PLC Paper No. CB(2)121
(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 Eleventh Meeting
held on Friday, 23 May 1997 at 8:30 am
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 IP Kwok-him
Dr Hon LAW Cheung-kwok
Hon Margaret NG
Members absent :
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 LEE Kai-ming
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. Confirmation of minutes of meeting
(LegCo Paper No. CB(2) 2302/96-97)
The minutes of the meeting held on 24 March 1997 were confirmed.
II. Meeting with the Administration
Continue with the Administrations response to issues raised at the meeting held on 25 April 1997
(LegCo Paper No. CB(2) 2196/96-97(01))
Clauses 14 - Power of Governor to make regulations
2. Referring to a comment made by the Hong Kong Human Rights Monitor in its submission that the regulations referred to in clause 14 should be made to promote the effectiveness of the Independent Police Complaints Council (IPCC) rather than restricting it, Mr James TO Kun-sun said that the power to make such regulations as referred to in subclauses 14(b), (c), (d) and (e) should rest with IPCC instead of the Governor. Mr TO cited the example of the Mass Transit Railway Corporation which had authority to make its own by-laws. Principal Assistant Secretary for Security (PAS(S)) replied that the purpose of clause 14 was to facilitate IPCC in the effective discharge of its functions and duties. There were similar provisions in the ordinances of other government statutory bodies. PAS(S) added that as the work of IPCC involved interfaces of operation between the Council and the Police Force as well as dealings with the public, the Administration considered that the Governor was the appropriate authority to make regulations under clause 14.
3. Members were concerned that clause 14, in particular subclause (b), was worded in such broad terms that it definitely appeared to have the effect of restricting the operation of IPCC. Members requested the Administration to consider the following proposals/requests -
- to consider empowering IPCC to make its own regulations under subclauses 14(b), (c), (d) and (e);
- to review the drafting of subclause (b). Members queried whether it was necessary to specify such details as to the time, place and manner, when, where and in which IPCC should carry out its functions and duties. Subclause (b) seemed to be in conflict with subclause (e) and clause
5(1). Clause 5(1) already provided for the Council to decide on the frequency and the times and places of its meetings; and
- to provide extracts of similar provisions in other legislation and, if necessary, to review such other provisions.
The Administration agreed to revert to members at the next meeting.
4. Mr James TO Kun-sun said that, to ensure that IPCCs views would be taken into account in respect of matters relating to the Councils expenditure, there should be express provision in the Bill that the expenditure of the Council, after consultation with the Council, should be borne by the general revenue. Members suggested that reference should be made to similar provisions in the LegCo Commission Ordinance and the Commissions of Inquiry Ordinance. PAS(S) informed members that existing system was that the expenditure of IPCC was borne by the general revenue. He agreed to further examine members proposal.
Administrations response to issues raised at the meeting held on 8 May 1997
(LegCo Paper No. CB(2) 2397/96-97(01))
Proposal for full-time IPCC Observers
5. PAS(S) advised that the major limitations and difficulties which the Administration envisaged in recruiting and retaining people with the right calibre as full-time IPCC Observers were set out at paras 2 (a) and (b) of LegCo Paper No. CB(2) 2397/96-97(01). Having considered members views raised at previous meetings, the Administration was of the opinion that the best way forward was to expand the number of non-IPCC members, through co-opting independent civilians such as community leaders and people with public credibility, who would be able to assist in the IPCC Observers Scheme. A large pool of volunteers to act as Observers would promote greater community participation in the monitoring process.
6. In response to members questions, Secretary, IPCC advised that, for the past 12 months, there had been more than 30 observations conducted under the IPCC Observers Scheme and 18 interviews under the Interviewing Witnesses Scheme. A number of scheduled observations were cancelled due to failure of the witnesses turning up for the appointment. Senior Assistant Commissioner of Police (SACP) added that the majority of the complaints received by the Complaints Against Police Office did not in fact warrant investigation. In many cases, the complaints were subsequently withdrawn by the complainants, or the complainants refused to make a statement. On the other hand, a large part of the complaints concerned only trivial matters. SACP further informed members that 46% of the witnesses did not agree to have observers present during the interview, and 30% of the witnesses failed to attend interviews.
7. Dr LEONG Che-hung said that the limited number of IPCC members had restricted participation in the IPCC Observers Scheme and therefore it was necessary to expand the Scheme through appointing more Observers. Existing IPCC members did not see the need to remunerate them for the work. Dr LEONG added that, in his view, the degree of credibility and acceptability by the public would be higher for people who were appointed both as Observers and members of IPCC.
8. Mr James TO Kun-sun stressed that a high degree of professionalism was required of IPCC Observers. Having people with the relevant experience and expertise as IPCC Observers such as experienced investigators or legal experts, would contribute to enhancing pro-active monitoring by the Council. Some members held that full-time salaried Observers were preferable to unpaid volunteers, since in the former case there would be the necessary commitments and obligations being imposed upon the Observers as employees. Some members suggested that part-time salaried Observers drawn from different sectors of the community should also be considered as an alternative. The Administration undertook to revert on members suggestions.
Clause 2 - Definition of "complaint"
9. Senior Assistant Legal Adviser (SALA) said that the proposed amendment to the definition of "complaint" at para 4 of LegCo Paper No. CB(2) 2397/96-97 (01) had addressed members concern by including both the words "position" and "identity" in the definition.
Clause 4 - IPCC membership
10. PAS(S) said that the Administration maintained that flexibility should be given to the Governor to appoint members to IPCC based on the principle of selecting the best person for the job. Mr James TO Kun-sun proposed three options as regards the appointment of LegCo Members to IPCC -
- at least two members of IPCC should be LegCo Members; or
- no less than two members of IPCC should be LegCo Members, and one of them should be elected among LegCo Members for appointment by the Governor; or
- no less than two members of IPCC should be LegCo Members, and all of them should be elected among LegCo Members for appointment by the Governor.
Mr TO said that the purpose of the above proposals was to create a desirable checks and balance on the exercise of the Governors power by constitutionally binding the Governor to appoint a specified number of LegCo Members as members of IPCC in order to enhance public perception of the independence of the Council. Members called upon the Administration to re-consider the suggestion.
Honorarium to IPCC members
11. PAS(S) informed members that the Administration would pursue the suggestion of payment of honorarium but this issue did not need to be specified in the Bill. The honorarium or allowance offered to IPCC members could be made under administrative measures. PAS(S) agreed to further report to members at the next meeting.
Clause 6 - Appointment of secretariat staff and Legal Adviser
12. Members did not accept the reasons given by the Administration for the difficulties in recruiting non-civil servants on the ground of lack of promotion and career development prospects. Miss Margaret NG pointed out that it was common practice in the private sector for companies and organizations to recruit people from the legal profession as legal advisers/in-house counsels. These legal personnel could continue in private practice after their contracts expired. Mr TO supplemented that the post of Secretary, IPCC needed not necessarily be filled by a civil servant of the Executive Officers Grade. He cited the Equal Opportunity Commission, the Office of the Ombudsman and the Office of the Commissioner of Privacy as examples of government statutory bodies having the authority to appoint their own staff.
13. Ms Emily LAU Wai-hing remarked that it was important that IPCCs views should be sought. PAS(S) replied that the Administration was examining the possibility of implementing the proposal. Among other things, the question of how to determine an appropriate remuneration package to attract the right person would be considered in detail. He said that the Administration would consult IPCC as soon as possible on the collective views of the Bills Committee on the Bill.
Clause 11 - Secrecy
14. Miss Margaret NG said that an extreme power would be given to the Governor under proposed clause 11(3). She could not accept the Administrations statement at para 13 of LegCo Paper No. CB(2) 2397/96-97(01) that it would be up to IPCC to decide whether it wished to mention in the report that the Governor had made a certification under clause 11(3). She emphasized that the minimum safeguard was for the public to be given the right to know of the exercise of such power. Mr James TO Kun-sun suggested that a new provision should be added to specify that every time the Governor made a certification under clause 11(3), the fact that he had exercised this power should be made public. Miss NG said that if the Administration refused to make the amendment she would propose to delete clause 11(3).
15. PAS(S) advised that clause 11(3) in its present form did not preclude IPCC from disclosing that the Governor had made a certification under that clause. He agreed to respond to members suggestion at the next meeting.
16. Mr James TO Kun-sun enquired whether a hypothetical situation could be provided to illustrate the application of clause 11(3), such as where a member of the national defence was involved in a complaint. PAS(S) replied that the mere status of the person involved should not constitute a ground in itself for the Governor to make a certification to prevent the disclosure of certain information in the complaint. All relevant factors would have to be examined, depending on the facts of the case. He advised that provisions similar to clause 11(3) existed in the Ombudsman Ordinance. Yet, there was no precedent of an actual exercise of such power by the Governor.
Clause 13 - Report
17. PAS(S) pointed out that a new subclause 13(4) was proposed at para 17 of LegCo Paper No. CB(2) 2397/96-97(01), which addressed members concern about reports made by IPCC that should be laid before the Legislative Council.
Revised draft Committee stage amendments (CSAs) proposed by the Administration
18. The Administration and SALA informed members that the draft CSAs proposed by the Administration at Annex C of LegCo Paper No. CB(2) 2196/96-97 (01) reflected the Bills Committees concerns, as at 7 May 1997. An updated set of draft CSAs would be provided by the Administration before the next meeting.
Draft CSAs proposed by Hon James TO Kun-sun
(tabled at the meeting and circulated to absent members under LegCo Paper No. CB(2) 2424/96-97 after the meeting)
19. Mr James TO Kun-sun took members and the Administration through his proposed CSAs to the Bill, as detailed in his submission tabled at the meeting. The Administration would respond in writing to the CSAs proposed by Mr TO before the next meeting.
III. Date of next meeting
20. The date of the next meeting was scheduled for 4 June 1997 at 8:30 am. The meeting originally scheduled for 29 May 1997 at 8:30 am was cancelled.
IV. Close of meeting
21. The meeting ended at 10:40 am.
Provisional Legislative Council Secretariat
5 August 1997
Last Updated on 14 October 1997