LegCo Paper No. CB(2) 518/96-97
(The minutes have been seen
by the Administration)
Ref : CB2/BC/27/95
Bills Committee on the Evidence (Amendment) Bill 1996
Minutes of Meeting held on Thursday, 17 October 1996 at 10:45 a.m. in Conference Room B of the Legislative Council Building
Hon Ronald ARCULLI, OBE, JPPublic Officer Attending:
Hon Bruce LIU Sing-lee
Clerk in Attendance:
- Mr Ian WINGFIELD
- Crown Solicitor
- Mr Stephen WONG
- Principal Crown Counsel
- Mr Geoffrey FOX
- Deputy Principal Crown Counsel
- Mr John HUNTER
- Deputy Principal Crown Counsel,
- Ms Dorothy CHENG
- Senior Crown Counsel
Staff in Attendance:
- Mrs Sharon TONG
- Chief Assistant Secretary (2)1
- Mr Arthur CHEUNG
- Assistant Legal Adviser 5
- Mr Paul WOO
- Senior Assistant Secretary (2) 5
Meeting with the Administration
1. At the invitation of the Chairman, Mr Ian WINGFIELD briefed members on the Administrations response (circulated vide Appendix to LegCo Paper No. CB(2) 40/96-97) to members queries raised at the previous meetings.
Implication of the Bill on the legal rights and protection of Hong Kong citizens
2. The Bill would enable Hong Kong to accede to requests for the taking of evidence where the criminal matter in the requesting jurisdiction was at the investigation stage. Any overseas jurisdiction, including China, could make a request for evidence to be taken in Hong Kong. The Bill, however, would not enable an overseas jurisdiction to conduct investigations in Hong Kong.
3. Miss Margaret NG expressed that when the taking of evidence was in the form of submitting a person to examination by the court, the examination itself would amount to an investigation. She was concerned that, under the proposed legislation, the right of a person to remain silent would be invaded when that person was compelled to answer questions in a court for the purpose of giving effect to a request from an overseas jurisdiction. Mr Ian WINGFIELD replied that there was a clear distinction between authorising foreign investigative authorities to come to Hong Kong to conduct investigation as the Hong Kong authorities would do on the one hand, and applications through the Hong Kong authorities to a court to obtain evidence for the proceedings in overseas jurisdictions on the other. The Bill only sought to provide assistance to the requesting jurisdiction in the latter manner. A witness generally was obliged to answer questions unless an answer might tend to incriminate him. Mr WINGFIELD said that the procedures set out in the Bill of applying through the court to obtain evidence was in very much the same way as a court would obtain evidence for the prosecution of a criminal case in Hong Kong, and the personal privileges of witnesses had not been overridden.
4. Miss Margaret NG said that in Hong Kong a witness would be compelled to answer questions only in the course of a trial or hearing. However, in the proposed legislation, when effect was given to an overseas jurisdiction making a request for the taking of evidence, a witness in Hong Kong had to answer questions, even where the criminal matter in the requesting jurisdiction was at the investigation stage. She queried if this would be the right thing to do since a witnesss right of silence would be infringed. Mr WINGFIELD explained that the purpose of the legislation was to cope with situations where the international norm was to assist overseas jurisdictions with different criminal procedures through court proceedings. In order to meet their requirements, such as that of a grand jury in the United States which took evidence or an examining magistrate in the civil law jurisdictions of Europe, sometimes evidence had to be gathered at an earlier stage rather than at the actual trial stage. The existing domestic legislation, however, restricted the provision of assistance only to a situation where a trial was either current or imminent and therefore needed to be amended.
5. As regards the rights and protection of witnesses, Mr WINGFIELD said that in most cases the witnesses were not the alleged criminals who were potentially subject to criminal proceedings. They were willing to provide the required information and their rights were protected such as they could not be asked to give evidence or to produce documents unless these were specified. Other safeguards were available through the Crown Solicitors decision to apply to the court for an order for the evidence to be obtained in Hong Kong and the discretion of the court to refuse to grant the order if there was impropriety.
The practice of the European Convention in respect of the exercise of investigatory powers by its members in relation to each other
6. Mr Ian WINGFIELD stated that the Bill intended to amend the Evidence Ordinance in relation to mutual legal assistance in criminal matters to reflect what was now very much an international norm.
7. Mr Ambrose LAU enquired if there were common law countries not providing assistance to requests from other jurisdictions in the manner as proposed in the Bill. Mr Ian WINGFIELD and Mr John HUNTER replied that the United Kingdom, for example, which had signed up to the European Convention, gave effect to requests from countries world-wide to obtain evidence at the investigation stage. A common law country, however, would less likely make the request itself at the investigation stage. Mr HUNTER undertook to provide more information as to the positions in other countries like Canada, Australia and New Zealand for members reference. Miss Margaret NG asked the Administration to include in the information some research materials on whether those countries had encountered situations where the provision of assistance to a foreign jurisdiction resulted in the foreign authority having greater investigative power than the local authorities and whether there had been problems associated with that. The Chairman remarked that Hong Kong not being a member of any of the multilateral agreements, whether there would be reciprocity in the offer of assistance should be taken into consideration.
|The meaning of testimony otherwise than on oath in proposed section 77D (3)
8. Mr Ian WINGFIELD stated that the phrase "testimony otherwise than on oath" was originally related to the provision of evidence for civil proceedings and was then cross-applied to criminal proceedings as well. Although there had been no example of a requesting jurisdiction asking for evidence not on oath, the case might arise, for example, in proceedings in relation to the evidence of a child of tender years.
Proposed substitution of at any place in section 77DD(4) with at any place within Hong Kong
9. Mr Ian WINGFIELD advised that there had been no precedent case in which a judge had specified a place outside Hong Kong for the taking of evidence. It was doubtful if the court would have authority to exercise such ex-territorial jurisdiction. The suggested amendment therefore merely stated the existing position.
Suggestion to add a related general avoidance of doubt provision in section 77DB in respect of privilege of witness and legal professional privilege
10. Mr Ian WINGFIELD commented that the suggested provision was not necessary as it was a matter for the court to determine whether or not a witness might claim privilege.
11. In response to Miss Margaret NGs question, Mr WINGFIELD clarified that the Administrations view on legal professional privilege was that it was absolute. It would continue to apply unless there was an express exclusion of it in any legislation. He remarked, however, that it would not be advisable to put an express avoidance of doubt provision in this legislation since it might cast doubt on other legislation which had no similar provisions. Miss NG agreed. The Chairman proposed that the Administration should highlight this point in the Second Reading debate of the Bill.
12. The Chairman opined that since the above three items were related to Mr Ronald ARCULLIs queries raised at the last meeting, Mr ARCULLI should be given the opportunity to respond to the Administrations views at the next meeting.
Criminal matters of a fiscal nature
13. Mr Ian WINGFIELD asserted that, with the proposed fifth draft Committee Stage amendments, section 77DB had effectively provided that the provisions should not apply in the case of a criminal matter which related to taxation and was either an investigation or related to a request made by or on behalf of a prescribed person which was neither a court nor tribunal. The present position that an overseas court could request for assistance in respect of evidence for the prosecution of fiscal crimes overseas was preserved. Whilst there were quite a lot of requests in relation to customs fraud, there had been relatively few cases in relation to income tax or profits tax. He supplemented that the Singapore position was that a Singapore court might give effect to a request for evidence in relation to a fiscal crime in another country, subject to the crime not being a political offence.
14. Mr WINGFIELD also referred to a concern previously raised by a member of the Hong Kong Society of Accountants about whether or not "an investigation into an external offence" would embrace offences that were too trivial in nature. He said that the remedy was that the court had the discretion to reject an application if it appeared to the court to be an abuse of process. In addition, it was not likely that overseas jurisdiction would spend a large amount of money on seeking evidence on trivial matters.
Submission from the Law Society of Hong Kong
15. A letter dated 28 June 1996 from the Law Society of Hong Kong and the Administrations response to it had been circulated to members vide LegCo Paper No. CB(2) 1747/95-96 and CB(2) 1903/95-96 respectively. Members agreed that the relevant comments had been addressed.
16. Members expressed that inasmuch as the Administration had explained clearly the purpose of the Bill and the best way to assist overseas jurisdictions in obtaining evidence for the purpose of their proceedings, the question remained as to whether Hong Kong ought to give effect to requests in such as a way as to possibly encroach on the rights now enjoyed by the people in Hong Kong in respect of similar circumstances. Members noted that the Bills Committee had yet to form a collective opinion on this important issue.
17. In response to members enquiry, Mr Ian WINGFIELD said that the Mutual Legal Assistance in Criminal Matters Bill would possibly be introduced in the first half of next year.
Date of next meeting(s)
18. Members agreed to hold an internal discussion on 29 October 1996 at 4:30 p.m. to review generally the matters discussed to see if a collective stand could be arrived at. Among other things, the following fundamental issues were of particular concern:
- Implications of the Bill on the legal rights and protection of people in Hong Kong.
- The proposed abolition of corroboration rules in respect of sexual offences.
- Whether the timing of this Bill, which proposed legislation in a piece-meal manner, was right in view of the fact that a comprehensive Mutual Legal Assistance in Criminal Matters Bill was in the pipeline.
|19. Another meeting was scheduled for 21 November 1996 at 8:30 a.m. At the request of the Chairman, Assistant Legal Adviser 5 undertook to report on any issues on the Bill from the technical point of view at the next meeting.
Close of meeting
The meeting ended at 12:05 p.m.
19 November 1996
* -- other commitments
Last Updated on 10 December 1998