LC Paper No. CB(2)223/99-00
(These minutes have been
seen by the Administration)
Ref : CB2/PL/HA
LegCo Panel on Home Affairs
Minutes of meeting
held on Tuesday, 12 October 1999 at 2:30 pm
in the Chamber of the Legislative Council Building
Members Present :
Hon CHOY So-yuk (Chairman)
Hon Albert HO Chun-yan (Deputy Chairman)
Hon Cyd HO Sau-lan
Hon Edward HO Sing-tin, JP
Hon LEE Wing-tat
Hon James TO Kun-sun
Hon Gary CHENG Kai-nam
Hon Emily LAU Wai-hing, JP
Hon Timothy FOK Tsun-ting, JP
Members Absent :
Hon MA Fung-kwok
Hon Ambrose CHEUNG Wing-sum, JP
Hon Christine LOH
Hon Andrew WONG Wang-fat, JP
Hon LAU Wong-fat, GBS, JP
Hon Andrew CHENG Kar-foo
Member Attending :
Hon Ronald ARCULLI, JP
Public Officers Attending :
Attendance by Invitation :
- Mr Leo KWAN
- Deputy Secretary for Home Affairs
- Mr NG Hon-wah
- Principal Assistant Secretary for Home Affairs 2
- Mr John DEAN
- Principal Assistant Secretary for Home Affairs 7
- Miss WONG Yuet-wah
- Assistant Secretary for Home Affairs
- Mr Timothy TONG
- Deputy Secretary for Security
- Miss Cathy CHU
- Principal Assistant Secretary for Security (C)
- Mr David WONG
- Principal Assistant Secretary for Security (B)
- Miss Eliza YAU
- Principal Assistant Secretary for Security (E)
- Mr Andy CHAN
- Assistant Secretary for Security
- Mr Bassanio SO
- Principal Assistant Secretary for Constitutional Affairs
- Mr P K LEUNG
- Principal Immigration Officer
- Mrs Jenny CHAN
- Chief Labour Officer (Labour Department)
- Mr R C ALLCOCK
- Solicitor-General (Acting)
- Mr Stephen WONG Kai-yi
- Deputy Solicitor-General
- Mr Anthony WU
- Deputy Law Officer (Civil Law)
- Ms Roxana CHENG
- Senior Assistant Solicitor-General
Clerk in Attendance :
- Equal Opportunities Commission
- Miss Alexandra PAPADOPOULOS
- Legal Adviser
- Ms Gladys LI, SC
- Mr WONG Hin-lee
- Hong Kong Human Rights Monitor
- Mr LAW Yuk-kai
Staff in Attendance :
- Mrs Justina LAM
- Assistant Secretary General 2
I. Opening remark
- Miss Flora TAI
- Senior Assistant Secretary (2) 2
The Chairman welcomed representatives of the Administration to the special meeting to continue discussion on the Initial Report of the Hong Kong Special Administrative Region (HKSAR) of the People's Republic of China (PRC) in the light of the International Covenant on Civil and Political Rights (ICCPR). She also welcomed representatives of the Equal Opportunities Commission, Justice and Hong Kong Human Rights Monitor.
II. Follow-up discussion of the HKSAR's Report on ICCPR
[Paper Nos. CB(2)2854/98-9(01), CB(2)38/99-00(01) and CB(2)66/99-00(01)]
2. The Chairman said that the Administration had provided an information paper on the removal of LUI Kwan-chung and CHAN Fung [Paper No. CB(2)38/99-00(01)] and a written response to four other submissions [Paper No. CB(2)66/99-00(01)]. Members noted that the Administration had not addressed the views of the Hong Kong Human Rights Monitor in the written response but would do so in its further submission to the United Nations Human Rights Committee.
Removal of LUI Kwan-chung and CHAN Fung
3. In response to members' enquiries about the policy and practice regarding the repatriation of illegal immigrants, Deputy Secretary for Security (DS(S)) said that he would like to explain the following principles to members -
- an application for legal aid made by an illegal immigrant did not constitute sufficient ground for a scheduled repatriation to be suspended;
- Immigration Department (ImmD) would notify the Legal Aid Department (LAD) of an impending repatriation action if it knew that the illegal immigrant concerned had made an application for legal aid;
- repatriation action would be temporaily withheld if ImmD knew that the illegal immigrant's application for legal aid had been granted; and
- repatriation action would be suspended if ImmD knew that court proceedings on an application for injunction against the removal order had commenced.
4. Referring to paragraph 10 of the Administration's paper [Paper No. CB(2)38/99-00(01)], Mr Ronald ARCULLI sought clarification on the assurance given in June 1997 by the then Attorney General. DS(S) responded that when the Supreme Court (Amendment) Bill 1997 resumed Second Reading debate at the Council meeting on 25 June 1997, the then Attorney General assured Members that "as a matter of practice, once an application of habeas corpus has been made and solicitors are acting for the applicant, the applicant will not be removed from the jurisdiction without prior notification to the solicitors". DS(S) said that in the case in question, the circumstances were not the same as were described by the then Attorney General in 1997, in that the case involved application for injunction and judicial review and not habeas corpus and by the morning of 21 July, no solicitors were assigned to work on the case. Nevertheless, ImmD had acted in accordance with the spirit of the 1997 assurance and LAD was notified of the impending removal of the two illegal immigrants. In response to the Hon ARCULLI's question, DS(S) said in the present case ImmD had gone beyond the 1997 assurance by notifying LAD although not all qualifying conditions were met.
5. DS(S) stressed that ImmD was empowered by legislation to repatriate an illegal immigrant notwithstanding the fact that the illegal immigrant had applied for legal aid and his application had been granted. It was only by normal practice that ImmD would suspend a repatriation action when application for legal aid had been granted. However, ImmD would not give any assurance not to repatriate the illegal immigrant concerned as this would send a wrong message to those who intended to enter Hong Kong illegally.
6. Deputy Chairman welcomed the Administration's clarification on the present policy and practices in repatriating illegal immigrants. He suggested that the Administration should provide a paper setting out the four principles that DS(S) had explained in paragraph 3 above. DS(S) responded that the minutes of the meeting would serve as a record for members' reference. He reiterated that these four principles constituted normal practices only. They were not legally binding and were subject to change. Deputy Chairman stressed that Members were very concerned about the case because what was at issue was whether the law enforcement agencies had any respect for the courts and judicial proceedings. He requested that should there be any change in the policy and practices on the repatriation of illegal immigrants, the Administration should consult the relevant Panel of the Legislative Council and also give reasonable notice to LAD, the Hong Kong Bar Association and the Law Society of Hong Kong.
7. Mr James TO asked whether the Administration, in hindsight, considered ImmD's action in the repatriation of LUI Kwan-chung and CHAN Fung to be proper. DS(S) responded that although Hong Kong was under severe threat of an influx of illegal immigrants in July 1999, ImmD had not expedited the repatriation of illegal immigrants. He explained that routine repatriation of illegal immigrants was scheduled to take place around 1500 hours every day and the two illegal immigrants were repatriated at 1503 hours on 21 July 1999. He added that the case in question was an unfortunate and isolated incident. Whatever version one might have heard about the case concerning the specific times when messages were conveyed, the misunderstanding was only a matter of a few minutes. He hoped that government departments and other organizations concerned would work together to prevent such incidents from happening again. He informed members that ImmD had already approached LAD in this regard.
8. Mr James TO expressed concern that the incident had affected the morale of LAD. He considered it necessary to investigate the incident should the Administration maintain that there was nothing wrong. Mr TO added that he felt better after listening to the Administration's explanation. He requested that if the illegal immigrant concerned had a legal representative, reasonable prior notice of an impending repatriation should be given to his lawyer to enable him to take necessary action. Miss HO Sau-lan concurred with Mr TO. She added that some lawyers in private practice were assisting right of abode claimants on a voluntary basis.
9. Referring to the sequence of events as set out in paragraph 4 of the Administration's paper, Miss Emily LAU said that it seemed unreasonable on the part of ImmD to carry out the removal order as LAD had already requested deferral of repatriation action pending urgent consideration of issuance of legal aid certificate for application for judicial review. She queried why ImmD had not waited when LAD's decision would be available within a short period of time. Mr James TO also asked whether adequate time had been given to LAD for an application for habeas corpus to be made. DS(S) reiterated that application for legal aid did not constitute sufficient ground to suspend a repatriation action. In line with normal practice, LAD was informed of the impending repatriation of the two illegal immigrants. DS(S) added that there would be a period of time between removing the illegal immigrants from the Victoria Immigration Centre and handling them over to the Mainland authorities via San Uk Ling Clearance Centre at the border. If during that time, ImmD received information from LAD that legal aid had been granted, repatriation action would be suspended. DS(S) stressed that application for legal aid was not a defence against repatriation, otherwise immigration control could not be enforced.
10. Deputy Chairman said that from his experience, LAD always acted very cautiously. He believed that LAD would not request a government department to defer enforcement action against a legal aid applicant unless there was a very good chance that legal aid would be granted, and it proved to be correct in the present case. Not only was legal aid approved, the court also granted an injunction order against the removal order. He hoped that in similar situations in future, ImmD would exercise discretion and consider deferring repatriation action pending LAD's decision. DS(S) noted the Deputy Chairman's suggestion. Deputy Chairman also asked representatives of Justice through the Chairman whether proceedings would be adjourned upon making of application for legal aid. Representative of Justice explained that according to the Legal Aid Regulations, the period of adjournment was 42 days.
11. Miss Emily LAU pointed out that according to a press report of 26 August 1999, the Director of Immigration was aware that an application for an injunction against the removal order was going to be made to the court on the day of repatriation. Miss LAU sought confirmation from the Administration on whether the report was accurate. DS(S) said that it was not appropriate for the Administration to comment on a news report. Principal Immigration Officer responded that the Panel meeting was not an appropriate forum to discuss the details of a specific case. Miss LAU expressed dissatisfaction with the Administration's reply. She said that members would need to know more about the case to identify where the problems laid so that similar incidents could be prevented from happening again. DS(S) responded that ImmD had repatriated about 35000 illegal immigrants in accordance with section 18(1)(a) of the Immigration Ordinance (Cap. 115) since mid 1997. The case on 21 July 1999 was the only time where the arrangement was found to be unsatisfactory.
12. Referring to the judgment of the Court of Final Appeal delivered on 29 January 1999 on the two test cases, Miss HO Sau-lan pointed out that in view of the large number of legal aid applications in July 1999, LAD had reached a verbal agreement with ImmD that the right of abode claimants in cases similar to the previous two test cases would not be repatriated until the related court proceedings had been completed. Miss HO asked why ImmD had not adhered to the verbal agreement in the case of LUI Kwan-chung and CHAN Fung. DS(S) responded that Government had given an assurance to the court in July 1999 that a specific group of 4 393 right of abode claimants would not be repatriated until the related court proceedings had been completed. However, the two illegal immigrants did not belong to this group of 4 393 right of abode claimants.
13. The Chairman referred to the fact that the two illegal immigrants in the repatriation case had admitted that legal aid applications had been filed on their behalf before their arrival in Hong Kong. She asked whether it had affected ImmD's decision to repatriate these two illegal immigrants. The Chairman also asked the Administration to explain why legal aid applications could be filed on behalf of these two illegal immigrants before their arrival and whether the Administration was aware of other similar cases. DS(S) replied that ImmD repatriated these two illegal immigrants in accordance with section 18(1)(a) of the Immigration Ordinance. The question as to whether applications for legal aid were made in their absence and who made these applications were outside ImmD's jurisdiction. Deputy Secretary for Home Affairs (DS(HA)) said that application for legal aid also fell outside the purview of the Home Affairs Bureau (HAB). He undertook to relay the Chairman's questions to LAD for a written response.
(Post-meeting note : The Administration's response has been issued vide LC Paper No. CB(2)190/99-00.)
Warrant to search the premises of the Macau Jockey Club
14. Mr James TO referred to the case where a Police Superintendent signed a warrant to search the premises of the Macau Jockey Club after the Police failed in its application to obtain a search warrant from a Magistrate. Mr TO queried whether the action, though lawful, was in compliance with the spirit of the law as the court had made a judgment not to issue the search warrant.
15. Principal Assistant Secretary for Security (E) (PAS(S)(E)) said that in response to earlier enquiries from the media, the Secretary for Security had already explained that a Police Superintendent was empowered under section 23 of the Gambling Ordinance (Cap. 148) to issue a warrant to search any premises if there was reasonable suspicion that the premises were gambling establishments. Legal advice obtained from the Department of Justice confirmed that the action was lawful as the premises in question were suspected to be gambling establishments based on information available to and complaints received by the Police at that time. She added that the Police had initially applied for a warrant from a Magistrate to search the premises of the Macau Jockey Club under the Police Force Ordinance (Cap. 232). The search warrant issued subsequently by a Police Superintendent was under the Gambling Ordinance.
16. Mr James TO said that as far as he knew, the courts rarely refused to issue a search warrant unless the grounds to support the application were unusually weak. Mr TO sought the Department of Justice's view on whether the action of the Police in the case was in compliance with the spirit of the rule of law.
|17. In response, Acting Solicitor-General (Ag SG) informed members that there were two hearings before the Magistrate on the application for a search warrant in the case in question. The application was initially made under the Police Force Ordinance which provided a general power to issue a search warrant in respect of any suspected offence. The Magistrate at the first hearing drew attention to the fact that the Gambling Ordinance contained a specific power under which a Superintendent could authorize a search in respect of suspected gambling offences, and contained presumptions concerning gambling offences. The Magistrate therefore queried whether it was appropriate to issue the search warrant under the Police Force Ordinance. As regards the second hearing, the Magistrate inquired whether the Police would consider using the power under the Gambling Ordinance. Ag SG stressed that the Magistrate was not insisting that no search should be conducted in the case in question. The Magistrate only considered that a general authorization under the Police Force Ordinance was not an appropriate mechanism in dealing with gambling activities, having regard to the power under the Gambling Ordinance. At Mr TO's request, Ag SG said that he would try to provide a record of the Magistrate's note in adjudicating the application for a warrant to search the premises of the Macau Jockey Club for members' reference.
(Post-meeting note : The Administration's response has been issued vide LC Paper No. CB(2)190/99-00.)
Review of reservations and declarations
18. Referring to the minutes of the Panel meeting on 21 January 1999 [LC Paper No. CB(2)2739/98-99], Miss Emily LAU said that the Deputy Solicitor General had advised at the meeting that the Administration could not give an immediate answer as to whether the reservation to Article 25(b) of the ICCPR would remain as long as direct election was not held because the review on the existing reservations and declarations under the ICCPR had not yet been completed. Miss LAU asked about the progress of the review. Principal Assistant Secretary for Home Affairs 7 (PAS(HA)7) replied that the review which was coordinated by HAB was taking time because the issues involved were complex. He referred members to paragraph 74 of the Administration's paper [Paper No. CB(2)2854/98-99(01)] prepared for the meeting on 23 September and said that the review had not been concluded and the Government had no intention of withdrawing the reservation to Article 25(b).
19. Miss Emily LAU queried how the Administration could conclude that the reservation to Article 25(b) would not be withdrawn when the review had not yet been completed. She said that the Administration would have a lot of explaining to do to justify its conclusion to the United Nations Human Rights Committee at the forthcoming hearing. PAS(HA)7 reiterated that HAB was coordinating the review of the declarations and reservations under the ICCPR. A number of Articles were still under consideration, but an early conclusion had been reached on the reservation to Article 25(b) that it should be retained. Miss LAU asked the Administration to explain the factors it had taken into consideration in concluding that the reservation to Article 25(b) should be retained. Principal Assistant Secretary for Constitutional Affairs (PAS(CA)) responded that the reservation to Article 25(b) had already existed at the time of ratification of the ICCPR by the United Kingdom of Britain. The Administration did not consider it appropriate to remove the reservation.
20. Miss Emily LAU said that the timetable and the method for the formation of LegCo prescribed in the Basic Law were different from the provisions of the ICCPR. She asked whether the Basic Law prevailed over the ICCPR. Ag SG replied that given the reservation to Article 25(b) of the ICCPR which was to be retained, there was no incompatibility between the provisions of the Basic Law and the obligations under the ICCPR.
21. Miss Emily LAU further said that the Government had used the Basic Law as an "excuse" for refusing to implement its obligation under Article 25 of the ICCPR which would require the establishment of LegCo and the selection of the Chief Executive by direct election. She recalled that the United Nations Human Rights Committee had made strong criticisms on the electoral system in Hong Kong in its Concluding Observations (CCPR/C/79/Add. 57 of 3 November 1995) when it considered the fourth periodic report of the United Kingdom of Great Britain and Northern Ireland relating to Hong Kong. She added that the Committee had already requested for the withdrawal of the reservation to Article 25(b) then. In response, PAS(HA)7 referred members to paragraph 35 of the supplementary report by the United Kingdom of Great Britain and Northern Ireland in respect of Hong Kong under the ICCPR in which the United Kingdom and Hong Kong Governments had maintained the view that the electoral system in Hong Kong in respect of elections to LegCo was appropriate and justifiable in the prevailing circumstances and gave rise to no incompatibility with any of the provisions of the ICCPR.
22. Miss Emily LAU said that the situation had changed with the promulgation of the Basic Law. PAS(HA)7 referred members to paragraph 461(a) in Part II of the ICCPR Report and said that the HKSAR Government maintained the view that the present electoral system was not incompatibile with any of the provisions of the ICCPR as applied to Hong Kong. Miss LAU said that the Administration's position amounted to regarding provisions in the ICCPR as irrelevant. It would be meaningless for Government's delegation to attend the coming UN hearing if it kept on repeating its disagreement with the views of the United Nations Human Rights Committee. PAS(HA)7 said that the hearings were dialogues, not a judicial process. Agreement to disagree was a fundamental characteristic of all civilised discussion and debate.
Development of democratic institutions
23. Referring to paragraph 58 of the Administration's paper prepared for the meeting on 23 September [Paper No. CB(2)2854/98-99(01)], Miss Emily LAU asked whether a referendum would be held in 2007 to decide when the conditions were ripe for electing all LegCo Members by universal suffrage. PAS(CA) said that the Administration had yet to come up with the method for the community to decide on the matter. Miss LAU further asked what evidence there was to prove that the conditions were not yet ripe at the present stage for electing all LegCo Members by universal suffrage and when the "informed discussions" on the matter would commence.
24. PAS(CA) responded that the Basic Law had laid down the blue print for the development of representative government in Hong Kong i.e. a steady increase in the number of directly-elected seats in LegCo with the ultimate aim of electing all LegCo Members by universal suffrage. At present, it was the Administration's objective to increase community's awareness of, and participation in, elections. The Administration had put in continuous efforts in encouraging more people to take part in the coming District Councils and LegCo elections. With enhanced participation in elections, the Administration hoped that the community would be more prepared for a thorough and informed discussion on the matter in future.
25. Miss Emily LAU expressed dissatisfaction that the Administration failed to answer her question. PAS(CA) responded that there had been discussions at different forums on whether the conditions were ripe for electing all LegCo Members by universal suffrage. For instance, discussions on the pace of the development of representative government had taken place when the Legislative Council (Amendment) Bill 1999 was scrutinized.
26. Miss HO Sau-lan said that when the Legislative Council (Amendment) Bill 1999 was scrutinized, the requirements set out in the Basic Law on the formation of LegCo seemed to be the only condition for considering when all LegCo Members would be elected by universal suffrage. She asked whether the Administration could spell out other conditions. PAS(CA) responded that the Secretary for Constitutional Affairs had explained the Administration's views on the development of representative institutions in Hong Kong on many occasions. The Constitutional Affairs Bureau (CAB) had done a lot of work in preparation for the ultimate aim of election of all LegCo Members by universal suffrage. Apart from publicity efforts to enhance the community's awareness of, and participation in, elections, CAB would commence a study of the government systems of various places in the world in 2000 with a view to developing a system which best suited Hong Kong's long-term interests. PAS(CA) pointed out that the Administration would need to study, inter alia, the implications on the operation of the Government and co-ordination between the Executive and Legislature, if all 60 LegCo Members were to be elected by universal suffrage. The Administration also needed to have regard to the aspirations of the community and confidence of the investors.
27. Miss HO Sau-lan said that it was the first time she heard a government official pointing out that confidence of the investors was one of the conditions for considering when all LegCo Members were to be elected by universal suffrage. She requested the Administration to set out these conditions in writing to facilitate future discussion. PAS(CA) replied that what he had just said had all along been the Administration's position on the matter which could be found in previous papers prepared by the Administration. At the Chairman's request, PAS(CA) agreed to obtain the relevant papers for members' reference.
(Post-meeting note : The Administration's response has been issued vide LC Paper No. CB(2)165/99-00.)
Abolition of the Provisional Municipal Councils
28. Deputy Chairman said that not only had Government not made any progress in the enhancement of the right to participate in public life under Article 25 of the ICCPR, Government's proposal to dissolve the two Provisional Municipal Councils (PMCs) deprived the public of an important right to participate in election. He pointed out that the PMCs were bodies of public mandate, which comprised more elected members than LegCo; possessed policy-making powers in municipal services with financial autonomy; and supported by executive departments to implement their policies. Election of members to the Urban Council dated back to over one hundred years ago and the number of eligible voters of the elections of the two municipal councils in 1995 was more than two million people. The Government's proposal was a retrograde step of democratic development as the powers of the PMCs after their abolition would be centralized in the Government, instead of transferring to elected bodies. He asked whether the proposal contravened Article 25.
29. PAS(CA) responded that the Government's views had been set out in paragraph 62 of the Administration's earlier paper [Paper No. CB(2)2854/98-99(01)]. He added that according to Article 25 of the ICCPR, every citizen should have the right and the opportunity to take part in the conduct of public affairs directly or through freely chosen representatives. However, it had not prescribed the form and powers of institution to be established for the conduct of public affairs. He pointed out that after the abolition of PMCs, the public could participate in the conduct of public affairs directly or indirectly through LegCo, the District Councils, the proposed Food and Environment Bureau, the proposed Culture and Heritage Commission and the proposed Advisory Council on Food and Environmental Hygiene. Deputy Chairman reiterated that what was at issue was the public's right to participate in elections. He could not agree with the Administration's argument that the Government's proposal was not in contravention of Article 25 of the ICCPR as there was no corresponding progress in the democratization of LegCo and the District Councils, and the proposed Culture and Heritage Commission and the proposed Advisory Council on Food and Environmental Hygiene were not elected bodies.
30. Deputy Chairman further pointed out that Government's proposal to abolish the two PMCs was not covered in the Report. Paragraphs 472 and 473 in Part II of the Report therefore presented a wrong impression that the review of district organizations focused only on structure, functions, composition and financial arrangements of the Municipal Councils, and misled the United Nations Human Rights Commission that elections for the district organizations including the Municipal Councils would be held in late-1999. Deputy Chairman asked whether the Administration would explain in its further submission to the United Nations Human Rights Commission the Government's proposal which would deprive over two million people of their right to participate in direct elections. PAS(HA)7 responded that the Government's proposal to dissolve PMCs would be covered in the further submission.
Freedom of religion
31. Mr James TO said that the Administration had argued in paragraph 31 of the second paper [Paper No. CB(2)66/99-00(01)] that although the Pope was unable to visit Hong Kong, the religious freedom of Roman Catholics was in no way restricted. He asked whether it was the Central People's Government or the HKSAR Government which made the decision to deny Roman Catholics the opportunity of a visit by the Pope; and if it was a Central People's Government's decision, whether the HKSAR had given any advice. Mr TO further asked whether HAB, as the policy bureau for religious matters, understood how much it meant to a Roman Catholic to receive blessings from the Pope in person.
32. DS(HA) responded that freedom of religion was not an issue in the question of whether the Pope could visit Hong Kong or not. What was at issue was the Pope's position as a head of state. PAS(HA)7 stressed that HAB was aware of the significance of a visit by the Pope to Roman Catholics in Hong Kong. However, the Pope's visit was essentially a matter of foreign affairs and the authority responsible for the foreign affairs relating to the HKSAR was clearly stated in the Basic Law.
|33. Mr James TO found the Administration's response evasive and expressed strong dissatisfaction. He queried why the Administration was unable to give a direct answer to his questions. DS(HA) said that he would relay Mr TO's questions to the appropriate policy bureau. Mr TO requested that the answer should be made available before the UN hearing. DS(HA) said that the Administration would provide the answer as soon as possible.
(Post-meeting note : The Administration's response has been issued vide LC Paper No. CB(2)190/99-00.)
Decision not to prosecute cases under the Personal Data (Privacy) Ordinance
34. Miss Emily LAU referred to paragraph 310 in Part II of the ICCPR Report which stated that the Privacy Commissioner for Personal Data had referred eight cases concerning alleged breaches of the Personal Data (Privacy) Ordinance (Cap.486) for the consideration of the Director of Public Prosecutions (DPP). She asked what constituted the reasons for not initiating prosecution in the case of the New China News Agency on the ground of public interest. Ag SG replied that DPP had decided not to initiate prosecutions in these eight cases in accordance with the established practice i.e. having regard to established prosecution policy and taking into account the sufficiency of evidence and the public interest. He said that as Members should be aware, it was not the Department of Justice's policy to give details on reasons for non-prosecution because it might open the issue for a public trial where the suspect would not be able to defend himeself using the protections under the law. As the Administration had explained on numerous occasions, no favouritism was practised in the case. The New China News Agency received the same treatment as the other people who were suspected of committing an offence under the Ordinance.
35. Miss Emily LAU said that it was unacceptable for DPP to simply use public interest to justify his decision not to prosecute and refuse to give more clarifications. Ag SG responded that it was the common policy in major jurisdictions not to give detailed explanations as to why a prosecution decision was made. He added that the Department of Justice's explanations given in the case of Ms Sally AW had attracted criticisms that the department had gone beyond the normal policy. Miss LAU reiterated that explanation should be given as to how the public interest was being served in the case of the New China News Agency as well as in the other seven cases. Ag SG said that he had nothing further to add.
Freedom of expression
36. Miss Emily LAU referred to the explanation given by the Secretary for Home Affairs (SHA) at the special meeting on 23 September 1999 that the Government had only commented that it was inappropriate for Mr CHENG An-kuo to put forward views about the state of relationship between Taiwan and PRC publicly in Hong Kong and that the Government's comment did not in any way infringe on the freedom of expression. As Article 19 of the ICCPR provided for the right of all persons to hold opinions without any interference, Miss LAU asked whether the Administration still held the view that its comment had not contravened Article 19. DS(HA) said that as explained by SHA, Government's comment was that Mr CHENG's remarks were inappropriate given his special position in Hong Kong. This had nothing to do with freedom of expression. Miss LAU said that Article 19 had guaranteed an individual's freedom of expression irrespective of one's position. She pointed out that Mr CHENG An-kuo had declined to further express his views on the relationship between Taiwan and PRC after the Government's comment. It was obvious that his freedom of expression had been infringed upon. She requested that the Administration should include the incident in its further submission to the United Nations Human Rights Commission.
Law Reform Commission Report on Arrest
37. Mr James TO informed members that the Law Reform Commission (LRC) had published a Report on Arrest in 1992 which recommended that a number of provisions in the United Kingdom's Police and Criminal Evidence Act 1984 be adopted in Hong Kong. He asked the Administration about the progress in implementing the recommendations. PAS(S)E responded that the LRC's Report contained a number of recommendations, one-third of which had already been implemented. As regards the remainder, legislative proposals which empowered the Police to take intimate and non-intimate samples from a suspect without the suspect's consent had been introduced into LegCo in the last session, and that legislative proposals relating to power of arrest were in the drafting stage. Mr James TO queried whether the Administration had been selective in implementating the LRC's recommendations and gave priority to those recommendations which sought to increase the powers of law enforcement agencies. Ag SG pointed out that as a result of the LRC's recommendations, legislative amendments had been made in 1993 to restrict the police's powers of search and arrest in order that they be consistent with the Bill of Rights Ordinance.
Further submission to the United Nations Human Rights Committee
38. PAS(HA)7 said that the Administration would adapt and expand the two papers [Paper Nos. CB(2)2854/98-99(01) and CB(2)66/99-00(01)] to cover the issues raised in the HKHRM's submission and make a further submission to the United Nations Human Rights Commission. The Administration would table the further submission at the hearing and also give non-governmental organizations (NGOs) attending the hearing copies of that submission. The Chairman asked whether the Administration would forward a copy of the further submission to the Panel when it was tabled at the hearing. PAS(HA)7 said that he could not undertake to do so, pointing out that the United Nations Human Rights Commission should receive the submission first. He added that NGOs and LegCo Members attending the hearing would be given copies. Miss HO Sau-lan said that she was resentful of PAS(HA)7's response. She pointed out that representatives of the NGOs and the LegCo Members attending the hearing on personal basis had no obligation to disseminate information for the Government. PAS(HA)7 said that the Administration had no intention of asking them to do so.
|39. Miss Emily LAU and Miss HO Sau-lan stressed that NGOs and LegCo Members attending the hearing should be given ample time to read the further submission before attending the hearing. Miss HO criticized that the Administration's attitude reflected its intention to confine the discussion on the ICCPR Report to the UN hearing in Geneva. The Chairman also said that she failed to see why the Administration refused to give a copy of its submission to the United Nations Human Rights Committee to the Panel. Responding to members' views, DS(HA) said that officers concerned had done their utmost to address in the further submission all the issues raised in the written submissions which had been received from time to time. The Administration would do their best to complete the further submission before the hearing and give a copy of the further submission to LegCo when it was submitted to the United Nations Human Rights Commission.
III. Any other business
40. The Chairman reminded members that the Panel would hold another meeting on the same day at 5:45 pm to receive a briefing by the Secretary for Home Affairs on the Chief Executive's Policy Address 1999.
41. The meeting ended at 4:30 pm.
Legislative Council Secretariat
27 October 1999