LegCo Panel on Security

I. Confirmation of minutes of meetings held on 9 and 16 December 1996

(LegCo Papers Nos. CB(2) 1755 and 1673/96-97)

The minutes of the meetings held on 9 and 16 December 1996 were confirmed.

Action

II. Date of next meeting and items for discussion

(LegCo Paper No. CB(2) 1711/96-97(01))

2. Members agreed to discuss the following items at the next meeting to be held on 12 May 1997 at 10:30am :

1. Application for British Nationals (Overseas) passports and administrative arrangements on application for British citizenship by non-Chinese ethnic minorities in Hong Kong;

2. Review of the Organised and Serious Crimes Ordinance; and

3. Follow-up on repatriation of Vietnamese migrants.

3. The Chairman informed members that a special meeting of the Panel would be held on 24 April 1997 at 10:30 am to discuss the following items :

1. The Security and Guarding Services (Amendment) (No. 2) Bill introduced by Mr CHAN Wing-chan;

2. Child illegal immigrants from Mainland China; and

3. Minimum safeguards against unfair deportation.

He reminded members that another special meeting had been arranged on 2 May 1997 with the UNHCR representative to discuss the issue of Vietnamese migrants and refugees.

4. Mr Albert HO pointed out that a British expert had recently proposed that an independent inspectorate system be established for penal institutions. He requested that the subject be included as an item for future discussion. The Chairman asked Mr HO to provide a statement on the matter so that the request could be followed up.

III. Abuse of power by police officers

(LegCo Paper No. CB(2) 1711/96-97(02))

5. Principal Assistant Secretary for Security E (PAS(S)E) briefed members on the paper. The Chairman referred to Secretary for Security’s reply to Mr Zachary WONG’s question at the LegCo sitting on 4 December 1996, which was tabled at the meeting, and asked whether statistics on complaint cases involving fabrication of evidence ("FOE") for the year 1996 were available. Director of Management Services, RHKPF (DMS/RHKPF) said that there were three cases in 1996 all being under court proceedings.

6. Members expressed dissatisfaction with the small number of complaint cases being substantiated in the three-year period 1993-95. Of the six substantiated cases, only one case resulted in successful prosecution and the other police officers involved were only subject to disciplinary action. They considered "FOE" to be a serious offence but it appeared to have been treated lightly by the Police Force management since the disciplinary measures imposed on officers concerned were not commensurate with the seriousness of the offence committed.

7. DMS/RHKPF assured members that the Force took a very serious view on allegations of fabrication of evidence. Whether a case had sufficient evidence to warrant a prosecution was subject to the advice of the Attorney General’s Chambers (AGC). If legal proceedings were not warranted, the case would be reviewed by the Internal Investigation Office to determine if there was sufficient evidence to initiate any disciplinary proceedings on any matters which had come to light during the original investigation. In the process, AGC’s advice would also be sought on sufficiency of evidence. Upon conclusion of the disciplinary proceedings, the case result would be reviewed by an officer of Chief Superintendent of Police level and subsequently ratified by the Assistant Commissioner of Police Personnel. In addition, the investigation into all complaint cases were closely monitored and the results of the investigation were endorsed by the Independent Police Complaints Council.

8. In response to Miss Margaret NG’s enquiry, DMS/RHKPF said that every "FOE" case acquitted by the court would be reviewed in Regional Headquarters to see whether any, and if necessary, what follow-up actions were required. At members’ request, he agreed to provide statistics on cases where the police officers concerned had given, in the opinion of the court, unreliable or unacceptable statements, and the follow-up actions taken by the Police Force management.

Adm

9. Commenting on Mr LAW Cheung-kwok’s question on whether the academic level of police officers had any bearing on their propensity to commit crime involving "FOE", DMS/RHKPF said that he could provide the relevant analysis of the six cases concerned but considerable time and effort would be required if those relating to all complaint cases had to be obtained.

Adm

10. Members expressed serious concerns about the way in which "FOE" complaints were handled by the Police Force senior management, whether they resulted in criminal/disciplinary actions being instituted against officers involved. Mr Albert HO suggested and members agreed to form a subcommittee to look into the matter in greater depth. The following members agreed to join the Subcommittee :

Mr James TO Kun-sun
Ms Emily LAU Wai-hing
Mr Zachary WONG Wai-yin
Mr Albert HO Chun-yan
Mr TSANG Kin-shing

Clerk

11. Members requested the Administration to make available to them the files of the six substantiated cases including AGC’s analyses on these cases, and if necessary, more such complaint case files. DMS/RHKPF said that he would seek legal advice on members’ request.

Adm

IV. Follow-up on deployment of Mainland troops in Hong Kong

(LegCo Paper No. CB(2) 1161/96-97(04))

12. Principal Assistant Secretary for Security A1 (PAS(S)A1) informed members that an agreement had yet to be reached on the proposal of the Chinese side to station advance personnel of the Chinese Garrison in Hong Kong before the handover. On the Garrison Law, there were still a number of areas where further clarification with the Chinese side was necessary, for example, how the provisions in the Garrison Law would be implemented in the Special Administrative Region (SAR), and the future interface between the SAR Government and the Garrison. At the request of the Chairman, he agreed to explain in writing what these areas were for the information of members.

Adm

13. Members expressed concern on a number of issues relating to the Chinese Garrison including how the provisions of the Garrison Law would work in practice, the difficulty of enforcement by police officers regarding cases involving members of the Garrison, the remuneration of the Garrison members insofar as it might affect their conduct and behaviour, and the management of the Garrison. PAS(S)A1 agreed that there should be early discussions with the Chinese side on implementation of the Garrison Law and the future interface between the civilian and military authorities. He conceded that the information available on the Chinese Garrison had been rather scanty but he undertook to obtain more from the Chinese side when suitable opportunities arose. On the question of the facilities to be taken over by the Chinese Garrison, PAS(S)A1 said that four reprovisioning projects were nearing completion. At the request of the Chairman, he agreed to provide details of these projects for members’ information.

Adm

Adm

V. Follow-up on permanent residency after 1997

(Secretary for Security’s statement, Director of Immigration’s statement and "Right of Abode" booklet tabled and circulated to absent members vide LegCo Paper No. CB(2) 1861/96-97)

14. Secretary for Security (S for S) delivered a statement on the current state of discussions with the Chinese side on issues of the right of abode. His statement was tabled at the meeting. Director of Immigration (D of I) then explained, also in a prepared statement tabled, the technical issues on the matter which the Administration had discussed with the Chinese side. She said that the Immigration Department had published 800,000 booklets for distribution to the public and would operate 15 hotlines to answer enquiries on the matter. The information would also be put on the Internet.

15. The Chairman referred to paragraph 4 of D of I’s statement and requested the Administration to provide in writing, for information of the Panel, details of the issues which it had yet to reach an agreement with the Chinese side. In response to the Chairman’s enquiry on the views of the Administration on the prescribed periods as specified by the Hong Kong and Macao Affairs Office of the State Council (i.e. a period of absence of three years as stated in paragraph 2(d)(vi) and within 18 months from 1 July 1997 in paragraph 2(iii) of D Of I’s statement), D of I did not see any objection to its proposals as they were considered to be rather flexible.

Adm

16. On the question of "ordinarily resident in Hong Kong" as raised by Mrs Selina CHOW, D of I said that the Immigration Department had no difficulty in determining the status of a person using the criteria mentioned in paragraph 2(d)(ii) of her statement. There were also court verdicts relating to such cases. However, Mrs CHOW considered that the term should be clearly defined with particular reference to those people who maintained two places of permanent residence and chose to be treated as foreign nationals. D of I remarked that there were court rulings indicating that a person might be considered as ordinarily resident in Hong Kong even though he had another or more places of permanent residence outside Hong Kong. Furthermore, the declaration made by a person of his nationality reflected his actual position at a particular time and he could make another declaration if his circumstances had changed.

17. Ms Emily LAU asked why the Administration did not commence the legislative process on the right of abode now since she considered a White Bill would not solve the problem relating to the present issue. S for S explained that since the right of abode and related issues were complicated matters, legislation should be passed by the present legislature as soon as possible to provide clear and unambiguous answers to the public. However, the Chinese side had rejected this. He said that the White Bill approach had been raised by the Administration as a practicable option which would solve the problem of which legislature should process the legislation and when. That approach had again been rejected by the Chinese side. He stressed that the White Bill approach had been raised on the understanding that the Provisional Legislature would not start any legislative process before 1 July 1997 in order to avoid legal challenges to the laws passed by the provisional body. However, the Chinese side insisted that the legislative process must begin in the Provisional Legislature before 1 July 1997. On the other hand, if the legislative process were to start in the present Legislative Council now without the agreement of the Chinese side, he doubted that the legislation could be enacted within the time left before the handover, and that it would not be nullified by the Chinese side afterwards. In the circumstances, he would like to hear the views of members and the public as to whether the Administration should proceed with the publication of a White Bill.

18. Mr Albert HO suggested that, despite difficulties likely to be encountered, the Administration should start the legislative process now with a view to having the Bill passed by the present Legislative Council, similar to what had been done on the Court of Final Appeal Ordinance. S for S said that he would consider Mr HO’s suggestion. He remarked that the present case was different since whilst a consensus had been reached on most of the substantive issues, there had not been any agreement between the two sides, as in the case of the Court of Final Appeal. Although legislation in respect of both matters was to become effective on 1 July 1997, he failed to understand why the Chinese side had agreed to having one piece passed by the present Legislative Council whilst insisting that the other should be passed by the Provisional Legislature. He also warned of the consequences of passing legislation without the agreement of the Chinese side.

Adm

19. Responding to Mr Howard YOUNG’s question on whether the Administration could guarantee that departments concerned would implement what had been agreed between the two sides by 1 July 1997, S for S emphasized the importance of having the relevant legislation in place by 1 July 1997 or soon afterwards to ensure the smooth and effective functioning of the Immigration Department. The Administration would therefore make all the necessary preparatory work relating to the implementation arrangements, including the drafting of a Bill. He stressed, however, that the Administration would not facilitate the Provisional Legislature to start any legislative process on the matter before 1 July 1997. In reply to a further question from Mr YOUNG, D of I confirmed that in accordance with the Basic Law, children born to foreign nationals in Hong Kong would be treated as people holding valid documents for entry to Hong Kong.

20. Miss Margaret NG considered it to be irresponsible on the part of both the British and Chinese Governments to have failed to reach an agreement on the legislative arrangements. She asked how the public would be affected and what the Immigration Department would do in the absence of legislation. She said that the White Bill had no legal effect and would not solve the problem of legal challenge to the laws passed by the Provisional Legislature. She was of the view that the Administration should proceed with the introduction of the Bill into the Legislative Council which would then decide how it should be processed. At the request of the Chairman, S for S agreed to explain in writing why he considered that there was no overriding need for detailed implementing regulation to be passed before 1 July 1997, as mentioned in paragraph 5 of his statement. On the question of introducing the Bill into the Legislative Council, S for S said that the only way to provide clear and confirmed answers to the public, in particular those "returning emigrants" who had acquired foreign nationality, on all issues of concern related to the right of abode was to have legislation in place before 1 July 1997. However, this could not be done because of the objection from the Chinese side. He admitted that in some circumstances the Administration might proceed with the legislative process without any consensus or agreement being reached with the Chinese side, as in the case of the Crimes (Amendment) (No. 2) Bill cited by Miss NG. He said that the reasons for making such arrangement in respect of the Bill concerned had been explained before and the outcome of the Administration’s action on that matter was for all to see. Miss Margaret NG suggested and the Chairman agreed that a special meeting of the Panel be convened to discuss the right of abode issue. She said that she would also move a motion debate to enable the views of the whole Council to be heard.

Adm

21. Mr CHEUNG Man-kwong considered it deplorable for the Chinese Government to give credibility to the Provisional Legislature at the expense of the interests of the people of Hong Kong. On a more practical point, he asked whether there was a clear and unambiguous legal definition of the term "ordinarily resident in Hong Kong", or the concept of "taking Hong Kong as a place of permanent residence". S for S noted Mr CHEUNG’s concern and said that the need for this would be taken into consideration if and when the relevant legislation was drafted.

Adm

22. Mr IP Kwok-him said that the view of the Chinese side was that since the provisions relating to the right of abode were to be implemented after 1 July 1997, the matter was a concern of the SAR Government and as such the relevant legislation should be dealt with by the Provisional Legislature. The crux of the matter was the position of the Provisional Legislature as seen by the British and Chinese Governments. The important consideration now was how the necessary legislation should be enacted to enable the desired objectives to be achieved.

23. S for S remarked that any suggestions on the "Right of Abode" booklet should be forwarded to the Director of Immigration. D of I added that revised editions with appropriate amendments would be published at a later date.

24. The Chairman said that he personally supported the introduction of a Blue Bill into Legislative Council. He did not consider it appropriate to assume that the Chinese Government would abrogate the legislation to be passed by the Legislative Council since the contents of the legislation eventually enacted by the Provisional Legislature might be the same. Such a stance would amount to casting a vote of non-confidence on the Chinese Government.

25. The Chairman concluded the meeting by saying that he would arrange for a special meeting of the Panel to be held shortly to discuss the right of abode issue.

Clerk

VI. Close of meeting

The meeting ended at 1:30 pm.

LegCo Secretariat
27 June 1997