PLC Paper No. CB(2) 296
(These minutes have been seen
by the Administration and cleared
with the Chairman)
Ref : CB2/BC/17/96
Bills Committee on
Long-term Prison Sentences Review Bill
Minutes of the Fifth Meeting
held on Wednesday, 28 May 1997 at 8:30 am.
in Conference Room A of the Legislative Council Building
Members present :
Hon Ronald ARCULLI, OBE, JP (Chairman)
Hon LEUNG Yiu-chung
Hon Bruce LIU Sing-lee
Hon Lawrence YUM Sin-ling
Members absent :
Hon Emily LAU Wai-hing
Hon James TO Kun-sun
Hon Andrew CHENG Kar-foo
Hon TSANG Kin-shing
Public officers attending :
- Mr Alex FONG
- Deputy Secretary for Security
- Mr Gilbert KO
- Assistant Secretary for Security
- Mr Kelvin PANG
- Assistant Commissioner of Correctional Services
- Mr Samson CHAN
- Senior Superintendent of Correctional Services
- Mr Peter WONG
- Acting Senior Assistant Solicitor General
- Mr Geoffrey FOX
- Senior Assistant Law Draftsman
Clerk in attendance :
- Mrs Sharon TONG
- Chief Assistant Secretary (2)1
Staff in attendance :
- Mr Jonathan DAW
- Consultant, Legal Service Division
- Mr Paul WOO
- Senior Assistant Secretary (2)5
I. Meeting with the Administration
Continue with clause-by-clause examination of the Bill
In response to Mr LEUNG Yiu-chungs question on clause 12(2), the Administration explained that a prisoner would not be released until the minimum term as defined in clause 4 had been served. The purpose of regular reviews by the Board before the minimum term was served was to keep track of the prisoners conduct and progress of rehabilitation etc. which were relevant factors to the Board in deciding whether a recommendation should be made for the release of the prisoner after the prisoner had served the minimum term.
2. The Chairman enquired on the purpose of clause 12(7). The Administration advised that the intention was not to turn the Boards proceedings into a court situation where two sides contested each other. Oral representations, however, were permitted as being a process of seeking clarification on information contained in the relevant documents. Deputy Secretary for Security (DS(S)) added that the provisions in the Bill on written representations should have satisfied the view taken by the European Court of Human Rights that prisoners should have a right to be heard during the review of their sentences. He said that the present Board of Review, Long Term Prison Sentences was of the opinion that the Board should be given time to adjust to the new mode of operation after the Bill was enacted. The possibility of introducing oral hearings in future review proceedings was not ruled out. As requested by members, the Administration agreed to provide information on whether provisions similar to clause 12(7) existed in other legislation.
3. The Administration also undertook to revert to members on whether legal aid would be made available to prisoners in review proceedings, after the views of the Legal Aid Department had been sought.
4. In response to Mr LEUNG Yiu-chungs question, Consultant, Legal Service Division (C, LSD) opined that "any person" in clause 13(3)(a) did not include the prisoner himself.
5. As to subclauses (2) and (6), a draft Committee stage amendment (CSA) had been proposed to substitute "14 days" for "7 days". Assistant Commissioner of Correctional Services (ACCS) advised that cases where material or information could not be provided to the prisoners before the beginning of the specified period might cover situations where the prisoners were transferred back to Hong Kong from other jurisdictions to serve their sentences.
6. Mr YUM Sin-ling enquired if the reports mentioned in clause 14(1) would include reports made by Justices of the Peace on complaints lodged by prisoners, which might be found justified. C, LSD pointed out that clause 14(1) referred to reports and records made by public officials. Other legislation rarely extended similar provisions to voluntary officials. DS(S) pointed out that the mechanism proposed in the Bill allowed prisoners to have access to information available to the Board and to make representations and therefore prisoners would have the opportunity to request for any relevant information to be provided to the Board.
7. Members enquired whether the factors set out under clause 14(1)(e) would result in unfair treatment for prisoners with different family circumstances or means of support after release. DS(S) responded that clause 14(1)(e) spelt out the existing practice, the purpose of which was to assess the prisoners suitability for reintegration into the society after release. Concerning compassionate grounds, old age would be a common factor for consideration by the Board.
8. In reply to Mr Bruce LIU Sing-lees question, ACCS confirmed that all the reports listed in subclauses (1)(a) to (1)(e) would be made available to the Board.
9. DS(S) said that the arrangements under Part IV relating to conditional release were based in part on the existing Release under supervision scheme for prisoners serving indeterminate sentences, while Part V on supervision of prisoners after release was modelled on the present post-release supervision scheme applicable to prisoners who had served their determinate sentences and were released under supervision. ACCS supplemented that whereas the supervision period under the existing release under supervision scheme could last for years, a conditional release order under the proposed legislation might be for a period of not more than two years.
10. The Chairman enquired whether clause 23(1) should be brought in line with clause 37(3) in respect of the making of a temporary recall order. DS(S) explained that the differential treatment as regards the conditional release scheme and the post-release supervision scheme arose from the fact that prisoners under the former scheme were still serving indeterminate sentences. They would therefore be subject to more stringent conditions of release, and if they failed to comply with their conditional release orders, the orders should be suspended, without the need for a temporary recall order. DS(S) undertook to seek the views of the Post-release Supervision Board on this policy point and provide a more detailed explanation after the meeting.
11. The Administration advised that, depending on the assessment on the conduct of a prisoner who was subject to a conditional release order, the Board could recommend for the converting of an indeterminate sentence to a determinate one before the order expired.
12. Members suggested to add a new provision to specify that a conditional release order might be renewed any time before it expired. The Administration agreed to examine the proposal.
13. The Administration further clarified that conditional release was a period during which the prisoner who was serving an indeterminate sentence was temporarily released for the purpose of assessing the suitability of converting the sentence to a determinate one; whereas supervision after release referred to the early release of the prisoner whose indeterminate sentence had already been converted to a determinate one. A distinction was made in clause 15(1)(b) and clause 15(1)(c) respectively. In reply to the Chairmans question, DS(S) said that conditional release carried more stringent conditions of release. The conditions under clause 18 would not apply in the case of post-release supervision.
14. Senior Assistant Law Draftsman (SALD) explained that the power under this clause of the President of the Board to make temporary recall order would be exercised in the Presidents own capacity, rather than on behalf of the Board. The provisions in this clause imposed a direct duty on the President which was different from the delegated functions and duties under clause 9.
15. ACCS added that the period specified for a temporary recall order in clause 37(3) was in line with the arrangements prescribed in the Post-release Supervision of Prisoners Ordinance.
16. ACCS advised that there was no intention to provide for delegation of power by the Commissioner of Correctional Services under this clause. Since delegation of power was provided under the Interpretation and General Clauses Ordinance, members suggested to spell out the policy intent by specifying that only the Commissioner or the Acting Commissioner had such power to recall a prisoner to prison. The Administration undertook to examine the proposal.
17. In response to the Chairmans enquiry, the Administration agreed to provide examples from other legislation of entry without a warrant.
18. The Chairman opined that if the making of regulations was a long and tedious process, the negative vetting procedures might not allow sufficient time for the legislature to properly scrutinize the subsidiary legislation in question. He suggested the Administration to consider changing the approval of regulations made under clause 43 by way of positive vetting procedures; and to mention during the Second Reading debate of the Bill the timetable to implement these regulations. The Administration agreed to revert to members on the proposal.
Schedule 1 Part I section 5
19. The Chairman opined that the standard of "offence punishable by imprisonment for 12 months or more" was a threshold set too high for a removal from office. The Administration agreed to consider the proposal to add a separate subclause to the effect that if a member of the Board was convicted of an offence that was punishable by imprisonment for less than 12 months, the Government should decide whether the member should be removed from office.
Schedule 1 Part III section 12(3)
20. In response to members query on the meaning of 12(3), the Administration undertook to review the drafting and to examine the need to cater for situation of possible disqualification of a member which was unknown to the Board itself when the Board made a decision.
Revised draft CSAs by the Administration
21. SALD undertook to provide a set of revised draft CSAs by 31 May 1997.
II. Date of next meeting
22. The date of the next meeting was scheduled for 3 June 1997 at 10:30 am.
(Post-meeting note : The meeting was subsequently re-scheduled to start at 12:30 pm.)
III. Close of meeting
23. The meeting ended at 10:30 am.
Provisional Legislative Council Secretariat
19 August 1997
Last Updated on 18 October 1997