LegCo Paper No. CB(2) 1719/96-97
(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 Third Meeting
held on Tuesday, 21 January 1997 at 4:30 pm
in the Chamber of the Legislative Council Building
Members present :
Hon Zachary WONG Wai-yin (Chairman)
Hon Selina CHOW, OBE, JP
Dr Hon LEONG Che-hung, OBE, JP
Hon Eric LI Ka-cheung, OBE, JP
Dr Hon LAW Cheung-kwok
Hon LEE Kai-ming
Hon Bruce LIU Sing-lee
Hon Margaret NG
Hon TSANG Kin-shing
Members absent :
Hon Ronald ARCULLI, OBE, JP
Hon CHEUNG Man-kwong
Hon Emily LAU Wai-hing
Hon James TO Kun-sun
Hon Christine LOH Kung-wai
Hon CHEUNG Hon-chung
Hon IP Kwok-him
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)
Attendance by invitation :
- The Hong Kong Human Rights Commission and the Society
of Community Organization
- Mr HO Hei-wah
- Ms PANG Wai-sum, Diana
- The Independent Police Complaints Council
- Mr Denis CHANG, QC, JP
- Mr WAN Suet-ming
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 representatives from the Hong Kong Human Rights Commission and the Society of Community Organization (The Organizations)
(LegCo Paper No. CB(2) 955/96-97 - Joint submission)
(LegCo Paper No. CB(2) 1019/96-97 - Response from the Administration tabled at the meeting)
At the invitation of the Chairman, Mr HO Hei-wah elaborated on the salient points of the joint submission of the Organizations on the Bill as follows :
- There were bad elements within the Police Force who had abused their powers in dealings with members of the public. Cases of malpractices were reported to be common particularly in districts like Kowloon West, New Territories West and Wong Tai Sin. The persistently high level of cases of complaints against the Police and the unacceptably low substantiation rate of the complaints over the past years pinpointed the deficiencies of the present complaints handling system. The public had no trust in the system in which investigation of complaints against police officers was conducted by the Police itself. The Governments refusal to accede to public demands to make the Complaints Against Police Office (CAPO) an independent body further contributed to the loss of public confidence in CAPO and the complaints monitoring mechanism.
- The Bill proposed to make the Independent Police Complaints Council (IPCC) a statutory body. However, with the functions and powers of IPCC remaining basically unchanged, it was extremely doubtful that improvements could be made to enhance the effectiveness of the complaints system. The Organizations maintained that CAPO should be turned into an independent body. IPCC should be empowered, where necessary, to conduct independent investigations. In addition, consideration should be given to implementing IPCCs proposals to appoint a civilian head to CAPO and non-police personnel to participate in investigation of serious complaints.
- The Organizations own estimate was that more than 70% of the cases were genuine complaints. For some cases, investigation had been dragged on for a long time with no prospect of an outcome. There were also serious cases of abuse of police powers which had not been reported to CAPO but surfaced through the media or other channels. IPCC should therefore act on its own to conduct independent investigations in such cases even though no formal complaints might have been lodged. An analogy was drawn to the Ombudsman who was empowered to take action on serious cases of maladministration as he saw fit.
2. Principal Assistant Secretary for Security (PAS(S)) responded that, with a daily average of 14,000 recorded contacts between the Police and the public (including crimes reporting, issuing of fixed penalty tickets and miscellaneous summonses and various other reports etc.), some complaints against the Police were unavoidable. The Administration did not find that there was a total lack of confidence in the complaints system. In fact, the large number of complainants who chose to lodge their complaints directly with the Police suggested that the public were confident that their complaints would be properly dealt with. Police officers, like other people, had the right to be presumed innocent until found guilty and therefore there should not be a pre-determined substantiation rate for complaints. Various measures to improve the transparency and credibility of the Police complaints system had been implemented over the years, such as the installation of closed circuit television and video/tape-recording facilities in CAPO, the introduction of the IPCC Observers Scheme and Interviewing Witnesses Scheme as well as the strengthening of publicity about the complaints investigation and monitoring system. In addition, subsequent to a tripartite (Security Branch, IPCC and the Police) comparative study of 10 overseas police complaints systems conducted between October 1995 to April 1996 and an independent review of CAPO and IPCC procedures in 1996 respectively, over 40 recommendations on improvement measures were made. These recommendations were being implemented. Senior Assistant Commissioner of Police (SACP) supplemented that the Police had commissioned an independent survey in 1995, which reflected no adverse comments from the public on the Police complaints system. He further informed members that a special committee had been set up within the Police Force two years ago which targeted at improving the relationship between the Police and the public through enhanced publicity and education and improvement of work procedures.
3. In reply to Mr Bruce LIU Sing-lees question, Mr HO Hei-wah said that the Organizations stand was that ultimately all complaints against Police should be handled independently by IPCC. As an initial step, IPCC should be given power to conduct independent investigation of complaints where it could not endorse the investigation result of CAPO and the case still remained unresolved after a protracted period of time.
II. Meeting with representatives from IPCC
(LegCo Paper No. CB(2) 979/96-97)
(LegCo Paper No. CB(2) 1018/96-97(01))
4. At the invitation of the Chairman, Chairman of IPCC presented his views on the Bill and the operation of the Police complaints system as follows :
- The primary purpose of the Bill was to turn IPCC into a statutory body without putting forward too many radical proposals which might jeopardize the role of IPCC as a monitoring and reviewing body. With the functions and powers of IPCC clearly defined in a statutory framework, IPCC should become more accountable to the public and its operation more transparent and effective.
- IPCC did not see the need for an independent CAPO. Yet, it had proposed the appointment of a non-police officer as head of CAPO. There were two models as regards this suggestion. First, this civilian head of CAPO would be responsible both administratively and functionally to IPCC. Alternatively, he would remain accountable to the Commissioner of Police but functionally there would be a close CAPO/IPCC link on policy and operational issues. These proposals, however, were not accepted by the Administration on the ground that they involved fundamental changes to the present system and the relationship between CAPO and IPCC. Chairman of IPCC said that it remained the stand of IPCC that lay participation in the investigation process and a non-police officer as head of CAPO were workable and beneficial to the complaints system. IPCC would continue to pursue these matters with the Administration.
- Existing powers of IPCC did not extend to the power to make original investigation. It was not the policy intention for IPCC to take over the work of CAPO. In addition, IPCC did not have the resources to carry out independent investigation. Under the present system, IPCC could examine all the documents and evidences submitted by CAPO in relation to a complaint investigation. On many occasions IPCC had raised queries with CAPO and asked for re-investigation. IPCC and its members also had the power to interview witnesses. Since there were consequences for the complainees if a verdict was made and subsequently changed, for cases where IPCC did not agree with CAPOs investigation, it was common practice that a joint meeting between CAPO and IPCC would be held to see if any difference could be resolved.
5. Dr LEONG Che-hung enquired whether or not, in exercising the power to interview witnesses who had not been seen by CAPO such as for the purpose of seeking independent experts advice, IPCC in fact performed an investigative function. Chairman of IPCC said that the matter would have to be looked at in the context of the purpose of the interview, how IPCC proceeded with the interview and what action it would take thereafter. If the interview was regarded as a way of helping IPCC analyse the case, with the professional expertise and information so acquired, and subsequently decide whether or not there was a need for a re-investigation by CAPO, then the interview could be taken as part of the monitoring process conducted by IPCC. On the other hand, if the interview was intended to establish new evidence and for IPCC to probe into the details of the complaint and retrace all the steps of an investigation independently of CAPO, then the interview could be regarded as an independent investigation. Chairman of IPCC advised that thus far the monitoring mechanism of IPCC was operating in the former scenario. IPCC interviewed witnesses where necessary with a view to deciding whether the case should be reverted to CAPO for re-investigation. In so doing, IPCC had not trespassed into the original investigative power of CAPO.
6. Chairman of IPCC further stated that under the present system and within the framework of the Bill, it was possible for IPCC to perform its monitoring functions without duplicating the investigative role of CAPO. Very often both IPCC and CAPO could come up with some resolution even though initially there might be disagreements between them. He said that where the difference remained unresolved in the end, IPCC could refer the case to the Attorney Generals Chambers for advice. IPCC could also submit a special report to the Governor with its findings and recommendations. It could even make public the disputes concerned. In terms of improvement measures, Chairman of IPCC further advised that consideration was being given to set up a special monitoring panel within IPCC, the purpose of which was to ensure that serious complaints would be dealt with on a priority basis. In addition, performance pledges would be formulated which included setting a normal time-frame for the completion of a CAPOs investigation.
7. In response to Miss Margaret NGs question concerning the reasons stated in paragraph 2 of the Administrations paper (LegCo Paper No. CB(2) 1018/96-97(01)) for not empowering IPCC to conduct investigation, Chairman of IPCC said that he personally did not agree entirely with all the reasons. Yet, he appreciated the difficulties for the Administration to accept what was a fundamental change to the existing complaints system that might not have the support of members of the Police Force.
8. Members enquired of the Chairman of IPCCs views on proposals to amend the Bill in order to provide IPCC with power of independent investigation. Chairman of IPCC replied that the function of IPCC being to monitor the Police complaints system to ensure that complaints would be handled in a fair way, it might be necessary to initiate changes where necessary if the present system did not achieve that purpose. However, the Legislative Council would have to consider carefully as to how far a reform should go and the right balance that had to be struck. Different choices had to be examined between creating a completely independent set-up and maintaining a monitoring body with enhanced powers. He said that he did not see a need to amend the Bill. IPCC had not sought radically investigative powers that would affect fundamentally its present functions. If there were proposals for so empowering IPCC, the possible consequences, such as in relation to resource implications and the effect on the relationship between IPCC and the Commissioner of Police etc. would have to be examined before a consolidated view of IPCC could be worked out.
III. Continue discussion with the Administration
9. In response to members queries, Principal Assistant Secretary for Security (PAS(S)) clarified that at present IPCC had no power to investigate complaints and the policy intention was not to give IPCC investigative powers. He said that interviewing of witnesses by IPCC was not tantamount to independent investigation. He remarked that the interviews were a means whereby IPCC could seek to clarify doubts, where it identified faults or deficiencies in CAPOs investigation, and to judge whether or not a re-investigation by CAPO was necessary. Insofar as IPCC could target not only at the manner of investigation and procedures adopted by CAPO but also the substance of the complaints, with the possible effect that an original verdict of CAPO might be overturned, there was a clear delineation of functions in that IPCC was restricted only to fulfilling a reviewing and monitoring role. The investigation function rested with CAPO.
10. Referring to Mr Eric LI Ka-cheungs question, SACP said that police investigation was a process involving, apart from interviews and taking of statements, a wide range of evidence gathering and analysis activities such as scene visits, technical investigation by forensic experts and identification specialists, examination of reports and records etc. As the findings of investigation had serious consequences to the complainees in terms of prosecutions or disciplinary action, particularly in cases where CAPO and IPCC held different views, sometimes the Attorney Generals advice had to be sought. Secretary, IPCC undertook to provide information on cases referred to the Attorney General (AG) and subsequent action taken by AG for members reference.
(Post-meeting note : The relevant information has been circulated to members under LegCo Paper No. CB(2) 1118/96-97(01).)
11. Mr Eric LI Ka-cheung said that since complaints investigation could involve the exercise of certain statutory powers which were only available to police officers, the consequences of IPCC being provided with investigative powers should also be carefully examined. He requested the Administration and the Legal Adviser to provide appropriate advice where necessary.
12. Dr LAW Cheung-kwok enquired of the effectiveness of the IPCC Interviewing Witnesses Scheme. Secretary, IPCC replied that IPCC had interviewed over 30 witnesses since the Scheme was introduced in October 1994. As a result of IPCCs action, some of the cases were referred back to CAPO for re-investigation. He undertook to revert in writing with more information on the outcome of these cases.
(Post-meeting note : The information has been circulated to members under LegCo Paper No. CB(2) 1118/96-97(01).)
13. PAS(S) supplemented that Chapter 6 of the 1995 Report on the IPCC provided the summaries of a number of selected cases in which IPCC had raised queries with CAPO. These case studies highlighted the efforts made by IPCC in discharging its monitoring and reviewing functions.
14. PAS(S) invited members to an one-off exercise to observe the CAPOs investigation in order to gain a better understanding of the complaints investigation system. In response to the Chairmans enquiry, PAS(S) said that it would not be appropriate for members to have access to the investigation files which contained personal information and legal advice on internal matters affecting police officers. In addition, under the present arrangements, all the files and documents relevant to the complaint investigation would be submitted to IPCC only after the whole investigation by CAPO had been completed.
15. Members agreed that the proposed observation of CAPOs investigation would be decided at the next meeting.
IV. Date of next meeting
16. The next meeting was scheduled for 3 February 1997 at 2:30 pm.
V. Close of meeting
17. The meeting closed at 6:35 pm.
27 March 1997
Last Updated on 16 December 1998