LegCo Paper No. CB(2) 1383/96-97
(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 Second Meeting held on Thursday, 9 January 1997 at 10:45 am in Conference Room A of the Legislative Council Building
Members present :
Hon Zachary WONG Wai-yin (Chairman)Members absent :
Hon Selina CHOW, OBE, JP
Hon Ronald ARCULLI, OBE, JP
Dr Hon LEONG Che-hung, OBE, JP
Hon Emily LAU Wai-hing
Hon Eric LI Ka-cheung, OBE, JP
Hon James TO Kun-sun
Hon Christine LOH Kung-wai
Hon IP Kwok-him
Hon Bruce LIU Sing-lee
Hon Margaret NG
Hon TSANG Kin-shing
Hon CHEUNG Man-kwong*Public Officers attending :
Hon CHEUNG Hon-chung*
Dr Hon LAW Cheung-kwok*
Hon LEE Kai-ming*
Clerk in attendance :
- 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)
- Mr WAN Suet-ming
Independent Police Complaints Council
Staff in attendance :
- Mrs Sharon TONG
- Chief Assistant Secretary (2)1
- Mr LEE Yu-sung
- Senior Assistant Legal Adviser
- Mr Paul WOO
- Senior Assistant Secretary (2) 5
I. Meeting with the Administration
1.The Chairman informed members that a submission on the Bill had been received from the Hong Kong Human rights Commission. Representatives from the organization had been invited to present their views at the next meeting on 15 January 1997.
(Post-meeting note: Due to re-scheduling of meeting, the deputation subsequently took place at the meeting on 21 January 1997.)
Reply from the Independent Police Complaints Council (IPCC)
2. The Chairman said that, in response to the Bills Committees invitation, Chairman, IPCC had replied that he could not attend this meeting due to a previous court engagement. IPCC had undertaken to provide an information paper on the background and deliberations of IPCCs proposals to improve the complaints against Police system for members reference before the next meeting.
3. Dr LEONG Che-hung said that as there was no prior authorization of him to represent the Chairman of IPCC on this occasion, he attended this meeting in the capacity of a member of the Bills Committee, not as a Vice Chairman of IPCC.
4. Members resolved that as IPCC was part and parcel of the Bill, Chairman, IPCC should be invited again to the meeting. The time for the meeting could be fixed at his convenience.
(Post-meeting note: Mr Denis CHANG, Chairman, IPCC, attended the Bills Committees meeting on 21 January 1997.)
Continue discussion on the Bill
5. Principal Assistant Secretary for Security (PAS(S)) responded to the question raised by Dr LEONG Che-hung at the last meeting concerning whether IPCC had power to interview witnesses not previously seen by the Complaints Against Police Office (CAPO), and in certain cases, seek expert opinion on areas related to the investigation of the complaint. He clarified that clause 10 of the Bill empowered IPCC to do so. He said that, for example, in a case where death was involved and IPCC had queries about the medical findings, it could seek an independent second opinion from a medical expert. Based on the merits of the case, the Attorney General may require the Coroner to reopen a death inquest. PAS(S) said that in exercising the power under clause 10, IPCC was still performing a monitoring and reviewing function as stated in clause 7.
6. As regards whether IPCC should be allowed to summon any witness, PAS(S) and Senior Assistant Commissioner of Police (SACP) said that it would run contrary to the present system, which was operating on a voluntary basis as far as the interviewing of witnesses was concerned. Even if a person could be made to appear, he was not compelled to give evidence. The Administration did not believe there was a need for a change.
7. Dr LEONG Che-hung enquired if an independent medical expert would fall within the meaning of "any witness in connection with the complaint" in clause 10(1) of the Bill. Senior Assistant Law Draftsman (SALD) replied that pursuant to the definition of "witness" stated in clause 2, IPCC should have the authority to interview any person under clause 10(1) if that person might be able to provide information or other assistance in connection with the investigation of a complaint. The meaning of witness was wide enough to cover the person referred to by Dr LEONG. It might also include any other witness who had not been interviewed by CAPO.
8. In response to Miss Margaret NGs question, PAS(S) said that IPCC was empowered under clause 10(1) to reinterview all the witnesses previously seen by CAPO, subject to the consent of the witnesses concerned. IPCC also had power to look into how CAPO had handled a complaint, through scrutiny of reports, observing the interviews conducted by CAPO officers and, if necessary, demanding reinvestigation by CAPO.
9. Dr LEONG Che-hung remarked that there was a grey area in the interpretation of "investigation" and "monitor and review". If IPCC was permitted to interview new witnesses and obtain evidence from them, this could be an investigation on the part of IPCC. PAS(S) said that the distinction was that whereas IPCC could interview any witness and raise any query as regards how an investigation was undertaken, the duty to conduct an investigation afresh, if necessary, remained with the Police. CAPO was the investigating body which could act on IPCCs queries and make rectifications as and when required.
10. In response to members enquiries, PAS(S) explained that, for administrative convenience, sometimes an interview of witness might be conducted jointly by CAPO and IPCC. He confirmed that clause 10(1) enabled IPCC to interview any witness on its own. Dr LEONG Che-hung remarked that in the majority of cases, witnesses interviewed by IPCC members had also been seen by Police officers in CAPO.
11. Some members pointed out that clause 8(1)(c) stipulated that IPCC might interview any witness for the purpose of exercising its functions under the Ordinance. Clause 8(1)(c), however, was bound by clause 7(a), which set out that one of the functions of IPCC was to monitor and review the manner in which complaints were handled by the Police, rather than to probe into the complaint itself. Members were concerned that this would effectively limit what IPCC would like to achieve, i.e. to assume some form of investigatory role through interviewing of witnesses. Senior Assistant Legal Adviser (SALA) gave a similar view. He remarked that the way clauses 7(a) and 7(c) were drafted basically restricted the functions of IPCC to matters related to the manner of complaints handling and detection of procedural deficiencies. Clause 7(d), on the other hand, only referred to the making of recommendations by IPCC, instead of the handling of the complaints by itself. SALA said that the powers of IPCC described in clause 8 were to enable IPCC to perform its functions set out in clause 7. In his opinion, despite IPCC could interview any witness and require action to be carried out by CAPO, the drafting of clause 7 indicated that it was not the function of IPCC to conduct independent investigation or reinvestigation on its own.
12. PAS(S) opined that the monitoring and reviewing functions of IPCC were fully set out in clause 7, which were to ensure that every complaint would be properly dealt with. He said that, apart from matters related to manner and procedures, clause 7 empowered IPCC to make recommendations pertaining to the action taken or to be taken in connection with any complaint. Miss Margaret NG remarked that as clause 7(d) only dealt with recommendations, there might be severe restrictions when it came to investigative action which IPCC might want to take on its own in connection with any complaint.
13. Mr James TO Kun-sun asserted that IPCC should be given independent investigative power and clause 10 should be amended to achieve that purpose. He said that in view of the limited number of IPCC members and the resources available, clause 10(1) should be amended to the effect that IPCC and its staff might interview any witness. Referring to the same provision, Mr TO objected to the requirement that the interview of witness by IPCC members should take place after the Police had submitted the investigation report. He said that in a situation where the submission of the report had been delayed and a witness became untraceable before the report was submitted, it might not be possible for IPCC to interview the witness. To plug the loophole, the legislation should enable IPCC to initiate action to interview any witness at any time as it saw fit. As regards clause 9(3), Mr TO pointed out that it was stated that IPCC could submit recommendation to the Governor, but only subjected to those recommendations qualified under clause 9(2)(c). He said that this restriction should be lifted to include all the necessary findings of IPCC.
14. In response, PAS(S) said that insofar as the legal status of IPCC was defined in the Bill, the powers and privileges in relation to the proper carrying out of IPCCs functions were conferred upon its members. The Administration did not consider it appropriate for the staff of the Secretariat, whose role was to provide secretarial and administrative support, or other non-IPCC members, to exercise the same powers as that of IPCC members. Concerning clause 9(3), PAS(S) and SALD said that the purpose was to permit IPCC to bring, whenever necessary, serious cases to the attention of the Governor, along with its recommendations in respect of how the complaints had been handled. Obviously any recommendation would not be made in isolation and invariably there would be accompanied all the relevant information pertinent to the contentious issues involved. Referring to Mr James TO Kun-suns query on the possible delay in the submission of investigation reports by CAPO, SACP replied that in special cases where protracted investigation was required, preliminary and interim reports would be submitted to enable IPCC to keep track of developments. He assured that the question of the Police deliberately withholding the submission of the report would not exist.
|15. The Chairman and Mr Bruce LIU Sing-lee suggested that clause 9(3) should be redrafted to enable IPCC to submit any of its opinion, findings and recommendations referred to under clause 9(2). Mr LIU remarked that, according to IPCC, one of its most important functions was to ascertain whether the complaints against the Police had been substantiated. This was very much reflected in clause 8(1)(g) of the Bill. However, since the operation of clause 8 was restricted by clause 7, Mr LIU proposed to incorporate in clause 7 a new provision cast in similar terms as clause 8(1)(g). He said that this would extrapolate an investigative function of IPCC. Mr LIU also enquired if amendments to clause 10 could be made to allow IPCC members to interview any witness in the accompany of persons who could give expert advice, subject to the agreement of the Chairman of IPCC. PAS(S) responded that there would be implications regarding secrecy safeguards and the proper exercise of the functions and powers of IPCC. He undertook to examine the views.||Adm|
16. Mrs Selina CHOW said that the stand of the Liberal Party was that the basic function of IPCC was to monitor and review any complaint investigation, and that anything which would make IPCC an alternative investigative body with roles duplicated that of CAPO would not be acceptable. The crux of the matter was that the policy intent should be clearly spelt out and whether the policy intent should be accepted would be a matter to be resolved among Members of the Legislative Council. Mr James TO Kun-sun asked if it was acceptable in principle to the Liberal Party that IPCC be empowered to conduct reinvestigation in cases where it was not satisfied with CAPOs preliminary investigation. Mrs CHOW maintained that IPCC should not take over the work of CAPO. Being a monitoring and reviewing body, IPCC could require CAPO to reinvestigate a complaint. But it should not assume the role to conduct independent reinvestigation on its own.
17. Dr LEONG Che-hung said that it was not the intention of IPCC that it should become a parallel structure of CAPO with power to conduct original investigations. What IPCC purported to achieve was a wider authority to do something independently on its own when it found deficiencies with CAPOs investigations. He said that he did not think that IPCC could perform this role effectively within the confines presently laid down in clause 7.
18. In response to Miss Emily LAU Wai-hings question on the work of the Secretariat, IPCC, Secretary, IPCC said that there were 25 full-time staff in the Secretariat, comprising members of four monitoring teams and one Senior Crown Counsel on secondment from the Legal Department. The monitoring teams were responsible for the detailed study of the investigation reports and the relevant documentation submitted by CAPO. Each week, the cases would be discussed at a case conference chaired by Secretary, IPCC. Where doubtful points were raised, the Secretariat would seek clarification from CAPO, or request further action to be taken. The CAPOs reports, together with the Secretariats recommendations, would be circulated to IPCC members, who, in turn, could raise further queries with CAPO and demand a reinvestigation if necessary. Subsequent to the previous meeting of the Bills Committee, the relevant statistics in relation to the queries brought up by IPCC for the last four years had been circulated to members for information (vide LegCo Paper No. CB(2) 786/96-97).
19. Mr James TO Kun-sun opined that clause 6 which required that the Secretary of IPCC should be a public officer was another hindrance to the independence of IPCC. He said that it should be within IPCCs independent authority to appoint its own staff.
|20. Some members said that the majority view of the Bills Committee tended towards an expanded power of IPCC such that under certain circumstances IPCC would be allowed to discharge something similar to a reinvestigation role, in order to ensure that complaints against the Police could be properly dealt with. The present drafting of clause 7 of the Bill had caused confusion in that it did not reflect IPCC could perform that enhanced function. Members opined that in order to achieve a better meeting of minds between members and the Administration, the Administration should re-examine the policy intent concerning the functions of IPCC and redraft the provisions in clear and precise terms as to what IPCC had authority to do, subject to that policy intent. Otherwise, in the present context of the Bill, it was likely that members would propose substantial amendments. PAS(S) responded that the policy intent was clear that IPCC should perform a monitoring and reviewing role, instead of an investigative role. He undertook to review the wordings of the provisions, in particular clause 7, taking into consideration members views.||Adm|
21. In response to Mr James TO Kun-suns request, PAS(S) said that Secretary, IPCC would provide the background information concerning IPCCs proposals in respect of the Police complaints system for members reference.
(Post-meeting note: An information paper on IPCCs previous discussions on improvements to the Police complaints system has been circulated to members under LegCo Paper No. CB(2) 979/96-97(01).)
|22. Mr James TO Kun-sun followed-up on the possibility for members of the Bills Committee to follow through in selected cases the whole process of investigation conducted by CAPO officers. PAS(S) replied that there might be operational difficulties. It would involve individual rights to privacy and therefore the consent of the complainants and the witnesses had to be obtained. Involvement of third parties such as the media would also be a factor for consideration. The Chairman remarked that some Members of the Legislative Council had in fact referred cases of complaints to CAPO and they should have the trust of the complainants. Mr TO added that he was prepared to sign an oath of secrecy if that was required for what he was proposing to do. He further enquired if authorization from the Governor could be sought, for a specific period covering a few weeks, for some members of the Bills Committee to gain access to the investigation files and records kept by CAPO related to particular complaint cases. PAS(S) undertook to consider the suggestions.||Adm|
II. Date of Next Meeting
23. The next meeting was scheduled for 15 January 1997 at 8:30 am
(Post-meeting note: The date of the next meeting has subsequently been rescheduled to 21 January 1997.)
III. Close of Meetings
24. The meeting closed at 12:50 pm.
18 February 1997
Last Updated on 15 December 1998