LC Paper No. CB(2)1510/98-99
Senior Assistant Secretary (2) 3
(These minutes have been seen
by the Administration)
I. Confirmation of minutes of meeting on 15 December 1998
(LC Paper No. CB(2)1072/98-99)
The minutes of the above meeting were confirmed.
II. Items for discussion at the next meeting on 25 February 1999 and subsequent meetings
(LC Paper No. CB(2)1067/98-99(01))
2. Members agreed that the next regular meeting scheduled for 25 February 1999 would discuss the following items -
Cases involving defence based on public interest
- Legal Aid Policy Review; and
- Review of Ordinances binding on the Government but not on PRC organs.
3. Mr Martin LEE drew members' attention to a recent case where the appeal brought by a defendant, who was originally convicted for gaining access to a confidential computer file in a hospital with a view to making dishonest gain was allowed by the Chief Judge with a lesser sentence. Mr LEE said that the concern arising from this case was whether public interest could be adduced as a reason for defence under certain special circumstances, such as where a person illegally obtaining access to and divulging confidential information with the intention to prove that such information had been falsely represented to the public by the Government. The defence being based on the argument that the public had the right to know the truth. Mr LEE suggested that the matter might be pursued by the Panel.
|4. The meeting agreed that before discussion was to take place, a preliminary study should be undertaken by the Legal Adviser to determine the areas where discussion should focus on. One of the issues would be to identify whether "public interest defence" existed in current legislation.
Role and conduct of Hong Kong solicitors and China appointed attesting officers
5. The Chairman informed the meeting about a referral received from the Complaints Division in relation to complaints arising from purchase of uncompleted residential properties in the Mainland. The Duty Roster Members who received the deputation on 15 September 1998 instructed that the matter be referred to both the Panel on Housing and the Panel on Administration of Justice and Legal Services for follow-up action. Specifically, the Panel was requested to look into the role and conduct of Hong Kong solicitors and China appointed attesting officers involved in China properties transactions.
|6. Mr James TO considered that the matter should be discussed by the Panel, particularly in the context of clarifying the role of Hong Kong solicitors who acted as both the legal representatives of local buyers and China appointed attesting officers in the transactions, and whether or not proper monitoring mechanisms were in place to deal with complaints which might arise. The meeting agreed that the matter should be scheduled for discussion at the Panel's meeting to be held on 23 March 1999. Representatives of the Administration, the Law Society of Hong Kong, the Association of China Appointed Attesting Officers as well as the aggrieved parties would be invited to attend the meeting.
III. Consultation Paper on The Procedure Governing the Admissibility of Confession Statements in Criminal Proceedings
(The Consultation Paper issued by the Law Reform Commission in November 1998; and LC Paper No. CB(2)1116/98-99(01))
7. At the invitation of the Chairman, Secretary, Law Reform Commission (S/ LRC) briefed members on the background leading to, and the major issues dealt with in, the Consultation Paper. He said that the LRC's study was undertaken in response to a suggestion made by Mr Justice LITTON, who raised the concern about substantial court time being devoted to the hearing of objections to the admissibility of confession statements in criminal jury trials, i.e. the "voir dire" proceedings to determine the admissibility and voluntariness of confession statements in the absence of the jury, and the main trial to consider the question of evidential weight, once the confession statement was admitted. The LRC study sought to address the concern by re-examining the procedural aspects of determining the admissibility of confession statements at trial, and endeavoured to present a number of possible option for reform, as detailed in Chapter 3 of the Consultation Paper. The proposed options were as follows -
S/LRC advised that the LRC remained open-minded as to which of the options for reform should be pursued, and the purpose of the Consultation Paper was to provoke public debate on the preferred option. The LRC also welcomed thoughts on other means of improving the present procedure in jury trials for determining the admissibility of confession statements in criminal cases.
- Granting the court a discretion to direct that the question of admissibility be dealt with in the presence of the jury.
- Making the determination of the issue of admissibility of confession statements a matter for the jury in all cases.
- Granting the court a discretion to direct that the question of admissibility be dealt with in the presence of the jury, coupled with a lowering of the standard of proof for determining voluntariness to that of civil proceedings.
The Hong Kong Bar Association's views
8. At the invitation of the Chairman, Mr WONG Man-kit introduced the Bar Association's views on the Consultation Paper as set out in LC Paper No. CB(2)1116/98-99(01). The main comments were as follows -
9. To supplement the points made by Mr WONG Man-kit, Mr Christopher GROUNDS said that the overwhelming views of practitioners in the legal profession were adverse to the LRC's proposed options. He cautioned that one had to be very careful in comparing Hong Kong's legal and judicial system with that of other jurisdictions because each system was developing in its own particular way with its own particular features. In England, for example, where there was a far greater amount of jury trials for minor or trivial matters, most of the sentences meted out in criminal cases were small as compared with that in Hong Kong and the number of challenges against confession statements made by defendants was not significant. Furthermore, juries in England were drawn from a far wider spectrum of individuals who were generally less prepared to trust the police than their counterparts in Hong Kong. It was the view of many local legal practitioners in criminal cases that convictions based solely on the admissibility of so-called "voluntary confessions" had caused the greatest number of cases of miscarriage of justice. In his opinion, the Administration ought to take a cautious approach in its decision to implement any changes to the existing system. Mr GROUNDS added that in his ordinary daily encounter with practitioners in the legal profession, the view was that the system at present was best suited to Hong Kong's environment, and that to implement any of the options proposed in the Consultation Paper would be "trying to fix something that was not broken".
- The argument about duplication of evidence was limited since the purpose of a voir dire and that of the main trial differed by nature. The former determined voluntariness and admissibility of confession statements while the latter dealt with the general issues before the jury such as the truth or falsity, accuracy and reliability of the confessions.
- It would be a waste of the jury's time to hear confession statements which were subsequently ruled inadmissible. More importantly, this would prejudice the interests of the defendant because the jury would find it extremely difficult to put out of their minds the fact that the defendant had confessed.
- Under the present system, the jury would not be told of a confession statement which had been ruled inadmissible. Therefore, the concern about speculation by the jury was not justified. Furthermore, in the event of witnesses changing their evidence in the main trial from that in the voir dire, counsel would certainly cross-examine them as far as relevant and there was no question of the jury being deprived of knowledge of such inconsistencies.
- It was a fundamental principle in any civilised system of criminal jurisprudence that the judiciary must be accorded some means to guard against confessions or admissions obtained by improper methods, such as the police abusing their powers towards the accused persons under custody to force out or fabricate confessions. Therefore, it was of great importance that for a confession to be admitted as evidence for the jury's consideration, the trial judge must be satisfied beyond reasonable doubt in a voir dire that the confession was made voluntarily by the defendant.
- Time and cost must always be of a secondary concern when it came to the principle of justice. In fact, a lot of time and costs could be saved by effective pre-trial safeguards. For instance, as mentioned in the Consultation Paper, the more extensive use of video to record statements taken from the defendants nowadays had led to a substantial drop in the number of challenges to confession statements. In this regard, the Administration should revisit the proposals in the 1985 LRC Report on the same subject as to additional safeguards on proper procedure before trial.
- In conclusion, the Bar Association did not support any of the options presented in the Consultation Paper, and was in favour of maintaining the status quo of the existing procedure.
10. Mr Martin LEE shared the view of the Bar Association that the matter should be dealt with in the particular context of Hong Kong. He recalled that areas of concern had been identified in the former 1985 LRC study, among which the question of the prosecution relying heavily on confession statements had been discussed. It was then concluded that more effective safeguards should be introduced to better protect the interests of defendants. A similar proposal to let the judge and jury together to decide the admissibility of confession statements had been raised but it was subsequently rejected by the LRC. Mr LEE queried the rationale for making similar proposals now, particularly when there appeared to be no serious problems with the existing procedures.
11. Mr James TO opined that an essential first step to ensure voluntariness of confessions was to improve upon the wording of the caution read out by enforcement officers to suspects/witnesses prior to obtaining a statement from the latter. In his opinion, the phrase of was extremely confusing and might mislead the accused as to the consequences of failing to make a statement. He considered that the caution must set out in a clear and unambiguous way the right of the accused to choose to remain silent or to make a statement, and what the law enforcement authorities would do about the statement after it was taken.
12. Referring to Table 3 in the Introduction Chapter of the Consultation Paper, Mr James TO pointed out that in respect of the 542 persons charged in the High Court in 1997, a total of 515 interviews (including 169 videotaped and 346 non-videotaped) were conducted. Out of the videotaped interviews, 26 had been challenged and subsequently 7 of which (25%) were not admitted in evidence. Regarding non-videotaped interviews, 115 had been challenged and of which 43 (40%) were not admitted. Mr TO considered that the high rates of successful challenges clearly indicated a genuine cause of concern about whether justice to the accused had been adequately maintained. He added that because of the absence of an independent Complaints Against Police Office and an efficient monitoring mechanism to guard against abuse of power by law enforcement officers, the ultimate safeguard only vested in the court. He concluded that he was strongly opposed to any changes as proposed in the present LRC study, particularly the recommendation that the standard of proof for determining voluntariness of a confession statement should be lowered from the current criminal standard of beyond reasonable doubt to the civil standard of a balance of probabilities.
13. Mr James TO suggested that the LRC, in further pursuing its study, might do a comprehensive analysis of all the available confession statements to assess the degree of abuse of power, if any, in obtaining such confessions.
14. Regarding the proposed options for change, Mr Albert HO enquired whether consideration could be given to allowing the accused persons to request that the question of admissibility of confession statements be dealt with in the presence of the jury.
15. In response, S/LRC said that under the current judicial process, it was up to the defendant to decide whether or not he wanted to have a voir dire to determine the question of admissibility. In reality, in almost all of the cases where there was an objection to the admissibility of the confession, the defendant chose to have that heard in the absence of the jury. He advised that under the proposed options, it was contemplated that the court, in exercising a discretion to direct that the question of admissibility be decided in the presence of the jury, would take that decision in the light of submissions made by both the defendant and the prosecution.
16. Mrs Miriam LAU enquired whether there was a legislative model in another jurisdiction which was similar to option A set out in the Consultation Paper. S/LRC replied that option A basically reflected the approach favoured by Mr Justice LITTON, which was modelled on the "alternative procedure" adopted in the magistrate courts and the District Court which enabled the magistrates or the District Court judges to disregard a statement as proof of guilt should they determine that voluntariness had not been established. Mrs LAU doubted whether option A would born out to be a satisfactory approach as its applicability in criminal trials had not been tested.
17. In response to Mr Martin LEE's enquiry, S/LRC said that areas of law reform were usually referred by the Chief Justice (CJ) or the Secretary for Justice (SJ) to the LRC for consideration. In this particular instance, the request made by Mr Justice LITTON to examine a procedural reform in relation to admissibility of confession statements had been considered by the CJ and the SJ as appropriate to be taken on board by the LRC.
18. The Chairman pointed out that on the Legislative Council had on 13 January 1999 passed the Evidence (Amendment) Bill 1998 which abolished the rule against hearsay evidence in civil proceedings. In response to concerns raised by the Bills Committee, one of the Committee stage amendments moved by the Administration provided that where there was a jury trial and a party objected to the admission of a piece of hearsay evidence, the Court might determine the admissibility of the evidence at the beginning of the proceedings and in the absence of the jury. The Chairman considered that the LRC should take this point into consideration and decide whether it was justifiable to adopt a different approach in dealing with the question of admissibility of confession statements in criminal proceedings. She also called upon the LRC to take note of members' views expressed at this meeting in its future deliberations.
IV. Jurisdiction of the District Court and Small Claims Tribunal
(LC Paper Nos. CB(2)1067/98-99(02); 1097/98-99(01) and 1097/98-99(02))
19. Director of Administration (D of A) introduced the paper (LC Paper No. CB(2)1097/98-99(02)) which set out the proposals to increase the financial jurisdiction limits of the District Court and Small Claims Tribunal as follows -
- general civil jurisdiction : from $120,000 to $300,000;
(These proposals were the same as those proposed in the District Court (Amendment) Bill 1996).
- jurisdiction of recovery of land or jurisdiction where title of land was in question : from a rateable value of $100,000 to $500,000; and
- jurisdiction for "action for personal injuries" : $600,000.
Small Claims Tribunal
- from $15,000 to $35,000.
20. Members noted that a District Court (Amendment) Bill was introduced into the Legislative Council in November 1996 and subsequently lapsed. D of A informed members that the present proposed increases had taken into account inflation since the financial jurisdiction limits were last reviewed in 1988 and up to November 1998. The Administration was of the view that the present proposals would serve to maintain the real value of the jurisdictional limits.
21. D of A further advised that legislative amendments to the District Court Ordinance and the Small Claims Tribunal Ordinance respectively were being prepared to implement the above proposals. To some extent, the Ordinances involved the question of proceedings against the Crown or the Government which needed to be rationalised and modernised within the context of the adaptation of the Crown Proceedings Ordinance (Cap. 300) which had yet to be completed. The Administration wished to seek members' views on two possible options -
D of A advised that the Administration considered that it would be in the public interest, and consistent with its policy in respect of adaptation of laws, to adopt the first option. If this approach was taken, relevant legislative amendments to give effect to the above proposals together with measures to improve the operation of the District Court and the Small Claims Tribunal would be introduced into the Legislative Council in April 1999.
- To proceed now with the proposed increase to the financial jurisdiction limits but leave unamended the provisions relating to proceedings against the Crown or Government; or
- To defer the amendments until after Cap. 300 had been adapted.
Opinion of the legal profession
22. Members noted the submissions from the Hong Kong Bar Association and the Law Society of Hong Kong (LC Paper Nos. CB(2)1097/98-99(01) and CB(2)1067/98-99(02) respectively) previously made on the District Court (Amendment) Bill 1996.
The Hong Kong Bar Association
23. At the invitation of the Chairman to comment on the Administration's proposals, Mr Michael OZORIO presented the Bar Association's major views as set out below -
The Law Society of Hong Kong
- The Bar Association generally favoured an increase in the jurisdiction limits to reflect inflation since 1988 but considered that the increase should not be as substantial as to result in increased costs and delay in dealing with the increased number of cases tried in the Court.
- The Bar Association saw no good reason to differentiate between personal injuries cases and other non-personal injuries civil cases. For personal injuries cases, the High Court had developed a comprehensive Personal Injuries List and a dedicated case management system to speed up the processing of such cases. The District Court, however, did not have similar expertise and practice directions. The transfer of the bulk of personal injuries cases from the High Court to the District Court as a result of the increase in jurisdiction limit of the District Court might therefore adversely impact on costs and delays.
- The effect of the adaptation of the Crown Proceedings Ordinance on personal injuries cases where the Government was the defendant, such as traffic accident cases involving Government vehicles, would have to be clarified.
- The implementation of any increase in the District Court's jurisdiction necessitated the adoption of a comprehensive new set of procedural rules and a more sophisticated registry of the District Court to take on additional workload. At the moment, these arrangements had yet to be sorted out.
24. Mr Amirali NASIR presented the following views on behalf of the Law Society :
The Administration's response
- The Law Society supported the Administration's proposals to increase the financial limits of the District Court jurisdiction, as set out in paragraph 3(a) of LC Paper No. CB(2)1097/98-99(02), but maintained its previous submissions that the financial jurisdictional limits should be set at a higher level than those proposed by the Administration. It being in the interest of the public to do so.
- The Law Society reserved its comments on other issues until after the Bill had been presented.
25. The Administration responded to the points raised by the legal profession as follows -
26. Mrs Miriam LAU pointed out that there had been a lot of cases involving claims ranging between $35,000 and $100,000. With the jurisdiction limit of the Small Claims Tribunal being revised to $35,000, such cases would still have to be tried in the District Court. Because of the much higher legal costs involved in District Court proceedings, the parties might eventually give up their case. Mrs LAU enquired whether the limit could be revised to a higher level, say, up to $70,000.
- Amendment of the rules of procedure of the District Court were in progress and the Administration intended to introduce the new rules together with the proposed amendments to the District Court Ordinance and Small Claims Tribunal Ordinance so that the Legislative Council could study them as one package.
- The proposal to set a new limit for personal injuries cases at $600,000 was a modest one, taking into consideration that it already covered a large proportion of the less complicated cases where the parties involved wished to seek compensation in an expedient way. Cases of a more complex nature would continue to be handled in the higher court. It was roughly estimated that about half of the personal injuries cases involved claims of up to $600,000.
- The Administration had secured the necessary resources via the Resource Allocation Exercise to provide additional support to the District Court once the proposals were adopted. This would include the provision of more District Court judges and the creation of a legally qualified Registrar of the District Court.
27. D of A replied that the proposed new limit for the Small Claims Tribunal was already more than two times the existing level. It was expected that as a result of the revision, about 7 000 cases would be diverted from the District Court to the Small Claims Tribunal per year. She said that the Administration preferred to go by a more cautious approach to allow the system to adjust to the new level to ensure smooth operation. She added that the Administration was prepared to update the jurisdiction limits of various levels of courts more regularly in the future, say at two to three-yearly intervals, in the light of actual experience. Such an adjustment mechanism was allowed for under the relevant Ordinances, which provided that adjustment to the financial jurisdiction limits might be introduced by way of a resolution of the Legislative Council.
28. In supplementing, Assistant Judiciary Administrator said that the expected increase of 7 000 cases which would be diverted to the Small Claims Tribunal yearly was a conservative estimate. Some "hidden demand" was likely to emerge, i.e. cases which would otherwise not be filed but for the lower costs of bringing litigation in the Small Claims Tribunal. The actual increase in caseload might therefore be more significant. He added that in 1998, cases lodged with the Small Claims Tribunal had increased by 40% as compared with 1997.
29. D of A informed members that the Administration would proceed with the preparation of legislative amendments, and would introduce the relevant amendment Bills to the Legislative Council for scrutiny. The Chairman thanked the Administration for briefing members on the subject.
V. Staff proposal on creation of a Principal Government Counsel post in the Prosecutions Division of the Department of Justice
(LC Paper Nos. CB(2)1067/98-99(03) & (04))
30. At the invitation of the Chairman, Director of Public Prosecutions (DPP) briefed members on the background of and justifications for the proposal to create one permanent post of Principal Government Counsel (PGC) at DL3 in the Prosecutions Division of the Department of Justice (D of J). The holder of the proposed post was expected to head a new Sub-division to provide the necessary legal input and co-ordination for work arising from the Court of Final Appeal (CFA), and to develop expertise and advocacy of the highest standard to conduct criminal proceedings in the CFA.
31. DPP informed the meeting that since the reunification on 1 July 1997, the CFA had been used to a far greater extent than was the Privy Council before the handover. Between July 1997 and 31 December 1998, no fewer than 64 CFA and CFA-related cases were heard in criminal matters, and another 14 cases were pending. It was expected that each year, on average, the D of J would need to handle 35 CFA criminal cases and 25 applications for certificates to the High Court. Given the policy objective which committed the D of J to handle at least 90% of the CFA and CFA-related cases, the amount of the work generated had placed a massive strain on the limited resources of the Prosecutions Division. At present, the Division was supported by 3 PGCs, each of whom was responsible for supervising several of the 16 sections within the Division. The last PGC post was created in 1983-84. Since then, the Division's duties and workload had changed and expanded and the Division's establishment had increased by 123%. In terms of Deputy Principal Government Counsel posts, the number had increased by 129%. In order to cope with the new challenges arising from the burgeoning work of the CFA in criminal cases and to accord a proper level of representation for the HKSAR Government in these criminal proceedings, it was considered necessary to revamp the organisational structure of the Prosecutions Division and to create a new Sub-division headed by a PGC to deal with CFA cases. A detailed account of the expanded scope and level of responsibility at PGC level as well as the main duties and responsibilities of the proposed PGC was provided in the paper submitted by the Administration (LC Paper No. CB(2)1067/98-99(04)).
32. Mrs Miriam LAU doubted whether, with the sole creation of the new PGC post, the expected increase in workload relating to CFA and CFA-related cases could be handled by the D of J without having to brief out cases to the private counsel. In response, DPP explained that the creation of the PGC post was to fulfil public expectation. The Administration believed that the additional PGC would provide for the flexibility and capability within the Prosecutions Division to achieve its avowed objective to the appropriate standard. He clarified that for those complex cases which had been prosecuted by counsel on fiat and which went on appeal to the CFA, the original counsel would be retained and continue to conduct proceedings till the conclusion of the appeal. He further explained that it was not intended that the new PGC would handle the bulk of the cases himself. Instead, an essential part of the role of the PGC was to provide the necessary input to ensure that cases were adequately prepared and that counsel were properly supervised and thoroughly trained to the highest standard to conduct proceedings in criminal matters in the CFA.
33. The Chairman enquired of the threshold tests for appeals to the CFA. DPP said that the tests were, firstly, matters of great and general importance; and secondly, matters involving grave and substantial injustice. In relation to the first limb, it was necessary to apply for a certificate to be granted by the High Court, and irrespective of whether or not a certificate was issued, the party would have to apply for leave to appeal at the CFA. As regards the second category, the party could directly file the appeal in the CFA.
34. The Chairman asked whether the D of J's commitment to handle 90% of CFA cases was consistent with the view expressed by the Chief Justice that the Government should brief out legal work to a wide spectrum of expertise in the private profession, which might include overseas advocates conducting proceedings in the CFA. DPP replied that normally it would not be necessary to call on overseas counsel to appear on behalf of the Government as far as criminal cases were concerned. Perhaps the Chief Justice had in mind expertise in such areas as constitutional and maritime law, and in which the appropriate expertise might not be available locally. SADPP supplemented that before and after the reunification, advocates within the D of J had conducted criminal proceedings in the highest level courts, and had demonstrated a capacity to conduct cases before the Privy Council. Subsequent to the commencement of the CFA, the arguments within the confines of the criminal law were within the parameters of both the private Bar and the D of J, and did not require the introduction of overseas expertise.
35. In reply to Mr Albert HO, the Administration said that better accessibility to the public was an obvious factor contributing to the upsurge in the number of CFA and CFA-related cases. Previously, the need to go all the way to the Privy Council in England and to hire overseas counsel there had deterred many people from taking their cases to the highest level court. Now that the CFA was "there on the doorstep", it would be a lot cheaper, and it was more accessible. The significant increase in the number of CFA criminal cases experienced in 1998 represented a vote of confidence in the CFA by people in the HKSAR.
36. Mrs Miriam LAU noted from the paper that the estimated briefing out costs forecast to be saved was $2.55 million while the additional full annual average costs arising from the staffing proposals well exceeded $3 million. She wondered whether all the additional costs could be met through saving in briefing out expenses.
37. In response, Deputy Director (Administration) advised that the illustration set out in the paper reflected the approach adopted by the Finance Bureau in preparing staff establishment proposals, using the additional notional annual salary at MIDPOINT in identifying savings and the annual average staff costs arising from the staffing proposal in question. Furthermore, the saving of $2.55 million was a very conservative figure in that it was expected to be more or less the minimum amount that could be saved through the creation of the proposed PGC post.
38. Mr James TO asked whether the holder of the proposed PGC post would be appointed on permanent and pensionable terms or on contract terms. The Administration advised that the normal procedure for appointment to a promotion rank at DL3 in a Department in the legal/judicial group was to call for internal applications from within the legal/judicial group of Departments. The actual terms of appointment would depend on the then prevailing rules governing civil service appointments.
39. The Chairman opined that for a matter as important as criminal appeals in the CFA, workload and economy considerations should not compromise quality. Aspirations to develop expertise should be given paramount importance. She called upon the Administration to heed to members' views expressed at the meeting before finalising its proposals for the consideration of the Establishment Subcommittee.
40. There being no other business, the meeting ended at 6:45 pm.
Legislative Council Secretariat
22 March 1999