Following is a question by Professor the Hon Joseph Lee and a written reply by the Secretary for Food and Health, Professor Sophia Chan, in the Legislative Council today (January 16):
 
Question:
 
     In the 2018 Policy Address she delivered on October 10 last year, the Chief Executive proposed to extend the statutory maternity leave for eligible employees from the current 10 weeks to 14 weeks. Although the relevant legislative amendments have yet to be passed by this Council, the Government and the Hospital Authority (HA) have implemented the measure to extend maternity leave for their employees since October 10 and 25 last year respectively. Regarding the manpower implications of the measure to extend maternity leave, will the Government inform this Council:
 
(1) whether it has estimated the total number of nurses and allied health professionals employed by the Department of Health (DH) who will take maternity leave within this year, with a breakdown by their rank, the district in which they work and nature of their work;
 
(2) whether it knows if HA has estimated the number of nurses and allied health professionals in public hospitals who will take maternity leave within this year, with a breakdown by their rank as well as by the hospital cluster, hospital and department in which they work;
 
(3) whether DH and HA have employed additional staff to meet the additional manpower needs brought about by the measure to extend maternity leave; if so, of the details (including the respective numbers of additional staff members employed and the expenditures involved), and whether the additional manpower is sufficient to meet the needs; if they have not employed additional staff, the reasons for that; and
 
(4) whether it knows, among the various service units (e.g. residential care homes for the elderly and residential care homes for persons with disabilities) operated by subvented social welfare organisations, the number and percentage of those which have implemented the measure to extend maternity leave; whether it has assessed the additional manpower and other resources needed by such units for implementing the measure; whether it will allocate additional resources to such organisations, so that they can implement the measure expeditiously; if so, of the details, if not, the reasons for that?
 
Reply:
 
President,
 
     Having consulted the Labour and Welfare Bureau, the Department of Health (DH) and the Hospital Authority (HA), my reply to the various parts of the question raised by Professor the Hon Joseph Lee is as follows:
 
(1) As at January 7, 2019, a total of 65 nurses and allied health professionals in DH have reported their delivery or expected confinement dates on or after October 10, 2018. They could have maternity leave (ML) for 14 weeks. The grades and services involved are set out in the table below:
 

     DH does not separately estimate the total number of nurses and allied health professionals who will take ML in 2019.
 
(2) and (3) According to the statistics of HA, about 1 000 staff members have been granted statutory ML each year, of which around 60 per cent of them are nurses and allied health professionals. In the event that the implementation of the extension of ML to 14 weeks leads to tight manpower, the departments concerned will make appropriate arrangements having regard to the actual operational needs, such as through the Special Honorarium Scheme or employment of temporary staff to increase manpower so as to ensure that medical services will not be affected.
 
     DH has not recruited additional staff for the extension of ML. Usually, the workload of staff on ML is shared out amongst other existing staff. However, if individual service units in DH experience difficulties in sharing out the workload, their respective Service Heads may consider engaging part-time contract staff on a temporary basis under established mechanism.
 
(4) The Government proposes to extend the statutory ML from the current 10 weeks to 14 weeks. The Government hopes to introduce into the Legislative Council a bill to amend the Employment Ordinance (EO) in late 2019, and implement the extension of statutory ML two years after the passage of the relevant legislation. The cost of the additional ML pay would then be funded by the Government by way of reimbursement to the employers in accordance with the arrangements under the amended EO. The Social Welfare Department (SWD) understands that some non-governmental welfare organisations (NGOs) have already on their own extended the ML of their female employees from 10 weeks to 14 weeks according to their human resource policies and capabilities. However, the SWD does not have information on the number of these NGOs/service units or details of their relevant arrangements.

     Following is a question by the Hon Paul Tse and a written reply by the Chief Secretary for Administration, Mr Matthew Cheung Kin-chung, in the Legislative Council today (January 16):

Question:

     Since the establishment of the unified screening mechanism for non-refoulement claims in 2014, the total expenditure on processing non-refoulement claims and the related work has been as high as $4.9 billion, and the relevant government expenditure in the current financial year alone stands high at $1.3 billion.  In the past four financial years and the current financial year, the total expenditure on the provision of publicly funded legal assistance to non-refoulement claimants by the Government was $700 million odd.  However, only less than 1 per cent of the claims concerned were substantiated.  Some members of the public and the media have criticized that while the Government has spent a huge amount of public money year after year to support claimants making claims and lodging appeals, it has provided negligible support to those Hong Kong permanent residents who have been sent to jail wrongfully in the Philippines (including Mr Tang Lung-wai, Mr Cheung Tai-on who had been involved in the same case but passed away in the jail before lodging his appeal, as well as the four Hong Kong people who have recently been sentenced to life imprisonment upon conviction of possession of drugs and have lodged appeals).  In this connection, will the Government inform this Council:

(1) of the amount of public expenditure on the provision of publicly funded legal assistance to non-refoulement claimants (including the lodging of appeals) in the past two years;

(2) of the estimated expenditure related to non-refoulement claims in the next financial year;

(3) whether it has provided any legal assistance to the aforesaid Hong Kong people currently imprisoned in the Philippines; if not, whether it has assessed if the fact that the Government has spent a huge amount of public money year after year to provide legal assistance to non-refoulement claimants who are not Hong Kong permanent residents but has never provided legal assistance to those Hong Kong people will give the public an impression of favouritism and that the Government is not helping those who should be helped, thereby causing the public to lose confidence in the Government's commitment to safeguard the rights and interests of those Hong Kong people who are in distress outside Hong Kong (especially in the Philippines); and

(4) whether it will consider changing the policy so that appropriate legal assistance for meeting litigation expenses will be provided to the aforesaid and other Hong Kong people involved in overseas criminal cases which have passed a test similar to the merits test under the legal aid system in Hong Kong, so as to enable them to receive fair trials?

Reply:

President,

     Having consulted relevant bureau and department, we set out below our reply to the various parts of the question raised by the Hon Tse: 

(1) In FB v Director of Immigration and Secretary for Security ([2009] 2 HKLRD 346), the Court of First Instance of the High Court ruled in December 2008 that the Government must implement a series of measures, including the provision of publicly-funded legal assistance (PFLA) to claimants during the screening process, so as to meet the high standards of fairness.  At present, the Legal Assistance Scheme for Non-refoulement Claimants under the Duty Lawyer Service (DLS) and the Pilot Scheme for Provision of Publicly-funded Legal Assistance for Non-refoulement Claimants (Pilot Scheme) under the Security Bureau operate concurrently to provide PFLA to non-refoulement claimants, including (i) advising the claimant of his legal rights and providing procedural guidance throughout the screening process; (ii) assisting the claimant to complete the claim form; (iii) accompanying the claimant to attend the screening interview(s) conducted by the Immigration Department (ImmD), if considered necessary by the lawyer; (iv) assessing merits of appeal for claims rejected by ImmD; (v) preparing notice of appeal to the Torture Claims Appeal Board (TCAB) for meritorious cases; (vi) representing the claimant at the oral hearing on appeal where necessary; (vii) assisting the claimant in making a request to re-open a claim or to make a subsequent claim in meritorious cases; and (viii) preparing an objection notice on revocation for the claimant in meritorious cases.

     In 2017-18, the expenditure for the Legal Assistance Scheme for Non-refoulement Claimants operated by DLS was $129 million.  For the Pilot Scheme implemented since September 2017, its expenditure in 2017-18 was $23 million.  In 2018-19, the estimated expenditures for the Legal Assistance Scheme for Non-refoulement Claimants and the Pilot Scheme are $147 million and $124 million respectively.

     Separately, if claimants are aggrieved by the decisions of ImmD or TCAB, and intend to file a judicial review (JR) to the High Court, they can apply for legal aid under the Legal Aid Ordinance (LAO) (Cap 91).  The above expenditures do not include those involved in relevant JR or legal aid.

(2) In 2018-19, the estimated expenditure related to non-refoulement claims is $1,399 million, which includes expenditures for the screening of claims, handling of appeals as well as the provision of PFLA and humanitarian assistance to claimants.  The Government will continue to set aside sufficient resources for the above work related to non-refoulement claims in 2019-20.  Details of the expenditure will be reflected in the 2019-20 Estimates.

(3) The Government of the Hong Kong Special Administrative Region (HKSAR) is committed to providing assistance to Hong Kong residents in distress outside Hong Kong.  In general, upon receipt of requests for assistance from Hong Kong residents who are detained or imprisoned overseas, or when the Chinese diplomatic and consular missions (CDCMs) inform the Assistance to Hong Kong Residents Unit (AHU) of ImmD of Hong Kong residents being detained or imprisoned overseas, AHU will, having regard to the nature and circumstances of individual cases as well as the requests of assistance seekers, liaise with the Office of the Commissioner of the Ministry of Foreign Affairs of the People's Republic of China in the HKSAR, CDCMs and relevant government departments to provide practicable and appropriate assistance.  In accordance with a request for assistance from the subject or subject's family, AHU would urge, through CDCM, the relevant local authorities for prompt, impartial and fair hearings in accordance with local laws.

(4) Legal aid services form an integral part of the legal system in Hong Kong. The policy objective of legal aid is to ensure that all those who meet the criteria set out in LAO and have reasonable grounds for pursuing or defending a legal action in the courts of Hong Kong will not be denied access to justice owing to a lack of means.  LAO is not applicable to legal proceedings in jurisdictions outside Hong Kong.  Extending legal aid services to jurisdictions outside Hong Kong would involve various issues, including the conducting of merits tests on litigation cases in other jurisdictions, whether to assign lawyers from Hong Kong to assist in the cases concerned, as well as how to continue monitoring the trial or appeal proceedings of the cases.  Given the possible vast differences in legal systems between jurisdictions, the extension of legal aid services to jurisdictions outside Hong Kong will be extremely difficult in practice.  The HKSAR Government has therefore no plan to extend the coverage of the legal aid system to Hong Kong residents subject to criminal prosecution overseas.

     Following is a question by the Hon Shiu Ka-chun and a written reply by the Secretary for Home Affairs, Mr Lau Kong-wah, in the Legislative Council today (January 16):
 
Question:
 
     At present, the Home Affairs Department may allocate funds from the General Chinese Charities Fund for disbursement of emergency financial assistance to persons who have been affected by natural disasters or accidents and have financial needs.  Besides, the Emergency Relief Fund established by the Government may provide financial assistance to persons in need of urgent relief as a result of natural disasters (including typhoons).  Some members of the public, who had been affected by super typhoon Mangkhut in September last year, have relayed to me that while their applications made to the two Funds had been approved, they were told that they might choose only either one of the two Funds, which made them feel confused. In this connection, will the Government inform this Council:

(1) of the reasons why persons affected by typhoons may not receive assistance from both of the two aforesaid Funds at the same time;
 
(2) after the onslaught in Hong Kong of severe typhoon Hagupit and super typhoons Hato and Mangkhut in 2008, 2017 and last year respectively, of the respective numbers of applications received, approved and rejected by the Government for assistance made to the two Funds as a result of the typhoons;

(3) in respect of each of the two Funds:
 
(i) of the number of working days generally lapsed from receipt of applications to the grant of assistance;
 
(ii) of the criteria adopted for determining the eligibility for application and the amount of assistance to be granted;
 
(iii) whether the maximum amount of assistance was adjusted in the past decade; if so, of the details; and
 
(iv) whether persons whose accommodations have been found with irregularities may be granted assistance; and

(4) whether the Government, before and after the onslaught of Hato and Mangkhut in Hong Kong, briefed those residents in the vicinity of flooding blackspots the procedure and eligibility for applying for assistance from the two Funds?
 
Reply:
 
President,
 
     Our reply (prepared in consultation with the Labour and Welfare Bureau and other relevant departments) to the Hon Shiu Ka-chun's question is as follows:

(1) General Chinese Charities Fund (GCCF)
 
     The objective of the General Chinese Charities Fund (GCCF) is to provide emergency relief to Hong Kong residents who are affected by natural disasters or accidents and have financial needs. In processing an application under the GCCF, the District Office (DO) of the Home Affairs Department (HAD) will assess the financial hardship of the people affected, including the urgency of their need for assistance. If the applicant has obtained another source of aid, the application will not be approved.

Emergency Relief Fund (ERF)

     The Emergency Relief Fund (ERF) Ordinance, Chapter 1103 of the Laws of Hong Kong, provides for the establishment and administration of a trust fund known as the ERF, which is vested in the Director of Social Welfare Incorporated as Trustee. The Fund aims to provide prompt assistance to persons who are in need of urgent relief as a result of fire, flooding, tempest, landslide, typhoon or other natural disasters. Grants from the Fund are intended for relief rather than compensation. The responsibility for approving grants and making payments is, in most cases, vested in the Agriculture, Fisheries and Conservation Department (AFCD), the Marine Department (MD), the Social Welfare Department (SWD) and the Lands Department (LandsD), while the HAD is responsible for overall co-ordination at the district level. There are five types of grants under the ERF:
 

     There is no express provision in the ERF Ordinance setting the restrictions on the granting of the ERF and other charitable funds, such as the GCCF.  However, in principle, if the ERF or other charitable funds such as the GCCF has already served the purpose of providing urgent assistance and relief to a victim, based on the principle of avoidance of double benefit, if a victim has already been granted relief from another charitable fund, the ERF will not grant relief for the same type of assistance for the same natural disaster, so as to ensure proper use of public money.

(2) After the onslaught in Hong Kong of severe typhoon Hagupit and super typhoons Hato and Mangkhut, the number of applications received, approved and rejected under the two funds are tabulated as follows:
 

Note
(1) Include 122 cases under processing
(2) Include 32 cases withdrawn by applicants
(3) Include 19 cases withdrawn by applicants, 10 duplicated applications and 7 cases involving failure to submit the required documents for approval
(4) Include five cases withdrawn by applicants, one duplicated application and 10 cases involving failure to submit the required documents for approval
(5) Include three cases withdrawn by applicants
(6) Case withdrawn by applicant
(7) Include 33 cases under investigation/approval
(8) As at January 8, 2019
(9) Include 24 cases withdrawn by applicants
(10) Include 10 cases withdrawn by applicants and one duplicated application
(11) Include 14 cases withdrawn by applicants

(3) (i) GCCF
 
     DOs has to process each and every GCCF application. As the nature and circumstances vary from case to case of individual application, there is no standard processing time.

ERF

     The processing time for ERF applications is tabulated below:
 

(ii) GCCF

     DOs will assess the financial hardship of the applicants with a view to determining the level of relief grant. The ceiling of relief grant for each application is $8,000.

ERF

     The criteria for the assistance granted by the ERF are at Annex I.

(iii) GCCF

     In the past ten years, the HAD had not made any adjustment to the ceiling of relief grant under the GCCF.

ERF

     Each operating department adjusts annually the level of grants by the ERF. Details are as follows:
 

     The current maximum level of grants and the conditions of payment of grants are at Annex II.

(iv) GCCF

     When processing GCCF applications, DOs mainly assess the financial hardship of the people affected, with no regard to the conditions of the applicant's place of residence.

ERF

     The grant items under the Fund administered by the LandsD primarily target such structures as squatters and cottages vulnerable to natural disasters across the territory.  If irregularities are identified, Squatter Control Offices under the LandsD will take appropriate enforcement actions against those structures under the prevailing squatter control policy. Such enforcement actions, however, will not affect the disbursement of grants.

     Regarding the types of the ERF grant under MD's responsibility, they are only applicable to those vessels with valid dwelling vessel licences that require the assistance for repairs or replacement of vessels due to the disaster. MD will not consider other applications.

(4) The Government is very concerned about the needs of people affected by typhoons. After the passage of typhoons, individual DOs had disseminated information about the ERF and/or the GCCF to people affected, including assisting residents on site in completing and submitting the GCCF application forms, posting notices and publicising the funds in collaboration with district organisations, etc. AFCD, LandsD, MD and SWD have also respectively provided to the affected persons related to their respective type(s) of grants relevant information on applications for the ERF as well as appropriate emergency assistance.

     Lemon Grass Thai & BBQ, a Thai restaurant on Luen On Street in Kwun Tong, illegally discharged wastewater into a storm drain at the roadside. It was fined $12,000 by Kwun Tong Magistrates' Courts today (January 16) for contravening the Water Pollution Control Ordinance (WPCO).
 
     The Environmental Protection Department (EPD) conducted a surprise inspection in May last year and revealed that the restaurant concerned instructed its staff members to discharge untreated wastewater into a storm drain at the roadside. EPD staff took a wastewater sample for analysis and the result showed that the concentration of oil and grease was 18,000 milligrams per litre, far exceeding the statutory standard by 600 times. An EPD spokesman explained that wastewater with a high concentration of oil and grease will obstruct drains, cause bad odours and pollute coastal waters downstream. Upon evidence gathering, the EPD initiated prosecution against the operator of the restaurant, HapiLanD Limited, in accordance with the WPCO.
 
     The spokesman reminded all responsible persons of restaurants that they must install and use appropriate wastewater treatment facilities, such as grease traps, to properly treat and discharge wastewater generated by the restaurants to avoid causing environmental pollution. Under the WPCO, it is an offence for anyone to discharge wastewater into the communal drainage system. Offenders are liable to a maximum fine of $200,000 and six months' imprisonment. A maximum fine of $400,000 and six months' imprisonment may be imposed on second or subsequent convictions.

     Following is a question by the Hon James To and a written reply by the Secretary for Transport and Housing, Mr Frank Chan Fan, in the Legislative Council today (January 16):

Question:

     In response to the Report of the Commission of Inquiry into the Collision of Vessels near Lamma Island on 1 October 2012, the Transport and Housing Bureau set up an Internal Investigation Team (the Team) in June 2013 to investigate whether there were maladministration and negligence of duty on the part of Marine Department officers in carrying out their duties in relation to Lamma IV. The Team submitted its investigation report to the Civil Service Bureau and the Police in 2014 to facilitate the conduct of disciplinary actions and criminal investigations respectively. In addition, some family members of the deceased have told me that they have not yet been issued the death certificates for the persons who died in the collision incident. In this connection, will the Government inform this Council:

(1) given that the Government has so far refused to make public the investigation report but only made arrangements for Members of this Council who had signed a confidentiality undertaking to peruse a redacted version of the investigation report, whether the Government will (i) consider afresh making public the investigation report and (ii) return to Members of this Council the notes they took while perusing the investigation report;

(2) of the reasons why death inquests in respect of the 39 persons who died in the collision incident have not yet commenced and when they are expected to commence;

(3) of the reasons why the death certificates for the persons who died in the collision incident have not yet been issued and when they are expected to be issued; and

(4) given that the non-issuance of the death certificates has resulted in some insurance companies refusing to pay the deceased's family members the death benefits in respect of the life insurance policies taken out by the deceased and has rendered some properties jointly owned by the deceased and their family members not capable of being assigned, how the Government will assist the deceased's family members in dealing with such matters?

Reply:

President,

     In consultation with the Security Bureau, the Department of Justice (DoJ) and the Judiciary, my responses to the question raised by the Hon James To are as follows:

(1) After the vessel collision incident near Lamma Island on October 1, 2012 and pursuant to some of the findings in the Report of the Commission of Inquiry (CoI) into the Collision of Vessels near Lamma Island on 1 October 2012, an Investigation Team (the Team) was set up in the Transport and Housing Bureau (THB) in June 2013 to conduct investigation into staff conduct in the Marine Department (MD). The Team was tasked to identify any shortfall or deficiency on the part of MD officers when carrying out their duties in respect of the Lamma IV in the past as revealed by the CoI. After the investigation was completed, the Team made recommendations to the Civil Service Bureau in April 2014 for consideration on disciplinary actions to be taken against the officers who were alleged to have misconducted themselves in respect of the Lamma IV. For matters involving suspected criminal offences, the Team had reported to law enforcement agencies for necessary follow-up investigation and actions.   

     The Government is aware that there has been public expectation for the Investigation Report (the Report) to be published. At the same time, the Government has to take into account of and strike a balance among various considerations for public disclosure of any content of the Report. In particular, the Government is mindful that the Report contains substantial personal data of persons involved in the investigation and information provided to the Government in confidence. The legal advice has confirmed that since the intended use of the personal data collated during the course of the investigation is for the purpose of the investigation, the Government is bound by the mandatory requirements in the Personal Data (Privacy) Ordinance (Cap 486) (the PDPO), including not to use the personal data collated for the purpose of investigation for a new purpose, such as disclosure to the public. Apart from the mandatory restrictions under the PDPO, the Government, being the holder of the confidential information contained in the Report, has the duty of confidentiality and the legal obligation to guard against unauthorised disclosure of such information. If the Government were to make public the Report, rather substantial parts of the Report (including but not limited to parts containing personal data and confidential information obtained during the investigation) would have to be redacted in order for the Government to fully comply with the aforesaid legal obligations. The excision of these materials will leave behind a Report which makes very little coherent sense, rendering it difficult to comprehend and/or giving rise to potential misunderstanding.

     As a practical alternative, and having taken into account the Government's duty of confidentiality and the legal obligation to protect the personal data in the Report, a summary of the Report was published in 2014 to provide the gist of the facts and a lucid account of the work done by the Team as well as its overall findings and recommendations. The summary of the Report, submitted to the Legislative Council (LegCo) Panel on Economic Development (ED Panel) (vide Paper No. CB(1)1295/13-14(03)) and discussed by the ED Panel on April 28, 2014, is accessible by LegCo Members (Members) and the public at www.legco.gov.hk/yr13-14/english/panels/edev/papers/edev0428cb1-1295-3-e.pdf.

     Furthermore, having regard to Members' role in monitoring the work of the Government, in consultation with DoJ, the Government has made available a redacted version the Report for Members' perusal on the condition that they have signed a confidentiality undertaking. To this end, during the two periods from June to August 2015 and from April to May 2017, THB positively responded to the request of Members and made available the redacted version of the Report for perusal by Members who have signed the confidentiality undertaking (the Undertaking) at designated venues. The Undertaking is necessary to allow the Government to fulfil its legal obligations while at the same time to enable Members to discharge their duty in monitoring the work of the Government. Before perusing the Report, Members agreed to and signed the Undertaking, in which Members undertook and agreed to return the Report and all notes taken before departing the venue of perusal of the Report, as well as agreed that such notes be sealed and kept in the custody of THB. The arrangements above could already strike a suitable balance between facilitating Members' perusal and understanding of the redacted version of the Report, and the duty of confidentiality and other legal obligations the Government must adhere to.

     The Government has endeavoured to strike a balance among various considerations, including public interest, requests for public disclosure of the Report as well as the legal obligations to protect data privacy and confidential information. Given that the contents of the Report remain as in 2014 with no further update, and that a summary of the Report is already accessible by the public to obtain an understanding of the overall findings, it is the Government's view that focusing the efforts on strengthening the Government's regulatory regime on local vessels is the appropriate approach to enhance safety at sea. This is in fact a view expressed by many members of the ED Panel before. The Government truly believes that such forward-looking approach is the most effective and productive way for us to work together towards enhancing the long-term marine safety in Hong Kong.

(2) to (4) Regarding the vessel collision incident near Lamma Island, the Births and Deaths General Register Office was notified by the Coroner that investigations would be required for the 39 cases of deaths in the incident. As the related procedures are still on-going, it is not appropriate to comment on the relevant cases at this stage.

     As for the death certificates, the Births and Deaths General Register Office has to wait until the Coroner has completed the necessary investigation or inquest (if applicable) before the registration of a death could be processed. After the completion of the related procedures and upon notification by the Coroner, the Births and Deaths General Register Office will process the relevant registration of deaths as soon as practicable, and notify family members of the deceased to apply for a certified copy of the death entry (commonly known as "death certificate"). If for some particular reasons the family members of the deceased require a document to certify the fact of death of the deceased before the issuance of the death certificate, an application can be made to the Coroner's Court for a "Certificate of the Fact of Death" as an interim document certifying the fact of death.