267 2 489 Transfer Deposit - - (7%) (9%) (84%) Demand Notes Waste Disposal/ 3 884 2 584 25 138 Transfer - - (12%) (8%) (80%) Demand Notes Plastic Shopping 13 17 7 89 Bags (Fixed - (10%) (13%) (6%) (71%) Penalty) Motor Vehicle 11 4 38 Idling (Fixed - 0 (20%) (8%) (72%) Penalty) Food and Market Stall 4 876 14 923 158 78 271 - Environmental Rent (5%) (15%) (<1%) (80%) Hygiene Fixed Penalty Department (Public 4 852 4 042 456 23 863 - Cleanliness (15%) (12%) (1%) (72%) Offences)
Hong Kong Fixed Penalty (2) Police Force (Traffic Tickets) 6126 LEGISLATIVE COUNCIL ─ 2 March 2016
Number of payments for major bills made through different means and their respective percentages in the total number of payments made(1) (iii) Other electronic means (including Electronic (v) Bill Government Name of Counter (ii) Present- Departments major bills collections (i) Automatic ment and (iv) (including Autopay teller Payment By post convenienc machine service, e store and e-Cheque, in person) Internet payment, phone banking and PPS)(3) Inland Revenue Tax Bills and 267 860 2 124 590 245 239 2 249 955 - Department others (6%) (43%) (5%) (46%) Lands Government Department Rent Demand (2) Notes
Premium (2) Demand Notes Legal Aid Contribution/ Department Damages and 259 2 255 9 157 6 008 - Maintenance/ (1%) (13%) (52%) (34%) Litigation Costs Office of the 188 2 431 10 839 4 173 Communications Licence Fee - (1%) (14%) (61%) (24%) Authority Rating and Demand for Valuation Rates and/or 1 164 494 379 757 2 998 663 222 334 3 410 480 Department Government (14%) (4%) (37%) (3%) (42%) Rent Water Supplies 867 921 395 186 2 362 650 89 388 3 730 519 Water Bills Department (12%) (5%) (32%) (1%) (50%) LEGISLATIVE COUNCIL ─ 2 March 2016 6127
Number of payments for major bills made through different means and their respective percentages in the total number of payments made(1) (iii) Other electronic means (including Electronic (v) Bill Government Name of Counter (ii) Present- Departments major bills collections (i) Automatic ment and (iv) (including Autopay teller Payment By post convenienc machine service, e store and e-Cheque, in person) Internet payment, phone banking and PPS)(3) Working Family TSFS 3 801 38 029 101 002 8 387 16 002 and Student Repayment (2%) (23%) (60%) (5%) (10%) Financial Demand Notes Assistance Non-means- Agency tested Loan 163 888 363 660 64 914 60 490 - Repayment (25%) (56%) (10%) (9%) Demand Notes Financial Assistance Scheme for 29 740 58 940 10 526 13 878 Post-secondary - (26%) (52%) (10%) (12%) Students Repayment Demand Notes
Notes:
(1) If the bill does not provide the captioned means of payment, the box will be marked as "-".
(2) The systems of the relevant departments do not record the payment methods. Therefore, the relevant statistics could not be provided.
(3) The Electronic Bill Presentment and Payment service and e-Cheque were rolled out in September and December 2015 respectively. 6128 LEGISLATIVE COUNCIL ─ 2 March 2016
Annex 3
Channels Currently Accepted for Submitting Applications for Allowances or Subsidy Schemes under the Purview of the Labour and Welfare Bureau, the Education Bureau and CCF
Channels accepted for submitting
applications Bureaux/ In By By By Online Mobile Name of allowances/subsidy schemes CCF person post fax phone application device Labour Adult Education Subvention Scheme and Community Investment and Inclusion Welfare Fund Bureau Funding Scheme for Women's Development Queen Elizabeth Foundation for the Mentally Handicapped The Continuing Education Fund Low-income Working Family Allowance Employment Programme for the Middle-aged Work Trial Scheme Work Orientation and Placement Scheme Youth Employment and Training Programme Work Incentive Transport Subsidy Scheme Comprehensive Social Security Assistance (CSSA)Scheme Old Age Allowance Old Age Living Allowance Disability Allowance Criminal and Lawenforcement Injuries Compensation Scheme Traffic Accident Victims Assistance LEGISLATIVE COUNCIL ─ 2 March 2016 6129
Channels accepted for submitting
applications Bureaux/ In By By By Online Mobile Name of allowances/subsidy schemes CCF person post fax phone application device Training Subsidy Programme for Children on the Waiting List of Subvented Pre-school Rehabilitation Services Central Fund for Personal Computers The Jockey Club IT Scheme for People with Visual Impairment Trust Fund for Severe Acute Respiratory Syndrome (SARS) District Support Scheme for Children and Youth Development ― Direct Cash Assistance Education Home-School Co-operation Grants Bureau Mainland University Study Subsidy Scheme Hong Kong Scholarship for Excellence Scheme Professional Enhancement Grant Scheme for Chinese Teachers (Teaching Chinese as a Second Language) Professional Development Incentive Grant Scheme for Language Teachers Quality Education Fund TSFS Financial Assistance Scheme for (1) Post-secondary Students Diploma Yi Jin (Tuition Fee (1) Reimbursement) Financial Assistance Scheme for (1) Designated Evening Adult Education Courses (Tuition Fee Reimbursement) 6130 LEGISLATIVE COUNCIL ─ 2 March 2016
Channels accepted for submitting
applications Bureaux/ In By By By Online Mobile Name of allowances/subsidy schemes CCF person post fax phone application device Pre-primary Education Voucher Scheme Kindergarten and Child Care Centre Fee Remission Scheme School Textbook Assistance Scheme Student Travel Subsidy Scheme (2) Subsidy Scheme for Internet Access Charges Non-means-tested Loan Scheme for Full-time Tertiary Students Non-means-tested Loan Scheme for (1) Post-secondary Students Extended Non-means-tested Loan Scheme CCF(3) Subsidy for patients of the HA for (4) specified self-financed cancer drugs which have not yet been brought into the Samaritan Fund safety net but have been rapidly accumulating medical scientific evidence and with relatively higher efficacy Subsidy for the severely disabled persons aged below 60 who are non-CSSA recipients, requiring constant attendance and living in the community Subsidy for CSSA recipients living in (5) rented private housing and paying a rent exceeding the maximum rent allowance under the CSSA Scheme Relocation allowance for eligible residents of sub-divided units in industrial buildings who have to move out as a result of the Buildings Department's enforcement action LEGISLATIVE COUNCIL ─ 2 March 2016 6131
Channels accepted for submitting
applications Bureaux/ In By By By Online Mobile Name of allowances/subsidy schemes CCF person post fax phone application device After-school care pilot scheme Elderly dental assistance programme (6) Subsidy for owners' corporations of old buildings One-off living subsidy for low-income (7) households not living in public housing and not receiving CSSA Incentive scheme to further encourage (8) CSSA recipients of the Integrated Employment Assistance Programme for Self-reliance to secure employment Pilot scheme on living allowance for carers of the elderly persons from low income families Providing hostel subsidy for needy (9) undergraduate students Increasing the academic expenses (9) grant under the Financial Assistance Scheme for Post-secondary Students Provision of a one-off special subsidy (10) for students on full grant under the School Textbook Assistance Scheme before the launch of the Low-income Working Family Allowance Scheme Provision of funding for ordinary (11) schools to arrange special educational needs coordinators Enhancing the academic expenses grant for students with SEN and financial needs pursuing post-secondary programmes
6132 LEGISLATIVE COUNCIL ─ 2 March 2016
Notes:
(1) Applications are submitted through institutions.
(2) Online applications are applicable to TSFS only.
(3) Programmes under the CCF are pilot in nature. To maximize the amount of funds available for providing swift and direct assistance to needy persons, consideration will be given to implementing programmes through the existing service network where possible and appropriate to minimize administrative costs. Therefore, extra provision usually will not be allocated under CCF programmes for establishing electronic application service.
(4) Patients/applicants should put up applications via the Medical Social Services Units of the respective hospitals.
(5) The CSSA recipients concerned are not required to submit applications. The Social Welfare Department will identify eligible CSSA households according to their previously reported rental information.
(6) Elders shall undergo initial screening on the need for receiving dentures and submit applications through service units participating in the programme.
(7) New application households shall submit applications to service units which assist in implementing the programme.
(8) The Social Welfare Department randomly selected around 2 050 able-bodied CSSA recipients of the Integrated Employment Assistance Programme for Self-reliance to participate in the Incentive Scheme when the programme was launched.
(9) It is not necessary to apply for the assistance separately. The assistance will be disbursed automatically to the eligible applicants under the assistance schemes concerned.
(10) It is not necessary to apply for the one-off subsidy separately. The subsidy will be disbursed together with the textbook assistance to the eligible applicants.
(11) This pilot scheme is for schools invited by the Education Bureau and not open to the general public for application.
Annex 4
Public Services that Currently Do Not Accept Online Applications*
Public Services that do not Accept Online Applications at B/Ds the Present Stage Agriculture, Fisheries Marine Parks and Marine Reserve Information Board and Conservation Hiring Form Department Application for Fisheries Loans Application for Emergency Relief Fund Application for Licence to Import/Introduce from the Sea (Protection of Endangered Species of Animals and Plants Ordinance, Cap. 586) LEGISLATIVE COUNCIL ─ 2 March 2016 6133
Public Services that do not Accept Online Applications at B/Ds the Present Stage Application for Licence to Possess (Protection of Endangered Species of Animals and Plants Ordinance, Cap. 586) Application for Licence to Export/Re-export (Protection of Endangered Species of Animals and Plants Ordinance, Cap. 586) Application for a CITES Re-export Certificate (Agriculture, Fisheries and Conservation Department) Marine Park Public Seminar Application Application form for loan of digital video players Submission form for Veterinary Laboratory test Census and Statistics Application for Acquisition of Statistics via Facsimile Department Transmission Civil Engineering Application for permit/licence for use, conveyance, and Development manufacture and storage of explosives Department Application for Mine Blasting Certificate Commerce and Application for membership of the Panel of Adjudicators Economic of the Obscene Articles Tribunal Development Bureau Companies Registry Application for a Money Lender's Licence Customs and Excise Application for Change of Licence Particulars, Dutiable Department Commodities Ordinance Arrival Declaration Declaration ― Document(s) Produced for Assessment of Duties (For Liquor Only) Authorization to Import Controlled Chemicals Authorization to Export Controlled Chemicals Application for Refund of Duty on Fuel used by Pleasure Vessel Over 60 Tons Net Permit to Remove Controlled Chemicals in Transhipment Application for approval of the Commissioner of C&E for premises and containers in which substances specified in Schedule1 or 2 of the Ordinance are stored or kept 6134 LEGISLATIVE COUNCIL ─ 2 March 2016
Public Services that do not Accept Online Applications at B/Ds the Present Stage Application for Licence for Manufacture of Optical Discs/Stampers Application for Release Authorization Application for Import Licence for Optical Disc Mastering and Replication Equipment Application for Export Licence for Optical Disc Mastering and Replication Equipment Application for Ships' Stores Confirmation of Receipt of Ship's Stores Application for Refund of Duty Application for Licence, Control of Chemicals Ordinance, Cap. 145 Application for Licence, Dutiable Commodities Ordinance Application form for "Carriage Licence for Prescribed Articles" Notification of Devanning/Vanning of Dutiable Goods Appointment for Customs Attendance Application for Operation in Bond Form 6 ― Notification of Changes in Particulars Form 7 ― Notification of Cessation of Operating Money Service Supplementary Information Sheet for Licensed Money Service Operators Application for Certificate of Licensee from the Register of Money Service Operator Licensees Application for a certified copy or uncertified copy of the Register or of an entry in or extract from the Register Department of Health Child Assessment Service Application for First Registration/Re-Registration of Private Hospitals, Nursing Homes and Maternity Homes Application for Changes in Services of Private Hospitals, Nursing Homes and Maternity Homes LEGISLATIVE COUNCIL ─ 2 March 2016 6135
Public Services that do not Accept Online Applications at B/Ds the Present Stage Application for First Registration/Re-Registration of Clinics Application for Re-Registration of Clinics Exempted from Section 7 of the Medical Clinics Ordinance Application for Exemption of Regulated products Drug ― Licensing (licence for manufacturer and licence to manufacture dangerous drugs) Education Bureau Mainland University Study Subsidy Scheme Environmental Enquiry and Application for the Recycling Fund Protection Application for Environment and Conservation Fund Department Application for Pilot Green Transport Fund Application for licences, permits, registrations, exemptions, notifications and certifications under the Air Pollution Control Ordinance and its subsidiary Regulations (except the notification under the Air Pollution Control (Construction Dust) Regulation) Application for study briefs, report approval and appeal related matters under the Environmental Impact Assessment Ordinance (except the applications for and surrender of Environmental Permits) Application for permits and approval under the Dumping at Sea Ordinance Application for licences, permits, authorizations and notifications under the Waste Disposal Ordinance (except the Chemical Waste Disposal Licences and Chemical Waste Producer Registration) Account related matters for refuse transfer service and disposal of construction waste Appeals under Water Pollution Control Ordinance Application for permits under the Hazardous Chemicals Control Ordinance Fire Services Certificate of Fire Service Installation and Equipment Department (FS251) Purchase Form 6136 LEGISLATIVE COUNCIL ─ 2 March 2016
Public Services that do not Accept Online Applications at B/Ds the Present Stage Food and Health Notice of appeals to Appeal Board on Closure Orders Bureau (Immediate Health Hazard) Home Affairs Bureau Application for Legal Advice Scheme for Unrepresented Litigants on Civil Procedures (formerly known as "Pilot Scheme to Provide Legal Advice for Litigants in Person") Home Affairs Applications for Estate Beneficiaries Support Services Department Hong Kong Police Certificate of No Criminal Conviction Force Sexual Conviction Record Check Criminal Conviction Data Access Application for Junior Police Call Membership Application for Senior Police Call Membership Arms Licence Massage Establishment Licence Playing Musical Instrument Permit in Public Street or Road Pawnbroker Licence Temporary Liquor Licence Notification of Public Procession/Meeting Lion/Dragon/Unicorn Dance Permit Security Personnel Permit Society Registration Housing Department Application for Public Rental Housing Application for purchase of flats under Home Ownership Scheme Application under the Interim Scheme of Extending the Home Ownership Scheme Secondary Market to White Form Immigration Application for Transfer of Endorsement at Extension Department Section Application for Extension from Visitors at Extension Section LEGISLATIVE COUNCIL ─ 2 March 2016 6137
Public Services that do not Accept Online Applications at B/Ds the Present Stage Re-issue of Notification Slip and Landing Slip at Extension Section Application for visas under the purview of Employment and Visit Visas Section Personal Data (Privacy) Ordinance ― Data Access Request Application relating to Nationality Matters Application for Extension of Stay (for various types such as Mainland Official, Training and Quality Migrant Admission Scheme) Application for all types of Entry Visa Other post-entry applications except extension of stay (for example, transfer of endorsement, change of status, sideline employment and internship, and so on) Certificate of Entitlement (Mainland residents) Certificate of Entitlement (Overseas residents) Application for Entry for Study in Hong Kong Application for Entry for Residence as Dependents in Hong Kong Application for visit visas under the purview of Other Visas and Permits Section (excluding Pre-arrival Registration for Taiwan Residents) Capital Investment Entrant Scheme Application for a Statement of Travel Records Other post-entry applications except extension of stay under the purview of Quality Migrant and Mainland Residents Section Application for Entry Visa under the purview of Quality Migrant and Mainland Residents Section Innovation and Research and Development Cash Rebate Scheme Technology Application for Patent Application Grant Commission 6138 LEGISLATIVE COUNCIL ─ 2 March 2016
Public Services that do not Accept Online Applications at B/Ds the Present Stage Labour and Welfare Application for the Adult Education Subvention Scheme Bureau Application for "Registration Card for People with Disabilities" Labour Department Handling of claims filed at Minor Employment Claims Adjudication Board Handling of labour disputes and employment claims Registration of trade unions Land Registry Lodgement of instruments for registration e-Alert Service Application for Owner's Properties Information Check Office for Film, Applications under the Registration of Local Newspapers Newspaper and Ordinance Article Administration Office of the Application for Authorization to carry on Long Term Commissioner of Business Insurance Application for Authorization to carry on Reinsurance Business Form IA-IB1 Statement of Personal Information in relation to an Insurance Broker Form IA-IB3 Application for Authorization of Insurance Broker Form IA-IB5 Application for Registration of Chief Executives of Insurance Brokers Form IA-IB6 Application for Registration of Technical Representatives of Insurance Brokers Application for Authorization to carry on General Business Application for Authorization to carry on General Business as a Captive Insurer Office of the Application for Various Licences under the Broadcasting Communications Ordinance Authority Application for Renewal of Various Licences under the Broadcasting Ordinance LEGISLATIVE COUNCIL ─ 2 March 2016 6139
Public Services that do not Accept Online Applications at B/Ds the Present Stage Application for a Licence to Establish and Maintain in Hong Kong a Broadcasting Service under Part IIIA of the Telecommunications Ordinance Post Office e-Cert services for e-Cert (Organizational/Encipherment/Server) Security Bureau Application in relation to security company licence and (Security and security personnel permit Guarding Services Industry Authority) Trade and Industry Application for Certificate of Origin Form A Department Application for Statutory Declaration for Export of Antiques SME Export Marketing Fund ― Application Submission Import Licence (Ozone Depleting Substances) Export Licence (Ozone Depleting Substances) Import and Export Licence Form (for Transhipment of Ozone Depleting Substances) Application for registration as a Rough Diamond Trader and Registration for Rough Diamonds Transhipment Exemption Application for Renewal of Registration as a Rough Diamond Trader Registration under the Ozone Layer Protection Ordinance Application for New Registration (Transhipment Cargo Exemption Scheme) Application for Renewal of Registration (Transhipment Cargo Exemption Scheme) Hong Kong Service Supplier Certification Scheme Local Subcontracting Arrangement (LSA) Registration Outward Processing Arrangement (OPA) Registration Textiles Trader Registration Powdered Formula Licensing Service 6140 LEGISLATIVE COUNCIL ─ 2 March 2016
Public Services that do not Accept Online Applications at B/Ds the Present Stage Registration as Local Importers of Mainland Cereals and Grain Flour Registration as Hong Kong Registered Wine Exporters Import/Export Licence for Rice Approval as a Rice storage place Registration as a Stockholder of Rice Transport and Application for opening/terminating online user accounts Housing Bureau with the Sales of First-hand Residential Properties Electronic Platform by vendors Notice of appeal in writing under section 31 of the Estate Agents Ordinance (Cap. 511) Working Family and Application for Pre-primary Education Voucher Scheme Student Financial Application Assistance Agency Application for Financial Assistance Scheme for Post-secondary Students(1) Application for tuition fee reimbursement under Diploma Yi Jin(1) Application for tuition fee reimbursement under Financial Assistance Scheme for Designated Evening Adult Education Courses(1) Household application for student financial assistance schemes (pre-primary, primary and secondary students) Application for Non-means-tested Loan Scheme for Post-secondary Students Application for Extended Non-means-tested Loan Scheme Application for the Continuing Education Fund
Notes:
* Including applications by email or mobile devices, and so on.
(1) Applications are submitted through institutions.
LEGISLATIVE COUNCIL ─ 2 March 2016 6141
Support for Property Owners in Carrying out Building Maintenance Works
10. MR IP KWOK-HIM (in Chinese): President, at present, there are about 6 000 buildings aged 50 years or above across the territory, and such figure is increasing by 580 each year. To assist property owners in arranging building maintenance works properly and to combat tender rigging, the Home Affairs Department (HAD) launched in collaboration with relevant professional bodies the "AP Easy" Building Maintenance Advisory Service Scheme (AP Easy Scheme) in April 2014 to offer in-depth, comprehensive and tailor-made professional advisory service free of charge to owners' corporations (OCs) in respect of building maintenance works. However, quite a number of property owners and OCs have relayed to me that the support given to them is still inadequate. On the other hand, the Urban Renewal Authority (URA) will launch the "Building Rehabilitation Facilitating Services (Pilot Scheme)" (Pilot Scheme) in April or May this year to provide technical assistance for OCs of private residential buildings to minimize their potential exposure to tender rigging in the process of carrying out maintenance works for their buildings. In this connection, will the Government inform this Council:
(1) of the details of the various support (including legal advice) and subsidies currently available to OCs in respect of matters concerning building maintenance works;
(2) whether it has assessed the effectiveness of the AP Easy Scheme since its inception; given that applications for this Scheme closed in September last year and the Scheme will conclude by the end of March this year, whether HAD will launch a new and standing scheme to provide advisory services in respect of building maintenance works; if not, of the reasons for that;
(3) given that only property owners of buildings aged 30 years or above with relatively low rateable values are eligible for applying for the Pilot Scheme to be launched by URA, whether the Government will request URA to relax this eligibility threshold so that property owners of middle-class housing estates may also benefit from this Scheme; if not, of the reasons for that; and
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(4) given that the responsibilities of the District Building Management Liaison Teams set up by the authorities in various districts include providing support services for property owners and OCs, as well as assisting various government departments in their work regarding building maintenance, but relevant legal knowledge is needed for handling such work, whether the staff of the liaison teams have received the relevant legal training; if not, of the reasons for that?
SECRETARY FOR HOME AFFAIRS (in Chinese): President,
(1) It is the responsibility of owners to manage and properly maintain their buildings. As building maintenance involves complicated professional knowledge, government departments concerned and related agencies have all along endeavoured to assist owners, through multi-pronged approach including the provision of support services and public education, to carry out building maintenance works.
On the provision of support services, according to information provided by the Development Bureau, the Buildings Department (BD), the Urban Renewal Authority (URA) and the Hong Kong Housing Society (HKHS) currently run a number of financial and technical assistance schemes to help owners with different needs to maintain and repair their properties. These include:
(i) the Integrated Building Maintenance Assistance Scheme implemented by the URA;
(ii) the Building Maintenance Grant Scheme for Elderly Owners, funded by the Government and run by the HKHS to meet the needs of the elderly owners; and
(iii) the Building Safety Loan Scheme provided by the BD, which offers low-interest loans for voluntary or mandatory building and slope repairs, fire services, lifts, electrical installations and gas risers maintenance and upgrades, and removal of unauthorized building works.
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Details of the above schemes are set out at the Annex.
To assist owners to fulfil their responsibilities of building management and to arrange maintenance works properly, the Home Affairs Department (HAD) will refer owners' corporation (OC) in need to participate in the above-mentioned financial and technical support schemes. The HAD also actively provides other support services to owners, such as:
(i) to launch the Building Management Professional Advisory Service Scheme (BMPASS) since 2011 to tackle the problems of lacking management and organization of owners of "three-nil" buildings (that is, buildings without OC or any form of owners/residents organization or management company). Professional property management companies (PMCs) are engaged to provide one-stop building management advisory services to targeted buildings so as to help organize owners to improve building management. Among the others, the scope of services of the BMPASS include preparation of management audit reports by the PMC for the fire services, electrical installation and other common facilities of the targeted buildings, provision of assistance to owners in forming OCs and applying for various maintenance subsidies, and assistance for following-up with maintenance works and tendering matters, and so on;
(ii) to implement the "AP Easy" Building Maintenance Advisory Service Pilot Scheme ("AP Easy" Pilot Scheme), in collaboration with the Hong Kong Institute of Surveyors, the Hong Kong Institution of Engineers and the Hong Kong Institute of Architects, to assist OCs to appoint works consultants (please see part (2) below for details);
(iii) if necessary, to refer OCs and owners to participate in the Free Legal Advice Service on Building Management launched by the HAD in collaboration with the Law Society of Hong Kong, where legal advice is offered by voluntary lawyers free of charge; and
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(iv) when disputes arise, to refer OCs and owners to participate in the dedicated Panel of Advisor on Building Management Disputes set up by the HAD to receive neutral and professional advice provided by professionals. If both parties agreed, they can also participate in the Free Mediation Service Pilot Scheme for Building Management, run by the HAD in collaboration with the Hong Kong Mediation Council and the Hong Kong Mediation Centre. Free mediation service will be provided by accredited mediators to assist the parties to resolve disputes.
In addition, the HAD has been working closely with relevant government departments, agencies and professional institutes to strengthen public education and publicity, provide information on the procedures for building maintenance, anti-corruption and anti-crime, and so on, to OCs and owners in order to protect owners' interest, and encourage owners to actively participate in OC general meetings and building maintenance works.
(2) "AP Easy" Pilot Scheme was launched in April 2014. Members of the three professional institutes participated in the scheme formed expert teams to offer tailor-made professional advice to OCs on a voluntary basis, including explaining the role and responsibility of works consultant, tender process, how to draft tender/contract document and analyse quotation, and so on, to help OCs to choose an appropriate works consultant in order to reduce the risk of bid-rigging.
The HAD has received a total of 116 applications since the launch of the "AP Easy" Pilot Scheme, among which 73 OCs were eligible(1). As at February 2016, we have already arranged over 100 interviews between the expert teams and OCs. Majority of the OCs participated in the "AP Easy" Pilot Scheme were satisfied with the reference materials and templates provided, professional advice
(1) OCs and their buildings must meet the prescribed criteria, including residential or composite (commercial/residential) buildings aged 20 years or above; the annual average rateable value of the residential units does not exceed $300,000; no PMC has been engaged; and the proposed maintenance works have not received subsidies from the "Operation Building Bright" or the "Common Area Repair Works Subsidy" and/or the "Common Area Repair Works Interest-free Loan" under the "Integrated Building Maintenance Assistance Scheme". The majority (96%) of the eligible OCs come from buildings aged 30 years or above. LEGISLATIVE COUNCIL ─ 2 March 2016 6145
offered by the expert teams and meeting arrangements, and so on. Relevant profession institutes also make positive feedback on the scheme.
"AP Easy" is only a pilot scheme. As the URA will launch the Building Rehabilitation Facilitating Services Pilot Scheme (Building Rehabilitation Pilot Scheme) in the second quarter of this year (please see part (3) below for details), the "AP Easy" Pilot Scheme will not be extended upon its conclusion in end March, by which all cases are expected to be satisfactorily completed.
(3) According to the Development Bureau, the URA will launch the Building Rehabilitation Pilot Scheme in the second quarter of this year to enhance technical support for owners to carry out building repair and maintenance works, including provision of guidelines and contract samples, arranging professionals to provide independent advice, establishing an electronic tendering platform, and so on, to help reduce the risk of bid-rigging.
Private residential buildings aged 30 years or above with an average rateable value of residential unit not exceeding $300,000 p.a. (urban areas) or $160,000 p.a. (New Territories) are eligible to apply to join the Pilot Scheme. According to the information provided by the URA, there are about 19 000 buildings meeting the above criteria, accounting for about 90% of all private residential buildings of that age range in Hong Kong and covering many large scale private housing developments. The URA will review the scheme in 12 to 18 months' time and will actively consider extending the services to more buildings if the results of the Pilot Scheme are satisfactory.
(4) To equip Liaison Officers (LOs) with the professional knowledge for discharging their building management duties more effectively, the HAD proactively provides training programmes and briefing sessions for them on a regular and need basis. These include induction courses on building management for all newly-recruited LOs, and workshops and talks on the provisions of the Building Management Ordinance (Cap. 344) (BMO) and judgments made by the Court. In addition, tertiary institutes are engaged to provide tailor-made training courses for LOs responsible for building management duties, with course content focusing on legal issues related to multi-storey building management. 6146 LEGISLATIVE COUNCIL ─ 2 March 2016
Furthermore, there is a legal adviser in the HAD to provide training on the BMO and related court cases for LOs tasked with building management duties, and provide legal support to front-line LOs when necessary.
Nevertheless, LOs are not legal professionals and should not render legal advice to OCs and owners. If necessary, OCs and owners should seek advice from legal professionals, or take part in the Free Legal Advice Service on Building Management as mentioned in part (1) above to receive free legal advisory services by voluntary lawyers.
Annex
Financial and Technical Assistance Support Schemes Provided by Buildings Department, Urban Renewal Authority and Hong Kong Housing Society
Financial Assistance for Financial Assistance for Individual Owners Owners' Corporations URA's "Integrated Building Maintenance HKHS' Assistance Scheme" "Building BD's "Building Home Maintenance OC Common Area Safety Loan Renovation Grant Scheme Formation Repair Works Scheme" Interest-free for Elderly Subsidy Subsidy Loan Owners" Private Private Domestic Private Domestic unit residential and residential and units in residential, in private composite composite private commercial, residential and buildings buildings aged residential and composite and composite 30 years or composite industrial buildings above, of height buildings aged buildings Building exceeding three 30 years or Eligibility storeys, and above, and within the within specified specified rateable value rateable value limit for the limit domestic units on average LEGISLATIVE COUNCIL ─ 2 March 2016 6147
Financial Assistance for Financial Assistance for Individual Owners Owners' Corporations URA's "Integrated Building Maintenance HKHS' Assistance Scheme" "Building BD's "Building Home Maintenance OC Common Area Safety Loan Renovation Grant Scheme Formation Repair Works Scheme" Interest-free for Elderly Subsidy Subsidy Loan Owners" Resolutions Domestic unit Funding used Owner-occupiers obtained in an solely or for building aged 60 or OC general jointly owned and slope above and meeting for by the repairs, meeting the carrying out the applicant maintenance income and rehabilitation personally; and upgrading asset criteria works by and being the works on fire joining this only property service Application Scheme in Hong Kong installations, - Requirement lift installation, electrical installation and gas risers, and removal of unauthorized building works, and so on Subsidy of General repair Interest-free Low-interest Maximum grant $3,000 for works subsidy: loan of up to loan of up to of up to $40,000 successful Maximum $50,000 per $1 million per per unit over incorporation subsidy at 20% domestic unit unit, to be five years per of an OC of approved to be repaid in repaid in up to owner works cost up to 36 months (including 36 months (interest may Offers AP/consultancy be waived fee) or $3,000* Eligible owner and/or per unit, with financial repayment whichever is the difficulty may period lower, capped at apply for grant extended up to $1.2 million per of up to 72 months OC $10,000 for eligible owners) 6148 LEGISLATIVE COUNCIL ─ 2 March 2016
Financial Assistance for Financial Assistance for Individual Owners Owners' Corporations URA's "Integrated Building Maintenance HKHS' Assistance Scheme" "Building BD's "Building Home Maintenance OC Common Area Safety Loan Renovation Grant Scheme Formation Repair Works Scheme" Interest-free for Elderly Subsidy Subsidy Loan Owners" Green item subsidy: Maximum subsidy at 20% of approved works cost or $1,500* per unit, whichever is the lower, capped at $0.6 million per OC
Eligible owner with financial difficulty may apply for grant of up to $10,000
Note:
* Buildings with less than 50 units will enjoy a higher amount of subsidy
Violent Acts Committed by Demonstrators
11. DR ELIZABETH QUAT (in Chinese): President, under Article 27 of the Basic Law, members of the public shall have freedom of assembly, freedom of demonstration, etc. Nevertheless, quite a number of people committed violent acts during demonstrations in recent years. There have been public comments that one of the factors contributing to such a situation is the overly lenient punishments imposed on people convicted for committing the aforesaid acts. As a result, those punishments lack deterrent effect and those people therefore LEGISLATIVE COUNCIL ─ 2 March 2016 6149 consider that the legal consequences for organizing and carrying out violent activities are negligible. In this connection, will the Government inform this Council:
(1) of the number of demonstrators arrested in the past five years for offences allegedly committed by them, with a breakdown by offence;
(2) among the persons mentioned in (1), of the respective numbers of those who were subsequently prosecuted and convicted (with a breakdown by the punishments imposed on them); among such cases, of the heaviest punishment imposed;
(3) of the average, longest and shortest time (from commencement of investigations to institution of prosecutions) for processing demonstration-related criminal cases in the past five years;
(4) of the number of demonstrators participating in the illegal occupation movement in 2014 arrested for offences allegedly committed by them, with a breakdown by offence;
(5) among the people mentioned in (4), of the respective numbers of those who are still under investigation at present, those who are awaiting trials and those who were convicted (with a breakdown by the punishments imposed on them); and
(6) given that more and more demonstrators committed violent acts in recent years, whether the Government will introduce legislation to increase the penalties for related offences, so as to enhance the deterrent effect; if it will, of the details; if not, the reasons for that?
SECRETARY FOR SECURITY (in Chinese): President, according to Article 27 of the Basic Law, Hong Kong residents shall have freedom of assembly, of procession and of demonstration, and so on. It is the established policy of the Police to strike a balance between various aspects, including facilitating the smooth conduct of lawful and peaceful public order events, 6150 LEGISLATIVE COUNCIL ─ 2 March 2016 minimizing the impact of such events on members of the public and road users, as well as ensuring public safety and public order, and so on. When expressing their opinion, participants of public order events must abide by the law, act in a peaceful and orderly manner, and refrain from any illegal or violent act. The Police have the responsibility to maintain public safety and public order and protect the lives and property of the public. If there is any illegal act, violent act or act that is detrimental to public safety and public order, the Police will not tolerate such act and will definitely enforce the law resolutely.
Hong Kong upholds the rule of law and judicial independence. Under our criminal justice system, the Police are responsible for law enforcement; the Department of Justice (DoJ) is responsible for prosecution; and the Court is responsible for conducting trials and giving verdicts. We respect the rulings of the Court. If the DoJ considers that it is necessary to lodge appeal in respect of a specific case, it will be handled in accordance with established mechanism and procedures. In the past, there were persons sentenced to imprisonment by the Court for committing criminal offences during public order events.
The Government's reply to Dr Elizabeth QUAT's question is as follows:
(1), (2), (4) and (5)
The numbers of persons arrested and prosecuted for alleged illegal acts related to public order events from 2011 to 2015 are at Annex.
During the illegal Occupy movement in 2014, 955 persons were arrested by the Police for various alleged offences, and another 48 persons were arrested after the illegal occupation incident. As at 31 January this year, a total of 216 persons have undergone, are undergoing or will undergo judicial proceedings. Amongst them, 182 persons have gone through the judicial process and 116 of them have to bear legal consequences, including 74 who were convicted and 42 who were bound over upon conclusion of court proceedings. The convictions include unlawful assembly, possession of offensive weapon, common assault, assaulting police officer, theft, indecent assault, criminal intimidation and possession of dangerous drugs, LEGISLATIVE COUNCIL ─ 2 March 2016 6151
and so on. The HKSAR Government will continue to follow up on relevant cases for pursuit of offenders' legal responsibility during the illegal Occupy movement.
Generally speaking, the Police do not maintain statistics of persons convicted for illegal acts related to public order events. However, since the illegal Occupy movement seriously upset the rule of law, public safety and social order of Hong Kong, the Police have specifically kept conviction figures relating to the illegal occupation incident.
The Police do not maintain statistics of court sentences for cases involving public order events.
(3) The time required to process a criminal case from commencement of investigation to institution of prosecution depends on a number of factors, including the nature and complexity of the case, evidence to be handled, duration for seeking legal advice and whether further follow-up is necessary pursuant to the legal advice, and so on, making it difficult to make generalization on such processing time. In respect of criminal cases, the Police will make all efforts to collect evidence and complete investigation as soon as possible, with a view to bringing offenders to justice. The DoJ will also provide detailed and comprehensively considered legal advice to law-enforcement agencies (including the Police) as quickly as reasonably practicable. The Police do not maintain statistics of the time required for processing criminal cases.
(6) The HKSAR Government strongly condemns the violent, charging and illegal acts of radical demonstrators in public order events in recent years. The current legislation clearly states the definitions and penalties of relevant criminal offences. As a law-enforcement agency, the Police absolutely do not tolerate any illegal act and will definitely take enforcement actions in accordance with the law. The HKSAR Government currently has no plan to amend the penalties of relevant legislation.
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Annex
Figures on arrest and prosecution in relation to public order events from 2011 to 2015
2011 2012 2013 2014 2015 Number of 6 878 7 529 6 166 6 818 6 029 public order events Number of 15 22 30 89 44 public order events resulting in prosecutions Number of 444 60 84 1 726 149 persons arrested for alleged illegal acts related to public order events in the respective year Number of 55 35 43 262 70 persons prosecuted for alleged illegal acts related to public order events in the respective year LEGISLATIVE COUNCIL ─ 2 March 2016 6153
2011 2012 2013 2014 2015 Offences Unlawful Unlawful Unlawful Unlawful Unlawful prosecuted assembly, assembly, assembly, assembly, assembly, unauthorized common common obstruction fighting in assembly, assault, assault, in public public common assaulting criminal place, place, assault, police damage, possession common assaulting officer, and so on of offensive assault, police criminal weapon, assaulting officer, and damage, common police so on and so on assault, officer, and assaulting so on police officer, and so on
Public Healthcare Planning for Coming Decade
12. DR LEUNG KA-LAU (in Chinese): President, the Chief Executive has mentioned in this year's Policy Address that the number of undergraduate places in the medicine discipline will be increased by 50 in the 2016-2017 to 2018-2019 triennium, and a public hospital development plan will be launched in the coming decade to add some 5 000 public hospital beds and over 90 operating theatres. Regarding public healthcare planning for the coming decade, will the Government inform this Council:
(1) whether it knows the completion dates of the projects, to be launched in the coming decade, to construct, expand and redevelop public hospitals, as well as the respective numbers of additional hospital beds and operating theatres to be provided upon completion of each project (set out such information by hospital cluster (cluster));
(2) whether it knows (i) the population, (ii) the number of general hospital beds, (iii) the number of general hospital beds per 1 000 population involved in the catchment area of each cluster and the overall services provided by the Hospital Authority (HA), in 2016 6154 LEGISLATIVE COUNCIL ─ 2 March 2016
and in 2026 as anticipated, as well as the anticipated percentage changes in such numbers for the ten-year period (provide such information in the table below);
2016 2026 Cluster/HA (i) (ii) (iii) (i) (ii) (iii) (no.) (no.) (no.) (no.) (no.) (no.) Hong Kong East Cluster (+/-%) (+/-%) (+/-%) Hong Kong West Cluster … HA
(3) whether it knows, after excluding territory-wide services, (i) the number of general hospital beds and (ii) the number of such hospital beds per 1 000 population in each cluster, in 2016 and in 2026 as anticipated, for serving the population of its catchment area, as well as the anticipated percentage changes in such numbers for the ten-year period (provide such information in the table below);
2016 2026 Cluster (i) (ii) (i) (ii) (no.) (no.) (no.) (no.) Hong Kong East Cluster (+/-%) (+/-%) Hong Kong West Cluster …
(4) whether it will allocate additional resources to HA for employing, starting from 2022, the newly-increased 50 medical graduates each year;
(5) as the Secretary for Financial Services and the Treasury has indicated that structural fiscal deficit would still emerge in future even if the Government only maintains the public services at the existing levels, whether the aforesaid two measures of increasing the numbers of undergraduate places in the medicine discipline and public hospital beds are for maintaining the existing levels of healthcare services or for raising the levels of such services; if the latter is the case, whether the Government will, in respect of these two measures, correspondingly allocate additional resources to HA; and
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(6) whether it has comprehensively assessed the impacts to be brought about by the additional 50 medical graduates in each year, including (i) the manpower turnover in the public and private healthcare sectors, (ii) the per capita utilization rate of healthcare services, (iii) the per capita healthcare expenditure, and (iv) the public, private and overall healthcare expenditure?
SECRETARY FOR FOOD AND HEALTH (in Chinese): President, my reply to the various parts of the question raised by Dr LEUNG Ka-lau relating to the future public healthcare planning is as follows:
(1) The following table sets out the information of the projects covered by the 10-year hospital development plan of the Hospital Authority (HA):
Estimated Estimated Expected number of number of date of Cluster Proposed projects additional additional completion(3) operating beds(2) Year theatres(2) Redevelopment of Grantham - 3 2023 Hong Hospital, phase 1 Kong Redevelopment of Queen Mary West Hospital (Phase 1) ― main - 14 2024 works Sub-total of the Hong Kong West Cluster - 17 - Redevelopment of Our Lady of 16 - 2022 Maryknoll Hospital New Acute Hospital (NAH) at New Kai Tak Development Area Kowloon (Phase 1) 2 400 37 2024 Central(1) NAH at Kai Tak Development Area (Phase 2) Redevelopment of Kwong Wah 350 10 2025 Hospital ― main works Sub-total of the New Kowloon Central 2 766 47 - Cluster 6156 LEGISLATIVE COUNCIL ─ 2 March 2016
Estimated Estimated Expected number of number of date of Cluster Proposed projects additional additional completion(3) operating beds(2) Year theatres(2) Expansion of Haven of Hope 160 - 2021 Hospital Kowloon Expansion of United Christian East Hospital ― main works 560 5 2023 (superstructure and remaining works) Sub-total of the Kowloon East Cluster 720 5 - Redevelopment of Kwai Chung - - 2018 Hospital (Phase 1) New Expansion of Lai King Building Kowloon 400 - 2022 in Princess Margaret Hospital West(1) Redevelopment of Kwai Chung 80 - 2023 Hospital (Phases 2 and 3) Sub-total of the New Kowloon West 480 - - Cluster Redevelopment of Prince of New Wales Hospital (Phase 2) 450 16 2022 Territories (stage 1) East Expansion of North District 600 - 2022 Hospital Sub-total of the New Territories East 1 050 16 - Cluster New Extension of Operating Theatre Territories - 9 2020-2021 Block for Tuen Mun Hospital West Sub-total of the New Territories West - 9 - Cluster HA's Total 5 016 94 -
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Notes:
(1) According to the recommendations of the Steering Committee on Review of HA, the Wong Tai Sin District and Mong Kok area (Kwong Wah Hospital, Wong Tai Sin Hospital and Our Lady of Maryknoll Hospital), which are originally served by Kowloon West Cluster, will be re-grouped to Kowloon Central Cluster.
(2) Actual deliverables of individual projects may be adjusted in the future subject to detailed planning and design.
(3) The expected completion dates of individual projects are preliminary plans only. The actual commencement and completion dates are subject to confirmation during the detailed planning of each project.
(2) The following tables set out the geographical population and number of hospital beds of each cluster under the HA in 2014 and the estimated geographical population and bed capacity in 2024:
Relevant Figures for 2014(1)
Geographical Number of hospital beds Cluster population in 2014(2) as at 31 March 2014 Catchment Districts (thousand persons) (general beds(3)) Hong Eastern, Wan Chai, Kong 773 2 004 Islands (excluding East Lantau Island) Hong Central and Kong 529 2 860 Western, Southern West Kowloon Kowloon City, Yau 535 3 005 Central Tsim Kowloon Kwun Tong, Sai 1 097 2 291 East Kung Mong Kok, Wong Tai Sin, Sham Shui Kowloon 1 942 5 221 Po, Kwai Tsing, West Tsuen Wan, Lantau Island New Sha Tin, Tai Po, Territories 1 267 3 477 North East New Tuen Mun, Yuen Territories 1 099 2 274 Long West
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Relevant Figures for 2024(1)
Projected Existing and planned geographical Cluster bed capacity(4) Catchment Districts population in 2024(2) (general beds(3)) (thousand persons) Hong Eastern, Wan Chai, Kong 709 2 244 Islands (excluding East Lantau Island) Hong Central and Kong 515 2 860 Western, Southern West New Kowloon City, Kowloon 1 181 5 885 Wong Tai Sin, Yau Central(5) Tsim Mong Kowloon Kwun Tong, Sai 1 222 3 108 East Kung New Sham Shui Po, Kowloon 1 407 4 113 Kwai Tsing, Tsuen West(5) Wan, Lantau Island New Sha Tin, Tai Po, Territories 1 481 4 907 North East New Tuen Mun, Yuen Territories 1 241 3 002 Long West
Notes:
(1) The latest geographical population published by the Census and Statistics Department is for 2014, and the latest population projection by the Planning Department is for 2024.
(2) The population figures are based on the mid-year population estimates by the Census and Statistics Department and the latest population projection by the Planning Department.
(3) General beds refer to acute and convalescent beds (excluding infirmary beds, beds for mentally ill and beds for mentally handicapped).
(4) Existing and planned bed capacity is an estimate based on the planning up to 2024. This includes existing beds and beds that are yet to be opened, additional beds that can be accommodated in existing hospitals through planned ward renovation, additional beds to be provided through the redevelopment and expansion projects under the 10-year hospital development plan, and additional beds to be provided through hospital development projects which have already been approved with funding commitment and are currently underway or expected to be completed by 2024. The beds in Hong Kong Children's Hospital are not included.
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(5) According to the recommendations of the Steering Committee on Review of HA, Wong Tai Sin District and Mong Kok area (Kwong Wah Hospital, Wong Tai Sin Hospital and Our Lady of Maryknoll Hospital), which are originally served by Kowloon West Cluster, will be re-grouped to Kowloon Central Cluster.
In planning for its services, the HA will take into account a number of factors, including population growth, demographic changes, advancement in medical technology, manpower provision, organization of services of the clusters and hospitals, and the service demand of local communities, and so on. Geographical population is only one of the many factors under consideration. On the other hand, patients may, according to their needs, receive treatment in hospitals other than those in the districts where they reside. Moreover, some specialized services are available only in certain hospitals, and hence certain clusters and the beds in these clusters have to provide services for patients throughout the territory. For the aforesaid reasons, the ratio of general hospital beds per 1 000 geographical population in the clusters may not truly reflect the actual service situation.
(3) The HA, having regard to the recommendations of the Steering Committee on Review of HA, is preparing a refined population-based internal resource allocation model to analyse the utilization of healthcare services of the clusters, cross-cluster flow of patients, and the need and the utilization of cluster resources. The model concerned will determine the specialist services that are provided for patients throughout the territory and the capacity of these services. Since the preparation of the model is still underway, we do not have a clear definition of "territory-wide services" at this stage, and we could not provide the relevant information when "territory-wide services" are excluded.
(4) and (5)
With an ageing population and increasing demand for healthcare services in the community, the HA will augment its manpower to meet the service needs. Implementing the 10-year hospital development plan and increasing the number of medical graduates can both help enhance the capacity and standards of public healthcare services.
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Depending on the actual operational needs and financial situation of the HA, as well as factors like the Government's overall fiscal position, the Government will provide funding for the HA to ensure that adequate public healthcare services of good quality are available to the community.
(6) Based on the preliminary results of the Strategic Review of Healthcare Manpower Planning and Professional Development, there will be a general shortage of doctors in the future. To meet the future demand for healthcare services, the Government will increase the number of degree places in medicine by 50 starting from 2016-2017 academic year. Generally speaking, students entering medical schools in 2016-2017 academic year are expected to become registered medical practitioners in 2023, and it is expected that this would help alleviate the shortage of doctors then.
The Government does not have statistics on per capita healthcare utilization rate. The HA regularly announces the turnover rates of its healthcare professionals. The Government also releases information about the per capita healthcare expenditure and the public, private and overall healthcare expenditures on a regular basis.
Environmental Impact on Hong Kong Caused by Infrastructure Projects and Environmental Regulation Plans Carried out on the Mainland
13. DR KENNETH CHAN (in Chinese): President, it has been reported that the Shenzhen Municipal Government conducted a chemical decontamination test at the estuary of Dasha River adjacent to Shenzhen Bay (known as Deep Bay in Hong Kong) at the end of January this year. Some experts have pointed out that if such chemical decontamination method is widely adopted at Deep Bay, there may be an impact on the water quality in the vicinity of Deep Bay and Lau Fau Shan in Hong Kong waters. It has also been reported that the Zhuhai Municipal Government has granted permission for a power company to construct a wind farm in Zhuhai waters about 10 kilometres west of Lantau Island. Some conservation groups have pointed out that the noise to be generated by the wind farm upon commissioning may have an impact on the ecological environment of Hong Kong waters off Lantau Island, including the habitat of Chinese white dolphins. In this connection, will the Government inform this Council:
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(1) whether the Government knew beforehand that the Shenzhen Municipal Government would conduct the aforesaid chemical decontamination test; if so, of the channels through which the authorities learnt about this and the measures in place to address the possible impact of the test on the water quality in Hong Kong waters; if not, the reasons for that;
(2) whether it has received any notification from the Zhuhai Municipal Government or other mainland authorities concerning the aforesaid wind farm project, and whether it has discussed the project with the mainland authorities; if it has, of the details and the authorities' follow-up actions; if not, whether the authorities will consider commencing work immediately to address the possible impact of the wind farm on the ecological environment of Hong Kong; if they will, of the details of the relevant work; if not, the reasons for that;
(3) whether there is now in place a notification and co-operation mechanism on environmental issues established by the Governments of Guangdong and Hong Kong; if not, whether such a mechanism will be established expeditiously; if there is, whether it has assessed the effectiveness of the mechanism in the light of the aforesaid incidents; if it has assessed and the outcome is in the affirmative, of the justifications for that; if has assessed and the outcome is in the negative, whether the Government will immediately improve the mechanism concerned; if it will, of the details of the relevant work; if not, the reasons for that;
(4) whether it will consider taking the initiative to seek information from the governments of nearby cities in Guangdong Province on the major infrastructure projects and environmental regulation plans which they will implement, so as to determine at an early stage the environmental impact of such projects and plans on Hong Kong and take corresponding measures; if it will, of the specific arrangements; if not, the reasons for that; and
(5) whether it will assist members of the public and green groups in Hong Kong in expressing their concerns to the relevant mainland authorities over various kinds of cross-boundary environmental protection issues; if it will, of the relevant specific arrangements; if not, the reasons for that?
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SECRETARY FOR THE ENVIRONMENT (in Chinese): President, our response to the question raised by Dr Kenneth CHAN is as follows:
(1) In early February this year, the Environmental Protection Department (EPD) enquired with the Human Settlements and Environment Commission of Shenzhen Municipality (SZHSEC) about press reports regarding the trial disposal of chemicals by the Shenzhen side at the mouth of Dasha River in Shenzhen Bay. The SZHSEC advised the EPD that the Shenzhen Municipal Water Affairs Bureau had allowed a research institute to carry out a trial for in-situ treatment of sediments at the mouth of Dasha River of Shenzhen Bay, with a view to resolving the problem of black and odorous sediments thereat. The treatment made use of a composite reagent comprising mainly nitrate supplemented by lime and calcium peroxide. The trial was confined to a small area of around 1 000 sq m. Given also the dilution and buffer capacity of seawater and that the composite reagent would be converted into calcium (needed by living organisms) and other non-toxic substances, the Shenzhen authorities considered that the trial would not have any adverse impact on the water quality of Deep Bay. The relevant authorities of Shenzhen have drawn up surveillance and evaluation plans to regularly monitor the quality of the sediments and surrounding water. The SZHSEC, in particular, conducted an additional on-site sampling at the mouth of Dasha River as well as on both sides of the river mouth on 4 February 2016. The monitoring results indicated that all relevant water quality parameters were at normal levels and there was no abnormality. The SZHSEC stated that they would closely monitor any changes in water quality to protect the water body.
Reagent has been used to treat contaminated sediments worldwide for many years. In Hong Kong, nitrate was used for the treatment of contaminated sediments at the Shing Mun River, Sam Ka Tsuen Typhoon Shelter and Kai Tak Approach Channel, and was effective in reducing the odour nuisance. Having noted the incident, the EPD also collected marine water samples from the five routine monitoring stations at Deep Bay on 3 February 2016 to monitor any changes in water quality, and conducted a routine monthly LEGISLATIVE COUNCIL ─ 2 March 2016 6163
monitoring on 18 February 2016. The monitoring results indicated that all relevant water quality parameters were at normal levels and there was no abnormality. The EPD will continue to closely monitor any changes in the water quality of Deep Bay. The Agriculture, Fisheries and Conservation Department (AFCD) also conducted site inspections at the Mai Po Inner Deep Bay Ramsar Site on 15 February 2016. No abnormality in the ecology of the Inner Deep Bay wetlands was observed. The AFCD will continue to closely monitor the situation of the wetlands and the culture environment of the oyster beds at Deep Bay.
The Shenzhen Municipal Water Affairs Bureau has also indicated to the EPD that, if there is a need to embark on sediment treatment on a larger scale, they would liaise with relevant authorities of Hong Kong when developing the relevant schemes. The EPD will continue to liaise and follow up with the Shenzhen authorities on environmental matters of mutual concern under the Hong Kong-Shenzhen Environmental Co-operation Forum (HSECF).
(2) Regarding the offshore wind farm project located at Guishan of Mainland waters, there was no discussion or notification between governments of the two sides over this project. The wind farm is 8 km away from the boundary of the waters of the Hong Kong Special Administrative Region, and the chance of the wind farm affecting the ecological environment of Hong Kong waters is thus very slim. It is unlikely that this project would affect the Chinese white dolphin habitats within Hong Kong waters.
(3) Guangdong and Hong Kong have established various mechanisms to foster co-operation and exchanges on environmental protection. To enhance and safeguard regional environmental quality, the EPD and the Environmental Protection Department of Guangdong Province (GDEPD) set up the Hong Kong-Guangdong Joint Working Group on Sustainable Development and Environmental Protection (JWGSDEP) in 2000, with several special panels under the JWGSDEP to follow up on environmental matters of mutual concern to relevant authorities of both places.
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Meanwhile, the HSECF was set up by the EPD and SZHSEC in 2007 to foster co-operation and exchange of views on environmental matters of mutual concern.
In addition, the EPD set up the Shenzhen-Hong Kong Emergency Environmental Incident Notification Mechanism with the SZHSEC in 2008 and the Guangdong-Hong Kong Emergency or Significant Environmental Incident Notification Mechanism with the GDEPD in 2014, allowing one side to notify the other of any emergency or significant environmental incidents that may bring about potential environmental impact. The two mechanisms enable timely information sharing and effective responses to safeguard the living conditions of both places and protect the ecological environment.
The co-operation mechanisms between Hong Kong and Guangdong/Shenzhen on environmental matters have been operating smoothly and good progress has been achieved in various areas of collaboration.
(4) Geographically, Hong Kong and Shenzhen are adjacent to each other. Environmental collaboration between the two places is very important to the prevention of regional pollution and improvement of living environment. Through the HSECF, Shenzhen and Hong Kong will maintain liaison and follow up on environmental matters of mutual concern under the "One Country, Two Systems" Principle. Under the JWGSDEP, Guangdong and Hong Kong will also continue to enhance information sharing on the planning and environmental assessment for major projects that may affect the environmental quality of the two places.
(5) The EPD always takes heed of the views and concerns expressed by the public and green groups on various cross-boundary environmental matters. Where appropriate, the EPD will communicate with the Mainland environmental authorities through the above-mentioned platforms on cross-boundary environmental collaboration to protect the environment of Hong Kong.
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Provision of Public Hospital Beds
14. DR KWOK KA-KI (in Chinese): President, the Chief Executive has stated in this year's Policy Address that a hospital development plan will be launched in the coming decade (i.e. from this year to 2026) for the increase of some 5 000 public hospital beds and over 90 operating theatres. On the other hand, according to the Planning Department's Hong Kong Planning Standards and Guidelines (HKPSG), which was revised in October last year, a provision of 5.5 beds (including various types of hospital beds both in public and private sectors) per 1 000 persons should be the aim of long-term planning (standard for the provision of hospital beds). However, according to government information, the number of general beds per 1 000 geographical population of catchment districts by various hospital clusters in 2021 will be 3.1 only. In this connection, will the Government inform this Council:
(1) whether the authorities have adhered to the standard for the provision of hospital beds specified in HKPSG when planning for the provision of various types of hospital beds in public and private sectors in the coming decade;
(2) whether the authorities have determined the number of additional public hospital beds (i.e. some 5 000) to be provided in the coming decade according to a certain ratio of beds to population; if so, of such a ratio; if not, of the criteria adopted by the authorities for determining the number of hospital beds;
(3) given that the Chief Executive of the Hospital Authority (HA) indicated in May 2014 that HA needed to provide an extra 8 800 public hospital beds by 2031 to meet the additional demand for healthcare arising from the ageing population, and that there will still be a lack of about 3 800 beds by 2026 even if the aforesaid hospital development plan to increase some 5 000 additional public hospital beds is successfully implemented, of the means to be employed by the authorities to make up that shortfall during the five-year period between 2026 and 2031; and
(4) whether the authorities have simultaneously planned for the allocation of additional resources to HA for recruiting extra healthcare staff when planning for the provision of some 5 000 additional public hospital beds? 6166 LEGISLATIVE COUNCIL ─ 2 March 2016
SECRETARY FOR FOOD AND HEALTH (in Chinese): President, to cater for the growing healthcare demand arising from ageing population and to improve existing services, the Government has worked with the Hospital Authority (HA) to devise a 10-year hospital development plan. The Government will provide resources to support the plan and use $200 billion to implement various hospital projects under it in the next 10 years.
In the course of planning hospital services, healthcare manpower and hospital beds, the HA has taken into account a number of factors including the projected demand for healthcare services having regard to population growth and demographic changes in the district, possible changes in healthcare service utilization pattern, organization of services of the clusters and hospitals, as well as cross-cluster utilization of services, and so on. Since the population of the catchment districts among hospital clusters differs and the needs for public healthcare as reflected by the demographic characteristics and economic status of the population in each cluster are also different, the level and scope of services, facilities and expertise available in individual clusters vary.
The HA will continue to regularly monitor and review the utilization rate and demand trend of each healthcare service so as to project the demand for various healthcare services and plan for the provision of services. The HA will also continue enhancing the service capacity, undertaking hospital development projects and implementing other suitable measures to ensure that public healthcare services can meet the public needs.
My reply to the various parts of the question raised by Dr KWOK Ka-ki is as follows:
(1) and (2)
Chapter 3 of the Hong Kong Planning Standards and Guidelines (HKPSG), entitled "Community Facilities", stipulates the standards of provision for medical and health facilities. In general, healthcare services are provided on regional basis. For all types of hospital beds in public and private hospitals, the long-term planning target is to provide 5.5 beds per 1 000 persons. This ratio can be applied with flexibility to meet the needs of different districts in a region.
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The HA will take into account various factors when planning and developing the public healthcare services and facilities. Such factors include the healthcare services estimates based on population growth and demographic change, distribution of service target groups, mode of healthcare services delivery, growth of services of individual specialties, supply of healthcare services in the district concerned, and so on. Taking into account the above factors and based on the estimated demand of each district, the HA is planning a number of development projects, which involve the expansion of existing hospitals and the construction of new hospitals, with a view to enhancing in-patient, ambulatory care and various out-patient services. Such projects include, among others, those projects under the 10-year hospital development plan mentioned in the Policy Address this year.
Moreover, to facilitate private hospital development, the Government awarded a site at Wong Chuk Hang through open tender in March 2013 for developing a new private hospital. The new hospital is expected to come into service in 2017. The Government will also provide a loan of $4 billion for The Chinese University of Hong Kong for developing a non-profit-making private hospital.
Apart from taking reference of the long-term planning targets set out in the HKPSG, the HA also considers various factors, such as the demand for healthcare services in each district, the conditions of current facilities and the space available for development in different hospitals, and so on, when planning the development of public hospitals and the number of beds to be added. Having regard to the advancement in medical technology, population ageing and increased prevalence in chronic diseases, the HA is proactively promoting ambulatory services to meet the needs of patients. For example, with the use of minimally invasive technology, patients do not need to be hospitalized after receiving complex surgeries in ambulatory settings. Elderly patients and patients with chronic diseases may also receive rehabilitation services and one-stop treatment in such settings. As the services provided by public hospitals become more diversified, the HA does not focus only on in-patient service (including the number of beds) in its service planning, but also makes plans for other healthcare services, such as the ambulatory services. 6168 LEGISLATIVE COUNCIL ─ 2 March 2016
(3) In addition to the implementation of projects under the 10-year hospital development plan, the HA is also formulating longer-term strategies to expand and modernize hospital services with a view to meeting long-term healthcare needs of the community. For instance, in anticipation of significant growth in demand for healthcare services in the New Territories region as a result of the rapid population growth and ageing in the Tuen Mun and Yuen Long districts, the HA intends to expand the capacity of the new Tin Shui Wai Hospital in the long run by using its adjoining or adjacent sites. In addition, as it is estimated that around 40% of the future population in Tuen Mun and Yuen Long will live in the Hung Shui Kiu New Development Area, a site has been reserved for the construction of a new hospital to complement the acute services of the Tin Shui Wai Hospital.
For the Hong Kong Island, the HA intends to expand the Pamela Youde Nethersole Eastern Hospital by using the current Chai Wan Laundry site upon its relocation to the proposed Supporting Services Centre in Tin Shui Wai. We also intend to reserve the adjoining site of the North Lantau Hospital for future expansion of the hospital. As for the Kowloon region, we intend to further expand Tseung Kwan O Hospital, redevelop the Queen Elizabeth Hospital, and redevelop and expand Princess Margaret Hospital in order to address the long-term demand for hospital services in the region.
The HA will continue to regularly monitor and review the demand and supply of healthcare services in various districts and make timely planning for relevant projects to meet long-term healthcare demand.
(4) To complement the implementation of the 10-year hospital development plan, the HA will closely monitor the healthcare manpower to cope with new services. On the financial commitment to public healthcare services, the Government will continue to allocate resources to meet the growing demand for such services.
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Free Admission to Permanent Exhibitions of Public Museums
15. MR FREDERICK FUNG (in Chinese): President, in this year's policy address, the Chief Executive announced that "[t]he month-long free museum admission under the 'Appreciate Hong Kong' Campaign has been well received by the public. The Government has decided to make free admission to the permanent exhibitions of designated LCSD [Leisure and Cultural Services Department] museums a standing practice". However, all of the interactive devices and exhibits at the Hong Kong Science Museum were damaged during the aforesaid free admission period. LCSD therefore plans to offer free admission only to full-time students but to charge other visitors a certain amount of fees for admission to the permanent exhibitions of the Hong Kong Science Museum and the Hong Kong Space Museum in future. Some members of the public consider this practice is tantamount to depriving the financially less capable people of their right to enjoy museum services. In this connection, will the Government inform this Council:
(1) of the details of the damage caused to the interactive devices and exhibits at the Hong Kong Science Museum during the free admission period, and whether the causes of the damage included normal wear and tear of such facilities being accelerated by a significant increase in the number of users; if so, whether it has assessed if the damage simply reflects the popularity of the interactive devices and exhibits, which have achieved the effect of enabling users to gain the relevant knowledge through interactive experiences;
(2) whether LCSD will consider enhancing the maintenance and repair of the various kinds of interactive devices and exhibits at its museums, so as to increase the sturdiness of those facilities to cater for the arrangement of offering free admission to the relevant museums, instead of excluding the financially less capable people; if LCSD will not, of the reasons for that; and
(3) as both the Hong Kong Science Museum and the Hong Kong Space Museum are entrusted with the mission of promoting scientific knowledge among the general public, whether LCSD will abolish its plan of not offering free admission to the permanent exhibitions of those museums to people other than full-time students; if not, 6170 LEGISLATIVE COUNCIL ─ 2 March 2016
whether LCSD will consider maintaining the current practice of offering free admission to those museums every Wednesday; if not, of the reasons for that?
SECRETARY FOR HOME AFFAIRS (in Chinese): President, to further promote culture and art as well as knowledge and experience in history and science, and to encourage more visits to the museums for building a wider audience base, the Chief Executive has announced in his Policy Address this year the decision of making free admission to the permanent exhibitions of designated museums of the Leisure and Cultural Services Department (LCSD) a standing practice. Under the new measure, the permanent exhibitions of five fee-charging LCSD museums (that is, the Hong Kong Museum of Art, Hong Kong Museum of History, Hong Kong Heritage Museum, Hong Kong Museum of Coastal Defence and Dr Sun Yat-sen Museum) will open free to the public, whereas the permanent exhibitions of the Hong Kong Science Museum (HKScM) and Hong Kong Space Museum (HKSpM) will offer free admission to full-time students. My reply to Mr Frederick FUNG's question is as follows:
(1) The month-long free admission offered by all fee-charging LCSD museums under the "Appreciate Hong Kong" Campaign in January 2016 was well received by the public. The HKScM recorded in January an attendance of over 126 000 visitors which showed an increase of more than one-fold as compared to the attendance during the same period last year (that is, the normal fee-charging period), attaining the largest increase of attendance among all fee-charging museums. However, the damage rate of interactive exhibits in the HKScM also doubled at the same time. In fact, according to the operating experience of local and overseas museums, interactive exhibits will become more vulnerable to damage under frequent use. Therefore, the damage rate will generally increase following a higher attendance. Given the larger number of interactive exhibits in the HKScM and the HKSpM, the Government had to carefully take into account their limits in terms of capacity and number of visitors when planning to make free admission to the permanent exhibitions of these museums a standing practice, with a view to keeping exhibits in good condition and ensuring pleasant museum visits in a safe and comfortable environment.
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(2) and (3)
Taking into consideration the capacity of the HKScM and the HKSpM and the policy objective of enhancing the promotion of science and astronomical knowledge among students, the LCSD decided to offer free admission to the permanent exhibitions of both museums to full-time students. The current concessionary half-fare admission will continue to be offered to every senior citizen aged 60 or above as well as person with disabilities (PWD) and one accompanying minder of each PWD. The arrangement for free museum admission on Wednesdays will also be maintained, that is, everyone can visit the permanent exhibitions of museums on Wednesdays free of charge. Expecting a big rise in museum attendance upon implementation of free admission to the permanent exhibitions for full-time students, the LCSD will deploy resources in enhancing the maintenance and renewal of exhibits and advise visitors on the proper use of interactive exhibits, in a bid to provide quality museum services for the public.
Protecting Rights and Interests of Intersex Persons
16. MS EMILY LAU (in Chinese): President, some people who are concerned about the rights and interests of intersex persons (i.e. persons born with ambiguous external genitalia) have relayed to me that intersex persons have all along met with misunderstanding and discrimination because the public generally have very little knowledge about issues concerning intersex persons. In addition, intersex persons are unprotected in aspects such as law, healthcare, etc. For example, quite a number of intersex persons have undergone genital reconstructive surgery arranged by their parents to assign a sex to them when they were still in their childhood and unable to make an informed choice. In this connection, will the Executive Authorities inform this Council:
(1) whether they have established a database on intersex persons in Hong Kong, which includes the number of such persons as well as the number of cases in which such persons have undergone medical treatment and surgery, to facilitate a better understanding about their situations; if not, of the reasons for that;
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(2) whether they have made regular contacts with intersex groups to listen to the problems they have encountered and the requests they make; if so, of the details; if not, the reasons for that; whether the authorities have drawn up plans to comprehensively protect the rights and interests of intersex persons; if so, of the details; if not, the reasons for that;
(3) whether they will introduce legislation to prohibit acts of discrimination against intersex persons, and prohibit unnecessary genital reconstructive surgery on intersex persons in their childhood; if so, of the details; if not, the reasons for that;
(4) whether intersex adults who have not undergone related sex reassignment surgery may apply for changing the sex stated on their identity documents under the existing legislation; if not, whether the authorities will help those intersex adults (irrespective of whether they have undergone genital reconstructive surgery in their childhood) who wish to change the sex stated on their identity documents to make their wish come true; if so, of the details; and
(5) whether intersex adults who wish to undergo sex reassignment surgery at public hospitals are required to first go through psychological assessments for a long period of time?
SECRETARY FOR FOOD AND HEALTH (in Chinese): President, my reply to the question raised by Ms Emily LAU is as follows:
(1) Intersex people generally refer to people with ambiguous genitalia, which are caused by many different underlying conditions, such as genetic or metabolic diseases. As it is not a specific disease, the Hospital Authority (HA) does not have relevant statistics.
According to the information provided by the Security Bureau, the Immigration Department (ImmD) does not maintain statistics on intersex persons in Hong Kong.
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(2) and (3)
Under the co-ordination of the Constitutional and Mainland Affairs Bureau, the Advisory Group on Eliminating Discrimination against Sexual Minorities comprised members from the academic and business sectors, the sexual minority community and the Legislative Council. The Advisory Group submitted its report to the Government at the end of 2015. The work of the Advisory Group included a qualitative study with focus group discussions or one-to-one interviews with sexual minority participants conducted by a consultant to help ascertain whether sexual minorities are discriminated against in Hong Kong and, if so, their experience of discrimination in different domains; a desktop research on the experience in tackling discrimination on grounds of sexual orientation and gender identity in six selected jurisdictions; and listening to the views of stakeholder groups. In its report, the Advisory Group recommended strategies and measures in five areas including, inter alia, further study on the experience of legislative and non-legislative measures of other jurisdictions to inform future consultation regarding both legislative proposals and administrative measures to eliminate discrimination on grounds of sexual orientation and gender identity. In addition, the Equal Opportunities Commission also published a study report concerning the sexual minorities in January this year, which contained a recommendation to legislate against discrimination on the grounds of sexual orientation, gender identity and intersex status. The Government will study the two reports carefully and listen to the views of stakeholders in considering the way forward.
At present, the healthcare professionals of the HA will discuss with the parents of the baby with ambiguous genitalia and assess the sex and the sexual function which the baby may develop in the future. The decision will be made with the agreement of the parents of the concerned baby. The factors to be taken into consideration include diagnostic results, masculinization of external genitalia secondary to prenatal androgen exposure, response to exogenous androgen stimulation and sexual function and fertility potential.
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(4) According to the information provided by the Security Bureau, the ImmD issued administrative guidelines for considering applications to change the sex entry on Hong Kong Identity Cards (HKICs) in April 2012. The guidelines were formulated according to the advice of relevant experts in the HA and in consultation with the medical sector in Hong Kong. The guidelines provide that persons who have completed sex re-assignment surgery (SRS) may submit relevant supporting documents (including medical proof indicating the completion of SRS) following established procedures to support their applications for change of sex on their HKICs.
(5) The HA adopts a multi-disciplinary approach in providing service to patients with Gender Identity Disorder (GID), with a team comprising psychiatrists, clinical psychologists, surgeons, gynaecologists, physicians, endocrinologists, occupational therapists and medical social workers. Psychiatrists and clinical psychologists establish the diagnosis of GID (including for intersex people with gender identity problems), assess the degree of severity and work together with the professional team to provide appropriate service according to patients' specific conditions, including psychotherapy, hormonal treatment and surgery.
Easing Traffic Congestion in New Territories East
17. DR ELIZABETH QUAT (in Chinese): President, some residents of New Territories East (NTE) have relayed to me that the ancillary transport facilities in NTE are unable to meet the extra traffic demand resulting from the ever-increasing local population. Local and external traffic congestion often occurs in the district, with the situation being the most acute in Shatin, which serves as a traffic hub, and Tseung Kwan O (TKO), whose residents have to rely on the Tseung Kwan O Tunnel (TKO Tunnel) for commuting to and from the urban areas. In this connection, will the Government inform this Council:
(1) whether the authorities have plans to construct new vehicular tunnels connecting Shatin and Kowloon in order to alleviate the traffic pressure on Tate's Cairn Tunnel and Lion Rock Tunnel; if they do, of the details; if not, the reasons for that;
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(2) whether the authorities implemented traffic improvement measures in the Shatin District in the past two years, such as providing additional traffic lanes, improving road markings, adjusting the timing of traffic lights, etc., to alleviate the traffic congestion on Tate's Cairn Tunnel and Lion Rock Tunnel; if they did, of the details; if not, the reasons for that;
(3) given that the authorities have indicated that the Tseung Kwan O-Lam Tin Tunnel (TKO-LT Tunnel) is expected to be commissioned in 2020 at the earliest, of the latest anticipated date of commissioning and the estimated daily traffic volume at the initial stage of commissioning of the tunnel; whether that figure has taken into account the anticipated population growth in TKO in the coming few years; if not, of the reasons for that;
(4) given the serious traffic congestion currently occurs at TKO Tunnel during daily peak hours, whether the authorities will consider implementing temporary traffic arrangements such as tidal flow operation or introducing other traffic improvement measures in TKO Tunnel before commissioning of TKO-LT Tunnel; if they will, of the details; if not, the reasons for that; and
(5) given that some residents of Sai Kung have pointed out that the roundabout connecting Hiram's Highway, New Hiram's Highway and Nam Pin Wai Road is a traffic bottleneck during the daily peak hours and they have therefore suggested that the Government should provide additional traffic lanes or carry out road improvement works there, whether the authorities will consider adopting such suggestions; if they will, of the details; if not, the reasons for that?
SECRETARY FOR TRANSPORT AND HOUSING (in Chinese): President, my reply to various parts of Dr Elizabeth QUAT's question is as follows.
(1) and (2)
At present, there are three road tunnels and one trunk road linking Sha Tin with urban Kowloon, viz. Tate's Cairn Tunnel, Lion Rock Tunnel, Route 8 between Sha Tin and Cheung Sha Wan (including 6176 LEGISLATIVE COUNCIL ─ 2 March 2016
Sha Tin Heights Tunnel and Eagle's Nest Tunnel) and Tai Po Road. Generally speaking, the above tunnels and road are able to cope with the transport needs between Sha Tin and Kowloon, though there are congestions at Tate's Cairn Tunnel and Lion Rock Tunnel during the morning and evening peaks on weekdays, while the section of Route 8 between Sha Tin and Cheung Sha Wan still has spare capacity.
The Government has been exploring various traffic improvement measures with a view to diverting some of the traffic from Tate's Cairn Tunnel and Lion Rock Tunnel to Route 8. As a short-term measure, the Civil Engineering and Development Department (CEDD) added a lane to the approach road (near Scenery Court) leading from Tai Po Road (Sha Tin Section) to Route 8 last year to attract motorists to use Route 8 and hence improve the traffic on the approach road and adjacent areas. As a medium-term improvement measure, the CEDD is planning to widen the section of Tai Po Road (Sha Tin Section) between Sha Tin Rural Committee Road and Fo Tan Road from dual two-lane carriageway to dual three-lane carriageway so as to increase the capacity of this road section to alleviate the traffic pressure at the Tate's Cairn Tunnel and Lion Rock Tunnel. The detailed design works commenced in December 2015 and the construction works are expected to start in late 2017.
Furthermore, the CEDD plans to carry out a traffic review on the major roads in Sha Tin, including Tai Po Road (Sha Tin Section), Tate's Cairn Highway and Lion Rock Tunnel Road, and so on, to work out possible measures to address the traffic congestion problem in Sha Tin in long term.
Regarding the railways, the Shatin to Central Link (SCL) under construction will provide a non-road based public transport option for commuting between Sha Tin and the urban areas. Upon its operation commencing from 2019 in stages, we anticipate that some commuters who have been using road-based public transport will be attracted to use SCL, thus relieving the traffic pressure of the Tate's Cairn Tunnel and the Lion Rock Tunnel.
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(3) The Tseung Kwan O-Lam Tin (TKO-LT) Tunnel connects Po Shun Road and the proposed Cross Bay Link, Tseung Kwan O in the east, and the Eastern Harbour Crossing and Cha Kwo Ling Road of Kwun Tong in the west. We will strive to seek funding approval for the construction of the TKO-LT Tunnel within this legislative year with a view to commencing construction works in 2016 for completion in 2021.
When planning the TKO-LT Tunnel, the Government has already taken into account the traffic demand arising from the population growth under the planned development of Tseung Kwan O (TKO) up to 2031 which was available at that time. Assuming that the toll level of the TKO-LT Tunnel would be the same as the current toll level of the TKO Tunnel, the traffic volume of the TKO-LT Tunnel would be around 57 000 vehicles per day at the initial stage of commissioning.
(4) The TKO Tunnel, providing two-lane carriageways for both Kowloon bound and TKO bound traffic, is an important trunk road linking TKO new town with Kowloon. Currently, the volume/capacity (v/c) ratio(1) of Kowloon bound traffic during peak hours is around 1.13. This means that while traffic is relatively slow during peak hours, the traffic condition is still acceptable. The v/c ratio of TKO bound traffic of the tunnel is about 0.83, indicating smooth flow.
Currently, congestion occurs in Kowloon bound traffic of the TKO Tunnel during the morning peak hours. If "tidal flow operation" is to be implemented during the morning peak hours, the number of TKO bound lanes would be reduced by one for creating an additional Kowloon bound lane (that is, three Kowloon bound lanes plus one TKO bound lane). However, this would increase the v/c ratio of TKO bound traffic of the tunnel from existing 0.83 to over 1.2, meaning that the current condition of the TKO bound traffic would change from smooth flow to congestion. Thus, the proposed
(1) The v/c ratio is an indicator of the performance of a road. A v/c ratio equal to or less than 1.0 means that a road has sufficient capacity to cope with the volume under consideration and the resultant traffic will flow smoothly. A v/c ratio above 1.0 indicates the onset of congestion; and that above 1.2 indicates more serious congestion with speed deteriorating progressively with further increase in traffic. 6178 LEGISLATIVE COUNCIL ─ 2 March 2016
implementation would have a grave impact on the journey time for TKO bound vehicles, including public transport services such as franchised buses. Moreover, TKO bound traffic queues would tail back to Kwun Tong Road/Kwun Tong Bypass, where the traffic condition would also be affected. Other roads connecting TKO and Kowloon are so circuitous that they could hardly help divert a significant volume of the existing traffic away from the TKO Tunnel. Thus, a feasible and ultimate solution to the problem would rely on the construction of the TKO-LT Tunnel.
(5) To address the traffic problems at the roundabout connecting Hiram's Highway, New Hiram's Highway and Nam Pin Wai Road (that is, the roundabout at the junction of Hiram's Highway and New Hiram's Highway) and in response to residents' requests, the Government obtained funding approval from the Finance Committee of this Council in 2015 for widening the road sections concerned. The road improvement works are expected to commence early this year and targeted for completion by end 2020.
Privacy Concern Arising from Police Officers' Making Video Records
18. MR CHARLES PETER MOK (in Chinese): President, in discharging their day-to-day duties and handling public events, police officers will make video records as necessary using body-worn video cameras (BWVCs) mounted on the shoulders of their uniforms for investigation and evidential purposes. It has been reported that during the incident that occurred in Mong Kok on the night of 8 February this year (i.e. Lunar New Year's Day) until the early hours of the following day, police officers at the scene made video records using BWVCs and initiated tracking investigations by using super-computers to analyze closed-circuit television footages and pedestrian flow data. Some members of the public are concerned that such a practice of the Police may constitute infringement of their privacy. In this connection, will the Government inform this Council:
(1) of the number of BWVCs in the accoutrements for the Police as at 31 January this year, with a breakdown by police unit;
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(2) of the following details regarding the making of video records by police officers using BWVCs in discharging their day-to-day duties and handling public events respectively in each of the past three years: (i) the number of times for which video records were made, (ii) the number of video footages taken, (iii) the total length of the video footages (hours/minutes), as well as the respective numbers of such footages still being kept after (iv) 31 days and (v) six months from the date on which the video records were made (set out the information in the table below);
In discharging day-to-day In handling public events Year duties (i) (ii) (iii) (iv) (v) (i) (ii) (iii) (iv) (v) 2013 2014 2015
(3) given that data protection principle (DPP) 1(1) under the Personal Data (Privacy) Ordinance (Cap. 486) requires that personal data should not be collected unless the data are collected for a lawful purpose directly related to a function or activity of the data user who is to use the data and the collection of the data is necessary for or directly related to that purpose, whether the Police have formulated guidelines stipulating that police officers may make video records with BWVCs only under circumstances where that principle is met, and that they must notify the person(s) concerned before they start to make video records; if there are such guidelines, of those governing the commencement and cessation of making video records by police officers;
(4) given that DPP 4(1) requires that a data user shall take all practicable steps to ensure that personal data held by the data user are protected against unauthorized or accidental access, processing, erasure, loss or use, whether the Police have regularly, in respect of retention and use of video footages, (i) consulted the views of the Office of the Privacy Commissioner for Personal Data, (ii) conducted privacy impact assessment and (iii) examine compliance with the relevant principle by police officers; whether 6180 LEGISLATIVE COUNCIL ─ 2 March 2016
the Police have put in place a complaint mechanism for the public to lodge complaints about matters relating to retention and use of video footages by the Police;
(5) whether the Police will make public the "Standard Operating Procedures" on the use of BWVCs by police officers and conduct review of such procedures on a regular basis;
(6) whether the Police have made use of the video footages taken with hand-held video cameras/BWVCs to make files and store such files in the criminal intelligence computer system, or have captured pictures from the video footages and verified the identity of the persons in the pictures using software with facial recognition features; if so, of the details; and
(7) of the current number of police officers who have received training on privacy matters involved in the use of BWVCs and the average number of hours of training received by them?
SECRETARY FOR SECURITY (in Chinese): President, according to section 10 of the Police Force Ordinance (Chapter 232), the Police have the duty to prevent and detect crimes and offences. To carry out their duty more effectively, the Police, depending on the actual circumstances, will use Body Worn Video Cameras (BWVCs) to record incidents in order to enhance the capability and accuracy in gathering evidence. Therefore, the Police have conducted field trials of BWVCs from March 2013 to July 2015, and are now reviewing the trial results. Police officers will use BWVCs in confrontational scenarios, or incidents where a breach of the peace has occurred or is likely to occur.
The Government's consolidated reply to Mr Charles Peter MOK's question is as follows:
At present, the Police have over 300 BWVCs, which are used by officers of the Emergency Units and the Police Tactical Unit of various Police Regions as well as the Quick Reaction Force of New Territories North Region and various Police Districts.
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The Police have formulated clear and stringent internal guidelines to regulate the use of BWVCs, the handling of data and submission of recorded footage to the Court as evidence, and so on. Such guidelines aim at ensuring that police officers would comply with the relevant requirements of the Personal Data (Privacy) Ordinance (Chapter 486) (the Ordinance) and court proceedings while using BWVCs. The Police have sought the advice of the Department of Justice in respect of the guidelines and informed the Office of the Privacy Commissioner for Personal Data (the Office) about BWVCs. Thereafter, the Office replied to the Legislative Council Panel on Security in April 2014, stating that based on the policies and procedures on BWVCs provided by the Police, the Office found nothing inconsistent with the requirements of the Ordinance. The above-mentioned guidelines are an internal document of the Police and involve operational details. Hence, it is not appropriate to disclose the guidelines. However, members of the public can browse the background information on the Police's introduction and use of BWVCs on the police website.
According to the guidelines, only police officers who have undergone professional training on operating BWVCs are allowed to use BWVCs. Up to now, about 6 800 police officers have undergone such training. All officers using BWVCs must also have adequate understanding on the Ordinance, various criminal ordinances as well as other relevant regulations. As a matter of fact, the Police have been providing police officers with training on various requirements of the Ordinance with a view to enhancing the protection of personal privacy during execution of duties by officers.
Any recording made by BWVCs must be incident-specific. Police officers using BWVCs have to overtly wear the cameras on their uniform, and where reasonably practicable, notify the subject prior to commencement of recording. While recording, BWVCs will display red indicating light. BWVCs are also equipped with outward-facing screens, so that the subject would be aware that he or she is being video-filmed and can see the recorded images at the same time. Once the purpose of using BWVCs has been achieved, police officers should stop recording. Persons who were recorded have the right to request for access to relevant information in accordance with the Ordinance. Members of the public who are dissatisfied with any police officer may also lodge a complaint to the Complaints Against Police Office (CAPO) of the Hong Kong Police Force. The CAPO will handle all complaints fairly and impartially according to the established mechanism.
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Police officers are required to report to their supervisors each time after using BWVCs. The use of BWVCs would then be reviewed by the supervisors concerned. Footage with investigative or evidential value will be treated as case exhibit, retained for investigation and court proceedings, and then deleted once such process has been completed. Relevant footage will be converted into copies of write-once only DVDs for retention as exhibit and for investigation. All digital storage media incorporate digital signature to prevent unauthorized tampering. Operators and case investigators must obtain the approval of supervisors before watching the footage. Videos or photos which may be submitted to the Court as evidence will not be saved in the Criminal Intelligence Computer System.
Footage carrying no investigative or evidential value or constituting no other legitimate purpose will be deleted after 31 days from the date it was recorded. If the footage is to be retained for more than 31 days, written authorization from a Senior Superintendent has to be obtained and such an authorization has to be reviewed on a monthly basis by the authorizing officer.
Figures on the use of BWVCs by the Police are at Annex. The Police do not maintain statistics on the total length of recorded footage.
Annex
Figures on the use of Body Worn Video Cameras by the Police
Total number of recorded footage Total number of recorded footage retained 31 days after the Year (Number of footage recorded recording date* during public order events) (Number of footage recorded during public order events) 2013 55 (26) 0 (0) 2014 132 (63) 27 (25) 2015 186 (50) 9 (2)
Note:
* As at 31 December 2015, there were eight footage retained for more than six months, of which four were recorded during public order events.
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Provision of Tax Concessions in Relation to Environmental Protection Facilities
19. MR KENNETH LEUNG (in Chinese): President, since 2008, pursuant to section 16I of the Inland Revenue Ordinance (Cap. 112), an application may be made for deducting any specified capital expenditure incurred in relation to any of the environmental protection (EP) installations specified in Part 2 of Schedule 17 to Cap. 112 over a period of five years in ascertaining taxable profits, whereas in respect of any specified capital expenditure incurred in relation to any EP machinery or plant specified in Part 1 of Schedule 17, an application may be made for deducting such expenditure in ascertaining taxable profits for the year of assessment concerned. Regarding the tax concessions provided for EP facilities (i.e. EP installations, EP machinery and plant), will the Government inform this Council:
(1) of the details of the cases in which applications were made for deductions in relation to EP installations each year since 2008, including (i) the numbers of private companies and organizations applying for deductions, (ii) total installed capacity (if applicable), (iii) installed capacity connected to power grids (if applicable), (iv) total deductions, (v) minimum deduction for a single item, and (vi) maximum deduction for a single item, and set out such information by the EP installations specified in Part 2 of Schedule 17 to Cap. 112 in tables of the same format as the table below;
Year: ______Renewable energy installations (i) (ii) (iii) (iv) (v) (vi)
Others (please specify and provide a breakdown) Total
(2) whether the tax concessions provided for EP installations are applicable only to profits tax assessments; if they are, whether the authorities (i) have studied the feasibility of shortening the 5-year time span for capital expenditure deductions, e.g. full deduction in 6184 LEGISLATIVE COUNCIL ─ 2 March 2016
one year or over a period of two years, (ii) have provided any tax concessions or subsidization measures to encourage non-commercial buildings and non-commercial organizations to put in place EP installations, and (iii) have studied expanding the scope of application of the tax concessions for EP installations to cover other types of taxes (including but not limited to property tax, rates and government rent); if they have, of the direction and contents of their study, and set out the information by type of EP installations and type of taxes; if not, the reasons for that;
(3) given that under the existing Scheme of Control Agreement, the two power companies may enjoy higher permitted rates of return by investing in renewable energy power generation facilities, whether the two power companies may, at the same time, enjoy tax concessions for their renewable energy power generation facilities; if they may, whether it has reviewed if this situation constitutes double concessions; how the authorities prevent the two power companies from shifting the capital expenditure concerned to electricity users while enjoying such concessions; and
(4) given that Part 1 of Schedule 17 to Cap. 112 only stipulates the way in which EP machinery or plant is defined, whether the authorities will make public a list of EP machinery or plant in respect of which applications for deductions may be made?
SECRETARY FOR THE ENVIRONMENT (in Chinese): President, in order to encourage the business community to adopt environment-friendly machinery and equipment, the 2008-2009 budget proposed to provide a 100% profits tax deduction for capital expenditure on such equipment in the first year of purchase. For environment-friendly installations mainly ancillary to buildings, the depreciation period has been shortened from the usual 25 years to five years as well. Our reply to each part of the question is set out below:
(1) The Inland Revenue Department does not have the required statistics in respect of the different types of environmental protection installation. The table below lists out the number of corporations claiming deductions for environmental protection installation since the year of assessment 2008-2009:
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Number of Total Minimum Maximum Year of corporations deduction deduction deduction Assessment claiming amount amount amount deductions ($M) ($) ($M) 2014-2015 11 21.7 1,000 13.9 2013-2014 16 21.2 6,460 13.9 2012-2013 22 78.5 2,100 32.9 2011-2012 21 37.7 1,942 31.8 2010-2011 20 38.9 2,329 31.8 2009-2010 20 40.8 8,960 31.8 2008-2009 18 40.8 1,200 30.9
(2) Under section 16I of the Inland Revenue Ordinance (IRO) (Cap. 112), any specified capital expenditure incurred by a taxpayer in relation to any environmental protection installation can be deducted. However, the prerequisite for claiming this tax deduction is that the expenditure must be related to the taxpayer's trade, profession or business, and incurred in the production of its chargeable profits. In other words, this tax measure is only applicable to profits tax.
We consider the arrangement for allowing the specified capital expenditure on environmental protection installation to be deducted over five years reasonable. This is consistent with the five-year deduction mechanism for the expenditure on building refurbishment under section 16F of the IRO.
In addition to the above tax measures, the Government launched in 2009 two energy efficiency project funding schemes under the Environment and Conservation Fund to provide funding support for owners of residential, commercial and industrial buildings as well as non-governmental organizations to carry out alteration, addition or improvement works to upgrade the energy efficiency performance of their building service installations. The Schemes covered building service installations for public areas including lighting, electrical, air-conditioning, lift and escalator installations. The two funding schemes were closed in 2012. About 6 400 buildings, or more than one seventh of the total building stock in Hong Kong, and 500 non-governmental organizations have benefited from the two funding schemes. 6186 LEGISLATIVE COUNCIL ─ 2 March 2016
(3) To encourage the two power companies to develop renewable energy (RE), the Government provides incentives under the existing Scheme of Control Agreements (SCAs) in terms of a higher permitted rate of return for their RE investments.
To encourage the business community to adopt environmental protection facilities, the tax incentives introduced by the Government since 2008 were also applicable to the two power companies. Under the current SCAs, any tax incentive that reduces the final tax expenses will be reflected in the electricity tariff, and will ultimately benefit the consumers. The permitted return received by the two power companies is not affected by the tax incentives. Therefore, the tax incentives will not give the two power companies additional profit or return.
(4) Construction machines with the label of Quality Powered Mechanical Equipment (QPME) issued by the Environmental Protection Department are included in the environmental protection machinery designated under the Inland Revenue Ordinance (Cap. 112). The QPME covers 12 types of commonly used construction machines, namely: (1) tracked bulldozer; (2) wheeled bulldozer; (3) tracked loader; (4) wheeled loader; (5) excavator; (6) generator; (7) mobile crane; (8) vibratory roller; (9) road roller; (10) asphalt paver; (11) vibratory compactor; and (12) power rammer. Full list of machines with QPME label has been uploaded onto in the following website for public information:
Examples of "air pollution control machinery or plant" are electrostatic precipitators, flue gas desulphurization plant, dust collection installation, gas scrubbers, car wheel washing facilities at construction sites, grease trap filters, hydrovents and vapour recovery system; "waste treatment machinery or plant" are pH control plant, heavy metal removal plant, cyanide removal plant, oil separation plant, bioreactor and organic solvent recovery plant; while examples of "wastewater treatment machinery or plant" include domestic wastewater treatment plant and industrial wastewater treatment plant.
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In general, the use of all such machinery or plant is to comply with the terms and conditions of the licence/authorization issued under the relevant pollution control Ordinances. Therefore, the use of such machinery or plant would mostly be covered in the information for applicants for licence/approval, as well as the terms and conditions of the licence/authorization issued subsequently under the Ordinances or specified in the legislation (for example, vapour recovery system in petrol filling stations). It is not possible to produce an exhaustive list in view of the wide range machinery and plant, and the emergence of new products in the market in tandem with technological advancement.
Support for Ethnic Minorities
20. MR CHAN HAK-KAN (in Chinese): President, some social service organizations have pointed out that due to the inadequate provision of interpretation services, non-Chinese/English speaking ethnic minorities (EMs) have encountered many difficulties in areas such as employment, education, using public services, etc. Although the Centre for Harmony and Enhancement of Ethnic Minority Residents (CHEER), a support service centre for EMs, has been commissioned by the Government to provide interpretation and translation services to assist EMs in accessing information relating to government services, it is learnt that government departments have not actively made use of such services. In this connection, will the Government inform this Council:
(1) of (i) the respective numbers of occasions on which CHEER provided various types of interpretation and translation services, and (ii) the respective numbers of occasions on which government departments used such services, in each of the past three years (set out in the table below);
Telephone On-site (escort) On-sight Written Year interpretation interpretation interpretation translation (i) (ii) (i) (ii) (i) (ii) (i) (ii) 2013 2014 2015
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(2) given that the Government indicated in the 2014 Policy Address that "[t]he EDB [Education Bureau] is also developing Vocational Chinese Language courses for ethnic minority school leavers to enhance their employability", and the Standing Committee on Language Education and Research has for this purpose invited post-secondary institutions and education/training organizations to develop and operate the Vocational Chinese Language courses, of the details and progress of such work;
(3) as some members from EMs have pointed out that some employers took advantage of their weakness in Chinese reading comprehension and misled them into signing employment contracts in Chinese which do not provide for any basic labour protection (such as compensation for work injuries and contributions to Mandatory Provident Fund schemes), whether the authorities will issue guidelines to employers and step up law enforcement in this respect, so as to protect the labour rights and benefits of EM employees; if they will, of the details; if not, the reasons for that; and
(4) as I have learnt that CHEER is required to have its contract renewed at two-year intervals, and the resources provided for it are insufficient, whether the Government will provide stable, long-term and sufficient resources to CHEER and similar service organizations to ensure that such organizations can cope with the increasing operating expenses (e.g. rents) and make long-term planning for their services; if it will, of the details; if not, the reasons for that?
SECRETARY FOR HOME AFFAIRS (in Chinese): President, various government bureaux and departments (b/ds) of the Hong Kong Special Administrative Region have been providing a range of services to meet the needs of ethnic minorities (EMs) under their respective policy areas, with a view to helping them integrate into the society. The Constitutional and Mainland Affairs Bureau is responsible for the overall policy on racial equality and the Race Discrimination Ordinance. The Constitutional and Mainland Affairs Bureau promulgates the Administrative Guidelines on Promotion of Racial Equality to provide guidance to concerned b/ds to promote racial equality and ensure equal access to public services in the key areas concerned. As such, b/ds provide suitable assistance to EM service users according to their specific needs, including interpretation and translation services, ensuring their equal access to public services.
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(1) The Home Affairs Department (HAD) provides support services to EMs to facilitate their integration into the community, including commissioning non-profit-making organizations to operate six support service centres and two sub-centres for EMs, providing various tailor-made learning classes, interest classes and other integration programmes. One of the centres, namely CHEER Centre, which is operated by the Hong Kong Christian Service, deploys part of its government grant to provide general interpretation and translation services, in addition to its basic services, though interpretation and translation services of specific context are not within its scope. Nevertheless, CHEER Centre is not the government's designated interpretation and translation service provider. Concerned b/ds may choose any interpretation and translation service providers that meet their specific needs. They may also consider taking other suitable measures, such as recruitment of EM service ambassadors, publication of leaflets in EM languages, and so on, to facilitate EMs' access to their services.
The use of CHEER Centre's interpretation and translation services in the past three years are as follows:
Telephone On-Site (Escort) On-Sight Simultaneous Interpretation Translation Interpretation Interpretation Interpretation and Enquiry Service Service Service(1) Service Year Service Total Number Total Number Total Number Total Number Total Number number of usage number of usage number of usage number of usage number of usage of usage by b/ds of usage by b/ds of usage by b/ds of usage by b/ds of usage by b/ds 2012-2013 3 369 380 515 463 141 NA 36 26 9 2 2013-2014 2 872 366 497 415 159 NA 64 36 23 12 2014-2015 2 667 365 621 601 237 NA 71 46 17 6
Note:
(1) EMs can bring along documents in English to CHEER Centre for interpretation service provided by interpreters. This service is not applicable to b/ds.
(2) Under the "Vocational Chinese Language Programme for Non-Chinese Speaking (NCS) School Leavers" implemented by the Standing Committee on Language Education and Research, two post-secondary institutions or education/training organizations were invited to develop and operate vocational Chinese Language courses 6190 LEGISLATIVE COUNCIL ─ 2 March 2016
pegged at Level 1/2 of the Qualifications Framework (QF) for NCS school leavers, with a view to enhancing their capability and confidence in listening, speaking, reading and writing in Chinese (especially in reading and writing), helping them obtain qualifications recognized by the Government or different sectors, and enhancing their employability. The courses have already been recognized under the QF. It is expected that the first course will be launched in or before the second quarter of 2016. To encourage the non-Chinese speakers to enrol for the courses, 85% of the tuition fee will be reimbursed to the course participants who can fulfil the attendance or assessment requirement upon completion of the course.
(3) The Labour Department (LD) is committed to enhancing the understanding of employers and the general public about labour legislation and employees' rights and benefits through a wide range of publicity channels and various educational and promotional activities. The LD also widely distributes leaflets/brochures produced in major EM languages to relevant bodies to facilitate their understanding of such information. Moreover, the LD has all along been actively encouraging employers and employees through various channels to draw up written employment contracts. Employers are reminded to inform their employees about the contract provisions and conditions of employment before engaging them. As to employees, they are reminded from time to time to proactively seek to understand the terms on an employment contract before signing and seek clarifications from the employers on terms that they do not understand or find uncertain. As far as compensation for work injury is concerned, employers are required by law to take out employees' compensation insurance for their employees, failing which they would be liable to prosecution. Employees suspected to have been deprived of their employment rights should approach the LD for assistance. The LD will promptly investigate all complaints received and take out prosecution against offending employers as and when there is sufficient evidence.
(4) CHEER Centre is one of the support service centres for EMs operated by non-profit-making organizations commissioned by the HAD. The tenure for the agreements between the HAD and the centre operators is generally two-year. During the agreement LEGISLATIVE COUNCIL ─ 2 March 2016 6191
period, the HAD from time to time reviews the operators' performance and service needs, which will serve as factors to be considered during agreement renewal. When negotiating with centre operators on new agreements, the HAD will take the opportunity to optimize the provision of services. For example, to introduce new initiatives through deployment of resources to better meet the needs of EMs. Besides, the agreement grant (including rent, staff costs and other operating expenses) will also be suitably adjusted to cope with inflation. In special circumstances, such as sharp increase in rental expenses, the HAD will consider individual case and exercise discretion to provide additional grant, when necessary. This operating mechanism has all along been running effectively.
Combating Illegal Gambling Activities in Public Places
21. MR JAMES TO (in Chinese): President, it has been reported that illegal gambling activities are often found in several districts across the territory, seriously affecting the environment as well as the law and order of the districts concerned. Although the Police have taken a number of law enforcement actions with gamblers being arrested and prosecuted, most of the gambling activities have continued to exist despite repeated crackdowns. In this connection, will the Government inform this Council:
(1) of (i) the number of law enforcement actions taken by the Police to combat gambling activities in public places, and (ii) the respective numbers of persons so arrested and prosecuted, in each of the past three years, with a tabulated breakdown by District Council district;
(2) whether the Police have instructed police officers on beat to step up patrol of the various black spots of gambling activities; if they have, of the frequency of the patrol; if not, the reasons for that;
(3) given that gambling activities are often found on and under the footbridge between Hoi Fan Road and Nam Cheong Park, and that place is located at the junction of Mong Kok Police District and Sham Shui Po Police District, whether the two police districts took joint law enforcement actions there last year; if they did not, of the reasons for that; and
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(4) given that the Police formed an inter-departmental working group with the government departments concerned and non-governmental organizations in 2007 to formulate strategies to combat gambling activities in public places within Tsuen Wan Police District, and the group's work has yielded notable results according to the Police, whether the Police will make reference to such a practice and set up similar working groups for other police districts to combat gambling activities within their districts; if they will, of the work progress in the various police districts; if not, the reasons for that?
SECRETARY FOR HOME AFFAIRS (in Chinese): President, it is the policy of the Government not to encourage gambling. To alleviate the gambling-related problems, we have adopted a multi-pronged strategy which includes regulation, law enforcement, public education and provision of counselling and treatment services.
The reply to Mr James TO's question is set out as follows:
(1) The Hong Kong Police Force (HKPF) has spared no effort in combating illegal gambling activities and has been monitoring such illegal activities for enforcement. Figures of persons arrested for involvement in illegal gambling offences in the past three years are as follows:
2013 2014 2015 Number of persons arrested 5 230 3 605 4 427
The figures on gambling-related enforcement actions and prosecutions are not available.
(2), (3) and (4)
To combat illegal gambling activities, especially those involving triad-related or organized crimes, the HKPF has been combating illegal gambling activities through prevention, education, intelligence collection and law enforcement.
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The HKPF has strategies in place to combat illegal gambling activities and the flexibility to adjust its operation and deployment depending on the situation. Taking into account local situations, various Police Regions and Districts will correspondingly adopt strategies and take enforcement actions to prevent and combat on-street gambling. The HKPF will co-operate with other departments (such as the Housing Department and the Leisure and Cultural Services Department) and stakeholders when necessary to combat related crimes.
Costs and Benefits of Outsourcing Public Services
22. MS EMILY LAU: President, regarding the costs and benefits of outsourcing public services, will the Executive Authorities inform this Council:
(1) of the total amount of saving in public expenditure in the past three years achieved by various government departments through outsourcing the cleaning and security services, as compared to in-house provision of such services;
(2) of the total amount of public expenditure incurred on government subsidies granted in the past three years under the various schemes for low-income families (including the Comprehensive Social Security Assistance Scheme, the Work Incentive Transport Subsidy Scheme, etc.) to families with members who provided the outsourced services in (1); the estimated amount of saving in such expenditure in the past three years that could have been achieved had such family members been employed directly by the Government and therefore earned a higher income; and
(3) of the amount of saving in public expenditure in (1) after offsetting the same in (2)?
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SECRETARY FOR FINANCIAL SERVICES AND THE TREASURY: President, outsourcing is one of the ways adopted by government departments to deliver public services. Whether outsourcing of services is required is at the discretion of individual departments having regard to their operational needs.
Outsourcing enables the Government to maintain a small and efficient Civil Service, stimulate the creation of jobs and business opportunities in the private sector, increase the flexibility in service delivery, make better use of technology and experience in the market, and focus resources on providing core services and tackling priorities. Government departments outsource a full range of services including but not limited to cleaning and security services.
Regarding the costs and benefits of outsourcing public services, our reply is as follows:
(1) Many government service contracts are outcome based. We do not have information on the total amount of saving in public expenditure through outsourcing of cleaning and security services by various procuring departments as compared with in-house provision of such services in the past three years.
(2) As many government service contracts (for example, those for street/market cleansing services and waste/recyclables collection services) are outcome based, procuring departments do not specify the number of workers required for delivering services in general. We also do not have information on the number of the workers who are engaged by the government service contractors and who are beneficiaries of various schemes for low income families. Hence, we are unable to assess any saving achieved had such workers been directly employed by the Government.
(3) In the absence of information for part (1) and part (2), the amount of saving after offsetting the two figures is not available.
To protect the interests of non-skilled workers, the Legislative Council endorsed the Minimum Wage Ordinance (MWO) in July 2010, and the Government implemented the first statutory minimum wage (SMW) on 1 May 2011. The MWO stipulates that the SMW level has to be reviewed at least once LEGISLATIVE COUNCIL ─ 2 March 2016 6195 every two years. For government service contracts that rely heavily on the deployment of non-skilled workers, government service contractors have to sign the "Standard Employment Contract" with their non-skilled workers with specifications that remuneration of staff should be adjusted in accordance with future revisions of the prescribed minimum hourly wage rate under the MWO, and that the employee's wage should not be lower than the adjusted wage level. Some procuring departments also give extra marks to contractors paying wages higher than the SMW or requiring shorter working hours from employees under the marking scheme in tender evaluation.
GOVERNMENT BILLS
First Reading of Government Bills
DEPUTY PRESIDENT (in Cantonese): Government Bills: First Reading.
EMPLOYMENT (AMENDMENT) BILL 2016
THE HONG KONG INSTITUTE OF EDUCATION (AMENDMENT) BILL 2016
MEDICAL REGISTRATION (AMENDMENT) BILL 2016
CLERK (in Cantonese): Employment (Amendment) Bill 2016 The Hong Kong Institute of Education (Amendment) Bill 2016 Medical Registration (Amendment) Bill 2016.
Bills read the First time and ordered to be set down for Second Reading pursuant to Rule 53(3) of the Rules of Procedure.
Second Reading of Government Bills
DEPUTY PRESIDENT (in Cantonese): Government Bills: Second Reading.
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EMPLOYMENT (AMENDMENT) BILL 2016
SECRETARY FOR LABOUR AND WELFARE (in Cantonese): Deputy President, I move the Second Reading of the Employment (Amendment) Bill 2016 (the Bill). The Bill mainly seeks to amend Parts VIA and IXB of the Employment Ordinance (EO) to provide that where processing a claim for reinstatement (RI) or re-engagement (RE) by an employee who has been unreasonably and unlawfully dismissed, the Labour Tribunal (LT) should be empowered, without the agreement of the employer, to make an order for RI or RE if, taking into account the circumstances of the claim, the LT considers that the order is appropriate and compliance with the order by the employer is reasonably practicable. The Bill also proposes that if the employer fails to reinstate or re-engage the employee according to the LT's order, the employee should be paid a further sum by the employer, failing which will constitute a criminal offence.
The Bill seeks to handle unreasonable and unlawful dismissal (UUD). UUD means that the dismissal is both unreasonable and unlawful. By unreasonable dismissal, the employer is dismissing the employee other than for a valid reason as specified in Part VIA of the EO, and valid reasons include: the conduct of the employee, his/her capability/qualification for performing the job, redundancy or other genuine operational requirements of the business, compliance with legal requirements, or other reason of substance which the LT sees fit. Unlawful dismissal refers to dismissals specified in Part VIA of the EO which are in contravention of labour legislation, that is, an employee is dismissed under the following circumstances, including: dismissal during pregnancy and maternity leave, during paid sick leave, after work-related injury and before determination/settlement and/or payment of compensation under the Employees' Compensation Ordinance or by reason of the employee exercising trade union rights or giving evidence for the enforcement of relevant labour legislation.
Under Part VIA of the existing EO on employment protection, if an employee who has been unreasonably or unlawfully dismissed seeks RI or RE, even if the LT rules in favour of the employee and considers that an order for RI or RE is appropriate, the LT should secure the employer's agreement before the order can be made. The Labour Advisory Board (LAB) has reached a consensus and considers that for such cases, the requirement to secure the employer's agreement should be scrapped.
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The Bill proposes that for UUD cases covered under Part VIA of the EO, if the employee demands RI or RE, the employer's agreement will no longer be a prerequisite for the LT to make the RI or RE order. Yet, before making the RI or RE order, the LT should award that the order is reasonable and compliance with the order by the employer is reasonably practicable. As proposed under the Bill, before making the award, the LT should allow both the employer and the employee to present their cases on the making of the order, and should consider the various factors for each case.
The Bill also proposes that for UUD cases, if the employer fails to reinstate or re-engage the employee in accordance with the LT's order, apart from paying the employee the terminal payment and compensation ordered by the LT under existing requirement, the employer should also pay the employee a sum set at three times the employee's wages, subject to a maximum of $50,000. If the employer wilfully and without reasonable excuse fails to pay the further sum, the consequence will be the same as for an employer who at present wilfully and without reasonable excuse fails to pay the employee compensation awarded by the LT. Both are regarded as an indictable criminal offence, subject to a maximum fine of $350,000 and three years' imprisonment upon conviction.
Moreover, by virtue of the Bill, the Government also …
(Mr LEUNG Kwok-hung stood up)
DEPUTY PRESIDENT (in Cantonese): Mr LEUNG, what is your point?
MR LEUNG KWOK-HUNG (in Cantonese): I would like to raise the most common point of order, that is, there is a lack of quorum.
DEPUTY 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)
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DEPUTY PRESIDENT (in Cantonese): Secretary, please continue with your speech.
SECRETARY FOR LABOUR AND WELFARE (in Cantonese): In addition, by virtue of the Bill, the Government will also clarify that it is absolutely the employer's responsibility to execute the RE order made by the LT, and the engagement of that employee by a successor of the employer or an associated company will only be regarded as in compliance with the RE order under the circumstances that special conditions and procedures are satisfied.
Consequential to the above amendment proposals, the Bill also amends the pertaining procedures under the Labour Tribunal Ordinance and its subsidiary legislation for the LT to implement the various proposals after the Ordinance takes effect.
Deputy President, all the proposals of the Bill are based on the LAB's consensus, and the Government has reported to the Panel on Manpower. Over the period, the LAB has repeatedly discussed the proposals of the Bill before arriving at this comprehensive proposal which is considered as practicable and acceptable by both the employers and the employees. This consensus has been discussed over and again by representatives of employers and employees, and is reached after carefully balancing the interests of employers and employees. This is really a hard-earned consensus. I implore Members to support the Government's proposal so that the Bill which has been in the making for years can be passed soon to offer better protection to employees who have been unreasonably and unlawfully dismissed.
Thank you, Deputy President.
DEPUTY PRESIDENT (in Cantonese): I now propose the question to you and that is: That the Employment (Amendment) Bill 2016 be read the Second time.
In accordance with the Rules of Procedure, the debate is now adjourned and the Bill is referred to the House Committee.
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THE HONG KONG INSTITUTE OF EDUCATION (AMENDMENT) BILL 2016
SECRETARY FOR EDUCATION (in Cantonese): Deputy President, I move that the Hong Kong Institute of Education (Amendment) Bill 2016 (the Bill) be read the Second time.
The Bill aims to change the Chinese and English titles of The Hong Kong Institute of Education (HKIEd) to "香港教育大學 " and "The Education University of Hong Kong" respectively.
HKIEd was established in 1994 by merging the four former Colleges of Education and the Institute of Language in Education. In June 2009, the then Chief Executive in Council (CEIC) decided the way forward with respect to the institutional development of HKIEd. One of the decisions made by the then CEIC was to support HKIEd in developing into a multi-disciplinary institution with a focus on teacher education and a good spread of complementary disciplines, that is, "Education-plus"; as well as to strengthen its research capability. The Government also made it clear to HKIEd at that time that, in considering whether it should be granted university title in the future, the Government would take into account all relevant factors, including its progress in achieving its "Education-plus" mission, the quality and standard of its academic programmes, its research capability, internal governance, and so on.
HKIEd has since been following up the 2009 decision, achieving commendable progress. In July 2014, HKIEd submitted an application for university title to the Government. Following previous practice, the Government invited the University Grants Committee (UGC) to provide its expert views and subsequently received a report from the UGC Review Group in September 2015. Among the findings, the UGC considers that HKIEd already possesses the qualities and attributes commonly expected of a university according to the criteria laid down in 2009, and is fully worthy of joining the ranks of the other UGC-funded universities in Hong Kong. We are satisfied with the UGC's findings in the review. The CEIC also agrees that university title should be granted to HKIEd at this juncture. In the light of the CEIC's approval to grant university status to HKIEd, the Hong Kong Institute of Education Ordinance will have to be amended to effect the change in title.
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In future, The Education University of Hong Kong will remain committed to education as its core mission, with the "Education-plus" concept providing a sound base for its further development. HKIEd earnestly hopes that the Bill can be passed before the end of the current legislative session, so that it can confer graduation certificates to its 2016 graduates in the name of The Education University of Hong Kong. I call upon all Members to support the early passage of the Bill.
Deputy President, I so submit. Thank you.
DEPUTY PRESIDENT (in Cantonese): I now propose the question to you and that is: That The Hong Kong Institute of Education (Amendment) Bill 2016 be read the Second time.
In accordance with the Rules of Procedure, the debate is now adjourned and the Bill is referred to the House Committee.
MEDICAL REGISTRATION (AMENDMENT) BILL 2016
SECRETARY FOR FOOD AND HEALTH (in Cantonese): Deputy President, I move the Second Reading of the Medical Registration (Amendment) Bill 2016 (the Bill).
The Bill seeks to amend the Medical Registration Ordinance (MRO) (Cap. 161), and the purpose is to:
(1) increase lay participation in the Medical Council of Hong Kong (MCHK) for the purpose of enhancing its accountability and public participation;
(2) improve the MCHK's complaint investigation and disciplinary inquiry mechanism; and
(3) facilitate the admission of non-locally trained doctors under limited registration to practise in Hong Kong.
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The Government set up a steering committee in 2012 to conduct the Strategic Review on Healthcare Manpower Planning and Professional Development (the Strategic Review) in Hong Kong. The Strategic Review, which covers all of the 13 healthcare professions (inlcuding doctor) subject to statutory regulation, aims to make recommendations that would better enable our society to meet the projected demand for healthcare professionals as well as to foster professional development, with a view to ensuring the healthy and sustainable development of our healthcare system and the continued provision of quality healthcare services to the public.
While recognizing the principle of self-regulation, the Strategic Review observes that there is an international trend towards more public participation, greater transparency and accountability in the discharge of the self-regulatory functions by the healthcare professional bodies.
We expect that the Strategic Review will be completed in mid-2016. Since the public are most concerned about issues related to doctors, pending the completion of the Strategic Review and in advance of the implementation of the full recommendations of the Strategic Review, we have decided to introduce the Bill into the Legislative Council in order to accord first priority to public concerns over lay participation in the MCHK, the efficiency of the MCHK in complaint investigation and disciplinary inquiries, as well as the admission of non-locally trained doctors. Major amendments put forth under the Bill are summarized below.
First, on increasing lay participation in the MCHK, we propose to:
(1) increase the number of lay Council members in the MCHK from four to eight, with total Council membership increased from 28 to 32, of which 25% will be lay members (an increase from 14%);
(2) increase the number of lay persons appointed to a Preliminary Investigation Committee (PIC) from one to two. Such lay persons can be lay members of the MCHK or lay assessors; and
(3) increase the number of lay Council members appointed to the Health Committee from one to two.
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Second, we propose to improve the MCHK's complaint investigation and disciplinary inquiry mechanism, so as to enhance its efficiency, accountability and credibility in handling complaints. First of all, during the preliminary investigation stage:
(1) the MCHK may set up more than one PIC to carry out complaint investigation;
(2) to modify the quorum of a PIC meeting, swtiching from requiring one lay Council member to requiring either a lay assessor or a lay Council member;
(3) the term of appointment of a lay person appointed to PIC is extended from not exceeding three months to not exceeding 12 months;
Moreover, with regards to disciplinary inquiries:
(4) the total number of assessors will increase from 14 to 34, with the number of assessors who are registered medical practitioners increasing from 10 to 20 and that of lay assessors increasing from four to 14; and
(5) adjust the composition of the quorum as follows: the five persons forming the quorum must include at least one Council member who is a registered medical practitioner, at least one lay assessor who is a registered medical practitioner, and at least one lay Council member or one lay assessor, and registered medical practitioners must constitute the majority at the inquiry meeting.
In addition, in order to cope with the anticipated increase of cases, legal support will be strengthened. Under the Bill, the MCHK may appoint more than one legal advisor and the Secretary for Justice may appoint any counsel or solicitor in private practice to carry out the statutory duties of the Secretary of the MCHK in inquiries.
Third, with regard to facilitating the admission of non-locally trained doctors to practise in Hong Kong, the maximum term of limited registration will be extended from not exceeding one year to not exceeding three years. We believe that is conducive to the attraction of non-locally trained specialists ― in LEGISLATIVE COUNCIL ─ 2 March 2016 6203 particular specialists who are Hong Kong residents and have received medical training outside Hong Kong ― to practise in Hong Kong's public medical institutions, inlcuding the those of the Hospital Authority and the two faculties of medicine of Hong Kong, so as to alleviate the issue of shortage of doctors in Hong Kong.
The Government has consulted various relevant stakeholders on the Bill, inlcuding the MCHK, relevant trade bodies, patients' organizations, patients' rights representatives and the Consumer Council. The Government also consulted Legislative Council's Panel on Health Services at end of Feburary 2016.
With these remarks, Deputy President, I hope Members will support the Bill. Thank you.
DEPUTY PRESIDENT (in Cantonese): I now propose the question to you and that is: That the Medical Registration (Amendment) Bill 2016 be read the Second time.
In accordance with the Rules of Procedure, the debate is now adjourned and the Bill is referred to the House Committee.
Council went into Committee.
Committee Stage
DEPUTY CHAIRMAN (in Cantonese): Committee stage. Council is now in Committee to continue to consider the Copyright (Amendment) Bill 2014.
DEPUTY CHAIRMAN (in Cantonese): The Committee continues the first debate: Mr CHAN Kam-lam's first group of amendments to amend clauses 18, 19, 24, 75, 76 and 78. The amendments are to add sections relating to contract override provisions in respect of copyright exceptions.
I now first call upon Mr Charles Peter MOK to continue with his speech.
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COPYRIGHT (AMENDMENT) BILL 2014
MR ALVIN YEUNG (in Cantonese): Deputy Chairman, point of order, I request a headcount.
DEPUTY CHAIRMAN (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)
DEPUTY CHAIRMAN (in Cantonese): Mr Charles Peter MOK, please speak.
MR CHARLES PETER MOK (in Cantonese): Deputy Chairman, my speech in the last meeting was discontinued because the meeting was suspended. Before that, I was talking about the adoption of a provision restricting contract override in the United Kingdom and the reason behind the decision. I also made reference to the experience of the United Kingdom and the current situation of Hong Kong in relation to copyright law. Why does the United Kingdom include such a provision and what is the background of this?
In 2011, the United Kingdom Prime Minister David CAMERON commissioned Prof Ian HARGREAVES to conduct a review and compile a report entitled "Digital Opportunity: A Review of Intellectual Property and Growth". Who is Prof Ian HARGREAVES? He is a world-renowned authority in news media, intellectual property and innovative economy. This shows that even the United Kingdom Conservative Party administration will not yield to people with vested interests, and it therefore invited Prof HARGREAVES to conduct an independent review. Prof HARGREAVES happens to be an advocate of the restriction on contract override. His recommendation has been adopted by the United Kingdom Government and the provision has been incorporated into the country's copyright law.
By the way, Prof Ian HARGREAVES, who can be regarded as "the father of restriction on contract override in the United Kingdom", is visiting Hong Kong in mid-March at the invitation of a large IT company and the University of Hong Kong. On behalf of the organizers, I venture to invite those government officials and Members who are genuinely concerned about the copyright law and LEGISLATIVE COUNCIL ─ 2 March 2016 6205 innovation to take this opportunity to meet Prof HARGREAVES, so as to listen to his opinions, such as the reasons for copyright reform and additional exceptions, how copyright law reform will benefit the innovative industries and his understanding of contract override. Disregarding the progress of the deliberation of the Copyright (Amendment) Bill 2014 and whether the Bill is shelved by the Administration by then, I do hope Members would not miss this opportunity to meet with him because this is exactly what we should do in support of innovative industries. Secretary, I hope that you will not stop listening to various views, whether the deliberation of the Bill adjourns today or on Friday.
Let us return to Prof HARGREAVES's report released in 2011. It is stated in the report that copyright holders may make use of various types of licence agreements to restrict the use of their copyright works by users and thus render the exceptions under the law largely useless.
He analysed some 100 licence agreements offered to the British Library and found numerous contract overriding provisions. This is the concern of the Libraries and Archives Copyright Alliance, an alliance of users. You see, copyright owners are not the only ones who have an alliance. Prof HARGREAVES has said that such imbalance of rights must be addressed. Therefore, the first key point of the report is that it is necessary to include a provision restricting contract override.
The report also points out that if copyright owners are allowed to include contract override provisions in contracts, they are in effect allowed to reset the exceptions under the copyright law. This means that the Government has already decided and specified what acts are to be permitted, but the exceptions it has laid down in the law may now face the risk of being overturned by private contract provisions. What is more worrying is that when an institution has different contracts with a number of providers and these contracts contain different contract override provisions, users will be at a loss as to what they should do. If the user is a library, a school or an online intermediary platform, it is even more difficult to know when or which type of content will be exempted.
Hence, the second key point of the report is that contract override will deprive the law of its clarity and make it difficult for users to follow. As a result, many institutions tend to set the most restrictive terms in order not to inadvertently commit acts not permitted in the contracts, thus further limiting the exceptions allowed under the law.
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In view of this, the third key point of the report is to illustrate that contract override will lead to chilling effect and self-censorship, which will certainly have very bad impact on freedom of expression. Prof HARGREAVES therefore clearly states in his report that it is necessary to introduce a legislative provision to ensure that copyright exceptions are protected from contract override. Otherwise, the copyright law will be unable to adapt to the development of modern society and new technologies, and will impose mounting costs on the United Kingdom and indeed the European Union economy.
Deputy Chairman, the above-mentioned report by the United Kingdom and the research conducted by Australia which I mentioned in my previous speech are both professional, independent and progressive. Even if Hong Kong's scholars or experts are to conduct an independent study on the copyright law and innovative industries, I believe that the findings will not be completely different from the above reports.
When speaking on the Copyright Ordinance, many Members emphasized the importance of copyright in encouraging creation, innovation and creativity, and they seemed to consider sharing and secondary creation as running counter to them. Although we have explained it time and again, many people still selectively listen to our views and even politicize our progressive views as irrational. Actually, how many of them, especially those pro-establishment Members sitting here today, have really thoroughly studied the issue? Or, do they all along just "support for the sake of supporting"? Have they ever looked into what we are discussing?
In fact, we must provide users with the greatest freedom and assurance in their creative pursuit ― because users are also creators. Being the decision maker, the Government must take the lead in innovation, and accept new things and new legal concepts. If it only sticks to the existing law, citizens would not be able to enjoy freedom of artistic creation and innovation. Regarding the restriction of contract override, the Government and copyright owners have kept asking us to wait. It says that we should first pass the Bill and wait for a consultation and observe the implementation in the United Kingdom. However, we do not see there is any problem in the United Kingdom at present. Objectively, it is very clear that the innovative and IT industries are doing better and better in the United Kingdom in recent years. This is because the United Kingdom is willing to take the lead in reform long ago, while we just stick to the LEGISLATIVE COUNCIL ─ 2 March 2016 6207 old way. The Government always says it strives to develop innovation and technology, but what we see is only procrastination.
So, as we always say that if Hong Kong is really committed to developing innovation and technology, we must remove all kinds of restrictions. And the issue we are currently discussing, which is a provision restricting contract override, is exactly an example of removing restrictions. We should therefore seize this opportunity instead of being so indecisive.
Since the Secretary for Commerce and Economic Development has announced that he will stop pursuing the Bill, our debate on the Bill may enter the final stage today or this week. What I do not understand is why he did not make the decision earlier if he wants to do so. Why has he behaved as if he wants to continue the meeting until Friday? I just saw him outside calling for pro-establishment Members to come back to the meeting. I am really baffled by his action and wonder what his purpose is. If the meeting drags on until Friday but the Secretary and the Government are not going to compromise, then why should we have a meeting here? If he really wants to pass the Bill, why didn't he take the initiative to discuss the issue with us and make a compromise?
On Monday, Mr Kenneth Leung, Mr Dennis Kwok and I proposed a "limited fair use" amendment, as part of our all-out effort to achieve a compromise that is acceptable to all parties. The proposed amendment will give more exceptions for netizens and at the same time protect the industry from massive copyright infringement as early as possible. We also wish to strike a balance between freedom of speech and intellectual property, which is exactly the spirit proposed by the "father of restriction on contract override", Prof HARGREAVES: the two things are not contradictory but complementary. In this connection, we must boldly accept new things and legal concepts, including the restriction of contract override that we are discussing today.
Deputy Chairman, this concludes my remarks.
MR TONY TSE (in Cantonese): Deputy Chairman, I am neither a member of the Bills Committee on the Copyright (Amendment) Bill 2014 nor a legal expert, but I would like to express my views on the proposal to include a provision restricting contract override.
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Deputy Chairman, one of the main purposes of including a provision restricting contract override is to ensure the statutory exceptions can override the agreements made between copyright owners and users, so that copyright owners and users cannot delete or reduce the exceptions stipulated in the Copyright Ordinance with contract terms. According to some people, it is illogical to set out exceptions in the Copyright (Amendment) Bill 2014 (the Bill) while copyright owners and users are not forbidden to reduce or limit the scope of these exceptions through private contract terms. They say that while the law permits us to do something, it does not stop us from adding limit to the things concerned by way of private agreements and contracts. They wonder whether this is appropriate.
The existing Copyright Ordinance already contains over 60 types of copyright exemption. The Bill proposes to offer more copyright exceptions which cover the purposes of parody, satire, pastiche, quotation, caricature and commenting on current events, thus further expanding the scope of copyright exceptions in Hong Kong. Although the Bill has not been passed due to filibustering, the Copyright Ordinance has in fact been in force for a long period of time and no one has been prosecuted so far due to his non-compliance with contract terms. Besides, no copyright owners have been found to have set out terms which are more restrictive than the Ordinance, and which make individual users unable to enjoy the copyright exceptions allowed in the Ordinance. Moreover, if any contractual provisions are obviously illegal and unfair, the contract concerned will possibly not be accepted or permitted under the law.
In fact, the position paper published by Hong Kong Bar Association on 17 February this year also holds the same view. Thus far, there has been no evidence that any person has ever been sued or prosecuted for uses that would otherwise have been exempted had the proposed exemptions in the Bill been in force.
Deputy Chairman, I notice that those Members in favour of this proposed amendment have stated that since statutory copyright exceptions have already been granted, they should not be overridden by private contracts, which would circumvent the law. They therefore consider that restricting contract override is necessary. However, freedom of contract plays a vital role in Hong Kong's free market economy. Hong Kong has enjoyed great freedom in making contracts as LEGISLATIVE COUNCIL ─ 2 March 2016 6209 long as it is within the bounds of the laws. If the freedom of contract is restricted, there will be serious, irreversible impact on Hong Kong. We must be very careful about this.
In our society, acts of entering into contracts freely are very common and there have been no problems. At present, there are many contracts that impose restrictions on the contractual parties without violating the law. Of course, such restrictions will not constitute any problem legally. For instance, numerous landlords of shopping centres would impose restrictions on the business operated in the centres by designating the uses of different shops and even limiting the types of goods and services offered by the shops, such as for retail or dining purposes. Restrictions on retail may be clothes, shoes, sport accessories, jewelry and cosmetic items, and restrictions on dining may be Chinese or western cuisines. In addition, landlords may limit the business hours of the stores. Such conditions are more restrictive than legal requirements, including those set out in the Building (Planning) Regulations or land leases. Certainly, such restrictive terms have to be mutually agreed by the parties to the contracts concerned.
In some circumstances, a company that has rented a store in a large shopping arcade may impose a restriction on the contract, forbidding the landlord from leasing other shops to its competitors in order not to affect its business. Hence, we may notice that in some large shopping malls, when there are shops selling Apple's products, there would not be shops selling Samsung's. Such terms and conditions are agreed and accepted by both the landlords and the tenants. So my worry is whether a provision restricting contract override will damage Hong Kong's free economy which has all along worked so well. The provision may also cause grave consequences.
Deputy Chairman, it is incorrect to say that users may contravene the copyright law inadvertently if there is no restriction of contract override. This saying is wrong because in case copyright owners and users enter into contracts that override statutory copyright exceptions the users are just in breach of a contract but not the law if they do not comply with the contract terms. They will thus only face civil lawsuits but not criminal prosecutions. Moreover, I do not notice that there were any such cases in the past.
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Having considered the above, I have great reservation about the proposed amendment in this stage, and do not see any urgency to introduce a provision to restrict contract override. Hence, I do not support the proposed amendment. Nevertheless, I would not object to an in-depth discussion and study on this proposal after the Bill is passed so as to see if it is worthwhile to include the restriction.
Deputy Chairman, I so submit.
MR MICHAEL TIEN (in Cantonese): Deputy Chairman, I speak in opposition to the amendments proposed on behalf of Mr Dennis KWOK by the Bills Committee's Chairman …
(Mr CHAN Chi-chuen stood up)
MR CHAN CHI-CHUEN (in Cantonese): Deputy Chairman, I request a headcount.
DEPUTY CHAIRMAN (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)
DEPUTY CHAIRMAN (in Cantonese): Mr Michael TIEN, please continue with your speech.
MR MICHAEL TIEN (in Cantonese): Deputy Chairman, you can see the strong unity of our pro-establishment camp. Let me start again. No pan-democratic Member is here. Deputy Chairman, I oppose the amendments on restricting contract override proposed by the Chairman of the Bills Committee on behalf of Mr Dennis KWOK.
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Actually, I believe many Members here, especially pan-democratic Members … But none of them is present; no, two of them are here … I believe they all agree that freedom of contract is one cornerstone of Hong Kong's commercial success. But we also know that this freedom is not absolute. Many Members use the Employment Ordinance as an example to illustrate why there must be a clear provision to prevent contract terms from overriding the law. But have Members considered carefully why the Employment Ordinance contains such a restriction. Is it appropriate to compare it with the Copyright Ordinance? To me, it may not be appropriate to do so.
The Employment Ordinance provides for this restriction because there is a great difference in bargaining power between the two parties to an employment contract. Which party has stronger bargaining power? We all know the answer. That is why we need to protect employees from the oppression of unscrupulous employers. The employment contracts I sign with the staff I recruit must comply with the requirements of the Employment Ordinance. But I accept this willingly because I am a reasonable person. When it comes to copyright works, which side ― the buyer or the seller ― has more bargaining power? Is any one of the two sides always in a disadvantageous position? Can the two sides enjoy equal standing? The copyright owner may well have much weaker bargaining power. What will happen if this is the case?
Let me give a simple example. Suppose I want to write a biography of my father … I remember when he was a Legislative Council Member, he was very serious with his work. Every time before he delivered a speech, he would do thorough research and revise his speech several times for improvement. Suppose I wish to hire someone to write his biography, I will certainly state in the contract that the writer must do the work with a solemn and serious approach. It is because my objective is to publish a positive and meaningful biography, one which can inspire myself and young people with all its positive energy. But if the biographer thinks that this approach is too boring, he may want to spice up the biography and make him the subject of "kuso", saying that he threw bananas in the Legislative Council and was carried away by security staff. If there is restriction on contract override, the biographer can claim that these descriptions are just parody for the purpose of caricature, or that he makes fun of my father because he wants to achieve a satirical effect. In that case, I will not be able to do anything. Is this fair to me?
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Another example is Bruce LEE, a famous martial arts movie star of our time. We are very familiar with all the rumours about the life of this legendary figure, many of which are fabricated, especially those on the death. I believe his family members will be very unhappy when learning of all such nonsensical rumours. Linda, the wife of Bruce LEE, co-authored the book The Bruce Lee Story. Later, she published another book titled Unsettled Matters: The Life and Death of Bruce Lee, which is about the death of Bruce LEE.
Suppose Bruce LEE's wife wants to make a film from the book, I am sure that she will not choose anyone in Hong Kong to produce the film if the amendments on restricting contract override are passed. The reason is that even if she and the producer conclude a contract allowing no parody, no caricature and most importantly, no quotation, it will all be useless. The producer can add a character in the film named "Cruce LEE" or "Druce LEE" or "Fruce LEE" to make his friends or even Bruce LEE himself a subject of parody. The film may end up completely unfaithful to the book. But since the producer who has signed the contract is protected by the restriction on contract override, he can do whatever he likes. The Copyright Ordinance cannot offer any protection whatsoever to the copyright owner.
I have talked about the prohibition of quotation. As Members know, it is widely rumoured that Bruce LEE was with an actress when he died. If a film on the life of that actress is produced and the producer quotes this rumour in the film, what can be done? If any such quotation is expressly forbidden, the producer will not be able to do so. Similarly, caricature is just too broad in scope to be restricted in any way. The death of Bruce LEE has always been a mystery. If the producer is allowed under the restriction on contract override to engage in caricature in any way he likes, he may well turn Bruce LEE's death into a very ridiculous happening, depicting him as dying of exsanguination after falling off his bed and sustaining a skull injury early in the morning. The producer or moviegoers may find the scene very funny, and the producer may even evade any legal responsibility, but the family members of Bruce LEE will certainly find the scene insulting and a total and irreparable destruction of Bruce LEE's image.
With restriction on contract override, copyright owners are unable to do anything whatsoever. Bruce LEE is a Hongkonger, a legendary figure of Hong Kong. If the law in Hong Kong cannot even protect this legendary figure, the only reason must be the amendment proposed by the pan-democratic Members concerned. The copyright owner will definitely not produce any film on Bruce LEE in Hong Kong, and Hong Kong will suffer a great loss. LEGISLATIVE COUNCIL ─ 2 March 2016 6213
Besides, I once had a chat with Dr Toby CHAN Lap-man, who owns the copyright of McMug and McDull, two famous local cartoon characters. I asked him how he thought about signing a contract allowing me to sell T-shirts with the printed images of McMug and McDull. Deputy Chairman and Members, please look at these two lovely piggies. They are McMug and McDull. It is actually a proposal without any problems. Dr CHAN will of course stipulate in the contract that I must not alter the appearances of the two piggies. But I know I can certainly boost the sales of my products if I can do some "kuso" with the piggies to satirize some political figures. All I need to do is to add two fangs to each of them and rename them as "McWolf" or "McLufsig". If the proposed restriction on contract override is passed, I will enjoy an exception under satire, in which case Dr CHAN will be unable to take any legal actions against me.
I asked Dr CHAN whether he would still allow me to print such T-shirts in Hong Kong if the proposed restriction on contract override was passed. He said he would not even consider the proposal. He then complained bitterly to me that Hong Kong was so slow in updating the legislation in this regard, and he had virtually given up the Hong Kong market. He said even if the Bill was passed, he would still give up the Hong Kong market if it contained any restriction on contract override.
I think if the Hongkonger who created McDull gives up Hong Kong, the one and only reason must be the inadequate protection that the law offers to copyright owners. Even if the pan-democrats' proposal on restricting contract override is really well-intentioned, they will still end up doing a disservice, depriving people engaging in creative works of any room for survival and legitimate protection. For the reasons above, I oppose the amendment seeking to restrict contract override.
(THE CHAIRMAN resumed the Chair)
Chairman, welcome back. We are all aware of the announcement made by the Secretary last week. He basically sentenced the Bill to death. I wish to share with Members some thoughts of mine. Recently, the term localism has become increasingly popular. In fact, protecting copyright and the creative industries by means of this Ordinance is conducive to the constructive development of localism. First, the films and music produced by local people 6214 LEGISLATIVE COUNCIL ─ 2 March 2016 are the best carriers of local traditions and values. The 1970s, 1980s and 1990s were the golden eras when local films and music brought Hong Kong to the attention of the world. At that time, I had to toil and sweat in order to build up my business. Like many young entrepreneurs, I would think of two lines from a song by Sam HUI in my moments of depression. Let me sing them to you all: "命裏有時﹐終須有; 命裏無時, 莫強求". (If something is destined to be yours, it will be; if it is not, just let it be.) Whenever I sang these two lines, I would have peace of mind. Many friends of mine felt the same, and my children are also familiar with these two lines. The words are full of positive energy, and whenever I have any grievances and dissatisfaction, singing these two lines will work quite some magic.
Secondly, creative industries are important local economic activities. Film ― making, song composition and lyrics writing can all enable local young people to display their talents and give them opportunities to move up the social ladder. Supporters of localism often advocate the need to develop our local economy and avoid an over-reliance on the Mainland. In that case, they should give strong support to the passage of the Bill, shouldn't they? The box office of local films has dropped by one third when compared with the records of many years ago. There are many reasons for that, but online streaming of films and piracy are definitely some of the main reasons. Under this situation, how are we going to develop our local economy?
The present situation sees all four sides suffering loss. Copyright owners lose. Young creators lose. Localists lose. The Government, who fails to legislate on this issue, also loses. Only a very small number of Members make headcount requests, but all other Members who deliberately stay outside the Chamber in an attempt to cause meeting suspension are all accomplices. The Copyright Ordinance itself …
(Mr CHAN Chi-chuen stood up)
CHAIRMAN (in Cantonese): Mr CHAN Chi-chuen, what is your point?
MR CHAN CHI-CHUEN (in Cantonese): I request a headcount.
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CHAIRMAN (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)
CHAIRMAN (in Cantonese): Mr Michael TIEN, please continue with your speech.
MR MICHAEL TIEN (in Cantonese): Chairman, did you notice any improvement in my voice when I sang just now? (Laughter)
I thank Mr CHAN Chi-chuen for giving me an opportunity to repeat what I very much wanted to say just now. The present situation sees all four sides suffering loss. Copyright owners lose. Young creators lose. Localists lose. The Government, which fails to legislate on this issue, also loses. Only a very small number of Members make headcount requests, but all other Members who deliberately stay outside the Chamber in an attempt to cause meeting suspension are all accomplices …
(Some Members tapped the benches in cheers)
The Copyright Ordinance is an ordinance involving legal, economic and livelihood issues. Chairman, why can't we act sensibly even with these issues? Nowadays, Hong Kong people do not trust the Government, political parties and politicians. But the Judiciary and legal professionals can still command our respect. To the public, the Hong Kong Bar Association is still a professional body of high esteem and credibility. They have repeatedly pointed out the problems with the amendments proposed by the pan-democrats, and they also supported the expeditious passage of this Government Bill.
In fact, during the scrutiny of the Bill by the Bills Committee, several pan-democratic Members also pointed out the merits of the Bill, admitting that it was better able to protect netizens than the existing Ordinance. But they later noticed the strong reaction of netizens. In fact, the duty of Members is to clarify any misunderstanding the public may have. But have Members done their best 6216 LEGISLATIVE COUNCIL ─ 2 March 2016 to discharge their duty? After they have done clarification, they can still express the views of the public on their behalf and start a sensible discussion together. We all know in our heart that the Bill proposed by the Government is not a draconian law. If pan-democratic Members are not persuaded, they can veto the Bill. Why do they choose to filibuster and ruin the legislative process?
Chairman, I wish to put on record the faults of some Members. They yield to netizens as soon as they call for actions. They are opportunists and do not bother about what is right and what is wrong.
I so submit.
(Some Members tapped the benches in cheers)
MS CYD HO (in Cantonese): Chairman, Mr Michael TIEN could sing so freely and happily because he is protected by a privilege. The Copyright Ordinance does provide that the Legislative Council enjoys exemption. Does he dare to sing outside the Council? Does he dare to sing elsewhere without any special permission? Even LEUNG Chun-ying may be prosecuted, and the Government …
(Some Members speak loudly)
CHAIRMAN (in Cantonese): Honourable Members, please keep quiet.
MS CYD HO (in Cantonese): In its reply given to us a few weeks ago, the Government makes it clear that whether a person infringing the copyright of a work will face any legal liabilities will all depend on whether the copyright owner wants to take any actions. This means that even some very common and delightful acts such as singing may constitute an offence under the proposed legislation and plunge people into great trouble. How can we give the green light to this legislation?
Furthermore, Chairman, Mr Michael TIEN just talked about various commercial acts and said that some creators might stop engaging in creative work in Hong Kong. In fact, the contract override provisions referred to by him have LEGISLATIVE COUNCIL ─ 2 March 2016 6217 been put forward in view of the several exceptions proposed by the Government. Mr Dennis KWOK says that there should be no contract override because he hopes that the exceptions proposed by the Government can be fully implemented and will not be reduced in effect by private contracts. Besides, when the Court considers whether a case is covered any of these exceptions, it will consider whether it is for profit-making and commercial purposes. Therefore, it is in fact more suitable to discuss the example cited by Mr Michael TIEN just now at the next round of discussions on fair use and user-generated content (UGC).
Chairman, let me return to the discussion on contract override. In fact, I want to respond as much as I can to a point raised by a Member at the meeting before last. According to the Member, we now have the Unconscionable Contracts Ordinance in Hong Kong and we also have the Consumer Council to stand up for consumers. Therefore, even though there is no provision on restricting contract override provision in the law, protection is still adequate. First of all, it is arguable whether a netizen accessing an Internet intermediary platform is a consumer. Under the Unconscionable Contracts Ordinance, protection is only given to a party dealing as consumer. Since netizens may not need to pay the intermediary platform, we might as well treat them as content providers. In respect of these Internet intermediary platforms, they can be business partners having no money transactions with them. They might not be consumers. Therefore, are they protected under the Unconscionable Contracts Ordinance? It is really doubtful, and can lead to disputes.
Moreover, in case these amendments are passed and there are no provisions on restricting contract override in the contracts of intermediary platforms, once copyright owners make any complaints, the very first thing intermediary platforms would do in order to avoid trouble is, of course, to take measures like freezing or blocking accounts. In this way, they can avoid having too many arguments with copyright owners. However, this would undermine the freedom of expression and secondary creation as there is a clause for netizens to comply with. Nonetheless, if there is a provision on restricting contract override, there will be pressure on both parties regarding arbitrary deletion of the content as there is a provision specifying that they cannot exercise their power to remove these data. Moreover, the online account holder can also initiate prosecution against the intermediary platform under the restriction of contract override. When both sides are subject to pressure, when both sides are required to think twice, netizens can enjoy greater room and freedom to engage in secondary creation.
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Furthermore, Chairman, Prof Lee MASON of the University of Hong Kong published an article in the Official Journal of the Law Society of Hong Kong in September 2014, saying that protection to consumers under the Unconscionable Contracts Ordinance is inadequate and should be reviewed and updated. At the past several meetings, my colleague said that this Ordinance is already in place and should be able to provide adequate protection. Prof Lee MASON's article is the right response to his interpretation, as it points out that the Ordinance actually fails to provide adequate protection.
The Unconscionable Contracts Ordinance was enacted in 1995. Yet in fact, there have only been very few cases since its enactment. Only four appeals were allowed so far. The Professor found that although the ordinance is titled the Unconscionable Contracts Ordinance, the adjective "不合情理" (meaning "unreasonable" in Chinese) is used in the Chinese version of the law. In fact, the threshold of "unconscionable" can be much higher. In the United Kingdom, the word used is "unfair", the threshold of which can be much lower. Although he also points out that the definition of "unfair" used in the United Kingdom is very similar to "unconscionable" used in Hong Kong under their respective legislation, the word "unconscionable" itself ― I don't know if it should be translated into Chinese as something meaning "unscrupulous" ― the word "unconscionable" could have a higher threshold.
In fact, the Unconscionable Contracts Ordinance of Hong Kong states that the Court shall have regard to, amongst other terms and conditions, whether both parties have equal relative strengths at the time the contract is made, and whether the terms and conditions are reasonably necessary. Therefore, apart from the fairness of the terms and conditions, the Court has to consider the overall circumstances, such as whether the consumer is given chances to understand the contractual terms and conditions, and whether the consumer must accept the terms and conditions in order to enjoy the service, or else he would be denied of such service. Similarly, will the provisions of the Ordinance cover situations like some beauty parlours and fitness centres trapping up their customers for six hours, forcing them to pay a service contract of $300,000 by credit card before releasing them? But there were very few litigation cases in the past. Why? Because the legal costs involved are very high, really expensive. Though the Consumer Council has set up a Consumer Legal Action Fund, legal assistance is not easily granted. Look at the Consumer Legal Action Fund of the Consumer Council and we can see that in the second and third quarters of 2015, its balance was $12.37 million with a backlog of 15 applications. One of them was granted LEGISLATIVE COUNCIL ─ 2 March 2016 6219 assistance, five were rejected and nine still being processed. Therefore, when Mr Martin LIAO mentioned last time that the Consumer Council can help, in practical term it is very difficult and can hardly be of any use. As to whether a consumer can win his case, the answer is yes because there has been a precedent case in Hong Kong. It should be about 10 years ago. At that time, a telecommunications service provider started to charge their customers $10 as tunnel licence fee. After signing up for their mobile phone service, each customer would find $10 tunnel licence fee automatically charged on the monthly bill. One of the customers was a lawyer who has good knowledge of the law. So for this $10, he sued the company providing the telecommunications service and eventually won his case. But an ordinary citizen would not bother to quarrel with the company just for $10. So, Chairman, these unfair terms and conditions are placed in the least noticeable part of the contract, making it difficult for the contracting party to lodge complaint and initiate litigation. Therefore, Mr Dennis KWOK's amendment is just meant to explicitly indicate that ― if a work falls within the scope of parody, commenting on current events and quotation covered by the proposed exceptions under the Amendment Bill, then even private contracts cannot infringe upon the scope of these copyright exceptions. We find this provision very appropriate. The absence of this provision will be very unfair to consumers with no bargaining power.
Chairman, in addition, this professor also comments that it is time to conduct a comprehensive review of the Copyright Ordinance. His view is shared by the Law Reform Commission of Hong Kong (LRCHK). LRCHK also considers that we should make reference to the United Kingdom provision on unfair contract as the basis for revising the local legislation. What is good about the provision of the United Kingdom? Because the United Kingdom has already accumulated quite a number of precedent cases, much more than those of Hong Kong. So, if the Government can make a comprehensive review based on the United Kingdom provision, it can actually provide better protection to the contracting parties under the Unconscionable Contracts Ordinance.
Chairman, another example I wish to quote is about how unfortunate and miserable Hong Kong consumers are. We all remember the Lehman Brothers incident. In fact, Lehman's small investors could have duly applied this Unconscionable Contracts Ordinance to protect themselves. But why no one did so despite the large number of victims? It is because we do not have a class action regime. If each victim initiates proceedings on his own, the legal costs may outweigh the benefits. If an individual victim commences a lawsuit, it is 6220 LEGISLATIVE COUNCIL ─ 2 March 2016 not impossible that he might have to spend millions or ten million on legal costs, probably more than the investment loss. Hence, it can be seen that under the entire legal framework of Hong Kong, from the Unconscionable Contracts Ordinance governing unconscionable contracts, the Consumer Council's frequent failure to get even for the consumers, to the occurrence of the extreme case of the Lehman Brothers incident, legislation related to contract issues can hardly help. Based on these past examples and cases, we actually see that if we do not incorporate Mr Dennis KWOK's proposed restriction on contract override into the Copyright Ordinance, freedom of second creation on the Internet would actually be greatly limited.
Chairman, Members might later, in accordance with Rule 40(4) of the Rules of Procedure, move that further proceedings of the committee be now adjourned and we would debate on that motion. We do hope to raise some more general comments later, though the motion of adjournment may not be agreed to. Even so, I am sure that my colleagues still have a lot of points to make regarding contract override.
Thank you, Chairman.
MR CHAN CHI-CHUEN (in Cantonese): Chairman, please do a headcount.
CHAIRMAN (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, but some did not return to their seats)
CHAIRMAN (in Cantonese): Honourable Members, please return to your seats. Mr Alvin YEUNG, please speak.
MR ALVIN YEUNG (in Cantonese): Chairman, I feel much honoured that this very first speech I give in this Council is about the Copyright (Amendment) Bill 2014 (the Bill). Chairman, before giving my speech, please allow me to briefly respond to certain arguments made by Mr Michael TIEN earlier. Mr TIEN said LEGISLATIVE COUNCIL ─ 2 March 2016 6221 that when netizens "blow the whistle", the democratic Members have to "kneel down". Please allow me to remind Mr TIEN, as nowadays in Hong Kong almost everyone uses the Internet, netizens are in fact our people. When people have concern about their interests, as elected representatives, we are duty-bound to safeguard their interests.
Chairman, what is the use of the law? We would like to point out that it is necessary to revise the existing Copyright Ordinance as it lags behind the trend and the times ― we believe both the democratic Members and other Members in this Council would agree to this point. But Chairman, please allow me to explain to other colleagues in this Council and some members of the public that, we are not supposed to make laws for the purpose of catching up. Rather, we need laws that are advanced and ahead of the times. Chairman, the Bill is particularly important because it concerns the Internet world and freedom of creation, so it must cover the scenarios of the future world. It is only by doing so that we can create the most favourable environment where people can have vast room for creation and a high level of freedom on the Internet in the future.
Mr TIEN also mentioned the Hong Kong Bar Association's recent comments on the Bill. Please allow me to respond a bit here. We absolutely respect the views of the Hong Kong Bar Association, which comprises eminent figures in the legal profession. Yet please allow me to remind the Members present in this Council and particularly Mr TIEN that while the Hong Kong Bar Association's opinions referred to the law, our discussion in this Council is about politics, and we are addressing the concern and worries of the people. This happens to echo with what I said at the beginning of my speech ― netizens are our people, and we have to address their worries too.
Chairman, according to the principle of common law, no private contract may override or contravene the law. For instance, if the hourly wage stated in an employment agreement is lower than the statutory minimum wage, it is obviously a contravention of the Employment Ordinance, and the agreement concerned is unenforceable. In other words, freedom of contract is always subject to the law. This notion happens to run counter to the excuse cited by the Intellectual Property Department (IPD) to support its argument that it is inappropriate to introduce restriction on contract override in the Bill. Please allow me to respond to some of the arguments put forth by the IPD.
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From the policy perspective, the IPD's argument is that freedom of contract plays a vital role in Hong Kong's free-market economy and it remains a cornerstone of the law of contract. But our argument is that it will be an impairment to freedom of contract if copyright owners and users are not allowed to negotiate appropriate terms among themselves. Chairman, as I mentioned just now, any freedom contract in any form should be bound by the law ― this is one of our key justifications as well as the basis of our argument that it is essential to include in the Bill a provision to restrict contract override.
The IPD's argument from the legal perspective is that a contract is a private agreement that two parties enter into in order to set out their respective rights and obligations, so general users who are not parties to the contract shall not be bound by the provisions of the contract, and the copyright exceptions shall also remain in force. Moreover, there are relevant provisions restricting freedom of contract under suitable conditions. The IPD also pointed out that the operation of the existing copyright exception regime has been effective so far. They have not seen any actual example of restricting the use of copyright exceptions by common users. As Britain is the only country in the world that has introduced the relevant restrictive provision, and the implementation of such provision is still at its early stage, the IPD held that it is better for us to wait and watch further.
Chairman, if Hong Kong manages to be the vanguard of the world in many fields, why are we not brave, receptive and far-sighted enough to run ahead of the times in law making, particularly in the making of Internet-related law? Moreover, if other colleagues present in this Council all agree that our judiciary system is sound as it claims, we should have confidence to entrust the relevant provision to our judiciary system for an unbiased interpretation in case of conflicts and disputes. This is the judiciary system that has attributed to the success of Hong Kong.
Chairman, the IPD further pointed out that if a provision to restrict contract override is included in the Bill, all private contracts, even though they may contain provisions limiting the creation and behaviours covered by the statutory exceptions, will automatically lose the force and power of enforcement. Chairman, I however want to emphatically clarify that our proposal or the amendment raised by Mr Dennis KWOK does not aim to restrict anyone's right. In fact, this amendment put forth by us would not only protect the netizens, it would also bring equal protection to copyright owners. This is a spirit that our law should have.
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Chairman, I would like to emphasize one point ― not every Hong Kong citizens understands the law, and not everyone clearly knows that private contracts have no power at all to override the law. If we follow this logic and consider the Bill from the angle of the public, we will be doing something that can genuinely protect the public, particularly their right to use on the Internet. The Ordinance should therefore elaborate more clearly, or else members of the public would have to find their safe zone between the lines of the law or contract provisions. I believe this is also one of the reasons for Mr Dennis KWOK's amendment. The incorporation of a provision to restrict contract override in the Bill can elaborate even more clearly to the people their right as a user.
Chairman, there is one thing that I would like to explain to the Members present. As I mentioned just now, this time we are seeking to let the public learn about the right conferred on them by the law in a far-sighted manner … what kind of right am I referring to? They have the right to get a clear idea of whether their behaviours are protected by the law; they are not supposed to go through the law or contract provisions in order to find that out by themselves. We raise amendment to the Bill because we believe we have the responsibility to provide maximum protection for them.
Chairman, if we do not incorporate a provision to restrict contract override into the Bill this time, copyright owners only have to include a clause into the contract stating that the copyright works set out in the contract shall not be used for the purpose of the creation and behaviours covered by the statutory exceptions, then it is still possible for them to initiate civil charge against the users even though they have applied the exceptions on their works and behaviours. I would say that netizens' worries are not without reason. They worry that they may not have sufficient financial strength, time and energy to deal with the potential or large-scale civil charges against them. I believe other Members in this Council know very well that we are not finding faults with the Bill without reason. We do hope that Members can consider the Bill from a wider perspective.
Chairman, I may not be able to use up my 15-minute speaking time, but I hope my first speech can encourage other Members to join the debate in this Council.
I so submit. Thank you.
MR ALBERT CHAN (in Cantonese): Chairman, may you please do a headcount? Thank you.
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CHAIRMAN (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)
CHAIRMAN (in Cantonese): Mr Frederick FUNG, please speak.
MR FREDERICK FUNG (in Cantonese): Chairman, I rise to speak in support of the amendments to add provisions on restricting contract override in respect of copyright exceptions, which were initiated by Mr Dennis KWOK in the Bills Committee and moved on his behalf by the Bills Committee Chairman.
Chairman, as I mentioned during the Second Reading debate, any private contracts which restrict the use of copyright works by the public or consumers will offset the exceptions set out in the Copyright (Amendment) Bill 2014 (the Bill) in relation to the use of copyright works by the general public. Chairman, as we said earlier, the Bill now under scrutiny is an improvement over the existing Copyright Ordinance and the Copyright (Amendment) Bill 2011. In particular, regarding the greatest concern of society, it sets out the acts (such as secondary creation and commentary) that users may do on the condition of not infringing the rights of copyright owners. In short, the Bill expands the scope of exceptions to cover the fair dealing of certain copyright works for the purposes of parody, satire, caricature and pastiche; the fair dealing of certain performances or recordings for the purposes of commenting on current affairs; and the quotation of certain copyright works for purposes such as criticism and commenting. I cannot deny that the above exceptions are progressive. However, if we allow contract override, we will in effect be creating a huge loophole in the exceptions permitted under the existing legislation, thus rendering such exceptions virtually ineffective.
Chairman, the public will surely understand why the Council must spend so much time on debating the amendments on restricting contract override. As a matter of fact, restricting contract override is very important. At present, by means of unequal contracts, copyright owners can require consumers and users, who are in a disadvantageous position, to comply with some special rules of using copyright works, and such rules actually override the exceptions which the public are otherwise entitled to under the law. LEGISLATIVE COUNCIL ─ 2 March 2016 6225
Let me give an example. When we buy a book, we will find the expression "All Rights Reserved" inside the book, either on the first page or the last page. What does it mean? This is precisely a means by which the publisher forces consumers to enter into a contract. It is specified that the publisher owns all the rights relating to the work. Chairman, they are talking about "all rights" but not "some rights". This is obviously an example of how the copyright owner seeks to maximize the benefits associated with his right. "All Rights Reserved" as a term in a private contract clearly conflicts with the exceptions under the existing Copyright Ordinance and the Bill under scrutiny today. For example, section 41A (1) of the existing Copyright Ordinance provides, "Fair dealing with a work by or on behalf of a teacher or by a pupil for the purposes of giving or receiving instruction in a specified course of study provided by an educational establishment does not infringe the copyright in the work or, in the case of a published edition, in the typographical arrangement."
Chairman, the lawful use of a copyright work for the purposes of giving or receiving instruction is a clear exception under the law. How come the copyright owner can still use the all-embracing term of "All Rights Reserved" as a means of putting all rights in his own hands? This act not only deprives the public of the right to use copyright works lawfully but also hampers freedom of expression and creation.
Some copyright owners may say that they have never used this as a means of suing those consumers or users who use copyright works lawfully within the scope of exceptions. They therefore think that people need not worry. Chairman, it is precisely for this reason that this all-embracing contract term is unnecessary and there is no need for its existence.
The community will wonder why the authorities should insist on hanging the knife of "contract override" over the heads of the public. All can see clearly that the public are entitled to the reasonable and fair use of copyright works in accordance with the exceptions under the law. Why do the authorities insist on leaving behind something that may plunge the public into the huge risk of civil lawsuits? This does not make any sense and runs counter to the legislative intent of drawing up exceptions to enable the public to use copyright works. The exception provisions are beautifully packaged as a set of parameters designed on the premise of not infringing the rights of copyright owners and performers and also with the purposes of ensuring the reasonable and lawful use of copyright works by the public and checking the unlimited extension of copyright owners' 6226 LEGISLATIVE COUNCIL ─ 2 March 2016 rights. But now, by unilaterally drawing up unequal contracts and imposing them on users, copyright owners may stay above the law. As a result, we can foresee a great reduction in the effectiveness of all the new exceptions proposed in the Bill, be they exceptions in respect of parody, satire, caricature and pastiche, or those about quotations of copyright works for the purposes of criticism or commenting on current affairs. These exceptions are the fruit of people's strenuous struggle during the consultation and they have all been discussed thoroughly by the Legislative Council with the aim of striking a balance between the respective interests of copyright owners and users. However, regrettably, if contract override is accepted, all these exceptions will simply go down the drain.
Chairman, while netizens think that they can use copyright works for secondary creation, satire or commentary without any worry, they do not realize that at the time of publishing their copyright works, copyright owners already inserted some unequal provisions secretly to reserve all rights, one example being the term of "All Rights Reserved". Netizens think that they can give play to their creativity lawfully and engage in secondary creation and satire to win people's approval and give them food for thought. In the end, they may get many "likes", but at the same time they may also receive lawyers' letters from copyright owners warning them that civil actions may be taken against them. Copyright owners may also request the Court to issue an injunction against any so-called infringement acts not permitted by the contracts concerned. Moreover, copyright owners may also file claims for pecuniary compensation against netizens due to the losses they may suffer.
Chairman, copyright owners may say that they will not do so because this will require lots of formalities and the cost-effectiveness is very low. They say that their targets are instead massive infringement acts which cause huge losses on their part. If so, there is all the more reason for the Government and copyright owners to stop insisting on hanging the knife of "contract override" over the public.
However, why do they still stand so firm and refuse to make any concessions? I think the only explanation must be their intention of using contract override to achieve a chilling effect. Obviously, the sole purpose of this knife is to achieve a kind of deterrent effect. It is hoped that the issuing of lawyer's letters and warnings can scare people and discourage them from using copyright works lawfully. With all the assurance of their huge financial strength and the lawyers they can hire, copyright owners know that when it comes to LEGISLATIVE COUNCIL ─ 2 March 2016 6227 litigation, they always have the upper hand and can overwhelm users with threats or mere mentioning of legal actions. They want to make sure that they are always in control and members of the public and users of copyright works, who are in a disadvantageous position, are no match for them at all times. This is actually shows in miniature how the rich get more powerful and the poor get weaker in our society.
Chairman, a civilized society should put in place just systems and reasonable laws that can narrow the gap between the strong and the weak. There must be a level playing field where the interests of the weak can be protected in the competition between the two sides. Unfortunately, our mercantile SAR Government is good at nothing except protecting those with vested interests. It has been doing so in all cases, including constitutional reform, livelihood issues or even the Bill today. In principle, our copyright legislation should check the unlimited extension of copyright owners' rights and set a reasonable scope of exceptions within which people's freedom of creativity and expression can be protected. However, the Government instead wants to retain contract override, a loophole enabling copyright owners, the stronger side in an unequal relationship, to bypass the Copyright Ordinance and force the weaker side to accept the contract override provisions it has drawn up. This will render the scope of exceptions offered by the Bill practically meaningless. This is simply absurd.
The fundamental problem is that the Government has always focused on the interests of copyright owners as the theme throughout this legislative process. This piece of legislation is called the Copyright Ordinance but not the "Protection of Public Freedom in Expression and Creation Ordinance", right? Actually, the focus of the amendment to the existing Copyright Ordinance is the introduction of an all-embracing communication right covering all modes of communications for protecting the interests of copyright owners. People's freedom of expression and creation which are of public concern are just regarded as side-issues. I want to stress that the freedom of expression and creation possessed by Hong Kong people should be the main issues instead of any side-issues. I can recall that during the Second Reading of the Bill, I mentioned that in dealing with this Bill, we should adopt a two-core rather than single-core approach. In other words, we should consider the rights of original creators and also the freedom of creation and expression. The legislation should be drawn up based on these two cores so as to strike a balance. A single-core approach will lead to the situation we see today.
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The freedom of expression and creation has been turned into a side-issue in the Copyright Ordinance. Actually, our legislation should protect such freedom and avoid the occurrence of the present situation. But such freedom is instead undermined in the Bill and turned into a tool for copyright owners to bargain with the weak. I wish to say that the real override provision is Article 27 of the Basic Law, which provides, "Hong Kong residents shall have freedom of speech, of the press and of publication". If this is adopted as a basis, the protection of copyright should just be a side-issue, not to mention the fact that people's freedom of expression and creation should not be taken away by any private contracts.
Chairman, I hereby call upon the authorities to focus on protecting Hong Kong people's freedom of expression and creation, and on that very basis, accept the amendments to add provisions restricting contract override in respect of copyright exceptions as proposed by Mr Dennis KWOK, so as to address the inadequacy of the provisions under scrutiny and rectify the mistake of biasing too much towards the interests of copyright owners. Regarding copyright owners, I hope that they can be more open-minded and seriously consider whether they really need to adopt such as a strong stance of incorporating into the legislation things which they do not think they will do. Most importantly, of course, the broader communication right they have in mind must also offer protection to other users under certain circumstances, apart from serving to safeguard the interests of copyright owners. Chairman, I hope that the Government and copyright owners can consider this issue more open attitude.
Regarding the four-side discussion promoted by Mr CHAN Kam-lam, I support this approach of dealing with our differences and hope that a consensus can be forged to form the basis for us to further amend the Bill. Nevertheless, the usefulness this four-side discussion cannot receive the Government's due recognition. The Government has just been watching the discussions of others with folded arms. It thinks that whether a consensus can be reached should be the responsibility of others. Why can't the Government listen to the views of both sides, work out a fair balance and then persuade all sides to agree on a final decision? Why has it let this four-side discussion run entirely its own course as if it is none of its business?
I think that with this attitude, the Government cannot possibly deal with this Bill properly. I must advise our Secretary that as the head of the Bureau, he cannot stay out of the discussions completely. Instead, he should realize that he LEGISLATIVE COUNCIL ─ 2 March 2016 6229 is actually in the eye of the storm as the Bill is proposed by him. If any amendments are to be made to this Bill, we must still rely on him for the task. He has said that in case this Council cannot come to any consensus today, he will stop pursuing the Bill. I think that if he refuses to take up the mediation role, he will surely have to do so. If he is to propose another bill with the same attitude in the future, he will have to do so again. The point is that he should not adopt such an attitude. He should seek actively to bring both sides to a consensus.
Chairman, I so submit.
MR CHAN CHI-CHUEN (in Cantonese): Chairman, I request a headcount.
CHAIRMAN (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)
CHAIRMAN (in Cantonese): Dr LEUNG Ka-lau, please speak.
DR LEUNG KA-LAU (in Cantonese): Chairman, Honourable Members, I was not a member of the Bills Committee, and I have not been following the debate on the Copyright (Amendment) Bill 2014 (the Bill). Therefore, my arguments may have some factual errors, or I might say something my colleagues have already mentioned before. Please be patient with me and correct me if I am wrong. However, I also met with the representatives of the Hong Kong Copyright Alliance a month ago. They failed to point out exactly what was wrong with my viewpoint. So I would try to examine the matters from the angle of the competitiveness of Hong Kong's creative industry.
First of all, let me clarify a conceptual issue to see if I have it wrong. Now the main contention is: representatives of copyright owners wish to maintain the proposed scope of exceptions or methods that the Government originally proposes in the Bill, while netizens or those engaged in secondary creation want 6230 LEGISLATIVE COUNCIL ─ 2 March 2016 to have more exceptions, for example, restriction on contract override, fair use and user-generated content (UGC) currently under discussion. I will be speaking on the three amendments because their underlying principle is the same.
Why is there a need to clarify whether the content under dispute now is the same as that stated above, that is, netizens want to have a wider scope of exceptions while copyright owners want to keep the originally proposed ones? Because when I met with representatives of copyright owners, they made a point that though the United States has adopted the principle of fair use, its situation is not necessarily better than that in Hong Kong because there may be a lot of litigations. We discussed this for a long time, and finally I explained it to them using a mathematical approach.
If the red circle in this diagram represents the exceptions proposed by the present Bill put forward by the Government, while the blue circle is the Court's decision on compliance with the principle of fair use, then the scope of exceptions currently proposed in the Bill by the Hong Kong Government is just this purple portion in the middle. In other words, the work in question has to fall within the six categories covered by the scope of exceptions, and also be in line with the interpretation of the principle of fair use ruled by the Court. In the case of the United States, their exceptions cover the purple portion and the blue portion. That means one needs not pay regard to whether the secondary creation is entitled to any exception as long as it meets the principle of fair use. When I explained to the representatives of copyright owners using this diagram, they failed to point out anything wrong with my understanding. This means that in the United States, their scope of exceptions is much wider than that proposed in the Bill by the Hong Kong Government.
Then, the representatives of copyright owners put up another argument, saying that the United States Government has in place some other strict laws to protect copyright owners, so they can adopt the principle of fair use. As an example, they referred to the need for obtaining a licence in the United States. They said that one must obtain a licence before one was allowed to apply the principle of fair use. I then asked if there was no licence or other similar arrangement in the contract, would the description of this diagram still be valid? Still they failed to point out anything wrong in the diagram. In other words, conceptually speaking, the scope of exceptions in the United States is much wider than that proposed under the Bill by the Hong Kong Government. The above serves only to clarify the concept. That is not my stance, but somehow it is a fact.
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As far as the present situation in Hong Kong is concerned, at which point should we place the balance? Should we set a wider or narrower scope of exceptions? My own analysis is that in the case of Hong Kong, at least five stakeholders are involved. They are the Government, Legislative Council Members, copyright owners, those engaged in secondary creation and members of the public. From their points of interest, which is the best way to deal with the matter?
I believe that the general public, though they are neither copyright owners nor persons engaged in secondary creation, will likely view such creative works. To them, to be able to view and use anything will be the best thing. Of the 7 million people in Hong Kong, 6.99 million of the ordinary public may support exceptions to all works, so that they can have full access to them. At first glance, copyright owners certainly would hope to have as few exceptions as possible so that they can collect royalties on more occasions. For those engaged in secondary creation, surely they will prefer as many exceptions as possible so that they can pay less royalties. Theoretically speaking, the Government and Members are playing an intermediary role. Assuming that we have no conflict of interest, we should render support to the side that has a stronger argument.
However, after analysis, I also realize that copyright owners and persons engaged in secondary creation, after all, belong to the same group of people. That is because those engaged in secondary creation would become copyright owners after their works are born. If there is no copyright protection, when the third and fourth creations emerge, the copyright of their secondary creation would likewise not be protected. Any creation is actually based on previous experience. EINSTEIN's theory of relativity, for instance, was also a secondary creation to a certain extent. An old Chinese saying goes, "Learn the 300 Tang poems by heart, then even if you still cannot write any, you can still imitate". If we do not acquaint ourselves with works of past authors, it is truly difficult to create something brand new out of nothing.
If my understanding of this Bill is correct, its main purpose is to regulate the rights and interests of copyright on the Internet. Yet the Internet has no geographical boundary. If the scope of exceptions is different in two different places, the implementation of the regulation is actually quite difficult. For example, the scope of exceptions in the United States is wider than that of Hong Kong. Works of secondary creation of local copyright works, if they fall entirely within the scope of exceptions in the United States, would not violate any 6232 LEGISLATIVE COUNCIL ─ 2 March 2016 law or incur any additional royalty payment when uploaded to the United States websites. When the same works are transferred back to Hong Kong over the Internet, the copyright owner in Hong Kong can hardly do anything …
CHAIRMAN (in Cantonese): Mr LEUNG, you have already spoken for 7 minutes and 30 seconds, but the content is not directly relevant to the topic of this debate.
DR LEUNG KA-LAU (in Cantonese): Chairman, I already said at the outset that I would speak on all the three exceptions …
CHAIRMAN (in Cantonese): Mr LEUNG, even so, the content of your speech is still irrelevant. However, since this is the first time you speak, I am more lenient. Your speaking time of 15 minutes is almost half gone. Please confine your speech to the topic of this debate, that is, please speak on the proposed restriction on contract override in respect of copyright exceptions.
DR LEUNG KA-LAU (in Cantonese): In the case of contract override provisions, someone in Hong Kong may want to upload a work of his secondary creation onto the Internet, but as this cannot comply with the contract override conditions in Hong Kong, so he may upload his work onto the United Kingdom websites because exception is available there. Since the work is uploaded to the United Kingdom websites, so no payment of additional royalty is required. However, if the work is sent back to Hong Kong via the Internet, what can the copyright owner in Hong Kong do? The Internet has no border. What I have just commented is that when the Internet is involved and the scopes of exceptions of two areas are different, it is hard to implement the relevant provision.
Assuming that this provision can be implemented, but when exception is enjoyed by the person engaging in work of secondary creation of Hong Kong origin in the United Kingdom, while exception is denied to the person engaging in work of secondary creation of the United Kingdom origin in Hong Kong due to a narrower scope of exceptions prescribed under the local legislation, it would result in a …
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CHAIRMAN (in Cantonese): Mr LEUNG, I remind you once again that we are now discussing whether the existing Copyright Ordinance should be amended to include a provision disallowing contract override to exceptions permitted under the Bill.
DR LEUNG KA-LAU (in Cantonese): Understood.
CHAIRMAN (in Cantonese): In other words, the topic in question is whether contract override should be regulated.
DR LEUNG KA-LAU (in Cantonese): The example that I have just cited is related to contract override …
CHAIRMAN (in Cantonese): Mr LEUNG, this debate is not about the scope of exceptions. What we need to discuss now is: when the scope of the exceptions is set, can a contract override these exceptions? Should contract override be regulated? All amendments under this debate are focused on this.
DR LEUNG KA-LAU (in Cantonese): So let me use the expression "contract override". In other words, contract override is not allowed in the United Kingdom, but contract override is allowed in Hong Kong. In the real sense, the author in the United Kingdom using works of Hong Kong origin can override the contractual terms and conditions; but the author in Hong Kong using works of the United Kingdom origin cannot override the contractual terms and conditions. Therefore, comparatively speaking, authors in Hong Kong are in a disadvantaged position relative to their counterparts in the United Kingdom. This legislation is about something unwise. In short, it has put authors in Hong Kong in an unfavourable situation.
As we can see, Apple and Samsung have initiated lawsuits in more than 20 countries, suing each other for copyright infringement. The rulings are in favour of Apple in the United States; whereas in Korea, Samsung has won the case. It is because the copyright law of a particular place generally inclines to favour local industries. As I have pointed out earlier on, all creative industries are more or less making reference to past experience for innovative ideas. It is very difficult to start something from scratch. In the case of Hong Kong, if we want 6234 LEGISLATIVE COUNCIL ─ 2 March 2016 to develop our creative industries, the wider the scope of reference, the better. We have no reason to limit our scope of creation, and in particular, we must not make any unfair arrangements to allow others to use our stuffs but not the other way round. This is pretty unwise.
In my opinion, copyright owners in Hong Kong can actually be divided into two categories ― I still have three minutes of speaking time ― one category is still actively engaging in creation, and the other category of copyright owners may have ceased working, producing very few new works and just getting income from the old works. So, we see a phenomenon. Some very famous lyric writers such as Albert LEUNG and Wyman welcome others to make a second or third creation of their works. Yet some copyright owners appear to have lost any desire for continued creation. They are just there to collect royalties without making any new works. For the overall interests of Hong Kong, where should the Council place the point of balance? Should we encourage the provision of a wider scope for those engaging in creative industries, so as not to give them any disadvantage? By this, I mean that we should really consider whether we should seek to make works from around the whole world available for reference and for the purpose of second and third creation, and whether there should be as few restrictions as possible?
As far as I know, Mr CHAN Kam-lam has previously put forward some arguments saying that it is difficult to make the law perfect. Yet I do not think that there is much meaning in this kind of argument. There are two reasons. Firstly, this argument can actually apply to all situations in the world without any exception. It can also be applicable to copyright owners and all people. We can call this a master key. Secondly, as a doctor by profession, I will not talk like this to my patients because I will only do what is best for my patients.
Recently, the situation in the Council is rather chaotic. We can see both filibustering and anti-filibustering. I oppose filibustering on this matter. But even as one who opposes filibustering, I do not think that it is worthwhile to fight against the filibustering on a piece of legislation that sounds stupid to me. From the technical point of view, how can we get the package passed? Firstly, if this side can agree to the views of the other side, the package will get through. Secondly, if the other side can agree to the views of this side, the package can also get through. After all, we have to see where to place the balance. Does the Government agree that its present proposal is very unwise?
Thank you.
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MR ALBERT CHAN (in Cantonese): Chairman, please do a headcount.
CHAIRMAN (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)
CHAIRMAN (in Cantonese): Mr TAM Yiu-chung, please speak.
MR TAM YIU-CHUNG (in Cantonese): Chairman, just now I listened carefully to Mr Alvin YEUNG's speech on the Copyright (Amendment) Bill 2014 (the Bill) following his success in the by-election. Pan-democratic Members punched the benches to give him encouragement. However, lest Mr YEUNG may have forgotten, I want to remind him of the views held by his mentor, Senior Counsel Ronny TONG. Recently, Senior Counsel Ronny TONG remarked publicly that he did not envisage that pan-democratic Members would come their senses and pass the Bill before the deadline. Describing this as Hong Kong people's misery, he criticized pan-democratic Members for having no sense of responsibility because they allowed themselves to be manipulated by netizens and refused to distinguish right from wrong. He added that if the Bill could not be passed, the risk of criminal charges faced by secondary creators would remain high due to the absence of exceptions, and the concerns of copyright owners would persist.
I believe Senior Counsel Ronny TONG will surely be very disappointed if he learns of the remarks of his mentee. Mr YEUNG says he respects the opinions of the Hong Kong Bar Association (Bar Association) as it comprises many eminent personalities of the legal profession. But he also maintains that the Bill is a political issue. In other words, he implies that the Bar Association knows nothing about politics. Mr YEUNG further talks about the need for the laws of Hong Kong to stay at the forefront of the world and the times. But has it ever occurred to him that the existing Copyright Ordinance of Hong Kong is already very out-dated, and the international community has been criticizing us for this and urging us to revise it as early as possible?
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I have much respect for the views of the Bar Association and The Law Society of Hong Kong (Law Society). Here I would like to cite their opinions in order to let the public learn more about this topic, so that the pan-democratic Members cannot easily mislead them. The Bar Association pointed out in its statement released on 16 February that there is yet to be any consensus from copyright owners with respect to secondary creators' further calls for widening the exceptions, it is also illogical to use such request to "hijack" the reform on communication right, which is commonly regarded as something urgently needed in the Bill.
The Bar Association further pointed out that, in the absence of evidence showing that the fear of infringement has considerably stunted the creativity of creators in the past as no exception can be applied, and in the absence of evidence showing that injustice is still inevitable despite the inclusion of various exceptions to protect freedom of speech in the Bill, the argument for forcing further relaxation and enhancing the right of users in the name of encouraging creativity is hardly convincing.
The Bar Association added that copyright owners' voluntary sharing of their works for public use is encouraged provided that no conflict of interest is involved or the copyright owner's interests are not harmed. The Bar Association however emphasized that it is unfair and unreasonable to compel copyright owners to share all their works for public use without compensation. The Bar Association recommended a study to immediately commence on further broadening the fair dealing exceptions, such as private non-commercial use on certain types of work, and believed that these more realistic approaches would be more conducive to obtaining social consensus. At the same time, the Bar Association recommended that sharing platforms be more widely propagated and utilized to strike a balance between the traditional notion of "all rights reserved" and the other extreme of "open sharing without copyright protection".
The Bar Association issued another statement on 1 March, in which it reiterated that copyright law aims to ensure copyright owners, especially those of commercially successful works, receive reasonable compensation and rewards. It also pointed out that the comments made by the Keyboard Frontline were full of misstatements. The Bar Association opined that further discussion is needed as to whether copyright owners' control over copyright should be further restricted, whether the royalty-free unlicensed use of copyright works be fair to LEGISLATIVE COUNCIL ─ 2 March 2016 6237 copyright owners across the board, how to protect the value of copyright from being harmed once the control is restricted, and so on. The Bar Association considered all these questions are equally applicable to and salient to copyright owners as they are to creators of derivative creations. It called upon the various stakeholders to put themselves into the shoes of the others and avoid a confrontational approach. It called for more practical and considerate attitudes and co-operation and collaboration among various stakeholders to collaborate in search of a fair, mutually beneficial and feasible solution.
Law Society also pointed out in its statement released on 28 January that as compared with the existing Copyright Ordinance, the Bill proposed can offer more clearly defined protection to various stakeholders. Moreover, the Bill can provide a quick fix to our copyright law, which has been lagging behind international development for years. Law Society therefore support the passage of the Bill quickly.
In respect of the three amendments proposed by the pan-democrats, namely, the introduction of fair use, the introduction of user-generated content (UGC) as an exception, and the inclusion of a provision to restrict contract override in the Bill, Law Society further pointed out in its statement that as noted from the examples of other countries, the introduction of fair use and UGC is usually accompanied by the inclusion of a statutory compensation regime, it is necessary to study if it is feasible to do the same in Hong Kong. On the inclusion of a provision to restrict contract override in the Bill, some overseas academics are of the view that consideration should be given to whether the provision is applicable to all exceptions, the nature of the exceptions, as well as the justifications for the inclusion of such provision and the scope of its application. Given that the three issues mentioned above are pending detailed study and yet to be sorted out, they should not obstruct the development of copyright law in Hong Kong.
I cited the opinions of the Bar Association and Law Society as they are neutral and sensible opinions that have weighted in legal and political considerations and provided insights on how to unravel the current disputes. I very much agree to the opinions of these two professional bodies and believe that these opinions have reference value for us.
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MR JEFFREY LAM (in Cantonese): Chairman, the four-side meeting held earlier did not yield any result in the end, nor could it find a way out for the Legislative Council to extricate itself from the present predicament of non-stop filibustering. Although I find this very much a pity, I must still thank Mr CHAN Kam-lam for putting forth this proposal and inviting all sides to discuss the issue face to face. It was a great pity that some people were very stubborn and simply left before the discussions.
In fact, since 2006, we have …
(Mr Gary FAN stood up)
MR GARY FAN (in Cantonese): Chairman, I request a headcount.
CHAIRMAN (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)
CHAIRMAN (in Cantonese): Dr Fernando CHEUNG, please speak.
DR FERNANDO CHEUNG (in Cantonese): Chairman, just now I heard Mr TAM Yiu-chung mention the views put forward by Ronny TONG on the Copyright (Amendment) Bill 2014. He said that our new …
(Mr Jeffrey LAM indicated that he had not finished his speech)
CHAIRMAN (in Cantonese): Dr CHEUNG, in fact, Mr Jeffrey LAM had not finished his speech.
Mr Jeffrey LAM, please continue.
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MR JEFFREY LAM (in Cantonese): Chairman, I very much understand things might easily go wrong under such circumstances. Over and over again, pan-democratic Members requested a headcount on the excuse that a quorum was not present, but they themselves were not present and just claimed that they would adopt a new method of locating Members outside the Chamber. Dr Kenneth CHAN said that nothing would go wrong if Members had come back earlier. But he himself was not present the whole day. Well, the time of his attendance is longer today. But, other Members are nowhere in sight.
Let me come back to this amendment. In fact, the Copyright Ordinance should have been updated in 2006. It has since been nearly 10 years. At that time, the Civic Party told the Government that it wished to introduce, and claimed that it would certainly render their support if the Government could do so. The ones who said so were all barristers. Today, they surprisingly voice objection. I do not know whether this is due to their amnesia, their dishonesty or their insatiable desire to get more. I am really baffled. I cannot understand why they do not keep their words. If the Civic Party and other pan-democratic Members do not change their minds and let this Council vote on the Copyright (Amendment) Bill 2014 (the Bill), the efforts of various sides will once again be wasted.
Actually, our copyright regime cannot protect the rights of copyright owners, and I cannot see any respect for the rights of copyright owners on the part of all those people. At the four-side meeting, divergent views, or even very divergent views, were expressed. There were vastly divergent views on copyright and intellectual property. Netizens seemed to think that even though a certain work is copyrighted, it could still be used in any manner and free of charge once the work is put onto the Internet. They thought that this was their freedom and right. Such was their illusion and they simply thought that the works of others should belong to them. However, is this freedom, or is this a disrespect for others' private property rights?
Chairman, copyright owners respect general users' freedom of sharing and secondary creation. Thus, they agree to several exceptions. I hope that when I repeat the word "exceptions" several times, members of the Civic Party can remember that they once agreed to render their support and will not go back on their words. However, have the representatives of netizens shown any respect for the rights of copyright owners? Creators must devote lots of efforts and time to the work of creation. They too have to support their families, provide for 6240 LEGISLATIVE COUNCIL ─ 2 March 2016 themselves and make investments. Investors who invest in such works of creation must do so using their hard earned money or savings. Their purpose is to make some profits. It is the right of copyright owners to allow others to use their works free of charge. Equally, it is also their right to charge people or restrict the re-posting of their works by others. In view of the efforts and time they have spent on their works, the rights of these works should be theirs.
(THE CHAIRMAN'S DEPUTY, MR ANDREW LEUNG, took the Chair)
The restriction on contract override obviously runs counter to the principles of commercial operation long-held by Hong Kong. Hong Kong is a society upholding the rule of law. The law of contract is by no means unfamiliar to us. We know that freedom of contract is a very important cornerstone. If we seek to restrict the contents of contracts to be drawn up by people doing business in Hong Kong simply for political reasons and without any precedents and concrete justifications, how can others agree?
Deputy Chairman, how can creators or the business sector rid themselves of worries if there is no freedom of contract even in a free market? It is particularly worth noting that the Hong Kong Bar Association (Bar Association) has pointed out that the relevant restriction will, in fact, undermine copyright and lead to actual loss. Nevertheless, I notice that the barristers in this Council often express views which are different from those of the Bar Association. The Bar Association has more than once pointed out their mistakes. I therefore wonder whether these barristers are calling a stag a horse. Frankly, they have just been saying whatever they like in order to suit their purpose. They simply think that they are always correct and cannot be wrong.
Mistakes must be admitted. The public must not be misled. They often advocate that Hong Kong must surpass the United Kingdom and catch up with the United States, saying that Hong Kong must take the lead the trend, and that the relevant legislation has been adopted by foreign countries for many years. But many overseas chambers of commerce and firms have already called on Legislative Council Members (including pan-democrat Members) to pass the Bill expeditiously. The matter will affect the worth of Hong Kong as a commercial city. Nevertheless, they refuse to listen. For the sake of securing votes, they have chosen to sacrifice the interests of Hong Kong.
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Deputy Chairman, I understand that some people are worried that if the exceptions set out in the Bill can be rendered ineffective by the contracts drawn up by copyright owners in the future (for instance, parody is allowed in the legislation but not allowed in the contract), netizens will have no protection.
First of all, the existing Copyright Ordinance does not provide for the new exceptions proposed in the Bill, but copyright owners have never lodged any civil claims for damages in respect of parody and commenting on current events. Second, both the Government and the Bar Association do not hold that contract override will render the proposed exceptions ineffective. Netizens are only speculating and worrying. But their worries are all imagined. Further, if netizens have infringed the content of contracts, copyright owners can only stop them by instituting civil actions. Is it worthwhile for copyright owners to do that? Suppose there are really unreasonable contracts in the future, the Copyright Ordinance can always be further reviewed, and the community will then be able to know more about the effects of the contract override provisions.
Recently, the representatives of the other side ― copyright owners ― have remarked that they seldom or have never initiated prosecution against parody. However, they have also said that if the Bill is not passed, they will not rule out that some businessmen may initiate prosecution, and this will cause harm to netizens and members of the public. Thus, passing the Bill is very important. This will also brush the copyright law of Hong Kong up to international standards.
Some say that the provision of greater protection will give people more assurance. They thus wonder why it should be considered undesirable. The point is that the so-called "protection" is derived from undermining the interests of the other side. Thus, the legislation has to strike a balance. In fact, it is not healthy to be biased toward any one side. This will only smother the other side's room for survival. What will happen if a person makes investment in a work of creation only to have his copyright taken away by other people? Worse still, what will happen if all those people even accuse him of various misdeeds? The result is very simple. The person will choose to engage in creative work in other places where intellectual property is respected or sufficient copyright protection is provided.
Hong Kong is a commercial society. If we do not protect commercial rights and instead seek to formulate a piece of legislation which is very harsh to 6242 LEGISLATIVE COUNCIL ─ 2 March 2016 copyright owners due to imagined fear, we will only undermine the interests of Hong Kong in the end.
Deputy Chairman, copyright and freedom of speech are not mutually exclusive. The targets of copyright owners are not common netizens or members of the public but large-scale copyright infringements. Even pan-democratic Members may watch an entire movie or listen to an entire record on YouTube. Do they consider this an infringement act? Does such an act undermine the interests of copyright owners? Will they turn a blind eye to and even further connive at these blatant acts of infringement? Thus, I hope that pan-democratic Members can change their minds. If the scrutiny of the Bill is still not completed this evening, they can try to recall what they said before when they go home tonight, and support the expeditious passage of the Bill.
Deputy Chairman, I so submit.
MR GARY FAN (in Cantonese): Deputy Chairman, I respond to Mr Jeffrey LAM's appeal. Please summon Members back to the Chamber to listen to Dr Fernando CHEUNG's speech.
DEPUTY CHAIRMAN (in Cantonese): You only need to point out that a quorum is not present in the Chamber right now. 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 CHAIRMAN (in Cantonese): Dr Fernando CHEUNG, please speak.
DR FERNANDO CHEUNG (in Cantonese): Deputy Chairman, just now, I heard Mr TAM Yiu-chung quote the views of former Member Ronny TONG on the Copyright (Amendment) Bill 2014 (the Bill). According to Mr TONG, the democratic camp has not done a good job, and the Bill should be passed as early as possible. His views are in marked contrast to those of Mr Alvin YEUNG. Mr Alvin YEUNG is his protégé. Why are Mr YEUNG's views so different LEGISLATIVE COUNCIL ─ 2 March 2016 6243 from his master's? Honestly, every solicitor or barrister has his own opinions on a piece of legislation. And, Ronny TONG did not show any support for Mr Alvin YEUNG in the by-election this time around. So, they naturally hold divergent views. And, this does not mean that the views of Mr Alvin YEUNG must be wrong.
Mr TAM Yiu-chung quoted the stance or certain views of the Hong Kong Bar Association (Bar Association) on this copyright law, saying that we should pay heed to the Bar Association. Frankly speaking, the pro-establishment camp opposed many views of the Bar Association in the past. In the case of the legislative exercise conducted by the Government years back (in 2003) to implement Article 23 of the Basic Law, for example, the Bar Association raised opposition after reading the proposed provisions. But at the time, the pro-establishment camp did not quote the views of the Bar Association and say that they would follow the Bar Association and raise objection. The royalist camp did not do so. Instead, they supported the relevant provisions all the same.
Therefore, I think talking reason is the most important. Now, Mr Dennis KWOK has proposed certain contract override provisions through the Chairman of the Bills Committee in charge of the Bill. Are his proposed provisions justified? Deputy Chairman, the purpose of my speech is certainly to express support for his amendment. Contract override will allow commercial contracts to circumscribe statutory exception and protection. The Government's proposed amendments to the Copyright Ordinance (the Ordinance) seek to add six exceptions covering parody, satire, pastiche, caricature, quotation, and reporting and commenting on current events. But such exceptions can be dispensed with if a commercial contract states that they shall not be enforced or executed. How can this be reasonable? That way, ordinary people may break the law unwittingly. One may say that the two parties to a contract should read the terms and conditions carefully before signing the contract. But it is easier said than done.
In the cyber world today … Many people shuttle between the cyber world and the physical world. When we want to use certain online platforms, social media or programs, we may be asked to sign a contract ― of course, we can do so with a simple click of the mouse instead of appending an actual signature. Another example is that one must click on a box before accessing the Legislative Council website. This is likewise the case with many games, including Candy 6244 LEGISLATIVE COUNCIL ─ 2 March 2016
Crush as cited by many Members just now. Even if such games are free of charge, players must first indicate acceptance of their contracts. Will anyone read such contracts in detail? Impossible. It is because the small fonts of such contracts are virtually unreadable.
What are those contracts all about? If a contract contains terms which preclude the enforcement of certain statutory exceptions, users will be ripped of any protection. This is our worry and also a reason why I support a concept put forth by Mr Dennis KWOK right at the beginning. The concept is originated from Britain, and according to it, a commercial contract cannot override statutory exception even if a copyright owner stipulates in a service contract that the acceptance of the contract terms shall preclude the invocation of any exceptions under the copyright law.
Nevertheless, if this amendment is passed, such contract terms can no longer stand. I think this is rather reasonable. Why are contract override provisions so important? Apart from a simple click to indicate acceptance, there are also Shrink-wrap Licence Agreements. Such agreements are usually found on the packaging of a product. If the purchaser removes the packaging, this will be deemed as his acceptance of all the terms in the licence agreement on the packaging. This is stated in black and white in the agreement, and the purchaser is advised to read the agreement carefully before removing the packaging. However, will an ordinary person have the patience to read the contract printed on several pages in a font size so small that it is virtually unreadable without a magnifying glass after purchasing the product and before removing its packaging? Impossible. Therefore, in the case of copyright, contract override provisions can offer protection to consumers and ordinary people when they use many online platforms and programs. This is very important.
I also want to give an example closely related to Hong Kong. After the Lamma maritime disaster two years ago, two creators ― "gmajmusic" and "SanKaLa" ― joined hands and created an adapted song "Love for Hong Kong" based on a song of Kay TSE called "Love" to mourn the deceased in the Lamma maritime disaster. If one surfs YouTube, one can actually find this song …
(Mr Gary FAN stood up)
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MR GARY FAN (in Cantonese): Deputy Chairman, I request a headcount.
DEPUTY CHAIRMAN (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)
DEPUTY CHAIRMAN (in Cantonese): Dr Fernando CHEUNG, please continue with your speech.
DR FERNANDO CHEUNG (in Cantonese): Deputy Chairman, I was talking about the Lamma maritime disaster in 2012. In response to this disaster, two netizens ("gmajmusic" and "SanKaLa") created an adapted song "Love for Hong Kong" based on a song of Kay TSE called "Love" with the intention of expressing their sorrow. Now, one can still listen to this adapted song and watch the clip on YouTube. But it was once removed from YouTube due to a copyright dispute at the time. The two songs use the same melody but entirely different words. As I am not as good as Mr Michael TIEN vocally, I will just cite part of the lyrics of the song "Love" by Kay TSE: "… Though the road of ordeal is in vain, we'll seek after truth and goodness all the same; breaking apathy with Love is our aim." In the second creation "Love for Hong Kong", this is rewritten as "Even if misfortune is unavoidable, we'll stay forever strong, and with Love, safeguard our glorious Hong Kong". As Members can see, its words are utterly different, and it is obviously a second creation based on the original version. But sadly, this song was removed from YouTube the next day it was completed due to a copyright petition filed by Universal Music Hong Kong. The two netizens created this song with the mere intention of mourning the deceased in the Lamma maritime disaster, offering their condolences and also encouraging Hong Kong people to stay strong in adversity. The song was utterly non-commercial, and they did not have any monetary gains. But sadly, it was removed due to the copyright dispute.
So, Members can now see the impact. Fortunately, Adrian CHOW is the composer and lyricist of the song, so the two netizens sought help from him. Later on, another version was found and could be used as the basis of their second 6246 LEGISLATIVE COUNCIL ─ 2 March 2016 creation. In the end, the song "Love for Hong Kong" was uploaded onto the Internet again and published, and has met with positive responses. If Adrian CHOW had not been so generous to provide another version, this matter would have been adversely affected by the copyright dispute. And, it will be impossible to materialize this creation if we do not enact the contract override provisions now under discussion.
Actually, the copyright issue is very complex. LEUNG Chun-ying's cover version of the song "Loving You", for example, involved various types of copyright. Whether speaking of using the melodies, lyrics, karaoke versions or original versions of songs for the purpose of second creation, if we fail to find a way to prevent contract terms from overriding the Bill's exceptions for users of this platform, they will be caught in copyright disputes at any time. Besides, the Ordinance is basically aimed to safeguard the interests of copyright owners, without any consideration for the intention of creators. Therefore, what is meant by "reasonable"? This actually depends on the mere perception of copyright owners.
Frankly speaking, we also heard what Sam HO said at a press conference in his capacity as the secretary for the Hong Kong Copyright Alliance. According to him, whether to sue individual citizens is a right of copyright owners. In other words, without any contract override exception, ordinary citizens and the two netizens ("gmajmusic" and "SanKaLa") can possibly be sued by Universal Music Hong Kong despite the purely non-commercial nature of their act. Is this really fair?
Deputy Chairman, we can actually find some local examples of restricting contract override. I will not repeat those provisions on restricting contractual freedom which can be found in the laws of Hong Kong such as the Employment Ordinance as mentioned by many Members, including Mr Dennis KWOK. But, Deputy Chairman, I want to say that the Disability Discrimination Ordinance (DDO) actually contains similar provisions. As stipulated by subsection (1) under section 83 (entitled "Validity and revision of contracts") of the DDO (Cap. 487), "A term of a contract is void where ― (a) its inclusion renders the making of the contract unlawful by virtue of this Ordinance; (b) it is included in furtherance of an act rendered unlawful by this Ordinance; or (c) it provides for the doing of an act which would be rendered unlawful by this Ordinance." Such provisions will render a contract void.
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Deputy Chairman, we actually have a precedent. Around 2004 or 2005, a teacher called SIU Kai-yuen with over 14 years of service at Maria College had to take sick leave in order to undergo a surgery for his cancer, and the school arranged a substitute teacher for him. But towards the end of SIU's sick leave, the school decided to dismiss him on the ground that his leave and absence was in breach of the contract term that a teacher's leave and absence in a month must not exceed 10% of his total class time in that month. The school also asserted that this contract term was justified as its purpose was to serve the interests of students. However, the Court found on the basis of the DDO that the dismissal of SIU was discriminatory because the contract term concerned was discriminatory against persons with disabilities. For this reason, the Court held that the contract was void.
Simply put, our arguments, as well as the law and precedent concerned, can all show that we should provide for certain exceptions in law, so that a contract cannot override … One cannot say that the consent of both sides overwhelms everything. This should not be the case. Actually, the consent of both sides does not mean that the spirit of the law is fulfilled, or what they consent to is reasonable. And, the consent of both sides cannot possibly override the statutory protection for them, users, netizens or ordinary people. The statutory exceptions concerned are obviously aimed to protect people's rights and interests. So, how can a contract possibly override such exceptions? For these reasons, I speak in support of Mr Dennis KWOK's proposal.
MR GARY FAN (in Cantonese): Deputy Chairman, I request a headcount.
DEPUTY CHAIRMAN (in Cantonese): Will the Clerk please ring the bell to summon Members back to the Chamber.
(While the summoning bell was ringing, THE CHAIRMAN resumed the Chair)
(After the summoning bell had been rung, a number of Members returned to the Chamber)
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CHAIRMAN (in Cantonese): Mr WONG Yuk-man, please speak.
MR WONG YUK-MAN (in Cantonese): Chairman, this is the second time I speak in the first debate. I intend to speak four times in this debate on the prohibition of contract override. But in view of the present situation, I will consider myself very lucky if I can present all the arguments I have prepared. For the other arguments that I have prepared for the debate, I would try to sum them up in a bid to present them also within this 15 minutes of speaking time.
As I mentioned when I spoke for the first time in this debate, the amendments proposed by Mr Dennis KWOK are not satisfactory enough as they only focus on the six newly added statutory exceptions. Even if all his amendments are passed, they will only provide limited protection to users. In retrospect, I just wonder what the Chairman would have done if I had proposed amendment to each of the 60-odd statutory exceptions without bothering about any repetition and the Government's wish of making the amendments as concise as possible. The 903 amendments proposed by me were already considered excessive by the Chairman. If I really propose amendment to each of the 60-odd statutory exceptions for the purpose of forbidding any private contract terms to override the statutory exceptions under the Copyright Ordinance, I have no idea what the Chairman would do. I guess all my amendments would probably be struck off by you at the end, though my amendments are more or less the same as the amendments proposed by Mr Dennis KWOK. In fact, the Chairman should be consistent in his handling of amendments relating to the exceptions referred to in the Bill. Fortunately, unlike my amendments, Mr KWOK's amendments can remain, otherwise the blame would be on me again.
I recall that the Secretary once suggested that we should "legislate first and review later". In this connection, I have to talk about the case of the United Kingdom. In 2014, the United Kingdom enacted the Copyright and Rights in Performances Regulations 2014 by way of subsidiary legislation to introduce a restrictive provision prohibiting circumscribing fair dealing exceptions established for works of caricature, parody or pastiche with contract terms. As for other newly-included exceptions, such as those established for research, private study and quotation, similar restrictive provisions were also introduced. Attention should be drawn to the following points:
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Firstly, the House of Lords of the United Kingdom held debates in May and July 2014 on the introduction of a new provision on copyright exceptions. During the debates, various members elaborated their arguments for and against the provisions on restricting contract override in respect of the statutory exceptions. It eventually took the House of Lords two months to complete the legislative process. Up till now, excluding the Christmas and New Year holidays, this Council have only spent two months on the Bill. It is therefore unnecessary for the Government and pro-establishment Members to make a big fuss of the matter. Now some Members keep asking for ringing the summoning bell simply because no Member wants to speak in this Council. If all Members actively join the debate, the scrutiny of the Bill in this Council would probably take two months. If all Members do actively present their views in the five debates, if they genuinely debate over the subject, it will certainly take two months' time. Yet over these two months, we have only wasted our time, and the Secretary has yielded.
Secondly, it is not that ideal to stipulate this significant restriction by way of subsidiary legislation. What made the British Government still choose laying down this restrictive provision by way of subsidiary legislation? We should look into the reason for the decision. In my view, the British Government should have realized that in the commercial world of today, all fair dealing exceptions would be nullified in the absence of legislation on the relevant restriction. This explains why the British Government instead used subsidiary legislation to quickly turn the restriction into law in order to avoid the newly-included fair dealing exceptions from being restricted or circumvented by contract terms.
Thirdly, to play down the fact that the United Kingdom had set the precedent of enacting a provision to limit contracting out of statutory exceptions, the British Government emphasized that the provision had aroused much controversy when it was introduced, and the public opinions received during the consultation period in 2011 were obviously diverged. I am not surprised at all with these remarks. I can see that the controversies at that time were no less serious than the controversies on the fair dealing exceptions newly introduced for works of caricature, parody or pastiche. It is only logical that those against the introduction of statutory exceptions should seek to use contract override provisions as a means of limiting or even eliminating the fair dealing exceptions. Hence the controversies on the restrictive provision are in fact an extension of the controversies on what the fair dealing exceptions. Therefore, unless the 60-odd 6250 LEGISLATIVE COUNCIL ─ 2 March 2016 exceptions are some kind of tricks that the Government uses to cheat Members into supporting the Bill, the Secretary should put forth a provision to restrict contract override in order to ensure that the statutory exceptions are genuinely enforceable.
Fourthly, a similar approach of "legislating first and conducting review later" was also adopted by the British Government in its enactment of the limiting provision. Yet the British Government's tone and attitude were exactly contrary to the Secretary's because they were enacting a law to prohibit contract override. The Secretary now calls on Members to pass the Bill first, saying that the relevant law will be reviewed later. To ease the doubts of the House of Lords, the British Government assured members that reviews would be conducted to assess the effect of the relevant amendments within five years after the subsidiary legislation came into force. The results of the reviews will be announced by the end of 2019. The British Government will revise the provision concerned if the restriction has caused adverse economic impact on producers and creators in effect. I think this is a balanced solution that the SAR Government can make reference to. The Government may allow Mr Dennis KWOK's amendment to be passed first, then keep an eye on how the trades are affected after the passage of the amendments. Frankly speaking, unless the system of functional constituencies is abolished, over half of the votes of the Council are still in the hand of the Government. Even if the enforcement of the provision has caused things to run out of control, the Government is still in a position to revise the provision any time.
As I said just now, the controversies on the provision to restrict contract override are in fact an extension of the controversies on the fair dealing exceptions. The logic is that if we want to discuss the series of amendments proposed by Mr Dennis KWOK, we have to thoroughly understand the various statutory exceptions and their importance under sections 39, 39A, 41A, 241, 241A and 242A of the Copyright Ordinance first. Then, we can proceed to elaborate the justifications for permitting or prohibiting contracting out of these statutory exceptions. Chairman, throughout our debate, you have repeatedly reminded Members, including Prof Joseph LI, that our discussion should focus on Mr KWOK's amendments. But if we do not discuss the relevant exceptions ― what I mean is the exceptions under sections 39, 39A, 41A, 241, 241A and 242A that I mentioned just now ― and only speak on Mr KWOK's amendments, our arguments are prone to be weak and empty.
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I have asking myself why the Chairman puts Mr Dennis KWOK's amendments in the first debate. I do not know if the Chairman is so calculating that he deliberately arranged these amendments to be debated in the first debate before the discussion of sections 39, 39A, 41A, 241, 241A and 242A. It has long been an effective practice of the Committee of the whole Council to discuss the provisions with no amendment first. I do not know if the Chairman has decided to abandon the usual practice this time after detailed calculation. It is inappropriate to speculate the Chairman's motive, but I just suddenly come up with the thought that Mr KWOK's amendments should not be put under the first debate. I am most miserable. My 40-odd amendments now have no chance to be discussed in this Council. They would be wasted for sure. My amendments, will be wasted, but I intended to speak four times on the subject of contract override in the first debate, but I do not think I can do so now. I will be very lucky if I can present all my arguments within the speaking time for me. Most importantly, I must also hope that Mr CHAN Chi-chuen will not ask for a headcount. That way, I can finish my speech in one breath.
The Government has time and again used the argument that freedom of contract should be respected to oppose to Mr Dennis KWOK's amendments, which aim to limit contracting out of the statutory exceptions of the Copyright Ordinance. The Government keeps saying that freedom of contract is an important cornerstone of the market economy. But freedom of contract is not and has never been a form of absolute freedom. Almost all jurisdictions in the world would stipulate laws that interfere with freedom of contract, and Hong Kong is not a unique. It is particularly difficult to achieve genuine freedom of contract when the parties to the contract are not on equal terms or one party has much stronger bargaining power than the other party, because the weaker party would tend to be oppressed.
A clear example raised by Dr Fernando CHEUNG earlier is that the provisions on wages, holidays and other employment terms under the Employment Ordinance shall not be restricted or affected by any term set out in an employment contract. Another example is the Mandatory Provident Fund (MPF). Members of the public have never been allowed to decide whether to join an MPF scheme, the amount of monthly contribution and tenure of the scheme. MPF scheme members are not allowed to terminate the scheme in advance unless they suffer from terminal illnesses. Can we consider this as an example of how the law interfere with freedom of contract? The wage protection campaign launched some years earlier proved that if the doctrine of freedom of contract is followed blindly in the labour market, workers are prone to 6252 LEGISLATIVE COUNCIL ─ 2 March 2016 be deprived by employers. And that leads to the conclusion that it is necessary to set a minimum wage level through legislation. This can also be regarded as interference with freedom of contract by the Government or legislation. Is it necessary to interfere in the service contracts entered into with telecommunication service providers if these contracts contain certain clauses impairing fair competition? Would we agree that the restriction imposed on utility services and the mechanisms controlling the adjustments in power tariff and public transport fees are also examples of interference with freedom of contract? The Government must not use freedom of contract as an excuse for stopping the enactment of legislative provisions to specify that contract terms shall not override copyright exceptions.
Sometimes, it is necessary to interfere with freedom of contract for reasons of public policy needs. For instance, to protect copyright, many copyright owners ― like me, a writer ― would usually print a statement on their copyright works for sale, stating that all rights are reserved and using the copyright works for open circulation, lending or rental purposes is prohibited. Such statement may constitute a contract term. The Government has repeatedly emphasized that freedom of contract should be respected, yet how come the public libraries ― a big buyer of copyright works ― allow unlimited borrowing of those works by members of the public without consent from or compensating the copyright owners concerned?
In addition to protecting copyright, the Copyright Ordinance also aims to protect freedom of speech, freedom of creation and the free flow of information. When considering whether contract terms should be permitted to override certain statutory exceptions, we have to weight in these legislative intents and give balanced consideration to public policies. As Mr KWOK pointed out in his speech, when a provision to prohibit contracting out of statutory exceptions was introduced in the United Kingdom in 2014, considerable efforts were made to consider and research the justifications for and against the inclusion of such a provision. One of the arguments supporting the inclusion of such a provision was, upon its introduction, users along with consumers and enterprises will clearly know that irrespective of any terms set out in a contract, the statutory exceptions are applicable under all circumstances and shall not be circumvented. This point is of utmost importance. In this way, copyright owners can no longer impose unreasonable terms on users by incorporating those terms trickily into a contract, or use any unfair practices to sneak unreasonable terms into a contract without the consent of users or informing them. These contract terms are always displayed in a subtle way that makes them hardly noticeable, for example, at the LEGISLATIVE COUNCIL ─ 2 March 2016 6253 end of a movie, on a page of a book, on the back of a receipt, on a button interface of a website. In a word, it is difficult for you to watch out for them.
I still have one-odd minute of speaking time. I do not know what more to say. Actually I would like to discuss whether a provision allowing contract terms to override statutory exceptions is in conflict with public policies. But I have no time to state the arguments I have prepared for this part as I only have one minute of speaking time left. Chairman, this is the end of my speech. Thank you.
MR MA FUNG-KWOK (in Cantonese): Chairman, this is the third time I rise to speak on this amendment. I surely do not agree to Mr Dennis KWOK's amendment. We have a new colleague today who also has a legal background. Very often, we will criticize people with legal background for resorting to politics when they are legally in the wrong and vice versa. Today, this new colleague has shown us a classic example.
Chairman, Mr Alvin YEUNG has also mentioned the position paper and statement recently released by the Hong Kong Bar Association (Bar Association) but he has quoted nothing. He seems to be saying that those are only the Bar Association's opinions. I would like to say that all members of the Special Committee on Intellectual Property (IP Committee) of the Bar Association in fact are legal experts recognized in their trade to have excelled in intellectual property (IP). They are no ordinary barristers. Therefore, their speeches on such legal matters, especially on such complex IP matters, are much worth our reference and consideration, though I dare not say that they are absolutely correct.
I would like to discuss another opinion put forward by Mr Alvin YEUNG. He says that unless we are not enacting legislation, we must enact the most advanced piece. I would like to point out that since the signing of the convention on IP in 1996, 94 out of the 95 countries and regions have enacted legislation, with the exception of Hong Kong. Are we regarded as advanced? However, if we are to talk about being advanced, the Government's amendments do have their merits but why are we not supporting them? For instance, the exception of news bulletin which we propose lately can be said to be almost non-existent around the world. This is unique to Hong Kong. We are at the forefront. Why then do we fail to get the support of our colleagues?
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Chairman, for record purpose, I would like to take this opportunity to read out some of the Bar Association's views on this amendment. Yesterday, they released their latest further response. Yet, I do not find any specific or larger coverage on newspapers which warrants further clarification. The Bar Association's views on contracting out can be found in their position paper. In paragraph 14, they say: "This proposal means that copyright owners and users cannot freely negotiate and agree on terms to contract out of the statutory exceptions."
They continue to say: "In the amendments to the 1988 Copyright, Designs and Patents Act in the United Kingdom in 2014 recently made by the Secretary of State for Business, Innovation and Skills, apart from adding new fair dealing exceptions to infringement of 'quotation … whether for criticism or review or otherwise' and to acts done for the purposes of caricature, parody and pastiche, the new provisions also specify that to the extent that a term of a contract purporting to prevent or restrict the doing of any act which, by virtue of the provisions for exceptions, would not infringe copyright, that term is unenforceable."
They also say: "On the other hand, the United States took the approach that respects freedom of contract and therefore did not legislate on any restrictions on contracting out.
The Australian Law Reform Commission (the ALRC) recommended in its Final Report on Copyright and the Digital Economy that the fair use exception be adopted. Alternatively, if the fair use exception is not enacted, it proposed to expand the current fair dealing exceptions. It further recommended that there should only be prohibition against contracting out of specific libraries and archives exceptions, which is a fairly narrow recommendation. It also clearly indicated that no statutory limitations on contracting out should be provided if the fair use exception is enacted, thereby indicating its view of the incompatibility between a general fair use exception and a statutory limitation on contracting out, which is alsao the position in the United States. Only in the event that fair use is not enacted and the back-up recommendation to expand the current fair dealing exceptions is accepted, limitations on contracting out would apply to the new fair dealing exceptions."
In paragraph 18 of the paper, they say: "Having analysed the experience of other jurisdictions, it can be seen that the proposal of prohibiting contracting out presents the following problems and challenges: LEGISLATIVE COUNCIL ─ 2 March 2016 6255
(i) The proposal does not address the major concerns of most ordinary users like netizens. Since most users (especially netizens) would seldom be in any contractual relationship with copyright owners when they carry out conducts on the Internet (such as making and posting screen captures, creating new lyrics for old songs, editing existing copyright pictures or photos etc.), any provisions regarding contracting out or any restrictions or limitations thereon are unlikely to be of relevance to such users, and no uncertainty as to the scope of the legislative protection is thereby created. Restrictions on contracting out are unlikely to afford any additional protection to such users.
(ii) The proposal would harm the deeply-rooted spirit of freedom and sanctity of contract, and may deter copyright owners from entering into flexible agreements with users. This would stifle the sharing of creative work and further creation.
(iii) If contracting out of the statutory exceptions is not permitted, parties would not be able to ascertain with sufficient certainty that the terms in the agreements satisfy the "fairness" test, until the Court gives a determination on the issue. Such uncertainty may further deter parties from entering into any sharing agreements and would increase the risk of litigation.
(iv) It is possible that parties may agree on terms which are looser and more lenient to users than the provisions of the Bill, for example, to allow users to use the copyright work for purposes which are not listed as one of the exceptions in the Bill, or to copy the whole of the existing work for large-scale commercial exploitation which may not pass the fairness test. The law should respect the parties' rights and allow them to enter into agreements with such flexible terms if the parties so wish. As stated by the ALRC, removing freedom to contract risks reducing the flexibility of the copyright regime, and the scope to develop new business models for distributing copyright materials.
(v) This proposal only deals with civil liability but not criminal liability.
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(vi) Most significantly, this proposal is not supported by any empirical evidence of injustice, therefore no compelling case can be presented to support such a change. Thus far, there has been no evidence that any person has been sued or prosecuted for uses that would otherwise have been exempted had the exemptions been in force ― it follows that there is no evidence of any tendency to take advantage of the absence of the subject exemptions when it was possible to do so against acts of unlicensed reproduction." This is their original position on contract override.
Yesterday (1 March), the IP Committee of the Bar Association made further response to the position paper on the Bill. After publishing its first position paper, it responded to Keyboard Frontline and some queries and interpretations in society towards its position paper. In paragraph 2, they say: "The Keyboard Frontline's statement that 'Australia also has "provisions prohibiting contracting out of statutory exceptions"' is incorrect. Further, the IP Committee has not, as wrongly suggested by the Keyboard Frontline, insisted throughout that only the United Kingdom's legislation has such provisions. In fact, it is a considered view of the IP Committee to focus and elaborate on the United Kingdom experience in the Position Paper due to its high comparative value. The United Kingdom's fair dealing regime is similar to that adopted in the Bill (albeit that the exceptions contained in the United Kingdom's legislation are narrower than those contained in the Bill)."
In addition, they also mention the Australian example and say: "it has been made clear in both the main text of, and Figure 1 annexed to, the Position Paper that the Australian example is what was proposed by the Australian Law Reform Commission (LRC) in its final report on Copyright and the Digital Economy. It is not part of the current law in Australia. In the Final Report, the ALRC recommended that there should only be prohibition against contracting out of specific libraries and archives exceptions, which is a fairly narrow recommendation. It proposed that the fair use exception be adopted. Alternatively, it proposed to expand the current fair dealing exceptions if the fair use exception is not enacted. In particular, it was stated that no statutory limitations on contracting out should be provided if the fair use exception is enacted. Only in the event that fair use is not enacted and the back-up recommendation to expand the current fair dealing exceptions accepted should limitations on contracting out apply to the new fair dealing exceptions. These two alternative proposals on fair use and fair dealing are still in the legislative stage pending enactment." LEGISLATIVE COUNCIL ─ 2 March 2016 6257
In its further response, they say in paragraph 3 that "The so-called provisions limiting contracting out in the Singaporean Copyright Act cited by the Keyboard Frontline differ substantively and substantially from that proposed by the legislative council members. To cite the Singaporean example to support the proposal would be akin to comparing apples with oranges. Therefore, the Singaporean example was rightly excluded from Figure 1 annexed to the Position Paper." Sections 39A and 39B "aim merely at preventing the specific and narrow exceptions for these purely technical copying of computer programmes or software being overridden by standard terms agreement when users purchase software. On the other hand, the proposal by the legislative council members on limiting contracting out does not focus on such uncontroversial purpose-based exceptions and hence its scope and nature is materially different from, and incomparable with, those in Singapore. Further, the Singaporean example once again reinforces the argument put forward in the Position Paper on the incompatibility between a general fair use exception and a statutory limitation on contracting out. Therefore, Singapore, United States and the proposed legislation in Australia are all unanimous on this issue of incompatibility." This is the key point the Bar Association wants to bring out in the position paper but the Keyboard Frontline has not provided any counter examples.
In paragraph 5, they also say that "the Keyboard Frontline commented that both 'fair use' and 'fair dealing' are legislative mechanisms designed to balance copyright against fundamental rights such as freedom of speech and asked rhetorically how rights enshrined under the Basic Law can be overridden by contract. This line of reasoning reflects a poor understanding of Hong Kong's constitutional law. The comments were made on the erroneous assumption that the constitutional law doctrines and precedents in the United States, including those under the First Amendment for protection of freedom of expression, are directly applicable to the corresponding provision in the Hong Kong Basic Law protecting freedom of expression. According to principles established by Hong Kong case law, the Court would examine whether a restriction on freedom of expression is necessary for one of the legitimate aims, namely for respect of the rights or reputation of others, or for the protection of national security, public order, ordre public, public health or morals."
Of course, they have also cited a case to explain their argument on not adopting the reasoning of the United States Court. Paragraph 6 says that "There were cases in the United Kingdom which touched upon allegations of 6258 LEGISLATIVE COUNCIL ─ 2 March 2016 unconstitutionality of certain provisions in the United Kingdom Copyright, Designs and Patent Act 1988. The English Court of Appeal pointed out that there would be rare circumstances where the right of freedom of expression would come into conflict with the protection afforded by the 1988 Act because of the express exceptions provided by the Act. In the rare event of conflict, the Court will balance the protection of the two rights, look closely at the facts of individual cases and apply the Act in a manner that accommodates the right of freedom of expression insofar as it is able to."
In paragraph 7, they say that "the Doctrine of Misuse in the United States jurisprudence as mentioned by the Keyboard Frontline does not answer to the proposition advanced in the Position Paper that the United States takes the approach that respects freedom of contract and therefore has not legislated on any restrictions on contracting out. Neither does it assist any arguments purporting to suggest that fair use is compatible with …"
(Mr LEUNG Kwok-hung stood up)
CHAIRMAN (in Cantonese): Mr MA, please wait for a moment. Mr LEUNG Kwok-hung, what is your point?
MR LEUNG KWOK-HUNG (in Cantonese): Point of order. Do we have a point of order? Apparently we do as I do not think that there is a quorum in the Chamber.
CHAIRMAN (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)
CHAIRMAN (in Cantonese): Mr MA Fung-kwok, please continue.
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MR MA FUNG-KWOK (in Cantonese): Chairman, Mr LEUNG Kwok-hung stopped me from carrying on with my speech on purpose. I believe he cannot achieve his aim.
Let me go back to paragraph 7. They say that "Further, the Doctrine of Misuse in the United States jurisprudence as mentioned by the Keyboard Frontline does not answer to the proposition advanced in the Position Paper that the United States takes the approach that respects freedom of contract and therefore has not legislated on any restrictions on contracting out. Neither does it assist any arguments purporting to suggest that fair use is compatible with provisions limiting contracting out.
According to the IP Committee's understanding, the Doctrine of Misuse originates from the maxim in equity that "he who comes to equity must come with clean hands", which provides a defence against copyright infringement if the copyright owner has unconscionably engaged in abusive or improper conduct in exploiting the copyright, such as antitrust behaviour. If the copyright owner has engaged in such improper and unconscionable behaviour, the Court may exercise its discretion to refuse to grant relief to him for copyright infringement according to the circumstances of each case." Nevertheless, they also bring up two points:
"(a) There is existing protection under Hong Kong law to guard against unconscionable bargains. For example, under the Unconscionable Contracts Ordinance (Cap. 458), if, with respect to a contract for the sale of goods or supply of services in which one of the parties deals as consumer, the court finds the contract or any part of the contract to have been unconscionable, the court may refuse to enforce the contract; enforce the remainder of the contract without the unconscionable part; or limit the application of, or revise or alter, any unconscionable part so as to avoid any unconscionable result. The Court would take into account a wide range of factors in determining whether the contract or any part of the contract is unconscionable, such as the relative strengths of the bargaining positions of the consumer and the other party. Further, there is a common law doctrine on unconscionable bargain developed through precedents that where there is a special disadvantage affecting one of the contracting parties' (Party A) ability to make judgment as to his own best interests and the other party (Party B) knows (or ought to 6260 LEGISLATIVE COUNCIL ─ 2 March 2016
know) of this disadvantage and unconscionably takes advantage of it, the Court is entitled to hold the contract or certain terms of the contract voidable and set aside the contract or the terms therein;
(b) The provisions to limit contracting out of statutory exceptions proposed by the legislative council members lack the flexibility which the Doctrine of Misuse possesses and cast the net too wide to catch unintended acts. The provisions would catch contractual terms which are freely and voluntarily negotiated between parties, even in the absence of any unilateral unconscionable conduct on the part of the copyright owner. On the contrary, the Doctrine of Misuse catches only improper and unconscionable acts carried out unilaterally by the copyright owner, such as antitrust conduct. It follows that the Doctrine of Misuse and prohibition against contracting out of statutory exceptions have very different nature, objectives and effects, and they aim at different mischiefs. Therefore, it is inappropriate to take an overly simplistic approach in the comparison."
Chairman, I have thought that legislative provisions and the Bar Association's position papers are difficult to comprehend. However, after reading these two papers, I find them very clear and simple. They have explicitly and convincingly explained why we should not consider this amendment. I fail to see why our colleagues with legal background simply ignore them and make no response. They have even avoided the papers. I hope they can respond. Thank you, Chairman.
MR KENNETH LEUNG (in Cantonese): Chairman, I rise to speak for the third time in respect of the amendments proposed by Mr Dennis KWOK.
I remember that I explained some concepts of law the last time I spoke. Last time, the Chairman of the Bills Committee, Mr CHAN Kam-lam, said that the amendments put forth by Mr Dennis KWOK to restrict contract override might involve a certain degree of technical complexity for business contracts, especially whether contract override should carry retroactive effect. In response, I gave some responses in relation to certain pints of law.
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Chairman, following my speech last time, I have clarified with the Policy Bureau and Mr Dennis KWOK that both the newly added exceptions and Mr Dennis KWOK's amendments to restrict contract override will not carry any retroactive effect. In that case, how are we supposed to interpret business contracts that are already in existence? There is a point in the concern raised by Mr CHAN Kam-lam, but the issues are just minor legal problems in the course of execution. Such technical complexity is expected and very easy to resolve. The restriction or prohibition of contract override proposed by Mr Dennis KWOK will apply only to those newly added exceptions, namely parody, satire, pastiche, quotation, caricature and commenting on current affairs. The exceptions under the existing Copyright Ordinance will not be affected at all. Chairman, the existing exceptions will not be affected at all.
If a business contract ― I mean a contract which is already in existence ― prohibits acts which are permitted by certain existing exceptions and certain new exceptions, if it prohibits all acts permitted by the existing and new exceptions concerned and provides that such acts will constitute breach of contract, how should it be handled? If the Policy Bureau can issue some guidelines on interpretation and enforcement at appropriate times, it will be easy to deal with such scenarios.
When looking at a business contract, we need to see if the contract as a whole is enforceable. The prohibition of contract override proposed by Mr Dennis KWOK shall not apply to existing exceptions. As a result, the provisions in a contract that prohibit acts permitted by existing exceptions can continue to be enforced. But if the contract also provides for the prohibition of acts such as parody and satire, how are we going to apply Mr Dennis KWOK's proposed restriction or prohibition of contract override? All will depend on whether the provisions in the contract can be enforced separately without compromising the overall enforceability and integrity of the contract. If the answer is yes, then we can consider the provisions on prohibiting acts permitted by the newly added exceptions null and void. The enforcement of the provisions concerned can then be stopped. It is very simple. Of course, in theory, we all think that looking at a business contract is very simple.
Apart from guidelines on interpretation and enforcement issued by the Policy Bureau, we may also look at the many precedent cases of the Court. Chairman, if part of the contract is enforceable while the other part is not valid, 6262 LEGISLATIVE COUNCIL ─ 2 March 2016 what should be done? As a matter of fact, the Court has long since adopted a set of rules or approaches to deal with complex business contracts. I can illustrate this by referring to certain simple cases as examples. These cases have been mentioned by many Members and they are connected with employment contracts. Chairman, we all know that an employment contract may contain some restrictive covenants. Very often, an employer may set out a number of things that an employee is not permitted to do after his resignation. What are these things? For instance, an employee of an advertising agency is not permitted to approach the existing clients of the agency after his resignation, and secondly, an employee cannot be hired by another advertising company in Hong Kong within three years after resignation. These are very common restrictive covenants. Thirdly, an employee who has resigned must not encourage any existing employees of the agency to work for his new employer. These are some restrictions imposed on the employee upon the termination of an employment contract. But, are these restrictions reasonable?
Chairman, an employment contract may contain the three provisions I have mentioned, and there are other provisions at the same time. Some of these provisions may be reasonable while others are not. In some cases, one part of a single provision is reasonable while the rest of the provision is not. Given such a complex situation, what will the Court do? The Court has long since adopted an established practice called the blue pencil approach. This simply means the use of a pencil which can be red, blue or whatever to strike out the unreasonable parts. In this way, all the rest of the contract can be enforced as usual.
Of course, this blue pencil approach is applied by the courts in all countries or places in varying degrees. Some countries apply it more frequently while some are more conservative with it. Chairman, I think that the Court in Hong Kong is willing to adopt this blue pencil approach. It will remove those provisions in a contract which are unreasonable or unenforceable, so as to facilitate the execution of the entire contract. How will the Court make use of the blue pencil approach? The Court will not rewrite the contract. For example, as I have just mentioned, Chairman, is it reasonable to forbid an employee who has resigned to accept employment in another advertising company within a period of three year? If the Court thinks that the entire provision is unreasonable, it will not rewrite the whole contract. It will not delete replace three years by one year. It will not do so, and it will simply delete those parts which are unreasonable.
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On the same basis, Chairman, if the Court looks at a business contract and finds that some provisions relating to the use of intellectual property or copyright works are in breach of the prohibition on contract override, the Court can also adopt the blue pencil approach and remove those parts which are unreasonable or legally inappropriate so as to make the entire contract enforceable. Chairman, in addition to the guidelines on enforcement and interpretation, the Court also has some established approaches which have been adopted in many cases. Therefore, all these unenforceable and commercially unforeseeable circumstances or those minor problems in enforcement can actually be readily resolved.
Of course, some situations are more complicated. For instance, if a contract requires copyright users to pay royalty in respect of parody, satire, quotation or commenting on current affairs to copyright owners, how should such provisions be handled? Suppose this contract was made in the year 2000 and the amended Copyright Ordinance comes into effect on 1 July 2016 with the amendments proposed by Mr Dennis KWOK, what will happen? Before the Bill is passed on 1 July 2016, copyright users will surely have to pay royalty in respect of parody, pastiche or commenting on current affairs to copyright owners in accordance with this contract. However, the only question is after 1 July, if all these provisions and Mr Dennis KWOK's amendments on restricting contract override are passed, will it be necessary to pay royalty? This is the only question the Court has to address. However, after the passage of this Bill, the two parties to the contract can simply look at the contract again and make alternative arrangements to enable the contract be enforced smoothly.
Suppose there are really provisions on prohibiting contract override but both sides hope that the contract can be smoothly enforced, and also suppose the spirit and direction of enforcement of the contract as a whole are enforceable, then they can actually draw up provisions which are relatively independent, that is, every provision is self-contained and the enforceability of every self-contained provision will not be affected by the non-enforceability of other provisions. Chairman, this way of drafting a contract is quite common. Moreover, the provisions in the contract will not become vague or the entire contract will not become unenforceable as a result of the prohibition on contract override. We have rich experience in this respect, and discussions on the prohibition on contract override and freedom of contract in fact …
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MR LEUNG KWOK-HUNG (in Cantonese): Chairman, a point of order. Please do a headcount.
CHAIRMAN (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)
CHAIRMAN (in Cantonese): Mr Kenneth LEUNG, please continue.
MR KENNETH LEUNG (in Cantonese): Yes, Chairman, I was talking about the prohibition on contract override, and Mr MA Fung-kwok mentioned that the Unconscionable Contracts Ordinance could protect consumers. Some Members asked about the relative importance of the freedom of contract and the freedom of information.
Chairman, I just quoted some very simple examples. In the case of the Employment Ordinance, for example, an employee who quits his job may be asked by his original employer to refrain from working for another company (the competitor of his former employer) within the four to five years of his departure. This is exactly the freedom of contract. That employer can give the employee a lot of money but the question is that Chairman, if this employee is not engaged in the professional work that he should do in the workplace within this four years, his skill to make a living will be lost. Hence, it is unconscionable contract. Although the employer can pay this employee a huge sum annually ― this is the freedom of contract ― but the freedom of contract cannot override public interests. Some large companies can stipulate that their employees are not allowed within a period of 20 years to … For example, the Coca Cola Company can give its retired CEO US$100 million requiring him to refrain from working in the Pepsi Cola Company upon retirement and thereafter. Chairman, is this allowed? This example is related to the freedom of contract but in view of public interests, the Court does not allow the principles of this type of so-called freedom of contract to override public interests. And Chairman, freedom of speech is exactly a form of significant public interests.
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Referring to why it is hard to apply the Unconscionable Contracts Ordinance on the Internet, I would think that many young people in the cyber world are not consumers, as the Unconscionable Contracts Ordinance requires that either party must be a consumer. These numerous netizens are ordinary users, so if they want to apply the Unconscionable Contracts Ordinance as a protection, it will require a very high threshold for adducing evidence in Court. Moreover, many netizens do not have the resources, time or even financial power to go to court with these large companies, large Internet firms, large content providers, television stations and copyright owners.
Hence, the amendments to prohibit contract override proposed by Mr Dennis KWOK are quite reasonable and feasible as well. Chairman, with these remarks, I support the amendments proposed by Mr Dennis KWOK.
SUSPENSION OF MEETING
CHAIRMAN (in Cantonese): The meeting is suspended until 9 am tomorrow.
Suspended accordingly at 8.03 pm.
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Appendix I
WRITTEN ANSWER
Written answer by the Secretary for Education to Mr Kenneth LEUNG's supplementary question to Question 1
As regards the number of clinical psychologists serving on the counselling teams of the University Grants Committee-funded institutions, the required information is set out at Annex.
Annex
Number of clinical psychologists serving on the counselling teams of University Grants Committee-funded institutions
Institution Number of clinical psychologists City University of Hong Kong 1 Hong Kong Baptist University 2 Lingnan University 0 The Chinese University of Hong Kong 4 The Hong Kong Institute of Education 1 The Hong Kong Polytechnic University 0 The Hong Kong University of Science 3 and Technology The University of Hong Kong 5 (will recruit 1 more shortly) Total 16 (+1)
Notes:
(1) The information is provided by the institutions.
(2) The information is as at 18 March 2016.
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Appendix II
WRITTEN ANSWER
Written answer by the Secretary for Commerce and Economic Development to Mr Kenneth LEUNG's supplementary question to Question 2
As regards whether the Hong Kong Exchanges and Clearing Limited (HKEx) and the MTR Corporation Limited (MTRCL) are included in the list of exempted statutory bodies, the MTRCL is a company within the meaning given by section 2(1) of the Companies Ordinance (Cap. 622). According to the definition of "statutory body" in the Competition Ordinance, a statutory body does not include (amongst others) a company within the meaning given by section 2(1) of the Companies Ordinance. Therefore the MTRCL is not included in the list of exempted statutory bodies.
The HKEx is also a company within the meaning given by section 2(1) of the Companies Ordinance. However, the key provisions of the Competition Ordinance are not applicable to seven non-statutory bodies, which are all market or platform operators regulated under the Securities and Futures Ordinance (Cap. 571). The HKEx is one of the seven exempted non-statutory bodies.
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Appendix III
WRITTEN ANSWER
Written answer by the Secretary for Commerce and Economic Development to Mr Christopher CHEUNG's supplementary question to Question 2
As regards the regulation of the competition aspect of the Hong Kong Exchanges and Clearing Limited (HKEx), the key provisions of the Competition Ordinance are not applicable to seven non-statutory bodies, which are all market or platform operators regulated under the Securities and Futures Ordinance (SFO)(Cap. 571). The conduct of these bodies, including the competition aspect, has already been subject to the regulation by the Securities and Futures Commission (SFC). The HKEx is one of the seven exempted bodies.
The regulatory objectives of the SFC under the SFO include, among other things: (i) to maintain and promote the fairness, efficiency, competitiveness, transparency and orderliness of the securities and futures industry; (ii) to assist in maintaining the stability of the financial system; and (iii) to protect the interest of members of the investing public. In addition, in pursuing its regulatory objectives and performing its functions, the SFC shall have regard to, among other factors, the principle that competition among persons carrying on activities regulated by the SFC under any of the relevant provisions should not be impeded unnecessarily.
The SFC also has power to require the HKEx to cease any practices or activities that have not been previously approved or that raise regulatory concern. In the process of exercising this regulatory oversight, competition is an element in a balance of factors to be considered by the SFC to ensure a safe and efficient financial infrastructure in Hong Kong.