LC Paper No. LS 180/98-99
Paper for the House Committee MeetingObject of the Bill
of the Legislative Council
on 28 May 1999
Legal Service Division Report on
Witness Protection Bill
To provide for the establishment of a programme for the protection of certain witnesses and persons associated with witnesses.
LegCo Brief Reference
2. SBCR 3/3/2831/87 Pt. 17 issued by the Security Bureau on 12 May 1999.
Date of First Reading
3. 26 May 1999.
4. Paragraph 2 of the LegCo Brief states that in October 1992, a murder trial collapsed because a key prosecution witness declined to give evidence. It aroused great community concern about the adequacy of protection of witnesses. The then Governor appointed Mr Justice Kempster to head an independent Commission of Inquiry to look into, among other things, the existing arrangements for the protection of prosecution witnesses. One of the recommendations in Mr Justice Kempster's Commission was that "the advisability of legislation to facilitate changes of identity should be considered".
5. The Witness Protection Bill was introduced into the Legislative Council in July 1996. A Bills Committee was formed to study it. But the Bill eventually lapsed because the Bills Committee did not have time to study it. The current Bill is substantially the same as the 1996 Bill.
6. The Bill provides for the establishment of the witness protection programme ("the WPP").
7. Under the Bill, the term "witness" is defined to mean -
- a person who has given, or who has agreed to give, evidence on behalf of the Government in proceedings for an offence;
- a person who has given, or who has agreed to give, evidence otherwise than as mentioned in paragraph (a) in relation to the commission or possible commission of an offence;
- a person who has provided a statement or other assistance to a public officer in relation to an offence;
- a person who, for any other reason, may require protection or other assistance under the WPP; or
- a person who, because of his relationship to or association with a person referred to in paragraphs (a) to (d), may require protection or other assistance under the WPP.
8. The approving authority, which is defined to mean a person designated in writing by the Commissioner of Police or the Commissioner of the ICAC, has the sole responsibility of deciding whether or not to include a witness in the WPP according to the criteria set out in clauses 4 and 5. One of those criteria is that the witness is required to sign a memorandum of understanding in accordance with clause 6. In brief, the memorandum of understanding will set out the basis on which a participant is included in the WPP and details of the protection and assistance that is to be provided; and contain a provision to the effect that protection may be terminated if the participant breaches a term of the memorandum of understanding. The memorandum of understanding may also contain a list of the outstanding legal obligations (including family maintenance obligations and taxation obligations) of the participants; and any other obligations of the participant, and an agreement by or on behalf of the participant as to how these obligations are to be met.
9. Subject to the recommendation of the Commissioner of Police or the Commission of the ICAC and the approval of the Chief Executive, the approving authority may establish a new identity for a participant. A participant for whom a new identity is being established will be issued with new documentation pertaining to his new identity. The witness concerned will not be given any academic or professional qualifications which he does not have, or benefits to which he is not entitled. Where a decision is made to establish a new identity for a participant after he has been included in the WPP, a new memorandum of understanding is to be prepared and signed by the participant before the new identity is created. The approving authority may terminate protection of a witness and restore a witness's former identity where protection has been terminated.
10. The Bill gives the witness a right of review of a decision of the approving authority not to include him in the WPP or to terminate his protection under the WPP.
11. The Bill provides that it is an offence for a person, without lawful authority or reasonable excuse, to disclose information about the identity or location of a person who is or has been a participant or who has been considered for inclusion in the WPP. A person commits the offence is liable on conviction on indictment to imprisonment for 10 years.
12. There has not been any public consultation on the Bill.
Consultation with the LegCo Panel
13. Paragraph 25 of the LegCo Brief states that the Administration has consulted the former LegCo Panel on Security on the legislative proposals on 2 April 1996 and members were generally supportive. Some Panel members, however, raised questions about the possible abuse of the WPP and whether the Administration had any obligations to settle debts for witnesses, prior to changing their identities.
14. Paragraph 26 of the LegCo Brief states that the Administration has consulted the Provisional LegCo Panel on Security on 19 March 1998. The Panel was supportive of the proposals in the Bill.
15. The Bill provides for the establishment of the WPP which has important legal and policy implications. Members of the former LegCo Panel on Security have already expressed concern over certain aspects of the Bill. Members are therefore recommended to set up a Bills Committee to study the Bill in detail.
Assistant Legal Adviser
Legislative Council Secretariat
25 May 1999