PLC Paper No. CB(2) 18/97-98
(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 Ninth Meeting
held on Friday, 25 April 1997 at 12:30 pm
in Conference Room A of the Legislative Council Building
Members present :
Hon Zachary WONG Wai-yin (Chairman)
Hon Emily LAU Wai-hing
Hon James TO Kun-sun
Hon IP Kwok-him
Hon LEE Kai-ming
Hon Margaret NG
Members absent :
Hon Selina CHOW, OBE, JP
Hon Ronald ARCULLI, OBE, JP
Dr Hon LEONG Che-hung, OBE, JP
Hon CHEUNG Man-kwong
Hon Eric LI Ka-cheung, OBE, JP
Hon Christine LOH Kung-wai
Hon CHEUNG Hon-chung
Dr Hon LAW Cheung-kwok
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) 2018/96-97)
The minutes of the meeting held on 12 March 1997 were confirmed.
II. Meeting with the Administration
Continue with clause-by-clause examination of the Bill
Clauses 11 and 13
2. Mr James To Kun-sun pointed out that the secrecy rule in clause 11 should also apply to the Police Force including, in this particular context, the Complaints Against Police Office (CAPO). Principal Assistant Secretary for Security (PAS(S)) replied that clause 11 applied to members of Independent Police Complaints Council (IPCC) who were not civil servants. Police officers, inasmuch as they were civil servants, were bound by the provisions of the Official Secrets Act. As previously mentioned, Police officers would also be subject to disciplinary action under the Police General Order, or prosecution for "tipping off" with criminal charges such as "perverting the course of public justice" etc.
3. Members were concerned that the provisions in clause 11(2) would prevent members of IPCC from complying with the statutory requirements as specified in other ordinances such as the Legislative Council (Powers and Privileges) Ordinance, which provided that the Legislative Council had power to order attendance of witnesses and production of documents. Members suggested to review the drafting of clause 11(2) to include a subclause to the effect that the requirements under clause 11(1) should not apply so as to enable members of IPCC to fulfill such other statutory obligations. The Administration undertook to examine members views and reply at the next meeting.
4. Referring to clause 11(3)which concerned the prohibition of IPCC to disclose in any report made by it under the Ordinance matters which were certified by the Governor that the disclosure of which might prejudice security, defence or international relations in respect of Hong Kong or would otherwise be contrary to the public interest, Mr James TO Kun-sun pointed out that similar provisions were not common in other ordinances. PAS(S) responded that the purpose of clause 11(3) was to provide authority to the Governor to deal with extremely rare situations where sensitive issues involving national security and the like occurred. He added that despite the subject matters in question might not be fully disclosed to the public, the complaint itself would still be dealt with appropriately.
5. Members felt that under circumstances where clause 11(3) applied, the complainant should still be advised of the result of the complaint. Secretary, IPCC said that, under the existing system, CAPO would inform the complainant and the complainee of the outcome of the investigation, once the findings were endorsed by IPCC. In the event of a subsequent review of the case, IPCC would advise the complainant and complainee of the result of review or reinvestigation.
6. Senior Assistant Legal Adviser (SALA) pointed out that "any report made by it (IPCC) under this Ordinance" as mentioned in clause 11(3) appeared to refer to the report specified either in clause 13(1) or 13(2). On the other hand, "report" referred to in clause 8(1)(f) seemed to refer to reports made to the Governor under clause 13(2). In his opinion, the "any report" mentioned in clause 11(3) did not include a reply from IPCC to a complainant or complainee.
7. Members held that there must be sufficient reasons to justify the provisions in clause 11(3) and that the meaning of "any report" under that subclause should be clarified. Mr James TO Kun-sun suggested that, in case it was considered not appropriate for IPCC to give a reply to the complainant for the reasons set out in clause 11(3), the Governor should reply to the complainant directly, and cause a notice to be issued to the complainant stating that the complainant should maintain secrecy in respect of all matters relating to the case.
8. Members asked the Administration to explain in further detail -
- the background to clause 11(3) and whether a decision by the Governor under this clause was subject to judicial review;
- what types of reports would infringe security, defence etc.
Members also suggested to amend clause 11(4) to the effect that any member of the Council who failed to comply with subsection (1) without reasonable excuse committed an offence. The Administration undertook to respond to members views at the next meeting.
9. In reply to a members question, PAS(S) said that as far as he knew there had been no precedent where the circumstances as described in clause 11(3) had occurred.
10. Mr James TO Kun-sun suggested that the Administration should consider amending clause 13 to require the Governor to consider whether the reports made by IPCC under clause 13(2) should be laid before LegCo. In reply to Mr TOs question, Secretary, IPCC said that no reports under clause 13(2) had been made by IPCC to the Governor in recent years, apart from the annual general report to the Governor referred to in clause 13(1).
11. PAS(S) said that the reports referred to in clause 13(2) might involve matters of policy concern or contain personal information which by their nature might not be appropriate to be made public. He added that clause 13 as presently drafted did not prevent IPCC from including in the general report under subsection (1) summaries of certain special cases together with the recommendations made by IPCC to the Governor in respect of those cases. It was also within the Governors discretion to cause the reports referred to in clause 13(2) to be laid before LegCo.
12. Members opined that a mechanism should be in place to ensure that LegCo would be informed of cases of serious public concern. Members suggested that provisions be made in clause 13 such that the Governor should consider whether or not reports as specified in clause 13(2) be laid before LegCo, or the Governor should inform LegCo the major facts as contained in such reports.
13. In reply to Mr James TO Kun-suns questions, PAS(S) explained that the Administration believed that the Governor was the proper authority to make the regulations under clause 14 in respect of how IPCC would perform its functions and duties, due to the fact that IPCC was accountable to the Governor and the effective operation of the overall Police complaints system would be affected by such regulations. PAS(S) added that the power of the Governor to make regulations would be subject to the scrutiny by LegCo by virtue of the Interpretation and General Clauses Ordinance (Cap 1). SALA commented that where an ordinance provided the functions and duties of a statutory body the normal rule was that any alteration to the functions and duties should be by way of an amendment to the ordinance itself instead of by subsidiary legislation.
14. Members were of the opinion that any proposal to provide for additional functions and duties of IPCC would fundamentally change the functions of the Council and that there should be extensive public consultation on such proposal. Members asked the Administration to consider deleting clause 14(a) to the effect that any additional functions and duties of IPCC should be made through an amendment bill. In respect of matters referred to in subclauses (b), (c), (d) and (e) which largely concerned matters not of a policy nature, members suggested that greater flexibility should be given to IPCC by empowering IPCC, rather than the Governor, to make regulations on such matters. The Administration agreed to further consider the suggestions.
15. Members proposed that the Bill should specify that the expenditures by IPCC should be borne by the general revenue. The Administration agreed to examine the proposal.
Draft Committee stage amendments (CSAs)
16. The Chairman asked the Administration to provide the draft CSAs proposed by the Administration before the next meeting.
III. Date of next meeting
17. The date of the next meeting was scheduled for 8 May 1997 at 8:30 am. The meeting originally scheduled for 5 May 1997 at 10:30 am was cancelled.
IV. Close of meeting
18. The meeting ended at 2:30 pm.
Provisional Legislative Council Secretariat
7 July 1997
Last Updated on 14 October 1997