LC Paper No. CB(2)2218/98-99
(These minutes have been
seen by the Administration)
Ref : CB2/BC/10/98
Bills Committee on Theft (Amendment) Bill 1998
Minutes of meeting
held on Tuesday, 9 March 1999 at 8:30 am
in Conference Room B of the Legislative Council Building
Hon Mrs Miriam LAU Kin-yee, JP (Chairman)
Hon Martin LEE Chu-ming, SC, JP
Hon Margaret NG
Members Absent :
Hon Jasper TSANG Yok-sing, JP
Hon Ambrose LAU Hon-chuen, JP
Hon Andrew CHENG Kar-foo
Public Officers Attending :
Clerk in Attendance :
- Mr Stephen Kai-yi WONG
- Deputy Solicitor General
- Mr John READING
- Senior Assistant Director of Public Prosecutions
- Mr Llewellyn MUI
- Senior Government Counsel
Staff in Attendance :
- Mrs Percy MA
- Chief Assistant Secretary (2)3
- Mr LEE Yu-sung
- Senior Assistant Legal Adviser
- Mr Paul WOO
- Senior Assistant Secretary (2)3
I. Meeting with the Administration
(LC Paper No. CB(2)1402/98-99(01))
Three options proposed by the Bills Committee
Deputy Solicitor General (DSG) referred to the deliberations at the last meeting on 11 February 1999 at which the Bills Committee requested the Administration to consider the following options to deal with the Bill -
- to restrict the proposed new offence of fraud to circumstances in which there is financial or proprietary gain or loss and to abolish the common law offence of conspiracy to defraud;
- to restrict the proposed new offence of fraud to circumstances in which there is financial or proprietary gain or loss and to retain the common law offence of conspiracy to defraud; or
- not to proceed with the Bill, i.e. to maintain the status quo.
The Administration's revised proposal
2. DSG advised that the Administration had carefully considered the three options. Given that there was a consensus in principle that a general offence of fraud should be created, and in order to meet members' concern that the scope of the new offence of fraud would be too wide, the Administration was prepared to propose a revised version of option (b) above, under which the terms "benefit" and "prejudice" would be redefined to refer to "financial or proprietary gain or loss" and to "a breach of public duty". Under this revised proposal, the common law offence of conspiracy to defraud would still be retained.
3. Senior Assistant Director of Public Prosecutions (SADPP) explained that the reservation the Administration had in going for option (b) was that there had been cases where, despite there was no financial gain or loss involved, some public officers had been induced by false representations to commit an act, or make an omission, which they would not have done (as the act would be contrary to their public duty) had they known the true facts. Examples of such cases had been explained to members at the last meeting of the Bills Committee (LC Papers No. CB(2)1256/98-99(01) and CB(2)1329/98-99(01) refer). He said that some similar offence cases had been dealt with under the common law offence of conspiracy to defraud and a number of others were still pending trial. By redefining the terms of "benefit" and "prejudice" to include the element of "breach of public duty", the revised option (b) enabled the Administration to bring charges under the new offence of fraud against persons acting alone to induce public officers to act in such a way as to be in contrary to the proper discharge of their public duty.
4. In reply to Miss Margaret NG's enquiry, SADPP said that the offence of fraud aimed at persons who practised a deceit. In the context of a breach of public duty, the public officer who was caused to breach his duty would not be prosecuted provided that he did the act unknowingly, i.e. he would not have so acted had the true facts been revealed. In establishing a case of breach of public duty induced by deceit, the prosecution would have to prove the falsity of a representation made to a public officer, who committed an act (or made an omission) within his proper authority which he would not have done but for the false representation.
5. SADPP further advised that although in most cases of fraud the aim of the fraudsters was to obtain an economic gain for themselves, sometimes the evidence available in the case might not be sufficient to prove that. In the CHIM Pui-chung case, for example, there were difficulties to prove that the alleged act of defrauding the Securities and Futures Commission to avoid making a general offer to the other shareholders of the company to buy out their shareholdings directly resulted in a financial gain to the defendants or a financial loss to somebody else. Therefore, a charge under the offence of fraud would not be appropriate.
6. Mr Martin LEE opined that the phrase "breach of public duty" was confusing as the word "breach" denoted an improper intention to do something. SADPP agreed that the term could be improved.
7. Miss Margaret NG said that it was necessary to guard against enacting an offence which could not capture precisely the kind of conduct which the law intended to punish. She pointed out that for cases of attempts to deceive public officers with false representations with a view to circumventing certain legal requirements, it should be possible to bring prosecution against the persons in respect of the conduct under the relevant offence provisions in the particular Ordinances concerned. She queried whether it was necessary to create a new offence of fraud to cover breach of public duty. Mr Martin LEE agreed with Miss NG and opined that the inclusion of the element of breach of public duty might result in the scope of the new offence of fraud being too wide such that it could catch situations not originally contemplated by the Administration.
8. The Chairman said that for those cases cited by the Administration at the last meeting, the Administration had shown that it was possible to prosecute the accused under the common law offence of conspiracy to defraud. She said that the purpose of a substantive offence of fraud was to deal with prevalent cases. It would be difficult to accept the Administration's revised option which merely sought to cater for the rare situation of a person acting alone to induce a breach of public duty involving no financial gain or loss.
|9. Members considered that the Administration should give additional justifications for its revised proposal. Members also invited the Administration to revisit the feasibility of options (a) and (b) respectively and to explain its concluded view at the next meeting.
II. Next meeting
10. The next meeting was scheduled for 23 March 1999 at 8:30 am.
11. The meeting ended at 9:10 am.
Legislative Council Secretariat
7 June 1999