Guangzhou-Shenzhen-Hong Kong Express Rail Link (Co-location) Ordinance

by Legislative Council of Hong Kong

Layout 2

Guangzhou-Shenzhen-Hong Kong Express Rail Link (Co-location) Ordinance

Contents

Section

Page

Part 1 Preliminary
1.	Short title and commencement ............................................................................................................................................................................................................................................................................................................	A1497
2.	Interpretation ............................................................................................................................................................................................................................................................................................................	A1497
3.	Interpretation: reserved matter and non-reserved matter ............................................................................................................................................................................................................................................................................................................	A1507
Part 2 West Kowloon Station Mainland Port Area
4.	Declaration of West Kowloon Station Mainland Port Area ............................................................................................................................................................................................................................................................................................................	A1511
5.	Train compartments ............................................................................................................................................................................................................................................................................................................	A1511
6.	Laws and jurisdiction in Mainland Port Area ............................................................................................................................................................................................................................................................................................................	A1511
Part 3 Supplementary Provisions
7.	Savings provision ............................................................................................................................................................................................................................................................................................................	A1515
8.	Interpretation of future documents in relation to rights and obligations ............................................................................................................................................................................................................................................................................................................	A1517

Schedule 1	Articles 3, 4 and 7 of Co-operation Arrangement ............................................................................................................................................................................................................................................................................................................	A1519
Schedule 2	West Kowloon Station Mainland Port Area ............................................................................................................................................................................................................................................................................................................	A1527
Schedule 3	Shek Kong Stabling Sidings ............................................................................................................................................................................................................................................................................................................	A1541
Schedule 4	Orders Specified for Section 7(3)(a) ............................................................................................................................................................................................................................................................................................................	A1545
Schedule 5	Pre-existing Court Order Specified for Section 7(3)(c) ............................................................................................................................................................................................................................................................................................................	A1547

HONG KONG SPECIAL ADMINISTRATIVE REGION

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Ordinance No. 23 of 2018

An Ordinance to declare an area as the West Kowloon Station Mainland Port Area; to provide that a train compartment of a passenger train in operation on the Hong Kong Section of the Guangzhou-Shenzhen-Hong Kong Express Rail Link is to be regarded as part of the West Kowloon Station Mainland Port Area; to provide that the West Kowloon Station Mainland Port Area is to be regarded as an area lying outside Hong Kong but lying within the Mainland for certain purposes; and to make supplementary provisions for certain rights and obligations and related matters and for the interpretation of certain documents in relation to rights and obligations.

[]

Preamble

WHEREAS—

(1) on 18 November 2017, the Co-operation Arrangement between the Mainland and the Hong Kong Special Administrative Region on the Establishment of the Port at the West Kowloon Station of the Guangzhou-Shenzhen-Hong Kong Express Rail Link for Implementing Co-location Arrangement was signed; and

(2) on 27 December 2017, the Decision of the Standing Committee of the National People’s Congress on Approving the Co-operation Arrangement between the Mainland and the Hong Kong Special Administrative Region on the Establishment of the Port at the West Kowloon Station of the Guangzhou-Shenzhen-Hong Kong Express Rail Link for Implementing Co-location Arrangement was adopted at the Thirty-first Session of the Standing Committee of the Twelfth National People’s Congress:

NOW, THEREFORE, it is enacted by the Legislative Council as follows—

Part 1
Preliminary

1. Short title and commencement

(1) This Ordinance may be cited as the Guangzhou-Shenzhen-Hong Kong Express Rail Link (Co-location) Ordinance.

(2) This Ordinance comes into operation on a day to be appointed by the Secretary for Transport and Housing by notice published in the Gazette.

2. Interpretation

In this Ordinance—

commencement date (生效日期) means the day on which this Ordinance comes into operation;

Co-operation Arrangement (《合作安排》) means the Co-operation Arrangement between the Mainland and the Hong Kong Special Administrative Region on the Establishment of the Port at the West Kowloon Station of the Guangzhou-Shenzhen-Hong Kong Express Rail Link for Implementing Co-location Arrangement (a translation of “《內地與香港特別行政區關於在廣深港高鐵西九龍站設立口岸實施“一地兩檢”的合作安排》”) signed on 18 November 2017, as approved by the Standing Committee of the National People’s Congress on 27 December 2017;

Court (法院) means—

(a) the Court of Final Appeal;

(b) the Court of Appeal;

(c) the Court of First Instance;

(d) the Competition Tribunal;

(e) the District Court;

(f) a Magistrates’ Court;

(g) the Lands Tribunal;

(h) the Labour Tribunal;

(i) the Small Claims Tribunal;

(j) the Obscene Articles Tribunal; or

(k) the Coroner’s Court;

Court order (法院命令) includes a judgment, order, direction or other decision made by a Court;

designated area (指定範圍) means the area declared as the West Kowloon Station Mainland Port Area under section 4;

future document (日後的文件) means a document that is made on or after the commencement date;

geographical scope (地理涵蓋範圍), in relation to a right or obligation, means the geographical area of Hong Kong, or of any part of Hong Kong, within which, or in respect of which, the right or obligation may be exercised or discharged;

Hong Kong Section of the Express Rail Link (高鐵香港段) means the railway constructed under the scheme for the Hong Kong Section of the Guangzhou-Shenzhen-Hong Kong Express Rail Link, which was referred to in G.N. 8022 of 2008 published in the Gazette on 28 November 2008 and 5 December 2008—

(a) as amended and corrected by the amendments and corrections referred to in G.N. 2598 of 2009 published in the Gazette on 30 April 2009 and 8 May 2009;

(b) as modified by the modifications referred to in G.N. 6682 of 2009 published in the Gazette on 30 October 2009 and 6 November 2009; and

(c) as amended by the amendments referred to in G.N. 5488 of 2014 published in the Gazette on 26 September 2014 and 3 October 2014;

Mainland (內地) means the part of China other than Hong Kong, Macau and Taiwan;

Mainland Port Area (內地口岸區)—

(a) means the designated area; and

(b) includes a train compartment to be regarded as part of the West Kowloon Station Mainland Port Area under section 5;

non-reserved matter (非保留事項)—see section 3;

obligation (義務) includes a liability;

pre-existing Court order (已有的法院命令) means a Court order—

(a) that was made before the commencement date; and

(b) that subsists, or the effect of which has been suspended, immediately before the commencement date;

pre-existing obligation (已有的義務) means an obligation—

(a) that was incurred before the commencement date; and

(b) that subsists, or the effect of which has been suspended, immediately before the commencement date;

pre-existing right (已有的權利) means a right—

(a) that was acquired or accrued before the commencement date; and

(b) that subsists, or the effect of which has been suspended, immediately before the commencement date;

public authority (公共主管當局) includes any tribunal, board, commission, committee or similar body that is established by or under an enactment, other than a Court or a regulatory body;

public officer (公職人員) means a person holding an office of emolument under the Government (whether the office is permanent or temporary), including a principal official of the Government appointed in accordance with the Basic Law;

regulatory body (規管團體) means a person that regulates standards of competence or service within a profession, trade or business;

reserved matter (保留事項)—see section 3;

right (權利) includes a power and a privilege;

Shek Kong Stabling Sidings (石崗列車停放處) means the area delineated and coloured orange on the plan in Schedule 3 (as read with the Notes on the plan);

statutory authority (法定權限)—

(a) means a licence, permit, approval, certification, registration, enrolment, authorization or any other authority (however described), exemption (however described), prohibition, order, warrant, direction or requirement issued, given, made or imposed by the exercise or performance of—

(i) a power conferred, or a duty imposed, by an enactment on—

(A) the Chief Executive (including the Chief Executive in Council), a public officer, public body or public authority; or

(B) a person authorized or appointed by the Chief Executive (including the Chief Executive in Council), a public officer, public body or public authority under an enactment; or

(ii) a power conferred, or a duty imposed, by an enactment on a regulatory body, or an officer of it, for the body or officer to—

(A) admit (however described) any person to a profession, trade or business; or

(B) permit any person to engage in (however described) a profession, trade or business; but

(b) excludes a Court order;

West Kowloon Station (西九龍站) means the railway station within which the designated area is situated.

3. Interpretation: reserved matter and non-reserved matter

(1) For the purposes of this Ordinance—

(a) a reserved matter is a matter to which the laws of Hong Kong apply, and over which Hong Kong exercises jurisdiction, under Article 3 or 7 of the Co-operation Arrangement; and

(b) a non-reserved matter is a matter to which the laws of the Mainland apply, and over which the Mainland exercises jurisdiction, under Article 4 of the Co-operation Arrangement.

(2) The Chinese text of Articles 3, 4 and 7 of the Co-operation Arrangement is reproduced in the Chinese text of Schedule 1. An English translation of those Articles is set out in the English text of that Schedule.

Part 2
West Kowloon Station Mainland Port Area

4. Declaration of West Kowloon Station Mainland Port Area

The area delineated and coloured orange on Plan No. 1 and Annex 1 to Plan No. 1 in Schedule 2 (as read with Annex 2 to Plan No. 1 and Plan Nos. 2, 3 and 4 in that Schedule, and with the Notes on the Plans and Annexes) is declared as the West Kowloon Station Mainland Port Area.

5. Train compartments

(1) For the purposes of this Ordinance, a train compartment of a passenger train in operation on the Hong Kong Section of the Express Rail Link (including a passenger train which is in motion, stationary and during embarkation or disembarkation) is to be regarded as part of the West Kowloon Station Mainland Port Area.

(2) For the purposes of subsection (1), a passenger train is not in operation—

(a) while within Shek Kong Stabling Sidings; or

(b) while making a journey from Shek Kong Stabling Sidings to West Kowloon Station or a journey from West Kowloon Station to Shek Kong Stabling Sidings.

6. Laws and jurisdiction in Mainland Port Area

(1) Except for reserved matters, the Mainland Port Area is to be regarded as an area lying outside Hong Kong but lying within the Mainland for the purposes of—

(a) the application of the laws of the Mainland, and of the laws of Hong Kong, in the Mainland Port Area; and

(b) the delineation of jurisdiction (including jurisdiction of the courts) over the Mainland Port Area.

(2) Subsection (1) does not affect the boundary of the administrative division of the Hong Kong Special Administrative Region promulgated by the Order of the State Council of the People’s Republic of China No. 221 dated 1 July 1997 and published as S.S. No. 5 to Gazette No. 6/1997 of the Gazette.

Part 3
Supplementary Provisions

7. Savings provision

(1) Section 6(1) does not affect—

(a) a right acquired or accrued, or an obligation incurred, because of an act that was done, or an omission that was made, before the commencement date in the designated area;

(b) any investigation, legal proceedings or remedy in respect of such a right or obligation; or

(c) any penalty, forfeiture or punishment incurred in respect of an offence committed before the commencement date in the designated area.

(2) Also, no person is entitled to contend in any proceedings (whether civil, criminal or otherwise) that section 6(1) has the effect of changing the geographical scope for a pre-existing right or pre-existing obligation.

(3) However, in determining the geographical scope for any of the following rights or obligations, the Mainland Port Area is to be regarded as an area lying outside Hong Kong but lying within the Mainland—

(a) a pre-existing right or pre-existing obligation that has arisen because of an order specified in Schedule 4;

(b) a pre-existing right or pre-existing obligation that has arisen because of any other statutory authority, but only to the extent that the right or obligation may be exercised or discharged in relation to a non-reserved matter;

(c) a right conferred, or an obligation imposed, by a preexisting Court order specified in Schedule 5;

(d) a right conferred, or an obligation imposed, by any other pre-existing Court order, but only to the extent that the right or obligation may be exercised or discharged in relation to a non-reserved matter.

8. Interpretation of future documents in relation to rights and obligations

(1) This section applies if—

(a) a future document contains a reference to Hong Kong or part of Hong Kong to describe the geographical scope for a right or obligation (other than a right acquired or accrued, or an obligation incurred, before the commencement date); and

(b) the future document is none of the following—

(i) an enactment;

(ii) a statutory authority;

(iii) a Court order.

(2) In interpreting the reference, to the extent that the right or obligation may be exercised or discharged in relation to a non-reserved matter, the Mainland Port Area is to be regarded as an area lying outside Hong Kong but lying within the Mainland.

(3) However, subsection (2) may be displaced by a contrary intention.

Schedule 1

[s. 3]

Articles 3, 4 and 7 of Co-operation Arrangement

(English Translation)

Article 3 The establishment of the Mainland Port Area does not affect construction rights, rights relating to the performance of construction work, service concession, operation as well as regulation of the Hong Kong Section of the Guangzhou-Shenzhen-Hong Kong Express Rail Link; nor does it affect the rights and benefits regarding assets (including relevant lands as well as movable or immovable assets on these lands) and facilities pertaining to the Hong Kong Section of the Guangzhou-Shenzhen-Hong Kong Express Rail Link. The HKSAR will continue to handle these matters in accordance with the laws of the HKSAR and exercise jurisdiction over these matters in accordance with this Co-operation Arrangement. With effect from the date of commissioning of the

Article 4 Mainland Port Area, except for the matters provided for in Article 3 and Article 7 of this Co-operation Arrangement, the Mainland will exercise jurisdiction (including jurisdiction of the courts) over the Mainland Port Area in accordance with this Co-operation Arrangement and the laws of the Mainland.

In handling those matters which are subject to the jurisdiction of the Mainland as set out in the preceding paragraph, for the purposes of the application of the laws of the Mainland and the laws of the HKSAR and the delineation of jurisdiction (including jurisdiction of the courts), the Mainland Port Area will be regarded as being situated in the Mainland.

Article 7 The HKSAR exercises jurisdiction (including jurisdiction of the courts) over the following matters in accordance with the laws of the HKSAR:

1. the performance of duties and functions or matters related to the performance of duties and functions by designated personnel, i.e. holders of valid permit issued by the HKSAR Government or the Hong Kong operator of the Guangzhou-Shenzhen-Hong Kong Express Rail Link who enter the Mainland Port Area or pass through the Mainland Port Area to other places within the West Kowloon Station to carry out duties and functions. Save as stated above, these personnel should comply with the laws of the Mainland inside the Mainland Port Area and be subject to regulation by the Mainland Authorities Stationed at the Mainland Port Area;

2. matters relating to the standards of, and the duties, responsibilities and liabilities concerning, the construction, insurance and design, repair and maintenance of buildings and structures and related facilities (including fire safety; storage facilities of dangerous goods; lifts; escalators; plumbing installations; installations relating to waste and wastewaters; public address systems; ventilation; electricity and energy efficiency etc.), other than facilities and equipments provided by the Mainland Authorities Stationed at the Mainland Port Area themselves or exclusively used by them in carrying out duties and functions pursuant to this Co-operation Arrangement;

3. matters relating to the carrying on of business, related insurance and tax affairs of the Hong Kong operator of the Guangzhou-Shenzhen-Hong Kong Express Rail Link and service provider(s), as well as the tax affairs and employment-related obligations, rights and benefits, protection and insurance of their staff members. Service provider(s) referred to above does not include a provider of services to the Mainland Authorities Stationed at the Mainland Port Area or to the Mainland operator of the Guangzhou-Shenzhen-Hong Kong Express Rail Link, where such service provider does not carry on business in any area of the HKSAR outside the Mainland Port Area;

4. matters relating to the regulation and monitoring of the operational safety of the railway system of the Hong Kong Section of the Guangzhou-Shenzhen-Hong Kong Express Rail Link, as well as matters relating to environmental regulation and control;

5. unless the parties by agreement indicate otherwise (whether such agreement is made in writing, orally or by conduct), matters pertaining to the contractual or other legal relationships of a civil nature among the following bodies or individuals in the Mainland Port Area: the Hong Kong operator of the Guangzhou-Shenzhen-Hong Kong Express Rail Link, contractor(s) of construction works of the West Kowloon Station, material or service provider(s), staff member(s) of the above bodies, and passenger(s) of the Guangzhou-Shenzhen-Hong Kong Express Rail Link;

6. matters under the responsibility of the Hong Kong operator of the Guangzhou-Shenzhen-Hong Kong Express Rail Link as provided for in the Guangzhou-Shenzhen-Hong Kong Express Rail Link Operating Co-operation Agreement (including any subsequent amendment or supplementary agreement thereto) made between the Hong Kong operator and the Mainland operator of the Guangzhou-Shenzhen-Hong Kong Express Rail Link.

Note—
Under Article 6 of the Co-operation Arrangement, “Mainland Authorities Stationed at the Mainland Port Area” means immigration inspection authority, customs authority, inspection and quarantine authority, integrated port administration authority and railway police authority stationed by the Mainland.

Schedule 2

[s. 4]

West Kowloon Station Mainland Port Area

Plan No. 1

Annex 1 to Plan No. 1

Annex 2 to Plan No. 1

Plan No. 2

Plan No. 3

Plan No. 4

Schedule 3

[s. 2]

Shek Kong Stabling Sidings

Plan No. 4

Schedule 4

[s. 7]

Orders Specified for Section 7(3)(a)

1. A deportation order made under the Immigration Ordinance (Cap. 115), including an order that is treated as if it were so made because of section 13 of Schedule 2 to that Ordinance.

2. A removal order made under the Immigration Ordinance (Cap. 115).

3. An order made under the Prevention and Control of Disease Ordinance (Cap. 599) or its regulations prohibiting a person from leaving Hong Kong without the permission of a health officer.

Schedule 5

[s. 7]

Pre-existing Court Order Specified for Section 7(3)(c)

1. A pre-existing Court order in the form of—

(a) an order or direction to the effect that a person must not leave or be removed from Hong Kong;

(b) a notice issued under section 17A(1) of the Prevention of Bribery Ordinance (Cap. 201);

(c) a detention order authorizing the seizure or detention of any plants, animals, goods, articles or other things on or after their importation into Hong Kong; or

(d) an injunction prohibiting the importation into or exportation from Hong Kong of any plants, animals, goods, articles or other things.