LC Paper No. LS 20/98-99
Information Paper for the House Committee Meeting
of the Legislative Council on 24 July 1998
Legal Implications of the Inquiry Proceedings by the Commission of
Inquiry on the Privileges and Immunities of Members
On 21 July 1998, the Chief Executive in Council appointed a Commission of Inquiry ("the Commission") under the Commissions of Inquiry Ordinance (Cap. 86) ("the CIO") to inquire into the operation of the new Hong Kong International Airport. The terms of reference of the Commission are as follows :
- To examine the planning and preparation for the opening of the new airport including the adequacy of communication and coordination between all interested parties.
- To examine the decision to open the new airport on 6 July 1998 and the extent to which it was ready to begin operation on that date.
- To examine the operation of the new airport since it opened on 6 July 1998 (including but not limited to flight information display system, franchised air cargo services, ramp handling, baggage handling and air side security) and to identify the roles of the various parties involved.
- To identify problems encountered in the operation of the new airport and to establish their causes and where the responsibility for each of them lies.
It has also been specified that the terms of reference do not include matters to do with civil liability or quantification of loss or damage.
2. The appointment of the Commission, with its inquiry proceeding being deemed to be judicial proceeding, has generated interest among some Members as to the legal implications for the inquiry to be carried out by the proposed LegCo Select Committee (Appendix 1).
3. The purposes of this paper are to explain :
Inquiry proceeding of the Commission
- The nature of the inquiry proceeding to be conducted by the Commission under the CIO and legal issues related to such proceeding.
- Privileges and immunities of members of a LegCo Select Committee.
- Privileges of witnesses appearing before a LegCo Select Committee under a summons.
4. Section 4 of the CIO provides for the powers of the Commission (Appendix 2). It empowers the Commission, among other things, to summon any person to give evidence on oath. Section 11 of the CIO provides that every inquiry held under the Ordinance shall be deemed to be a judicial proceeding. It further provides that any conduct which would constitute contempt of the Court of First Instance or of a judge , if it were committed towards the Court of First Instance or a judge as the case may be, shall be a contempt of the Commission and punished by a judge of the Court of First Instance as a contempt of the Court of First Instance (section 11(2)). The legal effect of section 11(2) is to apply the common law offence of contempt of court to a Commission.
5. In general terms, words spoken or otherwise published, or acts done, outside court which are intended or likely to interfere with or obstruct the fair administration of justice are punishable as criminal contempts of court. The commonest examples of such contempts are (a) publications which are intended or likely to prejudice the fair trial or conduct of criminal or civil proceedings; (b) publications which prejudge issues in pending proceedings; (c) publications which scandalise, or otherwise lower the authority of, the court; (d) acts which interfere with or obstruct persons having duties to discharge in a court of justice; (e) acts which interfere with persons over whom the court exercises a special jurisdiction; (f) acts in abuse of the process of the court; (g) acts in breach of duty by persons officially connected with the court or its process: paragraph 7 of Volume 9 of Halsbury's Laws of England (4th Edition).
6. In addition to the common law offence of contempt of court, section 8 of the CIO provides for certain conducts to be contempt offences which may be dealt with by a Commission summarily. For example, it makes it an offence punishable with fine and imprisonment for a person who fails without reasonable excuse to attend at the specified time and place before the Commission, refuses to answer question put to him by the Commission, wilfully interrupts the proceedings of the Commission.
Privileges and Immunities of Members of a LegCo Select Committee
7. Section 3 of the Legislative Council (Powers and Privileges) Ordinance (Cap. 382) ("the LegCo (P&P) O") provides that freedom of speech and debate in the proceedings before a LegCo committee (including a select committee) shall not be liable to be questioned in any court or place outside the Council (Appendix 3). Section 4 of the LegCo (P&P) O provides that no civil or criminal proceedings shall be instituted against any Member for words spoken before, or written in a report to, a committee (including a select committee).
8. These immunities are provided so that Members may discharge their duties as legislators without fear of legal liabilities. Because of the breadth of these immunities, a convention, normally called sub judice rule, has developed as a self-imposed restraint by legislators. In brief, this rule means when a matter is under the consideration of a court of law awaiting a decision or verdict, it should not be discussed or criticised. This is not an absolute rule in that it only applies if the discussion or reference to the case would prejudice it. In the Rules of Procedure of the LegCo, the sub judice rule is reflected in Rules 25(1)(g) and 41(2) (Appendix 4).
9. In addition to the Rules of Procedure, previous Select Committees of the Legislative Council had decided that :
- During open hearings, members should only ask question for the purpose of establishing facts in connection with the inquiry. Members should not make comments or statements during these sessions.
- All Members, including non-select committee members, should refrain from making comments outside the proceedings.
The rationale for these decisions was mainly for the enhancement of credibility and integrity of the inquiry proceedings and to ensure fairness to parties concerned with the inquiry. These decisions, if followed, may have the effect of not exposing Members to the risk of legal liabilities arising from their activities outside of proceedings of the Council or committee.
Privileges of witnesses appearing before a LegCo Select Committee under a summons
10. Section 16(1) of the LegCo (P&P) O requires a person being lawfully ordered to attend a committee (including a select committee) to give evidence, unless such evidence is of a private nature and does not affect the subject of inquiry, notwithstanding that in doing so it may tend to incriminate that person or his spouse (Appendix 5). Section 16(2) provides that the evidence given under subsection (1) to be inadmissible in any proceedings for an offence or for the recovery of a penalty against such person or his spouse, unless such evidence amounts to perjury. Therefore, it will not be an excuse under section 16, for a witness appearing before a LegCo select committee under a summons to refuse to give evidence by saying that the evidence he is going to give is sub judice and hence may be punishable with contempt under section 8 or 11 of the CIO. Under section 17 of the LegCo (P&P) O, any person who disobeys a lawful order of a select committee to attend or produce documentary evidence or refuses to answer lawful and relevant questions commits an offence and is liable to a fine of $10,000 and to imprisonment for 12 months. Under section 26 of the same Ordinance, no prosecution under the Ordinance shall be instituted except with the consent of the Secretary for Justice.
Legal Service Division
Legislative Council Secretariat
24 July 1998