PLC Paper No. CB(2) 280
(These minutes have been seen
by the Administration and cleared
with the Chairman)
Ref : CB2/BC/17/96
Bills Committee on
Long-term Prison Sentences Review Bill
Minutes of the Fourth Meeting
held on Monday, 19 May 1997 at 12:30 pm.
in Conference Room A of the Legislative Council Building
Members present :
Hon Ronald ARCULLI, OBE, JP (Chairman)
Hon Emily LAU Wai-hing
Hon James TO Kun-sun
Hon LEUNG Yiu-chung
Hon Bruce LIU Sing-lee
Members absent :
Hon Andrew CHENG Kar-foo
Hon TSANG Kin-shing
Hon Lawrence YUM Sin-ling
Public officers attending :
- Mr Alex FONG
- Deputy Secretary for Security
- Mr Gilbert KO
- Assistant Secretary for Security
- Mr Kelvin PANG
- Assistant Commissioner of Correctional Services
- Mr Samson CHAN
- Senior Superintendent of Correctional Services
- Mr Peter WONG
- Senior Crown Counsel
- Mr Geoffrey FOX
- Senior Assistant Law Draftsman
Clerk in attendance :
- Mrs Sharon TONG
- Chief Assistant Secretary (2)1
Staff in attendance :
- Mr Jonathan DAW
- Consultant, Legal Service Division
- Mr Paul WOO
- Senior Assistant Secretary (2)5
I. Meeting with the Administration
[LegCo Paper No. CB(2) 2323/96-97(01)]
Administrations response to issues raised at the meeting held on 21 April 1997
The Administration accepted members suggestion that a prisoner should be given an opportunity to make written representations both before the Chief Justice recommended a tariff period and before the Governor made a final decision. The Administration considered it unnecessary to provide further appeal channels in existing cases where sentences had already been imposed. In respect of these cases, the determination of the tariff period by the Governor was administrative decision which would not be subject to the appeal mechanism applicable to judicial decision in the new cases. Deputy Secretary for Security (DS(S)) added that any further appeals would also hinder the final conclusion of the cases, which would work to the detriment of the prisoners concerned.
2. In response to Mr LEUNG Yiu-chungs question concerning the handling of petitions, DS(S)) said that, under the Interpretation and General Clauses Ordinance, the authority to deal with petitions was delegated to the relevant policy Secretaries. It was impracticable for the Governor to personally deal with each and every petition case. As far as the arrangements proposed in the Bill were concerned, the setting of a determinate sentence must be finally approved by the Governor. As to the review of the 20 cases involving prisoners detained at Her Majestys pleasure, DS(S) advised that the Board of Review, Long Term Prison Sentences (BOR) would soon submit its recommendations to the Governor for consideration. He added that whereas there was no mention in the repealed section 70 of the Criminal Procedures Ordinance on how to carry out a release on licence under the repealed section 70(3) of that Ordinance, the Administration was of the view that the procedures set out in the Bill concerning conditional release under supervision could be modelled on.
Administrations response to issues raised at the meeting on 5 May 1997
3. In response to the question of the right of prisoners to have access to reports by the Correctional Services Department (CSD) on their performance DS(S) said clause 13 of the Bill required that the prisoners would be provided with copies of the relevant materials beforehand.
Administrations response to the Hong Kong Bar Associations submission
4. Senior Assistant Law Draftsman (SALD) said that he would submit draft Committee stage amendments in relation to the repeal of Prison Rules 69A and a new provision deeming persons so released under the repealed section 70(3) of the Criminal Procedures Ordinance to have been conditionally released under the Bill.
5. In response to members question on making legal aid available to prisoners making representations to the new statutory Board, DS(S) said that the Bill allowed prisoners to make written representations. He said that BOR was not in favour of introducing too many changes all at once, and they would prefer to deal with the question of oral hearings at slower pace. This would give the Board more time to adjust to the new mode of operation.
6. Members opined that as clause 12(5) of the Bill provided for the Board to have discretion to allow prisoners appearing before the Board to be heard and to make oral representations, the Administration should consider whether legal aid would be provided to the prisoners, and whether written legal advice would be made available. Ms Emily LAU Wai-hing said that she was in support of the granting of legal aid. The Administration agreed to consult the Legal Aid Department and revert to members on the points raised.
7. Members queried if the proposed amendment to extend the period to 14 days under this subclause would provide sufficient time for the prisoners to read the relevant material, particularly if legal aid was to be made available. The Chairman suggested that it might be advisable, to allow flexibility, not to state the period in the primary legislation but to leave it to be decided in subsidiary legislation. DS(S) said that the period of 14 days was intended to be in line with a similar arrangement under the Post-Release Supervision of Prisoners Ordinance. He agreed to further examine this issue and revert to members.
Item 2, Schedule 2
8. Members agreed that the point raised by the Hong Kong Bar Association on whether life sentences in general should be discretionary was, as a matter of law, beyond the scope of the Bill.
Administrations response to the Society for the Rehabilitation of Offenders, Hong Kongs submission
9. In respect of the question of right of abode of prisoners transferred back to Hong Kong, the Administration pointed out that, under the Transfer of Sentenced Persons Bill, it was entirely voluntary on both the person and the jurisdiction where the person was serving the sentence to have the person transferred back to Hong Kong, as well as on Hong Kong to accept the person back. Another criterion was that the person being transferred back had a close connection with Hong Kong, so that a person not having a right of abode in Hong Kong might also be covered by the present Bill.
10. Regarding clause 6 on the composition of the proposed Board, DS(S) said that people with varied expertise and background would be appointed by the Governor on an ad personam basis. There was no intention to specify ex-officio appointment by appointing any representative from a particular organization. DS(S) informed members that incidentally the Chairman of BOR was also a member of the Society for the Rehabilitation of Offenders, Hong Kong. He added that the drafting of clause 6 was to facilitate the re-integration of prisoners into the community after release. To allow due flexibility, clause 6 provided that a maximum of three members with background not prescribed under subclauses (2)(a) to (2)(g) could be appointed.
11. Members said that the term "social work" in clause 6(2)(d) carried a wide meaning. Members suggested that one member of the Board should be a person with expertise and experience in rehabilitation of prisoners. The Administration agreed to consider the proposal.
Administrations response to Hong Kong Christian Kun Sun Association Ltds submission
12. In reply to Mr LEUNG Yiu-chungs question, the Administration advised that the results of the reviews conducted by BOR would be relayed to the prisoners concerned through CSD, either orally or in writing, as suggested by BOR. Members suggested that the result of a review and the reasons for making such a recommendation by the Board should be conveyed to the prisoner in writing. The Administration undertook to convey the suggestion to BOR for consideration.
Clause-by-clause examination of the Bill
13. In response to the Chairmans question, Consultant, Legal Service Division opined that clause 2 accurately reflected the legal policy intent expressed by the Administration. Clause 2 was also consistent with other provisions of the Bill.
14. The Chairman enquired whether the term "by courts outside Hong Kong" in clause 2(d) should be read with the same meaning as the term "court" was interpreted under the local legal system. SALD said that, under the Transfer of Sentenced Persons Bill, "court" was defined to include tribunals outside Hong Kong. The Administration undertook to review the drafting in respect of the meaning of "court" under clause 2(d) and clause 4.
15. In response to members suggestion, the Administration agreed to review the Chinese translation of "discretionary life sentence" and "detention at Executive discretion" under this clause to better clarify their meaning.
16. Referring to the definition of "juvenile prisoner", Assistant Commissioner of Correctional Services explained that, whereas the age of majority in Hong Kong was 18, the dividing line adopted for this Bill was 21 in order to be consistent with other legislation such as the Training Centres Ordinance and the Detention Centres Ordinance. It was also intended to be in line with existing rehabilitation policy under which occupational training and education was provided to people aged below 21.
17. Mr James TO Kun-sun enquired if a clause offering protection and privileges to members of the Board should be added in the principal part of the Ordinance. SALD replied that such provisions had been provided for under section 7 of Part II of Schedule 1. As far as the Bill was concerned, there was no provision for the Schedule to be amended. Therefore, as with the main part of the Ordinance, it could only be amended by another Bill where necessary.
18. Referring to Mr James TO Kun-suns question, SALD clarified that, from the drafting point of view, clause 7 only listed out the principal functions of the Board. There were other functions imposed on the Board and contained in the relevant provisions of the Bill as well as in other enactments.
19. Members were of the opinion that the way clause 8 was drafted appeared as if subparagraphs (a), (b) and (c) were the only considerations which the Board would take into account in performing its functions and duties. The Administration replied that the policy intent was that subparagraphs (a) to (c) were not meant to be exhaustive. The requirement that the Board must have regard to those factors did not prevent the Board from having regard to other principles in relation to the exercise of its functions. DS(S) further advised that the drafting of clause 8 was in line with the existing mode of operation of BOR.
20. Mr James TO Kun-sun pointed out that whereas clause 8 had made reference to the rehabilitative effect of an early release from detention on a prisoner, it had failed to address the issue of justice implicit in the imposing of a tariff period to be served for punishment. The Administration advised that the policy was that on reviewing the sentence of a prisoner, the Board was not authorized to order the early release of the prisoner until the prisoner concerned had served the tariff period.
21. Members requested the Administration to review the drafting of clause 8 to reflect the policy intent that the principles stated therein were only the core considerations and not meant to be exhaustive, and to reflect in the clause the concept of serving the punitive tariff period by prisoners. The Administration agreed to examine these points.
22. DS(S) said that the intention of clause 9 was that the delegation of the Boards functions to the President of the Board would be restricted to routine matters such as representing the Board in ceremonial and social functions. The most important areas of the Boards duties, as set out in clause 9, would not be delegated.
II. Date of next meeting
23. The date of the next meeting was scheduled for 28 May 1997 at 8:30 am.
III. Close of meeting
24. The meeting ended at 2:45 pm.
Provisional Legislative Council Secretariat
22 July 1997
Last Updated on 20 October 1997