LegCo Paper No. CB(2) 1796/96-97
(The minutes have been seen
by the Administration)
Ref : CB2/BC/53/95
Bills Committee on the Independent Police Complaints Council Bill
Minutes of the Fourth Meeting held on Monday, 3 February 1997 at 2:30 pm
in the Chamber of the Legislative Council Building
Members present :
Hon Zachary WONG Wai-yin (Chairman)
Dr Hon LEONG Che-hung, OBE, JP
Hon CHEUNG Man-kwong
Hon James TO Kun-sun
Hon IP Kwok-him
Dr Hon LAW Cheung-kwok
Hon LEE Kai-ming
Members absent :
Hon Emily LAU Wai-hing
Hon Selina CHOW, OBE, JP
Hon Ronald ARCULLI, OBE, JP
Hon Eric LI Ka-cheung, OBE, JP
Hon Christine LOH Kung-wai
Hon CHEUNG Hon-chung
Hon Bruce LIU Sing-lee
Hon Margaret NG
Hon TSANG Kin-shing
Public Officers attending :
- Mr Philip CHAN
- Principal Assistant Secretary for Security
- Mr Howard CHAN
- Assistant Secretary for Security
- Mr K H CHING
- Senior Assistant Commissioner of Police
Director of Management Service
- Mr Thomas CHAN
- Senior Superintendent of Police
Complaints Against Police Office
- Mr K F CHENG
- Senior Assistant Law Draftsman (Acting)
- Miss A OSMAN
- Acting Secretary
Independent Police Complaints Council
Attendance by invitation :
- The Hong Kong Human Rights Monitor
- Mr Paul Harris
- Mr LAW Yuk Kai
Clerk in attendance :
- Mrs Sharon TONG
- Chief Assistant Secretary (2)1
Staff in attendance :
- Ms Kitty CHENG
- Assistant Legal Adviser 2
- Mr Paul WOO
- Senior Assistant Secretary (2) 5
I. Confirmation of minutes of meeting held on 16 December 1996
(LegCo Paper No. CB(2) 1107/96-97)
The minutes of meeting held on 16 December 1996 were confirmed.
II. Meeting with representatives from the Hong Kong Human Rights Monitor (HKHRM)
(Written submission from HKHRM was tabled at the meeting and circulated to absent members under LegCo Paper No. CB(2) 1152/96-97).
2. Mr James TO Kun-sun declared that he was a member of HKHRM.
3. Mr Paul Harris said that HKHRM was of the opinion that there should be an independent body to investigate complaints against the Police. Experience in other countries indicated that an independent machinery would enhance and restore public confidence in the complaints handling system. It was better to set up such an independent mechanism before it was forced upon the Administration by events. As far as the Bill was concerned, HKHRM took it as a minimal measure which did no more than making the Independent Police Complaints Council(IPCC) a statutory body rather than leaving all the arrangements on a purely administrative basis. HKHRM did not believe that under this framework IPCC would have sufficient powers for it to carry out its limited monitoring functions. HKHRM therefore proposed a separate measure to provide for serious complaints to be dealt with by an independent body. If, however, the Legislative Council decided not to take that route, the Bill should be amended in line with the recommendations set out in the submission.
4. Mr Paul Harris particularly pointed out that under clause 8(2) of the Bill, the Commissioner of Police had authority not to comply with any requirement under subsection (1)(a),(b),(d) or (e) if he was satisfied that to do so would likely prejudice the security of Hong Kong or the investigation of any crime. He said that this decision should not rest with the Commissioner of Police, but with the High Court Judge.
5. Mr LAW Yuk-kai proceeded to take members through HKHRMs comments on the Bill and recommendations as detailed in the submission. He explained that the proposed amendments were drafted with a view to empowering IPCC with power of investigation of complaints.
6. Referring to the power of IPCC to observe the Complaints Against Police Office (CAPO)s investigation, Mr LAW Yuk-kai said that surprise checks should target at those locations where front-line Police operations took place, such as Police stations and report rooms etc. Mr James TO Kun-sun suggested that IPCC members should conduct surprise inspections first-hand at the scene, where they saw fit, whilst Police officers were carrying out investigation. Senior Assistant Commissioner of Police (SACP) responded that there could be difficulties. He said that, in most cases, complaints were reported to CAPO or Police stations or at the hospitals after the incident giving rise to the complaint (e.g. an alleged assault) had taken place. In addition, it would not always be possible for IPCC members to arrive at the scene at the earliest possible time. Under the existing IPCC Observers Scheme, schedules of interviews were provided by CAPO to IPCC on a daily basis. Principal Secretary for Security (PAS(S)) added that guidelines to deal with assault allegations were in place, which included arrangements for the timely recording and referral of the complaints for necessary action, such as physical check/medical examination of the complainant. The Administration undertook to give further thought to Mr TOs suggestion.
7. Mr James TO Kun-sun further opined that under the present complaints handling mechanism, cases of abuse of police powers just could not be detected easily. He asked if any Police supervisors had discovered cases like suspects being instantly beaten up in a Police station. SACP responded that senior officers at divisional level had a responsibility to closely monitor the duty performance of their subordinates to ensure the provision of a quality service. Management at district and regional level also carried out regular supervisory visits outside office hours. In cases where an abuse of power was observed, criminal prosecution or disciplinary action would be taken against the officers concerned. In response to Mr TOs query, SACP added that police did not keep separate statistics on cases, action against which was initiated by supervisory officers.
8. Dr LAW Cheung-kwok sought HKHRMs view on the proposal to appoint some full-time salaried members to IPCC in order to enhance the monitoring role of the Council. Mr Paul Harris welcomed the idea. He said that there was more work than some IPCC members could handle in their present capacity as volunteers.
9. Further on the matter of alleged assaults, Mr LAW Yuk-kai informed the meeting that he had a complaint case in hand where two witnesses were willing to give evidence. He was prepared to provide the relevant information where appropriate.
10. The Administration undertook to provide a written response to HKHRMs submission after the meeting.
(Post-meeting note: The Administrations response has been circulated under LegCo Paper No. CB(2) 1455/96-97(02)).
III. Continue discussion with the Administration
(LegCo Paper No. CB(2) 1118/96-97(01)
LegCo Paper No. CB(2) 1118/96-97(02)
LegCo Paper No. CB(2) 1018/96-97(01)
LegCo Paper No. CB(2) 1016/96-97(01)
LegCo Paper No. CB(2) 979/96-97(01)
11. Mr CHEUNG Man-kwong disapproved of the Administrations rejection of the proposals of IPCC of appointing a non-police officer as head of CAPO. SACP replied that the investigation work of CAPO was carried out by Police officers with years of specialized training and professional experience. He doubted whether a civilian head of CAPO would be fully-equipped for the effective overseeing of Police investigation. PAS(S) said that the effectiveness of a system had to be assessed against the local political, cultural and socio-economic background. The present complaints system in Hong Kong was not out of step with overseas police jurisdictions. The function of monitoring and reviewing complaints investigation was assumed by IPCC, which was an independent civilian body comprising non-police personnel from different sectors of the community. In order to enhance its role, IPCC would set up a special panel to monitor and review serious cases, which included suspicious cases involving death or serious injuries, cases in which IPCC could not endorse CAPOs investigation and cases involving considerable public interest. Under exceptional circumstances, IPCC could also submit its findings and recommendations to the Governor, who could then appoint further independent inquiry into the case. Since complaints against the Police often involved allegations of breaches of criminal law or Police discipline or procedures, Police officers were best placed to take up the investigative role. The Administration concluded that a fundamental change to the system was not desirable or workable and that CAPO should continue to be headed by a Police officer.
12. Mr James TO Kun-sun said that the community wished for a fair system. Investigation by experienced Police officers did not guarantee that this could be achieved if the system was inherently flawed. Effective checks and balances had to be imparted. Mr CHEUNG Man-kwong said that the IPCCs proposal of a civilian head of CAPO already represented a great concession as compared with previous demand for a completely independent CAPO. Under this proposal, investigation would still be conducted by Police officers in CAPO but only vetted and sanctioned by a non-police officer who would then look at how the investigation had been carried out from the viewpoint of an independent third party, and called for further action as he saw fit, before the investigation reports were submitted to IPCC for endorsement. The proposal already struck a balance between the concerns of members of the public and members of the Police Force.
13. Members did not agree that appointing a non-police officer as head of CAPO would fundamentally change and jeopardize the system. To enhance public confidence in the complaints system, it was necessary to have non-police element in CAPO. Members pointed out that there were statutory requirements of appointing non-professionals into some professional committees. Drawing references to the Immigration Department and the Independent Commission Against Corruption (ICAC) which were headed by non-disciplined services officers, members failed to see why CAPO could not be headed by a non-police officer. Members called upon the Administration to further consider the proposals to appoint non-police personnel to the investigation teams in CAPO.
14. Dr LEONG Che-hung commented that matters concerning the appointment of non-police personnel to CAPO were not within the scope of this Bill and therefore they might need to be examined in a separate context. The views of IPCC should be sought in the discussion of the subject.
15. Mr James TO Kun-sun suggested that serious complaint cases where IPCC could not agree to the result of investigation submitted by CAPO could be referred to ICAC for re-investigation. Mr TO said that ICAC investigators should possess the skills and know-how necessary for the discharge of the duties of CAPO as set out in paragraph 2 of LegCo Paper No. CB(2) 1118/96-97(02). In addition, ICAC had authority under the Independent Commission Against Corruption Ordinance (Cap. 204) to investigate cases where abuse of powers by public officers might be involved. By bringing in the ICAC, the problem of reinvestigation could be solved without recourse to lengthy and complicated legislative procedures. The Administration undertook to respond in writing to the proposal.
16. In response to the Chairmans question on the time limit for complaints investigation, SACP replied that CAPO always aimed to complete investigation within the shortest time-frame. He advised that, under normal circumstances, CAPO officers would contact the complainant within 24 hours after a complaint was received. However, if the subject matter of a complaint related to a pending criminal prosecution; was of such a nature that it would in the ordinary course of events be raised during the course of the trial and there was no indication of misconduct sufficient to justify interference with the prosecution, a full investigation prior to the conclusion of the trial was not warranted. In such a case the complainant would be consulted if he would like to treat his complaint as subjudice. For this type of cases the complainant would be reminded that he could refrain from giving a statement about his complaint as this might prejudice his defence in the criminal case. The complainant, however, was at liberty to make the statement if he so wished and investigation into the complaint would continue. SACP further added that due to the complicated nature of serious cases, legal advice would also need to be sought on certain aspects of the case before submission of the completed report to the IPCC.
17. Mr James TO Kun-sun noted that there had been allegations that Police officers who were the subjects of complaints were "tipped off" or forewarned of the details of the complaint. He said that if sufficient safeguard was in place to prevent acts of tipping off the complainee, the likelihood of the complainant making a statement which would prejudice his defence in proceedings would not arise. Members questioned whether cases of tipping off had been detected in the past and what action had been taken by the Administration in this regard.
18. SACP replied that arising from the Comparative Study of Complaints Against Police Systems, Police had adopted the recommendation to amend the Police General Orders to make "tipping off" itself a disciplinary offence. Previously, such breach of discipline had been dealt with under other disciplinary offences, i.e. prejudice to good conduct and discipline or conduct calculated to bring the public service into disrepute. If found guilty, punishment commensurate with the seriousness of the case would be meted out by the Adjudicating Officer. He undertook to provide statistics on previous cases.
19. SACP further advised members that since December 1996 the Police Force had launched a campaign targetting at instilling a new culture in the Force which stressed on the promotion of professional values and work ethics. He believed that changes would take place in the Police towards enhanced service quality and transparency.
20. In reply to the Chairmans enquiry concerning issuing of medical reports by hospitals, SACP said that normally the hospital would release a medical report only with the patients consent. Members pointed out that there had been a lot of cases where the complainants could not obtain their own medical reports from the hospitals. On discussion, the Administration undertook to provide a sample of the request form for issuing a medical report for members reference.
21. In response to PAS(S)s invitation to members to observe CAPOs investigation, members enquired if they could have access to CAPOs case files and other relevant documents in order to facilitate their understanding of the cases. PAS(S) replied that there could be genuine difficulties as the files contained confidential personal information and legal advice which should not be disclosed at the investigation stage. The case files, together with other documentation, would be provided to IPCC only after the whole process of investigation had been completed.
22. Mr James TO Kun-sun made reference to the case of the Operations Review Committee of ICAC where members of the Committee were allowed to study all the information relevant to the review. He suggested appointing some members of the Bills Committee by the Governor to sit-on the IPCC for a short period of time, say one to two months, so that members could gain access to the files whilst following through the process of investigation. The Administration undertook to revert to members on the suggestion.
23. In reply to the query raised by Dr LEONG Che-hung, PAS(S) said that the Attorney General had confirmed that pursuant to clause 10(1) of the Bill, members of IPCC had authority to interview a person, whom CAPO had not seen, for the purpose of seeking an independent expert opinion which IPCC considered relevant to the investigation. PAS(S) advised that although the interview was not tantamount to an independent investigation in its own right, it formed part of the process of review.
24. Referring to clause 7 of the Bill, the Chairman requested the Administration to provide a revised drafting to fully reflect the Governments policy intent regarding the functions of IPCC.
(Post-meeting note : the Administration has submitted revised draft of clauses 7, 9 and 10 of the Bill, which has been circulated under LegCo Paper No. CB(2) 1455/96-97(01))
IV. Date of next meeting
25. The next meeting was scheduled for 26 February 1997 at 10:45 am.
(Post-meeting note : The meeting is later rescheduled to 12 March 1997 at 10:45 am.)
V. Close of meeting
26. The meeting closed at 4:45 pm.
7 April 1997
Last Updated on 15 December 1998