PLC Paper No. CB(2) 80
(These minutes have been
seen by the Administration
and cleared with the Chairman)
Ref: CB2/BC/13/96

Minutes of the Third Meeting of the Bills Committee
on the Mutual Legal Assistance in Criminal Matters Bill

held on Monday, 15 May 1997 at 12:30 pm
in Conference Room A of the Legislative Council Building

Members present :

    Hon James TO Kun-sun (Chairman)
    Hon Emily LAU Wai-hing
    Hon IP Kwok-him
    Hon Bruce LIU Sing-lee
    Hon Margaret NG

Members absent :

    Hon Ronald ARCULLI, OBE, JP
    Hon Eric LI Ka-cheung, OBE, JP
    Hon Andrew CHENG Kar-foo

Public Officers attending :

Mr Alan CHU
Principal Assistant Secretary of Security
Deputy Principal Crown Counsel (International Law)
Mr Geoffrey FOX
Senior Assistant Law Draftsman
Ms Eva YAM
Assistant Secretary for Security
Mr FUNG Siu-yuen
Assistant Commissioner of Police (Crime)
Mr David TONG
Assistant Commissioner of Customs & Excise
Mr A A Godfrey
Assistant Director (Ops)
Independent Commission Against Corruption

Clerk in attendance :

Mrs Mary TANG
Chief Assistant Secretary (2) 4 (Atg)

Staff in attendance :

Mr Jonathan DAW
Consultant (Legal Service)
Mr Stanley MA
Senior Assistant Secretary (2) 9

I. Meeting with the Administration

The Chairman welcomed representatives from the law enforcement agencies and explained that the purpose of the meeting was to invite their views on the Bill and their descriptions of real life experiences in their fight against international crimes in the absence of mutual legal assistance (MLA) agreements with overseas jurisdictions concerned.

The Chairman added that representatives, during the course of discussion, might request for the meeting to be temporarily closed should there be a need to keep the description and particulars of a case confidential.

Experiences of law enforcement agencies

Assistant Director (Operations) of Independent Commission Against Corruption (AD(O)/ICAC) said in the absence of MLA agreements with overseas jurisdictions, ICAC had encountered considerable difficulties in its requests for legal assistance. He emphasized that most of their requests were related to the collection of evidence and the transfer of prisoners from overseas countries to Hong Kong to give evidence at the investigation stage. As these requests were made to their foreign counterparts on a reciprocal basis, they were mostly rejected as reciprocity could not be guaranteed and as a result very few prosecutions could ultimately be instituted against corruption cases involving international syndicates. With the enactment of the Bill, ICAC would be in a better position to seek the co-operation of appropriate authorities in its fight against international corruption crimes and in particular in its request for transfer of prisoners from foreign countries to Hong Kong for trial.

Assistant Commissioner of Customs and Excise (AC/CE) said under the existing bilateral agreements with authorities in Australia and United States in 1994, the accumulative amount of liquidated and confiscated moneys were around HK$10.2 and $100 million respectively. He further referred to two recent suspected smuggling cases where the requests made to two countries concerned for the provision of related company and personnel information for investigation purpose had been rejected. He reckoned that if MLA agreements with these two countries were in force, the requested information could be provided and subject to sufficient evidence so obtained, prosecution against the suspects could have been instituted.

Assistant Commissioner of Police (Crime) (ACP(C)) quoted some commercial fraud cases which the Hong Kong Police Force had requested the European countries concerned to provide legal assistance at the investigation stage. Their requests were rejected because the Police Force could not produce a letter of request to the appropriate authority of the foreign countries. With the signed MLA agreements in place, he believed that these countries could be able to provide the necessary assistance in combating against international crimes.

The issue of letter of request

Miss Margaret NG enquired whether the Attorney General (AG) could apply for the issue of a letter of request in respect of the cases just described by AC/CE and ACP(O). Deputy Principal Crown Counsel (International Law) DPCC(IL) replied that under the existing Evidence Ordinance (Cap 8), law enforcement agencies could apply to the Legal Department for an application made by AG to the High Court for an order to issue a letter of request to a foreign jurisdiction to request for assistance in obtaining evidence at the investigation stage of a criminal matter. Before making such a request to the High Court, AG must be satisfied that criminal proceedings would likely be instituted in Hong Kong if the requested evidence was obtained. As the applicability and admissibility of the evidence which the person or witness might produce could not be ascertained beforehand, AG would carefully consider each request of the law enforcement agencies in relation to the issue of a letter of request at the investigation stage of a criminal matter. In response to Miss NG’s further enquiry, AD(O)/ICAC replied that he had not experienced a case where a witness was compelled to give evidence in a foreign court in response to ICAC’s request for legal assistance at the investigation stage of a suspected corruption case.

The taking and subsequent use of evidence collected under joint operation between Hong Kong and overseas jurisdictions

Miss NG asked the Administration whether foreign jurisdictions could make use of the provisions of the Bill to compel persons in Hong Kong to give evidence at the investigation stage. If so, she was worried that local law enforcement agencies might make use of the powers vested on foreign jurisdictions by conducting joint operations to obtain information which they could not otherwise be able to obtain under existing Hong Kong laws. DPCC(IL) replied that this would be subject to the prescribed arrangements and procedures under the MLA agreements concerned.

Miss Emily LAU was concerned about the subsequent use of evidence or information, which a person/witness was compelled to give to a foreign jurisdiction under the Bill, by Hong Kong law enforcement agencies involved in a joint operation. DPCC(IL) replied that according to clause 10 (8) of the Bill, the person/witness could not be compelled to give evidence or produce a thing which might incriminate him. Members were worried that the information or evidence obtained might be used by the local law enforcement agencies in other proceedings and would subsequently put the person/witness in a difficult situation. DPCC(IL) agreed to consider appropriate Committee stage amendments (CSAs) to prevent such use of information and evidence.

The conduct of proceedings in open court or in camera

Members noted that the Bill did not provide for the proceedings necessary for the taking of evidence by the magistrate to be conducted in camera. As there would be situations where the prosecuting authority and the person/witness who was required to give evidence or produce a thing had conflicting views, Senior Assistant Law Draftsman (SALD) agreed to prepare CSAs to allow the magistrate concerned to decide whether the proceedings should be held in open court or in camera.

The taking of evidence at the investigation stage of a criminal matter

On the concern about the need for reciprocity, DPCC(IL) responded that the condition of reciprocity as provisioned in the Bill referred to the obligation to offer legal assistance to each other, subject to the grounds for refusal of assistance under clause 5. He pointed out that in response to AG’s written request under a MLA agreement, the foreign jurisdiction concerned could assist in the taking of evidence at the investigation stage of a criminal matter in Hong Kong, provided that its system of law allowed such taking of evidence.

Referring to the taking of evidence at the investigation stage of a criminal matter, the Chairman asked representatives of the law enforcement agencies about the responses of foreign jurisdiction to their requests in the past. AD(O)/ICAC stated that most of ICAC’s requests to foreign jurisdiction for the collection of evidence at the investigation stage of corruption crimes were rejected because the persons/witness concerned had refused to give evidence. DPCC(IL) pointed out that in the absence of a letter of request issued by the High Court, these overseas authorities were not in an official position to apply their power under domestic law to compel persons to give evidence at the investigation stage of a criminal matter in Hong Kong.

On the types of assistance requested, ACP(C) replied that most of the requests he had encountered were related to collection and verification of information and facts. As far as the witness’s willingness to give evidence was concerned, persons who were not connected with the case under investigation would normally co-operate and persons who had some involvement in the case would mostly refuse. In reply to Miss NG’s enquiry on how many of these requests were related to the collection of evidence from persons, the search and seizure of things and the production of materials, AD(O)/ICAC said very often a number of requests for information and evidence would be raised at different stages of an investigation. Normally their overseas counterparts would start with requests for collection of facts and finally the taking of evidence from persons/witnesses. DPCC(IL) reiterated that under the Evidence Ordinance (Cap 8), the law enforcement agencies, in response to a request from their foreign counterparts, might apply to AG for the issue of a letter of request by the High Court to require the person to give evidence, provided that they could satisfy AG that criminal proceedings would likely be instituted after obtaining the evidence.

Consequential benefits to Hong Kong as a result of providing legal assistance to foreign jurisdictions

The Chairman enquired whether as a direct consequence of giving legal assistance to foreign jurisdictions, law enforcement agencies had in fact prevented the occurrence of crimes. Representatives of the law enforcement agencies affirmed that there had been such cases. They added that, with the enactment of the Bill, they would be in a better position to co-operate with overseas counterparts in their fight against international crimes such as the smuggling of unauthorized or stolen vehicles into and out of Hong Kong and the infringement of copyrights. They all agreed that MLA agreements would be beneficial to Hong Kong and overseas countries.

II Clause-by-clause examination

Clause 4 - Governor in Council may apply Ordinance

Consultant (Legal Service) enquired about the meaning of the word "repeal" in subclause (3) and the phrase "or become related to" in subclause (9). SALD clarified that the former was restricted to the meaning of the reject of an order under subclause (1) and the latter covered countries which entered into multi-lateral agreements of which Hong Kong had been a member country as well as additional territories and places which a country had obtained after signing a MLA agreement with Hong Kong. Members accepted the interpretation.

The meeting ended at 2:35 pm.

Provisional LegCo Secretariat
23 July 1997

Last Updated on 30 November 1998