An Ordinance to make provision for the payment of pensions to be known as the Hong Kong War Memorial Pensions and other benefits to persons who have contributed to the defence of Hong Kong in the Pacific War, persons who have suffered in the War and spouses of such persons, for the establishment of a committee to advise on matters related to such pension and benefits and for incidental or connected matters. (Enacted 1991) [Sections 2, 3, 4, 7, 8, 10, 11 to 16, 21 and 22 ］ 1 September 1991 L.N. 348 of 1991 Sections 5, 6, 9, 17 to 20, 23 and 24 1 December 1991 L.N. 412 of 1991] (Originally 51 of 1991) Cap 386 s 1 Short title PART I PRELIMINARY This Ordinance may be cited as the Hong Kong War Memorial Pensions Ordinance. (Enacted 1991) Cap 386 s 2 Interpretation In this Ordinance, unless the context otherwise requires- "additional benefits" (附加利益) means the benefits payable under section 9; "Appeal Board" (上诉委员会) means the Hong Kong War Memorial Pensions Appeal Board constituted under section 13; "Committee" (顾问委员会) means the Hong Kong War Memorial Pensions Advisory Committee established under section 3; "eligible beneficiary" (合资格受益人) means a person determined by the Secretary under section 7(2) to be an eligible beneficiary; "injury" (伤病) includes wound and disease; "pension" (抚恤金) means the Hong Kong War Memorial Pensions under section 5; "Secretary" (局长) means the Secretary for Health, Welfare and Food; (Replaced L.N. 106 of 2002) "spouse" (配偶) when used in relation to a person means the person to whom the first-mentioned person is, by reason of the form of marriage contracted, lawfully married and without prejudice to the generality of the foregoing includes a concubine; "torture" (虐侍) includes physical and mental torture. (Enacted 1991) Cap 386 s 3 Hong Kong War Memorial Pensions Advisory Committee Remarks: Adaptation amendments retroactively made - see 67 of 1999 s. 3 PART II HONG KONG WAR MEMORIAL PENSIONS ADVISORY COMMITTEE (1) There shall be a Hong Kong War Memorial Pensions Advisory Committee. (2) The Committee shall consist of a Chairman and not less than 4 other members who shall all be appointed by the Chief Executive. (Amended 67 of 1999 s. 3) (3) Notice of any appointment under subsection (2) shall be published in the Gazette. (4) A member of the Committee- (a) shall hold office for such period as the Chief Executive may determine; (b) may resign at any time by giving notice in writing to the Chief Executive; (c) may be removed from office by the Chief Executive if the Chief Executive is satisfied that such member is incapacitated by physical or mental illness or is otherwise unable or unfit to discharge the function of a member of the Committee. (Amended 67 of 1999 s. 3)(5) The Committee may regulate its own procedure. (Enacted 1991) Cap 386 s 4 Function of the Committee The function of the Committee is to advise the Secretary on any question in connection with the administration of this Ordinance. (Enacted 1991) Cap 386 s 5 Payment of pension and additional benefits PART III PENSION AND ADDITIONAL BENEFITS There shall be charged on and paid out of the general revenue to the eligible beneficiaries in accordance with the provisions of this Ordinance pensions to be known as the Hong Kong War Memorial Pensions and additional benefits as provided in section 9. (Enacted 1991) Cap 386 s 6 Entitlement to pensions (1) Any eligible beneficiary shall be entitled, as from the date on which he is determined by the Secretary under section 7(2) to be an eligible beneficiary, subject to and in accordance with the provisions of this Ordinance, to a pension at the rate specified from time to time by the Secretary. (2) Except as otherwise provided in this Ordinance, the entitlement to the pension under subsection (1) shall be a right. (Enacted 1991) Cap 386 s 7 Application for the status of eligible beneficiaries (1) Application for the status of an eligible beneficiary shall be made to the Secretary. (2) Upon an application under subsection (1), the Secretary shall determine the applicant to be an eligible beneficiary if it is shown by the applicant to the satisfaction of the Secretary that the applicant fulfils any of the following conditions- (a) that the applicant was a beneficiary of the Hong Kong War Memorial Fund established under section 2 of the Hong Kong War Memorial Fund Ordinance (Cap 1026) immediately before the date on which this section comes into operation; (b) that the applicant was a beneficiary of the non-statutory fund known as the Far Eastern Relief Fund immediately before the date on which this section comes into operation; (c) that the applicant had applied for benefits under the aforementioned Hong Kong War Memorial Fund or Far Eastern Relief Fund and his application was rejected in the period from 18 February 1985 to the date on which this section comes into operation solely on the ground that his financial means exceeded the means threshold prescribed by the administration authority of the relevant Fund; (d) that the applicant served as a member of any service specified in Schedule 1 between 7 December 1941 and 25 December 1941 and sustained an injury during such service or was captured by the Japanese and held in captivity for- (Amended 46 of 1999 s. 2) (i) any period not being a period falling exclusively before 30 December 1941; or (ii) any period exclusively before 30 December 1941 where the person was held at the prison camps at Argyle Street, Bowen Road Hospital, Ma Tau Chung, Ma Tau Wai, North Point or Sham Shui Po;(da) that the applicant served as a member of the service specified in Schedule 2 between 3 February 1942 and 1 September 1945 and during such service- (i) sustained an injury; or (ii) was captured and held in captivity by the Japanese authority in Hong Kong; (Added 46 of 1999 s. 2)(e) that the applicant- (i) is the widow or widower of a person who prior to his or her death would have fulfilled the conditions specified in paragraph (d) or (da); and (Amended 46 of 1999 s. 2) (ii) is unmarried;(f) that the applicant is the widow or widower of a person who- (i) served as a member in any service specified in Schedule 1 between 7 December 1941 and 25 December 1941; or (ii) served as a member in the service specified in Schedule 2 between 3 February 1942 and 1 September 1945, and who- (A) was killed in action; (B) died as a result of an injury sustained in action; or (C) died as a result of an injury or hardship sustained during such service, and the applicant is unmarried; (Replaced 46 of 1999 s. 2)(g) that the applicant was subject to torture by or under the order of the Japanese authority in Hong Kong during the period from 7 December 1941 to 1 September 1945; (h) that the applicant is the spouse of a person who fulfills the conditions specified in paragraph (g); (i) that the applicant is the widow or widower of a person executed by or under the order of the Japanese authority in Hong Kong during the period from 7 December 1941 to 1 September 1945 on any ground other than the commission of an offence which would have been punishable by a mandatory sentence of death penalty under the law of Hong Kong prevailing on 7 December 1941 had the offence been committed on that date and that the applicant is unmarried.(3) The Secretary may determine to reject an application for the status of an eligible beneficiary and where he does so, he shall give notice in writing to the applicant and the Chairman of the Committee stating the reasons for the determination. (4) Any condition specified in subsection (2) shall, except where the context otherwise permits, be construed as a continuing condition and accordingly, where a person is determined to be an eligible beneficiary by reason of his fulfillment of a condition set out in subsection (2), his entitlement to a pension shall extinguish if and when the condition ceases to be fulfilled by him. (Enacted 1991) Cap 386 s 8 Secretary to consult the Committee Before making any determination under section 7, the Secretary shall consult the Committee. (Enacted 1991) Cap 386 s 9 Additional benefits (1) The Secretary may, upon an application made to him in the specified circumstances by an eligible beneficiary or the personal representatives of a deceased eligible beneficiary, determine that additional benefits under the specified heads and at the specified rate be paid, subject to the fulfillment or continued fulfillment of the specified conditions in the specified manner, to the beneficiary or, as the case may be, his estate. (2) In subsection (1) "specified" (指明) means specified by the Secretary. (Enacted 1991) Cap 386 s 10 Application (1) Application under section 7(1) or 9(1) shall be made in the manner and form specified by the Secretary. (2) Upon receipt of an application under section 7(1) or 9(1), the Secretary may carry out such inquiries as he considers necessary to the making of a determination. (Enacted 1991) Cap 386 s 11 Appeals against determination of the Secretary PART IV APPEAL (1) A person aggrieved by a determination of the Secretary under section 7(3) may appeal to the Appeal Board. (2) Any person who wishes to appeal under this section shall lodge a notice of appeal in manner and form specified by the Secretary within 28 days after receiving notice of the determination to which the appeal relates. (Enacted 1991) Cap 386 s 12 Appeal Board Remarks: Adaptation amendments retroactively made - see 67 of 1999 s. 3 (1) Every appeal made under section 11 shall be determined by the Appeal Board constituted under section 13. (2) The Chief Executive shall appoint as Chairman of the Appeal Board a person who is qualified for appointment as a District Judge under section 5 of the District Court Ordinance (Cap 336). (Amended 67 of 1999 s. 3) (3) Subject to subsection (6), the Chairman shall be appointed for a term of 2 years but may be re-appointed. (4) The Chief Executive shall appoint a panel of persons whom he considers suitable for appointment under section 13 as members of the Appeal Board to hear any appeal. (Amended 67 of 1999 s. 3) (5) Notice of any appointment under subsection (2) or (4) shall be published in the Gazette. (6) The Chairman and any person appointed under subsection (4) may at any time resign by giving notice in writing to the Chief Executive. (Amended 67 of 1999 s. 3) (Enacted 1991) Cap 386 s 13 Constitution of Appeal Board Remarks: Adaptation amendments retroactively made - see 25 of 1998 s. 2; 67 of 1999 s. 3 (1) There shall be a Hong Kong War Memorial Pensions Appeal Board. (2) The Appeal Board shall consist of the Chairman and such number of persons, being not less than 2, from the panel referred to in section 12(4) as the Chairman may, subject to subsection (4), appoint to be members thereof to hear any appeal. (3) In relation to the hearing of appeals every question before the Appeal Board shall be determined by the opinion of the majority of the members hearing the appeal except a question of law which shall be determined by the Chairman; in the case of an equality of votes the Chairman shall have a casting vote. (4) The Appeal Board shall not at any time consist of a majority of persons who are public officers. (5) The Appeal Board hearing an appeal may- (a) receive evidence on oath; (b) admit or take into account any statement, document, information or matter whether or not it would be admissible in a court of law; (c) by notice in writing summon any person to appear before it to produce any document or to give evidence; (d) confirm, vary or reverse the determination that is appealed against; and (e) make an award of such sum, if any, in respect of the costs involved in the appeal as is just in all the circumstances of the case.(6) The Appeal Board shall have the powers which are vested in the Court of First Instance in the exercise of its powers under subsection (5). (Amended 25 of 1998 s. 2) (7) If any person- (a) on being duly summoned as a witness before the Appeal Board makes default in attending; (b) being in attendance as a witness refuses to take an oath lawfully required by the Appeal Board to be taken, or to produce any document in his power or control lawfully required by the Appeal Board to be produced by him, or to answer any question to which the Appeal Board may lawfully require an answer; or (c) does any other thing which might, if the Appeal Board had been a court of law having power to commit for contempt, have been contempt of that court,the Chairman may certify the fact under his hand to the Court of First Instance and the Court of First Instance may thereupon inquire into the case and after hearing any witnesses who may be produced against or on behalf of that person and after hearing any statement that may be offered in defence, punish or take steps for the punishment of that person in like manner as if he had been guilty of contempt of the court. (Amended 25 of 1998 s. 2) (8) A witness before the Appeal Board shall be entitled to the same immunities and privileges as if he were a witness in civil proceedings before the Court of First Instance. (Amended 25 of 1998 s. 2) (9) Any sum awarded against the appellant under subsection (5)(e) shall be a debt due to the Government and recoverable in the District Court and any sum payable to the appellant under such an award shall be charged on the general revenue. (Amended 67 of 1999 s. 3) (10) The Chairman may specify any form or determine any matter of practice or procedure for which no provision is made in this Ordinance. (Enacted 1991) Cap 386 s 14 Supplementary provisions relating to appeals Remarks: Adaptation amendments retroactively made - see 67 of 1999 s. 3 (1) If the Chairman is precluded by illness, absence from Hong Kong or any other cause from performing his functions, the Chief Executive may appoint any person qualified for appointment as a District Judge under section 5 of the District Court Ordinance (Cap 336) to act as Chairman and as such to exercise and perform all the functions of the Chairman during the period of his appointment. (Amended 67 of 1999 s. 3) (2) If a person appointed by the Chairman under section 13(2) to hear an appeal is precluded by illness, absence from Hong Kong or any other cause from performing his functions, the Chairman may appoint any other person from the panel referred to in section 12(4) to act in his place. (Enacted 1991) Cap 386 s 15 Case may be stated for Court of Appeal (1) Before or after the determination of an appeal, the Appeal Board may refer any question of law arising for determination by the Court of Appeal by way of case stated. (2) On the hearing of the case the Court of Appeal may amend the case or require the Appeal Board to amend the case in such manner as the Court shall specify. (3) Where the Court of Appeal determines a case stated under this section it shall cause a copy of the case, together with a copy of its opinion thereon, to be sent to the Chairman. (4) Where the Court of Appeal sends its opinion under subsection (3), the Appeal Board shall determine the relevant appeal having regard to the opinion of the Court. (Enacted 1991) Cap 386 s 16 Offence PART V MISCELLANEOUS Any person who for the purposes of an application under section 7(1) or 9(1) or an appeal under section 11, whether by himself or any other person- (a) makes any statement which- (i) is false in a material particular; and (ii) he knows to be false, or has no reasonable ground to believe to be true, in such particular;(b) produces, supplies or otherwise makes use of any document or record which- (i) is false in a material particular; and (ii) he knows to be false, or has no reasonable ground to believe to be true, in such particular; or(c) wilfully conceals, in the case of an application under section 7(1) or 9(1), any fact which he ought reasonably know to be likely to influence the Secretary's determination of the application,commits an offence and is liable to a fine of $20000 and to imprisonment for 6 months. (Enacted 1991) Cap 386 s 17 Recovery of pension or benefits in case of mistake etc. Remarks: Adaptation amendments retroactively made - see 67 of 1999 s. 3 Where any person receives a pension or additional benefits and- (a) such pension or benefits is paid in consequence of ignorance of, or a mistake as to, a material fact, or of a mistake as to the law; or (b) the person is convicted of an offence under section 16 in respect of such pension or benefits,the Government may recover an amount equivalent to such pension or benefits from the person as a debt due to the Government. (Enacted 1991. Amended 67 of 1999 s. 3) Cap 386 s 18 Protection of entitlement to pension Remarks: Adaptation amendments retroactively made - see 67 of 1999 s. 3 The pension shall not be liable to be attached, charged, sequestered or levied upon for or in respect of any debt or claim whatsoever, other than a debt due to the Government. (Enacted 1991. Amended 67 of 1999 s. 3) Cap 386 s 19 Entitlement to pension not transferable Remarks: Adaptation amendments retroactively made - see 67 of 1999 s. 3 (1) The entitlement of an eligible beneficiary to a pension shall not be assignable or transferable except for the purpose of- (a) satisfying (either in whole or in part) a debt due to the Government; or (Amended 67 of 1999 s. 3) (b) satisfying an order of any court for the payment of money towards the maintenance of the spouse or former spouse or minor child of the eligible beneficiary.(2) The entitlement of an eligible beneficiary to a pension shall not pass to any other person by operation of law. (Enacted 1991) Cap 386 s 20 Entitlement to pension not to survive death The entitlement of an eligible beneficiary to a pension shall not survive for the benefit of his estate on his death. (Enacted 1991) Cap 386 s 21 Chief Executive may amend Schedules Remarks: Adaptation amendments retroactively made - see 67 of 1999 s. 3 The Chief Executive may amend Schedule 1 or 2 by order published in the Gazette. (Enacted 1991. Amended 46 of 1999 s. 3; 67 of 1999 s. 3) Cap 386 s 22 Regulations The Secretary may make regulations- (a) providing for- (i) the making and determination of applications under section 7(1) or 9(1); (ii) the payment of pensions or additional benefits; and (iii) the lodging of appeals under section 11 and the practice and procedure of the Appeal Board;(b) generally for the better carrying out of the provisions and objects of this Ordinance. (Enacted 1991) Cap 386 s 23 (Omitted as spent) (Omitted as spent) Cap 386 s 24 (Omitted as spent) (Omitted as spent) Cap 386 Sched 1 SCHEDULE 1 [sections 7(2) & 21] (Amended 46 of 1999 s. 4) 1. The Hong Kong Naval Volunteer Force 2. The Hong Kong Royal Naval Reserve 3. The Hong Kong Volunteer Defence Corps and the Auxiliary and Affiliated Units thereof 4. The Hong Kong Corps of Air Raid Wardens 5. The Police Force, the Hong Kong Police Reserve and the special constabulary established under the Peace Preservation Ordinance 1886 6. The Hong Kong Civil Defence Corps- Auxiliary Communications Service Auxiliary Conservancy Corps Auxiliary Fire Service Auxiliary Labour Corps Auxiliary Medical Corps Auxiliary Nursing Service Auxiliary Ordnance Corps Auxiliary Quartering Corps Auxiliary Rescue and Demolition Corps Auxiliary Supply Corps Auxiliary Transport Service Civil Pay and Accounts Service Public Works Corps 7. The Regular Armed Forces and the Royal Naval Yard Police including uniformed personnel attached to such Forces and Police (not including persons not locally recruited or not locally attached or not, as on 25 December 1941, married to persons ordinarily resident in Hong Kong) 8. The St. John Ambulance Brigade 9. The Hong Kong Dockyard Defence Corps (Enacted 1991) Cap 386 Sched 2 [sections 7(2) & 21] The Hong Kong Independent Battalion of the Dongjiang Column. (Added 46 of 1999 s. 5)
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