PLC Paper No. CB(2) 19/97-98
(These minutes have been seen
by the Administration and cleared
with the Chairman)
Ref : CB2/BC/53/95/S2
Bills Committee on
Independent Police Complaints Council Bill
Minutes of the Tenth Meeting
held on Thursday, 8 May 1997 at 8:30 am
in the Chamber of the Legislative Council Building
Members present :
Hon Zachary WONG Wai-yin (Chairman)
Hon Selina CHOW, OBE, JP
Hon Ronald ARCULLI, OBE, JP
Hon CHEUNG Man-kwong
Hon Emily LAU Wai-hing
Hon James TO Kun-sun
Hon IP Kwok-him
Dr Hon LAW Cheung-kwok
Hon LEE Kai-ming
Hon Margaret NG
Members absent :
Dr Hon LEONG Che-hung, OBE, JP
Hon Eric LI Ka-cheung, OBE, JP
Hon Christine LOH Kung-wai
Hon CHEUNG Hon-chung
Hon Bruce LIU Sing-lee
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 S G CHANDLER
- Chief Superintendent of Police
Complaints and Internal Investigation Branch
- Mr H W HUNG
- Senior Superintendent of Police
Complaints Against Police Office
- Mr WAN Suet-ming
Independent Police Complaints Council
- Mr Vidy CHEUNG
- Senior Assistant Law Draftsman (Acting)
Clerk in attendance :
- Mrs Sharon TONG
- Chief Assistant Secretary (2)1
Staff in attendance :
- Mr LEE Yu-sung
- Senior Assistant Legal Adviser
- Mr Paul WOO
- Senior Assistant Secretary (2)5
I. Meeting with the Administration
Administrations response to issues raised at the meeting held on 17 April 1997
(LegCo Paper No. CB(2) 2021/96-97(01))
Clause 2 - Definition of " Complaint"
Principal Assistant Secretary for Security (PAS(S)) informed members that, upon further examination by the Law Draftsman, the proposed new sub-para. (c) as set out in para. 3 of LegCo Paper No. CB(2) 2021/96-97(01) in respect of the interpretation of "complaint" under clause 2 was revised by substituting "an abuse of the identity of his being a member of the police force" with "an abuse of his position as a member of the police force". Senior Assistant Law Draftsman (SALD) explained that the meaning of "identity" and "position" was similar but that the term "abuse of position" was more commonly used in other legislation. The dictionary meaning of "position" also included that of "identity".
2. Senior Assistant Legal Adviser (SALA) agreed that the proposed sub-para. (c) under the definition of "complaint" would better clarify the policy intent as well as the existing practice in handling cases where a police officer revealed his identity in an inappropriate member. Yet, he expressed preference of "identity" to "position". In his opinion, "position" seemed to denote a reference to the grade/rank of the police officer, whereas "identity" carried a wider meaning which could cover cases where the person only revealed he was a member of the police force without mentioning his particular grade/rank.
3. To safeguard against any party contesting the description of the alleged conduct giving rise to a complaint, members suggested to include both the words "identity" and "position" in the definition. The Administration agreed to further review the drafting of sub-para. (c).
Clause 4 - Membership of Independent Police Complaints Council (IPCC)
4. Members asked the Administration to re-consider specifying the composition of IPCC members as referred to in subclause (1)(a)(iii) that not less than two members of IPCC should be LegCo Members, and that one of them should be elected among LegCo Members for appointment by the Governor. Members pointed out that similar provisions existed in other ordinances such as the University of Hong Kong Ordinance and the Chinese University of Hong Kong Ordinance. Some LegCo Members had also been appointed to serve on Government advisory and statutory bodies.
5. PAS(S) responded that clause 4 in its present form did not exclude the possibility of appointment of LegCo Members to IPCC by the Governor. The Administration preferred to provide a flexibility to the Governor, who could, with authority provided under clause 4, decide on the persons to be appointed, having regard to factors such as the individuals ability, knowledge, experience and expertise etc.
6. Members said that the suggestion as stated in para. 4 above was a mild proposal involving only two LegCo Members serving as IPCC members. The proposal did not run counter to the existing practice of appointment based on the principle of best person for the job. Mr James TO Kun-sun said that members proposal ensured a necessary constitutional link between LegCo and IPCC and a desirable checks and balance on the power of the Governor, thus enhancing the independent image of and public confidence in IPCC. The Administration agreed to further consider the proposal.
7. With regard to the proposal of giving honorarium or allowance to IPCC members, PAS(S) said that the Administration was still considering whether such payment was necessary and appropriate. He advised that the principles for remunerating non-officials serving on government boards and committees were approved by the LegCo Finance Committee in July 1980 and reaffirmed in March 1993 with minor amendments. A copy of the updated principles was at the Annex to LegCo Paper No. CB(2) 2021/96-97(01). PAS(S) undertook to revert to members once a decision was made on the proposal.
8. PAS(S) added that at present IPCC members received no honorarium, nor had any IPCC member requested payment of honorarium for their services in the Council. PAS(S) clarified that nothing in the Bill prevented the payment of remuneration to IPCC members.
9. Members opined that in view of the increasing number of government boards and committees with remuneration being paid to their non-official members, consideration should be given to apply the same practice to IPCC. Members also noted that, inasmuch as the principles laid down since 1980 were still valid and sound, a comprehensive review on the giving of honorarium was called for, having regard to the diverse nature of work of the various government boards and committees. The Administration noted members views and agreed to convey to the relevant Policy Branches members suggestion. Members requested that any outcome of review be reported to LegCo.
Clause 6 - Appointment of IPCC Secretary and Legal Adviser
10. In response to the proposal to empower IPCC to appoint its own secretariat staff, PAS(S) replied that the existing arrangement of staffing the IPCC Secretariat with civil servants worked well. The Administration did not propose any changes. He further pointed out that the staff of the Secretariat performed a supporting role to IPCC and they did not have authority to make any decision in respect of the review and monitoring of complaints investigation.
11. Members asserted that the power of IPCC to appoint its own staff was crucial to manifesting the independence of the Council. Members saw no reason why non-civil servants should not be appointed to perform the functions and duties of the Secretariat. They urged the Administration to re-consider the proposal. Members maintained that the bottom-line, at least, was for IPCC to be empowered to appoint its Secretary and Legal Adviser. Ms Emily LAU Wai-hing pointed out that, should non-civil servants be recruited, the terms and conditions of service offered should be reviewed to ensure that there would be the appropriate remuneration package to attract people with the right calibre.
Clause 7 - Functions of the Council
12. SALA opined that the refined drafting of clause 7(aa) as set out in para. 10 of LegCo Paper No. CB(2) 2021/96-97(01) had suitably addressed members concern by spelling out clearly the function of IPCC to review the findings of the Complaints Against Police Office (CAPO)s investigations, in addition to the manner in which such investigations were conducted.
Clause 8 - Powers of the Council
13. SALA advised that he had agreed with the Law Draftsman on the drafting of the proposed clause 8(dd) as set out in para 13 of LegCo Paper No. CB(2) 2021/96-97(01), which was done in response to members suggestion to add a provision to require the Commissioner of Police to submit to IPCC report on any follow-up action taken in respect of a complaint.
Administrations response to issues raised at the meeting held on 25 April 1977
(LegCo Paper No. CB(2) 2196/96-97(01))
Clause 11 - Secrecy
14. Arising from discussion on this clause, members asked the Administration to consider the following proposals/requests -
- to amend clause 11(1) to read "Every member of the Council shall, subject to subsections (2) and (3) and any statutory provisions in force at the time, maintain secrecy ............". The purpose of this proposed amendment was to enable members of IPCC to fulfil other statutory obligations, including those under the Legislative Council (Powers and Privileges) Ordinance, which provided for the authority of LegCo to order attendance of witnesses and production of documents;
- arising from the proposal at para. 14(a) above, to convey to the relevant Policy Branches members suggestion to add similar provisions to the Ombudsman Ordinance and the Personal Data (Privacy) Ordinance;
- to add a provision specifying that every time the Governor made a certification under clause 11(3) , the fact that the Governor had exercised this power should be made public;
- to advise on whether the Governor had ever exercised similar power as provided for under clause 11(3);
- to advise on whether the disclosure of a case involving a member of the national defence would be subject to the provision in clause 11(3);
- if the report as referred to in clause 11(3) did not include any reply of IPCC to a complainant and therefore IPCC was at liberty to reply to a complainant as it deemed fit, to specify these clearly in clause 11(3);
- to advise on whether CAPO would explain to a complainant the grounds on which a complaint was considered to be unsubstantiated, particularly those which might prejudice security, defence etc as referred to in clause 11(3), and whether CAPO would report such cases to IPCC; and
- to amend clause 11(4) to provide for a reasonable excuse clause in respect of failure to comply with clause 11(1).
15. PAS(S) responded that the power available to the Governor under clause 11(3) was expected to be rarely exercised. Clause 11(3) as drafted did not restrict CAPO to reply to the complainant and complainee on the endorsed findings of a complaint. The amount of information which would be disclosed in the reply would depend on the facts of individual cases, taking into account all relevant factors. PAS(S) added that there was no precedent where a complaint had involved matters which prejudiced security, defence etc. He undertook to revert to members on the issues raised at para. 14 in more detail.
Clause 13 - Report
16. In response to members questions, PAS(S) said that the reports referred to in clause 13(2) might include serious cases or cases of significant public concern which IPCC found it necessary to bring them to the Governors attention. The reports might also include recommendations made by IPCC in respect of the handling of the complaints in question. Clause 13 did not prevent the Governor from causing such reports to be laid before LegCo. PAS(S) added that the general report under clause 13(1), which would be laid before LegCo, contained summaries of cases of a special nature. Therefore, there could be duplication of cases mentioned in both the annual general report under clause 13(1) and the special reports under clause 13(2). PAS(S) remarked that as reports under clause 13(2) were related to special cases, the publication of which might infringe on the privacy of the individuals concerned, it would not be appropriate to specify explicitly in the Ordinance that such reports should be laid before LegCo. PAS(S) advised that so far no reports had been made to the Governor under clause 13(2).
17. Mr James TO Kun-sun and Ms Emily LAU Wai-hing said that serious cases such as those under clause 13(2) should be treated with a high degree of transparency. They requested the Administration to re-consider adding a provision in clause 13 that the Governor should cause the reports referred to in subsection (2) to be tabled before LegCo, subject to the Governors decision as to how those reports should be provided.
II. Any other business
18. The Chairman informed members that the deadline for report to the House Committee was 13 June 1997. PAS(S) requested that any Committee stage amendments to be moved by members be provided as soon as possible for the Administrations consideration.
III. Date of next meeting
19. The dates of the next two meetings were scheduled as follows -
- 23 May 1997 at 8:30 am
- 29 May 1997 at 8:30 am
(Post-meeting note: The meeting at para. 19(b) above was subsequently cancelled.)
IV. Close of meeting
20. The meeting ended at 10:35 am.
Provisional Legislative Council Secretariat
7 July 1997
Last Updated on 15 October 1997