LegCo Paper No. CB(2) 519 /96-97 Ref : CB2/BC/27/95

Bills Committee on the Evidence (Amendment) Bill 1996

Minutes of Meeting held on Thursday, 29 October 1996 at 4:30 a.m. in Conference Room B 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 Margaret NG
Members Absent :
    Hon IP Kwok-him*
    Hon Bruce LIU Sing-lee*
Clerk in Attendance :
    Mrs Sharon TONG
    Chief Assistant Secretary (2)1
Staff in Attendance :
    Mr Arthur CHEUNG
    Assistant Legal Adviser 5
    Mr Paul WOO
    Senior Assistant Secretary (2) 5

I. Internal Discussion

[Appendix to LegCo Paper No. CB(2) 40/96-97]

[LegCo Paper No. CB(2) 95/96-97]

[LegCo Paper No. CB(2) 174/96-97(01)]

[LegCo Paper No. CB(2) 233/96-97(01)]

[LegCo Paper No. CB(2) 242/96-97(01) to (04)]

1 The Chairman stated that the purpose of the internal discussion was to see if a consolidated view could be arrived at among members of the Bills Committee, in particular as regards the controversial policy issues involved in the Bill, and to determine if Committee Stage amendments (CSAs) should be proposed.

Obtaining of evidence for overseas jurisdictions

2. Miss Margaret NG said that while the information provided by the Administration in LegCo Papers No. CB(2) 233/96-97(01) and CB(2) 242/96-97(01) to (04) on the relevant laws in a number of Commonwealth countries did show that evidence might be taken in those countries relating to a criminal matter in a foreign country at the investigative stage, it was not at all apparent whether the right of a person to remain silent would be deprived when effect was given to a request from an overseas jurisdiction. Members were worried that under the proposed legislation a person might be compelled to give evidence in circumstances where he could not now be so compelled. Miss NG pointed out that legislation in Australia and Canada had provided additional protection. For example, in Part II of Australia’s Mutual Assistance in Criminal Matters Act 1987 it was stated under subsection (7) of section 13 that "..........the person to whom the proceeding in the foreign country relates is competent but not compellable to give evidence." Subsection (8) also provided that "...........a person who is required to give evidence, or produce documents or other articles, for the purposes of a proceeding in relation to a criminal matter in a foreign country, is not compellable to answer a question, or produce a document or article, that the person is not compellable to answer or produce, in the proceeding in the foreign country." In the case of Canada, subsection (7) of section 18 of the Mutual Legal Assistance in Criminal Matters provided that "A person ..........may refuse to answer one or more questions or to produce certain records or things..........if (a) the refusal is based on a law in force in Canada;..........". Similar safeguards, however, were lacking in the present Bill. The Chairman and Miss Margaret NG also noted that in common law jurisdictions like Australia, Canada and New Zealand, legislation relating to the obtaining of evidence for the purposes of investigations in other jurisdictions was provided under a comprehensive statute on mutual legal assistance in criminal matters, and Hong Kong was not a member of any bilateral agreement relating to mutual legal assistance.

3. As regards the following points raised at the meeting on 27 June 1996, Mr Ronald ARCULLI accepted the Administration’s responses given in P.4 of the Appendix to LegCo Paper No. CB(2) 40/96-97:

  1. the meaning of "testimony otherwise than on oath" in proposed section 77DD(3);
  2. proposed substitution of "at any place" in proposed section 77DD (4) with "at any place within Hong Kong";
  3. adding a related general avoidance of doubt provision in proposed section 77DB.

4. Members were concerned that as there was a more complete Mutual Legal Assistance in Criminal Matters (MLA) Bill, which would be introduced early next year, the enactment of piece-meal legislation relating to the obtaining of evidence for overseas jurisdictions at this point of time might undesirably bind the future Bills Committee formed to study the MLA Bill, since the latter would be disinclined to make changes to legislation that had been passed only a few months back. Members were not convinced, from the justifications put forward by the Administration, of the need for an urgent enactment, without an opportunity to examine the overall issues involved in the sphere of mutual legal assistance in criminal matters.

5. Upon careful consideration of the issues involved, in particular the more fundamental ones as regards the rights and protection of Hong Kong citizens and the timing of introducing the legislation, members concluded that it was difficult for the Bills Committee to support the amendments proposed in the Bill relating to the obtaining of evidence for overseas jurisdictions. Accordingly it was decided that the Bills Committee should move CSAs to repeal all clauses with respect to obtaining of evidence. Members also resolved to urge the Administration to introduce the MLA Bill as soon as possible.Adm

Corroboration rules in respect of sexual offences

6. Members noted that as the proposed abolition of corroboration rules was an independent part of the Bill unrelated to mutual legal assistance in criminal matters, it should be dealt with by way of deciding whether the Administration’s position should be accepted. While the Hong Kong Bar Association (the Bar) supported the proposed abolition, it also considered that it should be mandatory for a judge to give a clear warning to the jury of the dangers of convicting on the complainant’s evidence alone. The Bar had therefore proposed to add a provision along the lines of the recommendations of the Law Reform Commission of Australia that where a party so requested, the Judge must warn the jury that the evidence might be unreliable, unless there were good reasons not to do so. The Administration did not support the Bar’s view on the ground that there had been no actual experience to draw upon in order to assess the effectiveness of such a warning.

7. Miss Margaret NG said that on balance she was of the opinion that the right of the defendant should take precedence over the need to follow the trend of practices elsewhere. She was inclined to adopt the Bar’s compromise. Mr Ronald ARCULLI and Mr Ambrose LAU remarked that they need to give further thought on the issue. As the Chairman intended to report to the House Committee on 8 November 1996 the deliberations of the Bills Committee, the Chairman decided that the views of individual members on this part of the Bill should be sought by 1 November 1996.

(Post-meeting notes: The Chairman, Mr Bruce LIU and Miss Margaret NG have indicated support for the Bar’s proposal. The other members have not expressed any views. The Chairman has reported to the House Committee on 8 November 1996 to recommend the resumption of the Second Reading debate of the Bill on 27 November 1996. The Bills Committee will move CSAs to repeal all the clauses on the obtaining of evidence for overseas jurisdictions and Miss Margaret NG will move CSAs along the lines proposed by the Bar relating to the abolition of corroboration rules. The deadline for submitting CSAs will be 18 November 1996.)

8. Assistant Legal Adviser said that he had no points to make on the technical side of the Bill and the CSAs.Clerk

II. Date of Next Meeting

9. The Chairman advised to keep the date open for the next meeting scheduled for 21 November 1996, pending a report to be made to the House Committee on 8 November 1996.

(Post-meeting note: As the Bills Committee has reported to the House Committee on 8 November 1996 on its deliberations, the meeting scheduled for 21 November has been cancelled.)

III. Close of Meeting

The meeting ended at 5:15 p.m.
LegCo Secretariat
19 November 1996

* other commitments

Last Updated on 10 December 1998