LegCo Paper No. CB(2)2302/96-97
(These minutes have been seen
by the Administration)
Ref : CB2/BC/53/95/S2
Bills Committee on Independent Police Complaints Council Bill
Minutes of the Sixth Meeting held on Monday, 24 March 1997 at 12:30 pm in Conference Room A of the Legislative Council Building
Members present :
Hon Ronald ARCULLI, OBE, JP *
Hon CHEUNG Man-kwong *
Hon Eric LI Ka-cheung, OBE, JP *
Hon Christine LOH Kung-wai *
Hon CHEUNG Hon-chung *
Hon IP Kwok-him *
Hon TSANG Kin-shing *
Public Officers attending :
Clerk in attendance
- 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 H W HUNG
- Senior Superintendent of Police
- Complaints Against Police Office
- Mr WAN Suet-ming
- Independent Police Complaints Council
- Mr Vidy CHEUNG
- Senior Assistant Law Draftsman (Acting)
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
* other commitments
I. Meeting with the Administration
(LegCo Paper No. CB(2) 1594/96-97(01) The Bill)
Members went through the Administrations response to the issues raised at the meeting held on 12 March 1997 (LegCo Paper No. CB(2)1594/96-97(01))
Full-time observers of Complaints Against Police Office (CAPO) investigation
2.Referring to the point made by the Administration that there was not a justifiable case for full-time paid observers of CAPOs investigation, members said that there were over 3 000 complaint case last year which were related to allegations of assault or fabrication of evidence. These were serious cases which would call for observation under the Independent Police Complaints Council (IPCC) Observers Scheme. Principal Assistant Secretary for Security (PAS(S)) and Senior Assistant Commissioner of Police (SACP) advised that a large part of these cases were sub-judice, i.e. complaints which might concern matters surrounding a criminal charge or summons action against the complainant or in which the complainant was involved. Very often, in order not to prejudice the interests of the defendants who made the complaint, the defendants could refrain from making a statement about the complaint, and accordingly investigation by CAPO would be temporarily withheld, pending the outcome of the criminal trial in question. It was not uncommon that in the course of trial the complaint matter was dealt with in the court and follow-up action by CAPO was not necessary. As regards less serious complaints, observation by IPCC members were conducted only selectively. There was not a need for observation in each and every case.
[Post-meeting note : According to statistics provided by the Administration after the meeting, there were 3 311 cases of complaint received in 1996, 1 515 of which were related to assault or fabrication of evidence (1 290 related to assault and 225 related to fabrication of evidence)]
3.Members were of the opinion that experienced personnel employed on a permanent basis as IPCC observers should enhance the monitoring and reviewing functions of IPCC. Dr LAW Cheung-kwok expressed that there should be at least two such full-time observers. Dr LEONG Che-hung said that the existing IPCC members were conscientious officers. Yet, because of their present capacity as volunteers, IPCC members might not be able to carry out as many observations as they might wish to. In addition, membership of IPCC changed periodically. The employment in IPCC of a few experienced full-time observers would provide effective checks and balances within the system. Dr LEONG agreed that not every investigation by CAPO warranted IPCC observation. The number of full-time observers would need to be further examined subject to the workload and resource implications.
|4.In response, PAS(S) said that the Administration would consult IPCC on the proposal and revert to members in due course.
Making "tipping off" a criminal offence
5.In reply to Mr James TO Kun-suns enquiry, PAS(S) said that the Attorney Generals Chambers (AGC) had advised that foreseeable acts of "tipping off" committed during investigation of complaints with a criminal element could be comprehensively covered and prosecuted under criminal charges such as perverting the course of public justice under the common law, "assisting offenders" under section 90 of Criminal Procedure Ordinance, or "concealing offences" under section 91 of the same Ordinance.
6.Members disagreed with the Administrations view that for complaint cases without any criminal element, it would be more appropriate and proportionate to the gravity of such action to make "tipping off" a disciplinary offence in such cases. Members held that "tipping off" was by its nature a serious wrongful conduct which would undermine the credibility and integrity of the complaints system. To criminalize "tipping off" would provide a better sanction than making it a disciplinary offence that was necessary for producing the desirable deterrent effect. Members felt that, regardless of the severity of the matter giving rise to a complaint, any act of "tipping off" should be made a criminal offence.
7.PAS(S) and SACP advised that disciplinary offences were treated seriously, especially in the disciplined services. Various punitive measures commensurate with the gravity of individual cases were available, ranging from, inter alia, warnings and reprimands to dismissal from service.
|8.Members pointed out that action under the relevant legislation mentioned in paragraph 5 had rarely been invoked. Members enquired whether any prosecution action had been taken in the past on substantiated cases of "tipping off". SACP replied that previously breaches of discipline were categorized and dealt with under such broader headings as "prejudice to good conduct and discipline" or "conduct calculated to bring the public service into disrepute". There had been no single breakdown for "tipping off" cases. He was only aware of one complaint case related to allegation of "tipping off" in the past three years and the case was being dealt with. SACP added that if a case involved a criminal element, AGCs advice would be sought and the decision to prosecute or take out disciplinary action rested with AGC. The result of investigation of any complaint would be submitted to IPCC for endorsement. Members stressed that "tipping off" itself was a serious misconduct which could not be condoned, regardless of the nature of a complaint. They requested the Administration to search through its records for any "tipping off" cases and to advise members on action that had been taken in such cases.
|9.Miss Margaret NG questioned that there could be legal problems in applying the relevant Ordinances in instituting criminal proceedings in complaint cases involving "tipping off". Mr James TO Kun-sun pointed out that under the Fire Safety (Commercial Premises) Ordinance, unlawful disclosure of information obtained officially was liable to conviction to six months imprisonment. He also cited the examples of the secrecy rules applicable to officers of the lnland Revenue Department and the Fire Services Department which could serve as precedent for making "tipping off" a criminal offence. Members requested the Administration to examine the implications of introducing new legislation to make "tipping off" a criminal offence and to confirm whether it was possible, in complaint cases, to prosecute a person for "tipping off" under criminal charges such as perverting the course of public justice. PAS(S) said that the advice of AGC would be sought.
|10.Mr James TO Kun-sun said that, in cases where the complainant was the subject of the investigation of a criminal offence, the question of the person making a statement at CAPO which would prejudice his interests would not arise if investigation by CAPO was truly impartial and independent. The fact that making a statement would act to the persons disadvantage pinpointed the basic flaw with the existing system, i.e. the possibility of "tipping off" the complainee or the crime investigation team of the details concerning the complaint soon after the complaint was lodged. SACP responded that in handling sub-judice complaints, CAPO was adopting a special set of procedures which were intended to protect the interests of the defendant. CAPO would explain to the person the procedures in handling the complaint and provide a copy of such information to the complainant. SACP stressed that the decision whether to make a statement rested with the complainant. If the complainant decided to pursue the matter, CAPO would proceed with investigation subject to AGCs agreement. The Administration undertook to provide a copy of the information note containing the relevant procedures for members information. SACP further advised that in special circumstances such as when CAPO saw the urgency to act immediately to protect certain evidence from being lost, swift action would be taken. Some members, however, said that there had been reported cases where CAPO declined to proceed with investigation solely on the ground of sub-judice.
11.Senior Assistant Legal Adviser (SALA) said that in any trial, cross-examination of a witness by counsel of the opposite side was allowed. One of the purposes of cross-examination was to test the credibility of the witness. In the context of a sub-judice complaint, if the complainant (the defendant) revealed in evidence that he had previously made a statement to CAPO, it would be open to the prosecution to cross-examine him if he gave a different account in court with a view to impeaching his credibility. In the sense of exposing himself to cross-examination because of a previous inconsistent statement made to CAPO, the complainant could be said to be prejudiced by making a complaint.
12.Miss Margaret NG said that details of the complaint was not material evidence for the criminal trial of the complainant. In the absence of the complainants statement made to CAPO, the prosecuting counsel could still cross-examine the defendant on the complaint matter. Mr James TO Kun-sun quoted the examples of complaints filed with the Independent Commission Against Corruption or the Legislative Council which he pointed out would not be divulged to a third party without the consent of the complainant.
|13.Members failed to see why the prosecuting counsel should be given access to the details of the complaint which were in the hands of CAPO. They asked the Administration to provide a written explanation on the legal procedures involved and to clarify whether -
- the complainants statement made to CAPO would be provided to the crime investigation team, and if so, at which point in time would such information be given;
- in addition to the complainants statement, the crime investigation team could gain access to the medical report of the complainant from CAPO or from the hospital; and
- the prosecuting counsel would be given access to the complainants statement made to CAPO and whether the counsel would discuss the information with the witnesses including the complainee.
|14.Members also requested SALA to give a written elaboration on the points he made in paragraph 11.
15.Mr James TO Kun-sun proposed that in sub-judice cases, the complainant should be allowed to make his statement about the complaint to his counsel during the first consultation. This would minimize the chance of "tipping off" or the complaint being played down by police officers.
|16.With regard to amending the Police General Order (PGO) to make "tipping off" a disciplinary offence, SACP said that the Police Force management had completed staff consultation on the matter. Despite there was not full support from the staff side, the Police Force management was firmly committed to the need to implement the proposal. Members requested the Administration to provide the revised PGO for members information.
Civilian head of CAPO
17.The Chairman said that many posts within the Police Force which were originally filled by police officers had been civilianized. He asked if the Commissioner of Police (CP) had the authority to appoint a non-police personnel as head of CAPO. SACP replied that under the Police Force Ordinance the authority to deploy resources within the Force, including the filling of posts, vested in CP. The appointment of the head of CAPO was purely an internal administrative matter.
18.Mr James TO Kun-sun enquired whether the details concerning IPCCs proposal for a non-police officer as head of CAPO had been submitted to the Governor. He suggested that if the majority view of members were to go for a civilian head of CAPO, the stand of the Bills Committee could be relayed to the Governor. He said that he might be introducing a Members bill which aimed at making it mandatory for CAPO to be headed by a civilian officer appointed by the Governor and answerable to CP on day-to-day operation.
19.PAS(S) and Secretary, IPCC said that IPCC had not directly put forward the proposal to the Governor. Yet, the Administration had responded to the proposal after careful consideration of the overall views of IPCC. The Governor was well aware of the arguments which were central to the issue.
20.Mrs Selina CHOW objected to the proposal for a civilian head of CAPO. She said that as long as CAPO remained an organization within the Police Force responsible for investigative duties, it was illogical to have a non-police officer heading CAPO. She also queried if it was within the Bills Committees terms of reference to make policy recommendations to the Governor. Mr James TO Kun-sun and Miss Margaret NG opined that a Bills Committees views on certain issues arising from the scrutiny of a Bill could be expressed and incorporated in the Bills Committees Report, despite the issues concerned might not fall directly within the scope of the Bill. Mrs CHOW said that she would like her objection to the proposal to be included in the Bills Committees Report.
21.In reply to some members question, SALA said that matters related to the appointment of a civilian head of CAPO should fall outside the scope of the Bill.
22.PAS(S) said that as there were diverse views on the matter, further discussion might be more fruitful after members had completed the observation exercise on CAPOs investigation, which hopefully could provide members with a better understanding of the work of CAPO.
Obtaining feedback from complainants
23.In reply to Mrs Selina CHOWs question, PAS(S) confirmed that the attitude/opinion survey which would shortly be commissioned by IPCC would cover both complainants and complainees.
Increasing the number of complaints venues and publicity on such venues
24.Referring to members question on strengthening publicity on the existing channels for lodging complaints and the police complaints system in general, PAS(S) advised that both the Police and IPCC were implementing publicity measures as part of the recommendations arising from the Independent Review. These included, among other things, telephone enquiry hotline on matters related to ways of lodging complaints, redesigned information leaflets and publicity posters available from all police stations and/or Public Enquiry Service Centres at all District Offices.
Proposed amendments to clauses 2 and 10(1)
25.SALA informed members that he had discussed with the Law Draftsman on revising clause 10(1) to make it explicit that IPCC might interview any witness including a person who had not been interviewed by the Police during the CAPOs investigation, and any independent witness. He said that the proposed amendment to the sub-clause to read "..........the Council or any one or more of its members may, in connection with the complaint, interview any witness" in conjunction with the revised definition of "witness" in clause 2 to ""witness" means a person who in the opinion of the Council may be able to provide information or other assistance to the Council in connection with the exercise of its functions under the Ordinance" would reflect the intent.
Observation of CAPOs investigation
26.In response to Ms Emily LAUs question, PAS(S) said that participation in the observation exercise was limited to members of the Bills Committee only. Schedules of interviews at CAPO or site visits, as soon as they were fixed, would be sent to the LegCo Secretariat by fax for onward transmission to those members who wished to take part in the observation. Subject to the agreement of the concerned parties, such as a witness making a statement at a CAPO office, members could conduct surprise or pre-arranged observation of the investigation process.
|27.Mr James TO said that the observation would not be meaningful if members were not allowed to have access to the CAPOs files and documentation submitted to IPCC. He called upon the Administration to re-consider the proposal of appointing a few members of the Bills Committee as temporary IPCC members for a short period of one to two months so that members could get a better knowledge of the cases and CAPOs investigation through studying the relevant files. PAS(S) and SACP replied that in order to comply with the Personal Data (Privacy) Ordinance, the right of the data subjects must be respected. To address members concern, SACP said that consideration could be given to providing members access to a few case files with the personal particulars of the data subjects removed. The Administration undertook to revert to members on Mr TOs suggestion at the next meeting.
III.Date of next meeting
28.The date of the next meeting was scheduled for 9 April 1997 at 10:30 am.
IV.Close of meeting
29.The meeting closed at 2:35 pm.
15 May 1997
Last Updated on 16 December 1998