LegCo Paper No. CB(2) 2576/96-97
(The minutes have been seen
by the Administration)
Ref : CB2/BC/53/95/S2
Bills Committee on the Independent Police Complaints Council Bill
Minutes of the Seventh Meeting held on Wednesday, 9 April 1997 at 10:30 pm in Conference Room A 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 Emily LAU Wai-hing
Hon James TO Kun-sun
Hon LEE Kai-ming
Hon Bruce LIU Sing-lee
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 IP Kwok-him *
Dr Hon LAW Cheung-kwok*
Hon Margaret NG*
Hon TSANG Kin-shing *
Public Officers attending :
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 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)
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.Confirmation of minutes of meeting
(LegCo Paper No. CB(2) 1719/96-97)
1.The minutes of the meeting held on 21 January 1997 were confirmed.
II.Meeting with the Administration
(LegCo Paper No. CB(2)1717/96-97(01)
(LegCo Paper No. CB(2)1754/96-97
(LegCo Paper No. CB(2)1455/96-97(02)
(LegCo Paper No. CB(2)1343/96-97
(LegCo Paper No. CB(2)1152/96-97
(LegCo Paper No. LS 155/96-97
Administrations response to the issues raised at the meeting held on 24 March 1997
Full-time observer of CAPOs investigation
|2.Principal Assistant Secretary for Security (PAS(S)) informed members that the Administration was still actively considering the proposal in consultation with the Independent Police Complaints Council (IPCC).
Making "tipping off" a criminal offence
3.Mr James TO Kun-sun cited the Fire Safety (Commercial Premises) Ordinance under which unlawful disclosure of information obtained officially was liable on conviction to six months imprisonment. He suggested that the Administration could draw reference to that Ordinance in considering members proposal to make "tipping off" a criminal offence.
4.Ms Emily LAU Wai-hing enquired whether, in the context of a criminal trial, the prosecution and the Police crime investigation team were entitled to call for the production of any statement made to the Complaints Against Police Office (CAPO) by the accused in the course of the complaint. Senior Assistant Legal Adviser (SALA) said that the legal basis for cross-examination of previous inconsistent statements was in section 14 of the Evidence Ordinance (Cap. 8). Under that section, it would be open to the prosecution to check with the Police whether the accused had made any written statement for the purpose of cross-examination. The purpose of cross-examination was to test the consistency of the evidence and hence the credibility of the accused. The right of cross-examination under section 14 of the Evidence Ordinance could also be exercised by the defence counsel. The law did not restrict the scope of previous written statement for the purpose of cross-examination.
5.Members were of the view that existing procedures and practices failed to prevent "tipping off" from happening before the trial took place. Senior Assistant Commissioner of Police (SACP) responded that, as a general policy, the CAPO files which contained details of the complaint and the complainants statement made to CAPO would not be made available to other Police formations. CAPO dealt directly with the Attorney Generals Chambers (AGC) for legal advice. For cases heard in the High Court, the full CAPO files as well as the report from IPCC would be passed directly to the prosecuting counsel when a decision to prosecute was made. Mr James TO pointed out categorically that there had been cases where details about the complaints were leaked out soon after the complaints were lodged with CAPO. SACP said that the Police would certainly take action if such cases came to light.
6.Mr James TO said that it would be extremely difficult to prosecute a person for "tipping off" with criminal charges such as "perverting the course of public justice", in particular in cases of relatively trivial nature e.g. incourtesy, where no criminal element was involved. He stressed that, irrespective of the nature of the complaint, "tipping off" should be criminalized, and be made an absolute offence, i.e. the act by itself was sufficient to constitute an offence without having to satisfy the mens rea test. The Chairman and Ms Emily LAU Wai-hing re-iterated that "tipping off" should be made a criminal offence.
7.SACP responded that the proposal, if adopted, would pose serious difficulties to the Police in investigating complaints. He said that a complainee had a right to be told of the matters involved in the complaint against him. Investigation of a complaint had to be carried out promptly, and in order that a thorough investigation could be made, questions relating to the incident giving rise to the complaint would have to be put to the complainee. In many cases, arising from such questions, the complainee would naturally come to know the identity of the complainant. SACP added that complaint cases were dealt with differently from other criminal investigations in that the complaint matters could not be kept in secret. In reality, therefore, substantiated cases of "tipping off" which fell within the proposed definition in paragraph 9 of LegCo Paper No. CB(2)1717/96-97(01) should be rare. SACP said that the Administration was against the proposal to make "tipping off" a criminal offence.
Number of "tipping off" cases
8.Referring to the Administrations response that there was no indication that "tipping off" was a rampant problem, Mr James TO said that a lot of people had taken it for granted that unrestricted exchange of information within the Police Force was just a normal course of events. They were not aware that "tipping off" would be a justifiable cause for complaints. On the other hand, it was not until recently that a decision was made to make "tipping off" a disciplinary offence under the Police General Order (PGO). These factors might account for the small number of "tipping off" cases detected in the past.
Definition of "tipping off"
|9.Members suggested to change the proposed wordings of the amended PGO in paragraph 9 of LegCo Paper No. CB(2)1717/96-97(01) to "... ... any information of the complaint or identity of the complainant." The Administration undertook to consult AGCs view on the proposal.
Cases in which prosecution was anticipated
9.SALA said that, in cases in which the complainant was facing prosecution, what he revealed to CAPO might touch on matters which was relevant to his defence during trial. In the sense that the complainant, being the defendant, would be providing to the police information which he would not otherwise provide, it could be said that his interests was affected by revealing such information to CAPO. With reference to the Guide to Complaints in respect of Sub-judice Complaints at Annex D of LegCo Paper No. CB(2)1717/96-97(01), SACP advised that for the purpose of protecting the interests of the complainant, the complainant would be fully explained of his right to decide on whether to withhold temporarily making a statement about his complaint, or to proceed with immediate investigation subject to the agreement of AGC. In the former case, investigation into the complaint would be suspended until after the conclusion of the court hearing. SACP added that, in exceptional circumstances and having regard to the nature and seriousness of the complaint, the Administration might decide to deal with the complaint firstly by withholding the court proceedings.
Observation of CAPOs investigation
10.In response to members questions, PAS(S) and SACP said that schedules of interview/site visit, once they were fixed by CAPO, would be provided to the LegCo Secretariat for onward transmission to members. Members could then conduct surprise or pre-notified visits according to the schedules. The sample files mentioned in paragraph 15 of LegCo Paper No. CB(2)1717/96-97(01) referred to cases of which investigation had been completed by CAPO and the findings vetted by IPCC. They would be available for members reference at the CAPOs Hong Kong Island Office. Should members wish to go through cases of which investigation was still on-going, CAPO would arrange for duplicate files to be prepared with the particulars of the data subject removed. It would take some time for that to be done, depending on the complexity and progress of investigation of the cases concerned.
Administrations response to the submission from the Hong Kong Human Rights Monitor and the Society for Community Organization on the Bill
12.Regarding the call from the two organizations to empower IPCC with the authority to appoint its Secretary and staff, PAS(S) said that the existing arrangement of the Governor appointing a public officer as the Secretary of the Council and other public officers to the Secretariat worked well. The Secretariat was fully answerable to IPCC and it performed its intended supporting functions satisfactorily. The Administration therefore did not see the need for any change.
13.Members were of the opinion that the proposal, if implemented, would enhance public perception of the independence of IPCC. The Office of the Ombudsman was cited as a precedent of a public body having an independent secretariat and power to appoint its own staff for the efficient functioning of the organization.
|14.Dr LEONG Che-hung informed members that members of IPCC had no strong views on this issue. Nonetheless, he personally held the view that a secretariat independent of the Governments structure would contribute to the confidence of the public in the effective functioning of the monitoring system. Members urged the Administration to give further thought to the suggestion of empowering IPCC to appoint its Secretary and staff.
III.Date of next meeting
15.The date of the next meeting was scheduled for 17 April 1997 at 2:30 pm.
IV.Close of meeting
16.The meeting was closed at 12:30 pm.
27 May 1997
Last Updated on 16 December 1998