LegCo Paper No. CB(2) 2577/96-97
(The minutes have been seen
by the Administration)
Ref : CB2/BC/53/95/S2
Bills Committee on the Independent Police Complaints Council Bill
Minutes of the Eighth Meeting held on Thursday, 17 April 1997 at 2:30 pm in Conference Room A of the Legislative Council Building
Members present :
Members absent :
Public Officers attending :
- Mr Philip CHAN
- Principal Assistant Secretary for Security
- Mr Howard CHAN
- Assistant Secretary for Security
- Mr K H CHING
- Senior Assistant Commissioner of Police
- Director of Management Service
- Mr S G CHANDLER
- Chief Superintendent of Police
- Complaints and Internal Investigation Branch
- Mr WAN Suet-ming
- Independent Police Complaints Council
- Mr Vidy CHEUNG
- Senior Assistant Law Draftsman (Acting)
Clerk in attendance :
Staff in attendance
- Mrs Sharon TONG
- Chief Assistant Secretary (2)1
- Mr LEE Yu-sung
- Senior Assistant Legal Adviser
- Mr Paul WOO
- Senior Assistant Secretary (2)5
* away from Hong Kong
** other commitments
I.Confirmation of minutes of meeting
(LegCo Paper No. CB(2) 1796/96-97)
The minutes of the meeting held on 3 February 1997 were confirmed.
II.Meeting with the Administration
Outstanding issues arising from the last meeting
(LegCo Paper No. CB(2)1912/96-97(01))
Full-time observer of Complaints Against Police Office (CAPO) investigation
|2.Principal Assistant Secretary for Security (PAS(S)) informed members that the views of Civil Service Branch were being sought on the proposal of employing full-time salaried Independent Police Complaints Council (IPCC) observers to monitor the handling of complaints by the Police. The Administration would also consult IPCC on the proposal in due course.
Empowering IPCC to appoint its Secretary and staff
3.PAS(S) said that the Administration did not see the need to empower IPCC to appoint its Secretary and staff of its secretariat. The existing appointment system of civil servants filling the posts worked well. The whole IPCC secretariat, being fully accountable to IPCC, operated with a high degree of independence. He added that the Office of the Ombudsman, which was cited by members as an example of public bodies having an independent secretariat, also functioned similarly with about 90% of its staff being public officers.
4.Secretary, IPCC said that when IPCC examined the provisions of the Bill about a year ago, it had also looked at the staffing matters of its secretariat. The Council did not propose any change to the existing position.
5.Mr James TO Kun-sun maintained that the role of IPCC was different from that of other advisory organizations in that it was endowed with statutory review and monitoring powers akin to bodies such as the Ombudsman and the Commissioner of Privacy. A secretariat composed of non-civil servants was necessary to enhance public perception of the independence of the Council. He said that he would propose draft Committee stage amendments to amend clause 6 in that direction.
Clause-by-clause examination of the Bill
6.Mr James TO Kun-sun enquired if a situation where an off-duty police officer revealed his identity as a member of the Police Force in an inappropriate manner for a private purpose would be covered by the definition of "complaint" in clause 2 as within the meaning of "purported execution of his duties". He said that the scope of meaning of "complaint" should be wide enough to enable complaints arising from similar incidents to be dealt with as well. Senior Assistant Legal Adviser said that the existing definition of "complaint" in the Bill did not seem to cover the scenario as cited by Mr TO. It was a policy issue whether "complaint" as defined in the Bill was intended to cater for such situation.
|7..Senior Assistant Commissioner of Police (SACP) advised that the existing practice was that, depending on the individual circumstances of the case, similar acts by police officers would be dealt with internally by the Police Force by way of disciplinary measures. PAS(S) undertook to clarify the policy intent on this issue and revert to members.
8.Ms James TO Kun-sun pointed out that recent practice of appointments to statutory bodies and tertiary institutions was that some descriptions about the appointed members background would be set out in the relevant ordinances. He proposed that the composition of IPCC members as referred to in subclause (1)(a)(iii) should be specified. In order to ensure a desirable balance in the composition of IPCC membership, he suggested that not less than two members should be LegCo Members and one of them should be elected among LegCo Members.
|9.PAS(S) said that the appointment by the Governor of IPCC members were made on an ad personam basis with due regard to personal factors such as the individuals ability, experience and expertise. He was not aware of any statutory body which laid down specific requirements for the appointment of LegCo Members by the Governor. He undertook to consider Mr TOs proposal and revert to members.
|10.Mr James TO Kun-sun enquired if the Commissioner of Independent Commission Against Corruption (ICAC) should be appointed as IPCC member. He said that the ICACs advocation for a clean Government and the Commissioner of ICACs experience in dealing with complaints, a large number of which involved police officers, should be of great benefit to IPCC. He added that the Commissioner of Police was also a member of ICACs Operations Review Committee. This "cross committee" participation should enhance the credibility of the complaints handling systems. PAS(S) said that he did not see a direct link between the functions of IPCC and ICAC as the majority of complaints against the Police were not corruption-related. He agreed to give further thought to Mr TOs suggestion and respond at the next meeting.
11.In response to Ms Emily LAU Wai-hings question, Secretary, IPCC said that the Commissioner for Administrative Complaints (COMAC) was represented by the Assistant Commissioner for Administrative Complaints on most of IPCCs meetings. PAS(S) advised that COMAC was included in the membership because of his vast experience in handling cases of mal-administration of government departments.
|12.In reply to members enquiries, PAS(S) said that no honorarium or allowance was paid to IPCC members. Participation in the work of the Council was considered as a voluntary service to the community. Members of IPCC had not requested for any remuneration to be paid. Referring to the question of IPCC members involvement in the work of the Council, Secretary, IPCC said that the estimated average time spent by each IPCC member should be no less than 30 hours per month. Members were of the opinion that the workload was substantial and therefore a token sum should be paid to members of the Council in recognition of their contribution. The Administration noted members view and agreed to respond after the meeting
13.PAS(S) informed members that the upgrading of office accommodation for IPCC was one of the improvement measures already adopted by the Administration. Secretary, IPCC added that plans were in hand to provide IPCC with a better office with improved facilities. The necessary fitting-out works would take approximately three months to complete after a decision was made of a suitable new office.
|14.Mr James TO Kun-sun said that, in addition to his proposal concerning the appointment of Secretary of IPCC and staff of the Councils secretariat, IPCC should also have power to appoint its own Legal Adviser who should not be an officer seconded from the Attorney Generals Chambers. Mr Eric LI Ka-cheung opined that the proposals for IPCC to appoint its Secretary and Legal Adviser involved a significant structural change within IPCC which should require detailed examination. Ms Emily LAU Wai-hing said that the financial implications for an independent secretariat of IPCC should also be carefully studied. The Administration undertook to give a written reply after the meeting.
15.PAS(S) said that the Administration had proposed to add after subclause 7(a) a new subclause as follows:
"(aa) to monitor and where it considers appropriate, review the manner in which the investigation is conducted by the police force in relation to the complaint, and to review the findings of such investigation;"
The purpose of 7 (aa) was to address members concern raised in previous discussion by bringing out clearly and explicitly the function of IPCC to review the findings of CAPOs investigation, in addition to the manner in which such investigation was conducted.
|16.SALA pointed out that the terms used in the first part of the newly proposed subclause 7 (aa) were very similar to those in 7(a). He proposed to further clarify the drafting of the two subclauses with the Law Draftsman.
||SALA/ Law Draftsman|
17.Mr James TO Kun-sun opined that it should be within IPCCs statutory power to determine whether or not a complaint was substantiated. IPCC should exercise such power independently of the conclusion made by CAPO and such power should be explicitly set out in the Bill. PAS(S) responded that the Administration wished to maintain a clear distinction of roles between CAPO and IPCC. CAPO was responsible for the investigation of complaints and therefore the authority to draw a conclusion from the findings of investigation as to whether the complaint was substantiated should rest with CAPO. The existing mechanism already provided that where IPCC could not endorse CAPOs findings, it could raise queries with CAPO and request re-investigation and, in the final analysis, make reports to the Governor with its recommendations in respect of the handling and investigation of the complaint.
|18.Mr James TO Kun-sun said that he could not accept a situation where IPCC, being a review and monitoring authority, had no power to determine whether a complaint was substantiated. He stressed that where there was disagreement between CAPO and IPCC, IPCC should have power to classify the result of investigation differently from the Police, based on its own judgment on the case. Mr Eric LI Ka-cheung said that members of IPCC were fully aware of their functions and they would not easily compromise their stand with CAPO. He held reservation about revising clause 7 to the effect that IPCC would have the final say about the outcome of investigation. Senior Assistant Law Draftsman said that the scope of clause 7 was wide enough to allow the IPCC to come to its own view after reviewing the findings of CAPOs investigation. He undertook to make further reference to other ordinances to decide whether the drafting of this clause should be revised.
|19.Mr James TO Kun-sun further proposed to add new provisions in clause 7 such that the Commissioner of Police should submit to IPCC reports on follow-up action taken pursuant to the investigation, and until the final conclusion of the case. The Administration agreed to consider the proposal.
20.PAS(S) informed members that a draft Committee stage amendment had been prepared to revise subclause 7(d) by adding "and investigation" after "handling".
|21.Mr James TO Kun-sun proposed to replace "he" in clause 8(2) with "Secretary for Security". He said that the purpose was to provide an appeal mechanism whereby the Secretary for Security (S for S) could decide on any reason given by the Commissioner of Police (CP) for not complying with any requirement under subsection (1)(a), (b), (d) or (e). He cited for reference the Societies Ordinance in which the authority to issue an order under section 8 of that Ordinance rested with S for S. PAS(S) explained that clause 8(2) was drafted with reference to the Police Force Ordinance. Matters relating to the safeguarding of the security of Hong Kong or the investigation of any crime were clearly within the duties of the CP. He agreed to revert on Mr TOs suggestion.
22.AS(S) said that, after taking members views, this clause had been refined as follows:
- subclause (2)(c) - adding "and investigation" after "handling"
- subclause (3) - replace "its recommendation referred to in subsection (2)(c)" with "the matters referred to in subsection (2)"
23.Mr James TO Kun-sun said that for reasons peculiar to the circumstance of the case, members of IPCC might see the urgency to interview certain witnesses, irrespective of whether such witnesses had been seen by CAPO. The restrictive condition in subclause(1) which specified that IPCC could only conduct the interview after the Police had submitted the investigation report should be removed.
24.PAS(S) explained that as IPCC undertook a review and monitoring role, it was logical for it to conduct any interview after CAPO had finalized the investigation. From an operational point of view, the witnesses might be confused if interview by CAPO and IPCC should go in parallel. He added that in order to cater for serious cases where there might be prolonged investigation, special monitoring panels would be set up within IPCC which could require CAPO to submit progress reports for its consideration.
|25.Members opined that IPCC would act sensibly in deciding when witnesses should be interviewed. In order to allow flexibility under special circumstances for IPCC to exercise the authority to interview, members suggested to amend subclause (1) to read "At any time after the Commissioner has commenced an investigation in respect of a complaint ... ... ." The Administration undertook to respond at the next meeting.
III.Date of next meeting
26.The dates of the next two meetings were scheduled as follows:
(a) 25 April 1997 at 12:30 pm
(b) 5 May 1997 at 10:30 am
(Post-meeting note : The meeting at paragraph 26(b) was re-scheduled to 8 May 1997 at 8:30 am)
IV.Close of meeting
27.The meeting was closed at 4:35 pm.
27 May 1997
Last Updated on 16 December 1998