PLC Paper No. CB(2) 28/97-98
(These minutes have been seen
by the Administration and
cleared with the Chairman)
Minutes of the First Meeting of the Bills Committee on the Mutual Legal Assistance in Criminal Matters Bill
held on Monday, 5 May 1997 at 10:30 am in Conference Room B of the Legislative Council Building
Members present :
Hon James TO Kun-sun (Chariman)
Hon Ronald ARCULLI, OBE, JP
Hon Emily LAU Wai-hing
Hon Eric LI Ka-cheung, OBE, JP
Hon Andrew CHENG Kar-foo
Hon IP Kwok-him
Hon Bruce LIU Sing-lee
Hon Margaret NG
Public Officers attending :
- Mr Alan CHU
- Principal Assistant Secretary for Security
- Mr John HUNTER
- Deputy Principal Crown Counsel (International Law)
- Mr Geoffrey FOX
- Senior Assistant Law Draftsman
Clerk in attendance :
- Mrs Mary TANG
- Chief Assistant Secretary (2) 4
Staff in attendance :
- Mr Jonathan DAW
- Consultant (Legal Service)
- Mr Stanley MA
- Senior Assistant Secretary (2) 9
I. Election of Chairman
1. Mr James TO was elected Chairman of the Bills Committee.
II Meeting with the Administration
The need for the Bill
2. At the request of the Chairman, Principal Assistant Secretary for Security (PAS/S) briefed the meeting that the purpose of the introduction of the Bill was to enable Hong Kong to participate in the fight against international crime through bilateral or multilateral agreements with foreign jurisdictions. He pointed out that the Chinese side of the Joint Liaison Group had agreed in September 1994 that Hong Kong could negotiate and enter into a network of bilateral Mutual Legal Assistance (MLA) agreements which would remain valid after 30 June 1997. He informed members that at present legal assistance could be provided to foreign countries in accordance with the relevant provisions of the Evidence Ordinance (Cap 8) and the Drug Trafficking (Recovery of Proceeds) Ordinance (Cap 405) on a unilateral basis. The scope of assistance given in response to requests from foreign jurisdictions was confined within the perspectives of the two Ordinances which did not cover the provision of certain types of legal assistance in criminal matters such as the production of documentary evidence and the transfer of persons including prisoners to the requesting country to provide assistance, e.g. by giving evidence. So far Hong Kong had signed MLA agreements in respect of criminal matters with Australia and the US which could not be brought into operation until the enactment of the proposed Bill. He emphasized the importance of the Bill in enhancing Hong Kongs participation and cooperation with overseas countries to combat serious international crimes.
|3. In response to the Chairmans request, the Administration agreed to provide a summary on the applications and limitations of the existing ordinances in contrast to the heads of legal assistance which could be made available under the Bill.||Adm|
The progress of the Evidence (Amendment) Bill 1996
4. Members enquired on the progress of the Evidence (Amendment) Bill 1996 (E(A) Bill) which had not resumed its Second Reading debate. The Administration replied that the MLA Bill, which legitimized the execution of a full range of legal assistance to foreign countries on a reciprocal basis, had incorporated the proposed amendments of the E(A) Bill relating to the taking of evidence by the Supreme Court in Hong Kong in response to the request of overseas jurisdictions. In reply to a members further enquiry on whether the two Bills Committees could combine to facilitate deliberation work, the Administration pointed out that this was not considered appropriate given that apart from provisions relating taking of evidence, the E(A) Bill also dealt with corroboration of evidence in respect of sexual offences which was not related to the MLA Bill.
|5. Miss Margaret NG was concerned about the compellability of witnesses in the giving of evidence in response to requests from foreign country on criminal matters at the investigation stage. She pointed out that, as members of the E(A) Bill did raise before, the witnesss right to remain silent during the investigation stage of a criminal matter would be removed if clause 10 of the Bill was passed in its original wording. The Administration undertook to look into the issue and propose appropriate CSAs to this effect.||Adm|
(Post-meeting Note : The Attorney Generals Chambers (Civil Division) had advised the Clerk of the Bills Committee on the Evidence (Amendment) Bill 1996 by a letter dated 15 May 1997 (LegCo Paper No. CB(2) 2344/96-97(01)) that it was the Administrations intention not to resume the Second Reading debate on the Evidence (Amendment) Bill 1996 and the Bill would accordingly lapse at the end of the session)
The enacted Fugitive Offenders Ordinance
|6. A member enquired whether there was any correlation between the Bill and the Fugitive Offenders (FO) Bill. The Administration clarified that the Bill provided for the transfer of persons, who had indicated their consent to such transfer, to the requesting country to offer legal assistance and the return of these persons to the requested country under prescribed arrangements. The FO Bill mainly dealt with the surrender of persons who were accused or convicted of offences to a foreign country for trial and imprisonment sentence. At the request of members, the Administration agreed to provide written information to compare the Fugitive Offenders Ordinance and Part V of the Bill.||Adm|
The need for consultation
7. In view of the fact that some of the provisions in the Bill would potentially affect any person in Hong Kong, Consultant (Legal Service) CONS(LS) invited members to consider the need for public consultation. Deputy Principal Crown Counsel (International Law) (DPCC(IL)) responded that people without a legal or a related professional background would find the technical terms of the Bill difficult to be comprehended fully. In this connection, Miss NG suggested and members agreed to consult professional bodies which would be affected by the introduction of the Bill.
Statistics on legal assistance
|8. In order to be convinced of the necessity to pass the Bill under such an urgent schedule, members demanded that the Administration should provide updated supporting statistics on the number of requests for legal assistance from overseas countries and how these requests had been handled. In response, PAS/S pointed out that the Bill was urgent because the existing bilateral agreements with a number of countries including US and UK for the combat of international drug trafficking would expire just after the change of sovereignty and there was a need to subsume existing drug bilaterals under the new MLA agreements. He agreed to provide members with the requested statistics.||Adm|
The transfer of prisoners and persons to the requesting country
9. Given the Administrations claim that the enactment of the Bill could ensure reciprocity of legal assistance between Hong Kong and a foreign country under a MLA agreement, members had reservations on the need for Hong Kong to arrange transfer of persons and prisoners to a requesting party to give evidence on the ground that the jurisdiction of the requesting party did not accept evidence taken abroad. In the light of the fact that courts in Hong Kong accepted evidence provided by an appropriate authority of an overseas jurisdiction, a member questioned the actual extent of reciprocity in entering into a MLA agreement with such countries. DPCC(IL) explained that the Attorney General would, subject to the consent of the persons and prisoners concerned, consider a list of other factors before acceding to such requests
Operational experience of law enforcement agencies
10. DPCC(IL) said that as an international city, Hong Kong frequently had to seek the legal assistance of overseas countries in its fight against local drug trafficking and organized crimes which often involved an element of international conspiracy and foreign accomplices. In this connection, the Chairman suggested that representatives of the law enforcement agencies i.e., the Royal Hong Kong Police Force, Customs and Excise Department and ICAC should be invited to brief members on the operational difficulties they had encountered in their combat with international crimes. The Administration undertook to arrange such a briefing at the third meeting of the Committee on 15 May 1997.
Personal Data (Privacy) Ordinance (Cap 486)
11. Mr Eric LI was concerned whether the Bill would conflict the provisions of the Personal Data (Privacy) Ordinance (Cap 486) as far as personal and official secrecy were concerned. Senior Assistant Law Draftsman (SALD) who prepared the draft text of both Bills agreed to seek the comments of the Privacy Commissioner for Personal Data and would report to the Committee at a later meeting. CONS(LS) supplemented that as far as the production of documents were concerned, the Bill, according to its clause 15(9)(b), would have an overriding effect on any obligation as to secrecy or other restriction upon the disclosure of information imposed by statute or otherwise. In this respect, he stressed that the responses of lawyers, accountants, bankers etc towards the enactment of the Bill should be considered.
Financial and staffing implications
|12. Miss Emily LAU was concerned about the additional financial and staffing resources which would be required by law enforcement agencies to implement the signed MLA agreements subsequent to the enactment of the Bill. PAS/S replied that as these agencies had been interacting and cooperating with their overseas counterparts in their combat with international crime and that the proceeds confiscated in Hong Kong as the result of an external confiscation order would accrue to the Hong Kong Government unless it was specified under a mutual agreement on a case-by-case basis (clause 10 of Schedule 1 of the Bill), the Administration was confident that no additional resources would be required in the present circumstances. In response to members request, PAS/S agreed to provide further clarification on financial and staffing implications as a result of providing legal assistance to foreign countries.||Adm|
13. Miss NG enquired whether the Attorney Generals Chambers had asked for additional manpower in anticipation of the enactment of the Bill. Both DPCC(IL) and SALD replied that they were unaware of any request for additional manpower so far. They pointed out that the Attorney Generals Chambers would soon undergo a re-organization after which the issues of MLA, drug trafficking, fugitive offenders etc. would be grouped under the supervision of one special Division. PAS/S reassured members that the existing staff resources in the departments concerned could cope with the additional workload arising from the two signed MLA agreements which would only be brought into operation after the enactment of the Bill.
14. CONS(LS) supplemented that the additional workload involved in the taking of evidence by magistrates in response to requests from foreign jurisdictions as a result of the enactment of the Bill should be considered. SALD replied that the judiciary had been consulted on this issue and made no special request for additional resources for the time being.
Requests to Hong Kong for taking of evidence, etc
15. Referring to clause 10(6) of the Bill, members were concerned about the difference in requirements which different jurisdictions would impose on persons who were called upon to give evidence for criminal matters at the investigation stage. Under the Hong Kong law, a witness enjoyed the right of silence whereas under the US law, a witness would be compelled to answer questions in relation to the investigation of criminal matters. Members in principle agreed that the same degree of laws and procedures should be applicable to all parties entered into a MLA agreement and in particular the same degree of right and protection should be provided to witnesses who were required to give evidence under the agreement. The Administration responded that the different laws and judicial procedures adopted by the jurisdictions concerned would always be carefully studied so that workable solutions for such differences could be mutually agreed for the final MLA agreement to be enforceable and acceptable by both parties. In this regard, Mr Ronald ARCULLI reminded the Administration to take particular care when entering into MLA agreement with France as its judicial systems and procedures were substantially different from that adopted in Hong Kong.
Deviations from UN model agreements
|16. At the request of the Chairman, DPCC(IL) agreed to provide members with a summary of the clauses in the signed MLA agreements which deviated from the corresponding Articles in the UN model agreement.||Adm|
The legal definition of "Essential Interests"
17. Referring to clause 5(1)(f), a member expressed reservation on the use of the general term "essential interests" as one of the grounds for refusal of assistance. The Administration explained that this term was used in the UN model agreement and in the European Convention on MLA, and was commonly included in bilateral agreements.
Invitation of representations
18. Members agreed to invite representations from the following professional bodies and associations-
- The Law Society of Hong Kong;
- The Hong Kong Society of Accountants;
- The Hong Kong Bar Association;
- The Hong Kong Association of Banks;
- The Hong Kong General Chamber of Commerce; and
- The Chinese Chamber of Commerce.
(Post-meeting Note : the first two on the list would send representatives to attend the fourth meeting of the Bills committee on 19 May 1997 while the remaining four had indicated that they had no comments.)
III Date of Next Meeting
19. To facilitate deliberations of the Committee, members agreed to hold the second, third and fourth meetings of the Committee respectively at 8:30 a.m. on 13 May 1997 (Tuesday), 12:30 p.m. on 15 May 1997 (Thursday) and 10:30 a.m. on 19 May 1997 (Monday).
20. There being no other business, the meeting ended at 11:00 a.m.
Provisional LegCo Secretariat
9 July 1997
Last Updated on 30 November 1998