Legislative Council of the Hong Kong Special Administrative Region - A Companion to the history, rules and practices of the Legislative Council of the Hong Kong Special Administrative Region ¶ Part II: Conduct of business in the Council and committees

Chapter 14

Conduct of Inquiries

14.1Committees play an important role in holding the Government to account. Given the historical background of the nature of the various committees in the Legislative Council, each has its own special role and particular way to call the Government to account for its policies and operation. This Chapter contains a detailed examination of the power of committees to summon witnesses under section 9 of the Legislative Council (Powers and Privileges) Ordinance (Cap. 382) ("the Powers and Privileges Ordinance"). As will be seen, the power of summons is conferred on them by the Council either by specific provisions in the Rules of Procedure or by its special authorizations, with reference to specific cases and Court rulings where relevant. Cross-references are made to the relevant parts in Chapters 2 and 13 where details of the Powers and Privileges Ordinance and the application of the Ordinance to committees as a whole have been discussed.

14.2Unlike committees in some parliaments in jurisdictions which have also adopted the Westminster model of parliamentary practice, the exercise of the power to summon witnesses in the Hong Kong legislature happens sparingly. While standing committees are provided with this power under the Powers and Privileges Ordinance ^[1], the need for them to summon witnesses is rare especially in the case of the Finance Committee and the Public Accounts Committee, as explained in Chapter 12 (Financial Procedures).^[2] It is normally only in circumstances where persons other than serving public officers are required to appear before these standing committees that a summons rather than a normal invitation would be considered, but such circumstances seldom arise. Since the Powers and Privileges Ordinance came into force in 1985, there has been only one occasion where a witness was summoned by the Public Accounts Committee. That witness was a retired public officer who was the controlling officer in relation to a value-for-money audit report which was the subject of an inquiry of the Public Accounts Committee.

14.3The situation in other, non-standing, committees is rather different. Committees which have the function to monitor the work of the Government or study issues of public concern, such as Panels, very often encounter situations where information from outside the Government is necessary. Where the matter which requires detailed inquiry falls outside the terms of reference of a Panel or straddles a number of Panels or where the members who wish to take part are not members of the Panel undertaking the inquiry, there may be a need to form a select committee or to set up a subcommittee under the House Committee to conduct the inquiry.^[3] If it is considered that witnesses should be summoned to give evidence to the committee, special authorization from the Council will be sought.

14.4This Chapter focuses on the inquiries conducted with the power to summon witnesses under section 9(1) of the Powers and Privileges Ordinance, while the general procedure for conducting business in a committee, including a select committee, without the power to summon witnesses is provided in Chapter 13 ^[4]. The historical development of committee inquiries, showing how they have become an important tool for Members to examine issues of wide public concern and how the power to summon witnesses is exercised in the course of an inquiry, is considered in this Chapter.

Purposes of an inquiry

14.5In the parliamentary setting, the conduct of an inquiry by a committee is the process undertaken by the committee to examine and inquire into a matter referred to it by the House and to report on the matter with opinions and recommendations, dissenting from the report or supplementing it, as may be proposed by committee members.^[5] Following the same principle, a committee in the HKSAR Legislature considers or inquires into a matter and exercise such power given to it within the scope of the decision (or resolution of the Council) made in relation to the inquiry. The committee may determine its work plan and decide whom it should invite or order to appear before it so as to collect evidence and establish the facts surrounding the matter subject to its inquiry. Upon completion of its work, the committee is required to submit a report with its findings and recommendations to the Council.

Historical background of the conduct of inquiries

Nature of inquiries

Before July 1997

14.6As explained in Chapter 6 ^[6], in the early years of the pre-1997 Legislature, standing committees were formed to examine bills and financial and public works proposals. Following a major review of the Standing Orders in 1929, amendments were made to provide that "any matter before the Council may be referred by the President, or upon a motion duly passed by the Council to a select committee." Select committees were appointed by the President on an ad hoc basis to deal with a specific matter, including a matter in relation to a petition. They were dissolved upon completion of their work.

14.7In the 1968 Standing Orders, a set of procedures was provided to guide the way select committees in the conduct of their business. These procedures were similar to those adopted by other legislatures for conducting inquiries on bills and other matters. It was also expressly provided in the same Standing Orders that a "bill" could be a "matter" which the Council might refer to a select committee, with the exception of the Appropriation Bill. The Standing Orders also provided that a petition presented before the Council would be referred to a select committee if at least 10 Members rose in support of such a referral. ^[7] Apart from examining bills or handling petitions, select committees were also appointed to inquire into matters of public concern. Examples included a select committee appointed in 1971 to inquire into the costs of running English-speaking schools and a select committee appointed in May 1985 to consider and report on the measures to resolve the problems involved in the prosecution and trial of complex commercial crimes.

14.8In July 1985, the Powers and Privileges Ordinance which declared and defined the powers, privileges and immunities enjoyed by the Legislative Council and its members was enacted. Section 9(1) of the Ordinance provides that, subject to section 13 (objection to answer questions or produce papers) and section 14 (privileges of witnesses), the Council or its standing committee may order any person to attend before it and to give evidence or produce any paper, book, record or document in the possession or under the control of such person. As for other committees, including select committees, section 9(2) provides that the powers conferred by section 9(1) on a standing committee may be exercised by any other committee which is specially authorized by a resolution of the Council in respect of a specific matter or question.

14.9On 29 January 1992, a select committee was appointed with authority to exercise the powers under section 9(1) of the Powers and Privileges Ordinance, i.e. the power to summon witnesses, to review the arrangements for the 1991 Legislative Council elections. This was the first time section 9(2) of the Powers and Privileges Ordinance was invoked to enable a select committee to exercise such power. The select committee invited interested individuals and organizations to make representations to it on the issues under review, and 45 persons attended before the select committee at 9 public meetings but none of them were ordered by summons.

14.10After Panels became formal committees of the Council in 1993, they were given a mandate to monitor Government policies and study issues of public concern. It was often in the course of their deliberations on an issue which had caused wide public concern that the proposal to conduct an inquiry arose. Given that a Panel had no power to summon witnesses, the matter was often referred to the House Committee for a decision on whether authorization of the Council for the Panel to summon witnesses should be sought. In 1993, the Panel on Security was authorized by the Council to summon witnesses for the purpose of inquiring into the circumstances surrounding the termination of the service of a former Senior Assistant Director of the Independent Commission Against Corruption.^[8] In 1995, the Panel on Manpower was also authorized to inquire into the labour disputes involving imported workers under the Special Labour Importation Scheme for the Airport Core Programme Projects, with the power to summon witnesses.^[9]

14.11On occasions, the House Committee might consider it more appropriate to appoint a select committee to inquire into specific matters. In such cases, a proposed resolution was put to the Council for appointing a select committee and, if so desired, also for authorizing the select committee to exercise the power to summon witnesses. Apart from the case mentioned in paragraph 14.9 above, the pre-1997 Legislature also authorized two other select committees to conduct inquiries with the power to summon witnesses:

(a)a select committee to inquire into matters relating to the Kwun Lung Lau Landslip (1994) ^[10]; and

(b)a select committee to inquire into the sudden departure of a former Director of Immigration (1996) ^[11].

After the establishment of the HKSAR

14.12Under Article 73(10) of the Basic Law, the HKSAR Legislature has the power and function to summon persons concerned to testify or give evidence when exercising any of the functions and powers mentioned in Article 73. Article 48(11), on the other hand, also provides that the Chief Executive of HKSAR has the power and function to decide, in the light of security and vital public interests, whether government officials or other personnel in charge of government affairs should testify or give evidence before the Legislative Council or its committees. The power of committees to exercise the power and function given to the Legislative Council under the Basic Law to summon witnesses has been reflected in the Rules of Procedure of the HKSAR Legislature and in 2009 was held by the High Court to be a power given to committees of the Council under the Basic Law ^[12].

14.13Generally speaking, any matters which may be included on the Agenda of the Council for debate, whether directly related to the operation of the government or concerning the interest of the community as a whole, are matters of public interest which the Legislative Council has the duty to study and, if needed, to inquire into in order to hold the Government to account. Since July 1998, section 9(2) of the Powers and Privileges Ordinance has been invoked on the following occasions:

(a)a select committee to inquire into the problems surrounding the commencement of operation of the New Hong Kong International Airport (1998) ^[13];

(b)a select committee to inquire into the building problems of public housing units (2001) ^[14];

(c)a select committee to inquire into the handling of the outbreak of the Severe Acute Respiratory Syndrome (2003) ^[15];

(d)a subcommittee of the House Committee to study issues arising from Lehman Brothers-related Minibonds and Structured Financial Products (2008) ^[16];

(e)a select committee to inquire into matters relating to the post-service work of Mr LEUNG Chin-man (2008) ^[17]; and

(f)a select committee to study Mr LEUNG Chun-ying's involvement as a Member of the Jury in the West Kowloon Reclamation Concept Plan Competition and Related Issues (2012) ^[18].

Preparatory work

14.14As mentioned in Chapter 13 ^[19], where a select committee is to be appointed, it is normal practice for a preparatory subcommittee to be set up under the House Committee to draft a proposed resolution which provides the scope of the inquiry unless this has already been done by the Panel which proposes to conduct the inquiry. The resolution is usually moved by the chairman of the preparatory subcommittee, if such is formed, or the chairman of the House Committee in accordance with a decision of the House Committee. If the inquiry is to be conducted by a Panel, the proposed resolution to seek authorization for exercising the power to summon witnesses is normally moved by the chairman of the Panel. The notice period of not less than 12 clear days before the day on which a motion is to be moved also applies to these proposed resolutions unless the President agrees to dispense with such notice. ^[20]

14.15The size of a select committee is determined by the President who appoints the chairman, deputy chairman and members of the committee after taking into account the recommendations of the House Committee.^[21] It has also been the practice for the preparatory subcommittee to propose the membership size and for the House Committee to conduct an election at its meeting to determine the Members to be proposed to the President for appointment as chairman, deputy chairman and members of the committee. This procedure does not apply to a Panel or a subcommittee of the House Committee which elects its own chairman and deputy chairman, and whose membership is open to those members who have signified membership before a specified deadline.

Process in conducting an inquiry

Duration of inquiry

14.16The date by which a select committee is required to report back to the Council is normally not specified in the resolution seeking its appointment or authorization to exercise the power to summon witnesses. The time required to complete an inquiry is determined by the committee itself having regard to the complexity of the matter concerned. Nevertheless, as a select committee must be dissolved at the end of a term ^[22]; the objective is to ensure that the inquiry is completed well before that in order that the Council has a reasonable opportunity to take note of the report through debate on a motion worded to that effect. If the select committee is of the opinion that it will not be able to complete its work in time, it shall so report to the Council. ^[23]

Chairmanship

14.17All meetings are chaired by the chairman or, in his/her absence, by the deputy chairman. In the event of the temporary absence of the chairman and deputy chairman, the arrangement set out in Rule 79(3) of the Rules of Procedure will be followed, i.e. the committee may elect a chairman to act during such absence.

Practice and Procedure

14.18It is common practice for a committee undertaking an inquiry to adopt a pre-determined set of practices and procedures in order to maintain predictability and consistency in the committee's mode of operation, including procedural decisions which it has to make in the course of its work. This practice safeguards the integrity and credibility of the findings and views expressed in the committee's report and enhances its accountability to the Legislative Council and the public at large.

14.19The first committee which invoked the power to summon witnesses was the Panel on Security (1993) which adopted a specific set of practice and procedure for the inquiry concerned, based on the procedure set out in Rule 79 (Procedure of Select Committees) of the Rules of Procedure (Appendix 14-A). In the course of its work, the Panel developed a set of procedures in accordance with section 15 of the Powers and Privileges Ordinance to deal with possible claims of public interest immunity by persons appearing before the Panel under section 14(1) of the Powers and Privileges Ordinance. This set of procedures was formalized into a resolution of the Legislative Council, which was passed on 25 May 1994. The procedure was further amended in November 1996 and April 1997 by a select committee which inquired into the circumstances surrounding the departure of a former Director of Immigration. The resolution passed by the Council on 16 April 1997 which has been referred to up to this date is at Appendix 14-B.

14.20The practices and procedures adopted in subsequent inquiries were developed through practical experience following publication of the First Report of the Select Committee on Building Problems of Public Housing Units in 2003. ^[24] New arrangements may be incorporated into the practice and procedure of a committee in the course of its inquiry if considered appropriate by the committee. Examples include the current arrangements for dealing with claims for public interest immunity and the arrangements adopted in the light of the sub judice rule, as explained in the latter part of this Chapter ^[25].

14.21In determining its own practice and procedure, a committee conducting an inquiry may draw reference from the practice and procedure of previous similar committees, taking account of the following principles ^[26]:

(a)the practice and procedure should be fair and seen to be fair, especially to parties whose interests or reputation may be affected by the proceedings of the committee;

(b)there should be maximum transparency in its proceedings as far as practicable;

(c)the practice and procedure should facilitate the ascertaining of the facts relevant to, and within the scope of, its inquiry, as set out in the committee's terms of reference, which do not include the adjudication of the legal liabilities of any parties or individuals;

(d)its proceedings should be conducted with efficiency; and

(e)the cost of the proceedings should be kept within reasonable bounds.

14.22The practice and procedure adopted by a committee conducting an inquiry is available on the official website of the Legislative Council and is issued to every witness summoned to appear before the committee. As noted in para. 14.20, there may be a need to amend the Practice and Procedure in the course of the committee's work. Any such amendments are duly recorded and explained in the report of the committee published upon completion of its work. For illustration, the practice and procedure adopted by the Select Committee to inquire into matters relating to the post-service work of Mr LEUNG Chin-man in 2009 is provided at Appendix 14-C.

Work plan

14.23It has been the practice of committees conducting inquiries to determine the areas of their study and to draw up a work plan at the start of the inquiry having regard to the resolution passed by the Council. This practice was first adopted by the Select Committee on Building Problems of Public Housing Units appointed in February 2001. In the resolution which appointed this Select Committee and authorized it to exercise the power to summon witnesses, the Committee's remit was "to identify positive recommendations for a complete overhaul of the overall policies and system of public housing, which should include examining whether the Housing Authority should be reorganized, split or abolished, so as to raise the quality of public housing". On the basis of this resolution, the Select Committee decided on three areas of investigation: (a) the building problems in the production of specified public housing units; (b) the working mechanisms within the responsible authorities and relevant parties and; (c) their policies, procedures, practices and institutional structure which might have a bearing on the quality of public housing. ^[27] For each area of inquiry, the Select Committee identified the witnesses who were likely to provide the information required for its task and drew up a work plan which contained the working schedule and details of the work involved at each phase of the inquiry. The work plan of the Select Committee on Building Problems of Public Housing Units is provided at Appendix 14-D for illustration.

Invitation for information and views from the public

14.24In view of the interest of the public in the matters examined in an inquiry, it has been a practice for committees to invite the public to provide information which may assist in understanding the circumstances surrounding the matters concerned. The first committee which invited the public to provide information was the Select Committee on Kwun Lung Lau Landslip and Related Issues appointed in October 1994. In this particular case, apart from inviting the relevant Government departments, public bodies and parties concerned to provide submissions/evidence, the Select Committee also invited members of the public to give information and views on the matters under inquiry. As a result, 25 submissions were received from interested organizations and members of the public.^[28]

14.25In most cases, the views submitted to the committee conducting an inquiry are written representations. It is for the committee to decide whether any of the persons who submitted views should be invited or summoned to appear before the committee to give evidence as witnesses. The Subcommittee to Study Issues Arising from Lehman Brothers-related Minibonds and Structured Financial Products published a notice on the website of the Legislative Council to invite investors who met the requisite criteria to indicate their interest in assisting the Subcommittee by responding to the invitation in writing for consideration by the Subcommittee. An advertisement was also placed in 3 local newspapers to draw readers' attention to the said invitation. The Subcommittee subsequently took evidence from 16 investors.

Scheduling of meetings

14.26A schedule of meetings is usually drawn up at the start of the committee's work after consulting members of the committee, but the chairman has the discretion to change the date and time of meetings. ^[29] In order to ensure a quorum throughout the whole of each meeting, the clerk assists the chairman in consulting members on their availability and informs members of the schedule of meetings as soon as practicable. Separate notices of meetings with the agenda are then issued nearer the time of each meeting.

14.27Meetings are usually held in the Legislative Council Complex but, where considered appropriate, the committee may meet at a venue outside the Complex as an alternative. In 1996, the Panel on Manpower held some of its meetings away from the then Legislative Council Building during its inquiry into the circumstances surrounding the labour disputes involving imported workers under the Special Labour Importation Scheme. The Panel agreed to conduct closed meetings to obtain evidence from a number of witnesses who requested to remain anonymous.^[30]

Quorum

14.28For a select committee, Rule 78(3) of the Rules of Procedure provides that its quorum shall be one-third of the members excluding the chairman (a fraction of a whole number being disregarded). The quorum of a Panel is governed by Rule 77(8) which requires a quorum of 3 members including the chairman or one-third of the members including the chairman (a fraction of the whole number being disregarded), whichever is the greater. The quorum of a subcommittee of the House Committee is determined by the House Committee and a quorum requirement similar to Rule 77(8) is usually adopted. The clerk to the committee is required to draw to the attention of the chairman the absence of a quorum as and when it occurs. It is common practice to require the presence of a quorum at all times during any meeting of an inquiry.

Voting

14.29Decisions of a committee are made by a majority of the members present and voting, which is evidenced by a show of hands or, if so claimed, by a division which is recorded. Abstentions are not counted for the purpose of determining the result of the vote. Where a division is claimed, the arrangements in Rules 79(5) and 79(6) of the Rules of Procedure, which are procedures for select committees, are followed. The clerk to the committee will ask each member separately how the member wishes to vote and record the votes accordingly. Neither the chairman nor any other member presiding shall vote, unless the votes of the other members are equally divided in which case the chairman shall have a casting vote. As explained in Chapter 13 ^[31], under Rule 79A(1) of the Rules of Procedure, a casting vote shall not be exercised in such a way as to produce a majority vote in favour of the question put.

Participation of other Members

14.30While meetings held in public will be attended by members of the committee, Members who are not members of the committee may also be in attendance at its open meetings, but they may not speak at the meetings. If any such Members wishes to direct any questions to a witness, he/she should put the questions in writing and pass them to the chairman without interrupting the proceedings, and the chairman will decide whether or not to ask the questions. No Member who is not a member of the committee may be present at any internal deliberations or closed hearings of the committee. ^[32]

Disclosure of interests

14.31Rules 83A and 84 of the Rules of Procedure relating to Members' pecuniary interest shall apply to the proceedings of a committee conducting an inquiry. In gist, a member must disclose the nature of any direct or indirect pecuniary interest he/she may have in a matter before moving any motion or amendment relating to the matter, or speaking on any such matter. This requirement applies to each meeting the member attends in the course of the inquiry. Where the interest concerned is a direct pecuniary interest, the member may not vote on the matter, except where his interest is in common with the rest of the population of Hong Kong or a sector thereof or his vote is given on a matter of Government policy. ^[33] Under Rule 84(4), a motion to disallow a Member's vote on the ground of his direct pecuniary interest may be moved without notice.^[34]

Conduct of meetings

14.32All meetings of a committee conducting an inquiry must be held in public unless the chairman otherwise orders in accordance with any decision of the committee.^[35] As a general principle, all meetings to obtain evidence from witnesses are held in public.

Public and closed hearings

14.33The committee may require the attendance of witnesses at its meetings for ascertaining or verifying any facts relating to the subject of inquiry by oral examination. Such examination is usually conducted in open hearings. Members should only ask questions for the purpose of ascertaining or verifying facts, and should not make comments or statements during these hearings.

14.34Witnesses are generally required to be examined on oath. In accordance with section 11(2) of the Powers and Privileges Ordinance, the taking of an oath may be administered by the chairman of the committee or by the member presiding in the absence of the chairman. A witness who is lawfully ordered ^[36] to attend to give evidence is entitled, in respect of such evidence, to the same right and privilege as before a court of law. Such protection, however, is not available in respect of the same information that is given outside of the proceedings of the committee. Accordingly those witnesses as well as members of the public and media who observe the proceedings of the committee are reminded at the beginning of each open hearing that dissemination or disclosure of the evidence given at the hearing outside the proceedings is not protected under the Powers and Privileges Ordinance, and the media should obtain legal advice as to their legal responsibilities over their reporting of the inquiry.

14.35A witness may request to give evidence at a closed hearing for various reasons. Any such requests are considered on a case-by-case basis and on their own merits. It is only in exceptional circumstances, for example where the evidence to be obtained is sub judice, that such requests are acceded to. As a matter of principle, any information obtained by way of oral evidence or in the form of documents provided at closed hearings must not be disclosed. However, there may be situations where certain information obtained at a closed hearing is required to be verified at another hearing and with another witness. In fairness to the witness who has provided the information, the source of the information is not disclosed unless it is necessary to make the question comprehensible to the other witness(es) provided that the identity of the witness who provided the information will not be revealed.^[37]

The issue of a summons

14.36To facilitate the smooth conduct of business, it is common practice for a witness to be informed about the scope of the evidence to be ascertained after he/she is served with a summons. The witness is notified by a summons issued under the hand of the Clerk to the Legislative Council by direction of the President.^[38] In every summons issued to a witness, there must be stated the name of the witness, when and where he is required to attend and the particular documents (if any) he is required to produce.^[39] A sample of a summons is provided at Appendix 14-E.

14.37The covering letter to a summons which orders a witness to attend the committee's hearing includes the following for the information of the witness:

(a)the resolution passed by the Legislative Council in which the terms of reference of the committee are set out;

(b)a list of the papers, books, records and documents which the witness is ordered to produce in relation to the areas of evidence to be obtained at the hearing; in addition, the witness is provided with a list of issues and questions on which he is requested to provide a written statement to facilitate the taking of evidence from the witness at the hearing;

(c)a copy of the Powers and Privileges Ordinance in which the duties and privileges of a witness are stipulated; and

(d)the practice and procedure adopted by the committee for its proceedings.

Examination of witnesses

14.38As noted in paragraph 14.37 (b), in order to enhance the transparency of the committee's proceedings, the witness is generally requested to provide a written statement, which is made available to persons observing the proceedings from the public galleries, including the media, after the witness has formally produced the statement to the committee. The purpose of having such a written statement available is to facilitate accurate reporting of the witness’ oral statement at the start of the hearing which is not a response to any question but is whatever the witness wishes to tell the committee. The provision of a written statement is not compulsory.

14.39Questions may be put to the witness at a hearing with the chairman asking the first question, followed by other members who have indicated their intention to ask questions by a show of hands. On occasions, for more thorough and effective questioning, each member of the committee may be assigned a specific area for raising questions. This division of responsibilities helps facilitate a more systematic examination of the facts during the hearing and more in-depth discussion on the evidence collected during the internal deliberations of the committee especially during discussions on the draft report.

14.40The chairman is required to ensure that equal opportunity is given to each member to raise questions on the evidence produced by a witness, and to ensure that the hearing is conducted in a structured manner. A member who is called to ask questions may ask questions and follow-up questions within an agreed timeframe. However, the chairman has the discretion to decide whether the question is relevant to or within the scope of the inquiry as set out in the terms of reference of the committee, and therefore whether the question can be asked. Part I (Rules of Order) of the Rules of Procedure applies to a committee conducting an inquiry, with the exception of Rule 45(1) which only applies to a select committee. Rule 45(1) provides that the Chairman of a committee of the whole Council or the chairman of any standing or select committee, after having called the attention of the committee to the conduct of a member who persists in irrelevance or tedious repetition of his own or other members' arguments in the discussion, may direct him to discontinue his speech. As this subrule does not apply to other committees, the chairmen of these other committees cannot direct a Member to discontinue his speech on grounds of irrelevance or tedious repetition of arguments.^[40] However, where a member's conduct is considered by the chairman to be grossly disorderly, the chairman may order the member to withdraw immediately from the committee for the remainder of that meeting by application of Rule 45(2). ^[41] The decision of the chairman on a point of order is final. ^[42]

14.41Unless excused by the President under section 13(2) of the Powers and Privileges Ordinance or justifiably permitted after claiming his right or privilege under section 15, a witness summoned under section 9 of the Ordinance must answer all lawful and relevant questions from or produce documents required by the committee. If the witness refuses to do so, he/she commits an offence under section 17 of the Ordinance and is liable to prosecutions (but only with the consent of the Secretary for Justice under section 26. Under section 13(2), the President may, upon report by the chairman of the committee conducting the inquiry of the witness' refusal to answer any question put to him or to produce any document on the ground that it is of a private nature and does not affect the subject of inquiry, excuse the answering of such question or the production of such document, if such is considered not relevant by the President. If the witness claims privilege from disclosure of evidence on grounds of public interest immunity pursuant to section 15, the procedure as set out in the Council's resolution concerning the usage and practice in regard to the determination of claims of public interest privilege in Appendix 14-B will be followed. The privilege which may be claimed by the witness does not include privilege against self-incrimination, i.e. that answering such question or production of such document may tend to expose the witness or his/her spouse to proceedings for an offence or for the recovery of a penalty, as provided in section 16 of the Ordinance but there is protection under section 16(2) for the witness against use of such incriminating evidence against him in criminal proceedings.

14.42A witness may be accompanied by other persons, who may include legal adviser(s), to assist the witnesses concerned at a hearing. While the witness may seek advice from the accompanying persons, the latter may not address the committee.

14.43A witness who is ordered by summons to appear before a committee to give evidence or to produce any document may be eligible to claim an allowance at specified rates to recompense loss of income or expenses incurred for attending the hearings. The details are in Appendix 14-F.

Internal deliberations

14.44Subject to Rule 79(2) of the Rules of Procedure, the committee may hold closed meetings to deliberate on procedural matters (except the adoption of the Practice and Procedure which is done at an open meeting), to review the progress of its work, to determine the logistical arrangements for hearings, to deliberate the evidence obtained, to discuss and agree on the draft report of the committee and other matters which are of a confidential nature. Members including the chairman and the deputy chairman should not disclose any information about the internal deliberations held or documents considered at these meetings. However, if so authorized by the committee, the chairman and the deputy chairman may respond to media enquiries, having regard to the arrangements set out in Rule 27 of the House Rules.

Handling of documents

14.45All documents submitted to the committee are numbered by document and by page. Each member of the committee is given a copy of the documents produced to the committee, unless advised otherwise with the consent of the committee.

14.46During the hearing, information folders are made available to witnesses for their reference. These contain documents which are relevant to the areas of evidence in respect of which evidence is to be obtained from the witness at the hearing and to which members of the committee are likely to refer in the course of evidence-taking. In addition to documents provided by the witness, the folders include documents provided by other witnesses and other reference material.

14.47Requests made by witnesses for classifying certain information or documents as confidential should be fully justified. In considering such requests, the committee should examine carefully the circumstances of each case and ensure that the principles of fairness, maximum transparency and consistency are upheld.

Minutes of proceedings

14.48Minutes of evidence, usually in the form of a verbatim transcript in their original language, are kept for each meeting at which witnesses are examined. Relevant parts of the draft transcript are given to a witness whose evidence is recorded in it for his or her sight and correction, if any, before the transcript is incorporated into the minutes of evidence. Such a witness is required to sign an undertaking that he or she would not make any copy of the draft and would return it to the committee before a specified date. The corrections which a witness may propose are limited to editorial inaccuracies or matters of fact which do not materially alter the general sense of an answer, and the committee reserves the right to make the final determination on the accuracy of any verbatim transcript. All transcripts should be confirmed at meetings of the committee before they can be made available to the public. Any member of the public may obtain a copy of the confirmed transcripts for meetings held in public upon the payment of an administrative fee determined by The Legislative Council Commission.

14.49A witness or a prospective witness may ask for copies of the transcripts of evidence taken in public. These include the unpublished and/or uncorrected version of transcripts. If the committee considers appropriate, the verbatim transcripts will be provided to the witness or prospective witness, with the unpublished and/or uncorrected status of the transcripts clearly stated. A sample of the procedure adopted by the Select Committee on Building Problems of Public Housing Units for the provision of transcripts of evidence to witnesses and prospective witnesses is at Appendix 14-G. ^[43]

14.50For hearings held in closed meetings, no transcripts will be provided for any person including the witnesses concerned. All witnesses however are provided with the relevant parts of the draft transcripts of evidence for sight and correction. They are required to sign an undertaking which includes a requirement that no part of the draft transcript in question may be divulged.

14.51For meetings not attended by any outside party, the minutes of meetings are normally presented in a condensed form, recording the committee's decisions, follow-up actions required, procedural matters and declarations of interest made by members. Verbatim record of such meetings may be prepared on the direction of the committee.

14.52All proceedings of hearings and meetings are sound-recorded. Members of the public may obtain copies of the sound recordings of hearings and meetings held in public upon the payment of an administrative fee.

Report on the inquiry

14.53After completion of the collection of evidence, the committee proceeds to the deliberative stage. Under the direction of the chairman, a preliminary summary of findings and observations is produced by the clerk for discussion by the committee. On the basis of the findings in the summary, the committee considers the issues identified and examines whether all necessary facts have been ascertained before it makes its conclusions and draws up its recommendations. Where it is considered necessary, the committee may invite or summon a witness to attend a further hearing to enable members to verify certain facts collected in the first round of hearings.

14.54Thereafter a draft report will be prepared for discussion and agreement by the committee before seeking comments from any witnesses whose reputation may be adversely affected by the report. To ensure that the procedure is fair and seen to be fair to these witnesses, it is an established practice that any party, person or organization against whom adverse comments are intended to be made in the committee's report will be given an opportunity to comment on relevant parts of the draft findings and observations of its report. Such witnesses must undertake to keep the draft report confidential, but this does not prevent them from consulting their own legal advisers. The comments received will be taken into account by the committee before its report is finalized.^[44]

14.55Where the committee intends in its report to refer to information obtained in closed hearings, an extract of the relevant part of the report in draft form should be provided to the witness concerned for comment. The comments received will be taken into account by the committee before its report is finalized.

14.56Based on the deliberations of the committee on the comments made by the witnesses, a final draft report together with the committee's recommendations is produced for endorsement by the committee in one or more closed meetings. The content of the draft report is considered and approved paragraph by paragraph. Where amendments are proposed to any particular paragraph, they are immediately debated and voted on. The minutes of proceedings which record all proceedings including the amendments proposed and results of voting are produced and attached as an appendix to the report.

14.57The report of the committee, with the minutes of proceedings and the minutes of evidence, if evidence was taken, must then be laid on the Table of the Council by the chairman of the committee.^[45] To facilitate parties concerned to respond to the report in public upon its being presented, an advance copy of the report is made available to them, including the witnesses, approximately 30 – 90 minutes before the start of the Council meeting at which the report is presented, so that they can prepare their responses if needed. The parties are, however, requested to undertake not to divulge the contents of the report before the start of the Council meeting.

14.58At the same meeting when the report of the committee is tabled in the Council, the chairman of the committee also addresses the Council on the report. Where a minority report is made by any member of the committee, that report is usually tabled at the same meeting and the member who presents it also addresses the Council. ^[46] It is common practice that a motion will be moved by the chairman of the committee for the Council to take note of the report at a meeting shortly after the tabling of the report in the Council.

14.59A full version of the committee’s report and evidence obtained from the inquiry (except evidence which is classified as confidential) is kept in the Legislative Council Library for public access. The full text of the committee’s report in both official languages is also available on the Legislative Council’s website.

Premature publication of evidence

14.60In accordance with Rule 81 of the Rules of Procedure, the evidence taken before the committee and documents presented to it shall not, except in the case of its meetings held in public, be published by a member of the committee or by any other person before the committee has presented its report to the Council. ^[47] Any member of the committee who fails to comply with this Rule may be admonished or reprimanded by the Council on a motion to that effect.^[48]

Safeguarding the rights of witnesses

Rights and privileges of a witness under the Powers and Privileges Ordinance

14.61A committee authorized under section 9(2) of the Powers and Privileges Ordinance to exercise the power to summon witnesses may order any person to attend before it and to give evidence or to produce any paper, book, record or document in the possession or under the control of such person. It may also invite any person or body to give evidence orally or in writing or to produce specified documents to the committee. The privileges and immunities provided in the Ordinance are available in proceedings before the committee which include hearings and deliberative meetings. However, the right and privilege to which a witness is entitled as if before a court of law ^[49] are not available to a person who is simply invited to give evidence and who is not lawfully ordered by summons to give evidence.

14.62Whilst the main object of the Powers and Privileges Ordinance was to codify the powers and privileges of Legislative Council Members already provided in the then existing laws (most of which were derived from common law, UK Parliamentary practice and section 4 of the Oaths and Declarations Ordinance (Cap. 11)), the Powers and Privileges Ordinance also contains provisions to safeguard the rights of summoned witnesses. These provisions include section 13 which provides that the President may excuse a witness from answering a question or producing any such paper, book, record or document on the ground that it is of a private nature and does not affect the subject of inquiry. Section 14(1) provides that every person lawfully ordered to attend to give evidence before the Council or a committee shall be entitled to the same right and privilege of a witness before a court of law. A witness who is summoned to appear before the Council or a committee is considered as a "person lawfully ordered to attend" within the meaning of section 14(1). He would accordingly be entitled to protection against being sued for defamatory remarks made at such a meeting, in the same way that a witness in a court of law is so protected.

Actions taken to protect the rights of witnesses in the course of an inquiry

14.63The committees authorized to exercise the powers conferred by the Powers and Privileges Ordinance have invariably adhered to the principles of natural justice and ensured that their practice and procedure are fair and seen to be fair, especially to parties whose interests or reputation may be affected by the proceedings of the committee. These committees have attached great importance to the need to state clearly in advance to the witnesses the areas of evidence to be obtained at the hearings to which they are summoned, to afford the witnesses a reasonable chance to state their cases and to make known to the witnesses any criticisms and observations being made against them and the basis on which these are made. To this end, a set of general practice and procedure has been developed by such committees over the years.

14.64As mentioned in paragraph 14.37 above, in the covering letter to a summons ordering a witness to attend a committee’s hearing, the witness is provided with information on the terms of reference of the committee, a list of documents which the witness is ordered to produce in relation to the areas of evidence to be obtained at the hearing, together with a list of issues and questions to be put to him at the hearing, for which a written statement is invited from him to facilitate the taking of evidence at the hearing. The witness is also provided with a copy of the Powers and Privileges Ordinance in which the duties and privileges of a witness are stipulated, and a copy of the practice and procedure adopted by the committee for its proceedings. The witness is also advised that, subject to the consent of the committee, he may request to be accompanied by other persons at the hearing.

Practice of ordering attendance by summons

14.65It has been the practice that all witnesses and public officers are issued with a summons for attending meetings of the Legislative Council or its committees to give evidence or to produce documents. Section 8A of the Powers and Privileges Ordinance, which was enacted in 1994, extended the privileges and immunities enjoyed by Members of the Legislative Council to the Governor (who ceased to be the President of the Legislative Council) and public officers designated by the Governor to attend sittings of Council or a committee. However, there has never been a specific provision in the Ordinance which gives persons other than public officers so designated the same protection. Therefore, in order that persons who are not designated public officers are given protection similar to that enjoyed by designated public officers it has been the usual practice to issue them with a witness summons so that their attendance or production of documents under an order notified through the summons will entitle them to the same right or privilege as before a court of law by virtue of section 14(1) of the Ordinance.

14.66This practice of issuing summonses in this manner was adopted for the first time by the Select Committee to inquire into the circumstances surrounding the departure of Mr. Leung Ming-yin from the Government, and related issues between 1996 and 1997. It was also considered at that time that in order to ensure equality of treatment, and to minimise the perceived stigma that may be associated with the receipt of a summons, designated public officers would also be issued with summonses. The Select Committee in that inquiry decided that all 10 witnesses should be ordered to attend its hearings by summons.

14.67There are provisions in the Powers and Privileges Ordinance relating to enforcement of the powers and privileges of the Legislative Council. Under the Ordinance, whether there has been a breach of the powers and privileges amounting to an offence is a matter for the courts. Sections 17 and 18 of the Ordinance provide that a person commits an offence if he/she disobeys a lawful order made by the Legislative Council or a committee or if he presents to the Council or a committee any false, untrue, fabricated or falsified document with intent to deceive LegCo or such committee. Section 26 further provides that no prosecution for an offence under the Ordinance shall be instituted except with the consent of the Secretary for Justice.

Measures taken to avoid possible prejudice to a person's interests in pending legal proceedings

14.68At common law, words spoken or otherwise published, or acts done, outside court which are intended or likely to interfere with or obstruct the fair administration of justice are punishable as criminal contempt of court. It is not necessary that a fair trial or the conduct of the proceedings is actually prejudiced. The test is whether there is a real risk of prejudice. The common law offence of contempt of court is also applicable to a Commission of Inquiry ^[50].

14.69The Powers and Privileges Ordinance, on the other hand, provides Members with freedom of speech and debate in the proceedings of the Legislative Council or its committees (including a select committee) ^[51]; and the immunity from civil or criminal proceedings for words spoken before, or written in a report to, a committee ^[52]. The immunities provided under these provisions are to enable Members to discharge their duties as legislators without fear of legal liabilities. Because of the breadth of these immunities, a convention, normally called the sub judice rule, has developed as a self-imposed restraint in the Legislature. In brief, by applying the sub judice rule, when a matter is under the consideration of a court of law awaiting a decision or verdict, it should not be discussed in the proceedings of the Council or its committees. Nevertheless, the rule only applies if the discussion or reference to the case is viewed by the President or chairman as being likely to prejudice it.^[53] This sub judice rule is reflected in Rule 25(1)(g) ^[54] and Rule 41(2) ^[55] of the Rules of Procedure.

14.70To avoid possible prejudice to pending court cases, arrangements to deal with specific cases involving legal proceedings had been made by committees in the course of their inquiries. The Panel on Security which inquired into the Alex Tsui’s case in 1993 and the Panel on Manpower which inquired into the Imported Labour case in 1995 had built up useful precedents of practices which were adopted by the Select Committee on Building Problems of Public Housing Units. In the course of its deliberation on sub judice, the Select Committee had considered the following principles summarized by the Legal Adviser of the Legislative Council Secretariat based on past application of the sub judice rule in Hong Kong and from practices and procedures in other jurisdictions ^[56]:

(a)References to matters awaiting adjudication in a court of law should be excluded if there is a risk that they might prejudice its adjudication;

(b)Matters awaiting adjudication should include matters in respect of which a charge has been made or proceedings have been initiated by the filing of the appropriate documents with the court;

(c)References should include comment on, inquiry into and the making of findings on such matters; and

(d)Prejudice might arise from an element of explicit or implicit prejudgment in the proceedings of the legislature in two possible ways: -

(i)the reference might hinder the court in reaching the right conclusion or lead it to reach other than the right conclusion; and

(ii)whether the court is affected in its conclusion or not, the references might amount to an effective usurpation of the court's judicial functions.

14.71Having regard to the above principles, the Select Committee adopted certain measures to avoid possible prejudice to a person's interests in pending legal proceedings, which were documented in the First Report of the Select Committee and have been followed by other committees in conducting inquires. These measures are:

(a)the Department of Justice will be asked to keep the committee informed of the development of the criminal proceedings concerned, if any;

(b)the chairman would explain to each witness that the function of the committee is not to adjudicate on the legal liability of any party or individual and advise him/her of the chairman's power to disallow the making of any reference to a case pending in a court of law if such reference might, in the chairman's opinion, prejudice the proceedings;

(c)where it is considered necessary and justified, either on an application by a witness or on the committee's own motion, the committee may determine to hold closed meetings to obtain evidence from a witness;

(d)where the committee considers necessary, it will provide the Department of Justice with a copy of the draft findings and observations of the committee and request it to comment whether the contents of the draft might prejudice pending criminal proceedings, if any; and

(e)the report of the committee should not contain any material which might prejudice a pending criminal jury trial.

[1]: Section 9(1) of the Legislative Council (Powers and Privileges) Ordinance (Cap. 382).
[2]: One such occasion was in 2005 when the Public Accounts Committee ordered Mr. LEUNG Chin-man, a former Director of Buildings, to attend before it at a hearing on 1 December 2005 and on such other days as he might be required to give evidence for the purpose of its consideration of Chapter 3 of the Director of Audit’s Report No. 45 concerning "Development of a site at Sai Wan Ho" (more commonly known as the Grand Promenade). Also see Chapter 12, para. 12.101.
[3]: An example is the decision of the House Committee to set up a subcommittee instead of a select committee to consider the issues arising from Lehman Brothers-related Minibonds and Structured Financial Products on 13 October 2008. See Report of the Subcommittee, para. 1.3 – 1.4.
[4]: Chapter 13, para. 13.22 – 13.23, 13.48, 13.53.
[5]: See House of Commons Procedure and Practice (Canada), 2nd Edition, pp. 973 – 974.
[6]: Chapter 6, para. 6.4.
[7]: See Chapter 13, para 13.22.
[8]: 4 witnesses provided evidence to the Panel, including 2 civil servants and 2 private individuals.
[9]: Of the 34 witnesses called for the inquiry, there were 12 representing 8 private companies being contractors of the airport projects. These witnesses provided detailed information on how imported workers were recruited, how they provided accommodation, transportation and catering for the workers and the method of payment for these workers through the agents in paying their wages.
[10]: Of the 34 witnesses invited to appear before the select committee, 28 were civil servants and representatives or employees of public bodies (including Government advisory bodies and publicly funded organizations such as the Hong Kong Housing Authority and most of the local universities) and 6 were persons from the private sector (including private companies, professional bodies, constructing and consulting firms and persons in their individual capacities). Among these 34 witnesses, 21 were invited to attend and 13 were summoned to attend.
[11]: 10 witnesses were summoned to attend meetings of the select committee.
[12]: See Chapter 2, para. 2.27 and Chapter 13, paras. 13.3 – 13.6.
[13]: Of the 27 witnesses summoned to appear before the select committee, 20 of whom were civil servants and representatives/employees of public bodies and 7 of whom were persons from the private sector.
[14]: Representatives from 15 private companies were summoned to give evidence to assist the select committee to understand the alleged malpractices in the building industry leading to the excessive uneven foundation settlement in a completed 40-storey public housing block in Tin Shui Wai and in two other blocks in Sha Tin, as well as other major building problems in two other housing projects. In the course of the inquiry, the representatives were ordered to produce evidence relating to piling records, settlement analysis, staff records, etc. which were of use to the select committee's study of the building problems. The select committee heard a total of 85 witnesses, 45 of whom were civil servants and representatives/employees of public bodies and 40 of whom were persons from private entities.
[15]: The select committee heard 69 witnesses, 67 of whom were civil servants and representatives/employees of public bodies and 2 of whom were persons from private entities.
[16]: Of the 63 witnesses summoned to appear before the Subcommittee, 4 were government officials, 3 were representatives/employees of a public body, 39 were persons from private entities and 16 were investors.
[17]: 10 witnesses were summoned to appear before the select committee.
[18]: 17 witnesses were summoned to appear before the Select Committee. No corporate witnesses were summoned.
[19]: Chapter 13, para. 13.42.
[20]: Rule 29(1) of the Rules of Procedure.
[21]: Rule 78(2) of the Rules of Procedure.
[22]: Rule 78(5) of the Rules of Procedure.
[23]: Rule 78(4) of the Rules of Procedure.
[24]: See First Report of the Select Committee on Building Problems of Public Housing Units, Volume I, para. 1.10 at http://www.legco.gov.hk/yr02-03/english/sc/sc_bldg/reports/rpt_1.htm.
[25]: See para. 14.69 – 14.70.
[26]: See First Report of the Select Committee on Building Problems of Public Housing Units, Volume I, para. 1.11.
[27]: First Report of the Select Committee on Building Problems of Public Housing Units, Volume I, para. 1.7.
[28]: See Report of the Select Committee on Kwun Lung Lau Landslip and Related Issues, paras. 2.4 – 2.5.
[29]: Rule 79(2) of the Rules of Procedure.
[30]: Report of the Legislative Council Panel on Manpower on the Enquiry into the Circumstances Surrounding the Labour Disputes involving Imported Workers under the Special Labour Importation Scheme for the Airport Core Programme Projects and Related Issues (July 1996) para. 1.9.
[31]: Chapter 13, para. 13.97.
[32]: See First Report of the Select Committee on Building Problems of Public Housing Units, Volume 1, Appendix I(4), para. 18 – 19.
[33]: For example, if the matter under consideration by the Council relates to Government fees and charges where the interest of any individual Members in the matter is the same as that of the rest of the population, Members are not required to disclose the nature of the interest concerned under Rule 83A of the Rules of Procedure.
[34]: The procedure for the disallowance of vote on grounds of direct pecuniary interest is provided in Rule 3 of the House Rules.
[35]: Rule 79(2) of the Rules of Procedure.
[36]: See para 14.65 – 14.66.
[37]: An example is the handling of investigation reports, tender papers, contract documents and minutes of internal meetings produced to the Select Committee on Building Problems in Public Housing Unit. The Select Committee adopted the practice that if information contained in such documents was to be used at a hearing, the source of information would only be disclosed if it was necessary to do justice to the witness or to enable him to fairly understand a question. However, where possible, the identity of the witness who provided the information should not be disclosed. See Select Committee's First Report, Volume I, para. 1.16 – 1.17.
[38]: Section 10(1) of the Legislative Council (Powers and Privileges) Ordinance (Cap. 382).
[39]: Section 10(2) of the Legislative Council (Powers and Privileges) Ordinance (Cap. 382).
[40]: See Chapter 13, para. 13.89 – 13.92.
[41]: Rule 45(2) of the Rules of Procedure.
[42]: Rule 44 of the Rules of Procedure.
[43]: Annex II to Appendix I(4) to First Report of Select Committee, Volume I.
[44]: An example is the Select Committee to Inquire into the Matters Relating to the Post-service Work of Mr LEUNG Chin-man. The Select Committee provided relevant parts of the draft findings and observation of its report to the named parties, where it considered it appropriate to do so, to give them the opportunity to comment. After the comments were received from the parties concerned, the Select committee held 4 meetings comprising a total of 15 hours to consider the comments carefully before finalizing its report. See Select Committee's Report, para. 1.22 – 1.23.
[45]: Rule 79(10) of the Rules of Procedure.
[46]: The "minority report" presented by Dr Philip WONG, then Deputy Chairman of the Subcommittee to Study Issues Arising from Lehman Brothers-related Minibonds and Structured Financial Products was tabled at the same meeting when the Subcommittee's Report was tabled, on 6 June 2012.
[47]: Rule 81(1) of the Rules of Procedure.
[48]: Rule 81(2) of the Rules of Procedure.
[49]: Section 14 of the Legislative Council (Powers and Privileges) Ordinance (Cap. 382).
[50]: Section 11(2) of the Commissions of Inquiry Ordinance (Cap. 86).
[51]: Section 3 of the Legislative Council (Powers and Privileges) Ordinance (Cap. 382).
[52]: Section 4 of the Legislative Council (Powers and Privileges) Ordinance (Cap. 382).
[53]: Information paper for the House Committee meeting on 24 July 1998 (LC Paper No. LS 20/98-99).
[54]: Rule 25(1)(g) of the Rules of Procedure provides that a question shall not reflect on the decision of a court of law or be so drafted as to be likely to prejudice a case pending in a court of law.
[55]: Rule 41(2) of the Rules of Procedure provides that reference shall not be made to a case pending in a court of law in such a way as, in the opinion of the President or Chairman, might prejudice that case. According to Rule 43 of the Rules of Procedure, this rule shall apply to the proceedings in a committee unless the chairman of the committee orders otherwise.
[56]: Note for the Select Committee on Building Problems of Public Housing Units (LC Paper No. LS69/00-01) dated 23 February 2001 at http://www.legco.gov.hk/yr00-01/english/sc/sc_bldg/papers/ls69.pdf.

Chapter 14 Conduct of Inquiries