LEGCO Paper No. CB(2) 2156/95-96
(The Minutes have been seen by the Administration)
Ref : CB2/BC/27/95
Bills Committee on the
Evidence (Amendment) Bill 1996
Minutes of Meeting
held on Thursday, 27 June 1996 at 10:45 a.m.
in Conference Room A of the Legislative Council Building
Members Present :
Hon Eric LI Ka-cheung, OBE, JP (Chairman)
Hon Ronald ARCULLI, OBE, JP
Hon Ambrose LAU Hon-chuen, JP
Hon Bruce LIU Sing-lee
Hon Margaret NG
Members Absent :
Hon IP Kwok-him ] other commitments
Public Officer Attending :
- Mr Ian WINGFIELD
- Crown Solicitor
- Mr Stephen WONG
- Deputy Solicitor General
- Mr Geoffrey FOX
- Senior Assistant Law Draftsman
- Mr John HUNTER
- Deputy Principal Crown Counsel,
- Mr CHEUNG Wai-sun
- Senior Assistant Crown Prosecutor
- Ms Dorothy CHENG
- Senior Crown Counsel
Staff in Attendance :
- Mr Jimmy MA
- Senior Assistant Legal Adviser
- Mrs Sharon TONG
- Chief Assistant Secretary (2) 1
- Mr Paul WOO
- Senior Assistant Secretary (2) 5
1. The Chairman informed members that this meeting was held in response to the Administrations intention to resume the Second Reading debate of the Bill at the Sitting of the Legislative Council on 10 July 1996. In trying to meet his end, the Administration had submitted a (fourth) draft Committee Stage Amendments (CSAs) which called for scrutiny by this Committee.
(LegCo Paper No. CB(2) 1712/95-96 & CB(2) 1718/95-96)
2. Mr Ian WINGFIELD advised that while the proposed CSAs aimed at addressing the concerns of members and the relevant professional bodies, the Administration had not sought to introduce further CSAs at this stage in respect of the following issues:
- the abolition of corroboration rule in respect of sexual offences (proposed section 4B);
- the definition of criminal matters of a political character (proposed section 77DB); and
- the proposal by the Hong Kong Society of Accountants to disapply the proposed Part VIIIAA in respect of criminal offences of a fiscal nature.
3. In respect of paragraph. 2(a) above, Miss Margaret NG stated that the Hong Kong Bar Association (the Bar) held that there should be a provision making it mandatory for the Judge to give a clear warning to the jurors on the danger of convicting on the complainants uncorroborated evidence alone. This point had also been raised in the LegCo Panel on Administration of Justice and Legal Services. She undertook to report back to this Committee the views of the Panel and the Bars position after discussion by the Panel had taken place.
|Hon Margaret NG|
4. As regards paragraph 2(b) above, Mr WINGFIELD said that criminal matter of a political character was a very broad term which allowed the court a wider scope to consider the background. In considering whether or not an offence was of political character, not only the subject matter of the offence, but the motivation of bringing prosecution in the circumstances, was crucial. It would be almost impossible to define the full scope of such a criminal offence, and even if it was defined in terms of the subject matter of the offence, it should still be at the discretion of the court to find that an offence was of a political nature in the particular circumstances.
5. In response to the Chairmans enquiry, Mr WINGFIELD said that whilst effect was given to a request from an overseas jurisdiction, the Administration would not determine whether a criminal offence was of a political character. Where an application had been made to the court for the order to give evidence to be set aside on the ground that the alleged offence was a criminal matter of a political character, it would not be for the Administration to advise the overseas jurisdiction how it should present its evidence in rebuttal. That had to be entirely a matter for the overseas jurisdiction itself to address the concerns that had been raised in support of the application to set the order aside.
6. Mr Bruce LIU asked whether legal aid would be given to people applying to set aside an order to give evidence on ground of offence of a political character. Mr WINGFIELD said that this would be a rare situation because the alleged offender would usually be prosecuted in the place from which the request originated. In most cases, people who were required to give evidence would be representatives from companies such as banks and financial institutions where the need for legal aid would not arise.
7. Members agreed to the Administrations view that a definition of criminal matters of a political character would not serve a useful purpose in the present context.
8. Mr WINGFIELD invited members to go through the draft CSAs. He remarked that the Bill, and the proposed CSAs subsequently submitted, had been drafted in anticipation of a comprehensive Mutual Legal Assistance in Criminal Matters Bill (MLA Bill) to be introduced at some future stage, when the whole range of issues would be examined again. For present purposes, the Bill was very much an interim arrangement to meet existing difficulties and the provisions should not therefore be taken as precedents for the future MLA Bill. The Chairman advised that the Administration should clearly reflect these points in the resumption of the Second Reading debate.
Proposed section 77DA(1) - Definition of investigation
9. The draft CSAs now limited the ambit of the definition of investigation by deleting the reference to "[an offence] to be likely to be committed.". Mr Ronald ARCULLI however pointed out that in section 77DA(1), "external offence" was referred to as an offence against a law of a place outside Hong Kong, denoting it was an offence committed by someone. But where "investigation" was defined in the same section as "an investigation into an external offence (whether or not the offence was believed to have been committed, or to be being committed)", external offence then became a suspected offence in that particular definition. Upon discussion, Mr WINGFIELD expressed that to address this inconsistency, he would consider introducing another draft CSA to delete the words in brackets in the definition of "investigation". (Post-meeting note: in the fifth draft CSAs proposed by the Administration on 1 July 1996, circulated vide LegCo Paper No. CB(2) 1903/95-96, paragraph (a) in the definition of "investigation" was amended to the effect that investigation meant an investigation into an external offence).
10. Miss Margaret NG stated that a major concern of the Committee was that the extension of the scope of criminal matter to cover an investigation would very much enlarge the power of an overseas jurisdiction, to the extent that it might even surpass that of the local authorities in Hong Kong. Mr WINGFIELD responded that the purpose of including investigation was a fundamental part of the Bill, which was to prevent alleged offenders overseas, due to the different judicial systems in Hong Kong and overseas, seeking to have evidence gathering frustrated on the ground that there were not current proceedings taking place in the overseas jurisdiction, or proceedings that would start immediately following the gathering of that evidence. He added that the law would not authorise a foreign investigating authority to carry out investigation in Hong Kong. Rather, it provided a means for an overseas jurisdiction to come to Hong Kong and ask for the courts assistance to obtain evidence in accordance with its rule of procedure for the purposes of proceedings in that overseas jurisdiction. Ultimately, the request would be channelled through the Crown Solicitor and it was for the High Court in Hong Kong to determine if it was appropriate in all the circumstances for the evidence to be provided.
11. Referring to Miss Margaret NGs worry that someone might be compelled to give evidence even though under the law of Hong Kong he could not be compelled to do so, Mr WINGFIELD maintained that this had been addressed in the proposed section 77DB(b) in the draft CSAs. He furthered that, subject to a court order, the vast majority of those people who were asked to give evidence were willing to give evidence. Those who applied to have the order set aside were usually the suspected offenders themselves, where in such cases their applications would be considered by the court. Mr FOX supplemented that there were restrictions in respect of what the High Court could order people to do, as provided under the proposed sections 77DD and 77DE, and the new draft CSA added thereto.
Definition of "serious external offence"
12. The draft CSAs suggested that "serious external offence" meant an external offence punishable with imprisonment for more than 24 months, or any greater punishment. Mr FOX pointed out that in the Australian model, it was an offence the maximum penalty for which was death or imprisonment of not less than 24 months. The Chairman and Mr ARCULLI proposed that an alternative definition to include death penalty be provided for consideration. (Post-meeting note: the Administrations fifth draft CSAs has suggested that "serious external offence" means an offence the maximum penalty for which is death, or imprisonment for not less than 24 months).
Proposed section 77DD(3) versus existing section 76(3)
13. Mr FOX clarified that the part omitted from the proposed section 77DD(3) was the first part of the existing section 76(3) which read "An order under this section shall not require any particular steps to be taken unless they are steps which can be required to be taken by way of obtaining evidence for the purposes of civil proceedings in the court making the order...........". He said that if this part were to be retained in section 77DD(3) with the words "civil proceedings in the court making the order" being replaced with "a criminal matter in the court making the order", and in view of "criminal matter" had been defined to cover investigation, then the High Court would be powerless to order anybody to give evidence in relation to criminal investigations, thus making the proposed Part VIIIAA completely redundant in these cases.
14. Mr ARCULLI enquired of the meaning of "testimony otherwise than on oath" in the same section 77DD(3). He doubted if it was probable that an investigating authority overseas would ask for something explicitly not on oath. Mr WINGFIELD said that it might be possible that an evidence was obtained not for the purposes of prosecution. However, he undertook to clarify this point and provide an explanation later.
Omission of existing section 76(4) from proposed section 77DD
15. Mr WINGFIELD informed members that existing section 76(4) had now been reproduced, with minor modifications, in the proposed section 77DD(3A), to enable an order by the High Court to refer to a particular class of documents "appearing to be, or to be likely to be, in [a persons] possession, custody or power". The reason for this amendment was to overcome the difficulties associated with the requesting jurisdiction specifically describing or particularising certain documents. For example, in the event of a difficulty to identify documents in respect of meetings held on specific dates, the court could, under the new section, order for the production of those documents related to meetings held within a certain period of time to ensure that the intended documents would be produced. Mr FOX added that this was a restriction on the power of the High Court in ordering persons to produce documents.
Proposed section 77DD(2) and (5)
16. Mr WINGFIELD advised that the concern of the Committee in respect of section 77DD(2) had been addressed by the draft CSAs which proposed to delete paragraphs (c), (d) and (e) to the effect that an order under this section might only make provision for the examination of witnesses and the production of documents. Consequentially subsection (5) which dealt with the restriction on medical examination on any person as regards an investigation was proposed to be removed.
Proposed section 77DD(4)
17. Mr ARCULLI referred to the requirement under this section for a person to attend at any place for the giving of evidence. He expressed that the way it had been drafted would result in the giving of evidence not only not restricted to a court in Hong Kong, but also not restricted to Hong Kong. He could therefore envisage scenarios where a person might be called upon to give evidence at a place where tele-conferencing facilities were available and be asked questions directly from overseas, or where at the time of a witness giving evidence in a trial, the proceedings would be simultaneously telecast to a court elsewhere. Mr WINGFIELD asserted that sections 77DC and 77DD(1) had referred to the obtaining of evidence in Hong Kong and therefore it would be unlikely that a Judge would order for the evidence to be given elsewhere from Hong Kong. In fact, the gathering of evidence could in principle take place at any place which was mutually convenient to the parties concerned, and in the end it would be the High Court which would decide if a place was appropriate for the purpose.
18. Mr ARCULLI opined that "at any place" could be amended to "at any place within Hong Kong". The Chairman requested the Administration to give further thought on this issue and come up with an additional amendment where necessary.
Proposed section 77DE(2)
19. Mr WINGFIELD informed members that section 77DE(2) was exactly modelled on existing section 77(2) and therefore no amendment was called for.
Privilege of witnesses and professional privilege of legal practitioners
20. Mr WINGFIELD said that professional privilege of legal practitioners should also be included under the modified section 77DE(1)(a) as proposed in the draft CSAs. Mr ARCULLI pointed out that under this new provision, the circumstances under which a person could not be compelled to give evidence would only be restricted to a trial of a person for an offence or proceedings to determine whether a person would be tried. But in the case of an investigation where there was not a trial situation, the privilege of a person of not giving evidence might then be removed. At the Chairmans request, Mr WINGFIELD agreed to consider the adding a related general avoidance of doubt provision in section 77DB.
21. Members were of the opinion that as there were still major issues, such as those related to criminal matters of a fiscal nature, requiring further deliberation by the Committee, it would be impossible that the Second Reading debate of the Bill could be resumed within the current session of the Legislative Council. On the points so far discussed, it was agreed that the Administration should provide additional information where necessary and perhaps come up with another series of draft CSAs for the Committees consideration.
22. The Committee decided to leave the date for the next meeting open, pending the required information from the Administration was ready. The meeting originally scheduled for 9 July 1996 was cancelled.
23. The meeting ended at 12:40 p.m.
14 August 1996
Last Updated on 10 December 1998