Members present the president the honourable andrew wong wang-fat, O. B. E., J. P
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- MEMBERS BILLS First Reading of Bills INTERCEPTION OF COMMUNICATIONS BILL UNFAIR DISMISSAL BILL
- UNFAIR DISMISSAL BILL MR LEUNG YIU-CHUNG to move the Second Reading of: "A Bill to provide for the right of employees not to be unfairly dismissed." MR LEUNG YIU-CHUNG
- ADJOURNMENT AND NEXT SITTING PRESIDENT
MR WONG WAI-YIN (in Cantonese): Mr President, I thank the colleagues who were just drinking nearby for rushing back to vote on the motion. Mr President, after hearing the speech by the Secretary for Transport, I, of course, welcome the idea that when the Government discusses with the Kowloon Motor Bus Company Limited (KMB) about the new franchise, it will consider abolishing the Scheme of Control. However, I am really puzzled at his remark that the amendment moved by the Honourable Miriam LAU has foresight. My motion is directed to the KMB and I very much hope that there is direct competition with the KMB. Therefore, I hope that Honourable Members will support my original motion to the effect that there will be direct competition with the KMB so that services will be improved to the benefit of the passengers. Thank you, Mr President. Question on the original motion put. Voice vote taken. Mr TSANG Kin-shing claimed a division. PRESIDENT (in Cantonese): Council will proceed to a division. PRESIDENT (in Cantonese): I would like to remind Members that you are now called upon to vote on the question that the motion moved by Mr WONG Wai-yin be approved.
PRESIDENT (in Cantonese): Members may wish to check their votes. Are there any queries? The result will now be displayed. Mr Martin LEE, Mr SZETO Wah, Dr LEONG Che-hung, Mr Albert CHAN, Mr CHEUNG Man-kwong, Mr Michael HO, Dr HUANG Chen-ya, Mr LEE Wing-tat, Mr Fred LI, Mr James TO, Dr YEUNG Sum, Mr WONG Wai-Yin, Mr CHAN Kam-lam, Mr CHAN Wing-chan, Miss CHAN Yuen-han, Dr Anthony CHEUNG, Mr CHEUNG Hon-chung, Mr CHOY Kan-pui, Mr David CHU, Mr Albert HO, Mr IP Kwok-him, Mr LAU Chin-shek, Dr LAW Cheung-kwok, Mr LAW Chi-kwong, Mr LEUNG Yiu-chung, Mr NGAN Kam-chuen, Mr SIN Chung-kai, Mr TSANG Kin-shing, Dr John TSE and Mr YUM Sin-ling voted for the motion. Mr Allen LEE, Mr Edward HO, Mr Ronald ARCULLI, Mrs Miriam LAU, Mr Eric LI, Mr Henry TANG, Dr Samuel WONG, Dr Philip WONG, Mr Howard YOUNG and Mr James TIEN voted against the motion. THE PRESIDENT announced that there were 30 votes in favour of the motion and 10 against it. He therefore declared that the motion was carried. MEMBERS' BILLS First Reading of Bills INTERCEPTION OF COMMUNICATIONS BILL UNFAIR DISMISSAL BILL Bills read the First time and ordered to be set down for Second Reading pursuant to Standing Order 41(3). Second Reading of Bills INTERCEPTION OF COMMUNICATIONS BILL MR JAMES TO to move the Second Reading of: "A Bill to provide laws on and in connection with the interception of communications transmitted orally, or by post or by means of a telecommunication system and to repeal section 33 of the Telecommunication Ordinance." MR JAMES TO (in Cantonese): Mr President, Article 14 of the Hong Kong Bill of Rights Ordinance (BORO) stipulates that no one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks. This identifies with Article 17 of the International Convention on Civil and Political Rights (ICCPR), and is similar to Article 8 of the European Convention on Protection of Human Rights and Fundamental Freedoms. However, according to the current law of Hong Kong, under Section 33 of the Telecommunication Ordinance, whenever he considers that the public interest so requires, the Governor may authorize public officers to carry out any interception operations. Under Section 13 of the Post Office Ordinance, the Chief Secretary may authorize the Postmaster General, or any other post office staff to open any specified postal packet, or packets of any categories. The Ordinances do not clearly define the circumstances under which this power can be exercised, nor do they specify the uses of the intercepted material, or the persons who may have access to the intercepted material. Though the Ordinances state that such power has to be exercised in line with public interest, but what does "public interest" really refer to? It is The Democratic Party‘s opinion that the power given by these Ordinances is too extensive and unrestricted. It may easily be abused for serious infringement of privacy. This will contravene Article 14 of the BORO, which states that the privacy of the individual has to be protected. Through Article 17 of the ICCPR, that is, Article 14 of the BORO on individual privacy protection, the United Nation Human Rights Committee has made the following General Comment: "This right is required to be guaranteed against all such interferences whether they emanate from State authorities or from natural or legal persons." "Relevant legislation must specify in detail the precise circumstances in which such interferences may be permitted. A decision to make use of such authorized interference must be made only by the authority designated under the law, and on a case-to-case basis. State Parties should provide the legislative framework prohibiting such acts." In a recent European Court of Human Rights case, "HUVIG" versus "FRANCE", whether the telephone interception on HUVIG by the police was "lawful", the court decided that the law had to take the following issues into consideration: the specification of the crime and the person to be named on the court order, the valid period of the court order, the procedure governing the summarisation of the intercepted conversation, and the safeguards on the destruction of the tape. The court finally ruled that the interception was not lawful as the law had not been covered all of the above and there was no reasonably clear indication on the limit of discretion granted to the government agencies and the means of exercising this right. In another European Human Rights Court case, MARLONE versus ENGLAND, on whether the interception of communication was lawful, the court ruled that the law concerned should have adequate indication for the public to know under what circumstances and conditions are government agencies allowed to carry out this disruptive action of communication interception. The court raised three necessary conditions. Firstly, "really serious" offence has been involved. Secondly, other conventional investigation methods have been tried but failed. Thirdly, there must be reasonable grounds to justify that the interception of communication would likely lead to the arrest and conviction of the offender. In the end, the court ruled that the English law concerning the interception of communication is ambiguous and unclear. There is no reasonably clear indication on the limit of the discretion granted to the government authorities and the means of exercising this power. In its summary, the court remarks that the people are not given the minimum legal protection enjoyed in a society under the rule of law. Against the rulings mentioned above, the Subcommittee on Privacy under the Law Reform Commission examined our Telecommunication Ordinance and Postal Office Ordinance, and found them equally short in the specification on the limit of discretion granted to administrative agencies in carrying out communication interception and the means of exercising this power, including no sufficiently clear guidance for the public to understand the circumstances and conditions under which communication interception is allowed. Hence, they are not in line with Article 14 of the BORO. Obviously, a responsible government would lose no time in setting up the relevant legal framework to provide for the power of administrative agencies in the interception of communication, to protect individual privacy, and to ensure that the law of Hong Kong is in line with the BORO and other international conventions. However, in recent years, many non-government organizations, including Justice and the Hong Kong Bar Association from the legal field, and the Legislative Council, as well as the International Human Rights Committee, have been of the opinion that there is insufficient safeguards regarding the laws "in and on connection with the power of interception of communication by administrative agencies", and they have urged the Government to provide more legal protections accordingly. Between 1992 and 1993, the Legislative Council Panel on Constitutional Affairs urged the government to study the issue. Since 1992, Members of this Council have repeatedly asked the Government for the general figures of authorized interceptions. The Government has all along avoided giving any answer. Let us ask, with this lack of transparency and "slippery" manner, and such disregard of human rights and the rule of law, how can the Government gain the trust of the people, and how can it answer to the United Nation Human Rights Committee? The Government has been procrastinating. Last month, the Government released the White Bill as a means of consultation. But it has been reluctant to table the relevant bills to this Council. This is regrettable. The Governor Chris PATTEN once promised the completion of all amendments before 1997. However, the Government, well aware that there are provisions in the Telecommunication Ordinance and the Post Office Ordinance which are incompatible with the BORO, has taken no substantial actions to right the wrong, consequently leaving behind these provisions before the resumption of sovereignty by China in 1997. How can he face the people of Hong Kong? Where is his credibility? Under such unfavourable circumstances, the Democratic Party has no choice but to submit a private bill in order to start the legislative procedure for the setting up of a legal monitoring framework to strike a balance between the right of privacy and the power of communication interception enjoyed by authorized officers. It was the Democratic Party's wish that the Government would table the Bill, as government bills provide more safeguards in monitoring than private bills. Despite our limited resources, the Democratic Party's Bill is produced with reference to the criteria set by the above-mentioned International Human Rights Committee and the rulings of the Human Rights Court. With the compatibility with the BORO as the premise, we hope to strike a balance between the need of efficiency of our law enforcement agencies and the right of privacy protection. Today, on behalf of the Democratic Party, I move this private bill, the purpose of which is to provide for a court order application procedure for authorized officers in the interception of communication and post, and balance the need between individual privacy and fighting crime. The provisions are made with references to the practice of other common law jurisdictions such as Britain, Canada, and the United States. The Bill essentially prescribes the minimum rank of officers who may apply for court order and be approved to carry out legal communication interception in stated circumstances. Legally intercepted material may be admitted as evidence. However, to ensure the fairness and justice of the law, it is subjected to the court's discretion not to admit it on the grounds that to do so would have adverse effect on the fairness of the proceedings. It also provides that court order may be granted for serious crimes only. The application should be made 48 hours prior to the interception operation. Post facto court orders may be granted for emergencies or extraordinary cases. In the application for court order, the authorized officer shall list out the name and address of the person to be intercepted, particulars of the offence, the method of the interception, duration of interception and what other investigative methods have been used and why they failed. The maximum interception duration granted by the court is 30 days, after which an application for renewal is required. The Court shall, 90 days after the termination of the court order and when there are no challenge from the authorized officer, order the destruction of the intercepted material, and notify the person named in the order of such actions. A person who discloses the intercepted material without prior consent shall be guilty of a criminal offence. Illegal interception of communication is an offence liable to the maximum penalty of two years' imprisonment or a fine. We have proposed consequential amendments in the Bill to the effect that section 33 of the Telecommunication Ordinance and section 13 of the Post Office Ordinance be repealed. Intercepting communication is a serious infringement on privacy, though we, at the same time, understand that for the prevention and fighting of crime, the authorized officers carrying out investigations may, under certain circumstances, have to take this approach to collect information and evidence in order to solve the case. However, as commented by the International Human Rights Committee, it should only be the authorized officer's last resort after all other means of investigation have failed. Hence, it is necessary that certain procedures are established within the legal system to discourage the government departments from resorting to interception too often, to prevent the abuse of this power by the Government and to protect the public. It is not the intention of the Bill to weaken the law enforcing power of the police or other law enforcement agencies. In fact, it will not pose too great an impediment to their work. I hope Members will support this Bill. I so submit, and move the Bill be read the Second time. Question on the motion on the Second Reading of the Bill proposed. Debate on the motion adjourned and Bill referred to the House Committee pursuant to Standing Order 42(3A). UNFAIR DISMISSAL BILL MR LEUNG YIU-CHUNG to move the Second Reading of: "A Bill to provide for the right of employees not to be unfairly dismissed." MR LEUNG YIU-CHUNG (in Cantonese): Mr President, I move the Second Reading of the Unfair Dismissal Bill. Purpose The chief purposes of this Bill are to provide for the right of an employee not to be unfairly dismissed by the employer and to make provisions for sufficient remedies for unfair dismissal of an employee by the employer. Inadequate protection The present labour laws fail to provide adequate employment protection to employees. Under the existing legislation, as long as employers abide by the provisions for giving notice or payment in lieu of notice in the Employment Ordinance, they can "lawfully" dismiss an employee without giving any reason except in the following circumstances: female employees taking maternal leave, employees suffering from work-related injuries or taking sick leave with sickness allowance, employees exercising their right of union membership or taking part in union activities and employees testifying in legal proceedings in relation to the enforcement of labour laws. Due to inadequate legal protection, employees who demand the improvement of working conditions or other terms are frequently treated as "troublemakers" and dismissed by their employers on some pretext or other. When employees meet with unfair treatment by the employer, they can only swallow their anger, for fear of offending their employer and getting dismissed. International labour standards It is an internationally recognized basic labour right for employees to be protected from unfair dismissal by employers. According to Article 4 of the Convention Concerning Termination of Employment as the Initiative of the Employer (1982) (that is, International Labour Convention No. 158), unless the employer has a valid reason, such as reasons related to the employee's capability or conduct, or the employer's business needs, the employer has no right to dismiss employees. Article 8 of the Convention points out that if an employee considers himself unfairly dismissed, he is entitled to file a claim with institutions of justice, such as the court, labour court, arbitration committee or arbitrator. Article 9 provides that since it is the employer who makes the decision to terminate employment, the onus of proving that there are valid reasons for the dismissal shall be on the employer. Article 10 also stipulates that employees unfairly dismissed shall be entitled to reinstatement or adequate compensation. Singapore, the Philippines, China, Britain and some European countries have enacted, to different extents, laws on unfair dismissal. Government Bill Recently, the Administration introduced the Employment (Amendment) (No. 2) Bill 1997 to the Legislative Council, some sections of which have incorporated certain principles of Convention No. 158, such as a valid reason for dismissal and the onus of proof on the employer. However, the protection afforded to employees by the Government bill is different from that provided by the Convention. The Government bill only provides for remedies in the event that an employee is unreasonably dismissed because the employer tries to evade payment for employee benefits (such as long service payment), while the Convention stipulates that an employee shall be protected by law as long as the employer has no valid reason for dismissing him, irrespective of what the employer's intentions are. The Convention also provides that an employee should be sufficiently compensated for unreasonable dismissal. As proposed by the Government bill, the unreasonably dismissed employee can only obtain long service payment on a pro rata basis as compensation, while there is no protection against loss sustained by the employee as a result of the employer's unreasonable acts. Proposals For many years, the community has demanded that the Government should enact legislation on unfair dismissal according to the principles of the Convention. Since the Government bill only plugs the loophole in long service payment and fails to meet the public's demand and the Convention's standards, I decided to introduce a Member's Bill to provide for the right of an employee not to be unfairly dismissed by the employer and to make provisions for remedies for unfair dismissal of an employee by the employer, in the hope of making employment relations more reasonable. The Bill is substantially based on the provisions of Part V of the Employment Protection (Consolidation) Act 1978 of the United Kingdom. The judiciary hearing claims in relation to unfair dismissal can invoke case laws of the United Kingdom as the basis of judgment. The legislative proposals of the Bill include the following: (i) unless the employer can show a valid reason for dismissing an employee, the dismissal shall be deemed unfair; (ii) the valid reason mentioned above includes the capability or conduct of the employee, or redundancy, or the employment being in contravention of the law, or any other reason of substance; (iii) if the employee deems that he is unfairly dismissed by the employer, he may present a complaint to the Labour Tribunal within three months; (iv) in determining whether the dismissal is fair, apart from considering whether the employer's reason for dismissal is reasonable, the Labour Tribunal must also consider whether the process of dismissal is equitable; (v) where the Labour Tribunal finds that the employer has dismissed the employee unfairly, the complainant may ask the Tribunal to make an order for reinstatement or re-engagement. After taking into account whether it is practicable for the employer to comply with the relevant orders, the Labour Tribunal shall first consider whether to make an order for reinstatement. If it decides not to make an order for reinstatement, it shall then consider whether to make an order for re-engagement; (vi) if the Labour Tribunal makes no order for reinstatement or re-engagement, it shall make an award of compensation, including a basic award and a compensatory award, to be paid by the employer to the complainant; (vii) the amount of the basic award shall be calculated according to the number of years of service. An amount equivalent to one month's salary shall be awarded for every year of service. If the employer has unreasonably refused to reinstate or re-engage the complainant, the Labour Tribunal may increase the amount of the basic award. If the complainant has unreasonably refused to be reinstated or re-engaged, or the complainant has to take part of the blame, or the employer has paid a severance payment or other similar payments to the complainant, the Labour Tribunal may reduce the amount of the basic award; (viii) the amount of the compensatory award shall be calculated according to the loss sustained by the complainant attributable to the unreasonable act of the employer, including loss of wages and fringe benefits; (ix) in the event of dismissal on grounds related to union membership or activities, the Labour Tribunal may make a special compensatory award subject to a maximum amount of $150,000; and (x) the above proposals apply to all employees employed under a continuous contract of employment for a period not less than one year, including civil servants and government contract staff. Mr President, I reiterate that the main purpose of this Bill is to make Hong Kong's employment relations more reasonable. It is hoped that this Bill can change the present situation where the boss alone has the say, and can threaten employees with dismissal so that they dare not voice their discontent. Mr President, with these remarks, I move that the Bill be read a Second time. Question on the motion on the Second Reading of the Bill proposed. Debate on the motion adjourned and Bill referred to the House Committee pursuant to Standing Order 42(3A). ADJOURNMENT AND NEXT SITTING PRESIDENT (in Cantonese): In accordance with Standing Orders, I now adjourn the Council until 2.30 pm on Thursday, 24 April, 1997. Adjourned accordingly at twenty-six minutes to Eleven o'clock. Note: The short title of the Interception of Communications Bill listed in the Hansard has been translated into Chinese for information and guidance only; it does not have authoritative effect in Chinese. Download 1.23 Mb. Share with your friends:
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