LegCo Paper No. CB(2) 2090/96-97
(The minutes have been seen
by the Administration)
Ref. : CB2/PL/SE/1
LegCo Panel on Security
Minutes of Meeting
held on Monday, 10 March 1997 at 10:45 am
in the Chamber of the Legislative Council Building
Members present :
Hon James TO Kun-sun (Chairman)
Hon Mrs Selina CHOW, OBE, JP (Deputy Chairman)
Hon Fred LI Wah-ming
Dr Hon Philip WONG Yu-hong
Hon Howard YOUNG, JP
Hon Zachary WONG Wai-yin
Hon Andrew CHENG Kar-foo
Hon Albert HO Chun-yan
Hon IP Kwok-him
Dr Hon LAW Cheung-kwok
Hon Bruce LIU Sing-lee
Hon LO Suk-ching
Hon TSANG Kin-shing
Members absent :
Hon CHEUNG Man-kwong
Hon Emily LAU Wai-hing
Hon CHEUNG Hon-chung
Hon Margaret NG
Hon Lawrence YUM Sin-ling
Public Officers attending :
- Agenda Item III
- Mr LI Ming-chak
- Director of Investigation, ICAC
- Mrs Cecilia SHACKLETON
- Assistant Director of Corruption Prevention, ICAC
- Mr C J KERSHAW
- Principal Investigator, ICAC
- Mr Mike HORNER
- Assistant Commissioner of Police (Crime)
- Mr Stephen Kai-yi WONG
- Deputy Solicitor General
- Mr Ian McWALTERS
- Senior Assistant Crown Prosecutor
- Ms Dorothy CHENG
- Senior Crown Counsel
- Agenda Item IV
- Mr Mike HORNER
- Assistant Commissioner of Police (Crime)
- Mrs Carrie YAU
- Deputy Secretary for Security 1
Clerk in attendance :
- Mrs Sharon TONG
- Chief Assistant Secretary (2) 1
Staff in attendance :
- Ms YUE Sin-yui
- Senior Assistant Secretary (2) 1
I. Confirmation of minutes of meeting held on 2 December 1996
(LegCo Paper No. CB(2) 1457/96-97)
The minutes of the meeting held on 2 December 1996 were confirmed.
II. Date of next meeting and items for discussion
(LegCo Paper No. CB(2) 1376/96-97(01))
2. Members agreed to discuss the following items at the next meeting to be held on 14 April 1997 at 10:30am:
- Deployment of mainland troops in Hong Kong;
- Permanent residency after 1997; and
- Abuse of power by police officers.
Follow up on issues of non-Chinese ethnic minorities
3. After discussion, the Panel decided to write to the Administration to seek clarification and information on the following points :
- Whether members of the non-Chinese ethnic minorities in Hong Kong would fall into the category of persons under paragraph 2(6) of Article 24 of the Basic Law;
- The estimated number of persons fell under paragraph 2(6) of Article 24 of the Basic Law;
- Whether the granting of British citizenship to the non-Chinese ethnic minorities before 1 July 1997 would affect their right of abode in the Hong Kong Special Administrative Region; and
- If the answer to (c) above was in the affirmative, the ground for such an effect.
Members overseas duty visit
4. Members did not propose any overseas duty visits for April to June 1997.
III. Follow-up on issues raised in the course of deliberations of the Prevention of Bribery (Miscellaneous Provisions) (No. 2) Bill 1995
(a) ICACs power of arrest and co-ordination between ICAC and the Police
(LegCo Paper No. CB(2) 1376/96-97(02))
5. Director of Investigation, ICAC (Director of Investigation) informed members that the Police/ICAC Operational Liaison Group met in July 1996 and February 1997. During the meetings, they discussed referral of cases and issues of mutual interest as well as reviewed co-operation in past occasions. He and Assistant Commissioner of Police (Crime) considered co-operation between ICAC and the Police satisfactory.
Principles for case referral
6. The Chairman enquired of the principles guiding referral of cases with both crime and corruption elements. Director of Investigation said that if corruption element was of a significant character of the case, ICAC would investigate it. If the case also involved organized and serious crime, ICAC would discuss with the Police to decide on whether a joint action should be taken. In response to members request, he undertook to provide figures on joint action. He added that ICAC might also refer cases to other government departments, such as the Customs and Excise Department and the Immigration Department.
Sharing of information
7. Members asked whether ICAC would share with the Police information obtained under the special powers conferred by the Prevention of Bribery Ordinance (Cap 201) (POBO).
8. Director of Investigation said that in most cases, information obtained by invoking the special powers of the POBO would be used for corruption-related offences. However, if the information also concerned criminal offences, ICAC would consider sharing it with the Police. ICAC had a duty to inform other law enforcement agencies if, in the course of its investigation, it revealed the existence of serious offences. Under normal circumstances, such case will be submitted to the Operations Review Committee (ORC) for advice for referral. If information acquired revealed that the case might have a significant impact on the community and had a time constraint, ICAC would inform the Police immediately. For example, in the course of searching a premise under a warrant authorized by POBO, if ICAC had reasons to believe that a serious robbery or murder might be committed, the investigation team would inform its supervisor, and the Head of Operations would make a decision to notify the Police for action. ORC would be informed of the case afterwards.
9. Director of Investigation pointed out that ICAC would refer a criminal case to the Police once the element of corruption had been eliminated. A report would be prepared for referral. Raw information acquired through invocation of powers under POBO would not be passed on to the Police. He believed that the Police would exercise its own powers and methods to investigate the case whether or not information obtained with POBO special powers was provided. He added that the report would contain information as to why ICAC did not continue its investigation and outstanding issues that were needed for further investigation.
10. The Chairman was concerned that information obtained in ICAC investigation or intelligence operation which did not suggest any crime being committed, but might be useful to the Police in the future, e.g. the locations of business owned by a person with triad background and his whereabout, would be passed on to the Police. Director of Investigation responded that information or intelligence obtained which did not indicate any commission of crime but suggested persons or organizations might involved in criminal activities, e.g. money laundry or drug trafficking, ICAC might consider referring it to the Police. At the Chairmans request, Director of Investigation undertook to advise in writing the principle concerning referring of information to the Police.
11. In response to Mr IP Kwok-hims question, Director of Investigation said that for complaints referred by ICAC to other law enforcement agencies without investigation, only a brief description would be given in the report to ORC. If the case had been investigated, a full report would be given to ORC. Result of trial would be included if the case had been brought to the courts.
Role of the Attorney Generals Chambers (AGC)
12, Mr Andrew CHENG Kar-foo pointed out that it was important to avoid any duplication of efforts between ICAC and the Police in investigation of cases. He enquired of the role of AGC in referral of cases. Director of Investigation said that if a complaint case involved corruption element and other criminal offences, the complainant would be asked whether the same complaint had been reported to the Police. If the answer was in the affirmative, ICAC would discuss with the Police on whether the allegations were completely or partially the same. The officer in charge of the case would then discuss with the officer of the Police. If they could not resolve who should take up the case, discussions at the directorate level would be held on how the matter should be dealt with. Should the matter still remain unresolved, the advice from AGC would be sought as to whether or not the case should be handled by ICAC.
Prosecutions of non-corruption cases
13. Mr Andrew CHENG Kar-foo enquired of the figures for prosecution of non-corruption related offences brought by ICAC and the reasons for ICAC to handle those non-corruption related cases. Director of Investigation undertook to provide the figures. He then explained that there were cases in which at the conclusion of an investigation by ICAC, found no evidence of corruption but sufficient evidence of other crimes. Under such circumstances, the case would not be referred to the Police to start the investigation all over again. Instead, ICAC would sought advice from AGC for prosecution of the case.
(b) Procedure after arrest-bail
(LegCo Paper No. CB(2) 1418/96-97(01))
14. Referring to members query on a significant drop in the number of bail lasting less than one month after 1993-94, Director of Investigation explained that most of such bail in 1993-94 were connected to a particular case. The decrease was mainly due to improved efficiency in handling simple cases involving corruption in private companies. ICAC had an understanding with AGC that such cases would be marked for quick legal advice so that they could be settled as soon as possible.
15. The Chairman asked how ICAC would deal with a case in which an arrested suspect refused bail, whereas sufficient evidence had not been collected to lay a charge against him. Director of Investigation said that for corruption related cases, ICAC could trigger section 17(A) of POBO to seize his travel document. As for a non-corruption related case, it would either be referred to the Police for action or AGC for advice as to prosecution or release when the case was at an advance stage. He added that less than 10% of the arrested suspects refused bail.
16. In response to members questions, Director of Investigation said that persons arrested for corruption offences would be detained in ICAC detention centres. The centres were similar to those of the Police. In rare situation, e.g. failure of power supply, arrangements would be made with the Police for using its detention centres.
(c) Bribery in relations to auctions (section 7 of POBO)
(Attachments to LegCo Paper No. CB(2) 1376/96-97(02))
17. Senior Assistant Crown Prosecutor briefed members that there was a specific offence under section 7 of POBO for the hypothetical case raised by members during the Bills Committee (on the Prevention of Bribery (Miscellaneous Provisions) (No. 2) Bill 1995) that regular competitors in bidding agreeing to bid/not to bid in a land auction, holding an internal auction subsequent to the successful auction and sharing out the price difference. He added that the common law offence of conspiracy to defraud was of great scope and could be used to deal with the offence in the case.
18. Mr Albert HO Chun-yan said that the case in question was that property developers were seen to discuss among themselves during a land auction. The case was investigated but did not result in any prosecution. He was concerned that the result of the case might have been affected by the advice of AGC which suggested no offence had been committed. He asked whether ICAC had taken steps to monitor similar situation in land auctions.
19. Director of Investigation explained that ICAC had thoroughly investigated the case mentioned by Mr HO. Legal advice sought before investigation suggested that there was a possible breach of section 7. However, due to insufficient evidence, no prosecution was instituted. He stressed that ICAC would monitor the situation where there might be a breach of section 7. It would act on complaints and information which indicated conduct of corruption.
Market stall auctions
20. Mr Howard YOUNG asked whether section 7 applied to market stall auctions where internal bidding always took place after the successful auction. Director of Investigation informed members that prosecution under section 7 was successful in a case involving market stall auction. The case concerned someone who asked potential buyers to refrain from bidding and offered them money in return. He promised to allocate stalls to them if he bid the stalls successfully.
21. Mr Albert HO Chun-yan expressed concern about the mortgaged property sold by banks through private auction firms. Under the circumstances, potential bidders often agreed among themselves not to bid. An internal auction would then be held and the property was sold for less than it would otherwise receive were the auction fairly conducted. The interest of the mortgagor concerned was not protected.
22. Director of Investigation said that ICAC was more concerned about corruption in the public sector. Whether section 7 of POBO should be extended to the private sector would be a matter for law reform and would need to consult the public. The Chairman asked the Administration to consider reforming law in this area. The Chairman suggested that a letter be sent to the Hong Kong Monetary Authority to invite its views on whether section 7 should be extended to cover such a private auction in order to protect the interest of borrowers. He suggested ICAC consider issuing leaflets to publicize section 7.
(d) Review of Schedule of POBO
(Annex B to LegCo Paper No. CB(2) 1418/96-97(01))
23. Assistant Director of Corruption Prevention briefed members that ICAC had completed an internal review on the criteria for including public bodies in the Schedule in January 1997.
24. Members asked why organizations such as the Hong Kong Stock Exchange and the Gold and Silver Exchange, of which the activities had a significant impact on the community, and the Tung Wah Group of Hospitals were not included in the Schedule. Assistant Director of Corruption Prevention responded that a further review was being conducted as to whether the existing 82 organizations in the Schedule all met the criteria and whether other organizations should be added. The Stock Exchange was being considered for inclusion. However, according to legal advice, its inclusion in the Schedule would render all broker members public servants. To tackle this problem, ICAC was considering to amend the definition of public servant. Consideration was also being given as to whether some of the major government subsidised organizations should be included. Director of Investigation added that although the Judiciary was not in the Schedule, its staff, being civil servants, were subject to POBO.
25. Members noted that three professional bodies, namely, the Authorized Persons Registration Committee, Structural Engineers Registration Committee and Contractors Registration Committee were included in the Schedule. They queried why other similar professional bodies were not included in the Schedule. In this regard, Assistant Director of Corruption Prevention undertook to advise in writing.
26. Mr Andrew CHENG Kar-foo questioned why the office of the Chief Executive (designate) and the Executive Council of the Hong Kong Special Administrative Region were not included. He considered that such bodies had great impact on the public, and if there were complaints of corruption, ICAC could only treat them as private companies under the law.
27. Assistant Director of Corruption Prevention and Director of Investigation explained that it was the practice of the Administration to consult ICAC whether an organization should be included in the Schedule when it was established. ICAC would assess the new organization based on the criteria. If the organization met the criteria, a clause would be inserted in the enabling legislation to include it in the Schedule. It would take at least four to six months for including an organization in the Schedule. With less than four months left before the office of the Chief Executive (Designate) became part of the Administration on 1 July 1997, it would not be practical to schedule it as a public body, as by then it would become a public body under S. 2 of POBO. As for existing organizations, inclusion in the schedule would normally be by an order made by the Governor in Council. At the Chairmans request, Assistant Director of Corruption Prevention undertook to advise in writing the time required to include a body in the schedule through this process.
(e) Territorial scope of section 9 of POBO
(Annex C to LegCo Paper No. CB(2) 1418/96-97(01))
28. Director of Investigation briefed members on problems concerning corrupt transactions which took place elsewhere and which had a connection with Hong Kong. He said that any amendment to POBO to cover such corrupt transactions would have significant impact on the private sector, particularly the business community. ICAC planned to issue a public consultation document in June 1997 highlighting existing problems and its legislative proposals.
29. Director of Investigation explained that members of ICAC had to travel outside Hong Kong to investigate corrupt transactions which took place elsewhere. While it would take effort in collecting evidence, it did not create difficulties in enforcing the law since a promise to offer advantage would be regarded as offering advantage even though the actual transactions might take place outside Hong Kong. There would be evidence where an employee accepted advantage and forged information in the documents of business transactions, causing financial loss to his employer. If the law was amended to cover cross-border corruption, ICAC would be equipped with a more comprehensive tool. However, ICAC could still tackle the offence without amending POBO since conspiracy of cross-border corruption took place in Hong Kong.
(f) Penalty for an unlawful disclosure contrary to section 30 of POBO
(LegCo Paper No. CB(2) 1376/96-97(03) and LegCo Paper No. CB(2) 1418/96-97 (01))
30. In her letter, Ms Christine LOH Kung-wai questioned whether a loss of political rights was an appropriate penalty for an unlawful disclosure contrary to section 30. Director of Investigation said that ICAC agreed in principle with Ms LOHs suggestion and a review in this regard was being considered. The Chairman requested and Director of Investigation undertook to report to the Panel the outcome of the review in due course.
IV. Harassment and intimidation by private developers on residents in the New Territories
(LegCo Paper CB(2) 1418/96-97(02))
Understanding of criminality
31. In response to a case cited by Mr Zachary WONG Wai-yin, Assistant Commissioner of Police (Crime) said that on 16 January 1997, the Police was called to a dispute at Wong Chuk Yeung where a person was demolishing structure for the developer who had possession of the land. The Police intervened at that time to ensure that there was no criminal conduct. The Police established that the case was a civil dispute between two parties and that the conduct was not criminal. Both parties were advised to settle the matter and seek redress from the Lands Department. Assistant Commissioner of Police (Crime) added that damage to property could be criminal or accidental.
32. The Chairman asked whether the demolition was a civil or criminal case. Assistant Commissioner of Police (Crime) said that it was a civil case because the person demolishing the house was acting for the developer who had possession of the land. He did not know whether the person pulling down the house had the possession order since he did not have full details of the case. Assistant Commissioner of Police (Crime) further explained that the case was reported to the Police after the hut was knocked down. That was a criminal damage allegation which was being investigated by the Police. A second allegation of assault was also being investigated. The Police would ensure that if there was any evidence of criminality, the case would be referred to the Attorney Generals Chambers for prosecution. Members concern regarding allegation that unlawful means had been used to repossess the land was noted.
33. Members were extremely concerned about the repossession of land by force without a possession order from the court and the correct understanding of criminality on the part of the Police. They urged the Police to clarify whether such an act was a criminal offence and whether document such as letter from lawyer was sufficient for repossession. The Chairman pointed out that if a tenant failed to pay rent or acted immorally, the developer or owner could not repossess the property by force without a possession order. Even if the developer or owner had a possession order, he had to be accompanied by bailiffs and police officers to repossess the land. Otherwise, it would amount to harassment which was an offence under the Landlord and Tenant (Consolidation) Ordinance.
34. Mr Albert HO Chun-yan cited a case in Kwu Tung where someone repossessed the land by bulldozing the road and structures. He said that the acts amounted to criminal damage and there was breach of peace and intimidation. However, no one had yet been successfully prosecuted in such cases. He was concerned that repossessing land in such a manner had become a pattern in the New Territories. If the Police took the view that developers or owners had the right to repossess the land without going through procedures in courts, there was no need for the hundreds of cases pending to be heard. Members were concerned that with such an attitude, the Police could not investigate cases impartially. It could also exacerbate the problem of rapid repossession of land by developers through illegal means.
35. With regard to the case in Kwu Tung, Assistant Commissioner of Police (Crime) said that 14 complaints were received over 14 days. The Police arranged meetings with various parties to ensure that everybody was acting within the law and things did not get out of hand. After investigation, no evidence of criminal offence could be proved. Assistant Commissioner of Police (Crime) emphasized that the Police would investigate every case alleging crime and if there was evidence of criminal damage, the person involved would be prosecuted. The Police would not allow anybody or developer to take the law into his own hands and commit criminal acts.
36. The Chairman remarked that repossession of the land had to comply with the requirements set out under Order 113 of The Rules of the Supreme Court. He re-iterated members concern about the misconception of criminality by the Police.
37. Assistant Commissioner of Police (Crime) said that in the cases investigated and in general, there were interested parties who were seeking for their own interests to have matters resolved in their favour. One side was trying to get more compensation than the other side was willing to pay. From his experience, not many cases was there an absolute victim. There were always interested parties involved. While every report was investigated, the Police was seldom able to prove criminality on the part of any person, or if there was a criminal act, the Police was not able to arrest any person involved. The Police had to maintain an impartial stance to avoid being seen as being bias towards any of the parties involved.
38. Members queried whether the Police would treat a case less seriously when it considered a complainant an interested party. Assistant Commissioner of Police (Crime) said that the Police would investigate every case seriously and impartially. However, from his experience in such cases, criminal proceedings often could not be proceeded since matters had been settled among parties involved. Prosecution would be difficult because there would be no victim or witness to testify. Invariably in these cases, the Police was used. Members were dissatisfied with the Police taking such a position. They questioned if it was right for the Police to take the role of mediators where there were matters which warranted full criminal investigation.
Protection afforded to residents
39. Members enquired of the role of the Police in protecting the residents from being harassed in cases of property repossession. They wondered if there were special measures or special teams to protect the victims.
40. Assistant Commissioner of Police (Crime) said that it would amount to an offence where a tenant or sub-tenant of a property was harassed. Criminal acts would be investigated and prosecution would follow if there was sufficient evidence. Every such case would be investigated by a CID team. Details of the police officer handling the case, such as his contact number, would be provided to the complainant. Other avenues available included the witness assurance and witness protection schemes. There was no need for special teams. For every case, the Police had to find out what had happened and avoid the situation developing into anything more serious. The Police would not want to see crime being committed. Regarding measures to stop the developer, the Police would have to find out if he was acting within his rights and within the law. Whether a charge would be laid against a developer purported to involved in harassment of residents would depend on the facts of individual case.
41. In summing up the discussion, the Chairman said that members disagreed and was dissatisfied with the Polices views on repossession of land by developers. Members were extremely concerned about the misconception of criminality on the part of the Police. Deputy Secretary for Security 1 pointed out that Police investigation was ongoing to ascertain whether any criminality was involved. The Chairman proposed and members agreed to form a subcommittee to examine the issue in detail.
(Post meeting note : The first meeting of the Subcommittee on Harassment and Intimidation by Private Developers against Residents was held on 20 March 1997 at 2:30 pm.)
V. Close of meeting
42, The meeting ended at 1:25 pm.
22 April 1997
Last Updated on 21 August 1998