TATE'S CAIRN TUNNEL ORDINANCE

TATE'S CAIRN TUNNEL ORDINANCE

LAWS OF HONG KONG

TATE'S CAIRN TUNNEL ORDINANCE

CHAPTER 393





CHAPTER 393

TATE'S CAIRN TUNNEL ORDINANCE

ARRANGEMENT OF SECTIONS

Section Page

PART I

PRELIMINARY

1. Short title ..........................4
2. Interpretation .......................4
3. Variation of plan ....................6

PART II

THE FRANCHISE

4. The franchise .......................................... 6
5. Effect of franchise ........ ........7

PART III

ASSIGNMENTS, MORTGAGES, ETC.

6. Prohibition on assignment, etc. of franchise rights 7

7. Mortgages and charges ........................................................ 7

PART IV

PROVISIONS RELATING TO THE COMPANY

8..Directors and paid up share capital of the Company 8

9. Royalty payments .....................8
10. Powers of Financial Secretary in relation to royalty 9

11. Tax provisions ..................................................... 9

PART V

CONSTRUCTION OF THE TUNNEL

12. Construction works to be carried out at the 1 expense of the Company 10
13. Start of construction ...............10
14. Period within which works must be completed 10
15. Determination of date of completion .10
16. Project agreement sufficient authority to carry out works 10

PART VI

CONTINUING OBLIGATIONS AND PROVISIONS IN RESPECT OF
THE.
CONSTRUCTION WORKS: REGULATIONS

17. Defects .......................................................................................................

18. Repair of tunnel and road works ..... 11





Section Page

19. Provisions supplementary to sections 17 and 18 11
20. Closure of tunnel ...................12
21. Utilities through the tunnel area ...12
22. Director may enter tunnel area and works area 13
23. Information to he supplied by the Company to the Director 13
24. Power to make regulations ...........13

PART VII

THE TUNNEL

25. Road operating date .................14
26. Company to provide tunnel facilities 14
27. Right to use of tunnel facilities ...14
28. Control and safety of tunnel traffic 14
29. Application of other laws ...........15
30. Operation of tunnel area by Government 15
31. Closure of tunnel for safety reasons 15
32. Advertising in tunnel area ..........is
33. Commissioner may enter tunnel for inspection purposes 16
34. Records and information .............16

35. Power to make by-laws ...................................................................... 17

PART VIII

COLLECTION OF
TOLLS

36. Company to charge approved tolls for use of tunnel 18
37. Description of motor vehicle ........19
38. Display of notices of tolls and sale thereof 19
39. Company may not charge tolls greater than those as fixed or varied 19
40. Company may erect toll structures, etc . 19

PART IX

TRAFFIC OFFENCES: SUPPLEMENTARY
PROVISIONS

41. Obligation to give information relating to the driving of vehicles 19
42. Proof in summary proceedings of identity of driver 20

43. Proof of plan ............... .......20

44. Definitions and application ......... 21

PART X

DEFAULT AND EXPIRATION OF THE
FRANCHISE

45. Default ........... .................................... 21

46. Defaults capable of remedy .............. 22

47. Revocation of the franchise

.......................................... 22
48. Effect of winding up of the Company, termination of franchise, etc . 23





Section Page
49. Liability of the Company and amount payable by the Government on the
vesting in it of its assets 24
so. Reimbursement of Company upon expiration of franchise 25
51. Government not liable for Company's debts 25

52...................Meaning of 'assets' 25

PART XI

SUPPLEMENTARY

53......................................Appeal by the Company 25
54......................................Non-derogation from Government's rights 26
55......................................Certificate as to moneys owing to the Government 26

56...................Limitation of public liability C 26

57.......................................Director to give effect to the project agreement 27
Schedule..................................Tate's Cairn Tunnel Tolls 27





CHAPTER 393

TATE'S CAIRN TUNNEL

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.

[1 July 1988]

Originally 50 of 1988

PART I

PRELIMINARY

Short title

1. This Ordinance may be cited as the Tate's Cairn Tunnel Ordinance.

Interpretation
2. (1) In this Ordinance, unless the context otherwise requires-

'Commissioner' means, subject to subsection (2), the Commissioner for
Transport;

'Company' 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' means all works carried out or to be carried out under the
project agreement and all works required to carry them out;

'Director' means, subject to subsection (2), the Director of Highways;

'discharge date' means the date when the guarantors cease to have any
obligations under the guarantee agreement;

'franchise' means the franchise granted under section 4;

'further guarantee agreement 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' 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' means 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' means any mechanically propelled vehicle for use on roads;

'plan' means

(a)the plan numbered KM 3951 signed by the Commissioner and deposited
in the Land Office, Victoria; and

(b) any new plan deposited in accordance section 3(3);

'project' 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' 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' means the date notified in the Gazette under section 25(1);

'Secretary' means the Secretary for Transport;

',start of construction' means the date upon which the construction works are
commenced as agreed, or as determined, under section 13(1);

'toll structure' means any structure erected by the Company for the purposes of
section 40;

'tunnel' means the twin tube tunnels each containing 2 traffic lanes passing under
Tate's Ridge between Diamond Hill and Siu Lek Yuen;

'tunnel area' means the area delineated and coloured red on the plan;

,,utility' 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, ot 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, to be a reference by an arbitration agreement, as defined for the
purposes of that Ordinance, to 2 arbitrators, one appointed by each party.

Variation of plan

3. (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 Office.

(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.

PART II

THE FRANCHISE

4. (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.





Effect of franchise

5. The franchise shall include all wayleaves 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.

PART III

ASSIGNMENTS, MORTGAGES,
ETC.

Prohibition on assignment, etc. of franchise rights

6. (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.

Mortgages and charges

7. (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.

PART IV

PROVISIONS RELATING TO THE
COMPANY

Directors and paid up share capital of the Company

8. (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 issued and fully paid up share. capital of the
Company shall be $600,000,000.

Royalty payments

9. (1) The Company shall pay to the Government a royalty at the rate of

(a)2.5 per cent 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 royaly 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' means the operating receipts reduced by the royalty
payable in respect of those receipts under subsection (1);

,,operating receipts' 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 e may be;

(b)any charges imposed or other benefits obtained by the Company under
section 32; and

(e)any other authorized charges imposed by the Company under this
Ordinance;

'projected net operating receipts' 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.

Powers of Financial Secretary in relation to royalty

10. 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.

Tax provisions

1-1. 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).





PART V

CONSTRUCTION OF THE TUNNEL

Construction works to be carried out at the expense of the Company

12. The Company shall, at its own expense, carry out the construction
works in accordance with the project agreement and this Ordinance.

Start of construction

13. (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).

Period within which works must be completed

14. (1) Subject to this section, the Company shall complete the construc-
tion 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).

Determination of date of completion

15. 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.

Project agreement sufficient authority to carry out works

16. (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 notwith-
standing 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 Lands and Works may, by notice in the Gazette, apply the
Buildings Ordinance, or any provision thereof, to any of the construction works:

Provided that nothing in this subsection shall apply to any such works which
are civil engineering works.

PART VI

CONTINUING OBLIGATIONS AND PROVISIONS IN
RESPECT OF
THE CONSTRUCTION WORKS: REGULATIONS

Defects

17. (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.

Repair of tunnel and road works

18. (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.

Provisions supplementary to sections 17 and 18

19. (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.

Closure of tunnel

20. (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.

Utilities through the tunnel area

21. (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 ing 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.

Director may enter tunnel area and works area

22. (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)..

Information to be supplied by the Company to the Director

23. For the purpose of enabling the Director to ascertain any arrange 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.

Power to make regulations

24. 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.

PART VII

THE TUNNEL

Road operating date

25. (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' means the approach roads comprised in
the construction works.

Company to provide tunnel facilities

26. 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.

Right to use of tunnel facilities

27. 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.

Control and safety of tunnel traffic

28. (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.

Application of other laws

29. (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.

Operation of tunnel area by Government

30. (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).

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.

Advertising in tunnel area

32. (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 (I)
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.

Commissioner may enter tunnel for inspection purposes

33. (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).

Records and information

34. (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,

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.





Power to make by-laws

35. (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, horn' s
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;

(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 he 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 $2,000.

(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).





PART VIII

COLLECTION OF TOLLS

Company to charge approved tolls for use of tunnel

36. (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.

Description of motor vehicle

37. 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).

Display of notices of tolls and sale thereof

38. (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.

Company may not charge tolls greater than those as fixed or varied

39. The Company shall not charge any person a toll greater than the
appropriate toll specified in the Schedule.

Company may erect toll structures, etc.

40. 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.

PART IX

TRAFFIC OFFENCES: SUPPLEMENTARY
PROVISIONS

Obligation to give information relating to the driving of vehicles

41. (1) Without prejudice to section 63 of the Road Traffic Ordinance, 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 3 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.

(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 $4,000
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.

Proof in summary proceedings of identity of driver

42. 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.

Proof of plan

43. (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.





Definitions and application 44.
(1) In this Part

'driver', in relation to any motor vehicle, means any person who is in charge of or
assisting' in the control of such vehicle;

'driving licence' means a licence issued in accordance with regulations made under
section 8 of the Road Traffic Ordinance (Cap. 374);

owner' includes the person in whose name a vehicle is registered under the Road
Traffic Ordinance 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' 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.

PART X

DEFAULT AND EXPIRATION OF THE
FRANCHISE

Default

45. 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)it commits an act of bankruptcy within the meaning of section 3 of the
Bankruptcy Ordinance (Cap. 6); or

it fails to comply with a' notice under section 46, and
the expression 'default' shall be-construed accordingly.





Defaults capable of remedy

46. (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' 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 deroga-

tion 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.

Revocation of the franchise

47. (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.

Effect of winding up of the Company, termination of franchise, etc.

48. (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.

Liability of the Company and amount payable by the
Government on the vesting in it of its assets

49. (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
asset s 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 11;

(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.

Reimbursement of Company upon expiration of franchise

50. 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.

Government not liable for Company's debts

51. 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.

Meaning of 'assets'

51. In this Part, 'assets' means the structure of the tunnel and all buildings,
machinery equipment and plant ancillary to the construction, operation and
maintenance of the tunnel.

PART X1

SUPPLEMENTARY

Appeal by the Company

53. (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,





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' 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.

Non-derogation from Government's rights

54. (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.

Certificate as to moneys owing to the Government

55. 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 ate shall become payable by the person so liable upon presenta-
tion of that certificate to him.

Limitation of public liability

56. 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.

Director to give effect to the project agreement

57. 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.

SCHEDULE [ss. 4, 27, 36, 37 & 39]

TATE'S CAIRN TUNNEL TOLLS
Category Vehicle Toll

1 Motorcycles, motor tricycles $4
2. Private cars, electrically powered passenger vehicles, taxis $4
3. Public and private light buses $7

4. Light goods vehicles and special purpose vehicles of a permitted gross vehicle

weight not exceeding 5.5 tonnes
..................................................................... $7

.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 $8

6. Heavy goods vehicles and special purpose vehicles of a permitted gross vehicle

weight of or exceeding 24 tonnes but not exceeding 38 tonnes $8
7........................................Public and private single-decker buses $8

8.....................................Public and private double-decker buses ...... $8

9........................................Each additional axle in excess of 2 $5
[ss. 4, 27, 36, 37 & 39]

[ss. 4, 27, 36, 37 & 39]

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