PLC Paper No. CB(2)391
(These minutes have been seen
by the Administration and
cleared with the Chairman)
Ref : CB2/BC/13/96
- Law Society of Hong Kong
- Mr Melville Thomas Charles BOASE
- Member, Criminal Law and Procedure Committee
- Mr Michael Ian JACKSON
- Member, Criminal Law and Procedure Committee
- Hong Kong Society of Accountants
- Mr Alvin WONG
- Chairman, Legal Committee
- Ms Winnie CHEUNG
- Director of Professional Practices
- Mr Peter GRIFFITHS
- Member, Legal Committee
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 and professional bodies
(LegCo Paper Nos. CB(2)2359/96-97(01) and CB(2)2375/96-97(02))
The Chairman suggested and members agreed to discuss the two batches of Committee stage amendments (CASs) proposed by the Administration which were circulated to members on 19 and 20 May 1997 respectively.
Clause 2 - Interpretation
Definition of Appropriate Authority
2.Deputy Principal Crown Counsel (International Law) (DPCC(IL)) stated that the proposed definition was drafted to cover two basic categories of requests for legal assistance, namely; requests from overseas jurisdictions which had entered into a mutual legal assistance (MLA) agreement with Hong Kong and requests from others without a MLA agreement with Hong Kong. He explained that it would be difficult to define the appropriate authorities for the latter category of requests at this stage because different countries had different MLA laws and practices. Miss Margaret NG opined that the proposed definition could be made more precise and that the phrase "appearing to the Attorney General (AG)" in the definition involved an element of subjective judgment. In this connection, she urged the Administration to provide some general criteria for the determination of appropriate authorities. Senior Assistant Law Draftsman (SALD) explained that the word "appearing" was adopted in the bilateral agreement on the exchange of MLA in relation to drug trafficking offences between United Kingdom and Malaysia and under the agreement AG was empowered to decide whether a request for legal assistance was made by the appropriate authorities of the territories concerned. In response to members concerns, he suggested to re-draft the definition as "a person in respect of whom AG is satisfied that for the time being and under the law of that place is authorized to make a request to Hong Kong for assistance in a criminal matter". Members accepted the suggestion in principle.
3.Miss Emily LAU asked representatives of the Law Society of Hong Kong (LSHK) for comments on the revised definition. Mr Melville BOASE of LSHK replied that the Bill should incorporate provisions to allow AG to ensure that each request for legal assistance made to or received from a jurisdiction under a MLA agreement with Hong Kong should be handled by an appropriate level of authority of the jurisdiction concerned. Miss NG pointed out that the word "satisfied" in the definition had required AG to consider each such request carefully and provide reasons when his/her decision was challenged. Members agreed to the interpretation.
Hong Kong serious offence/ external serious offence
4.Referring to the extension of the threshold to apply to offences carrying a maximum imprisonment of not less than 24 months in the definition of serious offence, DPCC(IL) explained that it was in line with the amendment to the Evidence (Amendment) [E(A)] Bill 1996 proposed earlier. He added that according to his knowledge, no existing MLA agreement had incorporated a definition of the offence carrying a maximum imprisonment of five years or higher and opined that the proposed maximum imprisonment of two years for serious offences under MLA agreement was appropriate. As overseas jurisdictions might not wish to extend the threshold of punishment in their definition of serious offences, members voiced no objection to the proposed amendment.
The definition of investigation
5.Members accepted the proposed deletion of the phase "whether or not the offence is believed to have been committed, to be being committed or to be likely to be committed" from paragraph (a) of the definition of investigation.
Safeguards to prevent exploitation of provisions of the Bill for tax collection purposes
6.The Administration proposed to add a clause 3(3) as "For the avoidance of doubt, it is hereby declared that the provisions of this Ordinance shall not operate to prejudice the generality of section 4 of the Inland Revenue Ordinance (Cap 112)". Clause 15(9)(b) which contained provisions overriding "any obligation as to secrecy or other restriction upon the disclosure of the information imposed by statute or otherwise" would correspondingly be amended to the effect that its application was subject to clause 3(3) and the condition that AG was satisfied that it was in the public interest of Hong Kong to have such effect. While appreciating that the proposed safeguards would prevent overseas jurisdictions from exploiting the mechanism for tax collection purposes, representatives of Hong Kong Society of Accountants (HKSA) pointed out that the protection of tax information and documents was not adequate. Referring to provisions for refusal of assistance under clause 5, representatives of HKSA suggested that the discretionary ground for refusal under subclause (2) should be made mandatory by amending the words from "may be refused" to "shall be refused" in line with subclause (1). Moreover, the word "substantial" under the proposed clause 5(1)(da) should be removed. DPCC(IL) explained that overseas jurisdictions under MLA agreements with Hong Kong would not accept a total exemption of taxation matters because their investigations into money laundering cases often required the collection of relevant tax information and documents. Members in general agreed that the proposed CSAs had provided sufficient safeguards to prevent tax information and documents from being divulged to overseas jurisdictions for tax collection purposes.
Clause 4 - Governor in Council may apply Ordinance
7.Members accepted the proposed CSA to delete clause 4(10) so that sections 34 and 35 of the Interpretation and General Clauses Ordinance (Cap 1) remained applicable to a notice under clause 4(9). Members also agreed to add clauses 4(7)(A) and 4(7)(B) to the effect that the order made by the Governor in Council under clause 4(1) should be substantially in conformity with the provisions of the Bill. In response to members concern that there might not be sufficient time to scrutinize modifications within the scrutiny period under the negative vetting procedure, the Administration agreed to consider moving amendments to clause 4 to the effect that the orders implementing bilateral agreements would be subject to approval by Legislative Council.
Clause 5 - Refusal of Assistance
8.In response to members earlier requests, the Administration proposed to add clause 5(3) to specify that a request by a place outside Hong Kong for assistance under the Bill should be refused if the place was not a prescribed place and the appropriate authority of the place failed to give an undertaking to AG which satisfied AG that the place would, subject to its law, comply with a future request by Hong Kong for assistance in a criminal matter. This ensured that legal assistance would only be provided to foreign countries which undertook to reciprocate similar assistance.
Clause 9 - Requests by Hong Kong for taking of evidence, etc.
9.Members accepted the technical amendments to clause 9 with reference to the definition of investigation in clause 2(1) as well as the deletion of clause 9(3).
Clause 10 - Requests to Hong Kong for taking of evidence, etc
10.As far as the compellability of persons to give evidence at the investigation stage of an external criminal matter was concerned, the Administration proposed to substitute clause 10(9) by "For the purposes of this section, a person is not compellable to give evidence, or produce a thing, for the purposes of a criminal matter in place outside Hong Kong that the person could not be compelled to give or produce, as the case may be, in Hong Kong if that matter were a trial of a person for a Hong Kong offence or proceedings to determine whether a person should be tried for such an offence." Miss NG opined that such safeguard was not sufficient as it had not removed the compellability on persons to give evidence at the investigation stage.
11.To prevent fishing expeditions by overseas investigation authorities, the Administration proposed to add clause 10(10) to specify that a person giving evidence or producing a thing for a criminal matter outside Hong Kong should not be required to state what things relevant to that matter were or had been in his possession or control, or to produce any things other than that as specified by the magistrate conducting the proceedings concerned. Members had no objection.
12.In response to Miss LAUs concern expressed at the previous meeting on the admissibility of evidence taken, the Administration proposed an additional clause 10(11) which stipulated that evidence taken under clause 10 was not admissible in evidence for criminal matters in Hong Kong except against the person who gave that evidence for the offence of perjury in respect of that evidence. In response to Miss NGs query, SALD undertook to revise the clause to the effect that the evidence taken could not be admissible in evidence, or otherwise used, for the purposes of any criminal matter, civil proceedings, disciplinary proceedings, or other proceedings, in Hong Kong except for the offence of perjury or contempt of court in respect of the evidence.
Clause 33 - Regulations
13.Members agreed that there would be situations where the proceedings for taking of evidence in court should not be held in public and that the regulations should be suitably amended to allow for these situations for the greater protection of witnesses. SALD undertook to prepare a CSA to this effect.
Schedule 1 - section 10 - Application of proceeds of realization and other sums
14.The Administration explained that the purpose of the proposed technical amendment was to prepare for the Bill to be applicable to an application made under section 13(8) of the Drug Trafficking (Recovery of Proceeds) Ordinance.
15.At the request of the Chairman, Miss Emily LAU chaired discussion of the remaining items.
Schedule 2 - 4A - Issue of letter of request to obtain evidence in criminal proceedings
16.SALD clarified that the new section 4A was proposed to bring the relevant sections in the Evidence Ordinance (Cap 8) in line with the provisions of the Bill. Due to time restraint, Consultant (Legal Service) would give comments on it, if any, at the next meeting. Members accepted the proposal on the understanding that the proposed amendments were consistent with the provisions of the Bill.
Schedule 2 - section 17 - Protection of part of the Evidence Ordinance, etc
17.Members accepted the CSA as it had been discussed and agreed by the Bills Committee on the Evidence (Amendment) Bill 1996.
18.Members agreed to meet on 27 May 1997 at 10:30 am to continue discussion on the Bill.
(Post-meeting note : The meeting was rescheduled for 2 June 1997 from 10:30 am to 2:30 pm.)
19.The meeting ended at 4:30 pm.
Provisional Legislative Council Secretariat
30 September 1997
Last Updated on 16 October 1997