To grant a franchise for the construction of a road tunnel through Tate's Cairn; for the payment of a royalty for such franchise; for the maintenance of the works to be constructed; for the payment of tolls to the franchise holder for the use by motor vehicles of the tunnel and the regulation of vehicular traffic in relation to such use; and for matters ancillary thereto and connected therewith. (Enacted 1988) [1 July 1988] (Originally 50 of 1988) Cap 393 s 1 Short title PART I PRELIMINARY This Ordinance may be cited as the Tate's Cairn Tunnel Ordinance. (Enacted 1988) Cap 393 s 2 Interpretation (1) In this Ordinance, unless the context otherwise requires- "Commissioner" means, subject to subsection (2), the Commissioner for Transport; "Company" (公司) means- (a) subject to paragraph (b), Tate's Cairn Tunnel Company Limited; (b) in the event of the benefit of the franchise being assigned to, or vested in, a person other than Tate's Cairn Tunnel Company Limited under or in accordance with this Ordinance, such other person in place of that Company;"construction works" (建造工程) means all works carried out or to be carried out under the project agreement and all works required to carry them out; "court" (法院、法庭) includes a magistrate; (Added 29 of 1999 s. 2) "Director" means, subject to subsection (2), the Director of Highways; "discharge date" (解除义务日期) means the date when the guarantors cease to have any obligations under the guarantee agreement; "franchise" (专营权) means the franchise granted under section 4; "further guarantee agreement" (另一项保证协议) means the agreement designated as the further guarantee agreement for the purposes of this definition by the Secretary by notice in the Gazette and any subsequent agreement amending or supplementing that agreement; "guarantee agreement" (保证协议) means the agreement designated as the guarantee agreement for the purposes of this definition by the Secretary by notice in the Gazette and any subsequent agreement amending or supplementing that agreement; "guarantors" (保证人) means- Nishimatsu Construction Co., Ltd. Jardine, Matheson & Co., Limited Trafalgar House Public Limited Company C. Itoh & Co., Ltd. New World Development Company Limited China Resources (Holdings) Co., Ltd., or such other persons as may undertake the obligations of guarantors under the guarantee agreement; "motor vehicle" (汽车) means any mechanically propelled vehicle for use on roads; "plan" (图则) means- (a) the plan numbered KM 3951 signed by the Commissioner and deposited in the Land Registry, Victoria; and (Amended 8 of 1993 s. 2) (b) any new plan deposited in accordance with section 3(3);"project" (工程项目) means the project, the subject of the project agreement, for the following works to be undertaken by the Company- (a) the construction of the tunnel; (b) the construction of approach roads and temporary and permanent alterations to existing roads; and (c) the construction of other adits, structures and buildings and the undertaking of other works necessary for the proper carrying out of the project agreement;"project agreement" (工程项目协议) means the agreement designated as the project agreement for the purposes of this definition by the Secretary by notice in the Gazette and any subsequent agreement amending or supplementing that agreement; "road operating date" (道路开始经营日期) means the date notified in the Gazette under section 25(1); "Secretary" (局长) means the Secretary for the Environment, Transport and Works; (Replaced L.N. 106 of 2002) "start of construction" (开始建造日期) means the date upon which the construction works are commenced as agreed, or as determined, under section 13(1); "toll structure" (隧道费构筑物) means any structure erected by the Company for the purposes of section 40; "tunnel" (隧道) means the twin tube tunnels each containing 2 traffic lanes passing under Tate's Ridge between Diamond Hill and Siu Lek Yuen; "tunnel area" (隧道区) means the area delineated and coloured red on the plan; "utility" (公用设施) means any electric power cable, telephone cable or other cable used in communication, any telecommunications apparatus, any pipe used in the supply of water, gas or oil, or for drainage or sewerage, together with any duct for such cable or pipe and any apparatus or works ancillary to such cable, apparatus, pipe or duct. (2) Any reference to the Director or the Commissioner in any provision of this Ordinance shall be deemed to include any public officer whom the Director or Commissioner, as the case may be, authorizes to exercise his functions under that provision. (3) Any function to be exercised by the Governor in Council under this Ordinance may, where the Governor is of the opinion that the matter is one of urgency, be exercised by the Governor. (4) A reference in this Ordinance to arbitration under the Arbitration Ordinance (Cap 341) shall be deemed, for the purposes of the Arbitration Ordinance (Cap 341), to be a reference by an arbitration agreement, as defined for the purposes of that Ordinance, to 2 arbitrators, one appointed by each party. (Enacted 1988) Cap 393 s 3 Variation of plan (1) The Commissioner may, with the agreement of the Company, cause the boundaries of the tunnel area to be varied from time to time. (2) Where any such boundaries are so varied, the Commissioner shall prepare a new plan fixing the location of and delineating the tunnel area. (3) Every new plan prepared in accordance with subsection (2) shall be numbered, dated, signed by the Commissioner and deposited in the Land Registry. (Amended 8 of 1993 s. 2) (4) Whenever a new plan is deposited under subsection (3), the Commissioner shall cause a notification of such deposit to be published in the Gazette. (Enacted 1988) Cap 393 s 4 The franchise PART II THE FRANCHISE (1) Subject to this Ordinance, the Company shall have the franchise to- (a) construct the tunnel; (b) construct all other works comprised in the project; (c) keep in place the works referred to in paragraphs (a) and (b), (other than works which are, under the project agreement, to be handed over to the Government) for the purpose specified in paragraph (d) and for the period specified in subsection (2); and (d) operate the tunnel area for the public, upon payment to the Company of the tolls specified in Part VIII and the Schedule, from the road operating date until the expiry of the period specified in subsection (2).(2) The period referred to in subsection (1) is the period that commences at the start of construction and ends on the thirtieth anniversary of the start of construction. (Enacted 1988) Cap 393 s 5 Effect of franchise The franchise shall include all way leaves and other rights necessary to render such franchise effective but, subject thereto, nothing in that section shall be construed as conferring on the Company any title, right or interest in the land on which the construction works are, or are to be, constructed. (Enacted 1988) Cap 393 s 6 Prohibition on assignment, etc. of franchise rights PART III ASSIGNMENTS, MORTGAGES, ETC. (1) Subject to section 7 the Company shall not assign, subgrant, underlet or otherwise dispose of its rights under this Ordinance or enter into any agreement for such disposal except with the prior consent of the Governor in Council and in accordance with the terms of his consent: Provided that where such disposal is necessary or desirable to enable effect to be given to any arrangements entered into for the purpose of complying with any notice given under section 46 and the Governor in Council is satisfied that- (a) the arrangements are adequate for the purpose; and (b) the person to whom the rights are to be disposed is a person in whom such rights may properly be vested or to whom such rights may properly be transferred,such consent shall not be withheld. (2) The Secretary shall give notice in the Gazette of the date of any disposal authorized under subsection (1), the name of the person to whom the rights are disposed, the nature of the disposal and the date thereof. (Enacted 1988) Cap 393 s 7 Mortgages and charges (1) Nothing in section 6 shall prevent the Company from securing the payment or repayment of any moneys owing by it under any agreement or arrangement entered into for the purpose of providing moneys to finance- (a) the designing and carrying out of the construction works; (b) the undertaking of any obligation imposed on the Company by this Ordinance or the project agreement; or (c) such other purposes as the Financial Secretary may, by prior notice in writing to the Company, permit,by means of any assignment by way of mortgage or other charge or similar arrangement of the rights granted to it under this Ordinance: Provided that no such mortgage or charge in so far as it relates to such rights, shall be enforced, whether by order of any court or otherwise, except with the consent of the Governor in Council and in accordance with the terms of his consent. (2) Nothing in section 6 or subsection (1) shall apply to any mortgage, charge, assignment or other arrangement entered into by the Company, which secures any debt or obligation of the Company upon the right to receive the tolls under Part VIII. (3) Where the enforcement of any mortgage or charge to which subsection (1) applies has the effect of transferring the franchise from a person who was the Company, immediately prior to the transfer, to any other person who thereby becomes the Company, the Secretary shall give notice thereof in the Gazette. (4) A notice under subsection (3) shall specify the name of such other person and the date of the transfer. (Enacted 1988) Cap 393 s 8 Directors and paid up share capital of the Company PART IV PROVISIONS RELATING TO THE COMPANY (1) A majority of the directors of the Company shall be persons who are ordinarily resident in Hong Kong. (2) The Governor shall have power, notwithstanding any provision of the Companies Ordinance (Cap 32) or any other law, the memorandum or articles of the Company or other instrument, to appoint 2 directors to the board of the Company. (3) On the road operating date the issue and fully paid up share capital of the company shall be $600000000. (Enacted 1988) Cap 393 s 9 Royalty payments (1) The Company shall pay to the Government a royalty at the rate of- (a) 2.5 per cant of the operating receipts for a period of 5 years after the road operating date; and (b) thereafter, for the duration of the franchise, 5 per cent of the operating receipts.(2) The Company shall pay to the Government a further royalty at the rate of- (a) 15 per cent of the net operating receipts in excess of the projected net operating receipts for a period of 5 years after the road operating date; and (b) thereafter, for the duration of the franchise, 30 per cent of the net operating receipts in excess of the projected net operating receipts.(3) Payment of such royalty or further royalty, as the case may be, shall be due in respect of each period of- (a) 6 months or part thereof, in the case of the royalty payable under subsection (1); and (b) 12 months or part thereof, in the case of the further royalty payable under subsection (2),during which the franchise exists, commencing with the road operating date, and shall be paid within 60 days of the end of each such period. (4) The acceptance by the Government of any sum tendered by the Company in accordance with this section shall not prevent the Government from claiming a further sum in respect of the same year or any adjustment appearing to be due or necessary on any subsequent examination of the books and accounts and other material furnished by the Company for inspection under section 34. (5) The payment by the Company of any sum in accordance with this section shall not prevent the Company from claiming a refund in respect of the overpayment made by the Company and proved to the satisfaction of the Financial Secretary. (6) In this section- "net operating receipts" (净营运收入) means the operating receipts reduced by the royalty payable in respect of those receipts under subsection (1); "operating receipts" (营运收入) means the total gross sums received by the Company in respect of- (a) the tolls as fixed or varied under section 36, as the case may be; (b) any charges imposed or other benefits obtained by the Company under section 32; and (c) any other authorized charges imposed by the Company under this Ordinance;"projected net operating receipts" (预计净营运收入) means the projected operating receipts for each year during which the tunnel area is operated by the Company under the franchise as set out in the project agreement, reduced by the royalty under subsection (1) which would be payable in that year upon such receipts. (Enacted 1988) Cap 393 s 10 Powers of Financial Secretary in relation to royalty For the purpose of ascertaining the royalty or further royalty payable under section 9, the Company shall permit the Financial Secretary, and any person authorized in writing by him, to inspect at all reasonable times all books of account, vouchers, receipts and all other records of the Company (including all records maintained by the Company in accordance with section 34) and to make extracts from any such documents and to take away any such documents for further examination. (Enacted 1988) Cap 393 s 11 Tax provisions For the purposes of Part VI of the Inland Revenue Ordinance (Cap 112) the Company shall throughout the continuance of the franchise be deemed to be the owner of and to have the relevant interest in the works which it has the right to keep in place under section 4(1)(c). (Enacted 1988) Cap 393 s 12 Construction works to be carried out at the expense of the Company PART V CONSTRUCTION OF THE TUNNEL The Company shall, at its own expense, carry out the construction works in accordance with the project agreement and this Ordinance. (Enacted 1988) Cap 393 s 13 Start of construction (1) The Company shall not commence the construction works before such date as may be agreed between the Director and the Company or, in the absence of agreement, as the Director may determine. (2) The Director shall cause a notice to be published in the Gazette specifying the date of commencement of the construction works as agreed or determined under subsection (1). (Enacted 1988) Cap 393 s 14 Period within which works must be completed (1) Subject to this section, the Company shall complete the construction works within 37 months from the start of construction or within such extended period as may- (a) be approved by the Governor in Council; or (b) be granted by the Director on the grounds specified in the project agreement and in accordance with that agreement.(2) If the Company fails, or appears to be likely to fail, to complete the construction works within the period specified in subsection (1), the Governor in Council shall, in considering whether or not to exercise its powers under subsection (1), take into account the extent to which the construction works have been carried out and whether such failure was or is occasioned by circumstances beyond the control of the Company (the want of sufficient funds not being regarded as a circumstance beyond its control). (Enacted 1988) Cap 393 s 15 Determination of date of completion For the purposes of section 14(1) the date when the Company shall be deemed to have completed the construction works shall be the road operating date. (Enacted 1988) Cap 393 s 16 Project agreement sufficient authority to carry out works (1) Subject to subsection (3) any construction works which are to be carried out under the project agreement and in accordance with any approval or exemption thereunder may be carried out without further authority notwithstanding anything to the contrary in any Ordinance: Provided that nothing in this section shall authorize anything to be done in contravention of section 13 of the Summary Offences Ordinance (Cap 228). (2) Subject to subsection (3) the Buildings Ordinance (Cap 123) shall not apply in relation to the construction works. (3) The Secretary for Housing, Planning and Lands may, by notice in the Gazette, apply the Buildings Ordinance (Cap 123), or any provision thereof, to any of the construction works: (Amended 23 of 2002 s. 126) Provided that nothing in this subsection shall apply to any such works which are civil engineering works. (Enacted 1988) Cap 393 s 17 Defects PART VI CONTINUING OBLIGATIONS AND PROVISIONS IN RESPECT OF THE CONSTRUCTION WORKS: REGULATIONS (1) The Company shall be liable at all times until the expiration or revocation of the franchise to make good any defect in the construction works as soon as practicable after the defect becomes apparent and to the reasonable satisfaction of the Director. (2) The Director may, by notice in writing, require the Company to effect such works as he considers necessary to make good any defect that it is liable to make good under this section and any damage to the construction works arising from such defect. (3) Nothing in this section shall impose any liability on the Company to- (a) undertake any work or remedy any defect or damage to the construction works arising from such defect, beyond the work reasonably required to remedy such defect or damage; or (b) remedy any defect which does not, or is unlikely to, adversely affect the design life, operation, use or safety of the construction works. (Enacted 1988) Cap 393 s 18 Repair of tunnel and road works (1) The Company shall keep in a state of repair until the expiration or revocation of the franchise and to the satisfaction of the Director- (a) the tunnel; and (b) all works, whether within or outside the tunnel, which it has the right to keep in place under section 4(1)(c).(2) The Director may, by notice in writing, require the Company to effect such repairs and alterations to the structures or works it is required by subsection (1) to keep in a state of repair as he considers necessary for the proper repair thereof and for the obviation of fire and other hazards therein. (Enacted 1988) Cap 393 s 19 Provisions supplementary to sections 17 and 18 (1) Where any works are effected by the Company under section 17 or 18, the provisions of section 16 and the project agreement shall apply in respect of the carrying out of such works as though the same were the carrying out of the construction works with such modifications as the circumstances of the case may require or as the Director may determine. (2) The Director shall not exercise his powers under section 17 or 18 in such manner as would require the Company to carry out any works to a standard which is substantially higher than that- (a) required by- (i) any relevant approval or exemption under the project agreement; or (ii) standards generally prevailing, when the construction works were first carried out;(b) which may be reasonably justified having regard to the age of the construction works at the time when such works as so required are to be carried out.(3) If the Company fails to comply with any requirement of the Director under section 17 or 18 within a reasonable time after the receipt of notice of the requirement, the Director may effect the necessary works. (4) If at any time there exist, in the opinion of the Director, any circumstances requiring the immediate carrying out of any works which the Company is required by section 17 or 18 to carry out, he may require the Company to effect the same forthwith or, if he thinks fit, he may forthwith effect the same with or without notice to the Company. (5) The expense of any works carried out under section 17 or 18 shall be borne by the Company and, where any such works are effected by the Director, the expense thereof shall be recoverable from the Company by the Government as a civil debt. (Enacted 1988) Cap 393 s 20 Closure of tunnel (1) The Company may, and if required by the Director shall, close or partially close the tunnel whenever this is necessary to enable any works to be effected by reason of any obligation imposed by this Part. (2) The Company shall not, except in an emergency, effect any such closure under subsection (1) without prior notification in writing to the Commissioner where any road traffic lane is to be closed. (3) Whenever a closure is effected under subsection (1) in pursuance of a requirement of the Director, the tunnel or such part thereof as is affected shall not be reopened without the prior consent in writing of the Director. (Enacted 1988) Cap 393 s 21 Utilities through the tunnel area (1) Notwithstanding anything to the contrary in any other Ordinance no person other than the Company may install any utility within the tunnel area without the consent of the Company. (2) The Company shall not give any permission for the purpose of subsection (1) unless the Commissioner has first approved the giving thereof and the terms and conditions (other than provision as to charges) of the permission. (3) The Commissioner shall not give his approval under subsection (2) unless he is satisfied that the safety of persons using or employed in the vicinity of the tunnel area, and the passage of motor vehicles through the tunnel area, will not be prejudiced by such installation. (4) The Company shall afford reasonable access to any utility in the tunnel area by the owner or person having the control of that utility. (Enacted 1988) Cap 393 s 22 Director may enter tunnel area and works area (1) The Director may at any time enter any place where construction works or other works undertaken in connection with the project have been or are being carried out- (a) to ascertain whether the construction works are dangerous or liable to become unsafe or dangerous; (b) to inspect or test any machinery, equipment or plant therein; (c) to ascertain whether the Company is complying with the provisions of this Ordinance or the project agreement in relation to the construction or repair of the construction works; (d) to effect any works authorized under this Ordinance.(2) The Company shall afford the Director such facilities as he may require for the purposes of subsection (1). (Enacted 1988) Cap 393 s 23 Information to be supplied by the Company to the Director For the purpose of enabling the Director to ascertain any arrangements which have been made or are about to be made by the Company for the fulfilment of its obligations under this Part, the Company shall, when required by the Director, forthwith furnish him with such information as to any matter relevant to such arrangements as he may require. (Enacted 1988) Cap 393 s 24 Power to make regulations The Governor in Council may make regulations for all or any of the following matters- (a) the provision by the Company of adequate, efficient, safe and continuous facilities for the passage of motor vehicles through the tunnel area; (b) the safety of persons using or employed in the tunnel and tunnel area, and, without prejudice to the generality of the foregoing in relation to fire hazards, for preventing any concentrations of carbon monoxide or other dangerous gases; (c) lighting, including emergency lighting, and visibility in the tunnel area; (d) the noise level in the vicinity of any ventilation plant associated with the tunnel; (e) the powers of the personnel provided by the Company for the control, restriction and safety of traffic in the tunnel area; (f) the circumstances under and extent to which police officers may take over the control and restriction of traffic in the tunnel area; (g) priority of vehicles in passage through the tunnel area; (h) any records to be kept by the Company in addition to those specified in section 34; (i) prescribing anything which under this Ordinance is to be or may be prescribed; (j) such other purposes as may be necessary or expedient to carry out effectively the provisions of this Ordinance. (Enacted 1988) Cap 393 s 25 Road operating date PART VII THE TUNNEL (1) The tunnel and its approach roads shall be opened to the use of the public on a date determined by the Commissioner and notified by him in the Gazette. (2) The date notified under subsection (1) shall be as soon as practicable after the Director has issued to the Commissioner and the Company a certificate stating that in his opinion the tunnel and approach roads intended to be opened for public use are in a condition fit therefor. (3) In this section "approach roads" (引道) means the approach roads comprised in the construction works. (Enacted 1988) Cap 393 s 26 Company to provide tunnel facilities Subject to this Ordinance, on and after the road operating date and, throughout the continuance under section 4(2) of the franchise, the Company shall provide and operate, to the satisfaction of the Commissioner, adequate, efficient and safe facilities for the passage of motor vehicles through the tunnel. (Enacted 1988) Cap 393 s 27 Right to use of tunnel facilities Subject to this Ordinance- (a) the tunnel shall be used for the passage of motor vehicles upon payment of the tolls specified in the Schedule; and (b) the Company shall not without reasonable grounds prevent or refuse the use of the tunnel for such purpose. (Enacted 1988) Cap 393 s 28 Control and safety of tunnel traffic (1) The Company shall, to the satisfaction of the Commissioner, provide personnel and facilities for the control and safety of motor vehicles and persons in the tunnel area. (2) The provision of such personnel and facilities shall be at the expense of the Company. (Enacted 1988) Cap 393 s 29 Application of other laws (1) Save to the extent that they are inconsistent with any regulations made under section 24 or by-laws made under section 35, the provisions of the Road Traffic Ordinance (Cap 374) shall apply to the roads in the tunnel area as if they were roads within the meaning of that Ordinance. (2) The tunnel area shall be a public place for the purposes of any law. (Enacted 1988) Cap 393 s 30 Operation of tunnel area by Government (1) The Governor in Council may, if he is satisfied that it is necessary to do so in the interests of public security, order that the Government shall take over the operation of the tunnel area or any part thereof together with such of the property of the Company as is necessary therefor, and continue such operation until the Governor in Council otherwise orders. (2) The Government shall pay to the Company for any loss or damage suffered by the Company by reason of any order under subsection (1), such amount as may be agreed between the Government and the Company, or in default of such agreement such amount as may be determined by arbitration under the Arbitration Ordinance (Cap 341). (3) Any period during which the Government operates the tunnel area or any part of that area shall be computed in and not deducted from the period specified in section 4(2). (Enacted 1988) Cap 393 s 31 Closure of tunnel for safety reasons (1) The Company may, and if so required by the Commissioner shall, close or partially close the tunnel to the use of the public whenever such action appears to be reasonably necessary for the safety of persons using or employed in the tunnel area, for routine maintenance or for cleaning. (2) Save when required by the Commissioner to close or partially close the tunnel, the Company shall notify the Commissioner forthwith of any closure unless the Commissioner, by reason of his having been informed in advance of such closure, has waived his right to such notification. (Enacted 1988) Cap 393 s 32 Advertising in tunnel area (1) The Company may, with the prior approval of the Commissioner in writing, use, or permit the use of any part of the tunnel area for advertising purposes on such conditions as to charges and otherwise as may be determined by the Company. (2) Part IX of the Public Health and Municipal Services Ordinance (Cap 132) shall not apply to the use of any part of the tunnel area for advertising purposes. (3) The Commissioner shall not give his approval under subsection (1) unless he is satisfied that the safety of persons using or employed in the tunnel area, and the passage of vehicles through the tunnel, will not be prejudiced by such advertising. (Enacted 1988) Cap 393 s 33 Commissioner may enter tunnel for inspection purposes (1) The Commissioner may, without payment of tolls or other charges to the Company, enter the tunnel area at any time after the road operating date to ascertain whether the Company is- (a) providing adequate and efficient facilities for the safe and efficient passage of motor vehicles and the occupants thereof through the tunnel and for the control and safety of traffic in the tunnel area; or (b) complying with the provisions of this Ordinance other than the provisions of Part VI.(2) The Company shall afford the Commissioner such facilities as he may require for the purposes of subsection (1). (Enacted 1988) Cap 393 s 34 Records and information (1) The Company shall maintain the following records relating to the tunnel area and the operation of the tunnel- (a) an up to date set of drawings of the construction works, which shall include all such alterations and additions as may, from time to time, be made to the construction works; (b) the times during which each toll gate is open; (c) the number of motor vehicles using the tunnel, specifying the different classes of such vehicles, their direction through the tunnel, and providing continuous and cumulative figures thereof; (d) the amount collected as tolls and the numbers and prices of toll tickets (if any) issued; (e) all accidents and stoppages to traffic in the tunnel area; and (f) the personnel employed in connection with the operation of the tunnel, including details as to the nature, location and times of such employment.(2) The Company shall permit the Commissioner to inspect, examine and copy all such records and supporting accounts kept by it, and shall afford facilities for such inspection, examination or copying as may from time to time be required by the Commissioner. (3) For the purpose of enabling the Commissioner to ascertain any arrangements which have been, or are about to be, made by the Company for the fulfilment of its obligations under this Part, Part IV or VIII or any regulations under section 24 the Company shall, at the request of the Commissioner, forthwith furnish him with information relevant to such fulfilment, including information relating to the organization of the Company, as he may require. (Enacted 1988) Cap 393 s 35 Power to make by-laws (1) Subject to this Ordinance, the Company may make by-laws for all or any of the following matters- (a) order and safety, public health, and the prevention and abatement of nuisances in the tunnel area; (b) the control, restriction and safety of traffic in the tunnel area; (c) the regulation of the speed of traffic using the tunnel area; (d) the regulation of the types, dimensions, condition and loading of vehicles which may use the tunnel area; (e) the regulation of the use by vehicles in the tunnel area of lights, horns, sirens and other equipment; (f) the regulation and prevention of the carriage into or through the tunnel area of any offensive, noxious or dangerous goods; (g) the collection of tolls in respect of the use of the tunnel; (ga) the regulation of the use of automatic toll collection facilities; (Added 50 of 1993 s. 2) (h) the purchase, issue and collection of toll tickets in respect of such use; (i) the towing away or removal of any vehicle or thing causing obstruction in the tunnel area and the imposition of charges in respect of any such towage or removal and of any storage, detention or service of such vehicle or thing; (j) the protection of any property owned or controlled by the Company from damage or injury; (k) the employment and organization of personnel provided by the Company for the control, restriction and safety of traffic in the tunnel area and approach roads; (l) any other conditions subject to which the tunnel area may be used by the public for the passage of motor vehicles; and (m) any other matter relating to the control, operation and management of the tunnel area which it is necessary or expedient to provide for.(2) Where a by-law made under subsection (1) provides for the issue of a permit for any purpose, the by-law may prescribe a fee to be paid in respect of such permit. (3) All by-laws made under subsection (1) shall be subject to the approval of the Legislative Council. (4) Any by-laws made under subsection (1) may provide that a contravention of specified provisions thereof shall be an offence and may provide penalties therefor not exceeding a fine of $2000. (5) The Company shall cause printed copies of all by-laws made under this section to be kept at the registered office of the Company and to be available for sale at a reasonable charge to every person applying therefor. (6) The Legislative Council may by resolution amend the amount specified in subsection (4). (Enacted 1988) Cap 393 s 36 Company to charge approved tolls for use of tunnel PART VIII COLLECTION OF TOLLS (1) Subject to this Ordinance, the Company may demand and collect tolls in respect of the passage of motor vehicles through the tunnel. (2) The tolls that may be collected under subsection (1) shall be those specified in the Schedule. (3) The tolls specified in the Schedule may be varied- (a) by agreement between the Governor in Council and the Company; or (b) in default of agreement by submission of the question of the variation of tolls to arbitration under the Arbitration Ordinance (Cap 341) by either the Governor in Council or the Company.(4) On a submission to arbitration under subsection (3), the arbitrators shall be guided by the need to ensure that the carrying out by the Company of its obligations, or the exercise of its rights, under this Ordinance is reasonably but not excessively remunerative to the Company, having regard to- (a) any material change in the economic conditions of Hong Kong since the enactment of this Ordinance or, as the case may be, since tolls were last determined under this section; (b) the dismissal of any appeal by the Company made under section 53; (c) any material change in any other circumstances affecting the exercise by the Company of its rights under the franchise; (d) the effect of the introduction of, or alteration in, any tax or levy imposed on the use of the tunnel; (e) the project agreement; and (f) any other relevant matter.(5) In determining for the purposes of subsection (4) whether the carrying out by the Company of its obligations, or the exercise of its rights has been reasonably but not excessively remunerative to the Company, the arbitrators shall, if there has been any failure by a guarantor under the further guarantee agreement to comply with the terms of that agreement, deem the Company to be in the financial position it would have been in had the further guarantee agreement been honoured, and subject to this subsection nothing in that subsection shall be deemed to render such failure a relevant matter which the arbitrators may take into consideration. (6) Where under subsection (3)- (a) the Governor in Council and the Company agree to a variation of the tolls; or (b) in an award pursuant to a submission to arbitration it is determined that the tolls should be varied,the tolls specified in the Schedule shall be varied in compliance with such agreement or award, as the case may be. (7) The Commissioner shall, by notice in the Gazette, as soon as is practicable after such agreement or award as is referred to in subsection (6), amend the Schedule. (Enacted 1988) Cap 393 s 37 Description of motor vehicle The description of motor vehicles mentioned in the Schedule shall be interpreted in accordance with the definitions and classes of motor vehicles mentioned in section 2 of the Road Traffic Ordinance (Cap 374). (Enacted 1988) Cap 393 s 38 Display of notices of tolls and sale thereof (1) The Company shall, to the satisfaction of the Commissioner, cause to be displayed at both ends of the tunnel, in conspicuous places, notices stating the toll payable in respect of each category of motor vehicle. (2) The Company shall cause printed copies of the list of the tolls currently chargeable by the Company to be kept at the registered office of the Company and to be sold at a reasonable charge to every person applying therefor. (Enacted 1988) Cap 393 s 39 Company may not charge tolls greater than those as fixed or varied The Company shall not charge any person a toll greater than the appropriate toll specified in the Schedule. (Enacted 1988) Cap 393 s 40 Company may erect toll structures, etc. For the purpose of collecting tolls the Company may erect in the tunnel area such toll gates, toll houses and other structures as it considers necessary. (Enacted 1988) Cap 393 s 41 Obligation to give information relating to the driving of vehicles PART IX TRAFFIC OFFENCES: SUPPLEMENTARY PROVISIONS (1) Without prejudice to section 63 of the Road Traffic Ordinance (Cap 374), where the driver of a motor vehicle is suspected of having committed an offence against this Ordinance in the tunnel area, any person (including both the registered owner of the vehicle and the person suspected of being the driver of the vehicle at the time of the alleged offence) shall, on demand made within 6 months after the date of the alleged offence, give to a tunnel officer in the manner prescribed in this section the name, address and driving licence number of the person driving the vehicle at the time of the alleged offence and his relationship (if any) to the driver. (Amended 29 of 1999 s. 2) (2) A demand under subsection (1) may be made orally or by means of a notice served personally or by post on the person on whom it is made. (3) Where a demand under subsection (1) is made orally to any person he shall- (a) if he was the driver of the vehicle at the time of the alleged offence- (i) give immediately his name and address; and (ii) give the number of his driving licence to a specified tunnel officer within 21 days after the date of the demand; and(b) if he was not the driver of the vehicle at the time of the alleged offence, give the information required under subsection (1) to a specified tunnel officer either orally or in writing within 21 days after the date of the demand.(4) A notice under subsection (2) shall require the person to whom it is addressed- (a) to furnish, within 21 days after the date of the notice, to a tunnel officer specified therein, a written statement, in such form as may be specified in the notice, giving the name, address and driving licence number of the person driving the vehicle at the time of the alleged offence and his relationship (if any) to the driver; and (b) to sign the said statement.(5) Subject to subsection (6), any person who contravenes subsection (1) shall be guilty of an offence and shall be liable on conviction to a fine of $4000 and to imprisonment for 6 months. (6) In proceedings for an offence under subsection (5), it shall be a defence to show that the accused person did not know, and could not with reasonable diligence have ascertained, the name or address or driving licence number of the person driving the vehicle at the time of the alleged offence. (Enacted 1988) Cap 393 s 41A Making false statements and omitting material particulars (1) A person who makes a false statement in supplying particulars required under section 41 commits an offence and is liable on conviction to a fine at level 2 and to imprisonment for 6 months. (2) In proceedings for an offence under subsection (1), it is a defence for the accused person to show that he did not know and had no reason to believe the statement to be false. (3) A person who omits any material particular required under section 41 commits an offence and is liable on conviction to a fine at level 2 and to imprisonment for 6 months. (4) In proceedings for an offence under subsection (3), it is a defence for the accused person to show that he did not know, and could not with reasonable diligence have ascertained, the particular required. (Added 29 of 1999 s. 2) Cap 393 s 42 Proof in summary proceedings of identity of driver If, in any summary proceedings for an offence under this Ordinance, there is produced to the court a statement which- (a) purports to have been signed by the accused person; (b) was furnished in accordance with a notice served on him under section 41; and (c) states that the accused person was the driver of the vehicle at the time of the offence,the court shall admit the statement as prima facie evidence that the accused person was the driver of the vehicle at the time of the offence. (Enacted 1988) Cap 393 s 42A Certificates of image recording and printing devices (1) A document in such form as may be specified by the Commissioner purporting- (a) to be a record of the testing of the functioning, inspection or servicing of an image recording device (with or without any associated image printing device) used for the purpose of recording and, where appropriate, reproducing the images of vehicles passing through a toll booth and specified in the document; and (b) to be certified as to such testing, inspection or servicing by a person authorized in this behalf by the Company,shall be admitted as evidence in any criminal or civil proceedings before any court on its production without further proof. (2) On the production of a document under subsection (1)- (a) the court before which it is produced shall, in the absence of evidence to the contrary, presume- (i) that it was signed at the time and place specified in it by a person authorized by the Company; (ii) that the facts stated in the document relating to the testing of the functioning, inspection or servicing of the image recording device and the associated image printing device, if any, specified in it are true; and (iii) that the record of the facts stated in the document was made and compiled at the time stated in it;(b) the document shall be evidence of all other matters contained in it; and (c) the recording and print, if any, produced by using the image recording device and the associated image printing device, where appropriate, shall be evidence of all matters contained in them.(3) Where any document is produced and admitted as evidence under subsection (1), the court may, if it thinks fit, on its own motion or on the application of any party to the proceedings, summon the person who signed the document and examine him as to the matter the subject of the document. (Added 29 of 1999 s. 2) Cap 393 s 42B Certificates as to photographic process (1) A document in such form as may be specified by the Commissioner purporting to be signed by a person duly appointed under subsection (2) and purporting to be a certificate as to the processing of exposed film received and processed by him shall, together with the photographic prints or photographic enlargements referred to in the document, be admitted in evidence in any criminal or civil proceedings before any court on its production without further proof, and- (a) in the absence of evidence to the contrary, the court before which such document is produced shall presume that the signature to the document is genuine and that the person signing it was duly appointed under subsection (2) at the time when he signed it; and (b) such document shall be evidence of all matters contained in it.(2) The Company may appoint in writing such persons as it thinks fit to carry out the processing of exposed film and to sign certificates under subsection (1) in relation to the processing. (3) Where any document is produced and admitted as evidence under subsection (1), the court may, if it thinks fit, on its own motion or on the application of any party to the proceedings, summon the person who signed the document and examine him as to the matter the subject of the document. (Added 29 of 1999 s. 2) Cap 393 s 43 Proof of plan (1) In any prosecution for an offence against this Ordinance, a copy of the plan, certified by the Commissioner to be a copy of such plan, shall be conclusive proof of the tunnel area. (2) Any such copy purporting to be certified by the Commissioner shall be deemed, until the contrary is proved, to have been certified by him. (Enacted 1988) Cap 393 s 44 Definitions and application (1) In this Part- "driver" (驾驶人), in relation to any motor vehicle, means any person who is in charge of or assisting in the control of such vehicle; "driving licence" (驾驶执照) means a licence issued in accordance with regulations made under section 8 of the Road Traffic Ordinance (Cap 374); "owner" (车主) includes the person in whose name a vehicle is registered under the Road Traffic Ordinance (Cap 374) and the person by whom the vehicle is kept and used and, in relation to a vehicle which is the subject of a hiring agreement or hire purchase agreement, means the person in possession of the vehicle under that agreement; "tunnel officer" (隧道人员) means any person employed by the Company in connection with the control, restriction and safety of traffic in the tunnel area. (2) The powers conferred on a tunnel officer by section 41, other than the power to make a demand by serving a notice under subsection (2) of that section, may be exercised only within the tunnel area. (Enacted 1988) Cap 393 s 45 Default PART X DEFAULT AND EXPIRATION OF THE FRANCHISE For the purposes of this Part, the Company shall be deemed to be in default if- (a) it has failed or there is a substantial likelihood of its failing to complete the construction works within the period or extended period allowed by section 14; (b) there has been a substantial failure by it to discharge its obligations under the project agreement; (c) it has failed or there is a substantial likelihood of its failing to operate the tunnel in accordance with this Ordinance; (d) the guarantors, having been called upon under the guarantee agreement- (i) fail to respond to such call within a reasonable period of time; or (ii) are in material breach of any of the provisions of the guarantee agreement;(e) (Repealed 76 of 1996 s. 86) (f) it fails to comply with a notice under section 46,and the expression "default" (失责行为) shall be construed accordingly. (Enacted 1988) Cap 393 s 46 Defaults capable of remedy (1) This section shall apply in the case of any default where it appears to the Secretary that the default is capable of being remedied. (2) In the case of any default to which this section applies, the Secretary shall serve- (a) in the case of a default prior to the discharge date, on- (i) the Company; (ii) the guarantors; and (iii) any agent nominated under subsection (3); and(b) in the case of a default on or after the discharge date, on- (i) the Company; and (ii) any agent nominated under subsection (3),a notice calling upon the Company, within such time (being not less than 28 days) as may be specified in the notice or such further time as the Secretary may allow, being a time reasonable in the circumstances, to remedy the default or to take measures or make arrangements to the satisfaction of the Secretary to ensure that such default is remedied. (3) Any financier or, where a financier is a member of a consortium of financiers, that consortium, may, for the purposes of subsection (2), at any time nominate to the Secretary an agent and specify an address for service of that agent in Hong Kong. (4) In this section "financier" (融资人) means any person who has provided credit or agreed to act as surety or guarantor for or otherwise provided financial support to the Company for the purposes of the project or to enable the Company to carry out its obligations under this Ordinance or the project agreement. (5) The arrangements referred to in subsection (2) may, without derogation from the generality of that subsection, include arrangements for the disposal of the rights of the Company to another person in accordance with section 6. (Enacted 1988) Cap 393 s 47 Revocation of the franchise (1) If- (a) the Secretary has reported to the Governor in Council that the Company has failed to comply with a notice served by him under section 46(2); or (b) it appears to the Governor in Council that the Company is in default,the Governor in Council may direct the Secretary to serve a notice under subsection (2). (2) The notice referred to in subsection (1) shall- (a) if given in relation to a default arising before the discharge date, be served on the persons specified in section 46(2)(a); and (b) if given in relation to a default arising on or after the discharge date, be given to the persons specified in section 46(2)(b),and shall specify whether it is given under subsection (1)(a) or (b) and, if given under subsection (1)(a), give particulars of the notice referred to in that subsection and brief particulars of the report of the Secretary and, if given under subsection (1)(b), specify the nature of the default, and shall require the Company to show cause in writing to the Governor in Council, within 28 days after the date of the service why he should not exercise his powers under subsection (4). (3) Any person upon whom a notice is served under subsection (2) and any other person who is a shareholder of the Company or a financier within the meaning of section 46 may, within the period specified in subsection (2), or such further period as the Governor in Council may allow, make representations to the Governor in Council, to show cause why the Governor in Council should not exercise his powers under subsection (4). (4) After considering any representations made under subsection (3) and if the Governor in Council is of the opinion that insufficient cause has been shown why the Governor in Council should not exercise his powers under this section, the Governor in Council may by order- (a) where it appears to the Governor in Council that a notice should have been served under section 46 and was not, or the terms of any notice served were unreasonable, direct the Secretary to serve a notice or, as the case may be, a further notice, under that section in such terms as the Governor in Council may determine unless it appears to the Governor in Council that the default is no longer capable of being remedied; or (b) in any other case, revoke the franchise.(5) Where the Governor in Council exercises his powers under subsection (4) he may further order that the franchise revoked be regranted to such other person (being a person willing and able to accept such re-grant) on such terms and conditions, being terms and conditions consistent with this Ordinance, as he may think fit, and upon the publication of that order in the Gazette such franchise shall vest in such other person and the provisions of this Ordinance shall apply to such person as being the Company. (6) An order made under- (a) subsection (4)(a) shall be directed to the Secretary and a copy thereof shall be attached to the Secretary's notice under section 46(2); (b) subsection (4)(b) shall be served on- (i) the Company and the guarantors if the default takes place prior to the discharge date; or (ii) the Company in any other case,and shall, as soon as practicable thereafter, be published in the Gazette. (Enacted 1988) Cap 393 s 48 Effect of winding up of the Company, termination of franchise, etc. (1) All rights and obligations of the Company under this Ordinance shall determine on- (a) the commencement of the voluntary winding up of the Company, otherwise than for the purposes of an assignment in accordance with section 6, at any time prior to the discharge date; (b) the making of a winding up order in respect of the Company prior to the discharge date; (c) the revocation of the franchise under section 47(4)(b); or (d) on the expiration of the period specified in section 4(2),whichever event first occurs. (2) Upon the determination of the rights and obligations of the Company under this section the assets of the Company shall vest in the Government. (Enacted 1988) Cap 393 s 49 Liability of the Company and amount payable by the Government on the vesting in it of its assets (1) On the determination of the rights and obligations of the Company under section 48(1), the Company shall thereupon be liable, in addition to the payment of all other sums due to the Government, to pay- (a) all sums payable under the project agreement; and (b) any expenses which may be incurred by the Government- (i) in putting any land and any incomplete construction works in a satisfactory order to enable the construction works either to be maintained in a state in which they can be continued at a future time or abandoned as the Director may determine, including any costs of land restoration; and (ii) in putting the construction works in a safe condition.(2) Subject to subsection (4) and section 50 on the determination of the rights and obligations of the Company under section 48(1), the Government shall be liable to pay to the Company in respect of the assets of the Company vesting in the Government under section 48(2) such amount as may be agreed between the Government and the Company as representing the value of such assets to the Government at the time of vesting or, in default of such agreement, such amount as may be determined by arbitration under the Arbitration Ordinance (Cap 341). (3) In determining the value for the purposes of subsection (2) where the vesting of the assets in the Government is in consequence of a default, there shall be deducted from what would, but for this subsection, be the value of the assets, such amount as may be agreed or determined in accordance with the provisions of that subsection for- (a) damages occasioned to the Government by such default calculated on the basis that the construction works had been, or are to be, constructed, for the beneficial use of the Government and that the Government is the franchise holder under Part II; (b) the costs to the Government of obtaining the forfeiture of the franchise under this Part.(4) No amount shall be payable to the Company under subsection (2) upon the determination of the rights and obligations of the Company under section 48(1)(c) where the revocation of the franchise was on the grounds that the Company had failed or appeared likely to fail to complete the construction works within the period or extended period allowed by section 14. (Enacted 1988) Cap 393 s 50 Reimbursement of Company upon expiration of franchise No compensation shall be payable by the Government to the Company upon the expiration of the period specified in section 4(2), save that the Government shall pay to the Company the reduced value of any machinery, equipment or plant forming part of the assets (such value being calculated in accordance with Part VI of the Inland Revenue Ordinance (Cap 112)) purchased by the Company with the agreement of the Financial Secretary within the 5 years next preceding the expiration of the period of the franchise and owned by the Company on such expiration. (Enacted 1988) Cap 393 s 51 Government not liable for Company's debts Any vesting of the assets of the Company in the Government under this Part shall not thereby render the Government liable for any debts of the Company. (Enacted 1988) Cap 393 s 52 Meaning of "assets" (戈玻) In this Part, "assets" (资产) means the structure of the tunnel and all buildings, machinery, equipment and plant ancillary to the construction, operation and maintenance of the tunnel. (Enacted 1988) Cap 393 s 53 Appeal by the Company PART XI SUPPLEMENTARY (1) If the Company is aggrieved by any decision to which this section applies it may within 14 days of the notification to it of that decision, or such longer period as the Governor may allow, appeal against such decision by giving written notice to the Governor that it appeals against such decision and in that notice specifying the grounds upon which the appeal is based. (2) On receipt of a notice of appeal under subsection (1) the Governor- (a) shall, if the appeal is against any decision of the Director and the failure of the appeal would result in the Company being held to be in default under Part X or if it appears to the Governor that this would be a probable result of such failure, refer the appeal to arbitration under the Arbitration Ordinance (Cap 341); (b) subject to paragraph (a) may, where it appears to him that the issues raised by the appeal are matters of engineering practice, questions of the interpretation of the project agreement or other matters appropriately referred to arbitration, refer the appeal to arbitration under the Arbitration Ordinance (Cap 341),and, in any other case, the appeal shall be determined by the Governor in Council. (3) On an appeal under this section the Governor may give such instructions as he thinks fit as to the enforcement of the decision appealed against pending the determination or abandonment of the appeal but, subject to such instructions, such decision may, pending such determination or abandonment, be enforced as if no such appeal had been made. (4) The decision of the arbitrator or Governor in Council on an appeal under this section shall be final. (5) In this section- "decision" (决定) means any requirement, determination or direction made, or the withholding of any consent or approval (including the refusal to grant time under section 14(1)(b) as read with the project agreement), by the Secretary, the Director or the Commissioner under this Ordinance other than the exercise by the Secretary of his powers under section 46, and this section shall apply to any such decision. (Enacted 1988) Cap 393 s 54 Non-derogation from Government's rights (1) Nothing in this Ordinance or the project agreement shall affect any rights which the Government or any servant or agent thereof may have to enter upon any land affected by the construction works and do anything thereon which he might have done if those works had not been undertaken except to the extent that the exercise of such rights is limited by any express provision of this Ordinance or that agreement or by necessary implication from their provisions. (2) Nothing in subsection (1) shall enable the Government, its servants or agents to exercise any such rights as are referred to in that subsection in a manner which would derogate from any rights granted to the Company under this Ordinance. (Enacted 1988) Cap 393 s 55 Certificate as to moneys owing to the Government Where under this Ordinance any person becomes liable for the payment of money to the Government a certificate purporting to be signed by the Director as to the amount owing shall be evidence of that amount and, subject to any provision to the contrary in this Ordinance, the amount specified in that certificate shall become payable by the person so liable upon presentation of that certificate to him. (Enacted 1988) Cap 393 s 56 Limitation of public liability No liability shall be imposed upon the Government or any public officer by reason of the fact that the construction works are carried out in accordance with this Ordinance and the project agreement or that the construction works or the designs, structural details, calculations, method and programme of construction and conditions of contract relating thereto are subject to inspection or approval by a public officer under the project agreement, nor shall anything in this Ordinance or the project agreement make it obligatory for the Director or the Commissioner to inspect the construction works to ascertain that the provisions of this Ordinance or the project agreement are complied with or that any designs, structural details, calculations, or other documents, certificates and notices submitted to him are accurate. (Enacted 1988) Cap 393 s 57 Director to give effect to the project agreement Where this Ordinance confers a discretion or authority upon the Director he shall, in addition to taking into consideration any matters which he is by this Ordinance required or permitted to take into consideration and other proper matters, exercise that discretion or authority so as to give effect to the terms of the project agreement. (Enacted 1988) Cap 393 SCHEDULE [sections 4, 27, 36, 37 & 39] TATE'S CAIRN TUNNEL TOLLS Category Vehicle Toll 1. Motorcycles, motor tricycles ................................................................. $10 2. Private cars, electrically powered passenger vehicles, taxis ..................... $10 3. Public and private light buses ................................................................ $17 4. Light goods vehicles and special purpose vehicles of a permitted gross vehicle weight not exceeding 5.5 tonnes ................................................. $17 5. Medium goods vehicles and special purpose vehicles of a permitted gross vehicle weight of or exceeding 5.5 tonnes but not exceeding 24 tonnes .... $20 6. Heavy goods vehicles and special purpose vehicles of a permitted gross vehicle weight of or exceeding 24 tonnes but not exceeding 38 tonnes ..... $20 7. Public and private single-decker buses ................................................... $20 8. Public and private double-decker buses .................................................. $20 9. Each additional axle in excess of 2 ......................................................... $13 (Enacted 1988. Amended L.N. 112 of 1995; L.N. 429 of 1996; L.N. 312 of 1999)
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